Barnett, v Staples, Hon Peter as former Minister for Housing and Aged Care and / or the Minister for Human Services and Health [1996] FCA 51

Original Word Document (30.5 KB)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 877 of 1995

BETWEEN:

ROSS BARNETT

Applicant

-and-

THE HON MR PETER STAPLES MP

AS FORMER MINISTER FOR HOUSING AND AGED CARE

AND/OR THE MINISTER FOR HUMAN SERVICES AND HEALTH

Respondent

Coram: Olney J

Place: Melbourne

Date: 14 February 1996

MINUTE OF ORDER

THE COURT ORDERS THAT the application to extend time to commence this proceeding be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in rule 36 of the Federal Court Rules.

ReasonsIN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 877 of 1995

BETWEEN:

ROSS BARNETT

Applicant

-and-

THE HON MR PETER STAPLES MP

AS FORMER MINISTER FOR HOUSING AND AGED CARE

AND/OR THE MINISTER FOR HUMAN SERVICES AND HEALTH

Respondent

Coram: Olney J

Place: Melbourne

Date: 14 February 1996

REASONS FOR JUDGMENT

The applicant seeks an extension of time within which to make application under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to review

a decision stated in a document dated 19 July 1990 addressed to Messrs Marshall, Marshall and Dent, solicitors, being a decision that:

The AIP granted to [the Applicant] on 27 July 1988 was to relocate the existing AIP for a 30 bed nursing home [dated 23 September 1987] from one site to another.

(The initials AIP are an abbreviation for the term approval in principle which is used in relevant sections of the National Health Act 1953 (Cwth)).

The document referred to in the above extract from the proposed application is in fact a letter dated 19 July 1990 written by the then Federal Minister for Aged, Family and Health Services, the Hon Peter Staples MP, the full text of which is as follows:

Ms C. Miller

Marshall, Marshall & Dent

GPO Box 1645N

MELBOURNE VIC 3001

Dear Ms Miller

I refer to your telephone inquiry of 16 July on behalf of Mr Ross Barnett, proprietor of Balwyn Nursing Home, concerning eligibility of the home for funding under the Small Nursing Home Initiative.

Circular CNH (NG) 89009 PE of July 1989 which sets out the new funding arrangements for small nursing homes provides under the heading "Capital Assistance for Redevelopment" at Paragraph B33 as follows:

Homes are eligible for the $4000/$2000 per bed grants if their Approval-in-Principle (AIP) for new beds or their AIP to transfer beds was granted on or after 21 April 1988 (the day on which the CAM funding arrangements and the small homes policy were announced).

The AIP referred to in this paragraph is an AIP to expand from a small home (whether by the granting of new beds or the acquisition of existing beds from another nursing home) to a non-small home. A small home being a nursing home with 20 beds or less as defined in the circular.

An AIP to establish a 30 bed nursing home was first granted to Mr Barnett on 28 February 1986. The AIP granted to him on 27 July 1988 was to relocate the existing AIP for a 30 bed nursing home from one site to another. As such it is not an AIP to expand a small home, and therefore not an AIP of the type contemplated as eligible under the new funding arrangements for small nursing homes. Balwyn Nursing Home, with AIP for 30 beds since 1986, is not eligible for capital assistance under the small homes arrangements.

Yours sincerely,

(Sgd) Peter Staples

A date stamp on the original letter suggests that it was received on 22 July 1990.

It is common cause that the time prescribed by s 11 (1) of the ADJR Act for lodging the application for review expired at the end of the twenty-eighth day after the letter of 19 July 1990 was furnished to the applicant. However, the Court has a general discretion to allow an applicant further time within which to lodge an application.

Despite the numerous expressions of judicial opinion as to the circumstances in which it is appropriate to grant an extension of time under s 11(1), the discretion is at large and must be exercised judicially having regard to the facts of the particular case, the policy of the legislation and the interests of justice. It is necessary therefore to review the history of the surrounding circumstances which have preceded the present application and it will be convenient to commence that task by first referring to an earlier application made by the applicant in relation to the same subject matter.

In proceeding VG 38 of 1991 (the 1991 application) the applicant sought to have reviewed decisions of the respondent

1. That the applicant was ineligible for assistance by way of a grant under the Small Homes Initiative.

2. That the applicant's application for assistance by way of a grant under the Small Homes Initiative be rejected.

The 1991 application was filed on 25 February 1991 and sought:

By way of principal relief orders that for each of the decisions:

(a) Each decision of the respondent be quashed and set aside.

(b) The respondent give re-consideration to the decisions subject to such directions as the Court thinks fit.

The 1991 application itself did not particularise the decisions which the applicant sought to have reviewed, however, the applicant's affidavit sworn 7 March 1991 and filed in that proceeding contains a detailed history of correspondence and submissions which had taken place over several years between the applicant and his representatives on the one hand and the respondent and his representatives on the other which culminated in the letter of 19 July 1990. In paragraph 43 of that affidavit the applicant said:

43. Now produced and shown to me and marked with the letters "RDB35" is a letter received by Messrs Marshalls & Dent from The Hon Peter Staples MP dated 19 July 1990. This letter stated, inter alia, that the AIP granted to me on 27 July 1988 was to relocate the existing AIP for a 30 Bed nursing home from one site to another and, accordingly, was not an AIP to expand a small home and as such was ineligible under the new funding arrangement for small nursing homes.

It is beyond question that to the extent that the letter of 19 July 1990 can be said to contain a decision, it was a decision that Balwyn Nursing Home (a business of which the applicant says he was sole proprietor at the time) was not eligible for capital assistance under the small homes arrangements.

On 30 May 1991 the applicant filed a notice of motion in the 1991 proceeding seeking:

1. An order for mandamus and certiorari;

2. A declaration of right;

3. A declaration pursuant to Section 39B of the Judiciary Act 1903 that the respondent had no proper basis for determining that the applicant was not entitled to a grant pursuant to the Small Homes Initiative.

and on 17 July 1991 the respondent filed a notice of objection to the competency of the Court to make the orders sought in the notice of motion on the grounds that:

(a) The orders and declarations sought in the course of the notice of motion are not sought in accordance with procedures prescribed by the Rules of the Federal Court.

(b) The Court has no jurisdiction with respect to any matter in which a Writ of Certiorari is sought.

(d) The material in support of the Notice of Motion does not disclose any basis in law for any of the orders sought to course of the notice of motion.

The 1991 application was tried before Heerey J on 5 September 1991. Judgment was given on 20 September 1991. The following extracts from Heerey J's reasons for judgment provide a convenient outline of the matters addressed by the Court and his Honour's conclusion in relation to the ADJR Act application:

The applicant was the proprietor of a nursing home. He seeks to challenge in this court a decision that he is not eligible for capital grants under a government programme called "The Small Nursing Homes Initiative" ("the programme"). He challenges that decision under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") and also seeks an order for mandamus.

I have come to the conclusion that this court does not have jurisdiction to grant any of the relief Mr Barnett seeks.

Financial assistance to the proprietors of nursing homes is regulated by Part V of the National Health Act 1953.

In July 1989 the Department of Community Services and Health published circular No CNH(NG) 89009 VE entitled "New Funding Arrangements for Small Nursing Homes". ...

The circular is a quite detailed document. The actual policy had been announced earlier on 21 April 1988. The circular included the following:

The $4,000/$2,000 per Bed Grants

(a) Eligibility

B33 Homes are eligible for the $4,000/$2,000 per bed grants if their Approval-in-Principle for new beds or their Approval-in-Principle to transfer beds was granted on or after 21 April 1988 (the date on which the CAM funding arrangements and the small homes policy were announced).

Approval-in-Principle is a statutory mechanism under s 39A of the National Health Act. Its purpose is to give to persons seeking to have premises granted the status of an approved nursing home under s 40AA(1) the practical assurance that they can proceed with acquisition or construction of these premises in the knowledge that, if all relevant conditions are complied with, their application will not be refused.

For some years prior to 1986 Mr Barnett had been the proprietor of the Balwyn Nursing Home at 3 Belgrove Avenue, Balwyn. On 28 February 1986 he received approval-in-principle to make an alteration or addition to that home which would increase the number of beds from 14 to 30. Some difficulties arose about that project and Mr Barnett made plans to transfer his operation to premises at 33 Banool Road, Balwyn. On 23 September 1987 he received approval-in-principle to establish a nursing home at 33 Banool Road as an approved nursing home of 30 beds. For reasons not presently relevant, that project did not proceed either and Mr Barnett then made arrangements for moving his business to 982 High Street Road, Glen Waverley in premises to be erected. On 27 July 1988 he was granted approval-in-principle to establish a nursing home of 30 beds at that address.

Mr Barnett's argument is that he is eligible for the bed grant because for the purposes of clause B33 of the circular the relevant approval-in-principle was that for the Glen Waverley premises and that approval-in-principle was granted after 21 April 1988. The Department's argument is that the approval-in-principle referred to in clause B33 is an approval-in-principle to expand from a "small home", i.e. one with 20 beds or less, whether by the adding of new beds or the acquisition of existing beds from another nursing home. The Department says that the approval-in-principle granted to Mr Barnett on 27 July 1988 was to relocate the existing approval-in-principle for a 30 bed nursing home (which he had originally obtained on 28 February 1986) from one site to another. As such, so the argument goes, it was not an approval-in-principle to expand a small home and therefore not an approval-in-principle of the type contemplated by clause B33.

But as a preliminary point the Department argues that the decision not to treat Mr Barnett as eligible for the grant is not a decision "under an enactment" within the meaning of s 3 of the AD(JR) Act. Further it is said that there is no public duty imposed on the respondent enforceable by mandamus.

Decision Under an Enactment

It was accepted before me that there was no relevant statute or regulation which conferred power to decide whether or not to make grants of the relevant kind and that the only statutory authority for the Department's conduct of the programme is to be found in the appropriation legislation. The relevant Appropriation Acts for 1988-89 and 1989-90 contained under the heading "Department of Community Services and Health" a sum of money against the item:

6. Residential Care for Older People (including payments to relevant trust accounts).

In the present case the decision was not, in my opinion, made "under an enactment". The only possibly relevant enactment is the Appropriation Act. That particular legislation says nothing, expressly or by implication, about the programme. It does not provide for the making of the decision in question (or indeed any decision) and is not the source of power for the Minister to make it. The Appropriation Act merely makes lawful the use of public moneys for the purposes indicated.

...

His Honour also concluded that there was no basis for the grant of mandamus and further that on the facts of the case no question arose of any contract which might have been enforceable on the basis of the rule in Carlill v Carbolic Smoke Ball Co (1892) 2 QB 484.

The 1991 application was dismissed.

The applicant was made bankrupt on 7 August 1992 and was discharged on 10 September 1995. On 15 November 1995 Ryan J ordered:

That the Official Trustee execute within 14 days an appropriately formulated deed of assignment to the applicant, Ross Barnett, of any course (sic) of action or right or rights of litigation against the Minister for Housing and Aged Care, and The Minister for Community Services and Health, or one or other of them which previously enured for the benefit of the said Ross Barnett and which vested in the Official Trustee by force of the sequestration order made on 7 August 1992.

It is common cause that from 7 August 1992 to 15 November 1995 the applicant was not in a position to institute the proposed proceeding. His evidence in relation to the period from 19 July 1990 to 7 August 1992 (at paragraph 9 of his affidavit sworn 23 November 1995) is:

9. Between 20 September 1991 and 3 August 1992 the Applicant

(a) could not afford to pay for further professional legal advice and

(b) was not entitled to legal aid and

At paragraph 11 of the affidavit he says:

11. Between 1991 and 1994 the applicant studied the provisions of

(a) the Administrative Decisions (Judicial Review) Act 1977,

(b) the National Health Act 1953 and

in the course of which study the applicant learned that the decision of the Respondent regarding "the transfer of an AIP" stated in the letter dated 19 July 1990 is not consistent with the provisions and requirements of section 39B of the National Health Act 1953.

In his affidavit sworn 23 November 1995 filed in support of his application for an extension of time in this proceeding the applicant says at paragraphs 3 to 7 (inclusive):

3. In 1990 Mr Michael Dent made approaches to the respondent, on behalf of the applicant, regarding a decision made by the respondent consequent upon a document numbered CNH89009PE bearing the title New Funding Arrangements for Small Nursing Homes, a document published
and distributed by the Department of Community Services and Health in July 1989.

4. By letter dated 19 July 1990, the respondent stated a decision consequent upon the document mentioned in paragraph 3 above and also a decision relating to the granting of a certificate of Approval-in-Principle to establish a nursing home dated 27 July 1988 granted under the provisions of section 39B of the National Health Act 1953. A copy of the letter dated 19 July 1990 is attached hereto at exhibit RB1.

5. On the advice of counsel, the applicant filed under the provisions of the Administrative Decisions (Judicial Review) Act 1977 an application for an order of review and also an application under the provisions of the Judiciary Act 1903 an application regarding mandamus in relation to the respondent's decision consequent upon the document identified in paragraph 3 above (refer VG 38 of 1991).

6. On 20 September 1991 his Honour Mr Justice Heerey handed down a ruling in this matter that the document identified in paragraph 3 above is not a statutory document and, as such, neither subject to the Administrative Decisions (Judicial Review) Act 1977 nor to mandamus. On this basis, his Honour ruled that the Federal Court was not competent to hear the matter and a copy of his Honour's ruling is attached hereto at exhibit RB2.

7. His Honour did not, in 1991, have regard to the provisions and requirements of section 39B of the National Health Act 1953, and his Honour did not, in 1991, have regard to the fact that a certificate of Approval-in-Principle dated 27 July 1988 was granted under the provisions of sub-section 39B(5) of the National Health Act1953 is not mentioned in his Honour's ruling.

The applicant's interpretation of Heerey J's decision as expressed in paragraph 6 of his affidavit is in my view erroneous. His Honour clearly addressed the issue of whether the decision complained of i.e. the decision that the applicant was not eligible for capital grants under the Small Nursing Homes Initiative was a "decision under an enactment" as that term is used in the ADJR Act. His conclusion was that it was not such a decision.

The applicant does not now seek to contest a different decision from that litigated in 1991 but rather wishes to attack the same decision on different grounds. The conclusion Heerey J expressed in his reasons of 20 September 1991 that the decision under attack was not one caught by the ADJR Act
is not challenged by the applicant, and that remains the case irrespective of the basis upon which the applicant may seek to attack it. The basis of the attack cannot alter the nature of the decision.

The proposed fresh application is in my opinion vexatious and is doomed to failure. It is entirely inappropriate that time should be extended.

The application to extend time will be dismissed with costs.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard: 6 February 1996

Place: Melbourne

Judgment: 14 February 1966

Appearances:

The applicant appeared in person.

Mr J. Lenczner (instructed by the Australian Government

Solicitor) appeared for the respondent.

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