FEDERAL COURT OF AUSTRALIA

Riverside Nursing Care Pty Ltd v Administrative Appeals Tribunal [2001] FCA 1410

Commissioner of Taxation v Beddoe (1996) 68 FCR 446 applied

Geographical Indications Committee v O’Connor [2000] FCA 1877 applied

Australian Postal Commission v Hayes (1989) 23 FCR 320 cited

Reg v Small Claims Tribunal; Ex parte Cameron [1976] VR 427 distinguished

RIVERSIDE NURSING CARE PTY LTD (Subject to Deed of Company Arrangement) v ADMINISTRATIVE APPEALS TRIBUNAL and ANDREW PODGER (as the Secretary of the Commonwealth Department of Health and Aged Care)

V 1054 OF 2001

SUNDBERG J

5 OCTOBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The motion notice of which was filed on 1 October 2001 be dismissed.

2.                  The applicant pay the second respondent’s costs of and incidental to the motion.

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

REASONS FOR JUDGMENT

1                     By application filed on 1 October 2001 the applicant sought review under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) of a decision of the Administrative Appeals Tribunal made on 28 September 2001 that on the hearing of its application for review under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) of a decision of the second respondent, the case for the applicant should be presented to the Tribunal before the case for the second respondent.

2                     Also on 1 October a notice of motion was filed by which the applicant sought an order pursuant to s 15(1)(a) of the ADJR Act that the operation of the Tribunal’s decision be suspended until the determination of the application or further order.  In the alternative it sought an interlocutory injunction restraining the Tribunal from commencing the hearing of the application for review until the hearing and determination of this proceeding.  This alternative claim was made under s 36B of the Judiciary Act 1903 (Cth).

3                     The Tribunal was to commence hearing the application at 12:00 noon on 2 October.  The motion came before me at 10:15 on that day.  Argument ensued until a little after noon.  Since the Tribunal was due to commence hearing the matter more or less forthwith, I merely ordered that the motion be dismissed with costs and said I would give short reasons in due course.

4                     The second respondent contended that no relief could be granted under s 15(1)(a) of the ADJR Act because the ruling made by the Tribunal as to the order in which the parties’ cases should be presented was a procedural one that did not amount to a “decision” or to “conduct” for the purposes of that Act.  Reliance was placed on Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 451‑453 and Geographical Indications Committee v O’Connor [2000] FCA 1877 at pars 19‑20.  However it was common ground that it was not necessary to decide this issue, because the Court had jurisdiction to grant the interlocutory injunction sought under s 39B of the Judiciary Act.

5                     The applicant’s case was that having regard to the nature of the decision under review (namely the imposition on it of serious sanctions under the Aged Care Act 1997 (Cth)), and the findings necessary for the making of such a decision, it would be denied procedural fairness because it would not have full knowledge of the case presented against it at the hearing, or be able to test that case by objection and cross‑examination, before being required to present its case.

6                     The applicant has not satisfied me that its procedural fairness concern gives rise to a serious question to be tried so as to justify the grant of the relief sought.  Under s 33 of the AAT Act the procedure the Tribunal adopts in a proceeding before it is within its discretion.  However, notwithstanding this discretion, the Tribunal must not adopt a procedure that denies procedural fairness to a party: Australian Postal Commission v Hayes (1989) 23 FCR 320.  It may be that in the course of the review, depending on the way it proceeds and the directions given by the Tribunal, the applicant will be disadvantaged in the conduct of its case in a way that amounts to a denial of procedural fairness.  But it has not satisfied me that the course proposed to be followed will necessarily have that result or even that that is likely to happen.  If there is a denial of procedural fairness in the way the case is in fact conducted, the applicant can seek review of the Tribunal’s decision on that ground.  It is undesirable that proceedings in a court or tribunal should be fragmented and delayed by appeals from or reviews of interlocutory decisions involving matters of practice and procedure: Beddoe at 453, endorsed by a Full Court in the Geographical Indicators case at par 28.

7                     The applicant relied on Reg v Small Claims Tribunal; Ex parte Cameron [1976] VR 427.  But that decision is clearly distinguishable from the present case since the applicant here is well aware of the case put against it for the imposition of sanctions.  The Notice of Decision to Impose Sanctions (5 March 2000) and the Notice of Reconsideration of Decision to Impose Sanctions (4 May 2000) detail the relevant allegations about the way in which the Nursing Home was conducted, acceptance of which resulted in the imposition of the sanctions.

8                     It was for these reasons that I dismissed the motion.

Associate:

Dated:              5 October 2001