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[2025] NSWDC 193
General information, not legal advice.
District Court of NSW
2025-05-28
Abadee DCJ
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Man Hay Lau v Anglican Community Services [2025] NSWDC 193
Hearing dates: 28, 30 April, 1 May 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Jurisdiction: Civil
Before: Abadee DCJ
Decision: See paragraphs [533]–[534]
Catchwords: CONTRACTS – supply of services by aged care provider – action in contract for breach of express and implied terms relating to the care of a patient – construction of contractual duties – significance of regulatory context – standard of obligation to observe and act on rights in a Charter – whether alleged breach(es) of duty established
CONSUMER LAW – services supplied to a deceased person in an aged care facility – characterisation of ‘services’ – whether non-compliance with care guarantee
CONSUMER LAW – remedies – executor of deceased’s estate claims relief by way of public apology by the service provider– whether District Court has jurisdiction to make orders under s 237 and s 243 of the Australian Consumer Law – whether a court is empowered to grant the relief sought under s 237 to an individual applicant where the relief is not expressly available in s 243 – whether ‘loss or damage’ has actually or is likely to be sustained – consideration of the nature of the remedy of a court-ordered public apology informing the Court’s discretion to grant the relief
Legislation Cited: Aged Care Act 1997 (Cth), ss 54-1–54-3, 55-1, 56-1, 96-1
Aged Care Quality and Safety Commission Act 2018 (Cth), Part 7B, Part 8A, s 63N
Australian Human Rights Commission Act 1986 (Cth), s 46PO
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 67, 69
Competition and Consumer Act 2010 (Cth), ss 87E, 137E; Schedule 2 – Australian Consumer Law, ss 2, 13, 60, 61, 232, 234, 235, 236, 237, 243, 246, 247, 267
Defamation Act 2005 (NSW), s 38
District Court Act 1973 (NSW), ss 44, 135
Fair Trading Act 1987 (NSW), ss 28, 30
Federal Court of Australia Act 1976 (Cth), s 23
Guardianship Act 1987 (NSW), ss 4, 6A, 6G
Privacy and Other Legislation Amendment Act 2024 (Cth), Schedule 2 – s 12
Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No.7) 2020 (NSW)
Quality of Care Principles 2014 (Cth)
Regulatory Powers (Standard Provision) Act 2014 (Cth), Parts 6–7, s 74GD
Trade Practices Act 1974 (Cth), ss 4K, 52, 82, 86–87
User Rights Principles 2014 (Cth), Schedule 1, ss 9, 9A, 11
Cases Cited: ACCC v Singtel Optus Pty Ltd (No. 3) [2010] FCA 1272
Alan Davis Group Pty Ltd v Rivkin Financial Services Ltd (2005) 216 ALR 766; [2005] NSWSC 369
Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 1 NSWLR 561
Badenach v Calvert (2016) 257 CLR 440
Baltic Shipping Co v Dillon (1993) 176 CLR 344
BIF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 420 ALR 1
Blatch v Archer (1774) 98 ER 969
Browne v Dunn (1893) 6 R 67
Century Legend Pty Ltd v Ripani [2022] FCAFC 191
Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 418 ALR 304
Chappell as executor of the Estate of Robert
Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd (2005) 93 SASR 179
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
Demagogue v Ramensky (1992) 39 FCR 31
Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Gett v Tabet [2009] NSWCA 76
Grant v Australian Knitting Mills Ltd [1936] AC 85
Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530
Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205
Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1
Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526
Jones v Dunkel (1959) 101 CLR 298
Jones v Scully (2002) 120 FCR 243
Lucantonio v Kleinert [2009] NSWSC 85
Marks v GIO Australia Holding Ltd (1998) 196 CLR 494
Moore v Scenic Tours Pty Ltd (No. 2) [2017] NSWSC 733
New South Wales v Stevens (2013) 83 NSWLR 106
Protec Pacific Pty Ltd v Stryker Services GMBH & Co KG [2014] VSCA 338
Provectus Care Pty Ltd v Epicore Software Aust (Pty Ltd) [2009] NSWSC 1281
Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66
Rogers v Whitaker (1992) 175 CLR 479
Rosenthal v The Sir Moses Montefiore Jewish Home (No 2) (Unreported, Supreme Court of New South Wales, Young J, 31 August 1995)
Scenic Tours Pty Ltd v Moore (2018) 339 FLR 244; [2018] NSWCA 238
Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20
Structum Pty Ltd v Bailios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119
The Ntf Group Pty Ltd v Pa Putney Finance Australia Pty Ltd [2017] NSWSC 1194; (2017) 324 FLR 261
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Wotton v Queensland (No. 5) (2016) 352 ALR 146
Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited: Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123)
I Ayers and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992)
J Carter, Contract Law in Australia (8th ed, J W Carter Publishing Pty Ltd, 2023)
J D Heydon, Cross on Evidence (online version, Lexis Nexis)
J D Heydon, Heydon on Contract: The General Part (Lawbook Co 2019)
J M Paterson, Corones’ Australian Consumer Law (4th ed, Lawbook Co 2019)
E Peden, Australian Law of Contract (online version, Westlaw Australia, Thomson Reuters)
C Ronalds and E Raper, Discrimination Law and Practice (5th ed, Federation Press, Ebook)
C Sappideen et al, Fleming’s The Law of Torts (11th ed, Thomson Reuters 2024)
Category: Principal judgment
Parties: Mr Man Hay Lau (Plaintiff)
Anglican Community Services (ABN 39922848563) (Defendant)
Representation: Counsel:
Mr M Klooster (Plaintiff)
Ms E Elizabeth (Defendant)
Solicitors:
Longton Legal (Plaintiff)
Barry Nilsson (Defendant)
File Number(s): 2023/00424282
Publication restriction: Nil.
Reasons for judgment
Introduction
Factual background
Undisputed or uncontroversial general facts
The action for breaches of contract
The resident agreement & other developments
Pleaded implied terms
The regulatory context
Quality of care
The rights of users
Comparing the statutory obligations with the contractual obligation
The standards of contractual duties
Introduction
The pleaded breaches of contract
Mr Lau
Assessment of the experts
Jones v Dunkel
Shifting evidentiary burden and the “scintilla” principle
Exposing Betty to the risk of contracting coronavirus
Lay and documentary evidence
Expert evidence
Concurrent evidence
Submissions
Consideration
Failing to perform blood tests on a fortnightly basis
Clarifying the complaint
Lay and documentary evidence
Expert evidence
Submissions
Consideration
Failing to administer Arginaid
Lay and documentary evidence
Expert evidence
Submissions
Consideration
Failing to nurse Betty on alternating pressure air mattress
Mr Lau’s contentions
Lay and documentary evidence
Expert evidence
Concurrent evidence
Submissions
Consideration
‘Overdosing’ of Parkinson’s medication
Mr Lau’s contention
Causing or allowing Betty to choke
Lay and documentary evidence
Expert evidence
Concurrent evidence
Submissions
Incorrectly managing Betty’s medication
The pleading
Generally mistreating Betty
Particulars of asserted mistreatment of Betty
Lay and documentary evidence
Calling the police
Stopping Mr Lau’s administering food and medications
The purple-coloured urine
Expert evidence
Calling police
Stopping Mr Lau feeding and administering medications to Betty
The bags of purple-coloured urine
Submissions
Calling the police
Not allowing Mr Lau to administer food or medication any longer
The urine bags
Consideration
Calling the police
Stopping Mr Lau from feeding and administering drugs to Betty
Responsiveness to purple-coloured urine
Positioning of Betty’s eyeglasses
Mistreating Mr Lau
Particulars of mistreatment
Lay and documentary evidence
Submissions
Consideration
Summary
the statutory action
Introduction
The consumer guarantees
Statutory provisions and concepts
The pleading of the care guarantee
What were the ‘services’?
The pleaded non-compliances with the consumer guarantees
Evaluating the suggested non-compliances
Submissions
The delayed provision of the APAM
Failure to administer Arginaid
Purple-coloured urine
Exposure to COVID
Fortnightly blood tests
Overdosing
Changing the practice of who feeds Betty and administers medication to her
Summary
Relief
The pleading
The statutory provisions in the ACL
The District Court’s jurisdiction to order a public apology under s 237
The District Court’s power to order a public apology
Pre-conditions to exercise of power
First requirement: application by a person who has suffered or is likely to suffer loss or damage
Second requirement: the order must be appropriate to compensate
Discretionary matters
The value of apologies in ordinary life
Circumventing the enforcement by the regulator of aged care providers
Other contexts in which apologies appear
Other arguments raised by Mr Lau
Orders
For well over 40 years, the plaintiff, Mr Man Hay Lau, had a loving relationship and marriage with his now deceased wife, the late Betty Wai Chan (who, following the course taken by Mr Lau, and without disrespect, I will henceforth refer to as ‘Betty’), until her passing on 16 July 2022. Sadly, for most of the period that he knew her, Betty was afflicted with Parkinson’s disease.
By 2020, Betty was so ill that she needed to go into an aged care home respite facility. Between 25 September 2020 and 27 June 2021, after a period of about one month’s stay in the Sydney Adventist Hospital, she was a resident in a high care facility at the Donald Coburn Centre (T****DCC or Centre). This facility was owned and operated by the defendant, Anglican Community Services (Anglicare) in Castle Hill. It was admitted on the pleadings that Anglicare is a charity registered with the Australian Charities and Not for Profits Commission. [1]
Mr Lau has a litany of complaints about the quality of the treatment that Betty received whilst she was a resident at this facility. Certain complaints he brought on or about 18 January 2021 triggered an investigation by the Aged Care Quality and Safety Commission (the Commission). The Commission completed a review around July 2021 and indicated its outcome as determined by a delegate of the Commission. Mr Lau sought a reconsideration of decisions of a delegate of the Commission and affirmed the delegate’s decisions on or around 20 April 2022.
Mr Lau was dissatisfied with the outcome of the Commission’s investigation. On 23 November 2023, he commenced this proceeding. By his pleading (as amended) he brought actions for damages in contract for asserted serial breaches and in negligence; and also claimed relief under the Australian Consumer Law [2] (‘ACL’) arising from asserted serial non-compliances with the consumer guarantees in ss 60 and 61(1) and (2) of the ACL. The relief claimed in the ASOC for the statutory action was an order for compensation under s 267(3) of the ACL and an apology under s 243 of the ACL.
It is not disputed that Mr Lau has standing to bring the claims in general law. The position under the statutory action is different: Anglicare disputes any entitlement in him to seek relief under the ACL.
On the morning of the first day of the hearing, Mr Lau’s Counsel acknowledged (T 2.13) that Mr Lau could not point to any ‘substantial impact’ on Betty’s life expectancy or circumstances arising from the asserted breaches of contract or non-compliances with the consumer guarantees. Accordingly, Mr Lau’s action for damages in negligence was abandoned. Moreover, Mr Lau abandoned any claim for substantial damages (under the general law of contract) or for compensation (under the ACL). He conceded that he could not prove that any ‘loss’ or ‘damage’, sounding in an entitlement to substantial damages, was caused by the breach or breaches of contract; and/or because of non-compliance with the consumer guarantees.
(a) the District Court has jurisdiction to grant relief to Mr Lau in the form of a public apology under ss 237 and 243 of the ACL; (b) (if so) the Court is empowered to make such order at Mr Lau’s behest; and (c) (if it does have jurisdiction and is so empowered) the Court should, in its discretion, order a public apology in the terms sought by Mr Lau.
Mr Lau first met the deceased in early 1978. Betty became the love of his life. In 1980, Betty received the diagnosis of Parkinson’s disease. By 1990, her symptoms had worsened to the point where she found it difficult to work as a computer programmer.
On 2 February 2002, Mr Lau married Betty.
On 24 June 2004 Betty executed an enduring power of attorney appointing Mr Lau as her attorney immediately. She also executed an enduring guardianship appointing Mr Lau as her guardian in the event that she became partially or totally incapable of managing her person. Mr Lau was also appointed as the executor in her will. There was no disputed about the validity of these transactions. Mr Lau later provided copies of the power of attorney and his appointment as enduring guardian to the officer of the Anglicare care information centre on 12 October 2020.
In 2020, Betty’s Parkinson’s had deteriorated to the ‘end stage’. On 22 August 2020, she was admitted to the Emergency Department of Sydney Adventist Hospital. Whilst she was at the hospital, she was unable to remain fully conscious and was unable to keep her eyes open most hours of the day. On 9 September 2020, Mr Lau informed her that she needed to go into an aged care home for respite.
On 18 September 2020 Betty received approval from the Commonwealth Department of Health to approve her for residential respite high care. An assessment summary (Ex B, 1 CB 115–16 [3] ) highlighted, amongst other things, that: she had a pressure area (Stage 3) on her sacrum, which was being treated and dressed every second day and had Mepilex on her heels; she needed ‘pressure area care’ (ie ‘repositioning’) and was on a ‘pressure mattress’; she had poor vision; she slept a lot of the day and night; and had possible visual hallucinations.
On 24 September 2020, Mr Lau attended TDCC and met the Care Manager. He provided the manager with a list of Betty’s medications and provided certain other information. This included that: blood tests should only be performed on her left arm, and that the protein supplement ‘Arginaid’ had been given to Betty to help heal the “serious” pressure sore at her sacrum area.
On 25 September 2020, Betty was discharged from the Sydney Adventist Hospital into the high care facility at TDCC as a respite patient. She remained as a respite patient until about 23 October 2020, when she commenced residency as a full-time occupant.
On 15 October 2020, a formal residential agreement was entered between Betty and Anglicare for full-time residential agreement. I will address material terms of that agreement later in these reasons. Betty entered into the agreement by Mr Lau, exercising his powers. An issue which has arisen throughout the proceeding is the extent of her capacity to make decisions concerning her treatment and care for herself.
“I absolutely agree with you that Betty’s condition now is much better than when she first came to TDCC in late September.
I have repeatedly thanked the staff of TDCC, in particular Dee and Christina, for taking good care of Betty.
… I think Betty’s improvement is overwhelmingly due to the 24-hour care of her by various staff at TDCC.”
Later that evening (8:46pm), Mr Lau sent an email in response in which, amongst other things, he expressed his attitude that he did not really care what Dr Fashka said. He also stated that he was not overtly concerned about a GP looking after Betty, since her health had been very stable “thanks to everyone in TDCC”. Further, he added that he did not trust what he called the “rubbish” assessments that might be made by a psycho-geriatrician.
On 12 March 2021, Ms Dee Banton completed an End of Life Pathway form, ticking off a range of indicia of the symptoms associated with commencement of the last phase of life.
On 8 April 2021, Betty was discharged from the Sydney Adventist Hospital and went back to TDCC.
On 9 April 2021, it was noted by TDCC that Betty had cognitively declined due to her Parkinson’s disease.
By 30 September 2021, Betty required full assistance in all activities in her daily life (‘ADLs’). Dr Fashka sent a letter to the Dural House (Thompson Aged Care facility) in which, in addition to referring to her Parkinson’s disease, catalogued her other conditions. He described her as being bedridden and stated that she could not eat or toilet by herself and could not take medication.
After her death on 16 July 2022, her death certificate listed four causes of death: Parkinson’s disease, Type 2 diabetes (the first two being ‘chronic conditions’) COVID-19 and cardiorespiratory arrest (the last two being ‘acute conditions’). She had been infected with COVID for 9 days prior to her death. Counsel for Mr Lau disclaimed any suggestion that her treatment in the TDCC resulted in her contracting COVID-19 there.
Probate was granted to the will on 21 February 2023 with Mr Lau appointed as legal representative of Betty’s Estate.
On 15 October 2020 a resident agreement was entered as between Betty and Anglicare for her stay at TDCC (the agreement appears at Ex B, pp 129–180). Betty’s husband was identified as her Guardian. He executed the resident agreement on her behalf on this date. The obligations became operative from 23 October 2020.
It was common ground that what I will call ‘respite services’ were provided from 25 September 2020 to 23 October 2020. The services under the resident agreement were provided from 23 October 2020 to 27 June 2021.
The Recital C to the Resident agreement indicated that what was provided was “Accommodation Services” and “Care Services”. There were also “Additional Services” for such services as the provision of food and recreational activities.
The resident agreement comprised multiple schedules. The schedules that were referred to by the parties for the purposes of this proceeding were:
Provisions – Background & Operative Provisions
Schedule 5 – Accommodation Services
Schedule 6 – Care Services
Schedule 9 – Charter of Aged Care Rights
Clause 5.1 dealt with ‘resident representatives’. Mr Lau was such a representative for Betty. Amongst other things, he had warranted that he entered into the resident agreement on her behalf where she was unable to enter into it because of mental or physical incapacity (cl 5.1(b)).
Clause 6 dealt with the parties’ rights and responsibilities. Clause 6.1 provided that:
“We and You will each observe and act in accordance with the Charter of Care Recipients’ Rights and Responsibilities as set out in Schedule 9 of this agreement.”
For the purposes of clause 6.1, “We” was a reference to Anglicare and extended to include any of its managers, officers, agents and employees”. “You” meant ‘the Resident’. The “Resident” meant the person occupying the Accommodation at the Care Facility and the person to whom the Accommodation Services were provided. Conspicuously, “You” did not extend to include the Resident’s Representative, Mr Lau. In this way “You” simply meant Betty.
Contrary to what was foreshadowed in cl 6.1, what was set out in Schedule 9 was entitled ‘Charter of Aged Care Rights’. Counsel for Mr Lau identified the pertinent ‘rights’ that his client relied upon being:
“1. safe and high-quality care and services;
2. be treated with dignity and respect;
…
4. live without abuse and neglect;
5. be informed about my care and services in a way I understand.
- access all information about myself, including information about my rights, care and services
…
8. have control over, and make decisions about, the personal aspects of my daily life, financial affairs and possessions
….
- be listened to and understood.
11. have a person of my choice, including an aged care advocate, support me or speak on my behalf
12. complain free from reprisal, and to have my complaints dealt with fairly and promptly.”
“Consumers
As a consumer, you have the option of signing the Charter of Aged Care Rights (the Charter). You can receive the care and services even if you choose not to sign.”
(a) not to do anything to put Betty’s life at risk (ASOC, sub-paragraph 6(b)); (b) not to physically abuse Betty (ASOC, sub-paragraph 6(c)); (c) to exercise reasonable care and skill when caring for Betty (sub-paragraph 6(d))
Part 4.1 of the Aged Care Act is titled ‘Quality of Care’.
Section 54-1(1) of the Aged Care Act, at the material times, relevantly stipulated the following obligations:
“(a) to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;
… (c) to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles (relevantly) for the purposes of s 56-1(m),
(d) to comply with the Aged Care Quality Standards made under s 54-2;…”
Section 54-2 of the Aged Care Act indicates that it is the Quality of Care Principles which may set the ‘Aged Care Quality Standards’. These are the “standards of care and quality of life for the provision of aged care”.
A residential care recipient relevantly includes a person who receives residential care, or flexible care provided in a residential setting, in respect of which the provider is approved and is approved under Part 2.3 as the recipient of the care: Aged Care Act, s 54-3. [4] Betty was one such person.
The Quality of Care Principles are made by the Minister, by legislative instrument (Aged Care Act, s 96-1). Some of the provisions of the Quality of Care Principles referred to by the parties were:
Section 4A defined ‘consumer’ as:
“(1) ... a person to whom the approved provider provides, or is to provide, care through an aged care service (and)
(2) ... a reference to the representative of the consumer, so far as the provision is capable of applying to a representative of the consumer.”
It was not disputed that Mr Lau was a ‘representative’ of Betty (as that term is defined in s 5 of the Quality of Care Principles).
(a) Standard 1: consumer dignity and choice, to Betty and Mr Lau (b) Standard 3: personal care and clinical care, to Betty (c) Standard 5: organisation’s service equipment, to Betty (d) Standard 6: feedback and complaint, to Betty and Mr Lau (e) Standard 7: human resources, to Betty (f) Standard 8: organisational governance, to Betty and Mr Lau
| Standard 1 – consumer dignity and choice | I am treated with dignity and respect, and can maintain my identity. I can make informed choices about my care and services, and live the life I choose. | | Standard 3 – personal care | I get personal care, clinical care, or both personal care and clinical care, that is safe and right for me. | | Standard 5 – organisation’s service equipment | I feel I belong and I am safe and comfortable in the organisation’s service environment | | Standard 6 – feedback and complaints | I feel safe and an encouraged and supported to give feedback and make complaints. I am engaged in processes to address my feedback and complaints, and appropriate action is taken. | | Standard 7 – human resources | I get quality care and services when I need them from people who are knowledgeable, capable and caring. | | Standard 8 – organisational governance | I am confident the organisation is well run. I can partner in improving the delivery of care and services. |
I interpolate, at this point, that ultimately it was these ‘consumer outcomes’ in the Aged Care Quality Standards (as appropriately adapted to the nature of the complaints) that were predominantly the source of the obligations Mr Lau’s Counsel contended were breached by Anglicare. (The balance were posited breaches of the Charter). [5]
Anglicare referred the Court to some “Requirements” within these standards. Specifically, Anglicare referred to the following:
In Standard 1, the requirement that each consumer was supported to exercise choice and independence, including making decisions about their own care and the way that care and services were delivered; and an additional requirement is supported to take risks to enable them to live the best life they can;
In Standard 3, the requirement that the Organisation minimise infection-related risks through implementing standard and transmission-based precautions to prevent and control infection.
Part 4.2 of the Aged Care Act is titled ‘User Rights’. Aged care providers have certain general responsibilities to users, and proposed users, of services: Aged Care Act, s 55-1. A failure to meet those responsibilities may lead to sanctions being imposed under Part 7B of the Aged Care Quality and Safety Commission Act 2018 (Cth).
One of those general responsibilities relating to the rights of actual or proposed users obliges aged care providers “not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles”: Aged Care Act, s 56-1(m).
Section 9 of the User Rights Principles 2014 indicates that the rights of care recipients include the Charter of Aged Care Rights. The Charter of Aged Care Rights are set out in Schedule 1 to the User Rights Principles. Section 9A of the User Rights Principles also provides that an approved provider of residential care must not act in a way which is inconsistent with the legal and consumer rights of a care recipient.
Section 56-1(n) of the Aged Care Act provides that an approved provider of residential care must give a care recipient information about the car recipient’s rights under the Charter of Aged Care Rights. By s 11(2)(b) of the User Rights Principles, the approved provider must ensure that a care recipient is provided a reasonable opportunity to sign a copy of the Charter of Aged Care Rights.
In summary, it may be seen that the TDCC owed statutory obligations:
not to act in a way that was inconsistent with the Charter of Aged Care Rights (Aged Care Act, s 56-1(m)).
to provide care and services that are consistent with the User Rights Principles (and thereby the Charter of Aged Care Rights) (Aged Care Act, s 54-1(c);
to comply with the Aged Care Quality Standards (Aged Care Act, s 54-1(d))
There is a small difficulty with cl 6.1 of the Resident Agreement. It refers to the Charter of Care Recipients’ Rights and Responsibilities (emphasis supplied) as set out in Schedule 9 of this agreement. But it is not the Charter of Care Recipients’ Rights and Responsibilities which is set out in Schedule 9 of the Resident Agreement. What appears in Schedule 9 is the Charter of Aged Care Rights. This appears to be a misdescription.
In my view, the contractual obligation in s 6 of the Resident Agreement is, in substance, coterminous with Anglicare’s statutory obligations to act consistently, and not to act inconsistently with, the Charter of Aged Care Rights. The quality of care to be supplied to Betty was to be measured in accordance with the Aged Care Quality Standards. There is a substantial overlap or correspondence between what is described in the Charter of Aged Care Rights and the consumer outcomes identified in the Aged Care Quality Standards but where there is conflict as to the standard of care, in my view, the Aged Care Quality Standards prevail.
That still leaves, however, a general question regarding the strictness of standards for what are generally expressed provisions in legislative instruments.
Generally, the standard of duty of a contractual obligation under the common law may be strict or require the exercise of care, skill or diligence. Essentially, the standard of duty means the degree of care that the promisor must perform. The standard of duty of an obligation is a matter of construction [6] . Sometimes the standard is expressly set, but in the absence of that, the nature of the contract can be significant. [7] Thus, in the consumer context, in Grant v Australian Knitting Mills Ltd [1936] AC 85, where a purchaser of woollen underwear brought a suit against the retailer, it was determined (at 100) that no question of negligence was involved when considering liability for breach of the implied terms under sale of goods legislation. A practical litmus test has been described as whether the promise is to produce a result, as distinct from a promise to exercise care in bringing about a result. [8]
The Quality of Care Principles (and the Aged Care Quality Standards) and the User Care Principles (and the Charter of Rights) are both legislative instruments authorised under section 96-1 of the Aged Care Act. The Court’s task is to interpret the strictness of standards, first, in a ‘charter’ expressly incorporated in the parties’ contract when, secondly, there is a statutory obligation imposed upon an aged care provider to abide by Aged Care Quality Standards which have comparable content to rights under the charter, but in respect to which, there are other requirements as well.
In Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd (2005) 93 SASR 179, the Full Court of the Supreme Court of South Australia generally observed that:
“The fundamental principle is that where parties expressly incorporate terms into a contract, the incorporated terms must be construed as if they have been written out in full in the contract, and accordingly must be construed in the context of the contract into which they have been incorporated.”
In this case, insofar as the Resident Agreement is concerned, the term incorporated are ‘standards’ in a Charter and also Aged Quality Care Standards.
The High Court considered the nature of a “standard” in Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1. The Court referred to the ordinary dictionary meaning of the word ‘standard’ “in the relevant sense”, as being:
“A definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose: Shorter Oxford English Dictionary.”
“A standard determined for a television programme must fix the quality or nature of the programme in such a way that both the licensee required to observe the standard and the court or other body called upon to decide whether it has done so can determine whether the programme answers the criteria set by the standard. That is not to say that the test should be entirely objective, for it may involve questions of taste, but it does mean that the standard is to be found in the determination itself.”
“A standard is not a law that imposes a legal duty or creates a right. It merely sets out minimum requirements for a body to retain its licence or to retain Commonwealth funding.”
It should be noted that Standard 1.4.5(f) in the Schedule requires a licensee to ensure that “practices at the nursing home support the right of residents to die with dignity”. It could hardly be argued that this Regulation gives any right in the patient to euthanasia which could be enforced against the nursing home.
This case is distinguishable from Rosenthal. This is not just a case of an institution’s regulatory requirement to abide by standards. It is, rather, an institution’s promise (express and/or implied) to comply with standards. The Court is required to consider the strictness of the provider’s promised compliance with the standards.
In his Opening, Counsel for Mr Lau outlined that his client’s case was that the obligations upon Anglicare were ‘strict’ in nature (T 1.46, 2.15). The express obligation, to be recalled, was to “observe and act in accordance with” the pertinent clauses of the charter of rights in Schedule 9 to the agreement Mr Lau identified.
Mr Lau contended that the standard for the contractual promise – specifically the promise to observe and act in accordance with the Charter of Rights – was stricter than the legislative or regulatory requirements contained in the Aged Care Act and the then applicable Quality of Care Principles 2014 (Cth) which enshrine the Aged Care Quality Standards.
When I asked Counsel for Mr Lau the degree of strictness for the main obligation his client relied upon – the provision of ‘high quality care’ – without reference to any apparently available case authority, he said it was ‘something between reasonable (care) and less than perfection’, viewed, objectively, from the perspective of a person in Betty’s position and circumstances (T 148.26–149.19).
Anglicare contends that the standard for performance of Anglicare’s contractual obligations, including its obligation to observe and act in accordance with the Charter of Aged Care Rights, had to be viewed in the context of its statutory obligations and requirements in the Aged Care Act and the then applicable Quality of Care Principles 2014 (Cth), containing relevantly the Aged Care Quality Standards. [9]
Anglicare contends that Mr Lau’s approach, which begins and (insofar as his contract case is concerned) ends with the Charter of Rights incorporated in the Resident agreement is wrong. The proper starting point was the Quality of Care principles, with the question being whether Betty’s rights were infringed in respect of services that the provider was statutorily obliged to provide to an identifiable quality standard. In other words, if a particular service met the legislative requirements, then this was generally sufficient to satisfy the contractual obligation. If more was required under a standard in the Charter, incorporated in the Resident Agreement, Anglicare contended that there needed to be greater specificity (T 188-189).
Anglicare argues that to resort, as Mr Lau does, only to the rights under the Charter in isolation from the Quality of Care Principles could lead to incoherence (between a contractual standard and a statutory obligation) and indeterminacy. It cites the example of the right to ‘high quality’ care and services. That expression is pitched at such a high level of generality, as to be only aspirational in nature.
“.. there is a presumption that every person of full age has the mental capacity to manage their own affairs. The burden of proving to the contrary rests with those asserting incapacity.”
Anglicare also took issue, to an extent, with the power sometimes purportedly exercised by Mr Lau as guardian. It pointed to the principles in s 4 of the Guardianship Act 1987 (NSW) and, in particular, the desirability of restraint upon the freedom of decision and action of the guardian (s 4(b)) and the desirability of the views of the appointor being taken into consideration (s 4(d)). It also pointed to s 6A of the legislation, which indicated that guardianship only has effect during such period of time as the appointor was a person in need of a guardian. Anglicare generally raised as an issue whether Betty was actually in need of a guardian.
I note that some of the rights which Mr Lau says were violated were premised upon or assumed a continuing capacity in Betty to exercise them; which tends to vindicate Anglicare’s position about the limits upon the scope of Mr Lau’s guardianship power.
I would note another matter. Any service provider is limited by the constraints of finite knowledge and resources. If a resident has private arrangements with a third-party provider of services, it cannot necessarily know of them. I will touch upon this when considering the complaint about fortnightly blood tests.
An inherent difficulty is that sometimes some of the rights identified in the Charter may not be entirely compatible in their operation. Some of the issues thrown up in this case illustrate the incipient potential for incompatibility. Thus, any posited obligation to treat Mr Lau with dignity and respect may not necessarily be compatible with the obligation to treat Betty with the highest standard of clinical care in the situation where, as occurred on 15 June 2021, Mr Lau was remonstrating with the nurse’s attempt to provide prescribed medication to Betty.
Overlain with this is the separate matter of the scope of Mr Lau’s own powers to provide binding instructions on Betty’s behalf; as her attorney or guardian Potentially, his protective concern that she remain in her room, and TDCC’s consideration of his wishes, may not necessarily be legally binding in the event that it appears that Betty, in the exercise of her own autonomy, requested the opportunity to partake in recreational activities occurring outside of her room.
Further, there is no express hierarchy amongst rights in a charter, and, moreover few rights are ever completely absolute in themselves.
The standards in the Charter are aspirational yet vague in terms of their practical operation. In my view, when promising to observe and act in accordance with the Charter of Rights the Centre was, in substance, stating its promise to best endeavours to do what it could in all of the circumstances to comply with the Charter, but no more. This is a lesser standard than strict liability: Alan Davis Group Pty Ltd v Rivkin Financial Services Ltd (2005) 216 ALR 766; [2005] NSWSC 369 at [25]. [10]
The asserted breaches of contract, and the references to the ASOC, may be summarised very generally as follows:
exposing Betty to coronavirus (paragraphs 10–11);
failing to perform blood tests on a fortnightly basis (paragraph 12);
failing to administer Arginaid (paragraph 13)
failing to nurse Betty on alternating pressure air mattress (paragraph 13A);
allowing her to overdose in her Parkinson’s medication (paragraph 14);
causing or allowing Betty to choke (paragraph 15);
incorrectly managing Betty’s medication (paragraph 16);
generally mistreating Betty (paragraph 17);
mistreating Mr Lau (paragraphs 18-20).
As will be shown, there is a deal of overlapping in these categories. In his closing submissions, Counsel for Mr Lau indicated that three of the categories of complaints occurred whilst Betty was in the high care facility at the TDCC. These were categories (1), (3) and (4).
For each of these categories of complaint, there was no clear delineation in the Amended Statement of Claim of which particular contractual obligation was breached. This was left to be teased out in closing submissions at the hearing.
I consider that Mr Lau was sincere when he gave his evidence but I queried his reliability. I accept that he kept close tabs on all matters that occurred at the time that he was in the Centre and expect that he has, over time also turned over events many times in his mind. He would have done so in the course of his complaints to the Aged care regulator and again in the course of this proceeding. But that process of frequent advertence to past events does not of itself make the revival of memories any more reliable. I refer, in this regard to the recent and general observations of Leeming JA in Trustees of the Roman Catholic Church for the Diocese of Maitland*-Newcastle v AA* [2025] NSWCA 72 at [133]-[135].
Mr Lau’s projection was one of confidence in his version of what occurred. But I was unimpressed with Mr Lau’s evidence when, in the course of cross-examination, he was confronted with contemporaneous business records (usually taken to be reliable) which plainly told a different story to his narration of events. It was not so much the circumstance that he disagreed with the document, and sometimes statements in business records may themselves be unreliable; but rather his frequent refusal to accept the possible correctness of a contemporaneous account of what occurred or that he himself might have been mistaken. In my view, he demonstrated a fixity of mind, intolerant of contrary views, which was unjustified in such circumstances of his giving testimonial evidence of events years before.
As is generally the way, I am inclined to give greater weight to contemporaneous documented references of events then testimonial evidence of those who are emotionally and intellectually vested in litigation and its outcome.
Both Dr Sharp and Ms Ryan impressed me as being honest, reliable and informed expert witnesses. It struck me that such differences as existed between them might be partly generational in nature. Dr Sharp impressed as someone with firm views that had developed with long-standing experience. She seemed, with no disrespect, to be somewhat less than flexible when considering and assessing Ms Ryan’s views. Ms Ryan, who also had long-standing experience (although not to the same degree as Dr Sharp) struck me as a nursing practitioner who diligently attended to the research and was more closely attuned to the exigencies of nursing practice within aged care facilities and displayed a level of pragmatism and flexibility to practice.
It also seemed to me that Ms Ryan had more direct or recent experience of some of the events that gave rise to issues in this proceeding, including the allowing of partners to administer food or medications and drawing of blood. If pressed to express a preference, I would be more generally inclined to place greater weight upon Ms Ryan’s opinions on the reasonable practices of nursing staff in aged care facilities and the environments in which they operate. Another way of saying that was that I was inclined to think that Dr Sharp’s opinions had a tendency to represent a counsel of perfection in nursing practice.
I also consider that Dr Sharp displayed, at least in one instance, a tendency to freely express an opinion without it being demonstrated that she knew of the facts that were relevant to expressing it. This occurred, for example with the air mattress. Dr Sharp did not say that she had attended the TDCC or what was the basis for her dismissal of the possibility that the Centre used a Steiss air mattress. Whether or not such mattress was even available in Australia was a question of fact; not expert opinion.
In relation to both experts, there was a tendency for them to express opinions effectively as to what they would have done in the inherently limited setting of facts that they were asked to assume. No objection was taken to them doing so even if such objection was potentially available. [11] This tendency was demonstrated, inherently, from the prism of hindsight in a way which I thought was to a degree unfair to staff at TDCC. This was seen, for example, in the incident involving the calling of police. Expert evidence from professionals usually is of most instance to a tribunal of fact when it refers to reasonable or responsible professional practices from which the trier of fact can draw upon an external standard; not personal opinion even from those qualified to give it. The tribunal of fact’s own views may influenced, even decisively, though not compelled, by evidence of that kind.
To a significant degree, Counsel for Mr Lau drew upon extracts from Ms Ryan’s report and her evidence in the hearing in framing his submissions.
In his closing written submissions (MFI 5), Counsel for Mr Lau catalogued the many persons within the aged care facility who the defendant did not call and who, it was argued, had some connection with the ‘issues’ or more accurately complaints which Mr Lau raised. This included an Acting Care Coordinator (James Rodriguez), the Residential Manager (Jose Rigor), Lead Pastoral Carer (Christie Zipparo), two lifestyle leaders and five nurses. Conspicuously (and fairly) omitted from Counsel’s list was Ms Dee Banton, who appeared to have the most significant contact with Mr Lau of them all. Her absence was explained. Otherwise, Counsel submitted that Anglicare’s failure to adduce evidence from these persons gave rise to a clear inference that nothing they could have said could have assisted Anglicare’s case.
In an exchange with me during the course of closing oral submissions, Mr Lau’s Counsel adopted a more nuanced approach. He recognised that the circumstances in which a Jones v Dunkel inference might be drawn depended on the context (encompassing the circumstances as well as the significance of the event) and, in particular, recognised that it may be more appropriate to draw it in relation to some of the asserted breaches but not others; on a ‘sliding scale’.
This was in recognition of the circumstance that Anglicare, through Exhibit 1, did tender a large number of contemporaneous documents, as business records, which were admissible for proof of the truth of their contents, and where it might be thought unlikely or improbable that testimonial evidence from, say nurses, about particular incidents, years after the events, would be any more probative, or cogent, than what appeared on the face of the documents. Counsel singled out the issues associated with the air mattress and the purple-coloured urine as examples of where Jones v Dunkel had work to do.
Anglicare submitted that the best evidence was the contemporaneous business records which Anglicare relied upon. It was highly improbable that testimonial evidence years after the event could be more reliable. This was especially so in the circumstances where for the nursing and other staff in TDCC, at least some of the events were rather quotidian; whereas for Mr Lau they may have assumed greater significance.
A prominent theme in Mr Lau’s submissions, associated with its Jones v Dunkel submission, was that where it asserted a negative proposition, and the circumstances relevant to assessing the proposition fell peculiarly within the knowledge of Anglicare, then in the absence of evidence on the point by Anglicare, Mr Lau only needed slight proof to establish the negative. [12] In Apollo, Hunt J did not appear to go so far as to accept this ‘scintilla’ principle. His honour explained (at 565E-G) that it was more accurate to say that a claimant’s burden of proving a negative is not so difficult as it might be if the opponent has the greater means of adducing evidence which contradicts the proposition. This was an application of the principle from Blatch v Archer (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was within the power of one side to have produced and in the other to have contradicted [13] . Nevertheless, the proposition that where a matter is particularly within the knowledge of the party that does not bear the onus of proof, relatively slight evidence from the other party may be sufficient to regard the onus as satisfied unless that evidence is rebutted by evidence from the party who has that particular knowledge has come to be accepted as a separate principle to Blatch v Archer. [14] However, the legal (persuasive) burden of proof always remains with the proponent, whether or not the opponent adduces evidence on an issue. Where the opponent does go into evidence on the issue, as Anglicare did here with its documentary case (Exhibit 1), it may discharge an evidential (or tactical) burden, but that is not legally significant. [15] Then the contested question is resolved by whether the proponent ultimately can persuade the trier of fact of the proposition.
I now turn to the individual asserted breaches, taking them in the order in which they appear in the pleadings.
In his first affidavit, Mr Lau annexed a letter dated 3 August 2020 from Dr Pang detailing what Mr Lau described as Betty’s ‘compromised immunity’.
In his first affidavit (at sub-paragraph 61(a)), Mr Lau deposed that between 25 September 2020, but before 12 October 2020, he went to visit Betty in her room but discovered that she was not there. She was in fact in the chapel with other residents of the TDCC. He noticed that no one was wearing any face mask, including the pastoral staff. He also noticed that the wheelchairs in which the residents were sitting were in such close proximity as to be almost touching.
Under cross-examination, Mr Lau confirmed that he was unaware that Betty had been moved by a staff member to the Chapel of the TDCC (although he could not recall the date in question).
On 1 October 2020, at 3:40pm, Mr Lau visited Betty. He was educated in hand washing techniques performed as ‘best practice’ within the facility. He performed handwashing. He donned a mask and had been screened. He indicated he had not been to any hot spot areas (Ex 1, CB 2719).
In the same affidavit (sub-paragraph 61(b)), Mr Lau deposed that on or about 12 October 2020, he arrived to visit her in her room but she was not there. This time, he discovered her in a common area and was left unattended. She was not wearing a face mask. He observed several residents and visitors walk past her.
On 14 October 2020, Ms Banton sent an email to Mr Lau in which, relevantly, Ms Banton indicated that Betty’s care staff were informed that she should stay in her room (at Mr Lau’s request) due to her low immunity (Ex B, 1 CB 126).
On 16 October 2020, a nurse within the facility noted that Betty had ‘remained in isolation’. Two staff members who entered into her room put on full PPE before administering care (Ex 1, CB 2726).
On 6 January 2021, Ms Sue Steel-Smith, a Pastoral Carer of Anglicare, emailed Jose Rigor (and others, being Ex B, 1 CB 296)) in which she expressed her concern (conveyed to Ms Steel-Smith by Dejsha Lollar) that Betty had expressed a wish to go into the garden, but that Mr Lau said that she was not allowed to do so. Ms Steel-Smith said that prior to Christmas (2020) she herself had taken Betty to carol singing at her wish, but that Mr Lau was not happy about that decision.
On 11 January 2021, Mr Lau deposed (Ex C, paragraph 66) to having met the residential manager, Jose Rigor, informing Mr Rigor that Betty was not to move outside of her room, and expressing his position that he did not consent to her going into the garden. Mr Lau deposed (Ex C, paragraph 71) to the existence of a sign over Betty’s bed which stated that “I prefer to stay in my room”.
In his first affidavit (sub-paragraph 61(d)), Mr Lau annexed an Excel Activities spreadsheet. Materially, this indicated that on 22 January 2021, Betty had been moved to the arts and crafts meeting in the company of other residents.
“Why doesn’t Anglicare drop the nonsense of moving Betty out of her room, and the nonsense of having an assessment by a psycho-geriatrician.”
On 20 April 2021, Betty received her first COVID-19 vaccination dose.
At 8:58pm on 31 May 2021, Mr Lau sent an email to Ms Banton (Ex B, 1 CB 231) in which, amongst other things, he referred to the report that Betty had verbally given him earlier in the day; to the effect that she had been pushed to the common area contrary to her wishes to remain in her room. According to Mr Lau, Ms Banton told him that Betty had asked to be moved out of the room. Mr Lau suggested to Ms Banton that she tell all the carers not to move Betty out of her room; and added a reminder that she had told him in October 2020 that she had given them that indication.
In his first affidavit at paragraph 105, Mr Lau deposed that on or about 31 May 2021, he had a conversation with Betty on the subject of her being moved into the current area, however the admissibility of that conversation, or at least the words attributed to Betty, was limited to a non-hearsay purpose, being the fact of the conversation. He perceived however that she was looking down on her blanket when she usually acted affectionately towards him. The incident provided the impetus for him to speak to a carer, whose first name was ‘Tara’ who, according to him, said that she had made a mistake in taking Betty outside and not moving her back in to her room.
Mr Lau complained of not receiving an email in response to his email of 31 May 2021; so he sent another email on 2 June. He indicated that this was not responded to either.
On 31 May or 1 June 2021, there was an outbreak of COVID-19. Six residents experienced symptoms. An internal email message from Jose Rigor, the Residential Manager, to Ms Banton, on 1 June 2021 indicated that staff were issued with PPE and precautions were taken when providing care to the ‘residents affected’ (Exhibit F). By 4 June 2021, another affected resident had been added to the previous list of 5 affected residents.
On 3 June 2021, Dee Banton sent an email to Helen Burke (Ex B, 2 CB 563). The latter was the ‘Quality and Compliance Manager – Residential’ for Anglicare. Ms Banton had previously forwarded to Ms Burke Mr Lau’s email of 2 June 2021 at 11:19pm (at night), which was copied to various other people, and made references to investigation by the aged care regulator and court action (Ex B, 2 CB 566). In Ms Banton’s email to Ms Burke on 3 June, Ms Banton explained to Ms Burke that the ‘other day’ – which appeared to be a reference to 31 May (the last incident before that where Betty was moved contrary to Mr Lau’s wishes was 29 January) – staff had asked Betty whether she wanted to go to the lounge room and that Betty had said yes. After having monitored her (and documenting that monitoring), Betty was taken back after she had asked them to return her to her room.
On 11 June 2021, Betty received her second COVID-19 vaccination dose.
In his first affidavit, on 15 June 2021, Mr Lau deposed (sub-paragraph 61(g)) that he was in attendance in Betty’s room when a pastoral staff member (Ms Christie Zipparo) visited. Mr Lau noticed that she was not wearing a mask and got very close to Betty’s face whilst talking to her and touching her hands. He observed the staff member breathing in close proximity to Betty’s nose. Mr Lau added that he told the staff member not to do that, but she still did.
Ms Ryan had assumed that there was no COVID outbreak. It was suggested to her that if there was an outbreak, she would have expected that the infection control measures she had identified in her report would been put in place. She generally agreed with that, but not without qualification. If for example, there were different levels to a facility, and the outbreak was controlled, not every staff member on every level would need to take the precautions of those staff members on floors where the outbreak was felt.
Having been asked to assume that there was an outbreak on 1 June 2021, Ms Ryan indicated that it was unnecessary for precautions to have been undertaken prior to the occurrence of the outbreak.
There appeared to be two limbs to Mr Lau’s complaint. The first was that Bety had not been provided high care from 25 September 2020 in relation to protection of her against the risk of contracting the virus.
The second was that that Betty was not allowed to make an informed choice about whether to leave her room on 22 and 29 January 2021 in circumstances where doing so exposed her to risk. This, it was said, represented non-compliance with Standard 1 (not being able to make an informed choice about the care and services she received); Standard 3 of the Aged Care Quality Standards (not receiving personal and clinical care that was right for her), Standard 5 (Betty did not feel safe and comfortable) and Standard 8 (Betty could not have confidence in the TDCC).
Mr Lau argued that it was beside the point to say, if it be true, that Betty had the capacity to agree to move out of her room on 22 and 29 January 2021. This was because Anglicare did not prove that she was actually informed of, and understood the risks and did provide her informed consent.
Mr Lau argued that there was a dearth of evidence as to what precautions that TDCC actually took to guard against the risk of residents contracting COVID. Counsel for Mr Lau asked me to accept his client’s evidence as to what occurred in relation to the incident on 31 May in which it appeared that Betty asked to be moved back to her room.
Anglicare started by submitted that the Court should not consider the conduct on 15 June 2021, as that had not been pleaded.
Anglicare submitted that it was telling that Betty never did contract COVID-19 whilst receiving respite services or later as a resident.
Anglicare emphasised the entry of 1 October 2020 which provided evidence of the ‘system’ in place especially in relation to visitors. It argued that an inference should be inferred that this was fairly customary and that Mr Lau did not prove that these precautions were not taken on the days that Betty was moved out of her room. It also pointed to the objective fact that throughout her stay, there was no lawful requirement for her to remain in her room unless infected with the virus. [16] Further, in reality, during any outbreak, there was an inherent risk that within an aged care facility, patients might, with all the precautions available, be exposed to the risk of contracting the virus. This was so even if they remained put in their rooms – as was demonstrated when Betty caught the virus after leaving the TDCC.
Further, Anglicare argued that the risk of exposure had to be balanced against other rights Betty had, including the opportunity for recreation and perhaps even religious nourishment which would not be available if she remained hidebound in her room.
I accept Anglicare’s preliminary point that it is not open to Mr Lau on the pleadings to rely upon an incident on 15 June 2021.
I also agree with Anglicare’s submission that up to 15 October 2020, any complaint about moving Betty out of her room, exposing her to COVID, was not actionable in contract (although it may have implications for the consumer guarantee).
I accept that by 22 January 2021, TDCC staff were aware of a stipulated preference for Betty to remain in her room. I further accept that by that date, TDCC staff were aware of Mr Lau’s concurrence with that preference.
I am not persuaded however, that the acts of TDCC staff on 22 January, or for that matter, 29 January 2021, in moving Betty out of her room and interacting with other residents in arts and crafts activities meant that: (a) she did not receive the personal or clinical care that was right for her; or (b) she was made to feel unsafe or uncomfortable.
There was no evidence to sustain either assertion that Betty felt unsafe or uncomfortable on either 22 or 29 January 2021, or later in May 2021. Nor do I accept that her involvement in such activities was necessarily, or even likely to be detrimental to her personal or clinical care. To the contrary, absent evidence to the contrary, I would be inclined to expect that relatively brief involvement in arts and crafts might have been of clinical benefit to her in relieving the tedium and sameness of routine that would have accompanied any effective imprisonment in her room. Something like this notion is reflected, as indicated in the requirement in Standard 1 of the Aged Care Quality Standards of providers supporting consumers to take risks to enable them to live the best life that they can. Mr Lau did not adduce expert opinion from Dr Sharp about the reasonable standards of clinical care when providing relatively temporary recreational respite.
This leaves Mr Lau with the remaining complaint, concerning Standard 1, that taking Betty outside of her room violated her autonomy; in the sense that was what done was done without her ‘informed consent’.
Mr Lau’s Counsel did not appear to criticise TDCC staff on the basis that they had no entitlement to move her out of the room at all; as if that contravened a lawful direction he gave as Betty’s guardian. He was right not to do so. I am unable to accept that on 31 May, Betty had been moved out of her room without her consent. I am also not persuaded that she had not been moved back to her room upon her request.
The instruction above Betty’s bed, or even Mr Lau’s instruction that she not be moved was not inviolable. According to Mr Lau, Ms Banton had told him on 31 May 2021, that Betty had asked to be moved out of her room. I treat this as something analogous to an admission against Mr Lau: the instruction that she remain in her room was not sacrosanct. There was nothing to show that Betty did not have the capacity to override Mr Lau’s wishes in this respect if she wished. This was consistent with what Ms Banton herself told the TDCC quality and compliance manager on the same date. Mr Lau did not suggest that his preference that she remain in her room prevailed over Betty’s request to be let out, at least on that occasion, that she move out of the room.
Mr Lau clarified that his complaint was centred upon the frequency of blood testing from 14 January 2021, which represented a narrowing of what had been pleaded (ASOC, 12(b)). He had expressed additional concerns also about the arm in which Betty’s blood was taken and the level of haemoglobin that was present, but those concerns were not pursued in closing oral argument, or if they were, they were abandoned.
By its Defence (paragraph 8(c)(i)), Anglicare admitted that Betty was required to undergo regular blood tests due to the risk of her haemoglobin dropping; which might result in a need for blood transfusion.
On 7 January 2021, a blood test was undertaken.
On 14 January 2021, a blood test was undertaken.
On 19 January 2021 (at 10:06am), Ms Christina Castle, a Care Coordinator at TDCC emailed Mr Lau blood results for Betty and a ‘Wound CNC Review’. The blood results were from the test (identified as occurring on 15 January – not 14 January) and noted that Betty’s (sacrum) wound had decreased in size (Ex B, 2 CB 581-2).
On the same day (at 10:34am), Mr Lau sent an email to Ms Castle (copied to Ms Banton) in response (Ex B, 2 CB 581). He appeared to contemplate, with equanimity, that the frequency of blood testing could be altered to two or three weeks. He later said in cross-examination that he was upset that it was not taken every two weeks.
On 19 January 2021 (at 1:51pm), Dr Fashka sent an email to Mr Lau (Ex B, 2 CB 580). In that email, the doctor indicated that Betty’s haemoglobin and iron level was improving, that she was comfortable with her symptoms being reasonably managed. In the circumstances, those responsible for her care did not see any indication for testing her blood weekly and projected that Medicare was unlikely to fund blood tests at that level frequency. Dr Fashka referred to Mr Lau’s agreement to do the blood test privately and to pay for it. Dr Fashka added that, so far as he was concerned, the relationship of trust and confidence he had with Mr Lau was not there anymore.
On 19 January 2021, Mr Lau sent an email to Dr Fashka and various other persons within Anglicare seeking to arrange for a general practitioner to write up blood test results and arranging for Laverty to perform tests and issue results for them within 24 hours.
On 20 January 2021, Mr Lau sent Dr Fashka an email (Ex B, 1 CB 578) in which he effectively argued with Dr Fashka about the practitioner’s view of the frequency of testing. He implicitly foreshadowed bringing a complaint about Dr Fashka to the Aged Care Quality and Safety Commission.
On 21 January 2021 Dr Fashka met with Mr Lau. He subsequently sent him an email confirming the points discussed in the meeting (Ex B, 1 CB 201-202). One of those concerned blood tests, although the email was no more specific than that.
On 29 January 2021, Dr Fashka prescribed fortnightly blood tests (Ex B, 1 CB 222). Mr Lau deposed that this was the first time Betty had a fortnightly blood test after moving to the TDCC. In cross-examination, Mr Lau was taken to this document and disputed that he had privately made the request for a fortnightly blood test at his expense separately to the care provided by Anglicare. Mr Lau’s attention was drawn to the handwritten note on the document “Private”. It was suggested to him that he knew that the expense was not subsidised by government. He said he did not read that note.
Mr Lau submitted that there was a failure by staff to adhere to Dr Fashka’s direction of 29 January 2021. This was significant in light of Anglicare’s admission that regular blood testing was required due to Betty’s risk of her haemoglobin dropping and prospective need for blood transfusion.
He submitted that this conduct amounted to a failure to comply with Standards 3 (in that Betty did not receive the personal and clinical care that was safe and right for her), 7 (in that Betty did not receive quality care and services when she needed them) and 8 (in that Betty could have no confidence that TDCC was run well) of the Aged Care Quality Standards.
Anglicare submitted that Mr Lau had proven only one instance of not conducting a fortnightly blood test. But it pointed to constraints upon its capacity to perform the obligation. TDCC was not responsible for taking blood. Although the testing was to occur at the TDCC, for that to occur, Betty was dependent upon a third party (the doctor) who was ‘off-site’ – not TDCC staff - to request it of the pathology providers, 4cyte and Douglas Hanly Moir. Mr Lau did not assert or seek to prove that TDCC should be liable for the doctor’s omission to perform the test and, in any event, it was not shown that the tests were necessary.
Anglicare submitted that a ‘one off’ instance of blood not being tested was not something for which it was liable in contract.
I accept that TDCC was on notice of the significance of blood testing generally, and Mr Lau’s attitude towards regular testing more particularly.
I also find that there was only a singular instance that the testing did not occur after 29 January 2021.
However, regardless of the Centre’s obligation to provide high quality care to Betty (for the purpose of Standards 3 & 7), there was nothing to indicate any acceptance of responsibility on its part to arrange for blood testing. This was Dr Fashka’s domain and it was obvious that Mr Lau looked to Dr Fashka under private arrangement, independently of the Centre.
It is possible that there may have been a lack of communication between Dr Fashka and the Centre, but there is no real evidence before the Court that pointed to the practices, in terms of responsibility, for lines of communication between a practitioner under a private arrangement and an aged care facility, to monitor the frequency in which blood tests are taken and ensure that they are taken in accordance with the private arrangement between practitioner and patient.
In the circumstances, I am not persuaded that Anglicare is responsible for the singular instance of blood testing being out by 5 days (ie testing occurring over 5 days from the stipulated period of 14 days) and therefore in breach of the Standards as alleged by Mr Lau.
Arginaid is a plant-based nutritional supplement often recommended to support wound healing.
In his first affidavit, Mr Lau deposed (paragraph 32) to Ms Megan McEwan, a dietician at the Sydney Adventist Hospital, visiting Betty there on 27 August 2020 and giving her a protein supplement, called ‘Arginaid’ to help her with a pressure sore at her sacrum area.
On 24 September 2020 Megan McEwan conducted a dietician assessment report (Ex B, 1 CB 110). Arginaid was noted as an oral nutrition supplement as part of the plan for Betty. Within a list of medications for Betty apparently generated on 21 September 2020 (Ex B, 1 CB 111), a handwritten annotation ‘Arginaid (protein supplement)’ appeared with the additional annotation concerning the frequency she would receive it (twice a day with lunch and dinner).
In his first affidavit, Mr Lau deposed to providing the list of medications (with the reference to Arginaid) to Ms Banton on 24 September 2020.
Anglicare concedes that Betty did not receive Arginaid until at least 5 June 2021.
Under cross-examination, Mr Lau said that he raised with Ms Banton requirement to take Arginaid when Betty was admitted to TDCC. It was not prescribed by any doctor.
Anglicare refers to Christina Castle’s email of 19 January 2021, which referred, relevantly to a wound review (Ex B, 2 CB 581). This was observed to have decreased in size.
In her report, Ms Ryan observed (at paragraph 4.26) that a competent nurse was expected to administer medications and supplements according to the treating doctor’s orders.
In the course of the concurrent evidence, Ms Ryan acknowledged the limit of the information she was provided on this topic. She had not been supplied, for example, with Mr Lau’s affidavits.
Mr Lau submitted that the Court should find that Arginaid was not supplied until 19 June 2021. Anglicare did not explain its omission to administer it before then. The Court should also find, and can only find, that the dietician’s recommendation that Betty use this supplement had not been conveyed to Betty’s general practitioner.
This meant that there was a non-compliance with Standard 3 of the Aged Care Quality Standard (as Betty did not receive the personal and clinical care that was safe and right for her), Standard 7 (as Betty did not received quality care and services) and Standard 8 (as Betty could have no confidence that TDCC was run well).
Anglicare accepts that Betty did not receive Arginaid until at least 5 June 2021. Nevertheless, the supplement was not a prescription; even if it was part of a ‘plan’ by the dietician (who TDCC did not employ). There was no evidence that TDCC could provide it without a prescription. Recognising as it did Ms Ryan’s evidence about what a competent nurse would do in administering supplements, Anglicare invited the Court to infer that this did not occur because of the absence of a formal prescription. It was pointed out that the supplement was not referred to in the discharge summary from Sydney Adventist Hospital.
I understood Anglicare to submit that Mr Lau could have done more to bring the matter more emphatically to the attention of staff.
There was no evidence that the failure to provide Arginaid impacted upon Ms Chan: nothing to suggest that it held back the improvement to the wounding. It was noted on 19 January 2021 the wound was observed to have reduced in size.
I accept, on balance, Mr Lau’s evidence that he had raised with Ms Banton the list of medications, and also Arginaid, when he spoke to her on or about 24 September 2020. I also agree that there was no explanation supplied by Anglicare as to why the supplement had not been administered to Betty before June 2021.
In my view, this did amount to breaches of the Standards 3 and 7 of the Aged Care Quality Standards and obligation under cl 1 of Schedule 9 of the Charter. The Centre was on notice of this supplement, even if it had not been prescribed by a doctor. Ms Ryan indicated that the obligation of a nurse was not just to arrange for prescriptions but also supplements brought to the attention of nursing staff. In circumstances where Ms Banton was, as I have found, aware of the supplement, if that requirement or recommendation was not conveyed to the people within the centre it should have been conveyed to, then this was a failing on the part of the Centre. The unexplained omission until June 2021 did not satisfy the standard of the provision of quality care (let alone high quality care), for the purposes of Standard 3.
I consider that the standard in Standard 7 of providing care that was “safe and right” for the patient are separate requirements. Arginaid was safe for Betty and ‘right’ for her in the sense that it was suitable. Not administering that supplement to her amounted to a falling short of Standard 7.
I am also satisfied that a breach of Standard 8 was made out. Properly construed, I take the Standard to assume that the patient is aware of a particular event, and considers the patient’s likely state of mind when the patient becomes so aware. Neither Betty nor Mr Lau were aware of the omission until June 2021. By then they would have been aware that Betty had not been administered a supplement that the Centre knew she had been given for many months; in circumstances where there was no explanation (let alone a good explanation) for that turn of events.
The words in the standard “run well” have work to do as well. For a patient to form a view that because something did not go right, there was something wrong with the Centre’s operations as a whole is a large conclusion. It depends upon the materiality of an event. I think that if a prescribed medication was not administered, on one or more occasions, then I suspect that upon the revelation of that event, it could give rise to a view that the Centre was not well run. The failure to administer a supplement prescribed by a dietician is not necessarily of the same order. Nevertheless, the circumstance that the supplement was not administered for so long suggests that something had gone wrong.
Mr Lau contends that on and from 25 September 2020, Betty was not placed on an Alternating Pressure Air Mattress (APAM).
Alternatively, should it be found that she was placed on an APAM on 28 September 2020, he contends the delay in supplying this particular mattress was in breach of the same obligation. He says he was not informed of this omission and was not informed that she needed to be repositioned every 2 hours.
To reiterate, Betty received respite care from Anglicare from 25 September to 28 September 2020. She was treated as a resident from 23 October 2020.
Mr Lau accepted that on 22 August 2020, when she was admitted to the Sydney Adventist Hospital, Betty had a pressure sore on her sacrum area and that she still had it when she was admitted to TDCC. In his first affidavit, Mr Lau described it as a “serious” pressure sore.
Under cross-examination, it was suggested to Mr Lau that the services Betty received in respite care at TDCC for a period (about a month) prior to her becoming a full-time resident were essentially the same as she received when she became a full-time resident. Mr Lau said no, although he later accepted that whatever status she had, she received the same nursing, accommodation and food services.
On 18 September 2020, as part of an application for Betty to access respite and residential care services to the Commonwealth Department of Health, Betty had been relevantly assessed as having a Stage 3 pressure ulcer on her sacrum. It was suggested that she needed ‘pressure area care (repositioning) and is on a pressure mattress’ (Ex B, 1 CB 116).
On 28 September 2020, registered nurse Navjot Kaur prepared a skin integrity assessment (Ex B, 2 CB 464Z). This appeared to be on a prescribed form. The relevant part of this appeared as follows:
| Pressure relieving aids Staff to provide in alternating pressure-relieving mattress, Staff to check that it is functioning each shift Staff to provide a constant pressure-relieving mattress, Staff to check that it is functioning each shift | | Other type of pressure relieving device not listed above PHYSIOTHERAPY: Betty is on Steiss alternating air mattress due to high risk of developing pressure injury. The setting is 70kg according to her current weight. Air mattress is functioning well. Betty has been provided with heel protectors and tub chair for pressure care needs. |
On 17 October 2020 at 8:40pm an unidentified registered nurse noted that Betty was observed resting in bed, and the air mattress was ‘actively working’ (Ex 1, CB 2727).
Mr Lau was asked whether he was aware that on 17 October 2020, he had been placed on an alternating pressure mattress. He said he was not; although he accepted that he had no way of knowing since he could not see the mattress.
In cross-examination, Mr Lau was shown a document (Ex 1, CB 2726), which featured two entries, one for 17 October 2020 and the other for 18 October 2020. He said he had not seen that document previously. Having been shown it, he adhered to his evidence that by 17 October 2020, Betty had not been placed on an alternating air mattress. He accepted that Betty had not been admitted as a resident of TDCC until 23 October 2020.
On 30 October 2020, Robyn Hammond, of the Sydney Adventist Hospital, completed a Wound Consultant Assessment report (Ex B, 2 CB 468-9). Ms Hammond observed that Bettys’ sacral pressure was now ‘unstageable’: it was a Stage 4. The wound had deteriorated since the last review with increased depth and undermining. Specifically, the depth of the wound was 16mm (having previously been 15mm). In the row concerning ‘Intervention’, concerning planning, there was reference to “air mattress for bed and chair”.
On 2 November 2020 at about 3:20pm, an unidentified registered nurse observed that as Betty was resting comfortably in bed, the air mattress was “actively working” (Ex 1, CB 2732-2733). The same notations were made on 7 November 2020 (Ex 1, CB 2736), 8 November 2020 (Ex 1, CB 2737), 10 November 2020 (Ex 1, CB 2737). On 23 November 2020, it was noted that the air mattress was “on and working” (Ex 1, CB 2747)
On 4 December 2020, a physiotherapist noted an attendance on Betty in Mr Lau’s presence (Ex 1, CB 2752). The notation indicated that the physiotherapist had indicated that Betty had a Steiss air mattress which was functioning well, with the setting according to her body weight. There were no signs that it was faulty or dysfunction. It was explained that the current mattress was good for pressure care (in addition to regular positioning).
On 18 January 2021, a Registered Nurse Yuteng Chang wrote a letter reporting to Betty’s general practitioner, in which she noted that the wound was a cavity with a depth of one centimetre.
Another skin integrity assessment was performed on 2 June 2021 by Registered Nurse KC Prechya who appeared to insert the original information that day (with Acting Care Co-ordinator James Rodriguez providing input later on 17 June 2021 (Ex B, 2 CB 506-7). The document shows the same form was used as the one which appeared for 28 September 2020.
In the corresponding table for the June 2021 skin integrity assessment, exactly the same information was given for the top row as it had for the assessment for 28 September 2020. So far as the information for the bottom row was concerned, substantially similar information was contained as it had for the assessment on 28 September 2020; the only difference being that the setting was on 40kg.
Dr Sharp opined that not all air mattresses provided pressure relief and an APAM was essential given Betty’s condition, from the moment Betty was admitted.
Ms Ryan noted that there were three different kinds of mattresses. These were: (1) a standard mattress; (2) an air mattress; and (3) an alternating pressure mattress. Ms Ryan explained general purpose mattresses could contribute to preventing injury, more advanced options like air or alternating pressure mattresses provided continuous pressure relief through dynamic surface adjustments and may be necessary for high risk residents.
Ms Ryan assumed that on 28 September 2020, Betty had been provided with a Steiss Alternating Air Mattress (with heel booties, and a pressure relief tub chair).
Ms Ryan contrasted the features of an APAM from an air mattress. The former moved the cells in a person’s body to relieve pressure. The latter served only to reduce the pressure; without actually moving the cells. She acknowledged that it would be desirable to use an APAM but it depended on practicalities. Sometimes APAMs had to be specially brought in, or were delayed in brought in so that all that could temporarily be provided to the patient was an air mattress. If an APAM was unavailable, an air mattress would suffice. She indicated that if an APAM was not available, it was desirable to obtain one within a few days.
It was suggested to Ms Ryan that given the severity of Betty’s wound, she was exposed to the risk of tissue damage if she was not moved every half an hour. Ms Ryan answered that this depended on several variables, such as her weight and the frequency that she was positioned on her side.
Dr Sharp maintained that if Betty was not put in an APAM immediately, she could have developed pressure ulcers within half an hour. She inferred that no APAM had been given to Betty within the first few days: a telltale sign of an APAM is the observation and hearing of a motor and this was missing. She expected that it would be a matter of course for aged care facilities to have APAMs.
Dr Sharp was referred to the nurse’ note of 17 October 2020 (Ex 1, CB 2726). Initially, she accepted as probable the contention that it an air mattress was observed to be actually working, that would probably be a description of an alternating air pressure mattress (T 113.40, 114.42). She had earlier agreed that an ordinary air mattress did not ‘actively work’ – it was just ‘inflated’ (T 113.30) but then Dr Sharp appeared to backtrack: it depended on the type of mattress. Ms Ryan was drawn to the same note. The experts eventually agreed that this was ambiguous: it might have been a reference to an APAM, but it might just have been a mattress (T 118.45–119.15).
The experts differed on the issue of positioning, or re-positioning of a patient in a comparable position to Betty. This was significant to the extent that this would be an additional means of relieving pressure on the wound. Dr Sharp did not consider that moving Betty on to her side would be effective to relieving pressure on her wound.
Both experts sharply disagreed that moving a patient every two hours. Dr Sharp considered it ‘abusive’. Ms Ryan did not. Dr Sharp was also adamant that any repositioning of Betty should not occur whilst she was sleeping. The latter considered that even with an APAM, such repositioning was necessary every couple of hours. Ms Ryan acknowledged that moving of a sleeping patient would inevitably be disruptive; but so too was a wound in the process of healing. She had observed some patients sleep through repositioning and, at least at nighttime, movement could be restricted to every four hours.
Mr Lau submitted that, first, the Court should find that Betty was not placed on an APAM on 28 September 2020. Mr Lau did not know what mattress she was placed on. Neither did Ms Ryan: she only assumed that she was placed on a Steiss alternating mattress on 28 September 2020. However, Dr Sharp said that Steiss was not a distributor of alternating air pressure mattresses in Australia and that evidence was unchallenged. There was within the defendant’s records, a recommendation to obtain such a mattress which would not have been made if one had been provided. The resident agreement did not indicate a need for APAMs (but rather referred to water and air mattresses).
Further, in circumstances where the plaintiff is require to prove a negative proposition when the information peculiarly lies in the defendant’s knowledge, Mr Lau surmounted that hurdle. In this way, Mr Lau invoked the ‘scintilla’ principle I alluded to earlier in these reasons. Further, and related to the last point, the defendant did not document the type of air mattress – the experts’ evidence was that the entry on 17 October 2020 about an ‘actively working’ mattress this was ambiguous. Also, the Jones v Dunkel inference could be drawn from the failure to call staff, who would likely have observed or known what mattress she was on, or the policies or procedures that Anglicare adopted in determining when different types of mattress were to be used, that their evidence would not have assisted Anglicare.
Secondly, subsequent to 23 October 2020, Mr Lau contended that Betty had not been provided with an APAM. Mr Lau referred to the skin integrity assessment report of 2 June 2021 and says that this did not itself identify whether the Steiss mattress was an APAM. It again seeks a Jones v Dunkel inference on the issue.
Thirdly, Mr Lau submitted that both experts agreed that the use of an APAM was required. It was superior in quality, since this form of mattress adjusted to the patient’s body. An air mattress was not as effective. In the circumstances this established Mr Lau’s contention that ‘high quality care’ was not provided.
Mr Lau contends that this conduct gave rise to a breach of the promise of ‘high quality care” under the Charter.
Fourthly, and alternatively, if the Court found that the mattress supplied on 28 September 2020 was, indeed, an APAM, then the evidence indicated that there were four days where Betty was not on such a mattress and Dr Sharp expected that Betty would have experienced four days of unrelieved pressure over her sacrum and buttocks. Mr Lau relied upon Dr Sharp’s evidence about the speed at which pressure ulcers can develop; specifically, her point that tissue death can begin as little as 30 minutes of unrelieved pressure but not become manifestly visible until two or three weeks later.
This meant that there was a non-compliance with Standard 3 of the Aged Care Quality Standard (as Betty did not receive the personal and clinical care that was safe and right for her), Standard 7 (as Betty did not received quality care and services) and Standard 8 (as Betty could have no confidence that TDCC was run well).
Based largely upon the experts’ evidence, I accept that, subject to a qualification, the provision of an alternating air pressure mattress to a patient in Betty’s condition was necessary in order for the Centre to discharge its contractual obligation of providing high quality of care. I find that it was superior in quality to an air mattress. The qualification is that, accepting Ms Ryan’s evidence, there may be occasions where an aged care centre may not have such a mattress at any given point in time, and so must resort to other measures to achieve the functional objective of providing pressure relief to patients.
It did not appear to be disputed and, at any rate I find, that a Steiss alternating air pressure mattress was (as its name suggests) an alternating air pressure mattress. What did appear to be disputed was whether it was available for use in Australia in the Centre. Contrary to Dr Sharp’s evidence, I find that it was available and, moreover, had been utilised in the Centre for Betty from 28 September 2020. In this regard, I place little weight upon even an expert of Dr Sharp’s standing on the purely factual question of when a piece of equipment was available for use. This was indicated in the note that day and although I accept that there was a level of ambiguity in the note, given other references in it, there were regular references to the Steiss machine throughout the period of Betty’s residency. I am fortified in that view also by the regular references to the mattress ‘moving’, or being ‘actively working’. There was nothing before me to indicate that what was observed to be ‘moving’ or ‘actively working’ could just as likely have been an air mattress as an alternative air pressure mattress.
Contrary to Mr Lau’s submissions, I do not find assistance by resort to Jones v Dunkel inferences or the ‘scintilla’ doctrine when a party attempts to prove a negative. It sufficed for Anglicare to rely upon documents, even to some extent where there was some ambiguity in them. It discharged an evidential burden. Ultimately, the persuasive burden of proof fell upon him to prove (amongst other things) that an alternative air pressure mattress had never been provided to him. I am not so persuaded. To this extent, his assertion of breach of contract in this respect is rejected.
Further, I find that the Steiss APAM was provided to Betty from 23 October 2020. There was nothing to suggest any change from 28 September 2020.
This leaves Mr Lau with his fallback position, which concerned timing: that Betty was not provided with it before 28 September 2020.
An immediate problem for him however, is that in the period from 28 September 2020 to 23 October 2023, there was no subsisting contract. If Mr Lau could rely upon anything in relation to this period, it could (subject to other problems I have identified) sound only in a non-compliance with the care guarantee. As will become apparent later, the case of a non-compliance with a care guarantee was founded upon the Centre not fulfilling its statutory obligations under the .
Although he relied upon aspects of the background to this allegation for other complaints, Counsel for Mr Lau accepted that what Ms Banton was trying to administer on 15 June 2021 was the prescribed amount of the prescribe medication (T 169.12- 169.14). In short, he resiled from the allegation that there was any overdosing.
This asserted breach or non-compliance is rejected.
A file note prepared by a speech pathologist on 20 January 2021 (Ex B, 1 CB 185) recorded that on 8 January 2021 Betty had choked when taking tablets and that, as a consequence, her diet had been ‘downgraded’ to taking puree solids and mildly thick fluid.
Mr Lau was referred in cross-examination to an undated document prepared by Betty’s speech pathologist, Kristin Arthur (Ex B 1 CB 185); although it appeared proximate to the episode when she choked on her tablets in early January 2021. In her report, the speech pathologist recorded that Betty was a ‘high aspiration risk’ and recommended, amongst other things, that she continue with puree solids, with no bread of any form; with a downgrade to moderately thick fluids. Mr Lau denied being told she was a high aspiration risk by the speech pathologist and said he did not receive this report at the time it was made.
He denied being told when he was at TDCC that Betty required a liquid diet and disputed that she had been provided with a liquid diet.
In cross-examination, Mr Lau was referred to a Risk Consultation – Nutrition and Hydration report prepared on 20 January 2021 (Ex B, 2 CB 549). Ms Banton had identified that Betty was:
“at high risk of aspiration and choking when eating foods outside of her clinically assessed diet of puree meal and thickened fluids”.
Mr Lau said he had not seen that document previously. He disputed being told that Betty was at a high risk of aspiration when eating foods outside of her clinically assessed diet of puree meal and thickened fluids. He disputed being told that she risked ongoing weight loss and choking. He was referred to the notation that recorded that he had verbally stated that there had been a conspiracy and in the course of the conversation, he was continuing to feed Betty large, boiled prawns and large pieces of conversation. Mr Lau said he did not recall this happening.
On 29 January 2021, Betty also had an episode of choking when consuming food.
On 8 April 2021, Betty was seen by a speech pathologist. It was recommenced that she have a minced diet and mildly thickened fluid (Ex 1, CB 1462).
On 9 April 2021, Mr Lau deposed to receiving a telephone call from Ms Banton reporting that Betty had choked and her concern was sufficiently serious as to cause her to think that paramedic assistance would be required. Ambulance records indicated that Betty had stopped breathing for 30 seconds and paramedics had removed food, which had obstructed her air path.
A discharge summary report (Ex 1, CB 2884-5). The report pertinently noted that Betty had been reviewed by a speech pathologist in the hospital with aspiration risk. It was considered that she continue with her diet of minced foods and mildly thickened fluids.
Mr Lau complained that he had fed Betty for about 9 months in TDCC (and thereafter at Dural) for another 12 months without her choking.
In a nutrition and hydration assessment undertaken on 19 June 2021 (Ex B, 1 CB 502-3), it was confirmed that Betty should continue a puree diet with mildly thick fluid. Oral medications were to be administered with care and crushed if large
Ms Ryan was asked about the difference between a ‘minced’ diet and a ‘soft food’ diet. A minced diet could include food that was moistened, say, by gravy.
She said that where a patient was at risk of aspiration, any deviation from a diet prescribed would put the patient at risk.
In closing oral argument, Counsel for Mr Lau acknowledged that he could not say that the choking episodes followed from any failure to follow the diet that was prescribed for Betty. There was nothing else to establish anything done by TDCC staff members to support a contention that they had caused or allowed her to choke.
This asserted breach is rejected.
(a) sending an incorrect medication list with Betty to the Sydney Adventist Hospital on 16 March 2021; (b) incorrectly administering blister packs on 15 March 2021 and 7 June 2021; and (c) incorrectly administering medication to Betty on 2 March 2021.
(a) refusing to allow Mr Lau to feed Betty her favourite foods. (b) from 15 June 2021, not permitting Mr Lau to administer medication and feed meals to her, despite this being Betty’s preference; and (c) failing to detect urinary tract infections for prompt treatment when those infections were indicated because of the colouring of her urine.
In Mr Lau’s Counsel’s closing written submissions, complaint (a) was abandoned.
Complaints (b) and (c) were maintained, and two different particulars were added in the course of the hearing, being Anglicare’s:
(a) (d) failure to diagnose blisters and/or report the issue to the GP; and (b) (e) conduct in calling police on 15 June 2021.
However in closing oral argument, Counsel for Mr Lau acknowledged that particular (d) (regarding the blisters) was not pleaded and once that was pointed out, Counsel for Mr Lau did not press it.
I will defer consideration of (e) until dealing with the complaint of mistreatment towards Mr Lau.
In this fluid context, and in summary, the particulars that were ultimately pressed to support Mr Lau’s general allegation concerned staff within TDCC:
refusing to allow Mr Lau to feed Betty and administer medications to her from 15 June;
calling the police on 15 June; and
failing to respond adequately to purple-coloured urine.
In his first affidavit (Ex C, paragraphs 117–127), Mr Lau deposed to an incident in which Ms Banton brought in a cup of crushed medication ‘Kinson’ (a generic brand equivalent to Sinemet). The cup contained one crushed Kinson tablet. Mr Lau complained that one whole tablet would cause her to overdose. Ms Banton explained that this was charted by the doctor. There was then a physical interaction where Ms Banton continued to move the cup to Betty’s mouth, but Mr Lau removed it away. They then had a verbal argument involving reference to whether Ms Banton had discussed the issue with Dr Flashka. A call was made to police and 30 or 40 minutes later, two police officers attended.
A medication incident report form was entered by Dee Banton (at 5:13pm) on 15 June 2021 (Ex B, 2 CB 510-11). The form indicated an unpleasant exchange having taken place as between Mr Lau and Ms Banton. The form records Ms Banton explaining to Mr Lau that the quantity of the medication needed to reflect that which was recorded on the medication chart. Ms Banton recorded that Mr Lau had verbally abused her. She indicated to him that she would now administer the medications.
A medication incident report was entered by Dee Banton at 7:19pm on 15 June 2021 (Ex B, 2 CB 503-4). It elaborated on what Ms Banton inserted in the form she entered about two hours before. It materially recorded the following:
“RN went to Betty’s room to give her 1630 time sensitive medications – Sinemet. Betty’s husband became verbally aggressive toward RN yelling at her and saying why are you giving it now. RN explained to Betty’s husband that it is a time sensitive medication and that it has been charted by the doctor to give at 4:30pm. Husband continued with verbal yelling at RN. CM heard yelling and knocked on Betty’s bedroom door. Husband continued to yell and became louder and more threatening to staff. CM called RM for assistance. RM came to Betty’s room and husband continued to yell and abuse CM, RN & RM …. CM and RM tried to show husband the medication chart and he continued to yell and abuse staff for wanting to give Betty her time sensitive medication. Husband was yelling “you are not her doctor” “you can’t give her those I will later”. CM & RN calmly tried many times to explain about the importance of time sensitive medications. As husband began to yell louder, and continued pleas to reduce his voice level, CM noted Betty getting upset. Husband was asked to leave the room while her medications were administered. Husband refused to leave the room and continued yelling louder and louder. Husband was asked to stop his yelling and change his tone to staff or police will be called. Husband continued to refuse staff to give her medications. RN, CM and RM left her room and called the police due to his verbal abuse and denying Betty of her medications … CM then gently approached Betty’s room offering Betty her medication. Husband again started yelling again saying ‘what are you asking her for’ ‘she doesn’t known anything’ CM continued to ask Betty if she wanted her medications and when Betty said yes and opened her mouth, Husband hit medications from CM’s hand, grabbing the medication cup and knocking Betty’s glasses from her face. Police arrived a short time later … Husband was advised that if he became abusive to staff again, that the police again would be called.”
Mr Lau was cross-examined on the incident. He agreed that Betty was given one tablet of Kinson. He also agreed that in the account in his first affidavit, the subject matter was his providing Betty with one tablet of Sinemet; although it may have been Kinson (Mr Lau agreed that the medication was effectively the same. Mr Lau’s Counsel conceded that it was the same thing: T 69.19). ‘Sinemet’ was referred to on the list of medications I referred to earlier (Ex B, CB 111).
On 17 June 2021, Dr Fashka reduced Kinson medication to ¾ dosage.
This circumstance, Anglicare accepts, arose as part of the episode involving the calling of police.
Mr Lau deposed in his first affidavit that on 25 September, Dee Banton, the Care Manager of TDCC, told him that he could administer medication to Betty and all meals; but could not stay overnight at the facility. He also deposed that staff of TDCC gave him all of Betty’s medications and meals to enable him to administer the medicines and feed her. He also gave unchallenged evidence that this changed on 15 June 2021, in the incident previously referred to.
He deposed in his first affidavit (paragraph 117) that on the latter date, Ms Banton told him words to the effect that she did not need to ask Betty anything when it came to whether she preferred to be fed her meals and have administered to her medications by Mr Lau.
As part of its application for Mr Lau’s removal as Betty’s guardian, Anglicare asserted that Betty needed to be given time sensitive medications and Mr Lau had tried to prevent the registered nurse from administering medications at the correct time (Ex B, 1 CB 253). Another assertion was that Mr Lau tried to prevent staff giving Betty meals at breakfast, stipulating that he was the one who could give her food safely. This had led to Betty sustaining weight loss.
Anglicare admitted that Betty’s urine bag was observed as purple on 12 May 2021 (Defence, sub-paragraph 17(c)).
An infection screening tool assessment undertaken that day confirmed the presence of a urinary tract infection, for which Betty was prescribed antimicrobials (Ex B 2 CB 518-19). Mr Lau agreed that antimicrobials were prescribed on that day.
In his third affidavit (Ex C, dated 3 April 2025), Mr Lau deposed (paragraph 18) to observing on or about 21 May 2021 that the urine bag had turned purple in colour.
However, as to this particular incident, Anglicare pointed out, without contradiction, that the episode on 21 May 2021 had not been pleaded. In those circumstances, I put further consideration of that particular incident aside.
On 28 May 2021, a urinary tract infection was identified given the change in the character of the haematuria (Ex B, 2 CB 511). On the same day, Mr Lau sent a WhatsApp message to Dr Fashka about his observations of the change of colour of Betty’s urine (Ex B, 1 CB 279). A prescription for a urinary tract infection was given on 28 May (Ex 1, CB 2089).
Under cross-examination, Mr Lau was referred to the photograph he took of the bag of urine annexed to his third affidavit (Ex B, 1 CB 269), which was depicted as resting on the bed, near one of Betty’s hands. He could not explain the circumstances in which it rested on the bed. (He denied placing it there). Mr Lau explained that another photo (Ex B, 1 CB 270) was that of a bottle into which the purple-coloured urine was transferred.
Mr Lau agreed that antimicrobials were also prescribed following the incident on 28 May 2021.
Ms Ryan said in her report (paragraph 6.8) that the nurses acted appropriately in managing Betty’s medications for her benefit, the escalation in involving police was ‘unnecessary’. Based upon unspecified ‘progress notes’, Ms Ryan opined that it would have been more effective to involve the general practitioner earlier to ‘mediate’ and address Mr Lau’s concerns.
Dr Sharp considered (paragraph 12(iv)) that TDCC should have shown respect for Mr Hay, knowing that he ‘knew all about’ Betty’s medications and called the GP for clarification instead of calling police.
Both experts reiterated that the situation could have been de-escalated but both also agreed that they were not apprised of all of the circumstances (T 128).
Ms Ryan said in her report (paragraph 5.6) that urine that was in a bag turning purple was a phenomenon – purple urine bag syndrome (PUBS) – associated with long term catheterisation and urinary tract infections caused by bacteria that caused sulfatuse and phosphatase enzymes, which react with tryptophan metabolites to produce indigo and indirubin, resulting in discolouration.
At paragraph 5.9, based upon what she read of the notes, Ms Ryan considered that the registered nurse followed standard nursing procedures upon being informed of the urine discolouration.
During the course of the experts giving their evidence concurrently, Ms Ryan was referred to her opinion (paragraph 5.1 of her report) and in particular, her view that nurses should promptly ‘escalate’ concerns to a medical officer when an infection was suspected. This view was based not only on practices observed in aged care facilities, but also research. Ms Ryan explained further that when urine in a urine bag was purple, this required prompt investigation of the urine (including taking it out of the bag) and discussion with a urologist: the purple colour was one of a number of indications of a urinary tract infection.
Mr Lau emphasised that both experts agreed that staff at TDCC should have called the general practitioner and not police.
The omission to do so, it was submitted, meant that Anglicare did not comply with Standards 6 (Betty being encouraged and supported to provide feedback) or 8 (Betty could not have any confidence that TDCC was run well) of the Aged Care Quality Standards.
Anglicare invited the Court to focus closely on the contemporaneous document of how Mr Lau behaved on 15 June. He was not only impeding TDCC staff going about their business in trying administer the correct medication, but was also abusive towards staff; and also warned that if his conduct continued, police might be called.
Anglicare submitted that it was not right for the expert witnesses to view the episode simply as a reasonable disagreement between Mr Lau and the staff as to what the medication was; which could have been sorted out by reference to the doctor.
Mr Lau’s Counsel argued in his submissions in reply that it was unfair for Anglicare to raise the last submission since the content of the document or documents were not drawn to Mr Lau’s consideration under cross-examination.
Mr Lau submitted that Anglicare did not challenge Mr Lau’s evidence of a practice of TDCC allowing him to feed Betty and administer drugs to her. Mr Lau pointed to his account of what Ms Banton said, about her not needing to consult with Betty as to her preference for how she should be fed or have medications administered to her. Mr Lau submitted that the TDCC infringed cll 6, 8 & 10 of the Charter of Rights.
Anglicare submitted that its cessation of the practice was justified by a different obligation in the Charter, being Schedule 9, clause 5, Whilst there was no direct evidence, Anglicare submitted that the obvious inference was that staff adopted this approach to avoid repetition of the incident that occurred on 15 June, as well as his refusal to feed Betty the prescribed diet. Mr Lau – who was not a doctor - was acting in accordance with his own preferences even when they conflicted with medical advice.
Mr Lau did not make submissions, in terms, which criticised conduct by nursing staff on 12 May 2021. As Anglicare pointed out, antimicrobials were prescribed that day so Betty received care.
Mr Lau submitted that there was no evidence that any TDCC staff contacted a medical officer on 21 or 28 May 2021, as Ms Ryan considered should have occurred. It was made worse that on 28 May 2021, staff refused to do so notwithstanding Mr Lau’s insistence that this occur.
Separately, there was a non-compliance with Dr Sharp’s view that competent nursing practice would have seen to it that the urinary drainage bag would hang below the level of the bladder. Mr Lau’s photo clearly demonstrated that it was not.
Mr Lau submitted that TDCC staff did not comply with Standards 3 (not receiving the personal and clinical care that was safe and right for her), 7 (not receiving the quality care and services when she needed them) and 8 (not having confidence that the TDCC was run well) of the Aged Care Quality Standards
Anglicare submitted that the incident on 21 May 2021 fell outside the pleading and should be disregarded.
As to the incident on 28 May 2021, Anglicare submitted that the contemporaneous record (Ex B, 2 CB 511) indicated that the colour of the urine was dark straw. Tests were conducted, but they were inconclusive and antimicrobials were prescribed. Unlike the nurses, Mr Lau had direct or ready access to Dr Flaska, through the WhatsApp facility. Mr Lau’s contention that his request for a ready response from staff was “ignored” was unsupported by contemporaneous documents and was, it was suggested, frankly unrealistic.
Anglicare submitted that Ms Ryan’s evidence about PUBS and which, in effect, endorsed the nurse’s conduct reflected the expected clinical approach.
Anglicare submitted that purple colouration was rare and it was unsurprising if nurses had not seen it before. UTIs were a common incidence of long term catheter use so the occurrence was unexpected.
Anglicare also submitted that Mr Lau himself accepted that, with reference to the photograph that he took, the bag was ordinarily hanging next to the bed and not stored on it, contrary to what Dr Sharp had assumed.
Further there was no evidence that Betty suffered any additional harm.
It was curious how, ultimately, Mr Lau articulated his complaint regarding the calling of police. In the present respect (although this changed later – see the reasons below), it was not so much that the decision to call police itself amounted to a breach of contract per se (the view favoured by the experts), but the complaint focussed upon the omission to obtain Betty’s feedback. I apprehend that in substance, this verged on, if not was at least closely synonymous to, the submission that in the single incident on 15 June, the TDCC needed to consult with Betty whether, in her view, it was appropriate for police to be summoned: Mr Lau did not suggest any sustained course of conduct in the Centre failing to seek feedback from her. At any rate, this, it was submitted, had the knock-on effect that Berry could not have confidence in the Centre.
Framing in his complaint in this way means that on one view, it is unnecessary to address the correctness or otherwise of the decision to call the police at all. However, aside from providing context, it is particularly pertinent to the complaint that latter standard was not complied with.
I place little weight upon the views of the experts as to whether or not it was unnecessary or an overreaction for the Centre to call police instead of the doctor. It was plainly the case that they had been supplied very little information about the circumstances which led TDCC staff to contact police. This contributed to the other concern I had, indicated in relation to another breach, the experts simply gave views reflecting their personal opinions, without reference to the reasonable practices of experts. These matters led to the formation of an opinion, jointly held by the experts, that was classically an exercise in hindsight reasoning.
I regard as more reliable the evidence appearing in Ms Banton’s incident reports of 15 June 2021 than Mr Lau’s recollections of it. Contrary to Mr Lau’s submission, to make that assessment does not involve any breach of the rule in Browne v Dunn. It was Mr Lau – not Anglicare – who tendered those reports as part of Exhibit B. It was obviously apparent to Mr Lau that Anglicare disputed his account of the incident. It was also obvious to anticipate that in those circumstances, Anglicare would rely upon documents in his possession and which he himself had tendered and rely upon them in preference to Mr Lau’s recollections. Accordingly, he is taken to know of their contents and it not unfair now for him to complain about Anglicare relying upon their content even if the contents of the forms were not specifically drawn to his attention when he was cross-examined.
In the circumstances, I find that Mr Lau interfered with the administration of the correct medication and further, that this placed Betty at risk, given the time-sensitive nature of the medication. Further, Mr Lau not only interfered, but he did so truculently even in the face of a warning that police might be called if he continued. He defied that warning and it was unsurprising that police were called. Further, it is speculative to say, as the experts appeared to assume, that even a doctor could have placated Mr Lau in the circumstances where he was convinced in the righteousness of his views. Mr Lau’s conduct not only abused nursing staff but indirectly carried the consequence of upsetting Betty.
I am not persuaded that cll 6 or 8 of the Charter are engaged by this conduct, even if it occurred as Mr Lau asserted that it had. It is not clear to me what ‘information’ Betty needed to access for the purpose of cl 6. I am not convinced that a practice as to who she would prefer to administer medications or food fell within cl 8.
As to cl 10 of the Charter, this has caused me some greater doubt. Here there had been, effectively, a very unpleasant dispute between Mr Lau and staff of the Centre. It was not the case that whatever understanding Mr Lau had with the Centre, he had an unfettered right to administer food or medications. If there was, in my view, there would have been an implication or incident associated with such right that he only do so safely and in accordance with the advice of staff.
The Centre resolved to terminate the understanding (that Mr Lau would feed, or administer drugs to her) on account of Mr Lau’s behaviour on 15 June 2021. It was not apparent to me from hospital records or even Mr Lau’s evidence (paragraphs 117–128 of his first affidavit) that Betty protested or complained about the termination of this understanding. Since Mr Lau was a visitor and not allowed to stay over, in my view, she would have had opportunity in his absence to ask that it be restored. If she had, it would be surprising if this was not recorded.
In the absence of such protest or complaint, I am not satisfied that her right to be listened to and understood was infringed.
As a first point, Mr Lau’s counsel did not cavil with Anglicare’s complaint that the incident on 21 May 2021 was not pleaded. In those circumstances, it would be unfair for me to treat with that particular incident.
In closing submissions, Counsel for Mr Lau did not invite the Court to make any findings about what occurred on 12 May 2021.
That leaves for consideration the incident on 28 May 2021. There is evidence to suggest that, in effect, action was taken by Mr Lau contacting Dr Flashka directly after a nurse refused to contact him following Mr Lau’s request.
Much of the debate concerned the colouring: Mr Lau observed it was purple; the nurses recorded it as appearing to be dark straw. Ultimately, testing did occur and antimicrobials were prescribed.
There is nothing to indicate that any different result would have occurred even if nursing staff did accede to Mr Lau’s request that Dr Flashka be notified.
Be that as it may, even with the benefit of hindsight, nursing staff should have taken seriously Mr Lau’s complaint about the purple colouring of the urine and the circumstance that it was unexpected represented a reason why a general practitioner should be consulted. This was all the more so when the testing on that particular day was inconclusive.
In the circumstances, I find that there was a non-compliance with Standards 3 and 7 of the Aged Care Quality Standards. The provision of ‘quality care and services’ when she needed them or care that was safe and right for her. In this instance, I find that there was also non-compliance with Standard 8. Pivotal to that finding was the Centre’s rebuffing of Mr Lau’s request that a practitioner be sought. In this respect, it was not to the point that there was an absence of harm from the omission to call the practitioner or that Mr Lau went ahead and did it anyway.
In his written submissions, Mr Lau also complained of an incident regarding the awkward positioning of eyeglasses on Betty and an indent left on her face. Mr Lau contended that this conduct amounted to a breach of Anglicare’s obligation to provide ‘high quality care’ in Schedule 9, cl 1.
However, in closing oral argument, Counsel for Mr Lau acknowledged that this asserted breach was not pleaded, so he abandoned it.
(a) by taking steps (calling police) to prevent Mr Lau intervening to stop the potentially fatal threat of the wrongful administration of medication for Betty’s Parkinson disease; and thereby distressing Betty (paragraph 18–19); (b) refusing to acknowledge Mr Lau’s proper role in making decisions concerning her treatment (paragraph 20)
On 28 October 2020, Mr Lau informed staff that Betty would not be attending activities outside of her room.
In his first affidavit, on 11 January 2021, Mr Lau deposed (paragraphs 66–67) to having a meeting with Jose Rigor in which he referred to a conversation with Dee Banton (from October 2020) that it was not good for Betty to move outside her room and Dee made it a staff rule for her not to be moved by staff outside the room. He deposed that a lifestyle co-ordinator (‘Sophia’) joined the meeting. Mr Lau deposed to a conversation, or perhaps argument, about whether Betty had the capacity to make her own choices about staying in her room or moving out of it. He referred to a sign above Betty’s bed stating her preference to stay in her room.
The first of the particularised forms of asserted mistreatment of Mr Lau was noted above; which I have already addressed.
In his first affidavit, Mr Lau deposed (paragraph 136) to providing Anglicare with written notice of termination on 21 June. The notice was sent (by email) to Dee Banton and several other people. The Quality and Complaints Manager of Anglicare acknowledged the notice on 25 June 2021. It was noted that Betty’s discharge would occur on 27 June.
On 24 June 2021, Anglicare applied to the New South Wales Civil and Administrative Tribunal seeking Mr Lau’s removal as a Guardian (Ex B, 1 CB 249-254). The application was emailed to NCAT with an indication that it was urgent; emphasising that Betty was “at serious risk” (Ex B, 1 CB 257). On the face of the application form, the author indicated that Betty was aware of the application.
According to Mr Lau, he was also notified of this in advance. Mr Lau said he asked Jose whether his removal as guardian was something Betty wanted. Jose said that Betty did not respond. Jose indicated that he would forward a copy of the Guardianship application.
A feature of the application contained Anglicare’s assertion that Betty had the capacity to make her own decisions as well as asserting that Mr Lau was making ‘unsafe clinical decisions’. More dramatically, it was noted that Mr Lau was planning to remove her from the facility to an unknown destination. This, it was asserted, placed Betty at risk of his coercive control.
The guardianship application was ultimately dismissed. The Tribunal indicated that the application was dismissed for want of prosecution (Ex B, 1 CB 259). Mr Lau was notified of this result on 4 November 2022.
Ultimately, Mr Lau relied upon the events of 15 June 2021 and Anglicare’s lodging of its application to remove him as Betty’s guardian (24 June 2021) as the particulars for this asserted breach.
His submissions about events on 15 June 2021 were previously noted.
Nothing more was said in closing written submissions for Mr Lau about the circumstances in which the NCAT application was lodged.
Mr Lau submitted that Standards 1 (Betty being treated with dignity and respect), 6 (Betty being encouraged and supported to provide feedback) and 8 (Betting having no confidence that the TDCC was run well) of the Aged Care Quality Standards were not complied with. Reliance was also placed on cll 11 and 12 of the Charter of Aged Care Rights.
Anglicare’s submissions with respect to the incidents on 15 June 2021 were also noted.
It did not make any further submissions about the lodging of the application with NCAT.
As to the calling of the police, I dealt with aspects of conduct on 15 June 2021 earlier. For this complaint, contrary to the complaint earlier dealt with, there was a contention about the merits of calling police as distinct from calling a GP. It is unnecessary for me to repeat what I have said about the weight accorded to the joint opinion of the experts.
I am not persuaded that in the circumstances in which Mr Lau conducted himself on 15 June 2021, the calling of police amounted to ‘mistreatment’ of him. This included, in recapitulation, his appalling behaviour in interfering with the administration of the prescribed dosage of the correct medication, his verbal abuse and yelling towards staff who were trying to do their job; and his continued conduct in doing so even after he had been warned that police might be called. There is nothing to suggest that Mr Lau apologised for his conduct or did anything else to evince any insight into the impropriety of his behaviour; which might be an indication that he was unlikely to repeat his misbehaviour.
Minds may differ, in my view, as to whether the act of calling police was an overreaction, or was ‘disproportionate’ in the circumstances. At its highest, in my view, it might be regarded as an error of judgment. That does not amount to mistreatment.
As to the separate, but related point, about depriving Mr Lau of the right to administer medication on 15 June, I agree with Anglicare’s submission that the obvious inference was a concern in staff that Mr Lau might repeat his behaviour; which is not unreasonable in the circumstances I have referred to.
On the second incident regarding the application to remove him as guardian, as his wife’s care advocate, Mr Lau was not exempt from the standards of proper behaviour. Indeed, as Betty’s guardian he had arguably a heightened standard of behaviour. His conduct prima facie appeared to be a serious falling short of the standards of a guardian acting properly. I find that both Betty and Mr Lau were aware of the Centre’s intention to make the application. It cannot be said that they were blind-sided about it.
The perception at the time amongst staff in the Centre was that Mr Lau presented as a risk to his wife’s safety. There was no argument that this belief was not genuinely or honestly held. Staff at the Centre also believed that Mr Lau had tried to prevent staff giving Betty meals at breakfast, stipulating that (only) he was the one who could give her food safely. This had led to Betty sustaining weight loss. So concluding, the Centre was purporting to act in furtherance of Betty’s safety. Arguably, this is another instance of potential tension and conflict between rights available to a consumer under the Charter of Aged Care Rights.
In my view the unstated premise in cl 11 of schedule 9, and moreover, as a matter of construction, is that the right to have an aged care advocate support the consumer and speak on behalf was conditioned upon the aged care advocate acting reasonably in the best interests of the consumer in receipt of the services, and moreover, consistently with the ongoing safety and interests of the consumer.
(a) the omission of the TDCC to provide the supplement Arginaid before 19 June 2021; and (b) the omission of staff in the TDCC to call a general practitioner after Mr Lau observed purple-coloured urine on 28 May 2021.
It was common ground in the hearing that the statutory action was conceptually independent of the contract action; in the sense that it is not even necessary to prove a contract in order for a consumer to benefit from the consumer guarantees (T 4.10; 5.11).
It also means that a finding that a contractual term was not breached does not automatically translate into a finding that the same conduct would not give rise to a breach of a consumer guarantee. This was illustrated in the Scenic Tour litigation, about which submissions were made in this litigation, since the scope of the contractual obligation is not necessarily coterminous of the scope of the consumer guarantee.
Anglicare admitted that it conducted itself ‘in trade and commerce’ in respect to services provided to Betty during the period she was a resident (Defence, paragraph 3(b)). Anglicare also admitted that Betty was a ‘consumer’ for the purpose of 3(3) of the ACL (Defence, sub-paragraph 3(b)(i)).
“any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce”
Section 2(b) provides a non-exhaustive list of examples of rights, benefits, privileges or facilities that were provided, granted or conferred.
The consumer guarantees in relation to the supply of services are contained in Subdivision B of Part 3.2 of the ACL.
Section 60 (the ‘care guarantee’) provides:
“If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill”.
Anglicare complained in several ways about the pleading of the statutory action. Anglicare cited observations of Garling J in Moore v Scenic Tours Pty Ltd *(*No. 2) [2017] NSWSC 733 at [422]–[433] where his Honour made reference to certain provisions (ss 5B and 5C) of the Civil Liability Act 2002 which applied to the application of the care guarantee in s 60. Nothing was said in the Court of Appeal or the High Court when the Scenic Tours litigation was heard in those Courts which cast doubt upon the correctness of that approach. Garling J had also earlier noted (at [350]) the centrality of the concept of ‘services’ provided to the consumer to an action for damages for non-compliance with consumer guarantees.
There are difficulties in the ASOC relating to the statutory action. There was no pleading nor particularising of the ‘services’ – paragraph 35 of the Amended Statement of Claim uses that description but it had no meaningful content. Further, as Anglicare contends, there was missing in the pleading of the care guarantee, in relation to each specific complaint, the notions underlying ss 5B and 5C of the Civil Liability Act applied (such as ‘harm’ or ‘risk of harm’, or the precautions which were said to have been appropriate but were not followed) or, it might be noted, if the test at common law from Wyong Shire Council [17] applied, pleading of those matters either. It became necessary for Mr Lau’s Counsel to try to remedy these deficiencies in the hearing. Ultimately, both parties were granted leave to provide supplementary submissions to flesh out how ss 5B and 5C applied; which they subsequently did.
To determine the services Anglicare was to provide to Betty it is necessary to assess objectively the dealings between the supplier of services (Anglicare) and the consumer (Betty) to determine the benefits or facilities the consumer could reasonably expect the supplier to provide in return for the price paid: Scenic Tours Pty Ltd v Moore (2018) 339 FLR 244; [2018] NSWCA 238 per Sackville AJA (Payne JA and Barrett AJA agreeing) at [174], [176].
Both parties ultimately agreed that the services were the same as those supplied under the resident agreement. There were ‘accommodation’ services (schedule 5 of the resident agreement) and ‘care’ services (schedule 6 of the agreement). However, Mr Lau noted that services were supplied before entry into the resident agreement, in the period 25 September 2020 to 23 October 2020. These were what I call (pre-contractual) ‘respite’ services. However, the statutory obligations which, as was demonstrated, essentially informed the content of the contractual duties from 23 October 2020, also applied in the period prior to entry into the resident agreement. In this way, in my view they also applied to the period in which respite services were supplied, in the earlier period of 25 September 2020 to 23 October 2020 before entry into the contract.
For the care guarantee, Mr Lau relied simply upon the same matters sustaining the asserted breaches of contract (ASOC, paragraph 39).
Ultimately, both parties conducted the case on the common basis that the scope of the duty of care contained in s 60 rose no higher than the TDCC’s compliance with its legal obligations under s 54-1 of the Aged Care Act 1997 (Cth), including its compliance with the Aged Care Quality Standards. [18]
Mr Lau submits that each of Anglicare’s:
conduct in exposing Betty to the risk of contracting COVID-19 or not providing informed consent to her to move out of her room;
failure to place Betty on an APAM.
failure to administer Arginaid;
failure to provide fortnightly blood tests to Betty;
conduct in calling police, in contrast to calling a general practitioner, as a result of Mr Lau’s resistance to staff at the Centre attempting to administer 1 tablet of Kinson;
allowing three choking incidents to occur;
position of not permitting Mr Lau to administer medication and feed meals to Betty from 25 September 2020;
failures to escalate concerns arising from purple-coloured urine on 21 or 28 May 2021
constituted discrete non-compliances with the care guarantee.
In closing oral argument, Mr Lau’s Counsel articulated the risk of harm here was that Betty’s wound in her sacrum would not heal as quickly as it otherwise would thus impeding or delaying her recovery. The posited reasonable precaution was therefore providing an alternating air pressure mattress as soon as possible.
This matter potentially gives rise to a different result to the corresponding breach in contract. Anglicare does not dispute that the identified risk of harm was foreseeable. It does contest the proposition that the risk was not insignificant. In view of Dr Sharp’s evidence, I find that the risk was not insignificant. Anglicare accepts that the reasonable precaution was to provide the most suitable mattress for her needs as soon as practicable.
On the findings I have made, to reiterate, there was no explanation or indication that a Steiss APAM (or some alternative model) could not have been provided to Betty prior to 28 September 2020. On the premise that compliance with consumer guarantee entailed compliance with the statutory obligation of the provision of high-quality care, prima facie, there was a non-compliance with that obligation.
I have considered Anglicare’s legitimate point as to whether a single incident within a service supplied over many months could itself give rise to a non-compliance. I took Anglicare to accept that it might, depending upon the seriousness of the non-compliance, which I also take to amount to the effect of the conduct upon Betty, and the context in which the act occurred.
The conduct occurred during the provision of respite services. Anglicare has not suggested some lesser standard of quality care was required in that pre-contractual period.
I am satisfied on balance, that the delay in providing Betty with an APAM within the period that she was receiving respite services amounted to a non-compliance with the care guarantee, for reasons explained earlier when considering the corresponding complaint in contract, in terms of the statutory obligations that were not adhered to. The result under the statutory action is therefore different to the result under the action for breach of contract in this respect.
Mr Lau submitted in oral closing argument that the risk of harm in this respect was the risk of delaying the healing process for her wound. Anglicare submitted that the risk of harm was that Betty’s medical needs were not properly addressed.
I am not persuaded by either formulation. In my view, it suffices to articulate the risk that her general health needs generally were not met. This presents a fairly low threshold.
There was a dearth of evidence at the hearing as to precisely what was the value of Arginaid. As Anglicare repeatedly emphasised, it was not a prescribed medication. It was a supplement. Its nutritional value was unknown. Dieticians do not recommend nutritional supplements for women in Betty’s predicament without good reason (this being a matter that also goes to s 5B(2)). On balance, I think that the risk of harm was foreseeable and not insignificant.
If it be the case that the failure to administer it until much later in the period of residency had harmful consequences, than this is a matter that goes to causation (under s 5D). But the present inquiry is conducted at the level of breach.
Anglicare acknowledged that a reasonable precaution was to provide and support treatment prescribed by physicians of which it was aware.
I regard that submission as too narrowly based. In my view, once it was on notice of what a resident’s health requirements as identified by a health practitioner more generally, than its obligation was to support and treat such requirement.
Contrary to Anglicare’s submission, and based upon Ms Ryan’s opinion, reasonable precautions including implementing a recommendation about a nutritional supplement recommenced by a dietician, which was contained in a medication list supplied to the Centre more or less at the outset of Betty’s admission. There is nothing to suggest any difficulty or burden for the Centre to do so. The failure to administer the precaution was protracted: Betty only received the Arginaid towards the end of her residency.
In the circumstances, I find that the care guarantee was not complied with in the delayed provision of the supplement.
The balance of the events and incidents the subject of assertions of non-compliance with care guarantees deal with matters in respect to which I have rejected corresponding assertions of breach of contract. Given the way Mr Lau has run his case under the statutory action I propose to be brief in what I say about them.
Anglicare accepted a duty to identify a condition requiring medical attention and reporting them to a general practitioner within a reasonable time. As I understood it, Anglicare acknowledged that the risk of harm was the risk of the resident contracting the condition, which it also acknowledged was foreseeable. Anglicare disputes that this risk was not insignificant, however, on this matter, I agree with Mr Lau that the risk was insignificant.
Anglicare contended that the reasonable precaution to be taken was for staff to report an identified condition to a treating physician as soon as practicable in line with the seriousness of the condition. Anglicare further contended that this suggested precaution was dependent upon the condition being identifiable to a registered nurse and argued further that a registered nurse is not expected to have the same level of knowledge as a doctor. As I understand his position, Mr Lau says that in a context where care for an indwelling catheter (IDC) must “promptly escalate concerns to a medical officer when infection is suspected.
I accept Mr Lau’s submission in this respect. In the position that the resident was, the circumstance that a problem was rare presented the occasion for a report; not simply where a nurse was aware of the threatened condition.
In the way that I described the corresponding breach of contract, there was also a non-compliance with s 60.
Mr Lau did not dispute Anglicare’s articulation that the risk of harm here was the resident’s risk of contracting injury through exposure to airborne viruses; although he appeared to add that there was an additional risk if the resident did not provide her informed consent. Although not articulated, it strikes me that the risk of harm might be conceptually different, in that the risk of harm for the latter might be the risk of the patient making an uninformed decision to her detriment; even if the ultimate harm that might materialise remains the same: the exposure to an airborne virus.
Anglicare contended, and Mr Lau agreed, that the risk of harm was foreseeable. It disputed that it could be said to be not insignificant. I am inclined to agree with Mr Lau that in the context of the Pandemic that arose in Australia in 2020, the risk of the harm in early January 2021 can be regarded as ‘not insignificant’.
Anglicare submitted that reasonable precautions required it to ensure infection control procedures meeting its statutory obligations and conforming with any subsisting public COVID-19 orders were appropriate. Anglicare also took the point (in MFI 7) that Mr Lau did not plead what precautions should reasonably have been taken (and which were not taken).
Mr Lau agreed with this, but in the circumstances he argued further than additional precaution was a careful and thorough assessment of the risk and benefits to Betty. But whether or not this was intrinsically desirable, in my view this suggested additional precaution was irrelevant to the identified risk of harm.
The matters in s 5B(2) do not assist Mr Lau. Indeed, more specifically s 5B(2)(d), somewhat uniquely to other asserted non-compliances with s 60, is a matter that work against him, given the benefits, as I find them of her being exposed, at her wish, to the recreational benefit of arts and crafts at a time when there was no outbreak.
I am not satisfied that the Centre contravened the care guarantee by exposing Betty to the risk of contracting COVID.
Nor am I persuaded that the care guarantee was contravened by taking Betty out of her room without her ‘informed consent’. The reasoning underpinning my rejection of the corresponding complaint in the contract action applies here.
Anglicare contended that the risk of harm was to avoid the situation where Betty’s medical needs were not addressed. It will be noted that this formulation is neutral on the question of who is responsible for addressing those needs. It accepts that the risk of this occurring generated by not providing fortnightly blood tests was foreseeable; although it contended that it could not satisfy the requirement of being ‘not insignificant’. Mr Lau did not dispute the articulation of this risk and agreed that the risk was foreseeable. I am not persuaded that it was not insignificant. It appeared from the correspondence that Dr Flashka thought it insignificant.
If I am wrong in that, however, I agree with Anglicare with its statement of reasonable precautions. This is one of many instances where although Mr Lau argued that the need for reasonable precautions was heightened, he did not actually cavil with the identification of that those precautions actually were.
Acknowledging that the risk of harm here was that by failing to conduct a blood test there was a risk in an undetected rise in Betty’s haemoglobin and assuming in Mr Lau’s favour that the risk was foreseeable and not insignificant, the reasonable precautions in this case fell at the feet of Dr Flashka; who assumed responsibility for prescribing the test. There was no non-compliance with the care guarantee in this respect.
Anglicare did not articulate a statement of the risk of harm in this respect. Mr Lau stated that it was the potential for confusion, upset feelings and Betty not feeling that she was being treated with dignity.
There is a question whether this statement of potential harm actually is a species of ‘harm’ for the purposes of ss 5B and 5C of the Civil Liability Act even if the definition of ‘harm’ in s 5 of the same legislation is expressed to be inclusive. Mr Lau did not argue that it is ‘personal injury’. In Gett v Tabet [2009] NSWCA 76, Allsop P at [383]–[388], determined that a risk of physical or mental injury did not suffice to satisfy the definition. Nor, as I indicated earlier, can it be said to fall into the exceptional categories of case where disappointment and distress not associated with personal injury is compensable for breach of contract in Baltic Shipping (per Mason CJ at 362–363).
I think the matters referred to in s 5B(2) militate against Mr Lau’s argument: the harm was slight and not very serious; set against the imperative need for staff to comply with the efficacious delivery of care services; without distraction or the unwarranted interference of Mr Lau who, without reference to medical advice, wanted to do things his way in a way that was potentially detrimental to Betty’s health.
I find that the care guarantee was not complied with in the following respects:
The omission to provide Betty with an APAM before 28 September 2020;
The failure to administer Arginaid to her; and
The failure of staff to consult a general practitioner about purple-coloured urine.
By prayer 2 in the Amended Statement of Claim, Mr Lau sought relief in the form of a public advertisement of an apology on Anglicare’s website, approved by Mr Lau, issued as a media release for a minimum period of 6 months from initial publication.
The content of the apology was set out in the Outline of Opening Submissions (MFI 1) prepared by Mr Lau’s Counsel as follows:
“In September of 2020, Ms Betty Wai Yee Chan joined the Donald Coulburn Centre run by Anglicare. Ms Chan left on 27 June 2021.
The Court has determined that, whilst Ms Chan was at Donald Coulburn Centre, Anglicare Community Services breached some of the contractual obligations owed to Ms Chan, including those prescribed by the Charter of Aged Care Rights as set out in [refer to published judgment].
On behalf of Anglicare Community Services and Donald Coulburn Centre, I wish to apologise for the mistreatment of Ms Chan and her husband, Mr Man Hay Lau, during Ms Chan’s time with us as set out in [refer to published judgment].”
Mr Lau’s Counsel did not seek to vary the content of this apology after the evidence was concluded.
Mr Lau’s schedule of damages indicated that he proposed that the advertisement of the apology was to be for a period of not less than 3 weeks (this period being reduced from the period of 6 months requested in the ASOC).
Mr Lau based his claim to a court-ordered apology upon s 243 of the ACL (T 1.40) .
A curiosity about the form of the proposed apology is that the subject of the apology is the breach of contract (in respect to which there is no common law remedy of a publicised apology) when the premised power for an apology is sourced in breach of a consumer guarantee under the ACL: there was no reference in the plaintiff’s proposed apology to any non-compliance with a consumer guarantee sourced in the ACL.
Chapter 5 of the ACL is titled ‘Enforcement and remedies’. Part 5.2 is generally titled ‘Remedies’. Sections 236 is the only provision constituting Division 3 of Part 5.2 of the ACL and is titled ‘Damages’.
Section 236 of the ACL provides:
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
Sections 237 and 243 both fall within Division 4 of Part 5.2 of the ACL. Division 4 of Part 5.2 is titled ‘Compensation orders etc. on application by an injured person or the regulator’.
Section 237 of the ACL relevantly provides:
“(1) A court may:
(a) on application of a person (the injured person ) who has suffered, or is likely to suffer, loss or damage because another person has engaged in conduct in contravention of a provision of Chapter 2, 3 or 4; or
(b) on the application of the regulator made on behalf of, and with the consent in writing of, one or more such injured persons;
make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
…
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.” (emphasis supplied)
“Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent ) include all or any of the following:
(a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person ) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks fit – to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner as is specified in the order; and
(ii) if the court thinks fit – declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent to refund money or return property to the injured person;
(e) except if the order is to be made under section 239(1)--an order directing the respondent to pay the injured person the amount of the loss or damage;
(f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person;
(g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person;
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:
(i) varies, or has the effect of varying, the first mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument. (emphasis supplied).
The ACL applies as a law of New South Wales pursuant to section 28 of the Fair Trading Act 1987 (NSW).
Sections 237 and 243 of the ACL refer to the powers being exercised by “a court”.
Section 2 of the ACL relevantly defines “a court” as any court having jurisdiction in the matter.
Section 30(2) of the Fair Trading Act 1987 (NSW) generally has an inclusive definition of ‘court’, which includes the District Court, for the purposes of the application of the ACL (NSW).
However, by 30(3), the Fair Trading Act defines the ‘court’ more narrowly as the Supreme Court of New South Wales; relevantly in relation to Division 4 of Part 5-2. As indicated, ss 237 and 243 of the ACL fall within Division 4 of Part 5-2.
Section 135 of the District Court Act 1973 (NSW) provides that the District Court has the same jurisdiction as the Supreme Court of New South Wales, and may exercise the powers and authority of that Court, in any proceedings in which relief is sought under the Fair Trading Act 1987 and where the amount of the claim does not exceed the District Court’s monetary jurisdiction.
Mr Lau submits, and I accept, that this must include relief under the Australian Consumer Law (NSW) through operation of s 28 of the F**air Trading Act.
Section 44(1)(a) of the District Court Act 1973 (NSW) generally confers jurisdiction on the Court to hear and dispose, within the monetary limit of its jurisdiction, actions would if brought in the Supreme Court would have been assigned to its Common Law Division. A claim for an apology is not such in my view that would presumptively have been assigned to the Equity Division in the Supreme Court. Actions for breach of contract simpliciter can be dealt with in the Common Law Division; as can actions for relief for non-compliance with consumer guarantees, as was illustrated in the recent Scenic Tours litigation. There is nothing distinctly equitable about the remedies Mr Lau seeks.
Moreover, s 44(1)(c1) of the Act generally confers jurisdiction on the District Court for any matter arising out of a ‘commercial transaction’, again, to the extent that the amount claimed does not exceed the monetary limit.
At the hearing, the parties did not address me on the question of this Court’s jurisdiction to order an apology under ss 237 and 243 of the ACL. Mr Lau had however pleaded his reliance upon s 243 in the ASOC. By its Defence, Anglicare did not take the opportunity to contend, as it should have (but later did), that the Court did not have the jurisdiction to order a public apology under that provision.
“The jurisdiction to determine actions arising out of commercial transactions provided by the amending legislation, when read with the s 44 power to “dispose” of actions and the s 135 provision that the Court may exercise all the powers and authorities of the Supreme Court in any proceeding sought under the Fair Trading Act; in my opinion includes to make orders under s 237.”
Further assuming Parker J is correct that s 135 of the District Court Act is limited, or presupposes that a money claim has been brought within the limits of the District Court’s monetary jurisdiction, that remains satisfied since Mr Lau pleaded a money claim in his statement of claim, being $37,150.28, at paragraph 23 of the ASOC.
I find that the District Court may exercise jurisdiction in which relief is sought under the Fair Trading Act 1987 (NSW) and is within the monetary jurisdiction of the District Court. The plaintiff’s claim in reliance under s 237 is a claim which would be within the jurisdiction of the District Court pursuant and by reason of s 135 of the District Court Act 1973 is not excluded by s 30(3) of the Fair Trading Act. Such relief would include relief under s 74(2) of the Fair Trading Act, which is a cognate provision to s 237.
“the Court can make orders under s 87 only in so far as those orders will compensate (or will prevent or reduce) the loss or damage that is identified”.
“… the power to grant relief that is not an award of damages pursuant to s 236 is constrained by the twin statutory requirements expressed at s 237: there must be an application by a person who has suffered or is likely to suffer loss or damage because of the contravening conduct; and the order must be one that the court considers will compensate the injured person in whole or in part for that loss or damage, or at least reduce it.”
Mr Lau accepts that although Betty was the ‘consumer’, for the purposes of the ACL, her Estate cannot bring a claim for damages under s 236, since it cannot be said that the Estate suffered loss by the contravention [19] . That being so, he has no standing under s 236 as Betty’s representative. He could only do so as someone who has suffered loss or damage in his personal capacity. But he contends that he, as an applicant for an order under s 237 is in a different position: there is no requirement to prove that he suffered actual loss or order before an order s 237 can be made.
Mr Lau further argues that even though he has no right under s 236 to claim damages, the order for nominal damages Mr Lau obtains under the contract action is sufficient to empower the Court to grant an order under s 237, subject to causation. He submits that in the event the Court find that non-compliance with the care guarantee was causally connected to that ‘loss’, then the causation requirement is also satisfied.
Note 2 to s 237(1) of the ACL provides that the orders that a court may make include all or any of the orders set out in s 243, however s 237(2) of the ACL provides that:
“(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.”
Section 237 shares the same object as s 236, which is compensatory. By their terms, both provisions require, as a starting premise, a contravention of the ACL in Chapters 2 or 3 (although in the case of s 237, there may also be a contravention of Chapter 4). The fundamental difference is that s 237 relieves the applicant of the need to prove that actual loss or damage suffered because of a contravention. Section 237 has been described as an ‘ancillary’ remedy to s 236 [20] .
Nevertheless, it is possible for any person who has, or is likely to suffer loss or damage, to bring a proceeding under s 237.
It is also accepted that the expression ‘loss or damage’, where it appears in s 237, may be broader than s 236. The expression is defined in s 13 of the ACL. Section 13 provides that for the purposes of the ACL:
“ (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.”
‘Injury’ is not a defined term, but in Marks at [93] Gummow J construed the term under the predecessor provision (s 4K of the Trade Practices Act 1974 (Cth)) to include ‘actionable wrong’. In Demagogue v Ramensky (1992) 39 FCR 31, Cooper J (at 46–47] observed that the expression “loss or damage” meant no more than the disadvantage suffered by the person as the result of the act or default of another. More recently in Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530, and following what Cooper J said in Demagogue, the Full Federal Court at [77] affirmed that the element of loss and damage can include the disadvantage of incurring contractual obligations which would not have been incurred but for the conduct complained of.
Counsel for Mr Lau also referred me to Century Legend Pty Ltd v Ripani [2022] FCAFC 191 as authority for the proposition that ‘loss or damage’ can be sustained by the party incurring a contractual obligation which they would not have incurred but for the impugned conduct.
It is at this point that Mr Lau encountered difficulties, manifested, amongst other things, by the circumstance that his claim for (monetary) compensation as pleaded in the ASOC was abandoned at the commencement of the hearing.
It is difficult, in the abstract, to see how Mr Lau was a person who has suffered, or was likely to suffer loss or damage because of contravening conduct under 60 of the ACL, which was an obligation or duty owed to Betty. The care guarantee was provided to Betty, as the consumer. Mr Lau was not the consumer. Mr Lau tried to overcome his difficulties by several alternative arguments.
To some extent, Mr Lau tried to avoid the problem by suggesting that Betty suffered loss or damage; which was generally contrary to the way he ran his case. Thus, Mr Lau’s Counsel tentatively suggested that Betty actually did suffer loss or damage. In this respect, he correctly pointed out that the general limitation upon a compensation order where the loss or damages is in the form of personal injury (or death), ordinarily prescribed by s 137E(1) of the Competition and Consumer Act 2010 (Cth) (‘CC Act’), does not apply to claims where the contravention concerns consumer guarantees: s 60 does not fall within Parts of the legislation set out in s 87E(1)(a) of the CC Act.
The posited physical injury was the failure to place Betty on an alternating air pressure mattress on and from 28 September 2020. I have rejected that contention; although I did accept that the APAM was not provided in the narrower period of 24 to 28 September 2020.
There was a paucity of evidence, however, to prove any causal connection between the posited delayed failure to provide the alternative air pressure mattress (a hypothetical non-compliance with the care guarantee owed to Betty) and loss, damage or injury in the broader period from 23 October 2020 to January 2020, let alone in the narrower (and relevant period) of the contravention (24–28 September 2020).
The question is the compatibility of the remedy of an apology with the compensatory purpose of s 237. Integral to consideration of this is a general consideration of the nature of the remedy of a court-ordered apology.
The apology that Mr Lau seeks does not expressly fall within any of the remedies in s 243. As indicated, Note 2 to s 237 is in terms that the orders that might be made under s 237 “include all or any of the orders set out in s 243”. Section 243 indicates that the orders in that provision do not limit s 237.
Anglicare did not assert that a court-ordered apology is beyond power (even if it ultimately argued that it was beyond the jurisdiction of the District Court).
I am not convinced that the District Court is empowered to order a public apology under s 243 for an individual applicant who does not (ultimately) seek a compensation order because in this situation that remedy is a public remedy, whose purposes go beyond the compensatory objective in s 237, and which is appropriately sought by the regulator.
The structure of remedies under the ACL naturally lends itself into remedies being divided between private enforcement and public enforcement. [24] Essentially, the remedies in ss 236 and 237 fall into the former category, with standing given to individuals to bring them (with the regulator also having standing for s 237). The remedies in Division 1 of Part 5.4, relating to consumer guarantees, can also be considered to be private in nature.
Sections 239 and 246–248 are remedies that fall into the latter category as they can only be sought by the regulator. The range of remedies in s 243 (and also the remedies relating to injunctions in ss 232–235) might be obtained by individuals or the regulator, as is appropriate.
There is a real question whether the word ‘include’ in the context of s 237 under the ACL really is synonymous with ‘means’, such that the orders in s 243 limit the orders made under s 237. Textually, the chapeau to s 243 suggests that the orders under s 243 are not exhaustive of what might be made under s 237 but to my mind a question arises as to what additional relief under s 237 could be sought beyond what is obtainable under s 243, at least by a private individual in a private civil proceeding; since a regulator may be seeking relief under s 237 as well (s 237(1)(b)). Another reason for doubt about that, although not the sole reason, is that there are other contexts in which Parliaments have empowered Courts to order public apologies (see below), but the Commonwealth Parliament did not do so when enacting Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Prima facie, it appears that the order of a public apology is a public remedy more appropriately sought by the regulator, rather than a remedy that can be sought by an individual.
Mr Lau submitted that the discretion should be exercised in favour of ordering a public apology since:
There is no evidence that is punitive or otherwise onerous to Anglicare;
The terms of the apology are anodyne, going no further than recording the factual findings made by the Court which will already be publicised when these reasons are published;
Anglicare retains substantial control as to how it is published. All that is necessary is that the apology be made available on Anglicare’s website.
Since the loss is not quantifiable, so as to give rise to an order for payment of compensation, an apology is more appropriate.
The apology serves the public interest. There needs to be transparency in the workings of aged care facilities given the many persons who have, and are likely to require their services.
The apology will provide a sense of closure to Mr Lau.
In civil litigation, ordinarily an order for monetary compensation is a remedy, “so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed”, [28] or if the tort had not occurred. [29] A paradigm case is where a claimant suffers personal injury (including for example, a psychiatric illness) or economic loss where the law is capable of attributing a monetary value to the harm. But there are cases, and this is one, where in the absence of compensable personal injury, it may be difficult to attribute any monetary value to form of harm suffered. Nevertheless, a Court may do its best to make an order for breach of contract for monetary compensation to reflect its estimate of the value of the injury. This, however, is subject to legal principle. The relevant principle here is that there are very limited categories of case exceptional to the general rule that damages could not be recovered for injured or hurt feelings caused by a breach of contract. [30] Mr Lau did not suggest that this was one of them.
Court-ordered apologies arguably represent an a beguilingly attractive way of filling in the gap where, as here, a breach of contract causes hurt or injured feelings that are not legally compensable. They have certain potential advantages. By their nature and in an ordinary paradigm, apologies actually or potentially help two parties. The first is the victim of the harm in respect to whom the apology is directed (the victim). The second is the person making the apology (the offender). An apology helps the victim who has suffered hurt, distress, embarrassment or offence in what might compendiously be referred to as ‘hurt feelings’ caused by the wrongful conduct. An apology from a wrongdoer can help assuage that kind of suffering. An apology also helps the offender: it manifests remorse or contrition that afflicts a guilty sense of mind and, by manifesting a sense of accountability and perhaps relieving a sense of guilt, it can lead to growth in the offender and therefore reduce the scope for future wrongdoing by it. An apology can assist a process of healing between parties, especially those who have on-going dealings with one another. Where there are on-going unavoidable dealings between parties, apologies can aid in a process of reconciliation.
There are, however, circumstances in which court-ordered apologies may be futile for failing to achieve the usual benefits to the two parties ascribed to them. A court-mandated apology in this case is not likely to achieve either of those usual benefits. With all respect to him, Mr Lau is not the consumer here. In the circumstances as I have found them, Mr Lau has no personal right of action for damages for non-compliance with a consumer guarantee generating a right in him (under s 236) to ‘compensation’. As I have suggested, it would be paradoxical if under the guise of being someone who has standing under s 237, he could procure from a Court an apology to him, simply as Betty’s representative or proxy. This is so whatever be the state of his feelings towards Anglicare and how it ‘mistreated’ his late wife and regardless of whether or not an apology would help him to alleviate the grief has suffered through Betty’s passing by bringing ‘closure’ to him. Such non-compliance with the consumer guarantee as occurred was a guarantee of care owed to ; as the consumer; not Mr Lau. Betty is now deceased. Her hurt feelings (assuming that she had hurt feelings as a result of the Centre’s breaches of contract) can no longer be assuaged.
I referred earlier to the absence of involvement of the regulator of consumer protection. In addition, as Anglicare also persuasively points out, there is also a special statutory regime that deals with the conduct of aged care providers. There is a concern about granting what, in substance, is a public remedy usually obtained at the behest of the regulator of consumer protection, when the views of the regulator that is most appropriate to assist the Court with argument about the appropriate remedies – the Commission – has been bypassed in the process.
By Division 2 of Part 7B of the Aged Care Quality and Safety Commission Act 2018 (Cth) the Commission may itself impose sanctions upon an approved provider who it determines has not met their responsibilities. When deciding what sanctions are appropriate, the Commission will likely make reference to a range of mandatory relevant considerations identified in s 63N(3) of the Aged Care Quality and Safety Commission Act 2018 (Cth) (with paramount considerations referred to in ss 63N(3)(c) and (d)).
Further, the Commission has other powers under Part 8A for enforcement, including a power to seek civil penalties in relevant courts, enforcement (in Division 2) of enforceable undertakings and injunctions made under Parts 6 and 7, respectively, of the Regulatory Powers *(*Standard Provision) Act 2014 (Cth) and banning orders against aged care workers (Division 4) (contravention of a banning order is a criminal offence (s 74GD)).
This statutory framework for the regulation of aged care providers is especially important in a context where, in the way that Mr Lau conducted his case, the non-compliance with the care guarantee under the ACL was substantially put on the basis of Anglicare’s non-compliance with its lawful obligations under the Aged Care Act, and the legislative instruments issued under it.
Counsel for Anglicare also referred in her submissions to the Commission’s capacity to publicise and notify consumers of incidents; although it was not obvious to me what the sources of those powers were. As indicated, it is the Commission which is most appropriately placed to determine appropriate remedial responses to non-compliances with the obligations ultimately under the Aged Care Act.
Mr Lau did not, in particular, supply the Court with submissions of the sort of matters referred to under s 63N(3) of the Aged Care Quality and Safety Commission Act 2018 (Cth), which would properly need to be taken into account if the Court was empowered to grant the remedy. In my view, for the Court to order a public apology under ss 237 and 243 without reference to the considerations relating to enforcement orders under the special statutory regime for aged care providers is inappropriate as it would tend to circumvent that special statutory regime.
In his opening address, Counsel for Mr Lau indicated that court-ordered apologies are not unknown in the context of defamation and discrimination law. This appeared to serve the forensic purpose of giving comfort to, or perhaps fortifying, the Court should it be otherwise inclined to order it but for doubts about whether this was permissible as a matter of power, or appropriate as a matter of discretion under the ACL.
There is some utility in considering some other statutory contexts from a comparative perspective, as a means of checking some of the conclusions I have reached with more direct reference to the text and structure of the ACL.
Counsel’s submission is inaccurate to the extent that he refers to defamation law. In the tort of defamation, the Court does not order apologies. The circumstance that a defendant makes an apology is relevant in mitigating damages. [33]
Under the imminent operation of the statutory tort of privacy, the legislative framework does envisage, as one remedy, a court-ordered apology. [34] It might be thought that much of that action is directed to intrusion upon a person’s seclusion in a way exposing the person to public view. [35] Certain naturally extrinsic material suggests that the aim of the new tort is to redress harm to a personal, dignitary interest, and an apology could assist in rectifying the victim’s feelings of embarrassment and distress. However the extrinsic material also contemplated that court-ordered apologies would not likely be made where the defendant clearly indicates that it offers no remorse such that the apology would not be freely made. [36]
As to discrimination law, it is true that by s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”) the Federal Court is empowered (in combination with s 23 of the Federal Court of Australia Act 1976 (Cth)) to order a respondent to apologise to an applicant for discrimination or harassment. [37] By its terms, s 46PO is also compensatory in purpose.
One such occurrence occurred in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 when (at [34]) Kiefel J determined (in obiter, since the applicant’s complaint of racial discrimination was not established) that it would have been appropriate to order for an apology for the purpose of vindicating the applicant, a First Nations person, in the eyes of her community.
However, in commentary on this power, [38] the trend largely appears against such apologies being ordered in all but exceptional circumstances. In Wotton, Mortimer J emphasised the lingering sense of grievance and injustice informing not only the applicant, but members of her community who suffered racial discrimination in a police investigation.
Dealing with some of the other arguments Mr Lau raises that have not already been addressed, contrary to his submission, the circumstances that Betty’s loss is not quantifiable, or even demonstrated to have been caused by the Centre, provides less reason, not more, for the appropriateness of an apology in principle. The absence of quantifiable loss bespeaks a situation where an order under s 237 is not being made for a compensatory purpose. In my view, there is less need, not more, for a public apology where an entity’s conduct is unharmful in the sense of not attracting an order for monetary compensation.
If what Mr Lau seeks is vindication of proof that what occurred was in breach of contractual obligations to Betty (even though it did not occasion substantial loss or damage to Betty), he achieves that through the order for nominal damages, to the extent that he can in an action for breach of contract under the general law in the absence of proof of loss caused by the breach (or breaches). [39]
It is also unconvincing to suggest that the publicising of an apology is no different in effect than the publication of these reasons on Caselaw, whose reasons are, I take it, primarily read by parties to (actual or prospective) litigation or their legal representatives, judges and the legal profession more broadly.
Relevant also, in my view, is the scale or scope of the breaches of contract, although I hesitate to say much about this given my view that the underlying merits of a public remedy falls within the bailiwick of the regulator. What follows are only preliminary impressions uninformed by a whole host of factors. These have to be seen in dealings that the TDCC had with Betty for nearly a nine-month period. They are not many in number and, individually or in combination, they are not major in quality: as indicated by the absence of any claim for substantial damages. In particular, the omission to provide an APAM was in a relatively short period of time when Betty was not yet a full-time resident.
Whilst it may be expected that any breach of contract will generate disappointment, distress or upset in the promisee, on the findings I have made, the breaches were not of the character as to amount to the level of indignity or affront, or have any public dimension which would support the relief sought.
In summary of what I have reasoned, considered as a question of discretion, the public apology that Mr Lau seeks:
would be manifestly insincere;
would be inutile where the person whose personal or dignitary interests, manifested in hurt feelings, is deceased. Another way of saying this is that an apology to him, either in his personal capacity or as representative or proxy for Betty, could not rectify Betty’s hurt feelings;
would not be consistent with a compensatory purpose;
In accordance with my reasons, the Court orders:
Judgment for the plaintiff for $200.
The question of costs is reserved and, absent any indication of a requirement to the contrary, is to be determined on the papers.
The Court makes the following further directions on costs:
The defendant is to serve written submissions not exceeding 5 pages in length (excluding any relevant annexures in the nature of evidence) by 2 June 2025.
The plaintiff is to serve written submissions not exceeding 5 pages in length (excluding evidentiary annexures) by 5 June 2025.
The defendant is to serve any submissions in reply not exceeding 2 pages in length by 10 June 2025.
At the time of service of the submissions, the parties are to email to my Associate copies of the submissions.
**********
Amended Statement of Claim (‘ASOC’), sub-paragraph 2(a); Amended Defence, sub-paragraph 2(a).
Schedule 2 to the Competition and Consumer Act 2010 (Cth).
There were 2 volumes to the Court Book which comprised Exhibit B. Throughout these reasons Volume 1 is denoted by ‘1 CB’ and Volume 2 denoted by ‘2 CB’ followed by the relevant page number
This is not a complete description of the definition, but it suffices for the purposes of this case.
In Mr Lau’s written submissions (MFI 5), reliance was also placed upon non-compliance with provisions in the Aged Care Code of Conduct, consistently with s 54-1(g) of the current version of the Aged Care Act, but Mr Lau’s Counsel ultimately accepted that this provision was not operative at the material times (T194.5).
J Carter, Contract Law in Australia (“Carter”) (8th ed, J W Carter Publishing Pty Ltd, 2023) [29.13].
E Peden, Australian Law of Contract (online version, Westlaw Australia, Thomson Reuters) [21.340].
Carter, [29.14].
The Court was supplied with the version of these principles, titled Compilation No. 7, which were made under s 96-1 of the Aged Care Act 1997 with a compilation date of 29 November 2019.
Peden, [21.360].
Lucantonio v Kleinert [2009] NSWSC 853 at [8].
Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 (‘Apollo’).
The principle in Blatch v Archer was applied recently in Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 418 ALR 304 at [129].
The principle being reaffirmed recently in Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 at [74].
Cross on Evidence (Online version, Lexis Nexis) [7210].
Anglicare cited, without contradiction, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No. 7) 2020, by which TDCC was exempt from imposing ‘in-room isolation’ of its residents.
Wyong Shire Council v Shirt (1980) 146 CLR 40.
MFI 5, sub-paragraphs 16.4, 16.5; MFI 6, paragraph 47; T 143.35.
Chappell as executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205 at [52]–[58].
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 per Gibbs J at 7, when comparing ss 82 and 87 of the former Trade Practices Act 1974 (Cth).
See for example Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526.
J D Heydon, Heydon on Contract: The General Part (Lawbook Co 2019), [26.30] and the authorities cited in fn 7.
Badenach v Calvert (2016) 257 CLR 440.
See the structure deployed in Professor Paterson, Corones’ Australian Consumer Law, Lawbook Co 2019, chapters 13–15 (incl.).
By s 2 of the ACL (read with s 4(1) of the Competition and Consumer Act), the ‘regulator’ is defined as the ACCC (for the purposes of applying Commonwealth law). For the purposes of NSW law, it is the Commissioner of Fair Trading or Secretary of the Department of Customer Service: Fair Trading Act 1987 (NSW), ss 8, 28 and 30.
In Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20 the Full Federal Court allowed an appeal against the separate judgment on the imposition and quantum of a civil penalty.
I Ayers & J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992) p 39.
Cessnock City Council v 123 259 932 Pty Ltd (2024) 418 ALR 304 at [6].
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 12.
Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 363.
The position is more doubtful in relation to any immunity conferred by this provision upon Anglicare from relief under the ACL, but it is notable that the terms of the apology demanded referred only to a breach (or breaches) of contract.
This form of civil liability was not ‘excluded’ for the purposes of s 67(2) (and s 3B) of the Civil Liability Act 2002 (NSW).
Defamation Act 2005 (NSW), s 38. The legislation also encourages apologies by giving publishers an opportunity to voluntarily ‘make amends’ after a receipt of a concerns notice by a person who claims that they have been defamed as a precondition to commencing a defamation suit: Defamation Act, Part 3 Division 1.
Privacy and Other Legislation Amendment Act 2024 (Cth), Schedule 2, s 12(2)(c). The relevant statutory provisions commence on 10 June 2025.
C Sappideen et al, Fleming’s The Law of Torts (11th ed, Thomson Reuters 2024), p 781.
Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123), [12.160], [12.169].
Section 46PO of the AHRC Act empowers a Court to require a respondent to “perform any reasonable act to redress any loss or damage suffered by an applicant”.
C Ronalds & E Raper, Discrimination Law and Practice (5th ed, Federation Press, Ebook), pp 216–217, citing Wotton v Queensland (No. 5) (2016) 352 ALR 146 (“Wotton”) per Mortimer J (as her Honour then was) at [1553]–[1584], where the authorities in that area were thoroughly canvassed.
New South Wales v Stevens (2013) 83 NSWLR 106 at [19], [26].
Man Hay Lau
Anglican Community Services [2025] NSWDC 193
(2005) 216 ALR 766
(1985) 1 NSWLR 561
(2016) 257 CLR 440
(1993) 176 CLR 344
(2024) 420 ALR 1
(2024) 418 ALR 304
(2005) 93 SASR 179
(2001) 112 FCR 352
(1992) 39 FCR 31
(1986) 160 CLR 1
(2020) 282 FCR 530
(1985) 156 CLR 1
(1992) 37 FCR 526
(1959) 101 CLR 298
(2002) 120 FCR 243
(1998) 196 CLR 494
(2013) 83 NSWLR 106
(1992) 175 CLR 479
(2018) 339 FLR 244
(2017) 324 FLR 261
(2016) 352 ALR 146
(1980) 146 CLR 40
Eventually, at the end of the hearing, he also abandoned actions for non-compliance with the consumer guarantees contained in ss 61(1) and (2) of the ACL.
Ultimately, Mr Lau maintained his claim only for nominal damages for breach of contract (for the benefit of the Estate: T 7.6). He also maintained his claim for relief by way of a public apology by Anglicare, purportedly under s 243 of the ACL, in respect to the alleged non-compliance with the care guarantee (s 60) of the ACL. Included within Counsel’s schedule of issues (MFI 1) was the content of the apology he proposed; which I will refer to later in these reasons.
These claims give rise to the following issues:
The standard of duty for the contractual duties Mr Lau relies upon;
Whether Mr Lau has proven the pleaded breaches of contract;
Whether Mr Lau can claim the apology he seeks under s 237 of the ACL;
Whether the pleaded non-compliances with s 60 of the ACL are established;
Whether, in the circumstances of this case:
On 3 November 2020, Betty was diagnosed as having disorientation and hallucinations.
On 19 January 2021 at 3:44pm, Ms Christina Castle, Betty’s Care Co-ordinator, notified Mr Lau, within a broad-ranging email (Ex B, 2 CB 583–584) that Doctors Fashka and Vasfi would no longer be continuing their care of Betty.
On 19 January 2021 at 6:48pm, Mr Lau sent an email to Dr Fashka (Ex B, 2 CB 578). This was in response to an email Dr Fashka sent to him earlier in the day (1:51pm) referred to in these reasons on the issue of frequency of blood testing. In Mr Lau’s email, he made statements that:
There is force in Anglicare’s submission. That is not to say that there was a fundamental incompatibility between rights under the charter and the Aged Care Quality Standards: sometimes, indeed, there is a clear or close resemblance, between a (contractual) right under the Charter and ‘consumer outcomes’ in an Aged Care Quality Standard. It strikes me that ‘Charters’ are of their nature generally pitched as being more aspirational in nature in comparison, as a statement of what an aged care provider aspires to achieve for the patient and, moreover, what a consumer may expect to receive. It cannot, however, mandate any certain outcome akin to a promise to repay a debt incurred.
In a practical way, therefore, if the TDCC’s performance of its obligations complied with under any particular Aged Care Quality Service, it would be unlikely, absent any more precise obligation, to result in a higher standard when assessing whether a corresponding (in subject matter) right in the patient under the Charter. To adapt what the High Court said in Herald*-Sun*, the aged care provider needs to know what it is required to do under the Age Care Quality Standards in conformity with Quality of Care Principles and the Aged Care Act in order to avoid sanctions that might be imposed on it. That should not lightly be undermined by lingering uncertainty whether it needs to do more under contract. Further, the capacity of a centre to provide care is affected by its financial resources. Anglicare was not a private corporation, but a registered charity. I make that observation not to excuse it, or to suggest any greater or lesser standard of care because of that status, but rather to acknowledge what I consider is common sense. In the event, in this proceeding, Anglicare did not suggest that it lacked resources because of its status.
In his closing submissions, Counsel for Mr Lau predominantly relied upon the Aged Care Quality Standards; although in some cases he also relied upon rights under the Charter.
Anglicare noted two further matters. First, the services supplied under the Resident Agreement were supplied on an ongoing basis. When evaluating the performance of the service, Anglicare argued that it may, in the circumstances, be inappropriate to determine, say, that a singular incident might constitute a breach, even if the standard was high. Counsel for Anglicare cited the example of the service of waste disposal expected to be supplied over a period of months where it was inadequate on one occasion. Nevertheless, Counsel accepted that depending on the importance of an event, it might be of such importance (or consequence) as to give rise to a breach. In the waste disposal example, the service is typically rudimentary and routine. A failure to administer a drug or a nutritional supplement at periodical times may not be rudimentary but even if it is, it may be apt to have more serious consequences. Counsel for Anglicare emphasised that what was important was whether the performance matched the statutory requirement.
Secondly, for some of the asserted breaches expressly and others impliedly, Mr Lau complained that actions were taken affecting Betty which were contrary to his instructions which, he contended, he was authorised to give; even without reference to Betty. This had a bearing, especially on some rights in the Charter that relate to the consumer’s reliance upon an aged care advocate and potential conflict with Betty’s rights. For example, in Standard 1 of the Aged Care Quality Standard, certain ‘requirements’ included the Centre’s support for Betty to exercise choice and independence; even to “take risks to enable them to live the best live that they can”. But there is a tension in fostering that requirement or those requirements and the understandable sense of protectiveness that a person in Mr Lau’s position (as the patient’s aged care advocate) might have for Betty, which cut across it. Anglicare referred the Court to the principle recently stated by the plurality (Gordon A-CJ, Edelman J and Seward J) in BIF v Minister for Immigration, Citizenship and Multicultural Aff**airs [2024] HCA 44; (2024) 420 ALR 1 at [37] that:
Overall, I am inclined to consider that the standards in the Quality of Care principles reflect minimum baseline standards for the aged care provider. If there is to be any qualitatively or quantitively higher standard under the Charter, it must be specifically identifiable and capable of practical operation. In their construction, they are standards to be viewed objectively from the perspective of how a reasonable aged care provider in the TDCC’s position and circumstances would understand them. It is not how a consumer or (where, as here, there may be more than one consumer) consumers subjectively would expect them to be. This is so because the provider’s continued authority to operate depends upon its compliance with its statutory obligations, not the subjective expectations of its residents.
The document indicated that on 29 January 2021, Betty had also been moved to an arts and craft meeting in the company of other residents.
On 17 February 2021, Mr Lau sent an email to Ms Helen Burke, the Quality and Compliance Manager (Ex B, 1 CB 299-302). It appeared on the face of the email that by this stage, an investigation by the Aged Care regulator was on foot. Pertinently, for present purposes, at point 4c, Mr Lau questioned her:
On or about 16 June 2021 an Excel spreadsheet indicated that Christine Zipparo visited Betty again and repeated the conduct that she engaged in the previous day.
Mr Lau accepted that on none of the dates of these ‘exposures’ did Betty contract COVID: there was never any positive COVID test result.
Mr Lau indicated in cross-examination that after Betty had been transferred to Dural, she remained in her room the whole time but still contracted COVID. He accepted that he had told Betty about the risks of COVID and that he had wanted her to remain in her room. He accepted further that notwithstanding that she remained in her room ‘the whole time’ in the new facility in Dural, she still contracted COVID at that facility.
As to her moving back into the bedroom I place greater weight upon Ms Banton’s email to Ms Burke on 3 June than Mr Lau’s evidence of what ‘Tara’ said about a mistake being made. Tara’s ‘admission’ about a mistake was not powerful. Indeed it appeared ambiguous in different respects. What, precisely, was the mistake: was it the bare circumstance of taking Betty out of the room at all, contrary to Mr Lau’s preference, or was it taking her out but not moving her back inside the room and leaving her in the common area? Another possibility is that in the face of a disgruntled Mr Lau, and understanding Mr Lau’s own person preference for Betty to remain in the bedrooms at all times, Tara said what she said to try to placate him.
Another part of the complaint was that, in taking Betty out of the room in January 2021, staff in the facility did not give Betty information in advance of doing so, so that she could meaningfully determine for herself the circumstances in which she left her bedroom.
This argument is reminiscent of the distinction between a medical practitioner’s duty under the common law when treating or diagnosing a patient and when advising or informing a patient was recognised by the High Court in Rogers v Whitaker (1992) 175 CLR 479 (“Rogers”). It strikes me that an analogous duty arises in the context of an aged care facility. After all, some of the rights specified in the Charter of Rights (paragraphs 7–10) carry the connotation of patients exercising autonomy in decisions affecting their health; and in order for them to do that, they require advice and if appropriate or necessary, information; as well as receiving warnings.
That being so, it also strikes me that entailed in the duty of the aged care facility is the same, or similar obligation of a medical treatment provider, being the disclosure or warning of material risks in a particular course of action proposed to be taken by the aged care resident, with such risk being material if, in the circumstances of a particular case, a reasonable person, in the resident’s position, if warned of the risk, or provided with the information, would be likely to attach significance to it or if the aged care facility is or should be reasonably aware that the particular resident, if warned or informed of the risk, would likely attach significance to it: Rogers at 490.
The allegation of breach about a failure to disclose material information to Betty to enable her to meaningfully decide the circumstances in which she left her bedroom founders on two points. First, the premise must be that there is a material risk which gives rise to the obligation to inform or warn. Simply because of the incidence of a serious Pandemic commencing, in the preceding year, in 2020 and arguably the peculiar susceptibility of someone like Betty to the risk are not in my view circumstances which, in combination, are sufficient engage an obligation of disclosure or warning in January 2021. Protocols were in place in January 2021 after the experience of the Pandemic in 2020. How much of a risk of Betty contracting it was there when a protocol was in place for outside visitors (including Mr Lau) when at about that point there was no evidence of any residents either having the virus or experiencing symptoms of it? Mr Lau did not say.
Secondly, and relatedly, there is absence of any articulation by Mr Lau of (a) what the information was expected to be given to Betty, (in comparison to) (b) what information that was actually given to her, and (c) proof that such information which it is said was necessary was not actually given to her. (It is unnecessary to consider hypothetically what she would have done if apprised given that there is no issue of a need to prove any causal connection for breach). These are not trivial questions in a context where, I infer that Betty would not have been moved out of her room if she expressed her opposition to that course. Some of the factors that would be required to be taken into account when assessing the materiality of the risk are similar to those identified in Rogers (at 488.5), but it is not easy to answer them simply from the perspective of Mr Lau; even if he did carry legal authority to make some decisions. As I have noted, even that authority was not unfettered; especially in circumstances where he did not suggest that Betty’s capacity to make her own decisions was completely extinguished. The context here was a concern about COVID for someone like Betty whom, it can be also accepted, had a low immunity. The evidentiary vacuum is not answered simply by suggestions of shifting evidentiary burdens.
Although it was common knowledge that the Pandemic hit Australian shores in February or March 2020, Mr Lau did not prove what the situation with the Pandemic was as at the second half of January 2021. There was evidence that by October 2020, there was a protocol in place for visitors attending the centre. It is not known whether that was actually in place in the second half of January 2021, but no evidence to indicate that it was not. It strikes me that the main source of risk was outsiders coming into the facility and infecting the residents; and thereafter, one or more of the residents affecting other residents.
There was no evidence, however, of an outbreak in the second half of January 2021, or even if any residents had the virus as at 21 January or 29 January 2021. Even if there was, and if there was a risk that such residents might come into contact with Betty, it seems to me undoubtedly the case that she would have needed to be (at least) warned of the risk of leaving her room.
Nor is it axiomatic, as Mr Lau appeared to assume, that as at 21 January or 29 January Betty was exposed to the risk of contraction at any higher level than if she remained in her room.
I treat sceptically Mr Lau’s uncorroborated observations about indications of Betty’s resistance or opposition to leaving her room for stipulated reasons after the event.
I am not persuaded that Mr Lau’s complaints about the absence of high-quality care or a lack of informed consent in relation to protecting Betty from the risk of contracting the virus.
On 3 February 2021, a blood test was undertaken. This was 20 days since the previous test on 14 January 2021. However Anglicare argued that the agreement for fortnightly testing only was entered into on 29 January.
On 22 February 2021, a blood test was undertaken. This was 19 days since the previous test on 3 February 2021.
But in cross-examination, after being referred to those events, Mr Lau accepted that from 29 January 2021, there was only one occasion when Betty’s blood was not taken fortnightly (T 47).
Mr Lau appeared to complain that it took around 5 to 12 days for a nurse to obtain the results of the blood tests on its computer system (4Cyte Pathology). He deposed to asking Dr Flaska to change the pathology to Douglass Hanly Moir.
On 27 June 2021, as part of Betty’s transfer out of the TDCC, it was noted again that she had reached Stage 4 in sacrum (Ex B, 2 CB 494).
Anglicare submitted that it should be found that through the entire course of her admission until late June 2021, Betty was on an alternating air pressured mattress.
Anglicare acknowledged that the reference to ‘actively working’ mattress in the entries on 17 October 2020 (and thereafter) might be considered ambiguous, but the ambiguity was resolved when those entries were considered together with Registered Nurse Prechya’s skin integrity assessment form prepared on 2 June 2021. The Court was asked to accept that the inconsistency apparent, for example, in the entries on 28 September 2020 might be a function of a system of electronic inputting (sometimes by different staff members). Importantly, however, and considering the evidence as a whole, Betty had been provided with a Steiss mattress. It was significant that the mattress was observed to be actively working. Anglicare implied that this could only have been a reference to an alternating air pressure mattress.
Alternatively, Anglicare submitted that should the Court determine that Betty was not provided with an alternating air pressure mattress the Court should not jump to the conclusion that there was a breach. The Court was invited to accept Ms Ryan’s evidence that even with an alternative air pressure mattress, periodical repositioning of Betty’s body was required. Selection of the superior type of mattress was not itself a panacea.
Separately, and to address an alternative case raised by Mr Lau, in the period in which Betty was receiving respite services, up to 28 September, the evidence was not known what type of mattress she was on, a deficiency in knowledge about a matter which Counsel acknowledged was not ideal. Emphasis was again placed on other pressure-relieving measures that were taken.
To reiterate, Betty received respite care in the discrete period from 25 September to 28 September 2020. Anglicare did not suggest that within this short or discrete period, she was entitled to any lesser quality of care than when she ultimately became a full time resident.
I accept Mr Lau’s submission that temporal considerations for the use of an APAM were significant in this case and, in particular, accept Dr Sharp’s evidence about the onset of tissue death which was not substantially challenged. This was an occasion where, in order to provide high quality care, the APAM needed to be provided with prompt despatch.
Anglicare did not adduce evidence as to the commencement date for the use of the Steiss alternating mattress. All that is known is that it was recorded as being used by her as at 28 September 2020. There is an available inference that, according to the proof which Mr Lau was capable of furnishing, the APAM had not been provided to Betty before that date.
There is force in Mr Lau’s submission that the timely provision for the supply of an APAM has always been a prominent feature of his case.
This is an instance where slight evidence has been adduced that the APAM was not supplied to Betty before 28 September. In my view, some significance can be placed upon Anglicare’s omission to adduce evidence as to the timing for when the APAM was provided. There may have been protocols or policies that would typically supply such information from which inferences as to timing could be derived. Anglicare did not adduce evidence to explain that short of reliance upon the memories of nursing staff, it was impossible to ascertain when an important piece of equipment like an alternating air pressure mattress had been supplied to a patient (whether in respite services or as part of a residency agreement). It did not prove that there were no records that might record such information.
I also recognise the force of Anglicare’s submission, supported as it was by Ms Ryan’s evidence, that there may have been explanations for why, in a government-subsidised not for profit aged care facility, an APAM may not be instantly supplied such that, in the meantime, a lesser quality piece of equipment, such as an air mattress (supplemented by other aids for pain relief and appropriate regular positioning of Betty’s body) might have to suffice. But Anglicare did not seek to prove that this explanation actually accorded with the circumstances that occurred within the discrete period. Given the materiality of the timely provision of equipment to Betty, it is not an adequate defence to say that the Steiss alternative air pressure machine could have been provided before 28 September.
In the circumstances, I find that it was more probable than not that Betty was not supplied with an alternating air pressure mattress until 28 September 2020.
Anglicare accepted that there may be instances where, notwithstanding that services may be provided over a period of time, singular events may be of such importance that they might give rise to the conclusion that a breach of contract has occurred. In my view, this is one such occasion.
I would have found that the omission to provide an alternating air pressure mattress to Betty from 25 September to 28 September 2020 did not comply with Standards 3 and 7 of the Aged Care Quality Standards and also cl 1 of Schedule 9 of the Charter. Betty was not provided with an APAM in that particular period in circumstances where the omission was not explained and therefore could not be justified. This represented a departure from the promise of a high quality delivery of clinical care.
As with an earlier finding I made, and for the same reason, the materiality of this matter, especially in terms of timing, indicates that if Betty and Mr Lau knew about it, and the virtual imperative that Betty be given an APAM, the omission to do so also meant that there was a failure to comply with Standard 8 of the Aged Care Quality Standards.
Since a contract was not operative in this narrow period, Mr Lau cannot establish a breach of contract in respect of this matter; even if there was a departure from statutory obligations.
I do not consider that these findings are affected by the words Mr Lau attributed to Ms Banton; about what she could do without getting Betty’s approval. At the time she was administering the drug, she was following the advice prescribed for her by the doctor. There had been no indications, before or since the incident of 15 June, that Betty had taken issue with being supplied the prescribed medication at the time-sensitive moment. Ms Banton was not obliged to seek her express permission every time she sought to administer the prescribed medication, at least in the event that Betty did not protest. In this regard, it was not proven that Betty was incapable of raising objection for herself. This is but one instance where Anglicare’s submission that an attorney or guardian’s powers should be exercised with restraint has salience.
I also consider that even if the words attributed to Ms Banton were said, and even though they might be regarded as being curt, or even rude, to Mr Lau, they were expressed in a tense situation and a singular instance of rudeness to Mr Lau in that particular context and over a lengthy period of service would not by itself give rise to a breach of charter rights.
In these circumstances, I do not find any breach of the standard that invited feedback from Betty if by that, it is suggested that her permission was required. At the operative time, she was in no position to sensibly give it. For the exercise of feedback to be meaningful, the person providing it is desirably in a calm state of mind. Even if she did give feedback, she would have naturally been placed in a position of conflict between her loyalty to her husband and her wanting to have a co-operative relationship to nursing staff. In all likelihood, she would have been embarrassed by the situation.
I referred earlier in these reasons to the absence of hierarchy in the rights or standards. In my view, if there was any failure by the TDCC in this respect, staff were created with an unexpectedly urgent situation not of its making, but rather caused by Mr Lau’s interference and abuse.
I am not persuaded, in the circumstances that even if, contrary to what I have found that the conduct in reporting to police may have established any breach of the standard whereby Betty’s feedback was sought, that such breach could have engendered a lack of confidence in the way the Centre operated.
Further, there was no evidence that Betty was denied the opportunity, or discouraged, subsequent to the incident on 15 June, to provide feedback, in respect to that incident, or anything else in the period she received her services.
Construed in this way, I am not persuaded that cl 11 of schedule 9 was breached.
As to cl 12 of schedule 9, the evidence was that Betty had been notified of the Centre’s intended application to remove Mr Lau as guardian. This was antithetical with the notion that she was not treated with dignity or respect in this regard.
There was no clear evidence of Betty being deprived of the opportunity to complain. I referred earlier to the temporal consideration of when a purported denial of the opportunity to provide feedback is to be considered, when considering other complaints about the Centre’s conduct on 15 June 2021. It is unnecessary to repeat that.
I am unpersuaded that in the course of ‘mistreating’ Mr Lau, there was non-compliance with Betty’s rights under the Charter or the Aged Care Quality Standards.
The parties were invited to make supplementary written submissions which I have considered (MFI 7 and 8).
Anglicare submitted that on a plain reading, only the Supreme Court has the power to grant relief under ss 237 and 243. Anglicare cited a decision of Parker J in The Ntf Group Pty Ltd v Pa Putney Finance Australia Pty Ltd (2017) 324 FLR 261*;* [2017] NSWSC 1194 where, at [52], his Honour resolved that the District Court had the power to entertain a claim for damages (under s 236) but lacked power to entertain a claim under s 237 of the ACL.
As to s 135 of the District Court Act, Parker J observed (at [58]) that the provision presupposed that a money claim had been made under the Fair Trading Act and conferred upon this Court the jurisdiction to grant non-monetary relief in connection with that claim. Thus, if a claim for damages was made under s 236 which fell within this Court’s jurisdictional limit, the Court could make alternative orders under s 237.
The decision of Parker J preceded legislative changes to the Court’s civil jurisdiction in 2018 and, in particular, conferral of jurisdiction in respect to commercial transactions (within the monetary limit of the Court’s jurisdiction).
Anglicare referred to a decision of Montgomery DCJ in Structum Pty Ltd v Bailios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119 (‘Structum’). In that decision, in the course of applying a purposive construction of the provisions, his Honour determined (at [101]) that through the combination of ss 44(1)(a), 44(1)(c1) and 135 of the District Court Act, this Court was empowered to make orders under s 237 of the ACL.
Mr Lau contended section 135 of the District Cour**t Act 1973 (NSW) affords the District Court with all the powers of the Supreme Court in any proceedings in which relief is sought under the FTA, this must include relief under the Australian Consumer Law (NSW) through operation of section 28 of the FTA.
He submitted that The Ntf Group Pty Ltd v Pa Putney Finance Australia Pty Ltd [2017] NSWSC 1194 was distinguishable since it involved the jurisdiction of the Local Court.
Mr Lau further submitted that the principles espoused in that case cannot apply to these proceedings since
the comments of Parker J are obiter dict**a; and
there is a distinct difference with respect to the two forms of relief sought.
In my view, I would respectfully adopt the approach of Montgomery DCJ in Structum. In Structum, the defendants’ objective was to rescind a guarantee. They pleaded a contravention of 20 of the ACL (the statutory provision proscribing unconscionable contract), although they did not expressly plead reliance upon s 237 of the ACL.
His Honour disposed of the case without reference to the District Court’s power to make orders under s 237, determining that the Court also had jurisdiction under s 44 of the District Court Act 1973 (NSW). His Honour thereafter considered and determined that jurisdiction arose under s 44 of the District Court Act. His Honour thereafter determined, in obiter, that the District Court had jurisdiction to make orders under s 237 of the ACL under s 135 of the District Court Act.
His Honour said:
Being unable to prove that Betty, as the consumer, suffered loss or damage, Mr Lau had to fall back to an argument that he had or was likely to suffer loss of damage. This argument encounters the same problem he acknowledged in relation to s 236. If by law he was prevented from bringing a claim, as Executor and Betty’s representative, for damages under s 236, the same result would apply, by parity of reasoning if his only basis for the claim under s 237 was in respect to the same loss or damage.
The only basis he had to argue his standing under s 237 was to invoke the possibility that he was likely to suffer loss or damage. That is, it was probable that loss or damage might occur in the future. But Mr Lau barely asserted, much less demonstrated, how he was likely to suffer loss or damage.
His real position was that he had suffered actual loss. That, however, begged the question why he could not seek damages under s 236, even if the consumer guarantee was not owed to him: given the line of authority to say that an applicant under ss 236 (and 237) need not themselves have ‘relied’ upon conduct constituting the contravention to satisfy the causal connection. [21] By contrast, standing to seek the remedy for the non-compliance with the consumer guarantee that had been pleaded in the ASOC – compensation under s 267(3) – was limited to the consumer.
At any rate, I disagree with his contention that nominal damages alone (for a breach of contractual duties owed to Betty) could suffice to establish that (in a personal capacity) Mr Lau suffered loss or damage for the purpose of s 237. To the contrary, the occasion for nominal damages arises where no loss is proven [22] . Even if Mr Lau was the recipient of the award, this was still only loss or damage suffered by Betty and he would only be recovering that award as Executor.
Then there is a difficulty in causation. Mr Lau submitted that the Court could infer that if Mr Lau had known that the services supplied to Betty did not comply with the care guarantee, he would not have entered into the resident agreement. This is a ‘no transaction’ case. There are multiple difficulties with this argument.
First, Mr Lau cannot be subrogated to Betty’s rights under the ACL in the way he implicitly suggests. The causation question is what Betty would have done. Secondly, his (inherently retrospective) evidence of what he would have done is of little weight. I refer to what I said earlier about my reservations concerning his reliability. This is the type of evidence that would be inadmissible in civil actions for damages in s 5D(3) of the Civil Liability Act and, even if it was otherwise admissible, it is notoriously self-serving. Thirdly, on the assumption that he was the sole decision-maker, Mr Lau did not appear to have the luxury of deciding whether or not to put Betty into an aged care home. Because of the state of her health, she had to be put in some aged care home, so Mr Lau’s case really boils down to an ‘alternative transaction’ case.
That being so, he needed to demonstrate that he could and would have done something differently: Protec Pacific Pty Ltd v Stryker Services GMBH & Co KG [2014] VSCA 338 at [591]. But he has a difficulty of proof in this sense as he did not identify other aged care providers that could have provided Betty with the services at the time that this became necessary for Betty. The observations in Marks v GIO at [21], [47]–[56] in the context of a case concerning liability for misleading or deceptive conduct, are apt in this context. Relevant in this regard is also the need for approval from the Commonwealth Department of Health for the provision of services. Where causation in a counterfactual requires proof of what a third party would have done, the omission to provide such proof can be fatal to the causation requirement. [23]
As to another limb of his argument that he suffered loss or damage, in relation to incurring obligations, I accept that there are cases where the incurring of an obligation can amount to loss or damage, but I am not persuaded that the proposition applies here. Again, the question is more whether Betty incurred obligations; not Mr Lau. But at any rate, the proposition usually occurs where the obligation has a monetary value (such as an obligation to pay rent under a lease procured by misleading conduct by a lessor or its agent) and where by reason of the contravention, a detriment with monetary value is established. Mr Lau had sought as part of an earlier action for substantial damages in contract, to recoup the money he paid, but that particular relief was abandoned at the hearing in his action for breach of contract. But that was a past lump sum of money he had paid. He had not identified in his pleading any material facts to found any continuing (in the sense of unavoidable) financial obligations he had to Anglicare.
To the extent that he is relying upon a past payment by him to Anglicare as the form of loss or damage (including injury), he is effectively seeking to resurrect a position he abandoned in relation to the contract claim and the action in the tort of negligence. Had that claim for loss or damage been run, questions would have arisen as to whether and what value could be ascribed to the care and accommodation services Betty actually received. Such questions would have been posed if the relief claimed in the pleading under s 267(3)(b) of the ACL had been pursued, but it was not. At any rate, Mr Lau did not incur any continuing obligation following Betty’s entry into the resident agreement.
Thus, Mr Lau did not suffer actual or likely loss or damage because of conduct by Anglicare that constituted a non-compliance with the care guarantee owed to Betty. In those circumstances, he has not fulfilled the first requirement under s 237, even allowing for the broader notion of loss or damage in s 237, relative to s 236 of the ACL. His statutory action should be rejected for this reason alone.
But, in case I am wrong, I will consider other arguments.
This is illustrated by the circumstance that there are other remedies that are comparable or similar to an apology which appear in Division 5 of Part 5-2 of the ACL. Analogous powers to a court-mandated apology appear in corrective advertisements the subject of powers contained in s 246(2)(c) (or (d)) of the ACL, as ‘Non-punitive orders’. This type of order also appears in s 247(2)(b) of the ACL, under the rubric of an ‘adverse publicity order’.
Those respective remedies are made by the Court on the application of ‘the regulator’. [25] They are remedies in respect to which there is also doubt whether the District Court could make: Fair Trading Act, 30(3); however, the present issue is not whether they could actually be made under ss 246 or 247; but rather whether they might be adapted and made under ss 237 and 243 at the behest of a private applicant.
A brief reference to two decisions concerning corrective advertisements and adverse publicity orders illustrate multiple dimensions of the public interest affected by the exercise of those powers.
In ACCC v Singtel Optus Pty Ltd *(*No. 3) [2010] FCA 1272 Perram J considered the predecessor provision to a corrective advertising order in s 246(2)(d) under the ACL (being s 86(2)(c) of the Trade Practices Act). [26] The contravention in that case involved the proscription against misleading or deceptive conduct in trade or commerce (s 52 of the Trade Practices Act). His Honour noted (at [4]) that the power in s 86(2)(d) was not ‘punitive’ even if the remedy acted as a deterrent. The remedy was directed to the end of “removing confusion from the public mind”. Put another way, one of the aims was to protect the public interest by dispelling the false impression engendered by the advertisement; another was to inform consumers of the (contravening) conduct in question. Another benefit of the order, associated with an economic concept of efficiency, was to correct market distortions caused by the provision of inaccurate information to consumers (at [5] and also [24]).
In Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39, Mortimer J (as her Honour then was) explained that the purpose of an adverse publicity order under s 247 was “protective not punitive”, whilst acknowledging that the order serves a wider purpose of general deterrence as it publicised to the general community consequences of contraventions of the ACL. In that case, the order was imposed in a case that concerned contraventions of the ACL relating to safety standards for consumer goods. In that particular context, her Honour also indicated that they can, in relevant circumstances, serve to notify other members of the public who might be ‘consumers’ about safety issues associated with ‘affected products’. Her Honour also noted that such orders serve a function of holding the contravener ‘publicly accountable’ for contraventions (at [70]–[73]).
These decisions (and those in other statutory contexts to be considered later in these reasons) indicate that considerations informing the question whether a court should order a defendant to make a public apology travel well beyond the compensatory objective of s 237. It strikes me that the purposes for public apology in this case might be considered to be (independently or in combination): partly general and specific deterrence, partly to hold Anglicare to account, and partly to protect actual or potential residents of the Centre, and partly retribution and denunciation; the last two considerations manifested in the form of a public shaming of Anglicare by a mandated publicised apology. Contrary to Mr Lau’s submission, that is not lessened by the mere wording of the apology, however anodyne that may be.
These are all familiar sentencing considerations. Sentencing is a public proceeding in which the Crown acts on behalf of the community. In the context of civil penalty proceedings, it is the regulator who effectively acts on behalf of the community. They are not considerations which are relevant to the relief which individuals or entities are ordinarily entitled to seek and obtain in private proceedings.
There is a policy reason why standing to seek public remedies (of the nature of ss 246 and 247) is exclusively confined to the regulator. It is the regulator who has the capacity to determine, in the public interest, what remedies are most appropriate for contraventions of statutory provisions. It is notorious that a regulator might seek an outcome that emphasises general deterrence in some cases at one end, or education and future compliance in another (another end), depending upon all of the circumstances, as part of the ‘pyramid’ in standard regulatory enforcement theory. [27] Why should a Court, in the contemplated exercise of judicial power, think it knows best what relief is in the public interest in the absence of an application brought by a regulator? Regulators are better placed to advocate for the effects of contraventions, such as distortions in a particular market for services, or consequences of a remedy, whether or not in combination with other remedies, of a public kind (such as the power to impose a compliance program) or private nature (such as compensation) in light of their experience and knowledge of industries, the record of the supplier (including prior contraventions of statutory provisions) and the anticipated effects of remedial consequences on the behaviour of consumers and contraveners alike within them. The standing to seek public remedies is not vested in private individuals like Mr Lau. To the extent that transparency in the operations of aged care providers is a virtue, as Mr Lau argues that it is, it is a regulator which properly determines whether any particular case represents a proper vehicle for public law enforcement; and which brings to the Court’s attention relevant considerations to the assessment of appropriate remedial relief.
I alluded to Part 5.4 Division 1 of the ACL earlier. The provisions in this division are remedies granted to a consumer in relation to a non-compliance with consumer guarantees in relation to goods and services. I characterised them as being ‘private’ in nature. It is of some significance that not even in the provisions of this part of the ACL is the Court empowered to order a public apology against a supplier who does not comply with a consumer guarantee. But one step removed, Mr Lau, either in his personal capacity or as Betty’s representative or proxy, applies for that relief on the footing that consumer guarantees owed to Betty, the consumer, were not complied with.
In relation to the statutory object (consumer protection) of the ACL, there is, however, no compelling reason to add a public apology to the remedial smorgasbord offered by s 237, at least in the context (at the risk of putting it crudely) of a one-off commercial transaction between supplier and consumer even if the service(s) is or are provided over a substantial period. This is not a case of a common defective product sold to a class of consumers, or a misrepresentation about the qualities of a service provided to a class of consumers in which publicity can conspicuously be seen as furthering a general objective of protecting consumers in a way that is consistent with the narrower compensatory objective found in s 237. The circumstance that one consumer within a facility can establish a non-compliance with the care guarantee in particular circumstances says nothing in itself about the likelihood of services to other consumers within the facility also failing to measure up. If it did, again, the Court would expect the involvement of a regulator to assert and prove this.
I am not persuaded that the District Court is empowered to order that Anglicare make a public apology under ss 237 and 243 of the ACL at Mr Lau’s behest, either as Betty’s representative or in his personal capacity. It is unnecessary to decide the question whether it would be empowered to grant that relief if it had been sought by a regulator. What I have written in [480]–[497] is also a long way of explaining why the second requirement for relief under s 237 is also not fulfilled.
In case I am wrong on the matter of power, however, I will now contingently consider discretionary matters that would arise on the premise that the Court is so empowered.
Anglicare has defended this proceeding with vigour. It is not remorseful. A measure of its determination is that had it apologised to Mr Lau for breaches of contract, it would have been immunised from civil liability in an action for breach of contract, by s 67 of the Civil Liability Act 2002 (NSW). [31] By s 69 of the Civil Liability Act, had it chosen to apologise to Mr Lau, Anglicare would have the benefit of not being taken to have made admissions so that the apology would be irrelevant to proving any breach by it of contract. [32] That would still leave the circumstance that an apology was made as relevant to the issue of remedies. I infer in those circumstances that Anglicare has never apologised to Mr Lau at least for any breaches of contract with Betty. From there it is but a short step to conclude that any apology that the Court now orders it to make would be coerced by the Court. Nor would it be expected that Anglicare will suddenly become remorseful even where, as has occurred, I have found some breaches of contract and in the event that the Court decided to exercise power to force Anglicare to make an apology to Mr Lau.
Moreover even if Mr Lau, in a limited capacity as Betty’s personal representative, has standing to receive the apology on her behalf, her presumed past hurt feelings would not likely be assuaged by the power being exercised since the apology would obviously be insincere for being coerced.
There might even be a risk that the public statement an insincere apology might exacerbate raw feelings (if only in Mr Lau). Counsel for Mr Lau argued that there was a certain level of discretion in Anglicare to publish the apology in terms of its content, but that being so, there must also be a risk that Mr Lau not be satisfied with it. He may have even have second thoughts about the adequacy of the apology after it has happened or even seek an apology for the apology. There may thereafter be disputes about the extent of compliance with the court order (including, potentially, arguments about disobedience to the order so that, therefore, the spectre of contempt of court might arise). There is a risk, in short, that whatever level of apology Anglicare provided, it may not bring the closure or finality that Mr Lau’s Counsel optimistically predicted.
Especially pertinent, with respect, and consistent with my own views, was Mortimer J’s point, expressed at [1590]–[1591] that apologies are more likely to have value where public entities or officeholders have engaged in the conduct complained with, as distinct from controversies as between private parties, in which context there is generally a negative disposition towards apologies since “the idea of ordering someone to make an apology is a contradiction in terms”: Jones v Scully (2002) 120 FCR 243 per Hely J at [245].
A further difficulty, in my view, is that the list of persons against whom Mr Lau’s Counsel argued for the possible application of Jones v Dunkel is quite large. By its terms the apology his Counsel proffers draws no distinction between a wrong performed by an individual and one performed by the Centre (and therefore Anglicare) as an institution. That would make any such apology more impersonal, as well as casting a negative reflection upon persons who, on an individual level, are blameless and conscientiously provided good care to Betty. This may not be the strongest consideration against it, but it remains relevant.
In my view, the analogy afforded by apologies in the discrimination context does not assist Mr Lau: the occasion of the wrongful conduct was a particular commercial transaction between private parties; where the complaints go to the treatment of service providers rather than a direct affront to an aspect of Betty’s identity (unlike the discrimination cases, where affronts to a person’s particular feature or identity, such as age, race, gender, sex or disabilities, frequently generate complaints). This is not a case where conduct affecting Betty was in public, such as to embarrass, humiliate or demean her in the eyes of others. The dealings here were private.
This highly limited survey indicates that the circumstance that public apologies can be coerced in other statutory contexts does not assist the Court to decide whether, as a matter of power or discretion, the remedy is or should be available under the ACL.
would be given in circumstances where, other than the publicity this proceeding has generated, the Centre’s conduct towards Betty was private or did not play out in public, so as to humiliate or demean her in the eyes of others;
overlooks that the purpose of achieving vindication of the infringement of Betty’s rights has been achieved, albeit through nominal damages, for the breaches of contract that I have found established;
is problematic as it requires an institution to apologise, at least in the context of a singular and private transaction between service provider and a consumer in trade or commerce.
If I am wrong about an absence of power to order an apology, in the circumstances of this case, I would add as a discretionary consideration militating against the remedy, the absence of input of the Australian Competition and Consumer Commission or state equivalent, and the circumvention of the specialist aged care regulator’s enforcement role.
Mr Lau’s claim for relief in the way of a publicly advertised apology by Anglicare under ss 237 and 243 of the ACL is refused. His statutory action is therefore dismissed.
In the unusual circumstances of this case I will give the parties the opportunity to separately address me on the question of costs.