VL v Mead Centre, Armadale Mental Health Service

[2011] WASCA 213

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   VL -v- MEAD CENTRE, ARMADALE MENTAL HEALTH SERVICE [2011] WASCA 213

CORAM:   NEWNES JA

MURPHY JA

HEARD:   22 SEPTEMBER 2011

DELIVERED          :   22 SEPTEMBER 2011

PUBLISHED           :  30 SEPTEMBER 2011

FILE NO/S:   CACV 95 of 2011

BETWEEN:   VL

Appellant

AND

MEAD CENTRE, ARMADALE MENTAL HEALTH SERVICE
First Respondent

STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Second Respondent

STATE SOLICITORS OFFICE OF WESTERN AUSTRALIA
Third Respondent

HEALTH DEPARTMENT SOLICITORS OF WESTERN AUSTRALIA
Fourth Respondent

ARNOTT VILLAS, ST BARTHOLOMEWS HOUSE INC
Fifth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ALLANSON J

File No  :CIV 2572 of 2011

Catchwords:

Appeal against refusal to stay proceedings in State Administrative Tribunal - Application for interim relief - No grounds for interim relief sought

Legislation:

Nil

Result:

Interim application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Ms L A Eddy

Second Respondent      :     No appearance

Third Respondent          :     Ms L A Eddy

Fourth Respondent        :     Ms L A Eddy

Fifth Respondent           :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     No appearance

Third Respondent          :     State Solicitor for Western Australia

Fourth Respondent        :     State Solicitor for Western Australia

Fifth Respondent           :     No appearance

Case(s) referred to in judgment(s):

VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 214

Wilson v Metaxas [1989] WAR 285

1. JUDGMENT OF THE COURT:  The appellant has appealed against the dismissal by Allanson J of the appellant's oral application for a stay of proceedings in the State Administrative Tribunal.  The proceedings involved an application by case workers employed by the first respondent for the appointment of a guardian and administrator for the appellant's brother, DV, and to set aside an enduring power of guardianship for DV which had been procured by the appellant and other of DV's siblings.  The application to set aside the enduring power of guardianship was made on the ground that DV lacked the capacity to execute such a document.

2. The appellant has applied for urgent interim relief in the appeal, including a stay of the operation of any orders made by the Tribunal in the proceedings.  On 22 September 2011, we dismissed the application and said we would provide reasons for our decision.  These are the reasons.

Background

1. On 24 August 2011, the appellant applied by originating summons for leave to issue a writ of summons indorsed with a statement of claim. The writ named the appellant and DV as plaintiffs and the respondents as defendants. The application was made after the Principal Registrar had refused to accept the writ for filing, pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA).

2. The application came on for urgent hearing before Allanson J on 25 August 2011.  His Honour noted that there was nothing which appeared to be urgent about the application and there was no affidavit in support of it.  He adjourned it to a date to be fixed so that the appellant could file an affidavit in support.  However, his Honour went on to hear an oral application by the appellant for a stay of the proceedings in the Tribunal, which were listed for hearing on 29 August 2011, and for those proceedings to be transferred to the Supreme Court.

3. Allanson J dismissed the application.  His Honour noted that the Tribunal was exercising a jurisdiction specifically conferred on it by statute and found there was nothing before him which suggested the Tribunal might exceed its jurisdiction or arrive at a decision which was incorrect in law or fact.  He considered that the appropriate course was to allow the Tribunal to proceed to hear the matter, observing that if the decision made by the Tribunal was liable to challenge then a party to those proceedings might, with leave, bring an appeal against the decision.

4. On 29 August 2011, the appellant commenced an appeal against his Honour's decision.  At the same time, the appellant filed an urgent application for interim relief.  The relief sought was as follows:

   1.Order the respondents stop drugging [DV] with chemical compounds.

   2.Order First Respondent stop treating [DV].

   3.The respondents withdraw, dismiss, strikeout applications in the SAT against [DV].

   4.Stay of execution, suspending the enforcement of any SAT orders to revoke family enduring guardianship and attorney documents, and suspending any orders for administration.

   5.Order the [respondents] pay DAMAGES to [DV and the appellant] for trauma caused.

   6.If order three is not granted, remit SAT applications and District Court Action CIVO 1434 of 2011 to the Supreme Court WA, for hearing.

   7.Leave to file and serve writ of summons indorsed with Statement of Claim CIV 2572 of 2011.

   8.Order [respondents] pay costs of $10,000 to [DV and appellant].

5. The hearing in the Tribunal proceeded on 29 August 2011 and the Tribunal delivered its decision on 9 September 2011.  In the result, the Tribunal appointed a guardian and an administrator for DV, and set aside the enduring power of guardianship.  On 14 September 2011, the appellant commenced an appeal against the Tribunal's decision (CACV 107 of 2011).  The appellant also made an urgent interim application in that appeal substantially to the same effect as the interim application in this appeal.  We heard both interim applications together.

Disposition of the application

1. It is evident that the application for interim relief in this appeal serves no useful purpose, at least in relation to grounds 1 ‑ 6 and 8.  On the hearing of the application, the appellant accepted that those grounds covered, in all material respects, the same ground as the application in CACV 107 of 2011 and had been superseded by the latter.  The appellant's affidavit in support of this application did not add anything to her affidavit in CACV 107 of 2011. 

2. We found that the interim application in CACV 107 of 2011 was without foundation and accordingly dismissed it: VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 214. The same result must follow in respect of this application.

3. Insofar as this application relates to the decision of Allanson J to adjourn the application for leave to issue the writ, two things can be said.  First, there is nothing to suggest that there is any urgency which might justify relief on an interim basis.  Secondly, his Honour's decision was an interlocutory decision, for which leave to appeal is required: Supreme Court Act 1935 (WA) s 60(1)(f). To warrant the grant of leave to appeal an appellant must show that the original decision was wrong, or at least attended by sufficient doubt to warrant the grant of leave, and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294.

4. Nothing before us indicates that the decision is attended by any doubt.  There was, as the primary judge found, nothing to indicate that the application was urgent, and it was adjourned to enable the appellant to file a supporting affidavit, without which the application must fail.  Nor would substantial injustice would be done if the decision was not reversed.  It is open to the appellant at any time to apply to relist the application for hearing. 

Conclusion

1. The application is dismissed.