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With the first week of hearings due to commence on Monday 11 February, we thought it was timely to reflect on the preliminary hearing in mid-January and to give you some insights into what you should expect next week and moving forward.
The preliminary hearing was held on Friday 18 January before Commissioners Richard Tracey AM RFD QC and
Lynelle Briggs AO.
The Commission made it clear it intends to focus on the instances of substandard care and abuse and the failings in the present system. Through considering these issues, recommendations will be made as to how to prevent instances of abuse and generally improve the aged care system.
In November last year, approximately 2000 aged care providers approved under the Commonwealth Aged Care Act 1997 were invited to make submissions about substandard care in their facilities and opportunities for improvement.
At the time of the preliminary hearing, the Commission received only 83 submissions. At that time, submissions were voluntary, but the Commission noted that healthcare providers who did not voluntarily comply would draw attention to themselves.
These responses related to approximately 2000 services and outlets and the highest number of reported incidents related to residential care.
The hearings in February will focus on the present system and the context in which it operates, including:
Later hearings will focus on systemic issues, defects and reforms.
The Commission also intends to interact with stakeholders outside of the formal hearings including, for example, community roundtables and direct engagement with experts.
We expect that following the first set of hearings, the Commission is likely to exercise its compulsive powers and require industry providers to produce documents relevant to the terms of reference and the key themes identified above. Once documents have been produced, it may be that witnesses will be called and witness statements will need to be drafted.
We anticipate that industry providers will be required to consider complicated issues including the material to be produced, whether any of that material is privileged and how witness statements should be prepared and drafted. Any interaction with the Commission will also need to comply with the Practice Guidelines published by the Commission and those guidelines will be legal in nature.
Importantly, like the Financial Services Royal Commission, the Commission has indicated that short response times will be common and should be expected.
A recent decision of the Supreme Court of Queensland has highlighted the need to be vigilant when calculating pre-judgment interest, particularly in respect of long running litigation.
We have started to see the Federal Court use its discretionary powers in respect of class actions to order defendants to disclose their insurance policies to plaintiffs.
The recent Federal Court judgment Lucas v Zomay Holdings Pty Ltd is a reminder to all contracting parties that a preliminary agreement is immediately binding, even when you are expecting to enter...