Man Hay Lau v Anglican Community Services

[2025] NSWDC 193

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

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 1 NSWLR 561

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 (1893) 6 R 67

Century Legend Pty Ltd v Ripani [2022] FCAFC 191

Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 418 ALR 304

Chappell as executor of the Estate of Robert

Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd (2005) 93 SASR 179

Creek v Cairns Post Pty Ltd (2001) 112 FCR 352

Demagogue v Ramensky (1992) 39 FCR 31

Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1

Gett v Tabet [2009] NSWCA 76

Grant v Australian Knitting Mills Ltd [1936] AC 85

Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530

Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205

Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1

Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526

Jones v Dunkel (1959) 101 CLR 298

Jones v Scully (2002) 120 FCR 243

Lucantonio v Kleinert [2009] NSWSC 85

Marks v GIO Australia Holding Ltd (1998) 196 CLR 494

Moore v Scenic Tours Pty Ltd (No. 2) [2017] NSWSC 733

New South Wales v Stevens (2013) 83 NSWLR 106

Protec Pacific Pty Ltd v Stryker Services GMBH & Co KG [2014] VSCA 338

Provectus Care Pty Ltd v Epicore Software Aust (Pty Ltd) [2009] NSWSC 1281

Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66

Rogers v Whitaker (1992) 175 CLR 479

Rosenthal v The Sir Moses Montefiore Jewish Home (No 2) (Unreported, Supreme Court of New South Wales, Young J, 31 August 1995)

Scenic Tours Pty Ltd v Moore (2018) 339 FLR 244; [2018] NSWCA 238

Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20

Structum Pty Ltd v Bailios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119

The Ntf Group Pty Ltd v Pa Putney Finance Australia Pty Ltd [2017] NSWSC 1194; (2017) 324 FLR 261

Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72

Wotton v Queensland (No. 5) (2016) 352 ALR 146

Wyong Shire Council v Shirt (1980) 146 CLR 40

Texts Cited:

Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123)

I Ayers and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992)

J Carter, Contract Law in Australia (8th ed, J W Carter Publishing Pty Ltd, 2023)

J D Heydon, Cross on Evidence (online version, Lexis Nexis)

J D Heydon, Heydon on Contract: The General Part (Lawbook Co 2019)

J M Paterson, Corones’ Australian Consumer Law (4th ed, Lawbook Co 2019)

E Peden, Australian Law of Contract (online version, Westlaw Australia, Thomson Reuters)

C Ronalds and E Raper, Discrimination Law and Practice (5th ed, Federation Press, Ebook)

C Sappideen et al, Fleming’s The Law of Torts (11th ed, Thomson Reuters 2024)

Category:

Principal judgment

Parties:

Mr Man Hay Lau (Plaintiff)
Anglican Community Services (ABN 39922848563) (Defendant)

Representation:

Counsel:
Mr M Klooster (Plaintiff)
Ms E Elizabeth (Defendant)

Solicitors:
Longton Legal (Plaintiff)
Barry Nilsson (Defendant)

File Number(s):

2023/00424282

Publication restriction:

Nil.

Reasons for judgment

Introduction

Factual background

Undisputed or uncontroversial general facts

The action for breaches of contract

The resident agreement & other developments

Pleaded implied terms

The regulatory context

Quality of care

The rights of users

Comparing the statutory obligations with the contractual obligation

The standards of contractual duties

Introduction

The pleaded breaches of contract

Mr Lau

Assessment of the experts

Jones v Dunkel

Shifting evidentiary burden and the “scintilla” principle

Exposing Betty to the risk of contracting coronavirus

Lay and documentary evidence

Expert evidence

Concurrent evidence

Submissions

Consideration

Failing to perform blood tests on a fortnightly basis

Clarifying the complaint

Lay and documentary evidence

Expert evidence

Submissions

Consideration

Failing to administer Arginaid

Lay and documentary evidence

Expert evidence

Submissions

Consideration

Failing to nurse Betty on alternating pressure air mattress

Mr Lau’s contentions

Lay and documentary evidence

Expert evidence

Concurrent evidence

Submissions

Consideration

‘Overdosing’ of Parkinson’s medication

Mr Lau’s contention

Causing or allowing Betty to choke

Lay and documentary evidence

Expert evidence

Concurrent evidence

Submissions

Incorrectly managing Betty’s medication

The pleading

Generally mistreating Betty

Particulars of asserted mistreatment of Betty

Lay and documentary evidence

Calling the police

Stopping Mr Lau’s administering food and medications

The purple-coloured urine

Expert evidence

Calling police

Stopping Mr Lau feeding and administering medications to Betty

The bags of purple-coloured urine

Submissions

Calling the police

Not allowing Mr Lau to administer food or medication any longer

The urine bags

Consideration

Calling the police

Stopping Mr Lau from feeding and administering drugs to Betty

Responsiveness to purple-coloured urine

Positioning of Betty’s eyeglasses

Mistreating Mr Lau

Particulars of mistreatment

Lay and documentary evidence

Submissions

Consideration

Summary

the statutory action

Introduction

The consumer guarantees

Statutory provisions and concepts

The pleading of the care guarantee

What were the ‘services’?

The pleaded non-compliances with the consumer guarantees

Evaluating the suggested non-compliances

Submissions

The delayed provision of the APAM

Failure to administer Arginaid

Purple-coloured urine

Exposure to COVID

Fortnightly blood tests

Overdosing

Changing the practice of who feeds Betty and administers medication to her

Summary

Relief

The pleading

The statutory provisions in the ACL

The District Court’s jurisdiction to order a public apology under s 237

The District Court’s power to order a public apology

Pre-conditions to exercise of power

First requirement: application by a person who has suffered or is likely to suffer loss or damage

Second requirement: the order must be appropriate to compensate

Discretionary matters

The value of apologies in ordinary life

Circumventing the enforcement by the regulator of aged care providers

Other contexts in which apologies appear

Other arguments raised by Mr Lau

Orders

Reasons for judgment

Introduction

1. For well over 40 years, the plaintiff, Mr Man Hay Lau, had a loving relationship and marriage with his now deceased wife, the late Betty Wai Chan (who, following the course taken by Mr Lau, and without disrespect, I will henceforth refer to as ‘Betty’), until her passing on 16 July 2022. Sadly, for most of the period that he knew her, Betty was afflicted with Parkinson’s disease.

2. By 2020, Betty was so ill that she needed to go into an aged care home respite facility. Between 25 September 2020 and 27 June 2021, after a period of about one month’s stay in the Sydney Adventist Hospital, she was a resident in a high care facility at the Donald Coburn Centre (TDCC or Centre). This facility was owned and operated by the defendant, Anglican Community Services (Anglicare) in Castle Hill. It was admitted on the pleadings that Anglicare is a charity registered with the Australian Charities and Not for Profits Commission. ^[1]

   1. Amended Statement of Claim (‘ASOC’), sub-paragraph 2(a); Amended Defence, sub-paragraph 2(a).

3. Mr Lau has a litany of complaints about the quality of the treatment that Betty received whilst she was a resident at this facility. Certain complaints he brought on or about 18 January 2021 triggered an investigation by the Aged Care Quality and Safety Commission (the Commission). The Commission completed a review around July 2021 and indicated its outcome as determined by a delegate of the Commission. Mr Lau sought a reconsideration of decisions of a delegate of the Commission and affirmed the delegate’s decisions on or around 20 April 2022.

4. Mr Lau was dissatisfied with the outcome of the Commission’s investigation. On 23 November 2023, he commenced this proceeding. By his pleading (as amended) he brought actions for damages in contract for asserted serial breaches and in negligence; and also claimed relief under the Australian Consumer Law ^[2] (‘ACL’) arising from asserted serial non-compliances with the consumer guarantees in ss 60 and 61(1) and (2) of the ACL. The relief claimed in the ASOC for the statutory action was an order for compensation under s 267(3) of the ACL and an apology under s 243 of the ACL.

   2. Schedule 2 to the Competition and Consumer Act 2010 (Cth).

5. It is not disputed that Mr Lau has standing to bring the claims in general law. The position under the statutory action is different: Anglicare disputes any entitlement in him to seek relief under the ACL.

6. On the morning of the first day of the hearing, Mr Lau’s Counsel acknowledged (T 2.13) that Mr Lau could not point to any ‘substantial impact’ on Betty’s life expectancy or circumstances arising from the asserted breaches of contract or non-compliances with the consumer guarantees. Accordingly, Mr Lau’s action for damages in negligence was abandoned. Moreover, Mr Lau abandoned any claim for substantial damages (under the general law of contract) or for compensation (under the ACL). He conceded that he could not prove that any ‘loss’ or ‘damage’, sounding in an entitlement to substantial damages, was caused by the breach or breaches of contract; and/or because of non-compliance with the consumer guarantees.

7. Eventually, at the end of the hearing, he also abandoned actions for non-compliance with the consumer guarantees contained in ss 61(1) and (2) of the ACL.

8. Ultimately, Mr Lau maintained his claim only for nominal damages for breach of contract (for the benefit of the Estate: T 7.6). He also maintained his claim for relief by way of a public apology by Anglicare, purportedly under s 243 of the ACL, in respect to the alleged non-compliance with the care guarantee (s 60) of the ACL. Included within Counsel’s schedule of issues (MFI 1) was the content of the apology he proposed; which I will refer to later in these reasons.

9. These claims give rise to the following issues:

1. The standard of duty for the contractual duties Mr Lau relies upon;

2. Whether Mr Lau has proven the pleaded breaches of contract;

3. Whether Mr Lau can claim the apology he seeks under s 237 of the ACL;

4. Whether the pleaded non-compliances with s 60 of the ACL are established;

5. Whether, in the circumstances of this case:

1. the District Court has jurisdiction to grant relief to Mr Lau in the form of a public apology under ss 237 and 243 of the ACL;

2. (if so) the Court is empowered to make such order at Mr Lau’s behest; and

3. (if it does have jurisdiction and is so empowered) the Court should, in its discretion, order a public apology in the terms sought by Mr Lau.

Factual background

Undisputed or uncontroversial general facts

10. Mr Lau first met the deceased in early 1978. Betty became the love of his life. In 1980, Betty received the diagnosis of Parkinson’s disease. By 1990, her symptoms had worsened to the point where she found it difficult to work as a computer programmer.

11. On 2 February 2002, Mr Lau married Betty.

12. On 24 June 2004 Betty executed an enduring power of attorney appointing Mr Lau as her attorney immediately. She also executed an enduring guardianship appointing Mr Lau as her guardian in the event that she became partially or totally incapable of managing her person. Mr Lau was also appointed as the executor in her will. There was no disputed about the validity of these transactions. Mr Lau later provided copies of the power of attorney and his appointment as enduring guardian to the officer of the Anglicare care information centre on 12 October 2020.

13. In 2020, Betty’s Parkinson’s had deteriorated to the ‘end stage’. On 22 August 2020, she was admitted to the Emergency Department of Sydney Adventist Hospital. Whilst she was at the hospital, she was unable to remain fully conscious and was unable to keep her eyes open most hours of the day. On 9 September 2020, Mr Lau informed her that she needed to go into an aged care home for respite.

14. On 18 September 2020 Betty received approval from the Commonwealth Department of Health to approve her for residential respite high care. An assessment summary (Ex B, 1 CB 115–16 ^[3] ) highlighted, amongst other things, that: she had a pressure area (Stage 3) on her sacrum, which was being treated and dressed every second day and had Mepilex on her heels; she needed ‘pressure area care’ (ie ‘repositioning’) and was on a ‘pressure mattress’; she had poor vision; she slept a lot of the day and night; and had possible visual hallucinations.

    3. There were 2 volumes to the Court Book which comprised Exhibit B. Throughout these reasons Volume 1 is denoted by ‘1 CB’ and Volume 2 denoted by ‘2 CB’ followed by the relevant page number

15. On 24 September 2020, Mr Lau attended TDCC and met the Care Manager. He provided the manager with a list of Betty’s medications and provided certain other information. This included that: blood tests should only be performed on her left arm, and that the protein supplement ‘Arginaid’ had been given to Betty to help heal the “serious” pressure sore at her sacrum area.

16. On 25 September 2020, Betty was discharged from the Sydney Adventist Hospital into the high care facility at TDCC as a respite patient. She remained as a respite patient until about 23 October 2020, when she commenced residency as a full-time occupant.

17. On 15 October 2020, a formal residential agreement was entered between Betty and Anglicare for full-time residential agreement. I will address material terms of that agreement later in these reasons. Betty entered into the agreement by Mr Lau, exercising his powers. An issue which has arisen throughout the proceeding is the extent of her capacity to make decisions concerning her treatment and care for herself.

18. On 3 November 2020, Betty was diagnosed as having disorientation and hallucinations.

19. On 19 January 2021 at 3:44pm, Ms Christina Castle, Betty’s Care Co-ordinator, notified Mr Lau, within a broad-ranging email (Ex B, 2 CB 583–584) that Doctors Fashka and Vasfi would no longer be continuing their care of Betty.

20. On 19 January 2021 at 6:48pm, Mr Lau sent an email to Dr Fashka (Ex B, 2 CB 578). This was in response to an email Dr Fashka sent to him earlier in the day (1:51pm) referred to in these reasons on the issue of frequency of blood testing. In Mr Lau’s email, he made statements that:

“I absolutely agree with you that Betty’s condition now is much better than when she first came to TDCC in late September.

I have repeatedly thanked the staff of TDCC, in particular Dee and Christina, for taking good care of Betty.

… I think Betty’s improvement is overwhelmingly due to the 24-hour care of her by various staff at TDCC.”

21. Later that evening (8:46pm), Mr Lau sent an email in response in which, amongst other things, he expressed his attitude that he did not really care what Dr Fashka said. He also stated that he was not overtly concerned about a GP looking after Betty, since her health had been very stable “thanks to everyone in TDCC”. Further, he added that he did not trust what he called the “rubbish” assessments that might be made by a psycho-geriatrician.

22. On 12 March 2021, Ms Dee Banton completed an End of Life Pathway form, ticking off a range of indicia of the symptoms associated with commencement of the last phase of life.

23. On 8 April 2021, Betty was discharged from the Sydney Adventist Hospital and went back to TDCC.

24. On 9 April 2021, it was noted by TDCC that Betty had cognitively declined due to her Parkinson’s disease.

25. By 30 September 2021, Betty required full assistance in all activities in her daily life (‘ADLs’). Dr Fashka sent a letter to the Dural House (Thompson Aged Care facility) in which, in addition to referring to her Parkinson’s disease, catalogued her other conditions. He described her as being bedridden and stated that she could not eat or toilet by herself and could not take medication.

26. After her death on 16 July 2022, her death certificate listed four causes of death: Parkinson’s disease, Type 2 diabetes (the first two being ‘chronic conditions’) COVID-19 and cardiorespiratory arrest (the last two being ‘acute conditions’). She had been infected with COVID for 9 days prior to her death. Counsel for Mr Lau disclaimed any suggestion that her treatment in the TDCC resulted in her contracting COVID-19 there.

27. Probate was granted to the will on 21 February 2023 with Mr Lau appointed as legal representative of Betty’s Estate.

The action for breaches of contract

The resident agreement and other developments

28. On 15 October 2020 a resident agreement was entered as between Betty and Anglicare for her stay at TDCC (the agreement appears at Ex B, pp 129–180). Betty’s husband was identified as her Guardian. He executed the resident agreement on her behalf on this date. The obligations became operative from 23 October 2020.

29. It was common ground that what I will call ‘respite services’ were provided from 25 September 2020 to 23 October 2020. The services under the resident agreement were provided from 23 October 2020 to 27 June 2021.

30. The Recital C to the Resident agreement indicated that what was provided was “Accommodation Services” and “Care Services”. There were also “Additional Services” for such services as the provision of food and recreational activities.

28. The resident agreement comprised multiple schedules. The schedules that were referred to by the parties for the purposes of this proceeding were:

• Provisions – Background & Operative Provisions

• Schedule 5 – Accommodation Services

• Schedule 6 – Care Services

• Schedule 9 – Charter of Aged Care Rights

32. Clause 5.1 dealt with ‘resident representatives’. Mr Lau was such a representative for Betty. Amongst other things, he had warranted that he entered into the resident agreement on her behalf where she was unable to enter into it because of mental or physical incapacity (cl 5.1(b)).

33. Clause 6 dealt with the parties’ rights and responsibilities. Clause 6.1 provided that:

“We and You will each observe and act in accordance with the Charter of Care Recipients’ Rights and Responsibilities as set out in Schedule 9 of this agreement.”

34. For the purposes of clause 6.1, “We” was a reference to Anglicare and extended to include any of its managers, officers, agents and employees”. “You” meant ‘the Resident’. The “Resident” meant the person occupying the Accommodation at the Care Facility and the person to whom the Accommodation Services were provided. Conspicuously, “You” did not extend to include the Resident’s Representative, Mr Lau. In this way “You” simply meant Betty.

35. Contrary to what was foreshadowed in cl 6.1, what was set out in Schedule 9 was entitled ‘Charter of Aged Care Rights’. Counsel for Mr Lau identified the pertinent ‘rights’ that his client relied upon being:

“1. safe and high-quality care and services;

2. be treated with dignity and respect;

…

4. live without abuse and neglect;

5. be informed about my care and services in a way I understand.

6. access all information about myself, including information about my rights, care and services

…

8. have control over, and make decisions about, the personal aspects of my daily life, financial affairs and possessions

….

10. be listened to and understood.

11. have a person of my choice, including an aged care advocate, support me or speak on my behalf

12. complain free from reprisal, and to have my complaints dealt with fairly and promptly.”

36. In Schedule 9, the following statement also appeared:

“Consumers

As a consumer, you have the option of signing the Charter of Aged Care Rights (the Charter). You can receive the care and services even if you choose not to sign.”

Pleaded implied terms

37. By his pleading, Mr Lau asserted the following additional implied terms (in fact). These were for Anglicare:

1. not to do anything to put Betty’s life at risk (ASOC, sub-paragraph 6(b));

2. not to physically abuse Betty (ASOC, sub-paragraph 6(c));

3. to exercise reasonable care and skill when caring for Betty (sub-paragraph 6(d))

38. Anglicare did not dispute, as implied terms (b) or (c). It did however, contest asserted implied term (a). But ultimately, in the way that Mr Lau presented his case on the contract claim at hearing, nothing turned on these accepted or disputed implied terms in contract.

The regulatory context

39. Chapter 4 of the Aged Care Act 1997 (Cth) is titled ‘Responsibilities of Approved Providers’. Chapter 4 generally delineates the responsibilities of approved providers in relation to the quality of the care they provide (Part 4.1), user rights for the people to whom the care is provided (Part 4.2) and the accountability of the provider for the care that is provided (Part 4.3).

Quality of care

40. Part 4.1 of the Aged Care Act is titled ‘Quality of Care’.

41. Section 54-1(1) of the Aged Care Act, at the material times, relevantly stipulated the following obligations:

“(a) to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;

…
(c) to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles (relevantly) for the purposes of s 56-1(m),

(d) to comply with the Aged Care Quality Standards made under s 54-2;…”

42. Section 54-2 of the Aged Care Act indicates that it is the Quality of Care Principles which may set the ‘Aged Care Quality Standards’. These are the “standards of care and quality of life for the provision of aged care”.

43. A residential care recipient relevantly includes a person who receives residential care, or flexible care provided in a residential setting, in respect of which the provider is approved and is approved under Part 2.3 as the recipient of the care: Aged Care Act, s 54-3. ^[4] Betty was one such person.

    4. This is not a complete description of the definition, but it suffices for the purposes of this case.

44. The Quality of Care Principles are made by the Minister, by legislative instrument (Aged Care Act, s 96-1). Some of the provisions of the Quality of Care Principles referred to by the parties were:

1. Section 4A defined ‘consumer’ as:

“(1) ... a person to whom the approved provider provides, or is to provide, care through an aged care service (and)

(2) ... a reference to the representative of the consumer, so far as the provision is capable of applying to a representative of the consumer.”

It was not disputed that Mr Lau was a ‘representative’ of Betty (as that term is defined in s 5 of the Quality of Care Principles).

2. In section 7 of the Quality of Care Principles, the aged care provider must provide the care or service specified in column 1 of Schedule 1 to any care recipient who needed it.

3. Schedule 1 of the Quality of Care Principles, is titled ‘Care and Services for residential care services’. Note 2 in the schedule states that the care and services specified in Schedule 1 must be provided in a way that complied with the Aged Care Quality Standards set out in Schedule 2.

4. In Schedule 1, Anglicare drew the Court’s attention, as an example, to the service referred to in item 1.11, described as ‘Care recipient social activities’.

5. Schedule 2 of the Quality of Care Principles is titled ‘Aged Care Quality Standards’. The Aged Care Quality Standards applied to residential care (s 18(1)). Moreover, they applied equally for the benefit of each care recipient, in paraphrase, regardless of any matter (s 18(2)).

6. There are eight Aged Care Quality Standards in Schedule 2 and they are quite detailed and prescriptive. The Standards that Mr Lau relied upon in this case were, and the persons who Mr Lau contends that they applied for the benefit for, were:

1. Standard 1: consumer dignity and choice, to Betty and Mr Lau

2. Standard 3: personal care and clinical care, to Betty

3. Standard 5: organisation’s service equipment, to Betty

4. Standard 6: feedback and complaint, to Betty and Mr Lau

5. Standard 7: human resources, to Betty

6. Standard 8: organisational governance, to Betty and Mr Lau

7. Within each of these individual Standards, s 17(2) provides that they comprise ‘consumer outcomes’, ‘organisation statements’ and ‘Requirements’ (demonstrated by the organisation) for a particular matter.

8. The “consumer outcomes” (within the Aged Care Quality Standards in Schedule 2) applicable to Standards were, respectively, as follows:

Standard 1 – consumer dignity and choice	I am treated with dignity and respect, and can maintain my identity. I can make informed choices about my care and services, and live the life I choose.
Standard 3 – personal care	I get personal care, clinical care, or both personal care and clinical care, that is safe and right for me.
Standard 5 – organisation’s service equipment	I feel I belong and I am safe and comfortable in the organisation’s service environment
Standard 6 – feedback and complaints	I feel safe and an encouraged and supported to give feedback and make complaints. I am engaged in processes to address my feedback and complaints, and appropriate action is taken.
Standard 7 – human resources	I get quality care and services when I need them from people who are knowledgeable, capable and caring.
Standard 8 – organisational governance	I am confident the organisation is well run. I can partner in improving the delivery of care and services.

45. I interpolate, at this point, that ultimately it was these ‘consumer outcomes’ in the Aged Care Quality Standards (as appropriately adapted to the nature of the complaints) that were predominantly the source of the obligations Mr Lau’s Counsel contended were breached by Anglicare. (The balance were posited breaches of the Charter). ^[5]

    5. In Mr Lau’s written submissions (MFI 5), reliance was also placed upon non-compliance with provisions in the Aged Care Code of Conduct, consistently with s 54-1(g) of the current version of the Aged Care Act, but Mr Lau’s Counsel ultimately accepted that this provision was not operative at the material times (T194.5).

46. Anglicare referred the Court to some “Requirements” within these standards. Specifically, Anglicare referred to the following:

1. In Standard 1, the requirement that each consumer was supported to exercise choice and independence, including making decisions about their own care and the way that care and services were delivered; and an additional requirement is supported to take risks to enable them to live the best life they can;

2. In Standard 3, the requirement that the Organisation minimise infection-related risks through implementing standard and transmission-based precautions to prevent and control infection.

The rights of users

47. Part 4.2 of the Aged Care Act is titled ‘User Rights’. Aged care providers have certain general responsibilities to users, and proposed users, of services: Aged Care Act, s 55-1. A failure to meet those responsibilities may lead to sanctions being imposed under Part 7B of the Aged CareQuality and Safety Commission Act2018 (Cth).

48. One of those general responsibilities relating to the rights of actual or proposed users obliges aged care providers “not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles”: Aged Care Act, s 56-1(m).

49. Section 9 of the User Rights Principles 2014 indicates that the rights of care recipients include the Charter of Aged Care Rights. The Charter of Aged Care Rights are set out in Schedule 1 to the User Rights Principles. Section 9A of the User Rights Principles also provides that an approved provider of residential care must not act in a way which is inconsistent with the legal and consumer rights of a care recipient.

50. Section 56-1(n) of the Aged Care Act provides that an approved provider of residential care must give a care recipient information about the car recipient’s rights under the Charter of Aged Care Rights. By s 11(2)(b) of the User Rights Principles, the approved provider must ensure that a care recipient is provided a reasonable opportunity to sign a copy of the Charter of Aged Care Rights.

Comparing the statutory obligations with the contractual obligation

51. In summary, it may be seen that the TDCC owed statutory obligations:

1. not to act in a way that was inconsistent with the Charter of Aged Care Rights (Aged Care Act, s 56-1(m)).

2. to provide care and services that are consistent with the User Rights Principles (and thereby the Charter of Aged Care Rights) (Aged Care Act, s 54-1(c);

3. to comply with the Aged Care Quality Standards (Aged Care Act, s 54-1(d))

52. There is a small difficulty with cl 6.1 of the Resident Agreement. It refers to the Charter of Care Recipients’ Rights and Responsibilities (emphasis supplied) as set out in Schedule 9 of this agreement. But it is not the Charter of Care Recipients’ Rights and Responsibilities which is set out in Schedule 9 of the Resident Agreement. What appears in Schedule 9 is the Charter of Aged Care Rights. This appears to be a misdescription.

53. In my view, the contractual obligation in s 6 of the Resident Agreement is, in substance, coterminous with Anglicare’s statutory obligations to act consistently, and not to act inconsistently with, the Charter of Aged Care Rights. The quality of care to be supplied to Betty was to be measured in accordance with the Aged Care Quality Standards. There is a substantial overlap or correspondence between what is described in the Charter of Aged Care Rights and the consumer outcomes identified in the Aged Care Quality Standards but where there is conflict as to the standard of care, in my view, the Aged Care Quality Standards prevail.

54. That still leaves, however, a general question regarding the strictness of standards for what are generally expressed provisions in legislative instruments.

The standards of contractual duties

Introduction

55. Generally, the standard of duty of a contractual obligation under the common law may be strict or require the exercise of care, skill or diligence. Essentially, the standard of duty means the degree of care that the promisor must perform. The standard of duty of an obligation is a matter of construction ^[6] . Sometimes the standard is expressly set, but in the absence of that, the nature of the contract can be significant. ^[7] Thus, in the consumer context, in Grant v Australian Knitting Mills Ltd [1936] AC 85, where a purchaser of woollen underwear brought a suit against the retailer, it was determined (at 100) that no question of negligence was involved when considering liability for breach of the implied terms under sale of goods legislation. A practical litmus test has been described as whether the promise is to produce a result, as distinct from a promise to exercise care in bringing about a result. ^[8]

    6. J Carter, Contract Law in Australia (“Carter”) (8th ed, J W Carter Publishing Pty Ltd, 2023) [29.13].

    7. E Peden, Australian Law of Contract (online version, Westlaw Australia, Thomson Reuters) [21.340].

    8. Carter, [29.14].

56. The Quality of Care Principles (and the Aged Care Quality Standards) and the User Care Principles (and the Charter of Rights) are both legislative instruments authorised under section 96-1 of the Aged Care Act. The Court’s task is to interpret the strictness of standards, first, in a ‘charter’ expressly incorporated in the parties’ contract when, secondly, there is a statutory obligation imposed upon an aged care provider to abide by Aged Care Quality Standards which have comparable content to rights under the charter, but in respect to which, there are other requirements as well.

57. In Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd (2005) 93 SASR 179, the Full Court of the Supreme Court of South Australia generally observed that:

“The fundamental principle is that where parties expressly incorporate terms into a contract, the incorporated terms must be construed as if they have been written out in full in the contract, and accordingly must be construed in the context of the contract into which they have been incorporated.”

58. In this case, insofar as the Resident Agreement is concerned, the term incorporated are ‘standards’ in a Charter and also Aged Quality Care Standards.

59. The High Court considered the nature of a “standard” in Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1. The Court referred to the ordinary dictionary meaning of the word ‘standard’ “in the relevant sense”, as being:

“A definite level of excellence, attainment, wealth, or the like, or a definite degree of any quality, viewed as a prescribed object of endeavour or as the measure of what is adequate for some purpose: Shorter Oxford English Dictionary.”

60. The High Court went on to say that:

“A standard determined for a television programme must fix the quality or nature of the programme in such a way that both the licensee required to observe the standard and the court or other body called upon to decide whether it has done so can determine whether the programme answers the criteria set by the standard. That is not to say that the test should be entirely objective, for it may involve questions of taste, but it does mean that the standard is to be found in the determination itself.” 

61. In Rosenthal v The Sir Moses Montefiore Jewish Home (No 2) (unreported, Supreme Court of New South Wales, 31 August 1995), in the context of a judgment on costs which involved the Court interpreting the “Standards for Nursing Home Care” made under the National Health Act 1953 (Cth), Young J said that:

“A standard is not a law that imposes a legal duty or creates a right. It merely sets out minimum requirements for a body to retain its licence or to retain Commonwealth funding.”

62. Young J pointed to one example of a standard that might be better viewed as aspirational, rather than as conferring any particular legal obligation on facility operators:

It should be noted that Standard 1.4.5(f) in the Schedule requires a licensee to ensure that “practices at the nursing home support the right of residents to die with dignity”. It could hardly be argued that this Regulation gives any right in the patient to euthanasia which could be enforced against the nursing home.

63. This case is distinguishable from Rosenthal. This is not just a case of an institution’s regulatory requirement to abide by standards. It is, rather, an institution’s promise (express and/or implied) to comply with standards. The Court is required to consider the strictness of the provider’s promised compliance with the standards.

64. In his Opening, Counsel for Mr Lau outlined that his client’s case was that the obligations upon Anglicare were ‘strict’ in nature (T 1.46, 2.15). The express obligation, to be recalled, was to “observe and act in accordance with” the pertinent clauses of the charter of rights in Schedule 9 to the agreement Mr Lau identified.

65. Mr Lau contended that the standard for the contractual promise – specifically the promise to observe and act in accordance with the Charter of Rights – was stricter than the legislative or regulatory requirements contained in the Aged Care Act and the then applicable Quality of Care Principles 2014 (Cth) which enshrine the Aged Care Quality Standards.

66. When I asked Counsel for Mr Lau the degree of strictness for the main obligation his client relied upon – the provision of ‘high quality care’ – without reference to any apparently available case authority, he said it was ‘something between reasonable (care) and less than perfection’, viewed, objectively, from the perspective of a person in Betty’s position and circumstances (T 148.26–149.19).

67. Anglicare contends that the standard for performance of Anglicare’s contractual obligations, including its obligation to observe and act in accordance with the Charter of Aged Care Rights, had to be viewed in the context of its statutory obligations and requirements in the Aged Care Act and the then applicable Quality of Care Principles 2014 (Cth), containing relevantly the Aged Care Quality Standards. ^[9]

    9. The Court was supplied with the version of these principles, titled Compilation No. 7, which were made under s 96-1 of the Aged Care Act 1997 with a compilation date of 29 November 2019.

68. Anglicare contends that Mr Lau’s approach, which begins and (insofar as his contract case is concerned) ends with the Charter of Rights incorporated in the Resident agreement is wrong. The proper starting point was the Quality of Care principles, with the question being whether Betty’s rights were infringed in respect of services that the provider was statutorily obliged to provide to an identifiable quality standard. In other words, if a particular service met the legislative requirements, then this was generally sufficient to satisfy the contractual obligation. If more was required under a standard in the Charter, incorporated in the Resident Agreement, Anglicare contended that there needed to be greater specificity (T 188-189).

69. Anglicare argues that to resort, as Mr Lau does, only to the rights under the Charter in isolation from the Quality of Care Principles could lead to incoherence (between a contractual standard and a statutory obligation) and indeterminacy. It cites the example of the right to ‘high quality’ care and services. That expression is pitched at such a high level of generality, as to be only aspirational in nature.

63. There is force in Anglicare’s submission. That is not to say that there was a fundamental incompatibility between rights under the charter and the Aged Care Quality Standards: sometimes, indeed, there is a clear or close resemblance, between a (contractual) right under the Charter and ‘consumer outcomes’ in an Aged Care Quality Standard. It strikes me that ‘Charters’ are of their nature generally pitched as being more aspirational in nature in comparison, as a statement of what an aged care provider aspires to achieve for the patient and, moreover, what a consumer may expect to receive. It cannot, however, mandate any certain outcome akin to a promise to repay a debt incurred.

64. In a practical way, therefore, if the TDCC’s performance of its obligations complied with under any particular Aged Care Quality Service, it would be unlikely, absent any more precise obligation, to result in a higher standard when assessing whether a corresponding (in subject matter) right in the patient under the Charter. To adapt what the High Court said in Herald-Sun, the aged care provider needs to know what it is required to do under the Age Care Quality Standards in conformity with Quality of Care Principles and the Aged Care Act in order to avoid sanctions that might be imposed on it. That should not lightly be undermined by lingering uncertainty whether it needs to do more under contract. Further, the capacity of a centre to provide care is affected by its financial resources. Anglicare was not a private corporation, but a registered charity. I make that observation not to excuse it, or to suggest any greater or lesser standard of care because of that status, but rather to acknowledge what I consider is common sense. In the event, in this proceeding, Anglicare did not suggest that it lacked resources because of its status.

65. In his closing submissions, Counsel for Mr Lau predominantly relied upon the Aged Care Quality Standards; although in some cases he also relied upon rights under the Charter.

66. Anglicare noted two further matters. First, the services supplied under the Resident Agreement were supplied on an ongoing basis. When evaluating the performance of the service, Anglicare argued that it may, in the circumstances, be inappropriate to determine, say, that a singular incident might constitute a breach, even if the standard was high. Counsel for Anglicare cited the example of the service of waste disposal expected to be supplied over a period of months where it was inadequate on one occasion. Nevertheless, Counsel accepted that depending on the importance of an event, it might be of such importance (or consequence) as to give rise to a breach. In the waste disposal example, the service is typically rudimentary and routine. A failure to administer a drug or a nutritional supplement at periodical times may not be rudimentary but even if it is, it may be apt to have more serious consequences. Counsel for Anglicare emphasised that what was important was whether the performance matched the statutory requirement.

67. Secondly, for some of the asserted breaches expressly and others impliedly, Mr Lau complained that actions were taken affecting Betty which were contrary to his instructions which, he contended, he was authorised to give; even without reference to Betty. This had a bearing, especially on some rights in the Charter that relate to the consumer’s reliance upon an aged care advocate and potential conflict with Betty’s rights. For example, in Standard 1 of the Aged Care Quality Standard, certain ‘requirements’ included the Centre’s support for Betty to exercise choice and independence; even to “take risks to enable them to live the best live that they can”. But there is a tension in fostering that requirement or those requirements and the understandable sense of protectiveness that a person in Mr Lau’s position (as the patient’s aged care advocate) might have for Betty, which cut across it. Anglicare referred the Court to the principle recently stated by the plurality (Gordon A-CJ, Edelman J and Seward J) in BIF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 420 ALR 1 at [37] that:

“.. there is a presumption that every person of full age has the mental capacity to manage their own affairs. The burden of proving to the contrary rests with those asserting incapacity.”

75. Anglicare also took issue, to an extent, with the power sometimes purportedly exercised by Mr Lau as guardian. It pointed to the principles in s 4 of the Guardianship Act 1987 (NSW) and, in particular, the desirability of restraint upon the freedom of decision and action of the guardian (s 4(b)) and the desirability of the views of the appointor being taken into consideration (s 4(d)). It also pointed to s 6A of the legislation, which indicated that guardianship only has effect during such period of time as the appointor was a person in need of a guardian. Anglicare generally raised as an issue whether Betty was actually in need of a guardian.

76. I note that some of the rights which Mr Lau says were violated were premised upon or assumed a continuing capacity in Betty to exercise them; which tends to vindicate Anglicare’s position about the limits upon the scope of Mr Lau’s guardianship power.

77. I would note another matter. Any service provider is limited by the constraints of finite knowledge and resources. If a resident has private arrangements with a third-party provider of services, it cannot necessarily know of them. I will touch upon this when considering the complaint about fortnightly blood tests.

78. An inherent difficulty is that sometimes some of the rights identified in the Charter may not be entirely compatible in their operation. Some of the issues thrown up in this case illustrate the incipient potential for incompatibility. Thus, any posited obligation to treat Mr Lau with dignity and respect may not necessarily be compatible with the obligation to treat Betty with the highest standard of clinical care in the situation where, as occurred on 15 June 2021, Mr Lau was remonstrating with the nurse’s attempt to provide prescribed medication to Betty.

79. Overlain with this is the separate matter of the scope of Mr Lau’s own powers to provide binding instructions on Betty’s behalf; as her attorney or guardian Potentially, his protective concern that she remain in her room, and TDCC’s consideration of his wishes, may not necessarily be legally binding in the event that it appears that Betty, in the exercise of her own autonomy, requested the opportunity to partake in recreational activities occurring outside of her room.

80. Further, there is no express hierarchy amongst rights in a charter, and, moreover few rights are ever completely absolute in themselves.

81. The standards in the Charter are aspirational yet vague in terms of their practical operation. In my view, when promising to observe and act in accordance with the Charter of Rights the Centre was, in substance, stating its promise to best endeavours to do what it could in all of the circumstances to comply with the Charter, but no more. This is a lesser standard than strict liability: Alan Davis Group Pty Ltd v Rivkin Financial Services Ltd (2005) 216 ALR 766; [2005] NSWSC 369 at [25]. ^[10]

    10. Peden, [21.360].

82. Overall, I am inclined to consider that the standards in the Quality of Care principles reflect minimum baseline standards for the aged care provider. If there is to be any qualitatively or quantitively higher standard under the Charter, it must be specifically identifiable and capable of practical operation. In their construction, they are standards to be viewed objectively from the perspective of how a reasonable aged care provider in the TDCC’s position and circumstances would understand them. It is not how a consumer or (where, as here, there may be more than one consumer) consumers subjectively would expect them to be. This is so because the provider’s continued authority to operate depends upon its compliance with its statutory obligations, not the subjective expectations of its residents.

The pleaded breaches of contract

83. The asserted breaches of contract, and the references to the ASOC, may be summarised very generally as follows:

1. exposing Betty to coronavirus (paragraphs 10–11);

2. failing to perform blood tests on a fortnightly basis (paragraph 12);

3. failing to administer Arginaid (paragraph 13)

4. failing to nurse Betty on alternating pressure air mattress (paragraph 13A);

5. allowing her to overdose in her Parkinson’s medication (paragraph 14);

6. causing or allowing Betty to choke (paragraph 15);

7. incorrectly managing Betty’s medication (paragraph 16);

8. generally mistreating Betty (paragraph 17);

9. mistreating Mr Lau (paragraphs 18-20).

84. As will be shown, there is a deal of overlapping in these categories. In his closing submissions, Counsel for Mr Lau indicated that three of the categories of complaints occurred whilst Betty was in the high care facility at the TDCC. These were categories (1), (3) and (4).

85. For each of these categories of complaint, there was no clear delineation in the Amended Statement of Claim of which particular contractual obligation was breached. This was left to be teased out in closing submissions at the hearing.

Mr Lau

86. I consider that Mr Lau was sincere when he gave his evidence but I queried his reliability. I accept that he kept close tabs on all matters that occurred at the time that he was in the Centre and expect that he has, over time also turned over events many times in his mind. He would have done so in the course of his complaints to the Aged care regulator and again in the course of this proceeding. But that process of frequent advertence to past events does not of itself make the revival of memories any more reliable. I refer, in this regard to the recent and general observations of Leeming JA in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 at [133]-[135].

87. Mr Lau’s projection was one of confidence in his version of what occurred. But I was unimpressed with Mr Lau’s evidence when, in the course of cross-examination, he was confronted with contemporaneous business records (usually taken to be reliable) which plainly told a different story to his narration of events. It was not so much the circumstance that he disagreed with the document, and sometimes statements in business records may themselves be unreliable; but rather his frequent refusal to accept the possible correctness of a contemporaneous account of what occurred or that he himself might have been mistaken. In my view, he demonstrated a fixity of mind, intolerant of contrary views, which was unjustified in such circumstances of his giving testimonial evidence of events years before.

88. As is generally the way, I am inclined to give greater weight to contemporaneous documented references of events then testimonial evidence of those who are emotionally and intellectually vested in litigation and its outcome.

Assessment of the experts

89. Both Dr Sharp and Ms Ryan impressed me as being honest, reliable and informed expert witnesses. It struck me that such differences as existed between them might be partly generational in nature. Dr Sharp impressed as someone with firm views that had developed with long-standing experience. She seemed, with no disrespect, to be somewhat less than flexible when considering and assessing Ms Ryan’s views. Ms Ryan, who also had long-standing experience (although not to the same degree as Dr Sharp) struck me as a nursing practitioner who diligently attended to the research and was more closely attuned to the exigencies of nursing practice within aged care facilities and displayed a level of pragmatism and flexibility to practice.

90. It also seemed to me that Ms Ryan had more direct or recent experience of some of the events that gave rise to issues in this proceeding, including the allowing of partners to administer food or medications and drawing of blood. If pressed to express a preference, I would be more generally inclined to place greater weight upon Ms Ryan’s opinions on the reasonable practices of nursing staff in aged care facilities and the environments in which they operate. Another way of saying that was that I was inclined to think that Dr Sharp’s opinions had a tendency to represent a counsel of perfection in nursing practice.

91. I also consider that Dr Sharp displayed, at least in one instance, a tendency to freely express an opinion without it being demonstrated that she knew of the facts that were relevant to expressing it. This occurred, for example with the air mattress. Dr Sharp did not say that she had attended the TDCC or what was the basis for her dismissal of the possibility that the Centre used a Steiss air mattress. Whether or not such mattress was even available in Australia was a question of fact; not expert opinion.

92. In relation to both experts, there was a tendency for them to express opinions effectively as to what they would have done in the inherently limited setting of facts that they were asked to assume. No objection was taken to them doing so even if such objection was potentially available. ^[11] This tendency was demonstrated, inherently, from the prism of hindsight in a way which I thought was to a degree unfair to staff at TDCC. This was seen, for example, in the incident involving the calling of police. Expert evidence from professionals usually is of most instance to a tribunal of fact when it refers to reasonable or responsible professional practices from which the trier of fact can draw upon an external standard; not personal opinion even from those qualified to give it. The tribunal of fact’s own views may influenced, even decisively, though not compelled, by evidence of that kind.

    11. Lucantonio v Kleinert [2009] NSWSC 853 at [8].

93. To a significant degree, Counsel for Mr Lau drew upon extracts from Ms Ryan’s report and her evidence in the hearing in framing his submissions.

Jones v Dunkel

94. In his closing written submissions (MFI 5), Counsel for Mr Lau catalogued the many persons within the aged care facility who the defendant did not call and who, it was argued, had some connection with the ‘issues’ or more accurately complaints which Mr Lau raised. This included an Acting Care Coordinator (James Rodriguez), the Residential Manager (Jose Rigor), Lead Pastoral Carer (Christie Zipparo), two lifestyle leaders and five nurses. Conspicuously (and fairly) omitted from Counsel’s list was Ms Dee Banton, who appeared to have the most significant contact with Mr Lau of them all. Her absence was explained. Otherwise, Counsel submitted that Anglicare’s failure to adduce evidence from these persons gave rise to a clear inference that nothing they could have said could have assisted Anglicare’s case.

95. In an exchange with me during the course of closing oral submissions, Mr Lau’s Counsel adopted a more nuanced approach. He recognised that the circumstances in which a Jones v Dunkel inference might be drawn depended on the context (encompassing the circumstances as well as the significance of the event) and, in particular, recognised that it may be more appropriate to draw it in relation to some of the asserted breaches but not others; on a ‘sliding scale’.

96. This was in recognition of the circumstance that Anglicare, through Exhibit 1, did tender a large number of contemporaneous documents, as business records, which were admissible for proof of the truth of their contents, and where it might be thought unlikely or improbable that testimonial evidence from, say nurses, about particular incidents, years after the events, would be any more probative, or cogent, than what appeared on the face of the documents. Counsel singled out the issues associated with the air mattress and the purple-coloured urine as examples of where Jones v Dunkel had work to do.

97. Anglicare submitted that the best evidence was the contemporaneous business records which Anglicare relied upon. It was highly improbable that testimonial evidence years after the event could be more reliable. This was especially so in the circumstances where for the nursing and other staff in TDCC, at least some of the events were rather quotidian; whereas for Mr Lau they may have assumed greater significance.

Shifting evidentiary burden and the “scintilla” principle

98. A prominent theme in Mr Lau’s submissions, associated with its Jones v Dunkel submission, was that where it asserted a negative proposition, and the circumstances relevant to assessing the proposition fell peculiarly within the knowledge of Anglicare, then in the absence of evidence on the point by Anglicare, Mr Lau only needed slight proof to establish the negative. ^[12] In Apollo, Hunt J did not appear to go so far as to accept this ‘scintilla’ principle. His honour explained (at 565E-G) that it was more accurate to say that a claimant’s burden of proving a negative is not so difficult as it might be if the opponent has the greater means of adducing evidence which contradicts the proposition. This was an application of the principle from Blatch v Archer (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was within the power of one side to have produced and in the other to have contradicted ^[13] . Nevertheless, the proposition that where a matter is particularly within the knowledge of the party that does not bear the onus of proof, relatively slight evidence from the other party may be sufficient to regard the onus as satisfied unless that evidence is rebutted by evidence from the party who has that particular knowledge has come to be accepted as a separate principle to Blatch v Archer. ^[14] However, the legal (persuasive) burden of proof always remains with the proponent, whether or not the opponent adduces evidence on an issue. Where the opponent does go into evidence on the issue, as Anglicare did here with its documentary case (Exhibit 1), it may discharge an evidential (or tactical) burden, but that is not legally significant. ^[15] Then the contested question is resolved by whether the proponent ultimately can persuade the trier of fact of the proposition.

    12. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 (‘Apollo’).

    13. The principle in Blatch v Archer was applied recently in Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 418 ALR 304 at [129].

    14. The principle being reaffirmed recently in Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 at [74].

    15. Cross on Evidence (Online version, Lexis Nexis) [7210].

99. I now turn to the individual asserted breaches, taking them in the order in which they appear in the pleadings.

Exposing Betty to the risk of contracting coronavirus

Lay and documentary evidence

100. In his first affidavit, Mr Lau annexed a letter dated 3 August 2020 from Dr Pang detailing what Mr Lau described as Betty’s ‘compromised immunity’.

101. In his first affidavit (at sub-paragraph 61(a)), Mr Lau deposed that between 25 September 2020, but before 12 October 2020, he went to visit Betty in her room but discovered that she was not there. She was in fact in the chapel with other residents of the TDCC. He noticed that no one was wearing any face mask, including the pastoral staff. He also noticed that the wheelchairs in which the residents were sitting were in such close proximity as to be almost touching.

102. Under cross-examination, Mr Lau confirmed that he was unaware that Betty had been moved by a staff member to the Chapel of the TDCC (although he could not recall the date in question).

103. On 1 October 2020, at 3:40pm, Mr Lau visited Betty. He was educated in hand washing techniques performed as ‘best practice’ within the facility. He performed handwashing. He donned a mask and had been screened. He indicated he had not been to any hot spot areas (Ex 1, CB 2719).

507. Mr Lau did not, in particular, supply the Court with submissions of the sort of matters referred to under s 63N(3) of the Aged Care Quality and Safety Commission Act 2018 (Cth), which would properly need to be taken into account if the Court was empowered to grant the remedy. In my view, for the Court to order a public apology under ss 237 and 243 without reference to the considerations relating to enforcement orders under the special statutory regime for aged care providers is inappropriate as it would tend to circumvent that special statutory regime.

Other contexts in which apologies appear

513. In his opening address, Counsel for Mr Lau indicated that court-ordered apologies are not unknown in the context of defamation and discrimination law. This appeared to serve the forensic purpose of giving comfort to, or perhaps fortifying, the Court should it be otherwise inclined to order it but for doubts about whether this was permissible as a matter of power, or appropriate as a matter of discretion under the ACL.

514. There is some utility in considering some other statutory contexts from a comparative perspective, as a means of checking some of the conclusions I have reached with more direct reference to the text and structure of the ACL.

515. Counsel’s submission is inaccurate to the extent that he refers to defamation law. In the tort of defamation, the Court does not order apologies. The circumstance that a defendant makes an apology is relevant in mitigating damages. ^[33]

     33. Defamation Act 2005 (NSW), s 38. The legislation also encourages apologies by giving publishers an opportunity to voluntarily ‘make amends’ after a receipt of a concerns notice by a person who claims that they have been defamed as a precondition to commencing a defamation suit: Defamation Act, Part 3 Division 1.

516. Under the imminent operation of the statutory tort of privacy, the legislative framework does envisage, as one remedy, a court-ordered apology. ^[34] It might be thought that much of that action is directed to intrusion upon a person’s seclusion in a way exposing the person to public view. ^[35] Certain naturally extrinsic material suggests that the aim of the new tort is to redress harm to a personal, dignitary interest, and an apology could assist in rectifying the victim’s feelings of embarrassment and distress. However the extrinsic material also contemplated that court-ordered apologies would not likely be made where the defendant clearly indicates that it offers no remorse such that the apology would not be freely made. ^[36]

     34. Privacy and Other Legislation Amendment Act 2024 (Cth), Schedule 2, s 12(2)(c). The relevant statutory provisions commence on 10 June 2025.

     35. C Sappideen et al, Fleming’s The Law of Torts (11th ed, Thomson Reuters 2024), p 781.

     36. Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123), [12.160], [12.169].

517. As to discrimination law, it is true that by s 46PO(4)(b) of the Australian Human Rights Commission Act1986 (Cth) (the “AHRC Act”) the Federal Court is empowered (in combination with s 23 of the Federal Court of Australia Act 1976 (Cth)) to order a respondent to apologise to an applicant for discrimination or harassment. ^[37] By its terms, s 46PO is also compensatory in purpose.

     37. Section 46PO of the AHRC Act empowers a Court to require a respondent to “perform any reasonable act to redress any loss or damage suffered by an applicant”.

518. One such occurrence occurred in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 when (at [34]) Kiefel J determined (in obiter, since the applicant’s complaint of racial discrimination was not established) that it would have been appropriate to order for an apology for the purpose of vindicating the applicant, a First Nations person, in the eyes of her community.

519. However, in commentary on this power, ^[38] the trend largely appears against such apologies being ordered in all but exceptional circumstances. In Wotton, Mortimer J emphasised the lingering sense of grievance and injustice informing not only the applicant, but members of her community who suffered racial discrimination in a police investigation.

     38. C Ronalds & E Raper, Discrimination Law and Practice (5th ed, Federation Press, Ebook), pp 216–217, citing Wotton v Queensland (No. 5) (2016) 352 ALR 146 (“Wotton”) per Mortimer J (as her Honour then was) at [1553]–[1584], where the authorities in that area were thoroughly canvassed.

520. Especially pertinent, with respect, and consistent with my own views, was Mortimer J’s point, expressed at [1590]–[1591] that apologies are more likely to have value where public entities or officeholders have engaged in the conduct complained with, as distinct from controversies as between private parties, in which context there is generally a negative disposition towards apologies since “the idea of ordering someone to make an apology is a contradiction in terms”: Jones v Scully (2002) 120 FCR 243 per Hely J at [245].

521. A further difficulty, in my view, is that the list of persons against whom Mr Lau’s Counsel argued for the possible application of Jones v Dunkel is quite large. By its terms the apology his Counsel proffers draws no distinction between a wrong performed by an individual and one performed by the Centre (and therefore Anglicare) as an institution. That would make any such apology more impersonal, as well as casting a negative reflection upon persons who, on an individual level, are blameless and conscientiously provided good care to Betty. This may not be the strongest consideration against it, but it remains relevant.

522. In my view, the analogy afforded by apologies in the discrimination context does not assist Mr Lau: the occasion of the wrongful conduct was a particular commercial transaction between private parties; where the complaints go to the treatment of service providers rather than a direct affront to an aspect of Betty’s identity (unlike the discrimination cases, where affronts to a person’s particular feature or identity, such as age, race, gender, sex or disabilities, frequently generate complaints). This is not a case where conduct affecting Betty was in public, such as to embarrass, humiliate or demean her in the eyes of others. The dealings here were private.

523. This highly limited survey indicates that the circumstance that public apologies can be coerced in other statutory contexts does not assist the Court to decide whether, as a matter of power or discretion, the remedy is or should be available under the ACL.

Other arguments raised by Mr Lau

524. Dealing with some of the other arguments Mr Lau raises that have not already been addressed, contrary to his submission, the circumstances that Betty’s loss is not quantifiable, or even demonstrated to have been caused by the Centre, provides less reason, not more, for the appropriateness of an apology in principle. The absence of quantifiable loss bespeaks a situation where an order under s 237 is not being made for a compensatory purpose. In my view, there is less need, not more, for a public apology where an entity’s conduct is unharmful in the sense of not attracting an order for monetary compensation.

525. If what Mr Lau seeks is vindication of proof that what occurred was in breach of contractual obligations to Betty (even though it did not occasion substantial loss or damage to Betty), he achieves that through the order for nominal damages, to the extent that he can in an action for breach of contract under the general law in the absence of proof of loss caused by the breach (or breaches). ^[39]

     39. New South Wales v Stevens (2013) 83 NSWLR 106 at [19], [26].

526. It is also unconvincing to suggest that the publicising of an apology is no different in effect than the publication of these reasons on Caselaw, whose reasons are, I take it, primarily read by parties to (actual or prospective) litigation or their legal representatives, judges and the legal profession more broadly.

527. Relevant also, in my view, is the scale or scope of the breaches of contract, although I hesitate to say much about this given my view that the underlying merits of a public remedy falls within the bailiwick of the regulator. What follows are only preliminary impressions uninformed by a whole host of factors. These have to be seen in dealings that the TDCC had with Betty for nearly a nine-month period. They are not many in number and, individually or in combination, they are not major in quality: as indicated by the absence of any claim for substantial damages. In particular, the omission to provide an APAM was in a relatively short period of time when Betty was not yet a full-time resident.

528. Whilst it may be expected that any breach of contract will generate disappointment, distress or upset in the promisee, on the findings I have made, the breaches were not of the character as to amount to the level of indignity or affront, or have any public dimension which would support the relief sought.

529. In summary of what I have reasoned, considered as a question of discretion, the public apology that Mr Lau seeks:

1. would be manifestly insincere;

2. would be inutile where the person whose personal or dignitary interests, manifested in hurt feelings, is deceased. Another way of saying this is that an apology to him, either in his personal capacity or as representative or proxy for Betty, could not rectify Betty’s hurt feelings;

3. would not be consistent with a compensatory purpose;

4. would be given in circumstances where, other than the publicity this proceeding has generated, the Centre’s conduct towards Betty was private or did not play out in public, so as to humiliate or demean her in the eyes of others;

5. overlooks that the purpose of achieving vindication of the infringement of Betty’s rights has been achieved, albeit through nominal damages, for the breaches of contract that I have found established;

6. is problematic as it requires an institution to apologise, at least in the context of a singular and private transaction between service provider and a consumer in trade or commerce.

530. If I am wrong about an absence of power to order an apology, in the circumstances of this case, I would add as a discretionary consideration militating against the remedy, the absence of input of the Australian Competition and Consumer Commission or state equivalent, and the circumvention of the specialist aged care regulator’s enforcement role.

531. Mr Lau’s claim for relief in the way of a publicly advertised apology by Anglicare under ss 237 and 243 of the ACL is refused. His statutory action is therefore dismissed.

532. In the unusual circumstances of this case I will give the parties the opportunity to separately address me on the question of costs.

Orders

533. In accordance with my reasons, the Court orders:

1. Judgment for the plaintiff for $200.

2. The question of costs is reserved and, absent any indication of a requirement to the contrary, is to be determined on the papers.

534. The Court makes the following further directions on costs:

1. The defendant is to serve written submissions not exceeding 5 pages in length (excluding any relevant annexures in the nature of evidence) by 2 June 2025.

2. The plaintiff is to serve written submissions not exceeding 5 pages in length (excluding evidentiary annexures) by 5 June 2025.

3. The defendant is to serve any submissions in reply not exceeding 2 pages in length by 10 June 2025.

4. At the time of service of the submissions, the parties are to email to my Associate copies of the submissions.

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Endnotes

Decision last updated: 28 May 2025