Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing
[2009] AATA 840
•30 October 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/5243
GENERAL ADMINISTRATIVE DIVISION )
Re Aged Care Services 27 (Kirralee) Pty Ltd Applicant
And
Secretary, Department of Health and Ageing
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date4 November 2009
PlaceMelbourne
CORRIGENDUM TO DECISION [2009] AATA 840
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 30 October 2009 as follows:
(a) paragraph 13, 3rd line delete 2009 and insert 2008; and
(b)Counsel appearing with Mr P Hanks QC – delete Mr G Hall and inset Mr G Hill.
................................................................
G. L. McDonald
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/5243
GENERAL ADMINISTRATIVE DIVISION ) Re Aged Care Services 27 (Kirralee) Pty Ltd Applicant
And
Secretary, Department of Health and Ageing
Respondent
DECISION
Tribunal Mr G. L. McDonald, Deputy President
Miss E. A. Shanahan, Member
Date30 October 2009
PlaceMelbourne
Decision
The Tribunal sets aside the decision made on 25 July 2008 under ss 66‑1(d) and 67A‑5 of the Aged Care Act1997 to impose a sanction progressively revoking all places for care recipients which on reconsideration was amended on 9 October 2008 to limit the revocation to 13 places vacant as at 4 September 2008 and substitutes a decision that all of the previously allocated 100 places are to be reinstated.
..............................................
Deputy President
CATCHWORDS – AGED CARE ACT – approved provider of residential care – accreditation standards – quality of care principles – non compliance with standards – sanctions – whether the Tribunal should consider events after the date of the reviewable decision – whether the sanctions imposed were appropriate – temporal limitation should not be applied – substantial improvement in rate of compliance – decision under review set aside
Administrative Appeals Tribunal Act 1975 s 43(1)
Aged Care Act 1997 ss 65-1, 65-2, 66-1, 66-2, 66A-3, 67A-5, 80-1, 85-1, 85-5 and 96-1Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
30 October 2009 Mr G. L. McDonald, Deputy President
Miss E. A. Shanahan, Member1. The applicant has applied for a review of a decision made on 25 July 2008 by a delegate of the respondent to impose sanctions under s 65‑1 of the Aged Care Act 1997 (“the Act”). One of the sanctions was to progressively revoke the allocation of the 100 places at the applicant’s residential care facility known as Kirralee. On 9 October 2008 that decision was varied, on reconsideration under s 85‑5 of the Act, to limit the revocation to 13 places. The Tribunal has decided to set aside the decision to impose that sanction.
2. Another aspect for which review was requested ‑ the prohibition on a further allocation of places for a six month period ‑ was resolved prior to the hearing and hence it has not been necessary for the Tribunal to address that aspect.
Background
3. The applicant was, until 25 July 2008, an approved provider of residential care at a facility known as Kirralee Residential Aged Care Facility (“Kirralee”) located in Ballarat, Victoria. Approval is given under the provisions of the Act. Kirralee had an allocation of 100 places (beds). Kirralee is one of 37 such facilities now operated by the owner, Japara Holdings Pty Ltd (“Japara”).
4. On 18 July 2008 a support contact (site visit) was conducted by an assessment team from the Aged Care Standards and Accreditation Agency (“the Agency”). The team determined the residents were being placed at risk as the result of nutritional and hydration problems experienced at Kirralee. A finding of immediate and severe risk was determined by the respondent, sanctions were imposed and a review audit commenced on 19 July 2008 and concluded on 25 July. As at that date there were 93 residents at Kirralee of whom 91 were classified as requiring high care. The audit review found Kirralee not to be complying with 33 out of a possible 48 Accreditation Standards (“the Standards”). The Standards are set out in Schedule 2 of the Quality of Care Principles 1997 (“the Principles”). The Principles are issued by authority contained in s 96‑1(1) of the Act. Following that finding sanctions, outlined below, were imposed by a delegate of the respondent.
5. At the time Japara acquired Kirralee on 1 September 2007 the facility was accredited until September 2009. Accreditation is given by the Agency. The Agency is the body appointed by the Commonwealth under s 80‑1 of the Act to review, among other things, the compliance by approved providers with the Principles and report its findings to the respondent. In carrying out this function the Agency undertakes support (site) visits, audits and site audit reviews of approved providers’ premises. The reviews are carried out by assessment teams which may be constituted by consultants and/or employees of the Agency. In turn the assessors may be qualified nurses with experience in the aged care sector or quality assessors. The latter, who may not be qualified care givers and who do not assess the level of care being given to residents, determine whether the approved provider is complying with the policies determined by the provider for the care and management of residents. Agency visits include observations of the operation of the facility, inspection of records, interviews with residents, staff and residents’ relatives. The respondent is authorised to impose sanctions which are based on the findings and recommendations made as the result of Agency site and audit visits.
6. Kirralee had three site visits from the Agency between the time of purchase by Japara and July 2008. Not any of those visits resulted in any findings of non compliance with the Principles. On 18 July 2008 a further site visit occurred. The Agency determined non compliance with nutrition and hydration standards. The respondent decided that that non compliance placed the residents at risk and imposed sanctions effective from that day and it was decided to undertaker a review audit at Kirralee between 18 and 25 July 2008. The outcomes of this audit are addressed later in these reasons.
7. At the hearing, the Tribunal heard from Ms Julie Reed for the applicant. Ms Reed is the Executive Director of aged care facilities within the Japara group of residential care facilities. In that capacity Ms Reed is responsible for quality control of all of Japara’s aged care facilities. M/s Reed is a long standing registered nurse ( div 1) with considerable experience in the aged care sector. Ms Reed reported to Mr Arnan Rouse. Mr Rouse was not called to give oral evidence but wrote the substantive submission requesting the respondent to reconsider the reviewable decision.[1] Ms Maureen Phillips was the Director of Nursing (“the DON”) at Kirralee until her resignation in October 2008. As the DON Ms Phillips was responsible for the day to day management of Kirralee for the period leading up to 18 July 2008. Ms Phillips was not called to give evidence. The respondent called Dr Margaret Lett and Ms Kerry Ewing, both qualified nurses, who conducted the July 2008 audit on behalf of the Agency and Ms Cindy Edwards and Ms Lorraine Davis, both quality care assessors, who constituted the team which undertook the site visit on 18 July. Finally the respondent called Professor Alan Pearson an acknowledged and accepted expert in the requirements pertaining to the provision of aged care.
8.The sanctions imposed on 18 July 2008 after the site visit were:[2]
(a)revocation of the applicant’s approval as a provider of residential care – suspended upon the applicant agreeing to nominate and appoint a qualified nurse adviser approved by the Commonwealth; and
(b)restrict the care offered to those residents to whom care was then being provided.
[1] T documents, T34.
[2] T documents, T6.
9. After the audit review respondent wrote to the applicant setting out the findings of fact it relied on and notified the sanctions it had decided to impose. This became the reviewable decision, that is the decision in respect of which the applicant could request a review. The sanctions imposed (as varied on reconsideration) were:[3]
[3] T documents, T2 and T3.
(a)revocation of the allocation of all places allocated progressively (in accordance with s 67A‑5 of the Act), varied to the revocation of the allocation of those places which were vacant as at 4 September 2008; and
(b)prohibition of the further allocation of places to the applicant for a period of 12 months from 25 July 2008 (s 66‑1(f) of the Act ); and
(c)revocation of the applicant’s approval as an approved provider of aged care facilities suspended upon the applicant agreeing to:
(i)provide training for the Kirralee staff to commence within 30 days of 25 July 2008 at the applicant’s expense and under the supervision of the Department in the following areas (in accordance with ss 66‑1(a) and 66‑2(1)(a) of the Act):
- Clinical care
- Specialised nursing care needs
- Pain Management
- Skin care; and
(ii)appoint an Administrator approved by the Delegate for a period of six months commencing 25 July 2008 (in accordance with s 66A‑3 of the Act).
10. The applicant accepted the findings made in the audit report and took immediate steps to implement the requirements imposed in the sanctions and to improve compliance with the Standards. It introduced staff training, engaged dieticians, a wound consultant, a speech pathologist and an aged care consultant psychologist.[4] Ms Reed took over the management of Kirralee and wrote to the Department informing it of the steps proposed to be taken to correct the non compliance,[5] called in senior staff from other care facilities operated by Japara to assist in achieving compliance, devised a plan for continuous improvement[6] and, to keep the respondent informed of what action was being taken, forwarded an improvement outline.[7] There was some difficulty in obtaining the services of a nurse administrator and after negotiation with the respondent three people working on shifts were appointed to carry out that responsibility.
[4] Exhibit A1, paragraph 18.
[5] Exhibit JR1 to Exhibit A1.
[6] Exhibit JR1 to Exhibit A1, paragraph 22(a) and T documents, T34, pages 435-469.
[7] T documents, T34, pages 506-526.
11. On 22 August 2008 the applicant requested a reconsideration of the reviewable decision in as far as it imposed sanctions.[8]
[8] T documents, T34.
12. Between 25 and 27 August 2008 a site audit was conducted at Kirralee. At that time there were 85 residents of whom 82 were classified as needing high care. The site audit team reported compliance with all standards.[9] As a result an own motion decision was made to revoke the cancellation of the accreditation of Kirralee and to accredit it for six months from 17 September 2008.[10]
[9] Exhibit JR3 to Exhibit A1.
[10] Exhibit JR4 to Exhibit A1.
13. The reviewable decision was reconsidered by a delegate of the respondent and varied on 4 September 2008[11] to restrict the revocation of non allocated places to those not allocated as at 4 September 2009 (subsequently determined to be 13 places[12]). The delegate stated that the reviewable decision was limited to a reconsideration “… in light of the circumstances which existed at the time of the original decision … section 65‑1 of the Act, contains a temporal element which requires me to assess whether the criteria for decision were met at the time of the original decision.”[13] While this is stated as the basis upon which the delegate made the finding, in fact, the variation was made because of the improvement in the level of compliance which had been achieved in the period post 25 July 2008.
[11] T documents, T3.
[12] T documents, T35.
[13] T documents, T3, page 35.
14. On 30 October 2008 Ms Reed applied to the respondent to lift the sanctions as varied.[14] On 27 November 2008 the delegate wrote lifting the sanctions relating to the provision of training and the appointment of an administrator.[15] On 22 December 2008 Ms Reed again wrote seeking to have the remaining sanctions lifted.[16] On 18 February 2009 the delegate lifted the sanction prohibiting the further allocation of places to Kirralee.[17]
[14] Exhibit A2.
[15] Exhibit A3.
[16] Exhibit A4.
[17] Exhibit A5, in accordance with s 66-1(f) of the Act.
15. A further site audit was carried out on 7 and 8 January 2009 at which time there were 85 residents of whom 83 required high care. There was a finding of compliance with all 44 of the standards[18] resulting in accreditation for a 12 month period to 17 March 2010.
[18] Exhibit JR7 to Exhibit A1.
16. The only remaining sanction at the time that the case was heard by the Tribunal is that restricting the applicant’s place (bed) quota by 13. It is this sanction which is in issue in this review.
Tribunal’s Consideration
17. The applicant does not dispute the findings of the audit review carried out in July 2008. What is submitted on behalf of the applicant is that no sanctions should have been imposed or, if sanctions were imposed, the imposition should have been lifted when the reviewable decision was reconsidered by the respondent and/or by this Tribunal. This raises the first question to be determined by the Tribunal, namely, is there a temporal limitation arising under the provisions of the Act which precludes the delegate on reconsideration or the Tribunal on review from considering events after that date of the reviewable decision, or is the delegate and/or the Tribunal when undertaking their function able to consider events occurring after the that date?
18. The applicant maintains that following Shi v Migration Agents Registration Authority[19] the relevant date for determination is the day on which the reconsideration occurs or the date the Tribunal determines the case. The respondent submits that Shi’s case does not have the result that the Tribunal may or must take into account fresh events occurring after the imposition of sanctions. That being the case the respondent maintains that the question for the Tribunal is whether the imposition of sanctions was appropriate having regard to the non compliance at or before the time the sanctions were imposed. If the respondent’s submission is accepted, then the respondent maintains that events subsequent to the imposition of sanctions should not be given such weight in the review as would:
(a)distract from the task of answering what was the correct or preferable decision at the time the sanction decision was made; and/or
(b)subvert the statutory objectives underlying the scheme.[20]
[19] [2008] HCA 31.
[20] Respondent’s Facts Issues and Contentions, paragraph 1.3.8(e).
19. The respondent submitted that the relevant statutory objectives include:
(a)protection of the health and well-being of recipients of aged care services,
(b)sanctions imposed for the objective of protection may promote that objective by (inter alia) means of specific deterrence and/or general deterrence against similar conduct in the future. The desirability of deterring future non-compliance has recently received statutory recognition as a mandatory relevant consideration in deciding whether it is appropriate to impose sanctions pursuant to section 65‑2(da) of the Act,
(c)provision of funding that takes account of the quality of the care, appropriate outcomes for the recipients of the care and the accountability of the providers of the care for the funding and for the outcomes for recipients.
(d)promotion of high quality care.[21]
[21] Respondent’s Facts Issues and Contentions, paragraph 1.3.9.
The Tribunal agrees that the objectives of the Act cover the items identified by the respondent emphasising, in accordance with s 65‑2, that circumstances which threaten or would threaten the health, welfare or interests of current or future care recipients is of paramount importance for the decision maker when determining whether or not to impose sanctions. The tribunal also notes that the philosophy behind the imposition of sanctions is not to penalise facilities which may be in breach but to promote compliance with the standards.
20. Shi concerned a case where an immigration agent had had his registration cancelled on the two grounds. The first was that he was not a fit and proper person to give immigration advice. The second was that he had breached the code of conduct regulating migration agents. Mr Shi appealed to the Administrative Appeals Tribunal which set aside the decision to cancel his registration and substituted a decision to caution him. A single judge of the Federal Court of Australia allowed an appeal by the respondent on the grounds that the Tribunal ought to have considered the facts as at the date of the decision of the respondent and not taken into account any subsequent change of circumstances occurring between that time and the time the Tribunal determined the case. The Full Court of the Federal Court, by a majority, upheld the decision of the single Judge. The High Court set aside the decisions of the Federal Court and reinstated the Tribunal’s decision.
21. There were two issues before the High Court, one concerning the date on which the Tribunal should determine the facts and the other whether the Tribunal had power to decide the penalty which it imposed. The second ground is not one which this Tribunal needs to consider in the instant case. Mr Hanks QC, on behalf of the applicant in this case, drew to the Tribunal’s attention to the fact that there were two aspects of disqualification arising for consideration – that Mr Shi was not a fit and proper person and that he breached the regulatory code. Hayne and Heydon JJ addressed both aspects compositely and held that the Tribunal should determine the case on the facts before it and not limit itself to the facts as at the date the initial or reconsidered decisions were reached. Kirby J did not expressly consider the two aspects separately although he noted some differences in the wording of the two relevant subsections. Kirby J concluded that the decision (presumably incorporating both aspects) was not to be determined by reference to the state of the evidence at the time the Tribunal decision was reached. Only Kiefel J drew an express distinction between events which were time related (the breach of the code of conduct) and those which had no temporal connection (the fit and proper person aspect). Kiefel J held that there was a temporal connection which required the Tribunal to consider only the evidence up to the time of the initial decision in the aspect addressing the facts or events which had occurred before the initial decision was made and those with no temporal limitation such as whether an applicant was a fit and proper person. Crennan J agreed with Kiefel J without expressing any view on the different aspects canvassed by Kiefel J.
22. A consideration of the function involved in undertaking administrative review is the first point to consider. Administrative review is, in the main, clearly distinguishable from that of judicial review. Judicial review determines whether an earlier made decision is correct in law. The decision reviewed will be either right or wrong in whole or in part. Administrative review concerns itself with whether the earlier made decision is the correct or the preferable decision. A decision is ‘correct’ if it is in accordance the facts as presented and with the law. To the extent which this involves an application of the law it is a requirement imposed on all administrative decision makers and does not result in them undertaking a judicial function. A preferred decision is one which determines between a number of possible outcomes which is in the best interests of the parties and the community taking into account the findings of fact, the policy background to the legislation, any Ministerial or departmental directions or guidelines or other material which may give legitimate guidance. In the absence of any legislative direction as to the time a decision must be considered, it is usual for administrative decision makers to consider the circumstances as at the date the decision is reached. The Tribunal does not exercise the judicial power of the Commonwealth. It must therefore be an administrative decision maker. The Tribunal has followed the usual practise of taking all of the circumstances relevant as at the date it determines a case into account. In the absence of any legislative imperative arising in the Act there is no reason why the Tribunal should not follow the general rule. There is no direct provision in that Act establishing a date to bind or guide a decision maker. The Tribunal accepts that such a temporal limitation may arise by necessary implication having regard to the terms of an Act.
23. The question then is does any temporal limitation arise by necessary implication when reconsideration or review is being conducted following findings of fact leading to the imposition of sanctions under the Act?
24. Section 85‑1 of the Act sets out those decisions which are reviewable. A decision reached under s 65‑1, as in the present case, is a reviewable decision. There is nothing which arises by implication from s 85‑1 which suggests any temporal limitation should be applied. The Tribunal is not able to accept the respondent’s contentions, as stated, that a temporal limitation arises as the result of a consideration of s 65‑2 even when that section is considered in the context of the policy imperatives expressed in the legislation as a whole, including the reference to the relevant Principles.
25. There are two functions involved in reconsidering or reviewing a reviewable decision. The first is the fact finding. Facts occur in a time frame. An administrative decision maker can only find the facts as he/she apprehends them at a particular time. Whether a subsequent reviewer makes the same assessment of the facts will depend on what material is before him/her at the time of review. If the material on which the conclusions of fact are reached are the same or similar then it may be expected the same or similar findings would follow. This is amply demonstrated in the facts of this case where the applicant admits the findings of fact and accepts that there were 33 non compliant breaches. It would therefore be extraordinary if the delegate on reconsideration or this Tribunal on review found otherwise. It is possible some event occurring after a finding in a reviewable decision may alter or explain a fact as found in the reviewable decision. If that is the case then clearly in making the correct decision this is something which a subsequent reviewer would take into account – just as it would other facts which existed but which were not before the reviewable decision maker but which were put before the subsequent reviewer. This part of the function is not based on any consideration of a temporal limitation unless expressly imposed by an Act and none is either expressed or arises by implication in the Act.
26. The second function is to determine whether the facts should result in a sanction being imposed and, if so, the level of the sanction. This is clearly a discretionary consideration and is distinguishable from the fact finding function. There is generally no reason as to why a decision maker cannot consider events found to exist after the reviewable decision was made which may assist the decision maker in exercising a discretion. Rather than subverting the underlying objectives of a statutory scheme a reconsideration or review should be regarded as enhancing those objectives in undertaking this function. A discretion may be exercised to increase or reduce the level of sanction imposed. There will always be a time gap between a reviewable decision being reached and its reconsideration and even a longer time between any reconsideration and review by this Tribunal. Not to take into account events occurring in those time gaps is to superimpose a technique more akin to the undertaking of judicial review than it is to undertake an administrative review function. In the absence of any express or implied temporal constraint administrative decision making is, and should be, regarded as a continuum and not something limited to a particular moment in time. Accordingly the Tribunal considers events occurring after a reviewable decision has been made but which are germane to the proper exercise of a discretion should be taken into account when that discretion is being considered by subsequent decision makers.
27. Against that general background it is necessary to consider whether the Act contains by necessary implication any temporal limitation on the person undertaking the reconsideration or this Tribunal in undertaking a review function. As stated earlier the applicant accepted that there was widespread non compliance at the time of the first audit which occurred between the 18 and 25 July 2008. It was suggested that the then DON may have been unwell and not able to cope.[22] For present purposes the reason is unimportant as the applicant accepts that there was non compliance with 33 out of a possible 48 principles. This is accepted by the Tribunal as being a high breach rate, justifying the initial expressed concern and the level of sanctions which were imposed.
[22] Transcript, pages 22 to 23.
28. However, the Tribunal is satisfied that the substantial improvement in the Kirralee’s rate of compliance by the time of the second audit three weeks later in August 2008 required the delegate reconsidering the sanctions to take those changes into account. In that period Ms Reed had assumed direct control of Kirralee’s operations. The issues identified by Ms Ewing and Dr Lett in the first audit had been corrected so that by the time the site audit team reported there was no non compliance. While it is accepted that the site audit report contained some qualifications that the compliance was immature – in the sense that it had not long been implemented – the Tribunal is satisfied that a dramatic change for the better had taken place in a short period of time. The Tribunal is satisfied that this reflects Ms Reed’s understanding of the requirements necessary to correct the situation and her ability to ensure that those requirements were comprehensively satisfied. Additionally, the fact that the breaches could be so quickly corrected reflected that they had not become entrenched and were not systemic in nature.
29. Section 65‑1 of the Act sets out the matters to be taken into account when sanctions are being considered and is relevantly as follows:
The Secretary may impose sanctions (see Division 66) on an approved provider if:
(a)the approved provider has not compiled, or is not complying, with one or more of its responsibilities…
Section 65‑2 is relevantly as follows:
In deciding whether it is appropriate to impose sanctions on an approved provider for non-compliance with one or more of its responsibilities … the Secretary must consider the following:
(a)whether the non-compliance is of a minor or serious nature;
(b)whether the non-compliance has occurred before and, if so, how often;
(c)whether the non-compliance threatens the health, welfare or interests of care recipients;
(ca)whether the non-compliance would threaten the health, welfare or interests of future care recipients;
(d)whether the approved provider has failed to comply with any undertaking to remedy the non-compliance;
(da)the desirability of deterring future non-compliance;
…
30. The respondent drew a distinction between sub-paragraphs (a), (c), (ca) and (da) on the one hand and the remaining provisions on the other. It submitted that the former contained a temporal aspect while the latter did not. In large part the interpretation submitted on behalf of the respondent turns on the use of the past tense used in the subclauses. Clearly, the occurrence of previous non compliance is something which by its very nature is limited to the past[23] – just as is a failure to comply with an undertaking to remedy non compliance[24]. There is, however, nothing which gives rise to any implied temporal limitation being placed on the facts which can be taken into account on a reconsideration or review when the factors in s 65-2 are being considered.
[23] Section 65-2(b) of the Act.
[24] Section 65-2(d) of the Act.
31. The above expressed view is consistent with the decision in Shi. It is further enhanced when s 43(1) of the Administrative Appeals Tribunal Act 1975 is taken into account. That section invests the Tribunal with all of the powers conferred on the original decision maker. In reaching an administrative decision in the absence of statutory direction, those powers are temporally unconstrained. The power is usually understood to mean that a decision maker can take into account any fact up to the time of giving his/her decision. There is no reason to read down the conferral of such a power on the Tribunal and every reason, particularly in light of the decision in Shi’s case, not to interpolate a temporal constraint. In this type of case the imperative is not to impose a punishment but to encourage regulatory compliance. If, by the time a decision is reconsidered or the Tribunal gives a determination after review, compliance has occurred and especially where, as in this case, compliance has been sustained over a reasonable period of time, and the facts themselves do not suggest a long established pattern of systemic breaches then there is little point in imposing a sanction. Where compliance has improved, but is still requiring more attention, different considerations may apply. Each such case will turn on its own facts.
32. Given the commendable rapid turn around in the level of compliance between the 25 July and 5 August 2008 there is in the Tribunal’s view nothing to be gained from continuing the imposition of a sanction to revoke all or any of the allocated places. Indeed the reverse is true. If, as in this case, compliance has been achieved, then to continue the imposition of such a sanction, albeit in a modified form, could adversely effect an applicant’s desire to comply. Further, the continuation of such a sanction heightens concerns that the imposition is, in fact, a form of punishment rather than a response encouraging compliance to ensure the well being and protection of the residents in care. The fact that this sanction is revoked does not constrain the respondent, should in the unlikely event there be future breaches, from referring to the breaches conceded by the applicant.
Tribunal’s Decision
33. For the reasons outlined above, the decision made on 25 July 2008 under ss 66‑1(d) and 67A‑5 of the Act to impose a sanction progressively revoking all places for care recipients which on reconsideration was amended on 9 October 2008 to limit the revocation to 13 places vacant as at 4 September 2008 be set aside and substitutes a decision that all of the previously allocated 100 places are to be reinstated.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of
G. L. McDonald, Deputy President and
E. A. Shanahan, MemberSigned: .....................................................................................
Grace Horzitski AssociateDates of Hearing 9, 10, 11 and 15 September 2009
Date of Decision 30 October 2009
Counsel for the Applicant Mr P. Hanks QC and Mr G. Hall
Solicitor for the Applicant Russell Kennedy Pty Ltd
Counsel for the Respondent Mr P. Gray
Solicitor for the Respondent Clayton Utz Lawyers
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