Milad v Vocational Registration Appeal Commitee - [1999] FCA 608

FEDERAL COURT OF AUSTRALIA
Milad v Vocational Registration Appeal Commitee
[1999] FCA 608
MEDICAL PRACTITIONERS – application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether General Practice Recognition Appeal Committee would be authorised to hear and determine a matter on remitter in accordance with pre-1996 requirements – meaning of the word “finalised” in subregulation 4B(2) of the Health Insurance (Vocation Registration of General Practitioners) Regulations (Amendment) 1996
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 11, s 16(1)
Health Insurance Act1973 (Cth), s 3F
Health Insurance (Vocational Registration of GP’s) Regulations 1989 (Cth)
Health Insurance (Vocation Registration of General Practitioners) Regulations (Amendment) 1996 (Cth)
Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 referred to
Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43 referred to
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 referred to
Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 referred to
Buck v Comcare (1996) 137 ALR 335 considered
MAHER WADIE MILAD v VOCATIONAL REGISTRATION APPEAL COMMITTEE & ANOR
S 21 of 1999
HEEREY, R D NICHOLSON and FINN JJ
6 JULY 1999
MELBOURNE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 21 OF 1999

BETWEEN:

MAHER WADIE MILAD
Appellant

AND:

VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent

GENERAL PRACTICE RECOGNITION APPEAL COMMITTEE
Second Respondent

JUDGES:

HEEREY, R D NICHOLSON and FINN JJ

DATE OF ORDER:

6 JULY 1999

WHERE MADE:

MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1.        The appeal be allowed.
2.        The order of 26 February 1999 be set aside.
3.        The matter be remitted to O’Loughlin J for further consideration.
4.        The respondents pay the appellant’s costs of the appeal, including reserved costs.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 21 OF 1999

BETWEEN:

MAHER WADIE MILAD
Appellant

AND:

VOCATIONAL REGISTRATION APPEAL COMMITTEE
First Respondent

GENERAL PRACTICE RECOGNITION APPEAL COMMITTEE
Second Respondent

JUDGES:

HEEREY, R D NICHOLSON AND FINN JJ

DATE:

6 JULY 1999

PLACE:

MELBOURNE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT
THE COURT:

The issue in this appeal arises in an unusual context. We are required to assume that the appellant, Maher Wadie Milad, might be given leave to lodge an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to challenge a decision of the first respondent, the Vocational Registration Appeal Committee (“the VRA Committee”). His application has been made more than two years after that committee gave its decision adverse to him. Moreover, we are asked to accept that that decision could contain a reviewable error, albeit one that only became manifest in consequence of judgments of judges of this Court delivered subsequent to the VRA Committee’s decision: see Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405; Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43.
The second respondent, the General Practice Recognition Appeal Committee (“the GPRA Committee”) lodged an appearance in this proceeding. For present purposes it can for convenience be described as the successor to the VRA Committee though it is a matter of contest between Mr Milad and the GPRA Committee as to whether that body is or is not merely the VRA Committee in a new guise. The VRA Committee was constituted under the Health Insurance (Vocational Registration of GP’s) Regulations in 1989 (“the 1989 Regulations”). It was replaced by the GPRA Committee in the Health Insurance (Vocation Registration of General Practitioners) Regulations (Amendment) of 1996 (“the 1996 Regulations”).
It was the GPRA Committee that raised by way of preliminary issue the question with which we are concerned. By notice of motion it sought an order that the Court had no power to remit the matter to either the VRA Committee or the GPRA Committee in the event that on the hearing of the application for an order of review under the ADJR Act errors of law were found to have been made by the VRA Committee. A judge of this court having decided that motion favourably to the GPRA Committee, Mr Milad was given leave by the primary judge to appeal from that decision.
For reasons we later give, it is unnecessary to refer in significant detail either to the decision of the VRA Committee or to that of his Honour. The appeal raises a short question of statutory construction.
Statutory Setting
The 1989 Regulations created a scheme for the registration of medical practitioners on the Vocational Register of General Practitioners created under s 3F of the Health Insurance Act1973 (Cth). Registration, while not compulsory for medical practitioners, provided financial benefits to registrants. The scheme allowed for alternate paths to registration. That chosen by Mr Milad required a committee to certify that two conditions prescribed in the 1989 Regulations had been met. Where that committee declined to provide that certification the Regulations in turn gave an unsuccessful applicant a right of appeal to the VRA Committee.
The 1996 Regulations substantially amended those of 1989. All that need be said for present purposes is that (i) they created the GPRA Committee in place of the VRA Committee as the body to which appeals could be taken by medical practitioners who unsuccessfully had sought registration on the Vocational Register; and (ii) new criteria were to be applied in determining whether a medical practitioner was eligible for registration.
Importantly for present purposes, the 1996 Regulations (these commenced on 24 December 1996) introduced a new subregulation 4B to deal with the transition from the old scheme to the new. That subregulation provided:
“4B. (1) A request made under subregulation 3(1) before the commencement of this regulation that has not been finalised before the commencement is taken to be a request lodged with the General Practice Recognition Eligibility Committee.
(2) An appeal made under subregulation 4(2) before the commencement of this regulation that has not been finalised before the commencement is taken to be an appeal made to the General Practice Recognition Appeal Committee.”
Subregulation 4B(2) is the one of present relevance. The reference in it to “subregulation 4(2)” is a reference to an appeal to the VRA Committee under the 1989 Regulations.
For completeness we note the provisions of the new subregulation 5 though it is not directly relevant to the present matter:
“5.      (1)       This regulation applies to a medical practitioner:
(a)who applied for vocational registration before 1 January 1995; and
(b)       whose application is finalised after 23 December 1996.
(2)       The practitioner is eligible for registration if the RACGP or Eligibility Committee certifies that the practitioner meets the criteria that applied when the application was lodged.”
The supporting Details provided in explanation of the 1996 amending Regulations stated:
“Regulation 6 – inserts a new Regulation 4B which provides transitional arrangements so that applications currently under consideration by the existing Vocational Registration Eligibility Committees and the Vocational Registration Appeal Committee are to be continued to be considered by the new Committees.
Regulation 7 – inserts new Regulations 5, 5A and 5B which set out the eligibility criteria for all cases where a practitioner seeks to have his or her name included on the Register.
New Regulation 5 provides the criteria for the registration of applicants whose application was lodged before 1 January 1995 and is still under consideration by either the Eligibility Committee or the Appeal Committee at the time when the new regulations are introduced. These applications are to be assessed against the criteria in force at the time when the application was lodged”: emphasis added.
In 1997 the 1996 Regulations were further amended so that subregulation 4A(2) provided that on an appeal to the GPRA Committee, it
“must hear and determine the appeal according to the legislative requirements that applied when the decision under appeal was made.”
The Explanatory Statement issued with the 1997 amendments stated, amongst other things, that:
“Vocational Registration was introduced in 1989 to encourage doctors wishing to enter general practice to complete appropriate postgraduate training and to ensure that their skills remain up to date by undertaking quality assurance and continuing medical education.
Following the passage of the Health Insurance Amendment Act (No 2) 1996 in late 1996 amendments were made to the Health Insurance (Vocational Registration of General Practitioners) Regulations which changed the legislative requirements for vocational registration and the appeal mechanisms.
The amendments make it clear that no applicant is to be disadvantaged nor advantaged by the changed legislative requirements and that applications pending on 24 December 1996 or on appeal are to be determined by applying the legislative requirements which applied when the application was lodged. The legislative requirements which applied when the application was lodged will, therefore, be applied on any appeal or reconsideration following court review until the application is finally determined”: emphasis added.
Finally, and because the preliminary issue arises in consequence of the Court’s order making powers under s 16(1) of the ADJR Act, reference should be made to the terms of that provision.
“16(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:
(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.”
We draw particular attention to the powers to set aside a decision in s 16(1)(a) and to remit the matter “to the person who made the decision” in s 16(1)(b).
Factual Setting
This can be noted briefly. Mr Milad, a legally qualified medical practitioner, had trained in Egypt and then had practised in New South Wales. He applied for Vocational Registration on 26 December 1994. That application was rejected. An appeal was made to the VRA Committee and by letter of 21 November 1995 Mr Milad was informed that his appeal was unsuccessful. It is this decision of the VRA Committee that Mr Milad wishes to challenge in his ADJR Act application for an order of review. The matter to be emphasised is that Mr Milad’s original application for registration and then his appeal and its rejection all occurred prior to 24 December 1996 – the date the 1996 Regulations took effect.
In December 1997 Mr Milad instituted the present proceeding under the ADJR Act. Apparently, as the trial judge has noted, he claimed he was unaware of any right of judicial review until he received legal advice consequent upon the publication in medical journals of the decision in Reid’s case, above. Given the issue raised before us, we should emphasise that the institution of the present application post-dates the commencement of the 1996 Regulations.
The Present Appeal
Though it did not appear to loom large at first instance, the first issue on this appeal is whether, if Mr Milad’s ADJR Act application was successfully prosecuted and the VRA Committee’s decision was set aside, the Court could make an order remitting Mr Milad’s appeal to the GPRA Committee which appeal, because of the transitional provisions, it would be authorised to hear and determine in accordance with the pre-1996 requirements. It is only if this issue is decided adversely to Mr Milad that the question arises whether the GPRA Committee is merely the VRA Committee in another guise and, in consequence, a remitter could be made to it in any event.
Because of the view we take of the transitional provision it is unnecessary for us to consider the second of the above matters. We would note though, that much of the argument before the judge at first instance and indeed of His Honour’s reasons, centred upon that question without regard to the possible direct significance of the transitional provision. The GPRA Committee had argued that because it was a new body, and because the VRA Committee was now defunct, even if the decision the subject of the order of review was set aside, it could not be remitted (a) to the VRA Committee because it no longer existed; or (b) to the GPRA Committee because it was not the original decision-maker: see ADJR Act, s 16(1)(b).
As we previously indicated, subregulation 4B(2) of the 1996 Regulations deems an appeal to the VRA Committee that has not been “finalised” before 24 December 1996 to be an appeal to the GPRA Committee. The short question of construction so raised is this. If the decision of the VRA Committee was to be set aside, would this have the consequence that Mr Milad’s appeal to the VRA Committee could not be said to be “finalised” for the purposes of the subregulation? We invited written submissions from the parties on this matter.
While it is clear that the 1996 Regulations introduced new and more restrictive requirements for vocational registration, the scheme of the Regulations (including the 1997 amendments) admitted of the possibility of the GPRA Committee – or for that matter the first tier decision-maker – applying the 1989 requirements to appeals and applications for registration not finalised by 24 December 1996 this being the date on which the 1996 requirements came into force: see subregulations 4A(2), 4B(2) and 5 and the Explanatory Statement issued with the 1997 amendments (all of which have been set out above). In other words the 24 December 1996 cut off date did not change the requirements to be satisfied by an appellant to the VRA Committee whose appeal had not been “finalised” on that date. Though now administered by the one body (ie the GPRA Committee) both the old and the new requirements were to be applied as appropriate to appeals on and after 24 December – until, of course, all transitional appeals had been finalised.
Both Mr Milad’s appeal and the decision by the VRA Committee on it occurred before 24 December 1996. For practical purposes the parties then regarded the matter as at an end – at least until the prospect of an ADJR Act application emerged two years later. But had his appeal been “finalised” in the sense envisaged by subregulation 4B(2) by 24 December? If the subregulation used the term to signify no more than that the VRA Committee had given what it had intended to be a final decision on Mr Milad’s appeal, then it had been “finalised” before 24 December 1996. On the VRA Committee giving its decision, the appeal was “concluded or settled” to use the terminology employed by the primary judge. It was no longer “still under consideration by [the VRA Committee] when the [1996] regulations [were] introduced” to use the language of the explanatory Details set out earlier. This is the primary meaning the second respondent has pressed upon us in submissions. Particular reliance is placed on the language of the explanatory Details. It is a meaning that carries with it the apparently anomalous consequence that if an appeal had been so “finalised” then notwithstanding that ADJR Act proceedings had been instituted in time and prior to 24 December 1996 but had not been determined by that date, the provisions of subregulation 4B(2) would not apply to that appeal notwithstanding that after 24 December 1996, a court had set aside the VRA Committee’s decision.
In the alternative, and to avoid the anomaly noted, it was submitted that there was an arguable exception to the primary meaning proposed. It was where an application for judicial review was filed before – but not after – 24 December 1996. We would observe immediately that no principled justification has or apparently can be advanced for this exception. Indeed to admit this exception would be to contradict the primary meaning itself. Furthermore if the taking of ADJR Act proceedings has bearing upon whether an appeal has been finalised for the purposes of the transitional provisions, it can only be because the outcome of such proceedings has resulted in the decision being set aside so rendering the appeal not “finalised”.
For our part, given that (i) the Regulations envisaged that for transitional purposes the GPRA Committee could after 24 December 1996 apply the law as it existed prior to that date; (ii) subregulation 4B(2) refers to “an appeal … that has not been finalised”; and (iii) that the usual combined effect of orders made under s 16(1)(a) and (b) of the ADJR Act (subject to any question of transition) would be to leave an appeal to the VRA Committee in a state that was not “finalised” – we can see no reason why subregulation 4B(2) should be construed so as to exclude from its purview appeals to the VRA Committee where a decision of that committee given prior to 24 December 1996 has been set aside after that date in successful ADJR Act proceedings. Such an appeal cannot be said to have been “finalised” in that it has not in the event been the subject of a conclusive determination. We have emphasised that the decision must be “set aside” before it can properly be said that an appeal has not been finalised for the purposes of the subregulation. This is because it is the setting aside of the decision that renders the appeal not “finalised”. And irrespective of whether any order is made under s 16(1)(a) of the ADJR Act back dating the setting aside of a VRA Committee decision to a date prior to 24 December 1996, if the appeal to the VRA Committee is not “finalised” on the actual date when the court order to set aside the decision is made, it cannot be said to have been finalised in the relevant sense on any earlier date.
We do not consider that the use of the description “currently under consideration” in the Details explaining the 1996 Regulations requires us to take a view different from that we have stated. Those words are apt to describe what would be the usual case caught by the subregulation. They do not preclude a construction that catches the unusual contingency. They are not exhaustively descriptive.
There are three additional matters to which we would wish to draw attention. First, it should not be overlooked that the issue arises in the context of a provision designed to allow for the finalisation of appeals not previously finalised. The construction we give it is consistent with that purpose. Secondly, and perhaps more importantly, while it will only be possible to determine on the completion of ADJR Act proceedings whether an appeal decided by the Committee prior to 24 December 1996 has been finalised, this does not raise the spectre of enduring uncertainty in the possible finality of VRA Committee appeals for which decisions were actually given. There well may be some number of such decisions that were susceptible to successful challenge in judicial review proceedings. But as a practical matter even if there had been a clear error of law, the capacity of a person aggrieved to have the decision set aside may have gone because of the need after a twenty-eight day period from such a decision to obtain leave before an ADJR Act proceeding could be initiated: see ADJR Act s 11(1)(c), s 11(3). The filtering process engaged in – the factors of which account is taken – on leave applications provides a significant and, over time, growing check on a person’s capacity to mount judicial review proceedings: see eg on such factors Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. It is that filtering process, and not a contrived construction of subregulation 4B(2), that provides the appropriate vehicle for agitating the various public interest, public administration and time considerations that the GRPA Committee has relied upon before us in support of the meaning it seeks to have attributed to the word “finalised”. Such considerations have been recognised to be proper ones of which account can be taken on a leave application: see Cohen’s case, above, at 348-350; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523.

Thirdly, the GPRA Committee in its submissions drew attention to the various subregulations in which the word “finalised” is used and submitted that an interpretation that gave consistency of meaning to the term would result in acceptance of the primary meaning it has advanced. Reference was made to subregulations 4B(1) and (2), 5 and 8 the last of which relevantly provided:
“8(2) The practitioner ceases to remain registered under subregulation (1) when the practitioner’s appeal is finalised.”
As to this we would merely say that (i) the word “finalised” probably has to accommodate different contingencies in the various settings in which it is used in the Regulations with the consequence that the circumstances in which a matter may be said to be finalised for the purpose of one subregulation may not necessarily be the same as under another even if the term itself has a common meaning throughout; and (ii) it probably is the case that when it is used in the subregulations it describes an objective fact so that the actions or belief of relevant parties on the assumption that an appeal is or is thereby finalised does not for that reason make it so: cf in another context Buck v Comcare (1996) 137 ALR 335.
We would allow the appeal, set aside his Honour’s orders of 26 February 1999 and remit the matter to his Honour.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, the Honourable Justice R D Nicholson and the Honourable Justice Finn.
Associate:
Dated: 6 July 1999

Counsel for the Appellant:
Mr R T Tilmouth QC and Mr Armour

Solicitor for the Appellant: Armour & Allen

Counsel for the Second Respondent:
Ms Layton QC and Ms Maharaj

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 6 May 1999

Date of Judgment: 6 July 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 21 OF 1999

BETWEEN:	MAHER WADIE MILAD Appellant
AND:	VOCATIONAL REGISTRATION APPEAL COMMITTEE First Respondent GENERAL PRACTICE RECOGNITION APPEAL COMMITTEE Second Respondent
JUDGES:	HEEREY, R D NICHOLSON and FINN JJ
DATE OF ORDER:	6 JULY 1999
WHERE MADE:	MELBOURNE (HEARD IN ADELAIDE)

JUDGES:	HEEREY, R D NICHOLSON AND FINN JJ
DATE:	6 JULY 1999
PLACE:	MELBOURNE (HEARD IN ADELAIDE)

Counsel for the Appellant:	Mr R T Tilmouth QC and Mr Armour
Solicitor for the Appellant:	Armour & Allen
Counsel for the Second Respondent:	Ms Layton QC and Ms Maharaj
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	6 May 1999
Date of Judgment:	6 July 1999