Baff v The Forsight Foundation [2000] NSWSC 382

New South Wales Supreme Court

CITATION : Baff v The Forsight Foundation [2000] NSWSC 382 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2255/00 HEARING DATE(S) : 11 May 2000 JUDGMENT DATE : 11 May 2000

PARTIES : Justine Baff by her tutor Krystyna Podsiadly (P) The Forsight Foundation (D) JUDGMENT OF : Hamilton J

COUNSEL : Miss J Needham (P) J P Phillips (D) SOLICITORS : T A Murphy, Legal Aid NSW (P) Gadens (D) CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Serious question to be tried - Weakness of plaintiff's case - Shortness of time for which injunction sought. LEGISLATION CITED : Community Services (Complaints, Reviews and Monitoring) Act 1993 CASES CITED : Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 DECISION : Injunction granted for one week.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 11 MAY 2000

2255/00 JUSTINE BAFF BY HER TUTOR KRYSTYNA PODSIADLY v THE FORSIGHT FOUNDATION

JUDGMENT

HIS HONOUR:

1 In this somewhat distressing matter the plaintiff seeks an adjournment for a week, and for the continuation of interlocutory relief during that week. The proceedings concern the occupation of a place in a home by the plaintiff, who is a disabled person with severe mental and physical disabilities, who sues by her mother, who is her tutor. The plaintiff has been excluded from the home. She says that this is contrary to the contract for her accommodation, and contrary to the procedures - what are called the exit procedures - in general adopted by the defendant under that contract or, in any event, in relation to residents leaving the home. Attention is also drawn to the fact that an inquiry into related circumstances is at present being conducted by the Community Services Commission under the Community Services (Complaints, Reviews and Monitoring) Act 1993, and that, although there is not power under that Act to restore the plaintiff to her former position in the home, it is possible that the defendant may change its attitude as a result of the outcome of the inquiry. 2 The plaintiff, as I have indicated, is already out of the home. The defendant wishes to reallocate her place in the home. There is a scarcity of such places, and it is said that it is important both for the defendant, and perhaps in the public interest, for the place to be reallocated. However, if it be reallocated, any possibility is lost of the plaintiff resuming that place, and, if it be true that she has serious behaviour problems, as alleged by the defendant, the difficulty inherent in the scarcity of places, which the defendant has itself pointed to, will only redouble her difficulties in finding appropriate accommodation and care. Whilst I am not unmindful of the inconvenience to the defendant of even a week's stay upon reallocation of the place, the balance of the convenience is strongly in favour of a plaintiff whose opportunity for accommodation and care in this home will be destroyed if an injunction be not granted, leaving her in a very doubtful situation as to her future accommodation and care. 3 Even allowing for this, Mr Phillips, of counsel for the defendant, says that the strength of the defendant's case should lead to the refusal of the application for an injunction. However, he has not been bold enough to put to me in terms that the plaintiff has no case at all. His best point as to the strength of the defendant's case is that this is a situation of the kind whereby the Court, if it acceded at the final hearing to the plaintiff's case, would in effect be forcing a contract of personal services, because of the considerable care element involved in the contract, upon an unwilling care provider, and that, whatever the other rights or wrongs of the matter, the Court would not do this. However, as I have said, he does not urge upon me that the plaintiff has no arguable case at all. In those circumstances, the applicable principles are those set out in the following passage of the judgment of McLelland J, as his Honour then was, in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-6: "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1981] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed.

Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 533 and Cohen v Peko-Wallsend Ltd ." 4 In conducting the exercise that his Honour there prescribes, I bear in mind that the adjournment and injunction sought at the moment are only for one week. The necessity for the adjournment is that the defendant on 9 May 2000 served a lengthy affidavit relating to the plaintiff's conduct. Protest has been made that the late service does not matter because the affidavit itself summarises documents, the production of which was required by a late notice to produce given by the plaintiff. However, I find this objection a little difficult to understand. The simple fact of the matter is that, whatever complaint the defendant had of the plaintiff's conduct, which was always material to the proceedings, there was not detailed evidence of the conduct sought to be used upon the interlocutory application until this affidavit was filed only two days ago. It is a 43 page affidavit descending to quite minute detail about various conduct of the plaintiff. It is in my view quite impossible for the plaintiff to consider what answer ought be made to it at this stage, and to make that answer in the time that has been allowed. Taking all of the above factors into account, I propose to grant an adjournment of the interlocutory application for a week, and to grant an injunction during that time in the terms in which the original ex parte injunction was granted. 5 I make the following orders:

(1) Upon the plaintiff by her counsel giving to the Court the usual undertaking as to damages I order that up to and including 18 May 2000 the defendant be restrained from allocating the accommodation previously provided for the plaintiff at 35 Kanadah Avenue Baulkham Hills to any other person.

(2) I order that the plaintiff's costs of the application for the injunction granted today be the plaintiff's costs in the proceedings.

(3) I direct that the parties file and serve any further affidavits intended to be relied upon on or before 16 May 2000. If any reply is needed to the further affidavits, it should be brought to the Court on 18 May 2000.

(4) I appoint 16 May 2000 before the Registrar for the return of subpoenas and notices to produce.

(5) Liberty to restore before me on 12 hours' notice. …oOo…

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