Nicholl Holdings Pty Ltd v Minister for Health - [2014] FCCA 295

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICHOLL HOLDINGS PTY LTD v MINISTER FOR HEALTH

[2014] FCCA 295

Catchwords:
ADMINISTRATIVE LAW – Judicial review – decision of Assistant Director, Workforce Regulation Section – whether court has jurisdiction to hear application – whether the application is incompetent.

ADMINISTRATIVE LAW – Judicial review – whether decision is of an “administrative character made under an enactment” – whether decision of an administrative or legislative character – conduct engaged in to make decision – Administrative Decisions (Judicial Review) Act 1977 (Cth) – Health Insurance Act 1973 (Cth).

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3(1) & (4), 5(1)(e), 5(2)(a)-(j), 11(1)(c)
Health Insurance Act 1973 (Cth), s.19AB(1), (2), (3), (4B)

Legislative Instruments Act 2003

Evans v Friemann (1981) 35 ALR 428
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
RG Capital Radio Limited v The Australian Broadcasting Authority [2001] 185 ALR 573
Griffith University v Tang [2005] 213 ALR 724
Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 ALR 64
Robinson v Western Australian Museum (1977) 16 ALR 623; 138 CLR 283

Applicant:

NICHOLL HOLDINGS PTY LTD
ACN 063 703 748

Respondent:

MINISTER FOR HEALTH

File Number:

BRG 284 of 2013

Judgment of:

Judge Coker

Hearing date:

24 July 2013

Date of Last Submission:

24 July 2013

Delivered at:

Townsville

Delivered on:

24 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr D Campbell QC

Solicitors for the Applicant:

Roberts Nehmer McKee

Counsel for the Respondent:

Ms M Brennan

Solicitors for the Respondent:

Ashurst Australia

ORDERS

That the Applicant be granted an extension of time to proceed with the Application filed on 11 April 2013.
That the Preliminary Assessment of a District of Workforce Shortage application be referred back to the Respondent for further consideration.
That the further consideration of the Preliminary Assessment of a District of Workforce Shortage application be done in accordance with the “Section 19AB Guidelines” which commenced on 18 October 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

BRG 284 of 2013

NICHOLL HOLDINGS PTY LTD
ACN 063 703 748

Applicant

And

MINISTER FOR HEALTH

Respondent

REASONS FOR JUDGMENT

There are presently two applications before the court. The first is an application for an extension of time to lodge an application for an order to review, pursuant to the provisions of section 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977. The application for extension of time was filed on 11 April 2013. The order sought is simply to the effect that the Applicant applies for an extension of time under rule 31.02 to lodge an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977.
Accompanying that application for an extension of time was the draft originating application for judicial review. The orders contained or sought within the originating application for judicial review were in these terms:
(1)An order setting aside the decision of the delegate and substituting it with the Court’s decision approving the PADWS – Preliminary Assessment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicholl Holdings Pty Ltd v Minister for Health

Details

AGLC: Nicholl Holdings Pty Ltd v Minister for Health [2014] FCCA 295
Case: [2014] FCCA 295
Decision Date: 24 February 2014

CaseChat Overview and Summary

Nicholl Holdings Pty Ltd (the applicant) sought judicial review of a decision made by the Assistant Director, Workforce Regulation Section (the respondent), concerning the applicant's eligibility for certain payments under the *Health Insurance Act 1973* (Cth). The central dispute revolved around whether the court possessed the jurisdiction to hear the application for review, and if so, whether the respondent's decision was amenable to such review.

The court was required to determine two primary legal issues. Firstly, whether the application for judicial review was competent, meaning whether it was properly brought before the court under the relevant legislation. Secondly, the court had to consider whether the decision made by the Assistant Director was an "administrative character made under an enactment" as contemplated by the *Administrative Decisions (Judicial Review) Act 1977* (Cth), or if it was of a legislative character.

In reaching its decision, the court analysed the nature of the respondent's conduct and the decision it made. It considered the provisions of the *Health Insurance Act 1973* (Cth) and the *Administrative Decisions (Judicial Review) Act 1977* (Cth) to ascertain whether the decision fell within the scope of reviewable administrative decisions. The court's reasoning focused on distinguishing between administrative and legislative functions, and whether the respondent's actions constituted the former. The court found that the application was not competent and therefore dismissed the application.

Orders