Naidoo v Naidoo
[2001] WASC 147
NAIDOO -v- NAIDOO & ORS [2001] WASC 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 147 | |
| Case No: | CIV:2734/2000 | 29 MAY & 5 JUNE 2001 | |
| Coram: | MASTER SANDERSON | 12/06/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Summary judgment entered for third defendant against plaintiff | ||
| PDF Version |
| Parties: | DHANALUTCHMEE NAIDOO RAMAKRISHNA MARRIEMUTHU NAIDOO ASOTHA NAIDOO PUBLIC ADVOCATE |
Catchwords: | Practice and procedure Application for summary judgment Turns on own facts |
Legislation: | Guardianship & Administration Act 1990, s 91, s 97 Parliamentary Commissioner Act 1971, s 23A |
Case References: | Director of Public Prosecutions Reference Under s 693A of the Criminal Code; Re Y & Ors (1997) 19 WAR 47 A-G of the Duchy of Lancaster v L & NSWAR [1892] 3 Ch D 274 Bond Corporation Holdings Ltd (1989) 1 WAR 465 Christmas Island Resorts Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Hay v Butler & Crooks (1991) 7 WAR 333 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Hubbuck & Sons v Wilkinson [1899] 1 QB 86 In re Majory [1955] Ch 600 Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Nagle v Fieldren [1966] 2 QB 633 Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 Sentinel Financial Management v Intercorp Finance (1997) 15 ACLC 201 Spautz v Gibbs (1990) 21 NSWLR 230 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 Wan v Sweetman (1998) 19 WAR 94 White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169 Williams v Spautz (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RAMAKRISHNA MARRIEMUTHU NAIDOO
First Defendant
ASOTHA NAIDOO
Second Defendant
PUBLIC ADVOCATE
Third Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Turns on own facts
Legislation:
Guardianship & Administration Act 1990, s 91, s 97
Parliamentary Commissioner Act 1971, s 23A
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Result:
Summary judgment entered for third defendant against plaintiff
Representation:
Counsel:
Plaintiff : Mr K C Staffa
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Ms C J Thatcher
Solicitors:
Plaintiff : Kevin Staffa
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Director of Public Prosecutions Reference Under s 693A of the Criminal Code; Re Y & Ors (1997) 19 WAR 47
Case(s) also cited:
A-G of the Duchy of Lancaster v L & NSWAR [1892] 3 Ch D 274
Bond Corporation Holdings Ltd (1989) 1 WAR 465
Christmas Island Resorts Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Hanrahan v Ainsworth (1985) 1 NSWLR 370
Hay v Butler & Crooks (1991) 7 WAR 333
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hubbuck & Sons v Wilkinson [1899] 1 QB 86
In re Majory [1955] Ch 600
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
(Page 3)
Nagle v Fieldren [1966] 2 QB 633
Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343
Sentinel Financial Management v Intercorp Finance (1997) 15 ACLC 201
Spautz v Gibbs (1990) 21 NSWLR 230
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
Wan v Sweetman (1998) 19 WAR 94
White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169
Williams v Spautz (1992) 174 CLR 509
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1 MASTER SANDERSON: This is the third defendant's application for summary judgment or, in the alternative, an application to strike out the plaintiff's statement of claim. At the conclusion of the hearing I indicated to the parties that I would enter judgment for the third defendant and I would publish reasons at a later date. These are those reasons.
2 The Guardianship and Administration Act (1990) ("the Act")establishes a regime whereby orders can be made protecting the estate of persons found to be incapable of managing their affairs. Pursuant to the Act there was constituted the Guardianship Board ("the Board"). The Board was empowered to make orders for the protection of the estate of individuals in line with the provisions of the Act. Also established by the Act was the Office of The Public Advocate (s 91). The functions of the Public Advocate are set out in s 97 of the Act. The Public Advocate is empowered to make applications to the Board in certain circumstances and, relevantly, it is empowered to investigate any complaint that a person is in need of a guardian (s 97(1)(c)).
3 It is interesting to note that the Act does not provide the Public Advocate with any powers to enable it to undertake an investigation in a particular case. Accordingly, the Public Advocate cannot require any person to attend for examination, cannot force a medical practitioner to disclose medical information, cannot force an individual to undergo medical examination and cannot compel any party to answer inquiries. Clearly the Public Advocate is dependant upon the co-operation of various parties to achieve anything by an investigation. Furthermore, and importantly in the context of this case, the Public Advocate can make no decision which affects the rights or liabilities of an individual. Any care and protection order or indeed any order affecting the rights of an individual can only be made by the Board. So far as the Public Advocate is concerned he or she takes only two decisions in relation to an investigation. First, on receipt of information a decision is made whether or not to conduct an investigation. Secondly, once the investigation is under way a decision is made whether or not to make an application to the Board. Although both decisions might ultimately affect the interests of an individual - if a decision is made to investigate and after investigation a decision is made to take the matter to the Board - neither decision directly affects the interests of an individual. It is only a decision of the Board which has that effect.
4 The facts in this case may be shortly stated. The plaintiff, a 71-year-old woman, is the mother of the second defendant and the mother-in-law of the first defendant. The first defendant is a medical
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- practitioner. The plaintiff and the first and second defendants have, for some time, been involved in acrimonious litigation in this Court in relation to moneys allegedly held on trust by the first defendant for the plaintiff. The details of these proceedings are not presently relevant but they are pleaded in some detail in par 6 through to par 9 of the substituted statement of claim filed 23 March 2001. On or about 16 July 2000 the first defendant made a complaint to the third defendant - the Public Advocate and suggested the plaintiff may not be able to manage her affairs. As a result of this complaint the third defendant undertook an investigation pursuant to s 97(1)(c) of the Act. After an investigation lasting some three months, the third defendant concluded that there was no evidence such as would warrant an application to the Board and no further action was taken. It is the conduct of this investigation which is now the subject of the action brought by the plaintiff against the third defendant.
5 The third defendant's application was supported by an affidavit of Roberto D'Agostino sworn 5 April 2001. In opposition to the application the plaintiff relied inter alia on an affidavit of the plaintiff sworn 17 May 2001. At the commencement of the hearing counsel for the third defendant took objection to par 26 of the plaintiff's affidavit. Paragraph 26 refers to a letter dated 28 August 2000 from the Public Advocate to the Ombudsman. Counsel submitted that pursuant to s 23A of the Parliamentary Commissioner Act 1971 the letter was privileged from production and not admissible in any proceedings. The section provides:
"Any document that is sent to the Commissioner or his officers or by the Commissioner or his officers in the course of, or for the purposes of, an investigation under this Act and was prepared specifically for the purposes of the investigation shall be privileged and not be admissible in evidence in any proceedings other than proceedings for perjury or any offence under the Royal Commissions Act 1968 or under this Act alleged to have been committed in any proceedings upon such an investigation."
6 The operation of this section was considered in some detail by the Full Court of this Court in Director of Public Prosecutions Reference Under s 693A of the Criminal Code;Re Y & Ors (1997) 19 WAR 47. The court examined s 23A and its context in the scheme of the Parliamentary Commissioner Act, the objects of that Act itself and the
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- Minister's second reading speech when that Act was introduced. Their Honours said at 52:
"The object of s 23A, in declaring documents of the kind referred to therein to be 'privileged' and 'not admissible in evidence' in any proceedings other than those stipulated, is plainly to prevent documents relevant to the Commissioner's investigations from being disclosed and used in legal proceedings. Having regard to the nature of the investigations carried out by the Commissioner, the protection provided by s 23A is designed to further the public interest in achieving appropriate standards in the public service."
"The close affinity between the protection afforded by s 23A and public interest immunity provides the answer to this question. By its nature, public interest immunity is founded on the protection of the public interest. Hence, such immunity can be claimed by any interested party, such as the Crown, a statutory authority, or a party to or a witness in the litigation in question. … Indeed, as was pointed out (at 44 and 68) in Sankey v Whitlam (1978) 142 CLR 1, even if no claim is made by the Crown, in an appropriate case the court, of its own motion, should prevent the disclosure of a document whose production would be contrary to the public interest. In the same way, the statutory privilege created by s 23A is in the public interest and for the public benefit and, therefore, any interested party … is entitled to exercise the privilege."
8 For the plaintiff it was argued that any privilege attaching to the correspondence pursuant to s 23A was waived in this case because the Ombudsman himself sent the document to the plaintiff without stating or claiming any restriction on its use. But as was made plain by the Full Court in the passage I have quoted above, there is no question when public interest immunity is the basis of a claim for privilege, of a waiver of that privilege by publication. The clear intent of s 23A is that correspondence directed to the Ombudsman cannot be used in legal proceedings. The fact that such correspondence may come to light and be well known to all of the parties is irrelevant. The important point is that
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- the legal rights of a party cannot be affected by the use of the correspondence in legal proceedings.
9 In my view the letter is inadmissible and par 26 of the plaintiff's affidavit was accordingly struck out.
10 The admissibility of this correspondence and par 26 of the plaintiff's affidavit was raised by counsel for the third defendant when the special appointment was first called on. No mention had been made by counsel of this issue in her written submissions. As counsel for the plaintiff regarded this issue as one of some importance, I granted an adjournment to allow him to consider his position. Before the matter next was called on a further affidavit of the plaintiff sworn 1 June 2000 was filed and served. At the resumed hearing counsel for the plaintiff sought leave to rely upon this affidavit. In fact, all that this affidavit did was attempt to repeat what was contained in the letter from the third defendant to the Ombudsman. In other words, the plaintiff as attempting to circumvent any order I might make striking out par 26 of her earlier affidavit. This was clearly inappropriate. Although I allowed the plaintiff's affidavit into evidence I struck out par 4 of that affidavit as inadmissible.
11 It is somewhat difficult to ascertain from the substituted statement of claim what causes of action are pleaded by the plaintiff against the third defendant. As I understand the statement of claim, as interpreted through the written and oral submissions of counsel for the plaintiff on this application, the plaintiff's case is put on two grounds. First it is said that in conducting an investigation under s 97(1)(c) of the Act the third defendant owes the plaintiff a duty of care. It is alleged that the third defendant breached this duty of care and as a consequence the plaintiff has suffered loss and damage. The nature of the duties allegedly owed by the third defendant to the plaintiff are set out in par 19 of the substituted statement of claim.
12 It seems to me highly questionable that the statutory right of the third defendant to investigate complaints made to it can of itself give rise to any duty of care. Taking even the most favourable view and accepting for the purposes of this application only that some duty may arise, it is difficult to see the duty could extend beyond requiring the third defendant to investigate any complaint competently. I can see no basis at all upon which it could be said that the duties pleaded in par 19 arise. The plaintiff pleads that by deciding to investigate the third defendant "implemented legal processes". It is not clear what that plea means or to what end it is directed. In any event it is clearly wrong. As I have pointed out above,
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- no investigation undertaken by the third defendant can in any way affect the legal rights of a person under investigation. Clearly no plea that rights arise as a consequence of the implementation of "legal processes" can stand.
13 The second cause of action is, as I understand it, an allegation that the third defendant breached the rules of natural justice during the course of its investigation. It is said that the plaintiff was not provided with the opportunity to comment on material held by the third defendant.
14 It should be said that this plea does not emerge from the substituted statement of claim. It was a matter referred to in the written submissions and developed in the oral submissions.
15 With respect, this submission entirely misunderstands the rules of natural justice and the way that they are applied. A person against whom adverse findings are to be made is, in certain circumstances, to be provided with the opportunity to comment upon those findings. In this case the third defendant was undertaking an investigation. Even if a decision had been made to make an application to the Board, there was no question of the rights of the plaintiff being adversely affected. It was only the Board who could make a decision which affected the plaintiff's interests. In any event, the investigation never reached the point where a decision was taken to refer the matter to the Board. There can be no factual basis for suggesting that in the circumstances of this case the third defendant was required to give the plaintiff the opportunity to comment on any of the material gathered in the course of the investigation.
16 It is perhaps worthwhile to put the plaintiff's action in perspective, to take one step backwards and look at the situation confronting the third defendant. The third defendant received a complaint regarding the mental capacity of a 70-year-old woman from a close relative. What was the third defendant to do? It clearly had to investigate - such a complaint could not be regarded on its face as frivolous or vexatious. Once an investigation was launched the third defendant received submissions from the plaintiff and those who supported her and from the first and second defendants. Other limited inquiries were made. At each turn the evidence suggested that the plaintiff was of sound mind and well able to manage her own affairs. Because of the limited nature of the investigation, partly due, no doubt, to the lack of coercive power of the third defendant, the investigation petered out. The third defendant was not entirely satisfied one way or another but acknowledged that there was not sufficient
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- material to warrant an application to the Board. So it took no action. That was the end of the matter.
17 The affidavit of Mr D'Agostino is comprehensive. It sets out the material obtained during the course of the investigation and gives a clear picture of the way the investigation was undertaken. No fair-minded person reading all the material could conclude anything other than that the investigation was undertaken competently and diligently. The main complaint of the plaintiff seems to be that assurances by her and her supporters that she was of sound mind were not accepted uncritically, thus bringing the investigation to an end. There is no reason why the third defendant should not have continued to investigate, even in the light of submissions put by the plaintiff and her supporters, nor is there any reason why the third defendant should have explained to the plaintiff precisely how the investigation was to be conducted. The conduct of the investigation was a matter for the third defendant and on the material available in this case it was conducted in all respects properly.
18 I can see no basis whatever for the plaintiff's claim against the third defendant. On that basis I indicated to the parties I would enter summary judgment for the third defendant against the plaintiff.
19 This present application did not, in any way, concern the first and second defendants. However, I think it appropriate before leaving the case to make some comments about the action generally. In my view it is a pointless exercise. Even if a cause of action lies against the first and second defendants, the damages that would result from a successful claim would be nominal. Clearly the plaintiff was upset by the actions of the first and second defendants in contacting the Public Advocate. Perhaps it was mischievous of the first and second defendants to have taken that action. I am in no position to make a judgment on this issue. But even if the first and second defendants did act inappropriately that does not mean anything will be achieved by these present proceedings. They are a waste of time and money and the plaintiff needs to reconsider her position.
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