TFG Holding Pty Ltd and Aged Care Quality and Safety Commissioner

This matter concerned an appeal by TFG Holding Pty Ltd against a decision of the Aged Care Quality and Safety Commissioner. The Commissioner had refused to grant TFG Holding Pty Ltd approval to provide aged care services under section 63D of the *Aged Care Quality and Safety Commission Act 2018* (Cth). The dispute centred on whether TFG Holding Pty Ltd was a suitable provider, particularly in light of policies and systems that were proposed to be implemented rather than already in place at the time of the application. The appeal was heard by Deputy R I Hanger P.

The primary legal issue before the court was whether the Commissioner had erred in refusing approval based on the applicant's proposed, rather than established, operational systems and policies. Specifically, the court had to consider the interpretation of subsections (3)(c) and (d) of section 63D, which refer to what an applicant "proposes to have" and "proposes to use," suggesting that the existence of systems at the time of application was not a strict prerequisite. The court also had to weigh the Commissioner's submission that, given the vulnerability of aged care consumers, an applicant should not be permitted to "sort things out" only after approval was granted.

The court reasoned that the wording of the legislation, particularly the phrases "proposes to have" and "proposes to use," indicated an acknowledgment that systems and records might not yet be fully in place when an application for approval is made. While acknowledging the Commissioner's valid concern for the vulnerability of aged care recipients and the need for robust operational frameworks from the outset, the court considered the extensive qualifications and experience of the applicant's key personnel, including James Toohey and Maureen Anne Kennedy. Their demonstrated expertise in aged care operations, financial management, quality assurance, and regulatory compliance suggested a capacity to implement the necessary systems effectively. The court ultimately found that the Commissioner's decision to refuse approval on the basis of proposed systems was not justified, given the legislative language and the applicant's demonstrated capability.