LG v The Public Advocate - [2019] VSC 514

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02154

LG	First Appellant
EG	Second Appellant
v
THE PUBLIC ADVOCATE (who is sued in her capacity as a party to VCAT proceeding G82670)	Respondent

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2019
DATE OF JUDGMENT:	1 August 2019
CASE MAY BE CITED AS:	LG & Anor v The Public Advocate
MEDIUM NEUTRAL CITATION:	[2019] VSC 514

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ADMINISTRATIVE LAW – Guardianship and administration – Appeal from decision of Victorian Civil and Administrative Tribunal dismissing summary judgment application – Whether abuse of process to make application for temporary guardianship order and subsequent application under s 19 of the Guardianship and Administration Act 1986 (Vic) – Leave to Appeal refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 75, 148.

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APPEARANCES:	Counsel	Solicitors
For the First Appellant	Represented by EG
For the Second Appellant	Self-represented
For the Respondent	Mr B Mason	Office of the Public Advocate

HER HONOUR:

The Public Advocate made an application to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a temporary limited guardianship of LG on 18 March 2019. A temporary guardianship order was made on 20 March 2019. On 25 March 2019 LG and EG (the ‘Applicants’) sought an order pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’) summarily dismissing the guardianship application brought by the Public Advocate. The Tribunal received written submissions from the parties and heard argument directed to the summary judgment application and on 16 April 2019 dismissed the summary judgment application. It is from that decision that the Applicants now seek leave to appeal pursuant to s 148 VCAT Act.

It is necessary to begin by setting out something of the chronology of events leading to this appeal.

On 4 December 2017, LG (who at that time was aged 84), dislocated her shoulder in a fall at home and was taken to Royal Melbourne Hospital. Whilst there, she was assessed for discharge by practitioners within the hospital who had concerns about discharging her home and about her capacity to make her own decision about where she lived. EG is the adult son of LG. EG holds an enduring Power of Attorney for LG dated 19 July 1991 and an Enduring Power of Guardianship for LG dated 12 January 2008. LG and EG (collectively ‘The Applicants’) both wished that LG be discharged home. The Applicants maintained that LG was competent to make reasonable judgments for herself.

As a result of the conflict between the hospital staff on the one hand and the Applicants on the other, Melbourne Health applied for orders in the Guardianship List at VCAT for the appointment of an independent guardian in relation to LG (the ‘Melbourne Health application’). The Melbourne Health application was supported by two medical opinions: a neuropsychology report of Dr Natalie Genardini dated 18 January 2018 (‘the Genardini…

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 514
Decision Date: 1 August 2019

CaseChat Overview and Summary

LG sought to appeal the decision of the Victorian Civil and Administrative Tribunal (VCAT) to dismiss their application for summary judgment, which was part of a broader application for a temporary guardianship order. The Public Advocate opposed the application, arguing that it was an abuse of process. The case was heard in the Supreme Court of Victoria, where the appeal was ultimately dismissed, and leave to appeal was refused. The central issue before the court was whether the application for summary judgment and the subsequent application under section 19 of the Guardianship and Administration Act 1986 (Vic) constituted an abuse of process. The court considered whether the application was made in bad faith, with the sole purpose of causing unnecessary delay or expense, or whether it had a reasonable prospect of success.

The court examined the criteria for summary judgment and the nature of the applications made. It found that the application for summary judgment was not frivolous or vexatious, and there were genuine issues to be tried regarding the merits of the guardianship application. The court held that the application for summary judgment was not an abuse of process, but rather a legitimate attempt to expedite the resolution of the guardianship dispute. Consequently, the court dismissed the appeal and refused leave to appeal, affirming the VCAT decision. This outcome underscores the importance of adhering to procedural fairness and the need for genuine and reasonable legal processes in complex guardianship matters.

Orders