Nithianantha v Commonwealth of Australia [2018] FCA 2063

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) – where Professional Services Review Committee found applicant doctor engaged in "inappropriate practice" as defined in s 82(1)(a) – where Committee found that applicant engaged in a prescribed pattern of services by rendering more than 80 services on each of 20 or more days in the review period – where Committee found that there were no exceptional circumstances under reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) because there was not an absence of other medical services for the applicant's patients – whether the Committee erred by finding an alternative medical centre provided a readily and reasonably available alternative for the applicant's patients – whether applicant bears the burden of proving the existence of exceptional circumstances – whether reg 11(b) required the Committee to consider whether alternative medical services were available on each and every day in the review period – whether the Committee impermissibly considered practice management considerations 

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act – procedural fairness – where Committee called a witness to give evidence which contradicted the applicant's evidence a week before the last day of hearing – where notice did not encompass all evidence given by the witness at the hearing – where Committee relied on the witness' evidence to find that exceptional circumstances did not exist – whether the Committee was required to give the applicant a further opportunity to respond to witness' evidence – whether the finding was an adverse conclusion which was not obviously open on the known material

HEALTH LAW – Health Insurance (General Medical Services Table) Regulations 2012 (Cth) – construction of reg 2.15.1 and MBS item 597 – whether urgency is assessed when a practitioner determines to make an attendance or whether it is assessed at the time of an examination of the patient 

Conclusion: application dismissed.

Dr Juliet Lucy represented the Applicant.

Reasons for the decision can be found here.