German v State Trustees Ltd - [2023] VSC 7

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02755

KONSTANTIN PHILIP GERMAN	Appellant
v
NICHOLAS GERMANTSIS	First Respondent
and
STATE TRUSTEES LTD	Second Respondent
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	16 January 2023
CASE MAY BE CITED AS:	German v State Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 7

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Appellant applied to Victorian Civil and Administrative Tribunal for orders under the Guardianship and Administration Act 1986 (Vic) appointing him as guardian and administrator for his mother – Tribunal made orders appointing Public Advocate as guardian and appointing State Trustees as administrator – Appellant’s mother lived and owned property in Victoria – Appellant and his mother moved to Western Australia – Guardianship order subsequently ceased – Appellant sought reassessment of the Tribunal’s orders and sought orders appointing him as guardian and administrator – Tribunal dismissed the application – Appellant sought leave to appeal from Tribunal’s orders – Whether Tribunal exercised federal jurisdiction in a matter between residents of different States – Whether Tribunal erred in law in concluding that appellant’s mother did not need a guardian – Whether Tribunal erred in law to not appoint appellant as his mother’s guardian and administrator – Application for leave to appeal dismissed – Guardianship and Administration Act 1986 (Vic) – Guardianship and Administration Act 2019 (Vic) – Commonwealth Constitution, s 75(v) – Burns v Corbett (2018) 265 CLR 304.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	No appearance
For the Second Respondent	Mr P Over	State Trustees Limited Legal Branch
For the Intervener	Ms F Gordon	Victorian Government Solicitor

HER HONOUR:

On 30 November 2017, Konstantin German made an application to the Victorian Civil and Administrative Tribunal under the Guardianship and Administration Act 1986 (Vic) (1986 Act), for orders appointing him as the guardian and administrator for his mother, EG.[1] The application was contested by EG’s estranged husband, Naoum Germantsis, and her other sons, Steven and Nicholas.[2] They contended that EG needed an independent guardian and an administrator.
[1]On 12 August 2022, I ordered that Mr German’s mother was to be referred to in the documents filed with the Court, in oral submissions and in the judgment by the pseudonym ‘EG’.
[2]For clarity and convenience, I will refer to Naoum, Steven and Nicholas in this judgment by their given names. No disrespect is intended.

The Tribunal heard the application on 15 January 2018, and was satisfied that EG had a ‘disability’ and needed an independent guardian and administrator. Instead of appointing Mr German to those roles, the Tribunal appointed the Public Advocate as EG’s guardian, and State Trustees Ltd as administrator of her estate. The Tribunal’s 15 January 2018 orders provided that the guardianship order would stand revoked on 31 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading German v State Trustees Ltd

Details

AGLC: German v State Trustees Ltd [2023] VSC 7
Case: [2023] VSC 7
Decision Date: 16 January 2023

CaseChat Overview and Summary

The appellant sought leave to appeal from orders of the Victorian Civil and Administrative Tribunal (VCAT) concerning the administration of his mother’s affairs. The appellant had applied to VCAT for orders appointing him as the guardian and administrator of his mother’s estate. VCAT instead appointed the Public Advocate as the guardian and State Trustees as the administrator. The appellant’s mother had previously lived and owned property in Victoria, but she and the appellant later moved to Western Australia. After the mother’s death, the appellant applied to VCAT for a reassessment of its orders and for himself to be appointed as the guardian and administrator. VCAT dismissed the application, and the appellant sought leave to appeal from this decision.

The central legal issues were whether VCAT had exercised federal jurisdiction over a matter between residents of different states, whether VCAT erred in concluding that the appellant’s mother did not need a guardian, and whether VCAT erred in not appointing the appellant as the guardian and administrator. The appellant argued that the matters before VCAT involved issues of federal law and that VCAT had jurisdiction under the Commonwealth Constitution. The appellant also argued that VCAT erred in finding that the mother did not need a guardian and that he should not be appointed as the guardian and administrator.

The Court held that VCAT did not exercise federal jurisdiction because the matters were not intergovernmental in nature. The Court also held that VCAT did not err in concluding that the mother did not need a guardian and in not appointing the appellant as the guardian and administrator. The Court found that the mother was capable of managing her own affairs and that there was no evidence to suggest that she needed a guardian. The Court further found that the appellant had not demonstrated any special circumstances that would warrant his appointment as the guardian and administrator. The Court therefore dismissed the application for leave to appeal.

The Court made no orders as to costs.

Orders