Grey v Health Insurance Commission

REASONS FOR JUDGMENT 1 On 17 September 2001 I delivered reasons for judgment on this application. I found that the Professional Services Review Committee (No. 126) will exceed its jurisdiction if it makes findings against Dr Grey along the lines it was intending. Two questions remained outstanding. The first was what precise order should be made to give effect to my finding. The second was whether Dr Grey should have his costs of the proceeding. The parties were directed to make written submissions on these issues, and they have done so. 2 On the first issue (the form of relief) Dr Grey says that declaratory relief should be granted, and he put forward a suggested form of declaration. As to this form, the respondents make two broad submissions. First, they say that as a matter of discretion no declaration should be made. The second submission is to point to various deficiencies in the form of declaration proposed by Dr Grey. The alleged deficiencies include the following: (a) that the suggested declaration is not explanatory, and it should be; (b) that the suggested declaration is unclear; (c) that the suggested declaration fails precisely to categorise the limits of that which is said to be beyond jurisdiction. 3 Somewhat surprisingly, the respondents do not suggest an appropriate form of wording for the order. Nor do they address the question whether relief other than a declaration should be awarded. For example, an order in the nature of prohibition or an injunction might be made. During the proceeding I raised this matter with the parties and I had assumed, wrongly as it turns out, that the respondents would address the issue in their submissions. 4 In the end I have decided to grant relief in the nature of prohibition. I have formulated an order which I trust takes into account the drafting complaints made by the respondents. It would have been helpful if the respondents had suggested a form of wording. As they did not do so, I can only assume that the respondents had decided to leave the formulation of the order to me. 5 On the question of costs, the respondents say that no order should be made in favour of Dr Grey. Three principal arguments are relied upon. First, it is said that the application was premature. Second, Dr Grey did not request the Committee to allow him an opportunity to give further evidence or make submissions before coming to court. Finally, it is said that the Committee did provide Dr Grey with the opportunity to provide further evidence and make submissions, and he failed to do so. 6 I do not accept any of these propositions. First the application is not premature. The relief that I have granted is in the nature of prohibition. Prohibition was developed alongside certiorari as part of the system of control of inferior tribunals that was developed by the Court of Kings Bench. The remedy is similar to certiorari but is prospective rather than retrospective. Primarily, prohibition lies to prohibit an inferior tribunal from doing something in excess of its jurisdiction. As Atkin LJ said in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 206: "I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction." In any event, in proceedings such as the present, an injunction could be obtained to prevent an inferior tribunal acting outside its jurisdiction, before it actually did so. 7 The second and third grounds have no merit. The respondents forcefully contested Dr Grey's claim that the Committee was acting beyond its jurisdiction. It is inconceivable that the Committee would have taken a different view had Dr Grey made a direct complaint that it was going beyond its charter. 8 As an alternative submission the respondents say that if an order for costs is to be made, Dr Grey should not have all of his costs, and indeed he should pay a proportion of the respondents' costs. First they point out, quite correctly, that the original application was to set aside or have declared invalid a "decision" of the Committee which the Committee had not yet taken. This resulted in a motion to have the proceeding dismissed. Dr Grey then sought leave to reformulate his claim by relying on new grounds. As to those grounds, the respondents point out, again correctly, that Dr Grey has had only a measure of success. He raised five separate points, a number of which, if successful, would have prevented the Committee continuing with the inquiry altogether. In the result, Dr Grey was successful on only one of his five grounds. The respondents say that considerable time and cost was incurred in the preparation for, and the presentation of argument on, the unsuccessful grounds. 9 I should add that the respondents also contend that the successful ground had not been articulated in Dr Grey's application. I need not consider whether this is so. The contention that was successful was developed in Dr Grey's written contentions which were filed well before the hearing and was the subject of submissions by the respondents in their written response. 10 There will always be difficulty when one is asked to consider whether costs should be apportioned. Here I think that there should be some apportionment. I note that when the respondents moved to have the proceeding in its original form dismissed, I ordered that the costs of that motion be the respondent's costs in the cause. As they have not been successful in the proceeding that order will be of no benefit to the respondents. It is clear that Dr Grey should not have the costs of the motion, and in ordinary circumstances he would be required to pay something to the respondents for their costs. Further, I am of the view some of the unsuccessful submissions were hopeless, and unnecessarily put the respondents to trouble and expense. 11 All in all, while appreciating that the order I am about to make has an element of arbitrariness, I propose that Dr Grey should only have one half of his costs, and none of the costs of the motion. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.