Tonakie v Director of Professional Services Review [2023] FCA 1365

Procedural Posture

Application for Judicial Review / Final Judgment

Legal Issues

1. 1 ['Whether a referral under s 93(1) of the Health Insurance Act 1973 (Cth) that was invalid and set aside was nevertheless a referral in fact sufficient to interrupt the 12 month period under s 94(1)(b)(iii).' 'Whether National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 1016; 276 FCR 382 was distinguishable or clearly wrong.' 'Whether the applicant was barred by Anshun estoppel or abuse of process from relying on s 94(1) because declaratory relief had been sought but not pursued in the earlier proceeding.']

Ratio Decidendi

A legally invalid referral to a Committee, including a referral to an invalidly constituted Committee that was set aside, is still a referral in fact for the purposes of s 94(1)(b)(iii) of the Health Insurance Act 1973 (Cth). The first referral therefore interrupted the 12 month period, the deeming provision in s 94(1) was not enlivened, and the later referral was not invalid on the applicant's asserted basis. National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 1016; 276 FCR 382 was not distinguishable and was not shown to be clearly wrong.

Court Disposition

Application dismissed with costs.

Orders

• ['The proceeding be dismissed with costs.']