District Court
New South Wales
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 Act1986 (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 Act1976 (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 Act1974 (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
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
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- Case
- [2025] NSWDC 193
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were the construction of the contractual duties owed by the defendant to the plaintiff's mother, the significance of the regulatory context in determining the standard of care, and whether the plaintiff had established any breaches of duty. Additionally, the court had to consider the characterisation of the services provided under consumer law, specifically whether there was a non-compliance with a care guarantee. The court also examined the jurisdiction of the District Court to order a public apology as a remedy and whether such a remedy was available under the Australian Consumer Law.
The court determined that while the plaintiff had established certain breaches of the express terms of the contract, the implied terms were not breached. It held that the standard of care required under the contractual and regulatory context did not reach the level necessary to establish a breach of the implied terms. Regarding consumer law, the court found that the services provided were not characterised as non-compliant with a care guarantee. Concerning the remedy of a public apology, the court concluded that it did not have the jurisdiction to order such a remedy, as it was not expressly available under the Australian Consumer Law. The court also found that the relief sought by the plaintiff did not constitute ‘loss or damage’ as required by the legislation.
The court dismissed the plaintiff’s claims in their entirety. It did not grant the relief of a public apology, stating that such a remedy was not within its jurisdiction and did not constitute ‘loss or damage’ as contemplated by the legislation. The court did not order any other form of compensation or relief to the plaintiff.
Orders
Orders of the court
See paragraphs [533]–[534]
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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