Medtest Pty Ltd and Minister for Health and Ageing

[2002] AATA 317

DECISION AND REASONS FOR DECISION [2002] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/581

GENERAL ADMINISTRATIVE DIVISION         )          
           Re      MEDTEST PTY LTD         
  Applicant
           And    MINISTER FOR HEALTH AND AGEING         
  Respondent

DECISION

Tribunal       Mr RP Handley       

Date1 May 2002

PlaceSydney

Decision      The Tribunal stays the decision of the Respondent dated 30 April 2002 to refuse a variation by extending the termination date of the approval of the Applicant's premises at Unit 1, 214 The Boulevarde, Fairfield, as an accredited pathology laboratory under section 23DN of the Health Insurance Act 1973. The decision will be stayed so that the termination date of the approval shall be a date to be determined at the conclusion of the Tribunal's substantive hearing of this matter.
  ..............................................
   RP Handley
   Deputy President
CATCHWORDS
COMMONWEALTH GOVERNMENT ACCREDITATION – Accredited Pathology Laboratory – Revocation of Accreditation – Commonwealth Medical Benefits – Stay order granted.
Administrative Appeals Tribunal Act 1975 ss 41(2)
Health Insurance Act 1973 ss 23DO(5),(5)(b)
Re Alexander and Migration Agents Registration Board 40 ALD 99
Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240
Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320

REASONS FOR DECISION

1 May 2002 Deputy President Handley   

This matter concerns an application for a Stay Order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975. This states:

The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

My decision is necessarily somewhat brief and, as I have indicated, not as substantial as it might otherwise have been had I had the time to consider these issues more fully.  Nevertheless, there are a number of matters that I do want to mention in explaining the basis of my decision.

First of all, as far as the evidence today is concerned, nothing I have heard in evidence today persuades me that I should change my mind with regard to any risk to public health and safety.  Clearly, some of the evidence on both sides is disputed, and with regard to matters such as the results of the pap smear tests, there is a spectrum of professional specialist opinion with regard to how those results should be read and interpreted.  In my view, that opinion is most appropriately dealt with at the substantive hearing of this matter.  Much of the evidence today has focused on laboratory processes. Those processes have not, in my view, indicated specific instances of risk to public health or safety where there has been uncontested evidence brought before the Tribunal.

Secondly, with regard to the Tribunal's jurisdiction, it is true that the grant of the stay order in the present circumstances will be of a different character to that which the Tribunal granted in March of this year when the accreditation as originally granted by the Minister was still operative.  However, in my view, the particular circumstances of this case are somewhat special in so far as there has been a series of ongoing procedural steps that will in due course, I assume, lead to the hearing of the substantive issues in this matter.   Those steps have taken a significant amount of time because of the complexity of the issues involved.  I am also mindful that the Applicant is a relatively small laboratory and it seems that the denial of a stay order may well put the laboratory out of business.

Looking at the authorities on the use of section 41(2) of the Administrative Appeals Tribunal Act 1975, in Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240, Davis J said at 241:

the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principles or a set of specific principles applicable to every type of case in respect of which there may be an application for a stay.

I consider that the present matter is a fairly special case by virtue of the particular circumstances, and that the focus in this case should be on securing the effectiveness of the hearing.   If I can also quote a couple of other cases, the first a Federal Court decision, Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320, where Marshall J, referring to the earlier Full Court judgment in that same case, Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250, said that in his view the effect of the Full Court judgment is to:

emphasise that securing the effectiveness of the hearing and determination of the application is tied to securing the processes of the hearing and the processes of the determination.

I am concerned, as I have said, that unless a stay order is granted, the utility of the hearing will be significantly undermined if there is a possibility of the Applicant being put out of business.  I also note that in a decision to which I was referred by Counsel, Re Alexander and Migration Agents Registration Board 40 ALD 99, Deputy President McMahon, at paragraph 24, says:

Section 41(2) is not positive in its effects but merely negative. The content of the power is limited by its legislative intendment.  It is intended to preserve the situation  obtaining prior to the reviewable decision.  It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision.

The order that I intend to make is not, I think, going to change the situation entirely and put the Applicant in a totally different position.  The order is of a short term nature intended to secure the effectiveness of the hearing to enable the NATA inspection and report to be concluded and to enable there to be a full hearing of the substantive matters before the Tribunal.  This will enable the Tribunal to make findings of fact with regard to a number of relevant issues, including amongst those the very important issue of public health and safety.

Before I come to the actual order, I want to deal with one other matter and that is the power of the Tribunal under the provisions of the Health Insurance Act 1973 and specifically section 23DO(5). In my view, subsection (5)(b) is sufficiently broad to cover this case in that a decision to make an order varying or revoking, is usually also read as including a decision to refuse an order varying or revoking. Obviously, on this point, I disagree with the submission put forward by Mr Williams. I think that there is jurisdiction in the Tribunal with regard to the first of the two applications made by the applicant on 30 April, that is the application to vary the extension of the approval of the accreditation. In my opinion, the Tribunal has jurisdiction to deal with an application with respect to that variation. The Tribunal has such jurisdiction under subsection (5)(b). Once again, in coming to that conclusion and in construing subsection (5)(b) in that way, I am mindful of the particular circumstances of this case.

So in conclusion, running through those issues in a more orderly fashion, first of all I consider that the Tribunal does have jurisdiction to review the decision to refuse a variation of the extension of the approval of the accreditation of the Applicant. Secondly, I do not consider that there is any risk to public health or safety in issuing a stay order under section 41(2) of the Administrative Appeals Tribunal Act 1975 on a short term basis, the terms of which I will set out in a moment. Thirdly, I believe a stay order is necessary to secure the effectiveness of the hearing. Fourthly, I think it is appropriate for the Tribunal to exercise its power to issue a stay order in this case. The terms of the order will be to extend the Applicant's accreditation until the NATA inspection and report on the Applicant's laboratory has been concluded and the Tribunal has conducted a hearing on the substantive issues involved.

The Tribunal will reconsider its decision on the stay order at the conclusion of the Tribunal hearing itself.  This means that the Tribunal will not wait to reconsider its decision on the stay order until the publication of its decision - it will do so at the conclusion of the hearing.  Quite what it will decide at that time, obviously I can't foresee.  However, I want to ensure that if the Tribunal considers there to be any risk to public health and safety having heard evidence during the course of the substantive hearing, then the Tribunal will act to review its decision on the stay order at that time without actually waiting until such time as a full, reasoned written decision is handed down, which might take some weeks.   This means that the stay order will be effective for a period, depending on when the hearing actually commences, of approximately four or five weeks.   In all the circumstances of the case, I consider it is reasonable and appropriate for the Tribunal to issue a stay order.

I certify that the 4 preceding pages are a true copy of the Decision and reasons for the decision herein of Deputy President RP Handley.

Signed:         .....................................................................................
  Associate

Date/s of Hearing  1 May 2002  
Date of Decision  1 May 2002  
Representative for the Applicant              Mr Dwyer SC
Representative for the Respondent        Mr Williams SC