IWN v AJU
[2024] VSC 562
•11 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 02298
| IWN (A pseudonym) | Applicant |
| v | |
| AJU (A pseudonym) | Respondent |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2024 |
DATE OF JUDGMENT: | 11 September 2024 |
CASE MAY BE CITED AS: | IWN v AJU |
MEDIUM NEUTRAL CITATION: | [2024] VSC 562 |
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GUARDIANSHIP AND ADMINISTRATION – Powers of Attorney – Victorian Civil and Administrative Tribunal orders revoking appointment of attorney and appointing guardian – Rehearing of application by Tribunal and variation of original orders – Extension of time to apply for leave to appeal - Application refused – Guardianship and Administration Act 2019 (Vic), ss 30, 38, 157 - Powers of Attorney Act 2014 (Vic) ss 5, 116, 120(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Self-represented | |
| For the Respondent | Self-represented |
HER HONOUR:
Introduction
In this judgment I will use anonymised pseudonyms to refer to the parties. This is done in order to be consistent with the decisions of the Victorian Civil and Administrative Tribunal in GYQ (Guardianship),[1] where pseudonyms were allocated to a person to whom a guardian was appointed, GYQ, and to his son (IWN) and daughter (AJU) in order to protect the confidentiality of their personal information.
[1][2023] VCAT 397 and [2024] VCAT 114.
GYQ is 87 years of age,[2] and is the principal under a power of attorney made on 24 May 2022, appointing his son IWN, who is the Applicant in this application, as attorney. GYQ’s daughter AJU, the Respondent in this application, applied to the Tribunal for that appointment to be revoked.
[2]Tribunal Medical Report completed by Dr Esmaeal Mostafavi of Wyndhamvale Health Care on 14 October 2019, in Exhibit DK-1, Affidavit of IWN affirmed on 16 May 2024 (First IWN Affidavit).
The Tribunal made orders on 5 December 2022 (December 2022 Orders) which:
(a) revoked the appointment of the Applicant as the enduring power of attorney for GYQ pursuant to the Powers of Attorney Act 2014 (Vic) (Power of Attorney Order); and
(b) appointed the Office of the Public Advocate as guardian for GYQ under the Guardianship and Administration Act 2019 (Vic) with power to make decisions about:
(i) where GYQ lives;
(ii) his medical treatment, and
(iii) whether any services are needed by GYQ and if so, which ones (Guardianship Order).[3]
[3]Order of Member C Powles made on 5 December 2022 (December 2022 Orders).
Further orders, as described below, were made on a rehearing of the December 2022 Orders, and on a reassessment of the Guardianship Order. However, the Applicant has applied under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) for leave to appeal only the December 2022 Orders, and for an extension of time to seek that leave.
For the reasons that follow, I refuse that application.
Procedural history of the December 2022 Orders
On 8 March 2022, the Applicant made an application to the Tribunal seeking orders to be appointed as guardian and/or administrator for his father, GYQ.[4]
[4]GYQ (Guardianship) [2023] VCAT 397, [2]; Affidavit of AJU sworn on 18 July 2024, [9] (Second AJU Affidavit).
On 24 May 2022, GYQ made an enduring power of attorney which appointed the Applicant as attorney,[5] and on 2 June 2022, the Tribunal made orders granting the Applicant permission to withdraw the 8 March 2022 application.[6]
[5]December 2022 Orders, in Exhibit DK-1, Affidavit of IWN of 21 April 2024.
[6]Order of Member Powles made on 2 June 2022, in Exhibit DK-2, Affidavit of IWN affirmed 11 June 2024.
On 26 July 2022, the Respondent, GYQ’s daughter, applied for orders revoking, amending or suspending the appointment of the Applicant as attorney under the enduring power of attorney.[7]
[7]December 2022 Orders; Affidavit of AJU sworn on 21 June 2024, [4] (First AJU Affidavit); Exhibit JK-1, 4–15.
The Respondent also applied on 24 October 2022 to the Tribunal to appoint an independent guardian and administrator for GYQ.[8]
[8]GYQ (Guardianship) [2023] VCAT 397, [9].
On 9 November 2022, the Tribunal made orders that the hearing of the application be adjourned to 5 December 2022.[9] The Tribunal stated that it made the order to adjourn because:
[IWN] did not attend today's hearing and did not arrange for [GYQ] to participate in the hearing.
VCAT notes that [IWN] has now not attended to hearings before VCAT without a reasonable explanation.
If [IWN] does not attend the next scheduled hearing and arrange for [GYQ] to participate in that hearing, VCAT will consider making orders revoking the appointment of [IWN] as attorney for [GYQ] because failing to attend VCAT hearings may be considered a sufficient breach of an attorney's obligations to justify revocation of their appointment.[10]
[9]Order of Member Powles made on 9 November 2022 (November 2022 Orders), in Exhibit JK-1, First AJU Affidavit.
[10]November 2022 Orders.
There was a hearing of the application on 5 December 2022 before Tribunal Member Powles.[11] GYQ, the Applicant and the Respondent attended the hearing.[12]
[11]December 2022 Orders.
[12]GYQ (Guardianship) [2023] VCAT 397, [11].
Following the hearing, the Tribunal made the December 2022 Orders. In the document setting out the orders, the Tribunal stated that it made the Power of Attorney Order because:
– the attorney is not complying with requirements of the Powers of Attorney Act 2014 that relate to enduring powers of attorney, and
–the principal does not have capacity to make decisions about making an enduring power of attorney.[13]
[13]December 2022 Orders.
The Tribunal stated that it made the Guardianship Order because:
–due to a disability, [GYQ] does not have capacity to make decisions about the personal matters listed in this order;
– [GYQ] needs a guardian, considering the factors set out in section 31 of the Act, including their will and preferences (what’s important to them); and
–this guardianship order will promote the personal and social wellbeing of [GYQ].[14]
[14]December 2022 Orders.
The Tribunal stated in December 2022 Orders that it also gave oral reasons for those orders, however no transcript of that hearing was provided by the Applicant in support of the present application.[15]
[15]The Applicant was given the opportunity do so by Order 2 of the Orders of Judicial Registrar McCann on 5 June 2024 and an extension of time to do so by Order 3 of the Orders of Judicial Registrar McCann on 9 July 2024, which specifically noted the absence of any transcript of the Tribunal hearing on 5 December 2022. By email on 5 September 2024, my chambers inquired whether the Applicant intended to file an affidavit exhibiting the transcript of the hearing before the Tribunal. By email on 6 September 2024, the Applicant confirmed that he did not intend to file any further affidavits in this proceeding.
The December 2022 Orders state that the Power of Attorney Order and Guardianship Order would apply until the Tribunal makes another order, and that the Tribunal must reassess the orders no later than 30 June 2023.
On 9 January 2023, the Tribunal made orders under the slip rule that:
The order dated 05 December 2022 is changed to include the following:
C. Administrator appointment
1.The application for appointment of an administrator for [GYQ] is adjourned to allow time for the Public Advocate to arrange for a medical capacity assessment of whether [GYQ] has decision-making capacity in relation to:
a. financial matters; and
b.the appointment of [IWN] as financial power of attorney made 24 May 2022.
2.The application for appointment of an administrator will be relisted for hearing at a date and time as soon as possible after the Public Advocate provides the medical capacity assessment referred to above.[16]
Application for rehearing of the applications leading to the December 2022 Orders and subsequent reassessment
[16]Order of Member Powles made on 9 January 2023, in Exhibit JK-1, First AJU Affidavit.
On 15 December 2022, the Applicant submitted an application to the Tribunal for a rehearing and review of the applications which had resulted in the December 2022 Orders.[17] A rehearing is provided for by Part 7 of the Guardianship and Administration Act. Section 150(1) of that Act provides that any person who was a party to the proceeding in which the Tribunal made an order under the Act may apply for a re-hearing of the application.
[17]Affidavit of IWN affirmed on 12 August 2024 (Fourth Affidavit of IWN), [6].
There was a rehearing of the application on 1 March 2023 before Tribunal Member Hoysted via videoconference.[18] Following the rehearing, the Tribunal made orders dated 1 March 2023, which were amended under the slip rule by orders dated 6 April 2023 and 20 April 2023 (March 2023 Orders). At the request of IWN, the Tribunal provided written reasons for those orders on 1 May 2023.[19]
[18]Fourth Affidavit of IWN, [6]; GYQ (Guardianship) [2023] VCAT 397, [16].
[19]GYQ (Guardianship) [2023] VCAT 397. Fourth Affidavit of IWN, [6]. By email dated 9 September 2024, my chambers requested a copy of the orders made and reasons given by Tribunal Member Hoysted, which the Applicant stated in his affidavit he received by the Applicant on 1 May 2023, but had not exhibited. These were provided on the same day.
The March 2023 Orders varied the December 2022 Orders in two ways:
(a) it suspended the enduring power of attorney in relation to personal matters, rather than revoking the appointment of the attorney; and
(b) it gave the Public Advocate as guardian additional authority to make decisions about access to GYQ.[20]
[20]GYQ (Guardianship) [2023] VCAT 397, [49].
A hearing for the reassessment of the appointment of the Public Advocate as guardian and the application for appointment of an administrator for GYQ was held on 30 August 2023 before Senior Member Powles via teleconference,[21] and resumed on 30 October 2023.[22]
[21]GYQ (Guardianship) [2024] VCAT 114, [10].
[22]GYQ (Guardianship) [2024] VCAT 114, [10].
Following the hearing on 30 October 2023, the Tribunal made orders (the October 2023 Orders):
(a) appointing the Public Advocate as guardian for GYQ, with power to make decisions with respect to the following personal matters:
(iv) where GYQ lives,
(v) medical treatment,
(vi) the support services that are provided to GYQ, and
(vii) who can visit GYQ, or who can associate with GYQ and when or where; and
(b) appointing State Trustees Limited as administrator for GYQ, with power to make decisions about all financial matters under ss 46(1), 51 and 52 of the Guardianship and Administration Act.[23]
[23]October 2023 Orders; GYQ (Guardianship) [2024] VCAT 114.
Application for leave to appeal
A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding.[24] The application for leave must be made within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide.[25] The Court may extend that time.[26]
[24]VCAT Act, 148(1).
[25]VCAT Act, s 148(2).
[26]VCAT Act, s 148(5).
On 23 April 2024, the Applicant filed a Notice of Appeal seeking leave to appeal the December 2022 Orders. This was filed 504 days after the December 2022 Orders were made. On 15 July 2024, the Applicant filed an Amended Notice of Appeal setting out further reasons why the Applicant sought an extension of time.
The Applicant seeks leave only to appeal the December 2022 Orders, and does not address the subsequent March 2023 Orders made by Member Hoysted, following the rehearing, nor the October 2023 Orders following reassessment of the Guardianship Order.
The Amended Notice of Appeal seeks the following orders:
1)Restore the full legitimacy of the Enduring Power of Attorney (EPOA) that the principal executed on 24/5/2022 through his Solicitor, Mr. Chua.
2) The respondent pay all fees associated with any out-of-pocket expenses (disbursements) incurred during this appeal process.
3) The order be set aside and the matter remitted back to VCAT to be reheard by a different member.
On 10 September 2024, both the Applicant and Respondent appeared in person at a hearing to make submissions on the application for leave to appeal and for an extension of time.
Application for an extension of time to appeal
Relevant law
The following principles guide the exercise of the Court’s discretion to grant an extension of time.
The purpose of the discretion is to ensure that justice can be done between the parties.[27]
[27]Jackamarra v Krakouer (1998) 195 CLR 516, 539-540 (Kirby J); Brandwill Holdings Pty Ltd v Jonson & Ors [2014] VSC 356, [12(b)].
(a) Factors relevant to the exercise of the discretion are the length of the delay in applying for leave to appeal and the reasons for delay, whether there is an arguable case, whether the proposed appeal would be futile or of limited practical impact in the circumstances, and whether there is any prejudice to the respondent to the proposed appeal if time is extended.[28]
[28]Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106, [15] (Nettle and Neave JJA); Muto v Secretary to the Department of Planning and Community Development (2013) 38 VR 293, 296 [13]; Jackamarra, 520-21 (Brennan CJ and McHugh J); Chopra v Department of Education and Training [2019] VSC 488, [23](b) (Richards J).
(b) The longer the period of delay, the more compelling the explanation for the delay is required to be.[29]
(c) Upon expiry of the time limited for an appeal or application for leave to appeal, there is a vested right to retain the judgment or order unless the application is granted.[30]
(d) The applicant for the extension of time has the burden of establishing that it should be granted.[31]
[29]Brandwill [2014] VSC 356, [13].
[30]Edwards v Transport Accident Commission [2013] VSC 557, [36] (Derham AsJ).
[31]Jackamarra, 540 (Kirby J); Brandwill [2014] VSC 356, [12(f)]; Edwards v Transport Accident Commission [2013] VSC 557, [37] (Derham AsJ).
In considering the question of an arguable case for the grant of leave to appeal it is appropriate to take into account the basis on which leave to appeal may be granted. Section 148(2A) of the VCAT Act provides that the Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a ‘real prospect of success’.
The Amended Notice of Appeal
The Amended Notice of Appeal identifies the following as questions of law:
Presumption of Capacity:
Did the VCAT members have enough evidence to say the principal couldn't make decisions for themselves when they appointed the attorney? Was there enough proof to take away the attorney's power?
Fairness:
Did the VCAT members treat the attorney and principal fairly? Did they listen to all the important evidence and give good reasons for their decisions?
Misuse of Power:
Did the VCAT members wrongly let the applicant say they were interested in the principal's affairs? Was there a risk that the applicant wanted to control the principal's money instead of helping them?
The Amended Notice of Appeal relies on the following proposed grounds of appeal:
Ignored Evidence:
VCAT didn't pay enough attention to important facts, like the principal's ability to make decisions when they chose the attorney. They also didn't listen to evidence showing the attorney was doing a good job.
Wrong Decision:
VCAT made mistakes in understanding and using the law. They shouldn't have let the applicant claim they were interested in the principal's affairs, especially if it was mainly about money and not the principal's well-being.
Unfair Treatment:
The way VCAT handled the case wasn't fair. They didn't give the attorney a chance to explain things properly, and they made decisions that seemed to hurt the principal and the attorney without good reasons.
The Applicant’s submissions on the application for an extension of time to seek leave to appeal the December 2022 Orders
The Applicant seeks an extension of time to seek leave to appeal the December 2022 Orders. As noted above, despite a new decision having been made following the rehearing of the applications which had led to the December 2022 Orders, the Applicant did not seek leave to appeal the March 2023 Orders nor the October 2023 Orders, nor did he seek an extension of time in which to appeal them.
The Applicant explained at the hearing that he considered that the errors he identified in the December 2022 Orders affected the orders made following the rehearing and on the reassessment.
The Applicant submitted that he should be granted an extension of time because he had only received a document he said was important to the appeal in February 2024. He submitted that:
Recently a crucial evidence from State Trust Limited (STL) became available. This evidence revealed fraudulent actions by the applicant for revocation, [AJU]. Despite attempting to submit this evidence during the previous hearing, STL's non-cooperation hindered the process. However, STL provided the necessary document on 19 February 2024, highlighting serious misconduct by the applicant.
VCAT revoked my Enduring Power of Attorney (EPOA) without sufficient evidence on 5 December 2022, causing harm to the principal. Despite clear indications of the principal's decision-making capacity, VCAT's decision lacked due diligence and breached its responsibilities.
I respectfully request an extension of time to submit the leave to appeal, allowing for proper consideration of the evidence and the principal's best interests.[32]
[32]Amended Notice of Appeal, 1-2.
The new evidence to which the Applicant refers is a translation of a judgment by a Chinese court from July 2021, which he had in the original at the time of the Tribunal hearings, but which he says the State Trustees Ltd passed onto him on 19 February 2024. He says this judgment shows that the Respondent ‘hijacked the principal’s wife to Shanghai’ and ‘rented out my father’s apartment in Shanghai without my father’s knowledge and consent and kept all the rental income as the respondent’s income’. He says this shows that the Tribunal ‘shouldn’t consider the respondent a valid interested party to raise her revoke application submitted to VCAT in July 2022 because what she did was not for my father’s well-being’.[33]
[33]Amended Notice of Appeal, 2.
The Applicant’s evidence, and his written submissions and oral submissions at the hearing addressed this and other past issues between the Respondent and his father, and the Respondent and himself. He described the relevance of these submissions, as with the judgment of the Chinese court, as being that the Respondent should not be regarded as an interested party in making the applications to the Tribunal for orders relating to the enduring power of attorney and guardianship.
The Guardianship and Administration Act provides that the parties to a proceeding in the Tribunal on an application for guardianship or administration orders are people including the applicant, the proposed represented person, any current administrator for the proposed represented person and any other person the Tribunal orders to be joined as a party to the proceeding.[34] On a rehearing, the parties are the applicant for a rehearing and any person who was a party to the proceeding on the application at first instance.[35] It is clear that the Respondent on this appeal, who was the applicant to the Tribunal in the applications which had led to the December 2022 Orders, was an appropriate party to the proceeding. She was also an appropriate party to the rehearing application. There was no basis on which the Tribunal should have declined to hear her applications.
[34]Guardianship and Administration Act, s 25.
[35]Guardianship and Administration Act s 154(a).
The Applicant’s allegations as to the Respondent’s conduct and as to her relationship with GYQ had no other relevance to the making of the December 2022 Orders, the March 2023 Orders or the October 2023 Orders so it is unnecessary to address them further.
There was no other basis identified by the Applicant for the extreme delay in bringing his application for leave to appeal the December 2022 Orders. Even if the Applicant had a genuine but incorrect belief that the document relating to the court proceeding in China was relevant to his proposed appeal, he did not explain why, having received the translation on 19 February 2024, he did not issue the application for leave to appeal until 23 April 2024, over 60 days later. Further, as discussed below, any properly constituted application for leave to appeal would need to have addressed the March 2023 Orders made on the rehearing, which amended and superseded the original orders. Accepting that those orders were amended on 6 April and 20 April 2023, and that reasons were given on 1 May 2023, there remains a very lengthy delay after that time before the Applicant sought leave to appeal in this Court.
The lengthy delay, and the lack of an adequate explanation for the delay would be a sufficient basis in my view to refuse an extension of time. Given that the Applicant is self-represented, I accept that he may have had a belief that he needed access to the translated judgment of the Chinese court before making his application for leave to appeal, even though that belief was wrong. However, even in those circumstances it was reasonable to expect that he would have given evidence as to his efforts to obtain a translation at an earlier time, and to explain why he did not bring the application promptly after receiving the translation on 19 February 2024.
In this case, given the Applicant’s unrepresented status, I have proceeded, in the context of considering whether an extension of time should be given to seek leave to appeal, to consider whether he has an arguable case on his proposed application. I have concluded for the reasons below that his application for leave did not disclose a real prospect of success, and that for this reason, in combination with the failure adequately to explain the delay in making the application, it is appropriate to refuse an extension of time in which to seek leave to appeal.
The Tribunal’s statutory powers relevant to the decisions
The December 2022 Orders, the March 2023 Orders and the October 2023 Orders all involved the exercise of powers under the Guardianship and Administration Act and the Powers of Attorney Act. It is useful to refer briefly to the Tribunal’s powers under those Acts and the key provisions before considering the basis of the application for leave to appeal.
The Tribunal is empowered by the Guardianship and Administration Act to make a guardianship order or administration order in cases where a person lacks decision-making capability because of a disability.[36] A guardianship order confers on the person appointed as guardian powers to make decisions about the personal matters in relation to the represented person that are specified in the order; the power to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian, and the power to undertake legal proceedings, if specified in the order.[37]
[36]Guardianship and Administration Act, s 30.
[37]Guardianship and Administration Act, s 38(1).
The Tribunal also has powers under the Powers of Attorney Act to make orders with respect to powers of attorney. Relevantly, pursuant to s 116(1) of the Powers of Attorney Act, the Tribunal may make orders about an enduring power of attorney.
Matters about which VCAT may make an order
(1)On application under Division 3, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to an enduring power of attorney—
(a)any matter for or with respect to an attorney's power under the enduring power of attorney including the following—
(i) the scope of the power of attorney;
(ii) the exercise of the power of attorney;
…
(h)any other matter VCAT considers necessary in relation to the enduring power of attorney.
The Tribunal may also revoke the appointment of an attorney under an enduring power of attorney, and suspend an enduring power of attorney for a specified period, either generally or as to a specified matter, pursuant to s 120(1)(b) and (d) of the Powers of Attorney Act.
The basis of the proposed application for leave to appeal
As to the basis on which the appeal was brought, the Applicant submitted that the Tribunal was wrong, when making the December 2022 Orders, to have made the findings first that his father ‘does not have capacity to make decisions about making an enduring power of attorney’[38] and secondly that ‘due to a disability, [GYQ] does not have capacity to make decisions about the personal matters listed in this order…’.[39] The orders should, he submitted, therefore be set aside.
[38]December 2022 Orders, part A.
[39]December 2022 Orders, part B.
The Applicant submitted that the Tribunal, in making the December 2022 Orders, did not consider the evidence properly in coming to these conclusions. He acknowledged that the Tribunal had a medical report before it of GYQ’s general practitioner, Dr Sam Mostafavi, dated 8 March 2022.[40] In that report Dr Mostafavi ticked ‘yes’ in response to the question as to whether GYQ had a disability, and stated in response to the question about the nature of the disability:
–Orstostatic [sic] tremor (progression, recently not able to walk or sit)
–slowly declining in cognition
[40]First IWN Affidavit [7], DK-1. Initially, in a written Outline of Submissions dated 29 July 2024, at part 1, the Applicant appeared to misconstrue the date of this report, referring to it as having been made on 8 March 2023, and contended that Member Powles had, in making the December 2022 Orders, wrongly relied on the report as ‘retrospective justification’. He did not pursue this submission at the hearing.
Dr Mostafavi said he ‘cannot be sure about’ whether GYQ was able to understand the impact of making an enduring power of attorney, and that he had ‘some’ decision making capacity in relation to medical treatment decisions and decisions around general living circumstances, but said he could not comment on whether GYQ had any capacity to make decisions about his financial and property affairs.
The Applicant submitted that little weight should be given to this report as the doctor had not seen GYQ in person for two years, and had given the report after a video consultation, and had stated in the report that he could not conduct a mental state examination ‘due to language barrier and video consult barrier’.[41]
[41]Fourth Affidavit of IWN, [4].
The Applicant also submitted that the following other evidence that he provided to the Tribunal showed that his father had capacity when executing the enduring power of attorney and also at the Tribunal hearing:
(a) a short video of GYQ recorded on 22 May 2024 in which he spoke in English and which had been emailed to the Tribunal; [42]
(b) a hearing test report dated 21 October 2019 showing GYQ’s poor hearing supported a conclusion that Dr Mostafavi’s report was affected by GYQ’s poor hearing, rather than by GYQ’s mental state.[43]
(c) GYQ appeared at the hearing before the Chinese court in 2021, which the Applicant contended must have meant that he had capacity at the time.
[42]First IWN Affidavit [8], DK-1 30-46.
[43]First IWN Affidavit [9], DK-1 47.
The Applicant submitted that the Tribunal should have considered this evidence which showed that GYQ did have capacity, and that there was insufficient evidence to overcome the presumption under the Guardianship and Administration Act that GYQ had decision making capacity.[44]
[44]I understood the Applicant to be referring to s 5 of the Act. Section 5(1) provides that a person has capacity to make a decision in relation to a matter (decision making capacity) if the person is able to perform certain functions in relation to making a decision. Section 5(2) provides that for the purposes of assessing decision making capacity ‘a person is presumed to have decision-making capacity unless there is evidence to the contrary’. Section 4(2) of the Powers of Attorney Act also provides that a person is presumed to have decision making capacity unless there is evidence to the contrary.
Although the orders and accompanying comments of Member Powles are very brief, they address the matters required by the Powers of Attorney Act to be addressed if revoking the appointment of an attorney,[45] and the conditions under the Guardianship and Administration Act for appointment of a guardian. There is nothing to indicate that he had not taken into account and properly assessed the evidence before him in determining that GYQ did not have capacity and had a disability. It is not for this Court on an application for leave to appeal a Tribunal decision to assess evidence which was before the Tribunal and substitute its own view. At the prior hearing of 9 November 2022 Member Powles had observed that IWN did not attend the hearing and did not arrange for GYQ to participate, that there was no reasonable explanation for the non-attendance, and that this may be construed as a sufficient breach of attorney’s obligations to justify revocation of their appointment. This indicates a basis for the other finding in the December 2022 Orders, that the attorney is not complying with requirements of the Powers of Attorney Act relating to enduring powers of attorney.
[45] Section 120(2) of the Powers of Attorney Act provides that ‘[b]efore making an order … to revoke the appointment of an attorney under an enduring power of attorney VCAT must be satisfied that—
There is a more significant difficulty facing the Applicant in his submissions as to inadequacy of evidence, which makes it unnecessary to consider Member Powles’ decision further. The applications which resulted in Member Powles’ December 2022 Orders were the subject of a full rehearing under s 150 of the Guardianship and Administration Act on 1 March 2023. That rehearing involved a video hearing attended by the Applicant, GYQ and the Respondent, at which Senior Member Hoysted heard evidence and submissions. He then made orders to vary the December 2022 Orders, as he was entitled to do pursuant to his powers under s 157(2) of the Guardianship and Administration Act. The varied and restated orders were the March 2023 Orders (which themselves were amended on 6 and 20 April 2023).
Senior Member Hoysted, in rehearing the applications, had all the functions and powers of the Tribunal at first instance,[46] and acted on the evidence before him. It is, therefore, appropriate to consider the orders as varied on that rehearing, and Senior Member Hoysted’s reasons for making the varied orders. Senior Member Hoysted gave detailed reasons for his decision in his reasons of 1 May 2023, which show that:
[46]Guardianship and Administration Act, s 157(1).
(a) he heard evidence and submissions from IWN;[47]
[47]Summarised in some detail in GYQ (Guardianship) [2023] VCAT 397, [18]-[22].
(b) he heard evidence from Mr Kin Wee Chua, the lawyer who had prepared the enduring power of attorney dated 24 May 2022 and had seen it witnessed;[48]
[48]GYQ (Guardianship) [2023] VCAT 397, [23]-[24].
(c) he heard evidence from the delegated guardian of the Public Advocate, Ms Quick;[49]
(d) he observed GYQ attending by video, and lying in his bed;[50]
(e) he heard evidence and submissions from AJU.[51]
[49]GYQ (Guardianship) [2023] VCAT 397, [27]-[36].
[50]GYQ (Guardianship) [2023] VCAT 397, [16].
[51]GYQ (Guardianship) [2023] VCAT 397, [25]-[26].
After hearing all of that evidence and the submissions of IWN and AJU, Senior Member Hoysted concluded that there was sufficient evidence to displace the presumption of capacity ‘in the form of Dr Mostafavi’s report of slowly declining cognition, statements made by IWN and AJU, the observations of Ms Quick and the interpreter, and my own, albeit limited observations’.[52] Senior Member Hoysted also considered, as he was required to do by s 31 of the Guardianship and Administration Act, the will and preferences of GYQ as the proposed represented person. He referred in this context to the evidence of the delegate of the guardian, Ms Quick, to the effect that GYQ readily accepted her recommendation that she organise a geriatrician to see him, and support services to assist him. This, in the Tribunal member’s view, showed ‘he recognised he needed help and saw Ms Quick was willing and able to organise the care and treatment he needed’.[53]
[52]GYQ (Guardianship) [2023] VCAT 397, [40].
[53]GYQ (Guardianship) [2023] VCAT 397, [41].
Senior Member Hoysted also accepted that the evidence established that GYQ wished to live with his son, but that he also wished to see his daughter, and that it was possible that IWN was ‘for his own reasons, presenting his sister in a negative light to GYQ’.[54] He concluded that IWN had not been able to engage an appropriate doctor to see GYQ nor facilitated treatment and rehabilitation, and had presented barriers to the appointed guardian’s access to GYQ. Senior Member Hoysted was not therefore satisfied that IWN could or would make decisions that would advance the personal and social wellbeing of his father.[55] He observed that he had ‘found IWN to be more focussed on prosecuting his sister than securing the care his father obviously needed’.[56]
[54]GYQ (Guardianship) [2023] VCAT 397, [42].
[55]GYQ (Guardianship) [2023] VCAT 397, [42]-[44].
[56]GYQ (Guardianship) [2023] VCAT 397, [45].
All of these findings provided ample reasons for Senior Member Hoysted’s conclusions as to GYQ’s capacity, the appointment of a guardian with the same powers as provided for in the December 2022 Orders and an additional power relating to access to GYQ, and for the need for a suspension of the enduring power of attorney with respect to personal matters.
There is no basis, therefore, for the proposed grounds of appeal asserting that the Tribunal ignored evidence nor that it wrongly applied the law. The third proposed ground of appeal, that the way the Tribunal dealt with the proceeding was unfair, also has no proper foundation. The Applicant contends that the Tribunal ‘didn’t give the attorney a chance to explain things properly, and they made decisions that seemed to hurt the principal and attorney without good reasons’. The history of the applications shows that IWN as attorney and the son of GYQ was afforded repeated opportunities to explain his position. These opportunities were both at the original hearing in December 2022 (after failing to appear on the date originally listed in November 2022) and in the rehearing on 30 October 2023, where IWN made submissions and called evidence. Senior Member Hoysted’s thorough reasons demonstrate that he listened to IWN, and the evidence he called, and considered its effect. They also demonstrate that the orders he made were, contrary to the contention in the proposed third ground of appeal, made with good reasons and to advance the personal and social wellbeing and general best interests of GYQ.[57]
[57]As required by s 30(2)(c) of the Guardianship and Administration Act.
Finally, it is relevant that since the orders made by Senior Member Hoysted on the rehearing, there was been a further reassessment of the Guardianship Order, by Senior Member Powles, on 30 October 2023. IWN made submissions for that hearing, and the Public Advocate provided a report in relation to their appointment. Senior Member Powles made orders appointing the Public Advocate guardian for GYQ, and for the appointment of State Trustees Limited as administrator for GYQ. IWN requested reasons for those orders, which were provided on 12 February 2024. The reasons clearly address the evidence considered by Senior Member Powles, and set out his conclusions on the evidence and submissions.[58]
[58]GYQ (Guardianship) [2024] VCAT 114.
Given this reassessment, there is a real question as to whether the December 2022 Orders could be open to appeal. Those orders have in a practical sense been overtaken by events, with the new and broader October 2023 Orders. Any error identified in the earlier orders would have limited, if any, impact, and no real point could be served by granting leave to appeal the December 2022 Orders as sought by the Applicant, nor the March 2023 Orders which varied them.[59]
[59]Metricon Homes Pty Ltd v Softley & Anor (2016) 49 VR 746, [18] (Warren CJ). Acting Justice of Appeal Robson agreed with Warren CJ on the test for leave to appeal (see at [293]). Justice of Appeal Tate agreed with the reasons of Warren CJ and Robson AJA. See also Caspersz v Garry & Warren Smith Pty Ltd [2023] VSCA 264, [23] (Niall JA) and Chopra v Department of Education and Training [2019] VSC 488, [23](b), [27] (Richards J).
I conclude, therefore, that the grounds of appeal would have no real prospects of success, and it would not be open for me to grant leave to appeal even if I was satisfied that it was appropriate to extend the time to make the application.[60]
[60]VCAT Act, s 148(2A).
Conclusion
I will refuse an extension of time to apply for leave to appeal because there has been a lengthy delay before making the application, which has not adequately been explained; and because I do not think that the application for leave to appeal has real prospects of success, so that there would be no utility in granting an extension of time.
I will dismiss the application. I have heard both parties on costs, and as the Respondent has advised that she has not incurred legal costs, there will be no order as to costs.
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(a)the attorney is not complying with provisions of this Act that relate to enduring powers of attorney; and
(b)the principal does not have decision making capacity in relation to making an enduring power of attorney giving the same power.’
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