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[2019] VSC 183
Supreme Court of Victoria
2019-03-22
Richards J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Guardianship and administration - Appeal from orders of Victorian Civil and Administrative Tribunal appointing guardian and administrator in respect of first appellant - Whether Tribunal gave adequate reasons for orders - Whether Tribunal's reasons addressed a submission seriously advanced and worthy of consideration - Reasons not adequate - Victorian Civil and Administrative Act 1998 (Vic), ss 117, 148 - Guardianship and Administration Act 1986 (Vic), ss 4(2), 22, 46.
HUMAN RIGHTS - Whether Tribunal gave proper consideration to relevant human rights in making guardianship and administration orders - No proper consideration - Charter of Human Rights and Responsibilities Act 2006, s 38(1) - PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 (Patrick's case) applied.
COSTS - Whether self-represented litigant entitled to claim professional costs - Where litigant legally qualified and admitted to practice but not holding current practising certificate - Chorley exception applies only to a lawyer entitled to practise - Rule in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 applied - No order made for payment of professional costs.
1 LG was born in Italy in 1933. She is now 85 years old. Until December 2017, she lived in her own home in North Coburg with her son, EG. On 4 December 2017, she had a fall at home and dislocated her right shoulder. She was taken by ambulance to the Royal Melbourne Hospital, operated by Melbourne Health, for treatment of her injuries. On 8 December 2017, she was transferred to an aged care ward at the Hospital's Royal Park campus for further assessment and discharge planning.
2 Over the next month or so, conflict arose between EG and Hospital staff as to whether LG could be discharged home. LG wanted to go home, and EG wanted to take her home. However, Hospital staff were concerned whether LG could be adequately cared for at home. She was, at that time, bed bound and needed a high level of assistance with mobility and personal care. LG resisted suggestions that she move to residential aged care. She was insistent in her wish to return home, and believed that she and EG would manage with assistance from visiting nurses. EG maintained that his mother was competent to make her own decision about where she lived. Hospital staff queried her capacity to make that judgment.
3 The conflict between EG and Hospital staff escalated from that point.
4 On 15 January 2018, a social worker employed by Melbourne Health applied to the Victorian Civil and Administrative Tribunal for orders under the Guardianship and Administration Act 1986 (Vic) (Guardianship Act) appointing a guardian and an administrator for LG. The application was supported by a neuropsychological assessment report by Dr Natalie Genardini, a clinical neuropsychologist at the Hospital. Dr Genardini had assessed LG at her bedside on 10 January 2018. Dr Genardini's opinion was that EG 'has a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances'.
5 EG was a party to Melbourne Health's application, in several capacities. First, he was LG's nearest relative and her primary carer.[1] Second, in 2008 LG appointed EG as her enduring guardian. The instrument of appointment authorised EG, if LG became incapable, to exercise the powers of a guardian under the Guardianship Act. Notably, it also required EG to take into account LG's wish to remain in her own home. EG was thus a candidate for appointment as guardian by the Tribunal. Third, LG had appointed EG as her enduring power of attorney. He was also a candidate for appointment as administrator. Appointment of another person as administrator would displace the enduring power of attorney, and so EG was also a party in his capacity as LG's attorney.[2]
6 The Tribunal, constituted by Member Smith, held a bedside hearing at Royal Park on 30 January 2018. The hearing was adjourned to enable the Public Advocate to complete an investigation and report to the Tribunal, and to enable LG, EG and Melbourne Health to negotiate a trial return home for LG. No agreement was reached, however, and a further hearing was scheduled for 6 March 2018. On that day, the Tribunal made a temporary guardianship order, appointing the Public Advocate as limited guardian for LG.
7 In the meantime, EG applied to this Court in LG's name for a writ of habeus corpus directed to Melbourne Health. EG asserted that Melbourne Health was detaining his mother and that her continued detention was unlawful. John Dixon J dismissed that application without adjudication on the merits, in light of the pending application before the Tribunal.[3]
8 The Tribunal, again constituted by Member Smith, heard Melbourne Health's application on 16 April 2018. LG was not present. EG appeared for himself. The Tribunal refused EG's application to appear on LG's behalf, on the basis that he had a conflict of interest. EG vigorously contested Melbourne Health's application, and made several applications of his own. At the conclusion of that hearing, the Tribunal made orders appointing the Public Advocate as limited guardian for LG, and State Trustees Limited as her administrator. The Tribunal gave brief oral reasons for some of these orders, and for other rulings made in the course of the hearing. The Tribunal did not give written reasons for its decision, despite a request made by EG on 30 April 2018.[4]
9 Between April and June 2018, Jimmy Layley, a delegate of the Public Advocate, tried without success to arrange for Hospital staff to assess LG's home environment to determine what support she needed should she return home. Neither LG nor EG gave Mr Layley or Hospital staff access to their home. In June 2018, Mr Layley decided to accept a permanent placement for LG at the Doutta Galla Lynch's Bridge aged care facility in Kensington. LG was discharged from the Hospital's Royal Park campus to Lynch's Bridge on 26 June 2018. She objected to being taken to Lynch's Bridge and EG called the police. Police attended the Hospital but did not intervene, given the Tribunal's orders of 16 April 2018.
10 At the time of the hearing before me, LG was still living at Lynch's Bridge. As LG's administrator, State Trustees paid for her accommodation there. The costs that State Trustees incurred on her behalf are secured by a charge over LG's home in North Coburg. Before me, LG maintained her wish to return home, as soon as possible.
11 LG and EG sought leave to appeal against the Tribunal's orders of 16 April 2018, and later orders dated 29 June 2018 and 1 August 2018. An order of the Tribunal may be appealed to this Court, with leave, on a question of law.[5] Leave to appeal may be granted only if the appeal has a real prospect of success.[6] Because I was satisfied that the appeal should be allowed on several grounds, I granted leave to appeal.
12 I heard the application for leave together with the appeal on 13 March 2019. On 14 March 2019, I made orders granting leave to appeal, allowing the appeal, and setting aside the Tribunal's orders of 16 April 2018. My reasons for making those orders follow.
13 The Tribunal made a detailed order on 16 April 2016, which ran to several pages. The relevant parts of that order are as follows:
Preliminary applications:
(i) [EG] as legal representative for the proposed representative person
[EG] purports to act as legal representative for his mother, the proposed represented person [LG]. [EG] is also appointed as the proposed represented person's enduring guardian and her enduring power of attorney. Those enduring powers are impugned by this application and his powers and duties may be circumscribed if the Tribunal ultimately makes the orders sought. Accordingly [EG] suffers from a conflict of interests in representing the proposed represented person in these proceedings.
[EG] has not complied with directions of this Tribunal [to] obtain the opinion of the Law Institute of Victoria as to whether he has a conflict of interests to so appear.
The Tribunal will allow [EG] to continue as a party in these proceedings subject to the following limitation:
If [EG] continues to assert that he acts for the proposed represented person, the Tribunal will attach no weight upon those assertions and such assertions will not affect the outcome of the hearing. All applications currently before the Tribunal which purport to be applications by the proposed represented person will be treated as applications by [EG].
...
(ii) Section 75 and section 78 applications brought by [EG]
The Tribunal finds that these applications have no tenable basis in fact or law. The applications are dismissed.
(iv) Whether Dr Natalie Genardini should give oral evidence in addition to her report:
The Tribunal finds that Dr Genardini is present and available to give evidence and it will be of assistance to the Tribunal's conduct of the matter for [EG's] questions to be put to her in open proceedings.
(v) Application for referral under the Charter of Human Rights and Responsibilities Act 2006
[EG's] application for a referral under section 33 of the Charter of Human Rights and Responsibilities Act 2006 is denied because the Tribunal does not consider that the question is appropriate for determination by the Supreme Court.
Application for appointment of a guardian and an administrator
The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about her person or circumstances and estate; and needs a guardian and an administrator.
The Tribunal orders that:
to make decisions concerning accommodation
to make decisions concerning medical treatment as defined in the Medical Treatment Planning and Decisions Act 2016
to make decisions concerning access to services
(i) 3.3% in respect of Centrelink or Department of Veterans' Affairs pensions; and
(ii) 6.6% in respect of all other income.
For any services provided to the estate State Trustees Limited or its subsidiary STL Financial Services Limited is entitled to remuneration at a rate not exceeding the amount set in the scale of charges lodged with the Treasurer and published in the Government Gazette.
...
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.
...
Application in relation to enduring power of attorney (financial)
Melbourne Health has applied to the Tribunal for an order revoking the enduring power of attorney given by the donor, [LG], on 11 July 1991 to [EG].
Under s 120(1)(d) of the Powers of Attorney Act 2014 the Tribunal suspends the enduring power of attorney generally until 30 June 2021 or further order except for the purposes of complying with the direction given hereunder:
Direction:
[EG] as attorney, is directed that by 30 April 2018 he shall file with the Tribunal and serve on the administrators State Trustees Limited a copy of the document to which he referred in today's proceedings being an agreement in writing between himself and [LG] signed by both of them shortly after 14 February 2003 to the effect that [LG] would gift to [EG] the majority of any interest she receives from the estate of the late Irma Locher. [EG's] recollection today was that the agreement would transfer all such interest possibly excluding the contents of Irma Locher's property.
Application in relation to enduring guardianship:
Melbourne Health has applied to the Tribunal for an order revoking the enduring power of guardianship given by the appointer, [LG] on 11 July 1991 to [EG].
Under section 120(1)(d) of the Powers of Attorney Act 2014 the Tribunal suspends the enduring power of attorney generally until 30 June 2019 or further order ...
Costs:
Melbourne Health has applied for its costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998.
For reasons delivered orally at the hearing, [EG] is ordered to pay the Standard Costs of Melbourne Health incurred in relation to:
(a) costs thrown away as a result of the adjournment on 3 April 2018
(b) Costs in relation to [EG's] applications under section 75 and 78 of the Act.
The balance of the application for costs is adjourned sine die and will not be relisted unless [EG] unreasonably brings fresh proceedings related to these orders (i.e. all of the above orders) before the expiry of the reassessment dates set out in paragraph 5 above.
...
14 As can be seen from the order, there were numerous issues to be resolved by the Tribunal at the hearing on 16 April 2018. That hearing was recorded and a transcript was prepared for the purposes of this proceeding. It is apparent from the transcript that the hearing was not a straightforward one. Sensibly, the Tribunal member took a structured approach to dealing with the issues, deciding each issue in turn, before moving on to the next.
15 First, the Tribunal dealt with the question of whether EG could appear as LG's representative at the hearing. The Tribunal decided that EG could appear on his own behalf, but not on behalf of his mother. It is apparent from the discussion, and the terms of the order, that the Tribunal considered that EG should not appear for his mother because he had a conflict of interest.[7] The conflict of interest arose from the fact that he was also party to the application in his capacity as enduring power of attorney and enduring guardian for his mother.
16 The next matters considered were the preliminary applications made by EG under ss 75 and 78 of the VCAT Act. Those applications were to the effect that Melbourne Health's application should be dismissed as vexatious and an abuse of process. The basis for the applications was a contention that the two medical reports relied on by Melbourne Health were 'illegal and worthless'. EG submitted that Dr Genardini's report could not be relied on because she had not obtained informed consent from LG before conducting her assessment. He also submitted that Dr Sarah Straw, another doctor employed by Melbourne Health, was not qualified to express an opinion on LG's cognitive state because she was not a 'specialist'. The Tribunal dismissed EG's ss 75 and 78 applications. No reasons were given for this ruling,[8] although it is apparent from her later remarks that the Tribunal considered that both practitioners were qualified and competent and had acted professionally.[9]
17 Then, the Tribunal considered whether LG is a person with a disability and unable, by reason of the disability, to make reasonable judgments in respect of her person or circumstances and her estate. That involved hearing oral evidence from Dr Genardini, who was cross-examined by EG, and brief submissions from EG and Melbourne Health. The Tribunal member gave her decision on these issues in the following terms:[10]
MS SMITH: I'm going to make a determination as to disability and incapacity being two steps of the four I would have to be satisfied before I appoint a guardian. The next step being whether she's in need of a guardian and administrator; the next step being who would be eligible.
[EG]: Right.
MS SMITH: So, for the purpose of clarity in these proceedings today, I'm going to rely on the submissions you have made in various affidavits and documents that you've submitted to the tribunal about the unlawfulness of Dr Genardini's report and the lack of qualification for Dr Straw. And you're relying on Dr Ehrlich's report. And I've said to you before was there anything further you wanted to say that you haven't already said in your written submissions and you said no.
[EG]: No, no. I'm just still confused when I would make the application.
MS SMITH: Well, I'm confused about what your referral application is. But I'm going to make this determination now and then I will hear from you as to what that referral issue is. Okay. Dr Genardini has given evidence twice now. Once before me at the bedside hearing and again today. She has written a report which, on its face, is clear and concise and, on its face, says that [LG] gave consent to the interview and was comfortable during the interview.
On questioning today she was asked a number of times in a number of different ways whether the environment or her mood - [LG's] mood or [LG's] condition and mental and physical health might have impacted on the test results and, I've got to say, Dr Genardini was not significantly tested and on every occasion said that she was still satisfied that the test results she got were sufficient for her to be able to draw a conclusion in the terms that she did in her report. [EG] has, on a number of occasions, referred to statements I made at the bedside hearing to Dr Straw and - well, basically, to the persons gathered generally that a finding of rigidity or stubbornness was not the same as a finding of cognitive impairment and he has placed great store on that.
But I would remind [EG] that that was not a statement that I made a finding about. It was a statement I made - a question, in fact, to those witnesses so that they might elaborate their conclusions, and they did elaborate those conclusions. Given all of the evidence that I've heard over this time I don't think is just a personality trait that [LG] has. I am satisfied that, because of a cognitive impairment, she lacks the ability to make reasonable judgments about personal matters, such as where she lives, what support services she has and what healthcare she has, and I'm satisfied that she lacks capacity to make financial decisions.
I do not accept that Dr Genardini acted in anything other than a professional manner in taking that assessment and I don't accept that there was any deficit in her assessment or reporting. Equally, I don't accept that there's any deficit in Dr Straw's qualifications to give an opinion as to capacity and the opinion of Dr Ehrlich would not be acceptable in guardianship proceedings if it stood alone. Of course, if that was the only report that was available, the tribunal would rely on the presumption of capacity and would accept that report because the presumption would enable the tribunal to do so. But it doesn't stand alone; it's directly contradicted by two expert reports and, as Mr Goldblatt has mentioned a number of times, [EG] has been offered the opportunity to seek an independent assessment of [LG] on a number of occasions and hasn't done so.
So there is no other opinion available. I am not even reluctant to accept Dr Straw's and Dr Genardini's reports because I think they are competent professional reports that reach firm conclusions sufficient to enact the jurisdiction of this tribunal to proceed further to consider whether [LG] needs a guardian and needs an administrator.
18 The Tribunal next considered EG's application under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), for referral of four questions of law for determination by this Court. Two of the four questions related to the evidence of Dr Genardini and Dr Straw. EG's argument was that the fair hearing right in s 24(1) of the Charter required, in this case, strict compliance with the rules of evidence. He submitted that those rules required exclusion of Dr Genardini's report, on the basis that she had not obtained informed consent for her assessment in accordance with the relevant code of ethics. He also submitted that Dr Straw's report should be excluded because she was not competent to conduct a neuropsychological assessment.
But given my finding that I think that none of that amounts to a breach of the code ... and none of it undermines my assessment that this is a professional and competent report, and given that there's also an alternative report, which comes to the same conclusion by an appropriately qualified medical practitioner, why would I refer this to the Supreme Court?
20 The Tribunal then turned to whether LG was in need of a guardian and an administrator. It received information on that subject from:
(a) Mr Layley, to whom the Public Advocate had delegated temporary guardianship of LG;
(b) EG, in relation to his mother's financial affairs, including the estate of his late maternal grandmother, who died in 2003; and
(c) Robert McGirr, a solicitor acting for other parties in an owners corporation dispute involving EG and the deceased estate.
21 The Tribunal's conclusion on the question of need for a guardian and an administrator was:[13]
I would have to say that the evidence [EG] gave himself as to the nature of the estate - [LG's] estate and also the - the fact that there are interests in an estate that after 15 years is still not wound up, but also the question that the applicant has brought, which is that there would be resistance to paying fees unless [LG] has actively said to [EG] she wants to go into an aged care facility. So those really for me have satisfied me in terms of whether she is in need of an administrator, and I was already satisfied that she was in need of a guardian because there is this live question about her accommodation, her services and insertion of a catheter.
22 The next issue for resolution was who should be appointed as guardian and administrator for LG. EG put himself forward for both roles, and the Tribunal considered whether he was eligible for appointment. The Tribunal was not satisfied that he was not in a position of a conflict of interest, and ruled that he was not suitable to be appointed as administrator.[14] As to his suitability to be LG's guardian, the Tribunal found:[15]
The conflict of interest issues are also relevant to appointment as a guardian. But, also, you have said on a number of occasions that unless your mother said she went to aged care - unless your mother says actively that she wants to go to aged care and you won't make that decision, and you have already been guardian and adhered to that issue. Dr Genardini says she lacks insight into her care needs. So if your only decision would be to adhere to your mother's decisions, you're not going to be a suitable guardian.
...
[EG], since January you've been enduring guardian. You've had the opportunity to act as her guardian and to get your mother out of hospital to home, to accept services to assess your home, and to accept services to provide care to her there. You have obstructed everyone in that process. You are not a suitable guardian.
23 That left the Public Advocate as the only nominated guardian, and State Trustees as the only nominated administrator. The Tribunal made both appointments.
24 Unfortunately, there are no written reasons for the Tribunal's orders of 16 April 2018. It is unclear why that is so.
25 EG requested written reasons on 30 April 2018,[16] by email to the Tribunal at humanrights@vcat.vic.gov.au. His email was acknowledged that afternoon by an automated email response that began, 'Thank you for your email, which we will forward to the appropriate area at VCAT'. EG says that he followed up his request for reasons with a phone call to the human rights division of the Tribunal on 30 June 2018, and received confirmation that his email of 30 April 2018 had been forwarded to the appropriate area. None of the respondents was able to shed light on why the Tribunal had not given written reasons, and I was not told of any step taken by a respondent to follow up the request for written reasons.
26 The lack of written reasons in response to this request meant that LG and EG could apply for leave to appeal ten months after the Tribunal made its orders, although the time limit is usually 28 days.[17] Unsurprisingly, the grounds of appeal include several grounds related to the adequacy of the Tribunal's reasons for its orders.
27 The further amended notice of appeal filed on 19 February 2019 identifies the following questions of law on the appeal:
(1) Did the Tribunal err in law by failing to consider and determine the application made pursuant to s 80 of the Victorian Civil and Administrative Tribunal ("VCAT") Act 1998 that the report of Natalie Genardini not be adduced as evidence in proceeding G82670?
(2) Did the Tribunal err in law by its failure to properly consider and determine the application for referral of questions of law pursuant to s 33(1) of the Charter of Human Rights and Responsibilities Act as specified at paragraph 66 of the submissions of 29 March 2018 given that there were four questions for referral and the Tribunal in its orders of 16 April 2018 only dealt with one question (i.e. 'the question') without even specifying which question it was referring to or had attempted to deal with?
(3) Did the Tribunal err in law in relation to the application for referral specified in the previous paragraph by failing to provide any reasons as to why 'the question' (whichever one of the four for referral that may have been) is not appropriate for determination by the Supreme Court?
(4) Did the Tribunal err in law by consequently failing to properly consider and determine whether to refer three of the four remaining questions (whichever ones they may have been) pursuant to s 33(1) of the Charter of Human Rights and Responsibilities Act as specified at paragraph 66 of the submissions of 29 March 2018?
(5) Did the Tribunal err in law by failing to provide written reasons for its final orders of 16 April 2018 when requested to do so by [EG] on 30 April 2018?
(6) Did the Tribunal err in law by failing to give reasons for its orders of 16 April 2018 other than on the issue of costs?
(7) Did the Tribunal err in law by failing to provide adequate reasons as to why the applications brought pursuant to ss 75 and 78 of the VCAT Act had no tenable basis in fact or law especially given that the evidence in the proceeding indicated that Sarah Straw had no relevant qualifications and that Natalie Genardini had not complied with [LG's] human rights?
(8) Did the Tribunal err in law by failing to give proper consideration to [LG's] human rights when exercising its discretion to appoint a limited guardian and unlimited administrator in relation to [LG's] estate on 16 April 2018 and did it further err in law by making such appointments in its orders of 16 April 2018 which were incompatible with [LG's] human rights?
(9) Did the Tribunal err in law by misinterpreting its order of 6 March 2018 and failing to properly analyse the evidence before it in that [EG] was directed to seek an opinion from the Law Institute of Victoria and submit a copy of any response to the Tribunal not to obtain such an opinion and given [EG] did seek such an opinion but obtained no response he could not submit any copy of any response to the Tribunal and furthermore no conflict of interest could arise in relation to the preliminary issues of exclusion and referral to the Supreme Court?
(10) Did the Tribunal err in law by making the orders on 29 June 3018 and 1 August 2018 because such orders were based on the orders of 16 April 2018 which were themselves vitiated by one or other of the various errors of law referred to at (a) to (h) above and furthermore in relation to the orders of 1 August 2018 by erring in law as to the scope of the orders of 16 April 2018?
28 An eleventh question, concerning whether there was a reasonable opportunity for EG to cross-examine the authors of the medical reports relied on by Melbourne Health, was not pressed at the hearing.
29 Questions of law (5) and (6) in the notice of appeal both concern the adequacy of the reasons given by the Tribunal for the orders it made on 16 April 2018.
30 Section 117 of the VCAT Act provides that the Tribunal must give reasons for any order it makes in a proceeding, other than an interim order. Reasons may be given orally, at a hearing. However, if a party requests written reasons within 14 days, the Tribunal must provide written reasons within 45 days of the request.[18] Written reasons must include the Tribunal's findings on material questions of fact.[19]
31 It is an error of law if the Tribunal does not meet its obligation under s 117 to give reasons for a final order.[20] There was no suggestion by any respondent that the Tribunal's orders of 16 April 2018 were interim orders, in respect of which reasons need not have been given under s 117.
32 The Tribunal meets its obligation under s 117 by giving reasons that:[21]
... identify the issues in dispute; deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material on which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion.
If the Tribunal's explanation for its order does not include its findings on material questions of fact, or does not reveal its path of reasoning, the Tribunal has not met its obligation under s 117. Without those things, neither the parties nor the Court can understand the basis on which the Tribunal has reached its decision.[22]
33 This is an unusual appeal from the Tribunal because, although written reasons were requested by EG, none have been provided. I have proceeded on the basis that a failure to give written reasons in accordance with s 117(3), when requested under s 117(2), may not amount to an error of law if the Tribunal otherwise gave adequate oral reasons for its decision. My focus has therefore been on the reasons the Tribunal member gave during the hearing on 16 April 2018, as they appear from the transcript of that hearing.
35 Section 22(1) of the Guardianship Act provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person:
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and
(c) is in need of a guardian.
36 In relation to the third of these criteria, s 22(2) provides that, in determining whether or not a person is in need of a guardian, the Tribunal must consider:
(a) whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person's freedom of decision and action; and
(ab) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the wishes of any nearest relatives or other family members of the proposed represented person; and
(c) the desirability of preserving existing family relationships.
It is notable that, by the time the Tribunal comes to consider these matters, it will already have found that the person has a disability and cannot make reasonable judgments for themselves. The Guardianship Act nevertheless mandates consideration of the person's own wishes, notwithstanding their lack of capacity.
37 In addition, s 22(3) precludes the Tribunal from making an order under s 22(1) 'unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made'. The mandatory considerations set out in s 22(2) and (3) reflect what appears in s 4(2) of the Guardianship Act:
It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that -
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability are promoted; and
(c) the wishes of a person with a disability are wherever possible given effect to.
38 There are equivalent requirements for the appointment of an administrator, under s 46 of the Guardianship Act. The Tribunal may appoint an administrator in respect of a person if it is satisfied that the person:[25]
(a) is a person with a disability;
(b) is unable to make reasonable judgments in respect of the matters relating to all or any part of her or his estate by reason of the disability; and
(c) is in need of an administrator of her or his estate.
39 Mandatory considerations for the Tribunal in determining whether or not to appoint an administrator for a person include:
(a) whether the needs of the person could be met by other means less restrictive of the person's freedom of decision and action;[26]
(b) the wishes of the person concerned;[27] and
(c) whether the order would be in the best interests of the person concerned.[28]
In addition, where the Tribunal makes an order appointing an administrator of a person's estate, the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.[29]
40 'Disability', for the purposes of the Guardianship Act, means 'intellectual impairment, mental disorder, brain injury, physical disability or dementia'.[30]
41 Sections 22(1) and 46(1)(a) impose three separate and cumulative requirements.[31] Whether the person concerned is a person with a disability is only the first of those requirements; it is necessary but not determinative of whether a guardian or administrator should be appointed. The Guardianship Act does not assume that, merely because a person has a disability, they are unable to make reasonable judgments about their person or circumstances, or their estate. That is a separate question to be considered and determined by the Tribunal before it moves to consider the third distinct issue, whether the person is in need of a guardian and an administrator.[32]
42 Despite the absence of written reasons, and the limited reasons given during the hearing, Melbourne Health submitted that the Tribunal gave 'sound oral reasons' and that 'those reasons are adequate'. Counsel for Melbourne Health submitted that I should be able to discern the Tribunal's path of reasoning from a holistic reading of the transcript. Unfortunately, I cannot.
43 The Tribunal determined the questions of disability and inability to make reasonable judgments about relevant matters together, and gave reasons about both matters at the same time. It is apparent that the Tribunal appreciated that these were separate questions.[33]
44 There is no difficulty in discerning the Tribunal's reasoning on the question of disability. The Tribunal accepted the opinions of Dr Genardini and Dr Straw as lawful, professional and competent. I consider later the separate issue of how the Tribunal dealt with EG's objections to their reports.[34]
45 Dr Genardini's report was the most detailed before the Tribunal. Her opinion was:
On neuropsychological assessment, [LG] demonstrated significant cognitive impairment including prominent difficulties with reasoning, understanding concepts, and solving problems. Her thinking was rigid and difficult to shift. She showed adequate attention and language skills and while she could encode new information with repetition, she showed poor retention of the information after a time delay.
The assessment results are suggestive of emerging dementia even in the absence of a clear report from her son of cognitive and functional decline. Her day-to-day function has been primarily limited by her physical disability and she has relied on her son for some time. The cause of her dementia is not clear.
In my opinion, [LG] has a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances. She does not have insight or understanding of her considerable physical impairments and the implications for her ability to be cared for safely at home with only her son's support. ...
46 Dr Straw's opinion was recorded more briefly, on the medical report form used in the Tribunal's Guardianship List. In relation to disability, Dr Straw said:
Significant cognitive impairment (dementia) with executive dysfunction and poor reasoning.
Severe osteoarthritis, particularly affecting hips with significant restriction of mobility, making her effectively bed-bound.
As to LG's ability to make reasonable decisions, Dr Straw's opinion was:
Due to [LG's] cognitive impairment she is unable to understand concepts or apply reasoning to make informed decisions.
She is bed-bound due to her severe osteoarthritis. She requires assistance in all aspects of mobility and personal care. She has no insight into her limitations and is unable to understand when her safety is at risk.
47 The Tribunal preferred the opinions of Dr Genardini and Dr Straw to the report of LG's general practitioner, Dr Erlich. His report was also brief:
I am her GP and have been so for over 15 years.
I have seen her at my clinic approximately 8 times in the past 2 years, the latest being 3/10/2017. Although I have not performed any formal cognitive testing on [LG], I have always found her to be capable of understanding her medical conditions, and risks and benefits of proposed investigations and treatments. Lack of insight into her medical care has never been an issue in our consultations.
48 It is reasonably clear that the basis for the Tribunal's preference for the evidence of Dr Genardini and Dr Straw was that they were better qualified to assess and diagnose cognitive impairment, in particular dementia. I infer that the fact that Dr Genardini had conducted cognitive testing, while Dr Erlich had not, was also significant.
49 However, it is not possible to discern from the transcript that the Tribunal gave separate consideration to the question of LG's ability to make reasonable judgments about relevant matters, as distinct from the question of disability. As mentioned, the Guardianship Act does not assume that a person with a disability is unable to make reasonable judgments - that is a separate determination to be made by the Tribunal, based on the evidence in each case. That evidence extends beyond the medical evidence to the evidence of lay witnesses; the danger of privileging medical evidence over other relevant evidence must be borne steadily in mind by the Tribunal.[35]
50 Here, LG and her son had strenuously asserted that she was able to make reasonable judgments about where she should live and her care arrangements - albeit that those judgments differed from the recommendations of Melbourne Health. They put forward substantial evidence for the Tribunal's consideration on this issue. There was the evidence of LG's long term general practitioner that he had found her to be capable of understanding her medical conditions and making treatment decisions, and had never had an issue with lack of insight. There was some quite detailed evidence from EG about how he had cared for his mother at home before her fall, how he proposed to do so after her discharge from hospital, and her understanding of her physical limitations.[36] And there was LG's own evidence, as follows:[37]
I want to be released from the RMH to enable me to return to my home to live with my son without condition and I have told this to various staff at the RMH since about early January 2018. I also told Member Anita Smith that this is my decision at the last hearing of this proceeding on 30 January 2018.
...
I want to and will organise my continued care in consultation with my son in accordance with what is needed when I return home.
I do not want to go to a nursing home and I have also told this and made this clear to various staff of the RMH.
...
I oppose [the appointment of an independent guardian] as I am capable of making my own decisions in relation to where I live and my health care and all other lifestyle matters ... I also oppose the appointment of an independent administrator in relation to my affairs. I made these latter matters clear when I spoke to Member Anita Smith at the last hearing of this proceeding on 30 January 2018.
...
I understand fully my medical condition including my osteoarthritis which is a condition I have had for about the past twenty-five years and have considered and understand the risks and benefits of my decision to return home to live with my son.
51 In light of this evidence, the Tribunal could not abdicate its decision-making role by simply accepting the opinions of Dr Genardini and Dr Straw as conclusive of the question of capacity. It had to make its own findings of fact on material issues, and explain how it arrived at them.[38]
52 The Tribunal's oral reasons do not refer to the substance of the evidence put forward for LG. There are no findings on material questions of fact such as LG's care needs as at April 2018, whether these needs could be met at home, and whether her insistence on going home rather than into a nursing home was reasonable. Although it is apparent that the Tribunal found that LG could not make reasonable judgments about where to live because of a cognitive impairment, probably dementia, the path of reasoning to this conclusion was not disclosed by what the Tribunal member said during the hearing.
53 In relation to the next issue for determination - whether LG was in need of a guardian and an administrator - I have set out above the matters to which the Tribunal must have regard.[39] There is no indication at all from the transcript that the Tribunal considered whether LG's needs could be met by other means less restrictive of her freedom of decision and action, LG's wish to remain in control of her own affairs, or EG's determination to respect her wishes by continuing to care for her at home. Nor did the Tribunal explain the basis on which it was satisfied that the appointment of a guardian and an administrator was in LG's best interests, despite her very firm view to the contrary.
54 The reasons given for the Tribunal's orders of 16 April 2018 did not meet the standard required by s 117 of the VCAT Act, in a number of respects. This amounted to an error of law, and was one of the grounds on which I allowed the appeal.
55 Questions of law (1) to (4) and (7) all concerned the evidence of Dr Natalie Genardini or Dr Sarah Straw or both.
56 Dr Genardini was the clinical neuropsychologist who assessed LG on 10 January 2018, on whose report Melbourne Health relied in making its application to the Tribunal. She had been employed by Melbourne Health since 2003, and worked in aged care wards and in a dementia diagnosis clinic. Her role included conducting neuropsychology assessments and providing reports to the Tribunal.
57 Dr Straw was a medical practitioner working at the Royal Melbourne Hospital who treated LG during her time in the aged care ward at the Hospital's Royal Park campus. I infer that Dr Straw was at the relevant time a registrar working towards her specialisation, perhaps as a physician.
58 EG objected to the Tribunal receiving and relying upon the evidence of both Dr Genardini and Dr Straw.
59 EG put his argument about Dr Genardini's evidence thus:
(a) Dr Genardini is a registered psychologist and is bound to comply with the Australian Psychological Society Code of Ethics, as adopted by the Psychology Registration Board in 2010.
(b) The Code obliges psychologists to obtain informed consent regarding the psychological services they intend to provide. Clause A.3.3 of the Code provides that psychologists ensure consent is informed by:
(a) explaining the nature and purpose of the procedures they intend using;
...
(e) advising clients that they may participate, may decline to participate, or may withdraw from methods or procedures proposed to them;
...
(h) explaining confidentiality and limits to confidentiality ...
...
(j) providing any other relevant information.
Clause A.3.6 provides that psychologists who work with clients whose capacity to give consent is, or may be, impaired or limited, obtain the consent of people with legal authority to act on behalf of the client, and attempt to obtain the client's consent as far as practically possible.
(c) Dr Genardini did not obtain LG's informed consent to the assessment she conducted on 10 January 2018. In particular, Dr Genardini did not explain that the purpose of the assessment was for use as evidence in an application to the Tribunal to have a guardian and administrator appointed for LG. Nor did she advise LG that she had the right to refuse to undergo the assessment. In other words, Dr Genardini did not 'caution' LG before conducting the assessment.
(d) Nor did EG consent to the assessment that was undertaken. Contrary to his written instruction, the assessment was not conducted by a person independent of Melbourne Health, and was done in EG's absence.
(e) In these circumstances, it was not fair to LG for the Tribunal to receive Dr Genardini's report.
60 EG provided evidence in support of this argument. That evidence included:
(a) The Code;
(b) EG's email to the nurse unit manager of LG's ward, the day before the assessment took place, in which he advised his requirements that any neuropsychological assessment of his mother was to be made in his presence, by a psychologist independent of Melbourne Health;
(c) The nurse unit manager's reply of 9 January 2018 in which she stated that the capacity assessment results were required for the Tribunal application, which was being completed because EG's opinion on LG's care needs differed from the hospital's recommendation.
61 He also cross-examined Dr Genardini on the question of informed consent. The following exchanges are relevant:[40]
Now, did you explain to her that anything that she said could be used in evidence in a VCAT application?---No. I didn't.
You didn't. Right. Now, is it true that you never explained the purpose? Obviously you just said you didn't explain the fact that this could be used as evidence, so you obviously didn't explain the purpose of any so-called assessments?---Well, I believed the purpose of the assessment was to assess her decision-making capacity, and I explained that to her.
Right. But you didn't explain obviously, as you just said, that it could actually be used for another purpose, being the contemplated application which the hospital was contemplating to bring, which is this application?---That's true.
But you didn't specifically indicate that she could refuse and just say, "No. Go away." You didn't say that?---I didn't say that to her.
No. Did you indicate to her that if she undertook the assessment at any time she could stop with the assessment, so in other words if she felt tired, if it was something which - you know, there was something which she didn't like she could actually say to you, "I want to stop this"? You never told her that?---There must have been something I said to indicate that because there were tests that she refused to do. So I think she clearly felt comfortable and empowered to say no because she did.
62 EG used several different vehicles for his argument that it was not fair for the Tribunal to receive Dr Genardini's report:
(a) On 5 March 2018, he made an application under s 80 of the VCAT Act for a direction that the report not be adduced as evidence in the proceeding, on the basis that it was improperly obtained. This application was supported by an affidavit of LG and written submissions.
(b) On 29 March 2018, he made application under s 33 of the Charter for referral of questions of law to the Supreme Court. This was also supported by an affidavit with numerous exhibits and detailed written submissions.
(c) On 13 April 2018, he applied under ss 75 and 78 of the VCAT Act to have Melbourne Health's application struck out as vexatious and an abuse of process.
63 EG put a serious argument to the Tribunal that it would be unfair to LG for it to receive and rely on Dr Genardini's report because, contrary to the Code, the assessment was done without LG's informed consent. In my view, the argument was worthy of consideration.
64 LG was a patient of the Hospital, initially admitted for treatment of her dislocated shoulder. She was bed bound at the time of the assessment, which was conducted at her bedside by a member of the Hospital staff. She had already made clear her wish to return home, contrary to the recommendations of Hospital staff. Melbourne Health's purpose in arranging for the assessment was to obtain evidence for an application to the Tribunal to have a guardian appointed for LG who could override LG's wishes.[42] Melbourne Health disregarded EG's requirement that any assessment be conducted in his presence, by a person independent of Melbourne Health. In those circumstances, there were very real questions whether LG gave informed consent to the assessment and whether Melbourne Health should have been permitted to rely on the report.
65 As has been seen, the Tribunal accepted and relied on Dr Genardini's report. It is clear from the transcript that the Tribunal did not accept that there had been any breach of the Code, or that Dr Genardini had acted other than professionally in undertaking the assessment. What is not clear is how the Tribunal reached that conclusion, given the serious argument that was put that LG did not give informed consent.
66 A failure by the Tribunal to address in its reasons a submission that is seriously advanced and is worthy of consideration may amount to an error of law.[43] This is not a case in which it is possible to infer from the reasons given during the hearing that the Tribunal considered the submission. The strong impression I have from reading the transcript is that the submission was brushed away, without being addressed and determined on its merits. The Tribunal should have given reasons for rejecting the submission, and did not do so. This was an error of law, and another basis on which I allowed the appeal.
67 EG's objections to Dr Straw's report were of a different character. He maintained that she was not qualified to express an opinion about LG's cognitive capacity. He went further and contended that Dr Straw and Melbourne Health had misled the Tribunal about her qualifications.
68 The genesis of this argument appears to have been the medical report form completed by Dr Straw for the Tribunal. The report was in the standard form provided for the Tribunal's Guardianship List. The first question asked under 'Background Information' is:
In what capacity do you know the person?
General Practitioner □
Specialist □ Please specify...........................
69 Dr Straw ticked the 'Specialist' box and specified 'Aged care' as her specialisation.
70 EG provided the Tribunal with a copy of the entry in the Australian Health Practitioners Registration Agency register of practitioners in relation to Dr Straw. It recorded that she had been registered as a medical practitioner since 2008 and that her registration type was general. There was no specialist endorsement noted.
71 EG submitted that Dr Straw was not a neuropsychologist or any other kind of specialist, and was not qualified or competent to assess LG's cognitive capacity. He also submitted that it was misleading and deceptive to represent that she was a specialist, when she was not. Further, he pointed out that Dr Straw had done no testing of LG before giving her opinion. He did not, however, request Dr Straw to attend for cross-examination and did not test the basis for her opinion. His own evidence was that Dr Straw had been treating his mother for most of the time she was at the Royal Park campus.[44]
72 The Tribunal accepted Dr Straw's report as a competent, professional report. It is a necessary inference from this finding that the Tribunal considered that, as a registrar working in the Hospital's aged care ward, Dr Straw had a degree of specialisation beyond that of a general practitioner and was competent to assess for dementia. I also infer that the Tribunal was satisfied that Dr Straw based her opinion on her observations of LG as her patient in the aged care ward. While the Tribunal's reasons on this issue were brief, in my view they were sufficient. No error of law was established in relation to the Tribunal's reliance on Dr Straw's evidence.
73 Question of law (8) identified in the notice of appeal was whether the Tribunal erred in law by failing to give proper consideration to LG's human rights when exercising its discretion to appoint a guardian and an administrator for LG, and by acting incompatibly with LG's human rights by making those appointments.
The Charter and the Tribunal's jurisdiction under the Guardianship Act
Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
75 There is a comprehensive definition of 'public authority' in s 4 of the Charter. The definition includes, in s 4(1)(b), 'an entity established by a statutory provision that has functions of a public nature' but excludes, by s 4(1)(j), 'a court or tribunal except when it is acting in an administrative capacity'.[45] It is not controversial that the Tribunal has functions of a public nature and is a public authority by virtue of s 4(1)(b), unless the exception in s 4(1)(j) applies. It was established in PJB v Melbourne Health (Patrick's case)[46] that, in relation to its jurisdiction under the Guardianship Act, the Tribunal acts in an administrative capacity and the exception in s 4(1)(j) does not apply.[47] The Tribunal is therefore a public authority when dealing with an application under the Guardianship Act for the appointment of a guardian and an administrator.
76 As a public authority, the Tribunal was bound by s 38(1), in making its decision on Melbourne Health's application to appoint a guardian and an administrator for LG, to give proper consideration to relevant human rights. Several of LG's human rights were necessarily engaged by the application: the right to equal protection of the law without discrimination, in s 8(3);[48] the freedom to choose where to live, in s 12;[49] and the right not to have her privacy and home arbitrarily interfered with, in s 13(a).[50] The Public Advocate acknowledged that, 'without a doubt', a guardianship order involves an inhibition of personal autonomy and a restriction on human rights.[51]
77 A number of decisions of this Court have outlined what is required of a public authority in order to discharge its obligation to give proper consideration to relevant rights.[52] Here, the Tribunal was required to seriously turn its mind to the possible impact of the decision on LG's human rights and the implications for her of a guardianship and administration order. It had to identify and balance the competing interests and obligations. While its consideration of LG's human rights did not have to be a sophisticated legal exercise, it did have to be genuine and not formulaic.
78 Although the focus of the Charter is different to that of the Guardianship Act,[53] the analysis required of the Tribunal by ss 4(2), 22 and 46 of the Guardianship Act overlaps to a significant extent with the Tribunal's obligation, under s 38(1) of the Charter, to give proper consideration to relevant rights. Whether the person's needs can be met by means less restrictive of the person's freedom of decision and action involves a proportionality analysis similar to that required by s 7(2) of the Charter. Where the Tribunal has had regard to each of the mandatory considerations in ss 4(2), 22 and 46 of the Guardianship Act, it will be a long way towards having properly considered relevant human rights under s 38(1) of the Charter.
79 A decision of the Tribunal that is unlawful under s 38(1) of the Charter involves an error of law for the purposes of s 148(1) of the VCAT Act.[54]
Did the Tribunal give proper consideration to LG's human rights?
80 Melbourne Health submitted that the Tribunal did 'fully take into account [LG's] human rights'. Asked what indication there was that this had taken place, counsel for Melbourne Health could only assert that the Tribunal was looking at LG's welfare and safety and had made a decision so that she could be properly cared for.
81 This does not come close to proper consideration of LG's human rights. Good intentions are not enough. The Preamble to the Charter starts with the proposition that 'all people are born free and equal in dignity and rights'. Well before the enactment of the Charter, the interference of a guardianship or administration order with personal dignity and autonomy was well understood.[55] So was the risk of paternalism in the guardianship jurisdiction.[56] Subsequently, the human rights implications of such an order were comprehensively canvassed by Bell J in Patrick's case.[57] Section 38(1) of the Charter requires that the restrictions on a person's human rights that will flow from a guardianship or administration order must be considered and justified before any such order is made.
82 The Tribunal's reasons contain no sign at all that the Tribunal turned its mind to the human rights implications of the orders it made.[58] I am satisfied that the Tribunal did not give proper consideration to LG's human rights before making its orders of 16 April 2018. This was an error of law, and was the third basis on which I allowed the appeal.
83 In relation to these grounds of appeal, I was conscious of the need to avoid over-zealous scrutiny,[59] and also of the challenging circumstances in which this and other guardianship applications are dealt with by the Tribunal. As I have said, there is a significant overlap between proper consideration of human rights and the analysis required by the mandatory considerations set out in ss 4(2), 22 and 46 of the Guardianship Act. I may have reached a different conclusion, had I had the benefit of full reasons for the Tribunal's conclusions under the applicable provisions of the Guardianship Act. Unfortunately, that was not the case.
84 In circumstances where the Public Advocate has foreshadowed a further application to the Tribunal, I do not think that I should determine whether the Tribunal's orders were also incompatible with LG's human rights. There was evidence before the Tribunal that might have justified the limitation on LG's human rights that was necessarily involved in appointing a guardian and an administrator for her. It is appropriate to leave that question for future determination by the Tribunal, if and when a further application is made.
85 I can deal more briefly with the other questions of law raised on the appeal.
87 It is the case that the Tribunal did not specifically rule on the s 80 application. It did, however, accept Dr Genardini's evidence, finding that her report was professional and competent.[62] It also refused EG's application under s 33 of the Charter, which raised the same issues about the fairness of relying on Dr Genardini's evidence.[63] It is implicit in these decisions that the Tribunal also decided not to make the directions sought in the s 80 application.
Application to refer questions of law to the Supreme Court under s 33 of the Charter
88 Grounds (2), (3) and (4) in the notice of appeal concerned the correctness of the Tribunal's decision not to refer to this Court four questions of law that EG said arose under the Charter. The first two of those questions concerned the fairness of relying on the evidence of Dr Genardini and Dr Straw. I have found that the Tribunal did not address the substance of the submissions made on this issue, which were worthy of consideration. However, I find no error in the Tribunal's decision not to refer the questions to the Supreme Court. Questions of evidence and procedure are first and foremost a matter for the Tribunal member hearing an application, and there was no reason why these questions could not be ruled on in the course of the hearing of this application. Any question of law arising from the Tribunal's ultimate decision can be the subject of an application for leave to appeal under s 148(1) of the VCAT Act, as has occurred here.
89 The third question concerned whether the Tribunal misunderstood its power to make a referral under s 33 of the Charter, at the initial bedside hearing on 30 January 2018. Whatever may have been the Tribunal's understanding at the first hearing, it is plain that by 16 April 2018, it understood that it had power to make a referral under s 33, but was not persuaded that it should do so. There was no error in the Tribunal's decision not to refer this question.
90 The fourth question was whether the restraint of LG by the Hospital during the duration of the proceeding before the Tribunal, and its refusal to allow her home without conditions, is a breach of the Charter and specifically ss 12, 21(1) and 21(3). I cannot see how this question arose in Melbourne Health's application to the Tribunal here. The Tribunal was not asked to determine whether LG was detained by Melbourne Health or on the lawfulness of any detention. It was not, in my view, a question arising in the proceeding that the Tribunal could have referred under s 33 of the Charter.
Tribunal's ruling that EG could not represent LG
91 Ground (9) concerned the Tribunal's determination that EG could not represent LG at the hearing on 16 April 2018, because it considered that he had a conflict of interest.[64] Melbourne Health was represented before the Tribunal by counsel, and so LG could be represented by a professional advocate or any other person permitted by the Tribunal.[65] EG is legally qualified and is hence a 'professional advocate' for the purposes of the VCAT Act.[66]
92 The starting point for this ground was the Tribunal's direction to EG, made on 6 March 2018, to seek an advisory opinion from the Law Institute of Victoria as to whether the following circumstances give rise to a conflict of interest for a legal practitioner:
[EG] is acting for his mother, [LG], as her legal representative in proceedings where the applicant, Melbourne Health trading as the Royal Melbourne Hospital is seeking the appointment of an independent guardian and an independent administrator.
[EG's] appointment as [LG's] attorney under an enduring power of attorney and his appointment as her enduring guardian under an enduring power of guardianship is impugned by the application, also making him a party to the application, and his powers and duties under such appointments may be circumscribed if the Tribunal ultimately makes the orders sought.
93 EG did write to the Law Institute, but had not received a response by the time of the final hearing. The Tribunal nonetheless determined that he had a conflict of interest with his mother and could not appear on her behalf.[67] The Tribunal ruled that it would give no weight to assertions made by EG that he acted for his mother, and said that any such assertions would not affect the outcome of the hearing. This was despite LG's affidavit stating that she wanted EG to act as her legal representative in the proceeding and had instructed him accordingly.[68]
94 The Tribunal's ruling had the regrettable result that LG was not represented at the hearing on 16 April 2018, at which she was not present. She had, effectively, no voice in matters that vitally concerned her. In these circumstances, it is difficult to see how the Tribunal was able to meet its obligation under s 97 of the VCAT Act, to act fairly and according to the substantial merits of the case, the 'guarantee of natural justice' given by s 98(1) of the VCAT Act,[69] or its obligation to act compatibly with LG's right to a fair hearing, under ss 24(1) and 38(1) of the Charter.
95 It is also difficult to see that there was a conflict of interest. LG had appointed EG as her enduring power of attorney and her enduring guardian. She also wished him to represent her in the proceeding before the Tribunal. As LG's attorney, EG was bound to act in a fiduciary capacity for LG, as her representative, in her best interests and for her benefit.[70] There is a coincidence between those duties and the duties of a legal representative. In each capacity, EG was seeking to act on LG's behalf, to give effect to her express wishes, in accordance with his assessment of her best interests.
96 The appellants did not formulate this ground of appeal in these terms, however, and I did not have the benefit of submissions in relation to the Tribunal's obligation to give LG a fair hearing, or whether EG had any conflict of interest. In those circumstances, I prefer not to express a concluded view on this ground of appeal. The Tribunal may have to determine these matters again, in the context of any fresh application brought by the Public Advocate. In light of my observations, it may consider that the fairer course is to hear from EG as LG's representative and to deal with the substance of the submissions made by him on her behalf.
97 Ground (10) concerned two subsequent orders made by the Tribunal under s 55 of the Guardianship Act, on the application of State Trustees as LG's administrator. Section 55 enables an administrator to apply for the advice of the Tribunal 'upon any matter relating to the scope of the administration order or the exercise of any power by the administrator under the administration order'.
98 On 29 June 2018, Senior Member Coghlan made an order approving the administrator registering a charge over LG's home in North Coburg to secure an advance by way of overdraft to cover LG's aged care costs. On 1 August 2018, Member Smith made a further order under s 55, approving the administrator registering a charge over the property to cover LG's aged care costs (as approved on 29 June 2018) and to cover the legal costs of a Supreme Court application for the removal of executors.
99 State Trustees subsequently registered a charge over LG's property.
100 The primary argument in support of this ground was that, because the orders of 16 April 2018 were vitiated by errors of law, the orders of 29 June 2018 and 1 August 2018 were in turn vitiated by these errors. I cannot accept that argument. The Tribunal's orders of 16 April 2018 were valid and operative until set aside by my orders of 14 March 2019.[71]
101 A subsidiary argument replicated a rather complex submission made by EG in a proceeding that is currently before the Court of Appeal, concerning the removal of EG and LG as executors of LG's late mother's estate. I accept the submission of State Trustees that I need not and should not determine those issues in this proceeding.
102 On 14 March 2019, I made orders granting leave to appeal, allowing the appeal, and setting aside the Tribunal's orders of 16 April 2018, including the costs orders.
103 The Public Advocate foreshadowed making a further application to the Tribunal, for the appointment of a temporary guardian for LG. It relied on an affidavit of Mr Layley, in which he set out his assessment of LG's current care needs and his concerns about her capacity to make reasonable judgments about her living arrangements. Having regard to that material, I stayed my order setting aside the Tribunal's orders for seven days, until 4.00 pm on 21 March 2019.
104 I initially contemplated an order remitting Melbourne Health's application to the Tribunal, differently constituted, to be heard and determined according to law. However, LG is no longer in Melbourne Health's care, and counsel for Melbourne Health advised me that his client would not pursue the application further if it were to be remitted. In those circumstances, and given the application foreshadowed by the Public Advocate, there was no point in remitting Melbourne Health's application.
105 In relation to the cessation of State Trustees' administration of LG's estate, I ordered State Trustees to account to LG for its administration of her estate, along with other transitional orders that reflect the requirements of s 58D of the Guardianship Act.
106 LG and EG also sought an order that State Trustees reimburse LG for the expenses it has incurred on her behalf as her administrator. I declined to make that order. State Trustees incurred those expenses in reliance on the Tribunal's orders of 16 April 2018, in accordance with decisions made by the Public Advocate as guardian, and in performance of its duties as administrator. The default position, under s 67(1) of the Guardianship Act, is that an order setting aside an administration order does not affect the validity of anything done in accordance with the administration order before it was set aside. I could see no reason to depart from the default position in this case. The delay between the orders and the application for leave to appeal was regrettable, but was not State Trustees' doing.
107 The situation is not so clear in relation to legal costs incurred by State Trustees in relation to the proceedings concerning the removal of LG and EG as executors of the deceased estate. The question of who ultimately bears those costs should ideally be resolved in the removal proceedings, currently before the Court of Appeal. However, in case it is not, I reserved liberty to apply on that question, and in relation to the charge over LG's North Coburg property, within 28 days after the removal proceedings are finalised.
108 EG sought an order that the respondents pay his professional costs for acting for himself in this appeal, and in the proceeding before the Tribunal, and sought to have me fix the amount of those costs. I declined to make that order, and gave brief oral reasons for that determination. EG pressed his costs application with some vigour, and I am aware that he has made similar applications in other proceedings. I should therefore explain my reasons for refusing it in more detail.
109 EG appeared in person in the appeal, and before the Tribunal. He is legally qualified, and has been admitted to practice in Victoria. This means that he is an 'Australian lawyer', as a person who has been admitted to the legal profession in this jurisdiction.[72] However, EG does not hold a current practising certificate. As such, he is not an 'Australian legal practitioner' or a 'qualified entity' for the purposes of the Legal Profession Uniform Law.[73] He is prohibited from engaging in legal practice in Victoria.[74]
110 EG submitted that his status as an Australian lawyer entitled him to be recompensed for the legal skill and energy he expended in representing himself, which could be quantified even though he did not have a current practising certificate.
111 There is considerable authority for the principle that a costs order should not be made to reimburse a self-represented litigant for the time they spend preparing for and arguing their case, but is limited to money paid or liabilities incurred for professional legal services.[75] The leading authority is the decision of the High Court in Cachia v Hanes.[76]
113 A narrow exception to this principle exists for a legally-qualified self-represented litigant who holds a current practising certificate. The exception is drawn from The London Scottish Benefit Society v Chorley, Crawford and Chester[79] (Chorley), which was followed by the High Court in Guss v Veenhuizen (No 2)[80] (Guss). The Chorley exception allows a solicitor who acts on their own behalf in litigation to recover their legal costs, as if they had employed a solicitor to do the work.[81] The decision in Guss is similarly limited to a solicitor who is entitled to practice.[82]
114 EG referred to me to Bashour v Australia and New Zealand Banking Group[83] as support for the proposition that a lawyer acting for themselves may be able to obtain professional costs, notwithstanding that they do not have a current practising certificate. The case does not support that proposition. It concerned a self-represented solicitor with a practising certificate,[84] to whom the Chorley exception applied.[85] There was no discussion of the application of the Chorley exception to a lawyer without a practising certificate.
115 Given that EG is not an Australian legal practitioner and is not entitled to practice law in Victoria, he does not fall within the Chorley exception. The principle in Cachia v Hanes applies. There was therefore no basis to order payment of EG's professional costs.
116 In the end, I ordered the respondents to pay the expenses reasonably incurred by the appellants in relation to this proceeding, including for interpreters. I stipulated in the order that these expenses are not to include any amount by way of professional costs for work done by EG in relation to the proceeding.
[1] Guardianship Act, ss 20(a)-(b), 44(a)-(b).
[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), s 117(2).
[9] Transcript 39:24-40, 40:17-18, 40:33, 42:23-26.
[12] Transcript 43:8-12. See also 40:17-18; 40:33; 42:23-26.
[16] Within the 14 day time limit prescribed by VCAT Act, s 117(2).
[17] VCAT Act, s 148(4) provides that if the Tribunal gives oral reasons for making an order and the party then requests it to give written reasons under s 117, the day on which the written reasons are given to the party is deemed to be the day of the order for the purposes of s 148(2), which sets the 28 day time limit.
[18] VCAT Act, s 117(2) and (3). The 45 day period referred to in s 117(3) may be extended by the President of VCAT, who must give reasons for granting the extension.
[20] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110, [240]-[241]; Secretary to the Department of Justice v YEE [2012] VSC 447, [90]; Ferris v State of Victoria [2018] VSCA 240, [10]. See also The Hon Justice Kyrou, 'Adequacy of Reasons' (Conference Paper, Council of Australasian Tribunals Conference, 30 April 2010).
[21] Dimatos v Coombe [2011] VSC 619, [20]. See also Tower Australia Ltd v Filippis [2007] VSC 236, [13]; Caruso v Kite [2008] VSC 207, [32]; Burgess v McGarvie [2013] VSCA 142, [65];
[22] Berbers v Transport Accident Commission [2002] VSC 211, [25]; Secretary to the Department of Treasury and Finance v Dalla Riva [2007] VSCA 11; (2007) 26 VAR 96, [23].
[23] Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] (Ashley JA), [19]-[22] (Redlich JA).
[24] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[30] Guardianship Act, s 3(1), definition of 'disability'.
[31] XYZ v State Trustees Ltd [2006] VSC 444, [44] (XYZ).
[33] Transcript 38:28-29: 'I'm going to make a determination as to disability and incapacity being two steps of the four I would have to be satisfied before I appoint a guardian.'
[36] Affidavit of EG dated 28 January 2018, [17], [19]-[20], [45]-[46], [48], [59]-[64].
[37] Affidavit of LG dated 3 March 2018, [7], [11]-[12], [14], [16].
[42] This purpose was apparent from the email dated 9 January 2018 from the nurse unit manager of LG's ward to EG: 'As per our conversation yesterday, we will go ahead with a Neuropsychologist (Melbourne Health Employee) capacity assessment of your mum with an Italian interpreter. ... [We] will require the capacity assessment results for our VCAT application. The VCAT application is being completed as your opinion on [LG's] care needs differ to our (hospital) recommendation, which we are concerned about.'
[43] XYZ, [42]; Aitken v State of Victoria [2013] VSCA 28; (2013) 46 VR 676, [37].
[44] Affidavit of EG dated 28 January 2018, [43].
[47] Patrick's case, [123]-[129].
[51] Transcript, 13 March 2019, 97:5-16.
[52] Castles v Secretary to the Department of Justice (2010) 28 VR 141, [185]-[186] (Castles); Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; (2015) 48 VR 129, [299] (Tate JA); De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111; (2016) 48 VR 647, [139]-[142]; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, [220]-[225].
[54] Patrick's case, [302], [360].
[55] XYZ, [20], [26], [27], citing Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902, McDonald v Guardianship and Administration Board [1993] VicRp 36; [1993] 1 VR 521, and Daynes v Public Advocate [2005] VSC 485.
[57] Patrick's case, [41]-[96], [329]-[333].
[58] Cf Certain Children v Minister for Families and Children [2016] VSC 796; (2016) 51 VR 473, [202].
[60] Application for directions hearing or orders dated 5 March 2018, with supporting affidavit of LG dated 3 March 2018 and written submissions of EG dated 5 March 2018.
[65] VCAT Act, s 62(1)(b)(iii), s 62(2)(d).
[66] VCAT Act, s 62(8). I am not aware of any circumstance that would disqualify EG from being a professional advocate, under s 62(9).
[68] Affidavit of LG dated 3 March 2018, [13].
[69] Herald & Weekly Times Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7; (2006) 24 VAR 174, [35] (Maxwell P, Eames and Nettle JJA agreeing).
[70] See, eg, GE Dal Pont, Powers of Attorney (LexisNexis Butterworths, 2nd ed, 2015), 5-6, 8-9, 208-212. See also Powers of Attorney Act 2014 (Vic), s 21.
[72] Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1 (Legal Profession Uniform Law), s 6 - definition of 'Australian lawyer'.
[75] See, eg, Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 (Cachia v Hanes), 410-415; Willing v Hollobone (1972) 3 SASR 532, 533-535 (Bray CJ); Burridge v Chief Magistrate of the Magistrates' Court of the Australian Capital Territory (No 3) [2018] ACTCA 63, [8]; Dalgety Australia Operations Ltd v FF Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75, 88-92 (Bollen J). See also, GE Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018), 181-186.
[77] Cachia v Hanes, 409, 413-414 (Mason CJ, Brennan, Deane, Dawson, McHugh JJ). See also, GE Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018), 171 and 181.
[78] Cachia v Hanes, 410-411 (Mason CJ, Brennan, Deane, Dawson, McHugh JJ).
[81] This is subject to the restriction that no costs which are really unnecessary - such as instructions and attendances - can be recovered: Chorley, 876 (Brett MR).
[82] Guss, 51 (Gibbs ACJ, Jacobs, Aickin JJ). See also, Islam v Director-General, Justice and Community Safety Directorate [2018] ACTCA 41, [9] (Mossop J).
[83] [2017] FCA 163 (Bashour).
LG
Melbourne Health [2019] VSC 183
(2011) 39 VR 373
(1994) 179 CLR 403
(2009) 23 VR 110
(1993) 43 FCR 280
(1996) 185 CLR 259
(2013) 46 VR 676
(2010) 28 VR 141
(2015) 48 VR 129
(2016) 48 VR 647
(2017) 52 VR 441
(2016) 51 VR 473
(1972) 3 SASR 532
(1988) 49 SASR 75
(1976) 136 CLR 47