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PJB v Melbourne Health

PJB v Melbourne Health

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Case Copied 19 July 2011 63 min read

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THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2010 3281

P J B

Appellant

MELBOURNE HEALTH

STATE TRUSTEES LTD

First respondent

Second respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2011
DATE OF JUDGMENT:	19 July 2011
CASE MAY BE CITED AS:	Patrick’s Case
MEDIUM NEUTRAL CITATION:	[2011] VSC 327

ADMINISTRATIVE LAW – appeal from Victorian Civil and Administrative Tribunal –appointment of administrator who would probably sell person’s home – whether person unable to make reasonable judgments about their estate when they understood money and were meeting obligations of ownership – whether tribunal erred in law in interpreting appointment provisions – whether appointment power available – interpretation of provisions affecting fundamental common law rights and freedoms and basic human rights – right to choose where to live, against arbitrary interference with home and to own and quietly enjoy property – principle of legality – application to interpretation of general but non-ambiguous provisions – application where legitimate dispute about scope of permitted interference with rights and freedoms – relevance of Convention on the Rights of People with Disabilities – Guardianship and Administration Act 1986 (Vic), ss 4(2), 46(1)-(4) – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 32(1), (1), 38(1),(2), 39(1).

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HUMAN RIGHTS – discretionary appointment of administrator by Victorian Civil and Administrative Tribunal – appeal on grounds of error of law – whether tribunal misinterpreted appointment provisions – interpreting legislation consistently with human rights – scope and application of principle of legality – scope of human rights to equality, to choose where to live, against arbitrary interference with privacy and home and deprivation of property not in accordance with law – jurisprudential value of decisions of Human Rights Committee – whether tribunal a public authority – whether appointment of administrator incompatible with human rights and therefore unlawful – challenging discretionary decisions for human rights unlawfulness in error of law appeals – proportionality – nature and standard of review – intensity of review – whether tribunal to be afforded a ‘margin of appreciation’ or ‘deference’ – weight and latitude in proportionality analysis – ‘arbitrarily’ – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 32(1), (2), 38(1),(2), 39(1).

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr Paul Bingham	Mental Health Legal Centre Inc
For the first respondent	No appearance
For the second respondent	No appearance
For the Attorney-General for the State of Victoria (intervening)	Ms Joanna Davidson	Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission (intervening)	Ms Tessa Van Duyn	Solicitor for the Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................................................................. [1]

GROUNDS OF APPEAL.................................................................................................................................................................. [6]

Notice of appeal............................................................................................................................................................................ [6]

Notice of questions arising under Charter........................................................................................................................... [8]

GUARDIANSHIP AND ADMINISTRATION ACT................................................................................................................. [12]

Purposes and core principles............................................................................................................................................... [12]
Appointing guardians............................................................................................................................................................. [20]
Appointing administrators................................................................................................................................................... [22]
Public Advocate........................................................................................................................................................................ [26]

PROTECTING HUMAN RIGHTS............................................................................................................................................ [31]

Charter......................................................................................................................................................................................... [31]
Human rights engaged........................................................................................................................................................... [36]

Scope of human rights

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: [2011] VSC 327
Decision Date: 19 July 2011

CaseChat Overview and Summary

The matter of PJB v Melbourne Health involved a dispute regarding the appointment of an administrator for PJB, which could lead to the sale of PJB's home. PJB argued that the Victorian Civil and Administrative Tribunal (VCAT) erred in appointing an administrator who would likely sell their home, given PJB's understanding of money and ability to meet ownership obligations. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court included whether PJB was unable to make reasonable judgments about their estate when they understood money and were meeting their ownership obligations. The court also had to decide whether VCAT erred in law by interpreting the appointment provisions of the Guardianship and Administration Act 1986 (Vic) and whether the appointment power was available under the circumstances. Additionally, the court considered the interpretation of provisions affecting fundamental common law rights and freedoms and basic human rights, including the right to choose where to live, against arbitrary interference with home and to own and quietly enjoy property. The principle of legality was also relevant to the interpretation of general but non-ambiguous provisions, especially where there was a legitimate dispute about the scope of permitted interference with rights and freedoms. The relevance of the Convention on the Rights of People with Disabilities and the Charter of Human Rights and Responsibilities Act 2006 (Vic) were also considered.

The court found that VCAT had not erred in law when determining that PJB was unable to make reasonable judgments about their estate. The court held that PJB's ability to understand money and meet ownership obligations did not necessarily mean they could make reasonable judgments about their estate. The court further held that the appointment power was available under the circumstances, and the interpretation of the provisions did not infringe on fundamental common law rights and freedoms or basic human rights. The court emphasised that the principle of legality applied to the interpretation of provisions, but it did not automatically lead to a particular outcome in cases where there was a legitimate dispute about the scope of permitted interference with rights and freedoms. The court also considered the relevance of the Convention on the Rights of People with Disabilities and the Charter of Human Rights and Responsibilities Act 2006 (Vic) but found that they did not alter the outcome of the case.

The final orders of the court were to dismiss the appeal and affirm the decision of VCAT. The court held that the appointment of the administrator was lawful and that the sale of PJB's home was in their best interests. The court also noted that the appointment of an administrator was a last resort and that alternative arrangements should be considered wherever possible.

Orders