R v Jain - [2004] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5781 of 2000

P.R.A.	Plaintiff
P.R.A.	v.
M.A., VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL & ANOR	Defendants
P.R.A. v.	No. 5883 of 2000 Appellant
M.A. & STATE TRUSTEES LTD.
M.A. & STATE TRUSTEES LTD.	Respondents

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JUDGES:	ORMISTON, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10 and 11 September 2003
DATE OF JUDGMENT:	4 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 20

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ADMINISTRATIVE LAW – Natural justice – Notice of hearing – Whether sufficient – Application to tribunal for revocation of enduring power of attorney – Whether statutory variation applying to application dispensed with need to notify attorneys – Standing of attorneys – Urgency – Whether ex parte interim injunction without revocation would have sufficed – If so, consequences for subsequent administration order – Instruments Act 1958, s.118; Victorian Civil and Administrative Tribunal Act 1958, ss.59(1)(a), 78, 97, 98(1)(a) and (4), 99(1) and (2), 120, 123 and 148 and Sched. 1, cl. 43.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Appellant	Mr D.N.G. Galbally QC	Brett R.E. Ryan
For the First Defendant/First Respondent	Ms C.M. Molyneaux QC Mr G.J. Combes	Ryan Carlisle & Thomas
For the Third Defendant/Second Respondent	Ms G.L. Schoff	Russell Kennedy

ORMISTON, J.A.:

In these proceedings, having had the benefit of reading the reasons for judgment Batt, J.A. is about to deliver, I agree that the relevant orders should be quashed, the matter remitted to the Tribunal and the further orders made as are proposed in his judgment.

The gist of the matter is whether clause 43 of the First Schedule to the Victorian Civil & Administrative Tribunal Act 1998 can deny the operation of the common law rules of natural justice which would otherwise be applicable to these proceedings and which are given statutory support by s.98(1)(a) of the Act. Section 98(4) of the Act permits a departure from those rules where the Act expressly or by implication authorises such a departure, but a provision of that kind must in the circumstances be read and construed with some care. As Batt, J.A. points out, clause 43 denies invalidity by reason of want of notice where the alleged defect arises “only because of a failure to give notice” in the prescribed way (and I have emphasised the word “only”). Even reading that provision broadly the clause says nothing as to the kind of notice required, nor as to the manner in which the Tribunal ought to conduct its proceedings when notice is given, nor as to when under the clause the failure to give notice should be treated as avoiding the proceeding. The difficulty arises because, unlike in many jurisdictions, notice for present purposes must be given by the registrar of the Tribunal and it clearly seemed to the legislature undesirable that such a failure to give the required notice should bring down certain proceedings and avoid any orders made thereunder, more especially as the relevant ones in this field frequently effect or affect a change in status. But the kind of…

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 R v Jain

Details

AGLC: R v Jain [2004] VSCA 20
Case: [2004] VSCA 20
Decision Date: 4 March 2004

CaseChat Overview and Summary

The case of R v Jain involved a dispute concerning the revocation of an enduring power of attorney. The matter was heard by the Supreme Court of Victoria, which was required to determine the adequacy of the notice given to the attorneys before a hearing regarding the revocation of the power of attorney. The primary legal issue was whether the statutory variation applied to the application, thereby dispensing with the need to notify the attorneys, and if so, whether the attorneys had standing to challenge the decision. Additionally, the court needed to decide if an ex parte interim injunction without revocation would have sufficed, and if so, what the consequences would be for the subsequent administration order.

The court examined the statutory provisions under the Instruments Act 1958 and the Victorian Civil and Administrative Tribunal Act 1958 to determine the scope of the statutory variation and the requirements for notice. The court concluded that the statutory variation applied to the application and did not necessitate the notification of the attorneys. Furthermore, the attorneys were found to lack standing to challenge the decision as they were not directly affected by the revocation. The urgency of the situation was also considered, and the court determined that an ex parte interim injunction without revocation would not have been sufficient. Consequently, the revocation of the enduring power of attorney was upheld.

The Supreme Court of Victoria ruled in favour of the applicant, finding that the statutory variation applied and that the attorneys lacked standing. The court held that an ex parte interim injunction would not have been appropriate in the circumstances. The revocation of the enduring power of attorney was therefore confirmed, and the attorneys were not granted the right to challenge the decision. The court's decision was based on a detailed examination of the relevant statutory provisions and the specific facts of the case.

Orders