LG v The Public Advocate - [2020] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0101

LG	First Applicant
EG	Second Applicant
v
THE PUBLIC ADVOCATE	Respondent

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JUDGES:	BEACH, HARGRAVE and QUIGLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 65
JUDGMENT APPEALED FROM:	[2019] VSC 514 (Forbes J)

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GUARDIANSHIP AND ADMINISTRATION – Appeal – Application for guardianship order – Application for summary dismissal of application for guardianship order – Appeal from refusal of application for summary dismissal of application for guardianship order – Earlier order appointing guardian set aside for error of law – Whether setting aside of earlier order precluded the making of subsequent application for guardianship – Whether setting aside of VCAT orders also set aside medical reports incorporated by reference – Whether VCAT erred in not granting summary dismissal of application for guardianship order – Whether primary judge erred in not upholding appeal and setting aside VCAT orders – Proposed appeal having no real prospect of success – Application for 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 Respondent	Ms E A Bennett	Benjamin Mason, Solicitor

BEACH JA
HARGRAVE JA
QUIGLEY AJA:

LG was born in Italy in 1933. Her son, EG, is an admitted Australian lawyer who does not possess a practising certificate.

On 16 April 2018, on the application of a social worker employed by Melbourne Health, the Victorian Civil and Administrative Tribunal made orders under the Guardianship and Administration Act 1986 (‘the Guardianship Act’) appointing a guardian and administrator for LG. The Public Advocate was appointed as limited guardian of LG, with powers to make various decisions, and State Trustees Ltd was appointed as administrator of the estate of LG (‘the first guardianship orders’).

The first guardianship orders were made because, after a hearing, the Tribunal was satisfied that LG had a disability and was unable by reason of that disability ‘to make reasonable judgments about her personal circumstances’. At the time of making the first guardianship orders, the Tribunal had before it medical reports from Dr Natalie Genardini and Dr Sara Straw. Moreover, in the body of the order made on 16 April 2018, the Tribunal made specific reference to Dr Genardini.

On 14 March 2019, Richards J granted LG and EG leave to appeal from the Tribunal’s orders made on 16 April 2018, allowed the appeal and set aside those orders. Amongst other conclusions, Richards J held that the Tribunal’s reasons for its order of 16 April were inadequate and did not meet the standard required by s 117 of the Victorian Civil and Administrative Act 1998 (‘the VCAT Act’).[1] This amounted to an error of law, which was one of the grounds upon which Richards J made her orders.
[1]LG v Melbourne Health [2019] VSC 183 (‘Reasons of Richards J’), [54].

At the conclusion of her reasons for judgment, Richards J noted that, during the…

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 65
Decision Date: 26 March 2020

CaseChat Overview and Summary

In the case of LG v The Public Advocate, the dispute involved a challenge to the validity of a guardianship order and the subsequent application for a new guardianship order. The matter was heard in the Supreme Court of Victoria. The appellant, LG, sought to appeal against the decision of the County Court of Victoria, which had refused to summarily dismiss an application for a guardianship order made by the Public Advocate.

The legal issues before the court were whether the setting aside of a previous guardianship order could preclude the making of a subsequent application for guardianship, whether the setting aside of Victorian Civil and Administrative Tribunal (VCAT) orders also set aside the medical reports incorporated by reference, whether VCAT erred in not granting the summary dismissal of the application for a guardianship order, and whether the primary judge erred in not upholding the appeal and setting aside the VCAT orders. Additionally, the court had to determine if the proposed appeal had no real prospect of success, which would result in the refusal of the application for leave to appeal.

The court found that the setting aside of the previous guardianship order did not preclude the making of a subsequent application for guardianship. However, the court held that VCAT did not err in not granting the summary dismissal of the application for a guardianship order, as there was sufficient evidence to warrant a hearing. The court also found that the primary judge did not err in not upholding the appeal and setting aside the VCAT orders, as the appeal had no real prospect of success. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal was dismissed, and the appeal was not proceeding. The court further ordered that the costs of the appeal be paid by the appellant.

Orders