Sherman v Pearce

[2011] VSC 525

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 3827

PETER SHERMAN	Plaintiff
v
COLLEEN PEARCE FTL JUDGE AND PAPALEO PTY LTD VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First defendant Second defendant Third defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2011
DATE OF JUDGMENT:	20 October 2011
CASE MAY BE CITED AS:	Sherman v Pearce
MEDIUM NEUTRAL CITATION:	[2011] VSC 525

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JUDICIAL REVIEW AND APPEALS – decisions of Victorian Civil and Administrative Tribunal under Guardianship and Administration Act 1986 – application for judicial review – Court of Appeal dismissal of separate application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – on that ground, associate judge dismisses application for judicial review as abuse of process – reasons for decision showing no detailed comparison of grounds of proposed appeal and application for judicial review – appeal to judge of Trial Division – defendants not appearing to support decision of associate judge – defendants not filing material explaining decision of associate judge – appeal allowed – Supreme Court (General Civil Procedure) Rules 2006, r 77.06.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In person
For the first defendant	No appearance
For the second defendant	No appearance
For the third defendant	No appearance

HIS HONOUR:

1. By a notice of appeal dated 3 October 2011, Peter Sherman has appealed against the order of Daly AsJ dated 27 September 2011 dismissing his application for judicial review as an abuse of process and ordering him to pay the defendants’ costs of the proceeding.  That application for judicial review was issued by way of originating motion dated 22 July 2011 against Colleen Pearce, who is the public advocate under the Guardianship and Administration Act 1986 and the appointed guardian of the represented person, Mr Sherman’s father, FTL Judge & Papaleo Pty Ltd, which is an administrator appointed with respect to the affairs of Mr Sherman’s father under that Act, and the Victorian Civil and Administrative Tribunal, which (on 25 May 2011) made the decisions the subject of the application for judicial review. 

1. It is clear from the terms of the originating motion that the application which Mr Sherman made is an application for judicial review of the decisions of the tribunal under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. 

1. On the day concerned, Daly AsJ was conducting a directions hearing in Mr Sherman’s application for judicial review upon referral by Macaulay J.  His Honour also referred to the associate justice the administrator’s oral application for the dismissal of the application for judicial review.  It was that application which her Honour upheld and from which Mr Sherman now appeals.

1. Short reasons for decision of Daly AsJ are recorded in the ‘other matters’ section of her order. Her Honour said she dismissed Mr Sherman’s application for judicial review because it challenged the lawfulness of decisions of the tribunal which had been the subject of a separate application for leave to appeal which he had brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998.  That application for leave to appeal was dismissed by the Court of Appeal constituted by Mandie and Bongiorno JJA on 14 September 2011 because grounds of the proposed appeal were not arguable.  Daly AsJ also said the separate application for judicial review was ‘another attempt to impugn orders made by VCAT on 21 July 2010, a proceeding which also stands dismissed.  As such, the continuation of this proceeding is an abuse of process.’   

1. The public advocate and the administrator have elected not to appear in the appeal proceeding before me, even though it was the administrator’s application (supported by the public advocate) which led to the making of the dismissal order which is here being appealed.  Quite properly, the tribunal does not usually appear in such proceedings and has not in this proceeding.  It will abide by the order of the court.

1. The principal legal officer of the public advocate has written to the court adopting written submissions which have been previously filed on behalf of the administrator. In his letter, the principal legal officer has expressed opposition to the grant of leave to appeal to Mr Sherman. Under r 77.06(1) of the Supreme Court (General Civil Procedure) Rules 2005, an appeal of this nature is by right and not by leave.  Moreover, an appeal of this nature is conducted by way of hearing de novo, so that I must make up my own mind about the matters in issue and not just determine whether the associate judge made an error: r 77.06(7).  In fairness to public advocate, I have assumed that she (and the administrator) generally opposes Mr Sherman’s appeal.  However, neither the public advocate nor the administrator has filed any affidavits in opposition to those filed by Mr Sherman.  The court’s evidence of what has occurred must therefore be based on Mr Sherman’s material and the documents on the court file, particularly the reasons for decision in the order of the associate justice.  There is no transcript of the proceedings before her Honour on that file and none has been provided by Mr Sherman or the defendants.

1. On the material before me, Daly AsJ dismissed Mr Sherman’s application for judicial review of the tribunal’s decisions purely on the basis that leave under s 148 of the Victorian Civil and Administrative Tribunal Act had been refused by the Court of Appeal for the proposed appeal against the same decisions.  That appears to have been the ground of the administrator’s application for dismissal.  With respect, that is not a sufficient basis on which to dismiss an application for judicial review as an abuse of process.

1. An application for judicial review is not the same proceeding as an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act.  An application for judicial review is allowed on the well-understood administrative law grounds (which include but are not confined to errors of law) while the statutory appeal is confined to questions of law.  Mr Sherman was not precluded from issuing both an application for judicial review and an application for leave to appeal.  He was liable to have the application for judicial review struck out on a discretionary basis by reason of having issued the statutory appeal.  That did not happen because he was refused leave to appeal.  He was also liable to have the application for judicial review struck out because it had no reasonable prospects of success.  That has not happened because no such application was made.  Rather, on the administrator’s application it was dismissed as an abuse of process because the leave to appeal application had been dismissed.  In my view and with respect, the application for judicial review should not have been dismissed on that ground.

1. The decision of the Court of Appeal refusing leave to appeal contains (with respect) a careful consideration of the proposed grounds of appeal.  There is nothing before me indicating that this kind of examination was carried out in relation to the application for judicial review.  An application for judicial review which is based on exactly or substantially the same grounds as an application for leave to appeal which had been dismissed as having no reasonable prospects of success might be liable to dismissal as an abuse of process.  On the material before me, I cannot see that this should happen here (see further below).  The defendants have not chosen to appear before the court to defend the order of the associate justice on this or any other basis.  The written submissions previously filed on behalf of the administrator are very general in nature.  Those submissions do not examine and compare the issues in the two proceedings in detail.  Such an examination and comparison would be necessary before the outcome of the application for dismissal of the application for judicial review as an abuse of process could be made to follow the result of the dismissed application for leave to appeal.

1. Doing the best I can with the limited materials on the court file and in the absence of assistance from the defendants, I have compared the grounds of the notice of appeal dated 22 June 2011 for which leave to appeal was refused, as set out in an exhibit to an affidavit in this proceeding and discussed in the judgment of Mandie and Bongiorno JJA.  All I can do is make that comparison by reference to the text of the grounds in the notice of appeal and the application for judicial review, taking into account the judgment of Mandie and Bongiorno JJA, the submissions made on behalf of the administrator and the reasons for decision of Daly AsJ.  On that basis I must conclude that the grounds of the two proceedings are not the same and the judicial review application should not be dismissed as an abuse of process because leave to commence the statutory appeal was refused. 

1. I will therefore uphold the appeal and dismiss the orders of Daly AsJ.  If the public advocate and the administrator wish to have Mr Sherman’s application for judicial review dismissed or struck out because it has no reasonable prospects of success, they should make such an application and then provide detailed submissions in relation to the grounds relied on in the application for judicial review, as would usually be expected with applications for dismissal of that nature.

1. Mr Sherman also relied on Daly AsJ going ahead with the directions hearing in his absence despite him not attending by reason of ill-health and so notifying the court on the morning of the hearing.  He sought an adjournment of the hearing on that basis.  Her Honour declined to grant the application for an adjournment. It is unnecessary for me to deal with this ground. 

1. Accordingly, there will be orders upholding the appeal and setting aside the orders of the associate justice. 

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