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:

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

1. 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’).

1. 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.

1. 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].

1. At the conclusion of her reasons for judgment, Richards J noted that, during the course of the proceeding before her, the Public Advocate foreshadowed the making of a further application to the Tribunal for the appointment of a temporary guardian for LG.[2]

   [2]Reasons of Richards J [103].

1. On 18 March 2019, the Public Advocate made the foreshadowed application for a temporary guardianship order in relation to LG. On 25 March 2019, LG and EG applied for the summary dismissal of the Public Advocate’s application under s 75 of the VCAT Act. On 4 April 2019, the Public Advocate applied for an order that it be appointed a limited guardian for LG on the same terms as the then existing current temporary guardianship order.

1. On 12 April 2019, the Tribunal made orders dismissing LG and EG’s summary judgment application, and appointing the Public Advocate as limited guardian of LG.  The Tribunal then directed that that order be reassessed no later than 30 June 2019. 

1. Subsequently, LG and EG sought leave to appeal to the Trial Division against the Tribunal’s dismissal of their application for the summary dismissal.  Relevantly, for present purposes, LG and EG contended, in their application for leave to appeal to the Trial Division, that:

·the orders made by Richards J were a bar to the Public Advocate bringing further guardianship applications in relation to LG; and

·the report of Dr Genardini and the report of Dr Straw could not be relied upon by the Public Advocate in the Public Advocate’s latest applications to the Tribunal because those reports were incorporated by reference into the Tribunal’s orders that had been quashed by Richards J. 

1. On 1 July 2019, Forbes J refused LG and EG leave to appeal from the Tribunal’s orders of 17 April 2019.[3]  In so doing, her Honour rejected the arguments advanced by LG and EG, including those referred to above.  LG and EG now seek leave to appeal from the orders of Forbes J.  Their proposed grounds of appeal seek to agitate these same points.

   [3]LG v The Public Advocate [2019] VSC 514 (‘Reasons of Forbes J’).

1. As we have already observed, EG is an Australian lawyer who does not possess a current practising certificate.  In the hearing before this Court, he sought leave to appear for LG.  Having heard his application, we did not rule finally upon it, but permitted EG to say whatever he wished to say on his own behalf and on behalf of LG.

1. Notwithstanding this practical approach in the circumstances, we formally refuse leave for EG to represent LG.  We do so for the same reasons we expressed in the representation application made in LG v Melbourne Health.[4]  Higher courts have a discretion in deciding whether to grant leave, to be exercised only in exceptional or unusual circumstances.  This is not one of those circumstances.

   [4]LG v Melbourne Health [2020] VSCA 64, [33].

1. The centrepiece of EG’s submissions was that the reports of Dr Genardini and Dr Straw were incorporated by reference into the Tribunal’s orders of 16 April 2018 and were therefore quashed when Richards J set those orders aside.  In advancing his submissions, EG made reference to the principles of res judicata, issue estoppel, Anshun[5] estoppel and abuse of process.  It was contended that, notwithstanding what applications might have been foreshadowed at the time of the hearing before Richards J, the orders of Richards J precluded the Public Advocate from bringing the applications that were later brought by the Public Advocate in the Tribunal.

   [5]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’).

1. For the reasons given by Forbes J, there is no substance in any of EG’s submissions.  Specifically, the notion that the reports of Dr Genardini and Dr Shaw were somehow quashed, and thus could no longer be relied upon for any purpose, once the Tribunal’s orders of 16 April 2018 were set aside, on the basis of errors of law, is devoid of merit.  None of the authorities upon which EG relied supported any such proposition.

1. LG and EG have failed to identify any error in the Tribunal’s refusal to grant them orders summarily dismissing the Public Advocate’s applications.  Moreover, Forbes J was correct, for the reasons she gave, to refuse leave to appeal to LG and EG.

1. For these reasons, the application for leave to appeal to this Court must be refused.

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