Case: Mitchelson v Health Insurance Commission [2007] FCA 1372
Outcome: cited
The Notice of Appeal filed on 8 May 2007 purports on its face to be an appeal to the court in its original jurisdiction from a decision of either a 'Professional Services Review Committee' ('the PSR Committee') or a 'Determining Authority' ('the Authority') established in accordance with ss 93 and 95 of the Health Insurance Act 1973 (Cth) ('the Act') and s 106Q of the Act respectively. For the reasons indicated in Mitchelson v Health Insurance Commission [2007] FCA 1372 , that document entirely fails as a document originating a proceeding as an appeal from a decision of either body, as no appeal lies to the court from such a decision. 4 However, as noted in the earlier Mitchelson decision, the document seeks to challenge the decision of the Authority on the ground that the Authority erred by failing to take into account relevant considerations in reaching its decision. That contention seems to be an attempt to enliven a ground of challenge that the making of the decision is an improper exercise of the power conferred by the Health Insurance Act 1973 (see s 5(1)(e) and s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)('ADJR Act') and possibly on other grounds. 20 On 28 August, the court refused leave to amend the Notice of Appeal in terms of the amended application and made a direction that 'the applicant in the proceedings file and serve an Application supported by appropriate material for leave to amend the document described as the 'Notice of Appeal' filed on 8 May 2007 so as to properly formulate having regard to identified grounds and particulars of those grounds, an Application for an Order of Review of an identified decision for the purposes of the ADJR Act' ( Mitchelson [23]). By 28 August, the second time the question arose, 134 days had elapsed since Dr Mitchelson had received the decision material. Plainly enough, within that time, Dr Mitchelson ought to have been able to formulate precise grounds of challenge to the Authority's decision and the material facts in support of those grounds especially having regard to the statutory stay effected by s 106V(2) of the Act. The Court further directed that the application for leave to amend the Notice of Appeal would be listed and heard on Tuesday 18 September 2007 at 10.15 am. When the matter came on for hearing on 18 September, the applicant relied upon a notice of motion filed on 12 September which simply sought leave to amend in terms of the same document filed on 24 August 2007. Dr Mitchelson has made no effort to reformulate the amended application to either identify with any precision the grounds of challenge or the material facts giving content and expression to those grounds. Shortly prior to Tuesday 18 September, Mr Royds sought approval to appear and argue the application for leave by telephone. Mr Royds then provided a mobile telephone number to the Court as the appropriate contact telephone number. Mr Moloney appeared in Court for the respondents. 21 Although an application in such a manner by a lawyer for a party seeking leave to amend a document such as the inadequate 'Notice of Appeal' in the context of a decision of the importance to Dr Mitchelson of the Authority's decision is unsatisfactory, ultimately the matter is one for Mr Royds against the background of the earlier Orders made in the proceeding which have not been met and the perceived strength of the argument for leave. If the material filed in support of the application is clear, precise and compelling, an election to seek and obtain approval to support the application by attendance before the Court by telephone or mobile network telephone attendance, might be thought to be cost efficient since Mr Royds practices in Cairns. However, Mr Royds did not file any reformulation of the earlier amended application and by 18 September, 156 days had elapsed since Dr Mitchelson had received the decision material with a continuing statutory stay of the Authority's directions. 22 Dr Mitchelson and Mr Royds have had more than enough time beyond the statutory 28 days prescribed by the ADJR Act to file a proper document.