Qumsieh v Pilgrim constituing the Guardianship and Admin Board

[1999] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M98 of 1998

B e t w e e n -

SHERIN QUMSIEH

Applicant

and

LANCE PILGRIM, constituting THE GUARDIANSHIP AND ADMINISTRATION BOARD

Respondent

Application for joinder to the application for special leave

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 OCTOBER 1999, AT 9.31 AM

Copyright in the High Court of Australia

MRS CRENNAN, QC:   If your Honour pleases, I appear with my learned friend, MR P.J. HANKS, for the applicant for special leave who is also the applicant on the summons for joinder.  (instructed by Vincent Toole)

MR J.J. NOONAN:   If your Honour pleases, I appear on behalf of North Western Health Care Network in response to the summons served upon it which seeks various forms of leave including joinder.  (instructed by

HIS HONOUR:   I have a certificate from the Deputy Registrar that she has been informed by the Victorian Government Solicitor, the solicitors for the respondent, that the respondent does not intend to appear at the hearing of the summons.  Mrs Crennan.

MRS CRENNAN:   If your Honour pleases, we have provided your Honour with an outline of our argument.  I will go over that shortly.

HIS HONOUR:   I have read that, Mrs Crennan, and looked at the cases that are attached to it.

MRS CRENNAN:   Thank you, your Honour.  Your Honour, before visiting that in any way at all – I certainly do not want to repeat it – but before doing that, may I mention to your Honour a couple of oddities in respect of this case because they do have a bearing on the relief which is sought pursuant to the summons.

The first to be remarked upon, we suppose, would be this that no order nisi has ever been granted in this case.  We will certainly take your Honour to documents which indicate as a fact that the application for an order nisi, whilst it named the relevant tribunal and the chairman of the tribunal, did not name, as part of its entitlement, persons interested in maintaining the decision. 

HIS HONOUR:   Nor should it have, should it?

MRS CRENNAN:   No, quite.  Well, that would be our point.  It did quite explicitly set out that an order nisi would be sought against the persons who would have an interest in maintaining the decision.  So, that is a particular oddity with which we are trying to grapple.  The second is this, your Honour:  we are conscious of the fact that Order 16 rule 4 is directed to proceedings in this Court.  We are conscious of what has been said ‑ ‑ ‑

HIS HONOUR:   There is an application to commence a proceeding in the Court rather than a proceeding, is there not?

MRS CRENNAN:   Indeed.  Quite, your Honour, that is right.  So, that is the second oddity.  Now, perhaps your Honour will permit us to mention in that context that discussions had occurred with the Registry in the context of this application.  Because of perhaps the unusual circumstances, there has been a bit of head-scratching on everybody’s part as to the precise manner in which it should be approached including the timing of it.  I will say no more than that.  It is clear from one of Mr Toole’s affidavits that as a result of those discussions, in any event, there was an effort to obtain a consent to the joinder.  But one of the aspects of the background to the matter to which we would want to draw attention on this occasion, despite the difficulties of which we are conscious, is the fact that, in essence, the substantive relief sought is, of course, a declaration of invalidity in respect of a decision which had the effect of overturning a very explicit indication of no consent to a blood transfusion.

HIS HONOUR:   I wonder whether it may be useful to examine the matter, assuming for the purposes of argument that there is some power to join, and test it against whether the joinder of the intended party would be appropriate if there were no need to apply for special leave?  Assume that there were appeal as of right. 

MRS CRENNAN:   Yes.  Thank you, your Honour, that - - -

HIS HONOUR:   Assume that there is power in the Rules.  Both of those assumptions may require some consideration. 

MRS CRENNAN:   Yes.

HIS HONOUR:   But the point which, at the moment at least, troubles me is that the jurisdiction of the Court ultimately is, in effect, to make such order as should have been made by the Court of Appeal.  If there were an appeal as of right, then the question for consideration by the Court would be whether the Court of Appeal was correct in dismissing the appeal to that court.  And there are two possible outcomes:  either the Court of Appeal is right to dismiss it, in which case no question of joinder seems to me to emerge.

MRS CRENNAN:   Yes, we accept that.

HIS HONOUR:   If the Court of Appeal is wrong, its error would lie in declining to set aside the order below and, in lieu, order that an order nisi should go, directed to certain persons.  Why would any question of joinder arise on that hypothesis?

MRS CRENNAN:   Well, yes, the Court of Appeal would have power under the Administrative Law Act, section 5, on the issuing of an order nisi to ensure that the persons interested in maintaining the decision were required to show cause.

HIS HONOUR:   Plainly so, but in deciding whether to grant order nisi, why would there be any need at that stage of inquiry to join?

MRS CRENNAN:   There would not be, your Honour.

HIS HONOUR:   If that is so, why, even on all the assumptions we have made, power, appeal as of right, is it appropriate now to join?

MRS CRENNAN:   Well, I have mentioned – perhaps “oddity” is not the best word but for the sake of convenience let me employ that – another oddity in respect of this case is that the primary relief sought in the application for special leave is that this Court should reserve to itself the substantive issue.  Now, at first blush, that looks - - -

HIS HONOUR:   I understand that is the application.

MRS CRENNAN:   Yes.  It does look at first blush – I am happy to concede this – like a rather long bow to draw and I am happy to confess that was my initial reaction to that.  On further examination though there was a practice in England, for example, when there was an appeal to the Court of Appeal in respect of a refusal to grant an order nisi at the District Court level, where the Court of Appeal automatically, without it being explicit in the White Book rules, would reserve to itself the determination of the substantive issue.

HIS HONOUR:   Let it be assumed that that kind of practice was available to the Court of Appeal of Victoria.

MRS CRENNAN:   Yes.

HIS HONOUR:   It may be.  There would inevitably have to be an intermediate step, would there not?

MRS CRENNAN:   Yes, of course.

HIS HONOUR:   Namely, the giving of notice to the added party and the hearing of that added party?

MRS CRENNAN:   That is right.

HIS HONOUR:   So, if we move it up to this Court we would still have to see that intervening step, would we not?

MRS CRENNAN:   Yes.  If this Court reserved to itself the right to determine the substantive issue, post the grant of special leave, or the grant of special leave was cast in that form, yes, there would then be the need, obviously, for the order nisi step to take place, that is to say, to be issued with the relevant parties then, of course, coming in as respondents to the hearing of the - - -

HIS HONOUR:   But have you not, at that point, elided two steps:  special leave; special leave on, perhaps, terms but let us step aside from what those terms may be.  Special leave; argument of the appeal; perhaps, you say, resolution of the appeal in two steps.  Order nisi should go.  Order nisi goes and other party called on; order nisi, you say, made absolute for declaration in this Court.  Many assumptions in there, some of which seem to me to be, at some point, worthy of test, but let us make them all. 

MRS CRENNAN:   Yes.

HIS HONOUR:   Why, at this stage, do we need to join somebody?  Indeed, why, at this stage, can we join someone?

MRS CRENNAN:   It is looking ahead, one would suppose, to the fact that the primary relief sought in relation to the application for special leave is that the Court should reserve to itself the substantive issue, predicated, of course, on the grant of an order nisi.  It is, bearing in mind in that context that that is the primary relief sought, that the party whom the applicant seeks to join has an interest and has always had an interest and has always had the potential for receiving an order nisi to show cause.  Now, had that not been an aspect of the special leave application, I would accept the indications which I think have been given to us by your Honour. 

We would see it this way:  there are two possibilities on the application for special leave.  One is if it were granted it would be limited to consideration of the order nisi issue.  So, that is one possibility.  The other possibility, of course, is that it would not be so limited. 

HIS HONOUR:   Assume general grant of special leave; leave without conditions.  Would you then be barred in any way from inviting the Court, on the hearing of the appeal, to take the course which you say you should be entitled to take?

MRS CRENNAN:   One would not have thought so because you would envisage that what would happen on the hearing of the appeal is that it might, indeed, be done in two steps.  It is a bit like when you have a possible constitutional issue but a primary issue as well.  The second can be put to one side for the moment.  So, one would expect that this Court, for matters of convenience apart from anything else, would hear the order nisi aspect of the appeal even if special leave granted were general.

HIS HONOUR:   And if it did so and if your argument succeeded, then the Court either goes on to hear the matter fully or remits to the Court of Appeal.

MRS CRENNAN:   Yes, that would be a possibility.

HIS HONOUR:   I understand the very real and practical consequences of remitter which are very large.

MRS CRENNAN:   And which lay behind the English practice I have described.

HIS HONOUR:   No doubt, but those would be matters for debate in the Full Court, would they not?

MRS CRENNAN:   Yes.

HIS HONOUR:   And some other members of the Court would, at the same time, be able to express their views.  What, as you understand, troubles me at the moment is many questions about power and the like.  But even if those are overcome, it seems to me at first blush that the step is not necessary nor is it desirable and the failure to take the step does not ultimately bar you from pursuing the course which you say you should be entitled to pursue.

Now, if that analysis is right, query power, neither necessary nor desirable now, and you are not barred, the hill up which you are pushing is looking very steep, is it not?

MRS CRENNAN:   Apart from anything else, I suppose, we have been animated by a consciousness that it is a public law issue.  The original decision was 24 February 1998.  We are, I suppose, bound to concede we are attempting some sort of telescoping.  I am not to ride roughshod over any absence of power, nothing like that.

HIS HONOUR:   No, I understand.

MRS CRENNAN:   But it seems to us, your Honour, it may be sufficient in terms of our concerns, to rely on your Honour’s indication that we would not be shut out.  It seems to us we - - -

HIS HONOUR:   You may rely on it for such good as it will do you, Mrs Crennan.

MRS CRENNAN:   Of course.

HIS HONOUR:   And that may not be much.

MRS CRENNAN:   But to this extent, your Honour, it seems to us it would be open to us, on the hearing of the appeal, in so far as it dealt with the order nisi issues, if we succeed at that point, the responsibility would be on us then to be framing an order or suggesting an order which was directed to the party we are now seeking to join, and one would assume in the normal course, provided we succeed in relation to our argument about the Court of Appeal and the order nisi, it would be made in those terms. 

So, there are two matters I ought to mention.  There is a sense in which your Honour is suggesting to me and we are bound to accept there is a degree of prematurity about this application, explained, of course, by the fact that we have always been keen to have the party interested in maintaining the decision.  Having an opportunity to oppose us, as it were.  But it seems to me inevitably we could not do the appeal in one stage.  One could not contemplate doing it in one stage.

HIS HONOUR:   No.

MRS CRENNAN:   Because there is no circumstances of urgency.  Orders are not made absolute in one hit, if I can put it colloquially, unless there is some element like that.

The second matter I am bound to mention is it certainly troubles us that this Court is not seized with a proceeding in respect of which it has the powers under Order 16 until we reach the stage of special leave being granted either on a limited basis or on a general basis.

HIS HONOUR:   And lurking behind all of these problems, it seems to me, may be real and lively issues about is there a matter?  The events of which your client complains have occurred; the order about which she complains is spent.  Is there, in all of the circumstances, a matter?  Those are questions upon which, it seemed to me, we need not embark today but I do not wish by silence to simply let it slide by.

MRS CRENNAN:   Quite.  No.  Well, for what it is worth, the argument we would develop, obviously, would be that there is a decision of which there is a review under the Administrative Law Act and our relief is limited to a declaration of invalidity, and we would be relying on Re S, which is a recent decision of the Court of Appeal in England, although the facts are somewhat different, and so forth.  I perhaps do not need to develop it.

HIS HONOUR:   Yes.  Concepts of “matter” though are not concepts that trouble the English courts.

MRS CRENNAN:   Of course, the other aspect is we would be relying on some of the dicta in Marion’s Case as well, in relation to there being a matter.  That is to say, because the lack of consent was overridden, in essence, there was an assault.  That is one of the delicate aspects of this matter.

HIS HONOUR:   Yes, it is, and other questions may or may not arise according to a differently framed proceeding.  But, again, at least for the moment, it seems to me, we not only need not but probably ought not to embark on any of those issues.

MRS CRENNAN:   May I have a moment, your Honour, to seek instructions?

HIS HONOUR:   Yes, of course.

MRS CRENNAN:   We have sought some instructions and perhaps the best course is to adjourn this summons for joinder if that were possible.

HIS HONOUR:   To when and to whom?

MRS CRENNAN:   Well, in a sense, we would like to reserve our position. I suppose, thinking it through, if we get special leave in respect of the order nisi aspect - - -

HIS HONOUR:   If you got special leave then there may be altogether different questions arising presumably.

MRS CRENNAN:   Yes.

HIS HONOUR:   Though, then, we may encounter some of the same issues.  The question of power under Order 16 may be a question that goes away.  Look, I am reluctant to adjourn it over because to whom and when are the two immediate questions.

MRS CRENNAN:   Yes. Well, we are, of course, conscious of the prematurity but, on the other hand, there is nothing to preclude us from issuing a fresh summons which may be unnecessary because if the grant of special leave is limited but made in a particular way it would be open to us to achieve the same result as we are seeking under this summons through the mechanism of section 5 of Administrative Law Act and section 37 of the Judiciary Act, and if a summons were needed we could always attend to that.

HIS HONOUR:   Those are choices that, it seems to me, the party may have to make.

MRS CRENNAN:   Actually, it has just been pointed out helpfully by my learned junior who I daresay drafted the summons, that it is very specific in its terms and it is seeking a joinder to the application for special leave.

HIS HONOUR:   Yes, it is.

MRS CRENNAN:   And in the light of the debate, yes, the appropriate order would be other than to adjourn it.  I am sorry, your Honour, I just had not turned my mind to that.  We do, of course, have - - -

HIS HONOUR:   Mr Noonan is here.

MRS CRENNAN:   Mr Noonan is here; was preparing to give such assistance to the Court as he could in - - -

HIS HONOUR:   Such assistance to you, I am sure, Mrs Crennan, as well.  Perhaps if I can hear from him as to his attitude.  If the summons were to be dismissed, what would the attitude of the authority be, Mr Noonan?

MR NOONAN:   Your Honour, the Network contends that the whole appeal process itself is flawed.  What the applicant should have done, it is submitted, once the order of Mr Justice Beach was made, if an appeal process was to be lodged, then any person who they wished to involve at that point in time ought to have been made party to the appeal process.  Now, of course, that has not been done.  What the applicant now seeks to do in this Court is to attack the Court of Appeal judgment in circumstances where the Court of Appeal had no contra dicta before it to have issues ventilated, both as to legal issues and obviously, perhaps, even factual issues.

HIS HONOUR:   Assume for the purposes of debate that I were persuaded of the accuracy of all that and assume further that I were to be minded to dismiss the application for joinder, what then does the authority say, or the Network?

MR NOONAN:   The Network, your Honour, then says it is a matter ultimately for the applicant as to what it intends doing.

HIS HONOUR:   Yes.  Would the Network make any application if I were to dismiss the application?

MR NOONAN:   In terms of a cost issue, your Honour?

HIS HONOUR:   Well, that; perhaps other things, yes.

MR NOONAN:   I am not instructed in relation to that issue but if it was to be dismissed, we have been brought here and I imagine I ought make an application in respect of costs.

HIS HONOUR:   Mrs Crennan, if the application for costs were made, what would you say?  Alternatively, is there anything that you can say?

MRS CRENNAN:   There is not, your Honour.  We served the Network with papers.  We could have proceeded ex parte on the summons, on one view.  We did not do that.  So, we could not really resist an application for costs.

HIS HONOUR:   I think I need not trouble you further then, Mr Noonan, thank you.  I think it may be as well, though, if I record my reasons for arriving at the conclusion.

MRS CRENNAN:   We would be grateful, your Honour, particularly having regard to the fact, as I adverted to, that there were discussions with the Registry and a fair degree of uncertainty about precisely how we should proceed.

HIS HONOUR:   Yes.  Your client’s name, Mrs Crennan, is pronounced “Kumshe”?

MRS CRENNAN:   “Kumshe”, yes, indeed.  Thank you, your Honour, that is correct.

HIS HONOUR:   Yes.  There is nothing more galling for someone than to have their name mangled by a judge, or others.

Sherin Qumsieh has made application for special leave to appeal from the whole of the judgment of the Court of Appeal of Victoria given on 17 September 1998.  She now applies for an order that the North Western Health Care Network be added as a respondent to the application for special leave; that the application for special leave be heard and determined as a matter inter partes; and for consequential orders about service of her application for special leave, summary of argument and draft notice of appeal.

It is necessary to say something of the background to the present application for joinder of party and consequential orders.  In February 1998, the applicant was delivered of a child.  Her condition deteriorated and her doctors advised that she should have a blood transfusion.  To do so was contrary to her religious beliefs and she alleges that in various ways, both before and upon her admission to hospital, she indicated that she did not consent to the administration of blood transfusion.

The applicant’s husband consulted solicitors and, in effect, told them that he wished his wife to be treated by having a blood transfusion.  Application was made to the Guardianship and Administration Board of Victoria and an order made appointing a temporary guardian of the applicant.  That order was made after a hearing at which the applicant’s husband, his solicitor and a solicitor for the Western General Hospital, at which the applicant was being treated, were present.  Whether the Board was told of the applicant’s expressions of her wishes may be a matter of controversy.             With the consent of the applicant’s temporary guardian, the Western General Hospital administered a blood transfusion to the applicant. 

The order for guardianship was temporary and its effect was spent 21 days after it was made.  After the guardianship order was spent, the applicant applied ex parte first to a master and later to a single judge of the Supreme Court of Victoria for an order for review under the Administrative Law Act 1978 (Vic). The application, if granted, would have called on the Guardianship and Administration Board, the applicant’s husband, his solicitor, the solicitor for the Western General Hospital and a number of doctors and nurses of that hospital to show cause why the Board’s decision should not be declared invalid. The application for the order for review was refused.

On 17 September 1998, the Court of Appeal of Victoria dismissed an appeal brought by Sherin Qumsieh from the order of a single judge refusing her application for an order for review.  In giving the reasons of the Court of Appeal for dismissing the appeal, Mr President Winneke described it as “an ex parte appeal”.  It seems, however, that notice of the appeal was given to the Guardianship and Administration Board, but to no other person.  It is against the decision of the Court of Appeal dismissing that appeal that the applicant seeks special leave to appeal to this Court.

Assuming, without deciding, that I would have power to order the joinder of a party to an application for special leave to appeal, there is, in my view, no basis demonstrated for now seeking to add any additional party to the present application. It may be that the hospital in which the blood transfusion was administered or its successor, the North Western Health Care Network, may have some interest in maintaining the order of the Guardianship and Administration Board. But the question that would fall for decision in this Court, if special leave to appeal were to be granted, is whether the Court of Appeal of Victoria was right to dismiss the appeal to that Court, the appeal being constituted in the form in which it was. If the Court of Appeal was right in dismissing the appeal, no question of adding a party would arise. If, on the other hand, the Court of Appeal was wrong to dismiss the appeal, its error would lie in not having concluded that an order under section 3 of the Administrative Law Act should have issued calling on the Board:

and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

And at that stage of the process prescribed by the Administrative Law Act, the stage of granting an order for review, the only question of parties is who is to be named in that order for review.

The applicant contends that she should be able in this Court, if leave were granted, to contend that this Court should proceed not only to consider whether order nisi should have been granted under the Administrative Law Act but also to consider the disposition of the proceeding on return of the order for review directed, among others, to the persons interested in maintaining the order which it is sought to challenge.

I need express no view on whether the Court could or should proceed to this second stage of the procedure contemplated by the Administrative Law Act.  If, as the applicant contends, the Court were to do so, questions of joinder of parties may arise at that stage.  They are, however, not questions which arise at this stage of the proceeding. 

To add a party to an appeal in this Court when that party or its predecessor was not a party to the proceedings below may, on one view of the matter, appear to attempt to invoke the original jurisdiction of this Court against that party rather than any appellate jurisdiction of the Court.  Again, I need express no view about that question of characterisation.  But if it would not be right to add such a person as a party to an appeal, at least in the first instance, there can, in my view, be no warrant for adding that person as a party to the application for special leave to appeal.  Especially is that so given that an application for special leave is no more than a “preliminary procedure” in the Court:  Coulter v The Queen (1988) 164 CLR 350 at 356, per Mason CJ, Wilson and Brennan JJ; see also Collins v The Queen (1975) 133 CLR 120 at 122, per Barwick CJ, Stephen, Mason and Jacobs JJ; Carson v John Fairfax & Sons Limited (1991) 173 CLR 194 at 217 to 218, per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, and the Court does not commence to exercise its appellate jurisdiction until leave is granted: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 643, per McHugh J. For these reasons, the application must be dismissed.

The applicant gave notice of the application to the North Western Health Care Network.  The Network applies for its costs.  Accordingly, the

application being dismissed, the applicant must pay the costs of North Western Health Care Network of and incidental to the application.  I will certify for the attendance of counsel in chambers.

AT 10.10 AM THE MATTER WAS CONCLUDED