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

CATCHWORDS ADMINISTRATIVE LAW - decision that a reference be made under s86(1) of the Health Insurance Act 1973 in respect of medical practitioner and decision to set up a committee to consider whether that medical practitioner had engaged in inappropriate practice - whether interlocutory relief should be granted - balance of convenience in favour of refusing interlocutory relief. PRACTICE & PROCEDURE - interlocutory relief - test to be applied where constitutional challenge raised. Health Insurance Act 1973: ss86, 87, 88, 89, 93, 94, 95, 96, 97, 106. Australian Capital Television v Commonwealth of Australia (1992) 104 ALR 389; followed. Edelston v Health Insurance Commission (1990) 27 FCR 56; followed. DR GARO ARTINIAN v THE COMMONWEALTH OF AUSTRALIA & ORS

NG 861 of 1996 HILL J SYDNEY 27 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 861 of 1996 ) GENERAL DIVISION ) BETWEEN: DR GARO ARTINIAN Applicant AND: THE COMMONWEALTH OF AUSTRALIA First Respondent THE HEALTH INSURANCE COMMISSION Second Respondent DR R NEWTON Third Respondent DR ALAN JOHN HOLMES Fourth Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE (NO 25) Fifth Respondent

CORAM: HILL J PLACE: SYDNEY DATED: 27 NOVEMBER 1996 MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The motion for interlocutory relief be dismissed. 2. The applicant to pay the respondents' costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 861 of 1996 ) GENERAL DIVISION ) BETWEEN: DR GARO ARTINIAN Applicant AND: THE COMMONWEALTH OF AUSTRALIA First Respondent THE HEALTH INSURANCE COMMISSION Second Respondent DR R NEWTON Third Respondent DR ALAN JOHN HOLMES Fourth Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE (NO 25) Fifth Respondent CORAM: HILL J PLACE: SYDNEY DATED: 27 NOVEMBER 1996 REASONS FOR JUDGMENT The applicant, Dr Artinian, is a medical practitioner who carries on a general practice in the Chatswood Medical Centre. He applies to the Court for judicial review, relying both upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s39B of the Judiciary Act 1903 (Cth) of two decisions. The first is a decision said to have been made by the Health Insurance Commission, the second respondent ("the Commission"), or Dr Newton, the third respondent, taken on or about 29 September 1996, that a reference be made under s86(1) of the Health Insurance Act 1973 (as amended) ("the Act") to the Director of Professional Services Review in respect of Dr Artinian's conduct. The second decision is that said to have been taken on or about 28 October 1996 by Dr Holmes, the fourth respondent, who is the Director of Professional Services Review, to set up a committee to consider whether Dr Artinian had engaged in inappropriate practice, as that expression is used in the Act. The committee, which Dr Holmes purported to set up, is the fifth respondent. The committee is scheduled to commence its hearing on 6 December next. It is for this reason that Dr Artinian seeks interlocutory relief by way of injunction, restraining the committee from conducting its investigation into the conduct of Dr Artinian pending the hearing of Dr Artinian's application for judicial review. THE STATUTORY BACKGROUND In order to understand the submissions made on behalf of Dr Artinian, it is necessary to summarise briefly the relevant provisions of the Act. The Act contemplates a four step procedure to deal with investigations into conduct of medical practitioners who engage in what the Act refers to as "inappropriate practice". As defined in s82(1) of the Act, a practitioner will engage in inappropriate practice if: