Commonwealth Numbered Acts

HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT 47

47. Section 122, and Divisions 4A and 5 of Part V, of the Principal Act are
repealed and the following headings and sections substituted:-

''Division 4-Applications to Prescribed Courts Application to prescribed
Court.
''122. (1) An application to a prescribed Court for a judicial review of a
determination shall be made by lodging with the appropriate officer of that
Court, within the period of 30 days after the date upon which notification of
the determination is served on the person to whom the determination relates,
an application in writing, signed by or on behalf of that person, setting out
the grounds of the application.

''(2) The person making the application shall, within the period referred to
in sub-section (1), cause a copy of the application to be served on the
Minister.

''(3) Within 14 days after receipt of a copy of the application in accordance
with sub-section (2), the Minister shall cause to be lodged with the
appropriate officer of the Court-

   (a)  a copy of the reference that gave rise to the determination;

   (b)  a transcript of the proceedings at the hearing conducted for the
        purposes of that reference;

   (c)  the report on that reference and any documents sent to the Minister
        with that report; and

   (d)  the determination. Hearing of application.
''123. (1) Subject to the Constitution, the hearing of an application under
this Part for a judicial review of a determination shall be in the nature of a
re-hearing.

''(2) A prescribed Court hearing an application under this Part for a judicial
review of a determination may have regard to the documents lodged under
sub-section 122 (3).

''(3) A prescribed Court hearing an application under this Part for a judicial
review of a determination may, having regard to what is just and reasonable in
the circumstances-

   (a)  affirm, vary or set aside the determination; or

   (b)  set aside the determination and-

        (i)    except where sub-paragraph (ii) applies-make a determination in
               substitution for the determination so set aside or remit the
               case to the Minister for re-determination in accordance with
               the directions of the Court; or

        (ii)   where, by reason of the Constitution, the review, in whole or
               in part, is not a re-hearing-remit the case to the Minister for
               re-determination in accordance with the directions of the
               Court, and make such ancillary or consequential orders as the
               Court thinks just.

''(4) Without limiting the operation of section 79 of the Judiciary Act  1903
, the provisions of the laws of the State or Territory in which a prescribed
Court is constituted that relate to the summoning of persons to give evidence
and produce documents and articles in an action in the original jurisdiction
of that Court under the laws of that State or Territory apply in relation to
the exercise of the jurisdiction of that Court under this Division as if it
were exercising jurisdiction in such an action. Costs of applications.
''123A. (1) The costs incurred by the applicant in relation to proceedings in
a prescribed Court on an application under this Part shall be borne by the
Commonwealth, unless the Court is of opinion that the costs, or part of the
costs, were unnecessarily incurred and directs that the costs, or that part of
the costs, be borne by the applicant.

''(2) An order for the payment of costs made by a prescribed Court in
pursuance of this section is enforceable in all respects as a final judgment
of that Court.

''Division 5-Appeals from Tribunals and Prescribed Courts Appeals from
Tribunals and prescribed Courts.
''124. Subject to the Constitution, a decision of a Tribunal on a review under
Division 3 or a judgment or order of a prescribed Court under Division 4 is
final except so far as an appeal may be brought to the Federal Court of
Australia by virtue of section 124A or any further appeal or appeals may be
brought in accordance with the Federal Court of Australia Act 1976. Appeal to
Federal Court of Australia.
''124A. A party to a proceeding before a Tribunal under Division 3 or before a
prescribed Court under Division 4 may appeal, on a question of law only, to
the Federal Court of Australia from any decision of the Tribunal, or any
judgment or order of the prescribed Court, as the case may be, in that
proceeding.''.