10 July 2023

Calvary drop regulation challenge after changes to hospital acquisition terms

| Claire Fenwicke
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signage removed from Calvary Public Hospital Bruce

Calvary Public Hospital Bruce officially became North Canberra Hospital under the control of the ACT Government on 3 July. Photo: Claire Fenwicke.

Calvary Health Care has decided to discontinue its challenge over the regulation which decides how much compensation it can receive over the compulsory acquisition of its Bruce public hospital.

However, this still leaves the door open for the organisation to appeal the court’s decision that the law itself – the Health Infrastructure Enabling Act 2023 – is valid.

In the ACT Supreme Court on Friday (7 July), Calvary’s lawyer David Williams SC said “substantial changes” to the associated regulation, which deleted several clauses and amended others, had taken on board “many of the criticisms” it initially had about it.

This included what’s colloquially known as a ‘historic shipwreck clause‘, which is a fail-safe if an associated legislation acquires property “other than on just terms”.

“[All of these changes] mean it’s no longer appropriate to proceed with the challenge to the regulation,” Mr Williams said.

Some of these changes were made in light of the Territory also compulsorily acquiring Clare Holland House from Calvary Health Care.

READ ALSO Mixed emotions as Calvary Public Hospital Bruce officially becomes North Canberra Hospital

ACT Solicitor-General Peter Garrison SC sought clarification that the discontinuation applied only to the regulation challenge, and not also to the decision already made about the legislation.

Chief Justice Lucy McCallum confirmed this was the case.

“As a result of the amendments to the Health Infrastructure Enabling Regulation, the issues raised which constitute the balance of proceedings [not yet determined by the court] … are not appropriate to be dealt with by the court,” she said.

This means any grounds for appeal over the decision regarding the act still stand as an option.

Mr Williams gave no indication if this was or wasn’t an option Calvary Health Care was still considering.

The two parties will file their arguments over costs of the proceedings to the court, with a decision expected in three to four weeks’ time.

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