9 June 2023

Court dismisses Calvary Health Care's application to have acquisition law ruled invalid

| Claire Fenwicke
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ACT Magistrates Court. Photo: file.

Calvary Health Care is considering an appeal. Photo: File.

Orders keeping the Territory from entering Calvary Public Hospital Bruce as part of the acquisition process have been dismissed by the ACT Supreme Court.

Calvary Health Care had applied for the law allowing for the forcible takeover of the hospital’s land and assets to be ruled invalid, as well as certain sections contained within the legislation.

Justice David Mossop told the Supreme Court on Friday (9 June) that while the court couldn’t provide its reasons for the decision at this stage, the applications to declare the Health Infrastructure Enabling law and certain sections to be invalid were dismissed.

He also removed the orders stopping Canberra Health Services from entering the site.

READ MORE ‘It’d be a recipe for disaster’: health chief outlines reasons for quick Calvary Public transition as acquisition court date approaches

In his affidavit to the Supreme Court, Calvary National CEO Martin Bowles had argued against the validity of both the law and associated regulation, contending Calvary would suffer “loss and damage” if the Territory exercised its rights under them.

“I am concerned that the pace at which the Territory proposes to acquire the Public Hospital Land and associated assets, as well as transition the provision of the public hospital services, puts at risk the safety and wellbeing of patients, staff and the community,” he said.

“I am also concerned that the Territory’s conduct may cause some staff to permanently leave their roles and not return. If this were to pass, I anticipate that staff shortages may arise which could put at risk patient and community safety.”

While the Supreme Court dismissed the concerns around the validity of the Act as a whole, and certain sections, what’s happening with Calvary’s submission that parts of the regulation are invalid still hasn’t been determined.

The law also contains a subordinate regulation to provide a way to determine compensation payable to Calvary “under just terms to acquire the land and terminate the CNA [Calvary Networking Agreement].”

“It will also provide a mechanism to transition Calvary Public Hospital Bruce employees, assets, and services to the Territory,” it states.

Mr Bowles stated in his affidavit his concerns the acquisition would “force” Calvary to “incur unnecessary costs and expenses.”

“It is uncertain whether these will be reimbursed by the Territory,” he said.

“I am particularly concerned that the proposed Regulation, particularly regulation 7, appears to allow the Territory to pick which contracts it proposes to have novated or assigned.”

Mr Bowles also outlined his feelings that if the transition was to begin and then have to be halted or reversed, the damage would be “significant”.

“In my view … there would be significant staff and community confusion which would likely damage Calvary’s relationship with those stakeholders,” he said.

“Calvary has invested considerable time, funds and effort into building these relationships over the past 40 years.”

READ ALSO Legal barrier removed to ban new gas connections in the Territory

What exact legal options Calvary Health Care’s considering at this time remain unclear.

In the courtroom Calvary’s legal representative David Williams raised concerns over the reasons not being available at this time, indicating the corporation would consider appealing this decision.

“I’m not sure a further application for an injunction is the right course,” Justice Mossop replied.

“But there’s absolutely no constraint on making an application.”

A Calvary spokesperson acknowledged the Supreme Court’s decision, but would not comment further.

“[Calvary] will take time to consider the judgment once we receive it,” they said.

The matter is scheduled for a directions hearing on 16 June.

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This is a slippery slope and further evidence of a government that has no fear of being held accountable by being voted out.

It’s only fair that the northside has the same toxic disfunctional hospital as we have in the south. Also let’s shell out another lazy billion dollars for a new hospital while we’re at it because we still have plenty of money left over from the billion dollar plus light rail. ACT rate payers lookout and be prepared for a hike this year 👍

Democracy is dead in Canberra. What more evidence is needed?

Peter Herman2:40 pm 11 Jun 23

It seems to me that the courts are controlled by the ACT Labor/Greens
Their priorities are up their nose, yet they believe that they are permitted to do what they want
This mob spend taxpayer money to raise London CCT and they use taxpayer money to build an ice sharing ring instead of fixing the existing one,Canberra Hospital is a total mess and now this mob seek to take over Calvary hospital
What will be next…god knows
Instead of ACT Government spending/wasting taxpayer money put Tito something thatThe taxpayers will benefit from
I’m short fashion stop wasting taxpayer money
This mob are nearly as bad as The previous LNP Feds wasting money
I would be interested to see how much funding us in the coffers right now

Don’t worry there’s plenty of money where that came from, just look at your next rates notice 👍

Rightly or wrongly labor own this town. After over twenty years in power they can do what they like.

Yep everyone is happy with the status quo, think it’s the boiling frog analogy in play 😊

Andrew Richards10:54 pm 09 Jun 23

I hope those who support the government’s actions here, don’t hold title deeds to homes or any kind of permanent structures which they think they fully own, in the ACT. Alternately, if they do, I hope they’re fine with the ACT Government now potentially being able to take those buildings from them – including their own homes – once the legal precedent is set through the Calvary Hospital property theft.

After all, one thing that has emerged from this, is that there is no such thing genuine private property ownership in the ACT. Private individuals may own buildings, such as homes, or commercial spaces, but the ACT government owns all the land and merely leases it out to the owners of those buildings.

Once the legal precedent has been set for this, it exists to do the same with ANY privately owned building in the ACT – including people’s own homes – at ANY time and for ANY reason.

No doubt the more dyed-in-the-wool Labor and Greens supporters will defend this until they’re blue in the face – dogmatically convinced by their party loyalty, that “It will never happen to me!”

It’s telling how history has repeatedly shown that such ideological tribalists, are inevitably bewildered and shocked, when what they were naively and dogmatically convinced “will never happen to me” [sic], inevitbaly and invariably does, because things like party loyalty, mean nothing to a pack of politically corrupt psychopaths, beyond a means to an end, in the service of manipulating the gullible and the opportunistic.

To such individuals, I merely have this to say to you: I’ll see you in the gulags with me in due time.

Time to have a cup of tea and lie down. You are working yourself into a state over nothing. The ACT government is not going to acquire your home. It has always been possible for them to do so, but there is no particular benefit in doing so – quite the opposite actually as its likely you are a source of income for them through your rates.

By the way, it was common knowledge that all land in the ACT is leasehold. There is nothing new about this. If this is a revelation to you, then that says something about you. Don’t assume everyone else’s lack of understanding.

Bob the impala12:50 pm 10 Jun 23

Andrew Richards, be clear: what legal precedent has been set?

When was there ever “genuine private property ownership” of ACT land and what practical difference does it make anyway? Have you never heard of government resumption of land anywhere in Australia for a freeway, airport, rail line, or even a hospital, for example?

You will find the answer to your question in the Australian Constitution.
It is not the rave you are looking for.

Blatant abuse of power and a lack of good faith negotiation. Who would enter into a contract with this dictorship?

Thanks megsy I feel so much better now, long live Andrew Barr, comrade Rottenberry and the party 🌚

The precedent set is that the government changed the law to circumnavigate it’s obligations under a legally binding agreement/contract. Hence the need to rush through legislation to make it legal.
I’m only guessing though because I’m no expert on contracts or law👍

Very easy Bob, the government has changed the law to circumnavigate the obligations in the contract and thus far got away with it. If it is tested in court and the court agrees it is OK a precedent is then set.
But hey I no nothing about the law or contracts.

Bob the impala8:14 pm 03 Jul 23

No precedent is set by legislation under the Constitution for resumption of land or property. It has happened innumerable times, in every State. What’s new?

Termination of the contract is a direct consequence of resumption, not the first purpose of the legislation. See Section 10 (2) (e) of the relevant Act.

“hey I no [sic] nothing about the law or contracts ”
Under the circumstances, noid, I take you at your word.

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