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

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

Because the appeal had been allowed on the invalidity arising from the Chairperson's absence during part of the Committee hearing, the primary judge's orders had to be set aside and certiorari should issue quashing the Committee's draft and final Reports. There was no utility or proper basis to issue mandamus directing the first respondent to reconstitute a Committee, and the consequences of the referral decision had not been explored on the appeal. The appellant was the successful party and no special circumstances justified departing from the usual costs rule, so he was entitled to costs of the proceeding below and the appeal, subject to the existing costs order of 21 May 2024.

Jurisdiction
Australia
Judgment Date
28 August 2024
Procedural Posture
Appeal From Dismissal of Application for Judicial Review / Consequential Orders After Appeal Allowed
Outcome
Appeal consequential orders made; certiorari granted, mandamus declined, appellant awarded costs of the proceeding below and the appeal subject to the existing 21 May 2024 costs order.
Legal Topics
['consequential Orders' 'certiorari' 'mandamus' 'professional Services Review' 'costs Following the Event']
['administrative Law' 'costs'] ['consequential Orders' 'certiorari' 'mandamus' 'professional Services Review' 'costs Following the Event']

Case Brief

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Procedural Posture

Appeal From Dismissal of Application for Judicial Review / Consequential Orders After Appeal Allowed

Legal Issues

  1. 1 ["What form of relief should be granted after the appeal was allowed, including whether the primary judge's orders should be set aside and whether certiorari or mandamus should issue." 'Whether the Committee should be differently constituted or the first respondent directed to reconstitute a Committee under s 95 of the Health Insurance Act 1973 (Cth).' 'Whether the appellant should receive costs of the appeal and of the proceeding below, including reserved costs of an interlocutory application.']

Ratio Decidendi

Because the appeal had been allowed on the invalidity arising from the Chairperson's absence during part of the Committee hearing, the primary judge's orders had to be set aside and certiorari should issue quashing the Committee's draft and final Reports. There was no utility or proper basis to issue mandamus directing the first respondent to reconstitute a Committee, and the consequences of the referral decision had not been explored on the appeal. The appellant was the successful party and no special circumstances justified departing from the usual costs rule, so he was entitled to costs of the proceeding below and the appeal, subject to the existing costs order of 21 May 2024.

Court Disposition

Appeal consequential orders made; certiorari granted, mandamus declined, appellant awarded costs of the proceeding below and the appeal subject to the existing 21 May 2024 costs order.

Orders

  • ['The orders made by the primary judge on 30 October 2023 are set aside.' '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.' "The first respondent is to pay the appellant's costs of the proceeding below."...