Bupa says aged care class action is hopeless

Counsel for Bupa has asked a court to strike out a class action that alleged staffing shortages at its aged care homes led to a low quality of care for residents.

Bupa was accused of an alleged failure to provide adequate quality of care to vulnerable residents in its aged care homes, but counsel for the provider said the case against them does not stack up.

Appearing in the Federal Court on Monday (4 August) to argue in favour of a strike-out, Wendy Harris KC said she “feels a little bit like I am wrestling jelly” because every time the legal team gets close to understanding the case against Bupa, “it slips away from me”.

“I am not a fan of strike-out applications ordinarily, but this case now crosses a line very comfortably in terms of not articulating a clear cause of action, not articulating a clear case of breach, not articulating any tenable plea for loss, and not articulating a case that Bupa has any hope of understanding,” Harris said.

On behalf of residents housed in Bupa’s aged care centres between July 2019 and April 2025, Echo Law alleged the provider has consistently fallen below minimum acceptable benchmarks for care.

The class action alleged Bupa breached contractual obligations under its residential agreements and contravened consumer guarantees under the Australian Consumer Law by its failure to provide residents with services that are fit for purpose.

Echo Law has relied on Bupa’s own reporting of the homes, which the firm alleged confirmed widespread staffing shortages.

Harris explained that the case against her client has alleged that a proposed 215 minutes of care per resident was not provided. If successful, all group members would be entitled to loss and damage, even if individuals received an “impeccable” level of care, she added.

The counsel added that the class action’s case has altered since its statement of claim, having once focused only on whether the 215 minutes of care were provided at each of the aged care homes.

Harris said it now appears to allege residents would be entitled to a claim depending on the staffing levels at each home.

“Neither presents a coherent and tenable basis,” Harris said.

“The concern that Bupa will have – obviously having had the benefit of what has fallen from my learned friend – is this case is going to be like shifting sand. That is not the way litigation works.”

The matter has been adjourned to allow further submissions to be made, after which Bupa would consider whether to continue to press its strike-out or summary dismissal application.

Prior to Monday’s hearing, Echo Law partner Andrew Paull accused the provider of “reading down its contracts to avoid accountability than delivering the quality care it promises”.

“Rather than defending the quality of its care, Bupa’s legal team is arguing that it never promised to meet basic aged care standards in the first place,” Paull alleged.

“This legal argument highlights a disconnect between what residents and families expect from aged care providers, and what those providers may argue they’re required to deliver.”