Raiz v Director of Professional Services Review (No 2) - [2024] FCAFC 110

FEDERAL COURT OF AUSTRALIA
Raiz v Director of Professional Services Review (No 2) [2024] FCAFC 110

Appeal from: Raiz v Director of Professional Services Review (No 2) [2023] FCA 1293

File number(s): QUD 522 of 2023

Judgment of: GOODMAN, O'SULLIVAN AND MCELWAINE JJ

Date of judgment: 28 August 2024

Catchwords: ADMINISTRATIVE LAW – consequential orders – form of relief – decision of primary judge set aside – writ of certiorari to issue quashing the report and draft report of the second respondent – no occasion for a writ of mandamus directed to the first respondent.

COSTS where appellant successful on appeal – where formulation of argument differed before primary judge – whether appellant to have his costs of proceeding below – held no special circumstances in this case and accordingly appellant entitled to costs of the proceeding below

Legislation:
Health Insurance Act 1973 (Cth) ss 93(1), 95, 96A, 106L(3)(b)

Federal Court Rules 2011 (Cth) r 40.03

Cases cited:
Comcare v Broadhurst (2011) 192 FCR 497

Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Raiz v Director of Professional Service Review (No 2) FCA 1293

Raiz v Director of Professional Services Review [2024] FCAFC 91

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 24

Date of last submission/s: 19 July 2024

Date of hearing: Determined on the papers

Counsel for the Appellant T Brennan SC and H Cooper

Solicitor for the Appellant Collins & Collins

Counsel for the First Respondent M Brady KC and A Psaltis

Solicitor for the First Respondent Sparke Helmore Lawyers

Counsel for the Second Respondent The Second Respondent did not make submissions

ORDERS

QUD 522 of 2023

BETWEEN:
DANNY-GLEN RAIZ

Appellant

AND:
DIRECTOR OF PROFESSIONAL SERVICES REVIEW UNDER SECTION 83 HEALTH INSURANCE ACT 1973 (CTH)

First Respondent

MEMBERS OF THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 1095

Second Respondent

ORDER MADE BY:

GOODMAN, O'SULLIVAN AND MCELWAINE JJ

DATE OF ORDER:

28 AUGUST 2024

THE COURT NOTES THAT:
A.The second respondent filed a submitting notice on 4 December 2023 and did not actively participate in the proceeding, accordingly no order has been made against the second respondent in relation to costs.

THE COURT ORDERS THAT:
1.The orders made by the primary judge on 30 October 2023 are set aside.
2.A writ of certiorari issue directed to the second respondent, quashing its draft report made on 30 September 2021 and its final report made on 5 February 2024.
3.The first respondent is to pay the appellant’s costs of the proceeding below.
4.The first respondent is to pay the appellant’s costs of the appeal.
5.Order 4 does not operate to vary the previous costs order made by the Court on 21 May 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT
THE COURT:

On 5 July 2024, we delivered judgment…

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 Raiz v Director of Professional Services Review (No 2)

Details

AGLC: Raiz v Director of Professional Services Review (No 2) [2024] FCAFC 110
Case: [2024] FCAFC 110
Decision Date: 28 August 2024

CaseChat Overview and Summary

The matter of Raiz v Director of Professional Services Review (No 2) was heard by the Court, focusing on the appeal against decisions made by the Director of Professional Services Review, concerning a report and draft report. The appellant, Raiz, contested the validity and process of the reports, challenging the Director's actions through the issuance of a writ of certiorari. The primary judge's orders, which had been made on 30 October 2023, were set aside, and the court was tasked with determining the appropriate form of relief and the costs associated with the proceedings.

The legal issues before the Court involved the form of relief appropriate for quashing the Director's report and draft report, and whether the appellant was entitled to costs for the proceeding below. The Court examined whether the circumstances warranted a writ of mandamus, directed to the Director, in addition to the writ of certiorari. Furthermore, the Court considered the appellant's entitlement to costs given the differences in argument formulation before the primary judge.

The Court found that the primary judge's decision to set aside the orders was correct, and that the appropriate relief was a writ of certiorari to quash the Director's draft report and final report. The Court held that there were no special circumstances justifying a writ of mandamus directed to the Director. Regarding costs, the Court concluded that since the appellant was successful on appeal and no special circumstances existed, the appellant was entitled to costs of the proceeding below. Additionally, the Court ruled that the appellant was entitled to costs of the appeal.

The Court made several orders, including setting aside the primary judge's orders, issuing a writ of certiorari to quash the Director's draft and final reports, and directing the Director to pay the appellant's costs of both the proceeding below and the appeal. The Court clarified that the costs order did not vary a previous costs order made on 21 May 2024.

Orders

Orders of the court

1. The orders made by the primary judge on 30 October 2023 are set aside.

2. A writ of certiorari issue directed to the second respondent, quashing its draft report made on 30 September 2021 and its final report made on 5 February 2024.

3. The first respondent is to pay the appellant’s costs of the proceeding below.

4. The first respondent is to pay the appellant’s costs of the appeal.

5. Order 4 does not operate to vary the previous costs order made by the Court on 21 May 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Raiz v Director of Professional Services Review (No 2) [2023] FCA 1293
File number(s):	QUD 522 of 2023
Judgment of:	GOODMAN, O'SULLIVAN AND MCELWAINE JJ
Date of judgment:	28 August 2024
Catchwords:	ADMINISTRATIVE LAW – consequential orders – form of relief – decision of primary judge set aside – writ of certiorari to issue quashing the report and draft report of the second respondent – no occasion for a writ of mandamus directed to the first respondent. COSTS where appellant successful on appeal – where formulation of argument differed before primary judge – whether appellant to have his costs of proceeding below – held no special circumstances in this case and accordingly appellant entitled to costs of the proceeding below
Legislation:	Health Insurance Act 1973 (Cth) ss 93(1), 95, 96A, 106L(3)(b) Federal Court Rules 2011 (Cth) r 40.03
Cases cited:	Comcare v Broadhurst (2011) 192 FCR 497 Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Raiz v Director of Professional Service Review (No 2) FCA 1293 Raiz v Director of Professional Services Review [2024] FCAFC 91
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	24
Date of last submission/s:	19 July 2024
Date of hearing:	Determined on the papers
Counsel for the Appellant	T Brennan SC and H Cooper
Solicitor for the Appellant	Collins & Collins
Counsel for the First Respondent	M Brady KC and A Psaltis
Solicitor for the First Respondent	Sparke Helmore Lawyers
Counsel for the Second Respondent	The Second Respondent did not make submissions

QUD 522 of 2023
BETWEEN:	DANNY-GLEN RAIZ Appellant
AND:	DIRECTOR OF PROFESSIONAL SERVICES REVIEW UNDER SECTION 83 HEALTH INSURANCE ACT 1973 (CTH) First Respondent
MEMBERS OF THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 1095 Second Respondent

ORDER MADE BY:	GOODMAN, O'SULLIVAN AND MCELWAINE JJ
DATE OF ORDER:	28 AUGUST 2024