FEDERAL COURT OF AUSTRALIA
Services Review  FCA 1016
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The applicant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This proceeding is a sequel to an earlier proceeding which is reported as National Home Doctor Service Pty Ltd v Director of Professional Services Review  FCA 386 (First NHDS Judgment), which was published on 24 March 2020. In the First NHDS Judgment, the Court set aside the Director’s decision to establish a professional services review committee (PSR Committee) and to refer the applicant (NHDS) to the PSR Committee for investigation into whether NHDS had engaged in inappropriate practice (the Referral). Both these steps were taken by the Director after she had decided on 24 July 2018 to undertake a review under s 88A of the Health Insurance Act 1973 (Cth) (HI Act).
2 On 2 April 2020 (i.e. after the First NHDS Judgment was published), the Director notified NHDS that she was “now resuming my review under section 88A of the Act”.
3 In brief, in the present proceeding NHDS seeks to argue that, on its proper construction, s 94 of the HI Act prevented the Director from resuming the review because more than 12 months had lapsed since the Director made her initial s 88A decision on 24 July 2018. NHDS seeks declaratory relief that, given the fact that more than 12 months had lapsed since 24 July 2018, s 94 of the HI Act operates such that the Director is taken to have made a decision to take no further action in relation to the review. Injunctive relief is sought to prevent the Director from continuing to undertake the review.
4 There is a threshold issue whether NHDS is prevented by principles of Anshun estoppel or abuse of process from raising the present challenge to the Director’s conduct. Significantly, NHDS did not seek nor obtain any relief in the First NHDS Judgment concerning the operation of s 94 of the HI Act. The issue, however, was touched upon as the transcript reveals (see further at  below).
5 For the reasons that follow, the originating application will be dismissed, with costs.
Key aspects of legislative regime summarised
6 The key relevant aspects of the legislative regime were summarised in the First NHDS Judgment at -. They need not be described at any length here. It is sufficient to focus on the primary legislative provisions which are relevant to the current proceeding.
7 As noted, on 24 July 2018 the Director decided under s 88A to undertake a review of the provision of services by NHDS, after being requested by the Chief Executive Medicare on 28 June 2018 to do so. Section 88A provided:
88A Director must decide whether to review
(1) If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Director must, within 1 month after receiving the request, decide whether or not to undertake the review.
(2) The Director must decide to undertake the review if, after considering the request and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person has engaged in inappropriate practice in providing services during the review period.
(3) If the Director does not make a decision under subsection (1) within the period of 1 month specified in that subsection, the Director is taken to have decided, at the end of that period, to undertake the review.
(4) The Director must give written notice of the decision to:
(a) the person; and
(b) the Chief Executive Medicare.
(5) The notice must be given within 7 days after the decision is made but failure to give the notice within that time does not affect the validity of the decision.
(6) If the Director decides to undertake the review, the notice given to the person under review under paragraph (4)(a) must set out the terms of section 89B.
(7) Failure to comply with subsection (6) does not affect the validity of the decision.
(8) If the Director decides not to undertake the review, the notice given to the Chief Executive Medicare under paragraph (4)(b) must include the grounds for the decision.
8 Following such a review under s 88A, the Director has two options:
(a) to decide to take no further action; or
(b) to give to the person the subject of the review a written report setting out the reasons why the Director has not made a decision to take no further action, and invite the person to make written submissions (see s 89C).
9 NHDS was provided with a report dated 3 April 2019 by the Director, which detailed the reasons why she had not made a decision to take no further action against NHDS.
10 If the person under review makes written submissions under s 89C, the Director has two further options:
(a) to decide to take no further action pursuant to s 91; or
(b) refer the person under review to a Committee pursuant to s 93 (s 89C(2)).
11 The Director decided in this case to refer NHDS to the PSR Committee which, as noted, gave rise to the challenges in the First NHDS Judgment. It may be interpolated here that, by an order dated 1 October 2019 in the previous proceeding, the members of the PSR Committee were restrained from further considering the Referral until the finalisation of those earlier proceedings or further order of the Court.
12 As has been emphasised, s 94 of the HI Act is of central significance. It provided:
94 Director taken to have made a decision after 12 months
(a) the Director decides to review the provision of services by a person; and
(b) before the end of the period of 12 months after making the decision, the Director has not:
(i) made a decision under section 91 to take no further action in relation to the review; or
(ii) entered into an agreement with the person under section 92 (whether or not the agreement has been ratified by the Determining Authority); or
(iii) referred the provision of one or more of the services to a Committee;
then, the Director is taken to have made a decision at the end of that period to take no further action in relation to the review.
Note: Sections 92A and 106R set out time limits for the ratification of agreements made under section 92.
(2) If the review is suspended:
(a) under paragraph 89A(2)(b); or
(b) because of an injunction or other court order;
the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period of the suspension.
(3) If a notice is given under subsection 89B(2) to the person under review, or to another person, and the person concerned fails to comply with a requirement of the notice, the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period during which the person fails to comply with the requirement.
(4) This section does not apply in relation to a review undertaken because of section 89.
13 It is desirable to set out s 89:
89 When Director must review
(a) the Chief Executive Medicare makes a request (the current request) to the Director to review the provision of services by a person; and
(b) the Director decided not to undertake a review in relation to the most recent previous request made by the Chief Executive Medicare in relation to the person;
the Director must undertake a review in relation to the current request, and subsections 88A(4) to (6) and section 88B apply as if the Director had decided to undertake the review.
14 Section 89A(2)(b) provided:
89A Director may refer material to Chief Executive Medicare if certain offences or civil contraventions are suspected
(2) If the Director has acted under subsection (1), he or she may:
(b) suspend the review for such period as he or she thinks appropriate.
15 Section 89B provided for the Director to require the person under review or other specified persons to produce documents or give information relevant to the review.
16 In view of the fact that NHDS placed particular emphasis on s 89C as supporting its preferred construction of s 94 (see  ff below), it is desirable to set out that provision:
89C Director’s action following review
(1) Following a review of the provision of services by a person, the Director must either:
(a) make a decision under section 91 to take no further action in relation to the review; or
(b) give the person under review:
(i) a written report setting out the reasons why the Director has not made a decision under section 91; and
(ii) an invitation to make written submissions to the Director, within 1 month, about the action the Director should take in relation to the review.
(2) If the Director gives the person under review a report and invitation under paragraph (1)(b), the Director must, as soon as practicable after taking into account any submissions made as mentioned in subparagraph (1)(b)(ii):
(a) decide to take no further action in relation to the review in accordance with section 91; or
(b) enter into an agreement with the person under review under section 92; or
(c) make a referral to a Committee under section 93.
17 The Director contends that NHDS cannot now challenge the validity of the resumed review based upon the operation of s 94 because NHDS could, and should reasonably have, raised that issue in the proceeding which resulted in the First NHDS Judgment. The Director contends that NHDS is prevented by both Anshun estoppel and abuse of process from now raising that matter. Moreover, the Director contends that NHDS’s case must fail because its preferred construction of s 94(1) of the HI Act is not supported by text, context or purpose. The Director says the NHDS’s preferred construction was rejected by the Court in the First NHDS Judgment at -. Those paragraphs are as follows:
188. The Director asked to be heard on the terms of any final orders in the event that any of the grounds of review were upheld. This concern appeared to relate to the possible effect of s 94 of the HI Act if the s 93 referral decision was set aside. There was a brief discussion at the end of the hearing regarding the relevance of Jagot J’s decision in Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)  FCA 234 in respect of the effect of a similarly worded provision in s 500(6L) of the Migration Act 1958 (Cth). Her Honour referred inter alia to the Full Court’s decisions in Somba v Minister for Home Affairs  FCAFC 150 and Khalil v Minister for Home Affairs  FCAFC 151 in relation to that provision.
189. Consistently with those authorities I consider that, even though the Court will quash the Director’s decision dated 23 July 2019 to set up, and refer to, Committee No 1228 the matters set out in Item 2 of the referral, it is nevertheless a decision for the purposes of s 94 of the HI Act with the consequence that this section has no application.
18 The extent to which the proper construction and application of s 94 of the HI Act was raised by the parties at the hearing of the previous proceeding is reflected in the following extracts from the transcript, commencing with what was said by Mr Kirk SC on behalf of NHDS and then what was said by Mr Kennett SC on behalf of the Director [(T 112-113 and 166-167)]. These exchanges occurred after the Court raised with Mr Kirk SC whether or not the request for a review “springs back” in the event that the Referral was set aside [T 110, L 41]:
MR KIRK: …Can I take your Honour to section 94, and this, in a sense, cuts a bit each way, but it’s relevant for your Honour, perhaps, to take account of it.
HIS HONOUR: Yes.
MR KIRK: In this case, the director referred off to the committee on the 364th day. She chose to do it at the very last minute. Your Honour may not need to decide this, but I thought I should be – we thought we should be frank in indicating what our position is. If this matter goes back it can no longer be referred because of section 94. Now, your Honour should also note section 94(2) – sub (2). The Parliament deals with this kind of issue specifically by saying:
If the review is suspended under ... 89A(2)(b) –
which I think relates to a – yes. 89A(2)(b) relates to referring things off if there are – if there’s the potential for offences or civil contraventions, and if the director does that – in other words, if something much more serious is raised, she can suspend the review whilst that is dealt with, on the principle, no doubt, that you deal with the more serious things first and then come back to the less serious things later. Or, to go back to 94, sub (2):
If the review is suspended ... because of an injunction or other court order -
so if the director had been more prompt in making her decision to refer and we commenced proceedings within the 28 days allowed by the AD(JR) Act, the first thing the director would have done is, in a sense, raised the issue at least of an injunction such that she could then suspend the review under 94(2), and something somewhat similar, in fact, happened before your Honour at the first case management hearing, because the Parliament has been very careful in dealing – in recognising and then dealing with the fact that judicial review may be brought at various places. So, for example, if your Honour turns to 106G, which is - - -
HIS HONOUR: But just before we go on here, I mean, this is – this is not – I don't – I think I know where you’re heading, but and it may well be you're going to take me to some case law, but this is not an unusual provision, and there will be an issue as to whether 94 operates with the guillotine that I think you’re going to suggest that it operates, depending upon what the effect of any decision I might make on the notion of decision.
MR KIRK: Yes. Well, I’m not currently planning to take your Honour to cases because, to be frank, I’m not sure in the end whether this is truly before your Honour or not. It may be said to be premature, but it is part – but then, on the other hand, it may be before your Honour because it feeds into this jurisdictional fact issue.
HIS HONOUR: Now, you're using this to encourage me to get into the jurisdictional fact.
MR KIRK: Yes, although the irony, I also recognise, of my submission to that effect is that if I’m right about the guillotine it cannot – in a sense, wouldn't matter because it cannot be determined – redetermined, anyway. It's just game over. That being said, if we’re right about employment, it’s game over for the whole issue.
HIS HONOUR: You see, I’m just not sure of that, because I think that at the moment – I will hear what Mr Kennett has to say, but I think that your submission that if it goes back it can’t be referred again may be predicated on a view of the proper construction and operation of section 94 which may not withstand scrutiny.
MR KIRK: And I recognise it hasn’t been raised in the written submissions. In a sense, it has come up in light of discussions yesterday afternoon and again this morning, and so we have not sought to address it in detail, but I, to be frank, felt obliged to draw it to your Honour’s attention - -
HIS HONOUR: Yes. Thank you.
MR KIRK: - - - so it was not going to be suggested later that we’ve acted in some sharp manner or suchlike by saying, “Well, this is going to be our construction of the section.”
HIS HONOUR: Yes.
MR KIRK: So I just wanted to raise it. As I said, I’m not sure in the end it’s truly before your Honour, but I felt obliged to be frank about it.
HIS HONOUR: Yes.
MR KENNETT: I was going to say something about section 94, even if my learned friend didn’t. There may well be, at some stage, a contest between us about what work section 94 does, in the event that the director’s decision is set aside.
HIS HONOUR: When you say he didn’t say anything about it, he did: he drew it to my attention, but he didn’t go in hard on it.
MR KENNETT: Yes, yes.
HIS HONOUR: He said he was discharging, effectively, an obligation to be candid with the court.
MR KENNETT: Yes, yes. No. What I intended to say was, even had he not done that, I was going to say something about it.
HIS HONOUR: Right. Okay. I beg your pardon. Thank you.
MR KENNETT: I wasn’t being clear.
HIS HONOUR: Thank you.
MR KENNETT: It is something that your Honour will need, I think, to be – or should appropriately be aware of. If the director’s decision is set aside, then there will be probably an argument between us, in some form or other, as to whether everything’s now finished or whether there’s still a decision to be made. There was – I was told at lunch time a judgment handed down last week, by Jagot J, Ikupu, I-ku- p-u,  FCA 234 that dealt with a very similar provision in the Migration Act, section - - -
HIS HONOUR: Yes. No, it's come up – I didn't have that case in mind, but this concept’s come up. Does her Honour – I’m not familiar with the case, but does her Honour resolve the issue by reference to the effect of a judicial review remedy, quashing a decision, having an impact on the operation of terms like “decides?”
MR KENNETT: I’ve only barely skimmed it, your Honour, but my understanding is that she does look at whether a decision was actually made, rather – decision in fact – rather than a determinative decision. Now, I just wanted to – I didn’t want to take this very far because I don’t think it is a live issue yet, but I just wanted to say two things. One is that if the – if the director’s decision is set aside for any reason, then the position that our learned friend takes or foreshadows as to section 94 would indicate a lack of utility in the declaration. Because if his foreshadowed position is right, then there’s no question of this case going anywhere, and the other thing I wanted to say was that, if your Honour is minded to set aside the director’s decisions, we would be grateful for an opportunity to address you as to what are the appropriate orders, and that might be a point at which we do need to bite the bullet about section 94. I have in mind, for example, whether there should be a remitter under the ADJR Act. That’s all I wanted to say.
19 To avoid adding unnecessarily to the length of these reasons for judgment, I will not separately summarise the parties’ respective submissions. Rather, I will address those submissions, where relevant, in explaining why the originating application will be dismissed.
Consideration and determination
20 It is convenient to outline the relevant principles concerning Anshun estoppel and abuse of process before turning to the matter of the proper construction of s 94(1).
(a) Anshun estoppel
21 The primary elements of Anshun estoppel were described by the plurality (Gibbs CJ, Mason and Aickin JJ) in Port of Melbourne Authority v Anshun Pty Ltd  HCA 45; 147 CLR 589 at 602-603:
… we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
22 The Full Court stated in Wong v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 242; 146 FCR 10 at  that Anshun estoppel applies in judicial review proceedings.
23 In Tomlinson v Ramsey Food Processing Pty Ltd  HCA 28; 256 CLR 507, French CJ, Bell, Gageler and Keane JJ said at  regarding Anshun estoppel (footnotes omitted):
… Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
24 Although there is an overlap in the doctrines of estoppel and abuse of process, the High Court has identified some differences between the two doctrines (see further below). In Tomlinson the plurality said at  that abuse of process may be invoked in areas in which estoppels also apply, but the doctrine of abuse of process “is inherently broader and more flexible that estoppel”. The plurality added at  that although the categories of abuse of process are not closed, “abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.”
25 I accept the applicant’s submission that the appropriate question in determining whether or not Anshun estoppel applies is not whether it would have been reasonable to take the course of relying on a particular defence or cause of action, but rather is whether it was unreasonable to defer reliance upon the defence or cause of action (see Gibbs v Kinna  VSCA 52;  2 VR 19 at  per Ormiston JA and at  per Kenny JA).
26 Thus the question here is whether it was unreasonable for NHDS not to have raised the s 94 issue in the First NHDS Judgment. The Director contends that it was unreasonable having regard to the following matters:
(a) the approach taken by NHDS creates a risk of there being inconsistent judgments on the s 94 issues and it is seeking to relitigate a point which has already been disposed of in the prior proceeding (referring to - of the First NHDS Judgment);
(b) NHDS’s conduct has increased costs because the issue of the proper construction of s 94 could have readily and cost-effectively been addressed in the previous proceeding;
(c) the s 94 issue was sufficiently important for NHDS’s Senior Counsel to have felt it necessary to draw it to the Court’s attention (referring to NHDS’s closing oral submissions at T 112, L 22-25); and
(d) it could not be said that the Court would not have been disposed to hearing the argument regarding s 94 if it had been properly raised.
27 For the following reasons, I do not accept those submissions:
(a) As to the risk of inconsistent judgments, I do not consider that there is any such risk. No orders concerning s 94 were made by the Court in the First NHDS Judgment and the Court’s observations and findings at  to  are properly characterised as obiter.
(b) I am not persuaded that it would have been cost-effective for NHDS to have formally and fully raised the s 94 issue in the prior proceeding in circumstances where, at the time of the hearing, various outcomes were possible, including the possibility that NHDS might succeed on its jurisdictional fact grounds, in which event the Director may have been unable to resume the review irrespective of the proper construction and application of s 94.
(c) When regard is had to the transcript of the previous proceeding, it is evident that Senior Counsel for NHDS felt obliged to refer to s 94 in circumstances where, as mentioned above, the Court itself had raised the question whether, if the referral was set aside, the request by the Chief Executive Medicare “springs back”.
(d) I consider that the issue whether or not the Court would have been disposed to hear detailed argument regarding s 94 if it had been properly raised invites speculation and overlooks the fact that although in closing oral address the Director drew the Court’s attention to Jagot J’s decision in Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)  FCA 234, the Director’s Senior Counsel there said that the Director “didn’t want to take this very far because I don’t think it is a live issue yet”.
28 The following additional matters indicate that it was not unreasonable for NHDS to act as it has:
(a) The s 94 issue raised new and complex questions of law which would only become relevant in some outcomes in the litigation.
(b) It was possible that there could be some utility in the parties discussing and seeking to resolve any disputes between them after the First NHDS Judgment including, for example, whether or not NHDS was an employer of relevant practitioners.
29 For these reasons, I reject the Director’s claims regarding Anshun estoppel.
(b) Abuse of process
30 The general principles concerning abuse of process were recently summarised by Robertson and Griffiths JJ in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People  FCAFC 177 at  to  (with a particular focus upon a claim of abuse of process arising from the making of inconsistent judicial determinations).
31 First, the Court has an inherent jurisdiction to make appropriate orders on the basis of abuse of process in various circumstances including a case where, notwithstanding that the circumstances do not give rise to an estoppel, the continuance of proceedings would be “unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings” (Walton v Gardiner  HCA 77; 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ).
32 Secondly, the Court’s inherent power may operate to prevent misuse of a Court’s procedures, even if the procedure is not inconsistent with the literal application of the Court’s procedural rules, but nevertheless would “be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people” (Walton at 393).
33 Thirdly, the doctrine of abuse of process is not limited to fixed classes but the doctrine normally falls into one of the following three categories:
(a) the Court’s procedures are invoked for an illegitimate purpose;
(b) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or
(c) the use of the Court’s procedures would bring the administration of justice into disrepute (AVN20 v Federal Circuit Court of Australia  FCA 584 at  citing Rogers v The Queen  HCA 42; 181 CLR 251 at 286 per McHugh J).
34 Fourthly, in Aon Risk Services Australia Ltd v Australian National University  HCA 27; 239 CLR 175, French CJ said at  (footnotes omitted):
… Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. Reichel v Magrath is a long standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied upon in Walton v Gardiner and Rogers v The Queen. …
35 Fifthly, as the plurality (Kiefel CJ, Bell and Keane JJ) stated in UBS AG v Tyne as Trustee of the Argot Trust  HCA 45; 265 CLR 77 at  whether particular forensic conduct by a party rises to the level of an abuse of process is a determination that requires “consideration of all the circumstances”, which involves (citing Lord Bingham in Johnson v Gore Wood & Co  2 AC 1 at 31):
… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.
36 Sixthly, it is appropriate to set out Fortescue at  per Robertson and Griffiths JJ:
Whether or not the relitigation of an issue rises to the level of an abuse of process requires a consideration of all the circumstances when viewed against two primary concepts, being the principle of finality of judicial determination and the second being public confidence in the administration of justice. Regard may need also to be given to oppression and unfairness to the other parties in the litigation. Ultimately, the Court must assess and evaluate whether the relevant conduct which is said to constitute an abuse of process brings the administration of justice into disrepute in the eyes of “right-thinking people”, which is largely an evaluative exercise. As French J stated in Spalla at :
The breadth of abuse of process protection against attempted relitigation was considered in Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393):
... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
Their Honours cited Reichel v Magrath and Connelly v Director of Public Prosecutions  AC 1254 at 1361-1362. They also adopted and approved the description of the relevant jurisdiction of superior courts given by Lord Diplock in Hunter v Chief Constable of the West Midland Police  AC 529 (at 536):
... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
The category of ‘right-thinking people’ is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative.
37 I do not consider that the present proceeding is unjustifiably oppressive to the Director or that it brings the administration of justice into disrepute. As explained above, I am not persuaded that it would have been more cost-effective to have raised fully the s 94 issue in the previous proceeding given the uncertain potential outcomes of that proceeding. In addition, as is evident from the extracts from the transcript of the previous proceeding set out above, the Court had only limited assistance from the parties regarding the proper construction and application of s 94. It is difficult to see how the administration of justice is brought into disrepute if the Court now has the benefit of comprehensive contentions from the parties on that matter. Finally, for the reasons set out at [27(a)] above, there is no risk of inconsistent judgment in circumstances where the Court’s observations at  to  in the First NHDS Judgment regarding s 94 were plainly obiter and were not the subject of any order made by the Court in those proceedings.
38 For these reasons, I reject the Director’s claim that the present proceeding is an abuse of process.
(c) Proper construction of s 94
39 For the following reasons, and having now had the benefit of detailed submissions from both parties on the proper construction of s 94, I reject NHDS’s preferred construction, which is to the effect that a referral for the purposes of the term “referred” in s 94(1)(b)(iii) is to be construed as meaning a referral which is legally valid and not simply to a referral which has been made as a matter of fact (which is the construction advanced by the Director).
40 Unsurprisingly the parties were agreed that the proper construction of s 94 fell to be determined with reference to now well established principles of statutory construction which require consideration to be given to text, context and purpose.
41 There is nothing in the express text in s 94(1)(b) which suggests that a referral for the purposes of that provision must be one which is valid in law, rather than a referral which has been made in actual fact, even if it is subsequently set aside on judicial review. As the Director pointed out, it is well-established that statutes do not invariably speak only to valid conduct (see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection  HCA 16; 264 CLR 217 at - per Gageler, Keane and Nettle JJ).
42 Secondly, it is significant that the subject of s 94(1)(b)(iii) is the taking of an actual step, namely the referral of the provision of services to a Committee. Contrary to NHDS’s submission, I do not consider that much assistance is gained from the definition of “referral” in s 81. The term is defined there as meaning “a referral to a Committee under section 93”. Section 93 deals with referrals to Committees. It provides that a referral involves setting up a Committee and making a referral to a Committee to investigate specified services. NHDS submitted that without the existence of a valid referral which establishes a Committee, there can be no “referral” as defined by s 81. There are at least two difficulties with that submission. The first is that a valid referral of itself does not establish a Committee. Rather, a Committee is a body which is set up by the Director under s 93(1) and to which the Director is empowered to make a referral under that provision. Thus a referral does not establish a Committee; instead a Committee is established by the Director exercising his or her power under s 93(1). Secondly, the submission simply begs the central question as to whether a “referral” means a referral which has been made as a matter of fact, as opposed to a referral which has been made in fact and is also valid in law.
43 Moreover, merely because a referral must be “to” a Committee, as specified in both ss 93(1) and 94(1)(b)(iii), does not assist NHDS’s construction. It simply indicates that there must actually be a decision in fact to refer the review of the provision of services to a Committee.
44 The statutory predecessor of s 94 is s 93C of the HI Act, which was inserted by the Health Insurance Amendment (Professional Review) Act 1999 (Cth). In the second reading speech to the 1999 Bill, the Minister made the following general observations regarding the amendments:
The changes contained in this bill have come in the wake of criticism of some aspects from the Federal Court. A review was undertaken by a committee chaired by the Australian Medical Association. The review confirmed the profession’s and the government’s continued support for a peer review based scheme. The amendments to the Act will enhance the administration of the scheme to ensure that the process is fairer and more transparent…
45 NHDS submitted that the concerns underlying the insertion of time limits in the scheme appeared to relate to delays by the Director, as opposed to any delays created by persons under review. So much may be accepted. The legislation included several provisions which impose time limits within which particular steps had to be taken with the evident purpose of avoiding unreasonable delay. Thus, for example:
(a) if the Chief Executive Medicare requests the Director to review the provision of services during the period specified in the request, the period must fall within the 2 year period immediately preceding that request (s 86(2));
(b) where the Director has received a request from the Chief Executive Medicare to review the provision of services, the Director must within 1 month after receiving the request decide whether or not to undertake the review (s 88A(1)), and if no such decision is made within that period, the Director is taken to have decided, at the end of that 1 month period, to undertake the review (s 88A(3));
(c) following a review, the Director must either make a decision under s 91 to take no further action in relation to the review or, alternatively, provide the person under review with a written report which sets out the Director’s reasons why a decision to take no further action has been taken and the person under review has 1 month to make written submissions to the Director as to the action which the Director should now take (s 89C(1)). Where such submissions are received, the Director must, as soon as practicable thereafter, decide which of the three options specified in s 89C(2) will be taken (s 89C(2));
(d) if the Director decides under s 91 to take no further action in relation to a review, written notice of that decision and a written report setting out the grounds for the decision must be given by the Director to the Chief Executive Medicare and the person under review within 7 days of that decision being made (s 91(2)); and
(e) time limits are also imposed upon other relevant decision-makers under the legislative scheme, including a duty on the Committee to whom a referral has been made to give a final report to the Determining Authority generally within 6 months after the day on which the referral was received from the Director, subject to some express exceptions (s 106G(2)).
46 It may be accepted that the primary purpose of such provisions is to encourage decision-makers, including the Director, to avoid unreasonable or unnecessary delays. The extent to which that purpose provides meaningful assistance in resolving the issue of statutory construction here may be somewhat limited. That is because, as pointed out by Mr Kennett SC (who appeared for the Director together with Mr Hume), the issue remains one of determining the extent to which the evident legislative purpose has been implemented with reference to the text. As Gleeson CJ observed in Carr v State of Western Australia  HCA 47; 232 CLR 138 at , a purposive approach may be of little assistance where a statutory provision strikes a balance between competing interests and there is uncertainty as to how far the statutory provisions go in seeking to achieve the underlying purpose.
47 Separately from that consideration, with specific reference to the proper construction of s 94 of the HI Act, there is nothing in the second reading speech or any other relevant extrinsic materials which indicates that the Parliament had in mind that referrals had to be legally valid, as opposed to simply having been made as a matter of fact.
48 Fourthly, contrary to NHDS’s submission, I do not consider that the task of construction is assisted by contrasting the use of the word “decision” in s 94(1)(b)(i) and the word “referred” in s 94(1)(b)(iii). The former usage appears to refer to a decision in fact, but that does not mean that the latter usage refers to a legally valid referral. Moreover, as the Director pointed out, in circumstances where there are three different steps identified in s 94(1)(b), any one of which has the effect of engaging the operation of the provision at the foot of s 94(1), it is most unlikely that the Parliament would intend one of those steps to pick up decisions in fact, while another operates only to pick up a valid decision. In oral address, Mr Kirk SC who appeared for NHDS, submitted that the term “decision” in s 94(1)(b)(i) should be construed as meaning a “valid decision”. It is difficult to accept that submission, in circumstances where, as previously mentioned, the word “decision” is generally to be given its ordinary meaning as a decision which has been made in fact. I am not persuaded by NHDS’s submission that that term should be given a different meaning when it appears in s 94(1)(b)(i).
49 Fifthly, I respectfully consider that NHDS has overstated the significance of s 89C in construing s 94. Necessarily, of course, the task of statutory construction needs to take into account all relevant provisions of the HI Act and assume that, at least prima facie, those provisions are intended to give effect to harmonious goals. Section 89C is set out at  above. In short, NHDS’s submission was that unless the term “referred” in s 94(1)(b)(iii) is read as “referred validly in law” and not merely as “referred in fact”, the obligation imposed upon the Director to make a decision “as soon as practicable” as to which of the three specified options will be selected will not apply. NHDS submitted that this would seriously undermine the purpose of the 1999 amendments, of which s 89C is one, which was to incentivise the Director to act expeditiously.
50 There are several reasons why I consider that this submission has little force. The submission is directed very much to the particular factual circumstances which have occurred here and, in particular, is focused on the orders which were made in the First NHDS Judgment. NHDS’s point is that if the Director’s review remains on foot notwithstanding those orders there is no statutory timeframe for the Director to choose between the three options. There is a well-recognised danger, however, in seeking to construe a statutory provision with reference to a particular set of facts and not more broadly so as to accommodate a wider range of factual circumstances in which the provision operates. I respectfully agree with the following observations of Flick J in DLJ18 v Minister for Home Affairs  FCAFC 236 at :
Any process of statutory construction is a process which stands separate and apart from the application of the statutory scheme to the facts of an individual case. It is only after the relevant statutory regime has been properly construed that it can thereafter be applied to the facts and circumstances of a particular case – including the facts in issue and the submissions advanced for consideration.
51 The Full Court expressed the point in slightly different terms in VOAW v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 251 at , where Ryan, Lindgren and Sundberg JJ described the submissions made on the appeal on relevant issues of statutory construction as:
… [going] beyond a process of statutory construction. They require a remodelling of the legislation to deal with the specific fact situation thrown up by the appellant’s case…
52 In any event, I consider that NHDS has overstated the effect of the Court’s orders in the First NHDS Judgment. Those orders set aside both the Director’s decision to set up and refer to the PSR Committee the matters set out in Item 2 of the referral, as well as the Referral itself. As Mr Kennett SC pointed out, the orders did not go so far as to state, explicitly or implicitly, that the Director has not made a decision in fact to do the things the subject of those orders.
53 Finally, acceptance of the Director’s construction of s 94 does not mean that the Director has unlimited time to conduct the resumed review. Assuming (without deciding) that s 89C(2) has no application because of the events that have occurred, the resumed review would need to be conducted within a reasonable time, consistently with the common law principles which require statutory powers to be exercised within a reasonable time (see, for example, Thornton v Repatriation Commission  FCA 71; (1981) 35 ALR 485 and Plaintiff S297/2013 v Minister for Immigration and Border Protection  HCA 24; 255 CLR 179 at  per Crennan, Bell, Gageler and Keane JJ). For this reason, I do not accept NHDS’s submission that the effect of accepting the Director’s preferred construction of s 94 is to create a “dead zone” in respect of the timeframe for the conduct of the resumed review.
54 It should be made clear, however, that I accept the Director’s submission that it is unnecessary to express a final view in this proceeding as to the proper construction of s 89C.
55 Sixthly, I accept the Director’s submission that s 94(1) contains a “deeming provision” of a kind which is to be construed no more broadly than that which is required to achieve its purpose (as suggested, for example, by Gageler J in Wellington Capital Ltd v Australian Securities Investment Commission  HCA 43; 254 CLR 288 at ). His Honour’s comments there were addressed to what was described as a “legal fiction”. His Honour said that ordinarily “a legal fiction is not to be construed beyond that required to achieve the object of its incorporation”. The importance of considering the purpose for which a statutory fiction is created was emphasised by Griffith CJ in Muller v Dalgety & Co Ltd  HCA 67; 9 CLR 693 at 696. A distinction is to be drawn between two different types of “deeming provisions” as described by Windeyer J in Hunter Douglas Australia Pty Ltd v Perma Blinds  HCA 63; 122 CLR 49 at 65. Some deeming provisions create a statutory fiction in the sense that the meaning of a concept is extended artificially to include something which would not otherwise be included in the concept. That is to be distinguished from a deeming provision which simply operates as a source of designation and does not involve any extension of meaning of the relevant concept. An example of that kind of deeming provision was identified by Windeyer J in Hunter Douglas, when he stated that a provision in the Trade Marks Act 1955 (Cth) which provided that “… a trade mark shall be registered as of the date of the lodging of the application for registration, and that date shall be deemed… to be the date of registration” did not create a fictional date of registration, but rather did no more than designate what the date should be. The phrase at the foot of s 94(1) whereby the Director “is taken to have made a decision” at the end of the 12 month period is properly to be viewed as a statutory fiction because it operates to deem a decision to have been made at a point in time when no such decision was in fact made.
56 The parties were agreed that the evident purpose of s 94(1) is to encourage the Director, having decided to undertake a review, not to be dilatory in taking action of the kind referred to in s 94(1)(b). The Director is encouraged to act with all appropriate speed by s 94(1) providing that, if none of the three specified actions or steps in s 94(1)(b) has been taken at the end of the relevant 12 months period, the matter is removed from the Director’s hands altogether. This is because it is deemed that a decision is made at the end of the 12 month period to take no further action in relation to the review.
57 I accept the Director’s contention that, accepting that this is the purpose of s 94(1), NHDS’s preferred construction does not advance that purpose. That is because the purpose is sufficiently served by construing the provision as meaning that the Director must in fact make a decision within the 12 month period to avoid the future conduct of the matter being taken out of the Director’s hands.
58 Reference has been made above to other provisions in the HI Act which reinforce the fact that the evident purpose of s 94(1) is as described above. In addition to the examples set out above, the legislation contemplates the possibility that the conduct of a review may also be suspended because of events which are beyond the Director’s control, which serves to underline the statutory purpose. For example, a review may be suspended under s 89A(2)(b) if there is material before the Director which indicates that the person under review may have committed a relevant criminal offence or civil contravention. A second situation where the Director is empowered to extend the 12 month period is where a review is suspended because of an injunction or other court order (see s 94(2)(b)). It is worth emphasising that this provision had no application in the circumstances here because the restraining order made by the Court on 1 October 2019 did not have the effect of suspending the Director’s review simply because that review had ended when the Director made the Referral decision. A third situation in which the Director may make a written determination to extend the 12 month period referred to in s 94(1)(b) is where a person fails to comply with the requirements of a notice given by the Director under s 89B(2) to produce documents which are relevant to a review. Section 94(2) empowers the Director to make a written determination that the period of 12 months referred to in s 94(1) is extended for no longer than the period for which a review is suspended.
59 Finally, it is desirable to say something briefly about the question whether s 94 is distinguishable from s 500(6L) of the Migration Act 1958 (Cth) (Migration Act), a matter which was the subject of detailed submissions by both parties. It should be emphasised at the outset, however, that there are well-known dangers and limitations in relying upon the construction of a similar phrase in another statutory context. As McHugh, Gummow and Heydon JJ stated in McNamara (McGrath) v Consumer Trader and Tenancy Tribunal  HCA 55; 221 CLR 646 at :
… It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions .
Footnote  refers to Ogden Industries Pty Ltd v Lucas  AC 113 at 127 (also reported at  118 CLR 32); and Brennan v Comcare  FCA 360; 50 FCR 555 at 572.
60 Section 500(6L) of the Migration Act relevantly provides:
500 Review of decision
(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
61 Section 500(6L) has been construed as meaning that the provision has no further application in circumstances where a decision of the AAT has been quashed, even where the application for review is subsequently reinstated under s 42A(9) of the Migration Act (see Somba v Minister for Home Affairs  FCAFC 150 at ; Khalil v Minister for Home Affairs  FCAFC 151 at - and Ikupu at - per Jagot J).
62 The Director acknowledged that there are differences between s 500(6L) and s 94(1), including the different legislative contexts in which the provisions appear, and the different legislative policies underlying the provisions. In Somba, the policy underlying the time limit in s 500(6L) was said to be to prevent applicants from manipulating the review system in an attempt to delay deportation. The policy underlying s 94(1) is quite different (see  above). Moreover, although the term “decision” appears several times in s 94, including in s 94(1)(b)(i), it is notable that the two matters referred to in s 94(1)(b)(ii) and (iii) which also have the potential to trigger the deemed making of a decision to take no further action in relation to the review do not involve any express decision. One relates to the entry into an agreement while the other relates to referring services to a Committee. The jurisprudence concerning the meaning of the word “decision” in legislation such as the Administrative Appeals Tribunal Act 1975 (Cth) (including the Full Court’s decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd  FCA 37; 41 FLR 338) has little, if any, relevance in this particular statutory context.
63 The same can be said regarding the construction of “decision” in Plaintiff S157/2002 v Commonwealth  HCA 2; 211 CLR 476 where the constitutional underpinnings of judicial review by the High Court were prominent. It would be a strange outcome if, having regard to that jurisprudence, the word “decision” was construed in s 94(1)(b)(i) as meaning a decision which is valid in law, while s 94(1)(b)(ii) and (iii) merely referred to the fact of entering into an agreement or referring the provision of services to a Committee respectively.
64 In my view, these matters provide a sufficient basis for distinguishing between s 94(1) of the HI Act and s 500(6L) of the Migration Act. In expressing that view, I do not mean to suggest that comparing these two statutory provisions, which appear in very different statutory contexts, provides any meaningful assistance to the proper construction of s 94(1). The construction of that provision which I favour has nothing to do with the way in which Courts have construed s 500(6L).
65 For these reasons, the originating application should be dismissed, with costs.
Dated: 17 July 2020