Riverside Nursing Care Pty Ltd v Honourable Bronwyn Bishop

REASONS FOR JUDGMENT THE COURT: 1 This is an application for leave to appeal from an interlocutory judgment of a single Judge of the Court refusing to stay the operation of a decision made by the second respondent ("the Secretary") on 5 March 2000 ("the March decision") forthwith revoking the approval of the applicant ("Riverside") as a provider of aged care services under the Aged Care Act 1997 (Cth) ("the Act"). By the same decision, the Secretary revoked Riverside's allocation of places for residential care at the Riverside Nursing Home ("the Home"). Riverside, on 15 March 2000 instituted an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and pursuant to s 15(1)(a) of that Act sought a stay of the March decision. Section 15(1) of the ADJR Act provides: "The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but: (a) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the decision." 2 In rejecting the application for a stay, the learned primary Judge reviewed the grounds relied on by Riverside as impugning the March decision and rejected each of them as not demonstrating "a point of substance to argue which, if successful, will result in judgment in [Riverside's] favour"; Feingold v Zammit (1984) 1 FCR 87 at 92. 3 The principal ground relied on by Riverside is a claim that, in connection with the decisions in question, a breach of the rules of natural justice occurred. Specifically, Riverside claims that the March decision was made without affording procedural fairness to Riverside. Riverside also claimed that the March decision was affected by a number of other errors including a failure to observe various procedures laid down by or pursuant to the Act. The remaining grounds were identified in summary by his Honour in these terms: · "the Secretary took irrelevant considerations into account, namely exaggerated and inflammatory assertions which were unsupported by probative evidence · the Secretary failed to take relevant considerations into account, namely the interests of residents and the effect of the decisions on Illawong Retirement Equity Pty Ltd ("Illawong") · the decisions were unreasonable · the second decision was made for various improper purposes · there was no evidence to support either decision." 4 However, most of the other flaws alleged in the decision appear to be based on the existence of an entitlement to procedural fairness in relation to the March decision. We shall therefore indicate in detail our reasons for rejecting Riverside's attack invoking a denial of natural justice. Natural Justice 5 When a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words or necessary intendment. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from indirect references, uncertain references or equivocal considerations. Nor is such an intention to be inferred from the presence in the statute of rights that are commensurate with some of the rules of natural justice. Further, there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention. Common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making, see Annetts v McCann (1990) 170 CLR 596 at 598. 6 In the present case, it is tolerably clear that a decision such as the March decision, revoking approval as a provider and an allocation of places, is one that would destroy, defeat or prejudice Riverside's rights, interests and legitimate expectations. Accordingly, unless excluded by the provisions of the Act, the rules of natural justice would regulate the exercise of the power to make such a decision. The question is whether the rules of natural justice have been excluded by the Act. 7 Section 67-1(1) provides that the Secretary must not impose sanctions on an approved provider (such as Riverside) for not complying with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 (the basis upon which the March decision was made) unless the Secretary has completed each of the following steps: (a) giving the approved provider a notice of non compliance; (b) giving to the approved provider a notice of intention to impose sanctions or a notice to remedy the non-compliance; or (c) giving to the approved provider notice of the Secretary's decision on whether to impose sanctions. 8 The requirement to complete those specified steps may not of itself be sufficient to exclude the rules of natural justice. However, the Act also contains s 67-2(2), which is in the following terms: "(2) However, paragraphs (1)(a) and (b) do not apply if the Secretary is satisfied that, because of the approved provider's non-compliance, there is an immediate and severe risk to the safety, health or well being of care recipients to whom the approved provider is providing care." 9 By imposing a duty on the Secretary to complete the steps referred to in sections 67-1(1), the Act confers rights on an approved provider who may be affected by the imposition of sanctions. Those rights are commensurate with at least some of the rules of natural justice. Section 67-2(2) sets out the requirements for a notice of non-compliance. Under s 67-2(2)(b) the notice must invite the approved provider to make submissions to the Secretary addressing the matter and s 67-2(3) requires the Secretary to consider any submissions made by the approved provider. 10 Section 67-3(2) specifies the requirements for a notice of intention to impose sanctions. Under s 67-3(2)(d) the notice must invite the approved provider to make submissions to the Secretary and s 67-3(3) obliges the Secretary to consider any submissions made by the approved provider. 11 Thus, by virtue of the process contemplated by s 67-1(1), the provider has a right to be heard that is almost entirely commensurate with that afforded by common law requirements of procedural fairness or natural justice. Nevertheless, in the circumstances in which s 67-1(2) applies, the requirement to give a notice of non-compliance and a notice of intention to impose sanctions is excluded. The rights conferred by s 67-1(1) are no greater than the common law requirements of procedural fairness and natural justice. There would be no point in waiving the requirement to comply with s 67-1(1) if the common law requirement of procedural fairness or natural justice still had to be satisfied before the Secretary could impose sanctions. 12 There are good policy reasons why, in the circumstances contemplated by s 67-1(2), the right to be heard should be excluded. The exclusion takes place only if the Secretary is satisfied that there is an immediate and severe risk to the safety, health or well-being of care recipients. The object of excluding the steps referred to in s 67-1(1) in such circumstances is to ensure that the taking of those steps does not occasion a delay which might imperil the safety, health or well-being of care recipients. Any delay resulting from allowing an approved provider to exercise a common law right to be heard could jeopardise the safety, health or well being of care recipients. There would be no utility in excluding the steps contemplated by s 67-1(1) if a common law right to be heard remained. 13 It is clear, therefore, that the Parliament has, by the terms of ss 67-1, 67-2 and 67-3, excluded the rules of natural justice in circumstances where sanctions are to be imposed because the Secretary is satisfied that there is an immediate and severe risk to the safety, health or well being of care recipients. That is the conclusion reached by the primary judge. That conclusion is not attended by sufficient doubt to warrant its reconsideration by a Full Court. Would refusal of a stay occasion substantial injustice to Riverside? 14 We accept that the grant or refusal of an interlocutory stay of a decision under review involves more than a mere point of practice. Accordingly, an application for leave to appeal from such a grant or refusal should attract the less restricted discretionary examination suggested by another Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400. However, the order of the learned primary Judge in the present case in no sense effectively disposed of the matter and that is relevant to an assessment of whether substantial injustice would result if leave to appeal were refused, assuming the judgment below to have been wrong. In any event, we have not been persuaded that the judgment below was wrong in any of the respects urged in the comprehensive and earnest arguments of Mr Monotti of Counsel for Riverside. However, save for the discussion of natural justice undertaken above, it has been unnecessary to indicate in detail our reasons for that conclusion because, at the end of the submissions of Counsel for the applicant, we remained unpersuaded that a refusal of leave to appeal would cause a substantial injustice to Riverside. (a) Availability of another remedy 15 In the first place this is an application for leave to appeal from a discretionary judgment. Accordingly, this Court must be directed by the well-known principles laid down by the High Court in House v The King (1936) 55 CLR 499 at 504: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 16 If we were persuaded, as we have not been, that the learned primary Judge's discretion has miscarried because of an error of fact or law, this Full Court would have to exercise the discretion for itself. Central to that fresh exercise of discretion would be the consideration that the substantive grant of relief under the ADJR Act is itself discretionary and that discretion has to be exercised with regard to s 10(2)(b) of that Act which provides: "Not withstanding subsection (1): ..... (b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure." 17 It is common ground that a decision by the Secretary under s 65-1 of the Act is a "reviewable decision" by virtue of item 54 of s 85-1 of the Act. Relevant provisions of s 85-5 of the Act are: "(1) A person whose interests are affected by a reviewable decision may request the Secretary to reconsider the decision. ..... (3) The person's request must be made by written notice given to the Secretary: (a) within 28 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision; or (b) if the decision is a decision under section 44-24 to determine a care recipient's ordinary income - within 90 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision. (4) The notice must set out the reasons for making the request. (5) After receiving the request, the Secretary must reconsider the decision and: (a) confirm the decision; or (b) vary the decision; or (c) set the decision aside and substitute a new decision. (6) The Secretary's decision (the decision on review) to confirm, vary or set aside the decision takes effect: (a) on the day specified in the decision on review; or (b) if a day is not specified - on the day on which the decision on review was made. (7) The Secretary is taken, for the purposes of this Part, to have confirmed the decision if the Secretary does not give notice of a decision to the person within 90 days after receiving the person's request." 18 A reviewable decision that has been confirmed, varied or set aside is, by virtue of s 85-8, further reviewable by the Administrative Appeals Tribunal ("the Tribunal"). Section 85-8 provides: "An application may be made to the Administrative Appeals Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 85-4 or 85-5." 19 Section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that: "The Tribunal has power to review any decision in respect of which application is made to it under any enactment." 20 The AAT Act also indicates comprehensively the procedures available to regulate a hearing before the Tribunal. Section 39 of the AAT Act provides: "Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents." 21 As well, the Tribunal is empowered by s 41(1) and (2) of the AAT Act to stay the operation or implementation of a reviewable decision pending the conduct by the Tribunal of the review. Those sub-sections provide: "(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. (2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the "relevant proceeding"), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review." 22 In the present case, Riverside, on 7 March sought a re-consideration under s 85-5 of the Act of the decision of 5 March 2000. The re-consideration has occurred and, on 4 May 2000, the Secretary confirmed the decision of 5 March. Accordingly, on 11 May, Riverside applied under the AAT Act for a review of a decision described as follows: "Decision: The relevant decision was decision of a delegate of the Secretary of the Commonwealth Department of Health and Aged Care ("the Secretary") made on 5 March 2000 ("the reviewable decision") that has been confirmed by a decision of another Delegate of the secretary pursuant to the provisions of section 85-5 of the Aged Care Act 1997 made on 4 May 2000 ("the confirming decision"). Copies of the notices given in respect of the reviewable decision and the confirming decision are attached.. Date of Decision: The reviewable decision was made on 5 March 2000, and the confirming decision was made on 4 May 2000." 23 Riverside's application under the AAT Act for a review is still pending and it does not appear that any application has been made to the Tribunal for a stay of the operation of the decision of 5 March as confirmed on 4 May. 24 These circumstances have given rise to the first of the considerations leading to our refusal of leave to appeal because of the very high probability that, in the events which have happened, the discretion reposed in the Court by s 10 of the AAT Act will, on the hearing of the substantive application, be exercised adversely to Riverside. The errors which have been imputed to the Secretary in the application to this Court involve a denial of natural justice and other procedural oversights arising principally from a mistaken interpretation of relevant provisions of the Act. The other alleged errors are of the traditional kind, consisting in taking account of irrelevant considerations or failure to take account of relevant considerations, failing to recognise an absence of supporting evidence, abuse of power and unreasonableness. All of these errors which have been imputed to the Secretary also, presumably, infected the confirmatory decision of 4 May and the Tribunal is pre-eminently well placed to rectify them when it determines the application which Riverside has already instituted, and remains ready to prosecute, in parallel with its application to this Court. In Calvin v Carr [1979] 1 NSWLR 1, the Privy Council undertook this analysis, at 10, of the different effect of various modes of review of administrative decisions or determinations of domestic tribunals: "Although, as will appear, some of the suggested inconsistencies of decisions disappear, or at least diminish, on analysis, their Lordships recognize, and indeed assert, that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be "cured" through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. There are however a number of typical situations as to which some general principle can be stated. First, there are cases where the rules provide for a rehearing by the original body, or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned. Examples of this are: De Verteuil v. Knaggs [1918] A.C. 557 at p 563; Posluns v. Toronto Stock Exchange (1965) 53 D.L.R. (2d.) 193; Re Clark and Ontario Securities Commission (1966) 56 D.L.R. (2d.) 585; Re Chromex Nickel Mines Ltd (1970) 16 D.L.R. (3d.) 273; and see also Ridge v. Baldwin [1964] A.C. 40, at p 79; per Lord Reid. At the other extreme are cases, where, after examination of the whole hearing structure, in the context of the particular activity to which it relates (trade union membership, planning, employment etc.) the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original, and at the appeal, stage. This was the result reached by Megarry J. in Leary v. National Union of Vehicle Builders [1971] Ch. 34. In his judgment in that case the learned judge seems to have elevated the conclusion thought proper in that case into a rule of general application. In an eloquent passage he said [1971] Ch. 34, at p.49: "If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? ... As a general rule ... I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." In their Lordships' opinion this is too broadly stated. It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first - probably branch - level an essential condition of justice. But to seek to apply it generally overlooks, in their Lordships' respectful opinion, both the existence of the first category, and the possibility that, intermediately, the conclusion to be reached, on the rules and on the contractual context, is that those who have joined in an organization, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect. In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or, short of that, there may be doubts whether the appeal body embarked on its task without predisposition, or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the Court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Megarry J. [1971] Ch. 34, at p.49, or as a parallel category covered by a rule of equal status, is not in their Lordships' judgment necessary to state, or indeed a matter of great importance. What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation. While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the courts, the tendency, in their Lordships' opinion, in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced." 25 In our opinion, the mechanisms of review prescribed by the Act, especially when regard is had to the right conferred by s 85-8, of ultimate review on the merits by the Tribunal, fall squarely at the first end of the spectrum identified by their Lordships. This view is confirmed by Twist v Randwick Municipal Council (1976) 136 CLR 106 which was cited with approval by the Privy Council in Calvin v Carr. 26 In Twist, Mason J observed at 113: "Does the existence of the right of appeal, taken in conjunction with the terms of sub-s.(1), satisfy in full the duty of fairness, or does it sufficiently indicate a legislative intention that the duty of fairness has no application to the council when it decides to act under s.317B(1)? This, according to the appellant, is the question to be decided. It is a question which could be easily disposed of if the appeal were less than a full and comprehensive appeal from council's order. In that event it could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced. The owner might find that certain matters were irrevocably decided against him by the council without its having the benefit of representations on his behalf. However, the appeal is not restricted in any way. It is a full appeal on facts and on law in which the appellant is entitled to call evidence. The appeal extends to such elements of discretion as may enter into the making of the order as well as to the existence or non-existence of the conditions which are to be satisfied before an order can be made. There is nothing in the language of the section to preclude the court from considering afresh for itself these discretionary elements." 27 Those observations, we consider, can be paraphrased to apply with equal force to the rights of review afforded by the present Act. (b) Prejudice to Riverside 28 In the second place, in light of the known facts, there is a distinct absence of evidence to demonstrate that Riverside will suffer any significant further financial or other detriment unless its approval as a provider of aged care services and its allocation of places are restored to it for the time needed for the hearing and determination of its substantive application to this Court. Through its Counsel Riverside contended that it would suffer irreparable damage from the loss of income that would be generated if it were permitted to continue its business of providing aged care services under the Act and the loss of the opportunity to re-establish that business. 29 Following the March decision, Riverside lost its ability to operate as a provider of aged care since it no longer had any entitlement to receive Commonwealth subsidies. After it was notified of the decision it ceased to provide aged care services. Employment of its staff was terminated and the tenancy of its premises was relinquished. That state of affairs prevailed before the hearing of its application for a stay of the March decision and has continued to the hearing of this application for leave. 30 Riverside accepts that, even if the operation of the March decision were suspended pursuant to s 15, it should be a condition of such suspension that Riverside would not provide aged care services until; · Riverside has obtained suitable premises for that purpose as may be approved by the Department to the reasonable satisfaction of the Department; · such premises have been fitted out and equipped to the reasonable satisfaction of the Department; · such numbers of qualified staff and other staff as the Department may reasonably require have been engaged to work in such premises. 31 The making of an order under s 15 of the ADJR Act that the operation of the March decision be suspended would not, on any view, entitle Riverside to commence providing aged care services forthwith. Riverside accepts that it must take the steps referred to above before it could do so. Riverside contends, nevertheless, that if the decision were suspended, it would then be in a position to put in train arrangements to satisfy those requirements and re-establish itself in the business of providing aged care services. 32 However, there is no evidence before the Court that Riverside would be in any better position to take the steps necessary to re-establish its business if the operation of the March decision were suspended. Any such suspension would have only a temporary operation until the Court were able to make a final decision in the proceeding. It is not self-evident that financiers and prospective care recipients would be prepared to be involved with Riverside on the basis of a suspension which allowed for the possibility that the Secretary's decision to impose sanctions could still be upheld. It is by no means clear, therefore, that any additional prejudice is being suffered by Riverside by reason of the refusal of an order under s 15. 33 That is not to say that, if Riverside is ultimately successful, it will not have suffered some possibly significant damage. However, that damage arises by reason of the Secretary's having made the March decision and imposed sanctions. Of course, the position would be very different if Riverside were still conducting its business of providing aged care services and sought to suspend the operation of the March decision so as to enable it to continue to carry on that business pending the resolution of the proceedings. In those circumstances, there would clearly be significant damage that could give rise to substantial injustice if interlocutory relief were not ordered. However, that is not this case. 34 It was conceded by Counsel for Riverside that the final hearing of the proceeding would probably not have taken any longer than the hearing of the application for an order under s 15 of the ADJR Act. Further, Counsel for Riverside indicated that all evidence intended to be relied on at the final hearing was before the primary judge. Having regard to those matters and to the circumstances in which Riverside finds itself, it is curious that no application was made for the expedition of the final hearing of the proceeding, rather than pursuing the interlocutory application. It might be thought that the interests of Riverside would be better served, at this stage, by the pursuit of the review in the Tribunal on the merits of the Secretary's decision rather than the judicial review of that decision. The advantage to Riverside of the prosecution of the application to the Tribunal is the finality that will flow from that decision. The decision of the Tribunal will stand in place of the Secretary's decision. However, even if Riverside is successful in obtaining judicial review of the March decision, the best that it could obtain is remission of the matter to the Secretary for the matter to be reconsidered according to law. Conclusion 35 It was for these reasons that we yesterday refused leave to appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.