//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VCAT 1343
procedural. Application for Review dismissed by the Tribunal on its own motion under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 as an abuse of process (para 36).
The mother filed a late VCAT application in September 2003 to review a Department decision from January 2003 placing her child in permanent care. The same decision had already been reviewed and affirmed in separate VCAT proceedings brought by the father, and orders refusing the mother's joinder had been made. The Tribunal found the mother's application to be out of time and an attempt to re-litigate matters already determined. Acting on its own initiative under section 75 of the VCAT Act, the Tribunal dismissed the application as an abuse of process.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,831 words · generated 19/07/2026
This is an in-chambers VCAT decision by Senior Member B. Steele dismissing, on the Tribunal's own motion, an application for review by Joanne Louise Guziak concerning a Department of Human Services case-plan decision that her daughter be placed in permanent care. The applicant lodged her application on 10 September 2003, nominating 17 January 2003 as the date of the decision to be reviewed (paras 1, 3, 8). Section 122(2) of the Children and Young Person's Act 1989 requires review applications to be made within 28 days of the decision (or, if reasons are requested, within 28 days after the statement of reasons is given), so the applicant's filing was plainly outside the statutory period (paras 9-12).
2 cited instruments linked from this judgment.
There had been another VCAT proceeding concerning the same Department decision, G303/2003, initiated by the child's father, Phillip Micallef. That application was filed on 6 March 2003 and progressed to a hearing before Member Davis on 8–10 September 2003. In the course of those proceedings, orders were made that Ms Guziak be joined and that she file statements by set dates (paras 15-16), but later orders dismissed her application to be a party and ultimately Member Davis affirmed the Department's decision on 10 September 2003, refusing the mother's oral applications to be reinstated as a party (paras 17-20). By the time Senior Member Steele considered Ms Guziak's new application the same decision had been the subject of a full Tribunal review that had affirmed the Department's case-plan decision (para 21).
Senior Member Steele concluded that the new application was an abuse of process: it was both out of time and attempted to re-agitate issues already determined by the Tribunal. On that basis, exercising the Tribunal's summary powers in section 75 of the VCAT Act, the Tribunal dismissed the application on its own motion (paras 4-6, 14, 22-36). The formal order records dismissal under s75 (para 36).
Two principal strands of reasoning determined the outcome.
Timeliness and statutory limits: The Tribunal applied section 122(2) CYPA which prescribes a 28-day limit for review applications (paras 9-12). In the absence of evidence that the applicant had requested a statement of reasons within the statutory 28-day period (which would have extended the time available), the application filed on 10 September 2003 was indisputably out of time (paras 10-13). The Tribunal observed that the principal registrar could have rejected the application under s71 VCAT Act as lodged after the expiry of the statutory period (paras 7, 14). Absent any material to explain or excuse the lateness, the application was vulnerable to summary disposal.
Abuse of process and re-litigation: The Tribunal emphasised that VCAT's review function under s51 places the Tribunal, when it reviews, effectively in the shoes of the original decision-maker (para 26, citing Golem v Transport Accident Commission [2002] VCAT 319 at para 27). Because Member Davis had already conducted a hearing and affirmed the Department's decision, the matter had as a practical and substantive matter been determined (paras 21, 26-29). The Tribunal applied well-established principles against re-litigation and repeated applications, referring to persuasive authorities (Russo v Kogarah Municipal Council and Rippon v Chilcotin Pty Ltd) that treat multiple applications re-agitating the same issues as an abuse of process (paras 30-31). The Tribunal also treated the applicant's attempt to re-litigate her prior unsuccessful application to be joined as an abuse of process (paras 31-33). Applying the Norman v Australian Red Cross Society standard for dismissing hopeless proceedings under s75, the Tribunal found the application bound to fail and summarily dismissed it (para 34).
Because both the timeliness problem and the re-litigation/joinder issues pointed to a clearly unsustainable proceeding, the Tribunal used its summary power under s75 on its own initiative to dismiss the matter (paras 4-6, 36).
Before this decision, the governing statutory framework was settled: the Children and Young Person's Act prescribes time limits for seeking review of case-plan decisions (s122), and the VCAT Act grants the registrar and Tribunal powers to reject late applications (s71) and to summarily dismiss proceedings that are frivolous, vexatious, or an abuse of process (s75). Section 51 establishes the Tribunal's broad review functions, including standing in place of the decision-maker.
This decision applies those statutory provisions to the concrete situation of a child-protection case-plan review: it affirms that
After this decision, practitioners should treat late applications that re-litigate matters already the subject of Tribunal determination as vulnerable to immediate dismissal; the decision reinforces the Tribunal's readiness to exercise its own-initiative summary powers to protect finality and prevent re-litigation.
Statutory power to dismiss (para 5):
Timeliness application (paras 8-13):
Tribunal acting as decision-maker on review (para 26-27):
Re-litigation as abuse (paras 30-31):
Standard for summary dismissal (para 34):
This decision is directly engaged where:
In these fact patterns, VCAT may properly exercise s75 to strike out or dismiss the proceeding summarily.
This decision itself relies on earlier authorities. It applies established principles rather than creating new law: it cites Golem v Transport Accident Commission for the proposition the Tribunal stands in the shoes of the decision-maker on review (para 27), and cites Russo and Rippon as persuasive authority for the abuse-of-process principle in the context of repeated or new litigations on the same question (paras 30-31). It follows the Norman standard on when s75 dismissal is appropriate (para 34). The judgment is therefore consistent with prior Tribunal and appellate authority and should be treated as an application of those well-known principles to child-protection review practice.
Practitioners should expect that later Tribunal decisions will treat this judgment as a straightforward application of the statutory scheme governing time limits and the Tribunal's summary powers; it reinforces the established approach to finality, timeliness, and prevention of re-litigation at Tribunal level.
Conclusion: Guziak v Department of Human Services [2003] VCAT 1343 is a compact application of the statutory time limits in the Children and Young Person's Act and the Tribunal's summary powers under the VCAT Act to dismiss an out-of-time, repetitive application that sought to re-open matters already determined by the Tribunal. The decision is a clear reminder of VCAT's intolerance of re-litigation and the need to comply with statutory deadlines when seeking administrative review.
The Application for Review is dismissed, on the Tribunal's own motion, under section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
1. Sometime on 10 September 2003, the registry of this Tribunal received an application from Joanne Louise Guziak for review of a decision made under section 120 of the Children and Young Persons Act 1989 by the Secretary, Department of Human Services ("the Department").
2. The decision in question was a case plan decision that Ms Guziak's daughter be placed in permanent care.
3. That decision was made (or finally internally reviewed at the Department) on 7 January 2003.
4. For a number of reasons, set out below, the Tribunal, of its own motion, deals with the application of Joanne Louise Guziak summarily , pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
5. Section 75 relevantly provides as follows:
"(1)At any time, the Tribunal may make an order summarily dismissing or striking out all,
or any part, of a proceeding that, in its opinion -
(a ) is frivolous, vexatious, misconceived or lacking in substance; or
(4) An order under sub-section (1) or (2) may be made on the application of a party or on
6. In this matter, no one has applied under sub-section 75(4), the Tribunal is dealing with the application for review of its own motion.
7. If an application is made to the Tribunal after the expiry of the period specified in the enabling enactment, the Tribunal may order that it be rejected, under section 71 of the Victorian Civil and Administrative Tribunal Act 1998. That section relevantly provides:
(1) Unless otherwise provided for in the rules, the principal registrar may reject an application that -
(a) is made by a person not entitled to make it; or
(b) is lodged after the expiry of the period specified in the enabling enactment; or
(c) does not otherwise comply with this Act, the regulations or the rules.
(2) If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.
(3) If the principal registrar rejects an application, he or she must inform the applicant of the right of referral under sub-section (2).
(4) No fee is payable for a referral under sub-section (2).
(5) On a referral under sub-section (2), the Tribunal must review the rejection and may-
(b) order the principal registrar to accept the application.
(6) Instead of rejecting an application under sub-section (1), the principal registrar may refer it to the Tribunal.
(7) On a referral under sub-section (6), the Tribunal may order that the application be rejected if it is an application referred to in sub-section (1)(a), (b) or (c)."
8. In the Application for Review filed on 10 September 2003, the Applicant nominates 17 January 2003 as the date of the decision to be reviewed.
9. In reviewing administrative decisions, this Tribunal has only the jurisdiction given it by statute, usually the Act under which t he decision was made. In this case, the Tribunal's jurisdiction comes from section 122 of the Children and Young Person's Act 1989, which relevantly provides:
"(1) A child or a child's parent may apply to the Victorian Civil and Administrative Tribunal for review of -
(a) a decision contained in a case plan prepared in respect of the child under section 120 or any other decision made by the Secretary concerning the child; or
(2) An application for review must be made within 28 days after the later of
(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given."
10. September 10 2003, the date of this Application, is well outside the 28 days allowed by sub-section (2)(a) for the Application to be made. Twenty-eight days after 17 January 2003 would have expired by 15 February 2003.
11. Had the Applicant requested a statement of reasons from the decision-maker, as provided for by section 45 of the Victorian Civil and Administrative Tribunal Act 1998, then the Application for Review could have been made up to 28 days after the reasons were provided. However there is no indication available to me that a statement of reasons was requested. According to section 45(2) of the Victorian Civil and Administrative Tribunal Act 1998, the reasons must be requested within 28 days after the day the decision was made.
12. Then, under section 46(1) of that Act, the decision-maker must provide a written statement of reasons within 28 days. Supposing the Applicant had requested a statement of reasons and allowing the maximum time available for the request to be made, reasons to be provided and the Application for Review made, the time available after 17 January 2003 for the Applicant to make her application seems to be 3 times 28 days. In that situation which has not occurred, the application would still be well beyond the time allowed by Section 122(2)(b) of the Children and Young Person's Act 1989 for review applications.
13. It appears that no request for reasons was made by the Applicant. It is possible though that a request was made and not dealt with by the Department. It is therefore possible the Applicant could produce evidence that her application is not out of time.
14. Without such evidence, or rather the indication that it could be produced, I consider the Application could have been rejected under Section 71 of the Victorian Civil and Administrative Tribunal Act 1998. It has not been referred to me by the registrar under section 71(6), so that course is not open to me. However, I also consider an application so out of the allowed time to be vexatious, misconceived or otherwise an abuse of process and open to dismissal under section 75 of the same Act. If I am incorrect in that view, there are also other grounds on which the application should not proceed.
15. I have before me the Tribunal's registry file in an application by Phillip Micallef for review of the same decision made by the Department on 17 January 2003, VCAT Reference G303/2003. That Application was filed on 6 March 2003. On 11 July 2003, at a Directions hearing, orders were made including the joinder of Joanne Louise Guziak to the application. Ms Guziak does not seem to have been present at the directions hearing but there is on file a letter from her dated 25 June 2003, saying she is the mother of the child about whom the Department's decision was made and asking to be joined to the Application.
"3. Ms Guziak is to file and serve a copy of her statement and statements of any witnesses on whom she intends to rely no later than 22 July 2003."
17. I can see no such statement from Ms Guziak on the file. In any event, the next orders of the Tribunal were made on 29 August 2003 following a compulsory conference. Ms Guziak does not seem to have been present at the conference. The orders made that day confirmed the hearing date and, most relevantly, included the following.
18. Next, the hearing of Mr Micallef's Application for review took place on 8, 9 and 10 September 2003 before Member Davis. On 8 September, Member Davis made the following order
"Joanne Louise Guziak has leave to withdrew her oral application made this day to be reinstated as a party to the proceeding and the application is withdrawn."
19. On 10 September, Member Davis made a further order regarding Ms Guziak.
"Joanne Louse Guziak's oral application made this day to be reinstated as a party to the proceeding is dismissed."
20. Also on 10 September, Member Davis made a final order affirming the decision of the Department of Human Services.
21. There is no information before me to indicate whether Ms Guziak's new Application for Review, which I am now considering, was made before Member Davis's final order or after it. Logically it appears the Application I am now considering would have been made after Member Davis's order dismissing Ms Guziak's oral application to be re-instated. I have no particular evidence about that though. Whether the Applicant was attempting to make an application to review a decision being reviewed or which had just been reviewed by Member Davis is not material to my considerations here. By the time Ms Guziak's new application came to me for consideration, Member Davis had made an order affirming the Department's decision.
22. In my view it would be an abuse of process for this application for review to proceed.
23. First, the application is an abuse of process in that it seeks to review a decision already reviewed by Member Davis at the hearing held from 8 to 10 September 2003.
24. The decision which was then reviewed and affirmed by Member Davis concerns case planning for a child. The Applicant in that matter was Phillip Micallef, the child's father. In the application before me, the Applicant is the child's mother.
25. The Children and Young Person's Act 1989 sets out the principles for case planning decisions. Section 119 relevantly provides:
(1) Decisions made by the Secretary as part of the case planning process must, as far as possible, be made according to the following principles -
(a) the welfare and interests of the child must be given paramount importance;
(b) if the child is not living with his or her family, a primary goal is to reunite the child with his or her family if that is for the welfare and in the interests of the child;
(c) when considering the welfare and interests of the child, due consideration must be given to immediate and long-term effects of decisions on the welfare and interests of the child and on the maintenance of the family relationships of the child;
(d) any decisions made to protect the safety and well-being of the child must not be more than sufficient to achieve this;
(e) the child (except if his or her participation would be detrimental to his or her safety or well-being) and the family o the child (except where its participation would be detrimental to the safety or well-being of the child) must be encouraged and (through consultation and discussion) given adequate opportunity to participate fully in the case planning process and must be given a copy of any proposed case plan and sufficient notice of any meeting proposed t o be held;
(f) the child and the family of the child must be provided with the opportunity and assistance to involve other persons to assist them to participate fully in the case planning process in accordance with paragraph (e);
(g) the case planning process must be conducted in such a way that the persons involved are able to understand it;
(h) the case planning process must take into account the views of all persons who are directly involved;
(i) decisions are to be reached by collaboration and consensus;
(j) decisions are to be made with as much speed as a proper consideration of the case permits;
(k) if a person attending meetings occurring as part of the case planning process has difficulty in communicating in the English language, an interpreter must be present;
(l) if meetings are held as part of the case planning process and the child comes from an ethnic background, a member of the appropriate ethnic community who is chosen or agreed to by the child or by his or her parent may attend.
26. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 sets out the functions of this Tribunal when it reviews a decision within its jurisdiction. It provides:
"(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling
(c) has any functions conferred on the Tribunal by or under this Act, the
(2) In determining a proceeding for review of a decision the Tribunal may, by order-
(c) set aside the decision under review and make another decision in substitution
(d) set aside the decision under review and remit the matter for re-consideration
by the decision-maker in accordance with any directions or recommendations
27. As His Honour Judge Bowman observed in Golem v Transport Accident Commission [2002] VCAT 319 (10 May 2002) in reference to section 51 of the Victorian Civil and Administrative Tribunal Act 1998, ".. it seems clear from the authorities that the Tribunal puts itself in the position of the decision maker". When Member Davis affirmed the Department's decision on 10 September, he was in the position of the Secretary of the Department making a case plan decision. In other words, his decision was made, as far as possible (since that is what the section required), according to the principles set out in section 119(1) of the Children and Young Person's Act 1989.
28. I note in particular that the first principle set out there is that the welfare and interests of the child must be given paramount importance and that the second principle is re-uniting with the family if that is for the welfare and interests of the child and the third includes consideration of family relationships.
29. Accordingly the learned Member must already have considered the welfare and interests of the child and the relevant family relationships. A further application by another member of the child's family to review the same decision on the same principles and made on the same day as an order has been made affirming that decision, can not possibly succeed in my view.
30. While the circumstances are quite different, further guidance is to be found in the decision of the New South Wales Court of Appeal in Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290, where a developer had sought a permit similar to one already dealt with by the New South Wales Land and Environment Court. The Court of Appeal considered the second application to be an abuse of process. Davies AJA said (at page 293, paragraph 14);
"it is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions."
31. Further support for the view that the application before me is an abuse of process is to be found in the decision of the same Court of Appeal in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSW LR 198, in which re-litigation of a matter already dealt with in earlier proceedings was held to be an abuse of process even where the re-litigation took place between different parties.
32. In my view, since the decision has already been reviewed, albeit on the application of someone other than Ms Guziak, it has as a matter of substance been determined by Member Davis's decision, so that it would be an abuse of process for Ms Guziak's application to proceed.
33. The application before me is an abuse of process in a second sense, namely that Ms Guziak's application to be a party to review of the Department's decision of 7 January 2003 has already been dealt with by Member Davis, when he dismissed her oral application. The reasons for his decision were given orally and I do not currently have access to them. However, it is sufficient that the order was made. This application is in effect an attempt to re-visit the order that the Applicant not be joined to the review of the Department's decision. It would be an abuse of process to use this new application for that purpose.
34. In my view, these considerations bring the application directly within the description of appropriate cases for dismissal in this Tribunal outlined in Norman v Australian Red Cross Society (1998) 14 VAR 243. In that decision, in summarising the principles to be applied in decisions under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal said that for a proceeding to be dismissed or struck out
"the proceeding must be obviously hopeless, obviously unsustainable in fact or law, can on no reasonable view justify relief, or be bound to fail".
35. Accordingly I consider that the application before me is an abuse of process and should be dismissed. I am conscious that the Applicant does not appear to have been represented by any legal adviser or advocate. In coming to this conclusion I do not mean to imply any criticism of the Applicant who has perhaps followed the only path she saw before her in this serious matter. All the same it would be an abuse of process for this further application for review to be entertained.
36. The Application for Review is dismissed, on the Tribunal's own motion, under section 75 of the Victorian Civil and Administrative Tribunal Act 1998.
Guziak
Department of Human Services [2003] VCAT 1343
(2001) 53 NSW LR 198
(1999) 105 LGERA 290
Application for Review dismissed by the Tribunal on its own motion under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 as an abuse of process (para 36).