Baff v The Forsight Foundation [2000] NSWSC 382

New South Wales Supreme Court

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

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 11 MAY 2000

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

JUDGMENT

HIS HONOUR:

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