Riverside Nursing Care Pty Ltd v Honourable Bronwyn Bishop FCA [200

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 147 OF 2000

BETWEEN:

RIVERSIDE NURSING CARE PTY LTD (ACN 005 377 453) (Administrator appointed)

APPLICANT

AND:

THE HONOURABLE BRONWYN BISHOP (as the Commonwealth Minister of State for Aged Care)

FIRST RESPONDENT

ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care)

SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE:	7 APRIL 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1 Until 5 March 2000 the applicant was an approved provider of aged care services at the residential aged care service known as Riverside Nursing Home ("the Home"). On that day the second respondent ("the Secretary") revoked the applicant's approval as a provider and its allocation of places. The Secretary had earlier, on 22 February, revoked the approval and allocation, but had suspended the operation of the revocation. The Secretary's decisions were made under s 65 of the Aged Care Act 1997 ("the Act"). The applicant has sought review of the decisions under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). Where it is necessary to distinguish between the two decisions I will call the February decision "the first decision" and the March decision "the second decision".

I have before me two notices of motion. The first is the applicant's motion for an order under s 15(1)(a) of the ADJR Act that until the hearing and determination of the principal Application the operation of the decisions be suspended. The second motion is the respondents' motion for an order pursuant to Order 54 rule 7 of the Rules that the principal Application be dismissed. I will deal with the second motion first, because if the respondents succeed on that motion, it will not be necessary to deal with the applicant's motion.

PROVISION OF OTHER ADEQUATE REVIEW

2 The basis for the respondent's motion lies in s 10(2)(b)(ii) of the ADJR Act, which empowers the Court, in its discretion, to refuse relief in respect of a decision for the reason

"that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision."

3 Section 85-8 of the Act provides:

"An application may be made to the Administrative Appeals Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 85-4 or 85-5."

Section 85‑4 empowers the Secretary to reconsider a reviewable decision if satisfied that there is sufficient reason to do so. Section 85‑5(1) enables a person whose interests are affected by a reviewable decision to request the Secretary to reconsider the decision. Sub‑section (5) requires the Secretary to reconsider the decision and confirm or vary the decision or set it aside and substitute a new decision. The Secretary is taken to have confirmed the decision unless notice of a decision on the request is given within ninety days after receiving the request: sub‑s (7). The decision to impose sanctions under s 65‑1 is a reviewable decision for the purposes of s 85. The respondents submitted that the provision of a review under the Administrative Appeals Tribunal Act 1975 ("the AAT Act") was "adequate" for the purposes of s 10(2)(b)(ii) of the ADJR Act.

4 Section 10(2)(b)(ii) contemplates a review involving an independent exercise of power directly affecting the decision reviewed. See Bragg v Department of Employment (1995) 59 FCR 31 at 33. In that case the applicant sought judicial review under the ADJR Act of decisions relating to charges of misconduct under the Public Service Act 1922. The respondent relied on s 63D(2) of that Act in support of an application under s 10(2)(b)(ii) of the ADJR Act. Section 63D(2) enabled an officer to appeal to a Disciplinary Appeal Committee against a misconduct decision made in respect of him on the ground that the charge should have been dismissed and/or that the action directed to be taken in relation to the charge was unduly severe. Davies J acceded to the respondent's application, and dismissed the ADJR application. After noting that the judicial review grounds included denial of natural justice, improper purpose, taking into account irrelevant considerations and failing to take into account relevant considerations, his Honour said (at 33):

"In respect of all these grounds, it appears to me that the matters sought to be raised would be encompassed by a hearing by a Disciplinary Appeal Committee. Grounds 1 and 2 would be relevant matters in the Committee's consideration and grounds 3, 4 and 5 should be overcome by the opportunity of the further hearing."

His Honour went on to say that an appeal to the Disciplinary Appeal Committee pursuant to s 63D would satisfy the requirement that the review involve an independent exercise of power directly affecting the decision reviewed. He said (at 33‑34):

"The Committee may confirm, vary or set aside the charges the subject of the appeal and it must provide reasons for its decisions.

...

I consider that the appeal contemplated under s 63D is an adequate right of review within the meaning of s 10(2)(b)(ii) .... Moreover, in my opinion, it is generally desirable that the time of this Court should not be taken up with issues for the determination of which the legislature has established adequate administrative remedies.

...

This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute."

5 But for one point, the review for which s 85-8 provides would in my view be "adequate" within the meaning of s 10(2)(b)(ii) of the ADJR Act. The hearing before the Administrative Appeals Tribunal will be a full de novo hearing on the merits. See s 43 of the AAT Act. The Tribunal will be able to deal with or overcome all the grounds of complaint in the ADJR application, and in particular will be able to overcome any assumed denial of natural justice or failure to comply with required procedures. Further, the Tribunal has the same powers as this Court to make orders staying or suspending the decision under appeal. See s 41 of the AAT Act. However, review by the Tribunal is only available in respect of a reviewable decision that has been confirmed, varied or set aside under s 85‑4 or 85‑5. On 6 March the applicant requested a reconsideration under s 85‑5. No decision has yet been made on the request, and the ninety day cut‑off period has not expired. Accordingly, as matters stood at the date the applicant made its ADJR application, and as they still stand, the applicant cannot obtain a review of the sanction decisions by the Tribunal, and for that reason the AAT Act does not in my view make adequate provision for a review of those decisions. The respondents' motion must be dismissed.

SUSPENSION APPLICATION

6 I turn now to the applicant's motion under s 15(1)(a) of the ADJR Act. In Feingold v Zammit (1984) 1 FCR 87 at 92 the Full Court said:

"In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought [under s 15(1)(a)] unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour."

In my view the requirement that an applicant demonstrate a "point of substance to argue" is no different from the requirement that an applicant for an interlocutory injunction show a "serious question to be tried".

GROUNDS OF REVIEW

7 The grounds upon which the applicant relies are

· denial of natural justice in that in the first decision the Secretary represented that if the applicant agreed to the appointment of an administrator no sanctions would be imposed, and it did so agree

· denial of natural justice in that the applicant was not given reasonable notice of the allegations against it and an opportunity to challenge them

· failure to observe the procedures in s 67‑1(1) of the Act

· failure to observe the procedures in pars 4.2(2)(a) and 3.7 of the Accreditation Grant Principles 1999 made under s 96‑1 of the Act ("the Principles")

· the decisions were not made by the Secretary because his delegate accepted without question the serious risk reports made under par 4.2 of the Principles

· the Secretary took irrelevant considerations into account, namely exaggerated and inflammatory assertions which were unsupported by probative evidence

· the Secretary failed to take relevant considerations into account, namely the interests of residents and the effect of the decisions on Illawong Retirement Equity Pty Ltd ("Illawong")

· the decisions were unreasonable

· the second decision was made for various improper purposes

· there was no evidence to support either decision.

Natural justice

Misrepresentation

8 The contention is in substance that the second decision was made when the Secretary had by the first decision represented that no such decision would be made so long as the applicant agreed to the appointment of an administrator under the Act, which it had done. It is true that in the first decision the applicant was told that the sanctions would not take effect if, within fourteen days, it agreed to appoint an administrator, and that it did so agree. However, the letter accompanying the first decision contained these passages:

"The problems at Riverside are extremely serious and I wish to make it very clear that the Department expects to see immediate improvements and will exercise the full range of powers in the legislation if improvements are not made.

In making this decision I considered whether to revoke your approved provider status and all the places allocated to you. On balance I decided against this complete course at this time. Instead I have decided to revoke your approval as a provider of aged care services but suspend that revocation if you agree to appoint an administrator ....

...

I remind you that I can direct the Agency to conduct another review audit at any time. If such a review audit revealed that there remains an immediate and severe risk to the residents I will consider further, and possibly harsher, sanction action."

The expressions "full range of powers in the legislation", "I decided against this complete course at this time" and "further, and possibly harsher, sanction action", unmistakably indicate that the suspension might be lifted, notwithstanding the appointment of an administrator, if a further audit revealed that there remained an immediate and severe risk to the residents. In the light of this letter it cannot be said that the conditional suspension constituted a promise or a holding out by the Secretary that if the applicant agreed to appoint an administrator no further action would be taken. In fact the Agency was directed to conduct a further review audit report, and on the basis of that report the second decision was made. In my view the applicant has not shown a point of substance or serious question on this ground of review.

No notice of adverse material

9 The applicant's case on this ground was put in two related ways. The first was that it had not been given any or any reasonable notice of the allegations and evidence on which the first or the second decision was based. The second was that it had not been afforded an opportunity to challenge the allegations and evidence on which the decisions were based. Section 67 ‑ 1(1) of the Act provides:

"The Secretary must not impose sanctions on an approved provider for not complying with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 unless the Secretary has completed each of the following steps:

(a) giving to the approved provider a notice of non‑compliance (see section 67‑2);

(b) giving to the approved provider:

(i) a notice of intention to impose sanctions (see section 67‑3); or

(ii) a notice to remedy the non‑compliance (see section 67‑4); or

(iii) a notice of intention to impose sanctions in respect of a specified part of the non‑compliance (see section 67‑3) and a notice to remedy the remainder of the non‑compliance (see section 67‑4);

(c) giving to the approved provider notice of the Secretary's decision on whether to impose sanctions (see section 67‑5)."

The responsibilities that the applicant is said not to have complied with are the quality of care responsibilities in Part 4.1. A notice of non‑compliance must, amongst other things, invite the provider to make written submissions about the alleged non‑compliance: s 67‑2(2)(d). A notice of intention to impose sanctions must, amongst other things, invite the provider to make written submissions as to why sanctions should not be imposed: s 67‑3(2)(d).

10 Section 67‑1(1) and the ensuing provisions are an express statement of the extent of the obligation to provide procedural fairness to a provider. It is common ground that steps (a) and (b) in s 67‑(1) were not taken. But those steps do not have to be taken where sub‑s (2) applies. It provides:

"However, paragraphs (1)(a) and (b) do not apply if the Secretary is satisfied that, because of the approved provider's non‑compliance, there is an immediate and severe risk to the safety, health or wellbeing of care recipients to whom the approved provider is providing care."

In respect of both decisions the Secretary expressed satisfaction in terms of that sub‑section. Accordingly, the requirements of sub‑s (1) did not apply. The applicant has not shown a point of substance or a serious question under this head.

Procedures required to be observed

Section 67‑1

11 In relation to both decisions the applicant relies on the Secretary's failure to comply with the procedure in s 67‑1. As I have said, the respondents accept that the notices the subject of pars (a) and (b) were not given, but can rely on sub‑s (2) to take the case out of sub‑s (1).

Par 4.2(2)(a) of Principles not complied with

12 This ground is asserted in relation to both decisions. Paragraph 4.2(1) of the Principles provides that if an audit of a residential care service finds evidence of a serious risk to the health, safety or wellbeing of a person receiving care, the accreditation body must give a copy of the report to the Secretary and the approved provider that operates the service. By sub‑par (2) the report must include "specific information about the reason for the risk, and evidence of the risk". It is contended that the serious risk reports do not contain "specific evidence" of the risk. I would not read par 4.2(1) as requiring "specific information about the reason for the risk" and "specific evidence of the risk". Rather I would treat it as requiring "specific information about the reason for the risk" and "evidence of the risk". But however the principle is read, it is amply satisfied by the serious risk reports of 18 February and 2 March. For example, the first report, under the heading "Infection Control", states that the evidence of risk included:

· all residents were bathed in a solution of water and kerosene on 16 January 2000

· one resident had returned from a day in hospital on 14 January and was noted to be unwell both before and after the bath

· one resident who was vomiting coffee grounds prior to the bath was bathed and died on 23 January

· thirteen residents had entries noting a variety of skin problems, blisters, severe rash, large raw areas, pus filled pustules, blisters that had burst, and rashes all over the body.

The later report, under the heading "Clinical care", sets out the reason for the risk, and then details the evidence of the risk by noting that the team reviewed forty‑six residents' files and interviewed seventeen residents, eight relatives and seventeen staff members. One resident had a broken arm, but no incident form had been filled out, and she was not being properly monitored. Under the heading "Medication Management" it was recorded that medicine prescribed for one resident had been administered to another, when it was not the medication prescribed by the second resident's doctor. The absence of any identification of individual residents in the reports is doubtless due to the "protection of information" provisions in Part 6.2 Division 86, especially ss 86‑1 and 86‑4. The complaint made by the applicant that the "matters stated [in the Reports] to be evidence are nothing more than generalised conclusions" is not made out. The applicant has not shown a point of substance or serious question on this issue.

Paragraph 3.7 of Principles not complied with

13 Paragraph 3.7(1) of the Principles provides:

"Within 14 days after receiving the review audit report, the accreditation body must tell the Secretary, and the approved provider that has an allocation of places in respect of the residential care service, in writing, about the review audit report, including:

(a) written recommendations about the matters (if any) mentioned in subsection 3.6(2); and

(b) information about the arrangements for support contacts with the service by the accreditation body under this Part; and

The approved provider is entitled to make a written response, but must do so within fourteen days of being told of the matters mentioned in sub‑par (1): sub‑par (2). The accreditation body must consider any response and may give the Secretary and the provider a supplementary review audit report: sub‑par (3). The applicant's contention is that the procedure laid down by par 3.7 was not complied with in that by reason of the second decision the applicant was not given a period of fourteen days to make a written response to the 24 February review audit report that it received on 25 February. It is common ground that the second decision was made before the expiration of fourteen days from 25 February and that the applicant had not responded to the report before the second decision was made.

14 The structure of s 67 and the Principles themselves disclose that par 3.7 does not purport to fetter the Secretary's ability under s 67‑1(2) to deal with an emergency situation without the need to comply with the requirements of par 3.7. The principles governing the imposition of sanctions following a review audit report are different from those involved when the accreditation body uncovers what it believes to be evidence of serious risk to care recipients. The review audit report must include recommendations about necessary improvements and about further support contacts with the service, information about the arrangements for support contacts, and proposals for a timetable for making the necessary improvements: see pars 3.6 and 3.7 of the Principles. The approved provider then has fourteen days to provide the accreditation body with a written response, which must be considered by the accreditation body. If changes are to be made to the list of necessary improvements or the timetable for improvements, the accreditation body must make them within fourteen days of receiving the provider's response, and publish a supplementary review audit report (par 3.7(3) and (4) of the Principles). Only if a timetable has been agreed, and at the end of the timetable the accreditation body is not satisfied that the appropriate level of care is being met, can the accreditation body recommend to the Secretary that sanctions be imposed: see par 3.8. If, however, during the review audit the accreditation body finds evidence of a serious risk to the care recipients, it must immediately inform the Secretary in writing. As soon as practicable it must provide the Secretary and the provider with a copy of a serious risk report, outlining the reason for the risk, the standards that have not been complied with, an appropriate improvement outline and recommendations about whether sanctions should be imposed: par 4.2 of the Principles. If the Secretary is satisfied that there is a serious risk to the care recipients, the Secretary may dispense with the usual procedure for imposing sanctions set out in s 67-1 of the Act, and impose sanctions immediately.

15 It is apparent from the above discussion that the consequences of a review audit report and of a serious risk report are quite different. A recommendation for sanctions following a review audit report occurs after a sequence of events that may last over a month. The provider is given the opportunity for input into the appropriate ways of redressing non‑compliance with standards, and a timetable for improvement is created. Sanctions that follow a serious risk report may be imposed immediately, and no provision is made under the Act or the Principles for a response by the provider. The applicant has not shown a point of substance or a serious question on this point.

Decisions not authorised by Act

Abrogation of delegate's duty

16 The complaint here is that the delegate accepted the serious risk reports without question, and that the findings as to non‑compliance and immediate and severe risk were therefore not made by the Secretary. Paragraphs 4.2 and 4.3 of the Principles contemplate that the Secretary will receive the report of an accreditation body and consider the information and recommendations it contains. The first and second decisions show that in reaching her decision the delegate had regard to, amongst other things, the accreditation body's reports. But they also show that the delegate applied her own mind to whether the matters contained in the reports justified a finding of non‑compliance and a finding of serious risk to the health, safety or wellbeing of those receiving care. The evidence does not support the abrogation complaint, and the applicant has not made out a point of substance or a serious question.

Irrelevant considerations

17 It was submitted that the Secretary took into account assertions contained in the Agency's reports that were exaggerated and inflammatory and unsupported by probative evidence. The only instance given is the "outrageous and entirely unsupported" charge in the first report that "A dying resident was bathed in kerosene, a process that must have been extremely distressing and frightening". A reading of the report as a whole shows that "bathed in kerosene" means bathed in a solution of 30 millilitres of kerosene to a bathtub full of water. The relevant part of the report ‑ "Infection Control" ‑ twice refers to such a solution, once to a "solution of water and kerosene", and twice to a "solution of kerosene". Then comes the offending passage, which read in isolation suggests a bath in neat kerosene. However, in the light of the Infection Control discussion as a whole, the reader would be in no doubt that the resident was bathed in a solution of 30 millilitres of kerosene to a bathtub of water. There is no point of substance or serious question here.

Failure to take relevant considerations into account

Interests of residents

18 This ground is applicable to the first and second decisions. Both reflect a concern for the welfare of residents. The Secretary was satisfied that there was an immediate and severe risk to the safety, health or wellbeing of the care recipients. It is difficult in these circumstances to understand an argument that a relevant consideration, namely their welfare, was not taken into account. This ground is presumably directed to the residents' welfare incident upon their possible relocation. However, the second decision records

· that the delegate had regard to the desirability of an approach that does not involve residents moving from the Home, but did not think that approach feasible given that there was no developed proposal from a provider or potential provider to do this, and

· that the delegate had regard to a file note of Jenny Hefford, a Departmental officer who attended a meeting of residents and their representatives, where participants expressed concerns about the possibility of moving family members to another facility because of the difficulty of finding places and the stress associated with moving frail older persons.

Doubtless because it was assumed that the first decision would be suspended by the applicant's agreement to appoint an administrator, the consequences of the removal of the residents was not addressed in that decision. But it was the subject of distinct consideration when it became a live issue. What the applicant really seeks to do under this head is to complain that the interests of residents were not taken into account so as to produce the result it would have preferred, namely to keep the Home operating so the residents would not have to be moved. That is review on the merits, and is not open to the Court. The applicant has not established a point of substance or a serious question under this head.

Illawong

19 The applicant relied on an affidavit of one of its directors from which it appears that the Home is an integral part of a three phase retirement scheme which involves the operation of the nursing home in conjunction with adjoining retirement units and retirement apartments. The entire scheme is owned by Illawong. Illawong has experienced difficulty in selling interests in units and apartments because of the closure of the Home. Some occupants of units and apartments have said they will consider moving elsewhere if the Home is not reopened. The director expresses the view that "unless there can remain a possibility of the nursing home reopening in the near future a critical basis upon which the said retirement complex has been established will be destroyed and Illawong will suffer irreparable loss in the way of existing residents and loss of future sales to such an extent as to render the said business unviable and force it to close".

20 The question is whether the delegate was bound to take into account that the imposition of the sanctions might cause loss to a third party. The Act does not require the Secretary to take that type of consideration into account, and the subject matter, scope and purpose of the Act do not give rise to an implication that he should. Cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39‑40. Indeed those matters suggest the contrary. Section 67 is concerned, amongst other things, with non‑compliance with quality of care standards (Part 4.1). It is also concerned with cases where the safety health or wellbeing of care recipients are subject to immediate and severe risk. Given the Act's focus on the wellbeing of residents and the provider's related obligations to them, it is not in my view seriously arguable that an implication arises out of the subject‑matter, scope and purpose of the Act that the Secretary must take into account the possibility that third parties might suffer economic loss because of the imposition of sanctions on the provider. The applicant has not shown a point of substance or a serious question under this head.

Unreasonableness

21 The contention that the decisions were so unreasonable that no reasonable person could have reached them does not raise a point of substance or a serious question. The decision was plainly open to the delegate on the material before her. The applicant may dispute the accuracy of parts of that material, but an investigation of the merits of the decision, while available in another place, cannot be carried out in this proceeding.

Improper purpose

22 It was contended that the second decision was made for various improper purposes. These included the purposes of

· satisfying or answering political and public criticism of the conduct of the Department in relation to nursing homes

· subjecting the applicant to a harsh and unreasonable punishment

· peremptorily closing the Home, confiscating the applicant's valuable assets, and removing the residents to another place

· facilitating the removal of residents to another place or places

· preventing the applicant from retaining its approval by the appointment of an administrator

· preventing the applicant from having any reasonable opportunity to make a written response to the review audit report.

While the applicant may suspect that these purposes motivated the Secretary to make the decision, there is no evidence that they did. Further, as to the first of them, the first decision had been made before media coverage of the Home began on 25 February. In that decision the Secretary warned the applicant that a further more serious decision might be made if matters did not improve. It was open to the Secretary to conclude that matters had not sufficiently improved, and the second decision was made. As to the second purpose, the sanctions imposed are those contemplated by the Act as a response to situations involving severe risk to the wellbeing of residents, and can hardly be described as harsh and unreasonable punishment. As to the third purpose, in the events that happened, it may be that the Secretary wanted the Home closed and the residents moved elsewhere. There is nothing improper in that. There is no evidence that he made the decision in order to confiscate the applicant's valuable assets, though that may have been a consequence of the decision. As to the fourth purpose, it may well be that the decision was made so that the residents could be moved elsewhere. But that, as I have said, is a natural consequence of the Secretary being satisfied that they were at risk at the Home. There is nothing to suggest that the Secretary sought to secure their removal for any reason other than that satisfaction. As to the fifth purpose, I refer to what I have said about the first. As to the sixth purpose, I refer to what I have said in pars 14 and 15 about the different consequences that flow from review audit reports and serious risk reports.

23 The applicant pointed to a comment made by one of the assessors who prepared the second serious risk report that "We would normally not word a survey so emotively, however, Canberra has to take notice". As an example of this, the assessor said "Like dying lady bathed in kerosene". It was said that this is evidence of an improper purpose. The particular purpose was not identified. The assessor's comments do not in my view support the existence of any of the improper purposes. They are no more than an acknowledgment of the assessor's concern about the state of affairs at the Home and her desire to bring that concern to the attention of the decision‑maker by the use of strong, perhaps over‑emphatic, language. Rather than supporting a case of improper purpose, this underlines the propriety of the assessor's purpose, namely to advance the safety, health and wellbeing of the residents. But even if the assessor's remarks could support a finding of improper purpose, they cannot be attributed to the Secretary so as to show that he made the second decision for an improper purpose. The remarks were not part of the report, and there is nothing to suggest that the Secretary or his delegate was aware of them. Further, as I have said in par 17, a reader of the relevant part of the report would discern that "bathed in kerosene" meant bathed in the solution of kerosene and water earlier described. The applicant has not shown a point of substance or a serious question under this head.

No evidence

24 It was submitted that there was no evidence upon which either decision could lawfully be made, and in particular that the serious risk reports were not evidence. The no evidence ground was not mounted under s 5(1)(h), but as an error of law under s 5(1)(f). See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358. The word "evidence" in this context does not mean evidence admissible in a court of law. It contemplates the existence of some material that tends to show the existence or non‑existence of facts relevant to the issue to be determined. In other words material which has some probative value. If it is capable of having any probative value, its weight is a matter for the decision‑maker. See, for example, Reg v Deputy Industrial Injuries Commission; Ex parte Moore [1965] 1 QB 456 at 488 and Mahon v Air New Zealand [1984] AC 808 at 821. While the reports submitted to the Secretary may not have been admissible in a court of law, they were probative in the sense explained above. They tended to show that the applicant had not complied with its care obligations and that as a result there was an immediate and severe risk to the safety, health or wellbeing of residents. The applicant has not shown that there is a point of substance or a serious question under this head.

OTHER MATTERS

Balance of convenience

25 In view of my conclusion that the applicant has not demonstrated a point of substance or a serious question, it is not strictly necessary for me to consider whether the balance of convenience lies in favour of granting or refusing a suspension of the orders. Cf American Cyanamid v Ethicon Ltd [1975] AC 396 at 408. However there is one aspect of the applicant's claim that it will suffer substantial and irreparable harm unless a suspension is granted that requires comment. That is what is said to be the probability that its allocated places will be extinguished and the Secretary will be powerless to restore them if the applicant is successful on the review. In my view that fear is unjustified. There is nothing in the Act to support the view that the number of places available for allocation, as determined by the Minister for the relevant financial year, is reduced on the revocation of an allocation. Under s 18‑1 an allocation "ceases to have effect" if it is revoked under Part 4.4 (ss 64‑68). The implication is that the revoked places go back into the pool rather than that the pool shrinks or is not thereby deepened. In any event, s 14‑4(2) makes it clear that revoked places do not cease to exist, but are available for re‑allocation. Under s 14‑1(4) in order for an allocation to be made to an approved provider, the provider must have made a valid application and the allocation must comply with the terms of an invitation published under Division 13. Section 14‑4 empowers the Secretary to waive those requirements "if the places being allocated are places that have been relinquished under section 18‑2 or that were included in an allocation, or a part of an allocation, revoked under Part 4.4."

26 Accordingly, the applicant's fear that the places will not be available to it if it succeeds in the litigation because they will have disappeared is unfounded. Any fear that the places may have been re‑allocated to someone else and, assuming the pool to be empty, that there are none available to the applicant in the event of its success, is met by the statement by counsel for the respondents in open court that the applicant's places would not be treated by the respondents as revoked places available for re‑allocation until the review processes have been exhausted. By what I have said in this paragraph I should not be taken as expressing the view that if the Court set aside the decisions, the applicant would not thereby be restored to its former position as an approved provider with the allocated places that were never lawfully revoked, even if in the interim the Secretary had purported to re‑allocate them.

Could a suspension order have been made?

27 Counsel for the respondents submitted that even if the applicant had established a point of substance or serious question, and the balance of convenience favoured relief, s 15(1)(a) of the ADJR Act would not support an order suspending the operation of the decisions. It was submitted that an order suspending the operation of a decision is only available where the original decision declared a status or factum from which statutory consequences could flow, but have not flowed before the suspension is sought. In this case, each decision was itself determinative of rights, and there are no consequences of the decision to be arrested, and no proceedings under the decision that are capable of being stayed. Counsel pointed to Re Wardle; ex parte Widin v Australia and New Zealand Banking Group Ltd (1987) 70 ALR 633 in which the power given by s 37 of the Bankruptcy Act 1966 (Cth) to suspend the operation of a sequestration order was considered. There was no power to suspend after the sequestration order had been signed and sealed. Neaves J remarked (at 635):

"Difficulty may have arisen if the order for suspension had been made at a later time, being a time between the announcement of the sequestration order and the signing and sealing of that order, for the statutory consequences of the making of the sequestration order would have already taken effect before the order for suspension was made."

28 In my view the respondent's argument misapprehends the effect of an order under s 15(1)(a) suspending the operation of a decision. Counsel conceded that if the applicant were successful on the substantive hearing, the decisions would be quashed, the revocation of approved status would be lifted, and the allocation of places would be restored. The effect of the Court's order would be to render non‑existent decisions that were theretofore effective and binding. If the Court has power to grant final relief the effect of which is to annul an earlier decision, it must have power, by a suspension order, to produce that result on a temporary basis. Cf Minister for Immigration , Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179 per Beaumont J. The fact that the decision is itself determinative of rights, and that there are no consequences yet to flow from it, is irrelevant.

CONCLUSION

29 For the reasons I have given in pars 6‑24 the applicant has not in my view established any point of substance to argue or any serious question to be tried, and accordingly its motion should be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 7 April 2000

Counsel for the Applicant:	B F Monotti and E Brophy

Solicitors for the Applicant:	Efron & Associates

Counsel for the Respondent:	F Hampel QC and M Kennedy

Solicitors for the Respondent:	Clayton Utz

Date of Hearing:	22 March 2000

Date of Judgment:	7 April 2000

JUDGE:	SUNDBERG J
DATE OF ORDER:	7 APRIL 2000
WHERE MADE:	MELBOURNE