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LG v Melbourne Health

LG v Melbourne Health

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Case Copied 22 March 2019 57 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00392

LG and EG	Appellants
v
MELBOURNE HEALTH	First Respondent
and
THE PUBLIC ADVOCATE	Second Respondent
and
STATE TRUSTEES LIMITED	Third Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2019
DATE OF JUDGMENT:	22 March 2019
CASE MAY BE CITED AS:	LG v Melbourne Health
MEDIUM NEUTRAL CITATION:	[2019] VSC 183

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ADMINISTRATIVE LAW – Guardianship and administration – Appeal from orders of Victorian Civil and Administrative Tribunal appointing guardian and administrator in respect of first appellant – Whether Tribunal gave adequate reasons for orders – Whether Tribunal’s reasons addressed a submission seriously advanced and worthy of consideration – Reasons not adequate – Victorian Civil and Administrative Act 1998 (Vic), ss 117, 148 – Guardianship and Administration Act 1986 (Vic), ss 4(2), 22, 46.

HUMAN RIGHTS – Whether Tribunal gave proper consideration to relevant human rights in making guardianship and administration orders – No proper consideration – Charter of Human Rights and Responsibilities Act 2006, s 38(1) – PJB v Melbourne Health (2011) 39 VR 373 (Patrick’s case) applied.

COSTS – Whether self-represented litigant entitled to claim professional costs – Where litigant legally qualified and admitted to practice but not holding current practising certificate – Chorley exception applies only to a lawyer entitled to practise – Rule in Cachia v Hanes (1994) 179 CLR 403 applied – No order made for payment of professional costs.

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APPEARANCES:	Counsel	Solicitors
Appellants	In person
First Respondent	Mr M Goldblatt	K&L Gates
Second Respondent	Mr B Mason	Office of the Public Advocate
Third Respondent	Mr T Mah	State Trustees Limited, Legal Branch

HER HONOUR:

LG was born in Italy in 1933. She is now 85 years old. 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, for treatment of her injuries. On 8 December 2017, she was transferred to an aged care ward at the Hospital’s Royal Park campus for further assessment and discharge planning.

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…

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: [2019] VSC 183
Decision Date: 22 March 2019

CaseChat Overview and Summary

The appeal in LG v Melbourne Health was brought by an individual and their estate against Melbourne Health, a public health service provider in Victoria. The dispute arose from orders made by the Victorian Civil and Administrative Tribunal (VCAT) that appointed a guardian and administrator for the appellant. The appellants challenged the adequacy of VCAT's reasons for its orders and argued that VCAT failed to properly consider relevant human rights in making its decisions. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether VCAT provided adequate reasons for its orders and whether the Tribunal properly considered the human rights of the appellants. Additionally, the court needed to determine if the self-represented appellant, who was a legally qualified individual, was entitled to claim professional costs under the Chorley exception. The court examined the reasoning and process of VCAT in light of statutory provisions and relevant case law, particularly the principles articulated in PJB v Melbourne Health.

In its judgment, the court found that VCAT's reasons for the orders were inadequate as they did not address a submission seriously advanced and worthy of consideration. The court also held that VCAT did not give proper consideration to the relevant human rights of the appellants, as required by the Charter of Human Rights and Responsibilities Act 2006. The court applied the principles from PJB v Melbourne Health to conclude that the Tribunal's orders were flawed. Regarding costs, the court held that the Chorley exception applied only to a lawyer entitled to practise, and since the appellant did not hold a current practising certificate, they were not entitled to professional costs. Consequently, no order was made for the payment of professional costs.

The Supreme Court of Victoria allowed the appeal, quashed the orders made by VCAT, and remitted the matter for reconsideration. The court's decision emphasised the importance of VCAT providing comprehensive and reasoned decisions, particularly when dealing with matters involving significant personal rights and freedoms.

Orders