118 Vale Street Pty Ltd v Minister for Community Services and Health

[1991] FCA 368

Re: 118 VALE STREET PTY. LIMITED
And: MINISTER FOR COMMUNITY SERVICES AND HEALTH and OTHERS
No. V G16 of 1991
FED No. 368
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Administrative Law - order of review - application for extension of time for lodging - four separate decisions - whether extension of time should be granted for first three if granted for fourth, because of chain of reasoning involved - whether letter of decision maker contained reasons for fourth decision - whether satisfactory explanation of delay.

Administrative Decisions (Judicial Review) Act 1977 ss.11, 13

National Health Act 1953 ss. 44, 45D, 45E, 105AAB

HEARING

MELBOURNE

#DATE 6:6:1991

Counsel for the applicant: Mr T. Guinane

Solicitors for the applicant: Carroll and Dillon

Counsel for the respondent: Mr R. Downing

Solicitors for the respondent: Australian Government Solicitor

JUDGE1

Before the court is an application by notice of motion, in which the applicant seeks to extend the time laid down by s.11(1)(c) and (3) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for the filing of an application for an order of review.

1. The application for an order of review was filed on 4th February 1991. By it, the applicant seeks to review four separate decisions, described in the application as decisions A, B, C and D. They are as follows:
   

A. The decision of the second respondent as delegate of the first respondent, made on 22nd October 1990, to declare that the Yarra Park Nursing Home did not satisfy Commonwealth standards in the provision of nursing care, as determined by the Minister under s. 45D of the National Health Act 1953 ("the National Health Act"). B. The decision of the second respondent as delegate of the first respondent on 22nd October 1990 to determine, pursuant to s. 45E of the National Health Act, that Commonwealth benefit was not payable in respect of any patient admitted to the Yarra Park Nursing Home as from and including 24th October 1990. C. The decision of the second respondent as delegate of the first respondent on 23rd October 1990, pursuant to s.44 of the National Health Act, revoking the approval of the premises of the Yarra Park Nursing Home, pursuant to s. 44(2) of the National Health Act.

D. The decision of the third respondent as delegate of the first respondent on 11th December 1990 to affirm the decision of the second respondent that the approval of the premises of the Yarra Park Nursing Home should be revoked, pursuant to s.44(2) of the National Health Act.

1. The applicant is a company which owns the freehold of the relevant premises, which are situated in Vale Street, East Melbourne. The premises were conducted as a nursing home but are now no longer so conducted. The applicant's interest is in selling what are called "bed rights", i.e. the right to conduct a nursing home in respect of a certain number of beds, pursuant to the National Health Act.

2. On 18th March 1990, the tenant which formerly conducted a nursing home on the premises vacated the premises. On 11th May 1990, the registration of the premises as a nursing home was transferred formally to the applicant. On 17th, 18th, 24th and 25th September, an inspection of the premises was conducted by the Home Standards Monitoring Team. By letter dated 4th October, the second respondent notified the applicant of his intention to make a declaration under s. 45E(1) of the National Health Act that the premises did not satisfy the standards under s. 45D of the National Health Act. The letter attached a report of the Home Standards Monitoring Team, arising from their inspections to which I have referred. The applicant was then aware of its right to request a review of the findings in that report by the Victorian Standards Review Panel. It chose not to do so. Instead, it prepared what was described as an "action plan", designed to remedy the deficiencies referred to in the report. That action plan was forwarded with a letter of the applicant to the second respondent, dated 19th October.

3. Decisions A and B were contained in a letter of the second respondent dated 22nd October. That notified the applicant of a decision that the standards were not satisfied and a determination that no Commonwealth benefit was payable. By letter dated the following day, the second respondent advised his intention to revoke the approval of the nursing home pursuant to s. 44(2) of the National Health Act, and by letter dated 25th October the approval was revoked. That was decision C.

4. By a letter of its solicitors on 26th October, the applicant requested reasons for decision C, pursuant to s.13 of the ADJR Act. On the same day, the applicant's solicitors gave notice pursuant to s. 105AAB(2) of the National Health Act, seeking a reconsideration of decision C. Reasons for decision C were received on 5th December by the applicant, and it is not disputed in this proceeding that they did constitute reasons sufficient to satisfy s.13 of the ADJR Act.

5. Decision D was contained in a letter of the third respondent, dated 11th December. That was the decision which affirmed the decision to revoke the approval of the premises for the conduct of the nursing home. By letter dated 19th December, the applicant's solicitors requested reasons for decision D, relying on s. 13 of the ADJR Act. On 27th December, a letter was written by the Acting Assistant Secretary, Legal Services Branch of the Department of Community Services and Health, advising in terms of s.13(11)(b) of the ADJR Act, that the letter of 11th December included a statement setting out findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision. The letter therefore declined to give any further reasons. That letter was not received by the applicant's solicitors until 7th January 1991. On 4th February, i.e. the 28th day after 7th January, the application for an order of review of all four decisions was lodged in this Court.

6. In deciding whether an extension of time should be granted, I have found to be a most useful exposition of the principles to be applied what was said by Wilcox J. in Hunter Valley Developments Pty Limited v. Cohen, (1984) 3 FCR 344, at pp 348 to 349. I do not need to set out that passage in full.

7. Counsel for the applicant concentrated his argument in favour of an extension of time on decision D. He contended that if an application for review of decision C came before the Court properly, then it would follow that decisions A, B and C ought also to be the subject of an application for review, because of the chain of reasoning involved. On his argument, because the decision maker in decision C relied on decisions A and B, and because decision D involved a reconsideration of decision C, then it would be pointless to review decision C without also reviewing the other decisions.

8. I am by no means convinced that this argument is correct. It certainly does not follow from the provisions of the ADJR Act that an extension of time should be granted in the case of earlier decisions, merely because a later decision, which is properly reviewed, depends on them. In my view, for the purposes of the question of an extension of time, each of the decisions must stand alone. When the matter is looked at in this way, there is much to be said for the proposition that the applicant has rested on its rights in respect of decisions A and B.

9. Counsel for the applicant suggested that the applicant saw no need to challenge decisions A and B at the time when they were given. Those decisions by themselves did not affect the applicant's ability to sell bed rights. There is some evidence that the applicant was unaware that those decisions would receive the significance that they did in later considerations. One of the purposes of a time limit such as that found in s.11 of the ADJR Act is undoubtedly to prevent a later challenge when a decision turns out to have more importance than was first thought.

10. In relation to decision C, the time laid down by s.11 of the ADJR Act clearly ran from 5th December, the date of the receipt by the applicant of reasons for that decision. No satisfactory explanation was given by the applicant of delay in instituting proceedings in respect of that decision, except that it was waiting for the result of the reconsideration of decision C. That explanation itself was gone after 11th December and there was no satisfactory explanation given as to why decision C was not reviewed within 28 days after the result of the reconsideration was known.

11. The difficult question is as to the status of decision D. The first issue is whether the time limited by s.11 of the ADJR Act ran from 11th December. It cannot be said to be calculated from 7th January, because on no view could the letter received on 7th January be said to constitute reasons. Unless time began to run on 11th December, it was still running on 4th February and is still running now.

12. The outcome of the issue as to when time began to run depends on whether the letter of 11th December satisfies the criteria found in s. 13(11)(b) of the ADJR Act, i.e. whether that letter includes findings of fact, a reference to the evidence or other material on which those findings were based, and the reasons for the decision. In contrast with the reasons that were given in respect of decision C, the letter of 11th December does not set out under separate headings those three elements which are required. It is, however, a letter in excess of five, single-spaced, typed A4 pages in length. It undoubtedly contains a substantial summary of facts. It undoubtedly refers to the sources of evidence for those facts. Towards the foot of the fourth page and going over to the sixth page, there are paragraphs in which the writer of the letter is undoubtedly giving consideration to conclusions to be drawn from the facts. It is not difficult to say that these are paragraphs constituting the reasons for the ultimate decision.

13. Counsel for the applicant directed attention to the final paragraph, which appears on page 6 of the letter, and particularly to the first sentence of that paragraph, which he said constituted an indication that the third respondent took the view that some onus rested on the applicant to overturn decision C. The sentence reads:
    

"With the exception of the matters raised above which I have already addressed, the proprietor's submission does not raise any material which would lead me to conclude that the decision of the delegate should be overturned."

The opening words of the sentence make it plain that the third respondent has not simply regarded it as necessary to consider whatever the applicant put forward as reasons why decision C should be overturned. The sentence is more by way of a follow on, after the consideration of various other matters. It is followed by a sentence that reads:

"I have therefore decided to affirm the decision of the delegate that, pursuant to subsection

44(2) of the Act, the approval of Yarra Park

Nursing Home should be revoked on the basis that the nature of the home had changed since the

approval was granted to such a degree as to

justify its revocation."

In my view it is apparent that the letter of 11th December was itself a decision that set out the elements required by s.13(11)(b) of the ADJR Act, and therefore the applicant had no right under s.13 of that Act to demand further reasons. It follows that time in respect of decision D began to run on 11th December.

1. Counsel for the applicant sought to argue that, even if this were so, it was reasonable for the applicant's solicitors to take the step of seeking reasons, because it was not so apparent that the letter of 11th December constituted sufficient reasons to satisfy s.13 as to make that course unreasonable. It may be that the step could be described as a reasonable one, but it was nonetheless risky in the light of the form of the letter of 11th December. Even if the decision to seek reasons were reasonable, by 7th January it was plain to the applicant's solicitors that the question of their entitlement to reasons was in dispute. At that stage, the applicant was still within time by a day for the making of an application for review, without any need for an extension of time. Even if it is not reasonable to suggest that the applicant should have lodged its application in final form within a day, it was open to the applicant, under the provisions of s. 11(1)(c) of the ADJR Act, to apply before the expiration of the prescribed period for an extension of time. Instead of doing this, the applicant waited a further 28 days.

2. It was said by counsel for the applicant that 7th January fell within the Christmas vacation, and that if other proceedings in this Court had been commenced, then the rules applicable to those proceedings would have enlarged any necessary times during the Court vacation. That may be so, but there is no evidence of any confusion on the part of the applicant or its solicitors with respect to the time limits and when they expired. It is also said that there is evidence by the affidavit of the applicant's solicitor, filed on 4th February, that a director of the applicant was at that time overseas. There is, however, no evidence that the director was overseas on 7th January, or indeed at any other time between 11th December and 4th February. The applicant has not put forward such evidence as may be in its possession with respect to those matters, and they cannot be assumed in its favour.

3. The applicant is therefore unable satisfactorily to explain the whole of the delay in applying to review decision D. Waiting until the twenty-eighth day after 7th January is not explicable at all. It was plain that the letter received on 7th January was not itself reasons under s.13. There was no reason, therefore, why the twenty-eighth day after 7th January should have had any significance. Either no reasons had been given, in which case it was open to the applicant to proceed under s. 13 to establish that proposition, or reasons had been given on 11th December, in which case it was incumbent on the applicant to act as soon as it reasonably could, to avoid time running against it. It is noteworthy that the applicant had solicitors acting for it at all relevant times.

4. Counsel for the applicant put that the only extension required in respect of decision D was for a relatively short time, and that extensions for longer times have been granted by the Court. Each case, of course, must depend on its own circumstances. What the principles referred to by Wilcox J. show is that the 28 day period prescribed by s.11(3) is intended to provide a real limit.

5. Some attempt was made by counsel for the applicant to rely on various steps taken, in order to show that it was known to the respondents that the applicant did not accept the validity of the various decisions. It cannot be said that any such steps were taken in respect of decisions A and B. Indeed, the applicant by its conduct gave every indication that it had accepted those decisions. Certainly, in respect of decision C, reasons were sought and a reconsideration was sought, but there is nothing that the applicant can point to after 11th December which would show that it indicated to any of the respondents, and perhaps particularly to the second respondent, that decision C was not accepted. As I have said, there was nothing that occurred between 7th January and 4th February by which the applicant could be said to have indicated to the third respondent that it did not accept the validity of decision D.

6. Against these factors must clearly be balanced the fact that no prejudice would accrue to any of the respondents, or to any other person or party, by having these decisions the subject of proceedings for review, and that the applicant has demonstrated that it would have had arguable grounds on which to pursue a review of those decisions had it done so within time. As I have said, these matters are to be balanced with the factors that are against the applicant in the present case. Once that balancing exercise is undertaken it is my view that the overwhelming result is that the applicant has simply rested on its rights, and should not be permitted to pursue them now.

7. For those reasons I do not regard it as appropriate that an extension of time be granted. I therefore must dismiss the notice of motion filed on 4th June.