Rainbow, in the matter of Rainbow
[2024] FCA 1197
•24 September 2024
FEDERAL COURT OF AUSTRALIA
Rainbow, in the matter of Rainbow [2024] FCA 1197
File number: WAD 269 of 2024 Judgment of: FEUTRILL J Date of judgment: 24 September 2024 Date of publication of reasons: 15 October 2024 Catchwords: PRACTICE AND PROCEDURE – application for interim injunction restraining operation of administrative decision before start of proceeding – suspension of operation of decision under s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – serious question to be tried – balance of convenience Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 5, 5(1), 11, 15(1), 16
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) s 39B(1)
Veterans’ Entitlements Act 1986 (Cth) ss 84(3A)(b), 90, 90(1B); Pt 5
Federal Court Rules 2011 (Cth) r 7.01
Cases cited: Adachi Disability Services Pty Ltd v Commissioner of the NDIS Quality and Safeguards Commission [2024] FCA 311 Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 20 Date of hearing: 24 September 2024 Counsel for the Prospective Applicant: Mr A Dique Solicitor for the Prospective Applicant: Bailiwick Legal ORDERS
WAD 269 of 2024 IN THE MATTER OF ANGELA MARGARET RAINBOW
ANGELA MARGARET RAINBOW
Prospective Applicant
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the operation of the decision of a delegate of the Department of Veterans Affairs made on 10 September 2024 to terminate the prospective applicant’s Department of Veterans Affairs provider registration (provider stem 2805384K) with effect from 24 September 2024 and withdrawing her entitlement to payment for services performed after that date be suspended until 4.30pm (AWST) on 23 October 2024.
2.Until 4.30pm (AWST) on 23 October 2024 the Repatriation Commission and the Commonwealth (Department of Veterans Affairs) be restrained and an injunction be granted restraining them whether by themselves, their officers, employees, agents or otherwise from:
(a)terminating the prospective applicant’s DVA provider registration; and
(b)withdrawing the prospective applicant’s entitlement to payment for service performed by her pursuant to her DVA provider registration.
3.The continuing effect of paragraphs 1 and 2 of these orders be subject to:
(a)the prospective applicant filing a written undertaking to the Court by 4.30pm (AWST) on 25 September 2024 to the effect that she will:
(i)submit to such order (if any) as the Court may consider just for payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or any continuation (with or without variation) of the order; and
(ii)pay the compensation referred to in (i) to the person affected by the operation of the order,
and
(b)the prospective applicant starting a proceeding in relation to the subject matter of this application within 14 days from the date of this order.
4.The prospective applicant serve a copy of these orders on any prospective respondent, including the Repatriation Commission and Commonwealth (Department of Veterans Affairs) by 4.30pm (AWST) on 25 September 2024.
5.The prospective applicant and any prospective respondent, including the Repatriation Commission and Commonwealth (Department of Veterans Affairs), have liberty to apply on 24 hours’ written notice to vary or discharge paragraphs 1 and 2 of these orders.
6.The prospective applicant’s application for interlocutory injunctive relief be listed for an inter-partes hearing at 10.15am (AWST) on 23 October 2024 for the purposes of considering if and the extent to which there should be any continuation of paragraphs 1 and 2 of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)FEUTRILL J:
I have before me an urgent application made before the start of proceedings under r 7.01 of the Federal Court Rules 2011 (Cth) for an interlocutory injunction and other relief. The underlying nature of the prospective proceeding is for judicial review of a decision of a person who described herself as a delegate of the Department of Veterans’ Affairs but in earlier correspondence, was described as a delegate of the Repatriation Commission. In any case, a delegate of either the Commission or the DVA is seeking to terminate the prospective applicant’s DVA provider registration and withdraw her entitlement to payment for any services performed on or after the date of that termination, which was to have effect from 24 September 2024, that is to say, today.
Taking into account that the matter is brought on urgently, the identification of the legislative foundation for the power to make the decision made in the letter of 10 September 2024 is not entirely clear, but it appears to flow through from the Veterans’ Entitlements Act 1986 (Cth) by which the Commission is established or continued. There is power under s 90 of that Act to determine principles setting out, amongst other things, circumstances in which, and conditions subject to which, treatment of a particular kind, or included in a particular class of treatment, may be provided under Pt 5 of that Act to eligible persons who are eligible, in effect, to receive certain kinds of treatment, including medical treatment.
Amongst other provisions, s 90(1B) provides that a determination made under subsection (1) may also include provisions specifying certain kinds of treatment for the purposes of s 84(3A)(b) and specifying the circumstances in which, and the extent to which, the Commission may accept financial responsibility for particular costs relating to that treatment. An instrument, referred to as the Treatment Principles (No. R52/2013) (Cth), was made under s 90 of the Act by the Commission. It provides that the Commission may delegate all or any of its powers under the Treatment Principles in the same manner, and subject to the same conditions, it may delegate all or any of its powers under the Act, including the power through which the delegate made the decision on 10 September 2024 that would have the effect of terminating the prospective applicant’s DVA provider registration and an entitlement to be paid for the services performed or rendered to the entitled persons from 24 September 2024.
Amongst other things, the principles incorporate by reference a document entitled “Notes for Allied Health Providers” (the Notes). The Notes provide, in cl 80, that the DVA allows healthcare providers who are eligible to claim for treatment services under Services Australia to provide healthcare services to entitled persons under the DVA’s statutory registration provisions without having to enter into a contract with the DVA. To apply for a Services Australia provider number, register as a DVA provider or to amend Services Australia registration details, the healthcare provider is to contact Services Australia at a contact address identified in cl 172 of the Notes. Clause 81 provides that to be eligible to provide treatment under the DVA healthcare arrangements, a healthcare provider must be a registered provider with the DVA at the time the service is provided. Healthcare providers are responsible for incorrect claims, regardless of who does the billing or receives the benefit. Providers will be responsible for the repayment of the full amount of the incorrect DVA fee that was paid.
Clause 82 provides that healthcare providers must meet the professional and ethical standards set by the relevant professional regulatory and (or) representative body. The DVA requires healthcare providers to meet continuing education requirements set by the relevant professional, regulatory and (or) representative body. The Notes also provide, in cll 101 to 104, for a benchmarking and monitoring and audit process and in cll 105 to 109, for inappropriate claims processes in which the Commission reserves the right to determine the level and type of servicing for entitled persons for which it will accept financial responsibility In substance, if it appears that a healthcare provider may be supplying inappropriate levels or types of healthcare services or has been submitting incorrect claims, the DVA may contact the healthcare provider and request that copies of patients’ clinical notes and other relevant documentation be provided to the DVA within a reasonable period of time not exceeding 14 days.
Clause 108 provides that the DVA may, after receiving a response, determine that a provider’s actions or behaviours to be serious breaches of the Notes and may take certain actions as outlined in cl 120. Clause 120 does not, in fact, outline any of the actions referred to in cl 108. Rather, the actions to which cl 108 refers appear to be in cl 112 by which, if an agreement cannot be reached on a remedial action plan or if appropriate servicing or claiming practices are continued at variance with the plan, the DVA may, amongst other things, terminate the DVA provider registration and withdraw entitlement to payment for any services performed after the effective date of the termination. Further, where the DVA has determined serious non-compliance exists, the DVA may proceed directly to de-registration of the provider: cl 113. Clauses 119 to 123 of the Notes contain provisions that provide for the circumstances in which the Commission will accept financial responsibility for the provision of healthcare services to meet the clinically assessed needs of entitled persons.
Overall, in substance, the effect of these provisions is that where a person is given a DVA provider registration, it entitles them to recover or be paid the fees in a schedule for the appropriate healthcare service provided to an entitled person. The consequence, therefore, of terminating a DVA provider registration and withdrawing entitlement to payment is that a healthcare service provider who provides services to an entitled person will not be entitled to payment for that service by the Commission, and that the Commission will no longer accept financial responsibility for the provision of those healthcare services.
It follows, therefore, that the decision in the letter of 10 September 2024 will have a financial impact on the prospective applicant and in those circumstances, it is reasonably arguable that the DVA and (or) Commission was obliged to afford the prospective applicant procedural fairness before making a decision to terminate the DVA provider registration and (or) withdraw her entitlement to payment for services.
By a letter dated 22 April 2024, the person describing himself as Assistant Director sent a letter styled as a notice to show cause to the prospective applicant in which it was said that the DVA has systems in place to monitor the servicing and claiming patterns of healthcare providers and that the systems had identified areas of potential concern in relation to claims the prospective applicant had submitted to the DVA as follows.
(1)Excessive OT40 (Special Consultation) (major modifications only) and OT51 (Schematic Report) with nil accompanying D1327 form.
(2)Excessive home visits in a single day.
(3)Home visits on public holidays such as Anzac Day.
(4)Home visits on or after the death of the patient.
These were said to raise concerns that the prospective applicant may have breached the Notes in that she may have provided inappropriate levels of healthcare services, provided unnecessary healthcare services or submitted incorrect claims. The letter also requested the prospective applicant to provide certain information that was to be included in Attachment A to the show cause notice, which was a document that identified, in tabular form, certain dates of the provision of services between 25 April 2023 and 10 November 2023 with uncompleted columns headed ‘Documents of Service supplied’ and ‘Comments’. The show cause notice also requested all available records, including schematic reports, clinical notes and relevant referrals regarding all claims made by the prospective applicant for services provided on the days set out in Attachment A to the show cause notice.
The information, in accordance with cl 90 of the Notes, was requested to be provided within 14 days and if that were impractical, then the letter invited the prospective applicant to contact the DVA to discuss alternative arrangements. It also invited the prospective applicant, if she wished to do so, to provide additional information or documents for the DVA or delegate’s consideration and indicated that any additional information or documents provided should be relevant to the alleged conduct and areas of concern set out in the show cause notice.
By letter dated 17 May 2024, the prospective applicant, through her solicitors, responded to the show cause notice. That letter in response, in substance, requested further information about the identified areas of concern in the show cause notice, including the nature of the alleged breaches of the Notes, particulars of the concerns, and indicated that certain of the information requested had already been provided, but sought clarification as to the schematic reports and the extent to which private information about eligible persons should be provided or could be provided to the DVA without the consent of those eligible persons.
The letter also sought other clarification of certain aspects of the show cause notice and requested that the DVA provide another Attachment A to the show cause notice populated with relevant information that had been already provided to the DVA in the form of records to which the DVA had access. The letter concluded with a statement:
Whilst [the prospective applicant] awaits the documents and information mentioned above, she will take steps to seek to obtain the written consent of the veterans to whom services were provided on the dates set out in [Attachment] A, to the release of their private patient clinical records to DVA for the purposes of the request in your letter.
The evidence does not indicate the extent to which, if at all, there were any steps taken to obtain the veterans’ consent or provide that information to the DVA, but in any event, the next communication from the DVA or a delegate to the prospective applicant is the letter of 10 September 2024 to which I have already made reference. That letter gave very brief reasons for the decision, including that the concerns raised in the show cause notice were part of the reasons for the decision. The letter also summarised the response by way of letter dated 17 May 2024 from the prospective applicant’s solicitors and characterised it as the prospective applicant not agreeing with the contents of the notice. It was said that it was:
…highly significant that your client did not in any way address the concerns raised by DVA or provide any information as required by the Notice, pursuant to [cl] 90 of the Notes.
This aspect of the letter of 10 September 2024 appears to hold the key area of concern for the prospective applicant in that she contends that she was denied procedural fairness when she sought clarification and further particulars of the nature of the concerns of the DVA. And, those clarifications and particulars were not provided before the DVA made its decision on 10 September 2024 and in so doing, the DVA indicated that it was significant that the prospective applicant had not responded. The substance of her complaint is that she was not able to make a meaningful response until the relevant information had been provided to her and, therefore, she did not have a reasonable opportunity to know what the nature of the concerns and alleged breaches of the Notes were that formed the basis of the show cause notice.
In my view, the nature of the correspondence annexed to the affidavit in support of the application, to which I have made reference, does provide a reasonable basis for making an application for judicial review under s 39B(1) of the Judiciary Act 1903 (Cth) on the grounds that either the Commission or the Commonwealth, through the DVA, has failed to afford the prospective applicant procedural fairness in relation to the decision to terminate her provider registration and withdraw her entitlement to payment for services provided to entitled persons.
It also appears that, having regard to the urgent nature of the application, the prospective applicant would fall within the meaning of a person who is aggrieved by a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies in s 5(1) of that Act, in that it is a decision arguably made under an enactment, or more specifically, an instrument made under such an Act, for the purposes of s 3(1) of the ADJR Act. The prospective applicant would be, therefore, entitled to bring proceedings in this Court in accordance with ss 5, 11 and 16 of the ADJR Act for, amongst other relief, an order quashing or setting aside the decision on the grounds of failure to afford her procedural fairness. It also would enliven the power under s 15(1) of the ADJR Act by which the Court may make an order suspending, on such conditions as the Court may think fit, the operation of the decision.
It is, of course, well appreciated that the Court may make an order under s 23 of the Federal Court of Australia Act 1976 (Cth) for interim or interlocutory injunctive relief and the principles applicable on an application of that nature are well established and do not need to be stated. Insofar as these principles may be applicable to s 15(1) of the ADJR Act, they were considered by Jackson J in Adachi Disability Services Pty Ltd v Commissioner of the NDIS Quality and Safeguards Commission [2024] FCA 311. His Honour relevantly observed (at [10]):
10 It was essentially common ground that:
(a)the discretion to suspend the operation of the Decision is constrained only by the subject matter, purpose and scope of the ADJR Act and the legislation under which the Decision was made;
(b)nevertheless, it was helpful and convenient to proceed by analogy to the principles on which interlocutory injunctions are determined, namely that the Court must assess whether there is a serious question to be tried and the balance of convenience, with those factors being interdependent in the sense that the stronger the case is, the easier it may be to establish that the balance of convenience weighs in favour of the applicant, and vice versa.
Insofar as the balance of convenience is concerned, as I mentioned earlier, there will be a financial consequence for the prospective applicant if the registration terminates and her entitlement to payment for services rendered to eligible persons is withdrawn. Given the time elapsed from the show cause notice in April to the decision made in September 2024, I do not consider that a short further extension of the period during which the prospective applicant is permitted to provide services and receive payment is unwarranted. Through her counsel, the prospective applicant has indicated she would be willing to provide the usual undertaking as to damages insofar as she may receive payments to which it may ultimately be determined she is not entitled. They are matters that can be dealt with by the usual undertaking. Having regard to the fact that the application is made ex parte, I am mindful that any order extending or preventing the termination of her DVA provider registration should be confined, and the matter should be brought back before the Court as soon as possible for a hearing to be made to determine whether or not to continue the interim injunction.
For those reasons, I am satisfied it is appropriate to make an order under the s 15(1) of the ADJR Act, suspending the operation of the decision. Also, given there is some uncertainty around precisely the nature of the power exercised to restrain the Commission and the Commonwealth, through the DVA, from giving effect to the decision at this point in time, a period of time will be set to limit the duration of the suspension order. The continuing operation of the order will be subject to the prospective applicant filing a written undertaking in the usual form by 4.30pm tomorrow and will also be contingent on the prospective applicant starting the proceedings within the 14 day period that she has already undertaken to commence proceedings within.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 15 October 2024
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