SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0003
| PETER IKOSIDEKAS | Applicant |
| v | |
| KATHY KARKANIS GEORGE IKOSIDEKAS JANOULA TZOUZIDIS | First Respondent Second Respondent Third Respondent |
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| JUDGES: | MANDIE and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2015 |
| DATE OF JUDGMENT: | 27 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 121 |
| JUDGMENT APPEALED FROM: | Ikosidekas v Karkanis (Unreported, VCAT, Judge Jenkins, 9 December 2014). |
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ADMINISTRATIVE LAW – Application for leave to appeal a decision of the Vice President of the Victorian Civil and Administrative Tribunal dismissing an application to reconstitute the Tribunal pursuant to s 108 of the Victorian Civil and Administrative Tribunal Act 1998 – Whether Tribunal erred in failing to order a reconstitution of the Tribunal on the basis of a reasonable apprehension of bias or denial of procedural fairness – Whether an application for leave to appeal under s 148 of the 1998 Act is ‘an application for leave to appeal under section 14A’ of the Supreme Court Act 1986 – Whether ‘real prospect of success’ test under s 14C of the 1986 Act applies to an application for leave to appeal under s 148 of the 1998 Act – Leave to appeal granted and appeal allowed – Reconstitution of Tribunal ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R D Seifman | Klonis Kirby & Co |
| For the Respondents | Mr A P Dickenson | Aitken Partners |
MANDIE JA:
Introduction
On 10 April 2012 , Peter Ikosidekas (‘the Applicant’) instituted a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) in relation to his mother, Sofia Ikosidekas (the represented person or ‘RP’) seeking the appointment of an administrator and stating as the reasons for making his application ‘the 3 attorneys under Power of Attorney are not acting in accordance with the wishes and best interests of the Donor [the RP]’.
A number of steps have taken place in the VCAT proceeding to which reference will be made below, but, on 10 December 2014, VCAT (constituted by a Vice President, her Honour Judge Jenkins, hereafter referred to as ’the Vice President’ or ‘the Tribunal’) dismissed an application by the Applicant for reconstitution of the Tribunal pursuant to s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) which relevantly provides:
(1) At any time before the conclusion of the hearing of a proceeding—
(a)a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; …
(2)If an application is made under subsection (1)(a)…—
(a)a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and
(b)if so, the President must reconstitute the Tribunal.[1]
[1]This section was substituted for an earlier version by Act No 23/2014, which commenced operation on 2 June 2014.
The Applicant now seeks leave to appeal pursuant to s 148 of the VCAT Act from the order dismissing his application for reconstitution of the Tribunal.[2] The grounds for the Applicant’s seeking to…
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- AGLC
- Ikosidekas v Karkanis [2015] VSCA 121
- Case
- [2015] VSCA 121
- Decision Date
CaseChat Overview and Summary
The legal issues that arose required the court to interpret the scope and applicability of the statutory provisions concerning leave to appeal and the circumstances under which a tribunal may be reconstituted. The court had to consider the interplay between sections 148 and 14A of the 1998 Act and sections 14A and 14C of the 1986 Act. Furthermore, the court needed to assess the standard of proof required for the applicant to demonstrate a reasonable apprehension of bias or procedural unfairness, and whether these grounds were sufficient to warrant reconstitution of the Tribunal.
The court concluded that the Vice President had indeed erred in dismissing the application to reconstitute the Tribunal without addressing the reasonable apprehension of bias or procedural fairness. The court found that the application for leave to appeal under section 148 of the 1998 Act was indeed an application for leave to appeal under section 14A of the 1986 Act. However, the 'real prospect of success' test under section 14C of the 1986 Act did not apply to the application for leave to appeal under section 148 of the 1998 Act. The court granted leave to appeal and allowed the appeal, ordering the reconstitution of the Tribunal.
The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the Tribunal was to be reconstituted to address the concerns of reasonable apprehension of bias and procedural fairness.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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