LG (a Pseudonym) v the Public Advocate - [2021] VSC 583

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2021 01996

LG (a pseudonym)	Proposed First Appellant
EG (a pseudonym)	Proposed Second Appellant
v
The Public Advocate	Proposed Respondent

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JUDGE:	J Forrest J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	14 September 2021
CASE MAY BE CITED AS:	LG (a pseudonym) & Anor v The Public Advocate
MEDIUM NEUTRAL CITATION:	[2021] VSC 583

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PRACTICE COURT – PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept documents for filing on basis that Proposed Notice of Appeal would constitute abuse of process – Whether Proposed Notice of Appeal sought to re-litigate matters already determined – Anshun estoppel – Direction by Court to accept documents for filing made – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – Supreme Court (General Civil Procedure) Rules 2015 rr 27.06, 28A.04(5).

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APPEARANCES:	Counsel	Solicitors
For the Proposed Appellants	No appearance (the application being referred on the papers by the Prothonotary)

HIS HONOUR:

Under rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), the Prothonotary refused to seal and file an application for leave to appeal lodged by LG and her son, EG,[1] against a VCAT[2] decision.[3] LG and EG now seek a direction from the Court under rule 28A.04(5) that the notice be accepted by the Court.
[1]The proposed appellants are referred to by pseudonyms pursuant to the order of Clayton JR made on 5 June 2019 in respect of a previous proceeding.
[2]Victorian Civil and Administrative Tribunal
[3]ICV (Guardianship) [2019] VCAT 559 (17 April 2019).

The request was referred to me, sitting in the Practice Court, on 19 August 2021.

Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), LG and EG seek leave to appeal the orders of Judge Jenkins, sitting as a deputy president of VCAT, made on 12 April 2019 (the ‘VCAT orders’).

Their Proposed Notice of Appeal, dated 4 November 2020 (the ‘Proposed Notice’), was accompanied by two affidavits sworn by LG and EG (collectively, ‘the documents’).

The starting point in this protracted saga is an application brought by the Public Advocate for a temporary guardianship order in respect of LG, under s 19 of the Guardianship and Administration Act 1986 (the ‘Guardianship Act’).[4] LG had appointed EG as her enduring guardian in 2008.
[4]Since repealed.

The application was initially heard by Member Smith at VCAT on 16 April 2018 at which time he appointed the Public Advocate as limited guardian of LG.

Then, Richards J in this Court on 13 March 2019 heard an appeal by LG and EG under s 148 of the VCAT Act. On 14 March 2019 her Honour set aside the orders of VCAT of 16 April 2018.

On 12 April 2019 there was a further hearing at VCAT before Judge Jenkins (a Senior Sessional Member). This was originally…

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: [2021] VSC 583
Decision Date: 14 September 2021

CaseChat Overview and Summary

In the case of LG (a Pseudonym) v the Public Advocate, the applicant sought to file a Notice of Appeal against the Public Advocate's decision. The Prothonotary of the Supreme Court refused to accept the documents for filing, asserting that the proposed Notice of Appeal would constitute an abuse of process, as it sought to re-litigate matters that had already been determined. The applicant applied for a direction that the Prothonotary accept the documents for filing, which was heard in the Supreme Court of Victoria.

The legal issue before the Court was whether the applicant's proposed Notice of Appeal would constitute an abuse of process, and thus, be subject to refusal by the Prothonotary. The applicant argued that the Prothonotary's refusal to accept the documents for filing was not justified, as the appeal was not an abuse of process, but rather a legitimate challenge to the Public Advocate's decision. The Court had to determine whether the appeal was an abuse of process, and whether the Prothonotary was correct in refusing to accept the documents for filing.

The Court found that the applicant's proposed Notice of Appeal did not constitute an abuse of process, as it was not an attempt to re-litigate matters that had already been determined. The Court held that the principle of Anshun estoppel, which prevents a party from relitigating matters that have already been determined, did not apply in this case. The Court also found that the Prothonotary had erred in refusing to accept the documents for filing, as the applicant's appeal was a legitimate challenge to the Public Advocate's decision. The Court made a direction that the Prothonotary accept the documents for filing, and the applicant was granted leave to appeal.

The Court's final order was that the Prothonotary of the Supreme Court accept the applicant's documents for filing, and that the applicant be granted leave to appeal the Public Advocate's decision. The Court held that the applicant's proposed Notice of Appeal did not constitute an abuse of process, and that the Prothonotary's refusal to accept the documents for filing was not justified. The Court also found that the principle of Anshun estoppel did not apply in this case, as the applicant's appeal was a legitimate challenge to the Public Advocate's decision.

Orders