(4) Introduction of s.44-8AB - "Determination of value of person's assets" .
91 In addition to the above, a number of other amendments were made which need not be considered for the purposes of the present case.
92 The amendments made by Schedule 2 operated according to s.27, "Application of amendments, of the Amending Act. I am of the view that s.27(2) applied to the present case.
93 As noted above, in the submissions for Mrs Frey, Mr Hughes relied upon the amendments as providing the statutory basis for the Secretary's determinations of 15 November 2005 and 14 August 2007 and as having thereby conferred upon Mrs Frey concessional status for the purposes of both the Act and the Accommodation Bond Agreement. If the Secretary's determinations were operative from the date of Mrs Frey's entry into the plaintiff's residential care facility, then that could only be by virtue of the amendments having a retrospective operation back to 28 September 2005, the date of Mrs Frey's entry into the care facility.
94 The plaintiff's case, as the overview in paragraphs [9] to [22] indicates, was that the amendments, properly construed, were not retrospective in their operation. In order to resolve that question, being one fundamental to Mr Hughes' submissions, it is necessary to examine the relevant provisions of the Amending Act in some detail.
95 Section 44-7 sets out the criteria for a person to be classified as a "concessional resident". The amendments to that section came into effect on 1 July 2005. Section 44-7, as amended, authorised the Secretary of the Department to make determinations (a "resident status determination").
96 However, the question is whether the 2005 amendments to s.44-7 applied at all to this case. The answer to it depends upon the provisions of s.27(2) of the Amending Act, in particular, whether the amendments could apply to Mrs Frey after her entry into the residential care service or, as the plaintiff argued, whether the terms of s.27(2) and (3) indicate that they only applied prospectively, that is, before or at the time of entry into a residential care service and not after entry. It is noted that Mrs Frey's "request" for a determination did not pre-date the Resident Agreement but post-dated both it and her entry into the care facility by about two months (that is following her entry on 28 September 2005).
97 Section 27 is in the following terms:-
"27. Application of amendments
Entry and approval on or after 1 July 2005
(1) The amendments made by this Schedule apply in relation to the entry of a person into a residential care service (whether for the first time or not) if:-
(a) the entry occurs on or after 1 July 2005; and
(b) the person is approved under s.22-1 of the [Aged Care Act] on or after 1 July 2005 as a recipient of residential care.
Entry on or after 1 July 2005, approval before 1 July 2005
(2) The amendments also apply in relation to the entry of a person into a residential care service (whether for the first time or not) if:-
(a) the entry occurs on or after 1 July 2005; and
(b) the person was approved under s.22-1 of the [Aged Care Act] before 1 July 2005 as a recipient of residential care; and
(c) the approval had not expired, lapsed or been revoked under Division 23 of that Act by the time of entry; and
(d) the person chooses that the amendments apply.
(3) The person is taken to have made such a choice if he or she has applied in the approved form for the Secretary to determine the value of the person's assets at a time that is before or at the time of entry. This does not limit the ways in which the person may make such choice.
…"
98 I accept, as submitted by Mr Kunc, that the provisions that are potentially relevant to resolving the issue in the present case are those contained in s.27(2). The first point raised by the plaintiff was the absence of evidence of any "approval" of Mrs Frey as a care recipient under Division 22 of the Act as required by s.27(2)(b). However, Mr Kunc fairly conceded that it may be possible to infer, by reason of Mrs Frey having been a resident of Georgian House, that she, at some earlier time prior to 1 July 2005, had been approved under s.22(1) of the Act.
99 The plaintiff's next point was that the condition expressed in s.27(2)(d) required that a choice be made by the person concerned before, not after, entry into a residential care service. That is an issue of construction of that provision. It was correctly contended for the plaintiff that there was no evidence of a choice by Mrs Frey having been made before her entry into the plaintiff's care facility.
100 Accordingly, it was submitted that the 2005 amendments had not been engaged. In support of its submissions as to s.27(2), the plaintiff pointed to the method prescribed by s.27(3) for a person to make a choice within s.27(2)(d). That method was said to be expressly prospectively, that is, it must be made before or at the time of entry into a residential care service.
101 Reliance was also placed by the plaintiff upon the principle that statutes are presumed not to have a retrospective operation: Maxwell v Murphy (1957) 96 CLR 261, 267 per Dixon CJ.
102 I consider the 2005 amendments, on their proper construction, have a prospective and not a retrospective operation. If the legislature had intended the relevant provisions to be retrospective, one would have expected that that intention would have been expressed especially in such detailed and complex legislation as the Aged Care Act. There are no express terms in the Amending Act to that effect. To give the amendments a retrospective operation would result in many cases to the setting aside of bond accommodation agreements made prior to the determinations and after a person had entered a care facility. That would represent a significant interference with existing contractual rights and potentially would give rise to significant administrative issues. Such consequences are not readily to be inferred.
103 Even if, contrary to what I have stated, it be assumed that the Secretary could make a resident status determination under s.44-8AA on 15 November 2005 such that it operated with respect to a person whose entry into residential care service commenced on 28 September 2005, there still remains a question as to whether either determination made had that effect.
104 I have extracted s.44-8AA(3) and (4), enacted in 2005 in paragraph [68]. It is a significant provision.
105 Section 44-8AA(3) is intended to apply to cases where a person has not, as at the time a determination is made, entered a residential care service. There is no restriction on what day the determination comes into force in such cases.
106 However, the position is otherwise where a person has entered into such a care service. In those cases (of which the present case is one), s.44-8AA(4) provides that:-
"… the day stated must not be before the day the determination is made unless the Secretary is satisfied that exceptional circumstances justify the determination coming into force on the day stated." (emphasis added)
107 There is no evidence of "exceptional circumstances" in the present case and there is no evidence of the Secretary having considered whether there were or if he/she did undertake such consideration, that he/she was "satisfied" that such circumstances existed. I do not, with respect, accept the submission made by Mr Hughes in this respect that it is open to me to infer that the Secretary was so satisfied. It may, in certain circumstances, be possible to infer that a decision-maker was satisfied of a particular matter not expressly referred to in the decision being a matter that may be expected to exist on a certain set of facts as a matter of course. It is another to infer that something "exceptional" was considered and determined without an express statement to that effect or without evidence of a particular combination of facts or matters that point in that direction. In Baker v Regina (2004) 223 CLR 513 at 573, [173], Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in Regina v Kelly (Edward) [2000] QB 198 at 208, namely:-
"We must construe 'exceptional' as an ordinary, familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or very rare; but it cannot be one that is regularly, or routinely or normally encountered."
108 See also Ho v Professional Services Review Committee No 295 [2007] FCA 388 per Rares J at [23] to [27].
109 There is no indication in my opinion in the letter by the Delegate of the Secretary (Exhibit 1) that any special, exceptional or unusual circumstances arose for the delegate's determination. The letter of 15 November 2005 is expressed in what appears to be reasonably standard or conventional terms.
110 Section 44-8AA(4), in my opinion, resonates or reflects the presumption against retrospectivity and provides, in a case where a person has entered into residential care before a determination, for a quite narrow "exceptional circumstances" case.
111 The responsibilities relating to accommodation bonds and accommodation charges are set out under Divisions 57 and 57A respectively. These include provisions that agreements entered into by an approved provider with respect to an accommodation bond or an accommodation charge is to be made within a number of days of the resident's entry to care.
112 The provisions of s.57-12(5) as to the maximum amount of an accommodation bond, introduced as part of the 2005 amendments, is also consistent with the proposition that existing accommodation bond agreements should not be made subject to subsequent determinations as to the value of a resident's assets provided for by the Amending Act. That section provides:-
"(5) However, subsections (1), (2) and (3) are modified as described in the table, and subsection 94) does not apply, if, before entering the accommodation bond agreement, the care recipient gives the approved provider a copy of a determination that :-
(a) is a determination under s.44-8AB of the value of the care recipient's assets at a time (the valuation time ) that is before or at the time (the entry time ) the care recipient enters the residential car eservice or flexible care service; and
(b) is in force at the entry time, if that is after the valuation time." (my emphasis)
113 Subsection (5) emphasises the need to give notice of a determination before an accommodation bond agreement is made. To override an accommodation agreement after it is made and after entry would, in my opinion, only be achieved by clear statutory provisions to that effect. The very terms of s.57-12(5) point against the amendments operating to affect agreements made before a Secretary's determination.
114 I, accordingly, am of the opinion that the amendments do not operate to enable the Secretary's abovementioned determinations to operate retrospectively from the date of Mrs Frey's entry into the plaintiff's care facility. The Secretary's determinations made under the amending provisions, accordingly, were not effective to affect the plaintiff's contractual entitlement to a maximum accommodation bond provided for in the Resident Agreement.
115 I therefore, am unable to accept the submission made by Mr Hughes that the Secretary's determinations "overrode" the assessment made by the plaintiff as to Mrs Frey's residential status. There is certainly no provision in the Amending Act that states that effect nor, in my opinion, has such an effect. The Act in its form following the 2005 amendments, still envisaged the possibility that an approved provider may determine whether a care recipient is a concessional resident: see, in particular, s.44-9(b). The plaintiff was entitled under the transitional agreements to undertake an assessment of the value of Mrs Frey's assets as at the date of the Resident Agreement (12 August 2005) and as at the date of her entry into the care facility on 28 September 2005. There was no request made by Mrs Frey for a determination under the amendments until 14 November 2005.
116 On the conclusions I have reached and expressed above, Mrs Frey did not meet the concessional criteria under the Act. By operation of clause E1.02 of Schedule E of the Resident Agreement, she, in accordance with the terms of that clause, ceased to be a concessional resident by reason of the fact that, as specified in clause E1.02(d), subsequent to her entry the information on the basis of which the classification was made was found to be incorrect.
117 The condition contained in clause E1.02 having been met, the obligation on Mrs Frey to pay an accommodation bond arose in accordance with clause E1.03.
118 I, accordingly, do not accept the submission made on her behalf that WRCA had no power to classify Mrs Frey or that any classification made by it was overridden by the Amending Act.