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This morning judgement was handed down in the AVN vs HCCC, a case which Stop The AVN has of course been following closely.
The AVN won.
But is it as simple as that?
Well, it seems it's not that simple. I am most emphatically not a lawyer, but I've been sitting here reading over the text of the judgement.
While the AVN may have won, it most certainly hasn't won.
OK. give me a moment here.
The judgement deals in detail with the matters of technical wording and interpretation on which the case against the HCCC appears to hinge. The wording of section 7 of the Healthcare Complaints Act, it appears, is sufficiently focused that the complaints by Ken McLeod and the McCaffery family do not actually qualify as complaints under the act. Obviously this is a problem, since section 8 goes on to explain that anyone, not just a patient or client, may submit a complaint - yet that complaint may fail under a test of section 7. This is the "individual client" stipulation, a phrase which appears to make the act only relevant to individual care and not to broad public health matters.
To me, this means the act has a clear flaw, but again I am not a lawyer and this is not for me to decide.
No, the interesting part of the judgement, for me, lies in the AVN's application for certiorari.
Well, to put this into layman's language, it appears that the case was actually a double-pronged attack against two targets. The AVN's team wished to use the case against the HCCC as a lever to overturn or challenge the later decision of OLGR to withdraw fundraising authority, arguing that the OLGR decision substantially relied on the HCCC decision and the resultant public warning. Cause... Effect.
This judgement explicitly declines to grant certiorari.
Certiorari, as I understand it in this case, means an order for judicial review of a decision, specifically the OLGR revocation. There was much argument centering around prior OLGR cases, questions of reputation, poker machine licence grants and much legal arcana which could be of relevance in getting the OLGR case cracked open - but not relevant to the HCCC case.
So I draw your attention to sections 66 and 67 of the judgement:
66. The plaintiff submitted that its rights were not only directly affected, but also altered, by the HCCC’s decision to issue the Public Warning and that certiorari is accordingly available: Ainsworth at 595, per Brennan J. It argued that the decision directly exposed it to a new hazard of an adverse exercise of public power (having its fundraising capacity revoked). However, the plaintiff could not point to any provision in the Charitable Fundraising Act 1991 that made the Public Warning a mandatory relevant consideration in the Minister’s decision whether to revoke the authority.
67. Accordingly there is no basis on which I could find that the Minister for Gaming is legally obliged to take into account the Public Warning. For these reasons, certiorari does not lie.
So it appears, to me, that the AVN's true aim in this case was to score the double and get themselves a judicial review of the OLGR decision. After all, the OLGR decision directly affects Meryl's individual hip-pocket, whereas the HCCC warning is largely a matter of reputation which will do nothing to stem the flow of dollars from the deluded.
AVN argued that the HCCC order and warning brought them into line-of-fire of a new hazard - that of having their charitable status revoked. The judgement explicitly says that this is not the case. So the AVN, while they've won on paper, have actually lost the part that the organisation would value the most.
Section 68 of the judgement:
The plaintiff has substantially succeeded although it has not obtained certiorari
If anything, this strengthens the OLGR case in declaring that it does not substantially rely on the earlier HCCC action.
What remains to see is what Dorey will do about it
UPDATE: Dave The Happy Singer has an explanation of the case, and the judgement PDF
Again, I am NOT a lawyer
posted @ Friday, February 24, 2012 11:31 AM