CATCHWORDS Administrative law - Judicial review - Application for extension of time to apply for review of decisions ~ Proprietor of nursing home seeking increase in scale of fees - Applicant unaware of time limitations imposed by Judicial Review Act - Applicant experienced in business - Prejudice to public administration where acceptable explanation of delay lacking. Administrative Decisions (Judicial Review) Act 1977 - s.11 National Health Act 1953 - Part V F.J. HOSPITAL ENTERPRISES PTY. LTD. (trading as "Kinross Private Nursing Home") v. THE HONOURABLE DONALD JAMES GRIMES (as the Commonwealth Minister for Community Services) and ALAN D. ROSE (as the Secretary of the Commonwealth Department of Community Services) VG 370 of 1986 Jenkinson Jd. Melbourne ll August 1987 we pe i ee to er re oe te oe we " se, ro \ wo. ae ~t 2 . a . - Je na a Seer - - poe IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 370 of 1986 GENERAL DIVISION ) CORAM: DATE: THE COURT BETWEEN: F.d. HOSPITAL ENTERPRISES PTY. LTD. (trading as "Kinross Private Nursing Home") Applicant AND: THE HONOURABLE _ DONALD JAMES GRIMES (as the Commonwealth Minister for Community Services) AND: ALAN D. ROSE (as the Secretary of the Commonwealth Department of Community Services) Respondents Jenkinson 1l August, 1987 MINUTES OF ORDER ORDERS : That the motion of which notice was filed 15 June 1987 be dismissed. That the applications for orders of review specified in paragraphs (a), (b), (c), (dad), (e) and (f) of the amended originating application filed 19 June 1987 be dismissed. That the respondents' costs of the motions of which notice is specified in the notice filed 15 June 1987 and in paragraph 3 of the notice filed 18 November 1986 be paid by the applicant. That the respondents' costs of the applications for orders of review specified in paragraphs (a), (b), (ce), (ad), (e) and (£) of the said amended originating application be reserved. Note: That the directions hearing be adjourned to a date to be fixed by any party on reasonable notice to the other parties. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 2 ene ees wep we 1 Ae serge ope ron a " Pa rrr ce re "4 IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG 370 of 1986 GENERAL DIVISION ) BETWEEN: F.3d. HOSPITAL ENTERPRISES PTY. LTD. (trading as "Kinross Private Nursing Home") Applicant AND: THE HONOURABLE DONALD JAMES GRIMES (as the Commonwealth Minister for Community Services) AND: ALAN D. ROSE (as the Secretary of the Commonwealth Department of Community Services) Respondents CORAM: Jenkinson J. DATE: li August, 1987 REASONS FOR JUDGMENT Motion for extension of the time prescribed for the lodging of an application to this Court for an order of review in respect of each of six administrative decisions made under the National Health Act 1953. In June 1983 the applicant became, and has remained, the proprietor of a nursing home approved under Part V of that Act. In August 1983, in February, July and October 1984, in April 1986 and on 11 September 1986 a delegate of the person empowered by the Te at. sar pro oo eo een pet aw me ne pee ae wee ee ee a5 we Act to determine the scale of fees in relation to the nursing home made such a determination and furnished to the applicant within a few days after the determination was made a document setting out its terms. Application for an order of review in respect of the first, second, fourth and fifth of those determinations was lodged with a Registry of the Court on 24 October 1986, more than 28 days after the document setting out the terms of the last of the six determinations was furnished to the applicant. Pursuant to leave granted on 21 November 1986 the application was amended by adding, inter alia, the third and the sixth of the determinations as decisions in respect of which orders of review were sought. It is in respect of each of those six determinations that an order is sought extending, beyond the period of 28 days after the day on which the document setting out the terms of the determination was furnished to the applicant, the period within which an application for an order of review might be lodged with a Registry of the Court. (See s.1ll of the Administrative Decisions (Judicial Review) Act 1977.) The applicant's explanation of its failure to make its applications within the time prescribed by the Jlatter Act was given by one of its directors who deposed to his having "effective control" of the applicant. The explanation was that he was unaware until 14 August 1986 that provisions of the kind which are to be found in that Act existed. The deponent was cross~examined. He was a man in the sixth decade of his life who had had before 1983 experience in the conduct of businesses, including a nursing home business. He gave no indication that he lacked normal acumen. He had consulted accountants during the period between ry wove June 1983 and August 1986 in connection with the financial affairs of the nursing home business, which were as he swore in an unsatisfactory state, at least partly because the fees determined in relation to the nursing home were insufficient to match the expenses of conducting the home. The applicant had made a number of applications for increase of the scale of fees and had sought in 1984 a review by the Minister administering the National Health Act 1953 of the second of the six determinations. That application for review was subsequently withdrawn. The nursing home has more than 50 beds. The price paid by the applicant for the nursing home business was $455,000. The explanation offered for the applicant's failure to exercise the rights conferred on it by the Administrative Decisions (Judicial Review) Act 1977 has little about it to attract a favourable exercise of the discretion now invoked. Those who, having the ability to command good advice, fail in the conduct of very substantial affairs of business to take the steps necessary to obtain that advice in relation to those affairs, have scant claim on the indulgence of the community. Part V of the National Health Act 1953 prescribes a complex legislative and administrative scheme designed to ensure that public funds for subvention of the expense of nursing home care are fairly and wisely expended. The scheme included, during the period with which I am concerned, provision for the frequent adjustment of the scale of fees which may be charged in respect of that care in each approved nursing home in this country by yeference to a detailed examination of the expense of conducting oie an pee arte that home. Delay in that process of adjustment seriously impairs the efficient administration of what is undoubtedly a complex segment of public administration. That is a consideration against granting the extensions sought by the applicant. The complexity of the legal structure within which the administration of Part V operates makes it difficult to assess the applicant's prospects of success in respect of the applications which the grant of these extensions would enable it to prosecute. Although those prospects cannot be seen to be good, they must he conceded not to be illusory. There is no reason to suppose that the lapse of time since the determinations were made will impair the capacity of the respondents to contest any disputed issue of fact which might arise for determination in the proceedings which the applicant seeks to prosecute. If in consequence of the applicant's success in those proceedings scales of fees in respect of the nursing home were retrospectively increased, it was conceded to be possible that demands for further payment by or on behalf of patients in respect of past nursing home care might be made by the applicant. But, in the submission of Mr. Monotti of counsel for the applicant, the Court should not weigh that circumstance against the grant of the extensions, because the applicant would contend that the Court could and should order that the amounts which might be claimed from patients be paid out of Commonwealth funds, and because, whether or not such an order could be made, there might be a power wee ener ee i wee ey ee mart eomey rae yh ' oy renee QT Me ee tee er oagocom oye t en gree ee re eet a * in the Court to condition the relief it granted on the applicant's abstaining from making such demands. It is, on the view I have formed, unnecessary to take into consideration any prejudice the grant of extension might cause to those who are contractually liable to pay the nursing home fees of patients and former patients of the nursing home in respect of nursing home care during the periods to which the six determinations relate. Without regard to any such considerations, the proper exercise of the discretionary power invoked is in my opinion to refuse each of the extensions sought. Although in the case of the sixth determination only a short extension would be required, even that extension should in my opinion be refused. The lack of any acceptable explanation of the failure to bring the application within the time prescribed and the prejudice to public administration involved in the grant of any extension to a person unable to offer such an explanation are considerations of such weight, in all the circumstances of this case, that not even a short extension is in my opinion justified. It will be ordered that the motion of which notice was filed 15 dune 1987 be dismissed; that the applications for orders of review specified in paragraphs (a), (b), (c), (da), (e) and (f) of the amended originating application filed 19 June 1987 be dismissed; that the respondents' costs of the motions of which notice is specified in the notice filed 15 June 1987 and in paragraph 3 of the notice filed 18 November 1986 be paid by the applicant; that the respondents' costs of the applications for orders of review specified in paragraphs (a), (b), (c), (d), (e) and (f) of the said amended originating application be reserved; and that the directions hearing be adjourned to a date to be fixed by any party on reasonable notice to the other parties. Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondents Solicitors for the Respondent Dates of Nearing I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. Dated: 11 August, 1987 Mr. B.F. Monotti McMahon, Fearnley & Kaynes Mr. R.M. Downing Australian Government Solicitor 3 and 4 August, 1987 rer SRF ST ve : amt F tate iia neewarest wo ' - . er eerie, Bs woo mete ee es cee eee