F.J. Hospital Enterprises Pty Ltd v The Honourable Hurford.

[1987] FCA 803

CATCHWORDS

Administrative law - Judicial review - Failure to make decisions -

Application for increase in scale of fees of nursing home -

Enquiry by Nursing Homes Fees Review Committee of Inquiry -

Whether unreasonable delay on the part of the Committee - Whether

unreasonable delay on the part of the Minister.

Administrative Decisions (Judicial Review) Act 1977 - s.7

National Health Act 1953 - ss. 40AA(6)(c), 4OAD(lB), 40E, Part

VI11 Divisions 3A and 4.

F.J. HOSPITAL ENTERPRISES PTY. LTD. (trading as "Kinross Private Nursing Home") v. THE HONOURABLE CHRISTOPHER HURFORD (who is sued

as the Commonwealth Minister

of State for Community Services)

VG 158 of 1987

Jenkinson J.

Melbourne

11 August, 1987

IN THE FEDERAL COURT OF AUSTRALIA	1
VICTORIA DISTIiICT REGISTRY	1 No. VG 158 of 1987
GENERAL DIVISION	1

BFIWEEN: F.J. HOSPITAL ENTERPRISES

PTY. LTD.

(trading as "Kinross

Private Nursing Home" )

Applicant

AND: THE HONOURABLE

CHRISTOPHER HURFORD

(who is sued as the

Commonwealth Minister of

State for Community

Services)

Respondent

c o w :	Jenkinson J.
DATE :	11 August, 1987

MINUTES OF ORDER

THE COURT ORDERS:

1.         Each application for an order of review in respect of a failure to make a decision which is comprehended by the originating application filed 19 June 1987 be dismissed.

2.         The respondent's costs of the applications be paid by the applicant.

Note:	Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	1 No. VG 158 of 1987
GENERAL DIVISION	1

BETWEEN: F.J. HOSPITAL ENTERPRISES

PTY. LTD.

(trading as "Kinross

Private Nursing Home" 1

Applicant

m: THE HONOURABLE

CHRISTOPHEX HURFORD

(who is sued as the

Commonwealth Minister of State for Community

Services 1

Respondent

CORAM : Jenkinson J.

D A E : l1 August, 1987.

REASONS FOR JUDGMENT

Hearing of applications for an order of review in

respect of the respondent's failure to make certain decisions.

The respondent was, at and for a time after the

commencement of this proceeding, the Minister of State for

Community Services. By a letter dated 24 October 1986 the

applicant had requested the person at that time holding the office

later assumed by the respondent to review certain administrative

decisions made under Part V of the National Health Act 1953. The applicant has been at material times the proprietor of a nursing home approved under that Part. The administrative decisions of

2 .

which review was sought by the applicant were determinations, made by delegates of the Secretary of the Department, of the scale of fees which might from time to time be charged patients in that

nursing home in respect of their care. Such determinations, when

not in accordance with an application made by the proprietor, are

reviewable by the Minister of State administering Part V, at

relevant times the Minister	of State for Community Services, on
request by the proprietor.	Section 40AE of the National Health

A c t 1953 at relevant times provided:

"(2) Where the Secretary does not alter the

conditions applicable to a nursing home

in accordance with an application under

sub-section 40AD(lB), the proprietor of

the nursing home may, by writing under

his hand, request the Minister to review

the decision of the Secretary.

(3)	Upon receipt of a request under the last
preceding sub-section, the Minister
shall, after such investigation of the matter as he considers necessary, either confirm or vary the decision of the
Secretary, and advise the proprietor
accordingly.
( 3 A )	The Minister shall, in undertaking, in
accordance with sub-section (31, such
investigation of the matter as he
considers necessary, apply any principle
that was in force under, sub-section
40AA(7) at the time the decision was
made and that continues in force at the time of the undertaking of that review unless the Minister is satisfied, in all the circumstances of the case, that the
application of that principle in
relation to that nursing home is not
appropriate.

( 4 ) The Minister shall, as part of his investigation of the matter, refer the matter to the appropriate Nursing Homes Fees Review Committee of Inquiry

established under Division 3A of Part

VI11 of this Act for examination and

report to the Minister and shall not

take any further action in the matter

3 .

until he has received the report of	the
Committee.

( 5 ) Where the Minister varies the decision

of the Secretary, the Secretary shall, for the purposes of sub-section ( 2 ) of the last preceding section, be deemed to

have altered the conditions applicable

to the nursing	home in accordance with
the decision as	so varied."

The approval of premises as an approved nursing home is, except in

the case of a Government nursing home, subject to a condition that

the fees charged will not exceed what is determined to be from

time to time the scale of fees in relation to the nursing home :

s.4OAA(6)(c) of the National Health Act 1953. Sub-section 4OAD(lB) of that Act authorised the substitution of one such a

scale for another, either on the application of the proprietor or

without any application. The first of the four deterrainations

concerning which the applicant requested Ministerial review is

alleged by the respondent to have been made without application by

a proprietor, and to be for that reason not susceptible of review

under s.4OAE. That determination was made in August 1983, shortly

-

after the applicant became the proprietor. The other

determinations were made	in February and October 1984 and	in April
1986.

No decision of the Minister on any of the requests has

been made. Section 7(1) of the Administrative Decisions (Judicial

Review) Act 1977 provides:

"Where -

(a)	a person has a duty to make a decision to
which this Act applies;

4.

(b) there is no law that prescribes a period within which the person is required to make that decision; and

(c) the person has failed to make that

decision,

a person who is aggrieved by the failure of

the first-mentioned persom to make the

decision may apply to the Court for an order

of review in respect of the failure to make

the decision on the ground that there has been

unreasonable delay in making the decision."

No law prescribes a period within which any of these Ministerial

decisions is required to be made.

The ground on which in each case an order of review is

sought in respect of the respondent's failure to make a decision

reviewing the decision of the Secretary's	delegate has not been
established, in my opinion.

The Minister promptly referred the matters to the

Nursing Home Fees Review Committee of Inquiry for the State of

Victoria and the Committee held and in early December 1986

concluded the oral hearing which is customary. In respect of the

period from December 1986 until 24 June 1987, when the Committee's

report to the Minister was delivered to his office, it was

submitted by Mr. Monotti of counsel for the applicant that

unreasonable delay had occurred and that, because the Committee

was to be regarded as an agent of the Minister in the execution of

those steps which were involved in the making of the decisions,

the failure to make which are the subjects of these applications,

the delay for which the Committee was responsible was within what

is comprehended by the words in sub-section 7(1), "unreasonable

5.

delay in making the decision".

Although I do not accept the premise that the Committee

is to be regarded as an agent of the Minister, it may be that the

proposition "that there has been unreasonable delay in making the

decision" may be validated by showing that there was delay by the

Committee which was, objectively considered, unreasonable. It may

be that the expression "unreasonable delay in making the decision"

comprehends more than delay on the part of the person whose

failure to make a decision is the subject of an application under

sub-section 7(1), or on the part of those for whose actions he

might be regarded as responsible. If as a condition of the making

of a decision to which the Administrative Decisions (Judicial

Review) Act 1977 applies some activity is prescribed by or under

an enactment, within the meaning of that word in that Act, to be

undertaken by a person or persons over whose conduct the person

who is to make the decision has no immediately effective control,

it may be that unreasonable delay in carrying out that activity is

within the meaning of the expression "unreasonable delay in making

the decision". The policy to be advanced by 5.7 is not, one would suppose, the disciplining of decision makers, but the relief of persons disadvantaged by delay, in the process of administrative

decision making, which can be judged to be unreasonable. Provided

the unreasonable conduct, or inaction, is that of persons whose

participation in the process is contemplated by the legislation

regulating the process, there seems no good reason in point of

policy to confine the delay which may ground an order of review to delay by the decision maker or by those over whose actions he has

control. It would therefore seem reasonable to understand the

6.

expression "delay in making the decision" as comprehending delay

in carrying out any of the processes legislatively required to be

carried out in order that the decision may be made.

Sub-section 40AE(4) makes it plain that the preparation

and delivery to the Minister of a report by the Committee must

precede the making of a decision of the kind here in question. The provisions of Divisions 3A and 4 of Part VI11 of the Act make

it equally plain, in my opinion, that the Committee and its

members exercise a statutorily conferred function and are entirely

independent of Ministerial control when performing the functions

to which sub-section 40AE(4) refers. It is true that the members

of the Committee hold office during the Minister's pleasure

(s.119(1)), so that a time might come when the Minister's failure to terminate the appointments of members of a Committee who were guilty of prolonged and unreasonable delay in making the report contemplated by s.4OAE(4) might be in itself unreasonable delay on

the part of the Minister in the making of the decision which must

be deferred until the report has been received by the Minister.

But it was not suggested that that time had come in this case.

It is unnecessary that I express a concluded opinion

whether unreasonable delay on the part of the Committee, without

any fault or delay on the part of the Minister or any Departmental

officer (other than a member of the Committee), would establish

the ground specified in sub-section 7(1), because I am not

persuaded that there was unreasonable delay	on the part of the
Committee.

7.

The issues raised by the submissions made on the

applicant's behalf to the Committee were complex and required for

their careful consideration a meticulous examination both of legal

considerations and factual questions at different times between

1983 and 1986. The Committee is constituted by one member who is

able to give his whole time to the work of the Committee and two

other members who can give - and are expected by the executive

government to give - only a part-time attention to the work of the

Committee. There were other reports to be given attention by the

Committee during the relevant period. This particular applicant

had sought in October 1986 a review of decisions taken in 1983 and

1984. The evidence does not suggest to my mind unreasonable delay

on the part of the Committee.

After receipt of the Committee's report further time has

been consumed in consideration and preparation of advice to the

Minister by Departmental officers. The recent change in the holder of the Ministerial office has caused further delay. But I

-

find in the evidence of what has occurred between 24 June 1987 and

the time when the application was heard in early August 1987

nothing to justify a conclusion that there has been unreasonable

delay in making any of the decisions.

The applications will be dismissed.

Mr. Monotti submitted that the making of the application

had not been unreasonable, having regard to what was known by the

applicant and its advisers. But I think that the applicant could

not claim to have acted reasonably, having regard to the

8.

circumstances that the last communication received from a

government source before the originating application was filed on

19 June 1987 was a letter, received in the first days of that

June, which suggested the possibility (to put it no higher) that further information might soon be available as to when a

Ministerial decision could be expected, but no further enquiry of

any agent of the government was made after receipt of the letter

and before the filing of the application.

The applicant will be ordered to pay the respondent's

costs of the applications.

I certify that this and the 7

preceding pages are a true copy

of the Reasons for Judgment

herein of the Honourable	Mr.
Justice Jenkinson.

Associate

Dated: 11 August, 1987

Counsel for the Applicant	Mr. B.F. Monotti
Solicitors for the Applicant :	McMahon, Fearnley & Kaynes
Counsel for the Respondent	Mr. R.M. Downing
Solicitors for the Respondent :	Australian Government Solicitor
Dates of Hearing	3 and 4 August, 1987