CATCHWe Fo Administrative law - Judicial review - Nursing kome - Determination of scaie of fees - Motion to dismiss aoplication for order of review of devermination - Application mad@ for review of determznatisn by Minister - Review by Mirister not yet completed - Ztay oF proceedings in applicariar for srder of review. Aaministrative Dezisisons iWudicial Reviews Act 1377 - ss. 5, ls, eed F.3. HOSPITAL ENTERFRISES PTY. LID, (trading as "Kinross Private Nursing Home") v. THE HONOURABLE DONALD JAMES GRIMES (as the Commonwealth Minister for Community Zervices) and ALAN 2. ROSE (as the Secretary or the Commonwealth Department of Community Sarvices) VG379 of 1586 Jenkinson J. Melbourne La February, 1337 ete ttle AA ae Doe Se - <5 + = 406 TRioe rec sTRy No. VG". of 1286 neAL ENTERPRIZES . strading as Frivate NUursing AND: THE HONSURABLE DONALD JAMES GRIME (as the Commonwealth Minister far Community arvices) and ALAN D. ROSE (as the Sacretary of the Cammonwealth Department or Community services) Respendents MINUTES OF OFLER Jankinsen o. Meloouriwé m i 15 Fabruary, i3 ime Court Urders That. The motion of whi pecified in paragraph l of the notice of motion filed 12 November 1946 for an order that the Court retuse pursuant to 3.10(2)(b)ii1) oF the Administrative Decisioms (Judicial Review) Act 1377 to grant the applications for orders of review be dismissed. Proceedings in the applications be stayed until further order. The directions heariny be adjourned to a date ta be fixed by any party on reasanable notice tao thea other parties. Each party's costs of the said motion and of the directicns hearing on 6 February 1337 be reserved. Settlement and antrv of oeders 25 Gealt with in o.2h of the Federal Sourt Rules.) ii TUE VEDGRAL TUURT = AUETFALIA ' VWiOTURIA EPLste oct PEGIITEY Ma. ViG379 ¢. 13486 see AL OLY ITEtT : SETWEEN: F.". cOZPITAL ENTERPRISES eTv. LTD. ttrading as "Kinecss Frivate Nurcsonad Home") is ANT: GRABLE DONALD MES tas tae Mammcnwealth Manister fer Community @ervices:! and ALAN OD. RUSE .as the ar oat tne Department CEBYVLces) Resconcent= CORAM: Jenkinson J. ELACE: Melbourne DATE: is February, i387 REASONS FOR JUDGMENT Motisn for an order that the Court dismiss the applications for orders sf review which are pending in this proceeding. The originating amplication specifiea ard oy amendment of that agpiication there have been added several s.40ADL 15: st te TAtLooa. TE Slt Ace ' 35. on Tae Zwrretacy If tas Department al Osamanity seyvi7es ana nis de.atares fo geatearmine 4 (fo greg aggiitab-3 +--+ wipe b> Time it 2 2Sb8Ce ay wae KureLag Aomea cf waice eye app.ilant 15 tae graprietoe. Racs Metecminaricon is effective ourcil Surerseica oy 4 sucsequenc qetarminatim. Bacn der.iitm 15 supqject ot Fevitwe so che avglicant contends, for arrears comprenended by several of the around. speciaried in zup-seccion Bil) of the review Act. Tae originating application waz filed on 24 actober 1928. Notice of this motion an che part of the respondents for dismissal was filed moer. The around of whe motion, in relation to each of the ng ain Now (2)ib tir. of the Review cisions sought ta be reviewed, 15 s.i¢ fu o q A ac wt 'ya0 qics conferred oy sections 4, © and "oar gon to Mace ah ADpLiTacion co crue Souct vaspact if a wecisnen, in cespect or conduct engaged in for the purpose or making 2 decision ar in respect of A fallure t2 make a adacisian - va) are 1n additisn to, and not in derogation of, any other rights that che person fas to seek a raview, whether by the Court, by another court, oF by another teibunal, authority or person, of that decision, conduct oF failure \b) shall be disregarded for the purposes or the application of sub-section #13) of the Ombudsman Ace 1375 and sub-section B402A) Of the Complaints (Bustralian Federal Act 1381. (2) Notwithstanding sub-section (tl) - yr any other court, may L 3 \b 13) In prerogat.1 this review by way of reconsideration, apreal, the Ve or stabutor than wnde- she Act, in Lks distretion, refuse to grant an @opil=atism For a raview oF a decieion, conduct engaged in for the Purpose of making a derision, sr a farlure fo make a d2c1sicon, for the reason tnat an application has been twada ts the Court under sertion 5, 6 or 7 in vespect of that decision, conduct or farlure; anda tne Coucet may, in its discretiscn, ceruse to grant an application unaer soctlon S&S, 8 Sc 7 chat was made ta Che Coure in respecr sf a derreisn, Li 2.25peack of comduct engaged in for RAG SULETSe 25 making & decision, ar Ln ¢@rpect cf a farluce «15 make a decirsicn, Dur the csasan - vlo that tne usglicant has sought aA C8VLEW OY the Court, se by another court, cL thar decision, comauct or Failure stherwise than .simder this Act; or adequate provision 15 made by any law other than this Act under which the applicant .s5 entitied to seexKx a review Ey the Court, hy another court, oar by anothec tribunal, authority or person, of that decision, conduct or faiiure. includes a re-hearing, grant of an anjunction or of a ¥ writ or the making of section, review a d@ciaratory cor otner orcter." Frovisicn L355 for raview by @ecisions of the «1 Ey a letter dated Minister ts review application f3r an order a Maae HF H w nt wu ad which are tne susyects of this the decisions un respect review was instituted in the S.,40UAR Of the wWational Heath Act Minister of State For Community Zervires of of which Court on 4 argon or a Leatilons am the Lourk are required, 1f they had been made oan Eter 39 May i924, to be made oy tns Secretary and nis Jelegates im accordance wit principles formulated by the Minister in YSlation to nursing homes generally : s@e 55. 40AA(6);(c0)112), (7), and (7B) and #0A0(1B) sot the National Health Act i955. The ¢ conferred by s.t0AA(7), to formulate principles in accordance with which the determination oy the Secretary and his gates of scales of nursing hona frees are to be made, was May 1394. Some, cut not all of the aacterminations in respect of which an order sf review i3 s5ugmt in tnis ofcceéding were made after 3 May 1344. On a révilew oy the Minister :f a decermination made by the secretary or 215 delegate after = May 1344, the Minister 15 nov constrained by the prancipoles so absolutely as the Secretary and his delegates are constrained in making their determinations. section 40AE of the National Healtn Act 1953 provides: "(2) Where the Secretary does not alter the conditions applicable to aionursing home in PP a accordance with an arolication under suo-section 40A0(1B), the proprietor of the nucsing mome may, by writinz signed by the provorLetcr, crue Minister to raview che aecisian 32 tarv. yecerst ar a requesc unier 21, tne Ministec snali, afctar Sigation of the matter a5 the considers necessary, elther canfirn che GecLs1Sn sf the Secretary and @ Proprietor arzcardingay. Lster indertaking, in with 1on .3, such J or oat as tne Minister coms. ne Tessa ay any Srincirle that WAS L Lce under, 3 ton 40AAi7> at the Clme derision was Wade ara tnakt continues oa £5 AD Tne time af che unsaertaking sr tnat Law unless the Minister is satisfied, tn al @ Clrcumstances sf the case, that the AD Da1 sno of that prancigia in relation fee That ing homé 13 not acprorpc1ate. \ The ftlinister shali, as paren of cae InVeStlIatlon oF tne matter, cefer the matter CS CGS agsrapriate Nursing nomes rees Review Commictces ot Inquiry @staplished under Divisicn iA of Part VIII for axamination and report tao the Minister ana snall not take anv ructher actic in the matter until ths Minister has received tne reporc of the Committee. (5) Where the Minister varie= the decisisn of the Secretary, the Secratary shall, for the purvoses of sub-section 40AD(2), be deamed to have altered the conditions applicable to the nursiny home in accordance with the decision as 50 varied." tons (1B) and (2) of s.40AD provide: a "VLE, The Zeacreatary may, at any time, on application in writind made under tris Ssub-secticsn by the properscor of a Nursing home or othsrwise, altac the conditions applicable ts the mursirg home cy supscituting For the scale ar fees determined in relatisn to the nursing home for che purposes of sup-paragragh 40AA(6)(c)\12, such ather scale of fees as is determined of the Secretary. ' "(2) Where, wnether under this section or by virtue of the operation of saw, the conditions applicable to an approved nursing home are altered, the Minister shall cause to be issued to the proprietor of the nursing home, in place of any certificate of approval in force under this Act aun relation to the nursing home, a mew certificate of approval, in accordance with the appropriate authorized form, specifying - (a) the conditions as so altered; and -_ concerning scales of nursing home fees, which 3.t0AF prescribes 15 unusual in that ain the course of review the Minister may he enabled to disregard a principle to which the person who made the decision under raview was subject, and to which persons making Slmiiar decisions at first instance remain susject. Notwrtnstanding that clrcumstance, 1t did appear, in my apinian, teat 'adequate orivision', within tne meaning of that #xpressisn in 6.20(ly\biiil of the Review Acct, was made by s.40AE, under which tne applicanc was entitled to seek a review by the Minister ar the dacisitons the surjects of the craocesding an this Court. The question i5 then ene of discretion, whecner the Court should, at this stage, verusé to grant any of the applications for review now pending in thi wl re) r, ial ig] %[an raQ One of the discretionary powers available tc the Court on an application for an order Gf review in respect of a decision 2s to make "an order directing any of the parties to do, or toa refraim from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties »i6tisid) cf the Review Ack. ut Bi ni) tr Mr. Harris of counsel for the acglirant submitted that the power would extend to authorise an aruec far cayment ro tae applicant by a frespordent cr a money sum equal tao the amount or the loss snewn toa t qa to nave been caused by a determination cale of fees which was vitiated by error of a description contained ain 3.5 of the Review Act. tae originating now 4idmM1lsse2i, the applicant the respondents, supmitted tnat even ur, rantrarv tS mas submission, the wsower conferred by s.1l6:l:id: exctendea co authorise Et compensatory sayment, the dererminaction of the Minister an review would supersede the determination of the Secretary s delegate and could itself be made the supject of an application for an order of cevilew, in tne determination of which the same power would he avallable to compensate the sam= loss, which would be then attributable to the decision of the Minister, not to the superseded decision of the delegate. If these contradictory submissions were resolved by me ln a 3énse Tavcurable to the respondents, yet thea resolution would a a Be in an interlocutory proceeding, and without éxamination of all THE Y@Levant cL1rcumstunceés : an unsatisfactory masis, as I think, Tor a conclusion involving final a1smissal of the application. Further, there 15, I think, room for doubt concerning the legal etfect of the Minister s decision on review. I think the preferable course 15 to leave the application pending, and to avoid unnecessary expenditure of legal costs by staying proceedings in the pending proceeding in this Court until further order. I respectfully share the opinion expressed by Toohey J. in Kelly v. Coats (1981) 35 A.L.R. 33 at 34 that the Court may in the exercise of 1ts inherent power defer the hearing of an application for an order of review pending the determination of an appeal against the decisian in respect of which the order of review 15 Scuthe. The veview Sy tne Minister 2135 ln like case wltn an apzeai. ZO 15 an irherent power to fe aOarindliy exercised, vaphars, When tae Eliwie linrerrei 2£v gs.4. 4. 37 tae Raview Act 13 Court ehould avoid tne rise, nowevec smali, that dismissal of the application would deerive the applicant of a remedy to which it ntitied. wa Ww may b The notice of motion aincluded a claim, in the altarnative, for a stay of the application pending the Minister's determination on his review, but at the hearing Mr. Downing expressly declined to move for a stav. Tne applicant's willingness to S5upm1it tc a stay was expressed by Mr. Harris. The orders ar the Court will ba that the motion of which notice 15 specified in paragraph 1 of tne notice of moticn filed 18 November 1346 for an arder tnat the Court refuse pursuant tr s.lotZiinsvins v Gur my, Ci La] u y ish » ss bt is] my at wa qi H va cH of the Review Act cto grant the applicat De dismissed, that ay rorceedings in time applications be stayed until further order, that the directions hearing be adiocurned to a date to be fixed by any party on reasonable notice to the other parties, and that each warty s costs of the motion and af the directions hearing on 6 February 1387 be reserved. Ls ooh the 7 bee age couy of the e a) hugh. ahat Cs big 2 sen afot ta5 200 Vroeat. Te -- Ff RRCRL IES SEIT = "¢ eye Py WGI7.. 132 a im Counsel for the Applicant ul Slicitors for the Applicant Counsel for the Respondant Solicitsr for the Fespondent Date af Hearing Mr. G. Harris McMahon, Fearnley and Kaynes Me. R.M. Downing Australian Gavernment Solicitor w co & February, 1