Administrative Appeals Tribunal Act 1975, s.27

National Health Act 1953, ss.39A, 105AAB

Nursing Homes and Hostels Legislation Amendment Act 1986

Nursing Homes Assistance Act 1974, s.3A

The Tribunal decides that it has no power to hear the application for review lodged herein and it will proceed no further in the matter.

Presently before the Tribunal is an issue as to whether the Tribunal has what was referred to in argument as "jurisdiction", better referred to as "power" (see Wilcox J in Commonwealth of Australia v. Ford (1986) 65 ALR 323), to hear a purported application for review lodged by the applicant ("Davnar"). That application sought review by this Tribunal of a decision of the respondent Minister ("the respondent") to grant "Certificates of Approval in Principle" to the four parties named above, to which I shall refer as "Corowa", "Finley", "Holbrook" and "Lutheran". The matter is of some urgency, and at the risk of doing injustice to the rather copious written submissions that were lodged, in particular by Mr Marshall for the applicant, I shall be as brief as possible.

2. The legislation with which we are concerned has been amended since the hearing in significant respects: See Nursing Homes and Hostels Legislation Amendment Act 1986 (No. 115 of 1986). In particular, s.39A of the National Health Act 1953 ("the NHA") has been amended, and amendment of s.105AAB (referred to below) has the consequence that the Tribunal no longer has the power of review, sought to be invoked by the application herein, previously existing in respect of s.39A. It was not contended that these amendments had retrospective effect. At the relevant times s.39A of the NHA provided as follows:

the appropriate authorized form by a person who is,

or proposes to become, the proprietor of a nursing

home, the Minister may, in his discretion, by

notice published in the Gazette, invite interested

persons to apply, by such date, being a date not

less than 28 days after the date of publication of

the notice, as is specified in the notice, under

whichever of sub-sections (2) or (3) is specified

in the notice, for a certificate in respect of

premises situated in an area specified in the

notice.

(2) ...

(3) Upon application made in accordance with the

appropriate authorized form in response to an

invitation under sub-section (1) by the proprietor

of an approved nursing home who proposes to make an

alteration or addition to the premises occupied by

the nursing home, the purpose of which is, or the

effect of which will be, to enable the number of

beds available in the nursing home for qualified

nursing home patients (or) Repatriation nursing

home patients to be increased, the Minister may, in

his discretion, grant to the applicant a

certificate in writing -

(a) approving that alteration or addition;

(b) stating that if, within the period of 12 months

after the grant of the certificate, the

alteration or addition so approved has been

completed in accordance with the specifications

(if any) set out in the certificate and the

applicant applies under sub-section 40AD(1) of

this Act for the Minister to alter the

conditions applicable to the nursing home by

substituting for the number of beds determined

in relation to the nursing home for the

purposes of paragraph 40AA(6)(a) of this Act as

a number of beds not exceeding such other

number as is specified in the certificate, that

last-mentioned application will not be refused;

and

(c) in a case where the Minister considers it

appropriate to do - stating that if the

Minister so alters the conditions applicable to

the nursing home, the admission of persons to

the nursing home as qualified nursing home

patients (whether or not those patients occupy

the beds to which the alteration or addition

relates) will be in accordance with a special

purpose of the nursing home specified in the

certificate."

Section 3A of the Nursing Homes Assistance Act 1974 was in similar terms and applies to some of the applications here in question. It was agreed at the hearing however that for the purpose of considering the question in hand reference need be made only to s.39A of the NHA.

3. In accordance with the provisions of s.39A of the NHA the respondent caused to be published, in the Australian Government Gazette of 4 December 1984, a Notice dated 26 November 1984 (T7/21) which called for applications for "Certificates of Approval in Principle" for the establishment of additional nursing home accommodation in, amongst other areas, the South Western Health Region of New South Wales. The Notice called for the applications to be made "on the authorised form". Interested persons were "to apply by 1 February 1985".

4. The parties joined in these proceedings were the applicants who were ultimately successful in being granted certificates of approval in principle. Of these, three (Corowa, Lutheran and Finley) lodged their applications on 30 January 1985, within time. Holbrook's application was received on 12 March 1985. At one stage of the hearing it was suggested that another of the three successful applications was also received "out-of-time," but for the sake of argument it is enough that at least one was out-of-time but was eventually successful. We were told that a number of other applications that were received out-of-time were also considered, but were unsuccessful. One was lodged as late as a date in July 1985, but as will appear later the Federal/State Co-ordination Committee for Nursing Home Accommodation in New South Wales, known as "the Co-ordinating Committee", had considered the applications on 1 May 1985 and as a result a report had been sent to the delegate of the respondent.

5. The fact that applications received out-of-time were considered, and in one or perhaps two such cases were indeed successful, sits ill with a submission made in paragraph 9 of the statement lodged on behalf of the respondent (Exhibit 1) that "the Minister has no power, authority or duty to consider such application unless it is in response to an invitation under (s.39A(1))", and that (as stated in paragraph 10 of Exhibit 1): "There is no provision in the Act for extension of time referred to in the Notice and it is submitted that any application lodged after the time specified cannot be considered by the Minister unless a new or further Notice is published. No such new or further notice has been published in this case." It was submitted that an application lodged by Davnar in December 1985, to which I shall refer later and which turned out to be irrelevant for other reasons, "was not in response to such invitation in that, inter alia, it was lodged outside the time specified in the Notice".

6. It does not seem to me that the submissions set out in the last preceding paragraph are correct. If they are, the respondent should have disregarded the applications that were lodged out-of-time. Section 39A does not however make time of the essence, and I am of the opinion that the respondent had power to do what he did, that is to say:

. To receive applications after the due date if they

were received within a reasonable time after that

date,

. Being a time reasonable in terms of proper and

prudent administration having regard

- to the need for the Minister to commence dealing

with the applications

- and to the requirement of fairness to all parties

concerned.

There is nothing to suggest that time was intended to be of the essence. I consider that the position was that the respondent was entitled to receive late applications, but that equally he was entitled at an appropriate point to draw a line and to say that the time for receiving further applications had ended.

7. The fact is that by September 1985 the processing of the applications by the respondent must have been well advanced, as will appear. The story continues as follows:

(i) On 9 September 1985 a telephone call was made on behalf

of Davnar by which "initial enquiries" (See Exhibit A)

were made of the Department of Community Services,

Sydney, in relation to Davnar's "desire to increase the

number of beds at its nursing home in conjunction with"

some major structural works to be undertaken at Griffith

Nursing Home.

(ii) On 10 September 1985 Davnar "as transferee of the

Licence of the ... nursing home" wrote to the Department

of Community Services and to the Minister. The letter

to the respondent sought assistance in having Davnar's

application "considered so that any determination made

will take into consideration the need for additional

beds in our nursing home".

(iii) Also on 10 September, in response to Davnar's telephone

call, the Department of Community Services wrote to

Davnar advising that applications for additional nursing

home accommodation in the area in question had been

considered by the Federal State Co-ordinating Committee

on 1 May 1985, and that subsequently a report had been

sent to the respondent's delegate. It was stated that a

person whose interests were affected by the respondent's

decision could seek reconsideration of it and thereafter

seek a review of that decision by the Administrative

Appeals Tribunal ("the AAT"). But the letter went on to

advise that Davnar was, notwithstanding these facts,

still entitled to apply for consideration of its

proposal. An application form was enclosed, together

with an "information statement and a copy of the

legislative principles". Davnar was advised that its

application would not however be considered "until the

decision of the Minister's delegate on the original

applications was known."

(iv) On 18 September 1985 Davnar forwarded an application to

the Department of Community Services, presumably on the

form of application that had been supplied to it by the

Department. It was enclosed with a letter from Davnar

stating that attached "is a copy of an application for

additional beds at the Griffith Nursing Home". The

application was on a form known as an "NHDF 1". This

form is not a formal application for a Certificate of

Approval in Principle. It describes itself as an

"Application to Establish Possible Need for Additional

Nursing Home Accommodation", and appears to be by way of

being a preliminary indication of interest associated

with the provision of information to the Department. It

would seem likely that the form was the "appropriate

authorized form" referred to in the opening words of

s.39A of the NHA and which apparently was the catalyst,

as the section seems to envisage, for the calling for

applications for Certificates of Approval in Principle

by notice in the Gazette. The application in this case

appears to have been made by Davnar in relation both to

what are known as "general beds" (which were the subject

of the applications called for by the respondent's

Notice) and to what are called "ethno-specific" beds:

See paragraph 5(1) and (2) of T34/157, which is

information attached to the form NHDF1 by Davnar.

(v) On 26 September 1985 the Department advised Davnar that

as the Co-ordinating Committee had already made

recommendations to the respondent's delegate concerning

the grant and refusal of Certificates in the South

Western Region, Davnar's NHDF 1 application could not be

considered until after the delegate's decision on the

"original applications for the Region was known". The

same references to rights of reconsideration and review

were made as in the letter mentioned in (iii) above.

But the letter went on to refer specifically to the

provision of nursing home care for ethnic groups, and

stated that Guidelines in that regard would be sent to

Davnar when they became available.

(vi) On 1 October 1985 the respondent's delegate granted

Certificates of Approval in Principle to the four

parties joined in these proceedings.

(vii) On 19 November 1985 the Department of Community Services

advised Davnar that the Approvals in Principle for the

South Western Region had been granted. Davnar was

advised that "Unfortunately, as previously advised, your

application was received too late to be considered by

the Committee". Having once again referred to rights of

reconsideration and review, the letter advised that "It

would be presumed that the needs of the Region have been

satisfied for some time. It is therefore unlikely that

your application NHDF1 would be successful". How an

"application NHDF1" can be "successful" or otherwise was

not made apparent.

(viii) On 20 November 1985 Davnar wrote to the Department of

Community Services advising that in the circumstances it

sought approval in principle to proceed with those items

required by the State Department of Health which did not

involve major structural change, and that the items

requiring major structural change be considered

concurrently with its application for additional bed

capacity.

(ix) On 6 December 1985 Davnar by letter appealed to the

respondent against the Approvals in Principle granted to

the four successful applicants. The appeal was based on

lack of response to its letters referred to in (ii) and

(iv) above, and on general grounds. In fact an officer

of the Department replied to Davnar's letters by a

letter likewise dated 6 September.

(x) On 24 February 1986 the respondent, after further

correspondence, wrote to Davnar referring to Davnar's

letter of 6 December 1985 and stating that having

reconsidered his Delegate's decisions he had decided to

affirm them. Again there was reference to the

availability of review by the AAT.

8. The applicant's right to seek review is governed by s.105 AAB of the NHA, and by s.27 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). At the material time section 105AAB of the National Health Act so far as relevant provided:

"105AAB (1) In this section, 'reviewable decision'

means a decision of the Minister, or of a delegate

of the Minister, under sub-section 39A(1), (2), (3)

or (4), 40AA(2), (3), (3A), (4), (5), (6) or (8)

section 40AB or 40AD, sub-section 41(2) or 43A(4),

section 44 or 45A or sub-section (2) of this

section.

(2) ...

(2A) A person affected by a reviewable decision,

being a decision under sub-section 39(1), (2), (3)

or (4), who is dissatisfied with the decision may,

by notice in writing given to the Minister within

the period of 28 days after the date of publication

of the notice under sub-section 39A(1) or (13) in

relation to the decision, request the Minister to

reconsider the decision.

(3) ...

(4) Upon the receipt of the request, the Minister

shall reconsider the decision and may affirm or

revoke the decision or vary the decision in such

manner as he thinks fit.

(5) Where the Minister does not affirm, revoke or

vary a decision before the expiration of the period

of 42 days after the day on which he received the

request under sub-section (2) to reconsider the

decision, he shall, upon the expiration of that

period, be deemed to have affirmed the decision

under sub-section (4).

(6) ...

(7) Applications may be made to the Tribunal for

review of -

(a) reviewable decisions that have been

affirmed or varied under sub-section (4);

or

(b) a decision under sub-section (4) to revoke

a reviewable decision.

(8) ..."

Section 27 of the AAT Act provides:

"27(1) Where this Act or any other enactment

provides that an application may be made to the

Tribunal for a review of a decision, the

application may be made by or on behalf of any

person or persons (including the Commonwealth or an

authority of the Commonwealth) whose interests are

affected by the decision.

(2) An organization or association of persons,

whether incorporated or not, shall be taken to have

interests that are affected by a decision if the

decision relates to a matter included in the

objects or purposes of the organization or

association.

(3) Sub-section (2) does not apply in relation to a

decision given before the organization or

association was formed or before the objects or

purposes of the organization or association

included the matter concerned."

9. In earlier stages of the matter, an application made by the applicant on 9 December 1985, not referred to above, seems to have been made the focus of attention. The question was treated as being whether Davnar, not having applied for a Certificate of Approval in Principle until after the respondent had made his decision, had any standing, its application of 9 December 1985 seemingly having been made well and truly out of time. At the hearing however it became clear, and Mr Marshall for the applicant clearly and properly conceded, that the application of 9 December 1985 is irrelevant in these proceedings. It is an application in relation to "ethno-specific" beds and not in relation to general beds. The applicant has therefore to make its case, as Mr Marshall accepted and sought to do, on the footing that its application dated 18 September 1985, made on an "NHDF1" form, constituted an application for a Certificate of Approval in Principle; that the other applications mentioned above had not by then been made a subject of decision; and that the application of 18 September should therefore have been considered, it having been made, it was said, in response to the original s.39A notification calling for the making of applications by 1 February 1985.

10. Had there been no applications made after 1 February 1985, or had no applicants been successful who had made their applications after 1 February 1985, the position of the applicant, arriving so late on the field, could hardly have appeared weaker:

(i) In terms of s.105AAB of the National Health Act, the

applicant would not in the supposed circumstances have

been in my opinion a "person affected" by the reviewable

decision, which was a decision to grant certificates to

some out of those who had applied therefor. In

considering this question I have had regard to a number

of authorities that were cited, especially Australian

Conservation Foundation Incorporated v. The Commonwealth

of Australia (1980) 146 CLR 493 esp. per Gibbs CJ at

530-531; Onus v. Alcoa of Australia Ltd (1982) 149

CLR 27; and Ogle and O'Neill v. Strickland & ors

(Federal Court of Australia, Full Court, No. G264 of

1986, 13 February 1987, unreported). But as those cases

I believe emphasize, context and subject matter is

all-important. In the present context, to be a person

"affected" by such a decision that person must surely,

for the purposes of s.105AAB, have been in a position to

show that but for the grant of certificates to the

successful applicants, he/she may have been granted a

certificate. The applicant would have presented as an

applicant more than seven months late in making

application, and could not even have been considered a

possible recipient of a certificate, having regard to

s.39A(1) and (3). It would have been no more than a

by-stander and there appears to be no suggestion that in

the context of this legislation there is any question of

public challenge to applications. The contest is

between those who wish to share in the cutting up of a

particular cake. There are no crumbs for outsiders.

All this reflects the evident purpose of the legislation

as it then stood, namely that, instead of considering

individual applications from time to time, applications

were to be pooled in order to enable an overall

evaluation to be made.

(ii) As far as s.27(1) of the AAT Act is concerned, in the

supposed circumstances the applicant would have had no

greater standing to be regarded as a person affected by

the decision than would have any general member of the

public, in that by not applying in time it had lost, or

rather not gathered to itself at all, any claim to be

considered for the grant of a Certificate of Approval in

Principle. Section 27(2) would not have advanced the

applicant's case, for notwithstanding that the objects

for which the applicant was established are directed

specifically to the carrying on of the business of,

inter alia, a nursing home with associated objects, I am

of the opinion that s.27(2) is facultative in nature and

does not permit the elevation to a relevant affection of

a mere broadly expressed corporate object. This point

was discussed in Re C and Collector of Customs (N.S.W.)

(1983) 5 ALN N222 where it was said that "s.27(2), while

it has an impact upon the interpretation of s.30(1A),

appears ... in tandem, as it were, with s.27(1) which is

the provision identifying the persons who have a right

to apply for review of a decision". The provision

appears to me to be in aid of s.27(1), assuring to a

corporation the right to refer to its objects in support

of its position under s.27(1), but not conceding to any

corporation a right of making application for review

merely because it has within its objects an object

referring to subject matter akin to the subject matter

of an administrative decision. Section 27(2) does not,

as Mr Curtis-Smith for the added parties in his

submission emphasised, extend the class of persons whose

interests are affected within s.27(1) but rather

qualifies in respect of corporate bodies those which may

be taken to fall within s.27(1).

11. The position is however more complex and requires further consideration, for as already observed the applicant claims to have made an application before a decision had been made in respect of the other applications. If it was lodged late, so it was said were also the applications of others, and the respondent did not regard late lodgment as fatal since not all of the successful applications were lodged by 1 February 1985. In my opinion however there are both factual and legal obstacles in the way of the applicant's case even on this footing. I do not consider that the applicant's application of 18 September 1985 was an application of the kind contemplated by the s.39A notice. This is not just because it was filled out on an "NHDF1" form. The form itself is not material, but rather the contents and true nature of the application contained within it. When the application itself is read, it emerges clearly as the supply of preliminary information, and as a registration of interest. It was not an application pursuant to the call made in the Gazette Notice. It was what it described itself to be, an "Application to Establish Possible Need for Additional Nursing Home Accommodation". Mr Marshall's submission correctly recognized the need to establish the NHDF1 application as an application for a Certificate in Principle, but in my opinion the application that was made was not, so that the position is no different from that described in paragraph 10 above, with, in my opinion, the same conclusions applicable.

12. In view however of the careful arguments put by Mr Marshall, who said everything that could be said on behalf of the applicant's case, I should refer to some specific points put by him. I shall first direct some comment to each point specifically, and then state my general conclusion.

13. In Exhibit B, paragraph 3, it is stated that the Minister proceeded to reconsider the matter pursuant to s.105AAB of the NHA (T63/254) "thereby accepting Davnar as 'a person affected by a reviewable decision'". The document referred to, a Minute to the respondent, does mention s.105AAB, and does canvass Davnar's request for reconsideration. In the forefront of the recommendation however is the fact that by the time Davnar lodged its NHDF1 application the Co-ordinating Committee had already made recommendations to the respondent's delegate, and the Minute goes on to canvass the question of ethno-specific beds which had emerged in November 1985. I see this document as a response to the general question of Davnar's position, and not as a reconsideration of the decision sought by Davnar to be reviewed by the AAT, namely the decision to grant the four certificates of approval in principle.

14. In Exhibit D (paragraph B(iii) on page 2) Davnar makes the same point as in (i) above in relation to the respondent's reply to Davnar dated 24 February 1986 and its attached 12 pages of Findings on Material Questions of Fact (T65/259-271). In this instance Davnar is on stronger ground. The respondent's letter states that the matter has been reconsidered in accordance with s.105AAB of the National Health Act. In terms of s.105AAB(5) the respondent had by about 18 January 1986 been deemed to have affirmed the decision sought to be reconsidered. Nothing daunted however, "reconsideration" was said to have proceeded. The letter goes on to say once again that application may be made to the Administrative Appeals Tribunal for a review of the reconsidered decision. The findings of fact, extensively stated, set out the history of the matter and in particular set out the considerations that influenced the Co-ordinating Committee to make the recommendations which had led to the decisions made by the respondent's delegate. They then set out Davnar's making of its NHDF1 application and the developments which followed it, and observe that the Delegate did not consider that application. There is then set out Davnar's application in relation to ethno-specific beds. Then the document returns to a canvassing of the reasoning behind the granting of the four successful applications for Certificates of Approval in Principle, and finally states that "the needs of those areas where approvals-in-principle have been granted have precedence at this stage and that further consideration of the need for additional general purpose beds in Griffith should await the Delegate's decision in relation to the provision of ethno-specific nursing home beds in the town."

15. In Exhibit D pages 4-5 Davnar emphasises the way in which it says its interests are affected. It now owns and operates a nursing home at Griffith which has operated for 15 years and claims that the grant of approvals to others in the region were not justified, with the consequence that its own interests are affected. I note that Davnar only acquired a licence of the nursing home in late 1985, but be that as it may the critical question remains whether Davnar, having had no standing to be considered by the respondent in the first place, since it had not applied in time (or at all, according to my findings) can now assert its standing to assert that its interests are affected. In my opinion it has no such standing.

16. Viewing this matter from the outside, it is hard to escape the conclusion that the content of the reconsideration and review process was, with the greatest respect, never properly thought out in the administration of this matter. The procedure set up envisaged a cut-off date for lodging applications (albeit one that I consider was open to be extended to a reasonable extent, as it was) so that consideration could proceed. Yet what happened when Davnar came on the scene? Instead of being told that it was simply too late, there were dangled before it, in a series of communications, references to reconsideration and review procedures. And ultimately the respondent described the decision as having been reconsidered, and again in effect invited Davnar to apply to the AAT for review.

17. Despite all these difficulties I have nevertheless come to the conclusion that I should adhere to the prima facie conclusions stated in paragraph 10 above. Despite what have to be seen as very unfortunate misdescriptions of the administrative process that was going on, the respondent was doing no more than restating the decision that had been made. Had I come to the conclusion that Davnar's NHDF1 application had ever been considered as an application for a certificate of approval in principle as such and as being within the s.39A invitation, then I would have felt compelled to conclude that, late as was its application, Davnar, having been treated as one more late applicant, would have been entitled to a right of review. But having been late in applying, so late as to have been properly excluded from consideration, I do not consider that any misdescription of the consideration that was given to Davnar's various applications and submissions, or any erroneous assertion of the existence of a right of review to this Tribunal, should allow to Davnar a right of review that in my opinion it does not have.

18. The final point that must be made, for completeness, is that the respondent cannot be held to be estopped from denying that the AAT has power to hear the applicant's application. It would be idle and beyond power for the Tribunal to find that it has such power when it does not: See Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 3 ALN N66; Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227, both of which decisions contain principles that are of fundamental importance when the power of the AAT to hear applications for review are considered.

19. On the face of it this decision may seem harsh in its impact on Davnar. Closer analysis however shows that this is not so. It would in my view have been open to the respondent, when Davnar surfaced in September 1985, to have simply rejected its approaches on the ground of lateness and to have left it at that. In fact however the course of administration adopted seems to have set out to be a kind of kindness. In retrospect, that kindness, together with what has to be described as quite inappropriate and repeated references to reconsideration and review rights, have on one view led Davnar on into this situation. But it has to be appreciated that the question is not just whether Davnar also should have received a certificate. The system with which we are concerned is, as mentioned earlier, an interactive system. For Davnar to come in late and successfully claim "X" beds would be to diminish what otherwise would have been available out of a funding pool to the successful applicants. They have now had to wait for 18 months to enter upon their rights because of these proceedings, and I gathered at the hearing that the delay may have already led to some reduction of the quantum of those rights.

20. In these circumstances the Tribunal must in my opinion take the hard course and apply what seems to it to be the clearly correct decision, namely to decide that it has no power to hear the application for review. The "soft option" of proceeding to the review on the footing of deciding the question of power at the same time as the merits would not be a proper course given the likely high cost of a lengthy review and the serious effect on the parties joined of any further delay. In the result the Tribunal finds that it has no power to hear Davnar's application for review and it will proceed no further in the matter.