Neviskia Pty Ltd v Podger, As the Secretary of the Commonwealth Department of Health & Aged Care [2000] FCA 1791

FEDERAL COURT OF AUSTRALIA

Neviskia Pty Ltd v Podger, The Secretary of the Commonwealth Department of Health & Aged Care [2000] FCA 1791 NEVISKIA PTY LTD v ANDREW PODGER (AS THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE) V 923 OF 2000 SUNDBERG J 11 DECEMBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 923 OF 2000

BETWEEN: NEVISKIA PTY LTD (ACN 006 552 763)

APPLICANT

AND: ANDREW PODGER (AS THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE)

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 11 DECEMBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The motion, notice of which is dated 28 November 2000, be dismissed.

2. The applicant pay the respondent's costs of the motion.

Note: 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 V 923 OF 2000

BETWEEN: NEVISKIA PTY LTD (ACN 006 552 763)

APPLICANT

AND: ANDREW PODGER (AS THE SECRETARY OF THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE)

RESPONDENT

JUDGE: SUNDBERG J

DATE: 11 DECEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By its Application the applicant alleges that decisions made by the respondent under ss 65 and 67 of the Aged Care Act 1997 ("the Act") were in three respects an improper exercise of power for the purposes of s 6(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The first is that each was an exercise of power for a purpose other than that for which the power is conferred. The second is that the exercise of power was in each case so unreasonable that no reasonable person could have so exercised the power. The third is that there was an abuse of power. The particulars of this ground are as follows: