IWN v AJU - [2024] VSC 562

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading IWN v AJU

Details

AGLC: IWN v AJU [2024] VSC 562
Case: [2024] VSC 562
Decision Date: 11 September 2024

CaseChat Overview and Summary

The Victorian Civil and Administrative Tribunal (VCAT) was called upon to decide a dispute involving the powers of attorney in the case of IWN versus AJU. The dispute centred on the revocation of AJU's appointment as an attorney for IWN, and the subsequent appointment of a guardian for IWN under the Guardianship and Administration Act 2019 (Vic). The Tribunal was asked to consider an application for a rehearing of its earlier decision and to vary the original orders. This included a request for an extension of time to apply for leave to appeal the Tribunal's decisions.

The primary legal issues the Tribunal had to address were whether there were grounds for a rehearing of the application and whether the application for an extension of time to apply for leave to appeal should be granted. The Tribunal also needed to consider whether the original orders should be varied to accommodate the new circumstances. These issues required a careful analysis of the provisions of both the Guardianship and Administration Act 2019 (Vic) and the Powers of Attorney Act 2014 (Vic), particularly sections 30, 38, 157 of the former and sections 5, 116, 120(1) of the latter.

After reviewing the submissions and evidence, the Tribunal concluded that there were no grounds for a rehearing of the application nor for varying the original orders. The Tribunal found that the application for an extension of time to apply for leave to appeal was also without merit. The decision was based on the Tribunal's assessment that the application did not present a new or compelling reason warranting a departure from the usual procedures. Consequently, the Tribunal dismissed the application for a rehearing, variation of orders, and extension of time.

The final orders of the Tribunal were that the application for a rehearing, variation of orders, and extension of time to apply for leave to appeal were refused. The Tribunal maintained the original orders revoking AJU's appointment as an attorney for IWN and appointing a guardian for IWN.

Orders