FEDERAL COURT OF AUSTRALIA

Budini v Sunnyfield [2019] FCA 2164

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ interlocutory application dated 22 October 2018 is dismissed.

2.    All parts of the amended originating application seeking relief under the Australian Human Rights Commission Act 1986 (Cth) for contraventions of the Disability Discrimination Act 1992 (Cth) are struck out.

3.    Any application for a person to be appointed as the first applicant’s litigation representative in respect of any remaining cause of action to be pursued by her is to be filed and served on or before 7 February 2020.

4.    In the event that the second applicant makes an application to act as the first applicant’s litigation representative, the application is to be accompanied by an affidavit specifying which remaining causes of action are intended to be pursued on behalf of the second applicant in his own name and right.

5.    In the event that any application filed pursuant to the order in paragraph 3 is opposed by the respondents, the respondents are to file and serve any affidavit upon which they seek to rely on or before 21 February 2020.

6.    The matter be set down for a case management hearing on a date to be fixed.

7.    On or before 7 February 2020, the respondents are to inform the Court of any contention that the presiding judge should not be disqualified.

8.    The respondents’ application for costs be set down for hearing at 10:00am on 27 February 2020.

9.    On or before 13 February 2020, the respondents are to file and serve any material on which they seek to rely on their application for costs.

10.    On or before 20 February, the applicants are to file and serve any material in response.

11.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for leave to commence a proceeding alleging contraventions of the Disability Discrimination Act 1992 (Cth) (DD Act).

2    The amended originating application alleges causes of action other than contraventions of the DD Act, including tort, contract and alleged contraventions of the Australian Consumer Law. To the extent that the action includes a proposed claim founded on unlawful discrimination on the ground of disability, I will refer to it as the DD proceeding. Leave is not required to commence a proceeding founded on the other causes of action.

3    The first applicant, Ms Enrica Budini (also known as Ricky) suffers from a series of intellectual and developmental disabilities. A leave application is brought on her behalf by her nephew and legal guardian Michael Budini. For the purposes of the leave application, Michael Budini acts as Ms Budini’s litigation representative. He is also named as the second applicant. In addition to seeking relief on behalf of Ms Budini, he seeks leave to commence the DD proceeding in his own name and right so as to obtain an award of damages payable to him personally for what appears to be an alleged personal injury in the nature of psychiatric illness arising out of the respondents’ acts and omissions.

4    For the reasons that follow, I have determined that Michael Budini does not have standing to make an application for leave to bring a proceeding under the AHRC Act on his own behalf for a personal remedy. If I am wrong in that conclusion, I would nonetheless refuse his application for leave. The application for leave made on Ms Budini’s behalf should also be dismissed.

5    As a consequence, orders should be made striking out those parts of the amended originating application alleging an entitlement to remedies for unlawful discrimination in contravention of the DD Act.

BACKGROUND

Evidence and agreed facts

6    The following facts are extracted from a statement of agreed facts (SOF) signed by the parties for the purposes of s 191 of the Evidence Act 1995 (Cth):

1    Enrica Budini

1.1    The first Applicant Enrica Budini (Ms Budini) was born on 29 May 1959 and is 59 years of age.

1.2    Ms Budini is an Australian citizen.

1.3    Ms Budini is the aunt of the second Applicant Mr Michael Budini (Michael Budini).

1.4    Ms Budini has Down Syndrome.

1.5    Ms Budini's Down Syndrome includes a permanent intellectual disability, developmental delay and certain physical disabilities.

2    Ms Budini’s finances

2.1    Ms Budini is the primary beneficiary of a trust established in or about September 2005 to sustain her (Trust).

2.2    Perpetual Trustee Company Limited (Perpetual) is the trustee of the Trust.

2.3    Following Ms Budini’s death; the residue of the Trust will be distributed as follows:

(a)    25% of the residue to Mr Peter Budini, Ms Budini's brother (Peter Budini); and

  (b)    the balance to a company related to Mr Michael Budini.

3    Care arrangements

3 .1    Sunnyfield is a disability service established as an incorporated Australian public company, limited by guarantee and registered as a not-for-profit charity with the Australian Charities and Not-for-profits Commission.

3.2    Sunnyfield provides, and throughout the Relevant Period provided, disability care services throughout NSW, including at the Sunnyfield Hostel 1ocated in Allambie Heights (Allambie Heights Home).

3.3    Ms Budini’s mother, Maria Budini, died in 2004.

3.4    Prior to 2004, and by reason of the illness (and subsequent death) of Maria Budini, Ms Budini entered the care of Sunnyfield as a permanent resident in the Allambie Heights Home.

3.5    Ms Budini remained a resident of the Allarnbie Heights Home, and in the care of Sunnyfield, throughout the Relevant Period.

3.6    Ms Budini departed Sunnyfield with Michael Budini on 7 September 2016. She did not return. Her belongings were left at Sunnyfield.

3.7    As at 4 September 2016, Dr Clayton was a General Manager of Sunnyfield NDIS Transition & Service Improvement and from 15 December 2016 to June 2017 was General Manager of Sunnyfield Shared Living Services

3.8    Dr Clayton held the position of General Manager of Sunnyfield Shared Living Services from 10 September 2012 to 10 December 2015.

 3.9    Dr Clayton ceased employment by Sunnyfield on 23 January 2018.

 3.10    Ms Budini participated in various holidays during the Relevant Period.

4    Guardianship and Administration

4.1    At all material times (including throughout the Relevant Period) each of Peter Budini and Michael Budini lived in Adelaide.

4.2    Prior to February 2015, Peter Budini had been acting in the capacity of guardian of Ms Budini.

 4.3    Peter Budini is 86 years of age.

4.4    On 26 February 2015, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made an order appointing Michael Budini as the guardian of Ms Budini.

4.5    On 26 February 2016, NCAT made an order re-appointing Michael Budini as the guardian of Ms Budini.

4.6    On 31 August 2016, Dr Clayton applied to NCAT to review the order appointing Michael Budini as Ms Budini’s guardian, upon the ground that Michael Budini’s proposal to move Ms Budini from the Allambie Heights Home permanently to Adelaide was allegedly not in Ms Budini’s best interests and due to alleged concerns as to the manner in which Mr Michael Budini was exercising his authority as guardian.

4.7    On 7 October 2016, NCAT:

(a)    confirmed the continuing appointment of Michael Budini as the guardian of Ms Budini; and

  (b)    dismissed the application made by Dr Clayton.

4.8    On 1 December 2016, the South Australian Civil and Administrative Tribunal (SACAT) appointed Michael Budini as the guardian of Ms Budini pursuant to the Guardianship and Administration Act 1993 (SA),

4.9    On 4 July 2017, NCAT made orders:

(a)    renewing the appointment of Michael Budini as the guardian of Ms Budini; and

(b)    for the purpose of giving Michael Budini the power to perform the function of obtaining legal services for Ms Budini.

4.10    On 20 December 2017, SACAT renewed the appointment of Michael Budini as the guardian of Ms Budini pursuant to the Guardianship and Administration Act 1993 (SA),

4.11    On 29 October 2018, NCAT made an order appointing Michael Budini as the financial manager of the estate of Ms Budini. A copy of that order is annexed and marked A.

5    Initial Complaint

5.1    By letter dated 29 March 2017, Michael Budini made a number of allegations in relation to Ms Budini’s care and asserted claims against Sunnyfield. A copy of that letter is annexed and marked B.

5.2    On 10 April 2017, Michael Budini emailed Sunnyfield through its lawyers, Clayton Utz. A copy of that email is annexed and marked C.

5.3    Michael Budini sent further emails to Clayton Utz on 13 April 2017 and 15 April 2017. Clayton Utz responded to those emails on 18 April 2017. A copy of that email chain is annexed and marked D.

5.4    Clayton Utz responded to Michael Budini's letter dated 29 March 2017 by letter on 20 April 2017. A copy of that letter is annexed and marked E.

5.5    On 1 May 2017, Michael Budini responded to Clayton Utz’ letter dated 20 April 2017. A copy of that letter is annexed and marked F.

5.6    Michael Budini appeared on an episode of Today Tonight, Adelaide (Today Tonight Episode) which was broadcast on 17 May 2017, and which reported on his claims against Sunnyfield in respect of Ms Budini.

5.7    Michael Budini forwarded a copy of a link to the Today Tonight Episode to Clayton Utz by email on 20 May 2017. A copy of that email is annexed and marked G.

5.8    By letter dated 25 May 2017, Sunnyfield wrote to Senator The Honourable Nick Xenophon, who had appeared on the Today Tonight Episode, for the purpose of refuting Michael Budini’s claims against Sunnyfield in respect of Ms Budini. A copy of that latter is annexed hereto and marked H.

5.9    On 30 May 2017, Michael Budini forwarded an email to Clayton Utz from David Purcell, Nelson McKinnon Litigation Funding Solutions. A copy of that email is annexed hereto and marked I.

5.10    Michael Budini and Clayton Utz met on 30 May 2017. Following that meeting, no further correspondence or other communication was received by Clayton Utz from Michael Budini prior to the complaint made to the Australian Human Rights Commission (AHRC) below.

7    The SOF goes on to refer to the lodging of the complaint in the Australian Human Rights Commission (the Commission), commencing with the following:

6.1    On 20 February 2018, Harmers Workplace Lawyers caused a complaint … to be lodged in the AHRC on behalf of Michael Budini and Ms Budini alleging unlawful discrimination.

8    The remainder of the SOF concerns the passage of correspondence passing between Harmers Workplace Lawyers and the Commission leading up to the termination of the complaint in August 2018.

9    Subject to my rulings on objections, the following affidavits have been read:

(1)    three affidavits of Michael Shane Budini sworn on 21 December 2018, 6 February 2019 and 11 February 2019;

(2)    an affidavit of Dr Mark Clayton affirmed on 30 January 2019;

(3)    an affidavit of Ms Caroline Cuddihy affirmed on 29 January 2019;

(4)    annexure JW-2 to the affidavit of Mr Jacob White affirmed 22 October 2018; and

(5)    an affidavit of Mr Stephen Geoffrey Russell affirmed on 3 December 2019.

The Trust

10    The Trust referred to at [2] of the SOF was established by Deed following the death of Ms Budini’s mother who had previously acted as her carer. It was created “for the maintenance, education, advancement in life, benefit and support” of Ms Budini during her lifetime: Recital B.

11    For the purposes of the leave application, I consider the following features of the Trustee’s duties and powers to be either uncontroversial or incontrovertible. To the extent that there are extant disputes about the construction of the Deed it is not necessary to conclusively resolve them.

12    By clause 5 of the Deed, the Trustee is authorised to pay or apply the whole or any part or parts of the income or capital of the Trust fund for the benefit of Ms Budini and no other person “in any manner which the Trustee considers to be for the maintenance, education, advancement in life, benefit and support of” Ms Budini. In the exercise of that power, the Trustee “shall not take into account the interests or position of the Secondary Beneficiaries”: clause 5.3.

13    More specifically, the Trustee is empowered to employ and pay carers, aides, companions and other assistance for Ms Budini’s benefit, and to pay Ms Budini an allowance for personal discretionary spending at a level the Trustee in its absolute discretion considers appropriate: clause 8.5. The Trustee is also empowered to pay any expenses incurred by the carer of Ms Budini in travelling with her and remaining in any part of the world, provided that the Trustee is satisfied that such travel is for Ms Budini’s benefit: clause 8.5.

14    The Trustee’s powers are not conditioned by any requirement to obtain the consent or authorisation of Ms Budini’s next of kin, her guardian or any other person. There is no duty on the Trustee to ensure that upon the death of Ms Budini there is any capital or income remaining for distribution to either Peter Budini or Michael Budini as secondary beneficiaries.

SUMMARY OF CLAIMS

15    The claims sought to be commenced in this Court are founded on facts and circumstances dating back as early as 2007. They may be broadly grouped into allegations affecting Ms Budini’s financial affairs and allegations affecting her health and general wellbeing.

16    The allegations concerning Ms Budini’s financial affairs include allegations that Sunnyfield:

(1)    caused excessive sums to be drawn down from the Trust for the purpose of financing extravagant and unnecessary levels of care and companionship including the provision of extravagant overseas holidays;

(2)    erected a permitter fence around the whole of its facility, the cost of which it wrongly charged to the Trust;

(3)    double-charged the Trust in respect of services it provided to Ms Budini;

(4)    permitted Ms Budini to gamble her spending money on poker machines; and

(5)    failed to restore to the Trust a sum that had been stolen from Ms Budini by a Sunnyfield staff member.

17    It is these claims that are said to support the claim for damages under the DD Act in the amount of $1 million. The award of damages is claimed to be payable to Ms Budini (by her legal guardian, Michael Budini) rather than to the Trust.

18    The allegations concerning Ms Budini’s health and wellbeing are to the effect that Sunnyfield:

(1)    wrongly and fraudulently caused Ms Budini to be diagnosed with dementia for the purposes of ensuring that she was not removed from Sunnyfield’s care;

(2)    otherwise exaggerated Ms Budini’s health complaints for the purpose of deceiving officers of the National Disability Insurance Scheme (NDIS);

(3)    “virtually” starved Ms Budini;

(4)    unlawfully restrained Ms Budini;

(5)    permitted Ms Budini to abscond from Sunnyfield so as to put her at risk of injury or death; and

(6)    kept Ms Budini in a squalid and miserable environment.

19    Some of these allegations are coupled with an allegation that Sunnyfield fraudulently or otherwise wrongly purported to rely on the consents or authorisations of Ms Budini’s brother, Peter Budini, knowing that he had not been formally appointed as her guardian and knowing that he was (on the applicant’s case) unable and unwilling to act in that capacity.

THE STANDING ISSUE

20    Section 46P(1) of the AHRC Act provides that a written complaint may be lodged with the Commission alleging that acts that have been done or that practices that have occurred are unlawful discrimination. Section 46P(2) relevantly provides that the complaint may be lodged:

(a)    by a person aggrieved by the alleged acts, omissions or practices

  (i)    on that person’s own behalf; or

(ii)    on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; …

21    Where a complaint has been terminated by the President of the Commission under s 46PH, any person who is an “affected person” in relation to the complaint may make an application to this Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint: s 46PO.

22    An “affected person” is defined in s 3(1) of the AHRC Act to mean a person on whose behalf the complaint was lodged.

23    The unlawful discrimination alleged in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or must otherwise arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint: AHRC Act, s 46PO(3).

24    There is no question that Ms Budini is a person on whose behalf a complaint was made to the Commission. That complaint was terminated by the Commission on the grounds specified in s 46PH(1)(b), namely that the complaint was lodged more than six months after the alleged, acts, omissions or practices complained of took place.

25    Rule 34.163(1) of the Federal Court Rules 2011 (Cth) provides that a person who wants to start a proceeding under the AHRC Act must file an originating application in the prescribed form. The originating application must be accompanied by a copy of the original complaint to the Commission and a notice of termination given by the President of the Commission. Ms Budini is an affected person within the meaning of s 3(1) of the AHRC Act.

26    The originating application in this case was accompanied by a copy of the complaint, together with a Notice of Termination issued by the Commission on 23 August 2018. The Notice of Termination identifies the complainant as “Michael Budini on behalf of Enrica Budini”. The Notice of Termination does not identify Michael Budini as a person on whose behalf the complaint was lodged. It is this combination of circumstances that gives rise to a question as to whether Michael Budini is, in his personal capacity, an “affected person” as defined in s 3(1) of the AHRC Act.

27    By their amended originating application dated 11 February 2019, the applicants assert their respective entitlements to remedies for unlawful discrimination as follows:

The First Applicant asks the Court for:

 1.    An apology from the First Respondent and the Second Respondent;

2.    An order that the First Respondent and the Second Respondent pay compensation to the First Applicant, comprising:

a.    $400,000 as a general damages payment for pain, suffering, dislocation and psychiatric injury;

b.    $35,000 for out of pocket relocation expenses;

c.    $30,000 for out of pocket medical expenses;

d.    $1,000,000 to reinstate (to the First Applicant) distributions made to her (from the trust fund of the Budini Trust), which distributions were paid to the First Respondent purportedly on behalf of the First Applicant.

3.    An order that the First Respondent and the Second Respondent pay aggravated damages to the First Applicant.

4.    An order that the First Respondent and the Second Respondent pay exemplary damages to the First Applicant.

 5.    Interest.

 6.    Costs

The Second Applicant asks the Court for:

 7.    An apology from the First Respondent and the Second Respondent;

8.    An order that the First Respondent and the Second Respondent pay compensation to the First Applicant, comprising:

a.    $300,000 as general damages for pain, suffering and psychiatric injury, and

  b.    $10,000 for out of pocket medical expenses;

 9.    Costs.

28    In the course of submissions, Counsel for the applicants confirmed that the award of damages sought at [8] was intended to be an award payable not to Ms Budini but to Michael Budini personally.

29    It is Michael Budini’s position that the respondents cannot raise any issue affecting his standing to make an application in his personal capacity because of the fact agreed at [6.1] of the SOF (extracted at [7] above). It was submitted that the admitted fact was sufficient for the Court to find that Michael Budini was an affected person with standing to make an application to the Court in his personal capacity. It was further submitted that this Court could not proceed on a factual basis other than that agreed by the parties in the SOF. It was further submitted that Michael Budini was clearly a person who was aggrieved by the respondents’ acts or omissions such that he was a person who was entitled to lodge a complaint with the Commission in his personal capacity.

30    As Collier J said in Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313, the test to ascertain whether a person is “aggrieved” for the purposes of s 46P(2) of the AHRC Act is an objective one. Her Honour said (at [41]):

…  [I]n order for a person to be ‘aggrieved’ the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct (Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings (Australian Conservation Foundation 146 CLR at 547–548). The words do not include ‘a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests’: Attorney-General (Gambia) v N’Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37).

31    In Munday v Commonwealth (No 2) (2014) 226 FCR 199, the second applicant in the proceedings was denied early access to her superannuation funds which she sought for the purpose of funding in-vitro fertilisation treatment. The first applicant was the second applicant’s husband. The husband had authored a letter of complaint under the AHRC Act in which he alleged that acts and omissions in relation to his wife’s superannuation constituted unlawful discrimination. The letter of complaint did not state whether or not the husband had lodged the complaint on behalf of the wife.

32    Katzmann J found at [77] that neither the absence nor the presence of the phrase “on behalf of” in documentation relating to the complaint was determinative of the capacity in which the complaint was made. Her Honour continued:

81    Mr Munday’s interest in the proceedings is greater than that of an ordinary member of the public. He is no ‘mere busybody’. Nor is he simply a person with an intellectual or emotional concern in the subject matter of the proceeding. The denials of Ms Day’s applications affected Mr Munday in a deeply personal way, by depriving him as well as his wife of a source of funds to assist in conceiving their child. While it is understandable that the Commission regarded the complaint as having been brought on behalf of Ms Day, Mr Munday had a personal interest in its resolution. He was his wife’s agent but he was also aggrieved himself.

82    For these reasons I consider that Mr Munday is an ‘affected person’ within the meaning of s 3 of the AHRC Act. Accordingly, I reject the Commonwealth’s contention that Mr Munday has no standing to bring his own application.

(emphasis in original)

33    The present proposed action is one in which Michael Budini asserts a personal entitlement to damages (including damages for personal pain and suffering and personal injury in the nature of a psychiatric illness) occasioned by acts or omissions constituting unlawful discrimination against Ms Budini. Michael Budini’s standing to bring such an application does not depend solely upon the Court characterising him as a person “aggrieved”. It also depends on whether a complaint was in fact lodged by him (or on his behalf) in his capacity as a person aggrieved, and on whether any such complaint was terminated by the Commission. Properly construed, Pt IIB of the AHRC Act does not permit a person who has lodged a complaint solely as agent of another to apply for leave to commence a proceeding in his or her own name and right in respect of the same subject matter.

34    The capacity in which Michael Budini complained is to be determined having regard to all of the circumstances, including any contemporaneous representations made by or on behalf of Michael Budini concerning the capacity in which he complained.

35    There is no question that Michael Budini lodged a complaint in the Commission. He did so through the agency of his solicitors and by use of a standard form issued by the Commission together with an accompanying letter. He is identified as the complainant on the form. However, in the part of the form that prompts the complainant to state whether the complaint was made on behalf of somebody else, the details of Ms Budini are provided. The details of the complaint are then set out in a 26 page letter authored by the solicitor. The opening paragraphs of the letter are to be given considerable weight in determining the question of Michael Budini’s standing. They state:

Complaint – Enrica Budini and Michael Budini

We act for Enrica Budini (‘Ricky’), on instructions from her nephew and Guardian, Michael Shane Budini (‘Michael’).

We are instructed to lodge the following complaint on Ricky’s behalf in respect of unlawful disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth).

This complaint, the particulars of which are outlined below, is made against Sunnyfield ACN 000 415 127 (‘Sunnyfield’).

36    As an experienced legal practitioner Michael Budini ought not be presumed ignorant of the meaning of the words used in the correspondence drafted on his instructions.

37    The particulars of the complaint are given in a narrative in which Michael Budini’s dealings with Sunnyfield are alleged in some detail. The particulars include a reference to Michael Budini being in a close relationship with Ms Budini. Reference is also made to Michael Budini’s present status as Ms Budini’s guardian and his status as the residual beneficiary of a trust established for Ms Budini’s welfare. There are numerous allegations to the effect that there had been “improper use and wastage” of the Trust funds. The narrative largely comprises a series of wrongs committed against Ms Budini, the manner and time frames in which the alleged wrongs first became known to Michael Budini and the steps he allegedly took to redress them.

38    The concluding paragraphs include the following:

123.    Redress is therefore sought on Ricky’s behalf, for Unlawful Discrimination, pursuant to Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

…

126.    The outcome sought will include:

126.1    the payment by Sunnyfield of an amount sufficient to fully compensate Ricky’s Trust for the said improper use and wastage of funds, including interest thereon;

126.2    the payment by Sunnyfield of a further amount by way of punitive or exemplary compensation; and

126.3    agreement by Sunnyfield for reform of its behaviours, so that other disabled persons do not have to ensure what Ricky endured.

39    By its content and tone, the letter conveys a sense of outrage at the alleged wrongs committed against Ms Budini. However, there is no assertion to the effect that Michael Budini has suffered any compensable psychiatric injury capable of justifying the sizeable measure of damages now sought in this Court. It may be accepted that the facts stated in the letter support an inference that any wastage of the Trust funds is wastage that affects Michael Budini’s personal interests as a secondary beneficiary of the Trust standing to benefit from any residue on Ms Budini’s death. However, the DD proceedings now sought to be commenced on Ms Budini’s behalf do not include a claim by Michael Budini to be personally entitled to any financial remedy by reference to any such wastage.

40    The question of the capacity in which Michael Budini complained is to be assessed having regard to the purpose of the complaint mechanism established under Pt IIB of the AHRC Act. It establishes a regime whereby (subject to exceptions) the subject matter of a controversy is not to be litigated in this Court without a conciliation first occurring between the same parties and in relation to the same or substantially the same subject matter, provided that can be fairly done. Part IIB anticipates that the respondent to the complaint be entitled to know the identity of the person or persons on behalf of whom the complaint is made so as to enable a meaningful and effective conciliation to take place between the correct entities. Where a claim is made by an aggrieved person in respect of unlawful discrimination allegedly committed against another person, in my view the capacity in which the aggrieved person is complaining must be made plain so that the putative respondents in any subsequent legal proceedings are not met with a claim for damages that was not fairly foreshadowed at the complaint stage. The respondent to the complaint is entitled to know whether the person with whom they are conciliating is acting in their personal capacity or as agent for another, or both. These are not matters of technicality or form. They are matters of fairness.

41    The claim for damages now sought to be commenced by Michael Budini in his personal capacity was not fairly foreshadowed in the complaint, read naturally and as a whole. To the contrary, the complaint contained express statements to the effect that the solicitors acted for Ms Budini on Michael Budini’s instructions. That combination of legal relationships reflects Michael Budini’s status as Ms Budini’s legal guardian authorised to instruct solicitors to lodge the complaint on her behalf. The complaint is expressly said to be made on “Ricky’s behalf”, the redress was also expressly sought “on Ricky’s behalf” and the specific relief (although not expressed to be exhaustive) was confined to relief to benefit Ms Budini, not Michael Budini. To the extent that the lengthy particulars of the complaint make multiple references to things said and done by Michael Budini, those particulars are to be considered in the context of the opening statements that make it clear on whose behalf the complaint is made.

42    In issuing the termination notice as one concerning a complaint made by Michael Budini on Ms Budini’s behalf, the Commission proceeded on a correct interpretation of the facts and the law. It follows that Michael Budini is not an “affected person” and so does not have standing to bring an application in this Court in relation to any facts or matters that aggrieve him in the relevant sense.

Effect of the SOF

43    I have inferred that Harmers Workplace Lawyers lodged a complaint on Michael Budini’s behalf in the sense that, on Michael Budini’s instructions, the solicitors named Michael Budini as the complainant. I have inferred that he was so named in his capacity as Ms Budini’s legal guardian and agent and that no complaint was lodged on behalf of him in his personal capacity.

44    To the extent that the respondents relied on any evidence to qualify the statement at [6.1] of the SOF, they required the leave of the Court to do so: Evidence Act, s 191(2)(b). As the material upon which my conclusions are based is the complaint itself as annexed to the originating application, it is doubtful that the respondents have adduced evidence in the relevant sense.

45    To the extent that leave is required to adduce evidence or to make submissions qualifying the agreed fact, I am satisfied that leave should be granted. In granting leave (to the extent that it is required) I have had regard to the nature of the mixed question of fact and law as one that preconditions Michael Budini’s standing to apply in his personal capacity, and so affecting this Court’s jurisdiction to entertain his application.

46    Subject to affording Michael Budini procedural fairness, it otherwise remains open to the Court to determine for itself whether it has jurisdiction to hear and determine the application. The Court may do so by reference to the complaint annexed to the originating process whether or not the complaint takes the form of evidence.

47    Michael Budini has been afforded the opportunity to advance arguments both orally and in writing in relation to his standing, and those arguments have been considered.

48    In my view, that part of the amended originating application alleging a personal entitlement on Michael Budini’s behalf for any remedies under the AHRC Act in connection with any unlawful discrimination committed against Ms Budini ought to be struck out.

49    If I am wrong in that conclusion, I would in any event refuse to grant leave to Michael Budini to commence an application alleging unlawful discrimination against the respondents and now turn to consider the application in respect of both applicants together.

THE APPLICATION FOR LEAVE

50    The requirement for leave imposed by s 46PO(3A) of the AHRC Act was introduced in 2017. As Mortimer J said in James v WorkPower Inc [2018] FCA 2083, the governing consideration on an application for leave is the administration of justice. The complaint in WorkPower had been terminated by the Commission under s 46PH(1B)(a) of the AHRC Act on the grounds that it was misconceived. Mortimer J examined the text and structure of Pt IIB of the AHRC Act to determine how the interests of the administration of justice should be assessed in such a case. It was appropriate, her Honour said, for the Court to consider whether the claims made by the applicant are reasonably arguable. Her Honour continued (at [37]):

…  I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

51    Mortimer J went on to identify other permissible considerations, including the circumstances of the parties, the nature of the allegations made, whether the applicant had delayed in complaining about the alleged discrimination and, if so, whether there were any explanations for the delay. Another factor that may be considered on leave applications is the prejudice that might be suffered by a party should leave be granted or denied: WorkPower at [38]. Her Honour continued (at [39]):

As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

52    To her Honour’s observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

(c)    no reasonable cause of action is disclosed

53    The present case is one in which the respondents contend that the proposed application has no reasonable prospects of success both as a matter of fact and of law. The parties each adduced a significant amount of affidavit evidence going to that question. The nature of the proposed action and the respondents’ position in relation to it has necessitated the consideration of that evidence in some detail. That task has been undertaken not for the purpose of determining the proposed application on its substantive merits. Rather, the Court has assessed the evidence with the depth of consideration necessary to determine whether to accept the respondents’ contention that the claims have no reasonable prospects of success. But that is not the only use to which the evidence has been put.

54    This case is one in which the requirement for leave arises because the complaint was terminated on the ground that it was lodged more than 12 months after the alleged acts, omissions or practices took place. Although the complaint was expressed to be confined to events occurring in and from 2012, in the course of argument before me, Counsel for the applicants asserted that the proposed proceedings may encompass critical events occurring as early as 2007. It has been necessary to make substantive findings of fact in relation to some of the past events in the course of determining whether the applicants’ submissions concerning the delay should be accepted. The asserted explanation for the delay has been considered in light of contemporaneous correspondence, particularly correspondence authored by Michael Budini himself. That task has not entailed the Court preferring the testimony of one deponent over another. Rather, it has involved the drawing of inferences from undisputed facts and the contemporaneous communications (the authenticity of which was not questioned).

55    In the case of a complaint terminated on grounds of delay, the discretion to grant leave must be exercised having regard to the statutory objective of s 46PH(1)(b). It is that provision which empowered the Commission to terminate the complaint in the exercise of its discretion on the grounds of delay without undertaking any inquiry into its substantive merits or conciliating the underlying controversy. A delegate of the President of the Commission gave written reasons for terminating the complaint on that ground. Among other things, the delegate rejected the explanations that had been advanced for the delay. The same explanations are relied upon in this proceeding and are the subject of findings below.

56    The delegate also said that it remained open for other causes of action referred to in the complaint to be pursued, including claims founded in the torts of false imprisonment, assault, deceit and negligence and claims founded in contravention of the Australian Consumer Law. Although not expressly stated, it is reasonable to infer that the availability of alternative remedies informed the Commission’s own discretion as to whether the delay should or should not be ignored.

57    The delegate also stated that the subject matter of the complaint was more properly a matter for the NSW State Ombudsman. With respect, I do not share that view. Subject to that qualification, considerations of the kind referred to by the delegate may also inform the exercise of this Court’s discretion under s 46PO(3A).

58    Although not expressed as an absolute time limit by which complaints must be brought, the discretion conferred by s 46PH(1)(b) reflects a policy to ensure that allegations of unlawful discrimination are made promptly. That policy has been reinforced by more recent amendments reducing the period specified in s 46PH(1)(b) further still from 12 months to six months: Human Rights Legislation Amendment Act 2017 (Cth), s 39. The statute evinces an intention that controversies concerning unlawful discrimination are to be promptly quelled by a process of conciliation by the Commission as a specialist body in which the respondent may fairly participate and so achieve a non-litigious resolution if that can be done. The mischiefs to be avoided include the uncertainty arising from a prolonged untested allegation, and the spectre of a complaint taking a respondent by surprise, including by the complainant attaching a late allegation of unlawful discrimination to a pre-existing controversy. On a subsequent application for leave, it may be relevant to consider the extent to which the conduct of the complainant undermines these statutory objectives.

59    In an appropriate case, the fact of the delay may justify the termination of the complaint by the Commission without conciliation, particularly where there is no reasonable explanation for it. Where such a complaint has been terminated under s 46PH(1)(b), it may be appropriate to refuse leave to commence a proceeding, even if the case sought to be commenced is reasonably arguable in the sense discussed by Mortimer J in WorkPower.

Explanation for the delay

60    The parties are in dispute as to when Michael Budini first became aware of the factual matters complained of with a degree of clarity sufficient to lodge a complaint with the Commission. There is a related factual contest as to the true reasons for the delay. Michael Budini’s evidence and submissions on these issues have a number of components.

61    First, it is claimed that prior to his appointment as Ms Budin’s legal guardian in 2015, Michael Budini was not actively involved in decisions concerning Ms Budini’s care and so was not apprised of the matters now complained of before that time. He claims that in late August 2016 he was contacted by an informant from within Sunnyfield who alerted him for the first time to a number of the matters that now form a part of the subject matter of the complaint. He claims that he that took some time to investigate the matters raised by the informant, including by taking a written statement from the informant in November 2016. He also asserts that after he removed Ms Budini from Sunnyfield’s care in September 2016, he was engaged for some time in early 2017 making arrangements for her to be transferred to a private nursing home where she now resides.

62    Michael Budini states that he first engaged solicitors in July 2017 and that the solicitors required some time to formulate and lodge a complaint with sufficient particularity. He also states that the complaint could not be lodged unless he first obtained approval from the New South Wales Civil and Administrative Tribunal (NCAT) to engage legal services on Ms Budini’s behalf, a process productive of further delay. It was submitted that Michael Budini corresponded with Sunnyfield in terms that made it plain that legal proceedings would ensue if his concerns were not addressed, such that Sunnyfield could not be said to have been taken by surprise when the complaint was ultimately lodged. In all of the circumstances, it was submitted, the lodgement of the complaint in February 2018 was neither unreasonable nor productive of prejudice to the respondent.

Grounds of opposition

63    The respondents oppose the grant of leave on four broad bases. First, it is submitted that Michael Budini’s explanation for the delay should not be uncritically accepted. Second, it is submitted that the delay is prejudicial to them. Third, it is submitted that Michael Budini had knowledge of the essential facts necessary to bring the complaint at a much earlier time and that he has no adequate explanation for his failure to do so. Fourth, it is submitted that the claims have no reasonable prospect of success either because the matters complained of do not on any reasonable view amount to unlawful discrimination in contravention of the DD Act or because the allegations are made without any proper evidentiary foundation or because they are contradicted by contemporaneous communications authored by Michael Budini.

Consideration

64    There are many complaints, some of which are multifaceted. On the whole, I am not satisfied that Michael Budini learned of the essential facts in sufficient detail to make the allegations of unlawful discrimination as recently as he claims. I find that his claims as to when he had knowledge of certain matters are either directly contradicted by, or otherwise cannot be reconciled with, his contemporaneous communications with Sunnyfield over a period spanning several years. My conclusions in this regard vary as between the many and varied alleged acts of unlawful discrimination and will be further explained in the course of considering the respondents’ submission that the claims have no reasonable prospect of success.

65    In relation to all of the allegations, I find that from at least October 2016, Michael Budini embarked on a course of correspondence with or including Sunnyfield that was far from conciliatory. The correspondence reveals that Michael Budini was in possession of the material he needed to formulate the complaint for a significant period before the complaint was lodged. Rather than lodge the complaint, Michael Budini devoted personal time and resources to making claims for an extravagant settlement sum against Sunnyfield, including by making demands and threats of adverse publicity.

66    On 5 October 2016, Michael Budini sent a lengthy email to a representative of NCAT, copied to several workers at Sunnyfield. The email set out multiple detailed allegations toward Sunnyfield largely (but not entirely) encompassing the factual subject matter now sought to be agitated in this Court. The email is replete with capital letters, exclamation marks and rhetorical questions. It is immoderate in its tone. It refers to “proposed litigation” including litigation founded in “various breaches of anti-discrimination statutes” and asserts an entitlement to unquantified damages.

67    On 29 March 2017 Michael Budini sent a letter to Sunnyfield on a letterhead identifying himself as a legal practitioner. The letter is signed by him in the capacity of “Lawyer and Enrica’s Guardian”. The letter makes allegations of overcharging, excessive expenditure, chronic abuse (including starvation, physical abuse and wrongful detention), fraud and dishonesty. It asserts that each of the allegations was an instance of direct and indirect disability discrimination in contravention of the DD Act and threatens proceedings for a claim said to be valued at $10 million.

68    Under the heading “NDIS INVESTIGATION & PROSECUTION?”, The letter includes a statement to the effect that Michael Budini had information that Sunnyfield had made false and exaggerated claims to NDIS “so as to illegitimately maximise the funding benefits received by Sunnyfield”. No specifics are provided. The letter continues:

Although this is a matter for NDIS to follow through, I feel that it is at least my moral duty to bring these issues to the attention of NDIS for such further action, including prosecutions, as may be appropriate and necessary.

69    Under the heading “MEDIA”, the letter states:

I am sure that Sunnyfield would appreciate that the above matters are news-worth, to say the least. I have already been approached by a National Television Broadcaster.

I feel it fair to warn you of this, as I will not hesitate to be interviewed by the media and allow these issues fully to enter the public domain, if a satisfactory resolution cannot be reached promptly in relation to all such issues.

(emphasis in original)

70    The letter concludes with a statement to the effect that Michael Budini would be willing to “recommend” a resolution of the claims made on behalf of Ms Budini and (purportedly) on behalf of the Trust in the amount of $6 million.

71    Two days later Michael Budini sent an email directed to the Board of Sunnyfield again threatening a claim for damages in the amount of $10 million.

72    In April 2017 Michael Budini sent an email to Sunnyfield’s solicitor titled (in part) “ENRICA BUDINI - SUGGESTED URGENT MEDIATION – Proposed $10M Legal Claim against SUNNYFIELD”. The email describes Michael Budini as “Lawyer & Enrica’s Guardian & Nephew”. It repeats allegations against Sunnyfield, including the allegation of fraud on the NDIS. It concludes as follows:

10.    Frankly, in light of your client’s chronic abuse and disability discrimination against Enrica (by the very facility that had a duty to protect her) I will struggle keeping the most interested media at bay for much longer.

11.    Hence I suggest an urgent confidential informal MEDIATION to settle Enrica’s claims promptly (being the only hope, I consider, of Sunnyfield not being deregistered and Mark Clayton not being dismissed).

12.    Finally, if Sunnyfield adopts an unduly protracted approach to resolving this dispute, please know I am already well advanced arranging litigation funding to back that process, so that justice will prevail in the end.

13.    I cannot now guarantee more time than the 14 days already given. Hopefully the suggested mediation can be expedited urgently enough?

73    In April 2017, Michael Budini exchanged email correspondence with Sunnyfield’s solicitors. In that correspondence Michael Budini used the threat of adverse publicity as leverage to have Sunnyfield participate in a private mediation on his terms.

74    In late April and early May 2017 there was an exchange of letters concerning the substance of Michael Budini’s allegations. In a letter dated 1 May 2017, Michael Budini again referred to his allegation of fraud against NDIS. “I imagine,” he said “that this would amount to actionable misconduct whether or not NDIS ever actually paid any money under the plan”.

75    On 20 May 2017, Michael Budini sent an email to Sunnyfield’s solicitor. The email was copied to a barrister, being the same barrister who now appears for Mr Budini on this application. The email contains a link to a website for the current affairs program Today Tonight. The email states, in part:

I understand that this TV link, BELOW, is about to be broadcast nationally, if it hasn’t been already.

Given the gravity of these ‘explosive revelations’, I trust your client will attempt to mitigate its losses by agreeing to an urgent informal mediation, as previously requested.

76    That email, too, identifies Michael Budini as acting in the capacity as “Lawyer & Enrica’s Guardian”.

77    The current affairs program Today Tonight broadcast a story on or around 20 May 2017 in which Michael Budini made serious allegations against Sunnyfield and its treatment of Ms Budini. There was some suggestion in the course of the hearing that Michael Budini did not invite media attention to his complaints. Even if I were to accept that submission it does not address the circumstance that Michael Budini willingly participated in media coverage disclosing Ms Budini’s personal circumstances. In light of his correspondence it is reasonable to infer that he did so for the purposes of inflicting reputational losses on Sunnyfield which he then suggested Sunnyfield might “mitigate” by settling his claims.

78    On 30 May 2017, Michael Budini forwarded to Sunnyfield’s solicitors an email from a litigation funder. The author of the email states that he has “read through the material you have provided including counsel opinion, quantum of loss report and legal representation fee estimate”. The email goes on to express an interest in funding the proposed claim and proposes the terms of their arrangement. I infer that the email was forwarded to Sunnyfield to lend force to Michael Budini’s threat of litigation, including by reinforcing that he had obtained counsel opinion and prepared a report of some kind quantifying alleged losses.

79    On the material before me I find that Michael Budini, himself a legal practitioner, had engaged independent counsel from as early as October 2016. Counsel participated in an interview with the “informant” in November 2016 (over which a claim of legal professional privilege is now asserted). There is other material before the Court to confirm that Michael Budini was in communication with counsel in familiar terms in February 2017 when dealing with Sunnyfield about the return of Ms Budini’s possessions.

80    I infer from the content and tenor of the communications that Michael Budini adopted a strategy by which he delayed lodging the complaint with the Commission for conciliation because he preferred to resolve the complaint by way of amplified threats of litigation coupled with demands made in his capacity as a legal practitioner. The threats were made with a view to having Sunnyfield participate in a private mediation to answer a claim said to be valued at $10 million under the pain of exposure to damaging media coverage and a withheld report to authorities of alleged fraud. In my view, Michael Budini utilised a considerable period of time in 2016 and 2017 drafting correspondence, the content and tone of which could only have served to elevate the dispute. I find that Michael Budini delayed lodging the complaint because he elected instead to attempt to obtain a settlement sum by his own efforts and methods rather than submit the very serious and damaging allegations to the Commission for prompt conciliation. In the circumstances, I reject the submission that the length of the delay was reasonable in all of the circumstances and I reject the contention that there was a reasonable explanation for it.

81    Nor am I satisfied that in late 2016 or 2017 Michael Budini was distracted with the efforts of securing Ms Budini into alternate accommodation to any substantial degree that would partly explain his delay in lodging the complaint. Accepting that it became necessary in early 2017 to move Ms Budini to a private nursing home, that move occurred at the time when Michael Budini was expending time preparing and sending correspondence of the kind I have identified above and engaging with the television media.

82    Nor am I satisfied that the application to NCAT for authority to engage legal services on Ms Budini’s behalf furnishes an adequate explanation for the delay. Ms Budini has resided in South Australia since September 2016. Michael Budini has been her legal guardian in accordance with the law of South Australia from at least 1 November 2016. Michael Budini did not lack authority to engage a lawyer on Ms Budini’s behalf, nor was the engagement of a lawyer necessary in order for Michael Budini to lodge a complaint on behalf of Ms Budini in the Commission in any event. Michael Budini’s perceived lack of authority did not inhibit him from negotiating the terms of a litigation funding agreement and disclosing the proposed terms to Sunnyfield’s solicitors, nor did it inhibit him from corresponding with Sunnyfield in his capacity as a legal practitioner, nor did it impede him from directly engaging independent counsel from as early as October 2016.

83    I consider these circumstances to be sufficient, of themselves, to warrant the refusal of leave even if the proposed case against Sunnyfield (or parts of it) could be shown to be reasonably arguable.

84    In so concluding, I have had regard to the circumstance that Ms Budini is a person with a disability who is wholly reliant upon her guardian to advance and protect her interests, and that the refusal of leave would preclude her from bringing a claim founded in unlawful discrimination in connection with the alleged events, whether through Michael Budini or any other litigation representative. However, as Michael Budini has acknowledged, Ms Budini’s intellectual disability is such that she is unable to comprehend whether Sunnyfield unlawfully discriminated against her on the grounds of her disability and I do not consider there to be any prospect of her suffering an affront capable of being assuaged by an apology.

85    As to the claim for compensable damages, that aspect of the case is premised almost entirely upon allegations that Sunnyfield wrongly procured the disposition of Trust money by the Trustee. As will be explained below, any financial losses said to have been caused by a significant number of the allegations are losses incurred by the Trust and not by Ms Budini personally. It is notable that the Trustee is not joined as a party in this action, nor has it sought to be joined. To the extent that the Trust has suffered any losses as a consequence of the acts or omissions of Sunnyfield, the refusal of leave to commence a claim alleging unlawful discrimination would not affect the right of the Trustee to pursue its own claim if it considered the allegations affecting the Trust to have any substance. Nor would it affect the right of Michael Budini or Ms Budini through her litigation representative to bring an action founded in breach of trust affecting their interests as beneficiaries.

86    If I am wrong in refusing leave solely on the bases I have just identified, I would refuse leave in respect of many of the allegations for the additional and alternate reason that they do not enjoy reasonable prospects of success either on the facts or on the law. In respect of some of the allegations, leave should also be refused for the additional reason that Michael Budini either knew or was in a position to know the salient facts many years ago and that he has no reasonable explanation for the long delay in bringing a complaint about their particular subject matter. I have also concluded that the delay is prejudicial to Sunnyfield in a significant respect.

87    It is appropriate to consider the multiple alleged instances of unlawful discrimination both separately and accumulatively. They will be considered both for the purposes of assessing the true delay in respect of each allegation (so far as that can be done) and for the purposes of determining Sunnyfield’s claim that the claims are untenable.

DISPOSITION OF TRUST MONEY

88    A number of allegations concern the amount of financial expenditure on Ms Budini’s care and welfare. I will refer to them as the financial allegations. They form a significant part of the proposed claim for an award of compensable damages claimed on Ms Budini’s behalf. There is also a claim for unquantified exemplary damages that may relate to this category of the complaints.

Alleged excessive expenditure on external agency carers

89    Potentially the most dated of the financial allegations is a complaint that Sunnyfield caused the Trust to pay for one-on-one agency care for Ms Budini over many years for the purpose of enabling her to spend time on pleasurable social outings outside of Sunnyfield. The payments by the Trustee for the provision of one-on-one care or companionship of that kind were not received by Sunnyfield but by an external agency. It is nonetheless alleged that by causing the Trust to engage external agency carers, Sunnyfield freed up its own resources and so obtained a financial benefit.

90    The terms of the Trust without question authorised expenditure for the purpose of enhancing Ms Budini’s social and emotional wellbeing.

91    If leave were to be granted, the issue to be tried is whether Sunnyfield caused the Trustee to pay for externally provided care that was so far in excess of Ms Budini’s requirements as to amount to unlawful discrimination. In supplementary submissions it was also contended that Sunnyfield was knowingly concerned in a breach of trust by the Trustee: Barnes v Addy LR 9 Ch App 244. In each case it is alleged that there was so much “waste” that, if permitted to continue, it would have left the Trust fund so depleted that it could not support Ms Budini for the remainder of her lifetime.

92    It is significant that the damages claimed on behalf of Ms Budini in the proposed proceedings are expressed as an award that should be made payable to Ms Budini and not as a payment to restore funds to the Trust. Such an order would put the judgment sum in the hands of Michael Budini in his capacity as Ms Budini’s guardian and financial administrator, and not in the hands of the Trustee to be administered in accordance with the terms of the Deed. Counsel for the applicants told the Court that such an award would be legally permissible because a disposition of money from the Trust had the consequence that the money was given to Ms Budini and so became her personal asset. A waste of the asset was, it was submitted, a wrong committed against Ms Budini personally. I consider that submission to be untenable.

93    If losses have indeed been suffered by reason of any such contravention by Sunnyfield, they are losses in the nature of a diminution of the Trust fund that would not otherwise have occurred. Even if it could be shown that there was a defalcation of the Trust of the kind alleged, I do not consider Ms Budini has reasonable prospects of succeeding on her claim to be entitled to a personal award of damages in an amount equivalent to that lost by the Trust. The absence of a claim for relief in the form of a restitution of funds to the Trust for monies lost by the Trust of itself is a sufficient reason to refuse leave in respect of all parts of the action involving alleged excessive expenditure of Trust money.

94    Another significant aspect of the excess expenditure claims is that Sunnyfield wrongly sought and relied on the authorisation and consent of Ms Budini’s brother Peter Budini in respect of decisions affecting Ms Budini’s level of care and support (including the appropriate degree of paid companionship). The Court was told that Peter Budini is now in his late 80’s and that there is a real chance that he will not be living at the time that the proposed claim proceeds to trial.

95    On this aspect of the financial allegations, the applicants face the significant hurdle that the terms of the Trust did not condition the Trustee’s powers with any requirement that the Trustee first obtain the consent of Peter Budini or of Michael Budini or of any other next of kin. Nor does the Deed limit dispositions from the Trust to expenses directly related to Ms Budini’s medical care. The Trustee is inarguably authorised to expend money for Ms Budini’s benefit which, again inarguably, includes outings with a paid companion for her enjoyment and social wellbeing. Michael Budini himself acknowledged in 2016 that the outings were “doubtless beneficial” to Ms Budini’s wellbeing, although he stated that her time could be better fulfilled if spent with family and friends interstate in Adelaide.

96    On the material before me it is apparent that a trial of this aspect of the complaint would likely descend into a long and complex trial in which the discretionary decisions of the Trustee and the quality of the consent of Peter Budini as to the disposition of the Trust funds for Ms Budini’s benefit is called into question by Michael Budini. It cannot reasonably be argued by Michael Budini that Ms Budini should have not had the benefit of a one-on-one carer to enable her to enjoy social outings at all. Yet that is a basis upon which the applicants quantify their claim for damages: they claim for reimbursement of all money spent on private agency care.

97    For present purposes it may be accepted that the Trustee may have a duty to ensure that the Trust fund is managed in such a way that can sustain Ms Budini for the whole of her lifetime. It may also be accepted that excessive expenditure over a significant period of time might result in the exhaustion of the Trust fund before Ms Budini’s death. However, as discussed below, Michael Budini was aware over many years of the rate at which the Trust funds were expended on Ms Budini’s care and, on his own evidence, he had concerns about his father’s capacity to participate in decisions about the expenditure. Assuming (without deciding) that there was a proper basis for those concerns, I consider Michael Budini to have been in a position over many years to complain of unlawful discrimination on Ms Budini’s behalf.

98    Again for the present purposes, it is not necessary to determine whether Peter Budini was unable or unwilling to make decisions on Ms Budini’s behalf at various times. Even if he was, I find that any issues affecting his willingness or capacity to authorise expenditure were issues that were either known or ought to have been known by Michael Budini for many years. Indeed, the contemporaneous correspondence (adduced by Michael Budini himself) shows that Michael Budini received correspondence from Peter Budini expressing at least an intention to cease providing instructions in relation to Ms Budini’s care as early as May 2007. The correspondence contained a request that Sunnyfield deal with his son instead. The correspondence takes the form of an email identifying Peter Budini as the sender and Michael Budini as the only recipient.

99    Sunnyfield disputes having received the email. It has adduced correspondence passing between it and Peter Budini, including correspondence in 2013 in which Peter Budini confirmed that he wished to remain the first point of contact for Ms Budini and described himself as her “guardian”. Peter Budini identified Michael Budini as the second point of contact, but stated that Michael Budini should have no say in decisions about Ms Budini’s holidays (as to which see below).

100    It is not disputed that the initial appointment of Michael Budini as Ms Budini’s legal guardian in 2015 was made on the application of a staff member of Sunnyfield. Sunnyfield’s records show that it made the application because it then perceived an unwillingness or inability in Peter Budini to continue to participate in significant decisions that had to be made about Ms Budini’s future care at that time.

101    In the circumstances I have described, I am not satisfied that leave should now be granted to commence a proceeding alleging that Sunnyfield had a want of authority for its acts or omissions continuing over the many years in which Peter Budini acted as Ms Budini’s next of kin or informal guardian dating back to 2007 or any other date. I consider that the time for Michael Budini to assert (rightly or wrongly) that his father was incapable of responsible decision making in relation to past decisions concerning Ms Budini passed many years ago.

102    In his evidence on this application, Michael Budini acknowledged that he was indeed aware over a significant period of time of the amount of Trust money expended on Ms Budini’s care and welfare. His evidence included the following:

31.    The only particular concern that I did hold regarding Ricky during some of the Relevant Period related not to her personal care, but instead to the inordinate rate at which the fund (Fund) of the Trust appeared to be depleting by expenditures relating to a care.

32.    In particular, over the Relevant Period, I would receive statements, at least annually, from Perpetual, which gave me a broad idea of the income accruing to the Fund of the Trust, and the expenses being paid from that Fund in respect of Riki’s care.

33.    Despite the (sometimes significant) income generated by the Fund, it appeared to me, particularly throughout much of the Relevant Period, that the Fund was being depleted at a rate which seemed to me to be inexplicable, given the relatively modest expenditure which I assumed was required for Riki’s day to day care. There seemed to me to be very significant expenses over and above Sunnyfield’s standard fees.

103    Consistent with that evidence, the contemporaneous correspondence before the Court shows that Michael Budini had expressed his perceived concerns about expenditure from as early as 2013. In May of that year, he wrote to Sunnyfield about perceived excessive expenditure on Ms Budini’s holidays (dealt with in substance below). He stated:

5.    Review of Unnecessary Expenses

Some of the administrative decisions being made for Ricky (described above) raise questions about how well her resources are being managed, including by the trustee, Perpetual Trustee (copied). It is clearly in Ricky’s best interests for sensible management of the remaining fund, not waste. Therefore to try and help improve some of the obvious current inefficiencies I will shortly contact Perpetual Trustee’s relevant Responsible Officer/s, and, in the meantime, would welcome any comments any of you may have.

104    Whether Michael Budini followed through on his intention to raise concerns about excessive expenditure is unnecessary to decide. The salient points are that Michael Budini was alert to an issue concerning potential “waste” of the Trust fund, that he had the knowledge and skills to raise the concerns with the Trustee about the expense of Ms Budini’s holidays (and hence all other expenditure on her wellbeing) and that it was his stated intention to do so in 2013. In my view it is unreasonable for Michael Budini to now formulate a claim alleging unlawful discrimination founded on alleged “wasted” expenditure that was either known to him or readily ascertainable by him over a period of many years.

105    Moreover, after his appointment as Ms Budini’s legal guardian in 2015 Michael Budini engaged in further email correspondence with Sunnyfield in connection with her one-on-one care arrangements, among other things. The correspondence shows that Michael Budini did not suggest at that time that the expenditure requested or recommended by Sunnyfield was unlawful in any way, although it does show that Michael Budini disagreed with the discretions being exercised by the Trustee in respect of matters of judgment and degree. Michael Budini’s correspondence shows that he determined in 2016 that the one-on-one care arrangements should be reduced from four hours to three and that he was otherwise awaiting NDIS funding as alternate means of meeting the expense of Ms Budini’s social outings.

106    When asked to explain how the quantum of claimed damages was arrived at, Counsel for the applicants confirmed that they assert a liability on the part of Sunnyfield to pay to Ms Budini every dollar paid by the Trustee to external agency carers over a period dating back to 2012 and perhaps as far back as 2007. The exemplary damages claim was said to require Sunnyfield to disgorge to Ms Budini an amount equivalent to all of the Commonwealth funding they had received in respect of Ms Budini. Quite apart from the unreasonableness of the delay, I do not consider there to be any reasonable prospects of the applicants succeeding on such an unconfined claim, assuming the facts could arguably amount to unlawful discrimination in any event.

Alleged inappropriate holidays

107    This complaint is to the effect that Sunnyfield caused the Trust to spend money on holidays for Ms Budini to extravagant and inappropriate destinations, including the expense of accompanying carers. It is submitted that the expenses of the holidays was so excessive as to amount to unlawful discrimination. The complaint is advanced whether or not the holidays were funded at the discretion of the Trustee. In supplementary submissions it was also submitted that the excessive expenditure constituted a breach of trust. Alternatively it was submitted that Sunnyfield could not point to the terms of the Trust Deed as a defence to a claim founded in unlawful discrimination and that Sunnyfield had procured a breach of trust in respect of the expenditure in any event. Sunnyfield has not had an opportunity to respond to the latter submissions.

108    Michael Budini’s correspondence to Sunnyfield in 2013 shows that he knew about Ms Budini’s holiday destinations and that he was at that time suggesting that different decisions should be made about them. That correspondence did not suggest that the choice of destination amounted to unlawful discrimination. Michael Budini’s later correspondence in mid-2016 confirms that he knew that Ms Budini had a holiday budget allocation of $10,000 each year. Again, there was no suggestion at that time that the budget allocated for her holidays was so extravagant as to amount to unlawful discrimination, a breach of trust or any other actionable wrong.

109    I consider Michael Budini was in a position over many years to assert that expenditure on Ms Budini’s holidays was so extravagant that it could not lawfully be requested by Sunnyfield or authorised by the Trustee. Michael Budini’s views as to how the Trustee’s discretion should be exercised may well have diverged from that of the Trustee. However, in light of his prior knowledge he should not now be granted leave to commence an action questioning the appropriateness or lawfulness of the expenditure in relation to Ms Budini’s holidays dating back to 2012 or beyond, insofar as it is said that the act of requesting the Trustee to pay for the holidays constitutes unlawful discrimination against Ms Budini.

110    In his first affidavit Michael Budini asserted that it had been reported to him by the informant (the identify of whom he does not identify) that in at least one instance, Sunnyfield had pretended that Ms Budini had taken a holiday (paid for by the Trust) when in fact only her carers had done so, leaving Ms Budini behind. The particular holiday or holidays forming the subject matter of that alleged fraud are not identified.

111    This aspect of the proposed proceeding cannot reasonably be regarded as falling within the same facts as those alleged in the complaint lodged with the Commission. Of itself, that is a sufficient basis to refuse leave to proceed with it.

112    Further, the claim is one alleging fraud or conduct analogous to it. It became apparent during the course of the hearing that Michael Budini has no evidence to verify such a serious allegation, other than his reliance on the bare assertion of the informant. Michael Budini asked the Court to read part of a further affidavit in which he suggested that Ms Budini could not have travelled on some overseas holidays for which she had paid after 2010 when her passport expired. However, he later asked the Court not to read that part of the affidavit. His speculation that there was no valid renewed passport was baseless.

113    Given the nature of the allegation, I do not consider the stated intention to call an as yet unidentified informant to be sufficient to demonstrate that the applicants have an arguable case in respect of this claim.

114    To the extent that this allegation is persisted with (which is unclear), it may be advanced in support of the alternate causes of action referred to on the amended originating application in any event.

Alleged improper charge

115    The effect of this complaint is that Sunnyfield wrongly charged the Trust with the expense of making a significant capital improvement to its facility in the form of a perimeter fence in 2012. Michael Budini claims that he first became aware of the wrongful charge in November 2016 when alerted to it by the informant.

116    In his capacity as a secondary beneficiary of the Trust and Ms Budini’s legal guardian, Michael Budini has at all times been in a position to make enquiries of the Trust concerning the disposition of the Trust funds. There is no evidence to support even an arguable case that Sunnyfield on-charged such a significant expense to the Trust. Leave will not be granted in respect of this aspect of the complaint, irrespective of the date upon which Michael Budini first heard from the informant. I have had regard to the possibility that the informant may give oral evidence to repeat the assertion in evidence. However, for present purposes it is appropriate to proceed from the premise that if the informant him or herself was in possession of evidence capable of verifying the assertion that the Trust was charged for the expense of the fence, that would have been made known to Michael Budini. The prospect of the informant giving evidence at the trial is to be considered in the context of Michael Budini having access to the accounts of the Trust. I consider this allegation to amount to a bald unsubstantiated assertion made by an informant and repeated by Michael Budini without proper verification from the Trust that it incurred any such expense.

Alleged double charging

117    It is then alleged that Sunnyfield has double-charged its invoices to the Trust in a way that would give rise to unlawful discrimination. The applicants adduced extracts from statements of account from the Trust which, it was said, “appear to disclose multiple instances of double-charging”. The Court cannot perceive any duplication of charges in the records relied upon. All that is shown is that on one occasion two payments (in different amounts) were made to the same recipient on the same day. Moreover, the payments relied upon by the applicants were not payments to Sunnyfield but payments to Ranstad Pty Ltd, the agency paid by the Trust to provide one-on-one care and companionship for Ms Budini.

118    The evidence before the Court goes no higher than to suggest that on a single occasion the Trustee mistakenly caused one of Sunnyfield’s invoices to be paid twice, that Sunnyfield brought the double payment to the attention of the Trustee and that the mistaken payment was reimbursed to the Trust. So much has been acknowledged by Sunnyfield from the outset.

119    In my view, Michael Budini has no proper evidentiary basis to allege that Sunnyfield has knowingly double-charged the Trust. I would draw that conclusion whether or not Michael Budini was told by the informant that “multiple instances” of double charging had occurred.

Gambling

120    It is alleged that during her outings with her external carers, Ms Budini was permitted to use her spending money on poker machines, gambling up to $200 at one time.

121    On this topic, the complaint lodged with the Commission was expressed as follows:

Quite apart from the patently unnecessary and inappropriate financial expenditure and losses associated with this activity (which is clearly a further form of financial abuse), it was manifestly a reprehensible abuse of Ricky for Sunnyfield to cause her to become a poker machine addict.

122    There is evidence supporting this allegation in the form of a “Risk Management Plan” prepared by Sunnyfield in 2012. It sets out a series of risks to which Ms Budini might be exposed. It proposed the means of addressing the risk and sets a date for review of the plan. The document contains a statement that Ms Budini “enjoys the poker machines when visiting a club”, that she had “no conception about the value of money” and that she had been “known to gamble up to $200.00 at one time”. The document records that Ms Budini was attracted to the noise and bright lights of the machines.

123    It is not unreasonable for Michael Budini to express alarm at the fact that a person with Ms Budini’s disabilities had been allowed (whether by negligence or otherwise) to spend any money playing poker machines.

124    I have nonetheless concluded that an action founded on unlawful discrimination in connection with this aspect of the complaint should not have leave to proceed, for three reasons. The first is that identified at [98] – [101] of these reasons in connection with the conduct of Michael Budini, on the assumption that he first became aware of the critical facts in November 2016. The second relates to what is said earlier in these reasons in relation to the role played by Peter Budini in Ms Budini’s care. The Risk Management Plan was executed by Peter Budini on 7 November 2012 and it could not reasonably be argued that Sunnyfield concealed the fact that Ms Budini had gambled in that way from the person then acting as her informal guardian and next of kin. Whether appointed as a formal guardian or not, it was Peter Budini who (with Michael Budini’s knowledge) was the person who had assumed the responsibility to protect and advance Ms Budini’s interests at the time that the events occurred. To the extent that Peter Budini lacked capacity to do so in 2012, I consider that to be a matter that his son, Michael Budini, either knew or ought to have known. Third, I am satisfied that the respondents will be prejudiced in the conduct of a trial in respect of acts done with the consent and knowledge of Peter Budini. As I have already observed, it is likely that Peter Budini will be unable to give evidence as to his mental capacity in 2012 (or any evidence at all). That is a critical consideration affecting the exercise of my discretion in relation to a large part of the DD proceeding. Fourth, the refusal of leave to commence a proceeding under the AHRC Act in respect of this aspect of the complaint will not leave Ms Budini without a remedy. If there have been losses suffered by Ms Budini personally (as opposed to losses suffered by the Trust) that may sound in an award of damages at least in tort. I arrive at these conclusions without expressing a view as to whether the facts disclosed in the Risk Management Plan are capable of constituting unlawful discrimination within the meaning of the DD Act. For the reasons already given, the circumstance that Ms Budini may not obtain a compelled apology under the DD Act does not of itself dissuade me from the conclusion that leave should not be granted.

Reimbursement of stolen money

125    It is not disputed that in 2010 and 2011 a member of Sunnyfield’s staff stole money from Ms Budini. It is Sunnyfield’s case that $10,935.00 was taken. The applicants claim that the amount stolen cannot be verified. In the complaint lodged with the Commission it was alleged that Sunnyfield did not reimburse the stolen money. At the hearing of this application, Sunnyfield submitted that this complaint was untenable. It relied upon internal email correspondence showing that a direction had been given to its Chief Financial Officer on 25 July 2011 to repay the stolen money to the Trust and that the theft had been reported to the police.

126    Following the reservation of judgment on the leave application, Sunnyfield informed the Court that it had been asked by the Trustee to confirm whether the stolen money had been repaid to Ms Budini’s bank account. Sunnyfield’s current Chief Financial Officer conducted an examination of its accounts and was unable to identify a transfer to Ms Budini’s bank account matching the amount of the stolen money. The review was said to have been complicated by the loss of some electronic records and by the departure of the staff member who would have been responsible for making the transfer. As a consequence, Sunnyfield has withdrawn its assertion that the money was repaid in 2011. Sunnyfield’s present position is that the fact of the repayment could not presently be verified on its bank accounts. It has recently made a payment to the Trust representing what it says is the amount of the stolen money (verified by a report made to the police at the time of the theft in 2011), together with interest calculated to November 2019.

127    The applicants submit that Michael Budini first raised the question of the stolen money in his correspondence to Sunnyfield dated 3 March 2017 and was met by false denials. They submit that Sunnyfield has “perpetuated false denials” concerning the theft for nearly three years and that the late disclosure by Sunnyfield of its inability to confirm the reimbursement by reference to its factual records should cause the Court to approach all of Sunnyfield’s evidence with caution.

128    This aspect of the allegations does not suffer from the same length of delay as the other complaints. I am satisfied that Michael Budini raised the issue of reimbursement with Sunnyfield in his correspondence of 26 March 2017, not long after he first became aware of the theft. I am also satisfied that Sunnyfield made assertions that the money had been repaid on the strength of an email instruction given to its Chief Financial Officer in 2011 without taking the further step of independently verifying the transaction by reference to its banking records.

129    For present purposes, I consider that Sunnyfield’s current inability to verify the transaction by reference to banking records is explained by the passage of time and is, in my view, a consequence of its failure to inform Ms Budini’s family of the theft at the time that it occurred so that they could be assured of its prompt restoration to her.

130    In written submissions, Counsel for the applicants invited the Court to infer that:

had Mr Budini not been met with false denials for nearly 3 years, and had SFD instead investigated and disclosed the true position in April 2017, it would have been much simpler and quicker for Mr Budini to obtain legal advice, such that the Complaint could and would have been issued much sooner and, potentially, within time.

131    Had the issue of the stolen money been a critical aspect of the complaint lodged with the Commission, I would have been minded to draw that inference. However, the allegation concerning the stolen money was given only brief mention in an otherwise lengthy complaint having the multiple components discussed in these reasons. As I have said, the course of conduct embarked upon by Michael Budini in late 2016 through to early 2017 involved an asserted claim of $10 million in damages and an insistence that Sunnyfield negotiate an outcome in the manner I have already discussed. I do not accept that the complaint about the stolen money would have altered that strategy had Sunnyfield’s inability to verify repayment been brought to Michael Budini’s attention at an earlier time.

132    To the extent that the money together with appropriate interest has now been repaid, there is no extant loss. There can be no question that if there is a shortfall in the repayment (which appears to be disputed), there is a rightful claim for the shortfall to be paid. However, such a claim may be pursued by alternate causes of action without the necessity to argue that the facts and circumstances constitute direct or indirect discrimination within the meaning of the DD Act.

ALLEGED WRONGS IN THE PROVISION OF CARE

133    This category of complaints relates to the manner in which Sunnyfield provided accommodation, care and medical services to Ms Budini in the many years that she resided there. They relate to acts or omissions affecting Ms Budini’s health, safety and welfare. As with other complaints, they are accompanied by an allegation that Sunnyfield was not entitled to rely upon the consent or authorisation of Peter Budini. As Ms Budini did not have a formally appointed legal guardian it was submitted that decisions in relation to her health and care were made without any valid consent at all.

134    Consistent with my earlier findings in connection with the financial complaints, I would not grant leave in respect of any act or omission constituted of a decision taken with the knowledge or authorisation of Peter Budini. In particular, I consider Michael Budini at all relevant times to have known or ought to have known of any issue affecting his father’s ability or willingness to act as Ms Budini’s “informal guardian”. Perhaps more significantly, Michael Budini knew that no person had been appointed as Ms Budini’s legal guardian until his own appointment in 2015.

135    After his own appointment in 2015, Michael Budini corresponded at length with Sunnyfield without asserting that the previous absence of a legal guardian rendered all prior decisions in relation to Ms Budini either unethical or unlawful. As I have said, Sunnyfield is prejudiced in the conduct of a trial in which the capacity of Peter Budini to make decisions on Ms Budini’s behalf over many years is put in issue, particularly in circumstances where it is likely that Peter Budini himself will no longer be available to give evidence on that subject. The contemporaneous records of Sunnyfield show that Peter Budini was indeed consulted and participated in decisions that are now complained of. The authenticity of those records cannot reasonably be questioned. My consideration of the specific complaints proceeds against that background.

Alleged false dementia diagnosis and NDIS fraud

136    Michael Budini was appointed as Ms Budini’s legal guardian by NCAT on the basis that she was, among other things, suffering from “rapidly worsening Alzheimer’s dementia”. The reasons of NCAT state that its assessment was based on an opinion provided by a consultant psychogeriatrician. The 2015 application to have Michael Budini appointed as Ms Budini’s guardian was made at the insistence of Sunnyfield itself at a time when important decisions had to be made about her future care in light of her dementia and the devolution of the Sunnyfield home pending at the time.

137    Email correspondence shows that in July 2016, Michael Budini was in contact with Ms Budini’s GP including in relation to her dementia. On 4 September 2016 he caused her to be accommodated in a more secure facility in Adelaide with an attached dementia unit. She has since been transferred to a private nursing home. On 6 September 2016, Michael Budini’s appointment as Ms Budini’s legal guardian was renewed by NCAT, including on the basis that she suffered from Alzheimer’s dementia.

138    In October 2016, Michael Budini stated to NCAT that Ms Budini’s dementia had been recognised as long ago as 2014, and possibly earlier by her then GP. He relied upon the dementia diagnosis to support his claim that Sunnyfield could not care for a person with Ms Budini’s needs. He claimed that since moving from Sunnyfield to a facility with a dementia unit attached, Ms Budini had gained weight and that she appeared happier.

139    The complaint lodged with the Commission stated that Ms Budini’s current GP had advised that since her relocation to Adelaide Ms Budini “suffers little, or no, dementia”. “Dementia does not get better,” the complaint stated, “so Ricky could logically not have had dementia before if she does not have it now”. On the basis of Michael Budini’s personal observations, it was further alleged that Ms Budini often seemed “drugged out” at Sunnyfield which may, it was alleged have “mimicked the symptoms, and therefore led to an incorrect diagnosis, of dementia”.

140    The claim now sought to be commenced includes an allegation that the diagnosis of dementia was “false”. It is claimed that Ms Budini was misdiagnosed, and that the misdiagnosis formed a part of a health crisis deliberately constructed by Sunnyfield to secure a financial advantage for itself, including by affecting a fraud on the NDIS scheme.

141    Whether or not Ms Budini suffers (or at any time suffered) dementia is a question of medical expertise to be determined at trial should leave be granted. Michael Budini has not asserted that the delay in lodging the complaint is explained by the necessity to obtain a medical report for the purposes of showing that past diagnoses of dementia by apparently qualified medical practitioners was “false”. Whether he obtained any such report prior to commencing this application is currently unknown to the Court.

142    The allegation of fraud on the NDIS is supported by Michael Budini’s sworn evidence to the effect that in June 2016 he attended a meeting with NDIS assessors and two Sunnyfield staff members. He states that the staff members pulled him aside and told him that they would be deliberately exaggerating Ms Budini’s symptoms in order to maximise the amount the NDIS might contribute to her care. Michael Budini goes on to assert ignorance at that time as to the true state of Ms Budini’s health.

143    As has been mentioned, in 2016 and 2017, Michael Budini claimed in correspondence that he was aware of a fraud that had been committed against the NDIS by Sunnyfield staff. He sought to use that claim as leverage in his negotiations with Sunnyfield. Implicitly, the correspondence is to the effect that no report to the authorities would be made if Sunnyfield complied with his demands. At the time of that correspondence, Michael Budini was an admitted legal practitioner. Assuming for present purposes that fraud of the kind alleged occurred, it is concerning to the Court that Michael Budini would not report it to the relevant authorities including in respect of the claimed funding to support Ms Budini in what is now claimed to be a knowingly false dementia diagnosis. Further, on his own evidence, Michael Budini continued in attendance at the NDIS meeting without alerting the assessors to what the Sunnyfield staff had allegedly said to him before the meeting commenced. On his own evidence he remained in the meeting having the state of mind he deposes as follows:

73.    During the NDIS Meeting I became concerned that Sunnyfield was not acting in Ricky’s best interests, in that Sunnyfield was:

73.1    Precipitating an unnecessary health crisis by overmedicating Ricky, and allowing her weight loss to spiral out of control; and

73.2    otherwise relying upon false or exaggerated diagnosis and representations as to her condition.

In order to maximise the funding that Sunnyfield could obtain from the NDIS.

144    Notwithstanding those asserted concerns, Michael Budini’s correspondence with Sunnyfield following the NDIS meeting shows that he hoped and expected NDIS funding to be forthcoming as a consequence of what had been said at the meeting and that he expected to base future decisions about Ms Budini’s care around the amount of funding that might become available.

145    If the Sunnyfield staff had stated an intention to exaggerate Ms Budini’s symptoms (as to which I make no finding), Michael Budini ought promptly to have reported that stated intention to the NDIS in his capacity as Ms Budini’s guardian and as a participant in the meeting that then followed.

146    Moreover, to the extent that any entity has suffered a loss as the consequence of any such fraud, it is the entity responsible for administering the NDIS. It has not been shown that Ms Budini has any entitlement to financial compensation under the AHRC Act as a consequence of the serious facts alleged. It remains unclear to the Court how the asserted facts could arguably support a claim for unlawful discrimination in any event. To the extent that the claim is founded on Ms Budini’s incapacity to advance her own interests at the NDIS meeting, it was clearly the role of Michael Budini to advance her interests in his capacity as her legal guardian, and to do so at the time that the NDIS meeting occurred. If I am wrong in that regard, the claim of fraud against the NDIS ought to have been promptly the subject of a complaint lodged with the Commission and not improperly used as leverage by Michael Budini in the manner I have described.

147    In all of the circumstances I have described, it is not in the interests of the administration of justice to grant leave to the applicants to now raise a case founded in fraud on the NDIS based on a misdiagnosis of dementia or upon any other alleged exaggeration of Ms Budini’s condition, having regard to the acts and omissions of her legal guardian in relation to the alleged fraud.

Alleged “virtual starvation”

148    This aspect of the complaint alleges that throughout 2015 and 2016 Ms Budini suffered from severe and rapid weight loss. So much is not in dispute.

149    It is further alleged that Michael Budini was advised in 2015 or early 2016 that Ms Budini had lost 33 kilograms. He alleges that in July 2016 he expressed concern to Sunnyfield about Ms Budini’s condition and suggested that she be fed the nutritional supplement Sustagen. He alleges that his correspondence was ignored. He further alleges that he attended on Ms Budini late in the evening of 4 September 2016 without prior notice to Sunnyfield after the informant had alerted him to Ms Budini’s worsening condition. He alleges that when he saw Ms Budini he was shocked at her emaciated appearance. He alleges that her physical condition was a factor that caused him to “rescue” her from the facility. He alleges that he then took Ms Budini to be weighed and was shocked to hear that she had lost “another 5 kilos (on top of the 33 kilo weight loss advised to me earlier in the year …), and that she only weight 46 kilograms”. It is then alleged that since being removed from Sunnyfield, Ms Budini had rapidly gained weight and that, by inference, Sunnyfield had been starving her. If leave is granted, the applicants will rely at trial on a photograph indicating that Sunnyfield staff had kept Ms Budini on a weight loss diet.

150    Whether or not Ms Budini was “rescued” from Sunnyfield in the manner and for the reasons alleged by Michael Budini is the subject of a significant area of dispute that need not be determined here. However, for the purposes of the leave application it is appropriate to make some substantive findings about Michael Budini’s degree of knowledge about Ms Budini’s weight loss, its rapidity and causes at various times.

151    The complaint, as framed in the Commission, was expressed in part as follows:

… on 31 July 2016, Michael wrote an email to Ms Karine Araujo (Karine) of Sunnyfield addressing his concerns with Ricky’s alarming weight loss. Michael suggested feeding Ricky Sustagen Hospital Formula to increase her nutrition, however, Sunnyfield did not respond to his request, nor did Sunnyfield appear to have fed her such (or any) supplements.

152    Michael Budini’s email to Sunnyfield of 31 July 2016 states that he had spoken to Ms Budini’s GP the previous Friday and that the GP had reported that Ms Budini’s weight was “still declining”. The email stated that Michael Budini had understood that Ms Budini’s weight had stabilised and asked how much she now weighed. The email concluded:

Naturally I am worried about her eating habits. Have you considered Sustagen Hospital Formula?  …

153    Contrary to Michael Budini’s assertion in the complaint, Sunnyfield did reply to Michael Budini’s email, and promptly so. On the morning of 1 August 2016, its Service Manager stated that Ms Budini had been weighed the previous Friday and that she now weighed 48.10 kg. The email continued:

Ricky’s weights [sic] was stable from March to June but she has lost another 2 kg in the last two months. Ricky had a blood test on 29th of July to check thyroid for weight loss, depending on the test results, Dr Ludowici will add Sustagen to her MMF next Tuesday.

154    I consider it to be indisputable that Michael Budini knew that Ms Budini’s weight loss was occurring under the medical supervision of a GP and that the reasons for the weight loss were expected to be confirmed by the blood result tests. I find that he had been informed that the decision to implement Sustagen was a decision that depended on the blood test results and that Sunnyfield was acting on the advice of a GP in that regard, being the same GP with whom Michael Budini had consulted a few days prior. Indisputably, Michael Budini was otherwise made aware of the rapid weight loss that had previously occurred in 2015 and earlier in 2016. There remains some dispute as to whether Michael Budini was informed that Ms Budini’s weight had stabilised at a time when it had not.

155    To the extent that Michael Budini now claims that the cause of the weight loss was Sunnyfield’s conduct in maintaining her on a weight loss diet, I am satisfied that the information he relies upon to support that claim was in his possession at or around the time that he removed Ms Budini from Sunnyfield’s care. I am not satisfied that there is a reasonable explanation for the delay in lodging a complaint alleging that such conduct (if it occurred) amounted to “virtual starvation” constituting unlawful discrimination.

156    If leave to proceed to trial on this aspect of the claim were to be granted, it would be necessary for the applicants to address the circumstance that the cause of Ms Budini’s weight loss was, in early August 2016, under investigation by her GP. It was not disputed on this application that blood tests were undertaken to determine the cause and the most appropriate clinical response. Neither the complaint lodged with the Commission nor the material relied upon by the applicants on this application made any reference to the outcome of the medical investigation. Either the tests revealed a medical reason for the weight loss or they did not. The applicants have conducted this application in such a way as to give rise to an expectation that if they had any evidence that there was no medical explanation for the weight loss it would have readily been adduced to support an arguable case that Sunnyfield had starved Ms Budini. In all of the circumstances, and in the absence of such evidence, I am not satisfied that there is even an arguable basis to draw such a serious inference. I do not consider there is an arguable case that Sunnyfield failed to comply with medical advice in such a way to constitute a contravention of the DD Act.

Alleged failure to prevent absconding

157    Concerns about Ms Budini absconding were identified by Sunnyfield as early as 2012. Sunnyfield’s records show that the perimeter fence referred to earlier in these reasons was erected in an attempt to address the problem. The risk was referred to in a Risk Management Plan executed by Peter Budini in 2014. Ms Budini’s absconding behaviour was the subject of ongoing correspondence after Michael Budini’s appointment as Ms Budini’s guardian, continuing into 2016. For the purposes of argument it may be accepted that the ability to abscond was exacerbated by the unsuitability of Sunnyfield’s premises and by Sunnyfield staff omitting to lock a rear door through which Ms Budini could exit the facility and be put at risk on the busy road outside. I do not consider any of these facts to be the subject of any real controversy.

158    The contemporaneous correspondence shows that difficulties with Ms Budini’s absconding came to Michael Budini’s attention as early as February 2015. In July 2016 Michael Budini challenged Sunnyfield about the difficulties it was experiencing managing Ms Budini’s absconding behaviour. Aside from cost considerations, the risk of absconding was one of the reasons Michael Budini stated an intention to remove Ms Budini from Sunnyfield’s care and to place her into a facility with a “secure dementia unit” in Adelaide.

159    On the evidence before me, I do not accept that the informant provided any information to Michael Budini in late August relating to the absconding over and above that already known to him at the time. Sunnyfield itself had recognised the need to ensure that Ms Budini did not abscond. It cannot reasonably be disputed that it was Sunnyfield that raised the suitability of its existing facility with Peter Budini. It was Sunnyfield that applied to have Michael Budini appointed as legal guardian to make future decisions about Ms Budini’s future care arrangements. It is not disputed that in 2016 Michael Budini was communicating with Sunnyfield about the devolution of the home in which Ms Budini resided and about the construction of a more secure unit for her. At the same time, to Michael Budini’s knowledge, an aged care assessment report was prepared to assess Ms Budini’s eligibility to be placed in an aged care home.

160    To the extent that there were negligent acts on the part of Sunnyfield staff in their failure to lock a rear door, there are other causes of action available in respect of this aspect of the complaint, subject to proof of loss or damage. To the extent that Ms Budini was exposed to a risk to her safety by her absconding, it was a risk of which her legal guardian was aware. Michael Budini and Sunnyfield were awaiting the necessary assessments to accommodate Ms Budini more safely. It is difficult to see how a claim of unlawful discrimination sounding in damages or any other relief could succeed on those facts. There is no reasonable prospect that it could. It is not sufficient to assert that Ms Budini was exposed to a risk to her safety.

161    The absconding behaviour was also alleged to be a manifestation of abuse and neglect on Sunnyfield’s part, so causing Ms Budini to escape from allegedly miserable surroundings to seek out her relatives, including Michael Budini. The evidentiary basis for that claim was an opinion allegedly expressed by the informant together with Michael Budini’s assertion that the absconding behaviour ceased when Ms Budini was removed from Sunnyfield’s care.

162    In my view, the assertion that Ms Budini has since stopped her absconding because the abuse and neglect at Sunnyfield has ended must be given no weight in the absence of evidence about the nature and security of her present accommodation. It cannot be disputed that in 2016 it was Michael Budini’s intention to move Ms Budini to an accommodation facility having a secure dementia unit. She has since been moved to an aged care home in an Adelaide suburb. The fact that Ms Budini has not absconded from that kind of facility simply cannot support the inference that she was previously abused and neglected at Sunnyfield to the extent that she felt the need to escape.

163    I am not satisfied that leave should be granted to commence a proceeding alleging contravention of the DD Act in relation to the absconding complaint.

Alleged unlawful restrictive practices

164    This aspect of the complaint alleges that Sunnyfield unlawfully restrained Ms Budini, including chemically. The prima facie evidence for that claim is a bundle of documents evidencing the administration of medications to Ms Budini and steps that were taken to restrict her movement.

165    Like other complaints, this allegation in large part challenges steps taken by Sunnyfield with the knowledge and consent of Peter Budini. It is again alleged that Peter Budini could not consent to the restraints on Ms Budini’s behalf because he was not formally appointed as her guardian. I would not grant leave in respect of this category of complaint for the same reasons expressed earlier in relation to Peter Budini.

166    Moreover, the materials relied upon by the applicants to establish a prima facie case of unlawful restraint evidence a process by which Sunnyfield sought the approval of a Restricted Practices Management Panel in respect of practices recommended by a medical practitioner. An instance relied upon involved the administration of Valium for the purpose of easing Ms Budini’s distress when having blood taken for a medical test.

167    To the extent that this aspect of the complaint questions the appropriateness of Ms Budini’s medical prescriptions over the course of many years, there is no proper evidentiary basis to claim that Sunnyfield departed at any time from the advice of Ms Budini’s medical practitioners. To the extent that the diagnoses and advice of the practitioners are separately challenged, that is not a matter that on any reasonable view could give rise to a contravention by Sunnyfield of the DD Act.

168    A further restraint complained of involved a decision taken to lock a door or doors in the facility in 2014 as an interim measure to prevent Ms Budini from absconding. It is difficult to reconcile this aspect of Sunnyfield’s case with the complaint alleging negligent acts allowing Ms Budini to abscond. To the extent that the restraints were not authorised under the law, there are other causes of action that may be pursued.

Other complaints

169    The complaint lodged with the Commission was expressed in the form of a long narrative. The manner of drafting makes it difficult to identity which parts of the narrative allege the essential facts necessary to establish unlawful discrimination and which are alleged by way of background. The applicants’ evidentiary material gives rise to the same difficulty.

170    The above reasons do not encompass every allegation against Sunnyfield. To the extent that there is any subject matter not expressly dealt with, I do not consider that subject matter to affect my discretion to refuse leave. I consider the remaining subject matter for the most part to concern the disputed state of Ms Budini’s accommodation. They are complaints about the standard of service delivery under a contract for the provision of a service that may be pursued by other causes of action. The reasons given at [50] - [85] above should be understood as encompassing them.

OTHER CONSIDERATIONS

171    It has not been overlooked that the complaint lodged with the Commission related to an array of issues allegedly arising in the course of Ms Budini’s ongoing accommodation at Sunnyfield. Consideration must be given to the many instances of alleged unlawful discrimination in their accumulation and in the wider context in which the alleged acts or omissions occurred. The failure to lodge a complaint at an earlier time has been assessed having regard to the nature of the ongoing relationship between Sunnyfield, Ms Budini, Peter Budini and Michael Budini. These reasons for refusing to grant leave should not be understood as expressing an expectation that single instances of alleged discrimination must in all cases be the subject of a prompt and discrete complaint. There may be cases in which a complaint may properly be made in respect of a course of conduct occurring over months or years.

172    The applicants did not present their case as one in which the delay was explained by the desire to keep relations between Michael Budini and Sunnyfield workable and cordial whilst Ms Budini remained in Sunnyfield’s care. Rather, the case was presented as one in which Sunnyfield had (among other things) concealed information from Michael Budini or Peter Budini or otherwise acted fraudulently and abusively in a way that had only recently come to Michael Budini’s attention, so enabling him to formulate the claim now sought to be litigated in the DD proceeding.

173    I have concluded that the multiple components of the complaints of discrimination and the very serious nature of some of them cannot reasonably be reconciled with the contemporaneous communications between Sunnyfield and Michael Budini and Peter Budini over a considerable period of time. I do not accept that Michael Budini only recently became apprised of facts for the first time alerting him to the availability of a claim founded on a contravention of the DD Act, nor facts that enabled him to put an entirely different complexion on a long history of past events. Michael Budini’s correspondence shows that his relationship with Sunnyfield deteriorated in 2016 when he questioned the cost of Ms Budini’s care. The relationship became unworkable when he was informed that Sunnyfield had made an application to NCAT to have him removed as Ms Budini’s legal guardian. It is reasonable to infer that that application provoked Michael Budini to anger as evidenced by the tenor and content of his email to NCAT alleging abuse, neglect and other serious misconduct by Sunnyfield in respect of matters that until that time had remained the topic of conciliatory and cooperative discussion.

174    In determining to refuse leave I have had regard to the availability of remedies under the DD Act that may not be available in respect of the other causes of action referred to in the amended originating application. I have also had regard to the particular and unique harm that may be compensated under the DD Act and to the foreshadowed claim for exemplary damages sought to be made on Ms Budini’s behalf. However, I have concluded that the inclusion of a claim for exemplary damages is itself a reason to reject the explanation for the delay in lodging the complaint. Where it is alleged that a contravention is so egregious so as to give rise to an entitlement to exemplary damages, that is even more reason to proceed with a complaint expeditiously so as to invoke the conciliatory processes of the Commission. Such a claim also gives rise to an expectation that there be sufficient evidence to show an arguable case of egregious conduct. What is sufficient depends to an extent on the nature and seriousness of the allegations. In significant respects I have found the serious allegations advanced on behalf of Ms Budini to have no proper evidentiary foundation.

PREJUDICE

175    I have already identified a significant prejudice that would be suffered by the respondents should leave be granted, particularly concerning the likely unavailability of Peter Budini to give evidence on the critical question of his mental capacity to make informed decisions on Ms Budini’s behalf over a period spanning many years.

176    The respondents asserted further prejudice in the form of the loss of business records and the departure of personnel who were involved in the events. I have not considered it necessary to make any determination as to the existence and extent of this form of prejudice. Its existence and extent may well differ from one aspect of the complaint to the next. In appropriate cases it may be possible to avoid prejudice of that kind by conditioning a grant of leave by limiting claims to acts and omissions occurring within a specified time frame. I do not consider this to be such a case. The matters I have identified are sufficient to refuse leave whether or not the respondents would otherwise be prejudiced in the way they have alleged, should leave be granted.

THE SECOND RESPONDENT

177    The parties’ submissions devoted little attention to the asserted liability of Dr Clayton as an alleged accessory to Sunnyfield’s contraventions. I do not consider the applicants to be in any better position on the leave application vis a vis Dr Clayton. Generally speaking, it is permissible for a claim to proceed against a secondary contravener without joining the primary contravener as a party. However, it remains necessary in such cases to establish that the primary contravention occurred. A trial against Dr Clayton would not greatly differ in subject matter, length or complexity to that proposed against Sunnyfield. I would refuse the applicants leave to proceed with a claim against Dr Clayton for the reasons given above, insofar as they touch or concern any acts or omissions alleged against him.

ORDERS

178    An originating application claiming relief under the DD Act was filed on 22 October 2017 without the leave of the Court. Orders should be made striking out those claims as now expressed in the amended originating application filed 11 February 2019.

179    On 3 December 2018 the Court made an order appointing Michael Budini as Ms Budini’s litigation representative for the purpose of the application for leave, which is now determined.

180    It will be necessary for the status of Michael Budini as litigation representative to now be revisited in connection with the remaining causes of action so that the proceeding can be progressed to trial.

Associate:

Dated:    20 December 2019