Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288

FEDERAL COURT OF AUSTRALIA

Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288

ADMINISTRATIVE LAW – administrative decision – whether a nullity – decision declared void in previous proceeding – declaration replaced on appeal by order setting aside decision – whether decision set aside from date of making order on appeal – whether error identified by previous Full Court a jurisdictional error – whether Court can now determine error to be a jurisdictional error – whether jurisdictional error necessarily results in nullity STATUTES – repeal – replacement with new statutory scheme – transitional provisions – status of administrative decision made under earlier statute – whether transitional provisions and provisions of new Act conditioned on events that had occurred or on validity of earlier administrative decision COURTS AND JUDGES – judgment – effect of earlier judgment – Full Court replaced declaration that administrative decision void with order setting it aside – whether order operated to set aside administrative decision from date of Full Court order – whether open to contend that effect of Full Court judgment was to treat administrative decision as a nullity – whether judgment can be contradicted in later proceeding – whether res judicata or Anshun estoppel

National Health Act 1953 (Cth) ss 39A, 40AA, 44, 45D, 45E, 47(1) Aged Care Act 1997 (Cth) ss 1-2, 8-1, 10-2, 10-3, 13-1, 14-1, 15-1, 42-1 Aged Care (Consequential Provisions) Act 1997 (Cth)ss 7, 20, 62, 63, 69, 75 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, 8 16 Federal Court of Australia Act 1976 (Cth) s 14(3) Judiciary Act 1903 (Cth) s 39B Federal Court Rules O 36 Jadwan Pty Ltd v Minister for Health and Family Services (1998) 51 ALD 245 cited Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478 discussed and applied Jadwan Pty Ltd v Secretary, Commonwealth Department of Health & Aged Care [2002] FCA 1052 (2002) 71 ALD 520 discussed Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253 referred to Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 applied Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2002) 195 ALR 24 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 referred to Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 referred to Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 referred to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 referred to Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 referred to Clements v Independent Advisory Committee [2003] FCAFC 143 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred to Craig v South Australia (1995) 184 CLR 163 discussed Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 discussed O'Reilly v Mackman [1983] 2 AC 237 referred to R v Greater Manchester Coroner; Ex parte Tal referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to Gibbs v Kinna [1999] 2 VR 19 referred to King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 referred to JADWAN PTY LTD (ACN 006 203 112) v SECRETARY TO THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE (FORMERLY THE COMMONWEALTH DEPARTMENT OF HEALTH AND FAMILY SERVICES) AND MINISTER FOR HEALTH AND AGED CARE (FORMERLY THE MINISTER FOR HEALTH AND FAMILY SERVICES) V 593 of 2002 GRAY, KENNY AND DOWNES JJ 12 DECEMBER 2003 MELBOURNE