Barnett, v Staples, Hon Peter as former Minister for Housing and Aged Care and / or the Minister for Human Services and Health [1996] FCA 51

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 877 of 1995

BETWEEN: ROSS BARNETT Applicant -and-

THE HON MR PETER STAPLES MP AS FORMER MINISTER FOR HOUSING AND AGED CARE AND/OR THE MINISTER FOR HUMAN SERVICES AND HEALTH Respondent

Coram: Olney J Place: Melbourne Date: 14 February 1996

MINUTE OF ORDER THE COURT ORDERS THAT the application to extend time to commence this proceeding be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in rule 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 877 of 1995

BETWEEN: ROSS BARNETT Applicant -and- THE HON MR PETER STAPLES MP AS FORMER MINISTER FOR HOUSING AND AGED CARE AND/OR THE MINISTER FOR HUMAN SERVICES AND HEALTH Respondent Coram: Olney J Place: Melbourne Date: 14 February 1996 REASONS FOR JUDGMENT The applicant seeks an extension of time within which to make application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to review a decision stated in a document dated 19 July 1990 addressed to Messrs Marshall, Marshall and Dent, solicitors, being a decision that: The AIP granted to [the Applicant] on 27 July 1988 was to relocate the existing AIP for a 30 bed nursing home [dated 23 September 1987] from one site to another. (The initials AIP are an abbreviation for the term approval in principle which is used in relevant sections of the National Health Act 1953 (Cwth)). The document referred to in the above extract from the proposed application is in fact a letter dated 19 July 1990 written by the then Federal Minister for Aged, Family and Health Services, the Hon Peter Staples MP, the full text of which is as follows:

Ms C. Miller Marshall, Marshall & Dent GPO Box 1645N MELBOURNE VIC 3001 Dear Ms Miller I refer to your telephone inquiry of 16 July on behalf of Mr Ross Barnett, proprietor of Balwyn Nursing Home, concerning eligibility of the home for funding under the Small Nursing Home Initiative. Circular CNH (NG) 89009 PE of July 1989 which sets out the new funding arrangements for small nursing homes provides under the heading "Capital Assistance for Redevelopment" at Paragraph B33 as follows: Homes are eligible for the $4000/$2000 per bed grants if their Approval-in-Principle (AIP) for new beds or their AIP to transfer beds was granted on or after 21 April 1988 (the day on which the CAM funding arrangements and the small homes policy were announced). The AIP referred to in this paragraph is an AIP to expand from a small home (whether by the granting of new beds or the acquisition of existing beds from another nursing home) to a non-small home. A small home being a nursing home with 20 beds or less as defined in the circular. An AIP to establish a 30 bed nursing home was first granted to Mr Barnett on 28 February 1986. The AIP granted to him on 27 July 1988 was to relocate the existing AIP for a 30 bed nursing home from one site to another. As such it is not an AIP to expand a small home, and therefore not an AIP of the type contemplated as eligible under the new funding arrangements for small nursing homes. Balwyn Nursing Home, with AIP for 30 beds since 1986, is not eligible for capital assistance under the small homes arrangements. Yours sincerely, (Sgd) Peter Staples A date stamp on the original letter suggests that it was received on 22 July 1990. It is common cause that the time prescribed by s 11 (1) of the ADJR Act for lodging the application for review expired at the end of the twenty-eighth day after the letter of 19 July 1990 was furnished to the applicant. However, the Court has a general discretion to allow an applicant further time within which to lodge an application.