Philip Barnes v The State of Victoria and the Secretary to the Department of Health and Human Services - [2015] VSCA 343

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0091

PHILIP BARNES	Applicant
v
THE STATE OF VICTORIA	First Respondent
and
THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES	Second Respondent

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JUDGES:	SANTAMARIA, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2015
DATE OF JUDGMENT:	16 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 343
JUDGMENT APPEALED FROM:	[2015] VSC 340 (Riordan J)

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JUDICIAL REVIEW – Application for leave to appeal – Mandamus – Statutory construction – Agreement to a request for disability services pursuant to s 49 of the Disability Act 2006 – Whether agreement gives rise to enforceable statutory duty to provide requested services – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Merkel QC with Mr C Tran	Fitzroy Legal Service
For the Respondents	Mr P Hanks QC with Ms K Foley	Victorian Government Solicitor’s Office

SANTAMARIA JA

FERGUSON JA

McLEISH JA:

The applicant was diagnosed with primary progressive multiple sclerosis in 1982. Since 2012, he has received annual funding from the Department of Health and Human Services (‘the Department’) under what is called an individual support package. The initial funding was $112,000 per annum, which has since increased in line with indexation.

In 2014, the applicant applied to the Secretary of the Department for an increase in the level of funding in the amount of a further $134,217.60 per annum and for a grant of $23,100 to purchase a new wheelchair. The additional funding was requested primarily in order to pay for extra carer and support services needed as a result of the progression of the applicant’s condition.

The Department advised the applicant that it (meaning the Secretary) agreed to his request, and that his need for the additional support had been registered. The Department further advised that this did not mean that funds would automatically be allocated, but that the applicant would be considered along with others who had a registered need for support.

The applicant contends that the statutory regime under which the additional support was requested and agreed to has the effect of obliging the Secretary, in the events that have happened, to provide that support. He filed an originating motion seeking an order in the nature of mandamus against the Secretary. The trial judge held that no such obligation arose and dismissed the proceeding. The applicant seeks leave to appeal, and the application was heard along with full argument on the proposed appeal.

For the reasons that follow, we would grant leave to appeal but would dismiss the appeal.

Legislative and factual background

It is convenient to set out the statutory background before explaining the facts in somewhat greater detail.

The Disability Act 2006 (‘the Act’) states that its purpose is ‘to enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities and which is based on the recognition that this requires support across the government…

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

AGLC: Philip Barnes v The State of Victoria and the Secretary to the Department of Health and Human Services [2015] VSCA 343
Case: [2015] VSCA 343
Decision Date: 16 December 2015

CaseChat Overview and Summary

The applicant, Philip Barnes, applied for leave to appeal a decision that dismissed his application for judicial review. The applicant sought a writ of mandamus requiring the State of Victoria and the Secretary to the Department of Health and Human Services to agree to a request for disability services he had made pursuant to section 49 of the Disability Act 2006. The primary issue for the court was whether the agreement to a request for disability services under section 49 of the Disability Act 2006 gives rise to an enforceable statutory duty to provide the requested services.

The court examined the relevant provisions of the Disability Act 2006, including section 49, and the principles of statutory interpretation. The court held that the language of section 49 does not confer an enforceable statutory duty on the State to agree to a request for disability services. Instead, the court found that the section imposes a discretionary power on the State to agree to a request, which is subject to the availability of resources. The court also noted that the statutory framework does not provide a remedy for a failure to agree to a request. The court concluded that the applicant's application for judicial review was not founded on a sufficient basis to warrant leave to appeal.

The court granted the application for leave to appeal, but dismissed the appeal on the basis that it had no reasonable prospect of success. The court held that the applicant had not demonstrated that the primary judge's interpretation of section 49 of the Disability Act 2006 was erroneous or that the primary judge had failed to take into account a relevant consideration or had made an error of law. The court further held that the applicant's arguments were based on a misunderstanding of the statutory framework and the principles of statutory interpretation. The court dismissed the application for leave to appeal with costs.

Orders