Federal Court of Australia

Byron Aged Care Limited v Aged Care Quality and Safety Commissioner [2022] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Byron Aged Care Limited (BAC), operates an aged care facility in Byron Bay and is an aged care provider for the purposes of the Aged Care Quality and Safety Commission Act 2018 (Cth). The respondent, the Aged Care Quality and Safety Commissioner, is the Commissioner to the Aged Care Quality and Safety Commission. The Commissioner has a number of functions pursuant to s 16 of the Commission Act relating to the provision of aged care services.

2    These proceedings arise from a complaint by Pauline Emma Burke to the Commission regarding the care and services provided by BAC to her father, Donald Burke, in her capacity as Mr Burke’s authorised representative. Mr Burke suffers from dementia, with responsible behaviours secondary to cognitive changes associated with his condition. Specifically, BAC charged Mr Burke for the provision of a special nurse and security guard and deducted these charges from his Refundable Accommodation Deposit (RAD) held by BAC. The Commissioner’s delegate issued a notice of intention to give directions to BAC, which advised of her preliminary view that, by imposing these charges and deducting these amounts, BAC had not met its obligations under the Aged Care Act 1997 (Cth). That notice also invited BAC to comment.

3    At the hearing of the application, BAC was granted leave to rely on its amended originating application filed on 8 July 2021. By that application, BAC alleges that the Commission Act does not authorise the Commissioner to make a decision in respect of one of the issues raised by the complaint described as “Issue 2” and that an error of law is being, or is likely to be, committed in the course of the conduct or making of the proposed decision. Issue 2 concerns the complaint that BAC had charged Mr Burke “for care staff to special him and security staff without prior agreement” (see further at [23] below).

4    BAC seeks declarations pursuant to s 16(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) that:

(1)    the provision of a special nurse to supervise, redirect and divert Mr Burke (which constituted 80% of the work of the special nurse) did not constitute care for the purposes of item 2.9 of the Quality of Care Principles 2014 (Cth) (the first care declaration);

(2)    the provision of a security guard to ensure the safety of Mr Burke and the other residents, staff and visitors of BAC did not constitute care for the purposes of any item of the Care Principles (the second care declaration);

(3)    BAC has met its responsibility under s 56-1(a)(i) of the Aged Care Act to Mr Burke (the first responsibility declaration); and

(4)    BAC has met its responsibility under s 56-1(a)(iii) of the Aged Care Act to Mr Burke (the second responsibility declaration).

5    BAC also seeks, pursuant to s 16(2) of the ADJR Act or s 39B of the Judiciary Act 1903 (Cth), an order in the nature of a writ of prohibition issued to the Commissioner, prohibiting her from continuing to investigate Issue 2.

6    However, by a notice of objection to competency under r 31.05 of the Federal Court Rules 2011 (Cth), the Commissioner objects to the competency of the application on the basis that (relevantly) BAC is inviting the Court to engage in impermissible merits review.

7    The Commissioner also contends that the application should be dismissed because:

(1)    the application is premature and, in effect, seeks to usurp the statutory scheme established for resolving complaints and the Court should exercise its discretion to refuse to grant the orders sought and dismiss the application;

(2)    the relief sought is meaningless and ineffective; and

(3)    in any event, no legal error exists.

(Respondent’s Outline of Submissions at [2].)

8    For the reasons set out below, the application must be dismissed with costs. As the Commissioner contends, the application asks this Court to engage in a review of the merits which is vested exclusively in the Commissioner and her or his delegates. As such, the application is not competent. In any event, I would have dismissed the applications for declaratory relief in the exercise of discretion on the grounds that they would serve no useful purpose, effectively seek an advisory opinion from the Court, and that “adequate provision” for the purposes of s 10(2)(b)(ii) of the ADJR Act for review is made under the Aged Care Quality and Safety Commission Rules 2018 (Cth). In those circumstances, it would be inappropriate for me to engage in a consideration of whether there was any legal error in the preliminary findings and expression of concerns by the delegate.

9    I also note that at the hearing, I raised the question of whether Ms Burke, who made the complaint to the Commissioner, should have been joined as a party in her capacity as Mr Burke’s legal guardian and in her personal capacity as she had given a personal guarantee in the residential agreement with BAC. As a result, a further affidavit of Benjamin Henry John Dube, solicitor, sworn on 2 December 2021 (second Dube affidavit) was filed pursuant to orders made at the trial. That evidence confirmed that an employee of the Commission had advised Ms Burke of the proceeding before the trial by way of updates on 4 August 2021 and 14 September 2021. In circumstances where, despite being aware of the proceeding, Ms Burke did not seek to be joined and neither party submitted that she should be joined, I did not consider that it was necessary for Ms Burke to be joined as a party on the Court’s own motion.

2.    EVIDENCE

10    BAC relied in support of its application on two affidavits of Ian Kelly, solicitor, affirmed on 28 April 2021 and 1 November 2021 (the first and second Kelly affidavits respectively). These were read without objection. The first Kelly affidavit sets out the procedural history of the dispute and annexes relevant agreements and correspondence. The second Kelly affidavit annexes a complete copy of the notice of intention to give directions and cover letter from the Commission to BAC, which was emailed to BAC’s solicitors, Hall Payne Lawyers, on 16 February 2021.

11    The Commissioner relied on the affidavit of Mr Dube sworn on 15 November 2021 (first Dube affidavit). At the hearing BAC initially objected to one of the annexures to the first Dube affidavit being accepted into evidence on the basis that it was a without prejudice communication and therefore privileged. However, this objection was not ultimately pressed. As a result, joint privilege in the communication was waived and the affidavit and annexures were admitted into evidence in full (T16.29-31).

3.    FACTUAL BACKGROUND

3.1    The resident and accommodation agreement

12    On 16 August 2018, Mr Burke commenced living at the aged care facility run by BAC pursuant to a resident and accommodation agreement (the Agreement) (first Kelly affidavit at [2]). The Agreement, signed on 13 August 2018, was between BAC and Mr Burke’s guardian, Ms Burke (Annexure IK-1 pp 1, 8).

13    Relevantly, the Agreement specified a standard resident contribution for care in the sum of $50.16 per day, which was also described as the “starting daily amount”. While the Agreement stated that, among other things, a means tested care fee and any other agreed amounts may be added to the standard resident contribution, the Agreement also stated that any such additional fees were “TBA”. The method of “accommodation payment” selected under the Agreement was the refundable deposit in the sum of $275,000.00, as opposed to the daily accommodation payment specified at $44.90.

14    The Agreement also stated that:

Other Charges: You must also meet the costs of any items that do not form part of the care and services we provide as stated in Annexure A (Care and Services), such as personal pharmaceutical items, as outlined in Annexure B (Accommodation and Care Payments and Charges).

15    The annexures to the Agreement set out in more detail the level of care to be provided by BAC to Mr Burke and terms for payment.

16    In relation to the level of care, Annexure A to the Agreement provided:

A2     Quality of Care Principles

The care and services provided to you will include the care and services specified in the Quality of Care Principles (see Annexure F) that you are assessed as requiring.

17    Annexure B, headed “Accommodation and Care Payments and Charges”, relevantly included:

B4     What can be deducted from the Refundable Deposit

B4.1     We may deduct the following amounts from a Refundable Deposit:

B4.1.1     your Daily Payments if you have requested the deduction and it is owed to us;

B4.1.2     any amounts owing to us under this Agreement (including but not limited to Care Fees and fees for Additional Services) and interest on those amounts; and

B4.1.3     if you breach this Agreement, any costs, charges and expenses we reasonably incur as a result of the breach.

B4.2     A permitted deduction may be made without prior notice.

B4.3     The amount of your Daily Payments will increase if your Refundable Deposit is reduced in accordance with the Method of Calculation.

…

B17     Costs on Default

If you breach this Agreement, you must pay or reimburse us on demand all costs, charges and expenses we reasonably incur as a result of the breach.

18    Annexure C set out the resident’s rights and responsibilities regarding the general conditions of occupying the facility, including dealing with any complaints and the termination of the Agreement. Relevantly, it imposed an obligation on the resident to comply with the Rules of Occupancy (cl C4.1). Annexure D, in turn, contained the Rules of Occupancy and relevantly provides:

D8    You must not commit any improper or disorderly conduct.

…

D23    You must not do anything which may cause us [BAC] to be in breach of our obligations under workplace health and safety legislation with respect to you, our staff, another care recipient or a visitor to the Facility.

19    Annexure E was a charter of the care recipients’ rights and responsibilities. Annexure F to the Agreement set out the “Specified Care and Services for Residential Care”, which relevantly included the requirements under the Care Principles set out at [51] below.

3.2    The complaint to the Commission

20    On 23 June 2020, BAC engaged a special nurse to manage the allegedly violent behaviour of Mr Burke. Subsequently, when the view was formed that the use of the special was not sufficient in light of Mr Burke’s aggressive behaviour, BAC engaged a security guard whose first shift commenced on 9 July 2020: see exhibit IK-21 at pp 209-210, first Kelly affidavit. BAC then deducted the cost of engaging the special nurse and, in due course, also the security guard, from Mr Burke’s RAD purportedly pursuant to cl B4 of the Agreement.

21    On 1 July 2020, Ms Burke contacted the Commission regarding the care provided by BAC to her father (Annexure IK-1, second Kelly affidavit).

22    On 8 July 2020, the solicitors for BAC advised Ms Burke that:

In response to Mr Burke’s increasing and escalating violent behaviour, BAC has been left with no option but to:

a)    Special Mr Burke on a 1:1 basis

b)    Employ a personal security person to ensure the safety of Mr Burke and all staff, visitors and residents of BAC

The additional cost of the above will be invoiced directly to Mr Burke’s account and will be deducted from Mr Burke’s RAD (refundable accommodation deposit) accordingly.

The requirement for BAC to employ security personelle is a direct result of the assault yesterday on the BAC staff member who was specialling Mr Burke…

23    On 15 July 2020, the Commission informed BAC by email that a series of complaints had been made by Ms Burke on behalf of Mr Burke (first Kelly affidavit at [2] and Annexure IK-2 at p 56). The email set out nine issues of concern and the outcomes sought by the Commission, including Issue 2. Relevantly, Issue 2 was described as follows (Annexure IK-2 at p 56):

Issue 2: Byron Aged Care has charged Mr Donald Burke for care staff to special him and security staff without prior agreement.

Desired Outcome: For the charges to be withdrawn.

Can you demonstrate and provide evidence that there was any agreement to pay the additional fees for one on one staff care and the security guard?

If there was no agreement, can you please explain under what legislative basis you are charging for the hiring of these extra staff?

Please explain how you consider it is reasonable to expect payment the same day?

Please explain why the onus is on Ms Burke and her father to pay for additional staffing to manage Mr Burke, when you should have an adequate number of appropriately skilled staff to meet the needs of all care recipients?

24    The “specialling charges” had apparently commenced accruing on 23 June 2020 (Annexure IK-18, second Kelly affidavit). Ms Burke sought to have these charges withdrawn.

25    On 23 July 2020, Hall Payne Lawyers sent a letter to the Commission on behalf of BAC responding to the concerns raised in the Commission’s letter, including to Issue 2 (Annexure IK-3, first Kelly affidavit). In that letter, BAC submitted that:

Mr Burke’s behaviours have recently escalated and now manifest in obsessive, aggressive and violent behaviours, including, but not limited to, punching, grappling with staff, throwing a nurse down, pushing and finger poking. Mr Burke also stands incredibly close to other residents and visitors and loudly berates them with, on occasion, bad language (together the “Behaviours”).

26    BAC submitted that the Behaviours were “of great concern in an Aged Care Facility which is an environment where many of the residents are fragile and completely incapable of protecting themselves”. Thus, BAC submitted that it had engaged a full time nurse to special Mr Burke in order to discharge its obligations to provide a safe facility for all, including Mr Burke. However, that had proved unsuccessful due to Mr Burke’s physical strength and obsessive behaviour placing the nurse at serious risk of injury and, indeed, the nurse specialling Mr Burke had been subsequently injured by him. As a result, BAC submitted that it had engaged a security guard “to be present to protect Mr Burke, other residents, visitors and staff, with the security guard acting together with the special nurse.” This strategy was said to have been successful to date.

27    Further correspondence was exchanged between the parties regarding Ms Burke’s complaints (first Kelly affidavit at [8]-[38]).

28    On 6 August 2020, Ms Burke removed Mr Burke from the facility operated by BAC.

29    On 17 August 2020, BAC issued a statement of account to Ms Burke, reflecting the returned RAD less the sum of $41,588.42 being the total of the charges for specialling and security services (Annexure IK-1, second Kelly affidavit). The sum of $41,588.42 was comprised of $18,822.42 for “specialling” and $22,766.00 for the security guard.

3.3    The notice of intention to give directions

30    Following an investigation, on 16 February 2021 a delegate of the Commissioner issued a notice of intention to give directions in relation to Issue 2 to BAC (Notice) under s 20(1) of the Commission Rules (second Kelly affidavit at [1]-[4] and Annexure IK-1 thereto). The Notice detailed the delegate’s preliminary findings with respect to Issue 2 and stated her concerns regarding BAC’s apparent failure to meet its responsibilities under the Aged Care Act in relation to Issue 2. Specifically, in the Notice the delegate stated that she was satisfied on a preliminary basis and subject to considering any response that:

(1)    by deducting $18,822.42 from Mr Burke’s RAD with respect to “specialling”, BAC has not met its responsibility under s 56-1(a)(i) of the Aged Care Act “to charge no more for provision of the care and services that it is the approved provider’s responsibility to provide under [s] 54-1(1)(a) than the amount permitted under Division 52C”; and

(2)    there was an apparent failure by BAC to comply with its responsibility under s 56-1(a)(iii) of the Aged Care Act requiring BAC to observe the requirements of Part 3A.2 in relation to any accommodation payment or accommodation contribution charged to the care recipient.

(The relevant parts of ss 54-1 and 56-1 of the Aged Care Act are set out below at [44], [46] and [47].)

31    With respect to the first of these findings, it was the delegate’s preliminary view that:

(1)    as Mr Burke had a cognitive impairment and BAC stipulated that it would provide such care, item 2.9 of the Care Principles would be engaged;

(2)    clause A2 of Annexure A to Mr Burke’s Agreement (set out at [16] above) provided that the care and services would include the care and services specified in the Care Principles that he was assessed as requiring, and this would encompass item 2.9 of the Care Principles;

(3)    item 2.9 included a provision of “specific programs designed and carried out to prevent or manage a particular condition or behaviour”;

(4)    charges for specialling were imposed from 23 June 2020;

(5)    “on the facts …specialling was specifically undertaken to ‘prevent or manage a particular condition or behaviour’” and therefore fell within item 2.9; and

(6)    it was not open to BAC to charge separately for specialling that BAC was obligated to provide under the Care Principles.

32    However, the delegate accepted (as a preliminary finding) that the security guard “was hired for the specific purpose of protecting residents, visitors and staff” and therefore (by implication) that those costs did not fall within item 2.9 of the Care Principles.

33    As to the second preliminary finding, the delegate was concerned that:

(1)    as Ms Burke had informed the Commission that she had not consented to $41,588.42 being deducted from the RAD, BAC had not complied with s 52J-7(2)(b) of Part 3A.2 of Chapter 3A of the Aged Care Act;

(2)    the prohibition against the provider deducting any amounts not permitted under s 52J-7(3) was therefore engaged; and

(3)    there was therefore an apparent failure by BAC to comply with s 56-1(a)(iii) of the Aged Care Act, which required BAC to comply with the requirements of Part 3A.2.

34    The Notice invited BAC to respond to the concerns in writing within 14 days and advised that:

After considering your response, I may give you written Directions to take certain actions under section 19(1) of the Rules in order to meet your responsibilities under the Aged Care Act or, if I decide that you have addressed the issue, decide to end the resolution process under section 17(1)(b) of the Rules.

35    As such, in line with the processes established under the Commission Rules, the Notice left open the question of whether a direction would be made under s 19(1) of the Commission Rules or whether the resolution process would be ended under s 17(1)(b) of the Commission Rules, pending a consideration of any response by BAC.

3.4    BAC’s response to the Notice

36    On 16 March 2021, BAC wrote to the Commission in response to the Notice (Annexure IK-21, first Kelly affidavit). BAC’s response stated that:

(a)    the nurse and security guard were engaged solely to protect other people because Ms Burke would not permit Mr Burke to be treated in a matter that would have protected others;

(b)    the Agreement permitted the amounts to be deducted and doing so was not inconsistent with the Aged Care Act; and

(c)    in line with the attached evidence of the nurse who “specialled” Mr Burke that she performed some care services to Mr Burke amounting to approximately 20% of her time giving care to him, BAC would refund 20% of the costs charged for the nurse (a concession apparently not previously made by BAC).

37    The response attached statements from four staff members regarding Mr Burke’s behaviour (Annexure IK-21 at pp 201-211, first Kelly affidavit). These staff members included the nurse who acted as a “special” for Mr Burke (id at p 206).

38    BAC subsequently refunded to Ms Burke 20% of the amount deducted from the RAD for the cost of the one-on-one nurse, being $3,764.

39    Significantly, these proceedings were commenced on 28 April 2021 before the Commissioner made any direction under s 19 of the Commission Rules. No direction has since been made by the Commissioner.

4.    LEGISLATIVE FRAMEWORK

4.1    The Aged Care Act 1997 (Cth)

40    The Aged Care Act concerns the operation of government-funded aged care facilities. BAC is an approved provider for the purposes of the Aged Care Act. Division 52-C of Part 3A.1 of the Aged Care Act sets out the circumstances in which fees can be charged for, or in connection with, residential care to a care recipient through a residential care service and, in effect, imposes a cap on those fees. “Residential care” is defined in s 41-3 of the Aged Care Act to mean:

(1)     Residential care is personal care or nursing care, or both personal care and nursing care, that:

(a)    is provided to a person in a residential facility in which the person is also provided with accommodation that includes:

(i)    appropriate staffing to meet the nursing and personal care needs of the person; and

(ii)    meals and cleaning services; and

(iii)    furnishings, furniture and equipment for the provision of that care and accommodation; and

(b)    meets any other requirements specified in the Subsidy Principles.

(2)    However, residential care does not include any of the following:

(a)    care provided to a person in the person’s private home;

(b)    care provided in a hospital or in a psychiatric facility;

(c)    care provided in a facility that primarily provides care to people who are not frail and aged;

(d)    care that is specified in the Subsidy Principles not to be residential care.

41    Pursuant to s 52F-2, an approved provider such as BAC must enter into an accommodation agreement with a person prior to, or within 28 days of, her or him entering the care facility, unless an extension is granted. If the person is unable to enter into an agreement, including because of any physical incapacity or mental impairment, another person representing the care recipient may enter the agreement on his or her behalf: s 96-5 of the Aged Care Act. Section 52F-3(1) provides that certain matters must be set out in the accommodation agreement, which relevantly include:

(e)     that, within 28 days after the date of entry, the person must choose to pay the accommodation payment or accommodation contribution (if payable) by:

(i)     *daily payments; or

(ii)     *refundable deposit; or

(iii)     a combination of refundable deposit and daily payments;

…

(h)     the amounts that are permitted to be deducted from a refundable deposit;

…

42    In turn, s 52J-7 of the Aged Care Act provides:

52J-7     Amounts to be deducted from refundable deposits

(1)     An approved provider must deduct a *daily payment from a *refundable deposit paid by a person if:

(a)     the person has requested the deduction in writing; and

(b)     the daily payment is payable by the person.

(2)     An approved provider may deduct the following from a *refundable deposit paid by a person:

(a)     the amounts specified in the Fees and Payments Principles that may be deducted when the person leaves the service;

(b)     any amounts that the person has agreed in writing may be deducted;

(c)     such other amounts (if any) as are specified in the Fees and Payments Principles.

(3)     The approved provider must not deduct any other amount from a *refundable deposit.

(Emphasis added.)

(See also s 52N-1 of the Aged Care Act.)

43    In the present case, Mr Burke chose to pay the accommodation payment by the RAD (as explained above).

44    Section 56-1 of the Aged Care Act sets out a care provider’s responsibilities, which relevantly include:

56-1     Responsibilities of approved providers—residential care

The responsibilities of an approved provider in relation to a care recipient to whom the approved provider provides, or is to provide, residential care are as follows:

(a)     if the care recipient is not a *continuing care recipient:

(i)     to charge no more for provision of the care and services that it is the approved provider’s responsibility to provide under paragraph 54-1(1)(a) than the amount permitted under Division 52C; and

…

(e)     to charge no more for any other care or services than an amount agreed beforehand with the care recipient, and to give the care recipient an itemised account of the other care or services;

…

45    I interpolate, in this regard, that ss 15(5) and (6) respectively of the User Rights Principles 2014 (Cth), made under s 96-1 of the Aged Care Act, also provide that a resident agreement “must include any other matters negotiated between the approved provider and the care recipient” (such as an extra service agreement), and must be expressed in plain language which is readily understandable by the care recipient.

46    Finally, by virtue of s 54-1(1)(a) of the Aged Care Act, an approved provider has a responsibility to provide such care and services as are specified in the Care Principles in respect of aged care of the type in question. An approved provider must also maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met: s 54-1(1)(b). “Care” is defined in the Dictionary in Schedule 1 to the Aged Care Act as follows:

care means services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.

47    The approved provider must also:

(1)    provide care and services of a quality that is consistent with rights and responsibilities of care recipients that are specified in the User Rights Principles for the purposes of ss 56-1(m), 56-2(k), or 56-3(1) (see s 54-1(1)(c) of the Aged Care Act);

(2)    comply with the Aged Care Quality Standards made under s 54-2 (see s 54-1(1)(d) of the Aged Care Act);

(3)    manage incidents and take reasonable steps to prevent incidents through implementing and maintaining an incident management system which complies with the Care Principles (s 54-1(1)(e) of the Aged Care Act); and

(4)    comply with such other responsibilities as are specified in the Care Principles (s 54-1(1)(h) of the Aged Care Act).

4.2    The Quality of Care Principles 2014 (Cth)

48    The Care Principles are a legislative instrument made under s 96-1 of the Aged Care Act.

49    Relevantly, s 6 of the Care Principles provides that:

For subsection 54-1(1) of the [Aged Care] Act, this Part specifies:

(a)     the care and services that an approved provider of a residential care service must provide; and

(b)     other responsibilities of an approved provider of a residential care service in relation to the quality of the aged care that the approved provider provides.

50    Section 7 of the Care Principles provides:

(1)    For paragraph 54-1(1)(a) of the Act, an approved provider of a residential care service must, for each item in a table in Schedule 1, provide the care or service specified in column 1 of the item to any care recipient who needs it.

…

(3)    The care or service must be provided by the approved provider in a way that complies with the Aged Care Quality Standards set out in Schedule 2.

51    Importantly, the table in s 2 of Schedule 1 of the Care Principles sets out the “care and services that must be provided for all care recipients who need them” (emphasis added). This relevantly includes:

4.3    The Commissioner’s complaints functions under the Commission Act and the Commission Rules

52    Pursuant to s 16(1)(d) of the Commission Act, the Commissioner’s functions include the “complaints functions”. These are defined in s 18 of the Commission Act and include dealing with complaints made, or information given, to the Commissioner about an approved provider’s responsibilities under the Aged Care Act or the Care Principles. Pursuant to ss 21(2) and 77 of the Commission Act, Part 2 of the Commission Rules establishes a scheme for dealing with complaints made to the Commissioner about the responsibilities of an approved provider of an aged care service under the Aged Care Act or the Care Principles.

53    Pursuant to s 11(1)(a) of the Commission Rules, a person may make a complaint to the Commissioner in relation to the responsibilities of the approved provider of an aged care service under the Aged Care Act or the Care Principles. Section 13(1) of the Commission Rules provides that if the Commissioner receives a complaint, the Commissioner must, in relation to each issue raised in the complaint:

(a)     decide to take no further action in relation to the issue under section 14; or

(b)     take appropriate action to resolve the issue to the satisfaction of the complainant; or

(c)     decide to undertake a resolution process in relation to the issue under section 15.

54    The Commissioner may, for the purposes of, and without limiting, s 13(1) of the Commission Rules, consider the documents, discuss the issue with the complainant and relevant provider, and request information or documents from any person (s 13(2) of the Commission Rules). The Commissioner may decide to take no further action in relation to a complaint if, for example, the Commissioner is satisfied that the issue is frivolous or vexatious, the complaint has been withdrawn, the relevant provider has addressed the issue to the Commissioner’s satisfaction or, having regard to all the circumstances, no further action in relation to the issue is required (s 14(1) of the Commission Rules).

55    Alternatively, the Commissioner may decide to undertake a “resolution process” under s 15 of the Commission Rules in relation to an issue raised in a complaint. Sections 15(2) and (3) empower the Commissioner to do certain things as follows:

(2)    In undertaking a resolution process in relation to an issue raised in the complaint or information, the Commissioner may take any one or more of the following actions:

(a)    request the relevant provider for the issue to examine and attempt to resolve the issue and report back to the Commissioner;

(b)    request the following to participate in a conciliation process:

(i)    the complainant (if any);

(ii)    the relevant provider for the issue;

(iii)    any other person;

(c)    undertake an investigation of the issue;

(d)    refer the issue to mediation.

Note:    For the purposes of the Commissioner resolving the complaint or dealing with the provider responsibility information, an authorised officer may enter premises and exercise search powers in relation to the premises in accordance with Division 2 of Part 8 of the Commission Act.

(3)    Without limiting subsection (2), the Commissioner may do one or more of the following in taking action under that subsection:

(a)    consider documents;

(b)    discuss the issue, in person or by other means, with any of the following:

(i)    the complainant (if any);

(ii)    the relevant provider for the issue;

(iii)    any other person;

(c)    request information from any person.

56    It was not in issue that in this case, a resolution process and investigation was undertaken in relation to Issue 2 for the purposes of s 15. Further, as the Commissioner submitted and the name of the process suggests, the purpose of the resolution process is to resolve the issues arising in the complaint.

57    If the Commissioner decides to undertake a resolution process, written notice must (in general) be given to the relevant provider of the issue (s 16 of the Commission Rules). The Commissioner may decide to end a resolution process in relation to an issue if satisfied of any of the matters set out in ss 17(1)(a) to (i), including that the relevant provider has addressed the issue to the Commissioner’s satisfaction, the Commissioner has given a direction under s 19 to the relevant provider for the issue or, having regard to all the circumstances, the continuation of the resolution process is not required (ss 17(1)(b), (c), and (i) of the Commission Rules respectively).

58    Importantly, s 19 of the Commission Rules provides that the Commissioner may direct a provider to take specified action to meet its responsibilities under the Aged Care Act or the Care Principles, if satisfied that the provider is not doing so. Correspondingly, s 21(1) of the Commission Rules imposes an obligation upon the provider concerned to comply with any such direction.

59    Before giving a direction under s 19, s 20(1) of the Commission Rules provides that the Commissioner must give the aged care provider written notice of her or his intention to give the direction. That notice must set out the Commissioner’s concerns and invite the relevant provider to respond within a specified period (s 20(2) of the Commission Rules), as occurred in the present case.

60    Furthermore, by force of s 20(3) of the Commission Rules, the Commissioner must consider any response given to her or him within the specified period. As such, the purpose of s 20 of the Commission Rules is self-evidently to ensure that the provider is accorded procedural fairness by being put on notice of the Commissioner’s concerns and afforded an opportunity to comment.

61    Division 2 of Part 7 of the Commission Rules makes provision for certain decisions by the Commissioner to be reviewed, and identifies the interested person for the purposes of any such review. Significantly for reasons I later explain, the complainant or relevant aged care provider may request the Commissioner to reconsider a decision under s 17 of the Commission Rules to end a resolution process in relation to an issue raised in a complaint, being a “reviewable Commissioner decision” (item 2 of the table in ss 98 and 99 of the Commission Rules). Upon such a request being made, the Commissioner (or a delegate of the Commissioner who was not involved in making the decision) “must” within 56 days either affirm the decision or set the decision aside and decide to undertake a new resolution process (s 100 of the Commission Rules). No other decision on review is permitted by the Commission Rules. In turn, a new resolution process must be completed within 126 days, subject only to the possibility of a further 14 day extension (s 100(4) and (5) of the Commission Rules).

5.    CONSIDERATION

5.1    Relevant principles governing the grant of relief

62    It will be recalled that BAC seeks declaratory relief under s 16(2) of the ADJR Act that the provision of the nurse and security guard do not constitute “care” for the purposes of the Care Principles, and that BAC has met its responsibilities under ss 56(1)(a)(i) and (iii) of the Aged Care Act to Mr Burke (see above at [4]). BAC also seeks a writ of prohibition under s 16(2) of the ADJR Act or s 39B of the Judiciary Act directed to the Commission prohibiting it from continuing to investigate Issue 2. Section 39B mirrors s 75(v) of the Constitution, vesting this Court with jurisdiction “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

63    In turn, s 16(2) of the ADJR Act provides that:

(2)    On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make either or both of the following orders:

(a)    an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b)    an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

64    First, in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343, after emphasising that the rights conferred by the ADJR Act were stated by s 10 to be in addition to other rights, the majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) explained at [32] that:

The AD(JR) Act plainly was designed to provide a more streamlined procedure for the obtaining of relief which was formerly available only by way of prerogative writ, injunction or declaration of right. The terms of s 16 should not be the subject of any narrow or restrictive construction.

65    Thus, as the High Court explained in Park Oh Ho v Minister of State for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at 644 (cited with approval in Thiyagarajah at [32]):

The legislative purpose to be discerned in the conferral by s. 16(1)(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set side (with effect from a specified date) an impugned decision is clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is “necessary to do justice between the parties” (s. 16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality.

(I note that ss 16(1)(c) and (d) of the ADJR Act, to which their Honours refer, confer power to make orders in the same terms as ss 16(2)(a) and (b) respectively, but in the context of an application for review of a decision.)

66    It follows that the Federal Court’s discretionary power under s 16 of the ADJR Act is at least as extensive as the inherent power to grant relief exercised by courts of common law: Minister for Immigration and Ethnic Affairs v Conyngham [1986] FCA 289; (1986) 11 FCR 528 at 537 (Sheppard J (with whose reasons Beaumont and Burchett JJ agreed)) (cited with approval in Thiyagarajah at [32]); Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581 (Mason CJ, Dawson, Toohey and Gaudron JJ). In the case of the Federal Court, the powers in ss 16(1)(c) and (2)(a) of the ADJR Act are in addition to the Court’s wide discretionary power to grant declaratory relief expressly conferred by s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act): see e.g. Parker Trading as on Grid off Grid Solar v Switchee Pty Ltd Trading as Australian Solar Quotes [2018] FCA 479 at [92] (Gleeson J) as to the width of the power conferred by s 21 of the FCA Act.

67    It is well established that it is neither possible nor desirable to fetter the exercise of discretion by establishing rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 (Gibbs J) (by analogy). However, as Finn J explained in Duncan v Chief Executive Officer, Centrelink [2008] FCA 56; (2008) 244 ALR 129 at [32]:

… its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; 106 ALR 111 at 22; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-6; 161 ALR 399 at 413-15; [1999] HCA 9. An applicant must demonstrate a “real interest” in a “real question” the answering of which must produce some “real consequences for the parties”: Forster at 437; and see, generally, Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415; 139 ALR 663 at 669-72.

68    Accordingly, the Court will not grant declaratory relief which lacks utility: Ainsworth. As the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [48]:

… one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

“If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

(Emphasis in original.)

69    These principles equally guide the exercise of discretion under s 16(2)(a) of the ADJR Act.

70    This is not to deny that the Court may, in appropriate cases, grant declaratory relief with respect to the legality of future conduct in cases where the Court has jurisdiction. For example, French J (as his Honour then was) held in Australian Gas Light Company v Australian Competition & Consumer Commission (No 2) [2003] FCA 1229; (2003) ATPR 41-962 at [40]:

The making of a declaration as to the lawfulness of future conduct has long been accepted as an exercise of judicial power. The fact that declaratory relief relates to future conduct does not place it outside the bounds of federal jurisdiction. If the claim for the declaration arises out of a contemporary controversy in which a party’s freedom of action is challenged in some way, that controversy can constitute a matter for the purposes of the exercise of federal jurisdiction.

(Approved in Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at [20] (Siopis J) and [83] (Tracey and McKerracher JJ).)

71    However, it is important to distinguish between the question to which French J’s observations were directed regarding, on the one hand, whether the Court has jurisdiction where no discretion is involved, and on the other hand, whether the Court should, in the exercise of discretion, grant the declaratory relief sought: Weimann at [83] (Tracey and McKerracher JJ).

72    Secondly, while the rights conferred on a person to apply for relief under the ADJR Act are, by s 10(1) of the ADJR Act, stated to be in addition to any other rights that the person has to seek review, s 10(2)(b)(ii) provides that the Court may in its discretion refuse an application for review under the Act relevantly on the ground:

that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

73    Thirdly, as is the case with respect to the discretion to make orders under s 16(2)(b) of the ADJR Act directing a party (relevantly) to refrain from doing any act or thing, of which the court considers necessary to do justice, the grant of constitutional writs, including prohibition, is also a matter of discretion. As Gaudron and Gummow JJ held in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [53], even where officers of the Commonwealth have acted in excess of jurisdiction, the question remains as to “whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances” (emphasis added). Their Honours further elaborated upon the discretion at [56] as follows:

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd. Their Honours said:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”

74    Equivalent considerations also guide the exercise of discretion under s 16(2)(b) of the ADJR Act: see e.g. Lek Kim Sroun v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 411; (1993) 43 FCR 100 at 136 (Wilcox J) (whether relief would be futile); and Swan Portland Cement Ltd v Minister for Science, Customs and Small Business [1989] FCA 461; (1989) 88 ALR 196 at 209 (Wilcox J) (whether the matters raised are academic).

75    Finally, as acknowledged by both parties, the Court has no jurisdiction to embark on merits review whether on review under the ADJR Act or s 39B of the Judiciary Act. The function of the courts on judicial review is to determine only the legality of executive action according to law. As, for example, Brennan J explained in Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70:

…it would mock the will of Parliament to deny that the functions which it has defined may be exceeded without restraint by the courts. Judicial review is neither more nor less than the enforcement of the rule of law over executive action.

(See also eg Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 (Brennan J).)

5.2    The application for prohibition to prohibit the Commissioner from continuing to investigate Issue 2

76    As the Commissioner submits, the issue of a writ of prohibition “prohibiting the [Commission] from continuing to investigate Issue 2” would be pointless and therefore should be refused (T44.29-34). First, both parties correctly accept that the investigation with respect to Issue 2 has already concluded and that that occurred when the s 20 Notice was issued. Secondly, there is no application to set aside the s 20 Notice and, in any event, there is nothing to prevent the Commissioner from reissuing a notice under s 20 of the Commission Rules. Thirdly, there is nothing to prevent the Commissioner from issuing a direction under s 19 of the Commission Rules given that the period within which BAC was invited to respond to the Commissioner’s concerns in the present s 20 Notice has expired and BAC has in fact provided its response.

5.3    The application for the second care declaration

77    BAC contends that, while the provision of a security guard could not constitute care for the purposes of item 2.9 of the Care Principles, it is not clear from the s 20 Notice whether the Commission suggests the contrary. It therefore submits that the second care declaration should be made “to give the parties certainty and the [sic] resolve any controversy between them about the security guard” (Applicant’s Outline of Submissions (AS) at [37]).

78    This aspect of the claim is without merit. It is plain from the s 20 Notice to BAC that the delegate is not proposing to find that the provision of the security guard constituted “care” for the purposes of item 2.9 of the Care Principles. If the delegate had a concern in this regard, she was under a statutory obligation to say so in the s 20 Notice and generally as a matter of procedural fairness, and to have allowed BAC the opportunity to comment. In those circumstances, the second care declaration sought is purely hypothetical and advisory, and should be refused.

5.4    The application for the first care declaration and the first responsibility declaration

79    BAC also challenges the delegate’s “preliminary finding” or “conclusion” that deducting the cost of a special nurse from Mr Burke’s RAD amounted to an apparent failure of the responsibility imposed on BAC by s 56-1(a)(i) of the Aged Care Act not to charge more than permitted by div 52C for care and services which it was required to provide (AS at [38]). The delegate is said to have made that “preliminary finding” on the basis that the engagement of the special nurse fell within the kind of “care” which BAC was required to provide under item 2.9 of the Care Principles because the intention was to “prevent or manage a particular condition or behaviour” (AS at [29]). BAC submits that this preliminary finding was “not open to the delegate” on the evidence and is based on a wrong construction of item 2.9 (AS at [30]-[34]). This is because, in BAC’s submission, “the evidence available to the Commission (which is unchallenged) about the special nurse … demonstrates that a special nurse was engaged in response to the threat of violence form [sic] the resident” (AS at [28]), that is, to protect others from Mr Burke’s violent behaviour. On this basis, BAC seeks declarations that: (1) the engagement of the nurse fell outside the kind of “care” which a provider is required to provide under item 2.9 of the Care Principles, being (in its submission) only care for the benefit of the resident; and (2) it did not fail to meet its responsibility to comply with s 56-1(a)(i) of the Aged Care Act.

80    For the following reasons, the application for these declarations (earlier described as the first care declaration and the first responsibility declaration) is incompetent.

81    BAC’s contentions immediately confront the difficulty that no findings have in fact been made by the delegate and no decision has been made as to whether to issue a direction under s 19 of the Commission Rules. In order to address this difficulty, BAC effectively submitted that it could be inferred that the delegate would not depart from her preliminary findings given the following considerations:

(1)    despite being described as a preliminary finding, the statutory scheme does not contemplate any further investigation being undertaken after the Notice was issued under s 20 of the Commission Rules;

(2)    the evidence that the special nurse and security guard were retained to deal with Mr Burke’s behavioural issues was not the subject of any contrary views expressed by the Commissioner;

(3)    while the Commission Rules provide for the Commissioner (or the Commissioner’s delegate) to express concerns in a s 20 Notice, they do not make provision for the making of “preliminary findings”;

(4)    the correspondence annexed to the first Dube affidavit suggests that the delegate has no intention of not issuing a direction under s 19; and

(5)    save for the lay statements of evidence and the concession as to 20% of the nurse’s time being for Mr Burke’s benefit, all of BAC’s material was already before the delegate when the Notice was issued and had clearly failed to persuade her of the force of BAC’s case.

82    In my opinion, that evidence, whether considered separately or cumulatively, falls well short of providing a basis on which the inference for which BAC contends can be drawn. Ultimately the effect of BAC’s submissions is to ask the Court to embark upon the impermissible task of merits review.

83    First, it may be accepted that the material provided by BAC to the Commission prior to the s 20 Notice had failed to persuade the delegate. The issue of the Notice and preliminary findings foreshadowed in the Notice make that clear. However, that does not establish that the delegate was determined to issue a direction under s 19 irrespective of the material provided by BAC subsequently in response to the invitation extended by the s 20 Notice.

84    Secondly, neither bias nor apprehended bias were raised as grounds of judicial review. There was, in other words, no allegation that the delegate has a mind closed to persuasion; nor was there any allegation of apprehended bias. Given their seriousness, it is well established that any such allegations must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J); at [127]-[128] (Kirby J); at [176] (Hayne J). Notwithstanding the ambiguity in BAC’s oral submission that it was “not necessarily” alleging that the delegate is biased in the sense that she has a closed mind (T20.25-28), in these circumstances BAC cannot be taken to have put the matter in issue.

85    Thirdly, there is, with respect, no merit in the suggestion by BAC that, by making preliminary findings, the delegate acted in an unauthorised manner. The expression “preliminary findings” in the s 20 Notice and accompanying letter was plainly used as a means by which the delegate explained her concerns with respect to Issue 2 for the purposes of s 20 of the Commission Rules after concluding her investigation on that issue. In any event, there is nothing in the legislative scheme preventing the Commissioner or her or his delegate from setting out preliminary findings and inviting comment from BAC as an aspect of affording BAC procedural fairness. In this regard, there is (correctly) no suggestion that s 20 of the Commission Rules was intended to prescribe the content of the Commissioner’s procedural fairness obligations as an exhaustive code, leaving no room for the common law hearing rule otherwise to apply.

86    Fourthly, the evidence falls well short of establishing that the preliminary findings are a fait accompli. To the contrary, the “findings” are described as “preliminary” and were put to BAC via the Notice in accordance with the delegate’s procedural fairness obligations under s 20 of the Commission Rules. Moreover, in line with the obligation on the delegate under s 20(3) of the Commission Rules to take BAC’s response to the s 20 Notice into account, the s 20 Notice:

(1)    invites BAC to respond to the concerns detailed in the Notice;

(2)    invites BAC to describe in detail any actions that have been or will be taken to address the concerns in the Notice; and

(3)    explains that, after considering BAC’s response, the delegate “may” give a s 19(1) direction or decide to end the resolution process under s 17(1)(b) of the Commission Rules.

87    The covering letter from the delegate that accompanied the s 20 Notice also invited BAC to respond and explained that:

I will carefully consider any response given by you before determining whether to give you Directions. If I am satisfied that you are not meeting your responsibilities under the Aged Care Act 1997 (the Aged Care Act) or the Aged Care Principles, I may direct you to take specific actions (Directions) in order to meet those responsibilities.

If I am satisfied that your response demonstrates that you have taken action to address the concerns and meet your responsibilities under the Aged Care Act and Aged Care Principles, I may decide not to give Directions and end the resolution process for Issue 2.

88    The new material provided to the delegate by BAC was also potentially significant to the decision yet to be made by the delegate, as was the concession as to 20% of the care afforded by the special nurse. For example, even if the delegate accepted that some of the services rendered by the special nurse did not constitute “care” for the purposes of item 2.9 of the Care Principles, the delegate might not accept BAC’s evidence that only 20% of those services constituted “care” in the relevant sense. The delegate might for example find that the appropriate percentage is greater. Thus, as Ms Slack, counsel for the Commissioner, submitted:

Maybe they consider it’s 25 per cent. Maybe they consider it’s 35 per cent. So the direction might be, “You should refund an additional five per cent,” or an additional 15 per cent. That may be a conclusion that Ms Burke and her father are not happy with, and then that would re-enliven or give her the ability to seek review in respect of that finding.

So it’s not this binary option of either the direction in the terms that Byron Aged Care want is made – or do not want is made – or it is. There are other options that are thrown up by the very evidence that Byron Aged Care relies on in these proceedings.

(T47.19-29)

89    In the fifth place, in support of the inference which it asks the Court to draw, BAC relies upon correspondence from the Commission’s solicitors dated 28 May 2021 and 17 June 2021 at Annexures BD-1 and BD-3 to the first Dube affidavit. While this correspondence was stated to be “without prejudice”, as earlier stated the parties jointly waived the privilege.

90    In the correspondence, the Commissioner’s solicitors offered to issue a further notice under s 20 which would include “details of directions that may be made” under s 19 of the Commission Rules and, “after considering any response from your client, the delegate of the Commissioner would proceed to make a decision as to whether or not to give Directions to your client under section 19 of the Commission Rules” (emphasis added). In return, the Commissioner sought that BAC discontinue the present proceedings. Contrary to the implication which BAC asks the Court to draw, it cannot be inferred from the Commissioner’s offer to issue a further s 20 notice, in circumstances where BAC had already responded to the initial s 20 Notice, that a decision must already have been made by the delegate to give directions under s 19. Rather, the Commissioner’s offer is explained by the context in which it was made, namely: an attempt by the Commissioner to remedy the complaint then made by BAC of a breach of procedural fairness by reason of the delegate having allegedly failed to give notice of the specified action which she proposed to direct BAC to take (a complaint subsequently abandoned by BAC in its amended originating application as ultimately filed). The suggestion that the “without prejudice” correspondence from the Commissioner establishes that the delegate intends to issue a s 19 direction irrespective of BAC’s response therefore not only ignores the context in which the offer was made, but is contradicted by the fact that that correspondence expressly acknowledged that the delegate would make a decision as to whether or not to give s 19 directions “after considering any response from [BAC]”.

91    It follows for all of these reasons that BAC has not established on the balance of probabilities that there is no realistic possibility that the delegate might decide against issuing a direction under s 19 of the Commission Rules.

92    In addition, BAC’s submissions assume among other things that: (1) its evidence as to BAC’s subjective purpose in engaging the nurse for 80% of her services is “uncontentious” in the sense that it will be wholly accepted by the delegate; and (2) contrary to the delegate’s preliminary finding, it inevitably follows as a matter of law that the delegate would be satisfied that the provision of those services cannot in whole or in part be characterised as “care” for the purposes of item 2.9. Yet these are inevitably questions of fact and degree which lie exclusively within the province of the Commission to determine under the Commission Rules. Indeed, the late concession by BAC that 20% of the special nurse’s time was properly characterised as “care” demonstrates the fallacy in the “bright line” distinction which BAC seeks to draw.

93    In this regard, even on BAC’s construction of “care” for the purposes of item 2.9, taking steps to manage those aspects of a behavioural disorder which lead the person to act aggressively and violently towards others may, depending upon the circumstances, reasonably be regarded as falling within the concept of “care” for the purposes of the item. By way of illustration, the submissions from BAC to the delegate dated 16 March 2021 state that “[t]he role of the ‘special’ engaged by BAC was to supervise Mr Burke and to distract and redirect him when the possibility of his injuring another person arose” (first Kelly affidavit, Annexure IK-21, p 196). More specifically, in her statement provided to the delegate by BAC, the nurse supervising the specials attending to Mr Burke explained that, even though use of the specials before the security guard was engaged had not been successful in managing his behavioural issues, their role was to keep Mr Burke distracted by using “diversional strategies such as playing soccer, turning on the tv, focussing him on favoured activities (e.g. washing up), providing finger food, music/headphones” (first Kelly affidavit, Annexure IK-21, p 202). She also explained that:

The specials attended solely on Mr Burke. They undertook his activities of daily living. I would describe it as companion care where the object was for the special to keep engaging Mr Burke to distract him from undertaking inappropriate behaviour.

(Id at p 203.)

94    Ultimately this analysis reveals that BAC’s application for the first care declaration and the first responsibility declaration ask the Court impermissibly to embark upon the fact finding exercise entrusted to the Commissioner and seek advice from the Court as to the legality of any decision by the delegate to issue a s 19 direction if she were to make the findings foreshadowed in the s 20 Notice. It follows that BAC’s submission that its application does not invite a review of the merits but merely seeks the answer to legal questions on the basis of the material before the (administrative) decision-maker does not, with respect, withstand analysis (AS at [22]).

95    In this regard, the decision in Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA 177; (2018) 261 FCR 120 (Mortimer J) on which BAC relied in support of its submission that the declaratory relief sought was not hypothetical and should be granted, is distinguishable. In contrast to the present case, that case did not arise from a complaint made to the Commission under the Commission Rules. Rather, Regis Aged Care (Regis) sought declaratory relief to put beyond doubt its capacity to lawfully impose a charge on certain individuals receiving care in aged care facilities operated by Regis in light of the real and uncontested prospect of regulatory action against Regis in relation to the imposition of the charge and steps already taken by the respondent in that regard: Regis at [3]. Furthermore, and again in contrast to the present case, Regis proceeded on agreed facts which were admitted in evidence pursuant to s 191 of the Evidence Act 1995 (Cth) and there was no suggestion by the Secretary of the Department of Health that the relief sought was hypothetical: Regis at [3] and [6].

96    Finally, the first care declaration and the first responsibility declaration assume that if the Court determined that the special nurse did not provide “care” to Mr Burke for the purposes of item 2.9 of the Care Principles, that answer would resolve the dispute and exonerate BAC of any failure to meet its responsibilities under s 56-1(a)(i) of the Aged Care Act. However, as the Commissioner submitted, that assumption is incorrect. It would leave unanswered the question of whether the special nurse provided a “service” to Mr Burke within the meaning of item 2.9 of the Care Principles which, depending upon the views formed by the delegate, potentially provides an alternative basis on which a s 20 notice could issue to BAC and a s 19 direction be made. In those circumstances, there is no certainty that the declarations sought would finally settle the dispute: see e.g. Bass at [48] (quoted above at [68]). This is a further reason as to why this declaratory relief would have been refused in any event.

5.5    The application for the second responsibility declaration

97    BAC also challenges the “delegate’s preliminary finding” in which the delegate expressed concern that “there was an apparent failure of [BAC’s] responsibility under s 56-1(a)(iii)” of the Aged Care Act arising from the allegation by Ms Burke that she did not consent to the deductions from the RAD for the special nurse and the security guard. Specifically, BAC contends that:

That preliminary finding fails to engage in any way with the position consistently advanced by [BAC] that the agreement provided the foundation for it to deduct the amounts from the resident’s RAD.

98    In this regard, BAC submits that the amounts could be deducted under cl B17 of the Agreement due to Mr Burke’s breaches of the Agreement and under cl B13 as a result of Mr Burke’s behaviour, which created the need for the special nurse and security guard. BAC therefore submits that:

As with the findings about the special nurse, the delegate has either failed to make relevant finding [sic] of fact or has ignored the relevant material, both of which amount to an error of law. Had such an error not been made, the result may well be different, because it would mean that [BAC] was entitled to make the deductions pursuant to a written agreement and, as is the case, has met its responsibility under s 56-1(a)(iii) of the Aged Care Act.

(AS at [50].)

99    For these reasons, BAC contends that a declaration should be made that BAC has met its responsibility under s 56-1(a)(iii) of the Aged Care Act, being the second responsibility declaration sought by BAC.

100    No proper basis for the grant of the second responsibility declaration has been established. First, for the reasons earlier explained, no findings have in fact been made by the delegate. Having concluded her investigation, the delegate has communicated only her concerns to BAC in the s 20 Notice, to which BAC has responded, including by submitting evidence not previously before the delegate. The obligation is now upon the delegate to review BAC’s response and make a decision on whether to issue a direction. Contrary to BAC’s submissions, it has failed to establish that the delegate has already decided to issue a direction under s 19.

101    Secondly, there are no agreed facts on the basis of which the questions raised by the application for the second responsibility declaration could be answered by the Court. Furthermore, while the delegate’s decision on whether there has been a failure to comply with s 56-1(a)(iii) will necessarily involve legal, as well as factual, issues, that does not enable the Court to embark upon a determination of the merits of Ms Burke’s complaint, thereby usurping the function vested in the Commissioner. Administrative decision-makers reach opinions on questions of law every day in the course of exercising statutory powers to make decisions.

5.6    Declaratory relief should be refused in the exercise of discretion under s 10(2)(b)(ii) of the ADJR Act in any event

102    Finally, even if BAC had established grounds for the making of any of the declarations, I would have refused to make the declarations in the exercise of discretion under s 10(2)(b)(ii) of the ADJR Act: Edelsten v Minister of Health [1994] FCA 82; (1994) 58 FCR 419 at 421 (Northrop J).

103    It will be recalled that s 10(2)(b)(ii) confers a discretion on the Court relevantly to refuse to grant an application in respect of conduct engaged in for the purposes of making a decision, on the basis that “adequate provision” is made by any law entitling the applicant to seek review of that conduct by (among others) an authority or person. “Adequate provision” is to be read in this context “as adequate in the sense of suitable or sufficient provision for review”: Edelsten at 424 (applied e.g. in McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 at [51] (Branson J)).

104    The discretion conferred by s 10(2)(b)(ii) is a wide one which is “not to be fettered by judge made rules albeit its exercise in particular classes of case may be informed by common approaches and considerations” and requires a consideration of all relevant matters: Duncan v Foyle [2004] FCA 723; (2004) 138 FCR 510 at [26] and [27] (French J (as his Honour then was)). As the Full Court held in Cremona v Administrative Appeals Tribunal [2015] FCAFC 72; (2015) 230 FCR 1 at [22(c)] (after approving at [47], the observations of French J in Duncan):

… the discretion which is conferred upon the Court in s 10(2)(b)(ii) of the ADJR Act is, on its face, unconfined save for the requirement that there be “adequate provision” for an alternative review. In particular, the Court’s discretion to refuse to grant an application for review because of the existence of an adequate alternative review mechanism is not qualified by any reference to the need for there to be “special circumstances” or other like words which would operate to confine the discretion.

105    The Full Court further held at [52] that:

Properly construed, if it is satisfied another law makes “adequate provision” for review, s 10(2)(b)(ii) requires the Court to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding. That exercise is not to be confined by simply asking, as the FCCA did here, whether there are “special circumstances”. …

106    A statutory entitlement to full merits review of a primary decision has been held to constitute “adequate provision” for the purposes of the discretion under s 10(2)(b)(ii) in a number of different contexts: see e.g. Edelsten at 424; Bragg v Secretary, Department of Employment, Education and Training [1995] FCA 372; (1995) 59 FCR 31 at 34 (Davies J); McGowan at [55] (Branson J).

107    In the present case, ss 98 and 99 of the Commission Rules create an internal merits review process which was intended to be inexpensive and quick, and to enable a full review of the merits (see above at [61]). Furthermore, the Commission Rules require that the review be undertaken by a person who was not involved in the original decision and that the review be undertaken within a short, specified timeframe. Moreover, if the Commissioner or delegate made an error of law on the review, an application for judicial review could be made under the ADJR Act and, if the error was jurisdictional, s 39B of the Judiciary Act. Granting declaratory relief that pre-empts any decision by the delegate on Issue 2 would therefore not only mean that an issue, which the Commissioner had decided under s 15 of the Commission Rules should be resolved by the resolution process, will not in fact be resolved in accordance with that process. The grant of such relief would also have the consequence of usurping the merits review process under ss 98 and 99 of the Commission Rules, which would otherwise be available not only to BAC but also to the complainant, Ms Burke, who is not even a party to this proceeding, as well as the Commissioner on her or his own motion. Thus, for example, as the Commissioner submitted:

… if the Commissioner decided not to issue a direction under s 19 of the [Commission] Rules, the delegate would naturally decide to end the resolution process under s 17(1)(i) of the Rules. Ms Burke, as the complainant, would be entitled to seek review of that decision. During that review process, Ms Burke would be entitled to make submissions and put on evidence to establish why a direction under s 19 should be made (including on the basis that the special nurse and security guard were providing ‘care’ and that the percentage of care being provided by the special nurse was more than 20%). If the Court were to make the declarations sought, it would undermine the statutory regime by effectively prohibiting Ms Burke from exercising the right of review provided to her by the Rules.

108    These considerations lend particular weight to the Commissioner’s contention that the Court should exercise the discretion in s 10(2)(b)(ii) of the ADJR Act to preserve the integrity of the resolution process established by the Commission Rules, and would have sufficed, in my view, to deny the declaratory relief sought by BAC even if the grounds on which that relief was sought had been established.

6.    CONCLUSION

109    For these reasons, the application is incompetent and should be dismissed with costs.

Associate:

Dated:    9 September 2022