Gribbles Pathology (Vic) Pty Ltd v Minister for Human Services and Health
[1996] FCA 478
•14 JUNE 1996
CATCHWORDS
PRACTICE AND PROCEDURE - Federal Court Rules - appeal against 'judgment'- finding made in reasons for judgment - no order made in relation to that particular finding - appeal to reverse finding - whether appeal competent.
Federal Court Act 1976, s24(1)
Federal Court Rules, O52 rr1
Town v Australian Telecommunications Commission (1983) 67 FLR 48
STATUTORY CONSTRUCTION - Health Insurance Act - allocation of units of entitlement to Approved Pathology Authorities under Act - statutory obligation on Minister to "determine principles" with which Minister must comply in allocating units - determination No. 5 commenced in January 1995 and not repealed until 1 February 1996 by subsequent determination No. 6 which commenced November 1995 - allocations made during period when both determinations prima facie applied - composite of principles inconsistent and contradictory inter se - Minister unable to comply with principles as required by legislation - whether implied repeal of determination No. 5 - express repeal at later date.
Health Insurance Act 1973, s23DNB
Fitzgerald v Muldoon [1976] 2 NZLR 615
Goodwin v Phillips (1908) 7 CLR 1
Mount Isa Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 629
STATUTORY CONSTRUCTION - Health Insurance Act - 'principles' for determining allocation of units of entitlement - Minister to make decisions allocating units - whether determination improperly delegated to Health Insurance Commission - alleged delegation by HIC to HIC Staff - no delegation found - mechanical application of formula does not constitute delegation of discretion.
Lynch v Minister for Human Services and Health (1995) 39 ALD 501
STATUTORY CONSTRUCTION - Health Insurance Act - 'principles' for determining allocation of units of entitlement - whether formula contained in principles was unreasonable, irrational or capricious - evidence that under formula and over time all applicants would receive same allocation - formula not unreasonable as at date of application where no such effect had occurred or would occur as an immediate consequence of the application of the formula - recognition of Minister's
capacity to vary formula to avoid consequences at any stage.
Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
GRIBBLES PATHOLOGY (VIC) PTY LTD v MINISTER FOR HUMAN SERVICES AND HEALTH, THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
No VG 163 of 1996
MACQUARIE PATHOLOGY SERVICES PTY LTD AND MELBOURNE PATHOLOGY PTY LTD v MINISTER FOR HUMAN SERVICES AND HEALTH & OTHERS
Nos VG 162 and 165 of 1996
NORTHROP, O'LOUGHLIN & FINN JJ
MELBOURNE
14 JUNE 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)No. VG 163 of 1996
VICTORIA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:GRIBBLES PATHOLOGY (VIC) PTY LTD
Appellant
AND:MINISTER FOR HUMAN SERVICES AND HEALTH, THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
Respondents
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) Nos. VG 162 & 165 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:MACQUARIE PATHOLOGY SERVICES PTY LTD AND MELBOURNE PATHOLOGY PTY LTD
Appellants
AND:MINISTER FOR HUMAN SERVICES AND HEALTH & OTHERS
Respondents
COURT: NORTHROP, O'LOUGHLIN & FINN JJ
DATE: 14 JUNE 1996
PLACE: MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS THAT:
This appeal stand adjourned for further argument to a day to be fixed.
Any party is at liberty to apply on seven days notice.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)No. VG 163 of 1996
VICTORIA DISTRICT REGISTRY ) )
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:GRIBBLES PATHOLOGY (VIC) PTY LTD
Appellant
AND:MINISTER FOR HUMAN SERVICES AND HEALTH, THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
Respondents
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) Nos. VG 162 & 165 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:MACQUARIE PATHOLOGY SERVICES PTY LTD AND MELBOURNE PATHOLOGY PTY LTD
Appellants
AND:MINISTER FOR HUMAN SERVICES AND HEALTH & OTHERS
Respondents
COURT: NORTHROP, O'LOUGHLIN & FINN JJ
DATE: 14 JUNE 1996
PLACE: MELBOURNE
REASONS FOR JUDGMENT
O'Loughlin and Finn JJ
A Procedural Preliminary Issue
The course taken in this appeal has been unusual. The
appellate jurisdiction of this Court in this matter is limited to an appeal against the judgments of the trial judge: see Federal Court Act 1976, s24(1); Federal Court Rules, O52 rr1, 13. For present purposes those judgments - and these are three in number - are made up of the orders of the trial judge of 26 March 1996 which are set out in the Minutes of Orders of that date. Those orders were entered as required by the Federal Court Rules, O36 on 9 April 1996.
At the beginning of the hearing of the appeal it became apparent that the substantive issue the appellants sought to agitate did not, in form, involve an appeal from the orders so made. Rather it involved an attack on his Honour's reasons for judgment. As will be seen, an issue before his Honour was whether a determination made under the Health Insurance Act 1973, s23DNB - "Determination No 6" - was a valid statutory instrument. His Honour found it to be so. The significance of that finding for present purposes is that, having found the respondent Minister failed to accord natural justice to the three appellant companies in taking her decision in relation to applications they had made under s23DNB, the trial judge referred those applications back to the Minister "for determination according to law". Formal orders were made to this effect. No such order was made as to the validity of Determination No 6.
The substance of the appellants' case is that his Honour was in error in finding Determination No 6 to be a valid instrument. While the appellants do not cavil with their applications being remitted to the Minister for determination according to law - this was in effect what was sought in their original applications - their objection is that, in light of the trial judge's finding, that determination will be made in accordance with Determination No 6.
The lack of a judgment in relation to Determination No 6 created an obvious difficulty for the appellants. However, steps taken by the parties subsequent to the hearing of the appeal have obviated this difficulty. A consent order has been made by the trial judge which adds to the original orders made an order that "the claims for relief in the application be otherwise dismissed": see Federal Court Rules, O35 rr7(2), 10. The effect of this is that an order has now been made rejecting the declaration sought by the applicants in their applications that Determination No 6 "is invalid and of no effect".
We considered it necessary to have had the matter regularised by the appellants. The respondents, no less than the appellants, wished the substantive issues between the parties resolved in the present hearing. If the appeal had been left in its original form collateral issues concerning this Court's jurisdiction may have frustrated that wish: cf Town v Australian Telecommunications Commission (1983) 67 FLR 48 at 60.
Background to the Appeal
The three appellant companies, which we will describe as "Macquarie", "Gribbles" and "Melbourne", are all approved pathology authorities ("APAs") for the purposes of the Health Insurance Act 1973 ("the Act"). As such they are eligible to apply, and have so applied under the Act, s23DNB, for units of entitlement to operate licensed collection centres. At those centres specimens are collected from patients whose doctors have requested a pathology test. Medicare benefits, we would note, cannot be paid for specimens collected in unlicensed centres.
Licences are allocated annually and take effect on 1 February of each year. For present purposes all that need be said of the licensing process is that it presupposes the holding by the prospective licensee of units of entitlement to operate licensed collection centres. The units, in other words, provide the key to securing licensed centres. Accordingly, as this appeal attests, the keen interest of companies such as the appellants is in the number of units allocated to them when they make application under the Act.
It is appropriate now to turn to the Act and to its treatment of the allocation process. The Act, s23DNB provides, relevantly, that:
"23DNB.(1) If a person that is an approved pathology authority applies before 1 February in any year in writing to the Minister for an allocation of units of entitlement to operate licensed collection centres during the year beginning on that day (the 'relevant year'), the Minister must, on or before that day, by writing, do either of the following:
(a)determine that the person is not to be allocated any units of entitlement to operate licensed collection centres in respect of the relevant year;
(b)allocate to the person a number of units of entitlement to operate licensed collection centres at any time during the relevant year.
...
(3) The Minister must determine in writing principles with which the Minister must comply in performing duties under this section.
(4)The principles that the Minister is to determine must include:
(a)the formula or other method for working out whether any units of entitlement to operate licensed collection centres should be allocated to an approved pathology authority under subsection (1) or (2) and, if any units are to be allocated, the number of units to be so allocated; and
(b)the circumstances in which an allocation (including a nil allocation) of units of entitlement to an approved pathology authority may be varied during the period during which licensed collection centres may be operated under the allocation, and the formula or other method for working out such a variation; and
(c)the number and locations of licensed collection centres that an approved pathology authority may operate under a unit of entitlement.
(5)When performing a duty under this section, the Minister:
(a)must comply with any relevant principles in force under subsection (3); and
(b)may take into account any other matters, not inconsistent with those principles, that he or she thinks relevant.
(6) A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."
Of particular present concern are "the principles" which the Minister is required both to determine and comply with: s23DNB(3), (5). Since the introduction of the licensing scheme in 1992 there have been six "Determinations" made of the type envisaged by subsection (3). Two are central to this appeal. They are Determination No 5 and Determination No 6 as we will call them.
Given the arguments raised by the parties, it is necessary to set out the provisions of each Determination in some detail.
Determination No 5 was gazetted on 19 January 1995. Its clauses of present relevance are:
"4. (1) This clause applies where the Minister, acting under subsection 23DNB(1) of the Act, decides an application in respect of a year commencing on 1 February by a person that is an APA if:
(a)in the case of the year commencing on 1 February 1995 - that APA lodged the application before 11 November 1994; and
(b)in the case of a subsequent year - that APA lodges the application before the preceding 1 November.
(2) Where this clause applies in relation to an application for the year commencing on 1 February 1995, the Minister must determine as the number of units of entitlement to be allocated to the applicant the number that is the sum of:
(a)the maximum number of licensed collections centres that the applicant was entitled to operate in accordance with the last determination in relation to the applicant under subsection 23DNB(1) or (4) of the Act as in force before 16 September 1994; and
(b)the number (if any) of licences formerly allocated to the applicant under section 23DNC of the Act and in operation on 15 September 1994.
(3) Where this clause applies in relation to an application for the year commencing on 1 February 1996 or a subsequent year, the Minister must determine as the number of units of entitlement to be allocated to the applicant the number that is the number of units of entitlement allocated by the most recent determination under subsection 23DNB(1) or (2) of the Act in relation to the applicant.
5. In determining the number of units of entitlement to be allocated to an applicant under subsection 23DNB(1) of the Act where clause 4 does not apply, the Minister must determine the number as 2, of which at least 1 is used only in the same location as an accredited pathology laboratory associated with the APA."
There are two matters which should be noted at this point about these clauses. First, while the Determination makes provision for the 1995 year in particular, it was designed nonetheless to govern the making of allocations in 1996 and subsequent years. Secondly, the application of the allocative formula employed in the Determination turns, first and foremost, on the date on which an application is lodged. To illustrate this, where application is made for units for the year commencing 1 February 1996 - the relevant year for the purposes of this appeal - if the application is lodged before 1 November 1995, the applicant will receive the same number of units as were last allocated to it. This is the effect of sub-clauses 4(1)(b) and 4(3). If the application is lodged after that date, clause 5 ordains that two units must be allocated to the applicant.
We would note that the allocation made in the 1995 year to the appellants were, respectively, fifty-eight units to Melbourne, ninety-two units to Gribbles and fifty-six units to Macquarie. We would further note that the applications made by all three applicants for units for the 1996 year, were made after 1 November 1995. The actual dates, we were informed, were variously 28 and 29 November 1995. If, then, Determination No 5 were to apply to these applications, the applicants would be entitled to two units only by force of clause 5.
During 1995 the Minister for Human Services and Health ("the Minister") established a review of the system of licensed centres. The appellants were notified of this. On 16 November 1995 each applicant received a letter from the Health Insurance Commission ("the Commission") requesting it to lodge an application for the 1996 year. The terms of the letter at least implied that the allocative formula to be used for 1996 would not be that found in Determination No 5.
On 29 November 1995 Determination No 6 was gazetted. Its provisions of present relevance are:
"Commencement
2. Clause 10 commences on 1 February 1996.
...
Number of units of entitlement to be allocated for a full year: application made by the end of 30 November
(1) This clause applies if:
(a)a person that is an APA lodges an application under subsection 23DNB(1) of the Act, for a year; and
(b)the applicant lodges the application by the end of 30 November preceding the commencement of that year; and
(c)clause 7 does not apply.
(2)The Minister must calculate the number of units of entitlement to be allocated to the applicant using the formula:
[N x (A + B)] + 1:
2
where:
A relates to the number of Group P10 PEI items, as worked out in accordance with item 2 of the Schedule;
B relates to the number of full time equivalent recognised pathologists, as worked out in accordance with item 3 of the Schedule;
N is the global entitlement for the relevant year, calculated at the end of 30 November preceding the commencement of that year, reduced by 1 for each person:
(a)that is an APA; and
(b)whose application for the allocation of units of entitlement for that year is in force at the end of that 30 November.
(3) If the application of the formula produces a result that includes a part of a whole number, the result is to be rounded to a whole number by:
(a)disregarding the part if its value is less than 0.5; or
(b)rounding up the result to the next whole number if the value of the part is 0.5 or greater.
Number of units of entitlement to be allocated for a full year or a part of a year: application made after 30 November
6. (1) This clause applies if:
(a)a person that is an APA lodges an application under subsection 23DNB(1) or (2) of the Act for a year; and
(b)the person lodges the application after 30 November preceding the commencement of that year; and
(c)clause 7 does not apply
(2) The Minister must:
(a)specify 2 as the number of units of entitlement to be allocated to the applicant; and
(b)determine that the 2 units of entitlement apply to the applicant for the year to which the application relates.
...
Revocation of Health Insurance (Pathology - Licensed Collection Centres) Determination (No 5)
10. Health Insurance (Pathology - Licensed Collection Centres) Determination (No. 5), published in the Gazette on 19 January 1995, is revoked."
We would note the following of these clauses. First, as with Determination No 5, the application of the allocative formula turns upon the date of lodgment of the application, the operative date being 30 November. Secondly, the formula used for pre-30 November applications differs from the pre-1 November formula of Determination No 5. Thirdly, while clause 10 of the Determination revokes Determination No 5, that clause was only to commence on 1 February 1996. Clause 2 so provides. It should also be noted that the appellants' applications were all made before 30 November 1995.
By letter dated 13 December 1995 the Commission informed (i) Melbourne that it had been allocated forty-seven units (its 1995 allocation was fifty-eight); (ii) Gribbles that it had been allocated eight-four (its 1995 allocation was ninety-two); and (iii) Macquarie that its allocation was forty (the 1995 allocation was fifty-six). The allocation in each case was made applying the formula of Determination No 6.
It is said by the appellants that the reduced allocations made to them will require each company to close centres - with resultant loss of patients and profits - and to surrender leases.
The proceedings in this case were filed in mid-January 1996. By letter of 29 January, the Minister's delegate - the third respondent in this appeal - advised each of the appellants that she was prepared to reconsider the decisions to reduce their respective entitlements. The letter was said to have been prompted by the allegation (which the writer denied) that they had been denied procedural fairness both in the replacement of Determination No 5 with Determination No 6 and in the decisions to reduce their entitlements. Each appellant responded positively to the letter - though without prejudice to the claims made in the proceedings already instituted. In the event the delegate reconfirmed the previous decisions save that in Macquarie's case its entitlement was increased by one unit.
As we have indicated, in the separate proceedings they initiated each appellant sought both an order of review under the ADJR Act and judicial review under the Judiciary Act 1903, s39B. The grounds of relief were identical as between the appellants. For this reason the applications were heard together. On this appeal, for the like reason, the matter has been argued in relation to the Gribbles proceedings, it being agreed that such orders as we make in it should be made also in the Melbourne and Macquarie proceedings.
The attacks made on the reduced allocation of units to the appellants followed two courses. The first was that Determination No 6 was invalid and of no effect. The second was that the actual decision to allocate units made under the Determination was itself invalid. It is unnecessary to particularise the actual grounds relied upon. Such as are of present relevance will be considered when we turn to the grounds of appeal. Suffice it to say here that the trial judge concluded that (i) Determination No 6 was a valid and effective instrument; (ii) the decisions of 13 December 1995 to allocate units to the individual appellants were made pursuant to it; (iii) those decisions were invalid because and only because, as a matter of procedural fairness, the decision-maker was obliged, but failed, to give the applicant companies both notice that it was proposed to apply the Determination No 6 formula in calculating the units to be allotted to each of them, and the opportunity to make submissions as to how the formula applied to them; and (iv) the reconsideration made of the allocation as a result of the letter of 29 January 1996 was not effective to cure the procedural unfairness tainting the original decision of 13 December. It should also be said the trial judge held that the validity of Determination No 6 could not be reviewed under the ADJR Act. That Determination his Honour found to be legislative, not administrative, in character. The review in consequence was sought under s39B of the Judiciary Act.
The Appeal
Put in short form, the appeal against his Honour's finding that Determination No 6 is a valid instrument proceeds on three grounds. The first is that, on their proper construction and because of the commencement date of the clause in Determination No 6 revoking Determination No 5, both Determinations purported to ordain the manner in which units were to be allocated to the applicant companies. In this, they imposed inconsistent and contradictory obligations on the Minister with the result that Determination No 6 was void on the basis (a) of lack of reasonable proportionality to the object of the Minister's power to determine principles under the Act, s23DNB(3); (b) irrationality; and (c) uncertainty.
The second and third grounds of challenge to the validity of Determination No 6 related to the cl 5(2) mathematical formula which is prescribed for use in making allocations of units to applicants who have applied "by the end of 30 November". These grounds, which will require some elaboration below, are (i) that the working out of two factors stipulated in the formula is required by the Schedule to Determination No 6 to be done by the Commission and this involves an improper delegation of the Minister's power to the Commission: Lynch v Minister for Human Services and Health (1995) 39 ALD 501; and (ii) that the formula itself is irrational and capricious.
A separate ground of appeal relates to the manner in which the calculations required to be made under the formula were done. An employee of the Commission and not the Commission itself performed this function. There was, it is said, no delegation of that function to the employee with the consequence that neither the Commission nor its lawful delegate performed the "working out" function required of the Commission by Determination No 6.
Before turning to consider these various grounds - and it will be necessary only to consider the first in any detail - it is in our view important to note that no challenge was made to Determination No 6 on the basis that it improperly precluded the Minister from discharging fully the function prescribed by the Act s23DNB(1) in that, for example, the Minister could not determine not to give an applicant any units, as the formula entitled every applicant to at least 1 unit: cf s23DNB(4)'s reference to a "nil allocation".
Likewise no challenge was made to the Determination on the basis that the matters prescribed in it could not appropriately or properly be described as "principles" - albeit ones with which the Minister had to comply: s23DNB(3) and (5). The respondents did, though, seek to support the principles by analogy with the decision of this Court in Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 577. In the absence of argument by the appellants on this matter, we do not consider it necessary to express a view on the respondents' submission.
Ground 1: Were both Determinations operative and inconsistent instruments when the 13 December allocations were made?
Both parties have accepted that both instruments were operative ones at all relevant times. Given that Determination No 6, cl 2 does not make revocation of Determination No 5 effective until 1 February 1996, any argument to the contrary would have been difficult to sustain. Where the parties diverge is in the consequences they attribute to this state of affairs.
The appellants' submission is that Determination No 5, no less than Determination No 6, applied to the applications for allocations made by the appellants on 28 and 29 November 1995. When one had regard to the allocative formulae prescribed by each, the Minister was bound to give effect to contradictory obligations.
The crucial element in this submission is that Determination No 5 and its formula applied to the appellants' applications for units. If it did then the contradictory consequence noted above followed in its wake. There is no doubt that Determination No 6, for its part, was intended to apply to applications for units for the 1996 year: see Determination No 6, cl 3, "year".
The appellants' submission is that, while Determination No 5 makes specific provision for the allocation of units for the 1995 year in cl 4(1)(a) and cl 4(2), it equally makes provision for the allocation of units for 1996 and subsequent years in its cl 4(1)(b), cl 4(3) and cl 5. In these circumstances it cannot be said that the Determination did not ordain the allocation to be made to the applicants. We would note that the appellants did not shrink from this submission notwithstanding that the allocation that would have to be made to them if the provisions of Determination No 5 applied, would be the disastrous one of two units each given the date their respective applications were lodged: see cl 4(1)(b) and cl 5.
When this issue was raised before the trial judge, it does not appear that he was alerted to the possibility that despite the date of lodgment of the applications, Determination No 5 could, by virtue of its cl 5, still apply to the applications. That clause applied to applications not covered by cl 4. His Honour concerned himself only with the operation of Determination No 5's cl 4 (the relevant cut-off time for applications under it was 1 November 1995). Thus he concluded:
"The applicants lodged their applications after 1 November 1995 (as permitted by clause 5 of Determination No. 6), and accordingly clause 4(3) of Determination No. 5 could not apply to them. Only Determination No. 6 could apply."
We cannot, with respect, agree with his Honour's conclusion. Determination No 6 had kept Determination No 5 on foot at the time the allocations were made. No matter how unreasonable the consequences of its operation - and those same consequences are inherent not only in Determination No 5, cl 5 but also in cl 6 of Determination No 6 - Cl 5 in terms applied to the appellants' applications: they were applications "under subsection 23DNB(1) of the Act where clause 4 does not apply". Again we reiterate that when at least the Gribbles application was lodged on 28 November Determination No 5 was the only operative Determination (Determination No 6 was gazetted on 29 November) and the only provision in it which could allow an allocation to be made to the appellants was cl 5.
The respondents' submission to us on this matter took a somewhat different course. As we understand it, it is that notwithstanding that Determination No 5 may have been the operative one at the time of lodging the application, because the units applied for were the 1996 year units and because Determination No 6 - a later instrument - was to apply to 1996 allocations, the Minister was obliged to apply that Determination when deciding the allocations to be made to the appellants.
In the face of the clear saving of the revocation of Determination No 5 until 1 February 1996, and given that each Determination on its face was intended to apply to the 1996 year, we cannot accept that the mere temporal sequence of the two Determinations of itself makes Determination No 6 alone applicable to 1996 year applications. Whatever may have been the case if there was no provision deferring the revocation, cl 2 of Determination No 6 kept Determination No 5 operational without qualification or modification. We are in consequence unable to resist the conclusion that two instruments imposing contradictory obligations on the Minister have been created - and remained on foot at all relevant times - and each purported to ordain how allocations were to be made in the 1996 year.
We would add that, given this state of affairs, it is not open to the Minister while both Determinations remain on foot to resolve the contradiction by selecting one or other of them as providing the formula for making the allocations for the 1996 year. To permit the Minister so to act in the face of the mandatory directions of s23DNB(3) and (5) would, in our respectful view, be tantamount to conferring on the Minister a power to suspend law having statutory force: cf Fitzgerald v Muldoon [1976] 2 NZLR 615.
In these circumstances it is necessary to consider whether there is any legal basis on which one or other of the Determinations alone can lawfully be used to determine 1996 year allocations. It clearly is the case that they cannot be applied simultaneously and harmoniously to any of the three appellants' applications. In the case of the Gribbles application, for example, the Determination No 5 allocation could only result in 2 units being allocated, while the Determination No 6 allocation in fact resulted in the allocation to Gribbles of eighty-four units.
It is the appellants' submission that, in this state of affairs, Determination No 6 is void. As noted earlier the three bases given for this conclusion are: (i) lack of reasonable proportionality; (ii) irrationality; and (iii) uncertainty.
The respondents for their part submit that, if the two Determinations are inconsistent on their faces as we have concluded, Determination No 6 being the later instrument takes precedence over Determination No 5 in relation to allocations for the 1996 year. Reliance was placed upon case law exemplifying the rule of statutory construction to this effect: e.g. Mount Isa Mines Ltd v Federal Commissioner of Taxation (1976) 10 ALR 629 at 639.
That rule of construction applies at least to provisions dealing with the same subject matter which are "wholly inconsistent": Goodwin v Phillips (1908) 7 CLR 1 at 7. The manner of the rule's operation is to attribute to the later provision the effect of repealing the former by implication: on this rule see generally Pearce and Geddes, Statutory Interpretation in Australia, para 7.9 ff (4th ed, 1996); Craies on Statute Law, 366 ff (7th ed, 1971) It is this feature of repeal by implication which, in our view, precludes the application of the rule to the two Determinations in question. The later instrument here makes express provision for when the former is to be revoked. This is the cl 2 commencement provision. If a justification for the rule of construction is that "[t]he latest expression of the will of Parliament must always prevail": Goodwin v Phillips, above, 16 per Isaacs J, then there seems no room open to find any implied repeal taking effect from a date earlier than that provided in the express repeal contained in the later instrument.
Despite the very obvious inconvenience our conclusion produces, we nonetheless feel compelled to hold the rule to be an unavailable one here for resolving the inconsistency between the two Determinations. Had there been no express revocation clause, a different conclusion may well have been open to us.
Of necessity we are obliged, then, to consider the question of the invalidity of one or other or both of the Determinations. It is necessary to preface what we have to say with the observation that each of the Determinations standing alone could provide a workable scheme for allocating units in 1996. Combined, they cannot.
This state of affairs was brought about by the gazetting of Determination No 6. In this causative sense Determination No 6 created the unworkability. Not surprisingly, the appellants' submissions were directed towards securing its invalidation. Their submissions were that -
Determination No 6 did not constitute an exercise of the powers conferred on the Minister by 23DNB(3) in that, in the result (i.e. because of the survival of Determination No 5), it fails to determine principles to be followed in the allocation of units; or
the Determination is so unreasonable that it must be regarded as outside the power conferred by s23DNB(3): Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; or
the Determination is void for uncertainty: Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210.
It probably is the case, at least in the very distinctive situation we have here, that all three of these alternatives amount to no more than different ways of expressing the same objection. This is that with the gazetting of Determination No 6 a set of principles were created which could not be complied with by the Minister as they were inconsistent inter se. Compliance, though, is what s23DNB(3) and (5) required.
While we agree with the appellants in their submissions
both as to the effect of gazetting Determination No 6 and as to the consequential invalidity of that Determination, we feel unable to conclude on the submissions so far made to us that Determination No 6 alone is invalid in the circumstances.
Our own views on this matter can be set out conveniently in propositional form.
(a)The statutory obligation of the Minister under s23DNB(3) is to "determine in writing principles with which the Minister must comply in performing duties under [the] section".
(b)Having determined "principles" in Determination No 5, the Minister then created further "principles" in Determination No 6 which were to operate conjointly with those of Determination 5 until 1 February 1996. Such was the effect of the revocation clause of Determination No 6.
(c)The composite of "principles" so created were the ones which were the s23DNB(3) principles for that period.
(d)That composite did not produce principles with which the Minister could comply as required by the section. As we have held, applied to the 1996 year allocation, they are inconsistent and contradictory inter se.
(e)In consequence it cannot be said that the principles the Minister determined in writing to be the ones to be applied from 29 November 1995 (the gazettal day of Determination No 6) until 1 February 1996 (the revocation day of Determination No 5) are such principles as are contemplated by the statutory provision that required principles to be made. The Minister, simply, could not comply with the principles she had determined as she was bound to do.
(f)If it were necessary to characterise the principles that were put into effect in accordance with language employed in the cases, it could be said that they were irrational in that they betrayed no rational basis on which the 1996 year units were to be allocated: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd, above, at 399-400; or that they were uncertain because, while mandatory, they were self-contradictory, they lay down no "reasonably ascertainable rule": Cann's Pty Ltd v The Commonwealth, above, 227-228; Transport Ministry v Alexander [1978] 1 NZLR 306 at 311.
Of concern to us, though, are the consequences which flow from our conclusion. One consequence would seem to be that the instruments determining the principles to be applied as from 29 November 1995 must be found not to conform to the requirements of the statute and be declared void and of no effect as from that date.
If such should be the case, we would have a result at no stage contended for by the appellants in their applications or appeals, and not addressed by the respondents. That result is the invalidity not only of Determination No 6 (which was the cause of the resultant principles being not able to be complied with) but also of Determination No 5 (which constituted part of the composite principles that could not be complied with). Together, as we have noted, the Determinations made up the principles to be applied under s23DNB.
The focus of the appellants' submission has been on Determination No 6 alone: declare it invalid and there remains in operation Determination No 5. Its principles can be complied with, albeit they would produce the wholly unreasonable result of each applicant for 1996 year units being allocated two units each.
Whatever the attraction in this - and it is not at all apparent given the unreasonable outcome the application of Determination No 5 alone could produce - there would seem to be some reason for pause in taking the course the appellants have invited us to take. It is not the function of this court to usurp the function of the Minister under s23DNB and the powers of Parliament under the Acts Interpretation Act 1901, s48 - the two Determinations were disallowable instruments. Should we, nonetheless, take upon ourselves the role of deciding which, from the composite of principles, should be left intact to regulate the 1996 year allocation?
Before we could or should express any concluded view on the validity or otherwise of Determination No 5, that matter would need to be placed properly before us and be the subject of address. It may appear unfortunate that we cannot now finally determine this appeal in a way which would provide guidance to the Minister in making an allocation for the 1996 year on the applications made by the three appellants. We can in our view do no more at this stage than indicate that, given the present grounds of appeal, a declaration that Determination No 6 is invalid would be consistent with our reasoning. We do not consider it appropriate, though, to proceed to the making of any orders in this matter until the parties have been provided with the opportunity to consider our reasons and to make such submissions as they consider appropriate in the light of them.
The conclusion we have reached renders it strictly unnecessary to consider the remaining grounds of appeal. In deference to the submissions counsel made to us, it is appropriate to give our views briefly on them.
Grounds 2 and 3: The allocative formula; the Commission's role in making calculations
The formula that Determination No 6 cl 5 required the Minister to use in calculating the number of units of entitlement to be allocated to an applicant involved, as to two of its component "factors", that particular arithmetical calculations be made. The Schedule to the Determination prescribes how those calculations were to be "worked out". Responsibility for so doing in both instances was given expressly to the Commission by the Schedule.
It was argued at the trial and before us that, in giving the Commission the function of working out the two factors, the Minister surrendered the decision-making power given her by s23DNB(1) to the Commission - it being a body to which the Minister has no power to delegate under the Act, s131. Reliance was placed on the decision of the Full Court of this Court in Lynch v Minister for Human Services and Health (1995) 39 ALD 501.
The trial judge concluded on the group of submissions made to him on this matter, that what was entrusted to the Commission was the mechanical task of making arithmetical calculations; "[n]o discretion [was] involved on anybody's part"; the Commission's calculations did not resolve any substantive issue; nor was any decision making function imposed on the Minister delegated to, or otherwise conferred on, the Commission. Lynch's case was, in consequence, distinguishable.
It suffices here to say that we agree with the conclusions of the trial judge. This is not to say that, in working out the calculations, some reviewable error may not be made in a given instance. The Commission may, for example, totally misconstrue what it has to do. The vice in such a case, though, will not be that the Commission has to work out the calculations, but that it has not worked them out as required.
The ground of appeal relating to the formula itself is that it was unreasonable, capricious and irrational. The one aspect of this submission not dealt with by the trial judge but pressed on us was what was called the "+1 factor", i.e. the formula requires one additional unit to be allocated to an applicant after the process of multiplication and division it prescribes has been carried out. There was uncontested expert evidence that the repeated application of the formula would in time result in an allocation to all applicants of between six and fifteen units. Such an eventual result was said to indicate that the formula was so capricious and irrational as to be invalid.
We do not accept this submission. We do not consider it to have been shown that the inclusion of "+1 factor" in the formula requires the present conclusion that a policy objective which is not contemplated by s23DNB is being pursued through the formula. Even if the effect over time would be to produce the levelling suggested in expert evidence, and assuming that to pursue such levelling as such was improper, there is no reason to assume now that the Minister would not have taken steps to alter that effect at some time in the future when or if it emerged as a significant consequence of the application of the formula. As was pressed on us in argument, it is open to the Minister to change the principles at any time subject, of course, to the possibility of their being disallowed by Parliament.
To the extent that the attack on the formula went beyond the "+1 factor" and focussed on other vices alleged to inhere in the objectives of the formula, we agree with the trial judge that the objections made to the formula do not satisfy the stringent test the law imposes if the Determination is to be held invalid. As the trial judge held the formula is not so capricious and irrational that no Minister acting reasonably could have constructed it.
Ground 4: The manner in which the calculations were worked out
It is not disputed that the calculations required to be made by the Commission for the purposes of applying the formula were made by an employee of the Commission. The appellants submit that, even if Determination No 6 is valid, the Commission, being the Minister's delegate for the purposes of making two of the formula's calculations, could not then sub-delegate that function to one of its employees.
We have already indicated that we do not consider the Minister to have delegated to the Commission any decision making power entrusted to her by s23DNB. It was assigned a mechanical task to perform. In common with the trial judge we can see no objection in the Commission devolving that task upon one of its employees. We reject this ground of appeal.
In the event, then, save for the particular ground on which we have intimated that we would allow this appeal, we would reject all other of the grounds propounded by the appellants.
As we have said, the validity or otherwise of Determination No 5 must be the subject of further argument. In our opinion these appeals should therefore be adjourned to a date to be fixed so that counsel may have the opportunity of considering these reasons. There will be an order accordingly. Any party is at liberty to apply on seven days' notice.
I certify that this and the preceding 28 pages are a true copy of the Reasons for Judgment of the Court.
Associate:
(for Associates to O'Loughlin & Finn JJ.)
Dated: 14 June 1996
Counsel for the appellant : Mr R. Tracey Q.C. with Mr P. Hanks
Solicitors for the appellant : Schetzer Brott & Appel
Counsel for the respondents : Mr M. Moshinski Q.C. with Mr R. Frazzetto
Solicitors for the respondents : Australian Government Solicitor
Date of hearing : 13 May 1996
Date of judgment : 14 June 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Nos 162 and 165 of 1996
GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
MACQUARIE PATHOLOGY SERVICES PTY LTD AND
MELBOURNE PATHOLOGY PTY LTD
Appellants
A N D :
MINISTER FOR HUMAN SERVICES AND HEALTH & OTHERS
Respondents
COURT: NORTHROP, O'LOUGHLIN & FINN JJ
PLACE: MELBOURNE
DATE: 14 JUNE 1996
REASONS FOR JUDGMENT
Northrop J
These two appeals were listed for hearing at the same time as Gribbles Pathology (Vic) Pty. Ltd. v Minister for Human Services and Health. At the hearing the parties referred to the Gribbles Pathology case only and agreed that the result in that matter would apply to these two appeals. For the reasons given in Gribbles Pathology I would dismiss each of these appeals.
I certify that this and the preceding page are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.
Associate:
Date: 14 June 1996
ATTACHMENT
Counsel for the Applicant: Mr R. Tracey QC with Mr P. Hanks
Solicitor for the Applicant: Schetzer, Brott & Appel
Counsel for the Respondents: Mr M. Moshinski QC with
Mr R Frazzotto
Solicitor for the Respondents:Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 163 of 1996
GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
GRIBBLES PATHOLOGY (VIC) PTY LTD
Appellant
A N D :
MINISTER FOR HUMAN SERVICES AND HEALTH,
THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
Respondents
Index to Reasons for Judgment
Page
Introduction 1 - 2
Legislative Structure 2 - 7
Duties imposed on Minister by the Health 7 - 10
Insurance Act
Background to the making of Determination 10 - 14
No. 8
Validity of Determinaton No. 6 14 - 24
5A. Contradictory to Determination No. 5 14 - 24
5B. Unreasonableness 24 - 25
5C. Ultra vires 26 - 30
5D. Unreasonable, capricious, irrational 30 - 31
Non compliance with principles 31 - 32
Procedural difficulties and conclusions 32
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 163 of 1996
GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
GRIBBLES PATHOLOGY (VIC) PTY LTD
Appellant
A N D :
MINISTER FOR HUMAN SERVICES AND HEALTH,
THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
Respondents
COURT: NORTHROP, O'LOUGHLIN & FINN J
PLACE: MELBOURNE
DATE: 14 JUNE 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:-
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 No VG 163 of 1996
GENERAL DIVISION
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N :
GRIBBLES PATHOLOGY (VIC) PTY LTD
Appellant
A N D :
MINISTER FOR HUMAN SERVICES AND HEALTH,
THE HEALTH INSURANCE COMMISSION AND JACKIE WOOD
Respondents
COURT: NORTHROP, O'LOUGHLIN & FINN JJ
PLACE: MELBOURNE
DATE: 14 JUNE 1996
REASONS FOR JUDGMENT
Northrop J
Introduction
The substantive issue raised by this appeal concerns the validity of the Health Insurance (Pathology - Licensed Collection Centres) Determination (No. 6) ("Determination No. 6"). Certain procedural difficulties relating to the appeal will be discussed later, but in substance the appellant ("Gribbles Pathology") is seeking a declaration under sub-section 39B(1) of the Judiciary Act 1903 that Determination No. 6" is invalid and of no effect." If the declaration is made, consequential substantive orders are sought including injunctions against the respondents the Minister and Jackie Wood each of whom is an officer of the Commonwealth. The Health Insurance Commission is not an officer of the Commonwealth.
Determination No. 6 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and thus constitutes subordinate legislation; see sub-section 23DNB(6) of the Health Insurance Act 1973. Determination No. 6 was made pursuant to sub-section 23DNB(3) of the Health Insurance Act which provides:-
"(3).The Minister must determine in writing principles with which the Minister must comply in performing duties under this section."
In this sub-section "the Minister" refers to the Minister for Human Services and Health, the first respondent ("the Minister"). The third respondent ("Ms Wood") exercised powers conferred by Determination No. 6 and Gribbles Pathology is seeking to have the decisions made by her set aside on other grounds.
Legislative Structure
In order to understand the substantive issue, it is necessary to make a brief reference to some of the provisions of the Health Insurance Act. The long title of that Act is:
"An Act providing for Payments by way of Medical Benefits and Payments for Hospital Services and for other purposes."
Essentially the Health Insurance Act makes provision for the payment of medical and hospital expenses incurred by a patient. The Act contains many detailed provisions relating to the entitlement to receive Medicare payments and restrictions on the persons charging fees to patients for medical and hospital services provided. Among medical practitioners so affected are pathologists. Part IIA of the Health Insurance Act is headed "Special Provisions Relating to Pathology" and contains many provisions relating to persons who wish to become and remain, among other things, an approved pathology authority: see section 23DB. In sub-section 3(1) an "approved pathology authority" is defined to mean a person in respect of whom there is in force an undertaking given by the person, and accepted by the Minister, under section 23DF. Gribbles Pathology is an approved pathology authority. In order to qualify for Medicare benefit for a pathology service, the pathology specimen must be collected from, among other requirements, a licensed collection centre within the meaning of Part IIA: see paragraph 16A (5AA)(d)(ii). Under sub-section 23DA(1), which is within Part IIA, a "licensed collection centre" means a specimen collection centre in respect of which a licence is in force while "specimen collection centre" means a place set up by an approved pathology authority to collect pathology specimens from persons in relation to whom pathology services are to be rendered.
"Division 4A - Specimen collection centres", comprising sections 23DNA to 23DNL, is within Part IIA of the Health Insurance Act. Provision is made in sections 23DND to 23DNL for the granting of a licence to an approved pathology authority in respect of one or more specimen collection centres and matters related to those licences. Gribbles Pathology is the holder of a licence in respect of a specimen collection centre with respect to a number of centres.
The Health Insurance Act contains provisions for limiting the number of licensed collection centres that may be operated by approved pathology authorities. These provisions were designed to restrict the possibility of abuse of services by, in substance, over-servicing patients. As first inserted into the Health Insurance Act, sections 23DNB and 23DNC contained provisions related to the implementation of that policy. By Act No. 116 of 1994, those two sections were repealed and a new section 23DNB was inserted with effect from 16 September 1994. Section 23DNB is the section on which this appeal depends. The section is long and convoluted but is set out in full to enable reference to be made to its terms. The section will be analysed in some detail later.
"23DNB.(1)If a person that is an approved pathology authority applies before 1 February in any year in writing to the Minister for an allocation of units of entitlement to operate licensed collection centres during the year beginning on that day (the `relevant year'), the Minister must, on or before that day, by writing, do either of the following:
(a)determine that the person is not to be allocated any units of entitlement to operate licensed collection centres in respect of the relevant year;
(b)allocate to the person a number of units of entitlement to operate licensed collection centres at any time during the relevant year.
"(2) If, after 1 February in any year and before the end of 31 January next following, a person becomes an approved pathology authority and applies in writing to the Minister for an allocation of units of entitlement to operate licensed collection centres during the period (the `relevant period') beginning on the day of the approval and ending on 31 January next following, the Minister must do either of the following:
(a)determine that the person is not to be allocated any units of entitlement to operate licensed collection centres in respect of the relevant period;
(b)allocate to the person a number of units of entitlement to operate licensed collection centres at any time during the relevant period.
"(3) The Minister must determine in writing principles with which the Minister must comply in performing duties under this section.
"(4)The principles that the Minister is to determine must include:
(a)the formula or other method for working out whether any units of entitlement to operate licensed collection centres should be allocated to an approved pathology authority under sub-section (1) or (2) and; if any units are to be allocated, the number of units to be so allocated; and
(b)the circumstances in which an allocation (including a nil allocation) of units of entitlement to an approved pathology authority may be varied during the period during which licensed collection centres may be operated under the allocation, and the formula or other method for working out such a variation; and
(c)the number and locations of licensed collection centres that an approved pathology authority may operate under a unit of entitlement.
"(5)When performing a duty under this section, the Minister:
(a)must comply with any relevant principles in force under subsection (3); and
(b)may take into account any other matters, not inconsistent with those principles, that he or she thinks relevant.
"(6) A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."."
The subject matter of section 23DNB is the "allocation of units of entitlement to operate licensed collection centres". The Court was not referred to any definition of the words "units of entitlement to operate licensed collection centres". No definition could be found in the Health Insurance Act. A reading of sections 23DND to 23DNL suggests that licences are granted to expire on 31 January in each calendar year but may be for a period less than one year; see section 23DNE. One of the purposes of a licence is to enable a patient to obtain a Medicare benefit with respect to the fee incurred for the service provided. This is made clear by section 23DNL. In these circumstances it appears that the phrase "units of entitlement to operate licensed collection centres" is understood to describe the total number of specimen collection centres which will be licensed for each year commencing 1 February in each calendar year and from that total, the number to be allocated to each approved pathology authority making an application under section 23DNB. In these reasons, that meaning, namely the number of licensed collection centres to be licensed during a relevant year, will be accepted although it appears that the granting of the licences occurs after the units of entitlement have been allotted.
Another general comment is made. In Part IIA, and in particular Division 4A of the Health Insurance Act, the term "year" is used not in respect of the normal calendar year nor in the sense of a financial year. It is used in the sense of a period of 12 months commencing 1 February and ending 31 January of the following year. In truth, this period can be described as the licensing year for specimen collection centres. In these reasons, the words "licensing year" will be used to describe the period of any twelve months commencing 1 February in any year. Applying this terminology, the expression "relevant year" used in sub-section 23DNB refers to a particular licensing year while the expression "relevant period" refers to a period of less than twelve months but ending on the 31 January.
Duties imposed on Minister by the Health Insurance Act
Sub-section 23DNB(1) imposes a duty on the Minister. The duty is imposed only when a condition precedent is satisfied. That condition precedent is satisfied where an approved pathology authority applies before 1 February in writing in any calendar year "to the Minister for an allocation of units of entitlement to operate licensed collection centres during" the licensing year commencing on the 1 February relevant to the application. Under the provisions of Division 4A, an application must be made annually. Gribbles Pathology is, and at all material times, was, an approved pathology authority. It made an application under sub-section 23DNB(1) on 28
November 1995 for the licensing year commencing 1 February 1996.
Where the condition precedent is satisfied, the Minister has a duty to do one of two things which are true alternatives. The Minister must determine, in the sense of deciding, either that the applicant for the allocation of units should be allocated no units for the relevant licensing year or, if units are to be allocated to that applicant, the number of units to be allocated to that applicant. Sub-section 23DNB(1) imposes no limitation or fetter on the way the Minister is to perform the duty so imposed. The only limitation imposed by law is that the Minister perform the duty in good faith having regard to relevant material.
Sub-section 23DNB(2) imposes a similar duty on the Minister but in circumstances where a person becomes an approved pathology authority during the course of a licensing year. Of necessity any application for allocation of units must be for a period of less than 12 months and any allocation of necessity is to be limited to the period beginning on the day approval is given and ending on the following 31 January. This sub-section has no application to the facts of this appeal but may be relevant in determining whether Determination 6 is valid.
Sub-section 23DNB(3) is in a curious form. It imposes a duty on the Minister namely a duty to "determine in writing principles". One is reminded of a common reaction by any group of people facing a difficult problem - namely to appoint a committee. Here, it appears the Parliament has found it difficult to formulate statutory provisions to guide the Minister in the performance of the duties imposed by sub-sections 23DNB(1) and (2), hence the delegation of a legislative power without any express direction of what is to be done.
Sub-section 23DNB(3) uses the words "in performing duties under this section". The duties must refer to the duties imposed on the Minister by sub-sections 23DNB(1) and (2). It would make no sense of the sub-section if the word "duties" included the duty imposed by sub-section 23DNB(3) itself. What the sub-section appears to be providing is that "the Minister must determine in writing principles to be applied in performing the duties imposed by sub-section (1) or (2)". In this regard see the reference to those two sub-sections in paragraph 23DNB(4)(a).
The use of the words "with which the Minister must comply" appear to have been inserted in sub-section 23DNB(3) from an obsession with gender neutral drafting on the part of its "draftsperson" . The words are completely unnecessary. Paragraph 23DNB(5)(a) imposes a duty to comply with any relevant principles in force under sub-section (3) when performing the duty imposed by sub-section (1) or (2). It is interesting to note paragraph (5)(b) which permits the Minister to take into account when performing either of those duties, "any other matters, not inconsistent with those principles, that he or she thinks relevant". The words of sub-section 23DNB(3) may be compared with the wording of sub-section 23DNA(1).
Subject to sub-section 23DNB(4), there are no limitations imposed on the Minister with respect to what is to be included in the principles. In performing the duty, the Minister has a power to include any relevant provision but the principles must include the matters referred to in paragraph 23DNB(4)(a), (b) and (c). In substance "the formula or other method" for determining whether units should be allocated to any approved pathology authority and if so the number to be allocated, variations to allocations and the number and locations of centres that can be operable under a "unit of entitlement" must be included.
Background to the making of Determination No. 6
Determination No. 6 was made by the Minister on 20 November 1995. It was published in the Gazette on 29 November 1995 and so came into operation on that date; see sections 46A and 48 of The Acts Interpretation Act. It is noted that Determination No. 6 came into operation on the day after Gribbles Pathology lodged its application to The Minister under sub-section 23DNB(1) for the licensing year commencing 1 February 1996.
Clause 2 of Determination No. 6 provides that Clause 10 commences on 1 February 1996. Clause 10 provides that Determination No. 5, which commenced on 19 January 1995, is revoked. Accordingly, between 19 November 1995 and midnight on 31 January 1996, Determination No. 5 and Determination No. 6 were each in operation. This fact is relied upon by Gribbles Pathology as one of the grounds for declaring Determination No. 6 invalid.
Determination No. 6 is a long and complicated piece of subordinate legislation. It is to be construed as if it were a statute. Subject to paragraph 23DNB(5)(b) it imposes principles which must be complied with by the Minister in performing the duties imposed by subsections (1) and (2). At this stage there is no need to consider the issue whether the Minister has applied or, to use the words of the section, complied with, the principles in writing contained in Determination No. 6. Nevertheless it is necessary to make reference to some of the principles;
Clause 3 contains definitions of words and expressions used in Determination No. 6. "APA" is used as an acronym of an "Approved Pathology Authority" under Division 4A of Part IIA. The expression "Global Entitlement" in relation to a year, means
"the total number of units of entitlement that are available for allocation, for the year, to persons:
(a) that are APAs : and
(b)that apply for the units before the end of 30 November before the commencement of the year:
being the same number of units of entitlement as the number that has been allocated, as of the end of that 30 November, for the year in which the 30 November occurs:".
The word "year" is defined to mean "a year commencing on 1 February 1996 or on 1 February after that date". This definition gives the word "year" the same meaning as these reasons have given to the words "licensing year". From now on the word "year" will be used in the sense of the definition contained in Determination No.6. The word "Act" is defined to mean the Health Insurance Act and "new entry unit" means a unit of entitlement allocated to an applicant in accordance with clause 7.
Sub-clause 4.(1) provides:-
"4.(1) For the purposes of sub-section 23DNB(3) of the Act, this Determination sets out the principles with which the Minister must comply in performing his or her duties under section 23DNB of the Act in relation to a year."
Clause 5 of Determination No. 6 is of importance to the facts of this appeal. Gribbles Pathology lodged its application under sub-section 23DNB(1) of the Health Insurance Act on 28 November 1995 for the year commencing 1 February 1996. It was an approved pathology authority. Sub clause 5(1) provides:-
"5.(1) This clause applies if:
(a)a person that is an APA lodges an application under sub-section 23DNB(1) of the Act, for a year: and
(b)the applicant lodges the application by the end of 30 November preceding the commencement of that year: and
(c)clause 7 does not apply."
Clause 7 applies to what may be described as new entrants for the allocation of units and has no application to the facts of this issue. It follows therefore that Clause 5 applies to the application lodged by Gribbles Pathology. Sub-clause 5(2) provides:-
"(3) The Minister must calculate the number of units of entitlement to be allocated to the applicant using the formula:........ ....."
It is not necessary to refer to this formula at this stage.
Clause 6 of Determination No. 6 applies where a person that is in APA lodges an application for a year commencing 1 February after 30 November of the year preceding that year. In these instances, the number of units are not to be calculated by reference to a formula. The whole of Clause 6 is set out:-
(1) This clause applies if:
(a)a person that is an APA lodges an application under subsection 23DNB (1) or (2) of the Act for a year: and
(b)the person lodges the application after 30 November preceding the commencement of that year: and
(c)clause 7 does not apply.
The Minister must:
(a)specify 2 as the number of units of entitlement to be allocated to the applicant; and
(b)determine that the 2 units of entitlement apply to the applicant for the year to which the application relates.
This clause appears to impose a severe penalty on any person who is an authorised pathology authority and has more than 2 units of entitlement during a particular year but fails to lodge before 30 November of that year an application for
units of entitlement for the following year. In this event, the person will have 2 units only allocated for that following year.
Clause 8 of Determination No. 6 relates to variations of the allocation of units of entitlement. Clause 9 is not relevant for present purposes.
Pursuant to the application lodged on 28 November 1995, Gribbles Pathology was allocated 84 units of entitlement for the year commencing 1 February 1996. Notice of the allocation was contained in a letter dated 13 December 1995 from Ms Wood, an officer of the Health Insurance Commission, for the year commencing 1 February 1996. The letter was received on 18 December 1995. Gribbles Pathology held 95 units of entitlement. Thus there was a reduction in the number of units of entitlement allocated to Gribbles Pathology as from 1 February 1996 from 95 to 84.
Validity of Determination No. 6
5A. Contradictory to Determination No. 5
The primary contention made by counsel for Gribbles Pathology was that Determination No. 6 was beyond power, invalid and of no effect since it continued Determination No. 5 in operation until midnight on 31 January 1996, that the relevant provisions of Determination No. 5 were incompatible inconsistent and contradictory with the corresponding provisions of Determination No. 6 and that therefore it was impossible to know which Determination applied. As a result, it was contended, the principles contained in Determination No. 6 were not the result of a proper performance of the duty imposed on the Minister and should be declared void and of no effect.
In order to understand this contention, a reference must be made to some of the provisions of Determination No. 5. Determination No. 5 was made by the Minister on 18 January 1995 under section 23DNB of the Health Insurance Act which was in the same form as it is now. Determination No.5 came into operation on 19 January 1995. Clause 11 revoked Determination No. 4 which had come into operation on 11 November 1994. It is interesting to note that date.
Determination No. 5 does not contain a definition of the word "year". In Determination No. 6 the word "year" means "a year commencing on 1 February 1996 or on 1 February after that date." Sub-clause 3.(1) provides:-
"3.(1) This Determination sets out, for the purposes of subsection 23DNB(3) of the Act, the principles with which the Minister must comply in performing duties under section 23DNB of the Act."
The effect of this sub-clause is the same as the effect of sub-clause 4 of Determination No. 6.
Sub-clause 4(1) of Determination No. 5 is set out:-
(1) This clause applies where the Minister, acting under subsection 23DNB(1) of the Act, decides an application in respect of a year commencing on 1 February by a person that is an APA if:
(a)in the case of the year commencing on 1 February 1995-that APA lodged the application before 11 November 1994; and
(b)in case of a subsequent year-that APA lodges the application before the preceding 1 November."
Note the reference to date 11 November 1994. This sub-clause is the equivalent to sub-clause 5(1) of Determination No. 6 but can have no application to the Gribbles Pathology application since that application had not been lodged before 11 November 1995. The method of determining the number of units to be allocated need not be referred to.
Sub-clause 4(3) purports to apply to applications for years commencing 1 February 1996 and subsequent years but can have no effect on the application by Gribbles Pathology since its application for the year commencing on 1 February 1996 had not been lodged before 1 November 1995. The sub-clause is set out:-
(3)Where this clause applies in relation to an application for the year commencing on 1 February 1996 or a subsequent year, the Minister must determine as the number of units of entitlement to be allocated to the applicant the number that is the number of units of entitlement allocated by the most recent determination under subsection 23DNB(1)or(2) of the Act in relation to the applicant."
Since clause 4 of Determination No. 5 can not apply with respect to the application for units lodged with the Minister on 28 November 1995, clause 5 of Determination No. 5 is the crucial principle. That clause is set out:-
In determining the number of units of entitlement to be allocated to an applicant under subsection 23DNB(1) of the Act where clause 4 does not apply, the Minister must determine the number as 2, of which at least 1 is used only in the same location as an accredited pathology laboratory associated with the APA."
Counsel for Gribbles Pathology contended that if this clause applies, the Minister must determine the application of Gribbles Pathology lodged on 28 November 1995 by determining that 2 units of entitlement be allocated to it. This requirement is contrary to and incompatible with the obligation to apply the formula contained in Clause 5 of Determination No. 6. Nevertheless, this is a consequence of the orders sought by Gribbles Pathology.
In its application to the Court, Gribbles Pathology sought the following orders under sub-section 39B(1) of the Judiciary Act, namely:-
"1.A declaration that the Health Insurance (Pathology - Licensed collection Centres) Determination (No 6) ("Determination No 6") is invalid and of no effect.
2.An injunction restraining the Respondents their servants and agents or howsoever otherwise from giving effect to or taking any step under Determination No. 6.
3.A declaration that the determination made on or about 13 december 1995 reducing from 95 to 84 the number of units of entitlement to operate licensed collection centres allocated to the Applicant for the purposes of Division 4A of Part 2A of the Health
Insurance Act 1973 (Cth) ("the Act") ("the decision") is invalid and of no effect.
4.An injunction restraining the Respondents their servants and agents or howsoever otherwise from giving effect to or taking any step under the decision."
The Court did not make any of those orders. By its notice of appeal, and at the hearing of the appeal, Gribbles Pathology seeks the following orders:-
"2. A declaration that Determination No 6 is invalid.
3.Alternatively, a declaration that, to the extent that the calculation of factors A and B was required, under Determination No. 6, to be made by the second respondent, that calculation was not made by the second respondent or by a delegate of the second respondent."
It should be noted that the second order sought appears to be based on an application under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") and not under sub-section 39B(1) of the Judiciary Act.
Some of the consequences flowing from the making of the orders sought would be the possibility that patients of Gribbles Pathology receiving pathology services would not be entitled to Medicare benefits for fees incurred for those services. Further, if Gribbles Pathology had "bulk billed" those fees, it might have received payments under the Medicare system to which it was not entitled.
It should be noted also that unless Determination No. 6 has validly revoked Determination No. 5, that Determination remains in operation. Neither the original application to the Court nor the appeal has raised the issue of whether Determination No. 5 is valid. The Court is not able to consider its validity.
Determinations made by the Minister under sub-section 23DNB(3) have many unusual features. The Determinations do not impose duties and obligations or rights and privileges on members of the public. In this respect they are not like normal pieces of legislation or sub-ordinate legislations binding the public generally. Sub-sections 23DNB(3) and (5)(a) make it clear that the principles contained in the Determinations "must be complied with by the Minister". The section imposes a duty on the Minister to determine the principles and imposes a duty on the Minister to comply with these principles when performing the duties imposed on the Minister by sub-sections 23DNB(1) and (2). As a result members of the public and, in particular approved pathology authorities, may have their business activities adversely affected by decisions made by the Minister pursuant to principles which must be complied with by the Minister being principles of which the members of the public including approved pathology authorities have no knowledge. It is true that the determination containing the principles must be published in the Gazette but as this appeal shows, the
application for units of entitlement was lodged before Determination No. 6 was published in the Gazette.
This form of legislation is extremely undesirable and should be reconsidered by the Parliament. It is true that the principles by which units are to be allocated must be in existence at the time the decision to make the allocation is taken, but this allows great uncertainty to arise and can only lead to feelings of frustration and oppression. Nevertheless, the principles do become public knowledge and can be used in any challenge under the Judicial Review Act.
Further it must be noted that it is the Health Insurance Act and in particular Part IIA which confers or imposes rights, privileges, duties and obligations on persons providing pathology services to the public. The provisions of Part IIA are designed to enable Medicare benefits to be obtained by patients who receive those services. It is the Health Insurance Act which is the legislation which makes provision for all this. The Health Insurance Act operates on and applies with respect to units of entitlement allocated by the Minister pursuant to section 23DNB. By themselves, the allocation of the units do not confer or impose duties and obligations. That is done by the Health Insurance Act.
Despite all the undesirable features of section 23DNB of the Health Insurance Act, it must be remembered the principles determined by the Minister under sub-section 23DNB(3) must be
complied with by the Minister. In this context the word "principle" must be given its normal meaning of "a general rule as a guide to action": see Shorter Oxford Dictionary. See also what was said by the Court, Gummow, French and Einfeld JJ in Preci Services Pty Ltd v Minister for Health Housing and Community Services (1992) 36 FCR 395 at 404 where the Court was considering a provision contained in the Health Insurance Act authorising the Minister to determine "principles to be applied in the exercise of the Minister's powers".
In the present case, subject to one qualification to be discussed later, no suggestion was made that Determination No. 6 did not contain principles within the meaning of that word when used in sub-section 23DNB(3). Sub-section 5(2) contains a formula to be applied by the Minister in determining the number of units of entitlement to be allocated to each applicant who applies pursuant to clause 5. Essentially the formula depends upon a mathematical calculation, the variables to be determined in conformity with procedures specified in a Schedule to the Determination. Nevertheless, despite the apparent certitude of the application of the formula, under paragraph 23DNB(5)(b) of the Health Insurance Act the Minister has a power, in deciding the number of units of entitlement to be allocated, "to take into account any other matters, not inconsistent with those principles, that he or she thinks relevant."
The submissions of counsel are based on an assertion that Determination No. 5 and Determination No. 6 are incompatible namely, as stated in counsel's outline of submissions, the former required the Minister to allocate two units to Gribbles Pathology while the latter required the Minister to allocate the number calculated according to the formula in sub-clause 5(2) which had been calculated as 84. This inconsistency arises because clauses 2 and 10 of Determination No. 6 have the effect of revoking Determination No. 5 as from midnight on 31 January 1996. It is difficult to see any reason why this was done. Determination No. 6 was capable of operating in its own right from the time of its coming into operation. Any applications whether made before or after 30 November 1995 could be dealt with under that Determination. There is no apparent need to continue the operation of Determination No. 5. This was done, apparently, because of a misunderstanding of the law.
If this inconsistency can be avoided by applying the normal rules of construction and application of a statutory provision, the basis for the contentions made by Gribbles Pathology will disappear. This will be tested by reference to the application lodged by Gribbles Pathology on 28 November 1995.
The lodging occurred before Determination No. 6 came into operation. This is irrelevant. The crucial time is when the allocation of units of entitlement was made, here on or about 13 December. At that time, the Minister knew or should have known each Determination was in operation. She should have known that Determination No. 5 was to cease to have any operation after 31 January 1996. She knew that Gribbles Pathology had been allocated 95 units of entitlement. She should have known that under Determination No. 5 Gribbles Pathology would have been allocated 2 units only. She would have known that under Determination No. 6, Gribbles Pathology would be allowed 84 units. She would have known that Determination No. 6 was made later than Determination No. 5. She should have known the serious consequences resulting from the allocation of two units only - serious consequences not only to Gribbles Pathology but to all its patients, with respect to loss of Medicare benefits. She would have known that paragraph 23DNB(5)(b) of the Health Insurance Act conferred a discretion on her to take into account other matters, not inconsistent with the principles. She should have been aware that Gribbles Pathology had no intention of requesting that she apply Determination No. 5. She should have been aware that the principles had to be complied with by her and by no one else and that she had a discretion over and above strict and blind application of those principles.
In my opinion, and having regard to the facts applicable to Gribbles Pathology and the likelihood of similar facts applicable with respect to every approved pathology authority, the Minister could, in law, construe the duties and powers imposed and conferred on her to enable her to apply Determination No. 6 on the basis that the principles contained in Determination No. 5 had no application. It would be interesting to speculate what the position would be if the Minister had never made a Determination under sub-section 23DNB(3). Would this result in an inability for allocation of units of entitlement with all the consequences of that event? Or would the absence of principles be treated in a similar way to a condition subsequent with the result that the Minister could allocate units without reference to principles?
Having come to this conclusion, the basis of the contention made on behalf of Gribbles Pathology disappears. Determination No. 6 is not invalid on this ground.
5B. Unreasonableness
Counsel attacked the validity of Determination No. 6 on a number of other grounds which were summarized in the outline of submissions as follows:-
"1.(a)Determination No 6 is so unreasonable that it must be regarded as outside the power conferred by section 23DNB(3): Minister for Primary Industry & Energy v Austral Fisheries (1993) 40 FCR 381 at 399-400.
(b)Alternatively, Determination No 6 is void for uncertainty in the sense referred to by Dixon J in Cann's Pty Ltd v Commonwealth (1946) 71 CLR at 228.2.
2.Determination No 6 is ulta vires and void because it purports to strip the Minister of the authority reposed in the Minister by section 23DNB(1).
(a)By handing to the Health Insurance Commission the function of working out factors A and B (Schedule, Item 2), the Minister has abdicated the decision-making power under section 23DNB(1) to the Commission.
(b)The Commission is not, and cannot be, a delegate of the Minister: section 131(1), (4) of the Act.
(c)Once the Commission works out factors A and B, the decision under section 23DNB(1) is substantially made.
(d)The conferral of such a decision-making role on the Commission is not authorised by s 23DNB(3) of the Act: Lynch v Minister for Human Services & Health (1995) 39 ALD 501 at 504.5.
3.Determination No 6 is so unreasonable, capricious and irrational as to be invalid.
(a)The formula contained in clause 5(2) will inevitably lead to a levelling out of the allocations of units to APAs.
(b)Such a consequence cannot be justified by any policy or objective said to be contemplated by the Act.
(c)Sunberg J omitted to consider this aspect of the formula.
(d)That consequence and the other aspects of the formula considered by Sunberg J mean that the formula is unreasonable, capricious and irrational."
Grounds 1(a) and 1 (b), in reality, are variations on the main contention made on behalf of Gribbles Pathology. For reason already given, the principles applied in Minister for Primary Industry & Energy v Austral Fisheries and Cann's Pty Ltd v Commonwealth can have no application to the facts of this appeal.
5C. Ultra vires
Ground 2 depends upon the proper construction of sub-clauses 5(2) and (3) of Determination No. 6 and the Schedule to clause 5. The two sub-clauses are set out:-
"(2)The Minister must calculate the number of units of entitlement to be allocated to the applicant using the formula:
A + B
[ N x ( 2 )] + 1:
where:
A relates to the number of Group P10 PEI items, as worked out in accordance with item 2 of the Schedule:
B relates to the number of full time equivalent recognised pathologists, as worked out in accordance with item 3 of the Schedule:
N is the global entitlement for the relevant year, calculated at the end of 30 November preceding the commencement of that year, reduced by 1 for each person:
(a)that is an APA; and
(b)whose application for the allocation of units of entitlement for that year is in force at the end of that 30 November.
(3)If the application of the formula produces a result that includes a part of a whole number, the result is to be rounded to a whole number by:
(a)disregarding the part of its value is less than 0.5; or
(b)rounding up the result to the next whole number if the value of the part is 0.5 or greater."
The schedule prescribes how "A" and "B" in the formula are to be determined. In the Schedule, they are described as "factor A" and "factor B" respectively. The determination of the amount of each factor for each Applicant for units of entitlement is to be "worked out for an applicant by the Health Insurance Commission" in the prescribed manner. The number to be given to "N" is calculated on the basis of the "total number of units of entitlement that are available for
allocation for the year": see definition of "global entitlement" set out earlier in these reasons. Factor N can be quantified by the Minister. The substance of the contention made on behalf of Gribbles Pathology is that set out in ground 2.
The Health Insurance Commission ("the Commission") is a statutory body created by the Health Insurance Commission Act 1973. The medicare functions of the Commission are, among other functions:-
"5.(b)on and after (1 February 1984) such functions as are conferred on the Commission by or under the Health Insurance Act 1973."
Having regard to the period of a licensing year, the date 1 February 1984 is of interest.
Section 8G of the Health Insurance Commission Act provides that the Commission "has power to do all things necessary or convenient to be done for or in connection with the performance of its functions".
There can be no doubt that the Health Insurance Act could validly confer power on the Commission to determine factor A and factor B. This has not been done here. The function to determine factor A and factor B has been conferred on the Commission by the Minister under the Health Insurance Act in the exercise of the power conferred upon her by sub-section 23DNB(3) namely the power to determine principles. Apart from the statutory provision that the principles "must include the formula or other method for working out" the number of units of entitlement, the Minister is free to include in the principles any matter relevant to the exercise of that power. Counsel for Gribbles Pathology contended that the conferring of the function on the Commissioner of determining factor A and factor B constitutes an abdication by the Minister of the powers conferred by sub-section 23DNB(2) of the Health Insurance Act which is not authorised and therefore Determination No. 6 is invalid. Counsel relied upon opinions expressed in Lynch v Minister for Human Services & Health (1995) 39 ALD 501 and in particular per Davies and Lehane JJ at 504. That case involved a consideration of other sections of the Health Insurance Act and in particular section 23DNA relating to principles for accreditation of pathology laboratories. The contents of that section were in a very different form to those of section 23DNB. Further, the Court was considering an appeal on questions of law from a review under the Administrative Appeals Tribunal Act 1975 of a decision by a delegate exercising powers under section 27DNA. There the Minister had determined principles that were to be applied in the exercise of his or her powers under sub-section 23DN(1). Under sub-section 23DN(1) the Minister had power to approve or refuse to approve premises as accredited pathology laboratories. In exercising those powers, the Minister was required to apply the principles determined under sub-section 23DNA. One of the principles so determined was:-
"4.2Premises shall not be approved as an accredited pathology laboratory unless the applicant has ... provided evidence that-
(a)the premises have been inspected by an agency which has reported that the premises comply with the Standards; or ..."
At 504, their Honours said:-
"A decision-making power is conferred when, inter alia, the exercise of a function or power serves as an "ultimate and operative determination" which affects legal rights and obligations: Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1 at 9-12; 170 CLR 321 at 335-9, or when, to use the words of Deane J in Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590; 3 ALD 161 at 178, there is "a determination effectively resolving an actual substantive issue." If the formation by NATA of a view unfavourable to an applicant's case determines the application, as cl 4.2(a) provides, then the inspection agency has a decision-making role. Its adverse finding operates as the final and operative decision determining the application.
The conferral of such a decision-making role upon the inspection agency is not authorised by s 23DNA(1). The Act does not enable the minister to repose in an inspection agency a power to refuse applications for the approval of premises or (which is substantially the same thing) a power, by the terms of its report, to compel the minister to refuse such an application. It is also inconsistent with the Act that any such decision of an inspection agency should not be reviewable by the tribunal or should effectively exclude the minister's decision from the tribunal's review: Riddell v Secretary, Department of Social Security (1993) 114 ALR 340; 42 FCR 443."
The present case involves a very different situation. Here, a consideration of the Schedule to Determination No. 6 discloses that the function conferred upon the Commission by the Determination was a pure mathematical exercise involving arithmetical calculation. As was said by the trial Judge, "... no discretion (was) involved on anybody's part". Determination No. 6 does not impose any discretionary
functions on the Commission. The Commission has a record of the relevant facts. It extracts them and makes the calculation. The contention goes to power, not to the manner of its exercise. The contention based on this ground is rejected.
5D. Unreasonable, capricious, irrational
Ground 3 depends upon evidence given by an expert witness
that the repeated application of the formula [N x (A + B)] + 1
2
would lead to a levelling out of the allocation of units of entitlement between approved pathology authorities with the result that each authority would have the same number of units allocated for each year. This followed, it was said, from the use of +1 in the formula.
It is not for the Court to determine whether the application of the formula will have this effect and if it does whether this is an unintended consequence of the principles determined by the Minister. Such a consequence does not go to the validity of Determination No. 6. The Determinations are not set in stone. New Determinations can be made at any time. If consequences flowing from the formula contained in Determination No. 6 are not desired by the Minister, that Determination can be revoked and a new Determination made.
The challenge to the validity of Determination No. 6 based on ground 4 is rejected. I agree with the opinion on this ground expressed by O'Loughlin and Finn JJ.
Non compliance with principles
The second order sought in the notice of appeal does not go to the validity of Determination No. 6. It goes to whether the Minister complied with the principles contained in Determination No. 6. Normally this issue would be determined by a review of the Court under the provisions of the Judicial Review Act. It was contended that the Court, having jurisdiction to hear and determine a matter under section 39B of the Judiciary Act has power to determine in that matter whether an officer of the Commonwealth, or for that matter, any person, has performed duties or exercised powers in conformity with law.
It is reasonably clear that in exercising the jurisdiction conferred by section 39B of the Judiciary Act, the Court has accrued jurisdiction, in an appropriate case, to make orders against persons not being officers of the Commonwealth. Here the Commission cannot be an officer of the Commonwealth. Ms Wood is such an officer but at the same time she is an officer of the Commission. In writing the letter dated 13 November 1995 notifying Gribbles Pathology of the number of units of entitlement allocated to it, Ms Wood wrote as an officer of the Commission and used the letterhead of the Commission. In exercising its accrued jurisdiction, the Court has power to make the second order sought in the notice of appeal.
However, having regard to the remedial nature of the Judicial Review Act, questions could arise whether the Court should exercise its accrued jurisdiction. This is so particularly when the one proceeding can involve, and in this case did, involve claims under the Judiciary Act and the Judicial Review Act. Nevertheless it is important to consider the two different jurisdictions when exercising a power. The present case is not appropriate to consider this matter further.
This ground should not be accepted. I agree with the opinion on this matter expressed by O'Loughlin and Finn JJ.
Procedural difficulties and conclusions
For the reasons expressed I would dismiss the appeal with costs. Having come to that conclusion it is not necessary to consider in detail the procedural difficulties referred to in the introduction of these reasons for judgment. Those difficulties are referred in detail in the judgment of O'Loughlin and Finn JJ.
I certify that this and the preceding thirty-two (32) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.
Associate:
Date: 14 June 1996
ATTACHMENT
Counsel for the Applicant: Mr R. Tracey QC with Mr P. Hanks
Solicitor for the Applicant: Schetzer, Brott & Appel
Counsel for the Respondents: Mr M. Moshinski QC with
Mr R. Frazzetto
Solicitor for the Respondents:Australian Government Solicitor
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