Saitta Pty Ltd v Commonwealth of Australia [2000] FCA 1546

FEDERAL COURT OF AUSTRALIA

Saitta Pty Ltd v Commonwealth [2000] FCA 1546

PRACTICE AND PROCEDURE – separate applications for declaratory and injunctive relief brought by approved providers of aged care under Aged Care Act 1997 (Cth) – motion to stay or dismiss proceedings – whether jurisdiction under s 39B(1) or s 39B(1A)(c) of Judiciary Act 1903 (Cth) – whether availability of adequate alternative remedies renders application clearly foredoomed to fail – whether application brought in particular form in attempt to circumvent earlier orders made by another Judge of the Court – whether proceedings an abuse of process of the Court – whether inexcusable delay in instituting proceedings.

Aged Care Act 1997 (Cth) ss 54-2, 65-1, 67-1, 80-1, 85-5, 96-1 Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c) Federal Court Rules O 20 r 2 Accreditation Grant Principles for 1998 Accreditation Grant Principles for 1999 Transport Workers Union v Lee (1998) 84 FCR 60 at 66-67 applied In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-6 referred to Fencott v Muller (1983) 152 CLR 570 at 590, 601, 608 referred to Croome v Tasmania (1997) 191 CLR 119 at 125 referred to Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 15 referred to Abebe v The Commonwealth (1999) 197 CLR 510 referred to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to Felton v Mulligan (1971) 124 CLR 367 at 382, 391 referred to Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 441-2 referred to National Union of Workers v Davids Distribution Pty Ltd (1999) 165 ALR 595 referred to Bertran v Minister for Justice (1999) 94 FCR 404 at 409-410 referred to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz (1945) 70 CLR 141 at 154 referred to Australian Trade Commission v South Bank Corporation [2000] FCA 1322 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 applied R v Commonwealth Court of Conciliation and Arbitration; Ex parte The Brisbane Tramways Company Ltd [No 1] (1914) 18 CLR 54 at 66 and 86 referred to Church of Scientology v Woodward (1982) 154 CLR 25 at 65 referred to Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127 referred to Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 referred to Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575 referred to Vietnam Veterans' Associations of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 at 432 referred to Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 245 referred to Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 referred to Re Jonsson and Marine Council [No. 2] (1990) 12 AAR 323 at 335-341 referred to Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 at 26 referred to Land v Clyne (1968) 92 WN(NSW) 134 at 136 referred to Liverpool and London and Globe Insurance Co Ltd v JW Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 referred to Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498 referred to Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 referred to Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330 at pars 44-47 referred to Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434 at par 5 referred to Moore v Inglis (1976) 9 ALR 509 at 513-515 referred to Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 referred to Kizon v Palmer (No 2) (1998) 82 FCR 310 referred to Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 294-5 referred to Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 referred to Walton v Gardiner (1993) 177 CLR 378 at 393 referred to Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 at 82-85 referred to