Samir Pty Ltd and and Aged Care Standards and Accreditation Agency Ltd
[2013] AATA 194
[2013] AATA 194
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1812
Re
Samir Pty Ltd
APPLICANT
And
Aged Care Standards and Accreditation Agency Ltd
RESPONDENT
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3695
Re
Laila Khan
APPLICANT
And
Aged Care Standards and Accreditation Agency Ltd
RESPONDENT
DECISION
Tribunal Mr P W Taylor, SC, Senior Member
Date 4 April 2013 Place Sydney The application to reinstate the proceedings (2012/1812) is refused. Mrs Kahn’s application to be made a party to those proceedings is refused. Mrs Kahn’s application (2012/3695) for an extension of time to make an application for the review of the Agency’s 30 April 2012 decision is refused.
....................[sgd]....................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – proceedings – administrators appointed – dismissal by consent – interlocutory applications made by director of company in administration – application for reinstatement – whether application dismissed in error – joinder application – whether applicant for joinder is a person whose interests are affected by the reviewable decision – application for extension of time to apply for review of a decision – applications refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 27, 29, 30, 42A, 42B
Aged Care Act 1997 (Cth) ss 8-3, 10-3, 42-5, 54-1, 54-2, 65-1, 66-1, 80-1, 85-8
Corporations Act 2001 (Cth) ss 58AA, 436A, 437A, 437C, 440D
CASES
Allan v Transurban City Link Ltd (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250
Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Brian Rochford (Administrator Appointed) Ltd v Textile Clothing & Footwear Union of NSW (1998) 47 NSWLR 47
Broadbridge v Stammers (1987) 16 FCR 296
Day v Pinglen Pty Ltd (1981) 148 CLR 289
Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788
Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519; [2006] FCAFC 3
Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383
Hamden v Secretary, Department of Human Services [2013] FCA 3
Re Hickey and Commissioner of Taxation (2009) 75 ATR 660; [2009] AATA 347
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re McHattan and Collector of Customs (1977) 1 ALD 67
New South Wales Fish Authority v Phillips [1970] 1 NSWR 725
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Robinson v Western Australian Museum (1977) 138 CLR 283
Re Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552
SZLIO v Administrative Appeals Tribunal (2008) 48 AAR 5
Transurban City Link Ltd v Allan (1999) 95 FCR 553
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Wedesweiller v Cole (1983) 47 ALR 528Re Williams and Australian Electoral Commission (1995) 38 ALD 366
SECONDARY MATERIALS
Accreditation Grant Principles 2011
Quality of Care Principles 1997
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
4 April 2013
Samir Pty Ltd was an approved provider of aged care under Part 2-1 of the Aged Care Act 1997(Cth) (“Aged Care Act”). It operated the Curie Nursing Home and provided residential care.
The Aged Care Act provisions distinguish between approval of aged care providers and the accreditation of aged care services. Approval is available to corporations who are “suitable” to provide aged care: Aged Care Act s 8-3(1). The Departmental Secretary is the authority for provider approval.
An approved aged care provider is eligible to be paid a Commonwealth residential care subsidy (under Chapter 3, Part 3.1 of Aged Care Act) for accredited residential care services it provides to approved persons. The Aged Care Standards and Accreditation Agency Ltd (the “Agency”) is the accreditation authority. (The Agency’s accreditation function arises as a consequence of an agreement with the Commonwealth, as contemplated by Aged Care Act s 80-1(a).) Samir held such an accreditation until the Agency’s 30 April 2012 decision. That decision was the subject of Samir’s review application to the Tribunal, and is the principal decision involved in these reasons.
As an approved provider receiving a Commonwealth residential care subsidy, Samir had statutory responsibilities to provide aged care services in compliance with the relevant standards: see Aged Care Act s 54-1(1)(a) to (h). Failure to meet those care standards enlivened the Departmental Secretary’s statutory power to impose sanctions: Aged Care Act s 65-1(a). The permissible sanctions included revocation, or suspension, of a provider’s approval: Aged Care Act s 66-1(a). A failure to comply with the relevant standards could also reflect adversely on an approved provider’s suitability. So too could a record of poor financial management: Aged Care Act s 8-3. If the Secretary considered an approved provider was no longer suitable, the Secretary could revoke the provider’s approval: Aged Care Act ss 8-3, 10-3. On 22 June 2012 Samir appointed administrators under Part 5.3A of the Corporations Act 2001 (Cth). The Secretary decided to revoke Samir’s approval on 3 July 2012. That decision is relevant to these reasons, but was not the subject of any review application.
THE MATTERS FOR DECISION
Mrs Khan was Samir’s sole director, and the Executive Director of Nursing at Curie Nursing Home. She caused Samir to apply to the Tribunal (on 4 May 2012) for review of the Agency’s 30 April 2012 accreditation decision. On about 3 July 2012 Samir (then under the control of its administrators) and the Agency consented to a Tribunal order that dismissed Samir’s review application.
The matters for determination in these reasons are whether Mrs Khan is entitled to:
(a)have the Tribunal reinstate Samir’s application for the review of the Agency’s 30 April 2012 accreditation decision, despite their consent to the 3 July 2012 dismissal of that application;
(b)be made a party to those proceedings, if they are reinstated, or
(c)an extension of time to make her own application to the Tribunal for the review of the Agency’s 30 April 2012 decision, notwithstanding the 3 July 2012 dismissal of Samir’s review application.
Both the Agency and Samir’s administrators oppose Mrs Khan’s applications for reinstatement, joinder and extension of time. The administrators contend that the Tribunal has no power to deal with the applications, because of the statutory stay of proceedings “in a court” against a company in administration “or in relation to any of its property”: Corporations Act 2001 s 440D(1). Both the Agency and Samir contend that the Tribunal has no power to reinstate Samir’s review application. They also dispute that Mrs Khan has a relevantly affected interest, so as to entitle her to make an application to review the Agency’s accreditation decision. Finally, principally because of the 3 July 2012 decision revoking Samir’s approval as an aged care provider, they oppose any extension of time for Mrs Khan to make a review application.
In order to determine the matters in dispute it is necessary to consider the circumstances involved in Samir’s review application and the various decisions by the Agency and the Departmental Secretary.
PROVIDER APPROVAL AND SERVICE ACCREDITATION
Ministerial instruments authorised by Aged Care Act s 96-1 govern the accreditation procedures, and the quality of care requirements, for aged care service accreditation. Two of those instruments are material to the present application – the Quality of Care Principles 1997 and the Accreditation Grant Principles 2011.
The Quality of Care Principles 1997 contain the quality standards for residential care services: Aged Care Act s 54-2. The two principally relevant standards were the Accreditation Standards and the Residential Care Standards. Those standards were set out in Schedule 2 and, prior to October 2012, in Schedule 3 of the Quality of Care Principles 1997.
The Accreditation Grant Principles 2011 contain provisions relating to the procedures involved in the grant of accreditation for a residential care service, and the Agency’s supervision of accreditation compliance. The Accreditation Grant Principles 2011 (“AGP”) required the Agency to undertake assessment contacts with approved providers of accredited aged care services: AGP 2.45. The principles also:
(a)permitted the Agency to create an assessment team and audit an approved provider it reasonably considered may not be meeting the Accreditation Standards: AGP 2.49 and 2.50;
(b)required the Agency, after it received an audit report, to decide whether or not to revoke its accreditation of an aged care service provided by the approved provider: AGP 2.56;
(c)required the Agency, where it decided to revoke any service accreditation, to provide a reasoned and particularised notice to the approved provider: AGP 2.59;
(d)permitted the approved provider to ask the Agency to reconsider a decision to revoke accreditation of a residential care service: AGP 2.67;
(e)required the Agency to determine any such reconsideration request within 56 days, and notify the approved provided of the decision: AGP 2.69;
(f)authorised “a person” to apply to the Administrative Appeals Tribunal for a review of an Agency’s reconsideration decision: AGP 2.71.
THE SECRETARY’S FIRST DECISION TO REVOKE SAMIR’S APPROVAL
On 16 March 2012 a delegate of the Secretary decided to revoke Samir’s approval for a period of 6 months, unless Samir appointed an approved administrator, appointed an approved adviser, and provided additional training for personnel responsible for the organisation and delivery of care and services. The basis of the decision was that Samir had not been complying with its statutory responsibilities in relation to quality of care, residents’ rights and accountability, under Aged Care Act ss 54-1 to 63-2. In particular, the delegate considered that the safety, health or well-being of Curie Nursing Home residents was being severely compromised. The delegate recorded findings that:
(a)the needs of residents with challenging behaviours was not being managed effectively;
(b)care assessment and care planning processes were ineffective;
(c)there were insufficient care staff;
(d)there were inappropriate practices by care staff;
(e)residents were not provided with appropriate supervision and assistance.
Following the 16 March 2012 decision Samir appointed both an approved adviser and an approved administrator, it also undertook to provide the required staff training. Because of these changes it retained its approved provider status.
THE AGENCY’S 30 APRIL 2012 REVOCATION OF ACCREDITATION – SAMIR’S DISMISSED REVIEW APPLICATION
On 29 March 2012, after considering the audit report by an assessment team (see paragraphs (a) and 11(b) above), the Agency decided to revoke the accreditation of the residential care service Samir provided at the Curie Nursing Home. On 30 April 2012, in response to Samir’s reconsideration request, the Agency confirmed the 29 March 2012 revocation decision, but deferred its implementation until 10 May 2012. The Agency found that the residential care provided at Curie Nursing Home failed to meet 13 of the 44 “expected outcomes” described in the Accreditation Standards. The deficiencies included failures:
(a)to pursue continuous improvement and to have management systems in place to ensure compliance with relevant legislation, regulatory requirements and standards;
(b)to have sufficient appropriately skilled and qualified staff;
(c)to ensure that residents received appropriate clinical care and that specialised nursing care needs were identified and met by appropriately qualified nursing staff;
(d)to provide sufficient care and services to allow all residents to be as pain free as possible;
(e)to meet the needs of residents with challenging behaviours;
(f)to ensure recognition and respect of residents’ rights to privacy and confidentiality;
(g)to achieve optimum levels of mobility and dexterity for all residents;
(h)to demonstrate that the nursing home management was actively working to provide a comfortable and safe environment consistent with residents’ care needs.
SAMIR’S 4 MAY 2012 APPLICATIONS
On 4 May 2012, a few days after the Agency’s 30 April 2012 decision confirming its decision to revoke accreditation, Samir made three applications. They were:
(a)a request to the Secretary for a determination of deemed accreditation compliance in relation to the residential care service provided at Curie Nursing Home;
(b)an application to the Tribunal to review the Agency’s 30 April 2012 decision confirming revocation of accreditation of the residential care service provided at Curie Nursing Home;
(c)an application to the Tribunal for a stay of the operation or implementation of the Agency’s revocation decision.
Samir’s various 4 May 2012 applications all concerned accreditation of the residential care service provided at Curie Nursing Home. The request to the Secretary was, in practical reality, an alternative to Samir’s applications to the Tribunal. In exceptional circumstances the Secretary of the Department of Health and Ageing can determine that a residential care service is taken to comply with its accreditation requirement. But the Secretary cannot make such a determination if there is an immediate or severe risk to the safety or well-being of the persons being provided with residential care: Aged Care Act s 42-5.
THE SECRETARY’S ACCREDITATION DETERMINATION
On 1 June 2012 the Secretary’s delegate refused to make the determination of deemed accreditation compliance that Samir had sought in its 4 May 2012 request. The delegate’s 1 June 2012 decision notice recorded her dissatisfaction that the required exceptional circumstances applied to permit any determination of deemed compliance to be made. The delegate noted that a consequence of refusing to make the determination was that Samir would no longer be eligible to receive a Commonwealth residential care subsidy under Chapter 3 of the Aged Care Act, and that this would force the closure of the service. The delegate regarded this as the ordinary consequence of non-compliance with accreditation standards, and was not an exceptional circumstance. The delegate also recorded her satisfaction that there was an immediate risk to the safety or well-being of Samir’s residential care recipients. The delegate said she was satisfied that the residents at Curie Nursing Home were “currently receiving care that places their health and well-being at risk”. The delegate considered that whilst the appointment of a Nurse Adviser and an Administrator would normally afford appropriate protection to residents, ongoing risks had continued to be evident at Curie Nursing Home, even after the appointment of persons to those roles.
THE SECRETARY’S NOTICE CONSIDERING REVOCATION OF APPROVAL
On Monday 7 May 2012 there was a further development, relating to Samir’s approved provider status. The Secretary’s delegate gave Samir notice that revocation of its approval status was being considered. The basis of the consideration was that Samir was no longer “suitable” for approval.
Much of the material the delegate referred to in her 7 May 2012 notice concerned the Agency’s 30 April 2012 accreditation revocation decision, and the circumstances underlying that decision. But the delegate also referred to previous instances of Samir’s non-compliance, including sanctions that had been imposed on Curie Nursing Home in 2006. The delegate recorded her intention to consider whether Samir’s “repeated history of serious non-compliance” indicated that Samir was not suitable to provide aged care.
THE TRIBUNAL PROCEEDINGS
On 9 and 31 May 2012 the Tribunal granted short stays of the Agency’s accreditation decision. On 5 June 2012 the Tribunal refused to grant any further stay. As a result, the Agency’s accreditation revocation decision came into operation on 6 June 2012.
In refusing Samir’s stay application the Tribunal appreciated that the likely consequence was to force the closure of the Curie Nursing Home. The Tribunal’s reasons for decision ([2012] AATA 333) refer to Mrs Khan’s evidence that, without the Commonwealth subsidy for accredited residential care services, Samir only had funds to continue to operate for three weeks. Mrs Khan’s evidence to the Tribunal was that, unless the Agency’s 30 April 2012 decision was stayed she would have to implement immediately a plan to relocate all of the Curie Nursing Home residents.
The Tribunal’s 5 June 2012 reasons for decision reviewed the findings of the Agency’s assessment teams in relation to the nature and extent of Samir’s failures to comply with the relevant standards. The Tribunal concluded that the findings were of “recurring” problems and indicative of “systemic, rather than isolated, issues”. The Tribunal characterised the substance of Mrs Khan’s evidence as providing some explanation for the problems that had occurred, and attempting to provide substantial grounds for expecting that they could be alleviated. But Mrs Khan’s evidence, the Tribunal said, did not dispute the fact of many of the shortcomings that had been identified in the various Agency assessment reports. The Tribunal concluded that Samir was likely to incur significant ongoing costs in attempting to remedy the deficiencies that had been identified. The Tribunal was not satisfied that Samir had the financial capacity to meet those costs. The Tribunal was not satisfied that Samir had reasonable prospects of success in establishing that it was likely to be able to achieve compliance with the required care standards within “a timeframe that is consistent with ensuring the ongoing health, safety and well-being of the residents of Curie while compliance is being achieved”: [2012] AATA 333 at [63].
On Friday 22 June 2012 the Tribunal made various procedural directions, and adjourned the proceedings for further directions on 4 July 2012. The orders made on 22 June 2012 required the parties to take various steps to ready the matter for hearing.
Also on 22 June 2012 Mrs Khan, as the sole director of Samir, resolved that the company was, or was likely to become, insolvent and that an administrator should be appointed. This state of affairs Mrs Khan had anticipated in her previous evidence to the Tribunal in support of Samir’s application for a stay of the Agency’s 30 April 2012 decision. She executed a formal written appointment, pursuant to s 436A of the Corporations Act 2001. The appointed administrators promptly provided their written consent to act. As a result, the administrators acquired exclusive management and control of Samir’s “business, property and affairs”: Corporations Act 2001 s 437A(1)(a). Correspondingly, Samir’s director and officers were disentitled, and actually prohibited, from performing any function, or exercising any power, as an officer of Samir – other than with the administrators’ consent: Corporations Act 2001 s 437C(1) and (1A).
On Wednesday 27 June 2012 solicitors retained by Samir’s administrators wrote to the Department of Health and Ageing. The letter conveyed the administrator’s view that Samir was “not best suited to continue to provide care services ... at the residential care facility as currently constituted”. On the following day, 28 June 2012 the administrators instructed Samir’s solicitors to discontinue the review proceedings.
On Monday 2 July 2012 the Agency’s solicitors wrote to the Tribunal. The letter informed the Tribunal of the parties’ agreement to the dismissal of the proceedings. Accompanying the letter was a signed form of consent orders evidencing that agreement for the dismissal of the review proceedings.
On 3 July 2012 the Tribunal, exercising the power conferred by s 42A(1) of the Administrative Appeals Tribunal Act 1975(Cth) (the AAT Act), to dismiss an application where all the parties consent, dismissed the application without undertaking any review of the Agency’s decision. That dismissal, in the absence of any reinstatement under either AAT Act ss 42A(9) or 42A(10), concluded the review proceedings: see AAT Act s 42A(6).
THE SECRETARY’S SECOND DECISION TO REVOKE SAMIR’S APPROVAL
The second material event that occurred on 3 July 2012 was that a delegate of the Secretary, acting under Aged Care Act s 10-3, decided to revoke Samir’s approval as a provider of aged care. The delegate’s 3 July 2012 notice recited reliance on a range of information. The principally relevant information to which it referred included:
(a)notices of non-compliance, serious risk, or the imposition of sanctions, relating to Curie Nursing Home, and dated 15 September 2006, 24 October 2006, 27 November 2006, 13 September 2010 and 16 March 2012;
(b)reports of non-compliance, serious risk or the imposition of sanctions, relating to another nursing home that Samir had operated, and dated 6 April 2005, 7 March 2006, 17 October 2006, 4 November 2010, 8 March 2012 and 9 March 2012;
(c)assessment and audit reports by the Agency dated between March and June 2012;
(d)the Agency’s revocation decisions of 29 March 2012 and 30 April 2012;
(e)the delegate’s 1 June 2012 decision (refusing to make a determination of deemed accreditation compliance);
(f)the 22 June 2012 appointment of administrators to Samir.
In the 3 July 2012 notice of reasons for the decision the delegate referred to a history of Samir’s non-compliance in 2002, 2004, 2006, 2010 and 2012, and noted the Agency’s accreditation decisions of March and April 2012. The delegate considered that:
(a)Samir had a poor recent record of financial performance and management, and had been placed under administration on the basis of its insolvency or likely insolvency (paragraph 65 of the reasons);
(b)Samir’s staff had failed to take adequate steps to prevent violence between nursing home residents (paragraph 71 of the reasons);
(c)Samir had a longstanding trend of serious understaffing and that this had presented a serious risk to residents’ wellbeing (paragraph 90 of the reasons);
(d)Samir’s lengthy period of non-compliance, and ongoing non-compliance, illustrated that Samir had not acted with due diligence to ensure compliance (paragraph 99 of the reasons);
(e)it was particularly concerning that Samir had failed to remedy its non-compliance despite the Secretary’s 16 March 2012 decision to impose sanctions, and despite the appointments of a new nursing advisor and administrator, in March and April 2012 (paragraphs 101 and 102 of the reasons);
(f)historically Samir had been found to have numerous and serious instances of non-compliance with the Accreditation Standards in the Quality of Care Principles1997 (paragraphs 107 and 108 of the reasons);
(g)Samir had failed to comply, and there was an ongoing failure to comply, with the requirement to promote residents’ rights to privacy (paragraph 116 of the reasons);
(h)the solicitors for the voluntary administrators had conveyed to the Department of Health and Ageing the administrators’ view that Samir was not best suited to continue to provide care services at Curie Nursing Home and that, in fact, Samir was not in a position to continue to provide the appropriate care services to residents (paragraphs 119 and 120 of the reasons).
In the 3 July 2012 formal notice of decision the delegate ultimately declared her satisfaction that Samir had ceased to be suitable for approval as an aged care provider. Having reached that conclusion, the revocation of Samir’s approval status was required by Aged Care Act s 10-3(1)(b). The delegate’s notice stated that the revocation decision was to take effect “on the earlier of 3 September 2012 or the date that the voluntary administrator of Samir retires”.
The delegate’s 3 July 2012 decision was another reviewable decision in relation to which Samir, and any person whose interests were affected, could request reconsideration by the Secretary. Any reconsideration decision by the Secretary could be the subject of a review application to the Administrative Appeals Tribunal: Aged Care Act s 85-8. There is no evidence of any reconsideration request having been made in relation to the 3 July 2012 decision. On the other hand, the submissions by Samir’s administrators, in response to Mrs Khan’s applications, stated that Samir’s aged care residents had all vacated the Curie Nursing Home by about 17 July 2012.
MRS KHAN’S APPLICATIONS
Also on 3 July 2012 solicitors acting for Mrs Khan sent the Tribunal an application for her to be made a party to the proceedings that had been commenced by Samir’s 4 May 2012 review application to the Tribunal. Section 30(1A) of the AAT Act permits the Tribunal to make a person a party to review proceedings if they make a written application and are a person “whose interests are affected by” the reviewable decision.
The power to make a person a party to review proceedings has no application where the application has been dismissed. Mrs Khan sent her application to the Tribunal after it had actually dismissed Samir’s application. But Mrs Khan contends that Samir’s review proceedings were dismissed in error, and that the Tribunal has power to reinstate them, under either ss 42A(9) or 42A(10) of the AAT Act. Implicit in that contention is her desire to be made a party to the reinstated application.
Alternatively, Mrs Khan seeks an extension of time to make her own application for review of the Agency’s decision. An application for review must ordinarily be made within 28 days after the person has been provided with the reasons for the decision: AAT Act s 29(2). Mrs Khan was provided with the Agency’s 30 April 2012 decision and reasons at about that time. As a consequence, by 6 July 2012, when Mrs Khan first indicated her desire to pursue a review application independently of Samir, and by 22 August 2012 when she first articulated a request for an extension of time to bring her own application, Mrs Khan was out of time to make any review application to the Tribunal.
The Tribunal has a conditional power to extend the time for a person to make a review application. The condition for the exercise of the power is that the Tribunal is satisfied that granting the extension of time “is reasonable in all the circumstances”: AAT Act s 29(7).
SAMIR’S STAY AND ABSENCE OF POWER CONTENTION
The essence of Samir’s administrators’ contention about the effect of the stay of proceedings provided for in Corporations Act 2001 s 440D was that Mrs Khan’s applications were proceedings “in a court” either against Samir, or relating to its property. Samir contended that the Tribunal fell within the Corporations Act (s 58AA) definition of “a court”, but that it was not one of the “Court[s]” empowered to give leave for the proceedings to continue. Samir said that its characterisation of the Tribunal as “a court”, for the purposes of the stay provided for in Corporations Act s 440D was supported by analogous decisions involving other, non-curial, adjudicative bodies: Brian Rochford (Administrator Appointed) Ltd v Textile Clothing & Footwear Union of NSW (1998) 47 NSWLR 47 (the NSW Industrial Relations Commission); Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 (NSW Equal Opportunity Tribunal).
There are good reasons to doubt the propriety of characterising the procedures of the Tribunal, in discharging its review functions under the AAT Act, as involving proceedings in a court. As the then President said in Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788 at [1], the Tribunal “is a unique institution. It reviews administrative decisions made by the Commonwealth government. It is not a court. It does not exercise judicial power.” That statement was made in the context of emphasising that whilst the Tribunal had an authoritative decision making function, and not merely an advisory or inquisitorial role, that decision making function was essentially administrative. The Tribunal’s function was not one of resolving disputes between parties about specifically formulated issues. The Tribunal was not bound by the rules of evidence, did not apply onus or burden of proof concepts in its decision making, and had a statutory responsibility to make the “correct or preferable” decision. These considerations have particular force in connection with the Tribunal’s functions in reviewing decisions of the Agency and the Secretary under the Aged Care Act – because of the obvious legislative purpose in ensuring proper standards of care for persons who, at least ordinarily, will not be parties to the review proceedings.
For these reasons I do not accept Samir’s administrator’s submission that the Tribunal is a “court” for the purposes of the stay provision in Corporations Act s 440D(1). But even if that submission was correct, review proceedings in the Tribunal, at least proceedings involving the review of an Agency decision of the kind presently under consideration, are not properly to be characterised as proceedings “against the company”. Samir’s original review application was one it made, seeking to set aside the Agency’s revocation of its accreditation of Samir’s residential care service. There is simply no basis for characterising that application as a proceeding “against” Samir. Nor is the characterisation altered by the circumstance that Mrs Khan is now the moving force in seeking to have that application reinstated. Mrs Khan’s reinstatement application is not, in its nature, an application “against” Samir. Nor does it merit that characterisation as a consequence of Samir’s administrator’s opposition.
Neither are Mrs Khan’s applications proceedings “in relation to” any of Samir’s property, for the purpose of the stay provision in Corporations Act 2001 s 440D(1). Mrs Khan’s present applications are essentially procedural. They are themselves neither proceedings “against” Samir, nor “in relation to” its property. Even if her applications should be characterised not by reference to their immediate procedural context, but by the substance of the decision they seek to challenge, that decision relates only to the accreditation of Samir’s residential care service. Even allowing for the generality of connection that permissibly constitutes a relevant relationship between subject matters for the purpose of satisfying a statutory expression such as “in relation to”, it is, to my mind, a misuse of language to characterise a challenge to the authoritative assessment of the quality of a “service” as involving a relevant relationship to the “property” of the service provider. This is especially so in connection with the Agency’s 30 April 2012 decision. That decision was based on the failure of Samir’s residential care service to meet many of the “outcomes” required by the Accreditation Standards. The decision caused Samir to engage additional staff, and likely caused it to incur other expenses. It also limited its ability to receive new care residents in respect of whose care the Commonwealth would pay Samir a care subsidy. But those consequences of the decision do not suffice to permit either Samir’s review application to the Tribunal, or Mrs Khan’s present applications, to be characterised as proceedings “in relation to” Samir’s property.
THE DISMISSAL “ERROR” CONTENTION
The threshold limitation on the Tribunal’s power to reinstate proceedings under s 42A(10) of the AAT Act is that they were dismissed in error. The subsidiary limitations are that the Tribunal’s reinstatement power is only able to be exercised “on the application of a party” or on the Tribunal’s own initiative.
The concept of “error” for the purposes of s 42A(10) of the AAT Act includes any mistake that has resulted in the dismissal of the proceedings. It applies to situations where the Tribunal has made a substantive, procedural or administrative error in dismissing the proceedings. It is not restricted to such a situation. It also applies where the relevant error is that of the parties or their representatives. It includes situations where the Tribunal has proceeded on the basis of a mistaken state of affairs (for example, about the respective parties’ actual consents) that was conveyed by the parties, or that affected their conduct: see Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 at [28] and [29]; SZLIO v Administrative Appeals Tribunal (2008) 48 AAR 5 at [7] and [10].
Mrs Khan did not dispute, and bearing in mind the statutory effect of the administrators’ appointment could not dispute, the reality of the parties’ consent to the dismissal of the proceedings. Mrs Khan contended that the error causing the Tribunal’s dismissal of the proceedings was the failure of the parties to inform her of the actual steps that had been taken by the Respondent and the administrators to agree upon, and have the Tribunal effect, the dismissal. It was obliquely suggested on her behalf that Samir and the Agency had failed to inform the Tribunal of Mrs Khan’s intention to pursue proceedings to review the 30 April 2012 decision. There was also a complaint that the parties had acted peremptorily and ought to have waited, until the directions hearing that had been fixed for 4 July 2012, to inform the Tribunal of their consent to the dismissal of the proceedings.
The contention that Mrs Khan had not been aware of the imminent termination of Samir’s review application is unsound. In her evidence to the Tribunal in support of the unsuccessful application to stay the Agency’s 30 April 2012 decision Mrs Khan had anticipated Samir’s inability to fund the continuing operation of the Curie Nursing Home. She had predicted the closure of the Home. In those circumstances, and given that the basis of the administrators’ appointment was Samir’s likely insolvency, Mrs Khan must have been apprised of the likelihood that the administrators would not continue with the review application. Late in the afternoon of 28 June 2012 the Agency’s solicitors sent an email to the solicitors representing Samir in the Tribunal proceedings. The email asserted that “in the light of recent events” it would be in the interests of both parties to discontinue proceedings. The response to this email, some 75 minutes later, recorded instructions to discontinue the Tribunal proceedings. Those instructions appear to have been those of Samir’s administrators. But Mrs Khan’s representatives became aware of them shortly afterwards. This is evident from the contents of an email Mrs Khan’s solicitors sent to the Agency’s solicitors late on Friday 29 June 2012. In the letter Mrs Khan’s solicitors complained that she had not been consulted, nor had she been advised that the proceedings would be discontinued. They went on to say:
Even if the proceedings are discontinued by Samir Pty Limited Mrs Khan, as key personnel under the Aged Care Act and the sole owner and director of Samir Pty Limited should have standing and will be seeking to have the Accreditation Decision reviewed by the Tribunal.
The statement by Mrs Khan’s solicitors conveyed her apprehension that the proceedings were about to be discontinued. It also conveyed Mrs Khan’s intention, even if the existing review proceedings were terminated, to continue to seek to have the Agency’s decision reviewed. It positively conveyed her contention that she had a separate right to apply for review of the Agency’s decision. The letter certainly conveyed that Mrs Khan was taking her own legal advice in relation to the review proceedings, and the Agency’s accreditation decision.
There was no “error” involved in the conduct of the Agency and Samir in submitting the consent orders to the Tribunal without specific prior notice to Mrs Khan. She no longer had a relevant executive function (as an officer of Samir) in relation to the review proceedings. She was not a party to the proceedings. She had no unconditional right to be joined as a party to the existing review proceedings. She positively asserted, on the basis of legal advice, that she had a separate entitlement to apply for review of the Agency’s decision, irrespective of any discontinuance of the review application that Samir had made.
There is no substance in the suggestion that the parties, and the Agency’s solicitors in particular, failed to inform the Tribunal of Mrs Khan’s desire to contest the Agency’s decision, and the likelihood of her taking procedural steps to that end. The Agency’s solicitors’ letter to the Tribunal on Monday 2 July 2012 referred to the fact that Mrs Khan’s solicitors had written to them. It actually set out the passage from Mrs Khan’s solicitors’ email that I have quoted above. The Agency’s solicitors’ letter to the Tribunal concluded “We anticipate that if an application is filed by Ms Khan for review of the reconsidered accreditation decision it would be dealt with by the Tribunal as it considers appropriate”. This letter accurately conveyed Mrs Khan’s position.
Nor was there any “error” in the Agency and Samir informing the Tribunal on 2 July 2012, of their agreement and consent to the dismissal of proceedings, rather than waiting until the directions hearing that had been listed on 4 July 2012. Once the existing parties had agreed on the dismissal of the proceedings it was proper for them to inform the Tribunal promptly. That was particularly so in the present case, because the orders the Tribunal made on 22 June 2012 required the parties to take various steps before 4 July 2012. Once the parties’ agreement to the dismissal of the proceedings made those steps unnecessary, it was proper to inform the Tribunal promptly.
Mrs Khan did not suggest that the Tribunal itself had made any error, independent of the conduct of the parties, in its dismissal of the proceedings on 3 July 2012. The Tribunal had been informed of Mrs Khan’s apparent determination to assert a separate right to apply for review of the Agency’s decision. She had neither made, nor foreshadowed, an application to be made a party to the review proceedings Samir had commenced. Nor had she conveyed concern that any application she might subsequently make would be disadvantaged by the discontinuance or dismissal of Samir’s review application. The Agency’s solicitors’ letter of 2 July 2012 conveyed the expectation that if Mrs Khan made any relevant application, it would be dealt with on its merits. Those merits would necessarily have had to recognise the situation that underlay the parties’ consent – that Samir did not wish to contest the proceedings and would not take an active part in them. In those circumstances, there was no basis to regard Mrs Khan’s concern to pursue her own asserted entitlement to apply for review of the Agency’s decision as a material consideration in the exercise of the Tribunal’s power to dismiss the proceedings as a consequence of the parties’ agreement to that effect. Given the existing parties’ consent, there was nothing to require the Tribunal to stay its hand until Mrs Khan made, or declined to make, her own application for the review of the decision.
In the present case the Tribunal acted on the basis of the parties’ informed and actual consent. That consent was not affected by any error. It enlivened the Tribunal’s power to dismiss the proceedings. Mrs Khan’s known intention to pursue her own application for review of the 30 April 2012 decision does not indicate error by the Tribunal in dismissing Samir’s application, in response to the consensual request of the existing parties. Consequently, s 42A(10) of the AAT ACT does not confer any power to reinstate Samir’s application.
Nor does s 42A(9) of the AAT Act confer any power to reinstate Samir’s review application. That section contains a power to reinstate “the application”. The context indicates that “the application” to which the section refers is an application to reinstate an application that was dismissed (under s 42A(2) of the AAT Act) because a party failed to appear. In relation to such an application only the person who made the review application can apply for the Tribunal for its reinstatement: AAT Act s 42A(8). Consequently, the reinstatement power conferred by AAT Act s 42A(9) does not apply to Mrs Khan’s application to reinstate proceedings that were dismissed, with the parties’ consent in the exercise of the power conferred by s 42A(1) of the AAT Act.
PERSON INTERESTED ISSUES
The threshold matter to determine, in dealing with Mrs Khan’s application for an extension of time to lodge her own application to review the Agency’s 30 April 2012 decision, is whether she is a person “whose interests are affected by the decision”. Any entitlement she has to apply for review of the decision depends on the favourable determination of that question: see AAT Act s 27(1).
Mrs Khan had been Samir’s principal executive officer and, at least in recent times, was its only director. As the Executive Director of Nursing at Curie Nursing Home Mrs Khan was one of Samir’s “key personnel” for the purposes of Aged Care Act s 8-3. As a result of a divorce settlement in 2008, Mrs Khan was, for practical purposes, Samir’s only shareholder. But it appears that Samir held its interest in Curie Nursing Home as the trustee of the Khan Family Trust: see [2012] AATA 333 at [34]. Mrs Khan appears to be a beneficiary of the trust, and has in the past received substantial trust distributions. Mrs Khan claims her interests are relevantly affected by the Agency’s 30 April 2012 decision, principally because of her status as Samir’s director and shareholder. Submissions on her behalf also assert that, by virtue of an interest in Yasmeen Holdings Pty Ltd, Mrs Khan is indirectly exposed to liability as a guarantor of Samir’s borrowing liabilities to the St George Bank. She also claims that the Agency’s decision adversely affects her standing and reputation in the aged care industry. Mrs Khan hopes to continue to be engaged in the industry, where she has worked since at least 1993.
The general law position that governs the standing of person to bring proceedings has typically been stated in the context of an attempt either to restrain the commission of an offence: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; to challenge the validity of an approval for conduct that would otherwise constitute an offence: Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493; Day v Pinglen Pty Ltd (1981) 148 CLR 289; or to challenge the validity of legislation prohibiting conduct that would otherwise have been lawful: Robinson v Western Australian Museum (1977) 138 CLR 283. In that context a broad, but sometimes difficult to express, distinction has been drawn between claims linked to tangible outcomes directly affecting the persons involved, and claims motivated by beliefs, ideas or opinions, and principally intended to affect another person’s conduct or entitlements. The accepted criterion of distinction, expressed by Gibbs J in Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493 at 527, was that a person must have a “special interest in the subject matter of the action”.
Under the general law rules governing standing, the special interest does not have to be reflected in a private law cause of action. It is sufficient if the interest is distinguishable from the interests of the public at large: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 71 per Brennan J. The statutory entitlement, under AAT Act s 27(1), permitting persons to apply to the Tribunal for review of decisions where their “interests are affected by” the decision, similarly includes interests that may be, but need not be, proprietary in nature: Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 at 259 (per Davies J), 272 (per Gummow J).
Consistent with that view about the breadth of relevant interest affectation, property and financial interests are generally sufficient to establish relevant affectation: New South Wales Fish Authority v Phillips [1970] 1 NSWR 725 (persons being illegally charged parking fees by the Authority when it was not registered as a parking station). This is so even if the property and financial interests may not be matters of accrued entitlement: Broadbridge v Stammers (1987) 16 FCR 296 (postmaster losing his employer provided accommodation as a result of a decision to close a post office).
The difficulty of discriminating between interests affected by a contentious decision, and claims of interest that do not satisfy the requirement of affectation so as to entitle an entity to make a review application under AAT Act s 27(1) (or become a party to an application under AAT Act s 30(1A), has led to an emphasis that the interest must be real, genuine or direct. That emphasis serves to highlight the requirement for “genuine affectation of an interest” that attaches to the prospective applicant: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520. But the difficulty remains that identified by Brennan J in Re McHattan and Collector of Customs (1977) 1 ALD 67 at 70, namely:
... the determination of the point beyond which the affection of interests by a decision should be regarded as too remote ... The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.
The combined interests of an industrial organisation, in securing harmonious industrial relations for its members, promoting industrial safety, and preserving its membership, may provide a sufficient interest to seek judicial review of a decision relating to the manning levels on a commercial ship: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 133. Similarly, in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 at 558 the union was held to have a sufficient special interest, because of its potential relevance to its members’ hours and conditions of work, to challenge a Ministerial decision to exempt certain retail premises from a prohibition against Sunday trading. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 the apprehensions of a potential competitor were held sufficient to give it standing to restrain a statutory corporation from acting beyond its powers in undertaking a particular kind of trading activity.
A critical consideration in determining whether any particular person’s interests are affected by a decision is whether the decision concerns the person is some way beyond their status as an ordinary member of the public. In Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493 at 530-531 Gibbs J summarised the position in this passage:
... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.
What will suffice to establish a sufficient interest in any particular case depends on the nature of the reviewable decision itself: Allan v Transurban City Link Ltd (2001) 208 CLR 167; 183 ALR 380 at [17]. That case concerned an attempt by a landowner to have the Development Allowance Authority reconsider a borrowing certificate it had issued to facilitate the construction of a freeway. The landowner lived near the proposed freeway and objected to its construction, but was in no way directly involved funding the project. The High Court held that there was no statutory power to reconsider a decision to grant, as distinct from refuse, a certificate. Consequently, it was only the Full Federal Court decision that dealt with the question whether the landowner’s interests were relevantly affected by the certificate decision.
The question of affected interest that the Full Federal Court addressed in Transurban City Link Ltd v Allan (1999) 95 FCR 553 arose in a context where the landowner’s asserted interests were not directly involved in the certificate decision itself. In addition, after having requested the Authority to reconsider the issue of the borrowing certificate, the landowner had moved to an address where he was not affected by the freeway. In seeking to establish relevant affectation to challenge the Authority’s certification decision Mr Allan contended that it was sufficient that he had interests in the subject matter of the certificate (that is, the construction of the freeway) irrespective of whether or not the actual outcome of the reconsideration decision itself would likely have an effect on those interests. In developing this contention Mr Allan had relied on the reasoning of Brennan J in Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67. In that case Mr McHattan was a customs agent who sought to establish his interests were relevantly affected by a customs tariff classification decision about which he had advised his importer client. He contended that the decision exposed him to a risk of liability for negligent advice. Brennan J rejected the contention and held that the relevant interest had to be inherent in the contentious decision about the classification of the goods, rather than arise only if the review proceedings were determined in a particular way.
The Full Federal Court rejected Mr Allan’s attempt to rely on the decision in McHattan. The Full Federal Court held that whilst McHattan decided a contingent concern about the outcome of a particular decision was insufficient to establish a relevant interest, the case was not authority for the converse proposition that the outcome of the decision or the review proceedings was irrelevant to the question of whether the review applicant had demonstrated a sufficient interest affectation. The Full Federal Court said (at 95 FCR 565):
In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.
The Full Federal Court then went on to say that in deciding whether or not Mr Allan’s interest in the certificate decision was “too remote” it was necessary to consider:
whether at the relevant time, that being the time he made his application to the Tribunal, he was likely to gain an advantage from the review. Put in another way, it is necessary to ask whether the interest he claims can in any way be advanced or harmed by the outcome of the review.
The Full Court noted that Mr Allan had not been directly involved in the application for the certificate, or the deliberations involved in the Authority’s decision. It also noted that the “object, scope and purpose” of the legislation governing the issue of the certificate were remote from the matters of concern to Mr Allan about the freeway. But the Full Court rejected the idea that the relevant scope of affected interests was to be considered only by reference to the statutory purpose. The Court considered that the statutory purpose was relevant, but not the exclusively relevant consideration, in determining the question of interest: see 95 FCR 553 at [55]. The Court took into account the fact that, by the time Mr Allan made his reconsideration request, the agreement to construct the freeway had become unconditional (for reasons unconnected with the efficacy of the certificate). The Full Court found that this rendered futile his attempt to use the certificate decision issue as a basis to prevent the freeway construction: see 95 FCR 553 at [53]. The Full Court went on to consider that Mr Allan’s interests as a disappointed owner of land near the proposed freeway were not interests that sufficed to give him standing as a person whose interests were affected by the Authority’s decision.
The Full Court in Transurban City Link Ltdv Allan (1999) 95 FCR 553 also considered whether the only relevant time to consider the question of interest affectation was when the person made their application or whether, assuming that Mr Allan may have had an interest when he lived near the proposed freeway, that interest had ended when he moved away to an address unaffected by the freeway. The Full Court said that it was unnecessary to decide whether a person must demonstrate their affected interest both when they made their application and also at the time of the review hearing. This was because if the interest had ceased by the time of the hearing the review application should be dismissed as frivolous and vexatious – under AAT Act s 42B(1). In expressing this view the Full Court accepted the reasoning of the Tribunal (President Mathews J, Deputy Presidents Beaumont and Hill JJ) in Re Williams and Australian Electoral Commission (1995) 38 ALD 366.
In Williams a political party member had applied for the review of a decision accepting the registration of a party member as the party’s registered officer under the Electoral Act 1918 (Cth). The interest Mr Williams claimed was in the validity of a reconstitution of the organisation that was notified to the Electoral Commission by the registered officer. The Tribunal held that the reconstitution was valid, irrespective of the contentious registration, and that the interest claimed was unaffected by the decision sought to be reviewed. But the Tribunal also held that Mr Williams nevertheless held a relevant interest at the time he made his review application. That interest arose because the registered officer had the power to nominate the party’s election candidates, and the Tribunal held that any party member had a relevant interest in the regularity and validity of any such possible nomination. However, the Tribunal also went on to hold that, by the time it came to consider the matter the party’s registered officer had changed in any event. Consequently, the Tribunal held that Mr William’s relevant interest in the impugned decision had ceased. It also held that his pursuit of the review proceedings there after must have been for a collateral purpose – that of a futile attempt to challenge the membership of the party: 38 ALD at 372-3.
Williams was a case where the Tribunal found not only that the proceedings no longer had any practical purpose, but also that Mr Williams had come to pursue them for an improper collateral purpose. In Re Hickey and Commissioner of Taxation (2009) 75 ATR 660; [2009] AATA 347 the Tribunal applied the reasoning in Williams, and dismissed proceedings where the decision under review (a challenge to a private ruling by the Commissioner of Taxation) had ceased to have any practical significance, because no events had occurred in the tax year to which it applied, and the ruling was incapable of having any practical impact on the taxpayer’s affairs.
Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519; [2006] FCAFC 3 a fisherman made an application to review a quota that had been allocated to him as a fishing permit holder under the Fisheries Management Act 1991 (Cth). But a few months later he sold his permit and the quota that applied to it. The Tribunal held that he no longer had an interest in the quota decision, and dismissed his application as frivolous and vexatious under AAT Act s 42B. That decision was upheld on appeal to the Federal Court.
Mrs Khan is certainly a person whose relevant financial interests were capable of being affected by the Agency’s 30 April 2012 decision. As the Executive Director of Nursing she was presumably paid a wage or salary. The continuation of that kind of remuneration was likely to be jeopardised once the Agency’s decision came into effect, and Samir became ineligible to receive any Commonwealth subsidy for residential care services it provided. Alternatively, although for the same reason, any future distribution to Mrs Khan, as a potential beneficiary of the Khan Family Trust, was likely to be threatened.
It is less clear that Mrs Khan’s interests were relevantly affected by the Agency’s decision in relation to her assertion that her reputation in the aged care industry was itself adversely affected by the Agency’s decision. The decision itself was one in relation to the quality of Samir’s residential care service. More specifically it seems to have been based upon the inadequacy of the procedures, practices and staffing at the Curie Nursing Home. The Agency’s decision was focussed upon the inadequate outcomes of the service itself, rather than one that apportioned blame to particular individuals, including Mrs Khan herself.
I conclude that when Mrs Khan caused Samir to make its 4 May 2012 application to the Tribunal for review of the Agency’s 30 April 2012 decision she was also a person whose interests were affected by the decision. Her affected interests were, at least, her financial connection with Samir, both as an employee and as person potentially entitled to participate, through the Khan Family Trust, in the financial success of Samir’s undertaking at the Curie Nursing Home. Those interests were prospectively affected by the imminent coming into effect of the Agency’s 30 April 2012 decision. The decision came into effect, after the Tribunal finally refused Samir’s stay application, on 6 June 2012.
Whilst Samir retained its formal status as an approved provider, and continued to provide residential care services to the Curie Nursing Home residents, it retained the prospect of being entitled to receive a relevant Commonwealth subsidy under the Aged Care Act – subject only to succeeding in its application to the Tribunal for review of the Agency’s 30 April 2012 decision. That prospect did not end, and neither did Samir’s nor Mrs Khan’s potential interest in the success of an application for review of the Agency’s 30 April 2012 decision, when the Secretary’s delegate made the 3 July 2012 decision to revoke Samir’s approval as an approved provider. That decision was expressed to take effect by 3 September 2012, at the latest. In practical terms it probably took effect by about 17 July 2012, when Curie Nursing Home was vacated. That date, assuming it was when Samir ceased providing residential care services, is the end of the period in which Samir had any conceivable entitlement to receive a Commonwealth subsidy. That entitlement relevantly depended on the contingency that the Agency’s 30 April 2012 accreditation decision was set aside, or varied, as a result of the review proceedings.
The evidence did not disclose the amount of the Commonwealth subsidy that might arguably apply to the residential care services Samir provided at the Curie Nursing Home between 6 June 2012 (when the Agency’s 30 April 2012 decision came into effect) and about 17 July 2012 (when Samir ceased to provide residential care services at Curie Nursing Home). If the amount had been shown to be insubstantial that evidence might have provided scope to consider whether or not Mrs Khan’s desire to pursue her own application for review of the Agency decision was motivated by a desire to advance or protect her own reputational interests, and to such an extent that her application was not brought for a proper purpose. But that is not a conclusion that can be reached on the presently available material. There is, on my assessment, a proper basis to contend that Samir had a conceivable prospect of advancing its financial interests in the review application proceedings. There is not an adequate evidentiary basis to conclude affirmatively that the costs and expenses that might be incurred in pursuing the review application are so disproportionate to the conceivable financial benefit as to indicate that the review application by Mrs Khan is not proposed for a genuine purpose and is frivolous and vexatious for the purposes of AATA s 42B.
On the other hand, I am not satisfied that Mrs Khan has a genuinely affected reputational interest so as to demonstrate that she is entitled, independently of her financial interest in Samir’s affairs, to make an application to review the Agency’s 30 April 2012 decision. Mrs Khan’s asserted reputational interest is that her standing and reputation in the industry “has [been] and will continue” to be affected by the Agency’s decision. No evidence was adduced to support this apprehension. It is not, in my opinion, self-evidently the case.
I have set out, albeit in summary form, the substantial findings made by the Agency in making its 30 April 2012 decision, and the Tribunal’s findings in relation to Samir’s application to stay the implementation of the Agency’s decision. Those findings (see paragraphs 14 and 22 above) were not personal criticisms of Mrs Khan, her abilities or her competence. Typically they were related to the quality of care and, to a substantial degree, appear to have related principally to inadequate staffing at the Curie Nursing Home and inadequate supervision and training of the nursing and care staff. This inference is justified by (i) the nature of the Secretary’s decision on 16 March 2012 and the sanctions that were conditionally imposed at that time (see paragraphs 12 and 13 above), (ii) the content of the Agency’s findings and (iii) the Secretary’s subsequent recognition that Samir’s performance in providing services at Curie Nursing Home had been adversely affected by the management and financial strains to which Mrs Khan had been subject in connection with the protracted resolution of her divorce proceedings and the conduct of another nursing home with which her former husband had been principally involved. Finally, it is also significant that although the Secretary’s delegate, in setting out the reasons for the 3 July 2012 decision, alluded to some assertions of possible misconduct that might have involved Mrs Khan, the delegate expressly refrained from reaching any conclusion, about those matters and did not rely on them as providing any basis for the revocation decision.
In these circumstances it seems to me that Mrs Khan’s assertions about the adverse effect of the Agency’s 30 April 2012 decision are not demonstrated by the evidence. Furthermore, any apprehensions Mrs Khan may have do not seem to me to be capable of being attributed to any particular aspect of the Agency’s decision. At the highest, the evidence is that Mrs Khan held a senior executive position in a nursing home that lost its accreditation, and encountered financial difficulty, for a range of reasons, principally related to its level of resourcing and the quality of its nursing care. That evidence is, in my opinion, insufficient to establish that Mrs Khan’s interests were relevantly affected by the Agency’s decision, other than to the extent of her financial interest and as a person who was, in effect, the principal executive of Samir.
My findings about the nature of Samir’s status as an approved provider, that was between 6 June 2012 and 17 July 2012, at least potentially eligible to receive a subsidy under the Aged Care Act in respect of the residential care services it provided, suffices to demonstrate that Mrs Khan was a person whose interests were relevantly affected by the Agency’s 30 April 2012 decision. Samir’s potential entitlement, subject to successful review of the Agency’s decision to revoke its accreditation, precludes characterisation of Mrs Khan’s application as frivolous or vexatious for the purpose of AAT Act s 42B.
EXTENSION OF TIME – “REASONABLE IN ALL THE CIRCUMSTANCES”
The Tribunal has a general discretion to extend the time for making an application for review, if it is “satisfied that it is reasonable in all the circumstances to do so”: AAT Act s 29(7). That general discretionary power does not impose any specific onus on an applicant for extension. But it does require the Tribunal to be satisfied that the circumstances are such that it is proper to regard the extension of time as “reasonable”. That assessment permits regard to a range of considerations. Depending upon the subject matter and circumstances involved in the particular application, the relevant circumstances may include:
(a)the reasons for the delay, including the extent to which the person was known to be actively contesting the decision sought to be reviewed;
(b)the nature and extent of any prejudice that the extension may cause other parties;
(c)any wider prejudice that might be caused by departure from the ordinary statutory practices and procedures;
(d)the merits of the application;
(e)general considerations of fairness.
The basic proposition that the circumstances must reveal a proper case for extending the statutory time for making an application, is a significant consideration. But beyond that proposition it is relevant to consider the extent to which the contentious matter involves merely privately disputed issues, or has aspects of wider public interest. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J discussed a number of cases dealing with the general discretionary approach to applications for extension of time. After referring to the permissibly relevant considerations (as I have set them out above) His Honour cited the comments of Sheppard J in Wedesweiller v Cole (1983) 47 ALR 528 that:
… there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved.
Wilcox J then continued with the observation that:
It is in relation to the former category of cases, that is, those “which affect only the immediate parties” that the approach adopted by Bray CJ in Lovatt v Le Gall (1975) 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle [v Chief of Staff (1982) 42 ALR 283] at 287 and Duff [v Freijah (1982) 43 ALR 479] at 485, is apposite namely:
“If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff’s claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension.”
In the present case Mrs Khan was obviously the person principally responsible for Samir making its 4 May 2012 review application to the Tribunal. It may be assumed that, at least until that time, and the Tribunal’s decision of 5 June 2012 dismissing Samir’s application to stay the implementation of the Agency’s 30 April 2012 decision, she was actively contesting the Agency’s decision and was, presumably, the moving force behind Samir’s opposition to the decision.
On the other hand, Mrs Khan did move to appoint administrators to Samir. She did so on the ground of Samir’s actual, or at least apprehended, insolvency. In so doing she must be taken to have appreciated that she was passing control of the company to the administrators. There is a possible inference that she was content, at that stage, to abide by the decision of the administrators in relation to the prosecution of the review proceedings. Nevertheless, the relative promptness with which Mrs Khan acted, once it became reasonably clear that the administrators were not prepared to pursue the review proceedings, is a factor in favour of granting the extension of time she seeks.
Similarly, the comparative promptness of Mrs Khan’s application, once it became clear that Samir was no longer interested in pursuing its application to review the Agency’s decision, also suggests the unlikelihood of any relevant prejudice to the Agency if the application for extension of time was granted.
Nor does it seem likely that granting an extension of time would cause any relevant prejudice to the Curie Nursing Home residents. They have left the Nursing Home and, presumably, are unlikely to be at all affected by either an extension of time or the review of the Agency’s decision.
There is some prospect that Samir may be inconvenienced by granting an extension of time for Mrs Khan’s application. If the extension of time is granted it may be necessary, in the course of any consequential review hearing, to obtain documents from Samir and, perhaps, to obtain evidence from the administrators about the circumstances that underlay their decision not to contest the Agency’s decision. But that potential additional cost and inconvenience does not to my mind constitute significant prejudice. It is a matter that is best assessed in the context of the apparent merits of the review application.
In assessing the merits of Mrs Khan’s application the correct approach is necessarily impressionistic. On the one hand, an applicant for review should not lightly be deprived of an opportunity to seek the review of a decision where they can demonstrate a fairly arguable case. On the other hand, even if a claim is apparently arguable, the Tribunal may still come to the view that the prospects of success are insufficiently substantial to warrant the conclusion that granting an extension of time is reasonable: Hamden v Secretary, Department of Human Services [2013] FCA 3 at [36] and [40]. This may be particularly the case where the point at issue in the proceedings appears unlikely to have a sufficiently material practical impact on the applicant for extension.
In the present case Mrs Khan’s application is not supported by any material tending to demonstrate a persuasive basis for a conclusion that the Agency’s 30 April 2012 accreditation decision was other than the correct or preferable decision. According to the Agency’s findings there were chronic shortcomings in the quality of Curie’s care. Samir’s appointment of an adviser and administrator in response to the Secretary’s first revocation decision of 16 March 2012 decision point to the probability that there had indeed been long standing deficiencies in the management and supervision of the Curie Nursing Home. Furthermore the Agency’s decision of 30 April 2012 indicates that those steps did not sufficiently remedy the problems that existed. No basis has been shown, in connection with Mrs Khan’s extension application, for challenging the factual findings that the Agency made in that regard. On the contrary, the Secretary’s subsequent decision of 3 July 2012 tends to confirm the impression of long standing, and unremedied, deficiencies in relation to both Samir’s care delivery practices and its financial management. That impression is consistent with the findings the Tribunal made in its 5 June 2012 reasons dismissing Samir’s application for a stay of the implementation of the Agency’s 30 April 2012 decision (see paragraph 22 above). It is also consistent with the subsequent appointment of administrators to Samir, and the administrators’ decision that Samir was not in a position to continue to operate the Curie Nursing Home.
Furthermore, it is also a relevant consideration that, for the reasons I indicated in paragraphs 71 and 72 above, whatever prospect of success Mrs Khan might have of succeeding in her review application, the practical impact of that success would be limited to the potential recovery of Commonwealth subsidy for residential care services for the period between 6 June 2012 and about 17 July 2012. That amount is itself uncertain. And Samir’s administrators, with statutory obligations to act in the best interests of Samir and its creditors, have determined that the review proceedings should not be pursued. Moreover, even if there was a basis to conclude that there were reasonable prospects of setting aside or varying the Agency’s 30 April 2012 decision, and consequently recovering some additional Commonwealth subsidy, it is by no means clear that even limited success of that kind would result in any material benefit to Mrs Khan.
The ultimate position is one in which Mrs Khan has not demonstrated any real basis for concluding that she has meaningful prospects of success in the proposed review application. The available information tends to suggest the contrary. That suggestion is reinforced by the fact of Samir’s apprehended insolvency and the decision of its administrators not to pursue the review application that Samir had previously made to the Tribunal to review the Agency’s decision. Furthermore, the real extent of Mrs Khan’s practical interest in the outcome of the review proceedings is, having regard to the Secretary’s 3 July 2012 decision revoking Samir’s approval as an aged care provider, unquantified and uncertain. In these circumstances, I am not satisfied that it is reasonable to extend the time for Mrs Khan to make an application for review of the Agency’s 30 April 2012 decision.
CONCLUSION
For the reasons I have set out above, I refuse Mrs Khan’s application to reinstate Samir’s application for review of the Agency’s 30 April 2012 decision. As a consequence of that refusal I also reject Mrs Khan’s application to be made a party to Samir’s review application. I also refuse Mrs Khan’s application for an extension of time in which to make her own application for review of the Agency’s 30 April 2012 decision.
DECISION
The application to reinstate the proceedings (2012/1812) is refused. Mrs Kahn’s application to be made a party to those proceedings is refused. Mrs Kahn’s application (2012/3695) for an extension of time to make an application for the review of the Agency’s 30 April 2012 decision is refused.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member ..............[sgd]..........................................................
Associate
Dated 4 April 2013
Date of hearing 22 August 2012 Solicitors for the Applicant Gadens Lawyers Counsel for the Respondent Ms K Stern SC Solicitors for the Respondent Clayton Utz Counsel for Mrs Khan Mr C R de Robillard Solicitors for Mrs Khan Kent Attorneys
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