LG v Melbourne Health
[2020] VSCA 64
•26 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0057
| LG | First Applicant |
| EG | Second Applicant |
| v | |
| MELBOURNE HEALTH (and others in accordance with the Schedule) | Respondents |
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| JUDGES: | BEACH and HARGRAVE JJA and QUIGLEY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 March 2020 |
| DATE OF JUDGMENT: | 26 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 64 |
| JUDGMENT APPEALED FROM: | [2019] VSC 183 (Richards J) |
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COSTS – Whether self-represented litigant entitled costs for acting on behalf of his mother as ‘professional advocate’ under Victorian Civil and Administrative Tribunal Act 1998 ss 62(1)(b)(ii) and 109(1) – ‘Fresh evidence’ of retainer of first applicant to provide professional services to second applicant – Leave to rely on fresh evidence refused – Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 applied – No error in not ordering costs where quantum unknown and proceeding below commenced in order to protect interests of vulnerable person – Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 applied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant LG | No appearance | |
| For the Applicant EG | In person | |
| For the Respondents | Mr P Over with Mr T Mah | K & L Gates |
BEACH JA
HARGRAVE JA
QUIGLEY AJA:
LG was born in Italy in 1933. Until December 2017, she lived in her own home in North Coburg with her son, EG. On 4 December 2017, she had a fall at home and dislocated her right shoulder. She was taken by ambulance to the Royal Melbourne Hospital, operated by Melbourne Health. She was then transferred to an aged care ward at the Hospital’s Royal Park campus for further assessment and discharge planning.[1]
[1]LG v Melbourne Health [2019] VSC 183, [1] (‘Reasons’).
Over the next month or so, conflict arose between EG and hospital staff as to whether LG could be discharged home. LG wanted to go home, and EG wanted to take her home. However, hospital staff were concerned whether LG could be adequately cared for at home. She was, at that time, bed bound and needed a high level of assistance with mobility and personal care. LG resisted suggestions that she move to residential aged care. She was insistent in her wish to return home, and believed that she and EG would manage with assistance from visiting nurses. EG maintained that his mother was competent to make her own decision about where she lived. Hospital staff queried her capacity to make that judgment.[2]
[2]Ibid [2].
The conflict between EG and hospital staff escalated from that point.[3]
[3]Ibid [3].
On 15 January 2018, a social worker employed by Melbourne Health applied to the Victorian Civil and Administrative Tribunal for orders under the Guardianship and Administration Act 1986 (‘Guardianship Act’) appointing a guardian and an administrator for LG. The application was supported by a neuropsychological assessment report by Dr Natalie Genardini, a clinical neuropsychologist at the hospital. Dr Genardini’s opinion was that LG ‘has a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances’.[4]
[4]Ibid [4].
EG was a party to Melbourne Health’s application, in several capacities. First, he was LG’s nearest relative and her primary carer. Second, in 2008 LG appointed EG as her enduring guardian. The instrument of appointment authorised EG, if LG became incapable, to exercise the powers of a guardian under the Guardianship Act. Notably, it also required EG to take into account LG’s wish to remain in her own home. EG was thus a candidate for appointment as guardian by the Tribunal. Third, LG had appointed EG as her enduring power of attorney. He was also a candidate for appointment as administrator. Appointment of another person as administrator would displace the enduring power of attorney, and so EG was also a party in his capacity as LG’s attorney.[5]
[5]Ibid [5].
On 6 March 2018, the Tribunal made a temporary guardianship order, appointing the Public Advocate as limited guardian for LG.[6]
[6]Ibid [6]
The Tribunal heard Melbourne Health’s application on 16 April 2018. LG was not present. EG appeared for himself. The Tribunal refused EG’s application to appear on LG’s behalf, on the basis that he had a conflict of interest. EG vigorously contested Melbourne Health’s application, and made several applications of his own, including a summary dismissal application under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), which the Tribunal dismissed. At the conclusion of that hearing, the Tribunal made orders appointing the Public Advocate as limited guardian for LG, and State Trustees Limited as her administrator. The Tribunal gave brief oral reasons for some of these orders, and for other rulings made in the course of the hearing. The Tribunal did not give written reasons for its decision, despite a request made by EG on 30 April 2018.[7]
[7]Ibid [8].
Between April and June 2018, a delegate of the Public Advocate tried without success to arrange for hospital staff to assess LG’s home environment to determine what support she needed should she return home. Neither LG nor EG gave the delegate or hospital staff access to their home. In June 2018, the delegate decided to accept a permanent placement for LG in an aged care facility and LG was then discharged into that facility.
LG and EG sought leave to appeal against the Tribunal’s orders of 16 April 2018.[8] The primary judge refused EG leave to represent LG at the hearing of the appeal before her, but nevertheless EG was allowed to say what he wanted to on his mother’s behalf. At the time of the hearing before the primary judge, LG was still living in the aged care facility. She maintained her wish to return home as soon as possible.[9]
[8]As well as later orders dated 29 June 2018 and 1 August 2018, under s 148 of the VCAT Act.
[9]Reasons [10].
The primary judge heard the application for leave together with the appeal on 13 March 2019. On 14 March 2019, the primary judge made orders granting leave to appeal, allowing the appeal, and setting aside the Tribunal’s orders of 16 April 2018. The judge heard arguments as to costs on that day, and it will later be necessary to refer to the transcript of that argument. The primary judge’s written reasons for making those orders were published on 22 March 2019, and are summarised below.
Primary judge’s reasons and orders
The primary judge allowed the appeal on the basis that VCAT had failed to provide adequate reasons, contrary to s 117 of the VCAT Act. The primary judge held that VCAT’s reasons were insufficient in respect of three key matters: first, in relation to matters which VCAT was required to consider under the Guardianship Act before appointing a guardian and an administrator;[10] second, in rejecting EG’s arguments that Dr Genardini had not obtained LG’s informed consent to the neuropsychological assessment which formed the basis of Dr Genardini’s expert report;[11] and third, in relation to the human rights implications of the decision to appoint a guardian and an administrator for LG, contrary to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006.[12]
[10]The matters were whether LG had sufficient capacity to make ‘reasonable judgments’ in respect of her estate under s 46(b) of the Guardianship Act: Reasons [52]; the matters to be considered in determining whether LG was in need of a guardian under s 22(2) of the Guardianship Act: Reasons [53]; and the matters to be considered in determining whether to appoint an administrator under ss 46(2)-(4) of the Guardianship Act: Reasons [53].
[11]Reasons [66].
[12]Ibid [82].
After considering and rejecting various other arguments raised by EG, the primary judge turned to consider VCAT’s determination that EG had a conflict of interest and therefore could not represent LG at the hearing on 16 April 2018. While the primary judge expressed doubt as to the correctness of VCAT’s determination on this point, her Honour declined to determine the point because she did not have the benefit of submissions regarding LG’s right to a fair hearing or EG’s purported conflict of interest. Her Honour noted, however, that on any later application before the Tribunal it may consider that the fairer course is to hear from EG as LG’s representative and deal with the substance of the submissions made by him on her behalf.[13]
[13]Ibid [96].
The primary judge noted that the Public Advocate had foreshadowed making a further application to the Tribunal for the appointment of a temporary guardian for LG. On that basis, the primary judge considered that there was no utility in remitting the matter to VCAT.[14]
[14]Ibid [104].
The primary judge then considered EG’s application that the respondents pay his professional costs for acting for himself at the appeal. The primary judge refused this on the basis that EG, as an admitted Australian lawyer without a practising certificate, did not fall within the Chorley exception to the rule prohibiting costs orders to reimburse self-represented litigants for their own time.[15] The primary judge did, however, order that the respondents pay EG and LG’s reasonable expenses of the appeal. Her Honour’s costs orders made on 14 March 2019 following oral argument, and before publication of her written reasons, were in the following terms:
8.The respondents are to pay the expenses reasonably incurred by the appellants in relation to this proceeding, including for interpreters. These expenses are not to include any amount by way of professional costs for work done by the second appellant in relation to the proceeding.
[15]Ibid [110]-[115], referring to London Scottish Benefit Society v Chorley, (1884) 13 QBD 872 (‘Chorley’); Cachia v Haines (1994) 179 CLR 403; Guss v Veenhuizen [No 2] (1976) 136 CLR 47.
In her written reasons, the primary judge did not consider any application or contention that EG and LG were entitled to costs orders for their expenses of the VCAT proceeding or that LG was entitled to a costs order for the amount of EG’s professional costs in acting as LG’s ‘professional advocate’ in the VCAT proceeding.
Proposed grounds of appeal
There are four proposed grounds of appeal. Ground 1 contends, generally, that the primary judge erred in the exercise of her discretion by refusing to make any order for EG and LG’s costs in the VCAT proceeding. The focus of all four grounds is, however, the alleged failure of the primary judge to exercise her discretion to award LG her costs of being represented at the Tribunal by EG in his capacity as a ‘professional advocate’ within the meaning of s 62(8)(a) of the VCAT Act, which defines ‘professional advocate’ as including ‘a person who is or has been an Australian lawyer’. EG has a legal qualification and has been admitted to practice as an Australian lawyer. However, EG does not presently hold a practising certificate and is thus not entitled to engage in legal practice under the Legal Profession Uniform Law Application Act 2014.
Analysis
Section 62(1) of the VCAT Act provides:
(1) In any proceeding a party—
(a) may appear personally; or
(b) may be represented by a professional advocate if—
(i) the party is a person referred to in subsection (2); or
(ii)another party to the proceeding is a professional advocate; or
(iii)another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented; or
(iv) all the parties to the proceeding agree; or
(c)may be represented by any person (including a professional advocate) permitted or specified by the Tribunal.
EG relied only on s 62(1)(b)(ii). He contended that his mother was entitled to be represented by him as he was ‘another party to the proceeding’ and ‘is a professional advocate’. This contention was not challenged by the respondents and we will proceed on that basis.[16]
[16]We note, however, that there is some doubt as to whether s 62(1)(b)(ii) was intended to apply to circumstances such as the present. It may be that ‘another party’ should be read as another party who has a different interest. Here, EG and LG had the same interest.
EG and LG contend that the primary judge erred in failing to exercise her discretion to make costs orders under s 109(2) of the VCAT Act in their favour, because she did not exercise that discretion by reference to the factors set out in s 109(3).
No question arises as to whether the primary judge had the power to make the costs orders which are sought. Section 148(7) of the VCAT Act provides:
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;
(b)an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d)any other order the court thinks appropriate.
On behalf of LG, EG submitted that he made an oral application to the primary judge for LG’s costs of being represented by him at VCAT as a professional advocate. The respondents contend that no such application was made. The first issue for determination, therefore, is whether or not EG sought an order that the respondents pay LG’s costs of being represented by him as a professional advocate before the Tribunal. By reference to the transcript, EG contends that this application was made. By reference to the very same transcript, the respondents contend that it was not. It is therefore necessary to review the relevant transcript of argument before the primary judge.
The principal costs arguments raised by the parties concerned the costs of the successful appeal. In that regard, EG relied upon the Chorley exception. The primary judge dealt with that submission in her written Reasons, which were delivered after the argument.[17] EG does not seek to appeal that decision, as he accepts that the Chorley exception no longer exists following the subsequent decision of the High Court in Bell Lawyers Pty Ltd v Pentelow.[18]
[17]Reasons [115].
[18](2019) 93 ALJR 1007; [2019] HCA 29 (‘Bell Lawyers’).
EG’s contention that the primary judge should make orders against the respondents relating to the conduct of the proceedings in the Tribunal was first made in his oral reply submissions. He submitted that the primary judge should make:
an order that the Melbourne Health and the public advocate pay our costs for that, and certainly I am entitled to those costs because under s.62 of the VCAT Act, someone who is an Australian lawyer is able to be a professional advocate.
So, Your Honour, I’m entitled to costs pursuant to s.62. If you’re – you don’t necessarily have to be an Australian – a legal practitioner, but if you’re an Australian lawyer, which I am, then you’re entitled to costs for the Tribunal proceeding.
HER HONOUR: There’s no entitlement to costs before VCAT. The usual rule under s.109 of the VCAT Act is that parties bear their own costs.
LG: But there are exceptions.
HER HONOUR: Yes.
LG: One exception is a case of Macedon Ranges v Romsey Hotel, where, pursuant to s.109(3)(c) and (d), if the case is a complex case and there is a need for costs to be awarded, they can be awarded pursuant to s.109 of the VCAT Act. And so in this case, there was – it was a very complex matter, and I would certainly be also seeking the costs in relation to the Tribunal side of things, which I’ve also quantified if you want to have a look at them.
Thus, although moving from the Chorley exception, EG was still pressing his principal contention that he should be entitled to his professional costs. In this context, EG accepted the judge’s statement that the usual rule under s 109(1) of the VCAT Act is that the Tribunal is a no-costs jurisdiction. EG submitted to her Honour that the exception under s 109(2) should be exercised in his and LG’s favour for both professional costs and disbursements.[19] EG contended that the usual rule should be departed from because the Tribunal proceeding was complex and it was fair to do so because he and his mother had strong claims.[20] The primary judge did not accept that contention.
[19]This is apparent from the written quantification of his costs put before the primary judge and this Court.
[20]EG referred to s 109(3)(c) and (d) of the VCAT Act.
EG and LG contend that the primary judge failed to exercise the discretion under s 109(2) of the VCAT Act, but simply stated that ‘the usual rule under s 109 of the VCAT Act is that parties bear their own costs’. EG and LG contend that the primary judge erred in failing to exercise her discretion in accordance with the principles set out by Gillard J in Vero Insurance Ltd v The Gombac Group Pty Ltd,[21] in the following terms:
It follows that the general rule applies and the Tribunal may only make an order for costs if it is satisfied that it is fair to do so. That finding is an essential prerequisite to making an order for costs.
In approaching the question of any application for costs pursuant to s 109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows –
(i)The prima facie rule is that each party should bear their own costs of the proceeding.
(ii)The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.
(iii)In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s.109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.[22]
[21][2007] VSC 117 (‘Vero’).
[22]Ibid [19]–[20] (emphasis in original).
As to EG’s ‘professional’ time in representing LG in the Tribunal, EG seeks that those costs be fixed in accordance with the default scale of costs payable to legal practitioners who represent parties in whose favour costs orders are made by the Tribunal. EG sought to support this by two affidavits sworn by LG after her applications for leave to appeal were filed. In the first affidavit, sworn 17 September 2019, LG deposed:
As deposed at paragraph 13 of my affidavit of 3 March 2018 in Victorian Civil and Administrative Tribunal (‘VCAT’) proceeding 082670 which is also part of this proceeding I wanted [EG] to act as my legal representative in that proceeding and told him to do so.
I had agreed to pay for the professional legal services provided to me by [EG] in VCAT proceeding 082670.
I had freely decided and without any pressure from anyone else that I did not want to be represented by anyone other than [EG] in VCAT proceeding 082670.
In her second affidavit sworn on 3 December 2019 in support of her application to rely on her 17 September 2019 affidavit, LG deposed:
On or about 28 January 2018 after Melbourne Health had made its initial guardianship application in relation to me I had discussed with EG, in the context of giving instructions to EG to represent me in VCAT proceeding G82670, how to defend the application, how much it would cost for me to defend the application if EG acted as my legal representative, and how the litigation would run and costs involved in calling the relevant medical staff of Melbourne Health so as to have them cross-examined. In the context of these discussions I agreed to pay for the professional legal services provided to me by EG as my professional advocate in VCAT proceeding G82670 but wanted these discussions at the time to be kept confidential between myself and EG.
My belief is that I am not seeking to put in new evidence because the matter at paragraph 4 of my affidavit of 17 September 2019 was in my belief privileged and therefore in my belief there was no need for me to disclose this information.
Without prejudice to the Applicants in this proceeding I have waived my right to maintain privilege on this specific point referred to at paragraph 4 of my affidavit of 17 September 2019.
In our view, LG should not have leave to rely upon the fresh evidence in her two affidavits, as quoted above. First, there is no basis for LG’s asserted belief that any costs retainer with EG was privileged. Even if it was, it lay within LG’s power to waive the privilege before the primary judge and she did not do so. Second, we accept the submissions on behalf of the respondents that, had the evidence been put before the primary judge, they would have sought leave to cross-examine on issues including:
1) the credibility of the evidence – especially given its lateness and the coincidence that it came after EG appreciated the effect of the decision in Bell Lawyers; and
2) the terms of any retainer by LG of EG — including when it was made, the scope of the retainer and whether there was any agreement about the amount or rate of professional ‘fees’ that EG was entitled to charge LG.
In these circumstances, leave to rely on the fresh evidence is refused.[23]
[23]Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1608 [51]–[52].
It follows that, even if an order had been made in LG’s favour for her costs of having EG represent her at the Tribunal, there was no evidence which would allow a court or tribunal to assess the amount or the reasonableness of such ‘professional’ costs. The draft costs calculations put forward by EG make no reference to any rates or charges agreed to by LG and make no effort to distinguish between his claimed costs of acting for himself and the costs which he contends should have been ordered in LG’s favour. We reject LG’s contention that he and his mother – whom he claims to have represented at the Tribunal as a professional advocate – were somehow entitled to a costs order on the default scale for professional costs and disbursements payable to legal practitioners where a costs order is made in VCAT.
We are not satisfied that the primary judge erred in failing to apply the Vero principles by refusing EG’s oral application for the VCAT costs — which was made belatedly and in reply.
In our view, the primary judge was right to refuse to depart from the general rule that there be no order for costs for the Tribunal proceeding. The application made to appoint a guardian and an administrator for LG was not made in the interests of Melbourne Health or any of its employees. More accurately, it was made so as to protect the interests of a person who appeared to be otherwise vulnerable and in need of protecting. Moreover, it was not Melbourne Health’s fault that the Tribunal failed to give adequate reasons for a decision which appears to have been well open to the Tribunal. In such circumstances, the primary judge’s decision as to the costs of the Tribunal proceeding was plainly correct.
For the above reasons, leave to appeal is refused.
The representation issue
As he does not hold a practising certificate, the fact that EG is admitted to practice as an Australian lawyer did not give him the right, without leave, to represent LG before the primary judge or in this Court. Although we allowed EG to say whatever he wanted to say on behalf of his mother, both orally and in writing, and have taken his submissions into account, that was only because EG was nevertheless entitled to appear to represent his own interests as a party. Notwithstanding that practical approach in the circumstances, we formally refuse EG leave to represent LG. Higher courts have a discretion in deciding whether to grant leave, to be exercised only in exceptional or unusual cases;[24] as ‘the Court is jealous to ensure that the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and duties of counsel.’[25] This is not an exceptional case, especially when EG’s professed intention is to charge LG fees as if he were a lawyer entitled to do so under the Legal Profession Uniform Law.[26]Further, because of her disability, LG was a person in need of independent and duly qualified representation. Indeed, the circumstances of the case indicated a strong case for the appointment of a guardian ad litem to represent her.
[24]Skrijel v Mengler [2003] VSC 128, [10]-[13].
[25]Ibid [12].
[26]Schedule 1 of the Legal Profession Uniform Law Application Act 2014.
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SCHEDULE OF PARTIES
| LG | First Applicant |
| EG | Second Applicant |
| MELBOURNE HEALTH | First Respondent |
| THE PUBLIC ADVOCATE | Second Respondent |
| STATE TRUSTEES LIMITED | Third Respondent |
2
4
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