Time of decision

Raiz v PSR (No 2) [2023] FCA 1293

Dr Raiz challenged referral of a complaint to a committee.  He said a prior ‘inclination to refer’ was itself a ‘decision’ which was flawed because his submissions had not been taken into account11.  The issue was what is meant by ‘make a referral’12

The judge held no ‘decision’ was made until the instrument of referral was given.  Within complex provisions, the judge stressed the impact of purpose in requiring a non-grammatical outcome13.  This was also supported by the meaning of ‘decision’ more generally14.  Only the formal instrument involved a ‘decision’.  This was when the ‘temporal guillotine’15  fell and the Raiz submissions had to be considered.

This principle is from Episode 102 of interpretation NOW!


11 This would have legally undermined the entire referral process.

12 s 89C(2) of the Health Insurance Act 1973 (Cth).

13 Certain Lloyd’s [2012] HCA 56 [25], cf Carr v Carr [2022] NSWSC 166 [82].

14 Semunigus [2000] FCA 240 [19, 20], cf Amir [2021] FCA 745 [51].

15 Amir [2022] FCAFC 44 [66] quoted.