Ikosidekas v Karkanis

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0003

PETER IKOSIDEKAS

Applicant

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 have the Tribunal reconstituted were, in short, alleged reasonable apprehension of bias and a denial of procedural fairness.
[2]A refusal to reconstitute the Tribunal is an interim order of the Tribunal in the proceeding within the meaning of ss 3 and 148 of the VCAT Act — see, for example, Spilkin v Rosenberg [2011] VSCA 128, a decision relating to the earlier version of s 108.

Background

There were previous proceedings brought by the Applicant in VCAT. On 10 December 2007, the Applicant had applied to be appointed guardian and administrator of his mother’s affairs. In the course of that application, VCAT obtained medical reports and the matter was also investigated by the Office of the Public Advocate. On 26 May 2008, VCAT made the following order:

The Application for a guardianship and administration order is dismissed for the following reasons: The Tribunal is not 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 and/or an administrator.

In the reasons for judgment of the Tribunal, from which leave to appeal is sought, it is indicated by way of background that the situation had changed by April 2011, because, by a letter dated 15 April 2011, from Dr Adams, a geriatrician, to the RP’s general practitioner, Dr Adams stated that the RP was suffering from a significant cognitive impairment and that ‘if there is an existing Enduring Power of Attorney, I have recommend[ed] that it be activated…’. In that letter, Dr Adams further stated that she had met the RP in the company of several of her children and that her eldest daughter (‘Kathy’), believed there was a Power of Attorney in existence which named herself and possibly two other siblings.

As I have said, the Applicant applied to VCAT for the appointment of an administrator on 10 April 2012. On 29 May 2012, VCAT made orders including an order that the attorneys lodge with the Tribunal for inspection, financial records of the RP since 15 October 2011. After further inquiry and investigation, VCAT made orders on 28 November 2012 for the appointment of the Office of Public Advocate as limited guardian of the RP to make decisions relating to accommodation and access to the RP and an order requiring the Applicant to file and serve a statement of evidence.

There was then a directions hearing on 1 March 2013, in which orders were e including that the case be listed for hearing on a date to be notified and that the attorneys provide a statement as to the date upon which and the circumstances in which the enduring power of attorney (‘EPA’) was activated. In a witness statement dated 22 March 2013, the second respondent (Kathy) stated that the EPA was first activated in August 2011. There was also a witness statement by a solicitor providing details of the circumstances in which the RP executed the EPA on 17 October 2003.

The Applicant’s application to VCAT was listed for hearing before Member Duggan on 11 April 2013, and dismissed by him with written reasons on 23 April 2013. The Applicant appealed to the Supreme Court and, without a hearing on the merits, it was ordered by consent that the proceeding be remitted to VCAT to be heard by a differently constituted Tribunal.

At a further directions hearing on 12 November 2013, orders were made including for the filing of points of claim. On 12 December 2013, an existing guardianship order for the RP was continued.

Points of claim were filed with VCAT on 13 December 2013. In the points of claim, the Applicant alleged that his siblings (two sisters and a brother), who are respondents to the present application to this Court, were purporting to hold, and act pursuant to, an EPA given by the RP to them and dated 17 October 2003. In the points of claim, the Applicant sought a declaration pursuant to s 125Y of the Instruments Act 1958,[3] that the EPA was invalid on the grounds that the RP did not know and approve of the nature or the consequence thereof, that the RP did not speak any English, save for a few words, and the EPA document was not properly translated to her prior to execution and that it was procured by the undue influence of two of the attorneys (the present second and third respondents).
[3]Section 125Y provides:
(1)The Tribunal, on its own initiative or on an application under section 125V, may declare an enduring power of attorney to be invalid if it is satisfied that—
(a)the donor lacked capacity at the time the enduring power of attorney was made; or
(b)the enduring power of attorney does not comply with the requirements of this Part; or
(c)the enduring power of attorney is invalid for another reason, for example, the donor was induced to make it by dishonesty or undue influence.
(2)If the Tribunal declares an enduring power of attorney invalid, the power is void from the start.

Alternatively, by these points of claim, the Applicant sought a revocation of the EPA pursuant to s 125X of the Instruments Act 1958,[4] on the basis of certain alleged improper transactions by the attorneys.
[4]Section 125X provides:
(1)The Tribunal, on its own initiative or on an application under section 125V, may revoke the appointment of an attorney under an enduring power of attorney if the Tribunal is satisfied that it is in the best interests of the donor to do so.
(2)Before making a decision under subsection (1), the Tribunal must be satisfied that the donor lacks the capacity to make an enduring power of attorney.

The VCAT proceeding was listed for hearing on 9–11 April 2014. On 31 March 2014, the Applicant applied to vacate the hearing date and also alleged he had been denied financial documentation that he had sought from the respondents. After a directions hearing on 3 April 2014, the hearing date was vacated and it was ordered that the Applicant file and serve amended points of claim, supporting affidavits and any other material upon which he sought to rely.

Amended points of claim were filed on 8 April 2014. The allegations supporting the application for the revocation of the EPA were considerably expanded under the heading ‘improper dealings with assets/unexplained transactions/conflict of interests’. The amended points of claim incorporate by reference two affidavits and a number of exhibits in relation to transactions occurring between 19 March 2010 and 5 July 2012. Reference is also made to bank transactions from 1 July 2005 to 10 November 2006. The amended points of claim introduced a new set of allegations in relation to a discretionary trust, of which the attorneys are also the trustees, called the ‘Deakes Investment Trust’, set up in 2003. The amended points of claim raised a number of issues concerning the conduct of the trustees and alleged a conflict of interest between their position as trustees and their position as attorneys such that, it is alleged, they cannot act in the RP’s best interests. The amended points of claim conclude by seeking to have the EPA revoked and an independent administrator appointed ‘which would be in the best interests of [the RP]’.

On 3 July 2014, a directions hearing was listed before the Tribunal. One purpose of the hearing was to deal with an application by the Applicant pursuant to s 125ZB of the Instruments Act 1958.[5]Another purpose of the hearing was to deal with an application by the Applicant for a summons to issue to the proper officer of the Mount Alexander Shire Council to produce all documents and communications relating to a property registered in the name of the RP since October 2006. A further purpose of the hearing was to deal with proposed orders sought by the Applicant for production of further documents.
[5]Section 125ZB(1) provides:
In the case of an enduring power of attorney, the Tribunal may make an order that—
(a)the attorney lodges with the Tribunal, accounts or other documents relating to the exercise of the power for a specified period; or
(b)the accounts be examined or audited by a person appointed by the Tribunal and that a copy of the person's report be given to the Tribunal and the applicant.

On 3 July 2014, the Tribunal (then constituted by the Vice President) ordered that the attorneys deliver to State Trustees, accounts of the dealings and transactions made under the EPA from 1 August 2011 to date. The order appointed State Trustees for the purpose of examining and auditing the accounts so delivered and preparing an audit report. The Tribunal ordered that the proceeding be otherwise be listed for hearing on 15 September 2014 for a duration of up to three days. State Trustees subsequently provided a report, although it did not conduct an audit.

On 15 September 2014, counsel for the Applicant sought orders that all documents provided to State Trustees be provided to the Applicant, and that the proceeding otherwise be adjourned for a period of about two months to enable the Applicant to arrange an independent forensic examination of the accounts. On that date the Tribunal made a number of orders including that the hearing of the proceeding be listed to commence the following week, namely on 22 September 2014, for an estimated duration of two days.

On 22 September 2014, counsel for the Applicant made the Application to the Vice President for reconstitution of the Tribunal. The principal bases for that application related to what had occurred before the Tribunal constituted by the Vice President on 3 July and 15 September 2014.

Application for reconstitution of Tribunal

At the outset of the hearing on 22 September 2014, Mr Seifman, of counsel for the Applicant, without prior notice to the respondents or to the Tribunal, applied for the Tribunal to be reconstituted pursuant to s 108 of the VCAT Act on the grounds of apprehension of bias and denial of procedural fairness. Although Mr Seifman commenced to outline the basis of the application and to make some submissions, problems arose about the availability of an authorised transcript and, in the event, the application was adjourned with directions for the parties to file and serve any affidavit material and to exchange written submissions.

The Applicant’s written submissions were filed with VCAT on 22 October 2014. These submissions incorporated by reference the oral submissions made by counsel on 22 September 2014. Mr Seifman had orally submitted that the Vice President had found certain documents, production of which was requested by the Applicant, to be irrelevant on the basis that the EPA had, according to the attorneys, only been activated in or about September 2011, whereas the Applicant contended that the EPA had been acted upon from about October 2003. Mr Seifman said that these earlier documents were sought because they went to the credit of the attorneys and also could support the Applicant’s case that the EPA had been mismanaged and that the attorneys had not acted in the best interests of the RP. Mr Seifman submitted that the Vice President had accepted the respondents’ version of events and thus prejudged, or had appeared to prejudge, the veracity of a party before it had been tested. Mr Seifman said that the Applicant had been shut out, as a result, from access to documentation which was an essential part of his case and that this was a denial of procedural fairness. Mr Seifman contended that the Vice President had accepted the respondents’ evidence on this point before it had been tested and that the Applicant would be further prejudiced by the absence of these documents. Mr Seifman also orally referred to an email from the Vice President’s associate stating that the report from the State Trustees was ‘not particularly helpful to the Tribunal’ and that the Applicant’s solicitor’s assertion that the attorneys had failed to comply with one of the Tribunal’s orders of 3 July 2014 ‘may have merit’.[6]
[6]It is not clear to me, from the transcript, what use Mr Seifman sought to make of this email.

Mr Seifman next orally complained of the Vice President’s granting of leave to the respondents to call a witness to give evidence at the directions hearing because that witness would not be available on the date fixed for the hearing itself. Mr Seifman said that the Applicant was caught by surprise and was not ready to cross-examine the witness.

Turning to the Applicant’s written submissions to the Tribunal, those submissions (as I have said) repeated the above oral submissions and, after submissions as to the applicable law, contended as follows:

·‘In the instant case, the Applicant contends that there is nothing he could say or do to change [the Vice President’s] preconceived view that his application has no merit…’
·‘The Applicant equally contends that the ruling made by [the Vice President] on 15 September 2014, that the hearing commence on that day, interfered with the manner in which the case was to be conducted…’
·‘The Applicant contends that there was an apprehension of bias… or that [the Vice President] failed to give the Applicant procedural fairness…’, inter alia, by not going through each document sought and giving reasons why it was irrelevant, by accepting the evidence of Kathy as to the non-activation of the EPA before August/September 2011 without having that evidence tested, by making comments such as that ‘this is a fishing expedition’ and ‘the Applicant’s concerns have no substance’ and by being dismissive of a number of other factual matters.
·There was an apprehension of bias or failure to give procedural fairness because, inter alia, The Vice President had prejudged the ‘relevance, weight and effect of the State Trustees’ report by stating it was not helpful’ and by denying the Applicant the benefit of the previous order for an independent audit and by ruling that the hearing commence on 15 September 2014 when the Applicant was not in attendance by reason of ill health and the Vice President did not inquire about the availability of the Applicant’s counsel.[7]

[7]I think the above summary conveys the essence of the Applicant’s submissions, although there are numerous other matters mentioned.

The respondents did not file any submissions in answer and agreed to abide the decision of the Tribunal.

Tribunal’s reasons

On 9 December 2014, the Tribunal handed down written reasons comprising 36 pages. The Tribunal commenced by setting out a detailed procedural history, including some comments in the course of doing so, and then concluded as follows:

85I have read the written submissions of Applicant’s solicitors, the affidavits filed by the Applicant and his solicitor and the transcripts of all preceding Directions Hearings. I do not propose to specifically respond to various extracts in the transcripts to which these documents refer. I have instead sought to place the current application for reconstitution of the Tribunal in the context of the previous application made to the Tribunal by the Applicant, as well as the current Application and various supporting documents filed by each party.
86The Applicant’s various attempts to obtain further discovery must be seen in the context of a prior determination of the Tribunal, which confirmed that as at that date, there was no basis for the appointment of a guardian or administrator. In the earlier application, the Applicant had alleged various forms of financial abuse and/or manipulation by the Respondents and failure by them to carry out the wishes of the RP or act in her best interests. No objective evidence was found to support these allegations. In particular, the reports of two treating general practitioners and the report of an OPA investigator found that the RP was being well looked after; trusted her three eldest children to manage her finances and sought their support; and most importantly, the RP did not have a cognitive disability.
87The current Application before the Tribunal, seeking revocation of the EPA and appointment of an independent Administrator, makes similar allegations of financial abuse, manipulation of the RP and failure to act in her best interests. Although the Applicant is now making new allegations not raised in the earlier application, the capacity of the RP to manage her own financial affairs and voluntarily seek the support of her three eldest children was previously accepted by the Tribunal.
88In my view, this application for reconstitution of the Tribunal is misconceived on numerous bases.
89First, it was open to the Applicant to appeal against any prior interlocutory Ruling which I have made, on the basis of a perceived error of law. The Applicant elected not to take this course. Having made a Ruling unfavourable to the Applicant, it does not of course follow that the Tribunal has predetermined the proceeding. Such a circumstance will prevail notwithstanding robust comments by the Tribunal, where it is deemed appropriate in the circumstances. Where, for instance, it is reasonably apprehended by the Tribunal that one party is unnecessarily delaying the proceeding or seeking information or documents beyond the scope of the Application, then it is incumbent upon the Tribunal to ensure that the interests of the other party are not thereby prejudiced.

90Secondly, in this proceeding, the Respondents have now been ready to meet the allegations made by the Applicant at a number of stages:
(a)On the first occasion, a hearing was conducted on 11 April 2013 and the Application dismissed. As indicated above, after the Applicant appealed to the Supreme Court, by consent on 30 August 2013, the matter was referred back to the Tribunal, to be reheard by a differently constituted Tribunal;
(b)By Points of Claim dated 13 December 2013 and Amended Points of Claim dated 8 April 2014, the Applicant significantly expanded his allegations, in the manner described above. The Respondents provided further financial information without conceding any obligation to do so. They also provided information to a number of queries raised in respect of specific transactions; they had otherwise complied with prior Tribunal orders and were ready to have the trial date listed; and
(c)In both Directions Hearings listed for 3 July 2014 and 15 September 2014, at which time the Respondents were again ready to have a trial date listed, the Applicant sought production of further financial information.

91It is now over two and one half years since the current Application was first filed.
92Thirdly, the Applicant is an interested party in the context of the current proceeding by reason of being a son of the RP. He is entitled to be concerned for the welfare of the RP. However, he does not otherwise have any legal interest in her financial affairs or current role to play in the supervision or management of such affairs. In my view, the queries raised in his affidavits and applications for further financial information, are not based upon a failure by the Respondents to act in the best interests of the RP. Rather, they are directed at utilising the proceeding in the Tribunal to conduct an investigation and thereby obtain evidence which, upon the admission of his Counsel, the Applicant does not presently have.
93Counsel for the Applicant, in the Directions Hearing on 3 July 2014, sought to characterise what these proceedings are all about in this way:
these proceedings are not about … the applicant, , they’re not about the respondent. They are about the vulnerable represented person who is [name of RP], the mother, and the whole focus should be on endeavouring to enquire as to whether her best interests are taken care of. It’s got nothing to do with [the Applicant’s] financial interests, or anyone’s financial interests, the question, your Honour, to be dealt within the hearing is ‘are the attorneys acting in the best interests of [name of RP]?

94Counsel for the Applicant acknowledged that in the previous proceeding before the Tribunal:
There was no real evidence before the tribunal, as to why the allegations could be made out.

95Counsel for the Applicant further acknowledged that the Applicant was not now impugning the transactions in documents which he is seeking, rather:
this application is about getting documents, which he will use, utilise for the purpose of the hearing.

96In my view, these acknowledgements by Applicant’s Counsel highlight the lack of any credible basis for further discovery. Affidavit material filed by both parties and lengthy correspondence between solicitors for both parties attest to long-standing family disputes over the care of the RP and the financial management of her assets between the Applicant and occasionally the second youngest brother Con on the one hand, and the other five siblings on the other. The Applicant appears to want to use the current Application as a means of conducting a broad ranging enquiry into financial transactions and interactions between the parties over many years, including before the date of the execution of the EPA.
97The most that the Applicant can point to as justification for further discovery is his suspicion or lack of knowledge or understanding about particular transactions. It is not contested that the bank accounts include accounts that have been operated as joint accounts in the names of both parents and the youngest daughter. It is also not contested that the Attorneys are also Trustees for the (discretionary) Deakes Investment Trust. The Attorneys and their solicitors have attested to such Trust having been established for the benefit of the youngest daughter. In her first witness statement, Kathy states that a rental property in Ashwood was purchased in the Trust from contributions made by the parents as well as the proceeds of sale of a Coburg property formerly held in the name of all siblings. Furthermore, the Respondents and Kathy in particular, have conceded that they have assisted their mother in the financial management of her affairs prior to the activation of the EPA, in accordance with her expressed wishes.
98Fourthly, it is not open to the Applicant to use the Tribunal, either:
(a)To conduct an investigation based upon mere speculation that the Attorneys are not acting in their mother’s best interest; or
(b)To satisfy any enquiry he may have as to the application of his mother’s assets, predicated solely upon his belief as to a misapplication of funds.

99In the context of a further discovery application, I was not satisfied that the questions posed by the Applicant, in relation to various transactions identified in the accounts, were any more than an attempt to render the Attorneys accountable to the Applicant for each and every transaction which he chose to query. The questions of themselves do not otherwise rely upon any other evidence that the Attorneys have not acted in the best interests of the RP.
100Furthermore, in relation to the Deakes Investment Trust, Applicant’s Counsel submitted that the Applicant:
… As the interested person looking after his mother’s affairs… Wants to know… What distributions have occurred, what other powers, what are the entitlements of … his mother…

101The fact is, the Applicant does not look after his mother’s affairs and does not as of right have an entitlement to enquire into such affairs, merely based upon suspicion.
102Counsel for the Applicant further submitted that because the Respondents were performing two roles, as Attorneys under the EPA and as trustees under the Deakes Investment Trust, the Applicant was challenging the fact that they were wearing two hats. Counsel for the Applicant sought to establish a right in his client to investigate the role of the Attorneys as Trustees. During the Directions Hearing, I responded as follows:
Sorry, but I am going to stop this, because this has all the appearances of a crusade on the part of the applicant to take it upon himself to scrutinise every single transaction, every act that any of these attorneys, and now in their capacity as trustee’s as well, have performed. And in relation to everything that they have done, even before the time that they say that they were acting as attorneys…

103As indicated in the Directions Hearing, if one or more of the Respondents also happen to be Trustees of the Deakes Investment Trust, that is quite a separate matter to their role as Attorneys under the EPA. The exercise of the Trustees’ discretion in making distributions in accordance with the terms of the relevant Trust Deed, is not a matter for investigation or determination within the context of this proceeding. I refer to my comments during the Directions Hearing in relation to the Deakes Investment Trust:
There are persons that are trustees of that trust and they are required to act in accordance with the terms of the Trust Deed and to make distributions under that trust and if it is a discretionary trust and the potential discretionary beneficiaries are considered, they can distribute at any point in time income to one, or to all, or to a few, or unequally and they are not accountable to anyone else.

104Fifthly, in her witness statement dated 22 March 2013, Kathy has detailed the circumstances in which the EPA was first activated in October 2011. Prior to that date, the following reports confirm that the RP was competent to manage her own affairs as at the date of the respective reports:
(a)Reports of Dr Kioussis and Dr Hough in January and February 2008 respectively; and
(b)report of the Public Advocate Investigator dated 22 May 2008.

105Between May 2008 and April 2011 there are no medical reports filed which specifically address the cognitive ability of the RP.
106Prior to the date when the Attorneys say that the EPA was first activated, Kathy has also indicated that the Attorneys assisted the RP in the management of her financial affairs. Ms Archer also confirmed that, at least as at the date of her interview, the RP believed that she understood her financial affairs and sought the assistance of her three eldest children.
107In lengthy correspondence between solicitors for the parties, the Applicant has raised allegations of misconduct on the part of the Attorneys over many years, including acting contrary to the wishes or instructions of both parents at different times. Many of the impugned transactions referred to in the Amended Points of Claim and affidavits of the Applicant, relate to a period even prior to the date of execution of the EPA.
108Sixthly, the Applicant has sought three broad categories of documents, namely documents relating to the:
(a)Impugned transactions, as listed above;
(b)Deakes Investment Trust; and
(c)Validity of the EPA.

109In relation to the Deakes Investment Trust, I have already indicated above why this Trust is not relevant to the current Application.
110In relation to the validity of the EPA, the solicitor then acting for the RP [and her husband] has produced his file and has made a statement, as outlined above.
111In relation to the alleged impugned transactions, I indicated during the course of the Directions Hearing that I had examined the statements made by each party and I was not satisfied that there was any proper basis for ordering the production of any further documents. I further indicated that I was not making any determinations in the proceeding, as there had not yet been a hearing.
112I further indicated that I was not in any way precluding the Applicant from raising certain issues at the hearing:
he can try, but he might be met with an objection. I might rule that it is irrelevant but if he wishes to raise that on the basis that again he says the attorneys have been acting without the direct instructions or knowledge of the mother because that is effectively what he is saying… That she didn’t know, denied knowledge of it afterwards and it was contrary to her interests and if he is saying that, certainly he… He can give evidence about that; but I think he needs to focus his mind a bit and in relation to the specific transactions that he has raised go back and look at the responses that have been raised. Because on the face of it they are simple explanations. I don’t give any other view about that.

113On 15 September 2014, a Directions Hearing was held following receipt of the State Trustees report. Counsel for the Applicant requested an adjournment of a least two months; and production of documents made available to the State Trustees to enable the Applicant to investigate certain transactions. When asked to explain the basis for the Applicant’s concerns, Counsel confirmed that the concerns were of an overarching nature and not specific. Again, the Applicant was not able to articulate any specific problems other than to raise the question: what is this transaction about? In particular, the Applicant could not give any reasonable basis for his belief that funds were being misused or misappropriated for an improper purpose or in what way the production of documents sought would demonstrate his allegation that the Respondents were not acting in the best interests of the RP.
114During the course of the hearing, Counsel for the Applicant briefly outlined a list of additional transactions about which the Applicant raised queries, including:
(a)Amounts which he said represented the daughter Helen’s pension being paid into the RP’s Westpac account, which the Applicant alleges constitutes a mixing of monies;
(b)The sum of $1,000 being a payment concerning Helen;
(c)The sum of $1,400, described as ‘cash collect’;
(d)A credit of $273 and another deposit; and
(e)Two separate deposits of $1,000.

115Similar to previous requests, the Applicant has again not identified in what way he says that the Respondents have not acted in the best interests of the RP, other than to query the nature of the transaction.

CONCLUSION
116In my view, a fair-minded lay observer, with knowledge of the material objective facts, would not entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to a hearing of the issues in this proceeding. The measure is not the number of times a party may have been unsuccessful in their interim applications. Equally, the Tribunal is not constrained from dealing with such interim applications on their merits and having regard to prior applications made by the Applicant and findings made by the Tribunal.
117The difficulties now faced by the Applicant were expressed most succinctly by his Counsel albeit in a misconceived submission, to paraphrase: the Applicant cannot make out his case unless and until he is granted the opportunity to gather evidence from a forensic examination of the Respondents’’financial transactions.
118The Applicant’s allegations of impropriety against the Respondents as Attorneys under the EPA are significantly, if not wholly, predicated upon long standing animosity and divisions amongst the siblings, principally between the Applicant and the Respondents, in regard to the financial management of their parents’ assets. This backdrop appears to have been well established even before the EPA was executed.
119Counsel for the Applicant has conceded that the Applicant seeks production of certain financial information so as to be in a position to attack the credit of the Respondents. However, the applications for further discovery have not been supported by any other objective evidence that the Respondents have not acted in the best interests of the RP.
120In my view, the Applicant is now approaching this proceeding on the basis that he must be entitled to have produced for his examination and further interrogation, any financial records relating to the activities of the Respondents, as Attorneys under the EPA and as Trustees under the Deakes Investment Trust, by reason only that he has suspicions about:
(a)The manner in which the Respondents are applying the financial assets of the RP;
(b)The mixing of funds belonging to the RP and the youngest sibling;
(c)A conflict of interest between the Respondents role as Attorneys for the RP and Trustees for the Deakes Investment Trust; and
(d)Specific banking transactions and the application of certain funds, about which the Applicant has no specific knowledge.

121The Order made pursuant to s 125ZB in respect of State Trustees was not made as a consequence of my finding that the Applicant was entitled to access financial records, in accordance with the draft minutes of orders submitted to the Tribunal. Rather, the Order followed a concession made by the Respondents that, notwithstanding their opposition to further discovery, they were prepared to engage State Trustees to exam and audit the financial information which the Respondents were otherwise obligated to maintain.
122As indicated above, State Trustees did not take on the additional role of conducting an audit for the reason that this was not part of their function in the context of the circumstances in which the request and referral had been made. Nevertheless, State Trustees did conduct an examination of the financial records required to be maintained, in accordance with the Act. As soon as the Respondents were alerted to the additional records which had not been provided, such records were supplied, enabling confirmation of closing balances for each bank account. These additional bank statements were also supplied to the Applicant by the Tribunal.
123I am satisfied that the report of State Trustees does not contain any adverse findings per se. The reference to ‘overall, we are unable to conclude that the Attorney is acting within the best interests of the Represented person and defer to VCAT for review’ is merely a statement which reflects the limitation of the examination made by State Trustees, rather than constituting a positive adverse finding. Furthermore, the finding in the report that the current expenditure is at a rate which exceeds current income, is an important indicator to the Respondents as to further action which may need to be taken in the context of the total financial management of the assets of RP.
124Finally, as indicated above, evidence was allowed to be called from Ms Archer on 15 September, for the reason that she had been subpoenaed by the Applicant to attend on that day, and she was unable to attend on the date to which I proposed to adjourn the hearing or during that week. During the course of her evidence, Ms Archer indicated that she had limited recollection of the events in question and had no knowledge of the subject EPA. In any event, I indicated that the Applicant would not be precluded, in the course of a hearing, from making a further application in relation to Ms Archer.
125For the reasons stated I will dismiss the current application.[8]
[8]Ikosidekas v Karkanis (Unreported, VCAT, Judge Jenkin, 9 December 2014) [85]–[124].

Applicant’s reasons why leave should be granted

The application for leave to appeal sets out the following reasons (by way of summary) for a grant of leave:[9]
[9]To accurately reflect the Applicant’s arguments, the extracts from the Applicant’s Notice of Application for Leave to Appeal contained in this judgment, have been reproduced verbatim, including typographical errors.

2. There is a real prospect of success that the appeal will succeed on the basis of the proposed grounds of appeal. The proposed grounds of appeal are that the Tribunal’s Judgment was attended by error in having failed to give sufficient or any weight to each or all of the grounds submitted in the Applicant’s section 108 application in that the Applicant was denied natural justice, procedural fairness and that the Tribunal was apprehended with bias. By way of summary, those grounds are that the Tribunal:
(a) has wrongly prejudged the merits of the Applicant’s section 125Y application under the Instruments Act 1958 in VCAT proceeding G52747 by its reference to and reliance upon the historical background of the proceeding.
(b) has wrongly prejudged the credit of the parties and their witnesses;
(c) has wrongly prejudged the findings and effect of the State Trustees report;
(d) has wrongly prejudged the date the power of attorney dated 17 October 2003 was activated;
(e) has wrongly denied the Applicant the benefit of the previous order of 3 July 2014 for an audit report or failed to make orders for the State Trustees to provide a further report (without an audit);
(f) has wrongly interfered with the manner in which the Applicant intended to run his case;
(h) has wrongly made orders, rulings and comments during and outside the Tribunal sessions which a fair-minded lay observer might reasonably apprehend constituted bias on the part of the Tribunal;
(i) by reason of its Judgment might cause a fair-minded lay observer to reasonably infer an apprehension of bias by the Tribunal;

(j) has wrongly failed to comply with the rules of natural justice contrary to s. 98(1)(a) of the VCAT Act and the common law and failed to act fairly and according to the substantial merits of the case as required by s.97 of the VCAT Act;

3. The Judgment and Tribunal’s orders and rulings have the practical effect of finally determining the rights of the Applicant.
4. If the Judgment was not reversed there would be a substantial injustice to the Applicant and he would not be afforded a fair and unbiased hearing of his substantive application.

Applicant’s proposed grounds of appeal

The Applicant’s proposed grounds of appeal are stated as follows:

A. Natural Justice Procedural fairness
1. The Tribunal’s Judgment was attended by error in having failed to give sufficient or any weight to each or all of the grounds submitted in the Applicant’s section 108 application in that the by the Tribunal denied the Applicant natural justice and procedural fairness by:
(a) wrongly prejudging the merits of the Applicant’s application under section 125Y of the Instruments Act 1958 by its reference to and reliance upon the historical background.
(b) wrongly ruling that the hearing of the Proceeding commence on 15 September 2014 in circumstances where:
(i) there was no prejudice to the Attorneys in having the matter adjourned for a longer period as the powers of attorney remain valid and in force until set aside;
(ii) he hearing date on 15 September 2014 had already been vacated by consent and 15 September 2014 would proceed as a directions hearing;
(iii) the Applicant was not in attendance by reason of ill health which had been conveyed to the Tribunal by the Applicant’s counsel, prompting adverse comments from the Tribunal;
(iv) counsel for the Applicant made it known to the Tribunal that he was not briefed to appear at the final hearing, not in a position to run the case; and had objected to the commencement of the hearing and the ordering of Megan Archer to give evidence;
(v) the Tribunal failed to make enquiries about the availability of the Applicant or his counsel that was to be briefed before fixing the hearing date;
(vi) Megan Archer was ordered to give sworn evidence; counsel for the Applicant made it known to the Tribunal that her evidence related to issues of credit; the Applicant's counsel objected to Ms Archer giving evidence but the objection was overruled);
(vii) the Tribunal interfered with the way the Applicant intended to run his case

(c) Her Honour Judge Jenkins’ Associate Mr Julian Louey via email dated 4 September 2014 prior to the Directions Hearing on 15 September 2014 stating to the parties that the Report "are not particularly helpful” (sic).
(d) Her Honour Judge Jenkins' Associate advising in the same email of 4 September 2014 to the parties (‘the Email’) that the Applicant's solicitor's assertion that the Attorneys had failed to comply with the orders of 3 July 2014 "may have merit”.
(e) Her Honour’s Associate, Mr Julian Louey, at the hearing on 22 September 2014, offering to clarify the comments in the Email.
(f) the Tribunal making comments and rulings during the course of the hearing on 15 September 2014, that the statements/ conclusions in the Report were not to be viewed in a manner that were unfavourable to the Attorneys.
(g) the Tribunal by reason of grounds (c) to (f) prejudging the relevance, weight and effect of the Report prior to and during the course of the Tribunal’s Directions Hearing on 15 September 2014 which effectively precludes the Applicant at the hearing from drawing adverse inferences from the conclusions referred to in the Report.
(h) wrongly denying the Applicant the benefit of the order of 3 July 2014 for an independent audit report to be provided by State Trustees rather than a report;
alternatively, the Tribunal failed to require the State Trustees to provide a further report (not in the form of an audit report) after it had received a second set of documents from the Attorneys.

B. Apprehension of Bias
2. The Tribunal erred in law by wrongly failing to find it conducted itself in a way that displayed a reasonable apprehension of bias in the form of pre-judgment in circumstances that a fair-minded lay observer might reasonably apprehend it might not have, or did not bring, an impartial and unprejudiced mind to the resolution to the matter at hand:
(a) The facts and matters referred to in the grounds at paragraphs (a) to (h) above are repeated.
(b) Prejudging the Applicant’s s 125Y application to have the Power of Attorney revoked by stating:
(i) this is a fishing expedition;
(ii) the Applicant’s concerns have no substance;
(iii) the Applicant is acting like a policeman;
(iv) [to the effect that, this had become] a very sad case for everyone ... [there had been] time and effort and money being spent and I suggest being wasted;
(v) the Applicant also refers to his affidavit sworn 22 October 2014 at paragraph 12 where reference is made to comments made by the Tribunal.

(c) ruled in the form of pre judgment that the Applicant had no merit whatsoever in his 125Y or 125ZB Instruments Act applications in circumstances where the Applicant had filed an affidavit sworn 8 April 2014 and witness statements from Christos Candalepas, Con Ikosidekas, Panagiota Ikosidekas and a medical report of Dr Koussis by way of fresh evidence from May 2013 subsequent to the hearing before Member Duggan. Such statements contained material to the effect that:
(i) there was evidence that some of the RP’s monies had been deposited into an account which was linked with Deakes Investment Trust;
(ii) there were deposits and withdrawals in the sum of $2,000 evidenced by the passbook account of the RP which contained whiting out;
(iii) there was a conflict or perceived conflict of interest by the Attorneys acting as Powers of Attorney of RP when the Attorneys were the Trustees of a discretionary family trust of which the RP was a beneficiary;
(iv) in his statement of 8 April 2014 Con Ikosedekas maintains at paragraph 5 that gifts were not made to the Applicant’s children by the Attorneys when RP had previously expressed a wish that all her grandchildren be given gifts;

(d) ruled in the form of pre judgment that the Attorneys first activated the Power of Attorney on August 2011 and not earlier as contended by the Applicant in his affidavit of 8 April 2014, accepting the untested evidence of the Second Respondent. The Tribunal was selective as to the weight given to statements made in certain witness statements in circumstances where:
(i) the Second Respondent gave evidence at the Tribunal in May 2012 before Member Preuss that she had been managing the RP’s finances ‘for the last 3 years’;
(ii) the reports from Dr Adams to Dr Kiousis dated 15 April 2011 and 24 July 2011 stated that the Second Respondent had taken over the management of the RP’s financial affairs from Helen in April 2011 contrary to what the Second Respondent had told Member Preuss in that she had been managing the RP’s financial affairs for three years prior to the hearing before Member Preuss.

(e) the Tribunal provided its own explanation as to the circumstances by which the Attorneys acted in accordance with the RP’s wishes and in her best interests despite there being no evidence referred to by the Tribunal to justify such explanations.

The Judgment made findings not supported by any or any sufficient evidence before the Tribunal.
(i) the Judgment failed to note that which the Attorneys had not initially complied with previous orders of 3 July 2014 (as indicated by the Report)
(ii) the RP was present at one of the examinations with Dr Judith Adam which is unsupported and untested and disputed by the Applicant.
(iii) the Attorneys activated the EPA in response to the Applicant allegedly putting a stop to the RP’s account which is unsupported and untested and disputed by the Applicant.
(iv) the RP’s wishes are that the Applicant is not kept informed of the RP’s finances which is again unsupported, untested and disputed by the Applicant.

(f) The Tribunal ruled that the small sums that were in issue in relation to RP were not relevant without making any enquiry as to the circumstances thereof.
(g) The Tribunal refused to issue a witness summons to the rates office of the Shire of Mount Alexander stating ‘I’m not going to put the council to the trouble of having to search their records on a fairly tenuous basis that of itself and even if there were instructions in any way confirms that they were acting pursuant to the power of attorney in giving those instructions rather than just attending to the payment of rates on behalf of the mother.’
(h) The Tribunal pre-judged the credit of the Applicant and Second Respondent. The comments, rulings and orders made by the Tribunal have impacted to date unfavourably on the Applicant and favourably on the Attorneys insofar as the Tribunal has been selective in the material it sought to rely upon. None of the material filed by the Applicant was accepted by the Tribunal nor tested by cross examination. Conversely, the Tribunal appears to have accepted the Second Respondent’s material without it having been subjected to cross-examination.
(i) The Tribunal refused to grant the Applicant’s section 125ZB application in relation to each and every document requested.
(j) Further or alternatively, the Tribunal erred in law by:
(i) By failing to comply with the rules of natural justice contrary to s. 98(1)(a) of the VCAT Act and the common law;
(ii) alternatively, by failing to act fairly and according to the substantial merits of the case as required by s.97 of the VCAT Act.

Questions of law

It is necessary for the Applicant to identify a question or questions of law in order to obtain leave to appeal and to appeal under s 148 of the VCAT Act. Although the Applicant’s application for leave to appeal arguably does not clearly or precisely identify such a question, it is readily apparent that there are two questions of law that might arise, namely, whether it is a necessary conclusion or inference from the undisputed circumstances (the documents filed with the Tribunal and the transcripts of the relevant hearings) that a reasonable apprehension of bias has arisen and/or that the Tribunal has failed to act with procedural fairness. In other words, the question of law is whether it was not open for the Vice President to conclude that there was no reasonable apprehension of bias or no failure to act with procedural fairness by the Tribunal.[10]
[10]See Spilkin v Rosenberg [2011] VSCA 128, [33]. See too Nekvapil: Victorian Administrative Law [VCAT 148.320] and cases there cited.

What occurred at the relevant interlocutory hearings

Before turning to the issues arising from the submissions of the parties to this Court, it is convenient to set out some aspects of what occurred at the relevant interlocutory hearings before the Vice President.

On Thursday, 3 July 2014 a hearing took place before the Vice President in which Mr Barravecchio appeared for the Applicant and Mr Dickenson for the attorneys (the respondents).

At the outset the Tribunal said:

HER HONOUR:       And it’s getting to a point now where it’s really — — and I think I will have heated agreement from everyone, it is really quite ridiculous, the amount of time and effort and money being spent and I would suggest being wasted. And it seems on the face of it — and I have into this latterly — that we’re at a point where we are going around in circles and many of the matters that are being raised again, particularly in the proposed minutes of orders, have been raised previously and appear to have been addressed. Now the answers might not be acceptable or complete — —
MR BARRAVECCHIO:        Yes — —
HER HONOUR:       And we can go into that perhaps in more detail, but there have been answers to nearly all of the items that have been raised. Now I’ll give you a chance to respond, I’m just making some comments, first of all.
The other thing that perhaps is fundamental to seeking certain documents from a particular date is the allegation that the power of attorney was activated prior to the time when the attorneys say it was. And I’ve reread again the statement which was made by the oldest attorney, in her statement I think the 22^nd of March 2013, which gives quite some detail as to the circumstances in which the attorneys say that power of attorney was activated, and that it wasn’t certainly by the date that the Applicant says it was, yet he’s predicating the documents that are now being sought on the basis of what he says was the case, when, again, all we have [is] his assertion that that was the case. Whereas, on the other hand, we have statements and other documentary evidence that it wasn’t the case and that was in — — either a couple of dates in October.

I would interpolate here that, given that the Applicant had no means of knowing when the attorneys commenced acting under the EPA, and given that there were transactions of various kinds after the EPA had been executed and possibly when the RP had a significant cognitive impairment and before the date or dates specified by the attorneys, it was arguably inappropriate to criticise the Applicant for seeking to obtain documents from a period commencing earlier than the date identified by the attorneys.

Returning to the transcript, Mr Dickenson offered to consent to an order that the accounts be audited by an independent person provided that the documents were not given to the Applicant and that the audit should commence from the time that the attorneys began to act as such. In the course of explaining his client’s position, Mr Dickenson referred to the Deakes Investment Trust and the Tribunal said: ‘I must say I’m not even sure why that has come into play’.[11]
[11]The Tribunal went on to say in effect that the trustees had a discretion to exercise under the discretionary trust, but had to comply with the terms of the trust deed.

Mr Barravecchio then went on to emphasise that the proceedings were about what was in the best interests of the RP and whether the attorneys were acting in her best interests. Mr Barravecchio said that a lot of thought had gone into the affidavit of the Applicant, sworn in April 2014 in which he explained why he required each and every one of the specified documents. Mr Barravecchio said that it was the Applicant’s case that the attorneys were not always telling the truth and in particular as to when the EPA was activated. Mr Barravecchio said he had a further affidavit of the Applicant, but unfortunately, it was unsworn and he offered to call the Applicant to give evidence. Mr Barravecchio then made some further references to the Deakes Investment Trust and the Tribunal said that the Applicant had no standing to be asking questions about it because the attorneys were not acting as such when acting as trustees under the trust deed. Mr Barravecchio replied that the attorneys were ‘wearing two hats’ — he said, in effect, that it was not their power that was being challenged but the Applicant sought to rely upon the conflict of interest alleged in the points of claim (although he did not precisely use those words).

The Tribunal then said:

HER HONOUR: I’m sorry, but I’m going to stop this because this is where — —- this has all the appearances of a crusade on the part of the Applicant to take it upon himself to scrutinise every single transaction, every act that any of these attorneys and now in their capacities as trustees as well, have performed and in relation to everything they have done even before the time that they say that they were acting as attorneys to say now you tell me about this and you tell me about that and where did this go and what was this for?
Now, he might believe that he is acting in the interests of his mother in doing that, but he can’t come to the court and have — — or, this Tribunal, and say as you enforce my interests and my inquisitive crusade here to satisfy me that all of these things are being done in accordance with what I think should happen. No, he doesn’t have that right.

There then followed an interchange between Mr Barravecchio and the Tribunal in which Mr Barravecchio made reference to a ‘possible conflict’.

Reverting to the question of when the attorneys commenced to act as such, the Tribunal then said in substance that the attorneys had consistently stated when they first commenced to act and given step by step details as to the circumstances and there was no contrary evidence. Mr Barravecchio replied that there was some evidence to the contrary, contained in the Applicant’s draft affidavit, which he went on to outline. The Tribunal said that these matters were irrelevant because they related to much earlier periods. Mr Barravecchio repeated his application to call the Applicant in relation to the documents that he was seeking which he said would help with his application. The Tribunal then asked what other evidence there was that the attorneys had activated the EPA prior to the time identified by them. The Tribunal said it was not persuaded there was any basis for going earlier than the date upon which the attorneys said the EPA was activated. The Tribunal said the attorneys were saying that at an earlier time they were helping their mother, but that it was not pursuant to the EPA. Mr Barravecchio said that the Applicant’s case was that there was an EPA and that the attorneys, who were acting as attorneys, were doing things that the mother did not know about and didn’t approve and he referred to the Applicant’s affidavit of 8 April 2014. Mr Barravecchio referred to a matter dealt with in a part of that affidavit, but the Tribunal said that that matter had been addressed in a statement of one of the attorneys in February 2014.

A little later, the following exchange occurred:

HER HONOUR:       But there is no argument about what the duties of the attorneys is or indeed what their duties as trustees is, they are not to be mixed, they are indifferent - -
MR BARRAVECCHIO:        Yes, Your Honour — —
HER HONOUR:       But in saying that the Applicant seems to be then saying therefore you explain to me or justify to me or satisfy me about every transaction that I can point to. I’m sorry, it just doesn’t work like that.
MR BARRAVECCHIO:        But there’s hundreds of transactions. His solicitor is [inaudible] transactions, Your Honour — —
HER HONOUR:       But that doesn’t really address the point or the principle that he is not putting before the Tribunal any basis for any of these transactions to be contrary to their powers or duties as trustees or as attorneys. All he’s saying is that I want to know about them.
MR BARRAVECCHIO:        Correct, Your Honour, he’s not [impugning] those transactions now. This Application is about getting documents which he will use, utilise, for the purposes of the hearing — —
HER HONOUR:       It’s a complete fishing exercise isn’t it?
MR BARRAVECCHIO:        Well, according to some of these documents, Your Honour — - I mean if I was — —
HER HONOUR: I’m sorry — —
MR BARRAVECCHIO:        [Indistinct] money — —
HER HONOUR:       They have been answers given to all of these, going back over a year ago. There have been responses to this which can form the basis of the hearing. This is not the basis for which further discovery ought to be ordered, certainly not discovery prior to what the evidence otherwise indicates as the time when the power of attorney was activated — —
MR BARRAVECCHIO: So — —
HER HONOUR:       I’m sorry, I’m not going to use the powers of the Tribunal to create a case that your client thinks that there is, when there is otherwise no basis for it and there is certainly other objective evidence along the way that the attorneys have been doing everything in their power in the interests of the protected person.

There is no suggestion in any of the objective evidence, that is, any statements that have been made outside the family, to the contrary.

A little later the Tribunal said that it was not going to allow a free for all between family members as to what was said to whom, prior to the date that was relevant for the purpose of the exercise of the power of attorney. A little later again, the Tribunal said that we come back to the purpose of this directions hearing, which was to consider the draft form of the proposed minutes ‘which I have to say, again, a complete fishing exercise, and relate to matters well beyond what I am otherwise satisfied on the face of what is before the Tribunal of transactions within the time period when the attorneys were acting as attorneys’ and that ‘I am not saying … they weren’t helping their mother before that… but I am only interested in the time [when] the attorneys were acting’.

Referring to the Applicant’s affidavit and exhibits, the following exchange occurred:

HER HONOUR:       [Going] back to the earlier affidavit — — to the earlier statements and I found that each transaction … [or] the group of transactions has already been addressed.
MR BARRAVECCHIO:        So, Your Honour is satisfied that each one of these exhibits sought is not relevant?
HER HONOUR:       Either not relevant because they are prior to the time when I am satisfied on other evidence that is before the Tribunal that the power of attorney was activated so that in a period when the other in conjunction with one or the other of the siblings was managing her own affairs or has been on the face of the statements made in response a satisfactory explanation. Now, that’s at this stage. I’m not making any determinations about that because — —
MR BARRAVECCHIO:        [Indistinct].
HER HONOUR:       Because we are not in a hearing stage, but for the purpose of ordering any production of documents, I’m certainly not satisfied that that’s warranted.

A little later, the Tribunal added:

And the Tribunal will make an assessment of the evidence from each party,[12] but this is so much a fishing exercise,[13] I’m sorry. If there was anything other than speculation as to how the power of attorney was utilised prior to the date when the attorneys say it was, then there would be something to go on but there simply isn’t.
…
MR BARRAVECCHIO:        Your Honour is not in any way saying, that the Applicant should be in any way prevented from raising any of these[14] at the hearing.
HER HONOUR:       No no.
MR BARRAVECCHIO:        He can raise whatever he — —
HER HONOUR:       Well, he can try, but he might be met with an objection that it’s irrelevant and I might rule that it’s irrelevant.

[12]I.e. at the future hearing.

[13]I.e. the discovery application.

[14]I.e. transactions that the Applicant was concerned about.

Then followed further discussion and a short adjournment in order that the parties might discuss a proposed order for a report and audit. After the adjournment, Mr Dickenson indicated that the attorneys would provide records to State Trustees for audit and ‘to satisfy the Applicant’ from August 2011 onwards. After further discussion, the Tribunal said that the proceeding would be listed for hearing on Monday, 15 September 2014, for an estimated three days.

On 3 July 2014, the Tribunal ordered the respondents to deliver to State Trustees, as soon as practicable, all records and accounts of dealings and transactions made under the EPA dated 17 October 2013,[15] from the RP from 1 August 2011 to date. The Tribunal appointed State Trustees for the purpose of examining and auditing the records and accounts delivered to it by the respondents and preparing an audit report (copies were to be provided to all parties).
[15]The correct date is 17 October 2003.

On 29 August 2014, State Trustees provided its report and stated in an accompanying email:

Overall we are unable to conclude that the Attorney is acting within the best interests of the RP and defer to VCAT for review. For the period ending June 2012 we did not find any issues, however the main concerns for 2013 & 2014 time periods related to expenditure exceeding income by greater than $4000 per annum. At this rate of expenditure, the RP cash assets will be depleted in less than five months.
While the accounts presented [were] very detailed, the required supporting documents showing bank account balances for 2013 & 2014 were not fully included so we have no way of determining the accuracy of the accounts provided.
For your information, a total of just over two hours was spent on the examination…

Apparently State Trustees considered that it had been appointed under s 58 of the Guardianship and Administration Act 1986 ‘to examine the Account by Administrator’ rather than to perform an audit.[16] The solicitors for the Applicant sent an email to her Honour’s associate dated 4 September 2014 (with a copy to the other side) stating, inter alia, that the Applicant’s serious concerns about the conduct of the attorneys had been reinforced given the content of the report and in particular, the report noted that there had not been full disclosure of documents by the respondents and that State Trustees said that the attorneys could not be said to have been acting in the best interests of the RP. Her Honour’s associate (as it appears, with her Honour’s authority), apparently in response to some email from the respondents’ solicitors, forwarded an email in reply dated 4 September 2014 (with a copy to the Applicant’s solicitors) stating:

The purpose of your email is not clear to me. If you are suggesting that Mr White indicated that you had provided all necessary documents, and you have now discovered that Mr White has indicated to the Tribunal otherwise, then it would seem that you have good reason to contact Mr White, provide the relevant bank statements and ask that he urgently update his report in light of those bank statements.
If you have not provided the bank statements due to an oversight, then similarly it would seem prudent to contact Mr White, advise that you have relevant bank statements and ask that he urgently review his findings taking into account the bank statements.
If it is the second scenario, then I would anticipate a further fee being payable to the State Trustees.
As it stands, the reports are not particularly helpful to the Tribunal. Furthermore, it would seem that Mr Klonis’ assertion that the Attorneys have failed to comply with Order 1 of the Tribunal’s Orders dated 3 July 2014 may have merit.

[16]It is not a matter for this Court to consider whether this was correct or appropriate, although it obviously did not meet the terms of the Tribunal’s order.

I interpolate here that the Applicant has relied upon the contents of the associate’s email in support of the case seeking to establish apprehended bias, or a lack of impartiality. I will say at once that I would reject that contention. It seems obvious that the report from State Trustees was not particularly helpful to the Tribunal and I cannot see that this comment shows any lack of impartiality one way or the other. As I understand it, the Applicant was concerned that, State Trustees having said that they were ‘unable to conclude that the Attorney is acting within the best interest of the RP’, it showed a lack of impartiality for the Tribunal to say that the report was ‘not particularly helpful’. I do not think that inference follows. The report does not make a positive finding one way or the other and lacks much supporting detail. It was not inappropriate to describe it as ‘not particularly helpful’. The further comment in the email, that Mr Klonis’ assertion may have merit, seems accurate.

On 5 September 2014, the Applicant’s solicitors emailed her Honour’s associate (with a copy to the other side) stating that, as a matter of fairness, the Applicant should now be provided with a copy of all documents sent to State Trustees and also a copy of all the documents that were withheld. By a further letter to the Tribunal, of the same date, the Applicant’s solicitors expressed the Applicant’s extreme concern that the respondents’ breach of the order of 3 July was not being dealt with in an open hearing and made a number of other complaints.

On 10 September 2014, the parties provided the Tribunal with minutes of consent orders that the further hearing of the matter be adjourned sine die and that the hearing dates of 15-17 September 2014, be vacated. The Tribunal confirmed that the hearing dates were vacated and listed the matter for a directions hearing on 15 September 2014.

On 15 September 2014, the same counsel appeared as had appeared on 3 July 2014, Mr Barravecchio told the Tribunal that it would appear that further information had been provided to State Trustees and there was probably going to be a need for another report. The Tribunal then said that State Trustees had indicated (apparently by email after the order of 3 July was made) that they would not conduct an audit.[17] The Tribunal said that it would anticipate that there was nothing more for State Trustees to do, in terms of what they were prepared to do. Mr Barravecchio sought a period of two months in order to prepare a further application, possibly for another audit report. He said that they were still in the dark as to whether State Trustees were going to provide anything further. Mr Barravecchio asked to be permitted to see all of the documents provided to State Trustees. The Tribunal questioned the need for why there should be any further delay and said ‘this is so much getting into a fishing exercise now.’
[17]It does not appear whether any of the parties were advised of this prior to 15 September 2014.

Mr Barravecchio responded that the Applicant’s case was that the EPA was activated from about the start of October 2003 and that the respondents had been acting in accordance with that EPA and had been managing the affairs of the RP. Mr Barravecchio said that the Tribunal had indicated on the previous occasion that there was no such early activation of the EPA and that the respondents were just doing what their mother may have been happy with, resulting in the following exchange:

HER HONOUR: Well, that is as I understand it, what the evidence of the Respondents will be.
MR BARRAVECCHIO: Well that will be in dispute, Your Honour… [as] to what happened … [and] evidence will be called about that.

Mr Barravecchio reiterated that the Applicant was concerned with the whole period since the EPA was granted and also with the investment trust. The Tribunal said that the Applicant had not provided any basis for the respondents providing further information, the Applicant had the report ‘such as it is’, he had ‘all these bank statements’ and State Trustees in their review of those documents had not indicated anything untoward. After debating the meaning of the State Trustee’s report, Mr Barravecchio said that the Applicant had a right to ask for documents, no independent audit had happened and an independent audit was still required. The Tribunal said that the previous order had been made by consent but the Tribunal was not satisfied that there was any need for it. The Tribunal could see no basis for the fishing exercise for these documents. Mr Barravecchio stated that the Applicant wanted an opportunity for a forensic examination of the documents which he had expected but had not happened.

The Tribunal then had an interchange with Mr Dickenson about what documents had been provided to State Trustees. Mr Dickenson said that State Trustees had not indicated any matter of concern and there was no basis for any further order. Mr Dickenson said:

I received a letter saying that — — as my friend frequently says, the Applicant has, ‘Serious concerns’ about some of the transactions.
Well frankly, it’s not a relevant consideration for the Tribunal if he’s got serious concerns. As I said last time, Your Honour, he has no financial interest in his mother’s affairs. If he was a good son coming along and there were concerns that his mother wasn’t being well looked after, fair enough, but there’s no evidence of that. There’s zero evidence about that. Mrs Ikosidekas is in nursing home care. She’s being well cared for. All the fees are being paid and they are up-to-date. She’s well cared for. That should be what the Applicant’s primary consideration, but it’s not. He has this paranoia and he wants to investigate everything that’s gone on. We’ve had this argument about the documents, and they lost. We were prepared to try and allay the concerns to have the State Trustees have a look. They’ve now had a look. They’ve not identified any cause for concern.

Mr Dickenson added that the Applicant ought not to have even had the bank statements but now he had.

The Tribunal then said to Mr Dickenson:

HER HONOUR:       Yes. Now, I have to agree with everything you’ve said. I think that this is really a fishing exercise and I haven’t looked at this in any detail, but it all looks completely innocuous there. And it’s a proper summary of the transactions in and out with documents indicating the nature of those expenditures.
MR DICKENSON:     Yes.
HER HONOUR:       Now, is there any objection to providing a copy of these documents because — —

Mr Dickenson refused the Applicant access to the documents, submitted there was no basis in law for an order that the Respondents provide them and pressed for a hearing in the following week. Mr Barravecchio reiterated that there was power to make the order under the Instruments Act 1958 and applied for an order that the Applicant be furnished with a copy of all of the documents provided to State Trustees. Mr Dickenson responded that the Instruments Act 1958 empowered the Tribunal to order an examination or audit, but not to provide documents. The Tribunal rejected the Applicant’s application.

Ms Lee, who appeared that day on behalf of the Office of the Public Advocate, then indicated that a witness, Ms Archer, who had been summoned to appear, was available to give evidence that day but would not be available the following week or the week after that. Mr Barravecchio said that he was not in a position to put Ms Archer through any examination in chief as he was not prepared. Mr Barravecchio said that Ms Archer was required at the hearing relating to issues of credit of the respondents and about what was said about the EPA and about a report that she had made in 2008. A reading of the transcript discloses that Mr Barravecchio appeared to be unsure as to the purpose for calling Ms Archer. Mr Barravecchio opposed Ms Archer being called, saying that the Applicant was not present as, on his instructions, the Applicant had the flu and that, by consent, this was only a directions hearing. The Tribunal said that it would hear evidence from Ms Archer and, if that turned out to be unfair to the Applicant because he was not present to give instructions for cross-examination, that could be dealt with on a another occasion. Mr Barravecchio repeated that he was unprepared.

Ms Lee called Ms Archer who produced what was described as ‘the total contents of an investigation file’ in relation to an application for the appointment of a guardian and administrator of the RP in 2008. Ms Barravecchio cross-examined Ms Archer. Looking at her notes, Ms Archer said she had a brief conversation with the RP ‘about enduring powers of attorney, financial’. Ms Archer said that she asked the RP to explain what an enduring power, financial, was and ‘that would be the end of it’. Ms Archer said that she was speaking in English and that there was a Greek interpreter present. Ms Archer said that she had a very vague recollection of the meeting. Further questions were asked by Mr Dickenson, by the Vice President and again by Mr Barravecchio. In re-examination Ms Archer said that she had come to the conclusion that RP could make and understand an EPA.

Discussion followed about the nature of the Applicant’s case and the witnesses he intended to call. Mr Barravecchio attempted to provide information to the Tribunal but indicated that he had come only prepared for a directions hearing and was not briefed for the hearing proper. The Tribunal ordered that the hearing should commence on Monday, 22 September 2014.

Leave to appeal

Section 148(1) of the VCAT Act provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in a proceeding, to the Court of Appeal (where the Tribunal was constituted by a Vice President) if the Court of Appeal gives leave to appeal. In Secretary to the Department of Premier and Cabinet v Hulls[18] the Court of Appeal said that for leave to be granted the Applicant had to identify a question of law that was important to the appeal’s succeeding or failing and that, ordinarily, it would be sufficient to show that there was a real or significant argument to be put that error existed. Phillips JA said that he was attracted by the proposition articulated in Niemann[19] that the decision below should be ‘attended by sufficient doubt to justify the grant of leave to appeal’— if the order was a final order, that would ordinarily be sufficient to obtain leave. If the order was interlocutory (or ‘interim’ in terms of the VCAT Act) there might be particular reasons based in justice to both parties for not granting leave to appeal. For example, his Honour said that there were strong considerations against the fragmentation of any proceeding and the interruption of litigation by an appeal.
[18][1999] 3 VR 331 (Phillips JA, Tadgell and Batt JJA concurring) (‘Hulls’).
[19]Niemann v Electronics Industry Limited [1978] VR 431, 441–2.

The position of civil appeals generally is now governed by ss 14A–14D of the Supreme Court Act 1986. Section 14C provides that the Court of Appeal may grant an application for leave to appeal ‘under s 14A only if it is satisfied that the appeal has a real prospect of success’. Section 14A provides that any civil appeal (as defined by s 14A(3)) to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal. It seems to me that, as regards appeals under s 148 of the VCAT Act, s 14A of the Supreme Court Act 1986 is arguably inapplicable or redundant. Section 14A provides that any civil appeal requires leave to appeal, but, as regards appeals from VCAT, leave to appeal was already specifically provided for and dealt with in the VCAT Act itself, by s 148. Further, s 148(1) of the VCAT Act made and still makes provision for leave to appeal from VCAT not only to the Court of Appeal but also to the Trial Division. It therefore tentatively seems to me that, despite the definition of ‘civil appeal’ in s 14A(3) of the Supreme Court Act 1986, an application for leave to appeal under s 148(1) of the VCAT Act is not ‘an application for leave to appeal’ under s 14A of the Supreme Court Act 1986 (as referred to in s 14C of the Supreme Court Act 1986).

It would follow from the foregoing, I think, that, among other relevant considerations, the criterion ‘attended by sufficient doubt’ remains applicable to applications for leave to appeal under s 148 of the VCAT Act, whether the proposed appeal is to the Court of Appeal or to the Trial Division. It may be that, for practical purposes, this makes little or no difference because the case of an appeal with a real prospect of success (that is, not a fanciful prospect of success) would usually be the same as a case in which the decision under appeal was attended by sufficient doubt as would justify a grant of leave.

In the present application, at any rate, any such distinction has no significance because, in my opinion, the Applicant’s proposed appeal, on the questions of law to which I have referred,[20] has a real prospect of success in relation to the ground of reasonable apprehension of bias, and I would grant leave to appeal for the reasons that follow. Because the order below is an interim order, discretionary considerations may arise as Phillips JA pointed out in Hulls.[21] In my view, however, justice requires a grant of leave, notwithstanding any consequent delay to the litigation below; but it must be noted that the hearing proper has not commenced (with the limited exception of the evidence from Ms Archer) and such fragmentation to the litigation as will occur has probably already occurred.
[20]See [26] of these reasons.
[21]And like discretionary considerations might arise under 14C of the Supreme Court Act 1986 — see Kennedy v Shire of Campaspe [2015] VSCA 47, [14].

Reasonable apprehension of bias

As adumbrated by the Applicant’s proposed grounds of appeal,[22] the Applicant’s submissions to this Court have been cast very widely. However, I find it necessary only to refer to the following.
[22]See [25] of these reasons.

In the passages set out above at [29], at the very outset of the directions hearing on 3 July 2014, the Tribunal expressed the opinion that it was quite ridiculous the amount of time, effort and money being spent and being wasted together with an apparent preference for the evidence from the respondents that they had not acted under the EPA before a particular date, when it was the fact that the EPA had been created at a much earlier date. In that regard, I would repeat what I said above at [30] of these reasons. The Tribunal reiterated this apparent preference for the respondents’ case, on when the EPA had been activated, on other occasions.[23]
[23]See for example [35] of these reasons.

In the passage set out above at [33], the Tribunal stated that ‘this has all the appearances of a crusade on the part of the Applicant’ and that he had no right to conduct ‘an inquisitive crusade’ to satisfy himself that all of the things identified by him were being done in accordance with what he thought should happen. The Tribunal later referred a number of times to a ‘fishing exercise’.[24]
[24]See [37], [39] and [47] of these reasons.

Then the Tribunal referred to the application before it as ‘a complete fishing exercise’,[25] going onto say that there was ‘objective evidence along the way that the attorneys have been doing everything in their power in the interests of the protected person’ and that ‘[t]here is no suggestion in any of the objective evidence, that is, any statements that have been made outside the family, to the contrary.’
[25]See [36] of these reasons.

I think that each of the above statements by the Tribunal if taken in isolation, would properly be regarded as not inappropriate and as directed only to the interlocutory application before the Tribunal and the need for the proceeding before VCAT to be expedited, although the reference to a ‘crusade’ might be regarded as close to the line. However, when taken together and read in light of the interchange on 15 September 2014 to which I am about to refer, I consider that a different conclusion must follow. When Mr Dickenson, in his submissions to the Tribunal,[26] was heavily critical of the Applicant and said that the Applicant had ‘this paranoia and he wants to investigate everything that’s gone on’ and the Tribunal said that it agreed with everything that Mr Dickenson had said,[27] it became plain, in my view, that the Tribunal’s comments went beyond the interlocutory application before it and constituted apparent pre-judgment. When the Tribunal went on to say (although acknowledging that it had not looked at this in any detail) that this was really a fishing exercise and it all looked completely innocuous, there was, I consider, an apparent pre-judgment of, or tendency to pre-judge, the issues yet to be decided. I accept the contention on behalf of the respondents that the statements by the Tribunal must be read in context, including the undoubted need for expedition in the interests of the RP.
[26]See [50] of these reasons.
[27]See [52] of these reasons.

However, taking the above statements by the Tribunal as a whole, I consider that a fair minded lay observer might reasonably apprehend that the Tribunal, as presently constituted, might not bring an impartial and unprejudiced mind to a resolution of the questions to be decided at the substantive hearing. I would reject the submissions of the respondents to the contrary.

I find it unnecessary to examine the other bases put forward by the Applicant in support of the ground of reasonable apprehension of bias and unnecessary to consider the ground of failure to accord procedural fairness. The hearing of the application for leave was treated as the hearing of the appeal, if leave be granted. For the foregoing reasons, I would grant leave to appeal, allow the appeal, set aside

the Tribunal’s order and in lieu thereof order that the Tribunal be reconstituted pursuant to s 108(2)(a) of the VCAT Act.

KYROU JA:

I have had the benefit of reading in draft the reasons for judgment of Mandie JA. I agree with his Honour’s proposed orders broadly for the reasons he has given. I wish only to make some brief observations on the test to be applied in applications for leave to appeal to this Court from an order of the President or a Vice President of VCAT, the discretionary considerations that may apply to such an application and the inordinate delay in the current VCAT proceeding.

There is some uncertainty about whether s 14C of the Supreme Court Act 1986 (‘SC Act’) applies to such an application. As that section only applies to ‘an application for leave to appeal under s 14A’ of the SC Act, the question arises whether an application for leave to appeal from an order of VCAT constitutes an application for leave to appeal under s 14A. The starting point for analysing this issue is a consideration of whether an appeal under s 148 of the VCAT Act constitutes a ‘civil appeal to the Court of Appeal’ for the purposes of s 14A(1) of the SC Act. This question takes one to the definition of ‘civil appeal’ in s 14A(3), which provides as follows:

For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

On one view, an appeal under s 148 of the VCAT Act is ‘an appeal … for which … any other Act … provide[s] an appeal to the Court of Appeal’ and is thus a ‘civil appeal’ for the purposes of s 14A(1) of the SC Act. Although an appeal under s 148 of the VCAT Act is not as of right but requires leave, s 148 can accurately be described as providing an appeal to the Court of Appeal. This is reinforced by the wording of s 148: it states that a party to a proceeding ‘may appeal … to the Court of

Appeal’ subject to obtaining leave, rather than that such a party ‘may seek leave to appeal … to the Court of Appeal’.

On the basis of the above analysis, it is arguable that the definition of ‘civil appeal’ in s 14A(3) of the SC Act is wide enough to cover an appeal under s 148 of the VCAT Act and that, consequently, such an appeal falls within s 14A(1) and is subject to the ‘real prospect of success’ requirement in s 14C. The obvious advantage of such a construction is that it ensures that all applications for leave to appeal to the Court of Appeal are subject to the test set out in s 14C and to the provisions of s 14D.

The above construction, however, must be considered in the context of the history of the relevant provisions and the legislative schemes to which they belong. The leave obligation in s 148 of the VCAT Act has existed from the enactment of the VCAT Act in 1998. The principles that have governed applications for leave to appeal under s 148 have been clear since the Court of Appeal decided Hulls[28] in August 1999. Those principles have operated side by side with the principles in Niemann[29] which this Court has traditionally applied in considering applications for leave to appeal from interlocutory orders. Against this historical background, it would have been expected that if Parliament had intended to alter the settled principles governing applications for leave to appeal from an order of VCAT, it would have expressly said so. No provisions appear in the SC Act which expressly give effect to any such intention.
[28]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
[29]Niemann v Electronic Industries Ltd [1978] VR 431.

The fact that s 148(2) of the VCAT Act has not been amended consequent upon the enactment of s 14B of the SC Act indicates that applications for leave to appeal from an order of VCAT continue to be governed by s 148 and are not subject to ss 14A to 14D of the SC Act.

Section 14B(1) of the SC Act provides that an application for leave to appeal under s 14A must be filed ‘within 28 days from the date of the … order … which is the subject of appeal unless the Rules otherwise provide.’ Section 148(2) of the VCAT Act, on the other hand, provides that an application for leave to appeal from an order of VCAT ‘must be made … no later than 28 days after the day of the order of the Tribunal’ and must be ‘in accordance with the rules of the Supreme Court.’ Section 148(5) provides that the Court of Appeal ‘may at any time extend or abridge any time limit fixed by or under this section.’

If applications for leave to appeal from an order of VCAT were intended to be governed by ss 14A to 14D of the SC Act, there would have been no need for s 148(2) of the VCAT Act to continue to apply to applications for leave to appeal to the Court of Appeal, and that section would have been amended to confine it to applications for leave to appeal to the Trial Division. That is because s 14B(1) specifies the applicable time limit of 28 days and provides that this period can be modified by the rules. As ss 14B to 14D of the SC Act and the rules are capable of dealing with all procedural matters concerning applications for leave to appeal, it would not have been necessary for s 148(2) of the VCAT Act to continue to apply. The existence of this overlap between s 14B of the SC Act and s 148(2) of the VCAT Act suggests that it was intended that s 148 of the VCAT Act would continue to apply unaffected by ss 14A to 14D of the SC Act.

This conclusion is supported by the inconsistency between those provisions. Section 14B(1) of the SC Act specifies a 28 day deadline which is capable of modification by the rules, whereas s 148(2) of the VCAT Act specifies a 28 day deadline without providing for modification by the rules. Any modification to the time limit in s 148(2) can only be made by an order of the Court of Appeal under s 148(5).

The above discussion indicates that there are competing arguments on whether applications for leave to appeal from an order of VCAT continue to be governed solely by s 148 of the VCAT Act and thus whether such applications are to be determined by reference to the principles set out in Hulls or the ‘real prospect of success’ test in s 14C of the SC Act. If such applications do not constitute ‘an application for leave to appeal under s 14A’ then the provisions of s 14D of the SC Act — which deal with the composition and powers of the Court of Appeal — may not apply to those applications. This is because s 14D(1) applies to ‘an application for leave to appeal under s 14A’.

I find it unnecessary to decide the above issues as the outcome in the present case would have been the same irrespective of which test had been applied.

Irrespective of whether ss 14A to 14D of the SC Act apply to an application for leave to appeal to the Court of Appeal from an order of the President or a Vice President of VCAT, the nature and scope of the appeal which is the subject of the application are governed by s 148 of the VCAT Act. That is, the appeal is ‘on a question of law’. It follows that the application for leave to appeal must set out the questions of law that are said to be involved in the order of VCAT that is sought to be impugned. The current prescribed form for an application for leave to appeal — form 64A — does not expressly require that questions of law be specified. The applicant should modify the form to the extent necessary to enable the question or questions of law to be set out.

Leave to appeal from an interlocutory or interim order can be refused on discretionary grounds, including where an appeal would result in unacceptable fragmentation of the proceeding below.[30] Where in the course of a hearing of a proceeding a party makes an application under s 108 of the VCAT Act for the VCAT to be reconstituted and an order is made by a presidential member rejecting that application, this Court may refuse leave to appeal against that order on discretionary grounds so as not to disrupt the hearing and determination of the proceeding. In such a case, it may be in the interests of the parties and the administration of justice for VCAT as currently constituted to continue hearing the proceeding and to make final orders. If those orders are adverse to the party which made the unsuccessful application under s 108, that party could apply for leave to appeal against the final orders and include as a ground of appeal any alleged error of law relating to the determination of that application.[31]
[30]Hulls [1999] 3 VR 313, 336 [14]. See also VBI Properties Pty Ltd v Victorian Civil and Administrative Tribunal [2003] VSCA 17, [10]–[11]; Pong Property Development Pty Ltd v Strangio (2005) 23 VAR 128, 143 [71]; North Burnside Pty Ltd v Melton Shire Council (2006) 18 VR 1, 18 [71].
[31]The fact that a party made an application under s 108 would ordinarily preclude an argument that that party waived its right to rely on a ground of appeal based on apprehended bias. See Magazzu v Business Licensing Authority (2001) 17 VAR 265, 271 [18]–[19].

The above approach will sometimes be the preferable course because it will ensure that the VCAT hearing is completed and any appeal that is the subject of leave can deal with all legal questions that are said to arise from VCAT’s final orders. The avoidance of fragmentation would save the parties time and money and would promote the overarching purpose set out in s 7 of the Civil Procedure Act 2010. Further, if VCAT’s final orders are in favour of the party that made the unsuccessful application under s 108 of the VCAT Act, the issues that gave rise to that application would cease to be of concern and the application for leave to appeal that would otherwise have been made in respect of that unsuccessful application would become unnecessary.

For the reasons given by Mandie JA, the discretionary considerations discussed above are not engaged in the present case.

Finally, a review of the three year history of the current VCAT proceeding strongly indicates that the parties can and should do more to properly identify the real issues in dispute and to conduct the proceeding more cooperatively and expeditiously. They need to constantly keep in mind that the proceeding is not about them but about what is in the best interests of their mother, the represented person.[32]
[32]Guardianship and Administration Act 1986 ss 4(2)(b), 22(3), 28(1), 46(3), 49(1); Instruments Act 1958 ss 125B(5)(a), 125X(1).

Protracted litigation which is vigorously conducted along traditional adversarial lines without a sense of perspective or a willingness to engage in sensible dialogue is never in the best interests of a represented person.

In the present case, the parties now must work with VCAT to ensure that the proceeding is listed for hearing without delay and that the hearing is conducted constructively and efficiently. The best interests of their mother demand nothing less.

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[2015] VSCA 121

27 May 2015