J.L. Hospital Enterprises Pty Ltd v The Honourable Grimes, D.J

[1987] FCA 181

(NOT FOR DISTRIBUTION)

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IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA	D STRICT	REGISTRY	)	No. VG 415 of 1986
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GENERAL DIVISION	)
BETWEEN :

J. L. HOSPITAL ENTERFRISES PTY LTD Applicant

(TradTng as "Lewisham Private Nurslng Home")

and

THE HONOURABLE DOMALD JAMES GRIMES

(as the Commonwealth Minister	of State for Community Services)
and

ALAN D. ROSE

(as the Secretary of the Commonwealth Department of

Community Services)

Respondents

MINUTES OF ORDER

COURT: Woodward J.

DATE: 26 March 1987

PLACE: Melbourne

THE COURT ORDERS THAT:

1. The applicant's notlce of motion dated 27 February 1987

- - be dismlssed with costs.

2. The respondents' notice of motion dated 2 0 January 1987

be struck	out, the applicant paying the respondents'
costs.

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3. The appllcant's notlce of motion dated 30 January 198/ be struck out wlth no order as to costs.

4. The orders for costs In Orders 1 and 2 be stayed for 21

days.

=E:

Settlement and entry of orders is dealt wlth in Order 36 of

the Federal Court Rules.

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'.

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA	D STRICT	REGISTRY	)	No. VG 415 of 1986
)

GENERAL DIVISION	)
BETWEEN :

J. L. HOSPITAL ENTERPRISES PTY LTD Applicant

(Trading as "Lewisham Private Nursing Home")

and

THE HONOURABLE DONALD JAMES GRIMES

(as the Commonwealth Minlster of State for Community Services)

and

ALAN D. ROSE

(as the Secretary of the Commonwealth Department of

Community Services)

Respondents

COURT: Woodward J.

m: 10 April 1987

PLACE: Melbourne

M-TEMPORE REASONS €OR JUDGMENT

This 1s an application, pursuant to s.ll(l)(c) of the

Adminlstrative Declslons (Judicial Review) Act 1977, ('the Act'),

for the extension of time within which to bring an application to

review an administrative decision.

In my view thls 1s one of the clearest cases that could

be ~maglned for the refusal of relief under that paragraph. It 1s

alleged on behalf of the applicant that it has been the victim of

a continuing error of law in a series of administratlve decisions

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I	since	January 1983, although	that	error	may	have	varied	slightly
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ln form from one year to another. The requirement of the Act is

that applicatlons be brought wlthln 28 days of the maklng of a

decision, or such further time as the court may allow.

The only explanation for delay whlch has been offered on

behalf of the applicant is that a director of the applicant who

swore the supporting affidavit did not know of the applicant's

right to bring action pursuant to the Act until 14 August 1986.

However, evldence before me, which is uncontradlcted, shows that

the applicant failed to submit the necessary returns to the

Department of Health on which relevant decisions had to be based,

for the whole period between some time in 1982 when the applicant

took over the business In questlon, and some time in the middle of

October 1986 - in splte of letters drawlny attention to that fact

which were sent at least In the early part of 1986.

So it is qulte clear from that circumstance alone that

the applicant was entirely careless about its rights to obtain a

proper fixation of the appropriate fee scale for patients in its

nurslny home. It is a series of decisions on this matter, made

between January	1983 and December	1986,	which it now seeks to
challenge.

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The second important factor is that the applicant was

informed by letter of Its rlqht to challenge any such fixation of

fees by way of appeal to the Minlster and it was so informed on

two occasions in 1984, and again in June 1986. There is no

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evldence that at any tlme before November or December of 1986 was

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there any suggestion	of any challenge to the determlnations by the
Minister's delegate.

Until a late stage in the proceedings, there was no

explanation for the delay between the mlddle of August, when legal

advice was obtalned, and early December 1986 when proceedings were

Instituted. It appears that the applicant sought such advice on

14 August and was informed at that time of the necessity to take

prompt actlon in accordance with the requlrements of the relevant

leqlslatlon; but it was only then that steps were first put in

train to obtain and submit the necessary documentation to e able a

proper determination by the Department to be made: and it was

only on 15 October that the forms whlch should have been sent for

the years beginning 1982/1983 up till October	1986 were finally
sent to the Department.

No decislon to brlng legal action ~7as taken until a very

short time before the proceedings were instituted in December. In

those circumstances I can only find that the delay of 4 years -

incorporating in that period a delay of some 4 months after

obtaining legal advice - was both excessive and reprehensible, to

use the language of Smithers J in the case of Intervest

Corporaixon v Federal Commissioner of Taxation 58 ?&R 317 at 325.

I have had regard to what counsel f o r the applicant has

said about how much is at stake from the applicant's point of

view, and I accept that the consequences In money terms are quite

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!	serlous. But the fact remains thdL	Lhe dpplicanl; hds r l o L	cclrried
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I	out he	requirements	of	providlng	proper eturns	over	the	four
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year period that 1 s In lssue and, on the other hand, lt 1s still

open to the applicant to establish its rights for the future

provided it now takes prompt actlon to institute fresh proceedings

concernlng the latest determination.

l I have consldered the various matters set out by

Wilcox J in a convenient summary of the types of matters that

ought to be taken into account in determining this question of

extension of time In relation to this leglslation; see Hunter

Valley Developments Pty Ltd v Mlnister for Home Affairs and

Environment (1984) 58 ALR 305 at 310-311. I have considered the

merits of the application. I can only find there that the outcome

1 s entirely uncertain. There are a number of actions of this type

that have been brought in recent years. Some have succeeded and

some have failed. The chances of succeeding when no proper

returns have been made seem to me to be rather slim and the most

recent trend of judicial opinion does seem to be running against

the applicants in cases such as this, but I have no reason to

believe that there would not be a serious issue to be tried if the

matter were to go to trial.

_- So far as prejudice is concerned, there is the obvious

prejudice, referred to by Wilcox J, about the fading of memory

concerning any particular determinatlon, that took place as one of

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many hundreds of determinations, up to three and four years ago.

But there is a much more serious consideratlon than that, and

Wilcox J referred to it by using the expresslon, "the unsettling

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of other people that could result by a late appllcatlon being

!

I made". This, lt seems to me, would be a classic example of that

occurrencs, because the only order which the applicant could

normally seek to achleve 1s that the appropriate charges to

nurslng home patlents for the years from 1983 onwards should now

be reviewed, and presumably increased. The problem that that would create in relatlon to patients whose affairs have been

organized on the basis of the charges whlch were believed to be

appropriate in the years 1983, 1984 and 1985 are obvious; the problems that would arise in relation to patients who have since died are equally obvious. It would be unfair to require recently

admitted patients to pay higher fees because of	an error which is
now three or four years old.

It has been suggested on behalf of the applicant that a

decision in its favour might in some way result in relief being available against the Commonwealth Government; but there is no

authority for any such proposition, and it 1s not suggested there

is any obvious form that such relief might take.

Wilcox J also referred, amongst the matters to be taken Into account, to the need for finality in matters such a this and

to Its effect on other comparable cases. He also referred to the upsetting of establlshed practices. The fact is, of course, that Department, and the Mlnister's delegates in particular, have been

applying the approach which is sought to be challenged here in

many other cases over the years to which the application relates;

and to suggest now for the first time that those practlces were

wrong and should be upset retrospectively by way of review would

be to create enormous problems not only for the Uepartment but t o r

all the other nursmg homes whlch were In a similar posltion to

ths present applicant. For all these r asons it seems

to me that the appllcation is almost entirely wlthout merit and

ought to be dlsmissed with costs and that is the order I propose

t o make. The order for costs wlll be stayed for 21 days.

! That still leaves two other notices of motlon, one of

whlch I thlnk can conveniently be struck out, because of the agreement that has been reached that fresh proceedlngs, provided they are instltuted promptly, will not be challenged as being out

of time so far as the latest determination of 5 March, revised on

14 March of this year, is concerned. That notice of motion was

the one dated 30 March 1987 seeking leave to amend the present

application. I shall strike that out on the understanding that I

have indicated that there is an alternative course available to

the applicant. There is no need to proceed wlth the respondents'

notice of motlon dated 20 January of this year because my

dismissal of the applicant's notice of motlon dated 27 February

produces the same result. Perhaps as a matter of convenience it

might be best if	I also strike out the applicant's notlce of
motion.

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I certify that this and

the five ( 5 ) preceding pages

are a true and accurate copy

I of the Ex-Tempore R asons

for Judgment herein of

The Hon Mr Justice Woodward

v

Associate

I Dated: 10 April 1987

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Counsel for the applicant: Mr B. Monottl

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Sollcitors for the applicant: Messrs McMahon, Fearnley & Kaynes

Counsel for the respondent: Mr R.M. Downlng

Solicitors for the respondent: Australian Government Solicitor

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