Oreb v Professional Services Review Committee No 298 [2004] FCA 1408

Oreb v Professional Services Review Committee No 298 [2004] FCA 1408

The constitutional grounds could be added, but the non-constitutional administrative law and construction issues were discrete and severable from the constitutional questions. Although hearing them might be futile if the constitutional challenge later succeeded, the public interest in timely determination of Professional Services Review matters and the existing delay justified exercising s 78B(2)(c) to proceed with those severable issues while standing over the constitutional argument.

Jurisdiction
Australia
Judgment Date
28 October 2004
Procedural Posture
Judicial Review of Decisions Made Under Part VAA of the Health Insurance Act 1973 (cth) / Interlocutory Motion for Leave to Amend to Raise Constitutional Questions, to Vacate the Hearing, to Issue S 78 B Notices, and for Severance of Non Constitutional Issues
Outcome
Leave to amend was granted; the application to vacate the hearing was refused; s 78B notices were permitted; constitutional questions were stood over; non-constitutional issues were ordered to be heard separately and first; costs were ordered against the applicant.
Legal Topics
['professional Services Review Scheme' 'judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth)' 'section 78 B Judiciary Act Notices' 'civil Conscription Under S 51(xxiii A) of the Constitution' 'severance of Constitutional and Non Constitutional Matters']
['administrative Law' 'constitutional Law' 'practice and Procedure' 'health Law'] ['professional Services Review Scheme' 'judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth)' 'section 78 B Judiciary Act Notices' 'civil Conscription Under S 51(xxiii A) of the Constitution' 'severance of Constitutional and Non Constitutional Matters']

Case Brief

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Procedural Posture

Judicial Review of Decisions Made Under Part VAA of the Health Insurance Act 1973 (cth) / Interlocutory Motion for Leave to Amend to Raise Constitutional Questions, to Vacate the Hearing, to Issue S 78 B Notices, and for Severance of Non Constitutional Issues

Legal Issues

  1. 1 ['Whether the applicant should have leave to amend the application to raise constitutional questions about the validity of Part VAA of the Health Insurance Act 1973 (Cth).' 'Whether the hearing listed for 27 October 2004 should be vacated because s 78B notices were to be issued and constitutional questions were raised.' 'Whether the existing administrative law and statutory construction issues were severable from the constitutional questions within s 78B(2)(c) of the Judiciary Act 1903 (Cth).' 'Whether the Court should hear the severable non-constitutional issues before determination of the constitutional questions.']

Ratio Decidendi

The constitutional grounds could be added, but the non-constitutional administrative law and construction issues were discrete and severable from the constitutional questions. Although hearing them might be futile if the constitutional challenge later succeeded, the public interest in timely determination of Professional Services Review matters and the existing delay justified exercising s 78B(2)(c) to proceed with those severable issues while standing over the constitutional argument.

Court Disposition

Leave to amend was granted; the application to vacate the hearing was refused; s 78B notices were permitted; constitutional questions were stood over; non-constitutional issues were ordered to be heard separately and first; costs were ordered against the applicant.

Orders

  • ['The Applicant is given leave to file Notice of Motion, returnable instanter.' 'The Applicant is given leave to file a further amended application to raise the Constitutional questions set out in grounds 1A, 1B and 1C.' 'The application to vacate the hearing, listed to commence today, is refused.' 'The Applicant is...