Southern, N.R. v Royal Australian College of General Practitioners

l 0 9't

JUDGMENT No. ........ ........ .. I ........ ....
NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 753 of 1993

)

GENERAL DIVISION )

BETWEEN: NORMAN RICHARD SOUTHERN

Applicant

AND: ROYAL AUSTRALIAN COLLEGE OF GENERAL
PRACTITIONERS
First Respondent

AND: VOCATIONAL REGISTRATION APPEAL
COMMITTEE

C O W : Burchett J
PLACE: Sydney

DATE : 4 January

BURCHETT J.:

In this matter what started out as an objection to competency has in fact been argued without demur on the basis that it raises a question under S. 10 of the Administrative Decisions l Judicial Review) Act 1977, (the Act) and particularly S . 10(2)(b)(ii), namely, whether the court should in its discretion refuse to grant an application under the Act for the reason that adequate provision was made by a law other than the Act under which the applicant was entitled to seek a review by another tribunal, authority or person of the

decision in question.

The fact is that not only was the applicant entitled to seek such a review, he did seek it. He failed in that application, and he has, in the present proceedings, challenged the decision of the review tribunal, as well as the original decision. Mr Thorley has presented a full argument on the question of whether any additional relief could be available to his client by virtue of the challenge he seeks to make to the earlier decision, that is, additional relief beyond that which will be available in the event of his succeeding in his challenge to the review decision; and whether there would be any difference in the grounds available to him in that regard. It seems to me that there would be no difference in the grounds.

The review in question arises under the Health Insurance Vocational Registration of GPs Regulations, Statutory Rules number 270 of 1989, and as I read those regulations the right of review is a full right of review. In those circumstances, it seems to me that the appropriate order to make is an order

under section 10 refusing to grant the application for review, under the Act, of the original decision, having regard to the

availability of the review by the review tribunal, which is itself subject to judicial review, and will be reviewed in this proceeding. I order accordingly.

In the special circumstances of this case, where an objection to competency was filed which relied on grounds that have been withdrawn, as well as on the matters that have been argued, and where the matters that have been argued seem to me to be of general importance for the departmenf involved, and of much narrower importance to the applicant, a factor which has been considered in a number of cases over the last few years under this legislation, I think it is appropriate to order that there be no order as to the costs of this application.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate: & g g y y & . Date: 18 January

Counsel for the Applicant: Mr D. 3. Thorley

Solicitors for the Applicant: Messrs Coode, Scott &
Corry
Counsel for the First Respondent: Mr M.A. Robinson
Solicitors for the First

Respondent: Messrs Hunt & Hunt
Solicitor for the Second

Respondent: Australian Government

Solicitor

Date of hearing: 4 January 1994

CaseChat Overview and Summary

The Federal Court of Australia heard a case involving Norman Richard Southern, the applicant, who brought an action against the Royal Australian College of General Practitioners, the first respondent, and the Vocational Registration Appeal Committee, the second respondent. The applicant, a general practitioner, sought to challenge decisions made by the respondents regarding his competency and eligibility for vocational registration. The case raised issues under Section 10 of the Administrative Decisions (Judicial Review) Act 1977, which deals with the circumstances under which the court may refuse to grant an application for review. The applicant had already sought and failed to obtain a review of the decision through another tribunal, and the court was required to determine whether it should exercise its discretion to refuse the application on the basis that adequate provision for review was made by another law.

The court considered whether the applicant could seek additional relief by challenging the original decision directly, beyond what could be achieved through the review of the tribunal's decision. The court noted that the regulations governing the review process provided for a full right of review, and that this review was itself subject to judicial review. Burchett J concluded that the appropriate order was to refuse the application for review under the Act, given the availability of review by the tribunal. The court also considered the special circumstances of the case, including the withdrawn objection to competency and the broader importance of the issues for the department involved, and decided that there would be no order as to costs.

In summary, the Federal Court upheld the decision of the Vocational Registration Appeal Committee and refused the application for judicial review. The court found that the applicant had already sought and failed to obtain a review through another tribunal, and that there was adequate provision for review under the relevant regulations. The decision was made in the context of the importance of the issues for the department and the narrower importance to the applicant. The court did not order costs for the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

under section 10 refusing to grant the application for review,	under the Act, of the original decision, having regard to the
availability of the review by the review tribunal, which is itself subject to judicial review, and will be reviewed in this proceeding. I order accordingly.
In the special circumstances of this case, where an objection to competency was filed which relied on grounds that have been withdrawn, as well as on the matters that have been argued, and where the matters that have been argued seem to me to be of general importance for the departmenf involved, and of much narrower importance to the applicant, a factor which has been considered in a number of cases over the last few years under this legislation, I think it is appropriate to order that there be no order as to the costs of this application.