Medtest Pty Ltd and Minister for Health and Ageing [2002] AATA 13 (30 April 2002)

Last Updated: 4 February 2004

DECISION AND REASONS FOR DECISION [2002] AATA 1353

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/581-2

GENERAL & ADMINISTRATIVE DIVISION	)
	Re	MEDTEST PTY LTD

Applicant

And

MINISTER FOR HEALTH AND AGEING

Respondent

DECISION

Tribunal

Hon Justice Garry Downes AM, President

Date 30 April 2002

Place Sydney

Decision

Order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 that Medtest Pty Limited be deemed to have an approval pursuant to section 23DN of the Health Insurance Act 1973, in such form as its approval which will expire by effluxion of time at midnight today takes, on the basis that any further application for extension should be made before this Tribunal at 1.30 pm tomorrow and on the basis that the Tribunal as then constituted shall be entirely free, with such further evidence as is available to it and with such further time for reflection as it has, to consider the question of any further order as if the application were then made for the first time.

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REASONS FOR DECISION

1. Medtest Pty Ltd is the operator of an accredited pathology laboratory pursuant to section 23DN of the Health Insurance Act 1973. On 14 March last the Minister's delegate revoked its approval as such an accredited pathology laboratory. On the following day Medtest applied to this Tribunal for a stay of that decision. The stay was granted. It seems that at midnight tonight the current existing approval, with respect to the accreditation of Medtest, will come to an end. An application was made for an extension of that approval or, alternatively, for a new approval, but the Minister's delegate this afternoon notified a decision refusing both those applications.

2. If things remain as they are Medtest will be precluded from providing services giving rise to subsidy for the benefit of patients at midnight tonight. Medtest, accordingly, urgently makes an application for some form of interlocutory relief to permit it to continue to provide services with subsidy.

3. The order made by the Tribunal in March this year was an order under section 41(2) of the Administrative Appeals Tribunal Act 1975, staying operation of the revocation order. However, since the approval itself will expire at midnight tonight there is no longer any room for a mere stay of the revocation achieving a result which permits Medtest to continue to provide its services with subsidy because the approval, the revocation of which has until now been stayed, has itself come to an end. Accordingly, if some effective relief is to be granted it must be something other than a stay of the revocation of 14 March 2002.

4. The application by Medtest for review of the revocation is listed for directions at 1.30pm tomorrow before Handley DP. Handley DP has dealt with a number of interlocutory applications in this matter and is very familiar with its background. I have come to the matter for the first time in the last hour or so and my knowledge and understanding of the matter is accordingly limited.

5. This afternoon Medtest filed a further substantive application for review, this time for the review of the decision of the Minister's delegate refusing to grant its recent application for approval as an accredited pathology laboratory, that is the application which was made for approval as from today with a view to any approval of that application overcoming the problem associated with the termination of the existing approval from effluxion of time.

6. As the matter developed before me this afternoon, it became apparent that what Medtest seeks this evening is some form of order which will preserve its ability to continue to provide services simply for a sufficient period of time to enable the matter to be brought before Handley DP tomorrow at the same time as the existing directions hearing is to be brought before him.

7. One of the bases upon which Mr Dwyer for Medtest seeks to apply for relief during this relatively short period, is under section 41(2) of the Administrative Appeals Tribunal Act. That section permits the Tribunal to make:

"... orders staying or otherwise affecting the operation or implementation of [a] decision to which the relevant proceeding relates ... as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."

8. Mr Williams SC, appearing for the Minister for Health and Ageing, submits that I do not have jurisdiction under this section to make any appropriate order. This is because, he says, it will require me to make a positive decision conferring approval upon Medtest and section 41 has been confined to the making or orders of a negative kind such as the granting of a stay.

9. In the short time available to me before giving these reasons for decision, I have not been able to examine all the relevant authorities. I accept that there is substance in what Mr Williams says. However, there are some decisions of this Tribunal in which relief has been granted on a temporary basis under section 41(2) of the Act in circumstances in which a license or approval has come to an end as opposed to such a license or approval being revoked. In any event, it occurs to me that it would be an unusual construction of section 41(2) which permitted some form of relief to be granted when there was a revocation but precluded the granting of any such relief when in form but not in substance there was the refusal of an application rather than the revoking of a license or approval.

10. I can understand that section 41 may not give power to positively grant an approval. To make such an order might be seen to be a substantive determination of the application as such. However, it seems to me that an order might be made under section 41(2) which, without amounting to the actual granting of approval, had a similar effect for a limited period of time always with a view, in the words of the section: "... of securing the effectiveness of the hearing and determination of the application..." to which it relates. Although those concluding words of section 41(2) do not alone confer jurisdiction on this Tribunal to grant relief under the section, it does seem to me that the words which do, namely: ".... staying or otherwise affecting the operation or implementation of the decision..." must be read in the light of those concluding words.

11. I would not wish these oral reasons given without time for consideration to be thought to be a concluded opinion relating to the meaning of the words of section 41(2) of the act. However, they do represent the current inclination of my thinking and the basis upon which I must decide this application made urgently late in the day.

12. When I take into account that a stay which has affectively permitted Medtest to continue to provide its services has been in place for well over one month, that the parties were proceeding on the basis that the substantive issue that will underlie what are now two applications before the Tribunal is being prepared so that the Tribunal can ultimately determine whether there ought to be approval under the section, and that, although the Minister maintains that there is a risk to public health and safety by the applicant continuing to be entitled to supply its services with subsidy, she does not suggest that any new basis for such a submission has emerged since 14 March 2002, it seems to me that the argument in favour of my granting an order for a relatively short period of time, to enable the applicant to continue carrying on its business, is persuasive.

13. I am accordingly persuaded that I should make an order which will operate up until midnight at the conclusion of Wednesday 1 May 2002, which will permit the applicant to continue to operate as an approved pathology laboratory under section 23DN and I propose an order in the following form.

14. Order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 that Medtest Pty Limited be deemed to have an approval pursuant to section 23DN of the Health Insurance Act 1973, in such form as its approval which will expire by effluxion of time at midnight today takes, on the basis that any further application for extension should be made before this Tribunal at 1.30 pm tomorrow and on the basis that the Tribunal as then constituted shall be entirely free, with such further evidence as is available to it and with such further time for reflection as it has, to consider the question of any further order as if the application were then made for the first time.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of the Honourable Justice Downes.

Signed: .......................................................................................

Associate

Date/s of Hearing 30 APRIL 2002

Date of Decision 30 APRIL 2002

Counsel for the Applicant Mr P Dwyer

Solicitor for the Applicant Gadens

Counsel for the Respondent Mr N J Williams SC

Solicitor for the Respondent Phillips Fox