LG v Melbourne Health - [2020] VSCA 64

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)…

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: [2020] VSCA 64
Decision Date: 26 March 2020

CaseChat Overview and Summary

The case of LG v Melbourne Health involves LG, acting as a self-represented litigant, who sought costs for acting on behalf of his mother as a 'professional advocate' under the Victorian Civil and Administrative Tribunal Act 1998 sections 62(1)(b)(ii) and 109(1). LG contended that the tribunal had erred in not awarding him costs for his professional advocacy role in protecting his mother's interests. Melbourne Health opposed the claim, arguing that the costs should not be awarded as the quantum was unknown and the proceedings were below the tribunal’s usual scope. The primary legal issue before the court was whether the tribunal was correct in refusing to order costs to LG for his role as a professional advocate and whether the fresh evidence of the retainer should have been considered.

The court examined whether the tribunal had made an error in law by not awarding costs to LG for his professional advocacy services, particularly under the provisions of the Act that allow for such costs to be awarded when acting as a professional advocate. The court also assessed the admissibility and relevance of the 'fresh evidence' presented by LG, which purportedly demonstrated his retainer to act as a professional advocate. The court applied the principles from Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 and Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117, concluding that there was no error in the tribunal's decision. It held that the tribunal correctly refused to consider the fresh evidence and did not err in not ordering costs due to the uncertain quantum and the nature of the proceeding.

The court found that the tribunal did not make an error in refusing to award costs to LG, as the quantum of costs was unknown and the proceedings were below the tribunal's usual scope. The court also concluded that there was no error in refusing to admit the fresh evidence presented by LG, as it did not pertain to the issues before the tribunal. Consequently, the court dismissed LG’s application for leave to appeal, affirming the tribunal's decision.

Orders