Ho v Grigor [2006] FCAFC 72

FEDERAL COURT OF AUSTRALIA Ho v Grigor [2006] FCAFC 72 PRACTICE AND PROCEDURE – judicial review – medical practitioners - decisions made under the Health Insurance Commission Act - alleged over-servicing – interlocutory orders in similar pending judicial proceedings by unrelated parties – 'order' reciting parties acceptance that test case would determine outcome of their proceedings – whether an order – agreement by counsel – whether agreement certain – result of test case - challenged decision set aside – whether challenged decisions in pending proceedings to be set aside pursuant to agreement – whether test case issues before decision-makers in pending proceedings – undesirability of orders linking outcome of pending proceedings to outcome in test case – official decisions not to be set aside except for demonstrated error – uncertainty of agreement - leave to appeal granted – interlocutory orders set aside WORDS AND PHRASES 'order' Health Insurance Act 1973 (Cth) s 106KA Federal Court of Australia Act 1976 (Cth) s 23 Health Insurance (Professional Services Review) Regulations 1999 reg 11 Oreb v Willcock [2004] FCA 1520 cited Oreb v Willcock (2005) 146 FCR 237 cited Wong v Professional Services Review Committee No 339 [2005] FCA 1351 cited R v Edwards (1884) 13 QBD 586 cited R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 cited Warramunda Village Inc v Pryde (2002) 116 FCR 58 cited Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 cited In Marriage of Evans (1992) 108 FLR 14 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 cited Minogue v Williams [2000] FCA 125 cited Ex parte Bucknell (1936) 56 CLR 221 cited HUGO HUU HIEP HO v WAL GRIGOR, HEATHER KNOX AND PHILLIP KNOWLES constituting the PROFESSIONAL SERVICES REVIEW COMMITTEE NO 295, THE DETERMINING AUTHORITY established by Section 16Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY in his capacity as ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW and ALAN JOHN HOLMES in his capacity as DIRECTOR OF PROFESSIONAL SERVICES REVIEW NSD 744 of 2006 HIEN THANH DO v SIMON WILLCOCK, GEORGE PEPONIS AND ROD McMAHON constituting the PROFESSIONAL SERVICES REVIEW COMMITTEE NO 293, THE DETERMINING AUTHORITY established by Section 106Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY in his capacity as ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW and ALAN JOHN HOLMES in his capacity as DIRECTOR OF PROFESSIONAL SERVICES REVIEW NSD 745 of 2006 FRENCH, STONE and BESANKO JJ 19 MAY 2006 SYDNEY