Crowley v Holmes

[2005] FCA 1923

FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2005] FCA 1923

CROWLEY v HOLMES

VID 492 OF 2004

NORTH J
7 DECEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 492 OF 2004

BETWEEN:

PAUL DAVID CROWLEY
APPLICANT

AND:

ALAN JOHN HOLMES (AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

7 DECEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The Final Report of the Second, Third and Fourth Respondents dated 11 February 2005 be set aside.
2. The matter the subject of Adjudicative Referral No. 296 be remitted to the Second, Third and Fourth Respondents to determine Adjudicative Referral No. 296 according to law.
3. The proceedings be dismissed.
4. Save for the costs orders already made, the costs of the parties to this proceeding lie where they fall.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 492 OF 2004

BETWEEN:

PAUL DAVID CROWLEY
APPLICANT

AND:

ALAN JOHN HOLMES (AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGE:	NORTH J
DATE:	7 DECEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In these two cases the respondents conceded that the decision in question contains errors as identified by the Full Court of this Court in Oreb v Willcock [2005] FCAFC 196. Mr Moloney, who appeared for the respondents in both matters, outlined the nature of the errors made. Consequently, they contend that the report of the second, third and fourth respondents in V492 of 2004 (the report) and the final determination of the sixth, seventh and eighth respondents in V273 of 2003 (the determination) to be set aside. There is no purpose for either of the proceedings to continue in the light of these concessions. It is therefore appropriate to make the orders sought by the respondents in each matter as contained in the minutes of the proposed orders, which provide that the report or determination be set aside, and that the subject matter of the adjudicative referral number 296 be remitted to the second, third and fourth respondents in matter V492.

2. Mr Moloney then sought orders in each case that the costs of the parties lie where they fall.  Such orders are intended to reflect the fact that the errors which have led to the respondents’ concession were first relied upon by the applicants in May 2005.  Prior to that, other grounds were relied upon.  Those other grounds were ruled upon by Sundberg J in an interlocutory application and were found not to raise a serious issue to be tried. It was thus submitted that the costs incurred in these proceedings relate to arguments other than those which have ultimately caused the respondents to concede that the report and determination should be set aside.  In those circumstances I agree that, it is appropriate that the costs of the parties to these proceedings should lie where they fall. 

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             7 December 2005

Counsel for the Applicant:	Mr. J. Beechmore
Solicitor for the Applicant:	Mulcahys
Counsel for the Respondent:	Mr. S. J. Moloney
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	7 December 2005
Date of Judgment:	7 December 2005