Federal Court of Australia

Aged Care Quality and Safety Commissioner v Stonebridge Global Consulting Pty Ltd [2023] FCA 759

ORDERS

THE COURT ORDERS THAT:

1.    Within 28 days of the date of this order, the respondent must pay:

(a)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to Berylee Akhurst, the sum of $11,981.70;

(b)    to Local Guardians Pty Ltd (ACN 158 357 674), with respect to Barbara Holden, the sum of $1,671.39;

(c)    to Feros Care Limited (ACN 104 452 271), with respect to Brenda Shearer, the sum of $3,833.88;

(d)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Clara Mera, the sum of $2,063.44;

(e)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to David Snowden, the sum of $10,081.03;

(f)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to David Archie Mockett, the sum of $1,683.12;

(g)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Eileen Joyce Francis, the sum of $3,659.52;

(h)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Fay O’Rourke, the sum of $1,990.42;

(i)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Jean Siddall, the sum of $3,653.94;

(j)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Joan Trevallion, the sum of $208.36;

(k)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Judith Day, the sum of $22,620.20;

(l)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Kay Aldridge, the sum of $6,287.57;

(m)    to Senior Care Group Pty Ltd (ACN 605 592 541), with respect to Kerry Carle, the sum of $26,968.43;

(n)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Mariano Mera, the sum of $5,413.20;

(o)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Patrick Tackney, the sum of $2,541.03;

(p)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Pearl Daver, the sum of $5,488.19;

(q)    to Seniors Community Care Pty Ltd (ACN 095 035 297), with respect to Priscilla Pip Minikin, the sum of $2,668.30;

(r)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Robert Whyler, the sum of $1,214.74;

(s)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Roland Relph, the sum of $1,011.49;

(t)    to KinCare Health Services Pty Ltd (ACN 095 961 005), with respect to Rosalia Arce, the sum of $2,413.91;

(u)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Sandra Green, the sum of $559.18;

(v)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Stephanie Vadnal, the sum of $5,359.14;

(w)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Steven Rose, the sum of $9,931.09;

(x)    to Manning Support Services Incorporated (Registration number Y0481727), with respect to Wallace Job, the sum of $5,720.35;

(y)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Yan Lan Dong, the sum of $14,127.32;

(z)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Alice Khoury, the sum of $2,545.03;

(aa)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Khaoula Chayna, the sum of $3,562.58;

(bb)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Mary Abdo, the sum of $3,701.04;

(cc)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Miled Chayna, the sum of $2,262.86;

(dd)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Nhon Lam, the sum of $14,657.15;

(ee)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Margaret Harris, the sum of $105.46;

(ff)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to Alan Hull, the sum of $9,153.26.

2.    The respondent pay the applicant’s costs of these proceedings as agreed or taxed.

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

REASONS FOR JUDGMENT

THOMAS J:

NATURE OF THE APPLICATION

1    The applicant seeks that injunctions be ordered pursuant to s 121 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (the Regulatory Powers Act).

BACKGROUND FACTS GIVING RISE TO CLAIM

2    The following is extracted from the applicant’s Concise Statement, which has been admitted by the respondent.

3    The respondent was an approved provider, within the meaning of s 7 of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the ACQSC Act), which provided home care, within the meaning of s 45.3 of the Aged Care Act 1997 (Cth) (the Aged Care Act), to aged care recipients. The respondent received Commonwealth-funded subsidies to provide home care to care recipients.

4    Commencing on 29 April 2021, relevantly, 32 care recipients were transferred from the respondent’s care to alternative approved providers, as set out in Table 1, as follows:

Table 1

5    By at least the dates listed in Column 3 of Table 1, the respondent ceased providing care to each care recipient listed in Column 1 of Table 1.

6    Pursuant to s 45.1 of the Aged Care Act, any “unspent home care amount” (that is, essentially, money that the respondent had received (and held) for the purposes of caring for each care recipient that was unspent at the time the care recipient left the respondent’s care – see s 21C of the User Rights Principles 2014 (Cth) (User Rights Principles)) was to be dealt with by the respondent in accordance with the User Rights Principles. Section 21D defines the “Commonwealth portion”, the “care recipient portion” and the “transfer portion” of that “unspent home care amount”. The “transfer portion” is the total of the “Commonwealth portion” and the “care recipient portion” of the care recipient’s home care amount (ss 4 and 21D of the User Rights Principles). The “transfer portion” calculated with respect to each care recipient’s unspent home care amount is set out in Table 2 below.

7    The following outstanding payments were due after the respondent ceased providing care for the following recipients:

Table 2

8    Pursuant to s 21F(1) of the User Rights Principles, the “transfer portion” of a care recipient’s unspent home care amount is payable in accordance with s 21F if the approved provider ceases to provide home care to the care recipient on a day and the portion is more than nil. Section 21F(2), item 2 of the User Rights Principles directs who the “transfer portion” is to be paid to within 70 days of when the approved provider ceases to provide home care to the care recipient.

9    In respect of each of the care recipients listed in Column 1 of Tables 1 and 2, within 70 day of the dates listed in Column 3 of Table 1, the respondent was to pay the “transfer portion” listed in Column 2 of Table 2 to each relevant new care provider listed in Column 2 of Table 1. The respondent failed to do so.

10    The respondent’s failures in that regard amounted to 32 separate contraventions of s 21F(2), item 2 of the User Rights Principles.

LEGISLATION

Aged Care Act 1997 (Cth)

11    Section 45-1 provides:

45-1    What is this Part about

12    Section 56-2 relevantly provides:

56-2    Responsibilities of approved providers––home care

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

…

(k)    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;

(l)    such other responsibilities as are specified in the Fees and Payments Principles and the User Rights Principles.

User Rights Principles 2014 (Cth)

13    The User Rights Principles were amended during the course of the events relevant to this application.

14    The former s 21F of the User Rights Principles (Compilation 11) required the approved provider to pay the transfer portion to the new provider within 70 days after the recipient has entered into an agreement with a new approved provider as follows:

21F     Responsibility to pay care recipient portion, Commonwealth portion and transfer portion

(1)    A care recipient portion, Commonwealth portion or transfer portion of a care recipient’s unspent home care amount is payable in accordance with this section if:

(a)    the approved provider ceases to provide home care to the care recipient on a day (the cessation day); and

(b)    that portion is more than nil.

Payment of care recipient portion and transfer portion

(2)    The approved provider must pay the care recipient portion and transfer portion in accordance with the following table:

…

(Notes omitted)

15    Section 21F of the amended User Rights Principles (Compilation 12) required the approved provider to pay the care recipient portion to the new approved provider within 70 days after the recipient has entered into an agreement with a new approved provider as follows:

21F     Responsibility to pay care recipient portion and Commonwealth portion of unspent home care amount

(1)    Each of the care recipient portion and the Commonwealth portion of a care recipient’s unspent home care amount in respect of the payment period in which the approved provider ceased to provide home care to the care recipient is payable in accordance with this section if the portion is more than nil.

Payment of care recipient portion

(2)    The ceasing home care provider must pay the care recipient portion in accordance with the following table:

…

Aged Care Quality and Safety Commission Act 2018 (Cth)

16    Outstanding payments are dealt with pursuant to the ACQSC Act.

17    Section 74ED of that Act provides:

74ED    Injunctions

Enforceable provisions

(1)    The following provisions are enforceable under Part 7 of the Regulatory Powers Act:

(a)    subsections 74AC(1) and 74AD(1) of this Act;

(b)    a provision of Chapter 4 of the Aged Care Act.

Note:    Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

(2)    For the purposes of Part 7 of the Regulatory Powers Act, the Commissioner is an authorised person in relation to the provisions mentioned in subsection (1).

Relevant court

(3)    For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

(a)    the Federal Court;

(b)    the Federal Circuit and Family Court of Australia (Division 2);

(c)    a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Consent injunctions

(4)    A relevant court may grant an injunction under Part 7 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) by consent of all the parties to proceedings brought under that Part, whether or not the court is satisfied that section 121 of that Act applies.

…

18    Section 56-2 of the Aged Care Act is a provision of Chapter 4 of that Act and is therefore enforceable under Part 7 of the Regulatory Powers Act (see s 74ED(1)(b) of the ACQSC Act).

Regulatory Powers (Standard Provisions) Act 2014 (Cth)

19    Section 121 of the Regulatory Powers Act provides:

121    Grant of injunctions

Restraining injunctions

…

Performance injunctions

(2)    If:

(a)    a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

(b)    the refusal or failure was, is or would be a contravention of a provision enforceable under this Part;

the court may, on application by an authorised person, grant an injunction requiring the person to do that thing.

20    The applicant is an “authorised person” for the purpose of s 121(2) of the Regulatory Powers Act (see also s 74ED(2) of the ACQSC Act). Section 119 defines “authorised person” as follows:

(1)    A person is an authorised person for the purposes of applying under this Part for an injunction in relation to a provision enforceable under this Part, if an Act provides that the person is an authorised person in relation to that provision for the purposes of this Part.

(2)    A person who is an authorised person for the purpose of exercising powers mentioned in subsection (1) is also an authorised person for the purposes of:

(a)    exercising other powers under this Part; or

(b)    performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

…

DISCUSSION

21    The respondent indicated to the Court, the evening prior to the hearing, that it admitted the facts and allegations raised by the applicant:

The [r]espondent does not raise any dispute as to the any of the liability of amounts owed by the [r]espondent to the [a]pplicant and/or any of the relevant respective recipients to whom the amounts are due, but otherwise does admit to the facts and allegations raised by the applicant.

22    The Court is empowered to grant an injunction as to payment of any outstanding payment if the Court is satisfied that the requirements outlined in s 121 of the Regulatory Powers Act have been met (that is, (a) the respondent has failed to pay the outstanding payments; and (b) the failure to pay the outstanding payments is a contravention of s 56-2 of the Aged Care Act).

23    In this case, the Court is satisfied that, for each of the recipients in the table in [7] above, the respondent was obliged, pursuant to s 21F of the User Rights Principles, to make payments of the sum specified within 70 days of the date of cessation of home care and had failed to do so. Such a failure was a contravention of s 56-2 of the Aged Care Act. Thus:

(a)    the respondent failed to do a thing (payment of the required amount); and

(b)    the failure was in contravention of a provision enforceable under the Aged Care Act;

and so the requirements outlined in s 121(2) of the Regulatory Powers Act have been satisfied.

24    In those circumstances, the Court concludes that the requirements which underpin the grant of the injunctions are made out. The Court therefore makes the following orders:

1.     Within 28 days of the date of this order, the respondent must pay:

(a)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to Berylee Akhurst, the sum of $11,981.70;

(b)    to Local Guardians Pty Ltd (ACN 158 357 674), with respect to Barbara Holden, the sum of $1,671.39;

(c)    to Feros Care Limited (ACN 104 452 271), with respect to Brenda Shearer, the sum of $3,833.88;

(d)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Clara Mera, the sum of $2,063.44;

(e)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to David Snowden, the sum of $10,081.03;

(f)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to David Archie Mockett, the sum of $1,683.12;

(g)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Eileen Joyce Francis, the sum of $3,659.52;

(h)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Fay O’Rourke, the sum of $1,990.42;

(i)     to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Jean Siddall, the sum of $3,653.94;

(j)     to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Joan Trevallion, the sum of $208.36;

(k)     to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Judith Day, the sum of $22,620.20;

(l)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Kay Aldridge, the sum of $6,287.57;

(m)    to Senior Care Group Pty Ltd (ACN 605 592 541), with respect to Kerry Carle, the sum of $26,968.43;

(n)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Mariano Mera, the sum of $5,413.20;

(o)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Patrick Tackney, the sum of $2,541.03;

(p)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Pearl Daver, the sum of $5,488.19;

(q)    to Seniors Community Care Pty Ltd (ACN 095 035 297), with respect to Priscilla Pip Minikin, the sum of $2,668.30;

(r)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Robert Whyler, the sum of $1,214.74;

(s)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Roland Relph, the sum of $1,011.49;

(t)    to KinCare Health Services Pty Ltd (ACN 095 961 005), with respect to Rosalia Arce, the sum of $2,413.91;

(u)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Sandra Green, the sum of $559.18;

(v)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Stephanie Vadnal, the sum of $5,359.14;

(w)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Steven Rose, the sum of $9,931.09;

(x)    to Manning Support Services Incorporated (Registration number Y0481727), with respect to Wallace Job, the sum of $5,720.35;

(y)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Yan Lan Dong, the sum of $14,127.32;

(z)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Alice Khoury, the sum of $2,545.03;

(aa)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Khaoula Chayna, the sum of $3,562.58;

(bb)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Mary Abdo, the sum of $3,701.04;

(cc)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Miled Chayna, the sum of $2,262.86;

(dd)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Nhon Lam, the sum of $14,657.15;

(ee)    to Alpha Omega Aged Care Pty Ltd (ACN 629 794 252), with respect to Margaret Harris, the sum of $105.46;

(ff)    to Argent Nominees Pty Ltd (ACN 118 885 528), with respect to Alan Hull, the sum of $9,153.26.

25    The parties have referred to s 74ED(4) of the ACQSC Act. It provides that the Court may grant an injunction if it is by the consent of all the parties to the proceeding whether or not the Court is satisfied that s 121 of the Regulatory Powers Act applies. Pursuant to that section, the parties provided consent orders the evening before the date listed for hearing.

26    In circumstances where the statute uses the term “may”, it remains necessary for the Court to decide to exercise the power. In this case, the applicant has set out the necessary elements of the claim in the Concise Statement with the facts verified by affidavits and the respondent does not challenge, and admits, all of the allegations made by the applicant. For the reasons outlined in [23], the Court is satisfied that it is appropriate to grant the injunctions.

27    The orders follow the terms of the consent order provided to the Court the evening prior to the hearing date.

COSTS

28    The parties have agreed that the respondent is to pay the costs of the applicant as agreed or taxed. In the circumstances where the applicant has been wholly successful, the Court will make that order.

Associate:    

Dated:    6 July 2023