Baff v The Forsight Foundation [2000] NSWSC 457

New South Wales Supreme Court

CITATION : Baff v The Forsight Foundation [2000] NSWSC 457 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2255/00 HEARING DATE(S) : 15, 17, 18 & 22 May 2000 JUDGMENT DATE : 22 May 2000

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

COUNSEL : Jane Needham (P) J P Phillips (D) SOLICITORS : T A Murphy, Legal Aid NSW (P) Gadens (D) CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - Balance of convenience - Efforts of State agencies to find plaintiff alternative accommodation - Shortness of time for which injunction sought. LEGISLATION CITED : Community Services (Complaints, Reviews and Monitoring) Act 1993 CASES CITED : Baff v The Forsight Foundation [2000] NSWSC 382 DECISION : Interlocutory injunction granted for further finite period.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 22 MAY 2000

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

JUDGMENT

HIS HONOUR:

1 I have already delivered a judgment in this matter: Baff v The Forsight Foundation [2000] NSWSC 382 ("my judgment"). On that occasion, Miss Needham, on behalf of the plaintiff, obtained a week's adjournment and a coextensive injunction to permit the plaintiff to lay evidence before the Court before there was a more ample hearing of the application. The circumstances which give rise to the proceedings are at least shortly set out in my judgment, and this judgment should be read in conjunction with it. I commented in it that this matter was a somewhat distressing one and nothing has occurred to alleviate that situation. Some comment was made after the delivery of my judgment upon my use in it of the expression "severe mental and physical disabilities" in relation to the plaintiff. The complaint was perhaps just from the plaintiff's point of view in that, in the technical language used in relation to disability, her disabilities are characterised as moderate rather than severe. However, in dealing with her situation, one must face the position that the plaintiff is blind, that she suffers from congenital hydrocephalus, and that she has considerable behaviour problems. Exactly their extent and how well they have been handled is a matter of controversy in the proceedings. There is no doubt that she requires a high degree of care. 2 Since she has been ejected from the defendant's home, "exited" is the jargon word used, she has been living with her mother in the mother's home. No one else lives in that home. Her mother must work, as must most adult members of the community, to earn her keep. The situation would be serious indeed except that the Ageing and Disability Department ("ADD") has provided funding which enables some form of proper care to be afforded to the plaintiff during her mother's working hours, although a very heavy burden falls upon the mother out of those hours. It is fair I think to say that it is a situation which is short of what is desirable. Although not crisisful in the short term, it is out of the question as a satisfactory medium to long term solution. 3 The representatives of two Departments of State have given evidence before me today, those being the Department of Community Services ("DOCS") and the ADD. I do not need to go into detail, but the function of those Departments was separated in 1995 and remains separated, the aim being to procure a detachment between the service providing department, which is DOCS, and the funding department, which is ADD, to ensure independent and objective allocation of the funds in this area, which are scarce and under much demand. In the course of allocating those funds, quite difficult decisions no doubt have frequently to be made. 4 Application is in the process of being made for further funding for the plaintiff's future accommodation. This has been happening, I am afraid, all too slowly. There has been no great speed in communications passing between DOCS and the plaintiff's lay advocate, who seems to have been under an unfortunate misapprehension in regard to the destination of the relevant document, and also within DOCS. This Court has no jurisdiction over what is done about these matters within those Departments of State, where the administrative decisions of the Executive Government as to this matter are taken. The Court is faced, however, with a difficult situation. The situation is so out of control and difficult that this matter, inherently unsuitable for adjudication by a Court so far as the real decisions are concerned, has in desperation been brought to Court. 5 It is, I hope, and the evidence leads me to believe, a very unusual case. Some of the features that render it very unusual are that the plaintiff resided in the defendant's home for some 11 years, for most of that time happily and successfully, before it was deemed necessary to exclude her from it. A situation of apparently unresolvable conflict did develop between those who operate the home on the one hand, and the plaintiff and her mother on the other. Whose fault that is may have to receive some further consideration if no other solution is left but the application of the bludgeon of Court orders to this problem. But the problem should be resolved and, indeed, in reality can only be resolved in other ways. Another unusual feature of this case is that the plaintiff unfortunately was the subject, within the recent past, of a sexual assault which, it may be taken on the evidence, undoubtedly occurred, because someone was convicted of a criminal offence in relation to it. It occurred whilst she was in the defendant's care, although not on its premises. Whilst I have not yet had to make any determination on the evidence, there is material before me which seems to suggest, as is hardly surprising, that, if the problems of conflict did not arise after that unhappy incident, they were certainly exacerbated by it and by the trauma and upset caused by it to the plaintiff and her mother. As I have already said, so desperate has the situation become that the matter has been brought to the Court as a last resort in an attempt by the plaintiff to force her return to the defendant's home, at least pending the outcome of a complaint and review procedure which has been instituted and which is going on pursuant to the Community Services (Complaint, Review and Monitoring) Act 1993. 6 The funding pursuant to which assistance is at least being given to the plaintiff's mother in her home in the short term, I draw the inference on the evidence before me, will continue until 30 June 2000, the end of the financial year. It is by no means certain that it will be withdrawn after that time, but equally its continuation after that time cannot be guaranteed. I therefore propose to stand the matter over to a day between now and 30 June 2000. As I say, I cannot compel conduct on behalf of the Departments of State concerned in relation to the matter, nor is it appropriate that I should be in a position to do so. However, in view of the distressing and, I trust, singular features of this case, I urge all concerned within that time to see what solution can be achieved. It is very likely that a long term solution cannot be achieved in the time, because of necessary delays in obtaining a commitment to recurrent funding (which will necessitate the assent of the Minister). But the evidence shows that various other avenues may be open whereby, with the cooperation of all, some more suitable place can be found for the plaintiff than her mother's home in the short to medium term, while the complaints procedure that I have mentioned continues, and while the longer term quest for recurrent funding is pursued. I therefore ask that all concerned during the time of that adjournment speed their processes so far as possible and also ask for cooperation and flexibility by all concerned in attempting to find a solution. 7 I am particularly moved to ask this because one of the aspects of the matter that alarms me is the expenditure from the public purse to no long term good that is occurring in the meantime. I see thousands or tens of thousands of dollars being spent in this litigation, first by the use of the resources of this Court; secondly, by the use of Legal Aid funding to support the plaintiff's application to the Court; and, thirdly, from a fund which is in a sense public, as well as being private. I refer to the defendant's funds. Those funds are public in the sense that they are held upon a charitable trust to do good in the community. And, apart from anything else, although there has been a breakdown in the situation now, it is clear that they have done a lot of good to this plaintiff over a period of years before the present unfortunate situation arose. It cannot be clearer to me that it would be most unfortunate if large sums of money went on being spent on this litigation rather than a solution being devised whereby the necessary public moneys can actually be used toward the accommodation and care of someone who, on anyone's reckoning, desperately needs it. In making the remarks I have just made, it should be entirely plain that I am not suggesting for a moment that anything inappropriate has been done in the plaintiff's camp or the defendant's camp in, on the one hand mounting, or, on the other hand defending, these proceedings in the context of the difficult situation that has arisen. 8 The matter will be stood over to a suitable day in the range that I have indicated which will be selected after further discussion with counsel. On the grounds stated in my judgment and in the absence of serious opposition the existing interlocutory relief will be continued up to that time. The three witnesses who have come from the Departments are not released from the subpoenas that have been served upon them, but must attend on the adjourned day if so requested by the plaintiff, who has issued the process. I have already said and repeat that I am most appreciative of the action of the ADD in sending their Manager of Legal Services to appear as amicus curiae today and hope that the Department will feel able to lend similar assistance to the Court when the matter returns. …oOo… 9 The orders that I make are as follows: