FEDERAL COURT OF AUSTRALIA

Transcon Holding Pty Ltd v Aged Care Quality and Safety Commission [2020] FCA 780

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to appeal is dismissed.

2.    The applicant is to pay the costs of the respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant was an approved home care provider under the Aged Care Act 1997 (Cth) (Aged Care Act), and on 8 August 2019, that approval was revoked pursuant to the then sub-section 10-3(7) of the Aged Care Act. On 4 October 2019, the applicant sought a formal reconsideration of the revocation decision, however, that decision was affirmed on 29 November 2019. By notice on 6 December 2019, the respondent notified the applicant that its approval as a provider was revoked effective from 20 December 2019. On 10 December 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision and on 11 December 2019, sought an interlocutory order that the decision under review be stayed. On 23 January 2020, the Tribunal refused the applicant’s application for a stay (stay decision) pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The substantive proceedings before the Tribunal are presently ongoing.

2    This is an application for an extension of time to appeal that stay decision of the Tribunal, relying on s 44(1) of the AAT Act. There is no issue that an extension of time would be necessary to pursue this matter, with the application to this Court having been commenced later than 28 days after the day on which the reasons of the Tribunal were provided to the applicant: see AAT Act s 44(2A) .

3    For the reasons below, the application for an extension of time is dismissed.

Procedural history

4    On 8 April 2020, the respondent filed a notice of objection to competency, objecting to the competency of the draft notice of appeal on the basis that the stay decision did not dispose of the substantive matter before the Tribunal and therefore, was not a “decision” from which an appeal could be brought pursuant to s 44(1) of the AAT Act.

5    On 4 May 2020, on application by the applicant, not opposed by the respondent, an order was made dispensing with compliance with r 4.01(2) of the Federal Court Rules 2011 (Cth) and the applicant was granted leave to proceed without legal representation. Orders were also made for the filing of written submissions by the parties, and a date for hearing was set.

6    In accordance with the orders, the respondent filed submissions on 26 May 2020.

7    On 28 May 2020, after the due date, the applicant filed its written submission.

8    At the beginning of the hearing the applicant requested an adjournment for a week on the basis that it had not seen the respondent’s submission until that day and wanted time to address the issues in it. However, as became apparent, the respondent had served its submission on the applicant on 26 May 2020 in an email thread between the parties, as required by the order, and the applicant accepted that was so. However, the applicant said that it had not realised the submission was there and did not know if it related to these or the Tribunal proceedings. I note that it is clear from the document that the submission relates to these proceedings, as it clearly states “Federal Court of Australia” and the relevant file number is included in the document on more than one occasion. Moreover, the submission relates to an extension of time in relation to the stay application which, as the applicant acknowledged, was only before this Court. The adjournment was opposed for several reasons including that the applicant was put on notice of the issue in relation to the competency of the matter (which was the focus of the respondent’s written submission) as early as 8 April 2020, and the assertion that an email was received by the applicant’s email address but not looked at because no one checked it, had been raised by the applicant on a number of previous occasions. The adjournment was refused but leave was given for the applicant to file an additional written submission which addressed the respondent’s written submission. That submission focussed on the competency of the application.

Stay decision

9    The Tribunal, having set out the relevant background of the matter, evidence before it, and the legislative framework for making a stay decision pursuant to section 41(2) of the AAT Act, concluded: the prospects of success at the final merits hearing were “limited”; the applicant failed to demonstrate it faced substantial adverse consequences other than those already sustained; and while acknowledging the applicant’s claim that there may be limited opportunities for aged persons in some ethnic or multicultural communities to access quality aged care, and that such people may develop a special attachment to such providers, there was a substantial public interest in ensuring that no person in an aged care facility was exposed to the risk of care from non-compliant providers. The Tribunal did not accept that a refusal of a stay would render nugatory the continuing processes of the Tribunal and the applicant’s appeal or that the grant of a stay would restore the applicant to anything like the position it was in prior to the revocation decision coming into effect. Lastly, as required by the AAT Act, the Tribunal considered the “interests of any persons who may be affected by the review” and contemplated the impact upon the applicant’s clients and employees. The Tribunal concluded that having considered the relevant considerations, and found that none of them carried sufficient weight in the applicant’s favour, the application for a stay was refused.

Submissions

10    As noted above, a notice of objection to competency was filed. The respondent submitted that the appeal was incompetent and therefore it would be futile to grant the extension of time. The respondent also submitted, for completeness, even if the applicant were able to appeal the stay decision, the draft notice of appeal does not identify any error in the reasons of the Tribunal nor “any reasonable basis for the contention that the Tribunal’s decision was affected by legal error”, noting that s 41(2) of the AAT Act confers a broad discretion on the Tribunal to make orders staying or otherwise affecting the operation of the decision under review, and therefore, does not enliven this Court’s jurisdiction: AAT Act s 44(1).

11    During the oral hearing the applicant did reply to the respondent’s submission. The applicant submitted that an interlocutory application before the Tribunal’s final decision could not be appealed, but submitted the stay decision was a final decision on the basis that the Tribunal was no longer involved with that decision. On the day after the hearing, the applicant did file an additional submission in reply to the respondent’s submission. In that submission the applicant contended that “[a]n interlocutory order does not decide the dispute, whereas the final order does decide the dispute and bring the proceedings to a closure” and “[a]n application for stay order is independent, such order allowing status quo while both parties going through the legal proceeding”. The applicant submitted that it is a grey area of the law, that the respondent is “using cases to argue its points” and that an appeal from a stay order is “often and quite normal”.

12    The supplementary written submission also addressed additional matters including submissions that “weigh in favour of [the] applicant for a stay order” in this case.

13    It is unnecessary to recite the submissions in detail as they cannot overcome the lack of jurisdiction of this Court to hear the appeal, as explained below.

14    Suffice to say, the crux of the applicant’s submission was directed to the factual conclusions reached by the Tribunal in rejecting the stay application. In reality, the argument was that there should have been no revocation of its approval, and the Commission had acted with no evidence. While the applicant took issue with aspects of the Tribunal’s conclusions, including those in relation to the application for review being rendered nugatory, I note that much of the submissions included more general assertions not directed to the interlocutory decision. The submissions were in large part directed to supporting the position that there was no basis for their approval to have been revoked. The matters relied on are, if anything, more relevant to the substantive hearing which is currently before the Tribunal. That said, there is no basis to suggest that the Tribunal did not apply the correct principles to the evidence, or that it ignored evidence. The complaint rather is with the result. It was a plea that this Court grant a stay of the revocation. The submissions in that respect were directed to why this Court should grant a stay.

15    As explained below, this Court does not have jurisdiction to hear this matter.

Consideration

16    The power to extend time in which to appeal is unfettered, however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters to which the Court will usually have regard to, identified in that judgment, are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17] - [19] per Spender, O’Loughlin and Dowsett JJ.

17    Although the respondent takes issue that no adequate explanation for the delay has been provided, it accepts that no prejudice is suffered from the delay. It also accepted that the delay was only four days.

18    Regardless of any explanation for the delay, there is a more fundamental issue as to the merit of the substantive appeal if the extension were granted. As noted above, the respondent filed a notice of objection to competency.

19    This is an application in relation to a refusal by the Tribunal to grant a stay of the decision revoking the applicant’s approval as a provider of aged care pending the hearing of the substantive review.

20    As noted above, the appeal is pursuant to s 44 of the AAT Act, which relevantly is limited to appeals “on a question of law, from any decision of the Tribunal in that proceeding”: s 44(1) (emphasis added).

21    In Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 (“Chaney”) the Full Court (Deane and Fisher JJ) held that “decision” in the context of s 44(1) is to be given a narrow meaning and refers to a final decision or determination of the Tribunal. Deane J at 593 (with Fisher J agreeing) concluded that:

…an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.

22    Further at 594 Deane J stated:

Nor, in my view, was the interim order made by the Tribunal suspending the operation of the decision of the Director-General, a decision of the Tribunal from which an appeal properly lay to this Court pursuant to s.44 of the Act. The fact that such an order has independent operative effect does not, in the circumstances, warrant further qualification of the general rule that an appeal under s.44(1) only lies from the determination effectively disposing of the proceeding before the Tribunal. Indeed, the power to make such an interim order pursuant to s.41(2) of the Act is, in terms, for the purpose of securing the effectiveness of the hearing and determination by the Tribunal of the application for review and could hardly have been intended to provide the occasion whereby the hearing and determination of an application for review could be frustrated and delayed by preliminary appeals brought, as a matter of right, upon any question of law that might happen to be involved in the making of an interim order.

23    Fisher J, agreeing with Deane J added at 596:

Such conclusion denying a right of appeal to this court on the preliminary ruling at this stage of the proceedings before the Tribunal conforms, in my opinion, not only with the scheme of the [AAT Act] and its true construction but also with the restraint properly accepted by courts when appeals from administrative tribunals are limited to errors of law. In such circumstances it is generally considered inappropriate for courts to intervene until the statutory process is completed.

24    Chaney has repeatedly been applied: see for example, Kishore v Tax Practitioners Board [2016] FCA 1328; (2016) 244 FCR 320 at [19] per Robertson J; Chief of Navy v Angre [2016] FCAFC 171; (2016) 244 FCR 457 at [47]-[49] per Mortimer J with Allsop CJ agreeing at [2], Griffiths J agreeing at [5] and Perry J agreeing at [90]; Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at [18]-[23] per Spender, Graham and Gilmour JJ; and see a summary of some of the cases in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 at [17]-[25] per Besanko J.

25    Based on the reasoning in Chaney, a refusal to grant a stay cannot be said to determine the outcome of the substantive application to the Tribunal for review, and is not a “decision” for the purposes of section 44(1) of the AAT Act: Frugtniet v Tax Practitioners Board [2013] FCA 752; (2013) 136 ALD 324 at [22]-[23] per Murphy J; Kumar v Secretary, Department of Social Services [2019] FCA 202 at [6] per Logan J; Mahaffy v Administrative Appeals Tribunal [2015] FCA 251 at [16] per Wigney J.

26    Accordingly, any appeal would be incompetent.

27    It follows that it would be futile to grant an extension of time, as this Court has no jurisdiction to hear the appeal, an obstacle which is insurmountable.

Conclusion

28    The application for an extension of time in which to appeal is dismissed with costs.

Associate:

Dated:    5 June 2020