Federal Court of Australia

Director, Professional Services Review v Yoong (No 2) [2025] FCAFC 106

ORDERS

THE COURT ORDERS THAT:

1.    That part of Order 2 of the orders of the Full Court made on 25 July 2025 which set aside Order 2 of the orders made by the Court on 31 October 2023 in proceeding QUD377/2021, be stayed with effect from 25 July 2025 until the date that is 14 days after the later of:

(a)    Friday 22 August 2025 (being the date of expiry of the period for the Respondent to apply to the High Court of Australia for special leave to appeal from the Full Court's judgment in proceeding QUD488/2023); or

(b)    if the Respondent applies to the High Court of Australia for special leave to appeal on or before Friday 22 August 2025:

(i)    if the High Court refuses the application – the date upon which the High Court refuses special leave to appeal; or

(ii)    if the High Court grants the application – the date upon which the High Court pronounces judgment in the appeal for which special leave is granted.

2.    Pursuant to s 94(2)(b) of the Health Insurance Act 1973 (Cth), the Appellant's review of services of the Respondent commenced on 30 April 2019 (being Request to Review No 1305) be suspended until the date that is provided for in Order 1 above.

3.    The Appellant forthwith give the Chief Executive Medicare a copy of these orders together with a copy of the orders made by the Court on 31 October 2023 in proceeding QUD377/2021 and the orders made by the Full Court on 25 July 2025 in proceeding QUD488/2023.

4.    Each party bear their own costs of and incidental to the making of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 25 July 2025, this Court delivered judgment in Director, Professional Services Review v Yoong [2025] FCAFC 95, upholding an appeal against orders of the Court made on 6 and 31 October 2023.

2    The respondent, Dr Matthew Yoong, did not apply for a stay of the Full Court’s orders at the time that judgment was delivered.

3    Subsequently, on 7 August 2025, Dr Yoong filed an interlocutory application seeking, on an urgent basis, an order staying part of the Full Court’s orders with effect (retroactively) from 25 July 2025 and continuing until the date that is 14 days after the later of:

(a)    Friday 22 August 2025 (being the date of expiry of the period for Dr Yoong to apply to the High Court for special leave to appeal from the Full Court's judgment); or

(b)    if Dr Yoong applies to the High Court for special leave to appeal on or before Friday 22 August 2025:

(i)    if the High Court refuses the application, the date upon which the High Court refuses special leave to appeal; or

(ii)    if the High Court grants the application, the date upon which the High Court pronounces judgment in the appeal for which special leave is granted.

4    In the alternative, Dr Yoong sought an order pursuant to r 39.04 of the Federal Court Rules 2011 (Cth) retroactively varying the Full Court’s orders made on 25 July 2025, such that part of the Full Court’s orders would not come into effect until the dates referred to in the preceding paragraph.

5    The two alternative forms of order have the same practical effect, which is to suspend part of the Full Court’s orders until Dr Yoong has exhausted his rights of appeal by special leave to the High Court.

6    In support of the interlocutory application, Dr Yoong filed two affidavits dated 7 and 8 August 2025 made by Dr Yoong’s solicitor, Tom Fletcher of Minter Ellison, and written submissions dated 8 August 2025. The Director also filed written submissions on 8 August 2025.

7    The interlocutory application was heard by the Full Court on an expedited basis on the afternoon of 8 August 2025. During the hearing, Senior Counsel for Dr Yoong acknowledged to the Court that the failure by Dr Yoong to seek a stay of the Full Court’s orders at the time that judgment was delivered was due to the inadvertence of Dr Yoong’s legal representatives.

8    The issues that arose on the application were:

(a)    whether a stay order should be granted;

(b)    whether there is power to make a stay order with retroactive effect from the date of the judgment; and

(c)    if so, whether any stay order should be made with retroactive effect.

9    At the conclusion of the hearing, the Full Court made a retroactive stay order in the form set out in paragraph 3 above, being the first of the alternatives sought by Dr Yoong. The reasons for making that order are as follows.

Relevant background

10    Dr Yoong is a specialist general practitioner who provides professional medical services in respect of which medicare benefits are payable under the Health Insurance Act 1973 (Cth) (HI Act).

11    The Director of the Professional Services Review is appointed under s 83 of the HI Act. The Director has an investigative function under Part VAA of the HI Act, which establishes the Professional Services Review Scheme for reviewing and investigating the provision of services (relevantly, in respect of which a medicare benefit is payable) by a person to determine whether the person has engaged in inappropriate practice.

12    On 15 April 2019, a delegate of the Chief Executive of Medicare made a request under s 86(1) of the HI Act that the Director review the provision of services by Dr Yoong during the period 1 May 2017 to 30 April 2018 for the purpose of considering whether he may have engaged in inappropriate practice. On 30 April 2019, the Director decided to undertake that review pursuant to s 88A of the HI Act.

13    The Director’s review of the provision of services by Dr Yoong has been the subject of ongoing dispute and litigation initiated by Dr Yoong.

14    By originating application filed on 24 July 2019, Dr Yoong applied to the Court to review the decisions of the Chief Executive of Medicare and the Director which initiated the Director’s review of the provision of services by Dr Yoong. That application was dismissed by Rangiah J on 25 June 2021: see Yoong v The Chief Executive of Medicare [2021] FCA 701; 177 ALD 48.

15    On 21 May 2019, the Director gave a notice to produce documents to Dr Yoong pursuant to s 89B(2) of the HI Act (the s 89B Notice). The scope of the s 89B Notice led to further dispute between Dr Yoong and the Director. The Director ultimately formed the view that Dr Yoong had intentionally refused or failed to comply with the s 89B Notice, so that s 106ZPM(1) of the HI Act prevented medicare benefits from being payable in respect of services rendered or initiated by Dr Yoong. On 8 November 2021, the Director gave a notice to that effect to Dr Yoong under s 106ZPM(2) of the HI Act (the s 106ZPM Notice).

16    By originating application filed on 16 November 2021, Dr Yoong commenced a second proceeding against the Director seeking judicial review of the decisions of the Director to give the s 89B Notice and the s 106ZPM Notice to Dr Yoong. In that proceeding, Dr Yoong also sought interlocutory relief under s 15(1) of the Administrative Decisions Judicial Review Act 1976 (Cth) suspending the “operation of the decision of the Director of 8 November 2021 to fully disqualify the Applicant pursuant to s 106ZPM” until the final determination of the proceeding or further order of the Court.

17    On 19 November 2021, Collier J granted the interlocutory relief sought by Dr Yoong, in effect suspending the operation of the s 106ZPM Notice: see Yoong v Director, Professional Services Review [2021] FCA 1445. Her Honour observed in her reasons (at [20]) that the Director’s decision to give the s 106ZPM Notice had the effect that Dr Yoong was taken to be fully disqualified for the purposes of s 19D of the HI Act and that he and his patients had no access to medicare benefits, with the consequence that Dr Yoong could not reasonably and practicably continue to treat patients as a general practitioner. The Director did not oppose the grant of the interlocutory relief sought by Dr Yoong. However, the Director sought, and was granted, an order suspending the review of Dr Yoong’s services until the determination of the proceeding as contemplated by s 94(2) of the HI Act (so as to extend the period in which the review can be conducted under s 94(1) of the HI Act). It should be noted that Dr Yoong did not seek any suspension of the s 89B Notice.

18    On 6 October 2023, the primary judge delivered judgment, granting Dr Yoong’s application for judicial review of the decisions of the Director to give the s 89B Notice and the s 106ZPM Notice to Dr Yoong: Yoong v Director, Professional Services Review [2023] FCA 1186. On 31 October 2023, the primary judge made orders declaring that each of the s 89B Notice and the s 106ZPM Notice was invalid and of no legal force and effect. Those orders brought to an end the interlocutory orders made by Collier J on 19 November 2021. The Director sought, and was granted, an order that continued the suspension of the Director’s review of Dr Yoong’s services, as contemplated by s 94(2) of the HI Act, until 30 November 2023 (to enable the Director to consider an appeal).

19    An appeal against the judgment of the primary judge was filed on 3 November 2023 (being the instant appeal). In the appeal proceeding, the Director sought, and was granted, an order that continued the suspension of the Director’s review of Dr Yoong’s services, as contemplated by s 94(2) of the HI Act, until the final determination of the appeal: see Director, Professional Services Review v Yoong [2023] FCA 1525.

20    On 25 July 2025, this Court delivered its judgment upholding the appeal against the orders of the primary judge made on 6 and 31 October 2023 which, amongst other things, had declared invalid and of no legal force and effect each of the s 89B Notice and the s 106ZPM Notice. By its orders made on 25 July 2025, the Full Court set aside the orders made by the primary judge, effectively confirming the validity and legal force and effect of both the s 89B Notice and the s 106ZPM Notice.

21    As noted above, Dr Yoong did not apply for a stay of the Full Court’s orders at the time that judgment was delivered.

22    Unsurprisingly, on 1 August 2025, the Director notified the Department of Health, Disability and Ageing (the Department) of the Full Court’s judgment. On the same day, the Australian Government Solicitor wrote to Dr Yoong stating that:

(a)    the suspension of the Director’s review into Dr Yoong’s provision of medicare billed services came to an end on 25 July 2025;

(b)    Dr Yoong was a fully disqualified practitioner within the meaning of s 106ZPM(4) of the HI Act and would remain so until he complied with the s 89B Notice;

(c)    a consequence of Dr Yoong’s disqualification is that medicare benefits are not payable to him or his patients for professional services rendered or initiated by him during the disqualification period; and

(d)    the Director had notified the Department of the Full Court’s judgment.

23    On 4 August 2025, the Department wrote to Dr Yoong stating as follows:

As a result of the outcome from the Full Court, you are a fully disqualified practitioner within the meaning of section 106ZPM of the Act, effective from Friday 25 July 2025 until such time that you have complied with the notice to produce documents or give information.

While you are disqualified, section 106ZPM(1) of the Act provides that Medicare benefits are not payable to you or your patients for professional services referred to in the Medicare Benefits Schedule (MBS) that are initiated or rendered by you.

24    The Department’s letter also enclosed directions purportedly given by a delegate of the Minister for Health, Disability and Ageing under s 19D(1) and (1A) of the HI Act in relation to Dr Yoong’s disqualification. In broad terms, the directions stipulated that Dr Yoong must not render or initiate medical services to a patient unless a prescribed notice is first given to the patient. The prescribed notice stated that medicare benefits are not payable for medical services rendered by Dr Yoong whilst he is a disqualified practitioner. The particulars of disqualification set out in the prescribed notice state that Dr Yoong is “[f]ully disqualified” for the period “from 25 July 2025 to date of compliance”.

25    On 7 August 2025, Dr Yoong filed the present interlocutory application seeking, on an urgent basis, an order staying that part of order 2 of the Full Court’s orders made on 25 July 2025 which set aside the order of the primary judge declaring invalid the s 106ZPM Notice. As noted earlier, Dr Yoong sought such a stay order with retroactive effect from 25 July 2025 and continuing until the exhaustion of Dr Yoong’s appeal rights. In the alternative, Dr Yoong sought an order retroactively varying the Full Court’s orders made on 25 July 2025, so that the part of order 2 of the Full Court’s orders made on 25 July 2025 which set aside the order made by the primary judge declaring invalid the s 106ZPM Notice would not come into effect until the exhaustion of Dr Yoong’s appeal rights.

Should a stay be granted?

26    The principles that apply to the grant of a stay pending an application for special leave to appeal to the High Court are stated in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681 (Jennings) at 683-685 (Brennan J). Those principles apply to stay applications made in this Court: see Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82 at [13]-[24] (Beaumont J, with whom Black CJ and Hill J agreed) and National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58 at [4]-[9]. Under those principles:

(a)    The jurisdiction to grant a stay depends on whether a stay is necessary to preserve the subject-matter of the litigation – if an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises: Jennings at 683.

(b)    A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted: Jennings at 684.

(c)    In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of the court’s discretion: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the grant of a stay will cause loss to the respondent (to the application for leave to appeal); and thirdly, where the balance of convenience lies.

27    The Director consented to the grant of a stay of the Full Court’s orders in so far as they relate to the s 106ZPM Notice until Dr Yoong had exhausted his rights of appeal, but did not consent to the retroactive operation of the stay to 25 July 2025.

28    Although the power to order a stay pending an application for special leave to the High Court requires exceptional circumstances, on balance we consider that a stay should be granted in the present case for the following reasons.

29    First, the Director accepted that the appeal could be rendered futile if the orders of the Full Court were not stayed, as the Director would be entitled to continue and complete his review on the basis of decisions which are challenged in the proceeding, and Dr Yoong would remain disqualified during that period.

30    Second, while this Court rejected the arguments advanced by Dr Yoong on the appeal, those arguments were accepted by the primary judge at first instance and are not without substance.

31    Third, the grant of a stay is consistent with the order previously made by Collier J on 19 November 2021 to suspend the operation of the s 106ZPM Notice until the final determination of the proceeding or other order, which preserved the status quo pending the decision by the primary judge.

32    Fourth, the Director acknowledged that any prejudice to the conduct of his review could be ameliorated by an order suspending the Director’s review pursuant to s 94(2)(b) of the HI Act.

33    Fifth, it would be difficult to ameliorate the prejudice to Dr Yoong that would arise if the Full Court’s orders were not to be stayed and an appeal to the High Court were to be successful. If the Full Court’s orders were not stayed in so far as they relate to the s 106ZPM Notice, Dr Yoong would be required in the interim period to elect between:

(a)    failing or refusing to comply with the notice to produce, in which case, under s 106ZPM(4), Dr Yoong would be taken to be fully disqualified for the purpose of s 19D during that interim period and medicare benefits would cease to be payable for professional services rendered or initiated by Dr Yoong during that period (which could not practically be undone in the event of a successful High Court appeal); or

(b)    complying with the notice to produce, in which case the review of Dr Yoong’s professional services would be conducted on the basis of information which is the subject of the appeal (an outcome which, again, could not practically be undone in the event of a successful High Court appeal).

Does the Court have power to make a retroactive stay order?

34    The further question that arises on this application is whether the Court has power to order that the stay takes effect retroactively from the date of judgment (25 July 2025) and, if so, whether the Court should make that order.

35    The Director opposed the making of such an order on the basis that the Court does not have power to antedate orders which would bring about a result different from that prescribed by the express provisions of a statute, citing Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 (Clyne) at 597-598. The Director submitted that, as a result of the Full Court’s orders on 25 July 2025, each of the s 89B Notice and the s 106ZPM Notice were reinstated. The Director further submitted that s 106ZPM(1) has an immediate and “self-executing” effect in accordance with its terms from the date of the Full Court’s orders, together with the “automatic consequences” that follow under s 106ZPM(2) to (4). Accordingly, the Director submitted that the effect of a retroactive stay order would “bring about a result different from that prescribed by the express provisions of a statute”, contrary to the principle stated in Clyne.

36    In our view, the principle stated by the High Court in Clyne is not applicable to the present circumstances. The question that arose in Clyne concerned the power of a court to backdate a sequestration order made under the Bankruptcy Act 1966 (Cth). The High Court concluded that, because the Bankruptcy Act expressly prescribes the date upon which a debtor becomes a bankrupt (either upon the making of a sequestration order or upon the acceptance by the registrar of a debtor’s petition), no court has power to cause a debtor to become a bankrupt on a date earlier than that for which the Bankruptcy Act provides: Clyne at 597 (Gibbs CJ, Murphy, Brennan and Dawson JJ). Put simply, no court has power to amend or override a statutory requirement or to alter the effect of a statutory provision, in the absence of an express power to do so: compare Edelsten v Ward [No 2] (1988) 63 ALJR 346 at 347 (Brennan J).

37    In the present case, however, neither the orders made by the Full Court on 25 July 2025, nor any order staying those orders, would have the effect of amending or overriding the effect of s 106ZPM of the HI Act. Section 106ZPM provides as follows:

106ZPM Failing to produce documents or give information—benefits not payable, disqualification etc.

(1)     If:

(a)     a person under review is required to produce a document or give information by a notice given under subsection 89B(2) or 105A(2); and

(b)     the person intentionally refuses or fails to comply with the requirement within the period specified in the notice;

a medicare benefit or dental benefit is not payable in respect of a service rendered or initiated by the person under review, by a person employed or otherwise engaged by the person under review, or by a person employed or otherwise engaged by a body corporate of which the person under review is an officer, at a time after the end of the period specified in the notice and before the document is produced or the information is given, as the case may be.

(2)    If the Director considers that subsection (1) prevents medicare benefits and dental benefits from being payable in respect of services rendered or initiated by the person under review, the Director must give a notice to that effect to the person.

(3)     The Director must give a copy of a notice under subsection (2) to the Chief Executive Medicare.

(4)     If:

(a)     subsection (1) prevents medicare benefits and dental benefits from being payable in respect of services rendered or initiated by the person under review at a time; and

(b)     the Director gave a notice under subsection (2) to the person before that time;

    the person is taken to be:

(c)     fully disqualified at that time for the purposes of section 19D; and

(d)     a disqualified practitioner for the purposes of sections 20B to 20E of the Dental Benefits Act 2008.

38    It can be seen that the operative provisions of s 106ZPM depend upon the satisfaction of the two conditions stated in s 106ZPM(1):

(a)    a person under review is required to produce a document or give information by a notice given under ss 89B(2) or 105A(2); and

(b)    the person intentionally refuses or fails to comply with the requirement within the period specified in the notice.

39    If those conditions are satisfied, s 106ZPM(1) stipulates that medicare benefits are not payable in respect of services rendered or initiated by the person; s 106ZPM(2) stipulates that the Director must give a notice to the person if the Director considers (in effect) that the conditions in s 106ZPM(1) are satisfied; and s 106ZPM(4) stipulates that the person is taken to be disqualified for the purposes of s 19D if (in effect) the conditions in s 106ZPM(1) are satisfied and the Director has given a notice under s 106ZPM(2).

40    Thus, the operation of s 106ZPM depends (relevantly) upon a person under review being required to produce a document or give information by a notice given under s 89B(2), and intentionally refusing or failing to comply with such a requirement. If a person is not required to produce documents or give information because a notice given under s 89B is invalid, s 106ZPM has no effect.

41    In the present case, the operation of s 106ZPM has been suspended since 19 November 2021 by the operation of the following orders of the Court:

(a)    first, by orders made on 19 November 2021, Collier J suspended the operation of the decision to disqualify Dr Yoong pursuant to s 106ZPM until the final determination of the proceeding at first instance;

(b)    second, by orders made on 31 October 2023, the primary judge declared invalid the s 89B Notice and (consequentially) the s 106ZPM Notice.

42    The orders made by the primary judge on 31 October 2023 did not offend the principle stated in Clyne. Those orders declared invalid the notices given under s 89B and s 106ZPM(2) with the consequence that the condition stated in s 106ZPM(1)(a) was not fulfilled and neither of the conditions stated in s 106ZPM(4)(a) and (b) were met. In such circumstances, s 106ZPM did not operate.

43    The effect of the Full Court’s orders on 25 July 2025 was to reinstate the s 89B Notice with the consequence that the condition stated in s 106ZPM(1)(a) was fulfilled. Those orders also reinstated the s 106ZPM Notice, with the consequence that the condition stated in s 106ZPM(4)(b) was met. If the Full Court had stayed the operation of its orders on 25 July 2025, it could not be suggested that the grant of the stay would offend the principle in Clyne. The stay order would simply maintain the status quo by which the s 89B Notice and the s 106ZPM Notice had been declared invalid by the orders of the primary judge.

44    It logically follows, in our view, that an order which retroactively stays the Full Court’s orders, in so far as they set aside the order declaring invalid the s 106ZPM Notice, would not offend the principle in Clyne. Such an order does not amend or override s 106ZPM. The stay order is directed to the effect of the s 106ZPM Notice, the giving of which is a condition for the operation of s 106ZPM(4) and, in turn, s 19D of the HI Act. While we note that Dr Yoong has not sought a stay of the Full Court’s order setting aside the declaration that the s 89B Notice is invalid, this does not materially alter the analysis set out above. The stay sought by Dr Yoong is directed to the consequences of his ongoing refusal or failure to comply with the s 89B Notice by reason of the s 106ZPM Notice given by the Director.

45    For those reasons, we do not accept the Director’s submission that the Court lacks power to stay its orders retroactively from 25 July 2025. The question is whether the Court should exercise that power in the circumstances of this case.

Should the Court make a retroactive stay order?

46    Prior to 2011, Order 35, r 3 of the Federal Court Rules provided as follows:

A judgment or order shall take effect on the date on which it is pronounced or made, unless the Court orders that it take effect at an earlier or later date.

47    The equivalent rule in the Federal Court Rules 2011 (Cth), r 39.01, now states:

A judgment or an order takes effect on the date on which the judgment is pronounced or the order is made.

48    Although r 39.01 does not expressly refer to the possibility of the Court ordering that a judgment or order takes effect from an earlier date, the explanatory summary of the Federal Court Rules 2011 (Cth) did not suggest that this reflected any intention to alter the pre-existing rules of practice and procedure in that regard. Rule 1.32 provides that the Court may make any order that the Court considers appropriate in the interest of justice, and r 1.34 provides that the Court may dispense with compliance with any of the rules.

49    Part 40, rr 3 and 5 of the Supreme Court Rules 1970 (NSW), which were to the same effect as O 35, r 3 of the previous Federal Court Rules, were considered by Young CJ in Equity in Mckensey v Hewitt (2004) 61 NSWLR 54. His Honour observed that the rules had been interpreted as authorising the court to antedate a judgment only on some good ground, that is, where there is something exceptional in the facts. His Honour referred to:

(a)    Belgian Grain and Produce Co Ltd v Cox & Co (France) Ltd [1919] WN (Eng) 317, in which the English Court of Appeal stated that the provision must be used with great caution and that something exceptional must be shown before a judgment is antedated;

(b)    Re Keystone Knitting Mills’ Trade mark [1929] 1 Ch 92 at 98 where Clauson J said:

The principle upon which the Court has always proceeded is that in a case where justice requires it, the Court will treat itself as making its order as at the date at which it is necessary to treat it as made in order to do justice.

(c)    GIO of NSW v Healey (No 2) (1991) 22 NSWLR 380 at 387 where Kirby P said that the rule allows the court to do what is just in a particular case where the usual position would produce unfairness.

50    In the present case, it is highly relevant that the order to be backdated is an interlocutory order concerning a matter of practice and procedure, being an order to stay the operation of the principal orders made. The order to be backdated is not an order determining substantive legal rights. It is also highly relevant that Dr Yoong has applied, in the alternative, for an order varying the Full Court’s orders such that the Full Court’s orders would not come into effect until the exhaustion of Dr Yoong’s appeal rights. As noted earlier, the alternative forms of order have the same practical effect.

51    In Emanuele v Australian Securities Commission (1997) 188 CLR 114 (Emanuele), the High Court confirmed that an order nunc pro tunc (now for then) can be made to cure a procedural defect or irregularity where it is in the interests of justice to do so: at 125 (Dawson J), 130-131 (Toohey J), and 156 (Kirby J). In Emanuele, Kirby J drew a parallel with the power of the Federal Court to correct obvious slips in appropriate cases by orders nunc pro tunc to avoid injustice, citing Elyard Corporation Pty Ltd v DDB Needham Sydney-Pty Ltd (1995) 61 FCR 385 (Elyard) at 391-392. As the Full Court stated in Elyard, where a later order under the slip rule corrects an earlier order, the correcting order speaks from the date of the corrected order so that the earlier order is deemed or treated as having always operated as corrected: at 391 (Lockhart J) and 400 (Lindgren J).

52    If Dr Yoong had sought a stay of the Full Court’s orders when judgment was delivered on 25 July 2025, the Full Court would have granted the stay for the reasons given earlier. At the hearing of the later application for a stay, counsel for Dr Yoong acknowledged that the failure to seek a stay at the time that judgment was delivered was due to the inadvertence of Dr Yoong’s legal representatives. Those circumstances enliven the Court’s power to vary its earlier orders under the slip rule. As the Full Court observed in Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 (at [26], emphasis added):

The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-5) by ensuring that the court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357. It may be exercised to prevent unintended consequences of the order and in this way give effect to the court’s intentions: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411 (“Newmont Yandal”) at [116], [185], [194]. It is not confined to errors or omissions of the court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 (“Shaddock”) at 594-5.

53    The period between the Full Court’s judgment (25 July 2025) and the hearing of the application for a stay of the Full Court’s orders (8 August 2025) was relatively short. There was no evidence before the Court indicating that the public interest, or the interests of any individual, would be harmed by the Court staying its orders with effect from 25 July 2025. The Director did not seek to be heard on the question whether the Court should exercise the discretion to grant a stay with effect from that date.

54    Having regard to all relevant circumstances, we are satisfied that it is appropriate for the Court to stay the orders made on 25 July 2025, in so far as they set aside the orders of the primary judge concerning the s 106ZPM Notice, and to do so with effect from that date. That result could be achieved by either form of the orders proposed by Dr Yoong. At the hearing on 8 August 2025, we decided to make orders in the form of Dr Yoong’s first proposed alternative.

55    We note for completeness that an order was also made (by consent) suspending the Director’s review of the services of Dr Yoong for the same period as the stay. That order, which is expressly provided for by s 94(2)(b) of the HI Act, enables the Director to extend the period of the review beyond the statutory period of 12 months.

56    The Director did not seek any costs order in respect of Dr Yoong’s application for a stay, and both parties agreed to an order that each party bear their own costs of and incidental to the stay application.

Associate:

Dated:    15 August 2025