McGough v The Aged Care Quality and Safety Commissioner [2022] FCA 523

Federal Court of Australia

McGough v The Aged Care Quality and Safety Commissioner [2022] FCA 523 File number: WAD 188 of 2021

Judgment of: BANKS-SMITH J

Date of judgment: 10 May 2022

Catchwords: ADMINISTRATIVE LAW - judicial review - applicant's mother a care recipient in nursing home run by approved provider under the Aged Care Act 1997 (Cth) - where following certain incidents the approved provider determined to deny applicant access to nursing home to visit mother - delegate of Secretary of Department of Health and Ageing investigated complaint and found approved provider breached access obligation but because conditional access had since been offered, no notice of action relating to the breach should issue - delegate of Aged Care Commissioner carried out examination under Aged Care Act and found no breach of access obligation - recommendation made to Secretary to that effect - where Secretary reconsidered complaint in accordance with Aged Care Act and accepted Secretary's recommendation - where decisions and recommendation made in 2009 and 2010 - where application for judicial review filed over 4,000 days after decisions and recommendation - whether extension of time should be granted under Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether relief under s 39B of the Judiciary Act 1903 (Cth) should be refused as a matter of discretion - where approved provider deregistered in 2013 - where care recipient has passed away - whether utility in any relief - merits of grounds - whether applicant denied procedural fairness in complaint and investigation process - whether decision makers failed to have regard to evidence - construction of provision (s 23.8 of User Rights Principles 1997) imposing obligation on approved provider to facilitate access - competing statutory obligations to act in accordance with list of stated care recipients' rights - whether decision maker failed to properly understand and apply terms of s 23.8 - where grounds have no reasonable prospect of success - where delay, lack of utility and absence of sufficiently arguable grounds inform exercise of discretion as to both extension of time for purpose of Administrative Decisions (Judicial Review) Act and relief under Judiciary Act