Minister for Community Services and Health v Dibo Pty Ltd

[1992] FCA 741

Re: MINISTER FOR COMMUNITY SERVICES AND HEALTH
And: DIBO PTY LIMITED
No. N G184 of 1992
FED No. 741
Administrative Law
(1992) 38 FCR 292
(1992) 28 ALD 161 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett(1), Hill(2) and O'Connor(3) JJ.

CATCHWORDS

Administrative Law - Practice and Procedure - Decision made after the setting aside of an earlier decision pursuant to a Court order in a proceeding for judicial review - unavailability of procedure by notice of motion to challenge the later decision - necessity to bring fresh proceeding for judicial review.

Administrative Decisions (Judicial Review) Act 1977, s. 11

ARM Constructions Pty Limited v. Deputy Federal Commissioner of Taxation (1986) 86 ATC 4,610

Oh Ho v. Minister for Immigration and Ethnic Affairs (1987) 72 ALR 43

HEARING

SYDNEY

#DATE 28:9:1992

Counsel for the Appellant: Ms M J Beazley QC with Ms R

M Henderson and Ms R Sofroniou

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr B Monotti

Solicitors for the Respondent: Messrs Dexter Healey and Co

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed and the orders made at first instance be set aside;

2. In lieu of the orders made below, the motion of the respondent to the appeal be dismissed, each party to bear its own costs thereof;

3. The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 18 November 1987, the Minister for Community Services and Health made a decision under the provisions of the National Health Act 1953 in respect of the scale of fees applicable to the Pittwater Nursing Home. That decision was challenged by the respondent, Dibo Pty Limited, under the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act") by a proceeding in the Court. In that proceeding, a consent order was made on 1 May 1989 quashing the decision. The order continued:

"2. Order that the matter be referred back to the Minister for redetermination with the following directions:

(a) that he have regard to rental increases incurred by the Applicant for the financial years ending 30 June 1973 and including 30 June, 1980 and for the further period from 1 July 1980 to 1 October 1980;

(b) that he take into account a nursing home profit factor for the financial years ending 30 June 1973 up to and including 30 June 1980 and for the further period from 1 July 1980 to 1 October 1980;

(c) that he have regard to the interest which the applicant had to pay out for the financial years ending 30 June 1973 up to and including 30 June 1980 and for the further period from 1 July 1980 to 1 October 1980 on funds borrowed to supplement the working capital requirements as a result of actual rental paid and a Nursing Home profit factor not being included in the fees.

3. Order that the respondent pay the applicant's costs as agreed or taxed.

4. Liberty to apply."

1. A fresh decision was thus required, and it may be noted here that it was required in relation to nursing home care rendered as far back as 1 January 1973. The problems of the case have undoubtedly been exacerbated by an extraordinary picture of delay. On or about 5 December 1989, a fresh decision was made setting a scale of fees not essentially different from that earlier fixed. The respondent, being again dissatisfied, went back to the Court; but instead of taking out a new application under the Judicial Review Act in relation to the new decision, it took out a notice of motion in the previous proceeding.

2. The first question that arose when the matter came before Einfeld J. was whether a remedy could be found in that way. The point was not merely academic, if only because when the motion was filed time had already expired for an application under s. 11 of the Judicial Review Act. Of course, an application could have been made for extension of time.

3. In ARM Constructions Pty Limited v. Deputy Federal Commissioner of Taxation (1986) 86 ATC 4,610, Pincus J. held that an attack on a decision, following an order of the Court made under the Judicial Review Act setting aside an earlier decision and requiring a reconsideration, could not be mounted by a notice of motion in the original proceeding. He struck out the motion by which this had been attempted. I took the same view in Oh Ho v. Minister for Immigration and Ethnic Affairs (1987) 72 ALR 43. I said (at 47):
   

"If one turns from the rules to s 11 of the Administrative Decisions (Judicial Review) Act, sub-ss (1), (3) and (4) all contain language suggesting the legislature envisaged that an application would be made only after the decision challenged by it. I can find no indication that it was contemplated an application might be amended in order to seek review of a decision made after the institution of the application"

See also Phillips v. Walsh (1990) 20 NSWLR 206 at 209-210.

1. Here, the course taken is sought to be justified on the footing that s. 22 of the Federal Court of Australia Act 1976, or the need for enforcement of an order of the Court, would allow resort to such a motion. It is said the issue is the obligation imposed by the consent order. However, the learned judge gave no special force to the terms of the order. He said:
   

"In this case, I see no reason for construing the consent orders as involving anything more than an agreement to make a redetermination according to law. My task in attempting to resolve the central issue in this case is therefore the same as it would have been if this proceeding had been initiated by a fresh application under the ADJR Act."

1. Procedurally, the judge recognised a problem. The method by which the matter was brought before the Court was flawed. He said that he was dealing with the unlawfulness of the determination, and he thought that he could deal with it as if an extension of time had been granted and an application had been made under s. 11. He made orders accordingly. Hence this appeal.

2. The essential difficulty is the lack of statutory authority for the proceeding. It would have been different if there had been no bona fide attempt to comply with the consent orders. That would have raised the general powers of the Court to enforce its own orders. However, the learned judge found no case of that kind here, and we need not pursue the point.

3. Even if the difficulty could have been overcome, the case may well have been enmeshed in insuperable further difficulties. The evidence had not been adduced with a view to an application for extension of time, or a full judicial review under s. 11. The appellant may not have had a proper opportunity to meet a resurrected case for judicial review. It is unnecessary to go into those questions.

4. For these reasons, the appeal must be allowed, the orders made at first instance must be set aside, and the motion must be dismissed. Before parting with the case, I refer again to the great period of time which has elapsed, and express the hope that if the parties cannot resolve their differences any further proceeding will be given very urgent priority.

5. So far as costs are concerned, the respondent must pay the costs of the appeal, but the course of administration and the general principles of administrative law are very much a matter of concern to the government. Despite the special features of this particular case, I think each party should pay its own costs of the proceeding below.

JUDGE2

I agree with the reasons that Burchett J. has just delivered and the orders proposed.

JUDGE3

As do I.