SAB v SEM

In the case of SAB v SEM, the applicant sought to set aside orders made by the Guardianship Tribunal in relation to the appointment of a guardian for SEM. The applicant, SAB, argued that the Tribunal had failed to consider SEM's views adequately and that there was an undue conflict between the interests of the proposed guardian and SEM. The matter was heard in the Supreme Court of Victoria, with the court exercising its jurisdiction under section 67 of the Guardianship Act 1987. The central legal issues before the court were the meaning of an "appeal on a question of law" and the considerations governing leave to appeal on a question of fact, particularly the requirement to consider the views of the person in respect of whom the order is to be made and the need for "no undue conflict" between the interests of the guardian and the person in respect of whom the order is to be made.

The court considered the definition of "appeal on a question of law" and noted that such an appeal generally involves the interpretation of legislation or the application of legal principles. However, the court also acknowledged that appeals on questions of fact could be entertained if they involved considerations that were predominantly legal in nature. In this case, the court found that the applicant's arguments raised questions that were mixed with both factual and legal elements, but the predominant focus was on the interpretation of the relevant statutory provisions. The court held that the failure to provide adequate reasons for the Tribunal's decision could be a question of law, as it involved the interpretation of the statutory requirement under section 14(2)(a)(i) to consider the views of the person in respect of whom the order is to be made. Similarly, the requirement under section 17(1)(b) of "no undue conflict" between the interests of the guardian and SEM was considered to be a question of law, as it involved the interpretation of the statutory provisions and the application of legal principles to the facts of the case.

The court ultimately granted leave to appeal, finding that the questions raised were predominantly legal in nature and that there were arguable grounds for appeal. The court emphasised the importance of considering the views of the person in respect of whom the order is to be made and the need for "no undue conflict" between the interests of the guardian and the person in respect of whom the order is to be made. The court noted that these considerations were not merely factual but also involved the interpretation of statutory provisions and the application of legal principles. The court also found that the applicant had demonstrated a sufficient arguable case for the appeal, as the failure to provide adequate reasons for the Tribunal's decision and the potential undue conflict between the interests of the guardian and SEM were significant legal issues that warranted further consideration. The court's decision was that leave to appeal should be granted, allowing the applicant to challenge the Tribunal's orders on the basis of the legal issues identified.