LG v The Public Advocate
[2019] VSC 514
•1 August 2019
| 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 report‘) and a report dated 15 January 2018 of Dr Straw (‘the Straw report‘). The Genardini report identified a cognitive disability (likely dementia) that “impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances”. The Straw report made reference to the cognitive impairment identified in the neuropsychological report and described severe osteoarthritis which rendered LG bed bound requiring assistance with all aspects of mobility and personal care. The Straw report concluded LG was unable to understand when her safety was at risk due to a lack of insight into her own limitations. The Applicants resisted the need to appoint an independent guardian.
An initial bedside hearing in January 2018 was adjourned to allow the Public Advocate as the proposed independent guardian to conduct investigations and for the Applicants to negotiate a trial return home for LG. No agreement was reached regarding a trial return home. On 16 April 2018 the Tribunal made orders including that the Public Advocate be appointed as a limited guardian and the State Trustees as administrator (the ‘first VCAT decision’). The first VCAT decision appointed the Public Advocate as limited guardian of LG to make decisions concerning accommodation, medical treatment as defined in the Medical Treatment Planning and Decisions Act 2016 (Vic) and access to services. Oral reasons were given. Although written reasons were requested by the Applicants, no written reasons were delivered.
Following the first VCAT decision the Public Advocate tried to arrange hospital assessment of LG’s home to determine her support needs. No access to LG’s home was granted to the Public Advocate or to Melbourne Health. In June 2018, without the ability to assess support needed for a home discharge, under delegation from the Public Advocate as limited guardian, Mr Layley of the Office of the Public Advocate accepted a permanent placement for LG at Doutta Gala Lynch’s Bridge Aged Care Facility in Kensington (Lynch’s Bridge). LG was discharged from Melbourne Health and since 26 June 2018 has resided at Lynch’s Bridge, where she remains a resident.
On 6 December 2018 the Applicants appealed the first VCAT decision[1] to this Court pursuant to s 148 of the VCAT Act. The Applicants sought and were granted leave to appeal out of time. The leave application and appeal was heard by Richards J on 13 March (‘the first appeal’).[2] Her Honour determined that the first VCAT decision was attended by errors of law and as a result, her Honour set aside the orders. Her Honour declined to remit the application to VCAT for further consideration. Two factors were relevant to the exercise of the discretion whether or not to remit the proceeding. First, LG was no longer a patient of Melbourne Health and Melbourne Health informed the Court it would not pursue its application if remitted. Second, the Public Advocate foreshadowed it would make an application for guardianship. Having regard to those matters, her Honour stayed the orders setting aside the VCAT determination to 21 March 2019.
[1]The appeal was also in respect of subsequent orders made on 29 June 2018 and 1 August 2018.
[2]LG & EG v Melbourne Health et al [2019] VSC 183.
The Public Advocate then made an application for a temporary guardianship order on 18 March 2019 and on 4 April 2019 made an application under s 19 of the Guardianship and Administration Act1986 (Vic) (collectively ‘the Public Advocate’s application’). LG and EG made application for summary dismissal of the Public Advocate’s application under s 75 of the VCAT Act.
On 12 April 2019 the Tribunal made orders dismissing LG and EG’s summary judgment application and appointing the Public Advocate as limited guardian (the ‘second VCAT decision’). The appointment was to be reassessed no later than 30 June 2019.[3] It is from the second VCAT decision that the Applicants now appeal to this Court. Although the leave to appeal is in respect of the whole of the orders made, the grounds of appeal all relate to errors associated with the manner in which the Tribunal dealt with the Applicants’ application for summary dismissal.
[3]The 30 June date has been extended by VCAT pending the outcome of this appeal.
Application Under s 75 VCAT Act
Section 75(1) of the VCAT Act provides for summary dismissal of unjustified proceedings. It states:
At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion –
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.
The Applicants relied on both subparagraph (a) and (b) in their application which was for a dismissal and not a strike out of the proceeding.
A Tribunal given statutory jurisdiction to deal summarily with a claim is to consider summary disposal in accordance with the principles set out in State Electricity Commission v Rabel (‘Rabel’).[4] Those principles relevantly include:
(i)The onus lies on the person seeking summary dismissal of an application to show that the application is undoubtedly hopeless. This onus is similar to the burden imposed by courts when considering application under Order 23 of the Rules of the Supreme Court.
(ii)Such an application for summary dismissal is of an interlocutory nature and may be heard without the taking of full evidence
(iii)if the material discloses a dispute as to a fact in issue then the complaint ought not be summarily determined for lack of substance
(iv)a distinction is to be drawn between the complaint itself and the evidence to be presented in support of the claim, in determining whether a claim is undoubtedly hopeless.
(v)summary disposition of an applicant’s case is to be exercised with caution as it deprives the person bringing the application of the opportunity to have their claim heard.
[4][1998] 1 VR 102 (‘Rabel’).
In Forrester v AIMS Corporation and Ors,[5] Kaye J referred extensively to Rabel in identifying the principles applicable to an application under s 75 of the VCAT Act. Therefore to succeed in their application for summary dismissal, the onus lay on the Applicants to demonstrate that the Public Advocate’s application was undoubtedly hopeless.
[5][2004] VSC 506.
The Applicants require leave to appeal the second VCAT decision.
The requirement for leave under s 148 is described by Davies J in Commissioner of State Revenue v STIC Australia[6] as “a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal”.[7]
[6](2010) 81 ATR 682 (‘Commissioner of State Revenue’).
[7]Commissioner of State Revenue (n 6) [10].
Section 148(2A) of the VCAT Act provides that leave may be granted where the Court is satisfied that the appeal has a ‘real prospect of success’. Recently in Red Pepper Property Group Pty Ltd v S 3 Sth Melb Pty Ltd Croft J said:
The new requirement of s148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority. In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular Tribunal and, not in effect, subvert this position by seeking out error”[8].
[8][2019] VSC 41 [11].
The provision confers a discretion about whether to grant leave which an applicant must persuade the Court to exercise in his or her favour.[9]
[9]Commissioner of State Revenue v Frost (2011) 83 ATR 832.
In considering as a matter of discretion whether to grant leave it is relevant that, in dismissing the summary judgment application, the Tribunal determined only that the Public Advocate’s application is neither undoubtedly hopeless nor an abuse of process. It did not finally determine any question of the need for a guardianship order on its merits and no appeal ground is directed at the limited guardianship orders that were made once the summary dismissal application had been heard and determined.
The Applicants’ argument to the Tribunal under s 75 was that the Public Advocate’s application was frivolous, vexatious, misconceived or lacking in substance and/or an abuse of process because:
(a)it relied on the same medical material as was before the Tribunal in the first application by Melbourne Health. The consequence of the same medical evidence being relied on was said to be that a res judicata or issue estoppel arose, or that it was an abuse of process for the Public Advocate to bring its application with no ‘new’ medical evidence. In written submissions to the Tribunal the Applicants submitted:
“We rely on res judicata, issue estoppel (being the issue of the guardianship in relation to [LG]) and abuse of process…The attempt by the PA to bring a fresh guardianship application based on the reports of Drs Genardini and Straw which were the subject of the appeal before the Supreme Court is both a breach of res judicata and clearly an abuse of process and gives rise to issue estoppel.”[10]
(b)“The decision of the Supreme Court on appeal represents a final judgment in relation to the substantive dispute between [LG and EG] and the PA concerning guardianship.”[11]
(c)“The setting aside of the orders…based on the reports of Genardini and Straw means that the evidence on which those orders were based…cannot be used as the basis of a new application.” [12]
[10]LG and EG ‘Submissions of EG and LG for the Summary Dismissal of the Application by the Public Advocate (“the PA”) dated 18 March 2019 for a Temporary Guardianship Order in Relation to LG’, Submission in In the matter of an application in relation to LG, G82670/04, [1] and [3].
[11]Ibid [7].
[12]Ibid [8].
The Tribunal provided written reasons dated 17 April 2019 to supplement the oral reasons given at hearing. The written reasons in relation to summary judgment stated:
2. First, in regard to the application under s 75 of the Victorian Civil and Administrative Act 1998 (VCAT Act) as acknowledged during the hearing, VMS [here EG] based his application principally upon principles of res judicata, abuse of process; and issue estoppel. VMS submitted to the effect that the decision of Richards J, in setting aside the Tribunal orders of 16 April 2018, had the effect of finally determining the application for a guardianship order by the Public Advocate. Furthermore, the Public Advocate was precluded from relying upon any expert evidence it previously relied upon. As indicated during the hearing, VMS’s understanding of the effect of the Supreme Court judgement [sic] is wrong and his reliance upon the above principles, for the purpose of a s 75 application is misconceived.
3.In my view, the Public Advocate was not precluded from making a further application for a temporary guardianship order, which the application was indeed foreshadowed by the orders of Richards J, as noted above. Furthermore, it was not an abuse of process for such application to be made or the subsequent application made under s 19 of the Guardianship and Administration Act 1986 (GA Act.)
4.Accordingly, in my view there was no basis for an application under s 75 of the VCAT Act and such application is dismissed.
The transcript of the Tribunal hearing records the following comment by the Tribunal:
Now what has transpired from that [Supreme Court] decision is that those orders [of VCAT] were set aside, so in a sense, everyone had to start again. But contrary to [that] what I understood you to say in your supporting application to set the application for guardianship aside, [EG], is that you seem to be saying well, everything’s been decided now and we shouldn’t be going through it all again.
Now, that just simply isn’t what the Supreme Court said. They didn’t find that the medical material was to be ignored or set aside, or that there may not be merit in a further application.[13].
[13]Transcript of Proceedings, [EG] and [LG] v The Public Advocate (Victorian Civil and Administrative Tribunal, G82670, Senior Member Jenkins 12 April 2019, 2 (‘12 April VCAT Transcript’).
Later the Tribunal said:
There’s no finalisation forever more of an application – of a further application for a temporary or ongoing guardianship order by reason of that Supreme Court decision. It only affected the orders that were made in April of last year.[14].
[14]Ibid, 8.
Finally it said:
I do propose to dismiss the s75 application essentially for the reasons given. The main reason is that no part of the decision of the Supreme Court precludes either the temporary application or the further application for guardianship which has been made.[15]
[15]Ibid, 29.
The Applicants now rely on four proposed grounds of appeal. The grounds are:
(1)The Tribunal erred in law by dismissing the section 75 application brought by the Applicants pursuant to the VCAT Act 1998 on the basis that the Second Applicant’s understanding of the Supreme Court judgment in LG v Melbourne Health [2019] VSC 183 was wrong and that his reliance upon the principles of abuse of process for the purpose of a section 75 application was misconceived.
(2)The Tribunal erred in law by dismissing the section 75 application brought by the Applicants pursuant to the VCAT Act 1998 on the basis that it was not an abuse of process for the Public Advocate to make her application dated 18 March 2019 for a temporary guardianship order in relation to the First Applicant and her subsequent application under section 19 of the Guardianship and Administration Act 1986 (“the GGA”).
(3)The Tribunal erred in law by its failure to provide adequate reasons which disclosed its path of reasoning for reaching its decision to dismiss the section 75 application brought by the Applicants.
(4)The Tribunal erred in law by its failure to address the submissions made by the Applicants that the Public Advocate’s application dated 18 March 2019 was also required to be dismissed pursuant to section 75(1)(a) of the VCAT Act 1998.
Res judicata and issue estoppel are similar but not identical concepts. Each concept, and the distinction between the two, is described by Dixon CJ in Blair v Curran as follows:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.[16]
[16] (1939) 62 CLR 464, 531-2 (per Dixon J).
Grounds 1 and 2 as outlined by the Applicants in this prospective appeal variously deal with error associated with the principles of res judicata or issue estoppel or an abuse of process in an inter-related way. First, the error was described as a wrong conclusion by the Tribunal that res judicata and issue estoppel do not apply to guardianship proceedings. In support of the submission they rely upon the phrases used by the Tribunal “EG you are getting into areas which are not pertinent to this jurisdiction” and the comment “…But when you’re applying them in this context they’re just a bit misplaced because it’s not what this jurisdiction is all about when there are - - - competing interests to be taken into account”.[17]
[17]12 April VCAT Transcript (n 13), page 4, line 24 and page 70, line 12.
This argument cannot be accepted. The Tribunal did not state that res judicata and issue estoppel as a matter of law cannot have application in guardianship matters. It said simply that such principles did not apply in this case given the terms of the Supreme Court order. Further as the scheme of the Guardianship and Administration Act 1986 (Vic) makes clear, the Tribunal has a role in ongoing assessment of the need for a guardian. Section 61 of that Act requires reassessment of guardianship orders within twelve months unless otherwise ordered, and in any event at least once within a three year period. The Tribunal can be asked to conduct such a reassessment at any time on the application of any person by s 61(3)(b). Within such a statutory regime, orders appointing a guardian that deal with matters once and for all so that principles of res judicata and issue estoppel apply, are likely to arise infrequently. The comment that EG’s application of the principles was misplaced in my view amounted to no more than a general comment regarding the statutory context within which such orders were made.
The second way in which the Applicants identify error in Grounds 1 and 2 is to say that the Public Advocate is attempting to re-litigate at VCAT that which was before the Supreme Court on the first appeal (to which it was a party) and about which final orders have been made. They identify the Supreme Court orders made on the first appeal as the prior judicial determination that deals with a matter of fact or of law between parties disposing of that matter once and for all.
They argue that the underlying cause of action – the need for appointment of a guardian - has been determined finally and conclusively by the Orders of Justice Richards. The argument cannot be accepted because the judicial review simply did not determine the merit of any guardianship application. It determined only whether the Tribunal, in dealing with the Melbourne Heath application, acted according to law. The orders in the first appeal did no more than quash the first VCAT orders rendering them a nullity. This followed from the error identified by failing to provide adequate reasons and by failing to deal properly with the argument objecting to the use of the Genardini report. The Court said no more than those arguments had to be properly considered. It did not determine whether or in what way a Tribunal who gave the argument proper consideration might decide to use the report. Nor did it determine how or on what evidence the guardianship application properly considered was to be decided. Still less did it determine in any way any factual matter or legal question as between the parties.
Although the orders in the first appeal are final as the Applicants submit, their finality deals only with the validity of the first VCAT decision and does not in any way otherwise determine the rights and obligations between the parties. The Applicants relied on a number of cases to illustrate the proposition that evidence upon which orders are previously made amount to an abuse of process when a second attempt to litigate on the same evidence is sought.[18] However, in each of those cases the earlier orders remained in existence and were a determination of the merits of the issue sought to be re-agitated. Here, the orders made in the first VCAT decision are no longer in existence. The first appeal did not determine the need for a guardianship order to be made. The discretion exercised in the granting of relief of certiorari without a remittal is not a determination of the merits of any issue between the parties. There is simply no earlier judicial order capable of giving rise to a legal bar to a further application. In oral argument before me, it was submitted that to permit a second consideration on the same evidence would give rise to the possibility of “a conflict of decisions based upon the same evidence”.[19] The flaw in this argument is that the effect of the first appeal is that the first VCAT decision never existed and so the possibility of conflicting decisions cannot arise.
[18]The Applicant by paragraph [46] of outline of submissions dated 12 June 2019 relied on three cases. Alshakshir v Lennon Mazzeo Lawyers [2008] VCAT 1792 [15]-[16] in which the Magistrates’ Court had heard and determined allegations of negligence by the solicitors which then were sought to be raised at VCAT in later proceedings. Fermamdez v Insulation Solutions [2004] VCAT 125 [18]-[19] in which a prior order of the Australian Industrial Relations Commission had determined the adequacy of compensation for termination of employment and the Tribunal and the Tribunal summarily dismissed an attempt to have the Tribunal re-try that question. In Wells v Tisher Liner [2006] VCAT 2370 [8]-[10] dismissing a second claim against a different respondent on the same issue as determined by the first claim where the claimant had declined an invitation to join the second respondent to the first claim. In all three matters existing orders dealing with the substantive the matter existed.
[19]Transcript of Proceedings, LG and Others v The Public Advocate (Supreme Court of Victoria, S ECI 2019 02154, Justice Forbes, 2 July 2019) 22.
The Applicants also submit that all of the evidence before the Tribunal was put before the Court in the appeal proceeding and had the Public Advocate wished to it could have put further material before the Supreme Court before final orders were made. As such the Applicants argue an issue estoppel applies because the “purpose of filing the material in the appeal proceeding was to allow the Public Advocate to make whatever submissions she wanted based upon that material”.[20] I do not accept the submission. The purpose of placing the evidence on which the Tribunal relied in making the first VCAT decision before the Court in the first appeal was to establish whether or not that Tribunal had considered the evidence before it, and the arguments based upon that evidence, according to law. There would be no relevance of any evidence that was not before the Tribunal being sought to be adduced in the judicial review proceeding.
[20]LG and EG, ‘Submissions of the Applicants/Appellants in Support of Leave to Appeal and if leave is granted the appeal’, Submission in LG and Others v The Public Advocate, S ECI 2019 02154, 12 June 2019 [49], said to found in this case an Anshun estoppel.
The remaining argument pressed by the Applicants is that the Genardini report and the Shaw report upon which the first VCAT orders were based no longer exist as once the decision is quashed, the evidence upon which it was based also no longer exists. The quashing of an order it was submitted ‘wipes the slate clean’[21] and also has the effect that the evidence on which the order was based also does not survive. However, none of the cases relied on by the applicants demonstrate the proposition that evidence itself is excluded from later consideration as a result of the quashing of a decision which was based on that evidence.
[21]Utilising the terminology of Spiegelman CJ in Ruddock & Ors v Taylor (2003) 58 NSWLR 269 [21] (‘Ruddock’).
For this argument the Applicants rely on The Sisters Wind Farm Pty Ltd v Moyne Shire Council [22]. Paragraphs 54 and 55 of the decision in fact deal with the power to remit a proceeding for determination once the original decision has been set aside under s 148(7)(a). Justice Emerton there was dealing with the effect of a remittal order and in particular whether findings of fact in the original decision made on issues not challenged on appeal are somehow preserved. In that context she said “The Tribunal’s decision has been quashed and no part of it has survived”[23]. Her Honour’s later comments regarding the fresh exercise of jurisdiction on remittal noted “There has been no binding determination and there are no surviving findings of fact supporting a binding determination”[24]. There is an obvious distinction between findings of fact which do not survive and the evidence upon which those facts as found was based.
[22](2012) VSC 324 [54] and [55].
[23]Ibid [54].
[24]Ibid [59].
Similarly, the Applicants’ reliance on Ruddock v Taylor[25] is said to demonstrate the evidence upon which findings were made is extinguished. In that case Mr Taylor had his visa cancelled and was then detained as an unlawful non citizen. The High Court determined that the Commonwealth was never entitled to cancel the visa. Mr Taylor sought and was awarded damages for wrongful imprisonment. The Commonwealth appealed the damages verdict on liability[26] arguing that the effect of certiorari to cancel the visa did not render the consequent detention unlawful whereas the trial judge had found that the detention was the inevitable consequence of the visa cancellation and therefore unlawful. The NSW Court of Appeal said “When the High Court quashed the cancellation decision on the basis that the power to cancel could not constitutionally apply to the respondent, it necessarily decided that any other direct consequence of cancellation could not constitutionally apply to him”[27]. It was in that context the court said of the effect of certiorari that “It expunges the decision and wipes the slate clean. There never was such a decision in law”[28]. It made no statement that the underlying evidence that was led by the parties is in any way expunged, destroyed or quarantined from later use by the quashing of a decision made based upon that evidence.
[25](2003) 58 NSWLR 269 [21].
[26]There was also appeal on quantum, not relevant in this context.
[27]Ruddock (n 21) [18].
[28]Ibid [21].
On the material that was before the Tribunal, both medical and lay, there was a factual dispute that required determination. That factual dispute was whether or not LG was a person with a disability, such that she was unable to make reasonable judgments in respect of certain matters and was in need of a guardian. Determination by the Tribunal of each of those matters turn on findings of fact many of which remained contested and therefore were not appropriate for summary determination.
Therefore the first VCAT decision, having been quashed and so not in existence, cannot give rise to any res judicata or issue estoppel. The orders made in the first appeal, dealing only with the validity of the Tribunal’s decision making process, determined no guardianship issues between the parties and so gives rise to neither res judicata nor issue estoppel on that question. Therefore there is no basis from the history of the litigation and the previous orders to preclude the Public Advocate from making a further application to VCAT.
Nor is it possible to say that because the Public Advocate’s application is based upon the same evidence it is an abuse of process. The existence of the reports and their availability to be relied on is unaffected by the quashing of the first VCAT decision or the decision of Justice Richards. The Applicants oppose the use of that evidence and the Tribunal had to deal with that argument. Decisions as to the use that can be made of particular pieces of evidence are not matters suitable for summary determination. Any limitation in the evidence relied on in the Public Advocate’s application is in large part as a result of the refusal by LG to consent to further independent examination. While that is her right, it does not follow that by so constraining the evidence available to the Public Advocate, the bringing of the application amounts to an abuse of process. The Applicants themselves are not constrained should they so wish from presenting medical evidence marshalled by them in support of their arguments for consideration by the Tribunal although they have not done so to date.
Accordingly, I find that grounds 1 and 2 do not have good prospects of success and leave to appeal on these grounds is refused.
The Applicants third ground of appeal is a failure to provide adequate reasons.
The VCAT obligation to give reasons arises by s 117 of the VCAT Act. That obligation arises in respect of any order it makes in a proceeding other than an interim order. Refusal of the summary dismissal application was an interim order and no obligation to provide reasons arises under s 117. The Tribunal also dealt with the substance of the Public Advocate’s application and in support of those decisions provided oral and written reasons. Those reasons did also traverse the summary dismissal refusal as outlined above.
The argument of the Applicants in support of this ground is directed first at a failure to provide any authority for the conclusion that res judicata and issue estoppel do not apply to guardianship applications, and says otherwise that the reasons amount to conclusions only and are therefore inadequate. Given my conclusion that the Tribunal did not in fact reach the conclusion that the Applicants contend, for the reasons set out above, it could not be said that the Tribunal failed to provide authority for a conclusion it did not reach. In approaching a ground as to adequacy of reasons, the Applicants do not identify a basis that entitles them to reasons for an interim decision. I also observe that the Tribunal nevertheless provided some reasons, criticised by the Applicants as merely conclusions, for dismissing their application. Even if the brevity of the reasons allows some inadequacy, given the interlocutory nature of the summary judgment application and the fact that it did not determine the substantive issues, deciding merely that the Applicants had failed to show that the Public Advocate’s application was hopeless, I refuse leave to appeal on that ground.
The final ground of appeal is that the Tribunal failed to address the submissions made in support of the s 75 application. In substance the Applicants outline of argument under this ground canvasses the substantive issue of the weight (or lack of weight as the Applicant’s contend) to be afforded to the Genardini report and the Straw report. The outline repeats some submissions made in support of the earlier grounds but contends in essence that the Tribunal failed to grapple with the substantive argument as to weight to be attributed to that evidence. To the extent that there was a substantial dispute as to the weight to be accorded to the evidence relied on this mitigates against dealing with a matter summarily.[29] If there are real questions for determination as to consent or expertise as were raised by the Applicants, then the matter is one that should be determined by full hearing and not by summary dismissal. It was therefore appropriate that consideration by the Tribunal of such matters was contained in its determination of the merit of the application and not in its summary determination.
[29]Rabel (n 4).
Subsequent to the hearing the Applicants filed with the Court and provided to the Respondent supplementary written submissions dated 4 July 2019. No objection was received by the Respondent to the Court considering those supplementary submissions. In summary they addressed the argument that if a Tribunal’s finding of fact does not survive, the evidence upon which that finding was made also does not survive. As set out above, a Tribunal considering a question afresh when an earlier decision has been quashed, is able to consider the evidence earlier relied on without any risk of conflicting decisions as there is no existing prior decision of the Tribunal. Nor was the ability of the Tribunal to have regard to the Genardini report and the Straw report as tendered by the Public Advocate constrained by the orders of Justice Richards in the first appeal.
For the reasons outlined above I am not persuaded that any of the Applicant’s four grounds of appeal have a real prospect of success and I refuse leave to appeal.
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