5.4 The application for the first care declaration and the first responsibility declaration
79 BAC also challenges the delegate's "preliminary finding" or "conclusion" that deducting the cost of a special nurse from Mr Burke's RAD amounted to an apparent failure of the responsibility imposed on BAC by s 56-1(a)(i) of the Aged Care Act not to charge more than permitted by div 52C for care and services which it was required to provide (AS at [38]). The delegate is said to have made that "preliminary finding" on the basis that the engagement of the special nurse fell within the kind of "care" which BAC was required to provide under item 2.9 of the Care Principles because the intention was to "prevent or manage a particular condition or behaviour" (AS at [29]). BAC submits that this preliminary finding was "not open to the delegate" on the evidence and is based on a wrong construction of item 2.9 (AS at [30]-[34]). This is because, in BAC's submission, "the evidence available to the Commission (which is unchallenged) about the special nurse … demonstrates that a special nurse was engaged in response to the threat of violence form [sic] the resident" (AS at [28]), that is, to protect others from Mr Burke's violent behaviour. On this basis, BAC seeks declarations that: (1) the engagement of the nurse fell outside the kind of "care" which a provider is required to provide under item 2.9 of the Care Principles, being (in its submission) only care for the benefit of the resident; and (2) it did not fail to meet its responsibility to comply with s 56-1(a)(i) of the Aged Care Act.
80 For the following reasons, the application for these declarations (earlier described as the first care declaration and the first responsibility declaration) is incompetent.
81 BAC's contentions immediately confront the difficulty that no findings have in fact been made by the delegate and no decision has been made as to whether to issue a direction under s 19 of the Commission Rules. In order to address this difficulty, BAC effectively submitted that it could be inferred that the delegate would not depart from her preliminary findings given the following considerations:
(1) despite being described as a preliminary finding, the statutory scheme does not contemplate any further investigation being undertaken after the Notice was issued under s 20 of the Commission Rules;
(2) the evidence that the special nurse and security guard were retained to deal with Mr Burke's behavioural issues was not the subject of any contrary views expressed by the Commissioner;
(3) while the Commission Rules provide for the Commissioner (or the Commissioner's delegate) to express concerns in a s 20 Notice, they do not make provision for the making of "preliminary findings";
(4) the correspondence annexed to the first Dube affidavit suggests that the delegate has no intention of not issuing a direction under s 19; and
(5) save for the lay statements of evidence and the concession as to 20% of the nurse's time being for Mr Burke's benefit, all of BAC's material was already before the delegate when the Notice was issued and had clearly failed to persuade her of the force of BAC's case.
82 In my opinion, that evidence, whether considered separately or cumulatively, falls well short of providing a basis on which the inference for which BAC contends can be drawn. Ultimately the effect of BAC's submissions is to ask the Court to embark upon the impermissible task of merits review.
83 First, it may be accepted that the material provided by BAC to the Commission prior to the s 20 Notice had failed to persuade the delegate. The issue of the Notice and preliminary findings foreshadowed in the Notice make that clear. However, that does not establish that the delegate was determined to issue a direction under s 19 irrespective of the material provided by BAC subsequently in response to the invitation extended by the s 20 Notice.
84 Secondly, neither bias nor apprehended bias were raised as grounds of judicial review. There was, in other words, no allegation that the delegate has a mind closed to persuasion; nor was there any allegation of apprehended bias. Given their seriousness, it is well established that any such allegations must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J); at [127]-[128] (Kirby J); at [176] (Hayne J). Notwithstanding the ambiguity in BAC's oral submission that it was "not necessarily" alleging that the delegate is biased in the sense that she has a closed mind (T20.25-28), in these circumstances BAC cannot be taken to have put the matter in issue.
85 Thirdly, there is, with respect, no merit in the suggestion by BAC that, by making preliminary findings, the delegate acted in an unauthorised manner. The expression "preliminary findings" in the s 20 Notice and accompanying letter was plainly used as a means by which the delegate explained her concerns with respect to Issue 2 for the purposes of s 20 of the Commission Rules after concluding her investigation on that issue. In any event, there is nothing in the legislative scheme preventing the Commissioner or her or his delegate from setting out preliminary findings and inviting comment from BAC as an aspect of affording BAC procedural fairness. In this regard, there is (correctly) no suggestion that s 20 of the Commission Rules was intended to prescribe the content of the Commissioner's procedural fairness obligations as an exhaustive code, leaving no room for the common law hearing rule otherwise to apply.
86 Fourthly, the evidence falls well short of establishing that the preliminary findings are a fait accompli. To the contrary, the "findings" are described as "preliminary" and were put to BAC via the Notice in accordance with the delegate's procedural fairness obligations under s 20 of the Commission Rules. Moreover, in line with the obligation on the delegate under s 20(3) of the Commission Rules to take BAC's response to the s 20 Notice into account, the s 20 Notice:
(1) invites BAC to respond to the concerns detailed in the Notice;
(2) invites BAC to describe in detail any actions that have been or will be taken to address the concerns in the Notice; and
(3) explains that, after considering BAC's response, the delegate "may" give a s 19(1) direction or decide to end the resolution process under s 17(1)(b) of the Commission Rules.
87 The covering letter from the delegate that accompanied the s 20 Notice also invited BAC to respond and explained that:
I will carefully consider any response given by you before determining whether to give you Directions. If I am satisfied that you are not meeting your responsibilities under the Aged Care Act 1997 (the Aged Care Act) or the Aged Care Principles, I may direct you to take specific actions (Directions) in order to meet those responsibilities.
If I am satisfied that your response demonstrates that you have taken action to address the concerns and meet your responsibilities under the Aged Care Act and Aged Care Principles, I may decide not to give Directions and end the resolution process for Issue 2.
88 The new material provided to the delegate by BAC was also potentially significant to the decision yet to be made by the delegate, as was the concession as to 20% of the care afforded by the special nurse. For example, even if the delegate accepted that some of the services rendered by the special nurse did not constitute "care" for the purposes of item 2.9 of the Care Principles, the delegate might not accept BAC's evidence that only 20% of those services constituted "care" in the relevant sense. The delegate might for example find that the appropriate percentage is greater. Thus, as Ms Slack, counsel for the Commissioner, submitted:
Maybe they consider it's 25 per cent. Maybe they consider it's 35 per cent. So the direction might be, "You should refund an additional five per cent," or an additional 15 per cent. That may be a conclusion that Ms Burke and her father are not happy with, and then that would re-enliven or give her the ability to seek review in respect of that finding.
So it's not this binary option of either the direction in the terms that Byron Aged Care want is made - or do not want is made - or it is. There are other options that are thrown up by the very evidence that Byron Aged Care relies on in these proceedings.
(T47.19-29)
89 In the fifth place, in support of the inference which it asks the Court to draw, BAC relies upon correspondence from the Commission's solicitors dated 28 May 2021 and 17 June 2021 at Annexures BD-1 and BD-3 to the first Dube affidavit. While this correspondence was stated to be "without prejudice", as earlier stated the parties jointly waived the privilege.
90 In the correspondence, the Commissioner's solicitors offered to issue a further notice under s 20 which would include "details of directions that may be made" under s 19 of the Commission Rules and, "after considering any response from your client, the delegate of the Commissioner would proceed to make a decision as to whether or not to give Directions to your client under section 19 of the Commission Rules" (emphasis added). In return, the Commissioner sought that BAC discontinue the present proceedings. Contrary to the implication which BAC asks the Court to draw, it cannot be inferred from the Commissioner's offer to issue a further s 20 notice, in circumstances where BAC had already responded to the initial s 20 Notice, that a decision must already have been made by the delegate to give directions under s 19. Rather, the Commissioner's offer is explained by the context in which it was made, namely: an attempt by the Commissioner to remedy the complaint then made by BAC of a breach of procedural fairness by reason of the delegate having allegedly failed to give notice of the specified action which she proposed to direct BAC to take (a complaint subsequently abandoned by BAC in its amended originating application as ultimately filed). The suggestion that the "without prejudice" correspondence from the Commissioner establishes that the delegate intends to issue a s 19 direction irrespective of BAC's response therefore not only ignores the context in which the offer was made, but is contradicted by the fact that that correspondence expressly acknowledged that the delegate would make a decision as to whether or not to give s 19 directions "after considering any response from [BAC]".
91 It follows for all of these reasons that BAC has not established on the balance of probabilities that there is no realistic possibility that the delegate might decide against issuing a direction under s 19 of the Commission Rules.
92 In addition, BAC's submissions assume among other things that: (1) its evidence as to BAC's subjective purpose in engaging the nurse for 80% of her services is "uncontentious" in the sense that it will be wholly accepted by the delegate; and (2) contrary to the delegate's preliminary finding, it inevitably follows as a matter of law that the delegate would be satisfied that the provision of those services cannot in whole or in part be characterised as "care" for the purposes of item 2.9. Yet these are inevitably questions of fact and degree which lie exclusively within the province of the Commission to determine under the Commission Rules. Indeed, the late concession by BAC that 20% of the special nurse's time was properly characterised as "care" demonstrates the fallacy in the "bright line" distinction which BAC seeks to draw.
93 In this regard, even on BAC's construction of "care" for the purposes of item 2.9, taking steps to manage those aspects of a behavioural disorder which lead the person to act aggressively and violently towards others may, depending upon the circumstances, reasonably be regarded as falling within the concept of "care" for the purposes of the item. By way of illustration, the submissions from BAC to the delegate dated 16 March 2021 state that "[t]he role of the 'special' engaged by BAC was to supervise Mr Burke and to distract and redirect him when the possibility of his injuring another person arose" (first Kelly affidavit, Annexure IK-21, p 196). More specifically, in her statement provided to the delegate by BAC, the nurse supervising the specials attending to Mr Burke explained that, even though use of the specials before the security guard was engaged had not been successful in managing his behavioural issues, their role was to keep Mr Burke distracted by using "diversional strategies such as playing soccer, turning on the tv, focussing him on favoured activities (e.g. washing up), providing finger food, music/headphones" (first Kelly affidavit, Annexure IK-21, p 202). She also explained that:
The specials attended solely on Mr Burke. They undertook his activities of daily living. I would describe it as companion care where the object was for the special to keep engaging Mr Burke to distract him from undertaking inappropriate behaviour.
(Id at p 203.)
94 Ultimately this analysis reveals that BAC's application for the first care declaration and the first responsibility declaration ask the Court impermissibly to embark upon the fact finding exercise entrusted to the Commissioner and seek advice from the Court as to the legality of any decision by the delegate to issue a s 19 direction if she were to make the findings foreshadowed in the s 20 Notice. It follows that BAC's submission that its application does not invite a review of the merits but merely seeks the answer to legal questions on the basis of the material before the (administrative) decision-maker does not, with respect, withstand analysis (AS at [22]).
95 In this regard, the decision in Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177; (2018) 261 FCR 120 (Mortimer J) on which BAC relied in support of its submission that the declaratory relief sought was not hypothetical and should be granted, is distinguishable. In contrast to the present case, that case did not arise from a complaint made to the Commission under the Commission Rules. Rather, Regis Aged Care (Regis) sought declaratory relief to put beyond doubt its capacity to lawfully impose a charge on certain individuals receiving care in aged care facilities operated by Regis in light of the real and uncontested prospect of regulatory action against Regis in relation to the imposition of the charge and steps already taken by the respondent in that regard: Regis at [3]. Furthermore, and again in contrast to the present case, Regis proceeded on agreed facts which were admitted in evidence pursuant to s 191 of the Evidence Act 1995 (Cth) and there was no suggestion by the Secretary of the Department of Health that the relief sought was hypothetical: Regis at [3] and [6].
96 Finally, the first care declaration and the first responsibility declaration assume that if the Court determined that the special nurse did not provide "care" to Mr Burke for the purposes of item 2.9 of the Care Principles, that answer would resolve the dispute and exonerate BAC of any failure to meet its responsibilities under s 56-1(a)(i) of the Aged Care Act. However, as the Commissioner submitted, that assumption is incorrect. It would leave unanswered the question of whether the special nurse provided a "service" to Mr Burke within the meaning of item 2.9 of the Care Principles which, depending upon the views formed by the delegate, potentially provides an alternative basis on which a s 20 notice could issue to BAC and a s 19 direction be made. In those circumstances, there is no certainty that the declarations sought would finally settle the dispute: see e.g. Bass at [48] (quoted above at [68]). This is a further reason as to why this declaratory relief would have been refused in any event.