Hall-Haydon v Colleen Pearce as Public Advocate
[2010] VSC 194
•4 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
PRACTICE COURT
S CI 2010 2371
| SAMUEL HALL-HAYDON | Plaintiff |
| COLLEEN PEARCE AS PUBLIC ADVOCATE | Defendant |
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JUDGE: | WARREN CJ | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 May 2010 | |
DATE OF JUDGMENT: | 4 May 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 194 | |
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INTERLOCUTORY INJUNCTION – appropriateness of negligence as cause of action –whether Supreme Court appropriate forum – whether application misconceived – no serious question to be tried in negligence – proper procedure in Guardianship and Administration Act1986 - Victorian Civil and Administrative Tribunal Act 1998 – balance of convenience weighs in favour of refusing relief sought – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Middletons |
| For the Defendant | Mr G Baker | Office of the Public Advocate |
| For Mr Hall | Mr Brown SC with Mr G Dickson |
WARREN CJ:
The application before the Court proceeds by way of summons, the plaintiff having instituted proceedings by writ alleging negligence against the defendant. I will return to the nature of the cause of action in due course.
The background circumstances to this matter revolve around the individual Jill Ngareta Hall (‘Mrs Hall’), an elderly lady aged 77 years who suffers from Alzheimer's disease and other conditions. Mrs Hall has been married to Bruce Chandler Hall (‘Mr Hall’), aged 80 years, since 10 September 1955. For present purposes, they have resided at a property at Moama in the state of New South Wales.
An enduring power of attorney was executed by Mrs Hall in favour of her daughter, Stephanie Haydon (‘Mrs Haydon’), on 11 August 2005. On 19 August 2009, Mrs Haydon removed Mrs Hall from the Moama home, allegedly without giving notice or providing contact details, although this may be a matter of dispute between the parties. Subsequently on 16 November 2009, Mrs Haydon filed proceedings in the Family Court of Australia on behalf of Mrs Hall pursuant to her power of attorney. Those proceedings are disputed by Mr Hall who asserts that there is no breakdown in the marriage.
Part of the dispute between the parties relates to allegations concerning Mr Hall’s treatment of Mrs Hall, and concerns on the part of some family members as to alleged violent activity, or potential violent activity, by Mr Hall towards Mrs Hall. There are, therefore, concerns for her safety and wellbeing.
On 17 November 2009, Mrs Haydon filed an application in the Victorian Civil and Administrative Tribunal (‘VCAT’) seeking to be appointed guardian and administrator for Mrs Hall. Shortly thereafter, on 14 December 2009, Mr Hall filed, in effect, a cross-application with VCAT seeking that he be appointed guardian and administrator, and also seeking revocation of Mrs Haydon’s power of attorney. On 17 December 2009, the competing applications went before VCAT and orders were ultimately made for the appointment of the Public Advocate as guardian, and State Trustees as administrator, for Mrs Hall.
The plaintiff in the proceeding before this Court, Mr Samuel Hall-Haydon, was apparently present at VCAT on this occasion. On 8 February 2010, the matter returned before VCAT. Consent orders were made setting aside the order relating to the State Trustees, but otherwise confirming the order of the Public Advocate as guardian. In particular, the Public Advocate had powers to make decisions concerning Mrs Hall’s accommodation. The orders also provided that Mr Hall-Haydon, or any other person, may apply to VCAT for a reassessment of the guardianship order at any time. Again, it is said that Mr Hall-Haydon was present at VCAT.
Stepping forward in time, on 14 April 2010, the matter concerning the guardianship of Mrs Hall returned before VCAT at the request of the Public Advocate who sought the advice of VCAT in relation to the implementation of the decision about the future accommodation of Mrs Hall. The Public Advocate indicated the decision that Mrs Hall should return to live with Mr Hall. As a consequence, Mrs Haydon sought to put further material before the Public Advocate with a view to persuading a different decision. The Public Advocate agreed to stay implementation of her decision for seven days to permit material to be received from Mrs Haydon. That period was subsequently further extended.
The material was forwarded to the Public Advocate and in the meantime Mrs Haydon gave an undertaking she would implement and facilitate the ultimate decision of the Public Advocate. On 27 April 2010, the Public Advocate advised her final decision that Mrs Hall would return to live with her husband, Mr Hall. I was provided, during the course of submissions, with a copy of the reasons of the Office of the Public Advocate, signed and dated 30 April 2010.
In the course of her reasons, the Public Advocate considered the expert recall of Dr Lindsay Vowels, a neurophysiologist, who assessed Mrs Hall on 28 February 2010 and provided a report to the Public Advocate. Relevantly, the Public Advocate stated:
Dr Vowels provided a thorough report which has been provided to VCAT and all the parties. Dr Vowels concluded that ‘Mrs Hall is suffering from an advanced form of dementia of unknown cause’ ... ‘she is unable to initiate any plans or give directions, or oppose regimes imposed on her. She is unlikely to be able to express in any reliable way, profound emotional states although I am sure she can express temporary annoyance, frustration, or displeasure.’
I found Dr. Vowels report to be compelling. Dr. Vowels states, ‘My opinion from meeting both Mrs. Hall, Mr. Hall and their daughter Stephanie Haydon would be that I would see that the most appropriate outcome for Mrs. Hall would be to return to her own home and to continue to live there with appropriate 24 hour care and supervision recognising that should her condition deteriorate further this may not be a viable option. However, I cannot see how her current accommodation with her daughter and grandson would be able to accommodate significant deterioration in an equally satisfactory way.’
Considering the circumstances before her, the Public Advocate formed the view that it would be in the best interests of Mrs. Hall to return to live with Mr Hall. The parties were informed of this decision, first of all orally, and subsequently by receipt of the written reasons. It is unclear as to precisely when all the parties received those reasons. However, at the time of hearing the matter today, all parties had been provided with a copy of the reasons.
Ultimately the Public Advocate concluded:
•Mrs Hall (sic) wish is to live with her husband and I have taken this into account and I believe I can give effect to that wish as it is consistent with her best interest.
•I consider that a return to Moama, to a familiar environment and community will enable her to participate more fully in the life of her community.
•I believe the care plan will encourage and assist her to stay in her own home for as long as possible, irrespective of whether that is the current residence or a new and more suitable residence.
•I consider that whilst Mr Hall has a temper and may be over-bearing at times and consider that he will protect her (sic). I do not believe that he will abuse his wife or be violent toward her. Nonetheless appropriate arrangements will be put in place for external monitoring.
•I have observed the closeness that they share in their marriage and his interaction with Mrs Hall has been considerate and respectful of her needs.
•It is least restrictive of Mrs Hall’s freedom of decision and action to accede to her wish to live with her husband.
•I consider it is important that Mrs Hall live in her chosen family unit consistent with section 17 of the Charter.
•There is no reason to restrain Mrs Hall’s freedom of movement (section of the Charter) (sic).
•Mrs Hall should live in her own property consistent with section 20 of the Charter.
As a result of the decision of the Office of Public Advocate, I was informed that a request had been made of VCAT around midday on 30 April seeking to delay matters.[1] No response was received. As a consequence, the plaintiff applied to this Court the same day for an ex-parte order restraining the Public Advocate from giving effect to the decision.
[1]I note no affidavit concerning these matters was before the Court but merely asserted from the Bar table.
Subject to appropriate undertakings, Osborn J made orders that day that the Public Advocate be restrained until 4 pm, 4 May 2010, from exercising authority under the Guardianship and Administration Act1986 (‘the Act’) with regard to Mrs Hall in relation to any action to return or permit Mrs Hall to live with Mr Hall. The matter was otherwise adjourned to today.
Subsequently a writ was issued setting out a series of allegations against Mr Hall and ultimately concluding that the Public Advocate as defendant had breached its duty of care and breached s 28 of the Act. I note that the writ, doubtless for reasons of urgency, is not endorsed with a proper statement of claim. If the matter were to proceed, it would be appropriate for a statement of claim in accordance with the Supreme Court (General Civil Procedure) Rules 2005 to be filed.
In any event, on the face of the allegations made against the Public Advocate, it is curious that allegations of negligence are made. If the plaintiff had the concerns that have been articulated during the course of argument before me and set out in his affidavit, the appropriate course would seem to be to follow the review and appeal provisions provided under the Act and also the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). In any event, the seeking of redress before this court ordinarily would follow the course of judicial review or in the nature of prerogative writ proceedings including habeas corpus. Be that as it may, that is not the course that was adopted by the plaintiff. It would have been open to the plaintiff to apply nunc pro tunc to amend the proceedings to seek judicial review. Despite enquiries of the plaintiff’s counsel as to the nature of the proceedings and the relief sought, the negligence claim was persisted with. Hence, I have before me an application seeking an interlocutory injunction in negligence proceedings.
For present purposes, the Court is being asked to exercise its discretion to grant an interlocutory injunction. To take account of the usual test, turning to the serious question to be tried, I have difficulties in comprehending that there is a serious question to be tried on the basis that relief is sought pursuant to a cause of action struck in negligence.[2] I have a further concern with respect to the plaintiff overcoming the provisions of the Act. The framework of the Act contemplates that an individual will be assessed and be the subject of an order in due course. That has occurred in this case. Significantly, there is provision under s 60A for an application for a rehearing and under s 60B for the addition of parties and notice to be given. Importantly there is a provision under s 60C providing for a rehearing. In any event, given the apparent urgency in this case, there is also provision under s 61 for a reassessment. I was informed that the plaintiff had requested a reassessment but had been unable to achieve such in the circumstances of the case. However, it was accepted that in due course a reassessment could be applied for and that evidence such as that of Dr Vowels could be challenged. In that respect my attention was directed to a report of Dr John Myers, who took a different view to that expressed by Dr Vowels.
[2]see Talacko v Talacko [2009] VSC 349, [109] (Kyrou J); see also TSB Private Bank International SA v Chabra [1992] 2 All ER 245 at 255–6; Mercantile Group (Europe) AG v Aiyela [1994] QB 366, 376; Gibb Australia Pty Ltd v Cremor Pty Ltd (1992) 106 FLR 453, 455–7.
All this leads me to conclude that so far as the test of the serious question to be tried is concerned, the application is misconceived on the basis that it is brought in negligence but also that there is a proper legal framework in place that should be pursued by the plaintiff under the provisions of the Act and also the VCAT Act. I stay to also note that there are provisions under the VCAT Act, namely s 123 and s 124, whereby the Tribunal may grant an injunction including an interim injunction. All this leads me to conclude that the Supreme Court, at this time, is not the appropriate forum.
That is not to say in the event that there was a valid and arguable concern for the safety and protection of a citizen, that relief could not be sought in the nature of prerogative writ relief by way of habeas corpus, as I have already indicated. That has not been availed of in this case.
In any event, returning to the test with respect to an interlocutory injunction, there remains the matter of the balance of convenience. It is put to me that if Mrs Hall is relocated to Moama with Mr Hall her safety is at risk. In the circumstances of this case, it would be unlikely, indeed undesirable, for a court to interfere at this time with a decision of the Office of the Public Advocate, supported by a decision of VCAT, without the full and thorough determination of the merits, in particular an assessment of expert evidence. I am satisfied that the Public Advocate, together with VCAT, is in the best position to assess, and if appropriate, reassess Mrs Hall’s circumstances.
In all the circumstances, therefore, if it were necessary, I would be satisfied that the balance of convenience weighs in favour of refusing to grant the relief sought. In this regard I draw particular attention to the summary reasons of the Public Advocate to which I have already referred. Insofar as there may have been a concern as to the relocation of Mrs Hall to a place outside the jurisdiction, I note under s 63E of the Act, there is provision for registration of interstate orders.
Finally, I note that in the reasons of the Public Advocate, the opinion was formed that the Public Advocate could not see how the accommodation of Mrs Hall could be appropriately dealt with if she was accommodated with Mrs Haydon and Mr Hall-Haydon. This is a significant finding in my view. Ultimately, I conclude that the application for the interlocutory relief should be refused.
By way of additional observation, I note that the Court was assisted this morning by counsel appearing for Mr Hall. Whilst it would be ordinarily unusual for a person not a party to a proceeding to be heard, in the circumstances of Mrs Hall and given the impact on Mr Hall in the event that the decision of the Public Advocate was to be interfered with in some way, it was desirable that Mr Hall have the opportunity to be heard. Accordingly, that indulgence was granted.
Turning then to the matter of costs, it is apparent from my reasons that there is no sound reason why costs should not follow the event as between the plaintiff and the defendant and I will order accordingly that the plaintiff pay the defendant's costs of the summons.
That leaves the remaining matter of the representation of Mr Hall. There is a question as to whether or not he was properly a party, given the allegations as set out in the purported statement of claim, namely, a cause of action struck in negligence. Mr Hall would not have a proper relationship with respect to that cause of action. There is the question of the interest that he represented here before the Court, given that an interlocutory injunction was sought that affected the decision of the Public Advocate vis-à-vis Mrs Hall being relocated to the custody of Mr Hall. Ostensibly the matters ventilated before the Court could properly have been argued by the representative for the Public Advocate, albeit that did not occur. Notwithstanding that the court was assisted by the presence of counsel representing Mr Hall, in all the circumstances, I do not consider it appropriate that the plaintiff should bear the costs of Mr Hall and I decline to make the order sought. The appropriate course would be for Mr Hall to bear his own costs.
Accordingly, the formal orders of the court are as follows:
1. The summons filed 3 May 2010 is dismissed.
2. The interlocutory injunction granted on 30 April 2010 is dissolved.
3. The plaintiff file and serve an amended statement of claim by 25 May 2010.
4. The plaintiff pay the defendant's costs of the summons.
5. The plaintiff have leave to amend the title of the proceeding by substituting ‘Colleen Pearce as Public Advocate’ as the defendant.
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