People with Disabilities Australia Incorporated v Minister for Disability Services

Supreme Court of NSW|2014-11-28|Before: Campbell J

Judgment 1I apologise to the parties for the long delay in delivering this judgment. 2By Amended Statement of Claim filed on 6th June 2013 People With Disability Australia Incorporated (PWD) claims an order in the nature of mandamus directing the Minister for Disability Services (the Minister) to perform his statutory duty under s 6(1) Disability Services Act 1993 (NSW) (the Act) to provide designated services to people with disabilities residing in facilities known as Summer Hill Group Homes, Casuarina Grove and Norton Road Specialist Supported Living Units, on the one hand, and funding designated services to people with disabilities who reside in the facility known as the Wadalba Group Homes, on the other, (together the "facilities") in conformity with the stated objects of the Act, and the principles and applications of principles expressed in Schedule 1 to the Act. Alternatively, PWD claims a declaration that the provision and funding of the faciciities is in breach of the Minister's statutory duty. 3The Minister moves for an order for summary dismissal of the proceedings. In the alternative, the Minister claims an order striking out the Amended Statement of Claim as non-compliant with the Rules.

Background 4These proceedings form part of a long-running dispute between PWD and the Minister which has been ventilated in a series of proceedings in the former Administrative Decisions Tribunal (ADT) and in the Court of Appeal. The ADT proceedings never reached finality being discontinued to make way for this action. 5The issue is that PWD claims that the facilities are examples of a "cluster model" of residential facilities for disabled persons which do not comply with the Minister's obligations under the Act. 6Further background is narrated in People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 at [42] - [51] and in People with Disability Australia Incorporated v Minister for Disability Services [2013] NSWSC 467 [5] - [12]. 7At [12] of the second decision, Davies J gave a general description of the facilities which I have adapted to the following terms: (a)The Norton Road facility involves 10 homes in close proximity to each other, each with 5 bedrooms, housing people with disabilities; (b)The Summer Hill facility involves 2 homes (2 wings), each with 10 bedrooms and is specifically designed for, and provides accommodation for, people with significant disabilities who also have complex health needs requiring very significant medical attention; (c)Casuarina Grove facility involves 10 homes in close proximity, each of which has 10 bedrooms. It is designed and operates as an aged care facility for people with disabilities including those with intellectual disabilities and complex age-related needs; (d)The Wildalba facility is privately owned and operated, but funded by the Minister. It consists of 4 separate homes on a large suburban block, each of which houses 5 residents with disabilities. Together the facilities have the capacity to house 190 people; they represent a capital investment of $68.5m and, clearly, significant expenditure to meet ongoing operating costs.

Principles to be applied in an application for summary judgment 8The test to be satisfied before a court is justified in summarily dismissing proceedings regularly commenced has been expressed in various ways: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at [91]; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 - 130. More recent decisions of appellate courts have emphasised that however expressed, the test requires "certain demonstration of the outcome of the litigation, not an assessment of the prospect of its success": Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 at 140 [54] by Hayne, Crennan, Kiefel and Bell JJ. 9Spencer concerned s 31A(2) Federal Court of Australia Act 1976 (Cth) which is different from Rule 13.4 Uniform Civil Procedure Rules 2005 (NSW). The different language may be taken to suggest a test which does involve an assessment of prospects of success. The Federal Court provision "was derived from a British precedent": Spencer at 129 [20] per French CJ and Gummow J. Even when applying that different, perhaps less stringent test, it is recognised that "more complex cases are unlikely to be capable of being resolved [by summary judgment] without conducting a mini-trial on the documents, without discovery, without oral evidence ...[T]hat is not the object of the rule. It is designed to deal with cases that are not fit for trial at all": Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 at 260 [94] - [95] by Lord Hope of Craighead. 10In Agar v Hyde (2000) 201 CLR 552 at 575 -576 [57] Gaudron, McHugh, Gummow and Hayne JJ said: Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. From these statements of principles, it is easy to understand the stated need for "exceptional caution" in exercising the power of summary dismissal: General Steel Industries at 129. 11When applying these principles I am required to take the case as pleaded by the plaintiff, and the evidence lead by it, at its highest, read in the way most favourable to PWD. The question is not confined to the case pleaded, I am also required to consider whether the material before me discloses a "pleadable" case.

The Minister's case for summary dismissal 12The Minister advanced four arguments. In summary they are: (a)the plaintiff has not identified any unlawful decision. Indeed it has expressly eschewed the need to do so. However, the Minister says manifestly "there are operative decisions ... which would need to be challenged and set aside" for this case to succeed; (b)mandamus does not lie in the absence of jurisdictional error "that is amenable to an order in the nature of mandamus, i.e. a duty imposed on the Minister that remains unperformed"; (c)Section 25 of the Act precludes judicial review sufficiently to catch this case; (d)As a matter of statutory construction, s 6(1) of the Act "does not give rise to a directly enforceable duty of a kind contended for by the plaintiff". The plaintiff joins issue with the defendant on its argument.

The Act 13It is necessary to identify the provisions of the legislation central to the arguments of the parties. The plaintiff says the statutory duty owed by the Minister is imposed by s 6(1) of the Act which is in the following terms: It is the duty of the Minister in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1. The section expressly creates a duty, as can be seen, to ensure that services are provided and funded in conformity with the objects of the Act. Those objects are expressed in s 3, which is in the following terms: (a) to ensure the provision of services necessary to enable persons with disabilities to achieve their maximum potential as members of the community, and (b) to ensure the provision of services that: (i) further the integration of persons with disabilities in the community and complement services available generally to such persons in the community, and (ii) enable persons with disabilities to achieve positive outcomes, such as increased independence, employment opportunities and integration in the community, and (iii) are provided in ways that promote in the community a positive image of persons with disabilities and enhance their self-esteem, and (c) to ensure that the outcomes achieved by persons with disabilities by the provision of services for them are taken into account in the granting of financial assistance for the provision of such services, and (d) to encourage innovation in the provision of services for persons with disabilities, and (e) to achieve positive outcomes, such as increased independence, employment opportunities and integration in the community, for persons with disabilities, and (f) to ensure that designated services for persons with disabilities are developed and reviewed on a periodic basis through the use of forward plans. 14The duty extends to ensuring that the designated services are provided and funded in conformity with the principles and applications of principles expressed in Schedule 1 to the Act. Schedule 1 is in the following terms: Persons with disabilities have the same basic human rights as other members of Australian society. They also have the rights needed to ensure that their specific needs are met. Their rights, which apply irrespective of the nature, origin, type or degree of disability, include the following: (a) persons with disabilities are individuals who have the inherent right to respect for their human worth and dignity, (b) persons with disabilities have the right to live in and be part of the community, (c) persons with disabilities have the right to realise their individual capacities for physical, social, emotional and intellectual development, (d) persons with disabilities have the same rights as other members of Australian society to services which will support their attaining a reasonable quality of life, (e) persons with disabilities have the right to choose their own lifestyle and to have access to information, provided in a manner appropriate to their disability and cultural background, necessary to allow informed choice, (f) persons with disabilities have the same right as other members of Australian society to participate in the decisions which affect their lives, (g) persons with disabilities receiving services have the same right as other members of Australian society to receive those services in a manner which results in the least restriction of their rights and opportunities, (h) persons with disabilities have the right to pursue any grievance in relation to services without fear of the services being discontinued or recrimination from service providers, (i) persons with disabilities have the right to protection from neglect, abuse and exploitation. 2 Applications of principles Services and programs of services must apply the principles set out in clause 1. In particular, they must be designed and administered so as to achieve the following: (a) to have as their focus the achievement of positive outcomes for persons with disabilities, such as increased independence, employment opportunities and integration into the community, (b) to contribute to ensuring that the conditions of the everyday life of persons with disabilities are the same as, or as close as possible to, norms and patterns which are valued in the general community, (c) to form part of local co-ordinated service systems and other services generally available to members of the community, wherever possible, (d) to meet the individual needs and goals of the persons with disabilities receiving services, (e) to meet the needs of persons with disabilities who experience an additional disadvantage as a result of their gender, ethnic origin or Aboriginality, (f) to promote recognition of the competence of, and enhance the image of, persons with disabilities, (g) to promote the participation of persons with disabilities in the life of the local community through maximum physical and social integration in that community, (h) to ensure that no single organisation providing services exercises control over all or most aspects of the life of a person with disabilities, (i) to ensure that organisations providing services (whether specifically to persons with disabilities or generally to members of the community) are accountable to persons with disabilities who use them, the advocates of those persons, the State and the community generally for the provision of information from which the quality of those services can be judged, (j) to provide opportunities for persons with disabilities to reach goals and enjoy lifestyles which are valued by the community generally and are appropriate to their chronological age, (k) to ensure that persons with disabilities participate in the decisions that affect their lives, (l) to ensure that persons with disabilities have access to advocacy support where necessary to ensure adequate participation in decision-making about the services they receive, (m) to recognise the importance of preserving the family relationships and the cultural and linguistic environments of persons with disabilities, (n) to ensure that appropriate avenues exist for persons with disabilities to raise and have resolved any grievances about services, and to ensure that a person raising any such grievance does not suffer any reprisal, (o) to provide persons with disabilities with, and encourage them to make use of, avenues for participating in the planning and operation of services and programs which they receive and to provide opportunities for consultation in relation to the development of major policy and program changes, (p) to respect the rights of persons with disabilities to privacy and confidentiality. Clearly, these are important goals. As the principles are applicable "irrespective of the nature, origin, type or degree of disability" they are understandably expressed in language of some generality. 15"Designated services" are defined as a service that is provided or funded by the Minister and belonging to a class of services so prescribed by the Regulation for the purpose of the definition. With some refinements, Clause 4 Disabilities Services Regulation 2010 prescribes "all services provided or funded by the Minister" as designated services. It may be taken that the facilities are designated services. 16Section 8 is in the following terms: (1) The Minister has the function of facilitating the provision of designated services to persons in the target group. (2) The function may be exercised in one or more of the following ways: (a) by the provision of designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, or (b) by the provision of financial assistance, either directly to persons in the target group or indirectly through other persons or bodies, or (c) by the encouragement of the provision of services to persons in the target group by other persons and bodies. 17Section 5 describes the target group, essentially as persons having a permanent disability attributable to impairment of the body or mind that results in "a significantly reduced capacity in one or more major life activities". 18Sections 10, 11 and 12 make the following provisions in relation to the provision of financial assistance by the Minister: 10 Financial assistance (1) The Minister may approve the provision of financial assistance: (a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or (b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services, or (c) to a person or eligible organisation conducting, or proposing to conduct, an approved research or development activity for the purpose of enabling the person or organisation to conduct that activity. (2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1. 11 Terms and conditions on which financial assistance to be approved generally When approving the provision of financial assistance, the Minister must determine: (a) the amount of the assistance or the manner in which the amount of the assistance is to be calculated, and (b) the time or times at which, and the instalments (if any) in which, the assistance is to be paid, and (c) the terms and conditions on which the assistance is to be provided. 12 Terms and conditions with respect to eligible organisations (1) The terms and conditions on which financial assistance may be provided to an eligible organisation in relation to the provision of designated services must deal with each of the following matters: (a) the extent to which the organisation must conform to the principles and applications of principles set out in Schedule 1 in connection with the provision of those services, (b) the purposes for which the financial assistance may be applied, (c) the amounts to be applied for those purposes, (d) the outcomes to be achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services, and their rights in relation to the provision of designated services or otherwise, (e) the performance indicators to be used in measuring the outcomes achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services. (2) Without limiting section 11 (c), the terms and conditions on which financial assistance may be provided to an eligible organisation in relation to the provision of designated services may also deal with any one or more of the following matters: (a) the agreements to be entered into, between: (i) the eligible organisation, and (ii) persons in the target group to whom it provides designated services, or persons acting on their behalf, in relation to the provision of those services, (b) the furnishing of information, (c) the provision of certificates with respect to the fulfilment of terms and conditions, (d) the repayment of financial assistance, (e) the giving of security for the fulfilment of terms and conditions, (f) the use and disposal of, and the recovery of amounts that under the terms and conditions are to be taken as representing the State's interest in: (i) land acquired (with or without buildings), and (ii) buildings acquired, erected, altered or extended, and (iii) equipment acquired, altered or installed, as a result of the application of the financial assistance or of the financial assistance and other money 19It is notable that s 12 requires the terms and conditions on which financial assistance is provided to "deal with ... the extent to which" the assisted organisation "must conform to the principles and applications of principles set out in schedule 1" (emphasis added). 20By s 15 compliance reviews are required every 3 years. 21Section 19 recognises the financial constraints and limitations of resources under which the Minister exercises his or her statutory powers. That section is in the following terms: (1) Payments of financial assistance are to be made from funds to be appropriated by Parliament for the purpose. (2) Nothing in this Act requires a payment of financial assistance to be made otherwise than from funds that are available to the Minister for that purpose and, in particular, subsection (1) does not operate so as to appropriate money for the purpose of enabling such a payment to be made. 22By s 20 certain "decisions" relating to the provision of financial assistance are reviewable under s 28 Community Services (Complaints Reviews and Monitoring) Act 1993 (NSW). (CRM Act). These include decisions approving the provision of financial assistance that should not have been given because the assistance "will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1". And decisions to provide financial assistance, the terms and conditions of which "do not comply with s 12". 23I accept the submission of the Minister that it's also pertinent to have regard to the provisions of the CRM Act. It is apparent that the Acts form part of a scheme of "community welfare legislation". Indeed, the definition of that phrase in s 4 CRM Act includes the Act and "instruments in force" under it. Section 5 is of central significance. Including its heading (not part of the statute), it is in the following terms: 5 Administration of community welfare legislation (1) The determination of an issue under this Act, and any decision or recommendation on a matter arising from the operation of this Act, must not be made in a way that is (or that requires the taking of action that is): (a) beyond the resources appropriated by Parliament for the delivery of community services, or (b) inconsistent with the way in which those resources have been allocated by the Minister for Family and Community Services, the Minister for Ageing, the Minister for Disability Services or the Secretary of the Department of Family and Community Services in accordance with Government policy, or (c) inconsistent with Government policy, as certified in writing by the Minister for Family and Community Services, the Minister for Ageing or the Minister for Disability Services and notified to the Tribunal, the Commission for Children and Young People or other person or body making the determination. (2) This section does not apply to the exercise of any function of the Ombudsman under this Act. 24S 28 is also relevant to this case, it is in the following terms: 28 Applications to Tribunal for administrative reviews of decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) a decision that is an administratively reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 20 of the Disability Services Act 1993 or section 245 of the Children and Young Persons (Care and Protection) Act 1998, (a1) a decision that is an administratively reviewable decision for external review under section 192 of the National Law Alignment Provisions (within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011), (b) a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section, (c) a decision that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section, (d) a decision made by any State Minister, any Commonwealth Minister or any public authority, not being a relevant decision maker, if it is within a class of decisions that, with the consent of the Minister or public authority, is prescribed by the regulations for the purposes of this section. (2) In this section: relevant decision maker means the following: (a) the Minister for Family and Community Services, (b) the Minister for Ageing, (c) the Minister for Disability Services, (d) the Secretary of the Department of Family and Community Services, (e) a service provider (other than an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998). As I have already pointed s 20 of the Act makes express provision for the classes of decisions which are reviewable under s 28. Moreover, the Minister is a relevant "decision maker" as defined by s 28(2) for the purpose of s 28(1) (c).

The plaintiff's case 25In its Amended Statement of Claim PWD, sets out allegations in relation to each of the facilities in terms broadly consistent with what I have summarised as background facts from previous decisions. PWD pleads as a material fact, that each of the facilities is a "cluster home" (ASOC [10]) and, for that reason alone, each is "an institutionalised environment ... controlled by one organisation" (ASOC [11]). 26By ASOC [12] PWD avers that the Minister is under a public duty in the terms imposed by s 6(1) of the Act when providing and funding designated services to the residents of the facilities. 27By ASOC [13] PWD alleges breaches of that duty in these respects: (a)scientific research has found that cluster homes are significantly less likely to promote the social inclusion of people with disabilities than the alternative model of dispersed housing provisions; (b)the size and the location of the facilities sets up communities which are inward looking, as opposed to homes that are dispersed in the community with the residents being supported to become actively engaged in the community. Particulars of the breach are provided by reference to expert reports of Professor Emerson, Professor O'Brien and Professor Bigby, to which I will return. 28The pleading sets out averments of breaches of several of the objects of the Act, the principles and applications of principles in Schedule 1 to the Act. The pleading of these matters basically follows a pattern similar to that set out at [27] above. The various averments include the following: (a)cluster homes are significantly less likely to promote personal development of people with disabilities than the alternative model of dispersed housing; (b)living in smaller groups demands outward looking strategies for friendships and social activities, whereas larger groups can survive through looking inwards, which is not conducive to social inclusion and community integration; (c)the facilities do not contribute to ensuring that the conditions of the everyday life of the residents are the same as, or as close as possible to norms and patterns which are valued in the community generally because they are institutionalised environments; (d)the facilities do not promote independence or personal growth and development, but are strongly associated with loss of skills and the development of maladaptive and antisocial behaviours essentially because large accommodation models meet the needs of the group, not the individual resident; (e)the facilities are "more restrictive" of the rights and opportunities of residents to, and for, housing and social services because of the adoption of standardised models of care and routines. These promote administration of the institution, rather than the condition of the individual resident; (f)institutionalised environments are more likely to result in neglect or abuse of residents; (g)in the aforegoing premises, the facilities "are more likely" to diminish the dignity, image and self-esteem of the residents; (h)the facilities "are less likely" to permit individualisation of service delivery for the reasons already given; (i)individual residents are subject to organisational control over most aspects of their daily lives. 29By ASOC [23] it is averred that the Minister has refused to perform his duty. The thrust of the particulars provided are that upon the commencement of the Act, or thereabouts, the then Minister adopted "transition plans" under s 7 of the Act for "non-congregated" housing in the community for residents who were subsequently transferred to the three state-operated and funded facilities. These plans were not implemented and PWD has notified the Minister that facilities do not comply with the Act. Reliance is also placed upon the commencement of proceedings in the former Administrative Decisions Tribunal as putting the Minister on notice that PWD said he or she has not complied with his or her public law duty. 30Apart from the particulars referred to in the immediately preceding paragraph, all other averments are particularised by the incorporation in the most general terms of the contents of the expert reports. The expert reports referred to were received in evidence under r 13.4(2).

Summary of the expert evidence 31In his report of 23rd January 2012, Professor Eric Emerson expressed the opinion that the services provided at Norton Road and Casuarina Grove were examples of the "cluster model". There was nothing to suggest that they were not exemplary examples of that model. However, he pointed out that the model had been abandoned in the United Kingdom following a review of 10 separate scientific studies of the cluster model in the UK, Ireland, Australia and the Netherlands. In his opinion, the facilities were "highly unlikely to be in conformity" with the objects and principles in the Act. This is because he accepted the conclusions of the authors of two reviews of research literature that "clustered housing provides poorer outcomes than dispersed housing for people with intellectual disabilities". However, one author also concluded "clustered settings have been found to be superior" in many respects, but "in many of these cases the better results refer only to village communities and not to campus housing or clustered housing". 32Dr Emerson said that the facilities were not "village communities". 33Dr Emerson said "the available evidence clearly indicates that cluster/campus housing is significantly less likely to promote the rights of people with disability than the alternative service model of dispersed housing provisions". He concluded "the available evidence suggests that poorer outcomes are associated with campus/cluster housing when compared to dispersed (more inclusive) housing schemes". 34Interestingly, in her report of the 24th February 2012, Professor Patricia O'Brien described Norton Road and Casuarina as village style accommodation. She expressed the view "[a] better placement in terms of supporting people develop a positive image would be to rebuild in locations that are positively valued by members of the community". The facilities are better than former institutions, but centralisation of services in relation to the current facilities unavoidably places restrictions on residents' individual choice and their quality of life. 35The size of all the facilities worked against the integration of residents into the community. She expressed the following views: ([25] - [26]): Living in a smaller group demands outward looking strategies for friendship and social activities whereas larger groups can survive through looking inwards which is not conducive to social inclusion and community and integration. and Community integration is about we and making we needs to be premised not on one size fits all but through one person at a time or a small group of people finding their place in their local or surrounding communities through making a reciprocal contribution. 36In her report of 24th February 2012, Professor Christine Bigby expressed the opinion that the facilities do not conform to the objects of the Act, or to the principles and application of the principles set out in the schedule. This was because of the nature of the developments where the shared houses are congregated together on single sites, that is to say, the cluster homes model. The cluster model design "means that residents have restricted opportunities to achieve their maximum potential to develop skills, exercise choice and engagement in their everyday lives and to be present in the community and use facilities available to other members of the community". The model she prefers as likely to produce better outcomes is one where small group homes of four to six residents are dispersed among other ordinary houses in the community. Her report contains a detailed analysis of the scientific literature. She expressed the final view: In summary, it is my view the facilities at Casuarina Grove and Norton Road do not meet the objects [of the Act] and will be detrimental to future generations of people with intellectual disability in New South Wales. It is also very clear that the facilities are not in accordance with the aims or expectations of the United Nations Convention on the rights of persons with disabilities for which Australia is a signatory. 37With respect, none of these eminent experts undertake any cost benefit analysis. That is to say, none of the reports attempts any comparative costing of the facilities with the model they advocate whether in the light of financial resources available to the Minister or otherwise. There is no assessment of the cost of change or transition; nor is there any evidence provided about current availability of suitable accommodation, or the time necessary to effect change from cluster housing to a more dispersed model.

Issues 1 and 2 - no decisions impugned and the nature of mandamus 38The first two issues are closely inter-related and ought to be considered together. 39PWD expressly eschews impugning any specific decision made by the Minister to provide the facilities or finance them. It does not seek judicial review of the decision, or decisions, establishing facilities on the cluster model, or instituting this system of providing these services to the disabled people affected. Rather, it challenges on administrative law bases the ongoing operation of the facilities as a form of continuing administrative action. This approach may well be an "election", properly so called, to avoid any attempt at impugning specific decisions lest the claims for relief flounder in the shoals of s 20 of the Act and ss 5 and 28 of CRM Act, at least on discretionary grounds. I interpolate, attempting to avoid this potential issue may be difficult. 40In my judgment it cannot be said with the necessary certainty that this approach is not available to the plaintiff. The scope of mandamus is authoritatively stated in R v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 where Rich, Dixon and McTiernan JJ said at 242: A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. Here, the Justices express a major premise going to the nature of mandamus generally, and the minor premise describing its operation in the case of a "tribunal". The Minister is not a tribunal "charged by law with the duty of ascertaining or determining facts upon which rights depend". Here, PWD is seeking "to command the fulfilment of [a] duty of a public nature" which PWD says "remains unperformed". It is arguable, and that is sufficient for present purposes, that s 6 of the Act imposes such a duty. That argument arises from the express language of the Section: "it is the duty of the Minister ... to ensure that the services are provided and funded in conformity" with the Act. 41It may be that all administrative action must be preceded by administrative decision expressly, or by implication. Even in R v Commissioner of Police of the Metropolis ex parte Blackburn [1968] 2 QB 118 where the Court of Appeal for England and Wales was of the view that mandamus lay to compel the police to perform their duty of enforcement of aspects of the criminal law, the adoption of a policy of not enforcing certain gaming laws was proceeded by a "policy decision" by way of confidential instruction to senior officers. 42Although the plaintiff was unsuccessful in Ex parte Cornford; re Minister for Education [1962] SR (NSW) 220, the court accepted at page 223: It is clear that in a proper case mandamus will be directed to a minister of the Crown - but there are two conditions which must obtain. Firstly (sic) a public duty must rest upon the minister, the responsibility for the discharge of which is upon the minister personally and not upon the Crown; secondly, the applicant must be entitled to have an act done in the discharge of such a duty without the doing of which he cannot enforce or enjoy some right which he possesses. Whether or not the conditions stated by the Court strictly accord with modern law, the passage indicates that an identifiable "decision" is not a condition of the availability of the remedy. 43I would reject the Minister's case that the absence of averments impugning an identifiable decision, or identifiable decisions, is a flaw fatal to the plaintiff's case. I am also satisfied that mandamus may lie to enforce a public duty. To put it another way, I am not persuaded that these matters demonstrates with certainty that PWD's claim must fail.

Issues 3 and 4 - the true meaning of the legislation and justiciability 44Again, these issues might be conveniently taken together. PWD categorises "justiciability" as the "real issue" raised by the Minister's argument. This contention arises from the Minister's submission that the proceedings "seek a form of merits review, or jurisdictional fact review, which would involve [the] Court in subjective, policy laden, polycentric and controversial decisions. That form of review is not open under the statute" (the plaintiffs submissions [2]). 45I accept the submission of the Minister that these questions should be approached by application of basal principle. Here the central question is whether the duty imposed in express terms by s 6 of the Act, arguably, has gone "unperformed". The answer to that question must start with a consideration of the meaning of s 6 determined by reference to the language of the Act as a whole: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. There is no issue in the present case that the Minister has provided, or funded, designated services i.e. maintaining the facilities in operation. The first question, for public law purposes, is whether that has been done in conformity with the Act. Refining this for the purpose of the present application, the question for me is whether the Minister has demonstrated with certainty that PWD cannot establish that the provision, and funding, of the facilities do not so conform. 46Recalling the language of ex parte Bott, PWD's case may be characterised in terms that the Minister has professed to perform his duty, but what he has actually done amounts to no performance because he has misconceived his duty. I do not understand that PWD says the Minister has failed to comply with some specific requirement essential to the valid performance of the duty, probably because this would require it to seek review of specific decisions. 47The answer, however, turns not only on the existence of a duty, but also on the determination of its nature, scope, or content. This raises a second question: whether it is a purpose of the Act that services actually provided or funded by the Minister are to be treated as nullities if not provided or funded in conformity with s 6. That question may only be determined by considering the text of the legislation as a whole: Project Blue Sky at 381 [69] - [71]. A starting point is that the provisions of the legislation "are intended to give effect to harmonious goals". Apparent conflict must be rationalised in the manner best calculated to "give effect to the purpose and language of [the] provisions, while maintaining the unity of all the statutory provisions". 48The Project Blue Sky approach is reflected in other decisions dealing with statutory interpretation of privative clauses for judicial review purposes. I should record that the Minister does not say that s 25 of the Act is in terms a privative clause. But the argument goes close to it in as much as the Minister argues that his administrative actions may not be called into question except in the Civil and Administrative Tribunal, the successor to the ADT, in accordance with s 28 CRM Act. The High Court, however, has developed an approach to reading privative clauses in accordance with the Project Blue Sky approach. However, logically, this starts with the older case of R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598. Of the privative clause there in question, Dixon J said at 614 - 615: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. The concluding "proviso" to that passage is not, however, taken as delineating by implication permissible grounds of judicial review. Rather, its true meaning is explained by the plurality judgment in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at 501 [60] in the following terms: It follows from Hickman, and it is made clear by subsequent cases, that the so-called "Hickman principle" is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision. (Emphasis added.) "Reconciliation" here may be taken to be the equivalent of "harmonising" in Project Blue Sky, always allowing for syntactical differences. 49When questions of justiciability and legislative restraints on powers of judicial review are discussed, it is impossible to overlook Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. The breadth of this court's jurisdiction was expressed in the following terms by the unanimous Court at 580 [98] - 581 [100]: The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, "with such exceptions and subject to such regulations as the Parliament prescribes", s 73 of the Constitution gives this court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this court as the "Federal Supreme Court" in which s 71 of the Constitution vests the judicial power of the Commonwealth. There is but one common law of Australia. The supervisory jurisdiction exercised by the state Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the state Supreme Courts is exercised according to principles that in the end are set by this court. To deprive a state Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of state executive and judicial power by persons and bodies other than that court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of "distorted positions". And as already demonstrated, it would remove from the relevant state Supreme Court one of its defining characteristics. This is not to say that there can be no legislation affecting the availability of judicial review in the state Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the state Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on state legislative power. Legislation which would take from a state Supreme Court power to grant relief on account of jurisdictional error is beyond state legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power. 50There are no islands of immunity, at least so far as jurisdictional error is concerned. Nor is there any Chevron USA Inc v Natural Resources Defense Council (1984) 467 US 837 doctrine in Australia. There is no "doctrine of deference": Corporation of the City of Einfeld v Development Assessment Commission: [2000] HCA 5; 199 CLR 135 at 153 [44]. But there are limits to the court's power of "reviewing the exercise of an administrative discretion [which] must constantly be borne in mind": Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [40]. These limits are defined in the classic statement of principle by Brennan J (as his Honour then was) in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. 51The court must not shrink from the exercise of its lawful jurisdiction. However, restraint may be appropriate because of the significance of the proper separation of governmental powers even at a state level. In a somewhat different context in Zheng v Cai [2009] HCA 52; 239 CLR 446 at 454 [28] the High Court said of the proper role of the court in the construction of legislation: It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (Footnotes and citations omitted; emphasis added.) 52As I have said, the questions of whether it can be said with certainty that the provision and funding of the facilities in the present case were not done in breach of the Act, and even if they were, whether they were not thereby invalid, involve, at their root, statutory interpretation. In Project Blue Sky the plurality said at 390 [93]: ... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". (footnotes omitted) This, of course, is a pure question of law.

Determination 53PWD says that provision and funding of the facilities was performed in breach of s 6 and it was a discernible purpose of the legislation, having regard to the objects stated in s 3 and the detail of the matters incorporated in s 6 from Schedule 1 that an act done in breach of that duty is invalid. If it is necessary to establish jurisdictional error, it says that at the trial it will establish that the provision and funding of these facilities is manifestly unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [68] - [76]; and PWD says this is a question that can only be answered after a trial: this is a complex case not capable of being resolved by the summary judgment procedure. 54The Minister says reading the whole statute fairly, the duty imposed by s 6 is not absolute, even if the services provided and funded might be capable of being viewed as falling short of the lofty goals expressed in schedule 1, taking a Project Blue Sky approach, as a matter of law, Parliament should not be taken as having intended that the administrative action of providing and funding the facilities by the Minister should be treated as no performance of his or her statutory duty at all. Moreover, the ideals expressed in ss 3, 6 and schedule 1 should be regarded as language "that is best seen to be exhortatory or aspirational": Li at [96] by Gageler J. 55I interpolate that I would hesitate to conclude as a matter of interpretation that the language of s 6, the objects expressed in s 3, and the principles and standards for their application found in schedule 1 were no more than aspirational. Those provisions represent an important declaration by Parliament that disabled persons are to be treated as enjoying the fundamental human rights valued by everyone in our free and democratic society. To put it in more populist terms, persons afflicted by a disability are not to be treated as second-class citizens. So much I think is clear. 56But as I have said identifying the existence of such a public law duty reposed in the Minister is not enough. The nature, scope and content of the duty must be defined by the terms of the statute; so too, the question whether it is a purpose of the statute that the provision of services that fall short of the goals expressed in the statute are intended to be treated as invalid. 57By s 8, the Minister's function is to facilitate the provision of designated services to persons with disability. That function may be exercised in a number of ways including providing them directly, presumably through his or her department, or indirectly through other bodies; by providing financial assistance directly to disabled persons or indirectly through other organisations; and by the encouragement of the provision of services by others. 58Section 10(2) prohibits the provision of financial assistance "unless the Minister is satisfied on reasonable grounds that providing the assistance would conform" with the Act. But under s 19 payments of financial assistance may only be made from funds appropriated by Parliament for that purpose. This provision needs to be read in conjunction with s 5 CRM Act, that limits decisions that may be made, for instance by the Civil Administrative Tribunal on appeal, which is a strong indicator that the Act is to be interpreted having regard to the resources appropriated by Parliament, the allocation of those resources by the Minister, and the dictates of government policy. 59One meaning of the verb "to conform" is to form, shape or fashion according to some pattern (Oxford English Dictionary). This does not demand the achievement of complete likeness. When one considers the principles and the application of principles contained in Schedule 1, it is clear they are expressed in language of some generality. For instance, Schedule 1, Clause 1(d) speaks of "attaining a reasonable quality of life"; Clause 1(g), "the least restriction of [the] rights and opportunities" of persons with disabilities; and Schedue 1(i) "the right to protection from neglect, abuse and exploitation". The language in necessarily general or non-specific because it is to apply all persons with disability "irrespective of the nature, origin,type or degree of disability". There are no absolutes. To the extent to which comparisons with the lives of persons not afflicted with disability are required it should be recognised that legal rights are fundamental rather than fulsome; their purpose is not to ensure everyone achieves the same or comparable outcomes in life. 60Reading the Act as a whole, the duty imposed by s 6 should not be understood in the absolute or stringent terms suggested by its language taken in isolation from its statutory context. Conformity with the objects of the Acts and the principles and applications of principles set out in s 1 does not require strict compliance by all designated services with each and every paragraph of Clauses 1 and 2 of Schedule 1. That would be impossible. The principles and applications of principles are not objective standards. They do not describe specific outcomes in concrete terms. Rather, they are general principles which must be applied in every case in an evaluative process carried out by the Minister when deciding to provide or fund designated services. When one considers the breadth and variety of the impairments likely to be suffered by individuals in the target group, any attempt to lay down entirely objective standards or prescribe specific outcomes would be arbitrary and incapable of consistent application across the board. 61The nature of the target group is likely to impose many conflicting responsibilities upon the Minister, which responsibilities are to be discharged out of the resources Parliament provides to him or her for that purpose and not otherwise: s 19 of the Act and s 5 CRM Act. These considerations must be understood as limiting the nature, content or scope of the duty imposed by s 6. In the light of these considerations demonstrating that better models exist, which might achieve better outcomes in conformity with the objects of the Act, and the principles and application of principles in Schedule 1 does not of itself demonstrate that these facilities provided and funded by the Minister do not conform with the Act. Nor does proof of those matters demonstrate that in professing to perform the s 6 duty, what the Minister has actually done amounts in law to no performance at all; it does not establish that he has misconceived his duty, nor does it establish that he has failed to comply with some requirement essential to its valid or effectual performance. This is so taking the pleaded case and the evidence tendered at its highest from PWD's standpoint. 62A fundamental flaw in PWD's case is that by adoption of the tactic of avoiding identifying, and impugning, specific decisions made by the Minister in providing and funding the facilities, it is impossible for PWD to demonstrate that the Minister has misconceived his duty or that he has failed to comply with some requirement essential to its valid performance. The Minister may believe that the model of dispersed homes amongst the community is a better model, but in providing and funding the facilities, he may have concluded that, acknowledging its limitations, the cluster home model is the best that can reasonably be done, having regard to the breadth and variety of the impairments of those persons making up that part of the target group housed in the facilities; the competing and conflicting demands and responsibilities of the Minister's portfolio; and the limited resources provided by Parliament for the purpose. 63Were that so, no public law remedy would lie unless it could be demonstrated that such a decision was manifestly unreasonable in the sense discussed in Li. Again, in my judgment the criticisms made of the cluster homes model by the experts are not capable of proving manifest unreasonableness. They amount to no more than showing there may be a better way of providing and funding facilities which has found favour in some comparable jurisdictions overseas. They do not address the Minister's limited resources, or how those limited resources are to be equitably spread among the Minister's competing and conflicting responsibilities. 64I should add, as I have said already, one needs to bear in mind the limitations of the Court's supervisory jurisdiction as described by Brennan J in Quin. The power is not to be exercised for the protection of the individual interests or rights of those persons whom PWD represents. The question is about the extent of the power reposed in the Minister and the legality of its exercise. It is doubtful whether even eminent experts can cast any light upon those matters which are legitimately within the province of the Court. There can be no doubt in the present case that PWD, with every worthy motive, is attempting to secure judicial scrutiny of the merits of the services provided in each of the facilities. The Court may not go into this area. The question of the application of the Act by the Minister is a matter for the executive government, subject to the political control of that branch of government by the people's representatives in Parliament. This is not about justiciability, in the sense of any so-called immunity of ministerial action. This about the proper limits of the Court's power. 65In my judgment, the provisions relied upon by PWD should be interpreted this way. First, s 3 is not a working, or operative provision. It states the legislative purpose which is a guide for understanding the whole Act and giving harmonious effect and unity to its various, sometimes conflicting provisions. Secondly, s 6 does impose a duty, but the provision does not stand alone. Like all other provisions it must be understood in its legislative context. Thirdly, cls 1and 2 of schedule 1 set out factors which the Minister is bound to consider in making a decision about providing or funding services in discharge of his or her s 6 duty. Fourthly, when applying administrative law principles to a "decision... made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion": Peko-Wallsend at 42. Fifthly, the contents of schedule 1 are not determinative, or prescriptive, of outcomes. They are inclusive relevant considerations. Other relevant considerations, as a matter of interpretation, include the necessarily limited resources allocated by Parliament; the competing demands of various sub-groups within the target group; and the dictates of government policy. 66Doubtless there may be cases when a particular decision of the Minister to provide or fund a particular designated service can be shown to be vitiated by reference to the ex parte Bott standard. This may depend upon a failure to consider as an essential requirement a schedule 1 factor. But that is not PWD's case. It does not impugn any specific decision, express or implied. Such an issue simply does not arise for determination in this case. 67Moreover, in my judgment Parliament did not intend that services actually provided or funded by the Minister should be regarded as invalid simply because evidence, even a large and credible body of expert evidence, is available to demonstrate that different services might better conform with the objects of the Act, the Minister's s 6 duty and the principles and application of principles set out in schedule 1. 68I am satisfied that the Minister has demonstrated to the requisite degree of certainty that PWD's claim is bound to fail if it were allowed to go to trial in the ordinary way. 69Because much emphasis was laid upon s 25 of the Act, I wish to record that I do not find it any way decisive. Section 25(1) does no more than make clear that the provisions of the Act do not create any statutory duty enforceable by a private right of action for damages. Section 25(2), lest there be any doubt, clarifies that an application to the Civil and Administrative Tribunal under s 28 of the CRM Act is not a civil cause of action: cf Patsalis v New South Wales (2012) 81 NSWLR 742. It does not in terms purport to exclude judicial review even to the extent to which that course may be open to Parliament.

Strikeout application 70Were I not persuaded to order summary dismissal, I would have acceded to the Minister's strike-out application in part only by ordering PWD to provide particulars in accordance with the rules. Otherwise I think its pleading now sufficiently complies with the rules. 71Merely referring to the evidence a party will lead to make good its case is not a proper discharge of the obligation to provide particulars. There is a logical fallacy behind the idea that providing the evidence is better than providing mere particulars. 72As Hunt J (as his Honour then was) made clear in Sims v Wran [1984] 1 NSWLR 317 at 321 - 322: It is not a question of whether one party has adequate knowledgeof the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet. There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimesbe necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led. (Emphasis added, citations omitted). In my view, this obligation will rarely, if ever, be discharged by simply referring in the most general terms to the served expert reports, leaving it to the responding party to make what he, she or it will of what that material says about the case the moving party intends to make. Rather, it is for the moving party to draw from the expert evidence, and provide as particulars, what conclusions or propositions the moving party says arise out of the experts reports for the purpose of making good the case advanced. 73In Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110 the plurality said: [the function of particulars] is to limit the issues of fact to be investigated and in doing this they do not modify or alter the cause of action sued upon. In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. Purporting to provide particulars by referring in the most general terms to the experts reports does not fulfill this function. The Minister may have breached his s 6 duty in a variety of ways. It was for the plaintiff to particularise "the transgression or transgressions relied upon". This it has not done. However, given my decision about summary judgment, it is unnecessary to formulate any orders about this. 74PWD argued that if the Minister was successful because challenging a decision was essential to the former's success, the Minister should not have his costs. I have not so held: see [44] above. 75My orders are: (1)Under Rule 13.4 Uniform Civil Procedure Rules 2005 the proceedings are summarily dismissed; (2)The plaintiff is to pay the defendant's costs of and incidental to the proceedings on the usual basis forthwith after they have been agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014

Disability Services Act 1993(NSW)

Community Services (Complaints Reviews and Monitoring) Act 1993(NSW)

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