Close v Victorian Civil and Administrative Tribunal
[2018] VSC 71
•22 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04403
| BENJAMIN CLOSE | Applicant |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Respondent |
| STATE TRUSTEES LIMITED | Second Respondent |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 31 January & 19 February 2018 |
DATE OF JUDGMENT: | 22 February 2018 |
CASE MAY BE CITED AS: | Close v Victorian Civil and Administrative Tribunal & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 71 |
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JUDICIAL REVIEW – Victorian Civil and Administrative Tribunal – Whether error of law – Whether it was open to Victorian Civil and Administrative Tribunal to appoint administrator to applicant’s estate – No error of law – Application for leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Guardianship and Administration Act 1986 ss 46(1), 61.
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APPEARANCES: | Counsel |
| For the Appellant | In person |
| For the Respondents | No appearance |
HIS HONOUR:
Background
The applicant, Mr Close, has applied for leave of this Court to appeal an order made by a Member of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).
On 24 August 2017, the Tribunal reassessed an administration order that required that an administrator manage the applicant’s affairs. The original order was likely made under s 46(1) of the Guardianship and Administration Act 1986 (‘the Act’). To make this order, the Tribunal must have been satisfied the applicant at that time:
(a) was a person with a disability; and
(b) was unable to make reasonable judgments in respect of matters relating to all or any part of his estate by reason of the disability; and
(c) was in need of an administrator of his estate.
On that day, Member B Josephs at Wodonga in proceeding G76345 ordered, upon a reassessment of the original administration orders, that the second respondent (State Trustees Ltd) be appointed administrator of the applicant’s estate with all the powers and duties conferred by Part 5, Divisions 3 and 3A of the Act. This order must have been made under s 61 of the Act.[1]
[1]The order specifies s 61A of the Act as the operative section. It does not exist.
The applicant seeks leave to appeal this decision on the grounds that his disability ‘does not prevent him from making reasonable judgments about his financial and legal affairs’ and that the order made ‘does not comply with VCAT’s conditions’.
Procedural history
On 27 May 2016, State Trustees Ltd was appointed by the Tribunal as administrator of the applicant’s estate. On 24 August 2017, this appointment was reassessed, and the Tribunal again appointed State Trustees Ltd as administrator. At this hearing, the Tribunal set a date for further reassessment for no later than 31 December 2017.
On 22 September 2017, the applicant applied for a reassessment of the administration order. He then withdrew that application, as he was awaiting a medical appointment with Dr Roy, a psychiatrist, in February 2018. The Tribunal extended the reassessment date from 31 December 2017 to no later than 30 June 2018.
On 31 October 2017, the applicant filed an Originating Motion with this Court. Named as respondents in the application were the Tribunal and State Trustees Ltd. Both the Tribunal and State Trustees Ltd filed letters to the effect that they would take no active role in the application.[2]
[2]A copy of the text from the letter from the Tribunal is Annexure A to this judgment. A copy of the text from the letter from State Trustees Ltd is Annexure B to this judgment.
This proceeding
The applicant seeks:
(a) leave to appeal; and
(b) that the administrative order be quashed and all actions reversed.
As I have observed, he seeks these remedies on the basis that:
(a) his disability does not prevent him from making reasonable judgments in matters relating to his estate; and
(b) the order does not comply with the Tribunal’s conditions for making such an order.
The applicant is self-represented. He has been advised to seek legal advice by the second respondent.[3] He has also been advised as to the services offered by the Self-Represented Litigant Co-ordinator and the Self-Help Information Pack provided on the Supreme Court website.[4]
[3]See email chain of 23 November 2017 from second respondent to the applicant.
[4]Ibid.
On 24 November 2017 this Court ordered inter alia that the applicant file and serve any affidavits upon which he intends to rely by 4.00pm on 15 December 2017. The applicant was further ordered to file and serve a written outline of submissions and a list of authorities by 4.00pm on 12 January 2018.
The matter was listed for hearing before me on 31 January 2018. As at that date, the applicant had not filed any supporting material beyond pithily stated grounds of appeal and an equally pithy affidavit which repeats those grounds. I granted the applicant the opportunity to apply for an adjournment until today’s date to allow the applicant to place relevant material before the Court.
Since that day, the applicant has filed the medical material that was before the Tribunal,[5] and an application to the Tribunal for ‘[a]n order under the Equal Opportunity Act 2010 or the Racial and Religious Tolerance Act 2001’ which appears to ventilate an employment dispute between the applicant and Woolworths, his previous employer. The application is dated 27 July 2017. The applicant has also filed a release entered into between Woolworths and State Trustees Ltd, acting on the applicant’s behalf. The release is dated 26 October 2017. The applicant has not filed a transcript of the impugned hearing, nor a copy of the Tribunal’s reasons.
[5]The medical material included a VCAT Guardianship List Medical Report, signed by Dr Christopher Johnson on 1 December 2015, a letter from Dr Sanyukta Roy dated 19 December 2016 and Albury Wodonga Health Discharge Summary dated 26 July 2016 and signed by Dr Sanyukta Roy, and a Neuropsychological Report dated 22 January 2016 and signed by Leanne Mathews.
The matter was further listed for hearing before me on 19 February 2018. On that day, after some discussion, the applicant confirmed that the ground of appeal that he wished to pursue can be expressed as follows:
It was not open, on the medical evidence available to it, for the Tribunal to conclude that he lacked capacity pursuant to s 46(1) of the Act.
An appeal under s 148(1) of the VCAT Act must be from an ‘order’ of the Tribunal.[6] A party may not appeal under s 148 unless leave to appeal has been granted.[7] In the Trial Division of this Court, the application for leave must be made ‘in accordance with the Rules of the Supreme Court’.[8] The relevant Rules are contained in Order 4 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Those rules provide inter alia that:
[6]Muir Electrical Co Pty Ltd v Commissioner of State Revenue (No 2) 50 ATR 311.
[7]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
[8]Ibid s 148(2)(b).
· the application must be made by originating motion (r 4.06(2));
· within seven days of filing the originating motion, the applicant must file an affidavit in support of the application (r 4.07(1));
· within seven days of filing the originating motion, the applicant must apply on summons to an Associate Judge for the leave sought (r 4.08(1));
· the affidavit in support must set out all the facts, matters and circumstances relating to the Tribunal’s order and the grounds in the proposed notice of appeal (r 4.07(2)). It must also exhibit a copy of the Tribunal’s order, a copy of any reasons given for that order and a copy of the proposed notice of appeal (r 4.07(3)). The affidavit should exhibit the transcript of the hearing before the Tribunal if evidence given at that hearing is important to the leave application.
An appeal under s 148 does not confer a free-standing right of appeal. Rather, its scope is confined to ‘question[s] of law’. The proceedings are in the nature of judicial review to determine whether the Tribunal made a specified error of law. There is no right of appeal on the merits.[9]
[9]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 [15]; Osland v Department of Justice (No 2) (2010) 241 CLR 320.
Conclusion
Having perused the medical evidence tendered at the Tribunal, I take the view that it was open to the Tribunal to conclude that the applicant:
(a) was a person with a disability; and
(b) was unable to make reasonable judgments in respect of matters relating to all or any part of his estate by reason of the disability; and
(c) was in need of an administrator of his estate.
In particular, I refer to the following evidence that was before the Tribunal:
· Dr Christopher Johnson is the applicant’s general practitioner. He was uncertain as to the applicant’s diagnosis, but said there was clear intellectual impairment and some personality disorder. He said the applicant was unable to make reasonable decisions, unable to budget, and has obtained considerable credit card debt. He recommended the applicant receive help with his financial affairs ‘as he will get into terrible debt’.[10] It appears from the material that Dr Johnson was the applicant’s treating general practitioner from at least August 2015.
· Dr Sanyukta Roy is a Consultant Psychiatrist. She was of the opinion that the applicant likely has both Simple Schizophrenia and Asperger’s Syndrome. She said the applicant was no longer capable of managing his finances.[11]
· Ms Leanne Mathews is a Neurospsychology Registrar. She said the applicant’s overall profile indicated he had difficulties with verbal executive skills and organisational abilities, and a disregard for management of day-to-day affairs. She was of the opinion there was a psychiatric basis for this.[12]
[10]See VCAT Guardianship List Medical Report, signed by Dr Christopher Johnson on 1 December 2015.
[11]See letter from Dr Sanyukta Roy dated 19 December 2016 and Albury Wodonga Health Discharge Summary dated 26 July 2016 and signed by Dr Sanyukta Roy.
[12]See Neuropsychological Report dated 22 January 2016 and signed by Leanne Mathews.
The above opinions predated State Trustees’ original appointment,[13] save for the July and December 2016 opinions of Dr Roy. These latter opinions informed the reassessment process which could also take account of the earlier opinions expressed by Dr Johnson and Ms Mathews. In oral submissions, the applicant disputed Dr Johnson’s opinions as to the applicant’s capacity. In this appeal, which requires me to exercise the original jurisdiction of this Court, I am precluded from determining factual issues.
[13]27 May 2016.
I consider that it was open to the Tribunal to conclude that the applicant was a person with a disability, unable to make the reasonable judgments prescribed by the Act[14] and in need of an administrator of his estate. The applicant has not identified any question of law to be determined on this appeal and leave to appeal must be refused.
[14]Section 46(1).
The Woolworths material is irrelevant to this application. I shall make no orders as to costs.
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