Schramm v Commissioner for Complaints - [2006] FMCA 1547

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHRAMM & ORS v COMMISSIONER FOR COMPLAINTS, COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME & ORS

[2006] FMCA 1547

ADMINISTRATIVE LAW – Review of decisions – Administrative Decisions (Judicial Review) Act 1977 – whether decisions made for purpose of ADJR Act – refusal to permit solicitor to act as agent – Aged care facility complaint – Complaint Resolution Scheme.

Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 6, 16
Committee Principles 1997, ss.10.66, 10.34A, 10.81, 10.82
Aged Care Act 1997 (Cth), s. 96-3(3),
Migration Act 1958, s.427(1)
Legal Aid Commission Act 1979 (NSW), s.25(1)
User Rights Principles 1997

Swan Portland Cement Ltd v Minister for Science, Customs and Small Business (1989) 88 ALR 196
Church of Scientology v Woodward (1982) 57 ALJR 42
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 323
Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64
Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Edelsten v Health Insurance Commission (1999) FCR 56
Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158
WABZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC30
Re Minister for Immigration & Multicultural Affairs Ex parte Cassim (2000) 175 ALR 209
Re Minister for Immigration and Multicultural Affairs Ex parte Lam [2003] HCA 6
Krstic v Australian Telecommunications Commission (1988) 16 ALD 751
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
House v R (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Prasad v Minister for Immigration & Ethnic Affairs (7ALNN 79B, FCA
26 February 1985)
McDowell & Partners Pty Ltd v Button (1983) 50 ALR 647

First Applicant:

IRENE SCHRAMM

Second Applicant:

EVELYN HORNIG

Third Applicant:

KATHY MITCHELL

Fourth Applicant:

JUNE SMITH

First Respondent:

COMMISSIONER FOR COMPLAINTS, COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME

Second Respondent:

MEMBERS OF THE COMPLAINTS RESOLUTION COMMITTEE

Third Respondent:

ILLAWARRA DIGGERS AGED AND COMMUNITY CARE RESIDENCE

File number:

SYG 671 of 2006

Judgment of:

McInnis FM

Hearing date:

6 June 2006

Delivered at:

Melbourne (by video link to Sydney)

Delivered on:

18 October 2006

REPRESENTATION

Counsel for the Applicants:

Mr S Doctor with Mr M Sergent

Solicitors for the Applicants:

Legal Aid Commission

Counsel for the First and Second Respondents:

Mr I Neil with Ms N Butler

Solicitors for the First and Second Respondents:

Phillips Fox

Counsel for the Third Respondent:

Mr D Patch

Solicitors for the Third Respondent:

Paul Murphy & Associates

ORDERS

The decisions set out in the letter dated 28 February 2006 from the First Respondent to the Applicants’ solicitor be set aside
(a)to the extent that they prevent the Applicants’ solicitor from accompanying the complainants as an adviser before the determination hearing of the Complaints Resolution Committee; and
(b)to the extent that the only persons who may attend a Determination hearing held under the Complaints Resolution Scheme are parties to a complaint, their advisers and only such other persons as all the parties agree may be there present.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 671 of 2006

IRENE SCHRAMM, EVELYN HORNIG, KATHY MITCHELL AND JUNE SMITH

Applicants

And

COMMISSIONER FOR COMPLAINTS ( COMMONWEALTH AGED CARE COMPLAINTS RESOLUTION SCHEME), MEMBERS OF THE COMPLAINTS RESOLUTION SCHEME AND ILLAWARRA DIGGERS AGED AND COMMUNITY CARE RESIDENCE

Respondents

REASONS FOR JUDGMENT

The Applicants seek judicial review of purported decisions of the Commissioner for Complaints of the Commonwealth Government's Aged Care Complaint Resolution Scheme ("the First Respondent") pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").
The two purported decisions made on 28 February 2006 are set out in a letter from the First Respondent to the Applicants' solicitors of the same date. The relevant issues appear under the heading “Legal Representation”. However, the context in which reference is made to legal representation appears from the introduction and accordingly I set out the following:-
“I am responding to your letter of 17 February 2006 regarding procedures at determination hearings held by Complaints Resolution Committees.
The Complaints Resolution Scheme, which has its statutory basis in the Committee Principles 1997 (the Committee Principles) made under the Aged Care Act 1997 (the Act), is based on an alternative dispute resolution model. The Committee Principles provide for negotiation about a complaint and mediation of the complaint.
If a complaint is unable to be resolved by negotiation or mediation, the Secretary to the Department of Health and Ageing must refer the complaint to a Complaints Resolution Committee for determination. This is a form of arbitration. Unless it is dissolved under section 10.64A of the Committee Principles, a Committee must resolve the complaint by making a determination. If the Committee finds that an approved provider has breached its legislated responsibilities, the determination may set out a course of action that the approved provider must follow to address the matters raised in the complaint and ensure that the approved provider complies with its responsibilities under the Act or the Aged Care Principles.
Section 10.81 of the Committee Principles states that, in performing its functions, a Committee:
·    must act with as little formality and as quickly as the requirements of the Committee Principles, and a proper consideration of the issues before the committee, allow; and
·    is not bound by the rules of evidence; and
·    may obtain information about an issue in any way it considers appropriate; and
·    may receive information or submissions orally or in writing; and
·    may consult anyone it considers appropriate.
Legal Representation
The Complaints Resolution Scheme is intended to provide an informal and accessible means to resolve complaints at no cost to the parties. For this reason, the legislature has specifically excluded any entitlement to legal representation at the determination hearing, even though an entitlement to legal representation is normally one of the elements of procedural fairness. I note that Halsbury’s Law of Australia states at paragraph 10-555:
Provision of an opportunity to be legally represented is an element of the content of procedural fairness which may be excluded in an empowering statute or in the rules of a domestic tribunal.
Subsection 10.66(1) of the Committee Principles specifically excludes a person engaged to provide legal representation accompanying a party to the complaint to the determination hearing as an adviser:
A party to the complaint is entitled to attend the determination hearing held by the committee about the complaint, and to be accompanied by an adviser other than a person engaged to provide legal representation.
You state that you have appointed a legally qualified practitioner to be present at the hearing and to act as adviser to Ms Schramm, Ms Smith, Ms Hornig and Ms Mitchell, who are parties to the complaint. You state that you, a solicitor, have also been requested by the complainants to assist them as an adviser at the hearing.
Clearly, both you and another legally qualified practitioner have been engaged by the complainants to provide legal representation (and you are in fact doing so in your letter of 17 February 2006). A plain reading of subsection 10.66(1) therefore prevents you and the other legal practitioner from accompanying the complainants to the hearing as an adviser.
I understand that you attended the mediation in this matter despite the fact that you had previously been engaged by parties to the complaint to provide legal representation. This would have been a breach of subsection 10.58(1) of the Committee Principles and should therefore not be regarded as a precedent.
In correspondence to the parties to the complaint dated 8 February 2006, the Committee Chairperson stated that, should a person engaged by one of the parties to provide legal representation seek to be able to attend the hearing as an observer to the proceedings, the Committee may consider permitting such attendance if there is no objection from any of the parties to the person’s presence. I have been informed by one of the parties to the complaint that they object to any person engaged by any of the parties to provide legal representation attending the hearing either as an adviser or as an observer. Therefore, the Committee cannot allow you or any other person engaged to provide legal representation to attend the determination hearing in any capacity.” (Emphasis added)
The letter also refers to there being no right to a public hearing and otherwise deals with the issue of defamation. It is noted that the letter dated 28 February 2006 appears to be on the letterhead of the “Australian Government – Office of the Commissioner for Complaints”. It is signed by Jennifer Theisinger “Director”. It is my view as indicated later in this judgment that that letter accordingly is a letter from the First Respondent by either a director or a duly authorised officer and can properly be regarded as a letter from the First Respondent.
It is also relevant to set out a relevant extract from the letter dated

17 February 2006 addressed to the First Respondent by the Applicants’ solicitors as follows:-
“2. We have appointed a legally qualified practitioner to be present and to act as adviser to Ms Schramm, Ms Smith, Ms Hornig and Ms Mitchell. I have also been requested by the complainants to assist them as an adviser. Neither that practitioner nor I are engaged to represent the parties within the determination hearing. It is our view that s 10.66(1) of the Principles is very clearly concerned with preventing the parties to committee hearings from presenting their case through lawyers engaged to represent them. Although the Principles prevent the presence of lawyers providing representation at the hearing, there is nothing in the Principles that prevents a lawyer from acting as an adviser, provided that lawyer does not represent the parties. Please advise as to the provision within the Principles, or to case law, which prohibits a lawyer acting as an adviser where that lawyer does not represent the party at the hearing.”
The two decisions arising from the letter dated 28 February 2006 are claimed by the Applicants to be as follows:
(1) A decision that Mr Michael Sergent and/or another legal practitioner may not be present, or act as, advisers to the Applicants at the determination hearing of the Applicants' complaints to the Aged Care Complaints Resolution Scheme;
(2) A decision that the only persons who may attend a determination hearing held under the Complaints Resolution Scheme are parties to a complaint, their advisers, and only such as other persons as all the parties agree may be there present.
The Applicants were granted leave to file in Court an Amended Application on 10 April 2006 seeking the following final orders:
"(1) That the decision (or conduct) of the Commissioner for Complaints (Commonwealth Aged Care Resolution Scheme) and that of those Commonwealth officers whose decisions (or conduct) that the Commissioner conveys, that Mr Sergent and another legal practitioner may not be present as advisers to the complainants, Evelyn Hornig, Irene Schramm, June Smith and Kathy Mitchell to the determination committee hearing presently scheduled for 7 and 8 March and 3, 4, 5 April 2006 be set aside.
(2) That the decision (or conduct) of the Commissioner for Complaints (Commonwealth Aged Care Complaints Resolution Scheme) and that of those Commonwealth officers whose decisions (or conduct) that the Commissioner conveys, that the determination hearing referred to in order 1 may only be attended by the parties to the complaint and their advisers and such other persons as all the parties to the complaint agree may be present be set aside.
(3) A declaration with respect to the determination hearing that the complainants and their advisers have a right to be protected from defamation proceedings by the doctrine of absolute privilege."
The Applicants then sought at the hearing on 6 June 2006 to rely upon what is described as a "FURTHER AMENDED APPLICATION" dated 6 June 2006. In that Further Amended Application the Applicants sought to add the following orders:
(4) Alternatively to order 3, a declaration that the Applicants and their advisers have a right to be protected from defamation proceedings in relation to the determination hearing of their complaint to the Aged Care Complaints Resolution Scheme by the doctrine of qualified privilege.
(5) A declaration that the Applicants have a right to be legally represented at the determination committee hearing of their complaint to the Aged Care Complaints Resolution Scheme.
The Applicants seek an order for costs, and interim orders restraining the Commissioner for complaints from setting down the hearing of the complaints.
The Applicants have relied upon detailed submissions comprising 56 pages together with an affidavit of Mr Sergent comprising approximately 550 pages (including exhibits). The First and Second Respondents relied upon a written outline of submissions comprising 10 pages, whilst the third Respondent's outline of submissions relied upon, dated 31 May 2006, comprised 8 pages.
The Applicants then sought to rely upon submissions in reply of a further 18 pages. Hence at the hearing of this matter conducted on 6 June 2006 I indicated to the parties that I had read the submissions and the parties accordingly made relatively brief submissions. However, it is noted that during the course of the hearing certain orders were sought and obtained regarding confidentiality and objections taken to the affidavit material.
From the written submissions, it appears to me that the issues raised in this application include the following:
(1) Whether the purported decisions constitute a decision to which the ADJR Act applies;
(2) If the purported decisions are decisions reviewable pursuant to the provisions of the ADJR Act, whether there are any grounds upon which the decisions may be reviewed;
(3) Whether the Court has any jurisdiction to entertain the Applicants for declaratory orders pursuant to the provisions of the ADJR Act;
(4) If the Court has jurisdiction to entertain the application for declaratory orders, whether there are any grounds upon which declaratory orders could be made.

Preliminary Issues

At the hearing I granted leave to the Applicants to rely upon the further Amended Application, save and except that I refused leave for the Applicants to rely upon order 5 sought in that application. I indicated at the hearing that I would provide reasons in this judgment.
The reason why I refused leave to the Applicants to seek a declaration that they have "a right to be legally represented at the determination committee hearing of their complaint to the Aged Care Complaints Resolution Scheme" was that in my view that question has not at any time been the subject of the purported decisions now sought to be reviewed.
I otherwise accept that the reason why a right to be legally represented has not been the subject of any decision essentially arose as a consequence of correspondence from Mr Sergent, which appears in his affidavit sworn 2 March 2006 as Annexure G (page 58). It is clear in that correspondence that Mr Sergent asserts that he and another were not engaged "to represent the parties within the determination hearing". He otherwise seeks to draw a distinction between a lawyer acting as an adviser where that lawyer does not represent the party at the hearing.

A relevant extract from that letter is set out previously in this judgment in paragraph 4.
In my view, the submissions made for and on behalf of the First and Second Respondents are correct when it was submitted that at no time was it contemplated that there be legal representation at the committee hearing; and indeed the correspondence expressly disavowed that proposition, with the result that the purported decisions did not address the question of legal representation. Hence it would be inappropriate for this Court, in my view, upon review under the ADJR Act, to consider making orders in relation to matters not previously agitated or the subject of the purported decisions.
At the outset in my view it is appropriate to deal with proposed orders 3 and 4 which seek the declaration that with respect to the determination hearing the complainants and their advisers have a right to be protected from defamation proceedings "by the doctrine of absolute privilege"; or the alternative, a declaration that they have the right to be protected from defamation proceedings by the "doctrine of qualified privilege".
In my view, the submissions made for and on behalf of the First and Second Respondents, that there is no jurisdiction under the ADJR Act to entertain the Applicants' application for declaratory orders are correct.
It is appropriate to set out s.16 of the ADJR Act as follows:
“(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make either or both of the following orders:
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.
(3) …
(4) The Federal Court or the Federal Magistrates Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.”
It is clear upon a proper reading of sub-s.16(1)(c) that the Court on application for review in respect of a decision has a discretion to make a number of orders, including "an order declaring the rights of the parties in respect of any matter to which the decision relates". It is further clear that s.16(2) provides a discretionary power upon application for an order of review "in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision", to make orders declaring the rights of the parties in respect of any matter to which the conduct relates.
It is noted, however, that the declaratory relief under which the Court has a discretion to make under either sub-s.16(1)(c) or sub-s.16(2)(a) should either be exercised in respect of the matter "to which the decision relates" in relation to the former subsection and "in respect of any matter to which the conduct relates" in relation to the latter subsection.

In my view, the applications for declaratory relief in this application go beyond the power which this Court has, pursuant to s.16 of the ADJR Act. In the alternative, I cannot see any dispute between the parties in relation to this issue nor does the declaratory relief, in my opinion, appear to be in respect of any matter to which the decision relates or indeed any matter to which the conduct relates. To a large extent, the declaratory relief sought would appear, at the very least, to be premature or what might be described as "academic" (see Swan Portland Cement Ltd v Minister for Science, Customs and Small Business (1989) 88 ALR 196).
Further, in my view, I cannot see any utility in making the declaration of rights sought where there is little or no material before the Court to suggest that the Respondents are engaging in any acts or conduct not in conformity with statutory powers or that it is desirable to give some direction to ensure that the Respondents act in conformity with their powers and thereby make appropriate declarations (see dictum of Brennan J in Church of Scientology v Woodward (1982) 57 ALJR 42 at 55).
I note in passing that the Applicants have sought to rely upon the operation of s.16(2)(a) of the ADJR Act, but, in my view, for the reasons given, that subsection does not apply and nor in fact does

sub-s.16(1)(c) of the ADJR Act apply. For these reasons, orders 3 and 4 are refused.
I should add that, to the extent that the Applicants seek to rely upon the powers of the Court pursuant to s.16(2)(a) of the ADJR Act, I further accept the submissions made for and on behalf of the third Respondent, that in any event the Applicants have failed to identify the "conduct" sought to be relied upon.
I have carefully considered the submissions of the Applicants and note that, whilst there has been some reference in correspondence to observations by the First Respondent expressing doubt as to whether absolute or qualified privilege would be available to a party making a defamatory statement in the course of a determination hearing, it is clear in the correspondence dated 28 February 2006 from the Commissioner to Mr Sergent that the author appropriately states, that this "is a matter that can only be determined by a Court". I am persuaded that is a correct assessment of the reality of the present claim, which no doubt can be dealt with by an appropriate Court, if necessary.
Accordingly, it is my view that the Court should properly consider in this judgment orders 1 and 2, set out earlier, which are sought by the Applicants. Having decided that it is not appropriate for the Court to make orders in the form of orders 3 and 4 and, for the reasons given and having already ruled that the Applicants not be granted leave to seek order 5 in the further Amended Application.

Relevant ADJR provisions

All parties referred to the following relevant provisions of the ADJR Act.
Section 3(1) provides the following relevant definitions:-
"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment ;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.
Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.
"enactment" means:
(a) an Act, other than:
(i) the Commonwealth Places (Application of Laws) Act 1970; or
(ii) the Northern Territory (Self‑Government) Act 1978; or
(iii) an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c) an instrument (including rules, regulations or by‑laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb) an instrument (including rules, regulations or by‑laws) made under an Act or part of an Act covered by paragraph (ca); or
(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
Note: Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).
Section 3(2) relevantly provides:-
“(2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.”
In support of the application for relief the Applicants seek to rely upon s.5(1)(a), (d), (e), (f) and (h) which relevantly provide:-
“(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
…
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
…
(h) that there was no evidence or other material to justify the making of the decision;
…”
Reference was made to s.5(2)(b) and (g) in support of submissions that there had been an improper exercise of power. Those sub-sections provide as follows:-
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
…
(b) failing to take a relevant consideration into account in the exercise of a power;
…
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
…”
In support of submissions that there was no evidence or other material to justify the making of the decision (s.5(1)(h)) the Applicants also referred to s.5(3)(b) which provides:-
“(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
…
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
Further, the Applicants seek to rely upon s.6(1)(a) and (d) which relevantly provide:-
“(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds:
(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;
…
(d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;
…”

The issues

The questions otherwise identified earlier in this judgment now remain to be considered when deciding whether to make orders 1 and 2 in the application namely:
(1) Whether the purported decisions constitute decisions to which the ADJR Act applies?
(2) If the purported decisions are decisions reviewable pursuant to provisions of the ADJR Act, whether there are any grounds upon which the decisions may be reviewed?

Whether the purported decisions constitute decisions to which the ADJR Act applies?

Applicants’ submissions

The Applicants submitted that each of the decisions are decisions to which the ADJR Act applies. Reference was made to the definition of a decision to which the Act applies and what is meant by the “making of a decision” set out in s.3 of the ADJR Act. It was submitted by the Applicants that the breadth of the definition particularly the definition found in s.3(2)(d) of the ADJR Act makes it plain that virtually any administrative decision has the potential to be characterised as a ‘decision’ for the purposes of s.5 of the ADJR Act. The Applicants submitted the only threshold issue to be asked as to whether actions or omissions are ‘decisions’ for the purpose of the ADJR Act was “determined by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 323 at 338 (Bond) to be whether a ‘decision’ has the required ultimate or operative character”. The Applicants submitted that a ‘decision’ is not a decision for the purpose of the ADJR Act if it is a mere expression of opinion or statement which can have no affect on a person.
The Applicants submitted that the Commissioner’s decisions could properly be regarded as of an ultimate or operative character and have an affect upon the Applicants.
It was further submitted that both decisions could properly be regarded as a decision ‘of an administrative character’ as the Commissioner via the director of his office was clearly undertaking administrative decisionmaking of the kind covered by the ADJR Act.
When dealing with the issue of whether the decision was made under an enactment, it was submitted that the Committee Principles 1997 (the Principles) are legislative rules made pursuant to the power granted to the Minister for Health and Aged Care to make such principles under s.96-3(3) of the Aged Care Act 1997 (Cth). It was submitted that the decisions of the Commissioner had been purportedly made under s.10.66 of the Principles. Section 10.66(1) section provides:-
“A party to a complaint is entitled to attend the determination hearing held by the committee about the complaint, and to be accompanied by an adviser other than a person engaged to provide legal representation.”
The Applicants submitted that this is a case in which the question of whether the required degree of connection exists between the grant of legislative power and the decision made by the decisionmaker would not arise to ‘stymie their application’.
It was noted that the ADJR Act only entitled Applicants to seek judicial review if they could be regarded as persons ‘aggrieved’ by the decision. It was submitted that s.5 of the ADJR Act does not restrict applications to those persons who can establish that they have a ‘legal’ interest at state. It was submitted that a person aggrieved is a person who can show a grievance which would be suffered by them as a result of a decision provided that the grievance suffered can be differentiated from that experience by an ordinary member of the public. (See Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79).
In this instance it was argued the Applicants had a complaint accepted, assessed and referred for resolution through determination by a determination committee of the Complaints Resolution Scheme (the Scheme). It was argued the Applicants must present their complaint under the Scheme and their interest in the matter particularly in relation to how the determination hearing will be conducted differentiates them from ordinary members of the public and gives them standing required to bring the application for judicial review.
In written submissions in reply the Applicants also referred the Court to Schedule 1 of the ADJR Act which provides a list of classes of decision which are not decisions to which the Act applies. It was noted that the schedule does not include a reference to the Aged Care Act 1997. It was argued further there is no basis upon which the ADJR Act excludes decisions of the Commissioner of the Committee in relation to s.10.66 of the Committee Principles. The Court was taken to specific references to the High Court decision in Bond and in particular the following extracts at p.335 per Mason CJ,
“As Deane J noted in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100; 31 ALR 571 at 590, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context the word may signify a determination or any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has the more limited meaning, the word can refer to a determination whether final or intermediate, or more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney (FLR at 100; ALR at 590).”
The Applicants submitted that the decisions set out in the correspondence dated 28 February 2006 followed the correspondence from the Applicants’ solicitors which ultimately led the Commissioner to indicate that the issues were being considered particularly those raised in the letter from the Applicants’ solicitors dated 17 February 2006 referred to in paragraph 4 of this judgment. It was submitted by the Applicants that the refusal to allow Mr Sergent to attend the determination hearing of the Applicants’ complaints as their adviser was ‘one which was express or impliedly authorised by the principles’. The Director of the Commissioner’s office, it was submitted relied upon the principles in informing Mr Sergent that he may not attend the determination hearing as an adviser and observer or in any capacity when it was stated,
“A plain reading of s.10.66(1) therefore prevents you and the other legal practitioner from accompanying the complainants to the hearing as an adviser.”
That decision following on from the correspondence was made by the Commissioner pursuant to the powers granted by s.10.34A(1)(a) of the Principles which provided a power to ‘supervise the chair persons and other members of the Complaints Resolutions Committees” and by paragraph (e) of that subsection “to manage the determination process”. The Applicants submitted that it is through its statutory power that the Director/Commissioner decided that “the Committee cannot allow you or any other person engaged to provide legal representation to attend the determination hearing in any capacity”.
During the course of submissions the Applicants referred the Court to the text entitled, “In Control of Government Action” by Creyke & McMillan (Butterworths 2005) and in particular a reference by the learned authors to a Full Court of the Federal Court decision in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20 that “conduct overtaken by a subsequent decision is not independently reviewable but should be considered in the context of the review of the decision itself”.
Specific reference was made to the Creyke & McMillan publication (at p.80) where the authors state the following in relation to the concept of ‘decision’ post Bond:
“The First area of difficulty post-Bond is to decide whether an action is merely a ‘step along the way to an ultimate determination’, and not independently reviewable under the ADJR Act; or, on the other hand, a ‘substantive, final and operative’ decision that is reviewable. Decisions in the former category include Tasmanian Conservation Trust Inc v Minister for Resources (1995 55 FCR 516 (an ‘in principle’ export approval granted before an export application was formally lodged); NSW Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 (a decision by ATSIC to set aside funds for one purpose rather than another); Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 (a decision by the Commissioner on how to vote at a creditors’ meeting held under the Bankruptcy Act; and Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 32 FCR 158 (a letter of advice on whether a proposed activity would be taxable).”
The Applicants submitted that the cases reviewed by the learned authors served to distinguish the decision in those cases from the present application. It was submitted that the decision whereby

Mr Sergent and another legal practitioner may not attend the determination hearing in any capacity should be regarded as operative, final and affects a substantive right to have an adviser.
It was submitted that it would be artificial to argue the Applicants’ case on the basis that there has merely been ‘conduct’ which is reviewable. In this instance the Applicants rely not on the process undertaken to arrive at the decision but on the result that was reached after the process of ‘consideration of the issues’ had been completed.
The issues to which orders 1 and 2 relate it was submitted are not best characterised as procedural, hence the Applicants do not focus on ‘conduct’. However, it was submitted by the Applicants that ‘the consequences that flow from the presence of a person at a hearing could be characterised as procedural to the extent that the presence of an adviser necessarily entails the idea that an adviser would be able to advise”.
The Applicants submitted that the moments “at which an opportunity is given to complainants to take advice would be steps in the sequence of events that would need to occur at a procedurally fair hearing”.

The decision to “prohibit” the attendance of an adviser is to be “contrasted with such a procedural conduct”. It was submitted the scheme “proposed such a procedural inference when it asserted that an observer ‘would not be permitted to address the committee, to communicate with any of the parties during the hearing’”. However, it was further submitted that “since the decision to exclude Mr Sergent and another legal practitioner attending ‘in any capacity’ had been taken, the conduct of not permitting an observer to communicate was conduct in relation to a hypothetical situation”.
The Applicants by way of reply to submissions made on behalf of the First and Second Respondents where reference had been made to the decision of the Federal Court in Edelsten v Health Insurance Commission (1999) FCR 56 at 68 (Edelsten) submitted that that case can be distinguished from the present application. In the present application it was submitted that the Applicants are each given a statutory right to be accompanied by an adviser to a determination hearing. The Applicants otherwise refer to the decision of the Court in Edelsten and in particular the following extract in the joint judgment of Northrop and Lockhart JJ at p.761 where their Honours state:-
“Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; and it must have the essential quality of being a substantive as distinct from a procedural determination.
The rationale underlying Bond is that parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have real impact upon a person’s right’s, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person’s position.”

The Applicants otherwise sought to distinguish cases relied upon by the First and Second Respondents. The present case it was submitted however does not raise problems about whether a decision is final or not and can be distinguished from those cases relied upon by the Respondents.

First and second respondents submissions

The First and Second Respondents argued that the Director’s communications do not constitute a decision to which the ADJR Act applies and accordingly are not reviewable. In the course of submissions reference was made to correspondence dated 16 January 2006 where the Director of the First Respondent’s office (the Director) having notified the Applicants of the determination hearing that had been appointed advised the Applicants in the following terms:-
“You are entitled to attend and to be accompanied by an adviser/support person. However, you are not permitted to bring along a person engaged to provide legal representation for you. Hearings are not open to other observers or to the general public.”
It was noted that on 8 February 2006 having become aware that

Mr Sergent wished to attend the determination hearing “as an adviser/observer” the chair person of the committee wrote to

Mr Sergent to bring to his attention s.10.66(1) of the Principles.

That section has been set out earlier in this judgment.
It was noted in the Respondents’ submissions that s.10.82(5) of the Principles provides that subject to these Principles the “procedures of the meeting is as decided by the committee”. Any reference to a meeting is meant to be a reference to a meeting for the purpose of a determination hearing. Reference was made to the correspondence from Mr Sergent set out earlier and the reply dated 28 February 2006 which is the subject of this application. It was submitted that the communications do not contain decisions which are subject to the ADJR Act. It was submitted that this is because,
“(a)The Director’s communications are not reviewable decisions. They were neither operative, determinative or substantive. At their highest, they reflected, but did not themselves constitute, determinations of a procedural character, which were necessarily anterior to an ultimate decision. The better view is that they did not go so high; they were nothing more than an expression of opinion on the part of the Director as to the effect of ss.10.66(1) and 10.82(5). They do not of themselves determine anything. The Director did not have the authority or responsibility to relevantly determine or give effect to that opinion, they being matters reserved by the Committee Principles for the Committee.
(b)They were not made under an enactment, in that:
(i) the Director was not required or authorised by the Committee Principles or the Aged Care Act to communicate her opinion; and
(ii) the opinion that was communicated by the Director derived no force or effect by the operation of the Committee Principles or the Aged Care Act.”
(footnotes omitted)
Accordingly it was submitted there is no jurisdiction under s.5 of the ADJR Act to review either of the Directors purported decisions. Conduct it was submitted whilst relied upon by the Applicants has not been particularised.

The third respondent’s submissions

The Third Respondent submitted that the letter dated 28 February 2006 does not contain a decision. Again, reference was made to the High Court decision in Bond. It was submitted that it is clear from that case that the word ‘decision’ means ‘an ultimate or operative determination and not a mere expression of opinion or statement which can have no effect on a person’. The letter relied upon it was submitted by the Applicants expresses no decision but simply is an expression of the opinion of the writer on the questions of the meaning and operation of the Principles and procedures likely to be followed by the Committee. The author of the letter, it was argued, was not a member of the Committee and not a decision maker in any way relevant to the proceedings and significantly was not a Respondent to the proceedings. It was argued the Committee is empowered to make decisions about its procedures and the Director of the Office of the First Respondent has no such power. Specific reference was to s.10.81 and 10.82 of the Principles as follows:-
“10.81 Procedures generally
(1)In performing its functions, a committee:
(a) must act with as little formality and as quickly as the requirements of these Principles, and a proper consideration of the issues before the committee, allow; and
(b) is not bound by the rules of evidence; and
(c) may obtain information about an issue in any way it considers appropriate; and
(d) may receive information or submissions orally or in writing; and
(e) may consult anyone it considers appropriate.
(2)This section applies to a Determination Review Panel in the same way as it applies to a committee.
10.82 Meetings
(1)The committee may hold the meetings that the committee considers necessary for the performance of its functions.
(2) The chairperson may, at any time by written notice to the other members, call a meeting at the time and place stated in the notice.
(3) The. Secretary may, by written notice to the chairperson, direct that a meeting be held at the time and place stated in the notice.
(4) If, at any time, a majority of the members asks, by written notice given to the chairperson, that the chairperson call a meeting, the chairperson must call a meeting as soon as practicable.
(5) Subject to these Principles, the procedure of a meeting is as decided by the committee.
(6) The chairperson may invite a person to attend a committee meeting to advise or tell the committee about anything.
This Part provides for procedures to be followed by a Complaints Resolution committee and a Determination Review Panel.”
It was submitted that as the opinion of the Director has no operative effect and did not determine any rights that the Applicants might have, the matters referred to in the letter of 28 February 2006 by the Applicants should not be regarded as ‘decisions’ within the meaning of the ADJR Act and that accordingly the Court does not have jurisdiction to make the proposed orders 1 and 2 sought by the Applicants.

Reasoning

In my view the decisions are properly regarded as decisions of a kind which are subject to review pursuant to the provisions of the ADJR Act. I accept the submissions of the Applicants that the breadth of the definition found in s.3(2)(d) of the ADJR Act permits the finding that in this instance the decisions could each be characterised as a ‘decision’ for the purposes of s.5 of the ADJR Act. I do not regard each decision as merely expressing an opinion. The decisions do have what I would accept to be an operative character and clearly have an affect upon the Applicants.
The Principles are clearly legislative rules made pursuant to the power granted to the Minister for Health and Aged Care to make those principles under s.96-3(3) of the Aged Care Act 1997. The decisions of the Commissioner have been made pursuant to s.10.66 of the Principles and I am satisfied that there is a sufficient connection between the grant of legislative power to the Minister and then arising from the Principles to the decision maker to establish that both that the decisions have in fact been made under an enactment and are decisions for the purposes of the ADJR Act.
I am further satisfied that the Applicants could properly be regarded as having appropriate standing and be described as persons ‘aggrieved’ by the decisions. I am satisfied that having once presented the complaint under the Scheme then the manner in which the hearing is conducted is sufficient to distinguish the Applicants from ordinary members of the public and provides them with the requisite standing as submitted by the Applicants.
If Parliament had intended to exclude from review under the ADJR Act decisions made as a result of powers extended by the Aged Care Act 1997 then it would have been a simple matter for that Act to be included in Schedule 1 of the ADJR Act. The absence of its inclusion in that schedule strengthens my conclusion that both decisions are indeed decisions which are subject to the ADJR Act.
When considering s.10.66(1) of the Principles it is clear that a party to a complaint is entitled to attend the determination hearing and “to be accompanied by an adviser other than a person engaged to provide legal representation”. The decisions therefore appear to me to be decisions which are either expressly or impliedly authorised by the Principles and accordingly could properly be regarded as decisions of a kind which are subject to the ADJR Act.
I do not accept the submissions of the First and Second Respondents adopted by the Third Respondent and these decisions were neither operative, determinative or substantive. They clearly determine the right to be accompanied by an adviser other than a person engaged to provide legal representation who may or may not be a lawyer.
I note and apply the decision of the Full Court of the Federal Court in Edelsten and in my view the decisions in this case could properly be regarded, to paraphrase Her Honour’s decision, as having a ‘real impact’ upon the rights or privileges of the Applicants. The decisions in my view could not be regarded as “mere stepping stones”. The right to be accompanied by an adviser other than a person engaged to provide legal presentation is a significant entitlement. It is particularly significant when dealing with issues which clearly, as in the present case, tend to have a strong emotional content. Indeed the presence of an adviser in most cases would assist in proceedings and as with other advisers if proceedings reach a stage where the Tribunal or Court is not assisted by an adviser then the adviser’s role may be terminated.
In my view the First and Second Respondent’s submissions are incorrect. It is submitted that there is no jurisdiction under s.5 of the ADJR Act to review the decisions.
I note the submissions of the Respondents that the Committee is empowered to make decisions about its procedures and the director of the office of the First Respondents has no such power. I note further the Respondent’s reference to the Federal Court decision in Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158 (Pegasus). In my view the present case can be distinguished from that decision as I am satisfied that rather than there being a simple communication where information is conveyed verbally that the present correspondence for the reasons given is sufficient to constitute decisions reviewable under the ADJR Act and ultimately the decisions are decisions under an enactment notwithstanding that an individual has been the author of the letters conveying the decision. In the absence of any evidence to the contrary it can be presumed that that decision was authorised by the Commissioner and has been made under Rules made pursuant to an enactment by the Minister.

The decisions in this instance cannot be regarded as mere advice but rather decisions which have a significant impact upon the rights of the Applicants to be accompanied by an adviser other than a person engaged to provide legal representation.
I accept as submitted by the Applicants that the correspondence dated

8 February 2006 from the Chairperson of the Committee which in part stated,
“As you have been engaged by the complainants to provide legal representation the Principles clearly prohibit your attendance at the hearing as an adviser. The committee does not have any discretion to override this legislative provision and to admit your attendance as an adviser.”
I accept the submissions by the Applicants that ultimately I am satisfied that there is a final decision taken both by the officer of the Commissioner and by the Committee Chairman. In the circumstances I accept that this application can be distinguished from the facts and circumstances of the taxation case of Pegasus.
For the reasons set out in paragraph 3 of this judgment I am satisfied that the letter dated 28 February 2006 is a letter from the First Respondent.

If the purported decisions are decisions reviewable pursuant to the provisions of the ADJR Act, whether there are any grounds upon which the decisions may be reviewed

Applicants submissions

The Applicants seek orders pursuant to the ADJR Act and in particular ss.5(1)(a) or 6(1)(a) which would have the effect of enabling the Applicants to have Mr Michael Sergent and/or another legal practitioner Mr. Simon Doctor to act as their advisers during the determination hearing of the complaint to the Scheme.
Reference was made to the letter dated 28 February 2006 where reliance was placed upon what is described as a “plain reading” of s.10.66(1) of the Principles as providing a basis for the decision that Mr Sergent and another legal practitioner would be prohibited from accompanying the complainants to the hearing as advisers.
After referring to s.10.66(1) the Applicants submitted that a plain reading of that section “makes it apparent that the section is a statement about entitlements (see WABZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC30 (WABZ)). Specific reliance was placed upon the joint judgment of their Honours French and Lee JJ where at [67] the Court stated in part the following:-
“[67] The effect of the cases referred to is that s 427(6)(a) applies to Applicants for review who appear before the tribunal to give evidence. An Applicants so appearing is ‘not entitled … to be represented before the Tribunal by any other person’. But that is a statement about entitlements. It does not include the rules of procedural fairness in so far as they may require representation in the circumstances of a particular case. …”
As it was noted that in WABZ the Court further stated the following:-
“[69] The tribunal clearly has a discretion to allow a person to be represented before it. The question that arises is whether there may be circumstances in which a decision to disallow representation of an application before the tribunal amounts to a denial of procedural fairness.”
It was submitted that s.10.66(1) of the Principles is similar to s.427(1) of the Migration Act 1958 as it provides a “statement about entitlements and accordingly does not displace the requirement of procedural fairness” (See Re Minister for Immigration & Multicultural Affairs Ex parte Cassim (2000) 175 ALR 209). It was argued that there is no manifestation, clear or otherwise, of a statutory intention to displace procedural fairness in the Principles. Reference was made to the Principles being beneficial legislation and where in s.10.35 it is mandatory for the committees to foster a positive view of complaints as opportunities to reconsider and enhance the delivery of aged care services and programs and amongst other things to ensure that the scheme includes appropriate measures to ensure and specifically remind parties that anyone making a complaint or providing information about a complaint should not be subject to victimisation or intimidation.
It was conceded by the Applicants however that the Full Court of the Federal Court in WABZ held the law of procedural fairness cannot impose a “universal requirement” for representation before a Tribunal in oral hearing.
It was submitted in the present case that in discharging the obligations to afford procedural fairness in this case the Court should consider the beneficial nature of the Principles together with the objects of the Act under which the Principles are made.
It was further argued that the Applicants had legitimate expectations that they would continue to have access to the advice of Mr Michael Sergent to whom the Secretary of the Department of Health and Ageing, the Commissioner, the Director of the Office of Commissioner, administrative staff of the Scheme and the Chairperson of the Complaints Resolution Committee assigned to determine the complaint had each addressed all their correspondence arising out of the complaint. It was argued that Mr Sergent was in a position where he became a primary repository of knowledge as to how the scheme was dealing with the complaint.
Reference was then made to correspondence to support this submission. It is not necessary to recite that correspondence in this judgment save to observe that there has been extensive correspondence between the Applicants’ solicitors and the Office of the Commissioner and others involved in the administration of the scheme.
It was submitted that it is quite self-evident that the attempt to deprive them (the complainants) of the adviser who had been the sole recipient of communications from the scheme and who has advised them throughout 2004, 2005 and 2006 is unfair in the sense in which Courts have understood that term. Reliance was placed upon the decision of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs Ex parte Lam [2003] HCA 6 at [37] where the Court stated,
“… the concern of the law is to avoid practical injustice.”
Reference was made to a letter dated 10 February 2006 addressed to the Applicants care of Mr Sergent from the Secretariat Support Officer who referred to a Commissioner’s office letter of 16 January 2006. That letter referred to advice that s.10.66(1) of the Principles precludes an adviser from being a person engaged to provide legal representation. Advice was given in the letter of 10 February 2006 regarding the hearing date then scheduled for 7-9 March inclusive and 29-31 April inclusive and the author of the letter then requests the Applicants to advise the names of people “who will be attending the hearing”. In the same letter the following appears,
“However should a person engaged by one of the parties to provide legal representation seek to be able to attend the hearing as an observer to the proceedings the Committee may consider permitting such attendance if there is no objection from any of the parties to the proceedings to the person’s presence”.
The Applicants submitted that there is no section of the Principles referred to in support of this requirement and it was submitted no such reference can be made because the Principles are silent on the question of legal representatives as observers and indeed are silent in relation to the question of observers generally. It is noted that correspondence further seeks to clarify the role of observers.
It was argued that reference to s.10.81 of the Principles is relevant which provide in part the following,
“(1)   In performing its functions a committee:
…
(b)     is not bound by the rules of evidence; and
(c) may obtain information about an issue in any way it considers appropriate; and
(d)     may receive information or submissions orally or in writing; and
(e)     may consult any one it considers appropriate.”
It was submitted that having regard to those broad powers to the committee to receive information from ‘any one it considers appropriate’ then the claim that a lawyer that has been engaged to provide legal advice or representation to a party during the assessment of the complaint might not be a person the committee could possibly consider an appropriate person from whom relevant information might be obtained during the course of a determination hearing is untenable pursuant to the Principles. It was submitted that a lawyer who has been involved throughout the assessment process as in the present case and who has been the sole recipient of correspondence from the scheme to the complaints has considerable knowledge as to the nature of the complaint. It was further submitted that the resolution of the complaint by determination might occur more quickly with the information provided by such a lawyer. It was argued that as a matter of common sense such lawyers would need to be able to communicate with the clients for whom he or she had acted and to do so during the hearing. Hence, it was submitted that the claim that the legal representative is present as an observer “would not be permitted to communicate with any of the parties during the hearing” finds no support from s.10.66(1) of the Principles.

Reference was made to the following extract from the letter of

28 February 2006 where the Office of the Commissioner states:-
“There are good reasons for a committee to limit attendance at a hearing to the parties to the complaint, their advisers and any other persons only if all the parties to the complaint agree to their presence as observers.”
It was submitted that one reason is advanced in support of the limitation namely the following:-
“The material about a complaint that must be considered by a Committee at a determination hearing contains personal information about individuals and information that relates to the affairs of an approved provider. This information is protected information under s 86-1 of the Act. Committee Members have acquired this protected information in the course of performing duties or exercising powers or functions under the Act. Therefore the Committee Members may be committing an offence if they disclose the protected information other than to the persons to whom the information relates, or to persons authorised by the persons to whom the information relates to receive it, by holding a determination hearing (see subsection 862(1) of the Act).”
The Applicants submitted that the “good reason” relied upon by the Commissioner through the director of his office for excluding observers should not apply to Mr Sergent because the scheme, the secretary, the Commissioner and the Chairperson of the Committee had been disclosing “protected information” to Mr Sergent for more than two years during the assessment of the complaints. It was argued those disclosures had occurred lawfully in the course of Mr Sergent being the adviser of the Applicants and identification of him as a party to the complaint as a result of his role as an advocate under the scheme.

It was argued that procedural fairness in this particular case necessitates the presence of Mr Sergent and Mr Doctor as advisers to the Applicants at the determination hearing. In the alternative it was argued the entitlement of the Applicants is to enable Mr Sergent and Mr Doctor to attend as observers and communicate with the Applicants in their capacity as observers in their capacity as what might be described as a McKenzie friend. The Applicants further submitted they have a right to be represented by an agent at the determination hearing.
As I understood the Applicants’ submissions, reliance was placed upon what is described as common law right of agency and/or on the basis of the content of procedural fairness required in the circumstances of this particular complaint. It was submitted the Applicants have a common law right to be represented by an agent. It was submitted that s,10.66 does not ask the common law requirement that procedural fairness must be accorded to persons or entities participating in the scheme.

It was argued the requirement of fairness involves giving equivalent rights to all parties at the hearing and it was noted that s.10.66(4) expressly provides that the Committee may allow an adviser to address the committee. It can be concluded therefore that the Principles do not by implication remove the common law right to representation given the approved care providers explicitly stated right to representation in s.10.66(2). It was submitted it is difficult to imagine that a statutory intention exists to deny representation by one side but not the other.
Reference was made to s.10.66(5) of the Principles which provides:-
“(5) If one of the key personnel, or another employee, of the relevant approved provider represents the approved provider, the approved provider is bound by any representations made, or action taken, by the key personnel or other employee during, or for, the determination hearing”.
That requirement it was argued places the approved care provider’s representative in a position similar to that of a lawyer representing a client at a hearing and therefore suggests that the representation being provided for by statue is representation in a traditional sense rather than being simply a provision for a so called McKenzie friend. It would also have a right of addressing a committee on behalf of the approved care provider. Reference was made to the definition of “address” in sub-s.10.66(6) which is defined to mean “make submissions or present evidence”. Reference was made to the Principles which permit any one to make a complaint and an affected as care recipient or his or her representative to make a complaint. It was argued that in order to accord procedural fairness to parties representation will often be required by an agent since the definition of what it means to “address” a determination committee is defined and thereby confined to the Principles, that is making submissions and presenting evidence. Beneficial legislation it was argued seeks to include participation rather than create situations that would inevitably increase the possibility or likelihood of exclusion. Reliance was also placed upon what are described as the User Rights Principles 1997 made under sub-s.96-1(1) of the Aged Care Act and rights of the recipients of care who receive their care at a residential care service. It was submitted that representation of many of those who are ordinarily in need of care make it apparent the Aged Care Act could not have intended to have nullified or limited the common law right to representation by an agent within that scheme.
In the alternative it was submitted that s.10.66(1) is aimed at the question of an entitlement of parties to be accompanied by persons engaged to provide legal representation. It was submitted that the “representation” of a party is a different activity to the giving of “advice” to a party. Section 10.66 contains no bar, it was argued, to an entitlement of a party to be accompanied by a person engaged to provide legal advice.
It was further argued that the common law duty to accord procedural fairness requires that in the circumstances of the complaint to be heard by the Committee that the Applicants are entitled to be represented by an agent. It was argued that the complaint had been set down for a six day hearing which of itself suggests the complex nature of the complaint. Further it was noted that none of the Applicants have any experience in making submissions or presenting evidence in a determination hearing or indeed in any other setting. Further it was noted the Applicants have limited education. Reference was made to the decision of Woodward in Krstic v Australian Telecommunications Commission (1988) 16 ALD 751 where in part the Court stated at 753-4 the following,
“The question whether a person in the Applicants’ position should be allowed assistance or representation by a person other than a lawyer is more difficult. In my view it depends upon the ability of the person concerned to conduct his or her own case.”
It was submitted that the contest between the Applicants and the Third Respondent is clearly of an adversarial nature and it is a case where mutual confrontation and associated rights of cross-examination should be implied.
Legal representation it was further submitted should be available to the Applicants at the determination hearing.
Apart from a denial of procedural fairness it was argued that the decision that certain persons may not be advisers to the Applicants is ultra vires. Reference was made to the High Court decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 where the Court stated in relation to discretionary decision making the following:-
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. [See Norbis v Norbis (1986) 161 CLR 513 ar 518-19 per Mason and Deane JJ] And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v R [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ] in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.”
In the present case it was submitted that all four types of errors identified by the High Court in the House v R (1936) 55 CLR 499 are present in the decision of the Commissioner. It was submitted that in acting upon the wrong principle the Commissioner had no basis upon which the input of other parties may be taken into account as to who may attend a determination hearing. In the alternative the error in adopting that approach could properly be regarded as being guided by extraneous or irrelevant matters. Further it is argued the Commissioner made a mistake as to the facts namely the fact that Mr Sergent had an “entitlement” under s.10.66(1) of the Principles to be present at the determination hearing by virtue of being what the Applicants described as a “party to the complaint”.
It was further argued that there had been a failure to take into account a material consideration namely that the scheme which the Commissioner overseas had dealt solely with the Applicants through Mr Sergent.
It was further submitted that the decision of the Commissioner was an improper exercise of powers on the basis that relevant considerations were not taken into account (see ADJR Act s.5(1)(e) and (2)(b)). It was argued that the decision was an improper exercise of the powers granted to the Commissioner under the Principles in that relevant considerations were not taken into account in the exercise of the power. The scope and purpose of the Aged Care Act, the Complaints Resolution Scheme and the Committee Principles it was submitted all imply that effective resolution of the particular complaint will entail giving the Applicants access to the advisers who participated in the assessment of the complaint. There is nothing in the legislation it was argued setting up the scheme to suggest that the Applicants should not be entitled to the adviser which the scheme has relied upon. To do so would put them at a disadvantage in comparison to other complainants using the scheme and be contrary to the intent of the Act and the Principles. It is in this regard that as I understand it the claim is made that these considerations being relevant were not taken into account by the Commissioner. Reliance was placed upon the well-known decision of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 in support of this submission.
In the alternative it was submitted that the decision of the Commissioner was an improper exercise of the power granted under the Principles in that the decision was unreasonable (see ADJR Act s.5(1)(e) and (2)(g)). Reference was made to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (7ALNN 79B, FCA 26 February 1985) and in particular the following passage,
“But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.” [Emphasis added]
It was submitted that that extract has direct application to the present case. The Commissioner has no basis for restricting those who may be present and by implication those who may assist the Applicants. It was argued the fact that Mr Sergent is a party to the complaint and has advised the Applicants for 17 months with full knowledge of the scheme are also facts to which the Commissioner had access.
It was further argued that the Commissioner had otherwise made an error of law in the interpretation of s.10.66 of the Principles.
An attack was also made on the decision that the proceedings not be held in public. As I understood the submissions of the Applicants it was submitted it is in the public interest that the determinations be and be seen to be open, transparent and accessible and no power is given by the Principles to exclude any one from observing a determination hearing nor is there any power given to conduct the hearings in private nor is there any power given explicitly or implicitly that only parties to the complaint that advised other persons to whose presence none of the parties objects may attend a determination hearing.

First and second respondents submissions

The First and Second Respondent’s submissions to a large extent were also supported by the Third Respondent.
It was submitted on behalf of the First and Second Respondents that the Applicants’ submissions proceed on a misconception that their case involves a contest between s.10.66(1) of the Principles and the question of whether the Applicants should have legal representation in the determination hearing which will consider their complaint. It was argued the latter question is not an issue for the Applicants and this was made clear in a letter from Mr Sergent expressly disavowing any wish to be legally represented in the determination hearing. Specifically the letter provides neither Mr Sergent nor another practitioner are “engaged to represent the parties within the determination hearing”.
The First and Second Respondents then submitted that any reliance by the Applicants upon the requirement of procedural fairness which in some proceedings permit a person to have legal representation or indeed reliance upon common law agency principles are therefore irrelevant.
It was submitted that what is really sought by the Applicants is that the persons who have engaged as their legal representatives be allowed to attend the determination hearing to act as their advisers. It was submitted the true issue is whether a decision that had the effect that persons who the Applicants have engaged as their legal representatives were not allowed to attend the determination hearing to act as their advisers would give rise to any complaint under ss.5 or 6 of the ADJR Act. It was submitted there is no issue that s.10.66(1) of the Principles has the effect that the Applicants are not entitled to be accompanied during the determination hearing by their legal representatives acting as their advisers. The concession made pursuant to WABZ it was submitted is appropriate. It was argued there is no countervailing principle, whether procedural fairness or otherwise, at common law arising from any provision of the Aged Care Act or the Committee Principles that might operate in the face of s.10.66(1) to require that in any circumstance a complainant should have the right to be attended during a determination hearing by a legal representative acting as an adviser. It was argued that reference to the cases by the Applicants including the decision in Krstic merely suggests that such a Tribunal would be “well advised” to grant a request by a person appearing before it to be attended by a friend for reassurance and consultation.
It was submitted the highest that the Applicants’ case can come is that their legal representatives should as a matter of discretion be allowed to attend the determination hearing as their advisers. It was submitted that s.10.66(1) precludes any exercise of discretion to produce that result. It is enough in the present case, short of determining that issue, that even if a discretion existed any exercise of the discretion to exclude the Applicants’ legal representative cannot be reviewed. Specifically it was submitted that is because of the following,
· It would in that event be open for the committee to determine that it does not want to have persons engaged as legal representatives attending any or particular determination hearings. If a committee decided that as a matter of general policy or otherwise it would not permit the attendance at a determination hearing of persons engaged to provide legal representation and that decision would not be contrary to the Aged Care Act or the Principles.
· On the contrary s.10.66(1) is complimented by ss.10.81 and 10.82(5) which together give the committee complete control over its own procedures.
· In any event the Applicants have not proved any basis upon which any such discretion even assuming it to exist should as a matter of law be exercised in favour of allowing their legal representatives to attend as advisers. It was argued that they have not shown they have suffered from any relevant disability.
The Committee, it was argued, has given complete control over the procedure at any determination hearing and it was submitted it is entirely open to the Committee to exclude any one it wishes to exclude from a determination hearing other than the persons who by the operation of s.10.66(1) are entitled to insist on attending.

The Principles, it was argued, expressly contemplate who will be present at a determination hearing and there are strong discretionary reasons including public interest grounds why people unaffected by the Committee’s decision should be excluded.

Third respondent’s submissions

The Third Respondent, apart from agreeing with the submissions of the First and Second Respondents, noted the Applicants did not seek to be legally represented and again referred to relevant correspondence. Hence, it was argued that a great deal of the lengthy submissions dealing with that issue are irrelevant to the application before the Court. It was argued it would be difficult for Mr Sergent to be present in any capacity other than as a legal representative. Reference was made to s.25(1) of the Legal Aid Commission Act 1979 (NSW) where a grantee of legal aid (as are the Applicants) is the client of the solicitor. Hence, it was argued Mr Sergent is the legal representative of the Applicants.
It was submitted s.10.66 of the Principles precludes the exercise of any discretion to permit the Applicants’ legal representatives to attend as advisers. Any barrister, it was argued, instructed by Mr Sergent would also be the legal representative of the Applicants.
The use of the words “other than a person engaged to provide legal representation” in s.10.66(1) demonstrates an intention to exclude legal representatives from the hearing.
Reference was made to s.10.66(4) of the Principles whereby the Committee may allow an adviser (other than a lawyer) to address the committee.
It was noted that on 25 June 2004 the Minister amended s.10.66(4) by deleting the words “(other than a lawyer)”. The clear intention of the Principles taking into account the amendment it was submitted is to permit lawyers who are not acting as a legal representative of a party to address the Committee. An example was given of a family member who may be a lawyer. The amendment it was argued strengthens the submission that the natural meaning of the wording of s.10.66(1) is to remove any discretion to permit a legal representative to accompany a party to a committee hearing.
In the alternative it was submitted that if a discretion does exist then it is not miscarried and there is no error.
It was further submitted that there are powerful considerations as to why the exercise of a discretion to exclude members of the general public was correctly exercised in this case.

Reasoning

In my view the Respondents submissions concerning the inappropriate request for legal representation are correct. I am satisfied that what is really sought in this matter is for Mr Sergent and others who may have previously acted as legal representatives of the Applicants to be granted permission to accompany the Applicants as “an adviser”.

It is equally clear in my view that accompanying the Applicants as an adviser is a far more restricted role than accompanying the Applicants as a legal representative or advocate.
I am further satisfied that s.10.66(1) specifically excludes, as it is entitled to exclude, from the category of adviser a “person engaged to provide legal representation”.
In the event that the Applicants seek permission to be allowed to be accompanied by an adviser then so long as that person is not engaged “to provide legal representation” then I see no reason why any lawyer should automatically be excluded.
So much is clear from the amendment to s.10.66 which clearly contemplates that a person who happens to be a lawyer may act as an adviser to address the Committee. The amendment which deleted the words “(other than a lawyer)” clearly contemplates at least the possibility that a person, for example a family member who is a lawyer may be permitted to act as an adviser and address the committee.
I can see no reason to exclude automatically as an adviser a person who in the past has been engaged to provide legal representation. Of course the committee has a discretion as to whether it would allow an adviser to address the committee. It is not mandatory to permit the adviser to address the committee.
Although the Legal Aid Commission Act may well provide that

Mr Sergent becomes the legal representative of the Applicants and likewise any barrister retained by Mr Sergent would also be the legal representative of the Applicants, that does not mean that if granted permission to be an adviser that either Mr Sergent or any other counsel would then be engaged to provide legal representation. A lawyer can act as an adviser without providing the full services contemplated by legal representation which mean what they say namely that the parties are represented at a hearing by the lawyer. In this instance the parties will appear self-represented with the assistance of an adviser who is permitted to accompany them at the hearing. The fact that that adviser is a trained lawyer in my view is permissible and moreover not expressly excluded from s.10.66(1) of the Principles.
If it was intended to expressly exclude in any capacity whatsoever a lawyer then the section could clearly make that clear and the fact that the amendment occurred on 25 June 2005 deleting the words “(other than a lawyer”) would tend to indicate a contrary intention.
I am not satisfied however that there is any automatic entitlement to representation by a lawyer. In this case it is clear that there is no automatic entitlement and I am not satisfied that it is appropriate to apply common law principles of agency as what might effectively be a back door method of permitting a lawyer to act as a representative. The same does not apply to the lawyer acting in the capacity as “adviser” and nor would it necessarily preclude the lawyer from obtaining the permission of the committee to address the committee. That of course will ultimately be a matter for the committee to determine and is not a decision which has yet been made.
In my view therefore there is a discretion available to the Respondents that Mr Sergent may be permitted to act as an adviser provided that in acting as an adviser he does not seek to be the legal representative of the Applicants and discharge the duties normally attributed to a legal representative referred to earlier in this judgment.
That leaves the question of whether there has been a failure to exercise a discretion and/or whether the discretion was wrongly exercised.
In my view it is clear that there has been a failure to exercise a discretion which in itself is sufficient as a matter of law to constitute an error of a kind which would enable this Court to set aside the decisions pursuant to the ADJR Act. Accordingly in my view it is reasonable to conclude that there has effectively been a constructive failure to make a decision having regard to the error in the interpretation of s.10.66(1) of the Principles (see McDowell & Partners Pty Ltd v Button (1983) 50 ALR 647).
In the alternative I am further satisfied that the decision was an improper exercise of the power in the sense contemplated by s.5(1)(e) of the ADJR Act. In my view it is relevant to take into account in the exercise of the power the past history of involvement of Mr Sergent in the complaint as set out in the affidavit material. Further and in the alternative when considering the improper exercise of power it is also worthy to note that by merely taking into account the fact that

Mr Sergent is a “lawyer” of itself should not be determinative for the reasons stated. Hence, that of itself is irrelevant as it is the capacity in which Mr Sergent is seeking to act, that is, an adviser accompanying the Applicants that should be considered.
I can see no possible basis upon which a decision could be made introducing a new principle that approval of an adviser accompanying the Applicants depended upon the views of others leading the Commissioner to conclude as it does in its letter of 28 February 2006 that “the Committee cannot allow you or any other person engaged to provide legal representation to attend the determination hearing in any capacity”. The application of s.10.66(1) does not involve consideration of the objections by other parties, either expressly or impliedly. This is perhaps for good reason namely that care providers may always object to a wide range of persons acting as advisers accompanying the care recipients who are complainants. To permit the care providers the power of what might be described as a ‘veto’ power’ leading to the automatic exclusion of proposed advisers is not expressly provided and by taking that into account I am satisfied that an irrelevant consideration has been included in the decision. By taking into account that irrelevant consideration I am satisfied that that is a further basis upon which the Court is entitled to conclude that there has been an improper exercise of the power conferred by the enactment in pursuance of which the decision was made.
It is sufficient therefore for the reasons given that the Court makes an order that the decisions be set aside.
I am not satisfied on the material before me that there is any error of a kind which would attract the attention of the Court in relation to whether or not the committee conducts the hearing in public or in private. I accept that that is a matter for discretion by the committee and there is no decision before me expressly addressing that issue.

In any event the mere assertion that there is no right to a public hearing itself is clearly correct. It remains to be argued whether upon request other persons may seek to attend the hearing and then if a decision is made adverse to those persons the matter may be argued on another occasion. The Court should not be taken to indicate that it would necessarily entertain an application but would of course need to consider any future application entirely on its merit.
The key issue in the present case however in my view is whether or not any discretion has been exercised pursuant to s.10.66(1) and I have concluded that in fact the discretion has not been exercised or in the alternative if it has been exercised then it has been exercised in a manner which has involved an improper exercise of the power conferred by the enactment.
It follows for those reasons that the decisions identified in the letter dated 28 February 2006 should be set aside.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 18 October 2006