(NOT FOR DISTRIBUTION) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 415 of 1986 GENERAL DIVISION BETWEEN : J. L. HOSPITAL ENTERPRISES PTY LTD Applicant (Trading as "Lewisham Private Nursing Home") and THE HONOURABLE DONALD JAMES GRIMES (as the Commonwealth Minister of State for Community Services) and ALAN D. ROSE {as the Secretary of the Commonwealth Department of Community Services) Respondents MINUTES OF ORDER COURT: Woodward J. DATE: 26 March 1987 PLACE: Melbourne THE COURT ORDERS THAT: 1. The applicant's notice of motion dated 27 February 1987 -— be dismissed with costs. 2. The respondents' notice of motion dated 20 January 1987 be struck out, the applicant paying the respondents' costs. NOTE: The applicant's notice of motion dated 30 January 1946/ be struck out with no order as to costs. The orders for costs in Orders 1 and 2 be stayed for 21 days. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 415 of 1986 wwe rerew GENERAL DIVISION BETWEEN : J. L. HOSPITAL ENTERPRISES PTY LTD Applicant (Trading as "Lewisham Private Nursing Home") and THE HONOURABLE DONALD JAMES GRIMES (as the Commonwealth Minister of State for Community Services) and ALAN D. ROSE (as the Secretary of the Commonwealth Department of Community Services) Respondents COURT: Woodward J. DATE: 10 April 1987 PLACE: Melbourne EX-TEMPORE REASONS FOR JUDGMENT This 1s an application, pursuant to s.1l1(1)(c) of the Administrative Decisions (Judicial Review) Act 1977, ('the Act'), for the extension of time within which to bring an application to review an administrative decision. In my view this 1s one of the clearest cases that could be imagined for the refusal of relief under that paragraph. It 1s alleged on behalf of the applicant that it has been the victim of a continuing error of law in a series of administrative decisions since January 1983, although that error may have varied slightly in form from one year to another. The requirement of the Act is that applications be brought within 28 days of the making of a decision, or such further time as the court may allow. The only explanation for delay which has been offered on behalf of the applicant is that a director of the applicant who swore the supporting affidavit did not know of the applicant's right to bring action pursuant to the Act until 14 August 1986. However, evidence before me, which 1s uncontradicted, shows that the applicant failed to submit the necessary returns to the Department of Health on which relevant decisions had to be based, for the whole period between some time in 1982 when the applicant took over the business in question, and some time in the middle of October 1986 - in spite of letters drawing attention to that fact which were sent at least in the early part of 1986. So it is quite clear from that circumstance alone that the applicant was entirely careless about its rights to obtain a proper fixation of the appropriate fee scale for patients in its nursing home. It is a series of decisions on this matter, made between January 1983 and December 1986, which it now seeks to challenge. The second important factor is that the applicant was informed by letter of 1ts right to challenge any such fixation of fees by way of appeal to the Minister and it was so informed on two occasions in 1984, and again in June 1986. There is no evidence that at any time before November or December of 1986 was there any suggestion of any challenge to the determinations by the Minister's delegate. Until a late stage in the proceedings, there was no explanation for the delay between the middle of August, when legal advice was obtained, and early December 1986 when proceedings were unstituted. It appears that the applicant sought such advice on 14 August and was informed at that time of the necessity to take prompt action in accordance with the requirements of the relevant legislation; but it was only then that steps were first put in train to obtain and submit the necessary documentation to enable a proper determination by the Department to be made; and it was only on 15 October that the forms which should have been sent for the years beginning 1982/1983 up till October 1986 were finally sent to the Department. No decision to bring legal action was taken until a very short time before the proceedings were instituted in December. In those circumstances I can only find that the delay of 4 years - incorporating in that period a delay of some 4 months after obtaining legal advice - was both excessive and reprehensible, to use the language of Smithers ¢ in the case of intervest Corporation v Federal Commissioner of Taxation 58 ALR 317 at 325. . I have had regard to what counsel for the applicant has said about how much is at stake from the applicant's point of view, and I accept that the consequences in money terms are quite serious. Hut the fact remains that Lhe applicant has tol carried out the requirements of providing proper returns over the four year period that 1s 1n issue and, on the other hand, it 1s still open to the applicant to establish its rights for the future provided it now takes prompt action to institute fresh proceedings concerning the latest determination. I have considered the various matters set out by Wilcox J ina convenient summary of the types of matters that ought to be taken into account in determining this question of extension of time un relation to this legislation; see Hunter Valley Developments Pty Ltd wv Minister for Home Affairs and Environment (1984) 58 ALR 305 at 310-311. I have considered the merits of the application. I can only find there that the outcome 1s entirely uncertain. There are a number of actions of this type that have been brought in recent years. Some have succeeded and some have failed. The chances of succeeding when no proper returns have been made seem to me to be rather slim and the most recent trend of judicial opinion does seem to be running against the applicants in cases such as this, but I have no reason to believe that there would not be a serious issue to be tried if the matter were to go to trial. So far as prejudice is concerned, there is the obvious prejudice, referred to by Wilcox J, about the fading of memory concerning any particular determination, that took place as one of many hundreds of determinations, up to three and four years ago. But there is a much more serious consideration than that, and Wilcox J referred to it by using the expression, "the unsettling of other people that could result by a late application being made". This, 1t seems to me, would be a classic example of that occurrence, because the only order which the applicant could normally seek to achieve 1s that the appropriate charges to nursing home patients for the years from 1983 onwards should now be reviewed, and presumably increased. The problem that that would create in relation to patients whose affairs have been organized on the basis of the charges which were believed to be appropriate in the years 1983, 1984 and 1985 are obvious; the problems that would arise in relation to patients who have since died are equally obvious. It would be unfair to require recently admitted patients to pay higher fees because of an error which is now three or four years oid. It has been suggested on behalf of the applicant that a decision in its favour might in some way result in relief being available against the Commonwealth Government; but there is no authority for any such proposition, and it 15 not suggested there is any obvious form that such relief might take. Wilcox J also referred, amongst the matters to be taken into account, to the need for finality in matters such as this and to 1ts effect on other comparable cases. He also referred to the upsetting of established practices. The fact is, of course, that Department, and the Minister's delegates in particular, have been applying the approach which is sought to be challenged here in many other cases over the years to which the application relates; and to suggest now for the first time that those practices were wrong and should be upset retrospectively by way of review would be to create enormous probiems not only for the Department but tor all the other nursing homes which were ina similar position to the present applicant. For all these reasons it seems to me that the application is almost entirely without merit and ought to be dismissed with costs and that is the order I propose to make. The order for costs will be stayed for 21 days. That still leaves two other notices of motion, one of which I think can conveniently be struck out, because of the agreement that has been reached that fresh proceedings, provided they are instituted promptly, will not be challenged as being out of time so far as the latest determination of 5 March, revised on 14 March of this year, is concerned. That notice of motion was the one dated 30 March 1987 seeking leave to amend the present application. I shall strike that out on the understanding that I have indicated that there is an alternative course available to the applicant. There is no need to proceed with the respondents' notice of motion dated 20 January of this year because my dismissal of the applicant's notice of motion dated 27 February produces the same result. Perhaps as a matter of convenience it might be best if I also strike out the applicant's notice of motion. I certify that this and the five (5) preceding pages are a true and accurate copy of the Ex-Tempore Reasons for Judgment herein of The Hon Mr Justice Woodward fs Associate Dated: 10 April 1987 Counsel for the applicant: Mr B. Monott1 Solicitors for the applicant: Messrs McMahon, Fearnley & Kaynes Counsel for the respondent: Mr R.M. Downing Solicitors for the respondent: Australian Government Solicitor