Dibo Pty Ltd v Minister for Community Services and Health

[1990] FCA 553

553 90 I

JUDGMENT NO. ........ . . ....... .-N.-

IN THE FEDERAL COURT OF AUSTRALUL )

NEW SOUTR WALES DISTRICT REGISTRY ) NO NG 83 of 1988

GENERAI, DIVISION 1

BETWEEN: DIBO PTY LIMITED

Applicant

AND: MINISTER FOR COMMUNITY

SERVICES AND HEALTH

Respondent

EX TEMPORE JUDGMENT

Einfeld J Svdney 3 Ausust 1990

The application before the Court this afternoon is an application by the Federal Minister for Community Services and Health for the summary dismissal or striking out of a notice of motion filed on behalf of Dibo Proprietary Limited on 18 June 1990.

The dispute between the parties arises out of the exercise or purported exercise by the Minister of powers given to him under the National Health Act in relation to the fixing of the fees that may be charged by nursing homes. The time frame of the dispute between the parties, quite unbelievably, stretches back to commence on 1 July 1972. It appears that on 1 October

under the legislation at the time of seeking a review or re- appropriate fees from 1972. Dibo then exercised its right

1980, a delegate of the permanent head of the relevant

department as known at that time made a determination of the

determination by the Minister of the fees fixed or determined
by the delegate.

It is equally staggering that the Minister's review of the determination by the delegate of 1 October 1980 was not provided until 18 November 1987. This was then the subject of Dibo's current application before the Court dated June 1988 for judicial review of the Minister's determination.

With the Court then apparently becoming involved in the delays which have beset this matter, consent orders were only made in the application for judicial review by Mr Justice Hill on 1 May 1989. The effect of the consent orders was that the Minister's determination of November 1987 reviewing the 1980 determination of the delegate be quashed. As I understand the position, this meant that 15 1/2 years after they were to have taken effect, no fees had been determined.

It then appears that in the exercise of liberty to apply which

was part of his Honour's order, the parties came before the

Court again on 27 October 1989 when, apparently by consent, Mr

Justice Gummow ordered that the redetermination, as it was put at that time, by the Minister ordered by the consent orders of

Mr Justice Hill on 1 May 1989, "be completed and notified to

the solicitors for the applicant" on or before 8 December 1989. In fact, the Minister's redetermination or review or further determination was supplied on or about 4 December

1989. In the context of this matter, the speed achieved was

quite breathtaking.
The next relevant development appears to be the notice of
motion of Dibo which is the subject of the motion for summary
dismissal by the Minister today. There is no explanation
given at the present time for any of the delays, including
those which appear to have been occasioned in the Court as
well. It needs no emphasis that this situation is really
quite intolerable.

The submission by the Minister today is that Dibo's notice of motion of 18 June 1990 is wholly incompetent. It is argued that it cannot be made in the exercise of the liberty to apply which was reserved by Mr Justice Hill in May 1989 because it is entirely directed towards the Minister's so-called redetermination of 4 or 5 December 1989 which, of course, had not been made at the time when Mr Justice Hill made his order. It is said that liberty to apply cannot be exercised in respect of something that occurs after it has been reserved. The argument is that the only way by which at least the substance of Dibo's June 1988 notice of motion can come before the Court is under the Judicial Review Act itself and because it was lodged substantially out of time, it would have to be

preceded by an application for leave to proceed. The Minister complains that, if this procedure is not adopted, he is denied the opportunity of arguing those matters that would be appropriate to be argued on such an application for leave.

Dibo's notice of motion of June 1988 seeks a number of orders and other relief. They may, for present purposes, be conveniently divided into three sections.

The first involves orders 1 and 2 of the notice of motion which seek a quashing of the so-called "re-determination" of December 1989, and a direction that the Minister reconsider his decision again within 21 days of today. This is, of course, the language of judicial review legislation, or its predecessors in the area of prerogative writs.

The second subsection of claims made in the notice of motion is for declaratory relief which would certainly circumscribe, if not fix, the Minister's mathematical and conclusive discretions in determining what is described as the profit component of the fees that must be fixed by him under the National Health Act.

The third area really seeks an order that the Minister pay damages or at least financially recompense Dibo in respect of moneys that should have been paid between 1972 and the present time, together with interest on the appropriate sums in accordance with section 51(a) of the Federal Court Act.

sought is appropriate under the Judicial Review Act, but I do It is argued on behalf of Dibo that the declaratory relief

not think it to be seriously contested that the financial
compensation aspects of the notice of motion raise at best .
controversial issues on any application which that Act
envisages.
Pared- down to its barest essentials, the application by the
Minister today is really that the notice of motion of Dibo in
June 1988 cannot be argued to be an exercise of the liberty to
apply, that it cannot otherwise arise in any legitimate
remaining aspect of G 83 of 1988, and that it can only be
brought before the Court by way of a fresh application under
the Judicial Review Act with the concomitant, as earlier
mentioned, that in this instance leave would first have to be
obtained.

The authorities are clear, and do not have to be quoted today, that in order to obtain summary relief of this kind, it is necessary to establish that the case which is presented is quite hopeless and cannot possibly be argued. I agree with learned senior counsel for the Minister that a notice of motion in this form is not an appropriate means by which these matters could really be litigated in fairness to either party, or in the exercise of the Court's ordinary jurisdiction.

the exercise of liberty to apply is to say the least I also agree with her that founding the notice of motion on

difficult, although I do not believe that it is completely unarguable. More importantly, it seems to me that there is sufficient indication on the facts, as I presently understand them, to indicate that matters raised in G 83 of 1988 have not yet been so completed or disposed of as would not permit the Court under section 23 .of the Federal Court Act or under its inherent jurisdiction to consider the substance of the matters which the notice of motion seeks to raise.

For those reasons I am unable to agree that Dibo's notice of motion of June 1988 is hopeless and should be summarily dismissed. However, as I have said, it seems to me to be quite inappropriate to raise matters of this substance on a notice of motion. In the way the procedures of the Court operate, notices of motion are not subjected to ordinary directions hearings or the usual range of interlocutory opportunities to permit the parties to be fully aware of what is being alleged, and to have access to discovery and all the various other procedures which enable matters to be brought before the Court in an orderly and fully prepared fashion.

In fact, this particular notice of motion was presented to the Court on 22 June 1990 and, as is the usual practice, was given a date for hearing, when it is quite clear that the Minister could not reasonably be on notice even of the basis of some of the claims that are being made, let alone the evidence whlch is intended to be led in support of them. Indeed today, senior counsel for Dibo fairly and frankly stated that the

this notice of motion has certainly not all yet been revealed. evidence which his client intends to bring before the Court on

For that reason it seems to me that it would be appropriate to make orders and give directions which will bring the matter clearly before the Court in a more appropriate fashion and that there then be orders and directions given in the usual way for timetables for the presentation of evidence and the other interlocutory steps of which the parties desire to avail themselves.

Rather than the Court imposing such regime at this time, my inclination to the moment is to adjourn the matter to a convenient date so that the parties can present an agreed set of directions and orders, and only if agreement cannot be reached, will I further intervene in the matter.

Is there a convenient date that anybody would like to suggest for this purpose?

RECORDED :	NOT TRANSCRIBED
H I S HONOUR:	I will fix the matter for Wednesday morning 8

August at 9.30 a.m. I will vacate the present date for hearing on 30 and 31 August, although I will have in mind that this matter should be brought on at the earliest possible time, and as soon as we can see a reasonable chance that the matter can be fixed for hearing, some dates will be allocated. What do you want to say about costs?

RECORDED: NOT TRANSCRIBED 

H I S HONOUR:  I order that the parties pay their own costs of

this application.

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