Giurina v Melbourne Health - [2018] VSC 143

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2018 00469

LICIA GIURINA	Plaintiff
v
MELBOURNE HEALTH trading as THE ROYAL MELBOURNE HOSPITAL	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February, 8, 26 March 2018
DATE OF JUDGMENT:	26 March 2018
CASE MAY BE CITED AS:	Giurina v Melbourne Health
MEDIUM NEUTRAL CITATION:	[2018] VSC 143

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PREROGATIVE WRITS – Habeas corpus – Plaintiff inpatient at Royal Melbourne Hospital – Proceeding dismissed without adjudication on the merits – Supreme Court (General Civil Procedure) Rules 2015 O 57.

CAPACITY – Whether plaintiff person under disability – Whether plaintiff requires litigation guardian to continue proceeding – Where Office of Public Advocate appointed temporary limited guardian of plaintiff by Victorian Civil and Administrative Tribunal – Where Public Advocate does not consent to being appointed litigation guardian – Supreme Court (General Civil Procedure) Rules 2015 Order 15.

PRACTICE AND PROCEDURE – Parties - Whether second plaintiff had interest in proceeding – claims by second plaintiff dismissed - second plaintiff removed as party from proceeding.

PRACTICE AND PROCEDURE – Parties – Representation – Whether leave should be given to former second plaintiff to represent plaintiff in proceeding – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant	Mr Goldblatt	K & L Gates

HIS HONOUR:

The plaintiff is an inpatient in Royal Melbourne Hospital (‘the Hospital’).

The plaintiff’s son, Mr Ermanno Giurina, asserted that a dispute existed between the plaintiff and the Hospital, regarding the plaintiff’s discharge from hospital and the terms on which that could occur. The plaintiff asserted that ‘her continued detention’ by the Hospital is unlawful.

By summons dated 8 February 2018 the plaintiff sought an order pursuant to r 57.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), that, relevantly:

(a) the defendant discharge the plaintiff into the care of her son;

(b) all proper and necessary arrangements be made by the defendant to allow the plaintiff to return home to live with her son, without conditions.

This application is for a writ of habeas corpus. On the application the court may order that a writ issue or that the person restrained be released. The purpose of habeas corpus is to provide ‘a swift and imperative remedy in all cases of illegal restraint and imprisonment’.[1]
[1]Secretary of State for Home Affairs v O’ Brien [1923] AC 603, 609; In re Yates (1925) 37 CLR 36; Antunovic v Dawson [2010] VSC 377.

The plaintiff relied on the following materials in support of the application:

(a) Affidavit of Ermanno Giurina dated 4 February 2018;

(b) Affidavit of Licia Giurina dated 6 February 2018;

(c) Supplementary Affidavit of Ermanno Giurina dated 8 February 2018;

(d) Supplementary Affidavit of Licia Giurina dated 11 February 2018;

(e) Submissions dated 11 February 2018.

As the summons raised the Charter of Human Rights and Responsibilities Act 2006 (Vic), the plaintiff’s son gave notice to both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 143
Decision Date: 26 March 2018

CaseChat Overview and Summary

The case of Giurina v Melbourne Health was heard in the Supreme Court of Victoria. The plaintiff, Giurina, who was an inpatient at Royal Melbourne Hospital, sought a writ of habeas corpus, seeking to be released from the hospital. The defendant, Melbourne Health, opposed the application on the basis that Giurina did not have the capacity to bring the proceeding. Giurina had been appointed a temporary limited guardian by the Victorian Civil and Administrative Tribunal, but this guardian did not consent to be appointed as a litigation guardian. Consequently, Giurina's application was dismissed without reaching the merits of the case. The court was required to determine whether Giurina was a person under disability and, if so, whether a litigation guardian was necessary for her to continue with the proceeding. The court also had to consider the claims of a second plaintiff, who was removed from the proceeding as the court found she did not have an interest in the proceeding. Furthermore, the court considered whether leave should be granted to the former second plaintiff to represent Giurina but ultimately refused the request.

The court found that Giurina did not have the capacity to continue with the proceeding and thus required a litigation guardian. Since the temporary limited guardian did not consent to also act as a litigation guardian, the proceeding was dismissed without reaching the merits. The court found that the second plaintiff did not have an interest in the proceeding and her claims were dismissed, and she was removed as a party. The court also refused leave for the former second plaintiff to represent Giurina, stating that there was no basis for such leave to be granted.

Giurina's application for a writ of habeas corpus was dismissed without reaching the merits of the case. The second plaintiff's claims were dismissed, and she was removed as a party to the proceeding. The court also refused leave for the former second plaintiff to represent Giurina.

Orders