(a) The defendant had breached the Agreement in a fundamental or substantive respect.
(b) That before the plaintiff either took steps to have the defendant leave or before it implied that the defendant must leave:-
(i) there had been an assessment of the defendant's long-term needs in accordance with s.23.6(4) of the User Rights Principles ; and
(ii) that suitable alternative accommodation was available that met such needs of the defendant and which was affordable by her.
104 The plaintiff relied upon the evidence in Exhibit "LK-1" (in particular pp.69 to 79) as establishing that the above pre-requisites had been met.
105 The important date by which such evidence is to be assessed is the date of the notice of termination, namely, 1 December 2006. The question is what had been done before 1 December 2006 to meet the procedural requirements in s.23.6 of the User Rights Principles?
106 Firstly, any assessment made of the defendant's needs by the defendant's general practitioner, Dr Brazier, was not the subject of a report by her prior to the date of the notice of termination for he report was dated 4 December 2006. That report could not be taken as a comprehensive assessment of the defendant's long-term needs. It was not expressed in terms of an assessment of need. I will return to Dr Brazier's reports below.
107 The seven page Aged Care Record dated 4 December 2006 under the hand of ACAT Assessor, Melanie Hawthorne, was a post notice of termination assessment. Part 1, Client Registration, of that Record indicates that the defendant's case was first referred for assessment on 4 December 2006, the date of Ms Hawthorne's record itself.
108 I note that it was on or about 27 November 2006 that Ms Kearns caused an inquiry into the defendant's ownership of real property. Four days later, the notice of termination was issued.
109 There had been an attempt earlier to assess the defendant's needs. Ms Kearns refers in her affidavit to a meeting held on 24 August 2006 between Dr Brazier, Ms Navin, Ms Duthie, Ms Brooks, Ms Bowker and herself. According to Ms Kearns, Dr Brazier reported on the defendant's long-term needs (there is no information as to the terms of such "report") and referred the defendant to consulting psychogeriatrician, Dr Bob Russell, and Royal North Shore Hospital ACAT for "further assessment".
110 On 17 November 2006, the defendant again advised that she would not see an ACAT team.
111 Ms Kearns further stated that the defendant refused to see Dr Russell and the Royal North Shore Hospital ACAT team member, Ms Hawthorne, when they visited her. Accordingly, an ACAT long-term needs assessment could not be completed. Subsequently, on 4 December 2002, the defendant agreed to be assessed by ACAT.
112 On an unspecified date in November 2006, Ms Kearns stated that the defendant was assessed by "the health practitioners" in accordance with the User Rights Principles. Those practitioners are not specifically identified but apparently included Dr Brazier and Ms Brooks, Acting Director of Resident Care.
113 Both Dr Brazier and Ms Brooks concluded that the defendant "was no longer suitable to be accommodated at WRCA but was suitable to be transferred to another residential care facility in Queensland to be near her son and his family (which may help to reduce her aggression) or to relocate back to her home unit in Cammeray …". Reference is made to Dr Brazier's opinion in her report of 4 December 2006 and 8 January 2007.
114 I have referred above to the first of those two reports. That report does not confirm that an assessment of the defendant's long term needs was undertaken by Dr Brazier in accordance with the User Rights Principles. Even if I were to proceed upon the basis that one may imply that Dr Brazier did so, there are no particulars of what assessment was made with respect to both the defendant's physical and other infirmities. That is not a reflection upon Dr Brazier. She evidently was not requested to provide an assessment report which laid out the findings and results of any assessments, testing and/or examinations that may have been undertaken. There is also no reference to the date or dates upon which any consultations were held in November or December 2006.
115 Dr Brazier's report of 8 January 2007 repeats the first five paragraphs of her first report. The only new matter is the penultimate paragraph. That refers to "an alternative suggestion" which relates to a relocation back to the Cammeray unit with a Full Care Community Package "if assessed to be appropriate".
116 The second report does not, in my opinion, constitute an assessment for the same reasons expressed above in relation to the first report. Given the defendant's obvious physical infirmities and the difficulty of her accessing the Cammeray unit by the stairway to it, I would, with respect, concur with Dr Brazier's comment as to the need for an assessment of any such re-location.
117 Mr Kearns, in her affidavit and oral evidence, provided details of the availability of other facilities. This evidence relies upon Mr Kearns' inquiries by accessing internet web sites. I do not consider that such inquiry of itself takes the issue of an assessment of the defendant's long-term needs very far. It is one thing to establish the availability of premises and another as to the "suitability" of the same which must depend upon a professional assessment involving a matching of a particular individual's needs and consequent requirements to the premises, staff and support services available in particular facilities.
118 It was submitted on behalf of the plaintiff that the plaintiff was not entitled to give the notice of termination on 1 December 2006 before suitable alternative accommodation affordable by the defendant was available to meet her assessed long term needs. In this respect, it was submitted that the plaintiff had the onus of proof on this issue as a condition precedent to obtaining an order for possession. I accept that the plaintiff does have such an onus.
119 It was also submitted on behalf of the defendant that there was no evidence as to the availability to the defendant at any relevant time of suitable alternative accommodation that was affordable by the defendant to meet her assessed long-term needs. It was emphasised in this connection "assessed" means assessed pursuant to s.23.6(4) of the relevant principles. In this respect, reliance was placed upon Ms Kearns' admission that as at 1 December 2006 there had been no assessment of her long term care needs by an Aged Care Assessment Team as required by s.23.6(4)(a) or by medical or other health care practitioner who met the criteria prescribed by s.23.6(4)(b).
120 Accordingly, I have concluded that the matters required by s.23.6(3) had not been undertaken prior to the notice of termination and that the notice was accordingly invalid and unenforceable. Accordingly, the plaintiff was not entitled to possession. That conclusion, of course, would not preclude the plaintiff from relying in the future upon the defendant's abovementioned breach subject to fulfilment of the statutory pre-conditions.
121 Accordingly, given the invalidity of the notice, questions (b) and (c) must be answered in the negative.
122 I have accordingly concluded that the answers to the questions set out in paragraph [3] should answered as follows:-
(a) Yes
(b) No
(c) No
123 I will reserve to the parties the opportunity to make submissions on the question of costs.
124 I will permit the parties the opportunity or reading these reasons before determining the future course of the proceedings in terms of case management.
125 Accordingly, I stand the proceedings over for mention and directions, if required, to Thursday 12 July 2007 at 9.30 am. I grant leave in the interim to apply to the List Judge as necessary on one day's notice.
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