FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Lee [2013] FCA 461 Citation: Commonwealth of Australia v Lee [2013] FCA 461 Appeal from: Application for leave to appeal from: Lee v Napier [2013] FCA 236 Parties: THE COMMONWEALTH OF AUSTRALIA v DR IL SONG LEE THE COMMONWEALTH OF AUSTRALIA v DR IL SONG LEE, PROFESSIONAL SERVICES REVIEW COMMITTEE NO 525, CHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA, THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) and THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) File numbers: NSD 565 of 2013 NSD 566 of 2013 Judge: PERRAM J Date of judgment: 7 May 2013 Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal from Federal Court of Australia – Whether basis for leave to appeal satisfied PRACTICE AND PROCEDURE – Costs – Appeal – Whether respondent should bear own costs Legislation: Health Insurance Act 1973 (Cth) s 84 Cases cited: Lee v Napier [2013] FCA 236 Date of hearing: 7 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: T Howe QC, T Begbie Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: M Robinson SC IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 565 of 2013 BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: DR IL SONG LEE Respondent JUDGE: PERRAM J DATE OF ORDER: 7 MAY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be granted leave to appeal. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 566 of 2013 BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: DR IL SONG LEE First Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE NO 525 Second Respondent CHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA Third Respondent THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Fourth Respondent THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) Fifth Respondent JUDGE: PERRAM J DATE OF ORDER: 7 MAY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be granted leave to appeal. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 565 of 2013 BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: DR IL SONG LEE Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 566 of 2013 BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: DR IL SONG LEE First Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE NO 525 Second Respondent CHIEF EXECUTIVE OFFICER OF MEDICARE AUSTRALIA Third Respondent THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH) Fourth Respondent THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW (COMMONWEALTH OF AUSTRALIA) Fifth Respondent JUDGE: PERRAM J DATE: 7 MAY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by Katzmann J on 20 March 2013 in Lee v Napier [2013] FCA 236. The principles governing the grant of leave are not in doubt. Generally leave will be granted where it is apparent that the decision below is attended by sufficient doubt to warrant reconsideration by a Full Court and where, if the decision below be wrong, substantial injustice will result. The question before the trial judge involved the proper construction of s 84(3) of the Health Insurance Act 1973 (Cth). Relevantly it provides that: Before appointing a medical practitioner to be a panel member the Minister must consult the [Australian Medical Association ('the AMA')] the AMA. The Minister must make an arrangement with the AMA under which the AMA consults other specified organisations and associations before advising the Minister on the appointment. 2 The short question before her Honour was whether the word 'consult' required the Minister both to consult with the AMA and to receive back its response to that consultation or whether it was sufficient only that the Minister had consulted the AMA without having received a response from it. It mattered in the proceedings before the trial judge because persons acting on behalf of the Minister had consulted the AMA but at the time the Minister appointed the present applicant to a panel he had not received back from the AMA its views on the appointment. The contention of the Minister before the trial judge was that a line of authorities suggested that the word 'consult', when used in statutes of the kind presently under consideration, had been interpreted to require only consultation without the necessity of response. 3 There are some aspects of practicality which may support that view. If the word is not read in that fashion then the provision can operate, as the Minister pointed out in his written submissions, as a form of veto which is a surprising outcome perhaps. The trial judge took a different view of the matter because, consistent with the requirement that the legislation be construed as a whole, her Honour discerned that in the context of this statute the word should be given the meaning that it required - not only consultation - but receipt of advice following consultation. There is, in my opinion, plainly a question as to whether that is correct and it is a matter which does warrant the consideration of a Full Court. 4 Substantial prejudice will also result, in my opinion, if leave be not granted. There is a question mark hanging over the appointment of other panel members and the position into the future is likewise uncertain from the Commonwealth's perspective. In those circumstances it seems to me to be appropriate to grant leave to appeal. This was, I should say, not opposed by the respondent to the application. 5 The respondent seeks an order that the Commonwealth in effect pay his costs of the appeal beforehand on the basis of his impecuniosity and the public interest nature of the litigation. The researches of counsel were able to reveal no decision of the Federal Court where such an order had been made in advance although a number of decisions in the Court of Appeal of New South Wales were located to that effect. 6 There is force in the submission made by Mr Robinson for the respondent that one reason which may explain the dearth of authorities is the fact that usually these matters do not result in reasons. It seems to me that there is a question as to whether such orders ought to be made by single judges in appeal proceedings and that is a matter which would be more usefully resolved by the Full Court. What I propose to do with the respondent's costs application, therefore, is to leave that matter to the Full Court. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 7 May 2013