3 Taken at its highest, the submission appears to me to be two-fold: first, the Committee did not complete its adjudicative process as expeditiously as the applicant believes it should have. That degree of delay is said to have been contrary to the policy evinced by the Health Insurance Act 1973 (Cth) ("the Act"). Secondly, the use by the Second Committee, in its final report, of what I said might have been characterised as "infelicities of expression", or "less than ideal structure" was said to be relevant, in combination with "other matters", presumably the delay in finalising the adjudicative process, to according Dr Tisdall a favourable exercise of the Court's discretion as to costs.
4 In the first place, as I outlined at [5]-[8] of the substantive judgment, any perceived delay in the adjudicative process which took place in relation to Dr Tisdall's practice is explicable, in part, by the pace at which the preliminary investigation proceeded, the deliberations of the Committee, and various steps which had to be taken when application for judicial review was made to this Court. I do not accept the submission, which was made faintly at the substantive hearing and which is, in essence, repeated now, that any perceived delay in the adjudicative process has affected the legality of the actions which the Second Committee took, or that those actions have been contrary to what may be discerned of the legislative policy underlying the Act. In any event, delay in the adjudicative process undertaken by either Committee is not a matter which bears upon the exercise of the Court's discretion as to the costs of an application which Dr Tisdall elected to make to this Court for review of the Second Committee's decision.
5 Similarly, I do not consider the mode of expression or structure adopted by the Second Committee in formulating the reasons for its decisions to be relevant to the exercise of discretion as to the costs of judicial review. My observations on the formal aspects of the Second Committee's reasons were expressed as follows, at [14] of the substantive judgment:
Any error upon which this Court may fix in granting relief of the type sought in Dr Tisdall's amended application will therefore not be constituted by a mere infelicity of expression, or less than ideal structure in formulating the Second Committee's final report, or upon any other formal defect, however perceived, in what, it is to be remembered, is the result of the deliberations of a committee the members of which are medical, not legal, practitioners.
That passage makes it clear that any arguable shortcomings in the way in which the Second Committee's reasons were expressed or structured did not expose, or conceal, an error of law of the kind for which the applicant contended in his application for judicial review. It follows that those matters of form are not available to be relied upon by the applicant in seeking a favourable exercise of discretion in relation to the costs of the application for judicial review.
6 On behalf of the Minister, it was pointed out that Courts have recognised a number of factors going to the existence or otherwise of special circumstances sufficient to warrant departure from the usual rule as to costs. These include, it was said, that the litigation has been brought in the public interest, rather than for the personal gain of the plaintiff (see Physical Disability Council of New South Wales v Sydney City Council [1999] FCA 815), or that the proceedings raised novel or important questions of law, or matters over which there was divided judicial opinion (on which I was referred to Ruddock v Vardarlis (No 2) (2001) 115 FCR 229; see now, as well, Culley v Australian Securities and Investments Commission [2010] FCAFC 43). This was not, it was said, a case falling into either of those categories, or, indeed, into any of the other categories of case in which a departure from the usual rule has been regarded as at least arguably justified.
7 I take a similar view in the present case. Although Dr Tisdall's application was reasonably instituted and conducted, as appears from the reasons published on 26 May 2010, he failed in each of his challenges to the Second Committee's findings. His case did not concern, let alone decide, any point of general legal interest or travel beyond its own factual circumstances. Indeed, I regard the result as having flowed naturally and predictably from Oreb v Willcock (2005) 146 FCR 237, to which I referred extensively in the substantive judgment. Neither of the arguments advanced in the applicant's written submissions disputes that view, and, as already indicated, I do not regard them as bearing on the present question of costs.
8 I therefore consider it to be an appropriate exercise of the discretion reposed in me by s 43 of the Federal Court of Australia Act 1976 (Cth) to order that the applicant pay the respondents' costs of the application herein, such costs to be taxed in default of agreement.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.