FEDERAL COURT OF AUSTRALIA

Saitta Pty Ltd v Commonwealth [2000] FCA 1546

PRACTICE AND PROCEDURE – separate applications for declaratory and injunctive relief brought by approved providers of aged care under Aged Care Act 1997 (Cth) – motion to stay or dismiss proceedings – whether jurisdiction under s 39B(1) or s 39B(1A)(c) of Judiciary Act 1903 (Cth) – whether availability of adequate alternative remedies renders application clearly foredoomed to fail – whether application brought in particular form in attempt to circumvent earlier orders made by another Judge of the Court – whether proceedings an abuse of process of the Court – whether inexcusable delay in instituting proceedings.

Aged Care Act 1997 (Cth) ss 54-2, 65-1, 67-1, 80-1, 85-5, 96-1

Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c)

Federal Court Rules O 20 r 2

Accreditation Grant Principles for 1998

Accreditation Grant Principles for 1999

Transport Workers Union v Lee (1998) 84 FCR 60 at 66-67 applied

In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-6 referred to

Fencott v Muller (1983) 152 CLR 570 at 590, 601, 608 referred to

Croome v Tasmania (1997) 191 CLR 119 at 125 referred to

Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 15 referred to

Abebe v The Commonwealth (1999) 197 CLR 510 referred to

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to

Felton v Mulligan (1971) 124 CLR 367 at 382, 391 referred to

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 441-2 referred to

National Union of Workers v Davids Distribution Pty Ltd (1999) 165 ALR 595 referred to

Bertran v Minister for Justice (1999) 94 FCR 404 at 409-410 referred to

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz (1945) 70 CLR 141 at 154 referred to

Australian Trade Commission v South Bank Corporation [2000] FCA 1322 applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 applied

R v Commonwealth Court of Conciliation and Arbitration; Ex parte The Brisbane Tramways Company Ltd [No 1] (1914) 18 CLR 54 at 66 and 86 referred to

Church of Scientology v Woodward (1982) 154 CLR 25 at 65 referred to

Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127 referred to

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 referred to

Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575 referred to

Vietnam Veterans’ Associations of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 at 432 referred to

Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 245 referred to

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 referred to

Re Jonsson and Marine Council [No. 2] (1990) 12 AAR 323 at 335-341 referred to

Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 at 26 referred to

Land v Clyne (1968) 92 WN(NSW) 134 at 136 referred to

Liverpool and London and Globe Insurance Co Ltd v JW Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 referred to

Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498 referred to

Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 referred to

Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330 at pars 44-47 referred to

Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434 at par 5 referred to

Moore v Inglis (1976) 9 ALR 509 at 513-515 referred to

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 referred to

Kizon v Palmer (No 2) (1998) 82 FCR 310 referred to

Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 294-5 referred to

Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to

South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 referred to

Walton v Gardiner (1993) 177 CLR 378 at 393 referred to

Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 at 82-85 referred to

SAITTA PTY LTD (ACN 005 387 833) v COMMONWEALTH OF AUSTRALIA, THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care), ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) and AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652)

V 732 of 1999

NEVISKIA PTY LTD (ACN 006 552 763) v COMMONWEALTH OF AUSTRALIA, THE HONOURABLE MICHAEL WOOLRIDGE (as the Commonwealth Minister of State for Health and Aged Care), ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care) and AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD (ACN 079 618 652)

V 735 of 1999

WEINBERG J

2 NOVEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  In proceeding V 732 of 1999, the application be dismissed.

2.                  In proceeding V 735 of 1999, the application be dismissed.

3.                  Each applicant and the respondents in each proceeding file by 16 November 2000 a brief outline of submissions in relation to any orders for costs which should be made arising out of the notices of motion dealt with in these reasons for judgment.

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

AND BETWEEN:

REASONS FOR JUDGMENT

1                     These proceedings, which were heard together, concern the operation of the Aged Care Act 1997 (Cth) (“the Act”).  The applicants, Saitta Pty Ltd (“Saitta”) and Neviskia Pty Ltd (“Neviskia”) are approved providers of aged care under the Act.  They share common directors and some senior management.  Saitta is the proprietor of the residential care service conducted at 1 Profita Avenue, Sydenham, under the name “Belvedere Park Nursing Home” (“Belvedere”).  Neviskia is the proprietor of the residential care service conducted at 3 Kenilworth Parade, Ivanhoe, under the name “Kenilworth Nursing Home” (“Kenilworth”). 

2                     In each proceeding the applicant has sought declaratory and injunctive relief, and damages.  The respondents have filed notices of motion seeking to have each proceeding stayed or dismissed.  This judgment deals with the applications brought pursuant to these notices of motion.

3                     In each proceeding the jurisdiction of this Court is said to derive from s 39B(1A)(c) of Judiciary Act 1903 (Cth) (“the Judiciary Act”).  Section 39B(1A)(c) provides:

“The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)          arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

4                     However, during the course of the hearing of the respondents’ motions, the applicants sought and were granted leave to amend their applications to invoke, as a separate basis for jurisdiction, s 39B(1) of the Judiciary Act.  Section 39B(1) relevantly provides:

“… the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

5                     The fact that the applicants now rely upon s 39B(1) of the Judiciary Act as well as s 39B(1A)(c) means that several of the issues debated at length before me are no longer as significant as they were when the respondents’ motions were filed.

6                     In order to understand the issues which have arisen for determination upon the motions, it is necessary to summarise briefly the relief sought by each applicant in each proceeding.

7                     In proceeding V 732 of 1999 Saitta seeks declarations with respect to:

(a)           the decisions to impose sanctions on the applicant made by the Secretary of the Department of Health and Aged Care (“the Secretary”) under ss 65-1 and 67-5 of the Act on 18 December 1998 and 9 February 1999 respectively (“the first sanctions decision” and the “second sanctions decision”);

(b)          a notice of non-compliance under s 67-2 of the Act dated 13 November 1998 preceding the first sanctions decision (“the first notice”);

(c)           a report dated 2 November 1998 prepared by the Aged Care Standards and Accreditation Agency (“the Agency”) in respect of Belvedere (“the first assessment report”);

(d)          assessment reports contained in letters dated 19 and 29 January 1999 and a draft report dated 5 February 1999 prepared by the Agency in respect of Belvedere (“the second assessment reports”);

(e)           the Accreditation Grant Principles for 1998 (“the 1998 Principles”) and the Accreditation Grant Principles for 1999 (“the 1999 Principles”) made by the Minister of State for Health and Aged Care (“the Minister”) pursuant to s 96-1 of the Act;

(f)            a review audit report dated 1 November 1999 in relation to Belvedere prepared by the Agency pursuant to the 1999 Principles (“the review audit report”); and

(g)           a notice of non-compliance under s 67-2 of the Act dated 1 December 1999 (“the second notice”).

8                     Since Saitta instituted this proceeding on 20 December 1999, there have been several developments.  For example, the Secretary has now decided to impose sanctions on Saitta in relation to matters dealt with in both the review audit report and in the second notice. 

9                     Saitta seeks injunctive relief against the respondents restraining them from using, disclosing or publishing either of the first or second assessment reports, the review audit report, or the first or second notices.  Saitta also seeks a mandatory injunction requiring these and related documents to be destroyed.  It claims damages against the Commonwealth, the Minister, and the Secretary alleging breach of statutory duty and negligence.  It also claims damages against the Agency for defamation.

10                  The respondents rely upon O 20 r 2 of the Federal Court Rules (“the Rules”).  That rule relevantly provides:

“(1)     Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a)               no reasonable cause of action is disclosed;

…

(c)               the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.”

11                  The respondents contend that Saitta’s application discloses no reasonable cause of action, and that it is an abuse of the process of the Court.  They submit that:

·                  Saitta has available to it adequate alternative remedies and that the discretionary relief which it seeks will inevitably be refused;

·                  Saitta it is seeking to evade the operation of an order of the Court staying earlier proceedings of a similar nature; and

·                  Saitta has been guilty of inexcusable delay in seeking this relief.

12                  The respondents also seek to have Saitta’s application dismissed for want of jurisdiction.  They contend that s 39B(1A)(c) cannot provide a basis for the jurisdiction of the Court, except to the extent that Saitta seeks to challenge the decisions taken by the Secretary to impose sanctions under the Act.  As indicated earlier, the respondents’ submissions regarding jurisdiction have been overtaken somewhat by Saitta’s having sought and obtained leave to amend its application so that it now relies squarely upon s 39B(1) as a separate basis for jurisdiction.

13                  Finally, the respondents seek to have Saitta’s claim against the Agency for damages for defamation, struck out or dismissed.  The respondents contend that this claim does not lie within the accrued jurisdiction of the Court.  Alternatively, they contend that the manner in which the claim is pleaded is so defective as to warrant it being struck out. 

14                  In proceeding V 735 of 1999 Neviskia seeks relief in terms which are substantially similar to the relief sought by Saitta.  Neviskia seeks declarations with respect to:

(a)           notices of non-compliance under s 67-2 of the Act dated 1 April 1999 and 26 July 1999 respectively (“the first notice” and “the second notice”);

(b)          a report dated 3 March 1999 prepared by the Agency in respect of Kenilworth (“the first assessment report”);

(c)           a report dated 12 June 1999 prepared by the Agency in respect of Kenilworth (“the second assessment report”);

(d)          the 1998 Principles and the 1999 Principles; and

(e)           a letter dated 5 November 1999 from the Agency to Neviskia indicating that the Agency proposed to conduct a review audit at Kenilworth.

15                  As with Saitta, there have been several developments since 21 December 1999, the date on which Neviskia instituted this proceeding.  For example, there have been two subsequent notices issued by the Secretary imposing sanctions, and a further notice of intention to impose sanctions.

16                  As with Saitta, Neviskia seeks injunctive relief against the respondents.  It also claims damages against the Commonwealth, the Minister and the Secretary for breach of statutory duty and negligence, and against the Agency for defamation. 

17                  The respondents seek to have the proceeding brought by Neviskia stayed or dismissed.  They rely upon O 20 r 2 of the Rules.  They contend that in relation to the proceeding no reasonable cause of action is disclosed and that it is an abuse of the process of the Court.  They submit that:

·                  Neviskia has acted prematurely;

·                  Neviskia has available to it adequate alternative remedies; and

·                  Neviskia has been guilty of inexcusable delay in seeking this relief.

18                  The respondents submit that Neviskia’s application should be dismissed upon the basis that this Court has no jurisdiction, under s 39B(1A)(c) of the Judiciary Act, to deal with the matters raised by the application.

19                  Finally, as with Saitta, the respondents submit that Neviskia’s claim for defamation falls outside the Court’s accrued jurisdiction, and that it is, in any event, pleaded so defectively that it should be struck out.

Legislative background

20                  The provisions which are central to these proceedings are to be found in Pt 4.4 of the Act.  That Part concerns what are described as “Consequences of non-compliance”.  Under the relevant provisions, the Secretary may impose sanctions on an “approved provider” that does not comply with its responsibilities under the Act.  However, detailed procedures must be followed before any such sanctions are imposed.

21                  The key provision is s 65-1 which provides:

“65-1  Imposition of Sanctions  

The Secretary may impose sanctions (see Division 66) on an approved provider if:

            (a)       the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and

            (b)       the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider (see section 65-2); and

            (c)        the Secretary complies with the requirements of Division 67.

Note:  Decisions to impose sanctions are reviewable under Part 6.1.”

22                  Section 65-2 sets out a number of matters which the Secretary must consider when determining whether it is appropriate to impose sanctions on an approved provider for non-compliance with one or more of its responsibilities.

23                  Section 66-1 lists, in apparent descending order of gravity, the sanctions that may be imposed by the Secretary.  That section relevantly provides:

“66-1  Sanctions that may be imposed 

The Secretary may, by notice in writing, impose one or more of the following sanctions on an approved provider that has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3:

(a)               revoking or suspending the approved provider’s approval under Part 2.1 as a provider of aged care services;

(b)               restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to aged care services that are being conducted by the approved provider at the time the sanction is imposed;

(c)               restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to either:

                       (i)        care recipients to whom the approved provider is providing care at the time the sanction is imposed; or

                       (ii)       care recipients other than those to whom the approved provider commenced providing care, through one or more specified aged care services, after the time the sanction is imposed;

(d)               revoking or suspending the allocation of some or all of the places allocated to the approved provider under Part 2.2;

(e)               varying the conditions to which the allocation of some or all of those places is subject under section 14-5;

(f)                prohibiting the further allocation of places under Part 2.2 to the approved provider;

…”

24                  Section 67-1 provides:

“67-1  Procedures for imposing sanctions 

(1)       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).

(2)       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 well-being of care recipients to whom the approved provider is providing care.”

25                  Section 67-5 requires the Secretary to notify the approved provider, in writing, of the Secretary’s decision on whether to impose a sanction on the approved provider in respect of non-compliance by the approved provider with its responsibilities.  If the Secretary decides to impose a sanction, the notice must set out the matters described in s 67-5(2). 

26                  Not surprisingly, the Act makes detailed and elaborate provision for the reconsideration and review of decisions.  Section 85-1 sets out, in a table, a series of decisions, each of which is said to be a “reviewable decision”.  Item 54 of that table renders a decision by the Secretary to impose a sanction on an approved provider, which is made under s 65-1, a “reviewable decision”. 

27                  Section 85-5(1) provides that a person whose interests are affected by a reviewable decision may request the Secretary to reconsider that decision.  Section 85-5(5) provides that, after receiving the request the Secretary must reconsider the decision, and confirm, vary, or set it aside. 

28                  Section 85-8 provides:

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

29                  The effect of s 85-8 is that the Administrative Appeals Tribunal (“the AAT”) may only review a reviewable decision after the Secretary has first been requested to reconsider that decision, and has either confirmed, varied or set it aside.

30                  It is necessary to say something about the provisions of the Act which set out the responsibilities of approved providers.  Section 53-1 indicates that these responsibilities relate to:

·                    the quality of care they provide (see Pt 4.1);

·                    user rights for the people to whom the care is provided (see Pt 4.2); and

·                    accountability for the care that is provided (see Pt 4.3).

31                  Section 54-1 sets out the responsibilities of an approved provider in relation to the quality of the aged care that the approved provider provides.  These responsibilities include:

·                    to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;

·                    to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met;

·                    if the care is provided through a residential care service after the accreditation day – to comply with the Accreditation Standards made under s 54-2; and

·                    if the care is provided through a residential care service before the accreditation day – to comply with the Residential Care Standards made under s 54-3.

32                  The Quality of Care Principles to which reference is made in s 54-1 are those made by the Minister under s 96-1 (see Item 18).  The accreditation day to which reference is made is defined in s 42-4(2) as the day specified in the Residential Care Subsidy Principles made by the Minister under s 96-1, or, if no such day is specified, 1 January 2001. 

33                  Section 54-2 provides:

“54-2 Accreditation Standards

(1)       The Quality of Care Principles may set out Accreditation Standards. Accreditation Standards are standards for quality of care and quality of life for the provision of residential care on and after the accreditation day.

(2)       The following are examples of matters with which the Accreditation Standards may deal:

            (a)   health and personal care of care recipients;

            (b)   the lifestyle of care recipients;

            (c)   safe practices and the physical environment in which residential care is provided;

            (d)   management systems, staffing and organisational development relating to the provision of residential care.”

34                  Section 54-3 provides that the Quality of Care Principles may set out “Residential Care Standards”.  These are standards for quality of care and quality of life for the provision of residential care before the accreditation day.  The examples of matters with which the Residential Care Standards may deal are similar, but not identical, to the examples of matters with which the Accreditation Standards may deal.

35                  Section 80-1 provides:

“80-1  Accreditation grants

(1)       The Secretary may, on behalf of the Commonwealth, enter into a written agreement with a body corporate under which the Commonwealth makes one or more grants of money to the body for the following purposes:

            (a)   accreditation of residential care services in accordance with the Accreditation Grant Principles;

            (b)   any other purposes specified in the Accreditation Grant Principles, including the performance of any of the functions of the Secretary under this Act that are specified in the Accreditation Grant Principles.

A grant of money under this subsection is an accreditation grant.

Note:     The Accreditation Grant Principles are made by the Minister under section 96-1.”

36                  The Accreditation Grant Principles to which reference is made in s 80-1 are the 1998 and 1999 Principles. These Principles were made by the Minister under s 96-1 (Item 2).  Section 96-1 relevantly provides:

“(1)      The Minister may make Principles, specified in the second column of the table, providing for matters:

(a)     required or permitted by the corresponding Part or section of this Act specified in the third column of the table to be provided; or

(b)     necessary or convenient to be provided in order to carry or give effect to that Part or section.

…

(2)       Principles are disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901.”

37                  Section 80-1(2) sets out a series of examples of matters with which the Accreditation Grant Principles may deal.  These include the procedures to be followed in deciding whether to accredit a residential care service, and the procedures to be followed in revoking or suspending the accreditation of such a service. 

38                  The “body corporate” to which reference is made in s 80-1 is the Agency, which is the fourth respondent in each of these proceedings.

39                  The 1998 Principles operated throughout 1998, until they were revoked on 2 September 1999. They were replaced by the 1999 Principles which came into operation on that date.  Both sets of Principles set out the procedures to be followed, and the matters to be taken into account, when assessing residential care services, and the conditions to which grants may be subject. 

40                  Section 2.5 of the 1998 Principles set out the functions to be performed by the Agency.  That section provided:

“2.5  Assessment of residential care services

1.         The accreditation body must arrange for assessments of residential care services to be conducted during the transition period.

2.                  An assessment of a residential care service must take into account whether the level of care provided by the service to care recipients complies with the Residential Care Standards.

3.                  The accreditation body may use any of the following indicators to decide the order in which residential care services are to be assessed:

a.                  any change of ownership of the services;

b.                  the number and seriousness of complaints made against the service;

c.                   the length of time since the service was last assessed;

d.                  the results of previous assessments of the service.”

41                  Section 2.6 set out the procedures for assessment of residential care services.  Section 2.7 made provision for the publication of assessment reports.  Section 2.8 required the Agency to make available to anyone who requested it a copy of an approved assessor’s report. 

42                  Section 2.9 set out the consequences of failure to comply with the Residential Care Standards.  Relevantly it provided:

“1.      If, in performing its functions, the accreditation body identifies a failure by a residential care service to comply with the Residential Care Standards, the accreditation body must decide whether the failure has placed, or may place, the safety, health or wellbeing of persons receiving care through the service at serious risk. 

2.                  If the accreditation body decides that the failure has placed, or may place, the safety, health or wellbeing of persons receiving care through the service at serious risk, the accreditation body must immediately tell the Secretary and the service, in writing, about the failure and any concerns of the accreditation body.

3.                  If the accreditation body decides that the failure has not placed, and will not place, the safety, health or wellbeing of persons receiving care through the service at serious risk, the accreditation body must tell the residential care service, in writing, about:

a.         the areas in which improvements must be made by the service to ensure that it complies with the Residential Care Standards; and

b.         the timetable to make improvements in the areas; and

c.                  the program of visits by an approved assessor to assess progress made by the service in making improvements in the areas.

…”

43                  The balance of s 2.9 set out a detailed timetable for action in such cases.

44                  The 1999 Principles are very similar to the 1998 Principles.  Part 4 of the 1999 Principles deals with non-compliance with the 1999 Principles.  A distinction is drawn between residential care services provided before 1 January 2001, and services provided after that date.  Division 2 applies in respect of residential care services provided before 1 January 2001, while Division 3 applies in respect of accredited residential care services provided on and after that date. 

45                  Section 4.2 of the 1999 Principles deals with evidence of serious risk to residents in respect of services provided before 1 January 2001.  That section provides:

“(1)     If a desk audit, site audit or review 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, as soon as it becomes aware of the evidence:

(a)                tell the Secretary, in writing, about it; and

(b)               give a copy of the report, and other relevant documents, to the Secretary, and the approved provider that operates the service, as soon as practicable.

(2)              A report for paragraph (1)(b) must include:

(a)               specific information about the reason for the risk, and evidence of the risk; and

(b)               recommendations to the Secretary about whether or not sanctions under the Act should be imposed on the approved provider; and

(c)               a statement of any standards or outcomes that have not been complied with; and

(d)               any improvement outline that the accreditation body considers appropriate in the circumstances.”

46                  Section 4.3 deals with evidence of non-compliance with one or more of the approved provider’s responsibilities under Pt 4.1, 4.2 or 4.3 of the Act.  That section imposes upon the Agency reporting responsibilities which are similar to those imposed upon the Agency under s 4.2. 

47                  Division 2 requires residential care services to comply with the Residential Care Standards.  Residential care services are expected to work towards achieving accreditation in accordance with the Accreditation Standards.  Accreditation will only be given to residential care services that can demonstrate compliance with those Standards. 

48                  Division 3 requires residential care services that are accredited on and after 1 January 2001 to comply with the Accreditation Standards, and to demonstrate continuous improvement, measured against those Standards.

Chronology of relevant events

49                 Having regard to the complex issues arising out of the somewhat convoluted legislative scheme outlined above, it is necessary to summarise briefly the history of the dealings between the two nursing homes involved in these proceedings, and the respondents. 

Saitta

First sanctions decision:

18 December 1998               decision to impose sanctions on the applicant (“the first sanctions decision”)made by the Secretary under s.67‑5 of the Act

18 February 1999                 applicant seeks judicial review of the first sanctions decision in proceeding VG 71 of 1999

5 March 1999                       applicant seeks reconsideration of the first sanctions decision

3 May 1999                          North J orders stay of VG 71 of 1999

2 June 1999                          first sanctions decision confirmed on reconsideration

6 July 1999                           applicant seeks review of reconsideration of first sanctions decision by AAT

20 December 1999               Federal Court proceeding VG 732 of 1999 commenced

31 March 2000                     AAT advises application for review adjourned until motion in VG 732 of 1999 determined

This decision was preceded by:

2 November 1998                 report (“the first assessment report”) prepared by the Agency in respect of Belvedere

13 November 1998               notice of non-compliance under s 67-2 of the Act (“the first notice”)

5 December 1998                 notice of intention to impose sanctions under s 67-3 of the Act

Second sanctions decision:

9 February 1999                   decision to impose sanctions on the applicant (“the second sanctions decision”) made by the Secretary under s 67-5 of the Act

18 and 24 February               second sanctions decision varied on reconsideration

1999                                    

18 February 1999                 applicant seeks judicial review of second sanctions decision in proceeding VG 71 of 1999

5 March 1999                       applicant seeks reconsideration of second sanctions decision as varied

18 March 1999                     applicant seeks review of reconsideration of second sanctions decision, as varied, by AAT

3 May 1999                          North J orders stay of VG 71 of 1999

20 December 1999               Federal Court proceeding VG 732 of 1999 commenced

31 March 2000                     AAT advises application for review adjourned until motion in VG 732 of 1999 determined

This decision was preceded by:

19 and 29 January 1999        assessment reports (“the second assessment reports”) prepared by the Agency in respect of Belvedere described in letters of those dates

5 February 1999                   draft report prepared by the Agency in respect of Belvedere

Subsequent events:

1 November 1999                 review audit report prepared by the Agency in relation to Belvedere

1 December 1999                 second notice of non-compliance pursuant to s.67-2 of the Act

15 February 2000                 notice of intention to impose sanctions under s.67-3 of the Act

2 May 2000                          decision to impose sanctions on the applicant made by the Secretary under s.67-5 of the Act

Neviskia

3 March 1999                       letter prepared by the Agency in respect of Kenilworth (“the first assessment report”)

1 April 1999                          notice of non-compliance (“the first notice”)under s.67-2 of the Act

12 June 1999                        report prepared by the Agency in respect of Kenilworth (“the second assessment report”)

26 July 1999                         notice of non-compliance under s.67-2 of the Act (“the second notice”)

5 November 1999                 letter from the Agency to the applicant indicating that the Agency proposed to conduct a review audit at Kenilworth

12 November 1999               further letter from the Agency to the applicant setting out a time for the Agency to conduct a review audit at Kenilworth commencing on 7 December 1999

15-16 December 1999          review audit commenced, consent withdrawn by applicant

21 December 1999               Federal Court proceeding VG 735 of 1999 commenced

11 January 2000                    notice of non-compliance given under s.67-2 of the Act, arising from review audit commenced on 15 December 1999

24 February 2000                 notice of non-compliance given under s.67-2 of the Act, relating to withdrawal of consent

2-3 March 2000                    review audit of Kenilworth conducted by Agency

10 March 2000                     notice of intention to impose sanctions given under s.67-3 of the Act, arising from review audit commenced on 15 December 1999

24 March 2000                     notice of decision to impose sanctions under s.67-5 of the Act, arising from review audit conducted on 2-3 March 2000

4 April 2000                          notice of decision to impose sanctions under s.67-5 of the Act, arising from review audit commenced on 15 December 1999

20 April 2000                        notice of intention to impose sanctions under s.67-5 of the Act in relation to withdrawal of consent

27 April 2000                        applicant seeks reconsideration under s.85-5 of the Act in relation to decision to impose sanctions dated 24 March 2000

The nature of each applicant’s claims against the respondents

50                  In substance, each applicant contends that the Secretary, acting in the course of his employment, owed to it, as an approved provider of aged care, a statutory duty, or alternatively, a duty of care, to ensure that any decision taken under ss 65-1 and 2, and ss 67-1 and 2, was made lawfully, and in accordance with the requirements of procedural fairness.  Moreover, each applicant claims that the Secretary was under a duty to ensure that any decision of the type referred to was made by him, or by his duly appointed delegate, and by no other person.  That meant that the Secretary was under a duty to ensure that any such decision was based upon and supported by evidence which either the Secretary or his delegate had personally considered, and was not based upon any information which could not lawfully be taken into account. 

51                  Each applicant notes that both the 1998 and 1999 Principles purport to confer upon the Agency the power to appoint persons to assess residential care services, and to determine whether or not the level of care provided by those services complies with the standards specified in the Quality of Care Principles.  To the extent that the 1998 and 1999 Principles seek to confer such powers upon the Agency, it is submitted that these Principles are ultra vires and invalid.  The argument is that the Principles may only be made for the purpose of dealing with matters of accreditation, and that the 1998 and 1999 Principles go far beyond that purpose.

52                  Each applicant also contends that the 1998 and 1999 Principles also purport to give the Agency the power to require assessors to carry out their tasks in a manner which denies approved providers procedural fairness.  Again, it is submitted that these Principles are ultra vires and invalid for that reason.

53                  In addition, each applicant refers to s 96-2(5) of the Act which provides:

“(5)     The Secretary may, in writing, delegate to a person making an assessment for the purposes of section 22-4 all or any of the Secretary’s functions under Part 2.3.”

54                  Each applicant submits that neither the Agency, nor the assessors, are persons to whom the powers under the Act have been delegated in accordance with the requirements of that subsection.  Accordingly, they are not persons who should be making assessments under s 22-4 of the Act. 

55                  Each applicant submits that the information gathered by the assessors, and passed on to the Agency, is “protected information” pursuant to s 86-1 of the Act.  That section provides:

“In this Part, protected information is information that:

(a)          was acquired under or for the purposes of this Act; and

(b)          either:

(i)        is personal information; or

(ii)               relates to the affairs of an approved provider; or

(iii)             relates to the affairs of an applicant for approval under Part 2.1; or

(iv)             relates to the affairs of an applicant for a grant under Chapter 5.”

56                  Section 86-2 of the Act renders the use of such protected information an offence punishable by imprisonment for two years.  That section is in the following terms:

“(1)  A person is guilty of an offence if:

(a)               the person makes a record of, discloses or otherwise uses information; and

(b)               the information is protection information; and

(c)               the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act.

…

(2)         This section does not apply to:

(a)               conduct that is carried out in the performance of a function or duty under this Act or the exercise of a power under, or in relation to, this Act; or

(b)               the disclosure of information only to the person to whom it relates; or

(c)               conduct carried out by an approved provider; or

(d)               conduct that is authorised by the person to whom the information relates; or

(e)               conduct that is otherwise authorised under this or any other Act.

…”

57                  Saitta contends that on 30 and 31 July 1998, 3 August 1998, and 15 and 16 September 1998, in purported reliance upon the 1998 Principles, the Agency, and its assessors, entered the premises of Belvedere, interviewed its residents and its members of staff, inspected its records and other documents kept at those premises, and purported to conduct an assessment of its performance against the Residential Care Standards.  This led to the preparation of the first assessment report regarding Belvedere, and to the publication of that report to the public at large.  Saitta submits that this conduct occurred for reasons unconnected with accreditation, and in contravention of s 86-2(1).  It submits that the powers purportedly relied upon to justify the Agency’s conduct were not conferred for any reasons other than those connected with accreditation.  The Agency therefore acted without any proper statutory basis.  In addition Saitta contends that the first assessment report defamed Belvedere.  It seeks to recover damages for that defamation. 

58                  Saitta also challenges the first notice issued by the Secretary on 13 November 1998.  It contends that this notice was given in reliance upon the contents of the first assessment report.  The first assessment report is said to have been prepared unlawfully, and to have been communicated and published to the Secretary without lawful authority, and in contravention of s 86-2(1). 

59                  Saitta claims that the first notice was given by the Secretary without his having satisfied himself of the matters required by s 67-2(1) of the Act.  That section provides:

“67-2  Notice of non-compliance

(1)       If the Secretary is satisfied that an approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3, the Secretary may give to the approved provider a notice of non-compliance.

(2)              The notice must be in writing and must:

(a)          set out details of the non-compliance by the approved provider; and

(b)          set out broadly what action the Secretary requires the approved provider to take to remedy the non-compliance; and

(c)          set out what sanctions under this Part can be imposed on the approved provider; and

(d)          invite the approved provider to make submissions, in writing, to the Secretary addressing the matter within 14 days after receiving the notice, or within such shorter period as is specified in the notice; and

(e)          inform the approved provider that the Secretary may, after considering the submissions (if any), give to the approved provider:

(i)      a notice of intention to impose sanctions; or

(ii)          a notice to remedy the non-compliance; or

(iii)        a notice of intention to impose sanctions in respect of a specified part of the non-compliance and a notice to remedy the remainder of the non-compliance.

(3)               The Secretary must consider any submissions made by the approved provider.”

60                  Saitta contends that it was not given any opportunity to be heard in relation to the decision to issue the first notice.  It says that it was therefore denied procedural fairness. 

61                  It is by reason of these matters, taken in conjunction with each other, that Saitta contends that the first notice was issued unlawfully.  Saitta claims that the Secretary acted in breach of his statutory duty, and in breach of a common law duty of care.  Saitta makes similar complaints in relation to the first sanctions decision of 18 December 1998. 

62                  It is unnecessary to set out separately each of the claims made by Neviskia against both against the Secretary and the Agency.  They are in substance the same as those made by Saitta.

63                  In summary, therefore, each applicant claims that the 1998 and 1999 Principles were, and are, ultra vires and invalid.  It follows that the conduct of the Agency and the assessors, acting purportedly in reliance upon those Principles, were unlawful.  To the extent that the Secretary ultimately relied upon information provided by the Agency, or by the assessors, his actions too are said to be unlawful.  Those actions are said to give rise to a claim in negligence.  Finally, each applicant claims to have been defamed by the Agency, and to be entitled to recover damages as compensation.

The respondents’ challenge to the jurisdiction of this Court

64                  In their notice of motion in relation to the application brought by Saitta, the respondents move for orders that, save to the extent that the application seeks to challenge the first and second sanctions decisions, the proceeding be dismissed for want of jurisdiction.  The respondents contend that there is otherwise no “matter” arising under any law made by the Parliament which is capable of attracting jurisdiction under s 39B(1A)(c) of the Judiciary Act. 

65                  In relation to the application brought by Neviskia the respondents move for orders that this proceeding be dismissed for want of jurisdiction.  As in the case of Saitta, they contend that there is no “matter” arising under any law made by the Parliament, so as to attract jurisdiction under s 39B(1A)(c).

66                  I shall deal first with the respondents’ challenge to jurisdiction in relation to the application brought by Saitta.  The respondents submit that the first and second sanctions decisions are the only decisions which give rise to any justiciable controversy between the parties in the sense required under s 39B(1A)(c).  They point to the fact that the two sanctions decisions involve the applicant and the Secretary only, and they submit that there is no basis for the claims made against the Commonwealth, the Minister, and the Agency. 

67                  The respondents submit that the word “matter” in s 39B(1A)(c) must bear the same meaning in that section as the word “matter” bears in s 76 of the Constitution.  They rely in support of this proposition upon the judgment of the Full Court in Transport Workers Union v Lee (1998) 84 FCR 60 at 66.  They submit that the “matter” to which reference is made is not the proceeding itself, but the subject of the controversy which is amenable to judicial determination in the proceeding – In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-6; Fencott v Muller (1983) 152 CLR 570 at 608; Croome v Tasmania (1997) 191 CLR 119 at 125; and Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 15.  They submit that a “matter” is ordinarily concerned with “some immediate right, duty or liability to be established by the determination of the Court” – Abebe v The Commonwealth (1999) 197 CLR 510. 

68                  The respondents submit that the only “matter” which can be said to arise for determination in this proceeding is the controversy as to the validity of the decisions taken by the Secretary to impose sanctions.  The other “decisions” which are impugned by Saitta are said to be of no significance when considered independently of those two sanctions decisions.  The respondents contend that no controversy which is amenable to judicial determination can therefore arise in relation to those other decisions – Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334.

69                  The respondents also put this part of their case on an alternative basis.  They refer in particular to the requirement in s 39B(1A)(c) that the matter “arise under” any law of the Parliament.  They draw attention, in that context, to the observations of Menzies J in Felton v Mulligan (1971) 124 CLR 367 at 382:

“… there is a difference between a matter arising under a law and a matter involving the interpretation of a law.  A matter may involve the interpretation of a law without arising under that law. …  A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation.  A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law.”

70                  The meaning of the expression “arise under” any law of the Parliament is also discussed by Windeyer J in Felton v Mulligan at 391; and in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 441-2; National Union of Workers v Davids Distribution Pty Ltd (1999) 165 ALR 595; and Bertran v Minister for Justice (1999) 94 FCR 404 at 409-410.

71                  The respondents submit that although the controversy between the parties plainly involved the interpretation of the Act, and therefore of a law of the Parliament, it does not, except in so far as it concerns the first and second sanctions decisions, “arise under” the Act.  The respondents submit that the validity of the steps preceding the making of those decisions need not be determined independently of the validity of the sanctions decisions themselves.  They submit that the validity of the steps preceding the making of those decisions is confined to the part which those steps may have played in making the sanctions decisions.  They invoke the observations of Menzies J in Felton v Mulligan, and submit that it not “necessary [in relation to the earlier decisions] that there should be a decision upon a claim made by one of the parties to the litigation which is based upon” the Act.  They submit that the steps preceding the making of those decisions have been overtaken by, and subsumed in, the sanctions decisions.  They claim that no justiciable controversy remains to be resolved in relation to those earlier steps.

72                  In applicants submit that their challenge to the validity of the 1998 and 1999 Principles is properly to be characterised as giving rise to a “matter” which arises under a law of the Parliament, and that they are justified in relying upon s 39B(1A)(c) of the Judiciary Act as the basis for invoking the jurisdiction of this Court.  They contend that no distinction should be drawn between the steps preceding the making of the first and second sanctions decisions, and those decisions themselves.  They are all to be regarded as part of a factual matrix which gives rise to a justiciable controversy, and which involves not merely the interpretation of the Act, but also its scope and operation as the putative source of power for what the respondents have done.

73                  The applicants submit that if, however, it were to be held that s 39B(1A)(c) cannot be invoked as the basis upon which this Court has jurisdiction to deal with the matters in dispute, s 39B(1) nonetheless confers jurisdiction to deal with their claims.

Findings on challenge to jurisdiction

74                  Before considering the merits of these competing submissions it may be useful first to comment briefly about the statutory sources of federal jurisdiction.

75                 The jurisdiction of this Court at its inception in 1976 was defined, not generally by the Judiciary Act, but specifically, by particular statutes.  These included the Bankruptcy Act 1966 (Cth), the Trade Practices Act 1974 (Cth), and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  Section 39B of the Judiciary Act, enacted in 1983, confers on this Court jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of theCommonwealth.  Section 39B follows the jurisdiction conferred on the High Court by s 75(v) of the Constitution.

76                 In 1997 s 39B(1A) of the Judiciary Act was enacted.  The effect of s 39B(1A)(c) is, inter alia, to confer upon this Court jurisdiction in any matter arising under any laws made by the Parliament.

77                 In Transport Workers Union of Australia v Lee (supra) a Full Court comprising Black CJ, Ryan and Goldberg JJ observed at 65:

“Section 39B(1A) was introduced by the Law and Justice Legislation Amendment Act 1997 (Cth), the Explanatory Memorandum for which confirms that an ample grant of jurisdiction was intended.  In relation to s 39B(1A) the memorandum states:

“The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts in civil matters.

The jurisdiction gives the Federal Court a greater role in administration of federal laws, by ensuring that the Court is able to deal with all matters that are of an essentially federal nature.””

78                  The Full Court referred to the well-known passage from the judgment of Menzies J in Felton v Mulligan (set out above).  Their Honours also referred to the following observations of Gibbs J in the same case where his Honour said at 416:

“… a matter arises under law made by the Parliament when a right, title, privilege or immunity is claimed under that law.  A right, title, privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law.”

79                  The Full Court then referred to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz (1945) 70 CLR 141 at 154 where Latham CJ said:

“…a matter may properly be said to arise under a Federal law if the right or duty in question owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.  In either of these cases, the matter arises under the Federal law.  If a right claimed is conferred by or under a Federal statute, the claim arises under the statute.”

80                  Finally, the Full Court turned to the construction of s 39B(1A)(c) of the Judiciary Act.  Their Honours said at pp 66-67:

“The claim made by the applicants in the proceeding in this Court is that by reason of the provisions of a law made by the Parliament, namely s 170MT(2) of the Workplace Relations Act, they are immune from the proceedings brought against them under the law of Queensland in the Industrial Magistrates’ Court at Kingaroy.  They also claim that the same provision gives them a right to make application to the Federal Court not to be subjected to an action which, by reason of federal law, does not lie.  They claim that on its true construction s 170MT(2) operates as an immunity, or a bar to proceedings, rather than as a mere defence.  The right for which they primarily contend is a right not to be subjected to a prosecution in respect of protected action but they say, in the alternative, that s 170MT(2) is available by way of defence.

In our view the applicants are correct in their submission that the Court does have jurisdiction to hear and determine their claim.  That claim is a matter arising under a law made by the Parliament, in this case the Workplace Relations Act, because it is necessary for the Court to determine whether that law confers the rights which the applicants claim in this proceeding.  There being a matter before the Court arising under a law made by the Parliament, the Court has jurisdiction derived from s 39B(1A)(c) to determine the controversy between the parties.”

81                  Recently, in Australian Trade Commission v South Bank Corporation [2000] FCA 1322, Kiefel J dealt with a challenge to the jurisdiction of this Court arising out of an “interim decision” of the AAT as to the meaning of certain provisions conferring entitlement under the Export Market Development Grants Act 1997 (Cth).  The terms of the declaration sought in that case made it clear that any such declaration would not be finally determinative of the parties’ rights.  If granted, it would be made without reference to certain findings of fact still to be made. 

82                  It is significant that although her Honour held that the Court would not, as a matter of discretion, grant the declaratory relief sought, it certainly had jurisdiction with respect to the application.  The basis upon which her Honour held that there was jurisdiction was, in part at least, by reason of s 39B(1A)(c) of the Judiciary Act. 

83                  Kiefel J noted that the difficulty raised in relation to jurisdiction was that the “decision” under challenge was not one of a final nature, operative or determinative in the sense referred to in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.  There, in the context of the ADJR Act, Mason CJ observed at 337 that:

“… a reviewable “decision” … will generally, but not always, entail a decision which is final or operative and determinative … of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision …” 

84                  However, Kiefel J noted that Mason CJ had continued at 338:

“To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach.  Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.”

85                  As her Honour noted, the observations of Mason CJ in Bond go no further than to suggest that intermediate conclusions or findings will ordinarily only be regarded as capable of being reviewed under the ADJR Act in so far as they are sufficiently linked to a final or operative decision. 

86                  Adopting the reasoning of Kiefel J, the question to be considered in the present case is whether the steps preceding the making of the first and second sanctions decisions are sufficiently linked to those decisions to render those steps part of a “matter” or “matters” within the meaning of s 39B(1A)(c).

87                  In my opinion, this Court has jurisdiction to entertain at least the principal claims made by each applicant.  It seems to me that the approach taken by the respondents to the issue of jurisdiction invites a piecemeal analysis to be undertaken of each step preceding the making of the first or second sanctions decisions with a view to determining whether or not that step, considered in isolation, constitutes a “matter” in the relevant sense.  That approach does not commend itself to me.

88                  The applicants’ claims, put simply, are that a series of steps have been taken in purported reliance upon the 1998 and 1999 Principles.  Each of these steps is said to have been taken without lawful authority.  In the case of Saitta, these steps have culminated in decisions being taken to impose sanctions in relation to Belvedere.  In the case of Neviskia, these steps had not, at the time these proceedings were commenced, yet reached that point.  However, notices imposing sanctions have been issued subsequently.

89                  Each applicant has pointed to significant prejudice which it claims to have suffered by reason of these various steps having been taken.  Section 39B(1A)(c) was intended to provide ample scope for judicial review.  That section should not be given an unduly narrow interpretation by treating as separate and disconnected a series of steps preceding the making of final and operative decisions when those steps are in truth part and parcel of those decisions.  There is a single ongoing controversy between the applicants and the respondents arising out of the applicants’ challenge to the validity of the entire legislative scheme under which the various steps carried out by the respondents were performed.  That fact should not be obscured.

90                  It may be true, in one sense, that a number of the steps preceding the making of the first and second sanctions decisions in the case of Saitta have been subsumed in those decisions.  However, Saitta’s challenge to the lawfulness of those decisions is itself based upon what it contends were legal flaws which attended the performance of those steps.  It is impossible to consider the validity, or otherwise, of those decisions without considering the validity, or otherwise, of the steps preceding the making of those decisions.  Each of the steps taken which led to the making of the decisions is, in my view, linked with the other steps taken, and with the decisions themselves.  Whether or not the steps were lawful, and whether or not the decisions were lawful, is to be determined by answering the same legal question.  It follows that the principal claims all give rise to a single justiciable controversy, which constitutes a “matter” arising under a law made by the Parliament. 

91                  In any event, it is now clear that the applicants seek to invoke s 39B(1) of the Judiciary Act as an alternative basis upon which the jurisdiction of this Court rests.  The relief which they seek plainly includes injunctive relief against an officer or officers of the Commonwealth.  Both the Minister and the Secretary are officers of the Commonwealth – see R v Commonwealth Court of Conciliation and Arbitration; Ex parte The Brisbane Tramways Company Ltd [No 1] (1914) 18 CLR 54 at 66 and 86; and Church of Scientology v Woodward (1982) 154 CLR 25 at 65.  The fact that the Agency, though charged with statutory responsibilities under Commonwealth legislation, is not an officer of the Commonwealth (see Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500; Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 at 575; and Vietnam Veterans’ Associations of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 at 432) is of no consequence.

92                  It follows that even if I am wrong in holding that the jurisdiction is conferred upon this Court by s 39B(1A)(c), there is no doubt in my mind that such jurisdiction is conferred by s 39B(1).  It follows that the respondents’ challenge to the jurisdiction of this Court must fail.

The respondents’ contention that the proceedings should be stayed or dismissed on discretionary grounds

93                  The respondents contend that the proceeding brought by Saitta should be stayed or dismissed on discretionary grounds.  They invoke O 20 r 2(1)(a) and (c) of the Rules.  They contend that:

·                    the applicant has adequate alternative remedies available to it;

·                    the applicant is seeking to evade the operation of an order of the Court staying earlier proceedings; and

·                    the applicant has been guilty of inexcusable delay.

94                  In relation to the first of these matters, the respondents observe that each of the first and second sanctions decisions is a “reviewable decision” under s 85-1 (Item 54) of the Act.  As such, Saitta was entitled, pursuant to ss 85-4 and 85-5 to request the Secretary to reconsider each of these decisions. 

95                  Saitta sought reconsideration by the Secretary of the first sanctions decision by letter dated 5 March 1999.  That decision was confirmed after reconsideration by a delegate of the Secretary on 2 June 1999.  The second sanctions decision was varied by a delegate of the Secretary on 18 and 24 February 1999.  Saitta requested reconsideration of that decision, as varied, by the Secretary by letter dated 5 March 1999. 

96                  Each of the decisions made upon reconsideration of the first and second sanctions decisions was capable of review by the AAT pursuant to s 85-8 of the Act.

97                  On 18 March 1999 Saitta commenced proceedings in the AAT seeking review of the second sanctions decision as varied after reconsideration.  Then, on or about 6 July 1999, Saitta commenced proceedings in the AAT seeking review of the first sanctions decision. Each application for review claimed that the particular sanctions decision which was sought to be reviewed was based, inter alia, upon erroneous and unjustified findings, opinions, conclusions and assumptions.  Each application also raised numerous other challenges to what had occurred.  One ground, in particular, which was relied upon in both applications was in the following terms:

“The Secretary was not entitled to have regard to the reports and other information given to him by the Aged Care and Accreditation Agency Ltd (“the Agency”) referred to in the decisions and reasons therefor.”

98                  Saitta also claimed that by adopting and relying upon the findings of the Agency the Secretary abrogated his statutory duty under the Act to make determinations and findings and also to exercise personally, or by his delegate, the discretions reposed in him.

99                  These grounds of review by the AAT raise for consideration virtually the same issues as are raised for consideration in proceeding V 732 of 1999 in this Court.  The AAT has held directions hearings in relation to each of Saitta’s applications for review.  It has adjourned those applications pending the hearing and determination of the present motion brought by the respondents in this Court.

100               On 18 February 1999, prior to commencing proceedings in the AAT, Saitta commenced proceeding V 71 of 1999 in this Court.  In that proceeding it sought judicial review of each of the first and second sanctions decisions.  By order made on 3 May 1999, on the return of a notice of motion filed by the respondents to that proceeding, North J ordered that proceeding V 71 of 1999 be stayed until further order. 

101               In the course of hearing the motion, his Honour said to counsel for Saitta:

“… any application in circumstances in which there is a stay order in force would involve you persuading that Court that the stay should be lifted for the purpose of making the application and it seems to me that’s perfectly appropriate in circumstances where you have got concurrent or at least proceedings that relate to the same decisions presently under consideration by applications in the AAT.”

102               Notwithstanding the clear import of these observations, Saitta elected on 20 December 1999 to institute the present proceeding, V 732 of 1999.  It is obvious that the matters raised for determination in this proceeding are capable of being decided by the AAT in the application for review which is pending before it. 

103               The AAT is able to decide questions of law arising in proceedings before it – Administrative Appeals Tribunal Act 1975 (Cth), s 42.  Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so.  Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened – Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 245 per Brennan J.  The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so – Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; and Re Jonsson and Marine Council [No. 2] (1990) 12 AAR 323 at 335-341. 

104               The relief which is sought by Saitta in proceeding V 732 of 1999 is discretionary.  The fact that it has available to it adequate alternative remedies in the AAT in proceedings which it has already commenced provides considerable support for the proposition that the proceeding in this Court should at least be stayed.  Where full merits review is available to, and has already been invoked by, an applicant, Courts will often exercise their discretion to stay or dismiss applications for judicial review – see Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 at 26 per Street J; Land v Clyne (1968) 92 WN(NSW) 134 at 136 per Myers J; Liverpool and London and Globe Insurance Co Ltd v JW Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 per Else-Mitchell J; Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498 per Dixon CJ; Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 per Beaumont J; Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330 at pars 44-47 per Finn J; and Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434 at par 5 per Sundberg J. 

105               I am also of the opinion that the institution of this proceeding by Saitta represents an attempt on its part to circumvent the plain intent of the orders made by North J when his Honour stayed proceeding V 71 of 1999.  North J made it clear that the application for judicial review of the sanctions decisions should be dealt with, in the first instance at least, by the AAT.  His Honour arrived at that conclusion because he was satisfied that the AAT was in a position to reconsider these decisions in their entirety.  Standing in the shoes of the Secretary, the AAT can determine whether or not the decisions to impose sanctions were the “correct and preferable” decisions – Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.  I respectfully agree with the views expressed by North J.  The further application brought by Saitta is, in my view, an abuse of process, and may be dismissed as such notwithstanding minor differences in the identity of the parties, or the formulation of the claims – Moore v Inglis (1976) 9 ALR 509 at 513-515 per Mason J.  See also Kizon v Palmer (No 2) (1998) 82 FCR 310.

106               As to the third matter raised by the respondents in relation to the application brought by Saitta, namely what is said to be its inexcusable delay, I am satisfied that this ground should also succeed.  Proceeding V 732 of 1999 was filed in this Court on 20 December 1999, approximately twelve months after the decision to impose sanctions on Saitta which was made by the Secretary on 18 December 1998, and some six months after that decision was confirmed on reconsideration.  The second sanctions decision was taken on 9 February 1999, and varied thereafter on reconsideration on 18 and 24 February 1999.  In other words, almost one year passed between the taking of the original decisions, and the application by Saitta to review those decisions.  The fact that Saitta instituted proceeding V 71 of 1999 on 18 February 1999, which was stayed by North J on 3 May 1999, does not provide any adequate explanation for the delay which has occurred.  In my view, no such explanation has been provided.  The Court would almost certainly refuse the declaratory relief sought, on this ground alone, in the exercise of its discretion. 

107               Saitta purports to seek damages for breach of statutory duty, and/or negligence, and also for defamation.  It seems to me that these claims have been included in this application largely in order to circumvent the limitations which exist upon judicial review, and the discretionary considerations which favour staying or dismissing this application.  I have serious doubts, in particular, as to whether Saitta’s claim for defamation is bona fide.  If it is, it may be pursued in a State court.  In any event, I doubt that this Court would exercise accrued jurisdiction to deal with that claim given that many of the issues of fact which it raises are wholly separate from the issues of validity which lie at the heart of the principal claims.  It is difficult to see the claim for defamation as forming part of the one controversy between the parties – Fencott v Muller (supra) at 608, Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261 at 294-5; and Re Wakim; Ex parte McNally (1999) 198 CLR 511.

108               The respondents submit that the pleading relating to defamation is defective.  They say that a trading corporation can only be defamed if it has been impugned in its method of conducting its affairs, or has been accused of fraud or mismanagement, or has had its financial position attacked – South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 141 per Lopes LJ.  They say that no such imputation has been pleaded.  They also attack the adequacy of the particulars of malice which have been supplied. 

109               It is unnecessary for me to resolve these issues.  In the light of my findings that, on discretionary grounds, Saitta’s application has no reasonable prospects of success, and is, in any event an abuse of the process of the Court, that application should be dismissed.

110               In relation to the proceeding bought by Neviskia, it is sufficient to observe that many of the same considerations apply. 

111               It will be remembered that on 24 March 2000 notice was given to Neviskia under s 67-5 of the Act of a decision to impose sanctions arising from a review audit conducted on 2 and 3 March 2000.  On 4 April 2000 notice was given of a decision to impose sanctions arising from a review audit commenced on 15 December 1999.  On 20 April 2000 notice was given of intention to impose sanctions in relation to the withdrawal of consent.  On 27 April 2000 Neviskia sought reconsideration of the decision of 24 March 2000 to impose sanctions. 

112               The respondents submit that the proceeding brought by Neviskia is premature.  The notices which have been given have overtaken the earlier events which were the subject of proceeding V 735 of 1999 and are said to be the source of the real legal dispute presently existing between the parties. 

113               The respondents point to the fact that Neviskia has full rights to merits reconsideration by the Secretary under s 85-5 of the Act, and full merits review by the AAT in respect of those sanctions.  It is clear, therefore, that Neviskia has available to it adequate alternative remedies to those now sought in this Court.  The prospect that the Court would grant discretionary relief to Neviskia in circumstances where it has such remedies available to it is minimal.  In such circumstances it is open to this Court to order that proceedings be stayed or dismissed because they are clearly “foredoomed to fail” – see Walton v Gardiner (1993) 177 CLR 378 at 393; and Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 at 82-85 per Heerey J.  Accordingly, in my opinion, Neviskia’s application should be dismissed. 

114               Having regard to the success of Saitta and Neviskia in relation to one of the issues before the Court, I propose to hear the parties further in relation to the question of costs.

Associate:

Dated: