Federal Court of Australia

McGough v The Aged Care Quality and Safety Commissioner [2022] FCA 523

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to institute review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is refused.

2.    The application for remedies under s 39B of the Judiciary Act 1903 (Cth) is refused.

3.    The applicant pay the costs of the respondent to be assessed by a registrar of this Court if not agreed.

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

Table of Contents

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant, Linda McGough, is aggrieved by administrative decisions and a recommendation that were made in 2009 and 2010 limiting her visiting access to her late mother, Greta, who was then a resident of the Koh-I-Noor Nursing Home in Perth.

2    The nursing home was at that time operated by the Civilian Maimed & Limbless Association of Western Australia (Inc) (CMLA). CMLA was an approved provider within the meaning of the Aged Care Act 1997 (Cth), and, adopting the convention of the parties, I will refer to it as the Approved Provider.

3    There was at the relevant time a scheme in place under the Act that provided for the management and resolution of complaints and other concerns in accordance with instruments made by the Minister setting out various Principles, including the Investigation Principles 2007.

4    Under the Investigation Principles 2007 it was open to Ms McGough to make a complaint to the Secretary, Department of Health and Ageing, about a matter involving an approved provider's responsibilities under the Act or any Principles. Ms McGough made a complaint about the Approved Provider's conduct in limiting her visiting access to her mother.

5    A delegate of the Secretary investigated the complaint, and made a decision on 22 December 2009 (First Decision). Ms McGough was aggrieved by the First Decision and applied to the Aged Care Commissioner for an examination of the First Decision, a course provided for in the Investigation Principles 2007. A delegate of the Commissioner made a recommendation to the Secretary on 5 March 2010 (Recommendation). A delegate of the Secretary then reconsidered the First Decision, and made a further decision on 24 March 2010 (Second Decision).

6    Ms McGough is aggrieved by each of the First Decision, the Recommendation and the Second Decision, and applies to this Court for an extension of time to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). She also seeks relief under s 39B of the Judiciary Act 1903 (Cth). The application for an extension of time was filed in this Court on 13 August 2021 and amended on 5 October 2021. Ms McGough seeks an order that the respondent's decisions be set aside, and that the matter be referred back to the respondent for proper consideration of both an alleged breach of the Approved Provider's obligation to provide access and of the delegate's decision not to issue a notice of required action to the Approved Provider.

7    It is apparent that Ms McGough has a deeply-felt commitment to pursue judicial review, fuelled by her clear devotion to her late mother and her disappointment with the events that occurred towards the end of her mother's life. Further, I acknowledge that Ms McGough followed closely and had some involvement in the Royal Commission into Aged Care Quality and Safety. Many of her submissions referenced the Royal Commission and its findings. I acknowledge that the findings referred to failures in the quality and service of aged care in Australia. However, this Court is concerned with the particular circumstances of the First Decision, the Recommendation and the Second Decision. For the reasons that follow, I am not satisfied that an extension of time or other relief should be granted.

Statutory framework - complaints and the Aged Care Act

8    Before reciting the relevant events, it is appropriate to set out the statutory framework under which Ms McGough's complaints were considered. References to statutory provisions are to the provisions as in force at the time.

9    Division 96 of the Act is headed 'Miscellaneous'. Section 96.1 provides that the Minister may, by legislative instrument, make Principles providing for specified matters in the Act. Relevantly, s 96.1 provides that the Minister may make 'Investigation Principles' dealing with Part 6.4A of the Act and 'User Rights Principles' dealing with Part 4.2 of the Act.

10    Part 6.4A of the Act is entitled 'Investigations'. Relevantly, the Minister made the Investigation Principles 2007 with respect to that Part.

11    The commencement of the Investigation Principles 2007 includes the following note:

Note: Part 6.4A of the Aged Care Act 1997

Part 6.4A of the Aged Care Act 1997 is about the investigation of matters relating to the Act or the Principles made under section 96-1 of the Act.

These Principles deal with:

(a)    which matters are to be investigated;

(b)    how investigations are to be conducted;

(c)    considerations in making decisions relating to investigations;

(d)    procedures for the Aged Care Commissioner to examine certain decisions made in relation to investigations and also to examine certain complaints.

12    Section 16A.5 of the Investigation Principles 2007 provides that a person may provide information to the Secretary by way of a complaint:

Giving information to Secretary

(1)    A person may give to the Secretary (by way of complaint or otherwise) information about a matter involving an approved provider's responsibilities under the Act or Principles.

(2)    Information may be given orally or in writing, and may be given anonymously.

…

13    Section 16A.6 provides that if satisfied that the complaint relates to an approved provider's responsibilities, the Secretary must investigate the matter:

Threshold test - what matters are to be investigated

(1)    If the Secretary receives information mentioned in section 16A.5, the Secretary must assess the information to determine whether it relates to an approved provider's responsibilities under the Act or Principles.

(2)    Subject to section 16A.7, if the information relates to an approved provider's responsibilities under the Act or Principles, the Secretary must investigate the matter.

14    Section 16A.8 grants to the Secretary a broad discretion as to how such an investigation is to be conducted:

How investigations are to be conducted

(1)    If the Secretary is satisfied that a matter requires investigation, the Secretary may conduct the investigation in the manner that the Secretary considers appropriate for the purpose of determining whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.

…

(3)    In conducting the investigation, the Secretary may, but is not required to, do any of the following:

(a)    analyse and review documents;

(b)    visit the aged care service;

(c)    meet with the informant (if known), the relevant provider or any other person;

(d)    arrange for the informant (if known and if the informant's identity is not required to be kept confidential), the relevant provider or any other person to meet with one another to try to resolve any issues in dispute;

(e)    request information from persons.

15    Section 16A.15 empowers the Secretary to make a determination as to breach:

Determining whether there has been a breach

After investigation, the Secretary may determine whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.

16    Where the Secretary determines that there has been a breach, the Secretary must give notice of the breach and may give to the approved provider a 'notice of required action', but where prior to the giving of such notice the relevant provider has already taken action to comply, then there is no need for such notice. This is set out in s 16A.16 of the Investigation Principles 2007:

Action following determination of breach

(1)    This section applies if the Secretary determines that the relevant provider has breached its responsibilities under the Act or Principles.

(2)    The Secretary must give to the relevant provider:

(a)    written notification that it has breached its responsibilities under the Act or Principles; and

(b)    a statement that it may apply to the Aged Care Commissioner for examination of this decision under Part 6.

(3)    The Secretary may give to the relevant provider a notice specifying the action that the relevant provider must take to comply with its responsibilities under the Act or Principles (notice of required action).

(4)    If, before a notice of required action is given, the relevant provider complies, or takes appropriate action to comply, with its responsibilities in a way that is satisfactory to the Secretary, the Secretary may (instead of giving the notice of required action) give a written acknowledgment of the action taken by the relevant provider.

(5)    Nothing in this section prevents the Secretary from taking action under Part 4.4 of the Act instead of action under these Principles.

17    In certain circumstances, where a person is aggrieved by a decision of the Secretary, including a decision under s 16A.15 of the Investigation Principles 2007, they may apply to the Aged Care Commissioner for examination of the decision.

18    Part 6 of the Investigation Principles 2007 addresses the role of the Aged Care Commissioner, commencing with the following note:

Note

The Aged Care Commissioner's 3 main areas of responsibility are:

(a)    dealing with complaints about the Secretary's processes for handling matters under the Investigation Principles 2007 and the conduct of accreditation bodies relating to their responsibilities under the Accreditation Grant Principles or the conduct of persons carrying out audits, or making support contacts, under those Principles;

(b)    examining decisions mentioned in section 16A.21 or 16A.22;

(c)    undertaking its own investigations in relation to the matters mentioned in paragraph (a) (see Act, s 95A-1).

19    Section 16A.21 sets out the kinds of decisions that may be the subject of an examination:

Application by care recipient or representative for examination

An aggrieved person who is dissatisfied about any of the following decisions may, within 14 days after being told by the Secretary about the decision, apply to the Aged Care Commissioner for examination of the decision:

(aa)    a decision by the Secretary under section 16A.7 not to investigate a matter;

(a)    a decision by the Secretary under section 16A.14 to end an investigation;

(b)    a determination by the Secretary under section 16A.15 that the relevant provider has not breached its responsibilities under the Act or Principles;

(c)    a decision by the Secretary not to issue a notice of required action;

(d)    a decision by the Secretary setting, adding or varying conditions of a notice of required action that directly relates to the aggrieved person.

20    Section 16A.24 relevantly provides that where a decision is an examinable decision, then the Aged Care Commissioner may conduct an examination and provide a recommendation to the Secretary:

Decisions examinable by Aged Care Commissioner

…

(2)    The Aged Care Commissioner may examine an examinable decision in the manner that the Commissioner considers appropriate.

…

(4)    Within 60 days after the day when the Aged Care Commissioner receives an application for examination, the Aged Care Commissioner must give to the Secretary:

(a)    a recommendation about the examinable decision; or

(b)    a report about a refusal, under subsection (3), to examine the examinable decision.

21    Section 16A.25 provides that on receipt of a recommendation from the Aged Care Commissioner then the Secretary must reconsider the decision and within 21 days make a final decision:

Secretary to consider Aged Care Commissioner's recommendation

(1)    After the Secretary receives a recommendation from the Aged Care Commissioner about an examinable decision, the Secretary must, taking into consideration the recommendation, reconsider the decision.

(2)    The Secretary must, within 21 days after receiving the recommendation:

(a)    confirm the examinable decision; or

(b)    vary the examinable decision; or

(c)    set aside the examinable decision and substitute a new decision.

Note A decision to do any of the things mentioned in subsection (2) is not an examinable decision, see subsection 16A.24 (1A).

(3)    The Secretary must tell the aggrieved person, the relevant provider and the Aged Care Commissioner in writing about the Secretary's decision on reconsideration.

22    In the present case the First Decision was a decision made by the delegate of the Secretary under s 16A.15 of the Investigation Principles 2007. The Recommendation was made by the delegate of the Aged Care Commissioner under s 16A.24(4) and the Second Decision was made by the delegate of the Secretary under s 16A.25.

Statutory framework - ADJR Act and Judiciary Act

23    On 13 August 2021 the applicant filed this application for an extension of time to seek judicial review under the ADJR Act and for relief under the Judiciary Act.

24    The ADJR Act applies to decisions 'of an administrative character made … under an enactment': s 3(1).

25    Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(i)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(i)    any other exercise of a power in a way that constitutes abuse of the power.

26    Ms McGough identifies in this case paragraphs 5(1)(a), 5(1)(e), 5(1)(h) and 5(1)(j) as those she relies upon.

27    Section 11 of the ADJR Act addresses the manner in which an application for judicial review under that Act may be made in the Federal Court. Relevantly, pursuant to s 11(1)(c) and s 11(3) of the ADJR Act, an applicant is required to lodge an application for an order for review within the prescribed period of 28 days from the applicant's receipt of the reasons, or 'within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows'.

28    Rule 31.01(3) of the Federal Court Rules 2011 (Cth) provides that an application brought under the ADJR Act may be joined with an application for relief under s 39B of the Judiciary Act. Rule 31.02 provides that an application for an extension of time under s 11(1)(c) of the ADJR Act must be accompanied by affidavit evidence addressing the facts and delay, and a draft application.

29    The judicial review jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act is, subject to presently immaterial exceptions, the same as that conferred on the High Court by s 75(v) of the Constitution. It is settled that, in the exercise of that jurisdiction, the High Court has a discretion as to whether or not to grant relief by way of a constitutional writ or ancillary remedy: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5] (Gleeson CJ), [53]-[54] (Gaudron and Gummow JJ), [148] (Kirby J), [172] (Hayne J), [217] (Callinan J).

30    Despite there being no time limit prescribed for seeking review under s 39B of the Judiciary Act, one basis upon which relief might be refused is delay. I will return to the authorities in this regard.

The events

The lead up to 12 October 2009

31    Ms McGough's mother commenced as a care recipient at the Approved Provider's service in early April 2008. On 29 May 2009 Ms McGough was awarded guardianship of her mother by the State Administrative Tribunal (WA) (SAT).

32    It is fair to say that Ms McGough and the Approved Provider had differences of opinion regarding the quality of care provided to her mother, and regarding Ms McGough's alleged communication style and conduct, which escalated over time to a series of letters in September and early October 2009. It is necessary to set out some of this chronology in detail because, as becomes apparent, one of Ms McGough's complaints is that she was denied procedural fairness in that she was not informed of information that was provided by the Approved Provider to the delegate or asked for information.

33    For example, the evidence includes:

(a)    letters from Ms McGough to Ms Clarke (Director of Nursing, Koh-I-Noor) suggesting a mediation session;

(b)    letter from Ms Sinclair (Aged Care Executive, CMLA) of 26 June 2009 suggesting monthly family meetings to discuss care and services;

(c)    letter from Ms McGough dated 29 August 2009 to the Approved Provider setting out a complaint about a staff member [BB] and allegedly recording conversations between [BB] and Ms McGough (which suggests on its face that both persons took offence at matters said by the other);

(d)    letter from Ms Clarke to Ms McGough of 3 September 2009 declining to meet with her, indicating that any concerns about her mother's care should be referred to the Complaints Investigation Scheme, and stating that -

Your behaviour and treatment of the staff here at the nursing home is not acceptable on any level and I am advising you I have applied to the State Administrative Tribunal for re-instatement of an advocate to manage your mother's care. In the interim should you cause any further disruption to the staff and the management of this nursing home the police will be called to remove you from the premises.

(e)    letter of 10 September 2009 in response from Ms McGough expressing shock at the letter of 3 September 2009, requesting signed incident reports, witness statements and the names of relevant staff, and declining to pursue matters with the Complaints Investigation Scheme at that time;

(f)    letter of 21 September 2009 from Ms McGough to Ms Clarke setting out a chronology of visits relating to treatment of an eye condition, including reference to 'arrogant behaviour' from [BB], and reference to an issue about alleged non-provision of branded vitamin supplements;

(g)    letter of 23 September 2009 from Ms Sinclair referring to letters (not in evidence) but relevantly stating, for example:

Response to letter dated 29 August 2009

The concerns you have raised have been reviewed. Unfortunately the home's laundry is a staff only area and not available for families to use. We consider that the nursing staff have acted appropriately in the matters you have raised and we have had no adverse reports from the GP over the clinical issues. I would also make you aware of the Charter of Residents Rights and Responsibilities also states that each resident (or representative) of a residential care service has the responsibility 'to respect the rights of staff and the proprietor to work in an environment free from harassment'.

(h)    letter of 6 October 2009 from Ms Sinclair to Ms McGough referring to two staff complaints regarding Ms McGough's conduct during the preceding weekend. The letter records that the complainants stated that they felt Ms McGough's actions were 'intimidating' and 'intrusive'. The letter set out the areas of concern: those areas included entering the home's kitchen (an occupational health and safety issue and against home policy); wandering onto other levels of the home (an issue of privacy and dignity for other residents); talking to staff whilst they are attending other residents in their rooms (an issue of privacy and dignity for other residents and against home policy); and requests for hot water to mix with pureed food so altering its consistency (a matter that made the food unsafe for her mother and that it was said should be discussed with a registered nurse);

(i)    letter of 7 October 2009 from Ms McGough responding to the letter of 23 September 2009 and asking for details of her alleged 'harassment' (presumably a reference to the quotation from the Charter of Residents Rights and Responsibilities, which is also addressed further below) and again seeking copies of incident reports and witness statements;

(j)    letter of 8 October 2009 from Ms McGough responding in detail to the areas of concern highlighted in the letter of 6 October 2009 and providing an explanation which challenged each matter: any entry was only to return items to the kitchen and entry involved only part of her body; if there were issues of privacy then doors to residents' rooms should be closed; her mother's call bell did not work and staff were aware of this; any request of a staff member in another room would have been to assist 'when they had a chance'; there were issues with the consistency of food provided and a nurse had approved Ms McGough adding water; seeking a copy of the 'alleged incident report' in which her conduct was described as 'intimidating' and 'intrusive', and recording an incident when the person she assumed was the complainant had smiled and appeared to value the assistance provided by Ms McGough to her mother;

(k)    letter from Ms Sinclair to Ms McGough of 8 October 2009 reporting that Ms Sinclair had followed up with a speech pathologist the question of changing the consistency of her mother's food by diluting it with hot water, and noting that the speech pathologist visited and reviewed her mother, and advised that it could be done but only to a specific level, and when supervised by a registered nurse;

(l)    letter from Ms McGough to Ms Sinclair of 10 October 2009 replying to the 8 October 2009 letter, stating that her mother's carer obtained water from the kitchen to mix with pureed soup, and then returned to the kitchen to ask for it to be thickened up, and that when she mixed water with the food she did so with precision and 'only ever had Greta's interests at heart'; and

(m)    Western Australia Police (WAPOL) 'incident/offence report complainant advice slip' dated 11 October 2009.

34    The above summarises key parts of the correspondence and does not purport to be a complete recitation. Further, it is apparent that not all communications were in evidence.

The letter of 12 October 2009 denying access

35    There was an incident over the weekend of 10 and 11 October 2009.

36    On 12 October 2009 the executive director of the Approved Provider, Mr Nigel Glass, wrote to Ms McGough stating:

Following the further confrontation between yourself and staff at the Koh-I-Noor facility over the weekend of the 10th and 11th of October 2009 I formally advise that permission is withdrawn in regard to future attendance at the nursing home and consequently, this denial of access means that should you attempt to enter the nursing home such action will be considered as trespass and we will request, if necessary, police assistance requiring your removal. This denial of access will remain in force until such time as this matter is further reviewed by the State Administrative Tribunal or in addition, any other legal action which may be contemplated by this Association, to protect the interests of the nursing home, residents and staff. I note that other members of the family are not prohibited by this directive and your mother should not lack support in this regard.

(original emphasis)

The approach to SAT and replacement of Ms McGough as guardian

37    It is apparent that an application was made by the Approved Provider to SAT on or about that date to appoint an independent guardian. As a result, Ms McGough wrote to SAT seeking a copy of all submissions in advance of the scheduled hearing as she wished to respond 'to the allegations of harassment'.

38    Ms McGough also wrote to SAT (letter dated 14 October 2009), stating that 'there is a lot of misleading information being presented to the SAT', denying that she had 'displayed any physical or verbal abusive behaviour whatsoever', and suggesting that the documents she had presented to SAT indicated she had conducted herself 'in a respectful, gracious manner'.

39    By letter dated 14 October 2009 to the Approved Provider, Ms McGough addressed in detail the alleged events of 10 and 11 October 2009. Ms McGough reported an incident in the dining room when she sought to approach [BB] (apparently about her mother's food), who alerted Ms Sinclair. Ms Sinclair asked Ms McGough to return to her mother's room. There was apparently an agitated discussion. The following day Ms McGough went to the reception area and Ms Sinclair was in an adjoining office. Ms McGough spoke to her about the food issue and about Ms Clarke's qualifications. Ms Sinclair moved to close the office door and 'with brute force' closed it, allegedly injuring Ms McGough's foot in the process and resulting in 'a deprivation of liberty'. Ms McGough said she reported this matter to the police, and referred to the incident report (see [33(m)] above). I note that in a separate email (12 December 2009) Ms McGough asserts that Ms Sinclair had alleged that Ms McGough attempted to force open the office door.

40    By letter dated 19 October 2009 Ms Sinclair on behalf of the Approved Provider wrote to SAT relevantly stating:

There is a perception amongst some staff and management at the home that Ms McGough is bullying and harassing them; not respecting the rights and needs of other people within the residential care service, not respecting the needs of the residential service community as a whole.

Due to the events over the last 18 weeks I suggest that the continued appointment of Ms McGough as limited guardian may not be in the best interests of her mother. The attached information has been collated to support this view.

41    On or about 22 October 2009 there was a hearing before SAT. The Approved Provider's application was approved and a public guardian was appointed with respect to Ms McGough's mother from 27 October 2009.

Access permitted on conditions

42    On 29 October 2009 Mr Glass wrote to Ms McGough, stating that after discussion with the Office of the Public Advocate, he was prepared to facilitate continued visits by Ms McGough to her mother three times a week on certain conditions. There was subsequent correspondence in which Mr Glass offered to change the proposed visiting hours to accommodate Ms McGough's employment upon proof of such employment.

The 26 November 2009 complaint

43    On 26 November 2009 Ms McGough filed a complaint by email with the Complaints Investigation Scheme (CIS) about the denial of access to visit her mother (it appears that the complaint was treated as dated 30 November 2009, being the date emails were forwarded to the delegate).

44    It is apparent that Ms McGough had the opportunity to provide information for the purpose of her complaint. So much can be seen from a number of emails and attachments provided to the CIS in November and December 2009, including the letter to the Approved Provider of 14 October 2009. A dossier of documents was hand delivered to the CIS by Ms McGough on 14 December 2009, including an Approved Provider 'list of incidents report' (1 and 2 September 2009), which set out certain matters relating to Ms McGough's conduct as reported by staff, and Ms McGough's letter of 29 August 2009.

45    By email of 14 December 2009 the CIS responded to an email from Ms McGough indicating there was nothing in its current investigation that would warrant any referral to the police.

46    A site visit report dated 18 December 2009 (visit date 3 December 2009) indicates CIS officers spoke to management of the home; considered a document entitled 'Summary of Incidents related to Ms McGough's Actions and Comments' that had been presented to SAT for the October hearing, and that listed derogatory comments allegedly made by Ms McGough about staff and management and referred to incidents of her conduct during the period June to October 2009; and considered numerous complaint forms, including from five staff members. The investigators made recommendations in the site visit report that accord with the First Decision.

The First Decision

47    Ms McGough's complaint was investigated in accordance with the Investigation Principles 2007. On 22 December 2009 a delegate of the Secretary made the First Decision, providing to Ms McGough a covering letter setting out the decision, a separate statement of reasons and a document entitled 'Aged Care Complaints Investigation Scheme Review Rights Fact Sheet'.

48    The reasons identified the issue as 'The care recipient is only allowed limited visitation from the informant'.

49    The reasons described the investigation process that had been adopted as follows:

The issue raised was thoroughly investigated by officers of the CIS. The investigation included:

•    a site visit;

•    emails received from, and phone call discussions with Ms McGough;

•    a meeting with the Director of Nursing and the Aged Care Executive;

•    interviews with care staff during the site visit;

•    a review of documentation provided by Ms McGough; and

•    a review of the documentation provided by the home including the care recipient's progress notes, incidents and diet sheets/weight charts; and copies of State Administrative Tribunal (SAT) hearing decisions and correspondence to the informant.

50    The delegate then set out his findings:

Based on the investigation undertaken, I am satisfied that on 12 October 2009 the informant's access to the care recipient was denied, despite the informant being the daughter of the care recipient and the appointed guardian at that time. I base this conclusion on the following evidence:

•    The State Administrative Tribunal (SAT) decision of 29 May 2009 ordering that the informant be granted guardianship for the care recipient;

•    The SAT order of 29 May 2009 still being in effect on 12 October 2009;

•    Discussions between the CIS and the home who acknowledged that on 12 October 2009, the informant was denied access to the home to visit the care recipient, despite the informant being the daughter of the care recipient and her appointed guardian;

•    Significant documentary evidence provided by the home and supported by interviews with management and care staff confirming long term difficulties the home has had managing the informant's behaviours when visiting the home. This evidence indicates that as a consequence, the delivery of care and services to other care recipients was compromised;

•    The informant refutes this view categorically and states that she has been respectful and reasonable in all her dealings with the home; and

•    The approved provider must seek a balance between the competing rights and responsibilities of care recipients, their family members and staff. Under the Charter of residents' rights and responsibilities, each resident has the right 'to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction'.

51    The delegate then set out his decision:

I consider that the approved provider's denial of access for the informant to enter the home to visit the care recipient in a letter dated 12 October 2009 constitutes a breach of the approved provider's responsibilities. The breach falls under the Quality of Care Principles 1997, Part 2, Division 2, Section 23.8 which provides a care recipient's representative access to the care recipient at any time.

I have made this decision under section 16A.15 of the Investigation Principles 2007.

I have decided not to issue the approved provider a Notice of Required Action. In a letter to the informant dated 29 October 2009, the approved provider offered the informant the opportunity to access the home to visit the care recipient. The approved provider's offer is for access for the informant to visit the care recipient on three occasions each week, during times when appropriate staff are present to address any concerns.

Request for examination of First Decision by Aged Care Commissioner

52    By letter dated 6 January 2010 the applicant sought review of that part of the First Decision that determined not to issue a notice of required action. The letter included attachments including a response from WAPOL to an application made by Ms McGough under the Freedom of Information Act 1992 (WA) about alleged incident reports. The WAPOL response referred to one incident reported by Ms McGough with the notation 'closed - no offence'. The letter also attached a letter of 24 December 2009 from the 'Restraining Order Clerk' of the Magistrates Court of WA confirming it had no records of any restraining order application by the Approved Provider against Ms McGough, and a letter from Worksafe to Ms McGough of 30 December 2009 indicating it had no involvement in any alleged dispute as between Ms McGough and the Approved Provider. Ms McGough also raised (the then) s 63.1AA of the Aged Care Act, a section that imposes responsibilities on an approved provider to report a 'reportable' assault to the police. A 'reportable assault' is defined as unlawful sexual contact, unreasonable use of force or other assaults constituting an offence that is inflicted on a person receiving residential care. In the letter Ms McGough also complained that Mr Glass had not provided to her copies of witness statements obtained from staff members about her alleged conduct.

53    By letter dated 6 January 2010 from a communications officer, Ms McGough's application was acknowledged and the following was said:

If we require further information from you we will contact you. We will obtain any documentation held by the Scheme gathered in the course of its investigation into the complaint. Should you have additional information you wish us to take into consideration, would you please notify us and supply that information as soon as possible.

Draft recommendation provided

54    A delegate of the Aged Care Commissioner considered the application. On 26 February 2010 a senior investigations officer from the Commissioner's office provided a 'draft copy of the preliminary findings' in relation to the First Decision to Ms McGough, and invited any comments from Ms McGough by 4 March 2010.

55    The draft noted the appeal issue as 'The Scheme's decision not to issue the approved provider with a Notice of Required Action when it was identified as breaching its responsibilities is incorrect'.

56    The draft included a summary of the background, including reference to Ms McGough's complaint. Relevant legislation was set out, being s 54.1 of the Aged Care Act:

Responsibilities of approved providers

(1)    The responsibilities of an approved provider in relation to the quality of the *aged care that the approved provider provides are as follows:

(a)    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;

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

(c)    to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles for the purposes of paragraph 56-1(l), 56-2(i) or 56-3(j);

…

(h)    such other responsibilities as are specified in the Quality of Care Principles.

…

(in accordance with the convention in some Commonwealth legislation, the asterisk indicated a defined term)

57    The draft referred to 'User Rights Principles 1997' and in particular s 23.8 in Division 2 of those Principles, which is headed 'Access by representatives of care recipients'. Section 23.8 stated:

Access

If a care recipient, or a care recipient's representative, has asked a person acting for care recipients to assist the care recipient, the approved provider must allow the person to have access to the residential care service at any time.

58    The draft also included extracts from the 'Charter of residents' rights and responsibilities' (Schedule 1 of the User Rights Principles 1997), which refer to the rights and obligations of residents as follows:

Part A    Each resident of a residential care service has the right:

…

•    to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction

…

•    to select and maintain social and personal relationships with anyone else without fear, criticism or restriction

…

Part B    Each resident of a residential care service has the responsibility:

•    to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a [whole]

•    to respect the rights of staff and the proprietor to work in an environment free from harassment

…

(original emphasis)

59    The delegate then set out the material considered as follows:

Material Considered

11.    The following material was taken into account during the course of this investigation:

•    Appeal against examinable decision - Ms McGough;

•    Copy of IMS database for Case ID 091691 and attachments;

•    Copy of documents held on Scheme files;

•    Copy of documents supplied to this office by the approved provider;

•    Discussion with Mr P Glass, Chief Executive Officer, the approved provider;

•    Discussion with Ms K Sinclair, Aged Care Executive, the approved provider;

•    Aged Care Act 1997 (Cth); and

•    Aged Care Principles 1997 (Cth).

60    The draft included findings. It referred to: Ms McGough's contention that one of the reasons the Approved Provider had limited her access to her mother was because she had raised concerns about aspects of her mother's care; the site visit report; that Ms McGough had been the guardian for her mother but had been removed by SAT and replaced by an independent public guardian (Ms Walker); that Ms Walker was responsible for making decisions in relation to contact, accommodation and medical care; the letter of 6 October 2009 from an executive of the Approved Provider that had been sent to Ms McGough raising issues about incidents where Ms McGough made changes to her mother's food that might make the meals unsafe for her and instructing Ms McGough not to enter the facility's kitchen; the letter of 8 October 2009 from the executive that asked Ms McGough not to water down food unless supervised by a registered nurse; the letter of 12 October 2009 revoking visiting rights; the letter of 29 October 2009 reinstating limited visiting rights; a bundle of further letters and emails sent by Ms McGough to the Approved Provider in which it is said she disputed the factual basis of information provided by the Approved Provider regarding her conduct whilst visiting her mother at the facility and in which she asserted she had been reasonable and respectful in her interactions with staff and other residents; Ms McGough's admission in the letters that she sought to modify food but had said she believed it reduced risk to her mother rather than increasing it; and Ms Walker's reported confirmation via the Approved Provider that she was in agreement with the decision to limit Ms McGough's access and impose conditions during her visits (conditions which were being complied with).

61    The draft concluded with the following statement:

31.    It is difficult to determine the facts of a case when one version of events from one party conflicts with the version of events given by another party. In conducting an investigation of this type, I am required to consider all available evidence, including both oral and written information.

…

33.    In her appeal, Ms McGough stated the Scheme should have issued the approved provider with an NRA, requiring the approved provider to allow her unlimited and unconditional visitation rights.

34.    Notwithstanding Ms McGough's visitation rights are currently limited, it would appear from the documentation provided to this office that [Ms] McGough has been able to maintain a relationship with her mother. It is also noted Ms McGough has continued to comply with conditions specified by the approved provider. Further, the present arrangements also appear acceptable to Mrs McGough's public guardian, Ms Walker.

35.    I have been unable to locate any information to establish that the reinstatement of unlimited and unconditional visitation rights to Ms McGough would not potentially pose further risks to Mrs McGough's health.

36.    Therefore, I recommend the Scheme's decision not to issue an NRA to the approved provider … be confirmed.

62    The draft then addresses that part of the First Decision in which the delegate found that the Approved Provider had breached its responsibilities under s 23.8 of the Quality Care Principles 1997. It states:

39.    Notwithstanding Mrs McGough's right to conduct a relationship with Ms McGough, I acknowledge the approved provider was required to have strategies in place to manage Ms McGough's conduct whilst she was visiting her mother, and that such strategies should have been reasonable in the circumstances and commensurate with the level of risk posed by Ms McGough's conduct.

40.    From the documentation available to me, I am satisfied Ms McGough's behaviours in the period prior to 12 October 2009 had been negatively impacting on the health and well being of her mother. I am also satisfied Ms McGough's behaviours during that period had compromised the delivery of care and services of other care recipients at the facility.

41.    Given the nature, frequency and severity of Ms McGough's alleged behaviour, I am satisfied the approved provider's decisions to initially revoke and then subsequently limit Ms McGough's visitation rights were appropriate strategies to manage Ms McGough's documented conduct.

42.    I am also satisfied the approved provider's decisions to revoke and then subsequently limit Ms McGough's visitation rights were reasonable in the circumstances, including:

(a)    the level of risk posed to Mrs McGough's health and well-being;

(b)    the provision of care and services to other residents; and

(c)    its responsibility to provide staff with a workplace free from harassment.

63    The draft included the following recommendation:

In accordance with Section 16A.24(4) of the Investigation Principles 2007 (Cth), I recommend the original decision be varied in the following way.

1.    Confirm the Scheme's decision not to issue a Notice of Required Action to the approved provider; and

2.    Set aside the Scheme's decision that the approved provider has breached its responsibilities in that it denied [the applicant] access to the care recipient pursuant to Part 2, Division 2, Section 23.8 of the User Rights Principles 1997 (Cth), and replace it with a decision the approved provider has not breached its responsibilities.

64    The terms of the Investigation Principles 2007 did not require a draft to be provided to Ms McGough. However, the draft was provided to Ms McGough with a request that any comments be received by 4 March 2010. It can be inferred that the delegate decided to provide it as part of the general discretion under s 16A.24(2) to examine a decision in any manner considered appropriate, and in order to seek any comments from Ms McGough prior to the recommendation being made.

65    Ms McGough provided an email response to the draft findings on 2 March 2010. The response referred to requested amendments to incorporate reference to photo/video documentation; a pharmacy receipt for an ointment; a letter from the Approved Provider in August 2008 referring to a possible infection; and a copy of a complaint/suggestion from her of October 2009 as to the need for call bell maintenance. Ms McGough sent a further email to the Commissioner's office on 4 May 2010 attaching correspondence, including a letter from her to Mr Glass that she said was left under the door at CMLA on 21 February 2010 to the effect that the current permitted visiting hours referred to in the 29 October 2009 letter were no longer suitable to her and attaching a letter relating to her employment (the letter to Mr Glass did not propose specific visiting times). Ms McGough also attached an extract of a reply from the Approved Provider to her letter, indicating that any response from it should await the outcome of the review process that was underway. In the early hours of 5 March 2010 Ms McGough sent a further email saying she was 'not sure' if certain documents had been received by the delegate - this is set out in more detail below (at [127]).

The Recommendation

66    On 5 March 2010 the delegate made the recommendations that had been outlined in the draft copy of preliminary findings, and so formally made the Recommendation. In the covering letter to Ms McGough the delegate wrote that 'I have taken your comments of 4 March 2010 into consideration in coming to that view'. The list of materials in the report was updated to refer to comments from Ms McGough and Mr Glass by way of responses to the draft recommendation.

67    Otherwise, the Recommendation provided to the Secretary (and copied to Ms McGough) was in the same terms as the draft.

68    Ms McGough's mother passed away on 13 March 2010.

The Second Decision

69    By decision dated 24 March 2010 a delegate of the Secretary made the Second Decision, informing Ms McGough by covering letter of that date as follows:

I refer to your request of 5 January 2010 for an examination by the Aged Care Commissioner (the Commissioner) in relation to a decision made by a delegate of the Secretary under the Aged Care Complaints Investigation Scheme (the CIS) on 22 December [2009].

The Commissioner has now examined this decision and provided me with a recommendation.

I have carefully considered all the relevant information, including the Commissioner's recommendation, and have detailed my conclusions in a Statement of Reasons at Attachment A. The Statement of Reasons sets out my process, reasoning, decision and any further actions.

70    The delegate's reasons indicate that on receipt of the Recommendation, she conducted a further examination of the evidence and original decision. The evidence listed in the reasons included the IMS database of all file notes and reports, the information that was before the delegate for the original CIS investigation and the Recommendation.

71    The delegate set out the information that was reviewed for the purpose of the reconsideration. It included the SAT proceedings that resulted in the removal of Ms McGough as guardian; 'a document providing a chronological summary of incidents between the informant and staff occurring 19 June 2009 - 11 October 2009', including alleged derogatory comments and an alleged incident on 11 October 2009 where it was alleged Ms McGough used physical force to prevent a staff member closing an office door; numerous written complaints from staff about Ms McGough; and the formal correspondence referred to at [33(h)], [36] and [42] above.

72    The delegate made the following findings:

The findings of this reconsideration are that;

•    The Office of the Aged Care Commissioner has conducted an independent investigation and assessment on appeal and found that no breach of the approved provider's responsibilities has occurred.

•    I accept the reasons set out by the Commissioner with regards to this recommendation. There is sufficient documentary evidence that the approved provider's decisions to revoke and then subsequently limit the informant, Mrs McGough's, visitation rights were reasonable in the circumstances.

•    In light of this reconsideration, I have decided that no breach is in evidence and no further action is necessary.

73    The delegate of the Secretary concluded:

I have decided to accept the Commissioner's recommendation to:

•    Confirm the CIS's decision not to issue a Notice of Required Action to the approved provider.

•    Set aside the CIS's decision that the approved provider has breached its responsibilities in that it denied [the applicant] access to the care recipient, pursuant to Part 2, Division 2, Section 23.8 of the User Rights Principles 1997, and replace it with a decision the approved provider has not breached its responsibilities.

74    I note that a copy of the Department's internal reconsideration report was also in evidence, which states that the reconsideration was undertaken on 22 March 2010, with the internal report dated 24 March 2010.

Principles - whether impugned decisions and Recommendation amenable to review

75    The first question is whether each of the First Decision, Recommendation and Second Decision is a 'decision of an administrative character' made 'under an enactment': s 3(1).

76    'Enactment' is defined broadly in s 3(1) and includes an Act or statutory instrument, including rules, regulations or by-laws.

77    Section 3(2) and s 3(3) inform the meaning of a 'decision':

(2)    In this Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award or determination;

(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)    issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)    imposing a condition or restriction;

(e)    making a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article; or

(g)    doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

(3)    Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

78    In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 the meaning of the words 'made under an enactment' was considered in the context of State review legislation, but it was recognised that the formula had its provenance in the ADJR Act (at [3], [26]). Relevantly, Gummow, Callinan and Heydon JJ concluded:

[89]    The determination of whether a decision is 'made … under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made … under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

79    The making of a decision can involve various preliminary investigations and determinations. Intermediary decisions will often not be the subject of judicial review. According to Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337:

… The answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

80    Having regard to the principles in Bond, the Commissioner accepts that the First Decision and the Second Decision were decisions 'of an administrative character' made 'under an enactment' and subject to review under the ADJR Act (assuming that an extension of time was to be granted). I agree that those decisions fall within the ambit of reviewable decisions under the ADJR Act.

81    The Commissioner also accepts that the Recommendation is a 'decision' within the meaning of s 3(3) of the ADJR Act, relevantly referring to Ross v Costigan (1982) 41 ALR 319 at 332, approved in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70. In Ross v Costigan, Ellicott J explained that s 3(3) contemplates a case where there is provision in a specific enactment for a specific report or recommendation as a condition precedent to the making of a decision under that or some other enactment. In this case, the Recommendation was a condition precedent to the Secretary making the decision on 24 March 2010 pursuant to s 16A.25 of the Investigation Principles 2007, and I find that the Recommendation is deemed to be a decision for the purpose of the ADJR Act.

82    The reference in s 5 to a person 'aggrieved' includes a person whose interests are adversely affected by the decision: s 3(4) of the ADJR Act. Ms McGough claims to be a person aggrieved by the decisions. The Commissioner did not put its case on the basis that Ms McGough was not a person aggrieved by the First and Second Decisions or Recommendation.

83    The Commissioner submitted that given the Second Decision came about as a result of merits review of the First Decision and partially confirmed and set aside that decision, there would appear to be little utility in the applicant seeking judicial review of the First Decision. Further, the Recommendation was adopted by the delegate of the Secretary as the reason for the Second Decision. The Commissioner submitted that this application should proceed primarily on the basis that Ms McGough seeks review of the Second Decision. The scope of jurisdiction for a s 39B application is on its face broader (a 'matter'), but the Commissioner submits that similarly any s 39B application should be considered in respect of the Second Decision.

84    I accept that there is force in this submission, but as will be seen, I will also address the First Decision and the Recommendation.

85    It follows that this is not a matter where the applicant falls at the first hurdle of establishing that there is a reviewable decision. It is appropriate to proceed on the basis that such threshold is met for the purpose of both the ADJR Act and s 39B of the Judiciary Act. Rather, whether or not this application should succeed insofar as the ADJR Act is concerned falls to be determined on an application of the principles as to whether an extension of time should be entertained. Those matters also inform the exercise of the discretion for the purpose of the s 39B application.

Principles - ADJR Act and extension of time

86    The principles are well settled. The relevant factors in the context of an application for an extension of time under the ADJR Act were collected by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been cited on numerous occasions. Matters to be weighed include: the statutory prescribed period and whether the Court is positively satisfied that it is proper to extend that period; the length of the delay; any explanation for the delay; any action the applicant has taken apart from the proceedings and whether the contest of the finality of the decision has remained in issue; prejudice to the respective parties if an extension is or is not granted, including any prejudice in defending the proceedings occasioned by the delay; the nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and the merits of the substantive application. These considerations are not exhaustive.

87    It is inappropriate for the purpose of an extension application to fully investigate the merits, although an obvious strength or weakness in the applicant's case is a factor for or against the exercise of the discretion: Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]; Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[39] (Griffiths J, Edmonds J agreeing); Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J); and ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142 at [111] (Katzmann J). In considering the question of merits, the applicant's grounds of review should be considered on their face and examined at a 'reasonably impressionistic level'; the Court should not descend into a fuller consideration of the arguments for and against each ground: Guo at [27]. If it appears from such examination on a reasonably impressionistic basis that the proposed application has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.

Delay

88    In this case, the period of delay with respect to all impugned decisions is substantial.

89    Ms McGough's application was filed in this Court on 13 August 2021. The Commissioner has calculated the delays as follows:

(a)    for the First Decision, the statutory time period expired on 19 January 2010, and the delay has therefore been some 4,224 days;

(b)    for the Recommendation, the statutory time period expired on 2 April 2010 and the delay has therefore been some 4,151 days; and

(c)    for the Second Decision, the statutory time period expired on 21 April 2010, and the delay has therefore been some 4,132 days.

90    There is no doubt that such long delays mean that 'something very persuasive will be required to justify a grant of an extension of time': Hamden v Secretary, Department of Human Services [2013] FCA 3 at [36] (Besanko J).

91    Ms McGough outlines her explanation for the delay in her affidavit filed 13 August 2021. She identifies numerous health issues and her apparent ignorance of a judicial review option until 2019 as the reasons for delay.

92    In particular, Ms McGough refers to having been 'numbed by the whole experience'; a decline in both her physical and mental health; stress; the diagnosis of a blood cancer for which she was treated for five months in 2017 before remission; and being 'crippled by trauma'.

93    However, Ms McGough did not provide the Court with any evidence of how any physical or mental health issues from which she has suffered or continues to suffer had prevented her from seeking judicial review within the time limits under the ADJR Act or any subsequent time.

94    Ms McGough contended that following the Second Decision she sought to have further action taken in respect of the Approved Provider's conduct, including by way of correspondence with various Ministers, and by correspondence and a meeting with the then Federal Minister for Ageing in October 2018 in which she claimed compensation under the Commonwealth Defective Administration Scheme (subsequently retracted, but with a subsisting claim for compensation), and the commencement (but subsequent discontinuance) of proceedings in the Federal Circuit Court of Australia.

95    The applicant also refers to her application lodged in the Federal Circuit Court of Australia on 20 July 2020, in which she sought an extension of time to seek judicial review of a decision of the Department of Finance to refuse her application for an 'act of grace' payment.

96    I acknowledge that Ms McGough was apparently taking other steps with respect to her grievances at some points in the intervening years, but it must be noted that the act of grace payment application was not made until 25 February 2019, almost nine years after the relevant decisions were made. There remain long periods of delay since the decisions that are not explained.

97    I have taken into account that Ms McGough is self-represented in this application. However, her evidence was to the effect that she has had the benefit of legal advice at various times, including from one solicitor who had provided great support although he could not act in the matter. Ms McGough said during the hearing that:

I met with a number of solicitors - the court action against the service provider - my solicitor said at the time that there were more ways to skin a cat. When I tried to get some guidance from any solicitor in Perth there [were] minimal solicitors who actually dealt with the Administrative Decision Judicial Review.

98    I accord that evidence only slight weight, but it remains relevant to the exercise of discretion, as it is apparent that at some undisclosed point in the intervening years Ms McGough raised with lawyers the question of judicial review.

99    Taking into account all of those matters, while an acceptable explanation for a delay is not an indispensable prerequisite for the grant of an extension of time, the applicant's explanation in this case is not persuasive. There are significant gaps in the intervening years where no explanation for delay is proffered. The period of delay exceeds the statutory period by many years. To repeat Besanko J's words in Hamden, something very persuasive was required in those circumstances.

Prejudice and lack of utility

100    The prejudice to the applicant if her application for an extension is refused is that she would not be able to have the decisions reviewed by this Court. The extent of that prejudice is limited in circumstances acknowledged by the applicant in her own affidavit (filed 7 October 2021 at para 133) in which she states that 'in my opinion due to the fact that Greta has passed away, it is too late for a remedy to be implemented'. In effect Ms McGough has acknowledged that the passage of time is such that no purpose would be served by a decision to issue a notice of required action under s 16A.16(3) of the Investigation Principles 2007.

101    Furthermore, there is a lack of utility in seeking any other relief in circumstances where the Approved Provider has not operated the Koh-I-Noor Nursing Home for many years; where its status as a residential aged care provider has lapsed; and where it has been deregistered. There was some contention at the hearing as to the effect of these developments. After the hearing I permitted both the Commissioner and Ms McGough to provide further information limited to this issue.

102    The evidence indicates the following:

(a)    CMLA held ABN 24 495 112 282 and was registered for GST between 1 July 2000 and 1 July 2013, when its ABN status was cancelled. Its registration as an association (registration number A0460002H) ended upon deregistration on 10 April 2013;

(b)    the Paraplegic-Quadriplegic Association of WA (Inc) (ABN 63 279 515 027), registered as a charity with the Australian Charities and Not-for-profits Commission, took over the operation of the Koh-I-Noor Nursing Home from CMLA. The date on which this occurred is unclear but inferentially it must have been prior to the 2013 deregistration of CMLA;

(c)    the Paraplegic-Quadriplegic Association of WA changed its name to the Spine and Limb Foundation (Inc) in November 2012, maintaining the same ABN;

(d)    the Spine and Limb Foundation (Inc) changed its name to Alinea Inc on 30 January 2019;

(e)    the Paraplegic-Quadriplegic Association, the Spine and Limb Foundation and Alinea had a different approved provider number to that of CMLA; and

(f)    Alinea is the current approved provider, and bears the same approved provider number (RACS ID) of 7879 as the Spine and Limb Foundation (Inc).

103    The information before me about the transfer of operations from CMLA to the Paraplegic-Quadriplegic Association of WA (Inc) and the process by which the Paraplegic-Quadriplegic Association of WA (Inc) took over the running of the Koh-I-Noor Nursing Home was incomplete, and it is fair to say that Ms McGough received at least one communication on the letterhead of the Paraplegic-Quadriplegic Association (letter dated 15 March 2010) without any explanation as to why. It also appears from an introduction in an Alinea magazine relied upon by Ms McGough that there was at some point an amalgamation of CMLA with the Paraplegic-Quadriplegic Association; but that does not indicate that CMLA as a legal entity continued to exist.

104    There is sufficient evidence for me to be satisfied that the entity that operated as CMLA and was at all material times the approved provider for the Koh-I-Noor Nursing Home no longer exists and was a separate legal entity to that entity which is now known as Alinea. The change as between CMLA and the Paraplegic-Quadriplegic Association of WA (Inc) was not merely a change of name. Rather, the Paraplegic-Quadriplegic Association of WA (Inc) was relevantly a new and separate legal entity operating the home as an approved provider. I note that Ms McGough referred to information provided by the 'Customer Contact team' of the Aged Care Quality and Safety Commission in an email to her of 2 March 2022. However, it is apparent from the email exchange that the information provided distinguishes between the position on a mere change of name and the position where a new entity is involved.

105    It therefore follows that issuing a notice of required action to the Approved Provider (that is, CMLA) would not be an available action on remittal. The entity no longer exists.

106    Nor would it appear feasible that regulatory action relating to the Approved Provider (CMLA) would be attributed to Alinea as the new approved provider. The Commissioner's solicitors provided by affidavit a copy of a publicly available document entitled: 'Regulatory Bulletin - Change in Service Ownership' published 25 August 2021. It includes the following passages:

Complaints management

Complaints about aged care services delivered by the previous approved provider may be unresolved at the time of transfer to a new approved provider. For complaints that are unresolved upon transfer of a service, the Commission will confirm with the complainant whether the issue raised in the complaint is ongoing under the new approved provider.

If a complaint relating to the previous approved provider is raised and remains unresolved after a transfer, then the Commission will engage with the new approved provider to obtain new information about the issue raised in the complaint. The new approved provider will be required to cooperate with the Commission to resolve any ongoing complaints.

Any evidence available to the Commission which may indicate that the previous approved provider was not complying with its aged care responsibilities in relation to the service, cannot be attributed to the new approved provider.

The Commission will manage all new complaints received after a transfer with the new approved provider.

…

4. Will regulatory action relating to the previous approved provider be attributed to the new approved provider of a transferred service?

No. Any regulatory or enforceable regulatory action taken by the Commission in response to a previous approved provider's non-compliance with aged care responsibilities or non-compliance with the Quality Standards does not continue to be applied to the new approved provider.

Examples of regulatory or enforceable regulatory actions include but are not limited to a direction to revise a plan for continuous improvement, an Incident Management Compliance Notice, a Non-Compliance Notice, a Notice of Requirement to Agree to Certain Matters or a sanction on the previous approved provider.

The Commission will communicate with the new approved provider about any recent areas of non compliance at the service under the previous approved provider, including advice that these areas will be closely monitored by the Commission following the transfer.

The specific regulatory action taken by the Commission in relation to the previous approved provider will remain published on the Commission website.

5. What are the implications for the new approved provider where the previous approved provider was found to be non-compliant?

Where the previous approved provider had been found to be non-compliant with the Quality Standards, the Commission would seek to assess the new approved provider's performance against the Quality Standards to mitigate and manage any risks to the delivery of quality and safe care to consumers at the service.

This may include a focus on areas of non-compliance identified under the previous approved provider to ensure that the new approved provider is addressing known risks to the quality and safety of care being delivered at the service.

This may occur through a site audit where the provider has applied for re-accreditation, through an assessment contact (performance assessment), or a review audit where there are new concerns regarding the quality of care and services. The new approved provider will be required to cooperate through this process.

6. What are the circumstances in which the Commission will take compliance action in relation to the new approved provider of a transferred service?

The Commission will take compliance action if it is satisfied that the new approved provider has failed or is failing to comply with one or more of its aged care responsibilities.

Following a transfer of a service, evidence of non-compliance relating to the previous approved provider cannot be attributed to the new approved provider of the service.

The Commission will gather new evidence to determine whether the new approved provider of a service has complied or is complying with their aged care responsibilities. This new evidence can include how the new approved provider has addressed the areas of concern identified through the prior non-compliance that occurred under the previous approved provider.

(original emphasis)

107    Those passages indicate that if Ms McGough's complaints were to be reconsidered by the regulator, the regulator might investigate and ask questions of Alinea as to whether it is complying with its existing obligations, but it will not attribute any evidence of non-compliance by CMLA to Alinea.

108    I accept the Commissioner's submission that no prejudice has been identified by Ms McGough with respect to the First Decision or the Recommendation, when viewed separately. As to the First Decision, the Commissioner contends that no prejudice would be suffered by Ms McGough if an extension of time to review the decision were refused. This is because the First Decision was subsequently (partially) set aside and overtaken by the Second Decision after an internal merits review process. The First Decision therefore has had no operation since that date. As to the Recommendation, it has had no operative or determinative effect since the Second Decision on 24 March 2010, and so the setting aside of the Recommendation would have no practical effect.

Other interests

109    It is also appropriate to consider both the position of the Commissioner and the public interest. Given the length of the delay, I am prepared to accept that the Commissioner would likely suffer prejudice in responding to the application, particularly in the context of collecting and assessing evidence after such a passage of time.

110    I also take into account the need for finality of a dispute which was dealt with more than 10 years ago and not pursued by Court proceedings for many years. It would not be an efficient use of public resources or an appropriate allocation and expenditure of public funds for time to be extended in this matter, having regard to all of the circumstances.

111    These broader public interest considerations, together with the other matters to which I have referred, weigh against an extension of time being granted.

Consideration of the merits

112    I proceed with the analysis taking into account the principles set out at [87] above, but also having regard to the fact that the same grounds are relied upon for the s 39B application.

113    Paragraph 6 of the applicant's affidavit filed 13 August 2021 sets out the grounds of review as follows:

(a)    A breach of the rules of natural justice occurred in connection with the making of the decision; as I was not provided with procedural fairness from the onset;

(b)    There was no evidence (provided to me) or other material to justify the making of the decision;

(c)    There was a failure to consider the proper requirements of section 23.8 of the User Rights Principles 1997 in terms of the provision of access at any time in deciding that the Approved Provider had remedied the breach of section 23.8.

114    For ease of reference I again note that Ms McGough relies upon s 5(1)(a) of the ADJR Act (breach of the rules of natural justice); s 5(1)(e) (improper exercise of power); s 5(1)(h) (no evidence or other material to justify the making of the decision) and s 5(1)(i) (the decision was otherwise contrary to law). Whilst Ms McGough did not separately address by her grounds an improper exercise of power, I had regard to it when assessing each of the grounds.

Ground 1 - denial of procedural fairness

115    In respect of the complaint of a denial of natural justice, the applicant appears to contend that this arose with respect to the Recommendation, suggesting that: in the course of undertaking the examination under s 16A.24 of the Investigation Principles 2007, the delegate of the Aged Care Commissioner received information from the Approved Provider, including letters between Ms McGough and the Approved Provider of 8 October 2009, and Ms McGough did not know such correspondence had been provided to the delegate; it appears her responsive letter to Ms Sinclair of 10 October 2009 was not provided; she was excluded from discussions between the delegate conducting the examination and third parties; she was not contacted to provide further information; and that the absence of any WAPOL or other report about her conduct was not discussed with her or considered, because the absence of such evidence was a 'problem' for the delegate. To be fair, it is at times difficult to follow Ms McGough's complaints as set out in her affidavit evidence insofar as they are said to disclose an absence of procedural fairness, and accordingly I have described them broadly.

116    Expressed generally, the exercise of statutory power is conditioned by the requirement that it be exercised in compliance with the rules of procedural fairness: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [55] (Gageler and Gordon JJ); and Re Refugee Review Tribunal; Ex parte Aala at [59] (Gaudron and Gummow JJ).

117    What is required to discharge an obligation to afford procedural fairness depends on the particular statutory framework and the circumstances of the case: Kioa v West (1985) 159 CLR 550 at 584-585 (Mason J). The content of procedural fairness is context-dependent and must be approached on the basis of what is necessary to avoid 'practical injustice': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]-[38]; WZARH at [57].

118    The Full Court in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38]    Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 ('Alphaone') at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

119    Returning to the Recommendation and the scheme established by the Aged Care Act, the Investigation Principles 2007 give the Secretary and the Aged Care Commissioner a broad discretion in respect of how to investigate complaints and conduct investigations: s 16A.8(1) and 16A.24(2), extracted above. Section 16A.8(3), also extracted above, prescribes steps the Secretary may (but is not obliged to) undertake, such as requesting information from persons and analysing and reviewing documents. There is no requirement of any formal hearing with the complainant or the Approved Provider.

120    In this case, the chronology of events outlined above demonstrates that Ms McGough was given a number of opportunities to provide information, make submissions and review 'draft decisions', the latter of which was an opportunity offered voluntarily and not required under the Investigation Principles 2007.

121    I note the following matters in particular.

122    Ms McGough had the opportunity to give materials to the Secretary by way of complaint, and did so ([44] above). Whether she provided all communications she had received or written was a matter for her. She was on notice of the Approved Provider's concerns about her conduct at the home prior to the 'denial of access' letter of 12 October 2009, as she had received various letters, had responded to those letters, and because of the airing of the complaints about her behaviour in the course of the hearing before the SAT of 22 October 2009. A site visit was conducted, a course open to the delegate's investigators. The delegate considered documents obtained from the Approved Provider ([46] above). The nature of the investigation was described in the delegate's reasons that comprised the First Decision. At the time of making her complaint, Ms McGough was also on notice of the letter of 29 October 2009 from the Approved Provider that offered her access to the nursing home despite the letter of 12 October 2009. She was therefore on notice that there was information that the Secretary might take into account in deciding whether or not a notice of required action should issue.

123    For the purpose of the examination of the First Decision by the Commissioner, Ms McGough also had the opportunity to provide documentation as she sought fit with her letter of 6 January 2010. She included a number of documents. Relevantly, she also raised issues as referred to at [52] above. The acknowledgment letter of 6 January 2010 invited her to continue to provide any relevant information.

124    The Recommendation sets out evidence that was gathered and considered for the purpose of the examination: [59] above. It is unsurprising that correspondence between the Approved Provider and Ms McGough was provided to the delegate conducting the examination. There is no reason to assume that Ms McGough's letter of 8 October 2009 to Ms Sinclair (see allegation in [115] above) was not among the '4 letters and 3 emails' sent by Ms McGough to the Approved Provider and referred to in the reasons (at para 26). It is said in the reasons that in those letters Ms McGough disputed the factual basis of information supplied by the Approved Provider regarding her conduct and asserted that she had been respectful and reasonable. The delegate was clearly aware of the competing versions of events and noted as much (at para 31).

125    As is apparent from the reasons, the delegate has in some detail addressed matters relevant to the complaint. Whilst Ms McGough seeks to place great weight on the evidence before the delegate that indicated that the Approved Provider did not report her conduct to WAPOL (referring to s 63.1AA) or to other authorities, this submission is not compelling. Ms McGough seeks that I draw an inference that the Approved Provider made no such reports. I have no difficulty in drawing that inference, but that is not to the point. Assuming that to be so, it does not undermine the veracity of the evidence that was provided and considered by the delegate. It was open to it to consider and act upon Ms McGough's behaviour even if it considered such behaviour fell short of what might comprise a reportable assault.

126    Of particular relevance to the complaint of absence of procedural fairness is the fact that the draft of the Recommendation (including the preliminary findings) was provided to Ms McGough on 26 February 2010 and she was invited to provide any comment by 4 March 2010. Ms McGough did provide comment (see [65] above). For example, she referred in her 4 March 2010 email to para 34 of the reasons (which said in part 'Notwithstanding Ms McGough's visitation rights are currently limited, it would appear from the documentation provided to this office that [Ms] McGough has been able to maintain a relationship with her mother'), and noted the date of hand delivery of her letter to Mr Glass. The delegate stated in his covering letter enclosing the Recommendation that the comments in the 4 March 2010 email had been taken into account.

127    In the early hours of 5 March 2010 Ms McGough sent an email saying she was 'not sure' if certain documents had been received by the delegate. The email apparently attached copies of the letters of 8 October 2009 ([33(j)-(k)] above), 10 October 2009 ([33(l)] above), 12 October 2009 ([36] above - 'denial of access') and 29 October 2009 ([42] above - reinstatement of access on terms). There is no reason to suggest that such documents were not already before the delegate. The draft (and final) reasons relevantly establish otherwise. The reasons address the letter of 8 October 2009 (at para 22) and the reply of 10 October 2009 (referred to inferentially at paras 26-28). The letters from Mr Glass of 12 October 2009 and 29 October 2009 were fundamental to the First Decision and are paraphrased in the background to the Recommendation, referred to in the section of the reasons dealing with the First Decision and referred to expressly at paras 23-24. Finally in this regard, I note that Ms McGough accepts that all of the correspondence she hand delivered to the Commission was uploaded to the IMS database (affidavit of 7 October 2021 at paras 58, 75). The delegate expressly states that he had access to the IMS database for the purpose of the examination.

128    In all of those circumstances, I do not consider that Ms McGough has any realistic prospect of succeeding in establishing that there was a lack of procedural fairness accorded to her with respect to the Recommendation. The delegate accorded to her the opportunity to provide information and review the draft reasons. The information in the reasons as to the manner in which the examination was conducted suggests that the delegate properly understood the nature of the task. The delegate was not obliged to discuss his examination process with Ms McGough. He was not obliged to involve her in his discussions with third parties. Nor was he obliged to refer in his reasons to each and every piece of information. It is apparent that Ms McGough had her mind directed to the critical issues on which the decision was likely to turn and had an opportunity to deal with them.

129    Nor is any relevant failure to afford procedural fairness identified by Ms McGough with respect to the Second Decision. After receiving the Recommendation, the Secretary was obliged under s 16A.25 of the Investigation Principles 2007 to reconsider the First Decision and in that process was obliged to take into account the Recommendation. The reasons for the Second Decision disclose that this statutory task was undertaken.

130    Ms McGough makes generalised assertions that 'There was a breach of natural justice on how this application was managed, from start to finish'. I have carefully read Ms McGough's various affidavits and submissions and attempted to discern more particular complaints that might relate to procedural fairness and the Second Decision. There is an allegation that Ms McGough was not provided with copies of incident reports or witness statements, that verbal reports referred to in underlying documents should not be relied upon, and so (it was contended) the Secretary did not have 'sufficient documentary evidence'.

131    Neither the delegate of the Aged Care Commissioner nor the delegate of the Secretary were obliged to provide incident reports and witness statements to Ms McGough. As explained above, what was required in order to afford procedural fairness was that Ms McGough be on notice of the critical issues on which the decision maker's decision was likely to turn and that she had an opportunity to deal with them.

132    I have already traversed the various communications between the parties and the principles. The delegate of the Secretary was entitled (and bound) to rely on the Recommendation.

133    The delegate of the Aged Care Commissioner in preparing the Recommendation was not obliged to provide to Ms McGough each and every document obtained (including witness statements) relating to the complaints that lead to the denial of access. The delegate was not obliged to comply with every request for information made by Ms McGough. The delegate was entitled under the Investigation Principles 2007 to meet with and interview people and to take into account verbal accounts.

134    Ms McGough has not pointed to any particular practical unfairness arising out of the delegate of the Aged Care Commissioner reviewing reports and making inquiries of people in circumstances where such conduct fell within the proper exercise of the delegate's powers, where the complaints had been agitated in correspondence that was disclosed to Ms McGough, where there had been the SAT hearing, and where she was provided with notice in advance by the delegate of the findings that were likely to be made.

135    So, as there is no realistic prospect that the Recommendation would be impugned on a review application for denial of procedural fairness, there is no apparent reason why the delegate of the Secretary, when exercising the power under s 16A.25 of the Investigation Principles 2007, should have limited the weight to be given to the Recommendation or re-opened any inquiries with Ms McGough. In addition to the Recommendation, it is apparent that the delegate of the Secretary took into account other documentation (see [70]-[71] above) for the purpose of her statutory reconsideration. Whilst it is perhaps unfortunate that the delegate of the Secretary lists in her reasons that the information reviewed included certain correspondence and communications to Ms McGough, but does not include that received from Ms McGough, it is apparent that the delegate had access to and reviewed all information from the IMS database, including that which was before the Secretary at the time of the First Decision. There was no insufficiency of information before the delegate. But most importantly, Ms McGough received and reviewed the Recommendation, which incorporated a consideration of relevant evidence received from Ms McGough and had been the subject of Ms McGough's comment, as discussed above. No absence of procedural fairness with respect to the Second Decision has been sufficiently identified.

136    Therefore, I am not satisfied that the first ground of review has any realistic prospect of success.

Ground 2 - 'no evidence' ground

137    It appears that by ground two Ms McGough relies on the principle that if in giving reasons a decision maker makes a finding of fact, they must do so based on some evidence or other supporting material, rather than on no evidence or material, unless the finding is made in accordance with the decision maker's personal or specialised knowledge or by reference to that which is commonly known. The term ‘no evidence' has traditionally been interpreted to mean ‘not a skerrick of evidence': Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail.

138    Ms McGough's argument appears to be that the delegates should not have accepted the submissions made by the Approved Provider that there were valid concerns for the denial of access. Ms McGough contends that her evidence, consisting of documents such as police records, Magistrates Court records and Worksafe records that indicate an absence of any claim brought against her, counter the Approved Provider's evidence, so that it could not be accepted. I have addressed above the difficulties faced by Ms McGough in relying on those documents to counter allegations about her conduct. It could not be said that there was 'not a skerrick of evidence' to support the delegates' findings. To the contrary, there was quite a body of evidence which supported the decision reached by the delegates. Relevantly, the delegates had before them the following documents that evidenced Ms McGough's conduct with respect to staff and in the nursing home, including her explanation for some of that conduct, all of which the delegates were entitled to take into account and weigh as they considered appropriate:

(a)    letter from Ms Clarke to Ms McGough of 3 September 2009 ([33(d)] above);

(b)    letter of 23 September 2009 from Ms Sinclair to Ms McGough ([33(g)] above);

(c)    letter of 6 October 2009 from Ms Sinclair to Ms McGough referring to two staff complaints ([33(h)] above);

(d)    letter of 8 October 2009 from Ms McGough responding in detail ([33(j)] above;

(g)    letter of 12 October 2009 from Mr Glass denying access ([36] above);

(e)    Ms McGough's letter to SAT of 14 October 2009 ([38] above);

(f)    Ms McGough's letter of 14 October 2009 to the Approved Provider ([39] above);

(g)    letter of 19 October 2009 from Ms Sinclair to SAT ([40] above);

(h)    'list of incidents report' prepared by the Approved Provider ([44] above); and

(i)    site visit report and 'Summary of Incidents related to Ms McGough's Actions and Comments' ([46] above).

139    Weight is pre-eminently a matter for the decision maker to assess, as opposed to this Court on judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. By this ground, Ms McGough is inviting the Court to turn a judicial review into an exercise in the review of the merits, including by re-assessing the weight to be given such evidence. That is, she asks the Court to consider afresh the evidence and form its own view as to the merits of whether Ms McGough's conduct was such that access to the nursing home should have been limited and whether a notice of required action should have been issued. That is not a task open to this Court on judicial review.

140    I do not consider that there is any realistic prospect that ground 2 would be allowed on a review application.

Ground 3 - failure to consider the 'proper requirements' of s 23.8 of the User Rights Principles 1997

141    The third ground that Ms McGough seeks to pursue by way of judicial review is that the decisions failed to consider the 'proper requirements' of s 23.8 of the User Rights Principles 1997. I will proceed on the basis that Ms McGough alleges error in the manner that s 23.8 was applied and considered by the delegates, in that the section properly understood provided her with a right of access at any time and regardless of other competing rights. Ms McGough contends that, having regard to s 23.8, there was no lawful basis upon which the Approved Provider could have denied her access, as the care recipient representative to her mother, or imposed conditions or time frames around when she could visit her mother.

142    This contention is essentially one of statutory construction.

143    Some of the relevant statutory provisions are set out above. In particular (at [56]) I have set out s 54.1 of the Aged Care Act, which required that an approved provider provide care and quality to a care recipient consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles 1997.

144    Also relevant is s 56.1 of the Aged Care Act, which is headed 'Responsibilities of approved providers - residential care'. Section 56.1(j) provided at the time that an approved provider is required 'to allow people acting for care recipients to have such access to the service as is specified in the User Rights Principles'. Section 56.1(l) provided that the approved provider is 'not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles'.

145    Section 23.8 of the User Rights Principles 1997, the provision central to this ground, addresses access by a person acting for a care recipient, and is set out at [57] above, but I will repeat it here for convenience:

If a care recipient, or a care recipient's representative, has asked a person acting for care recipients to assist the care recipient, the approved provider must allow the person to have access to the residential care service at any time.

(emphasis added)

146    I should note that it was not in issue that Ms McGough's mother was a care recipient and Ms McGough was her representative for the purpose of the provision.

147    Section 23.12, headed 'Consistency with rights and responsibilities', provides:

Rights and responsibilities

The rights and responsibilities of care recipients include the rights and responsibilities under the Charter of Residents' Rights and Responsibilities set out in Schedule 1.

148    Schedule 1 to the User Rights Principles 1997 comprises the Charter. It provides:

A. Each resident of a residential care service has the right:

•    to full and effective use of his or her personal, civil, legal and consumer rights

•    to quality care appropriate to his or her needs

•    to full information about his or her own state of health and about available treatments

•    to be treated with dignity and respect, and to live without exploitation, abuse or neglect

•    to live without discrimination or victimisation, and without being obliged to feel grateful to those providing his or her care and accommodation

•    to personal privacy

•    to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction

•    to be treated and accepted as an individual, and to have his or her individual preferences taken into account and treated with respect

•    to continue his or her cultural and religious practices, and to keep the language of his or her choice, without discrimination

•    to select and maintain social and personal relationships with anyone else without fear, criticism or restriction

•    to freedom of speech

•    to maintain his or her personal independence

•    to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the resident has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices

•    to maintain control over, and to continue making decisions about, the personal aspects or his or her daily life, financial affairs and possessions

•    to be involved in the activities, associations and friendships of his or her choice, both within and outside the residential care service

•    to have access to services and activities available generally in the community

•    to be consulted on, and to choose to have input into, decisions about the living arrangements of the residential care service

•    to have access to information about his or her rights, care, accommodation and any other information that relates to the resident personally

•    to complain and to take action to resolve disputes

•    to have access to advocates and other avenues of redress

•    to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights.

B. Each resident of a residential care service has the responsibility:

•    to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a whole

•    to respect the rights of staff and the proprietor to work in an environment free from harassment

•    to care for his or her own health and well-being, as far as he or she is capable

•    to inform his or her medical practitioner, as far as he or she is able, about his or her relevant medical history and current state of health.

149    The drafting of s 23.8 is not without difficulty. For example, the delegate has assumed for the purpose of the First Decision that the section provides that a care recipient's representative must have access to the care recipient at all times. Strictly speaking, that is not what it provides. It provides that if the care recipient or a care recipient's representative has asked a person to assist the care recipient, then that person must have access. It anticipates access by a third party to assist. Arguably, however, the provision might apply where the care recipient has asked the care recipient's representative to assist: that is, the provision might apply where the 'person' and the 'care recipient's representative' are one and the same person. However, it is unnecessary to develop this further because the Commissioner has proceeded on the basis that, subject to what follows with respect to the interpretation of 'at any time', s 23.8 applied to grant Ms McGough a right of access.

150    There is a further difficulty with the drafting of s 23.8. Is it intended that the provision applies to a general request for assistance from a person made, for example, at the time of the care recipient's entry into residential care? Or is it intended to address a particular request for assistance from a person that is required at a particular time? Or does it extend to both scenarios? Again, it is not necessary to develop this issue further. In light of the Commissioner's acceptance that the provision on its face applies, it is also implicit that the Commissioner accepts that at some point Ms McGough's mother asked Ms McGough to assist her, and the Commissioner makes no point about the timing of any such request.

151    However, the Commissioner does not accept that the words 'at any time' are to be read strictly so as to trump other rights of care recipients and obligations of the approved provider.

152    It is apparent that although the words 'at any time' are not qualified by any express discretion or any reference to compliance with other procedures, consents or competing provisions, a strict interpretation of those words might leave no room for compliance by the approved provider with its responsibilities to care recipients if a practical conflict arose. For example, another resident's right, provided by the Charter, 'to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction', might be compromised if a person visits the nursing home without warning, at any time of the day or night, and interrupts staff in their duties or behaves in a threatening manner towards residents or staff. Similarly, a care recipient's rights to continue their cultural and religious practices or their right to privacy might be interrupted or compromised by a person visiting at the request of another care recipient but at times that are not considerate of the needs of others, a compromise that must also be assessed having regard to the urgency or otherwise of the reason for the request for assistance. Safety and issues relating to workforce conditions may also arise, and there are other scenarios that can be envisaged where the rights of the residents in a nursing home might be compromised by unconditional access.

153    Ms McGough essentially contends that s 23.8 permitted her unfettered access to her mother at any time and in any circumstances. The Commissioner contends that to accept such a construction would be to give pre-eminence to s 23.8 over every other provision in the Aged Care Act, and to interpret it in a way that does not have regard to the scope, object and purposes of the Act.

154    It seems to me that the Commissioner's submission is to be preferred.

155    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court stated:

[78]    … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

156    The Commissioner submitted that the phrase 'at any time' must be interpreted within the object, scope and purpose of the Aged Care Act and Principles. I accept that this argument is sound, having regard to the procedural nature of the provision and the purpose of the conflicting provisions. I do not consider that the object for which access is to be permitted - to assist (without particularity) the care recipient - is such that it directs an interpretation that the approved provider is compelled to exercise an obligation to grant access at any time upon any request (no matter how insignificant the request for assistance may be) without regard to other competing objects. An approved provider has a statutory obligation to provide care and services of a quality to a care recipient consistent with the rights referred to in the Charter. In my view, the words 'at any time' are clearly intended to extend the potential hours of access beyond normal business hours, but they are to be read so as to permit an exercise of discretion on the part of the approved provider that reflects both the nature of the request for access and other objects and rights that may be in play in the particular circumstances and which might need to be afforded greater priority at the time. There are examples where 'must' in a provision that imposes an obligation has been construed to provide for a discretion (Director of Public Prosecutions v George [2008] SASC 330; (2008) 102 SASR 246), but in any event it seems to me that the phrase 'at any time' where used in s 23.8 of the User Rights Principles 1997, and having regard to the other statutory obligations on the part of the approved provider, is to be read broadly so as to provide for necessary limitations where another object must be accorded greater priority. Otherwise, although the object of providing access upon request might be met, other objects of the Aged Care Act are likely to be defeated.

157    The respondent submitted that the Approved Provider had the power to deny Ms McGough access, and to impose some restrictions on her access to her mother, yet still be compliant with the requirements of s 23.8.

158    In the Recommendation (paras 37-43), the delegate of the Aged Care Commissioner considered the question of a breach of s 23.8 of the User Rights Principles 1997 and concluded, having regard to other rights, responsibilities and requirements under the Aged Care Act and Principles, that it was reasonable for the Approved Provider to have proceeded as it did, that is, by initially denying access and then allowing restricted access subject to conditions. The delegate was evidently conscious of competing rights and obligations in construing s 23.8. The delegate took into account that the Approved Provider was required to have in place strategies to manage Ms McGough's visits. That approach does not lack a reasonable basis. The basis is to be found in the competing obligation on the part of the Approved Provider to ensure the safety and quality care to all care recipients. Those strategies, by the time of the Recommendation, permitted Ms McGough to visit her mother at certain times. The delegate of the Secretary, by way of the Second Decision, considered and adopted that Recommendation. It was a matter for the delegates to weigh and assess the nature of any risk posed by Ms McGough's access, having regard to all of the evidence. While a different decision may have been open on the evidence, such an argument invites the Court to embark on a review of the merits, and as already observed, that course does not properly arise on judicial review. Whilst ground 3 is perhaps the strongest of the grounds of review, raising as it does a construction point, I do not consider it has any real prospect of success or any sufficient merit.

159    Finally, in light of the conclusions I have reached as to grounds 1, 2 and 3, I am not satisfied that there is any support to be found in the matters addressed by these reasons for Ms McGough's generalised assertion in her submissions of an improper exercise of power.

Conclusion with respect to ADJR Act

160    I would refuse Ms McGough's application for an extension of time to institute proceedings on the grounds of inordinate delay and a lack of utility. Furthermore, I would refuse it on the basis that it is not in the interests of justice to allow the extension, because the prospective merits do not, when considered in conjunction with the factors already mentioned, warrant the granting of an extension.

Application for relief under s 39B of the Judiciary Act

161    It remains to consider the application under s 39B of the Judiciary Act.

162    The grant of relief under s 39B of the Judiciary Act is discretionary and the Court is entitled to consider whether the proceedings have been instituted within a reasonable time. Delay may be a factor that weighs against an exercise of discretion to grant relief: Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority and Gosford Christian Broadcasters Limited [2006] FCA 1691 at [37]-[39] (Cowdroy J). His Honour continued:

[40]    Ultimately the question to be considered is whether justice, to all parties, will be done if the Court proceeds to allow the application to be considered.

163    That delay is a relevant consideration in the exercise of discretion was confirmed by the Full Court in Daley v Child Support Registrar [2020] FCAFC 161 at [43], by analogy with observations made in relation to the High Court's jurisdiction under s 75(v) of the Constitution in Re Refugee Review Tribunal; Ex parte Aala at [53].

164    I take into consideration the matters considered above in relation to the application for an extension of time with respect to the ADJR Act application, and, in particular, that the time taken by the applicant to commence proceedings with respect to each of the First Decision, the Recommendation and the Second Decision was inordinate and unreasonable. Having regard to all of those matters I have discussed, this is not a case where it is appropriate as matter of discretion to grant any relief under the Judiciary Act.

Orders

165    There will be orders dismissing the applications under the ADJR Act and the Judiciary Act accordingly. Costs are to follow the event in the usual way, so that the applicant is to pay the respondent's costs to be assessed by a registrar of this Court if not agreed.

Associate:

Dated:    10 May 2022