Artinian, Dr Garo v The Commonwealth of Australia & Ors [1996] FCA 760

Artinian, Dr Garo v The Commonwealth of Australia & Ors [1996] FCA 760

Although some issues were arguable, particularly the constitutional point and the possible non-compliance with the 48-hour requirement in s88(1), Dr Artinian did not show a balance of convenience sufficient to justify interlocutory relief. The Court should defer to the validity of the statutory scheme absent compelling grounds, the statistical-material argument was untenable, the other grounds were weak or only arguable, and the immediate prejudice to Dr Artinian from the committee proceeding did not outweigh the prejudice to the respondents and to the statutory timetable if the committee were restrained.

Jurisdiction
Australia
Judgment Date
27 November 1996
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) and S39 B of the Judiciary Act 1903 (cth), With a Motion for Interlocutory Injunction / Interlocutory Motion to Restrain the Professional Services Review Committee From Conducting Its Investigation Pending the Hearing of the Judicial Review Application
Outcome
The motion for interlocutory relief was dismissed.
Legal Topics
['professional Services Review' 'inappropriate Practice' 'interlocutory Relief' 'balance of Convenience' 'natural Justice' 'legitimate Expectation' 'judicial Power of the Commonwealth' 'statutory Time Limits' 'use of Statistical Material in Administrative Decision Making']
['administrative Law' 'practice and Procedure' 'constitutional Law' 'health Law'] ['professional Services Review' 'inappropriate Practice' 'interlocutory Relief' 'balance of Convenience' 'natural Justice' 'legitimate Expectation' 'judicial Power of the Commonwealth' 'statutory Time Limits' 'use of Statistical Material in Administrative Decision Making']

Case Brief

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) and S39 B of the Judiciary Act 1903 (cth), With a Motion for Interlocutory Injunction / Interlocutory Motion to Restrain the Professional Services Review Committee From Conducting Its Investigation Pending the Hearing of the Judicial Review Application

Legal Issues

  1. 1 ['Whether interlocutory relief should restrain the Professional Services Review Committee from investigating Dr Artinian pending judicial review.' 'Whether the statutory scheme for findings and penalties for inappropriate practice arguably involves the exercise of the judicial power of the Commonwealth.' 'Whether natural justice was required before the referral under s86(1) of the Health Insurance Act 1973 or before the setting up of a committee under s93 of the Act.' 'Whether the Commission complied with s88(1) of the Health Insurance Act 1973 by sending a copy of the referral to Dr Artinian within 48 hours of sending it to the Director.' 'Whether the referral complied with s87(1) of the Health Insurance Act 1973 by specifying the services referred.' "Whether the Commission or Director took into account irrelevant considerations by relying on statistical comparisons of Dr Artinian's practice with other practitioners." 'Whether the balance of convenience favoured granting interlocutory relief.']

Ratio Decidendi

Although some issues were arguable, particularly the constitutional point and the possible non-compliance with the 48-hour requirement in s88(1), Dr Artinian did not show a balance of convenience sufficient to justify interlocutory relief. The Court should defer to the validity of the statutory scheme absent compelling grounds, the statistical-material argument was untenable, the other grounds were weak or only arguable, and the immediate prejudice to Dr Artinian from the committee proceeding did not outweigh the prejudice to the respondents and to the statutory timetable if the committee were restrained.

Court Disposition

The motion for interlocutory relief was dismissed.

Orders

  • ['The motion for interlocutory relief be dismissed.' "The applicant to pay the respondents' costs of the motion."]