Mary MacKillop Hostel Carrington - Retirement Village and Aged Care Standards Accreditation

[2006] AATA 815

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/763     

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARY MACKILLOP HOSTEL CARRINGTON - RETIREMENT VILLAGE

Applicant

And AGED CARE STANDARDS ACCREDITATION

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date17 August 2006

PlaceSydney

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/763     

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARY MACKILLOP HOSTEL CARRINGTON - REITREMENT VILLAGE

Applicant

And AGED CARE STANDARDS ACCREDITATION

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date17 August 2006

PlaceSydney

DecisionFOR the reasons given orally at the conclusion of the hearing, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, it is ordered that the application for an extension of time be refused.

[Sgd] M.D. Allen

Senior Member

CATCHWORDS

Extension of time to review decision – Prescribed period of 28 days - Special Circumstances need not be proved – No explanation for delay – Merits of the application – Little likelihood of success.

Aged Care Act 1977

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344

Comcare v A’herne (1993) 119 ALR 85

Aged Care Standards and Accreditation Agency Limited v Kenna Investments Pty Limited [2004] FCA 843

REASONS FOR DECISION

Senior Member M.D. Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Respondent and the Applicant, through their solicitors, of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision. 

I certify that this and the preceding pages are true copies of the decision and reasons for the decision herein of:

Senior Member M. D. Allen

Signed:  ………………………………………………………

Associate

Dates of Hearing  17 August 2006
Date of Decision  17 August 2006
Advocate for the Applicant       John Bonnici, Carrington Centennial Care
Solicitor for the Respondent    Lex Holcombe, Phillips Fox

O/N 26781

DRAFT DECISION  [10.52am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/763
By MR M.D. ALLEN, Senior Member
MARY MACKILLOP HOSTEL CARRINGTON RETIREMENT VILLAGE and AGED CARE STANDARDS and ACCREDITATION
SYDNEY, THURSDAY, 17 AUGUST 2006

MR ALLEN:   In this matter the applicant seeks an extension of time in which to review a decision of the applicant being a reviewable decision made 29 May 2006.  One might expect that in the normal course of post, it would have been received by the applicant on or about 1 June 2006.  The normal period for lodging an application to this Tribunal has not been varied by any legislation applicable to proceedings under the Aged Care Act, so that it is the normal period of 28 days, which means that, on my rough maths, the application for review should have been lodged on or about 28 June 2006.  It was, in fact, lodged on 10 July 2006.

The principles for extending a period in which to make an application were comprehensively discussed by His Honour, Wilcox J, in Hunter Valley Developments Pty Limited v Cohen (1984) 3FCRs, 344 at 348, although those principles, as has been pointed out in latter cases, are by no means binding.  When one looks at the principles here, as His Honour states in principle 1, the section does not place any onus of proof upon an Applicant for extension of an application.  Special circumstances need not be shown, but the application will not be granted unless, in this case, the Tribunal is satisfied that it is proper to do so.  The prescribed period of 28 days is not to be ignored and, indeed, the prima facie rule is that proceedings commenced outside that period will not be entertained.

The apparent harshness of those provisions, however, were mitigated by the Full Court of the Federal Court in Comcare v Aherne (1994) 119 ALR 85. In that case, the court pointed out that an acceptable explanation for the delay is not necessary, although it is to be expected that one will be given. In this matter, there has been no explanation for the delay, however, given the very short period of time involved, that does not concern me at all. Likewise, I do not consider the principle referred to by his Honour such as making the Respondent aware of the possibility of disputing the decision by non curial means has any application and it has not been suggested that the respondent would suffer any prejudice by the short period of delay.

Again, apropos Wilcox Js principle 4, I do not see any adverse effects upon any other person as a result of granting the application. What does concern me is the merits of the substantial application. As was pointed out by Branson J, in Aged Care Standards and Accreditation Agency Limited and Kenna Investments Pty Limited (2004) FCA 843, contrary to the normal situation in this Tribunal, it is not a case of making a decision on the facts as they exist at the time of the Tribunal's decision, but rather the Tribunal is restricted to addressing the same questions as were addressed by the original decision-maker on the material that was before that decision-maker.

It has been argued on behalf of the applicant that a plan for continuous improvement which bore date 15 March 2006 was before the original decision-maker, but not taken into account.  I have perused the original decision and I note that there was before that decision-maker a document entitled Response to Assessment Information dated 1 May 2006 and attached to the decision was a document headed "Plan for Continuous Improvement" dated 15 - 16 March 2006.  On that bases, it would seem to me that there was material before the decision-maker, and it was taken into account.

So far as the decision is concerned, if I can go to the Reviewable Decision, it appears very much that the period of two years was granted to the applicant, rather than the normal three years on a bases that the maker of the Reviewable Decision agreed with the original decision-maker, that there should be a monitoring of the ability of the Applicant to sustain the improvement as set out in the "Plan for Continuous Improvement".  It strikes me that if the matter were to come before the Tribunal, there is, in effect, a matter of assessment to be made, but the Tribunal would be greatly influenced by the views of the original decision-maker in the sense that an element of public health is concerned and it would be inclined to err on the side of caution.

I am of the view that there is very little likelihood of the applicant succeeding in its current application and that being so it seems to me that the balance falls on the line that the application for extension should be refused.

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