FEDERAL COURT OF AUSTRALIA

Chan v Secretary, Department of Health and Ageing [2002] FCA 1578

ARTHUR HON-WAN CHAN  v  THE SECRETARY, THE DEPARTMENT OF HEALTH AND AGEING

V 780 of 2002

RYAN J

16 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The motion on notice dated 16 December 2002 be dismissed.

2.         The respondent pay the applicant’s costs including any reserved costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There are before the Court two motions on notice:  one by the applicant in the present proceedings seeking leave to discontinue the proceeding and an order that the respondent pay the applicant’s costs to be taxed in default of agreement.  The other motion by the respondent, the Secretary to the Department of Health and Ageing, (“the Secretary”), seeks orders as follows:

“(1)     That the application be dismissed;

(2)       That the applicant pay the respondent’s costs;  and

(3)       Such other order as the Court deems appropriate.”

2                     On 23 November 2002 I published reasons for judgment in this application and a related application, V772 of 2002;  Nguyen v The Secretary, Department of Health and Ageing [2002] FCA 1441.  On that day I ordered in the latter application by way of summary judgment: 

“(1)     That the first respondent, the Secretary forthwith cancel the approval of the applicant in Tina Trinh Nguyen, also known as Theresa Phan, pursuant to s 90 of the National Health Act 1963 in respect of the premises situated 27 Hampshire Road, Sunshine; 

(2)       That the respondents pay the applicant's costs of the application, such costs to be taxed in default of agreement.”

3                     I also stayed paragraph 1 of that Order to enable the Secretary and the Minister to consider an application for either an appeal or an application for leave to appeal.

4                     On the same day I ordered in the present application: 

“(1)     That the application herein and the motion of notice dated 14 November 2002 be adjourned to 10.15 am on 2 December 2002;

(2)       That the respondents file and serve by 28 November 2002 any further affidavit or affidavits on which they intend to rely in opposition to the said motion on notice;

(3)       That the costs of all parties of the hearing on 21 November 2002 be reserved.”

5                     On 28 November this year the Health Insurance Commission, on behalf of the respondents, requested submissions from the solicitors for the present applicant on the application of s 90(3AA) of the National Health Act 1953 (“the Act”), as to whether more than one more approval could coexist at one and the same time and in respect of the same premises, and whether Mr Chan had held himself out as holding an approval in respect of the subject premises when no such approval had been granted.  Those submissions were supplied on 29 November and, after further correspondence about the effect of the contract for sale and purchase of the subject business between Ms Nguyen and Mr Chan, the approval was given to Mr Chan with effect from the day immediately following the date when neither Ms Nguyen nor her sister held an approval in respect of the premises.  I interpolate that on the day before that approval was issued the adjourned hearing of the present application and the applicant's motion on notice was further adjourned by consent to a date to be fixed. 

6                     On 9 December a Full Court of this Court heard an appeal from the orders which I had made in Ms Nguyen's application.  On 11 December that appeal was dismissed with costs:  Secretary, Department of Health & Ageing v Nguyen [2002] FCAFC 416.  The present applicant, Mr Chan, had sought leave to be joined as a party to that appeal but that application was refused.  In consequence of the dismissal by the Full Court of the appeal in Nguyen the approval previously granted to Ms Nguyen and her sister in respect of the subject premises was, on 12 December, cancelled with effect from the close of business on that day.  As a result, in accordance with the approval which had been given to Mr Chan on 4 December, his approval took effect on 13 December.  The consequence of that approval having taking effect is that it is common ground that there is no substantive issue remaining to be resolved by the parties to the present application.

7                     The only matter remaining in issue is as to the costs of that application.  It has been contended on behalf of the Secretary and the Minister that the present application was premature and, in the event, unnecessary because it was never indicated to Mr Chan that there was any impediment to his approval other than the question of whether the approval held by Ms Nguyen, and earlier by Ms Nguyen and her sister, was capable of being cancelled immediately upon request.  However, I consider that, in the light of the attitude taken to that issue by the respondents, that was a real impediment which the present applicant had a significant interest in having removed.  His presence as an applicant in proceedings related to those taken by Ms Nguyen was significant in procuring an expeditious resolution of the whole proceedings.  It is my view that, had the urgency attendant on the need for resolution of the matter which resulted from the existence of the contract between Mr Chan and Ms Nguyen not been present, the matter would not have been heard and determined as urgently as it was; certainly, at first instance, when the matter was within my discretion.  Nor, I venture to suggest, would it have been heard and determined as expeditiously by a Full Court.  So in my view it was appropriate for Mr Chan to have instituted and pressed his proceedings to the point where he did.

8                     He has, in the events that have happened, achieved the result which he seeks, but that was achieved over the determined resistance of the respondents.  It was not something that was conceded by them except on a condition which itself depended upon the Secretary and the Minister being unsuccessful before the Full Court.  They were unsuccessful and that circumstance, I consider, brings into operation the general rule that costs should follow the event.  That rule, in my view, is not displaced by the fact that, in the event, a substantive resolution of the matter is no longer required.

9                     Accordingly, I shall order that the respondent pay the applicant’s costs of the application, including any reserved costs, such costs to be taxed in default of agreement.  Of course, that order will  say nothing at all about the costs of the abortive attempt to be joined to the appeal to the Full Court.  I shall order that the application be dismissed, and that will obviate the need for filing a notice of discontinuance.

Associate:

Dated:              16 December 2002