Orthotech Pty Ltd v Minister for Health [2013] FCA 230

FEDERAL COURT OF AUSTRALIA

Orthotech Pty Ltd v Minister for Health [2013] FCA 230 Citation: Orthotech Pty Ltd v Minister for Health [2013] FCA 230

Parties: ORTHOTECH PTY LTD (ACN 134 812 507) v MINISTER FOR HEALTH and FIFINE CAHILL

File number: QUD 58 of 2013

Judge: COLLIER J

Date of judgment: 18 March 2013

Catchwords: ADMINISTRATIVE LAW – judicial review under section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether improper exercise of power – failure to account for relevant considerations or taking into account irrelevant considerations – Delegate following department guide not having authority of statute – whether exercise of discretion in accordance with Guide without consideration of merits of case – weight given by delegate to recommendations of expert committees – whether change of mind rather than change of underlying facts – whether delegate merely adopted committee recommendations – errors in original committee recommendations INSURANCE – Private Health Insurance Act 2007 (Cth) – Private Health Insurance (Prostheses) Rules 2012 (No 2) (Cth) – power to create Prosthesis List upon which approved devices listed – impact on stakeholders – power of Minister to remove approved prosthesis from Prostheses List STATUTORY INTERPRETATION – proper construction of Private Health Insurance Act – purpose of legislation – whether section 333-20 or section 72-10 of Private Health Insurance Act leading provision – whether exercise of power under section 72-10 part of rule-making function – whether Minister has power to review initial decision to list device on Prostheses List – relevance of subsections 33(1) and 33(3) of Acts Interpretation Act to construction of Minister's power – whether contrary intention to application of Acts Interpretation Act – limitations on power of Minister to review or vary initial decision approving listing of prosthesis – finality of delegate's decision – ability to re-apply for prosthesis to be listed