Mauger v Southern Cross Care (SA, NT & Vic) Inc - [2023] NTSC 73

CITATION:Mauger v Southern Cross Care (SA, NT & Vic) Inc [2023] NTSC 73
PARTIES:MAUGER, FATHMA (AS LITIGATION GUARDIAN FOR GRAHAM DAVID MAUGER)
v

SOUTHERN CROSS CARE (SA, NT & VIC) INC
(ACN 129 895 905)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-01866-SC
DELIVERED:  23 August 2023
HEARING DATE:  18 July 2023
JUDGMENT OF:  Kelly J

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1; Burns Philp Trust Pty Ltd v Kwikasair Freightlines Ltd (1963) SR (NSW) 492; DL & JE Graetz P/L & Anor v NTHG P/L & Anor [2002] NTCA 6; Parkenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386; Politano and Ors v ACN 060 442 926 Pty Ltd and Ors (1998) unreported decision of the Federal Court of Australia New South Wales District Registry NG 416 of 1998; Sydney Consumers’ Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd (1931) 31 SR (NSW) 458, referred to
Meagher, Gummow & Lehane’s Equity, Doctrines and Remedies
REPRESENTATION:
Counsel:
Plaintiff:H Baddeley
Defendant:H Veale
Solicitors:
Plaintiff:AFL Withnalls Lawyers
Defendant:HWL Ebsworth Lawyers
Judgment category classification:    C
Judgment ID Number:  Kel2303
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mauger v Southern Cross Care (SA, NT & Vic) Inc [2023] NTSC 73

No. 2023-01866-SC

BETWEEN:

FATHMA MAUGER (AS LITIGATION GUARDIAN FOR GRAHAM DAVID MAUGER)

Plaintiff

AND:

SOUTHERN CROSS CARE (SA, NT & VIC) INC
(ACN 129 895 905)

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 August 2023)

This is an application for an interim injunction ordering that Mrs Fathma Mauger be permitted to visit Mr Graham David Mauger in his room and the upstairs living area at the Pearl Supportive Care Facility. I delivered the decision, and brief ex tempore reasons following the hearing of the application on 18 July 2023. These are slightly expanded reasons, mostly by way of adding references to relevant authorities.
The plaintiff, Mr Mauger, is 77 years old and suffers from Posterior Cortical Atrophy, a form of dementia.
Mr Mauger lives at the Pearl Supported Care Facility (“Pearl”) operated by the defendant. He lives in an upstairs room next to a sitting area. He refers to this room as his “home”. Mr Mauger’s wife, Fathma, has been appointed as his decision maker under an Advance Care Plan made and signed by Mr Mauger at an earlier stage of his life.
A dispute has arisen between Mrs Mauger and the management of Pearl. The management of Pearl claim that Mrs Mauger has bullied and harassed Pearl staff and, by letter dated 21 September 2022, they advised her that she would no longer be permitted to visit Mr Mauger in his upstairs room (“the Restriction”).
Pearl management have offered other facilities where Mrs Mauger can visit Mr Mauger including the chapel, a hairdressing salon and a downstairs area which Mr Mauger sometimes attends. Mrs Mauger has deposed that these alternative facilities are inappropriate for various reasons and this view is supported to some extent by Mr Mauger’s GP and his treating psychiatrist.
Pearl management has also offered to move Mr Mauger to a downstairs room and to allow Mrs Mauger to visit Mr Mauger there. Mrs Mauger is of the view that with the advanced state of Mr Mauger’s dementia, this would be unduly upsetting and distressing for Mr Mauger. This too, is to some extent supported by Mr Mauger’s GP and treating psychiatrist.
Mrs Mauger has commenced this proceeding on Mr Mauger’s behalf, seeking to be appointed as Mr Mauger’s litigation guardian, and seeking a declaration that the Restriction is unlawful and an injunction restraining the defendant from enforcing the Restriction.
Serious question to be tried
The plaintiff claims that the Restriction (including the continuation of the Restriction up to the trial of this proceeding) is a breach of the Residential Care Service Agreement dated 6 January 2021 between the plaintiff and the defendant (“the Agreement”).
Clause 6 and Schedule 4 of the Agreement contain provisions which, the plaintiff contends, impliedly confer on Mr Mauger the right to have visitors, and to choose to have his wife visit him in his own private rooms. While conceding that that right is not unlimited and that the defendant may impose reasonable restrictions, the plaintiff contends that the Restriction is unreasonable. This will depend on whether it can be established that Mrs Mauger really did bully and harass staff and (if so) whether the Restriction, and its maintenance till trial is reasonably necessary in the circumstances to alleviate the risk of bullying and harassment.
The defendant does not cavil with that analysis by the plaintiff and concedes that there is a serious question to be tried concerning whether the Restriction breaches the Agreement but says that even if it does, there would be no entitlement to a remedy that effectively forces the defendant to allow Mrs Mauger into Pearl. No authority for that proposition was cited.
The power to grant interlocutory injunctions in cases in which it appears to the Court to be just or convenient to do so is not at large. The Court’s power to grant an interlocutory injunction is limited to making such an order in protection of some legal or equitable right which the Court might enforce by final judgment.[1]
If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the respondent cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved. There is then no justice in maintaining the status quo, because that depends upon restraining the appellant from doing something which, by hypothesis, the respondent has no right to prevent.[2]
“The common reference to ‘a serious question to be tried’ is an abbreviated form of reference to a serious question to be tried as to the granting of a form of final relief, the substance of which, in the relevant respect, would be rendered nugatory by the course of action threatened and sought to be prevented.”[3]
Counsel for the plaintiff contends that at the very least the plaintiff would be entitled to a declaration that the Restriction is unlawful and unenforceable, supported, if necessary, by an appropriately worded injunction either restraining the defendant from preventing Mr Mauger from having his wife visit him in his room or requiring the defendant to allow Mrs Mauger to visit Mr Mauger in his room.
I proceed on the basis that there is a serious question to be tried as to whether the Restriction is unreasonable and hence in breach of the Agreement and also as to the form of remedy appropriate. In Sydney Consumers’ Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd,[4] Innes J said:
Both on principle and on authority, I have come to the conclusion that in cases where an injunction is sought to compel the performance in specie of an executed contract, the Court has a discretion.
In Burns Philp Trust Pty Ltd v Kwikasair Freightlines Ltd[5] the Full Court of the Supreme Court of New South Wales granted a mandatory injunction to enforce one single positive stipulation in a contract, expressly adding a mandatory injunction to the negative injunction granted at first instance.[6]
Balance of convenience
In my view, the balance of convenience overwhelmingly favours the granting of an interim injunction in the terms sought.
The first factor to be considered is the needs of Mr Mauger.
(a)Mr Mauger is suffering through a very difficult and late stage of his life. The evidence is that he is lonely and confused and needs the care, love and support of his wife. The evidence is also that he does not understand why she is not permitted to visit him in his room and that it distresses him.
(b)On Mr Mauger’s Advance Care Plan[7] the things he specified as giving his life meaning and which are a priority if he is near death are ‘Good relationship with family’ and ‘Have family and friends around me’ and one of the two things specified as being unacceptable to Mr Mauger if nearing death is ‘Being alone’.
I agree with the submission by the plaintiff that “it is difficult to conceive of something more important to an individual than the love and care of a spouse/partner at the end of one’s life when suffering dementia.”
In addition the Restriction effectively prevents Mrs Mauger from acting as Mr Mauger’s advocate and decision-maker as Mr Mauger specified in his Advance Care Plan.
Balanced against that is the risk that Pearl staff may be bullied and harassed by Mrs Mauger and tender their resignations, it not being in dispute that it is sometimes difficult to recruit and keep competent staff in nursing homes such as Pearl. I consider that this risk can be adequately managed. Mrs Mauger is desperate to be able to visit her husband in his rooms and to care for him there and is prepared to give undertakings to alleviate the concerns expressed by Pearl management. Mrs Mauger has agreed to give the following undertakings to the Court as a condition of the grant of an interim injunction:
(a)Mrs Mauger will provide at least 24 hours notice, during business hours, via email to [email protected] of her intention to visit and time of intended visit.
(b)Mrs Mauger will telephone reception one hour prior to visit to confirm visit.
(c)Mrs Mauger will not wander through the facility.
(d)During the visits, Mrs Mauger will communicate only with the care-coordinator or care manager about Mr Mauger’s immediate needs and for a maximum duration of 15 minutes.
(e)Mrs Mauger will limit her visits to a maximum of 2.5 hours.[8]
It seems to me that those undertakings should alleviate any risk that Mrs Mauger’s presence may be disruptive to Pearl’s operations, noting that any breach of the undertakings to the Court would render Mrs Mauger liable to be prosecuted for contempt of Court as well as opening the way for Pearl to apply to discharge the injunction.
On the giving of those undertakings, I made the following orders:
1.Mrs Mauger is appointed as interim litigation guardian for Mr Mauger for the purpose of bringing this injunction application.
2.An Interim Injunction is granted ordering that Mrs Fathma Mauger be permitted to visit Mr Graham David Mauger in his room and the upstairs living and dining areas at the Pearl Supportive Care Facility between the hours of 9:00am and 7:00pm or otherwise as agreed by Pearl management.
3.Liberty to the parties to apply on short notice.
4.The costs of the Summons are reserved.
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[1] ABC v Lenah Game Meats Pty Ltd (“Lenah”) [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1 (15 November 2001) per Gummow and Hayne JJ at [105] per Gleeson CJ at [15]; See also DL & JE Graetz P/L & Anor v NTHG P/L & Anor [2002] NTCA 6 (“Graetz”) at [16] to [22]

[2] Lenah at [15] per Gleeson CJ

[3] Politano and Ors v ACN 060 442 926 Pty Ltd and Ors (1998) unreported decision of the Federal Court of Australia New South Wales District Registry NG 416 of 1998 per Lindgren J, cited with approval by the NT Court of Appeal in Graetz at [17]

[4] (1931) 31 SR (NSW) 458 at 471; See also Parkenham Upper Fruit Co Ltd v Crosby (1924) 35 CLR 386

[5] (1963) SR (NSW) 492

[6] See discussion in Meagher, Gummow & Lehane’s Equity, Doctrines and Remedies at [21-445]

[7]Annexure A to the first affidavit of Fathma Mauger pp 1 to 25

[8] Mrs Mauger also offered to give further undertakings to wait at reception to be escorted to Mr Mauger’s room and to wait to be escorted out again. However, I considered those undertakings would be unduly restrictive and unworkable. It will be a matter between Pearl and Mrs Mauger whether they come to some such arrangement or not.