Case: Oreb v Willcock [2004] FCA 1520
Outcome: referred to
I have before me two Notices of Motion filed by the respondents on 13 March 2006 seeking dismissal of these proceedings pursuant to an order which I made on 3 December 2004. The order which I made provided that subject to certain exceptions which are not presently relevant, the parties accepted that the outcome of the proceedings turned solely upon the result of an appeal from my judgment in Oreb v Willcock [2004] FCA 1520. The respondents contend that the result of the appeal leads to the dismissal of the present proceedings. 2 My judgment in Dr Oreb's matter was handed down three days before the making of the order of 3 December 2004. It dealt with an application for judicial review of three decisions made at separate stages of the peer review-based Professional Services Review Scheme established by Part VAA of the Health Insurance Act 1973 (Cth) ("the Act "). 3 I dismissed Dr Oreb's challenge to an investigative referral made under s 86 of the Act as well as his challenge to an adjudicative referral made under s 93. However, I made an order setting aside the finding of Professional Services Review Committee No 298 that Dr Oreb had engaged in inappropriate practice. I did so because I found that the relevant Committee had erred in its construction of the "exceptional circumstances" exception contained in s 106KA(2) of the Act and Regulation 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 ("the Regulations ") and that it had taken into account an irrelevant consideration, in asking itself whether the circumstances relied upon by Dr Oreb were foreseeable. 17 Counsel for the parties then agreed to the making of orders which included the following:- "3. Subject to issues raised in the constitutional argument, and except for the 'racial issue' in the two Lee matters (N568/03 and N1430/03), all of the parties in the remaining proceedings (Wong, Do, Ho, Lee, Lee and Bartos) accept that the outcome of the proceedings turn solely upon the result of the appeal in Oreb (being an appeal of the judgment contained in Oreb v Willcock [2004] FCA 1520). 4. On the basis of this agreement, the hearings listed in the week of 6 December 2004 in the matters Wong, Do, Ho, Lee, Lee and Bartos, are vacated with the exception of two Lee matters (N568/03 and N1430/03) which are listed on 8 December 2004." 18 The statutory scheme under Part VAA of the Act was set out in some detail in the reasons for judgment of Lander J in Oreb . It is unnecessary to repeat the extensive terms of the relevant provisions. However, for convenience, I will set out the provisions of s 106KA of the Act and Regulation 11. 19 Section 106KA provides as follows:- "(1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period ), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the conduct of the person under review in connection with rendering or initiating services during that period in those circumstances is taken, for the purposes of this Part, to have constituted engaging in inappropriate practice. (2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services by the person, the person's conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice. (2A) However, subsection (2) does not affect the operation of subsection (1) in respect of the remaining day or days during the relevant period on which the person rendered or initiated referred services even if the circumstances in which the referred services were rendered or initiated on that day or those days would not, if considered alone, have constituted a prescribed pattern of services. (3) The regulations may prescribe, in relation to: (a) a particular profession; or (b) an identified group or groups of practitioners in a particular profession; circumstances in which services of a particular kind or description that are rendered or initiated constitute, or do not constitute, a prescribed pattern of services for the purposes of subsection (1). (4) The circumstances that may be prescribed under subsection (3) as circumstances in which services that are rendered or initiated constitute a prescribed pattern of services include, but are not limited to, the rendering or initiation of more than a specified number of services, or more than a specified number of services of a particular kind, on each of more than a specified number of days during a period of a specified duration. (5) The circumstances that constitute exceptional circumstances for the purposes of subsection (2) include, but are not limited to, circumstances that are declared by the regulations to be exceptional circumstances. (6) This section only applies to services rendered or initiated after the commencement of this section. (7) This section does not preclude the Committee from making a finding under this Subdivision (other than section 106KB) in relation to conduct during a particular period in connection with rendering or initiating services without considering whether or not the circumstances in which the services were rendered or initiated constituted a prescribed pattern of services."