Melbourne Pathology Pty Ltd v Health Insurance Commission [1997] FCA 92

CATCHWORDS SOCIAL WELFARE - National health legislation - Health Insurance - Special provisions relating to pathology - Pathology specimen collected in premises in part of a "recognised hospital" building leased by proprietor of the hospital to an approved pathology proprietor held to have been "collected ... at" that hospital within sub-paragraph 16(5AA)(d)(iii) of the Health Insurance Act 1973. LANDLORD AND TENANT - Distinction between lease and licence - Document conferring right to occupy pathology laboratory in hospital for use in providing pathology services to the hospital - Construction of agreement to provide the services and a document (conferring the right to occupy the premises) scheduled to the agreemnt - Intention of parties. Health Insurance Act 1973, s 16A(5AA) Lewis v. Bell (1985) 1 N.S.W.L.R. 731 Joel v. International Circus and Christmas Fair (1920) 124 L.T. (U.S.) 459 Mintern-Lane v. Kercher [1968] V.R. 552 Attorney General's Reference (No. 1 of 1976) [1977} 3 ALLE.R.557 Collector of Customs (Tasmania) v. Flinders Island Community Association (1985) 60 A.L.R. 717 Collector of Customs v. Rottnest Island Authority (1994) 119 A.L.R. 406 Melbourne Pathology Pty Ltd v Health Insurance Commission (No. VG 708 of 1995) Coram: Jenkinson J Date: 18 February 1997 Place: Melbourne

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No. VG 708 of 1995 ) GENERAL DIVISION ) B E T W E E N: MELBOURNE PATHOLOGY PTY LTD Applicant -and - HEALTH INSURANCE COMMISSION Respondent CORAM: Jenkinson J DATE: 18 February 1997 PLACE: Melbourne MINUTES OF ORDER The Court Orders That: 1. Each of the decisions the subject of the further amended application filed 16 February 1996 be set aside. The Court Declares That: The pathology specimen or specimens required for the rendering of the pathology service the subject of each of the said decisions was or were "collected ... at ... a recognised hospital" within the meaning of those words in paragraph 16A(5AA)(d) of the Health Insurance Act 1973. The Court Orders That: 2. Each of the matters to which each of the said decisions respectively relates be referred to the respondent for further consideration according to law. 3. The applicant's costs of the proceeding be paid by the respondent. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules