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Federal Court of Australia - Full Court Decisions |
Last Updated: 12 December 2003
Jadwan Pty Ltd v Secretary, Department of Health & Aged Care
ADMINISTRATIVE LAW - administrative decision - whether a nullity - decision declared void in previous proceeding - declaration replaced on appeal by order setting aside decision - whether decision set aside from date of making order on appeal - whether error identified by previous Full Court a jurisdictional error - whether Court can now determine error to be a jurisdictional error - whether jurisdictional error necessarily results in nullity
STATUTES - repeal - replacement with new statutory scheme - transitional provisions - status of administrative decision made under earlier statute - whether transitional provisions and provisions of new Act conditioned on events that had occurred or on validity of earlier administrative decision
COURTS AND JUDGES - judgment - effect of earlier judgment - Full Court replaced declaration that administrative decision void with order setting it aside - whether order operated to set aside administrative decision from date of Full Court order - whether open to contend that effect of Full Court judgment was to treat administrative decision as a nullity - whether judgment can be contradicted in later proceeding - whether res judicata or Anshun estoppel
National Health Act 1953 (Cth) ss 39A, 40AA, 44, 45D, 45E, 47(1)
Aged Care Act 1997 (Cth) ss 1-2, 8-1, 10-2, 10-3, 13-1, 14-1, 15-1, 42-1
Aged Care (Consequential Provisions) Act 1997 (Cth) ss 7, 20, 62, 63, 69, 75
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, 8 16
Federal Court of Australia Act 1976 (Cth) s 14(3)
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules O 36
Jadwan Pty Ltd v Minister for Health and Family Services (1998) 51 ALD 245 cited
Minister for Health and Family Services v Jadwan Pty Ltd [1998] FCA 1549; (1998) 89 FCR 478 discussed and applied
Jadwan Pty Ltd v Secretary, Commonwealth Department of Health & Aged Care [2002] FCA 1052 (2002) 71 ALD 520 discussed
Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 referred to
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 applied
Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 referred to
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2002) 195 ALR 24 referred to
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 referred to
Australian Broadcasting Commission Staff Association v Bonner [1984] FCA 220; (1984) 2 FCR 561 referred to
Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 referred to
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 referred to
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 referred to
Clements v Independent Advisory Committee [2003] FCAFC 143 referred to
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 referred to
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 discussed
Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 discussed
O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 referred to
R v Greater Manchester Coroner; Ex parte Tal referred to
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 referred to
Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19 referred to
King v Lintrose Nominees Pty Ltd [2001] VSCA 140; (2001) 4 VR 619 referred to
JADWAN PTY LTD (ACN 006 203 112) v SECRETARY TO THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE (FORMERLY THE COMMONWEALTH DEPARTMENT OF HEALTH AND FAMILY SERVICES) AND MINISTER FOR HEALTH AND AGED CARE (FORMERLY THE MINISTER FOR HEALTH AND FAMILY SERVICES)
V 593 of 2002
GRAY, KENNY AND DOWNES JJ
12 DECEMBER 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
|
1. The appeal be dismissed.
2. The appellant pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
|
JUDGES: |
GRAY, KENNY AND DOWNES JJ |
DATE: |
12 DECEMBER 2003 |
PLACE: |
MELBOURNE |
GRAY AND DOWNES JJ:
1 This appeal is from a judgment of a single judge of the Court, dismissing the appellant's application for declaratory relief. The issues raised concern the transition from one legislative regime, governing the conduct of nursing homes, to another and the effect of a previous Full Court judgment, setting aside an administrative decision to cancel the approval of a nursing home.
The legislative regimes
2 Prior to 1 October 1997, the conduct of private nursing homes was regulated by the National Health Act 1953 (Cth) (`the National Health Act'). Part V established a scheme for the approval of premises to be used for the conduct of nursing homes. Such approval was subject to conditions imposed by the National Health Act, including a limitation on the number of beds that could be provided and a condition that a nursing home comply with standards determined by the Minister for Health and Family Services (now the Minister for Health and Aged Care) (in both cases, `the Minister') pursuant to s 45D (s 40AA(6)(a) and (ck)). Under Pt VA, the proprietor of an approved nursing home was entitled to receive payment of Commonwealth benefit in respect of each approved nursing home patient for each day on which the patient received nursing home care in that nursing home (s 47(1)). There were sanctions applicable in the event of non-compliance with conditions attaching to the approval. One sanction was that the Minister could make a declaration of non-compliance (s 45E(1)). Such a declaration prevented the payment of Commonwealth benefit in respect of persons admitted after the date of the declaration. Alternatively, the Minister could review the approval of a nursing home at any time and, if the Minister considered that a condition applicable to that approved nursing home had not been complied with, the Minister could vary the nature of the approval or revoke or suspend the approval as the Minister considered justified in the circumstances of the case (s 44(1) and (2)). The Minister could give the proprietor of an approved nursing home written notice of his or her intention to vary the nature of the approval or revoke or suspend the approval (s 44(2A)).
3 On 1 October 1997, the Aged Care Act 1997 (Cth) (`the Aged Care Act') came into operation. Instead of approval of premises, the Aged Care Act provides for the approval of persons as providers of aged care (s 8-1). Division 12 establishes a scheme whereby a determination is made for each financial year of the number of places to be made available in each State or Territory. Those places are then distributed among regions. An approved provider is entitled to apply for an allocation of places to provide aged care (s 13-1). The Secretary of the Department of Health and Aged Care (formerly the Secretary of the Department of Health and Family Services) (in both cases, `the Secretary') may allocate places within each region to an approved provider if a subsidy could be paid to the approved provider for care provided in respect of the places (s 14-1). Residential Care Subsidy is payable to an approved provider who provides residential care to an approved care recipient if the residential care service meets its accreditation requirement (s 42-1). The Secretary has the function of determining applications for the allocation of places (s 14-1).
4 Section 10-2 of the Aged Care Act provides relevantly as follows:
`(1) If an approved provider does not provide any aged care during a continuous period of 6 months, the approval lapses on the day after the end of that period. However, any period during which the operation of this subsection is waived under subsection (3) is not to be counted towards the 6 months.
...
(3) The Secretary may waive the operation of subsection (1) for a specified period in relation to the approved provider if:
(a) the approved provider has applied to the Secretary, in writing, for a waiver; and
(b) there is in force an allocation of places to the approved provider that has taken effect under section 15-1; and
(c) the Secretary is satisfied that the approved provider intends, and will have the capacity, to provide aged care by the end of the period of the waiver.
(4) The application for the waiver must be made at least 28 days before the end of the 6 months referred to in subsection (1).'
Section 10-3 provides for revocation of approval on specified grounds.
5 Of particular relevance to the present proceeding is the Aged Care (Consequential Provisions) Act 1997 (Cth) (`the Consequential Provisions Act'). This makes provision for the approval of those who had been operators and proprietors of approved nursing homes under the National Health Act as providers of aged care under the Aged Care Act, subject to certain conditions. It also provides for the allocation of places, equivalent in number to the number of beds set as the limit for an approved nursing home under the National Health Act. By s 1-2 of the Aged Care Act, the commencement day is 1 October 1997. The relevant provisions of the Consequential Provisions Act are as follows:
`7 Approved operators and proprietors(1) A person who was an approved operator (within the meaning
of Part V of the 1953 Act), or the proprietor (within the
meaning of the 1953 Act) of an approved nursing home,
immediately before the commencement day is taken, for the
purposes of the new Act, to be an approved provider if either
of the following applies:
(a) a Commonwealth benefit (within the meaning of Part V
of the 1953 Act) is or was payable to the person in
respect of an approved nursing home patient, within the
meaning of section 4 of the 1953 Act, for nursing home
care received by the patient on the day before the
commencement day;
(b) the person had been granted a certificate under section 39A of the 1953 Act, and the certificate was in force immediately before the commencement day.
(2) If a person is taken to be an approved provider under subsection (1):
(a) the approval is taken, for the purposes of the new Act, to be limited under paragraph 8-1(2)(c) of the new Act:
(i) to residential care provided through aged care services that the person was conducting on the day before the commencement day;
...
20 Approvals of nursing homes
(1) Subject to subsection (5), if an approval of premises as an
approved nursing home under section 40AA of the 1953 Act
was in force immediately before the commencement day, for
the purposes of the new Act:
(a) the Secretary is taken, on that day, to have allocated
under section 14-1 of the new Act, to the proprietor
(within the meaning of the 1953 Act) of the nursing
home, a number of places equal to the number of beds
to which the approval related immediately before that
day; and
...
(c) the allocation is taken to be subject to a further condition under section 14-5 of the new Act that:
(i) the places are allocated in respect of the location at which the premises are situated; and
(ii) any care provided, in respect of the places, must be provided at that location'.
6 Various provisions of the Consequential Provisions Act deem states of fact existing immediately prior to the commencement day to be determinations or agreements in force on the commencement day. See ss 62, 63 and 69. By s 75 of the Consequential Provisions Act, a determination under s 45E(2) of the National Health Act (a determination that, while a declaration that a home does not satisfy the standards determined under s 45D remains in force, Commonwealth benefit is not payable to the proprietor of the nursing home in respect of a patient admitted to the nursing home after the making of the determination) is taken to be a sanction imposed under the Aged Care Act, on the commencement day, on the approved provider conducting the residential care service that corresponds to the nursing home. Such a determination restricts that approved provider's approval as a provider of aged care services to care recipients to whom the approved provider provided care before the making of the determination.
The facts
7 In 1984, the appellant, Jadwan Pty Ltd (`Jadwan') acquired a Victorian-era building in Tasmania, approved as a nursing home under the National Health Act, with a condition limiting the number of beds available for nursing home patients to 51. The premises were known as Derwent Court Nursing Home (`Derwent Court'). On 20 July 1997, a delegate of the Minister notified Jadwan of her intention to revoke the approval of Derwent Court as a nursing home, on the ground of failure to meet the required standards. On 23 July 1997, the Department of Health and Family Services (now the Department of Health and Aged Care) (in both cases, `the Department') began to coordinate the transfer of residents of Derwent Court to other approved nursing homes in Tasmania. Within several days, all of the residents had been moved and Derwent Court has remained empty ever since. On 6 August 1997, the Minister's delegate formally revoked the approval of Derwent Court as a nursing home. Jadwan sought reconsideration by the Minister of the revocation decision. Jadwan was unsuccessful and, on 13 October 1997, the Minister affirmed the revocation of the approval. On 7 November 1997, Jadwan applied to the Administrative Appeals Tribunal for review of that decision. The Court was informed by counsel for the appellant that that application had been withdrawn at a later date.
8 Subsequently, on 21 January 1998, Jadwan filed an application in the Court, seeking review of the revocation decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (`the ADJR Act'). It took the point that a Standards Review Panel, which had advised the Minister's delegate in making the decision, was not properly constituted under the National Health Regulations 1954 (Cth) (`the National Health Regulations'), made under the National Health Act. On 19 June 1998, Heerey J gave judgment for Jadwan. His Honour found in favour of Jadwan on the ground in s 5(1)(b) of the ADJR Act, that procedures required by law to be observed in connection with the making of the decision were not observed. Instead of the required five members for a Standards Review Panel, only three had been appointed. One of them did not have the qualifications required for membership of such a panel. His Honour made orders in the following terms:
`1. The application is allowed.2. Declare that the decision of the respondent on 6 August 1997 to revoke the approval of the Derwent Court Nursing Home is void.
3. The respondent pay the applicant's costs of the application, including reserved costs.'
See Jadwan Pty Ltd v Minister for Health and Family Services (1998) 51 ALD 245.
9 The Minister appealed against the judgment of Heerey J. On appeal, the Minister conceded that there had been a failure on the part of one of the members of the Standards Review Panel to meet the required qualification. The Minister argued that the failure did not fall within s 5(1)(b) of the ADJR Act. The Full Court upheld this argument. The Full Court, in the absence of opposition from the Minister, gave leave to Jadwan to amend its original application to allege instead the ground specified in s 5(1)(e) of the ADJR Act. This ground was that the decision to revoke approval was an improper exercise of the power conferred by the National Health Act, because the Minister's delegate took into account an irrelevant consideration or failed to take into account a relevant consideration. In essence, the argument was that the Minister's delegate treated the report of the Standards Review Panel as if it were a report of a panel properly constituted under the National Health Regulations, or failed to take into account the fact that the document was produced by a panel that was not properly constituted. The Full Court accepted these contentions. In the course of its reasons for judgment, published as Minister for Health and Family Services v Jadwan Pty Ltd [1998] FCA 1549; (1998) 89 FCR 478 at 494 - 495, the Full Court said:
`It follows from what has been said that the Minister's delegate is not required or indeed entitled to adopt the Panel procedure, when making a decision to cancel or suspend an approval of a nursing home under s 44(2) of the National Health Act. However, it may well have been open to the delegate, when considering whether she should cancel Derwent Court's approval, to seek the advice of the three individuals comprising the Panel. Mr Bell [leading counsel for the Minister in that case] contended that the fact that the three individuals had not been properly appointed as members of the Panel did not detract from the proposition that the delegate could take into account their views on the standard of care provided by Derwent Court, when making her decision under s 44(2) of the National Health Act.This argument would have some force as a factual matter, if the decision-maker had recognised that the Panel had not been validly appointed. Had she appreciated the correct position, she might nonetheless have decided to take into account the views expressed and give them such weight as was appropriate. But she would have done so simply on the basis that three individuals, with specific qualifications and experience, had formed those views. She would not have given weight to their findings because they were clothed with the authority of the National Health Act and the National Health Regulations.'
10 At 496, the Full Court said:
`It is, perhaps, arguable as to whether the case should be characterised as one whereby the delegate took into account an irrelevant consideration (treating the findings of the Panel as having been made by a properly constituted Panel) or as one in which the delegate failed to take into account a relevant consideration (that the findings upon which she relied so heavily were not made by a properly constituted Panel, but by three individuals having no authority under the National Health Act or National Health Regulations). We think the former view is preferable, since the delegate was not entitled, as a matter of construction of the Act, to treat the findings of the Panel in the way in which she did. In any event, subject to the issue of materiality considered below, the revocation decision constituted an improper exercise of the power conferred by s 44 of the National Health Act. For the reasons that have been given, the flaw in the revocation decision was not cured by the reconsideration decision.Finally, Mr Bell argued that, even if the delegate had taken into account irrelevant considerations, it was not conduct that gave rise to an entitlement to judicial review. In our view, this is not a case in which the factor taken into account was so insignificant that it could not have materially affected the decision ... The findings of the second Panel were plainly given weight, at least in part, because the delegate thought it had been validly established and had acted pursuant to a valid direction. It is not possible to say what conclusion the delegate might have reached, or even if the three individuals would have been appointed to advise her, had the true position been appreciated prior to the revocation decision. Similarly, it is not possible to say what effect an appreciation of the true position would have had on the reconsideration decision.'
11 With respect to the question of the proper orders to make, the Full Court said at 497:
`The trial judge made a declaration that the revocation decision of 6 August 1997 was void. Having regard to the ground on which the respondent has now succeeded, we think that the appropriate orders are as follows:1. Appeal allowed in part.
2. Set aside order 2 of the orders made by the trial judge on 19 June
1998.
3. In substitution for order 2, set aside the decision of the Minister, made
on 6 August 1997, to revoke the approval of the Derwent Court
Nursing Home.'
The Full Court made those orders, and also made an order that the appellant should pay half the respondent's costs of the appeal.
12 In the present case, counsel for the appellant informed us that, although counsel who appeared for Jadwan on the appeal to the earlier Full Court had previously advised Jadwan on the importance of giving attention to the date of operation of any order the Court might make, no submission was made to the Full Court about that issue.
13 Thereafter, Jadwan attempted to commence negotiations with the Department about the reopening of Derwent Court as a nursing home. It made representations that it was an approved provider, entitled to an allocation of 51 places, by operation of the Consequential Provisions Act. In a letter dated 10 June 1999, the legal adviser to the first respondent asserted that Jadwan did not fall within s 7(1) of the Consequential Provisions Act because the case did not satisfy the conditions in that subsection.
14 On 9 March 2001, Jadwan filed a further application in the Court, seeking relief against the first respondent. As a result of an amendment to the application, for which the learned primary judge granted leave, the relief sought in the application was as follows:
`1. A declaration that, by operation of section 7(1) of the Aged Care(Consequential Provisions) Act 1997, the applicant is taken to be an
approved provider of aged care, within the meaning of the Aged Care
Act 1997.
2. Alternatively, a declaration that, as a consequence of the decision of
the Full Federal Court in Minister for Health and Family Services v
Jadwan Pty Ltd (1998) 98 FCR 478, the applicant is deemed to be an
approved provider of aged care, within the meaning of the Aged Care
Act 1997.
3. A declaration that, by operation of section 20(1) of the Aged Care
(Consequential Provisions) Act 1997, the first respondent is taken to
have allocated to the applicant 51 places for the provision of
residential care under section 14-1 of the Aged Care Act 1997.
4. Alternatively, a declaration that, as a consequence of the decision of
the Full Federal Court in Minister for Health and Family Services v
Jadwan Pty Ltd (1998) 98 FCR 478, the first respondent is deemed to
have allocated to the applicant 51 places for the provision of
residential care under section 14-1 of the Aged Care Act 1997.
5. An order that the first respondent allocate to the applicant 51 places
for the provision of residential care services.
5A. An order that the second respondent's actions in removing, or arranging or coordinating the removal of, patients from Derwent Court Nursing Home, were unlawful.
5B. An order that there be liberty to apply in respect of the implementation
or the carrying out of any declaration or order that the Court may
make.
6. Such further or other orders as the Court considers to give effect to
the declarations and orders sought by the applicant.'
15 The learned primary judge added the Minister as a respondent to the proceeding. On 23 August 2002, his Honour dismissed the application with costs. See Jadwan Pty Ltd v Secretary, Commonwealth Department of Health & Aged Care [2002] FCA 1052 (2002) 71 ALD 520. It is from that judgment that Jadwan now appeals.
16 In the course of the hearing of this appeal, the question arose whether it was still open to Jadwan to return to the Full Court that dealt with the earlier appeal, and to invite that Full Court to amend its orders. Any right to do that would depend, at least in part, on the question whether the orders had been perfected by entry pursuant to O 36 of the Federal Court Rules. While the appeal was still part heard, Jadwan filed in the Tasmania District Registry of the Court a notice of motion, whereby it sought to move the earlier Full Court to amend the orders. In the event, because one of the judges of the earlier Full Court had already retired, and another was about to retire, it was impossible to reconvene the Full Court, even on the basis that it consist of two of the three judges, pursuant to s 14(3) of the Federal Court of Australia Act 1976 (Cth). The proposed motion did not proceed.
The primary judge's reasons
17 The learned primary judge dealt first with the issue whether the order of the Full Court on 4 December 1998 had the effect of reinstating the approved status of Derwent Court as at 1 October 1997, when the Aged Care Act came into operation. His Honour rejected Jadwan's submission that the result of the setting aside of the Minister's decision was that that decision must be treated as a nullity. Section 16 of the ADJR Act gives the Court a discretion to make orders of various kinds, including an order quashing or setting aside a decision, or a part of a decision, with effect from the date of the order or from such earlier or later date as the Court specifies. His Honour noted that the Full Court had set aside Heerey J's order declaring that the Minister's decision was void, and had substituted an order setting aside that decision. The Full Court did not stipulate any date from which the setting aside was to operate. Relying on Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253 at 256 per Sheppard and Wilcox JJ, his Honour held that, in such a case, the setting aside operated from the date of the Full Court's order. His Honour took the view that the Full Court deliberately changed the formulation of the order made by Heerey J. It did so following discussion about the fact that Jadwan had succeeded on the appeal on grounds which were not raised before Heerey J and which were ventilated on the appeal only by reason of an amendment, allowed by the Full Court, to the original application made to Heerey J. The primary judge said at [37]:
`It seems likely that the Full Court regarded it as just that the revocation decision order remain in effect until the date of the decision on the appeal because Jadwan failed to raise the point on which it succeeded before the Full Court in the proceedings before the primary judge.'
Accordingly, his Honour held that approval of Derwent Court as a nursing home was not in effect immediately prior to the coming into operation of the Aged Care Act. Section 7 of the Consequential Provisions Act did not apply to transfer its approved status, or to allocate places to Jadwan under the Aged Care Act in place of the approved number of beds under the National Health Act.
18 Although this conclusion was sufficient to dispose of the proceeding, the learned primary judge dealt with other issues that had been argued. His Honour expressed the view that s 7(1)(a) of the Consequential Provisions Act did not apply, because no Commonwealth benefit was payable to Jadwan on 30 September 1997, because all patients had been removed from Derwent Court on or about 23 July 1997, in anticipation of the revocation of approval. In relation to ground 5A of the relief sought in the amended application, his Honour found at [51] that the evidence did not establish that the removal of patients was unlawful.
19 His Honour further held at [54] - [55] that s 10-2 of the Aged Care Act operated to cause the approval of Derwent Court to lapse, on the ground that Jadwan had not provided any aged care during a continuous period of six months. There had been no application for waiver in accordance with the terms of the section, within the time limits it allowed. Because the lapse in provider status resulted in the loss of the allocated places, his Honour held at [57] - [58] that it was not open to the Court to make the declarations sought in pars 3 and 4 of the application.
Jadwan's case
20 On the appeal, Jadwan contended first that the result of the Full Court's judgment was that the Minister's delegate's decision revoking approval of Derwent Court was a nullity and was to be regarded in law as no decision at all. Alternatively, it was open to this Court to determine that the revocation decision was a nullity, and the Court should do so. As a consequence, nothing said (or unsaid) by the Full Court with respect to the setting aside of the decision could have rendered the decision operative in any respect or for any period. Alternatively, the learned primary judge was wrong in concluding that the Full Court intended to set aside the Minister's decision only from the date of its own order. The Full Court had no occasion to consider that question. The specification of a date was not part of the relief sought and the Full Court said nothing to indicate that it formed the intention attributed to it by the learned primary judge.
21 Jadwan did not dispute that there were no residents at Derwent Court on 30 September 1997. The second issue it raised was to argue that it was the making of the purported decision revoking approval that brought about this state of affairs. It contended that the legislature would not have intended to bring about the preclusion of the transfer of approved status solely on the basis that the Minister had made an unlawful decision. It urged a purposive construction of s 7(1)(a) of the Consequential Provisions Act, even to the extent of inviting the Court to fill a gap in the provision, by reading in additional words, which parliament would have used had it addressed the particular circumstance.
22 The third issue raised related to the refusal of declaratory relief. Jadwan argued that the assumption on which the learned primary judge proceeded, that the lapse provision in s 10-2 was applicable, was incorrect. It contended that the object of that provision is to ensure that a person who holds an approval actually provides aged care and that the object of the Aged Care Act, to ensure that care is provided, is not frustrated by a provider's inactivity. It contended that the provision can have meaningful application only where a provider is in a position to provide aged care, but does not. Because, at all times after 6 August 1997, the Department did not recognise Jadwan as having approved provider status, Jadwan was not in a position to provide aged care. The lapse provision should be construed as having no application to Jadwan.
The respondents' case
23 The respondents submitted that the reasoning of the learned primary judge on all three issues was correct. They also raised a fourth issue, namely whether, even if Jadwan were to succeed in relation to the three issues, the Court should grant the declaratory relief sought by Jadwan.
24 As to the first issue, the respondents noted that Jadwan did not submit that Wattmaster was wrongly decided. They argued that the learned primary judge was bound to follow Wattmaster on the construction of s 16(1)(a) of the ADJR Act, and that that construction led to his Honour's conclusion. They submitted that the Full Court did turn its mind specifically to the appropriate form of orders and that the inference drawn by the learned primary judge was probably correct.
25 The respondents relied on various aspects of the form of s 7 of the Consequential Provisions Act in support of the proposition that `payable' in that section means payable in fact. They also relied on other provisions of the Consequential Provisions Act. They disputed the contention of Jadwan that the absence of patients from Derwent Court on 30 September 1997 was solely attributable to the Minister's decision, pointing out that it would have been open to the Minister to remake the same decision, or for Jadwan to have sold its entitlement to beds, as it was trying to do, before 30 September 1997. They relied on the failure of Jadwan to challenge on appeal the finding of the learned primary judge that Jadwan had failed to establish that the removal was unlawful. The respondents also said that the legislative purpose would be achieved by the construction of the word `payable' as payable in fact. The conditions for reading words into legislation have not been met.
26 As to s 10-2, the respondents submitted that the construction of s 10-2(1) advanced by Jadwan was incorrect. They said that the section can apply where the provider is not in a position to provide aged care. This is one of the points of the waiver provision in s 10-2(3). The third issue could only arise if Jadwan succeeded on the other two issues and if the Court assumed, contrary to the facts, that Commonwealth benefit was payable to Jadwan on 30 September 1997 because it had at least one approved nursing home patient receiving care on that date. All that the Consequential Provisions Act would have achieved in those circumstances was a translation from the old regime to the new regime. The new regime included s 10-2. In the absence of a waiver under that section, continued entitlement to retain an allocation of places is linked to continued status as an approved provider. Relying on s 15-1, the respondents argued that the Aged Care Act's fundamental premise for an allocation of places is the actual provision of aged care.
27 On the fourth issue, raised by the respondents, they pointed to an issue of estoppel, relied on by the respondents at the trial and expressly not decided by the learned primary judge, which would require the making of findings of fact. If Jadwan succeeded on the appeal, the respondents contended that it would be necessary to remit the matter to the learned primary judge to decide the outstanding matters.
The nullity question
28 The argument put by counsel for Jadwan on this appeal can be stated in the form of a syllogism. The major premise is that, where an administrative decision-maker makes a jurisdictional error, the decision is a nullity and must be treated as never having existed for any purpose. The minor premise is that the decision of the Minister's delegate, cancelling the approval of Derwent Court, was subject to jurisdictional error. The conclusion is that the decision is to be treated as never having been made for any purpose. From that conclusion, it follows that Jadwan is to be treated as the proprietor of an approved nursing home on the eve of the coming into operation of the Aged Care Act. Section 7 of the Consequential Provisions Act therefore entitles Jadwan to be treated as having an allocation of places in existence under the Aged Care Act from the date of its operation.
29 The basis for the major premise is the judgment of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In that case, the Immigration Review Tribunal (`the IRT') had fixed a date for the hearing of a review of a decision to cancel a student visa and invited the visa-holder to attend the hearing. On the eve of the hearing, the visa-holder's agent sent a letter to the IRT, informing it that the visa-holder was ill and would be unable to attend the next day. The letter requested an adjournment. By an administrative oversight, the letter was not brought to the attention of the member of the IRT who was to conduct the hearing. In ignorance of the request for an adjournment, that member proceeded to make a decision adverse to the visa-holder. The visa-holder's agent drew the attention of the IRT member to the letter. The IRT arranged a new hearing date, heard evidence, and made a decision revoking the cancellation of the visa. The Minister for Immigration and Multicultural Affairs took proceedings to set aside the second decision, on the ground that the IRT had already made a decision in respect of the same application, had completed the performance of its function with respect to the application for review, and had no further power to conduct that review (ie the IRT was functus officio). All seven judges of the High Court heard the appeal. By a majority of six to one, the High Court held that the IRT had power to do what it had done.
30 To determine whether the High Court's judgment is authority for the proposition that jurisdictional error causes an administrative decision to be regarded as a nullity, it is necessary to examine carefully what was said in the different judgments. At [11], Gleeson CJ said:
`To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.'
31 At [12], his Honour quoted a passage from the judgment in Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 at 413, in which Finkelstein J made the point that a particular statute in pursuance of which a purported decision was taken may indicate that it is to have effect even though it is invalid, or that it will have effect until it is set aside. At [13], Gleeson CJ continued:
`I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it. ... It follows that, at the time the decision was made, it was inaccurate to say that it was completely without legal effect.'
32 At [14] - [15], his Honour expressed the view that the IRT, through an administrative error, failed to implement its own intention and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. Its first decision did not amount to the conduct of a review. When it learned of its administrative error, the IRT recognised that it had not performed its function and proceeded to do so. This was in accordance with the requirements of the relevant statute.
33 In a joint judgment, Gaudron and Gummow JJ also saw the question as being whether the relevant legislation permitted the IRT to disregard its first decision. For this purpose, their Honours discussed the nature of administrative decisions at [45] - [48], the nature of decisions of the IRT at [49] - [50] and decisions involving jurisdictional error at [51] - [53]. At [51], their Honours said:
`A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.' (Citations omitted)
34 At [53], their Honours said:
`As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.'
At [54] - [60], their Honours dealt with the question whether the relevant legislation should be construed as having the effect of giving the purported decision legal effect despite the jurisdictional error.
35 McHugh J at [63] expressed agreement with the reasons given by Gaudron and Gummow JJ, subject to two matters that are of no concern for present purposes. His Honour clearly favoured the view that the first decision of the IRT was of no force or effect because of jurisdictional error on the part of the IRT. Kirby J dissented, holding at [123] that the application to a decision of the IRT, formally made in accordance with the relevant legislation, of a theory of legal nullification in a case such as Bhardwaj was inadmissible.
36 At [141], Hayne J characterised the question as being when did the IRT perform its statutory task? At [144] - [145], his Honour said:
`More than 30 years ago, H W R Wade pointed out that in considering unlawful administrative action "there is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy." That is why, as Wade went on to say,"[i]t may be no more than a truism to point out ... that words such as
`void' and `nullity' are legally meaningless except in the context of
an actual or assumed decision of a court ... But it is an important
truism for the present discussion, since a conclusion emerges: `void'
and `voidable' are in their present application indistinguishable in
meaning. The reason is simply that no disputed act of a public
authority can safely be treated as void in law unless the court can be
persuaded to condemn it."
Two important consequences follow. First, if the Minister, for whatever reason, had chosen not to contend that the October decision revoking the cancellation of the respondent's visa was ineffective, asking whether the September decision was "void", "voidable" or a "nullity" would serve no practical purpose. Similarly, asking whether the Tribunal had power to reconsider its September decision would be to ask an entirely theoretical question unless either the Minister or the visa holder not only sought to contend to the contrary but also resorted to the courts for relief, the grant of which depended upon the courts forming a conclusion about the contention.' (Citations omitted)
37 At [149], Hayne J said:
`The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the Minister's delegate.'
38 At [151], his Honour discussed the presumption of validity attaching to administrative decisions, holding that it is not a presumption which must be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. At [152], his Honour said:
`This is not to adopt what has sometimes been called a "theory of absolute nullity" or to argue from an a priori classification of what has been done as being "void", "voidable" or a "nullity". It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.' (Citations omitted)
At [153], his Honour held that nothing in the relevant legislation required or permitted the conclusion that, despite the jurisdictional error, some relevant legal consequence should be attributed to the first decision of the IRT.
39 At [162], Callinan J posed the question whether the IRT's first decision `was bad in a jurisdictional sense'. As his Honour held, this depended upon whether what occurred in connection with its making was something more than a breach of the rules of natural justice. At [163], his Honour held that the first decision was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise.
40 This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.
41 In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2002) 195 ALR 24 at [76], the High Court laid down the correct approach to be taken to the application of the privative clause in s 474 of the Migration Act 1958 (Cth). It held that jurisdictional error affecting a decision is sufficient to take that decision outside the protection of the privative clause, because a decision affected by jurisdictional error cannot be regarded as `a decision ... made ... under this Act'. The Court made it clear that it is necessary to read the relevant legislation as a whole, including having regard to the privative clause, in order to determine whether a particular error is to be regarded as a jurisdictional error for this purpose. At [76], in a joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
`This court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".'
In the accompanying footnote, their Honours cited Bhardwaj, referring to the passage at [51] in the joint judgment of Gaudron and Gummow JJ, to McHugh J's agreement at [63], and to the judgment of Hayne J at [152]. As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.
42 In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388 - 389:
`An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.'
43 In this case, it is necessary to look at the scheme of the National Health Act, to see if the legislative intention can be discerned that the decision of the Minister's delegate revoking the approval of Derwent Court was to be treated as having any, and if so what, effect, even though it was not made in accordance with the requirements of the National Health Act. Before embarking on such an examination, however, it is worth examining the minor premise of Jadwan's argument, that the decision of the Minister's delegate was subject to jurisdictional error.
44 The earlier Full Court did not hold in terms that the decision to revoke Derwent Court's approval as a nursing home was a nullity. Given that it was exercising jurisdiction under the ADJR Act, it was unnecessary for that Full Court to determine whether the error was jurisdictional or not. The grounds specified in s 5 of the ADJR Act, upon which the Court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors. An example is the ground in s 5(1)(f), that the decision involved an error of law. See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [27] and [57] per McHugh and Gummow JJ. It might be thought that, in enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from the date of the order or from such earlier or later date as the Court specifies, parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision. It must also be clear that, to the extent to which s 5 of the ADJR Act confers jurisdiction in respect of a `decision', it was intended that there should be jurisdiction, whether or not the decision concerned was subject to jurisdictional error. See Australian Broadcasting Commission Staff Association v Bonner [1984] FCA 220; (1984) 2 FCR 561 at 566 per Morling J and Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375 per Branson J. Similar conclusions have been reached in cases concerned with merits review of a `decision' for the purposes of other legislation in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 313 - 315 per Bowen CJ and 331 - 337 per Smithers J, Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 218 - 219 per von Doussa J (Spender and French JJ agreeing) and, in relation to an appeal to the Court on a question of law from a `decision' of the Administrative Appeals Tribunal, in Clements v Independent Advisory Committee [2003] FCAFC 143 at [36] - [40] per Gray ACJ and North J (Gyles J agreeing).
45 The earlier Full Court had some difficulty in characterising the error that it found affected the decision to revoke approval. In the end, it chose to characterise the error as one of taking into account an irrelevant consideration, by treating the findings of the panel as having been made by a properly constituted panel. As the reasons of the Court show, it would have been perfectly proper for the Minister's delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker's ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case. It is not obvious that this is a finding of jurisdictional error. There is no suggestion that the Minister's delegate failed to understand the task to be performed. There is every reason to suppose that an error in giving too much weight to evidence, because of ignorance as to the true status of the persons providing that evidence, would have been regarded as something less than jurisdictional error.
46 There is some support for this view in the orders made by the Full Court. The Court deliberately set aside that part of the order of Heerey J which declared void the decision to revoke approval of Derwent Court. That order tended to suggest that there had been jurisdictional error, although his Honour did not say so in terms. Rather, he characterised the error as a failure to observe a procedure required by law and found a statutory intention that the object of the statute could not be achieved if the procedure were not followed. The Full Court substituted for this order an order setting aside the decision. The learned primary judge was correct to view this as a choice by the Full Court to make an order that would operate from the date of the Full Court's judgment, and not from the date of the decision of the Minister's delegate. His Honour was correct to follow Wattmaster in which, at 256, Sheppard and Wilcox JJ, with whom Fox J agreed, said:
`Section 16(1) of the Administrative Decisions (Judicial Review) Act gives to the Court a wide discretion as to the orders appropriate to be made. The words "with effect from the date of the order or from such earlier or later date as the Court specifies", in par (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. It is true that the effect of the language used is that it is unnecessary for the Court to specify a date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification is necessary in other cases; but specification of a particular date is, in the latter situation, in any event essential. By contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that "date of the order" is first mentioned; the probable explanation of that circumstance is ease of drafting.'
47 The Full Court's order is thus to be taken as an order setting aside the decision from the date of the Full Court's order. It is difficult to conceive that the Full Court would have made the substitution, without exercising the power under s 16(1) of the ADJR Act to set aside the decision from its inception, if it had not intended to change the effect of the order. Unfortunately, the Full Court did not give clear reasons for the orders it made. Its only reason expressed was that it had regard to the ground on which Jadwan had succeeded in resisting, in substance, the Minister's appeal. The learned primary judge expressed the view that it seemed likely that the Full Court regarded it as just that the revocation decision remain in effect until the date of the appeal judgment because Jadwan had failed to raise before Heerey J the point on which it succeeded in the Full Court. It is at least as likely an explanation that the Full Court had regard to the powers given to the Court in respect of a decision by s 16(1) of the ADJR Act and chose to exercise the power to set aside the decision, pursuant to s 16(1)(a), on the basis that it was not satisfied that there existed jurisdictional error, which might have justified a declaration pursuant to s 16(1)(c) that the decision was void. If the Full Court had regarded the Minister's delegate as having made a jurisdictional error, it is hard to see how the point of time at which argument came to be directed to that issue could have had any impact upon the form of order that was appropriate, upon the issue being made out.
48 The judgment of the earlier Full Court cannot be discussed without making reference to the question whether, and to what extent, it is open to Jadwan to canvass these issues in the present proceeding. Whatever may have been the reasons why counsel who then appeared for Jadwan did not make submissions to the earlier Full Court as to the date from which any order it made should operate in relation to the decision, it cannot be denied that it was open to Jadwan to make such submissions. The unsuccessful attempt, during the hearing of this appeal, to reopen the orders of the Full Court only serves to underline the fact that the issue could have been raised in the earlier proceeding. In no sense can this Court sit on appeal from the judgment of the earlier Full Court, for the purpose of altering the orders the Full Court made. There is a danger that, if this Court were to act on the basis that the decision of the Minister's delegate was affected by jurisdictional error, it would be reconsidering what the earlier Full Court did. If the issue of jurisdictional error had been determined in favour of Jadwan by an explicit finding of the earlier Full Court, there would be nothing to prevent this Court acting on that finding; indeed, it would be bound to do so, by the application of issue estoppel. In the absence of such an explicit determination, any attempt by Jadwan now to obtain such a finding must fall foul of the doctrine of res judicata, on the basis that the issue could have been raised in the earlier proceeding. Even if that were not so, the operation of what is known as Anshun estoppel, derived from the High Court's judgment in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, would bar Jadwan from raising the issue here. In effect, Jadwan now seeks to assert as correct the view taken by Heerey J, that the decision of the Minister's delegate should be regarded as void, when that view was specifically rejected by the earlier Full Court. This Court could not accept Jadwan's argument without giving a judgment that would contradict the judgment of the earlier Full Court.
49 If it were open to this Court to look afresh at the effect of the decision of the Minister's delegate, the proper conclusion is that the decision could not be ignored for all purposes. Nothing in the scheme of the National Health Act at the time required that that be done. It must be remembered that the National Health Act contained no power under which patients could be removed from an approved nursing home, in the event that approval were revoked. There was no statutory bar to Jadwan continuing to provide the care it had provided to the people to whom it had provided it, even after the decision was made. The effect of the decision was only that Commonwealth benefit was no longer payable in respect of persons for whom care was provided. Of course, a decision revoking approval of a nursing home inevitably had the effect of stopping the cash flow of the proprietor. It was probably inevitable that this would require that arrangements be made for the provision of care for the patients by the proprietor of another approved nursing home. Nothing in the National Health Act required that this be done, however. It would have been open to Jadwan to continue to care for the patients in Derwent Court, whilst taking whatever steps were appropriate to have the decision set aside from the date on which it was made. If it had succeeded in doing so, it would have had an entitlement to receive arrears of Commonwealth benefit in respect of each patient for whom it had provided care in Derwent Court in the meantime. Given that scheme, there was nothing about the National Health Act that suggested a legislative intention that a decision revoking approval pursuant to s 44(1) should have no effect if the decision-maker wrongly took into account evidence provided by a panel that had no authority under the legislation.
50 For all of these reasons, the minor premise of Jadwan's syllogism cannot be supported. As both premises are not justified, the conclusion, that the decision of the Minister's delegate to revoke the approval of Derwent Court as a nursing home under the National Health Act was a nullity, must be rejected. The consequences said to flow from that conclusion cannot be sustained for that reason. In the event, because argument was directed to the issue of the operation of the Consequential Provisions Act and the Aged Care Act, it is appropriate to state briefly the Court's conclusions in relation to those matters.
The operation of the Consequential Provisions Act
51 Even if Jadwan were able to establish that the decision to revoke the approval of Derwent Court should be treated as a nullity, this would establish only one element of s 7 of the Consequential Provisions Act. It would establish that Jadwan was the proprietor of an approved nursing home immediately before the commencement day. Section 7 would operate to deem Jadwan to be an approved provider only if one of the alternatives in s 7(1)(a) and (b) applied. No attempt was made to establish any grant of a certificate under s 39A of the National Health Act, so alternative (b) could not apply. Alternative (a) applied only if Commonwealth benefit was payable to Jadwan in respect of an approved nursing home patient under the National Health Act, for nursing home care received by the patient on the day before the commencement day.
52 By its terms, s 7(1)(a) directs attention to factual reality. Before it can apply, there must have been at least one patient actually receiving nursing home care on 30 September 1997. There must have been the actual receipt of, or entitlement to receive, Commonwealth benefit in respect of such a patient. The words of s 7(1)(a) are plain. If it is necessary, confirmation of their intention to apply to a factual situation is provided by s 7(2)(a)(i), which is designed to ensure the continuity of the operation of a nursing home, to the extent to which it is operating.
53 Treating the decision to revoke the approval of Derwent Court as a nullity would not assist Jadwan to satisfy the requirement of s 7(1)(a). As a matter of fact, on 30 September 1997, there were no patients receiving nursing home care in Derwent Court and no Commonwealth benefit was paid or payable in respect of any such patient. The entitlement to receive Commonwealth benefit in respect of an approved nursing home patient, pursuant to s 47(1) of the National Health Act, was dependent on the actual receipt of nursing home care in the particular approved nursing home.
54 Jadwan's submission that treating the decision to revoke approval as a nullity is enough to cause s 7(1)(a) of the Consequential Provisions Act to apply must be rejected. To the extent to which it is based on the existence of a cause and effect relationship between the revocation decision and the removal of the patients, the submission is not made out. On the facts, the removal of the patients began and was completed before the revocation decision was made. It was effected during a period when Jadwan had an entitlement to make submissions to the Minister's delegate about whether the intention to revoke, notified on 20 July 1997, should be carried into effect. No reason was advanced for this Court to overturn the finding of the primary judge that the evidence did not establish that the removal of the patients was unlawful. The situation appears to have been that, in anticipation of the formal revocation of the approval of Derwent Court, Jadwan cooperated with officers of the Department to effect the removal of patients to nursing homes where Commonwealth benefit would continue to be payable in respect of them. In doing so, it acted in the interests of both itself and the patients. As has already been pointed out, there was nothing to prevent Jadwan continuing to provide nursing home care for the patients at Derwent Court, even after the approval under the National Health Act had been revoked. The only consequence of the revocation was that Jadwan could not receive Commonwealth benefit or other benefits under the National Health Act in respect of any patient for whom it was providing nursing home care in Derwent Court. Any attempt to continue to conduct the nursing home would have been to the financial detriment either of Jadwan or of the patients who would have had to pay the full cost of their care. There is no issue of penalising Jadwan for its cooperation in the removal of the patients. The result would have been the same, in terms of the application of the National Health Act, if there had been a power to compel their removal and they had been removed against Jadwan's will.
55 To say that the impending revocation of approval was the reason for the removal of the patients was one thing. To say that treating the revocation as a nullity requires that the removal be treated as if it had not happened is quite another. The likelihood is that Commonwealth benefit was paid in respect of each of the patients removed. It was paid to the proprietor or proprietors of some other approved nursing home or homes. To suggest that it should be treated as having been payable also to Jadwan on the basis of notional patients on 30 September 1997 would be to rewrite s 47(1) of the National Health Act.
56 Irrespective of the outcome of the argument about causation, the position remains that, on 30 September 1997, there were no patients receiving nursing home care in Derwent Court. Whatever the reason for the absence of patients, it is that absence that prevents Jadwan taking advantage of s 7(1)(a) of the Consequential Provisions Act. Section 20 of the Consequential Provisions Act had nothing on which to operate.
Section 10-2 of the Aged Care Act
57 If Jadwan had succeeded in availing itself of s 7 of the Consequential Provisions Act, it would then have to overcome s 10-2 of the Aged Care Act. Again, that provision is directed to a factual, and not a theoretical, situation. Approval under the Aged Care Act lapses if an approved provider does not provide aged care during a continuous period of six months. It could hardly be contended that this provision is intended to refer to anything other than the actual provision of aged care. Its strictness is underlined by the specific provisions relating to waiver, found in s 10-2(3) and (4). Those provisions require application in writing, at least 28 days prior to the end of the six-month period. There was no application for waiver of the period in the present case. Jadwan's argument that s 10-2 was intended to apply only when a provider was in a position to provide aged care cannot be sustained.
58 Jadwan provided no aged care for well over six months from 1 October 1997, when the Aged Care Act commenced operation, until 9 March 2001, when it filed its proceeding that led to the judgment of the primary judge, and thereafter. To attribute its failure to provide such care to the revocation decision, so as to require that the Court act on the assumption that aged care would have been provided if there had been no revocation of approval is to ask too much of the principles of causation. It is to ignore the actual proceedings that Jadwan took, and the opportunities it had to take other proceedings. It is to ignore the possibility that, if it had been appreciated that the revocation decision was a nullity, the Minister might have taken steps to have a new determination made as to whether the approval of Derwent Court should be revoked under the National Health Act, or whether some steps should be taken pursuant to the Aged Care Act to revoke any approval of Jadwan as a provider of aged care, pursuant to s 10-3 of the Aged Care Act. Another event that might have broken the chain of causation could have been the sale by Jadwan of its entitlements to receive Commonwealth benefit in respect of a number of patients, a sale it was apparently desirous of effecting in September 1997.
59 It follows that, even if Jadwan had been entitled to declarations of the kinds sought in pars 1 - 4 of its amended application before the primary judge (set out at [14]), it would not have been entitled to the order sought in par 5 of that amended application, directing the allocation of the places. Section 10-2 would have caused any approval inherited from the previous system to have lapsed well before Jadwan began the proceeding at first instance. It was also appropriate for the primary judge to treat as a discretionary ground for refusing to grant the declaratory relief sought the fact that approval had lapsed under s 10-2 of the Aged Care Act.
Conclusion
60 Jadwan has therefore been unsuccessful on the three major issues that were argued in this appeal. It is unnecessary to deal with the fourth issue, raised by the respondents, which only arises if Jadwan is otherwise successful. That is the issue relating to estoppel.
61 Jadwan's appeal must be dismissed with costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Gray and Downes JJ. |
Associate:
Dated: 11 December 2003
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
V 593 OF 2002 |
BETWEEN: |
JADWAN PTY LTD (ACN 006 203 112) APPLICANT |
AND: |
THE SECRETARY TO THE COMMONWEALTH DEPARTMENT OF HEALTH AND AGED CARE (FORMERLY THE COMMONWEALTH DEPARTMENT OF HEALTH AND FAMILY SERVICES) FIRST RESPONDENT THE MINISTER FOR HEALTH AND AGED CARE (FORMERLY THE MINISTER FOR HEALTH AND FAMILY SERVICES) SECOND RESPONDENT |
JUDGES: |
GRAY, KENNY AND DOWNES JJ |
DATE: |
12 DECEMBER 2003 |
PLACE: |
MELBOURNE |
KENNY J:
62 I have had the benefit of reading in draft the reasons for judgment prepared by Gray and Downes JJ. Substantially for these reasons, I agree with their Honours' proposed disposition of this appeal. I would, however, express at least one aspect of the reasoning differently.
63 The circumstances that have led to the present appeal are set out in the judgment of Gray and Downes JJ. I gratefully adopt their Honours' account.
64 For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 ("Bhardwaj") is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant's submissions in so far as they are to the contrary effect.
65 Plainly enough, as Gray and Downes JJ have already noted, in Minister for Health and Family Services v Jadwan Pty Ltd [1998] FCA 1549; (1998) 89 FCR 478, a Full Court, constituted by Burchett, Drummond and Sackville JJ, did not expressly find that the decision to revoke Derwent Court's approval as a nursing home was a nullity. On the current appeal, the appellant's argument was that the necessary effect of the Full Court's decision, read in light of Bhardwaj, was that the revocation decision was to be treated as a nullity.
66 In order to understand this submission, it is necessary to refer to the nature of the proceeding before the earlier Full Court. The appeal before it was from a decision on an application for an order of review, made in the exercise of the jurisdiction conferred by s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act"). Before the earlier Full Court, the appellant submitted that the failure validly to establish the Standards Review Panel ("the Panel") fell within the ground of review set out in par 5(1)(b) of the AD(JR) Act (namely, procedures that were required by law to be observed in connection with the making of the decision were not observed). Burchett, Drummond and Sackville JJ held that, since the decision-maker was not required to appoint a Standards Review Panel in exercising the power under subs 44(2) of the National Health Act 1953 (Cth), the appellant had not made out the ground of review in par 5(1)(b) of the AD(JR) Act.
67 In response to a submission by the Minister, their Honours also said that, if the decision-maker had recognised that the Panel was not validly appointed, then it might have been open to her to take into account the views expressed by the individuals who comprised the Panel. In the matter before them, however, the decision-maker under subs 44(2), and the decision-maker on reconsideration, made their decisions on the basis that the Panel was validly appointed. Burchett, Drummond and Sackville JJ rejected the Minister's submission that, in having regard to the views of the Panel, the decision-maker was not also bound to take into account that the Panel was not properly constituted. Accordingly, the Full Court held that the appellant had succeeded on the ground set out in par 5(1)(e) of the AD(JR) Act (the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made). There was a subsidiary question as to whether the par 5(1)(e) ground should be characterised by reference to par 5(2)(a) (taking an irrelevant consideration into account) or par 5(2)(b) (failing to take a relevant consideration into account). Burchett, Drummond and Sackville JJ held that par 5(1)(e) was made out by reference to par 5(2)(a) and rejected the Minister's submission that the "irrelevant" consideration was "so insignificant that it could not have materially affected the decision": see 89 FCR at 496.
68 Although the grounds appearing in pars 5(2)(a) and (b) of the AD(JR) Act are "substantially declaratory of the common law" (see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, at 39 per Mason J), the AD(JR) Act does not incorporate the common law distinction between jurisdictional and non-jurisdictional errors. The grounds of review specified in s 5 of the AD(JR) Act are not expressed in terms of jurisdictional error. Some of these grounds may include errors that would not be jurisdictional errors in the common law sense: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 65 and 72 per McHugh and Gummow JJ. The concept of jurisdictional error played no part in the reasoning of Burchett, Drummond and Sackville JJ, because no question of jurisdictional error arose under the AD(JR) Act. The parties before the Full Court on this earlier occasion quite properly did not make submissions on the existence or non-existence of jurisdictional error.
69 The history of the AD(JR) Act confirms that the Court would be in error in the present appeal if it were to construe the earlier decision of Burchett, Drummond and Sackville JJ by reference to the common law concept of jurisdictional error. The AD(JR) Act, which came into force on 1 October 1980, was introduced to simplify the law relating to the judicial review of decisions made under Commonwealth enactments. As the Administrative Review Council ("the ARC") observed in its 32nd report, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act (AGPS, Canberra, 1989) at [63]:
"The AD(JR) Act was developed and put in place in the Commonwealth as a response to the perceived need for reform. The Act resulted from the recommendations of the Commonwealth Administrative Review Committee (`the Kerr Committee') which presented its report to the government in August 1971. In its report the Kerr Committee recommended wide ranging reforms to simplify and improve the scheme of judicial review which then applied in the Commonwealth area."
70 Reference to the Kerr Committee report (reproduced in The Making of Commonwealth Administrative Law: The Kerr, Bland and Ellicott Committee Reports, compiled by Robin Creyke and John McMillan; reprinted by the Centre for International and Public Law, ANU, 1996) illustrates some of the considerations that led to the enactment of a statutory regime for judicial review. The Committee described, at [29], the principles of judicial review existing in 1971 in the following terms:
"... the complex relationship between the principles and the remedies must be constantly borne in mind, and it is not always possible to separate the principles of review from the remedies. For example, some of the principles available for an attack upon an administrative decision are available only when the decision is that of an administrative authority which is quasi-judicial and therefore under a duty to act judicially. They are not available for an attack upon a purely administrative authority not under a duty to act judicially. This is because the remedy is not available in the latter type of case. Where a principle is available to enable a decision to be attacked it is often most important to select the proper remedy and this may depend on a correct prediction as to whether the challenged decision suffered from the occurrence of jurisdictional error, or an error of law or was simply ultra vires." [Emphasis added]
71 In relation to jurisdictional error, the Committee specifically noted, at [34]:
"If an inferior court or administrative tribunal exceeds its power it has made a jurisdictional error but a clear distinction must be made between want of jurisdiction and the manner of its exercise. It is necessary to distinguish between findings of fact and law which are jurisdictional and those which are not though sometimes a tribunal may be given conclusive power to make findings in preliminary jurisdictional matters. There is judicial recognition of the great difficulty in differentiating between jurisdictional and non-jurisdictional matters and many tests have been devised to assist in this task. As courts and tribunals are permitted to make errors within jurisdiction difficult questions arise when attempts are made to apply the extended doctrine of ultra vires ... to the concept of jurisdictional error." [Emphasis added]
72 With these matters in mind, the Committee concluded, at [58]:
"It is generally accepted that this complex pattern of rules as to appropriate courts, principles and remedies is both unwieldy and unnecessary. The pattern is not fully understood by most lawyers; the layman tends to find the technicalities not merely incomprehensible but quite absurd. A case can be lost or won on the basis of choice of remedy and the non-lawyer can never appreciate why this should be so."
73 In 1989, when the ARC published its 32nd report, there remained significant substantive differences between prerogative and like proceedings (whether brought under s 75(v) of the Commonwealth Constitution or s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") or otherwise) and proceedings under the AD(JR) Act. As the ARC noted, at [66], these differences included that (1) AD(JR) Act applicants did not need to choose a particular remedy because relief was given, pursuant to s 16, on the grounds of review set out in the AD(JR) Act; (2) the distinction between jurisdictional and non-jurisdictional errors was not significant in an AD(JR) application; and (3) the remedies under s 16 were broader than those available at common law.
74 This is not the place to discuss at length the history, in Australia, of the law relating to prerogative writs following the introduction of s 39B of the Judiciary Act and the introduction and amendment of Pt 8 of the Migration Act 1958 (Cth). I observe that, since these legislative changes, this Court and the High Court have examined more frequently than before the common law principles of judicial review of administrative action. I do, however, note below some developments in the law that have particular bearing on the appellant's submissions in the present appeal.
75 In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 ("Craig"), the High Court took a different approach, at least in relation to courts of law, to that which found favour in England. In Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 ("Anisminic"), the majority of the House of Lords held that a court could quash a decision for error of law even though it was an error made in the process of exercising a power rather than an error in deciding whether the power existed: see Anisminic at 171 per Lord Reid. Lord Diplock, in O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 278, and the Divisional Court, in R v Greater Manchester Coroner; Ex parte Tal [1985] QB 67 at 81-83, extended this approach to the inferior courts. The effect was to blur the distinction between jurisdictional and non-jurisdictional errors of law. In Craig, the High Court reiterated that a reviewing court could set aside a decision only in the case of jurisdictional error. In the case of inferior courts, the availability of the writ of certiorari to correct an error of law on the face of the record was treated as an exception to this basic principle. Craig confirmed that, under Australian common law, the distinction between jurisdictional and non-jurisdictional error is critical to the capacity of a reviewing court to grant appropriate relief in prerogative writ proceedings, or proceedings akin to prerogative writ proceedings.
76 Whilst adopting a narrow notion of jurisdictional error in the case of courts of law, the High Court in Craig adopted a broad notion of jurisdictional error in the case of administrative decision-making. In a now much-cited passage, the Court said at 179:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
77 More recently, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, the High Court adopted and developed the ideas set out in the above passage in connection with administrative decision-making. McHugh, Gummow and Hayne JJ, with the concurrence of Gleeson CJ and Gaudron J, referred to the latter part of this passage and continued, at 351:
"`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. ... . What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it."
78 Since Craig, the High Court has progressively simplified and rationalised the common law principles of judicial review of administrative action. The result is that today many of the common law principles resemble the statutory regime set out in the AD(JR) Act more than twenty years ago. The gravamen of the appellant's argument in the present appeal concerns the effect of this rationalisation. In the appeal, now some five years ago, Burchett, Drummond and Sackville JJ held that, in revoking Derwent Court's approval as a nursing home, the decision-maker took into account an irrelevant consideration (within the meaning of par 5(2)(a) of the AD(JR) Act) and that, in consequence, there was an improper exercise of the power (for the purpose of par 5(1)(e) of the AD(JR) Act). Had the proceeding been constituted under s 39B of the Judiciary Act, their Honours might have found that the decision-maker had regard to an irrelevant consideration and that, in consequence, there was jurisdictional error in the sense discussed in Craig and later cases. It does not follow from this, however, that a decision made by the Federal Court of Australia in the exercise of the jurisdiction conferred by the AD(JR) Act can be treated as if it were a decision in exercise of the jurisdiction conferred by s 39B of the Judiciary Act. The statutory regime and the jurisdiction that it confers is not the same as the common law and the jurisdiction that arises by virtue of s 39B of the Judiciary Act.
79 Further, in relation to remedies, there remain some significant differences between the AD(JR) Act and the common law. One of these differences is relevant to the disposition of the present appeal. In particular, the remedies available under s 16 of the AD(JR) Act are broader and more flexible than those available at common law. As Sheppard and Wilcox JJ (with whom Fox J agreed) said in Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 13 FCR 253, at 256:
"Section 16(1) of the Administrative Decisions (Judicial Review) Act gives to the Court a wide discretion as to the orders appropriate to be made. The words `with effect from the date of the order or from such earlier or later date as the Court specifies', in par (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. It is true that the effect of the language used is that it is unnecessary for the Court to specify a date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification is necessary in other cases; but specification of a particular date is, in the latter situation, in any event essential. By contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that `date of the order' is first mentioned; the probable explanation of that circumstance is ease of drafting.Having in mind what is involved in "setting aside" or "quashing" (as to which see Commissioner for Railways v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225) it may, at first sight, seem strange to speak of setting at naught a decision as at a particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but in which the nullifying should nevertheless take effect from some later date. The provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio ... . The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme."
80 In the earlier appeal, Burchett, Drummond and Sackville JJ expressly set aside the trial judge's declaration that the decision to revoke the approval of Derwent Court was void. In place of this declaration, the Full Court ordered that the revocation decision be set aside. The primary judge in this proceeding was plainly correct to view this as a choice by the Full Court to make an order that would operate from the date that it was made and not from the date of the decision of the Minister's delegate.
81 It is tolerably clear that the earlier Full Court intended to effect this change in the disposition of the case. Before disposing of the appeal, Burchett, Drummond and Sackville JJ referred to the fact that the appellant failed on the par 5(1)(b) ground accepted by the primary judge and succeeded on the different ground in pars 5(1)(e) and 5(2)(a) of the AD(JR) Act. As Gray and Downes JJ noted, the primary judge expressed the view that it seemed likely that their Honours saw it as just that the revocation decision remained in effect until the date of the appeal judgment because the appellant did not raise the point that ultimately succeeded until the appeal.
82 Furthermore, in its account of the decision of the primary judge, Burchett, Drummond and Sackville JJ observed, at 489, that:
"... despite the orders made by the trial judge, Derwent Court has not reopened as a nursing home. A formidable practical barrier to its doing so is the currency of the Minister's declaration under s 45E(1) and her determination under s 45E(2), both made on 3 February 1997."
83 The effect of the earlier Full Court's orders, which were clearly and deliberately made under s 16 of the AD(JR) Act, is unequivocal. These orders set aside the revocation decision from the date of its making, namely 4 December 1998, and not from the date on which the decision the subject of the proceeding was made. On this appeal, it is not open to a Full Court, differently constituted, to remake these orders several years later, or to attribute to them an effect that they were plainly not intended to have. For the reasons stated, the judgment and reasons of the earlier Full Court provide no warrant for this Court to hold that the necessary effect of the earlier decision was that the revocation decision was to be treated as a nullity.
84 I agree with Gray and Downes JJ that the appellant is estopped from reopening the question whether the revocation decision was affected by jurisdictional error in the common law sense: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19 at 26-28; and King v Lintrose Nominees Pty Ltd [2001] VSCA 140; (2001) 4 VR 619 at 627.
85 For these reasons, I would dismiss the appeal. It is unnecessary to say anything further about the appellant's submissions concerning the operation of the Aged Care (Consequential Provisions) Act 1997 (Cth) and the Aged Care Act 1997 (Cth). I agree that the Court should make the orders that Gray and Downes JJ propose.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 12 December 2003
Counsel for the Appellant: |
CM Maxwell QC and Dr CY Beaton-Wells |
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Solicitor for the Appellant: |
Riordans |
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Counsel for the Respondents: |
D Mortimer |
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Solicitor for the Respondents: |
Phillips Fox |
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Date of Hearing: |
24 February and 3 April 2003 |
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Date of Judgment: |
12 December 2003 |
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