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…

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 Ikosidekas v Karkanis

Details

AGLC: Ikosidekas v Karkanis [2015] VSCA 121
Case: [2015] VSCA 121
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the case of Ikosidekas v Karkanis, the applicant sought leave to appeal a decision of the Vice President of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed an application to reconstitute the Tribunal. The application was brought pursuant to section 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The central dispute centred on whether the Vice President had erred in not reconvening the Tribunal due to a reasonable apprehension of bias or a denial of procedural fairness. Additionally, the court had to determine whether an application for leave to appeal under section 148 of the 1998 Act constituted an application for leave to appeal under section 14A of the Supreme Court Act 1986 (Vic) and whether the 'real prospect of success' test under section 14C of the 1986 Act applied to the application for leave to appeal under section 148 of the 1998 Act.

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