Proposed First Appellant v Proposed Respondent

1 Under rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2015 (the 'Rules'), the Prothonotary refused to seal and file an application for leave to appeal lodged by LG and her son, EG,[1] against a VCAT[2] decision.[3] LG and EG now seek a direction from the Court under rule 28A.04(5) that the notice be accepted by the Court.

2 The request was referred to me, sitting in the Practice Court, on 19 August 2021.

3 Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act'), LG and EG seek leave to appeal the orders of Judge Jenkins, sitting as a deputy president of VCAT, made on 12 April 2019 (the 'VCAT orders').

4 Their Proposed Notice of Appeal, dated 4 November 2020 (the 'Proposed Notice'), was accompanied by two affidavits sworn by LG and EG (collectively, 'the documents').

5 The starting point in this protracted saga is an application brought by the Public Advocate for a temporary guardianship order in respect of LG, under s 19 of the Guardianship and Administration Act 1986 (the 'Guardianship Act').[4] LG had appointed EG as her enduring guardian in 2008.

6 The application was initially heard by Member Smith at VCAT on 16 April 2018 at which time he appointed the Public Advocate as limited guardian of LG.

7 Then, Richards J in this Court on 13 March 2019 heard an appeal by LG and EG under s 148 of the VCAT Act. On 14 March 2019 her Honour set aside the orders of VCAT of 16 April 2018.

8 On 12 April 2019 there was a further hearing at VCAT before Judge Jenkins (a Senior Sessional Member). This was originally convened to hear an application by EG and LG under s 75 of the VCAT Act for summary dismissal of the original guardianship application, on the grounds of res judicata, abuse of process and issue estoppel. Judge Jenkins is recorded as stating:

The hearing scheduled for today, 12 April 2019, was scheduled primarily to consider the application for a summary dismissal. However, for reasons outlined during the hearing, the application by the Public Advocate for appointment under s 19 as a limited guardian was also considered and determined.

9 Before Judge Jenkins, EG asserted that the application for a guardianship order had been finally determined against the Public Advocate by the decision of Richards J.

10 Judge Jenkins rejected this argument and held, clearly correctly, that this characterisation of Richards J's decision was 'wrong', and that EG's reliance on the principles of res judicata, abuse of process and issue estoppel was 'misconceived': Richards J's decision simply set aside Member Smith's order of 16 April 2018 appointing the Public Advocate as limited guardian to LG and did not finally determine the issue.

11 Judge Jenkins refused the application for summary dismissal and then apparently heard and granted the Public Advocate's application for guardianship, appointing the Public Advocate as temporary guardian of LG - which persists to the present time.

Application for summary dismissal (s 75 VCAT Act 1998)

1. The application under s 75 of the VCAT Act for summary dismissal of the application by the Public Advocate for an interim guardianship order ... is dismissed.

Application for guardianship (s 19 Guardianship and Administration Act 1986)

The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.

2. The Public Advocate ... be appointed limited guardian of the represented person with powers and duties:

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[.]

3. The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.

4. This guardianship order be reassessed no later than 30 June 2019.

5. The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.

6. This order shall continue to have effect until further order of the Tribunal.

7. The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.

8. [LG] and [EG] give access to their home, at a mutually convenient time, to a representative of the Public Advocate, together with any other relevant health professional approved by the Public Advocate, such as an occupational therapist and aged care assessment service, for the purpose of making an assessment of the suitability of facilities in the home for the proper and safe care of [LG], if she were returned home.

9. [EG] will engage with relevant staff at the Doutta Galla Lynch's Bridge aged care facility in Kensington, including the physiotherapists and registered nurse who provided reports for the Public Advocate, with a view to obtaining instruction as to the operation of mechanical aids in the home and administration of nursing care to [LG].

10. The Public Advocate will obtain updated reports from the physiotherapists and registered nurse as to instruction and training given to [EG] and as to his skill, knowledge and competence in caring for [LG], should she be returned home.

The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.

13 So, there were two discrete parts to the VCAT orders. The first (order 1) dealt with the application for summary dismissal. The second (orders 2-10) dealt with the application by the Public Advocate under s 19 of the Guardianship Act.

14 On 10 May 2019 LG and EG sought leave to appeal to this Court pursuant to s 148 of the VCAT Act. The grounds in the applicants' Notice of Appeal (the '2019 Notice') were as follows:

1. The Tribunal erred in law by dismissing the section 75 application brought by the Applicants pursuant to the VCAT Act 1998 on the basis that [EG's] understanding of the Supreme Court judgment in LG v Melbourne Health [2019] VSC 183 was wrong and that his reliance upon the principles of abuse of process for the purpose of a section 75 application was misconceived.

2. The Tribunal erred in law by dismissing the section 75 application brought by the Applicants pursuant to the VCAT Act 1998 on the basis that it was not an abuse of process for the Public Advocate to make her application dated 18 March 2019 for a temporary guardianship order in relation to [LG] and her subsequent application under section 18 of the Guardianship and Administration Act 1986 ...

3. The Tribunal erred in law by its failure to provide adequate reasons which disclosed its path of reasoning for reaching its decision to dismiss the section 75 application brought by the Applicants.

4. The Tribunal erred in law by its failure to address the submissions made by the Applicants that the Public Advocate's application dated 18 March 2019 was also required to be dismissed pursuant to s 75(1)(a) of the VCAT Act 1998.

15 The application for leave to appeal the VCAT orders was refused by Forbes J on 1 August 2019 ('Forbes J's decision').[5]

16 As described in her Honour's reasons, 'the grounds of appeal all relate[d] to errors associated with the manner in which the Tribunal dealt with the Applicants' application for summary dismissal'.[6] In so refusing the application, Forbes J determined that VCAT had not erred in its decision to refuse the s 75 application on any of the grounds alleged.[7]

17 LG and EG subsequently applied to the Court of Appeal for leave to appeal Forbes J's decision. That application was refused on 26 March 2020.[8] They then applied to the High Court for special leave to appeal against the Court of Appeal decision. This application was also refused.[9]

18 Then, on 4 November 2020, LG and EG sought to file the documents that are the subject of this ruling and again attack the decision of Judge Jenkins and the VCAT orders. They also sought leave to bring the application for leave to appeal out of time.

19 On 24 December 2020 by letter the Prothonotary notified LG and EG of her decision not to accept the documents. She wrote:

My reasons for not accepting the [Proposed Notice of] Appeal, and for rejecting it is because the document if sealed would[,] on its face, be substantially irregular or constitute an abuse of process pursuant to rule 28A.04(2)(a) of the Rules because the proceeding so commenced would be an attempt to re-litigate matters already determined.

This substantially replicates the wording of rule 28A.04(2)(a), which confers such a discretion on the Prothonotary.

20 I am now asked to decide whether to exercise the Court's power under rule 28A.04(5), which states, relevantly:

...

(b) refuses to seal a document; or

(c) rejects a document -

(d) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document was first submitted in RedCrest for filing;

(e) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document is so sealed;

(f) make any other order or give any direction that it considers appropriate.

21 So, this decision requires a determination as to whether the Prothonotary was correct in her conclusion that accepting the filing of the Proposed Notice would involve no more than the re-litigation of the matters already determined by the Supreme Court, the Court of Appeal and the High Court.

22 As I see it, this boils down to resolving two questions. First, whether the grounds of appeal alleged in the Proposed Notice raise a question or questions substantially different to those raised by the 2019 Notice and determined by Forbes J. If not, then the proposed appeal is an abuse of process as the Prothonotary concluded. Secondly, if the Proposed Notice does raise a new question or questions, then I should consider whether such a proceeding is foredoomed by reason of an Anshun estoppel[10] - again an abuse of process, but on a different basis.

23 I am conscious that my task under rule 28A.04(5) is essentially that of an administrative gatekeeper and not that of a judicial arbiter.

24 As I see it, if there is an arguable (even paper-thin) basis for permitting the filing of the documents then it should be allowed. This Court can then determine, at an early stage if the proposed respondent so desires, whether the proceeding should be permitted to continue.

Does the Proposed Notice of Appeal raise a genuinely new question?

25 The ultimate outcomes sought in each of the appellants' proposed notices of appeal are identical - the undoing of the VCAT decision making the Public Advocate LG's temporary guardian.

26 However, the respective orders challenged and the grounds of appeal now alleged in the Proposed Notice are, in my opinion, discrete and distinct from those considered by Forbes J.

27 As has been seen, the 2019 Notice sought the setting aside of the whole of the VCAT orders including the summary dismissal of the proceeding to appoint the Public Advocate as LG's limited guardian. The Proposed Notice raises different issues: It relates to 'Orders 2 to 10 of the Tribunal of 12 April 2019', and does not refer to order 1 - this was the order dismissing the appellants' application for summary dismissal under s 75 of the VCAT Act.

28 As I have noted, it is clear that Forbes J only considered order 1 of the VCAT orders: the grounds of appeal in the 2019 Notice were directed solely to alleged errors of law by the Tribunal in its disposal of the s 75 application.

29 By contrast, the grounds alleged in the Proposed Notice cite errors of law in relation to Judge Jenkins' consideration of the underlying application by the Public Advocate for a limited guardianship and VCAT orders 2-10, which relate to the appointment of the Public Advocate as LG's guardian.

30 In my view there has been no final determination by this Court as to the orders appointing the Public Advocate as LG's guardian - rather, the final determination by this Court (affirmed by the Court of Appeal and the High Court) was concerned only with the summary dismissal application.

31 Accordingly, I am satisfied that the Proposed Notice raises distinct questions from those raised in the 2019 Notice and determined by Forbes J. Thus, at least by the measure cited by the Prothonotary - that the appellants seek to re-litigate matters already determined - the proceeding that would be instigated would not be an abuse of process. I respectfully disagree with the Prothonotary's conclusion.

32 Having determined that the Proposed Notice raises a new issue, a further question arises: Should that issue have been raised in the earlier proceeding before Forbes J? Further, should I consider the issue in this type of determination (that is, one concerned with rule 28A.04(5))?

33 The test for the raising of an Anshun estoppel is one of reasonableness: If it appears that the matter sought to be relied upon in the later proceeding was so relevant to the subject matter of the earlier proceeding that it would have been unreasonable not to rely on it, the party will be estopped from so relying on it.[11]

34 While the Proposed Notice raises new questions, they are raised in pursuit of exactly the same goal as the 2019 Notice. This is important to the consideration of whether an Anshun estoppel is raised. To put it another way, while the matters of law to be determined may have changed, the dispute between the parties has not - that is, should VCAT have appointed the Public Advocate as LG's limited guardian?

35 Preventing the spread of the same dispute across multiple proceedings is the policy rationale underlying the Anshun estoppel.[12] In Anshun it was said[13] to be derived from 'the extended principle expressed ... in Henderson v Henderson':[14]

[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.[15]

36 I think it patent that the issues raised in the Proposed Notice were relevant to the application made before Forbes J and could have been raised in that proceeding. However, the test established in Anshun is not one of mere relevance but of reasonableness. It is not enough to show that the new matter could have been raised in the previous proceeding; it must be shown that it should have been raised,[16] in the sense that it was unreasonable, in all the circumstances, that the party now seeking to raise the matter did not do so.[17] The matter 'has to be so relevant as to make it unreasonable not to raise it' in the earlier proceeding.[18]

37 On its face, the failure to litigate the fundamental issue of the appointment of the Public Advocate before Forbes J appears to meet the test of unreasonableness - it would seem, after all, strange not to raise any issue at all about the granting of the guardianship order given the focus of the proceeding before her Honour, and the identical aims of the 2019 Notice and the Proposed Notice.

38 However, it is also apparent that there was some confusion as to the outcome at VCAT before Judge Jenkins. What appears to have started as a summary dismissal application ended up with an order being made in relation to guardianship. This was in the context of two unrepresented litigants initiating the summary dismissal application. For my part I cannot be satisfied on the material that I have read that it is inevitable that an argument based on Anshun estoppel would succeed. It may well do so, but at this gatekeeper stage I am not prepared to shut the applicants out.

39 In my opinion, the documents should be sealed and filed. I make the following direction: The Prothonotary or the Registrar seal the documents with the filing date, being the date the document was first submitted in RedCrest for filing, pursuant to rule 28A.04(5)(d).

[1] The proposed appellants are referred to by pseudonyms pursuant to the order of Clayton JR made on 5 June 2019 in respect of a previous proceeding.

[2] Victorian Civil and Administrative Tribunal

[3] ICV (Guardianship) [2019] VCAT 559 (17 April 2019).

[5] LG v The Public Advocate [2019] VSC 514 ('Forbes J's decision').

[8] LG v The Public Advocate [2020] VSCA 65 (Beach, Hargrave and Quigley JJA).

[9] LG v The Public Advocate [2020] HCASL 184 (Bell and Gageler JJ).

[10] See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 ('Anshun').

[11] Ibid 602 (Gibbs CJ, Mason and Aickin JJ).

[12] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575, 604 [36] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[13] Anshun [1981] HCA 45; (1981) 147 CLR 589, 598.

[14] [1843] EngR 917; (1843) 67 ER 313.

[16] Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245, 247 [4] (Allsop P) ('Champerslife').

[17] Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34, 42 [30]-[31] (Kiefel CJ, Bell and Gageler JJ). See also Anshun [1981] HCA 45; (1981) 147 CLR 589, 602 (Gibbs CJ, Mason and Aickin JJ).

[18] Champerslife [2010] NSWCA 33; (2010) 75 NSWLR 245, 247 [4] (Allsop P) (emphasis in original).