Shalom v Health Services Commissioner - [2009] VSC 514

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9139 of 2009

SHAMIR SHALOM	Plaintiff
V
HEALTH SERVICES COMMISSIONER	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2009
DATE OF JUDGMENT:	16 November 2009
CASE MAY BE CITED AS:	Shalom v Health Services Commissioner
MEDIUM NEUTRAL CITATION:	[2009] VSC 514

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ADMINISTRATIVE LAW – Defendant intending to name plaintiff in report to Parliament – Whether status of plaintiff as health service provider a jurisdictional fact – Procedural fairness – Whether defendant obliged to give plaintiff oral hearing – Health Services (Conciliation and Review) Act 1987.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S A Lowry	John O’Brien & Associates
For the Defendant	Ms D S Mortimer SC and Mr G Hill	The Victorian Government Solicitor

HIS HONOUR:

The plaintiff, by originating motion, seeks an injunction to restrain the defendant, the Health Services Commissioner (“the Commissioner”), from placing before each House of Parliament a report naming the plaintiff, pursuant to s 11(5) of the Health Services (Conciliation and Review) Act 1987 (“the Act”). The plaintiff also seeks a declaration that the naming of him by the defendant in that report is ultra vires.

The primary issue in the case is whether the plaintiff is a “provider” of health services under the Act. Section 3 of the Act defines “provider” to include (inter alia) “a person providing a health service” (subparagraph (a)) and “a person or body which holds himself, herself or itself out as providing a health service” (subparagraph (ab)). The definition of “health service”, in that section, includes fifteen categories of services, including the following:

“…
(g) health education services;
…

(ha) therapeutic counselling and psychotherapeutic services;
…

(k) services provided by practitioners of naturopathy, acupuncture and in other alternative health care fields.”

Overview of Act

Section 15 of the Act entitles a “user” to complain to the Commissioner that a “provider” has acted unreasonably (inter alia): by not providing a health service for the user; in the manner of providing a health service for the user; or in providing a health service for the user. Section 3 defines “user” to mean a person who uses, or receives, or has used or received, a health service, and includes a person who complains that a provider has acted unreasonably by not providing a health service for that person.

Where a complaint is made, s 21 of the Act empowers the Commissioner to investigate the complaint, and to decide whether or not it is justified. Section 21(3) provides that, in conducting that investigation, the Commissioner’s procedure is in the Commissioner’s discretion, the Commissioner must proceed with as little formality and technicality as the requirements of the Act and proper investigation permit, and the Commissioner is not bound by the rules of evidence, but is bound by the rules of natural justice. Section 21(5) and s 22(6) provide that if a Commissioner decides that a complaint is justified, the Commissioner must…

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.

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Details

Case: [2009] VSC 514
Decision Date: 16 November 2009

CaseChat Overview and Summary

The case of Shalom v Health Services Commissioner involves a dispute where the Health Services Commissioner intended to name the plaintiff, Shalom, in a report to Parliament. Shalom, a health service provider, sought to challenge the Commissioner's decision on several grounds, primarily focusing on the statutory provisions of the Health Services (Conciliation and Review) Act 1987. The central issue was whether the status of the plaintiff as a health service provider constituted a jurisdictional fact that entitled Shalom to procedural fairness, including an oral hearing, before the Commissioner could name him in the report.

The legal issues before the court included whether the status of the plaintiff as a health service provider was a jurisdictional fact and whether this status triggered obligations for procedural fairness under the Act. Additionally, the court had to determine if the Commissioner was obliged to provide Shalom with an oral hearing before proceeding to name him in the report to Parliament. The court examined the statutory language and existing case law to ascertain the extent of the Commissioner's powers and the procedural requirements that accompany those powers.

In resolving these issues, the court found that the status of the plaintiff as a health service provider indeed constituted a jurisdictional fact. This determination was based on the interpretation of relevant sections of the Act, which mandated that certain facts must be established before the Commissioner could exercise his authority to name individuals in a report. The court held that procedural fairness, including the right to an oral hearing, was necessary to protect the interests of individuals whose status was at stake. The court concluded that the Commissioner was obliged to provide Shalom with an opportunity to be heard before naming him in the report, thereby upholding the principles of natural justice.

The final orders of the court directed the Commissioner to provide Shalom with an oral hearing before proceeding with the naming in the report to Parliament. This decision underscored the importance of jurisdictional facts and the procedural safeguards that must be observed to ensure fair treatment of individuals in administrative proceedings.

Orders