VHX (a pseudonym) v JZT (a pseudonym) and State Trustees Ltd
[2024] VSCA 238
•16 October 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0004 |
| VHX (A PSEUDONYM) | Applicant |
| v | |
| JZT (A PSEUDONYM) | First Respondent |
| STATE TRUSTEES LTD | Second Respondent |
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| JUDGES: | BEACH and LYONS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 October 2024 |
| DATE OF JUDGMENT: | 16 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 238 |
| JUDGMENT APPEALED FROM: | [2023] VSC 683 (Quigley J) |
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ADMINISTRATIVE LAW – Guardianship and administration – Application for leave to appeal from decision refusing leave to appeal from VCAT – Whether primary judge erred in refusing recusal application – Whether primary judge biased – Whether primary judge misconstrued provision of Guardianship and Administration Act 2019 – Whether primary judge erred in refusing applicant leave to appeal – Whether primary judge denied represented person her human rights – Asserted errors not reasonably arguable – Proposed appeal having no prospects of success – Application for leave to appeal refused.
Guardianship and Administration Act 2019, ss 8, 9 and 30.
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| Counsel | |||
| Applicant: | In person | ||
| First Respondent: | No appearance | ||
| Second Respondent: | Mr P Over | ||
Solicitors | |||
| Applicant: | |||
| First Respondent: | Hartleys Lawyers | ||
| Second Respondent: | Legal Branch, STL Ltd | ||
BEACH JA
LYONS JA:
The applicant, VHX,[1] and the first respondent, JZT, are sons of RP. Pursuant to an order, first made in January 2018 in the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’), the second respondent, State Trustees Ltd, is the administrator for RP in accordance with the provisions of the Guardianship and Administration Act 2019 (‘the GA Act’). That order has been the subject of various applications and reviews in VCAT, as well as proceedings brought in the Supreme Court by the applicant to challenge decisions of the Tribunal with which he was dissatisfied.
[1]Pursuant to orders made in the Trial Division on 24 October 2023, the applicant, the first respondent and their mother were referred to by the pseudonyms VHX, JZT and RP respectively. For convenience, we will adopt the pseudonyms ordered by the Trial Division (noting that on some occasions in that Court, pseudonyms have been confused and RP has been incorrectly referred to as JZT, although no party sought to take any point in relation to these misidentifications).
In the present proceeding in this Court, the applicant seeks leave to appeal from orders made by Quigley J in the Trial Division, on 23 November 2023,[2] refusing him leave to appeal from orders made by Senior Member B Hoysted in VCAT, on 5 April 2023, which orders continued the appointment of the second respondent as administrator for RP.[3] For the reasons that follow, the application for leave to appeal must be refused.
[2]VHX v JZT [2023] VSC 683 (‘Quigley J Reasons’).
[3]NJA (Guardianship) [2023] VCAT 572 (‘VCAT Reasons’). ‘NJA’ was the pseudonym used by the Tribunal when it referred to RP.
Background
The primary judge described the background to this matter as ‘a tale of unhappiness and family dysfunction, with long held and deep-seated resentments evident in the expression and behaviour of [the applicant], coupled with distrust and resort to conspiracy as justification for any adverse decisions made in respect of the management of [RP’s] legal and financial affairs’.[4]
[4]Quigley J Reasons, [2].
The genesis of the various proceedings between the parties was an application made by the applicant, in November 2017, for orders appointing him as the guardian and administrator of RP. The application was contested by the first respondent as well as another of RP’s sons and RP’s then estranged husband, who is now deceased. In resisting the applicant’s application, they contended that RP required an independent guardian and administrator.
The Tribunal heard the applicant’s application on 15 January 2018 and was satisfied that RP had a disability and needed an independent guardian and administrator. Instead of appointing the applicant to those roles, the Tribunal appointed the Public Advocate as RP’s guardian, and the second respondent as administrator of her estate. The guardianship order is no longer in force and, as we have said, the second respondent remains administrator of RP’s estate.
In its January 2018 order appointing the second respondent as administrator, the Tribunal directed that the order would continue to have effect ‘until further order of the Tribunal’. Following that order, various orders have been made by the Tribunal relating to the administration order.[5] It is not necessary to set out the detail of those orders or the detail of an earlier application for leave to appeal brought by the applicant in the Trial Division in 2022. For present purposes, it is sufficient to turn directly to the hearing at VCAT which gave rise to the orders of 5 April 2023 about which the applicant makes complaint.
[5]Orders were made in the Tribunal on 21 May 2020, 10 March 2021 and 31 May 2021.
Lead-up to VCAT’s orders of 5 April 2023
Pursuant to orders previously made, VCAT commenced a reassessment of RP’s administration order on 16 May 2022. The reassessment was required to be adjourned pending the outcome of the applicant’s earlier Trial Division proceeding. The reassessment hearing continued in September 2022, and was finalised on 5 April 2023. During the reassessment hearing, the Tribunal heard from the applicant, a witness who gave evidence on behalf of the first respondent, and two witnesses from the second respondent. While RP attended the hearing, and attempts were made by the Tribunal to communicate with her, she was not relevantly responsive in any way.[6] At the reassessment hearing, the applicant asserted that, in the words of s 8(1)(b) of the GA Act, it was RP’s ‘will and preferences’ that he be appointed as her administrator.[7]
[6]VCAT Reasons, [12], [22].
[7]Ibid [23].
There does not appear to have been any real issue before the Tribunal that, by reason of disability, RP required an administrator. The issue was, in essence, who should be that administrator: the applicant or the second respondent or ‘an alternative trustee company’ (the applicant proposing Australian Unity, as a fallback, in the alternative to himself).[8]
[8]Ibid [42].
VCAT orders of 5 April 2023
On 5 April 2023, the Tribunal reappointed the second respondent as RP’s administrator. VCAT expressly ordered that the administration order ‘applies until VCAT makes another order’; ‘[a]nyone can apply to VCAT to reassess this order at any time’; and ‘VCAT will reassess this administration order no later than 30 June 2026’.[9] It is from those orders that the applicant sought leave to appeal to the Trial Division.
[9]Orders 6, 7 and 8 of the 5 April 2023 VCAT Orders.
VCAT Reasons
After setting out relevant background and describing the reassessment hearing,[10] the Tribunal referred to ss 8 and 9 of the GA Act, noting that s 8 of the GA Act required VCAT to ‘have regard to … [the principle that] … the will and preferences of a person with a disability should direct decisions made for that person, as far as practicable’.[11]
[10]VCAT Reasons, [1]–[14].
[11]Ibid [15].
The Tribunal then dealt with the following matters: RP’s will and preferences;[12] s 30(2)(a) of the GA Act, which provides that VCAT may only make an administration order if satisfied that, because of a person’s disability, the person does not have decision-making capacity in relation to ‘the financial matters which are the subject of the application’;[13] and medical reports, which satisfied the Tribunal that RP ‘now lacks capacity to make decisions about her financial affairs and her legal affairs’.[14]
[12]Ibid [20]–[27].
[13]Ibid [28].
[14]Ibid [29]–[30].
Next, the Tribunal referred to s 30(2)(b) of the GA Act, which provides that VCAT may only appoint an administrator for a person if satisfied that the person needs an administrator; and s 31 of the GA Act, which sets out factors to consider in determining the need for an administrator.[15] After referring to relevant matters, and noting that neither the applicant nor RP opposed the making of an administration order,[16] the senior member said that he was satisfied that RP needed an administrator.[17]
[15]Ibid [32]–[33].
[16]Ibid [34]–[37].
[17]Ibid [38].
The Tribunal then turned to the question of who RP’s administrator should be. In dealing with that issue, the Tribunal set out the complaints made by the applicant about the second respondent, together with the second respondent’s answers to those complaints.[18]
[18]Ibid [39].
Under the heading, ‘Other Considerations’, the Tribunal referred to an issue about rent as follows:
I asked [the applicant] whether he was contributing rent to his mother and brother, as owners of the property where he has lived since December 2019. [The applicant] advised that he was paying rent to his mother. When asked ‘how much?’ he was vague and said he would need to check — he thought $240 per fortnight. [The applicant] acknowledged that he had not paid this money to [the second respondent] nor disclosed the payment. He claimed the money was paid into an account in his mother’s name and the funds were to engage a lawyer to challenge [the second respondent]. [The applicant] claimed to have written up and signed a lease and that his mother now had enough funds to engage a lawyer to try and protect her house from being sold.[19]
[19]Ibid [41].
Next, the Tribunal referred to the possibility of an alternative administrator to the second respondent. After referring to some financial evidence, the Tribunal said:
I was satisfied on the issue of fees and commissions chargeable by professional administrators that [the second respondent] charge the least. Given the level of [RP’s] savings, a move to an alternative administrator would have a serious negative financial effect.[20]
[20]Ibid [45].
The Tribunal referred to a submission by the applicant that s 9 of the GA Act,[21] which requires a person ‘making a decision for a represented person’ to have regard to the principle that ‘the represented person’s will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person’ applied to VCAT when appointing an administrator.[22] The Tribunal rejected that submission, saying that while s 8 of the GA Act applied, s 9 did not apply to VCAT when appointing an administrator.[23] This was because, in appointing an administrator, VCAT is not, as described in s 9(1) of the GA Act, ‘making a decision for a represented person’.
[21]Ibid [47].
[22]Ibid [18]–[19].
[23]Ibid [48].
Under the heading, ‘Findings and Decision’, the Senior Member said that he was satisfied that RP ‘is affected by a disability, dementia, which causes her to lack decision-making capacity’;[24] and that he was satisfied that RP ‘continued to need an administrator’.[25] After again noting that the applicant agreed that RP needed an administrator, the Senior Member concluded the VCAT Reasons by saying:
It is my view that the appointment of an administrator will not adversely affect [RP’s] existing relationships of importance. I understand that [RP’s] two younger sons do not have contact with their mother. [The applicant] is committed to care for his mother and that undertaking has not been affected by the administration order.
I accept that it would be [RP’s] will and preferences to have [the applicant] appointed as her administrator, however, I am not bound by that. Furthermore, VCAT can only make an order if satisfied that the order will promote [RP’s] personal and social wellbeing.
It is my view that the reappointment of [the second respondent] as administrator for [RP] promotes her personal and social wellbeing by protecting her from the consequences which would follow if [the applicant] was appointed to that role. I predict that [the applicant] would involve her in litigation seeking to undo the order made by the FCA[26] and this would have negative consequences for her financially.
I do not accept the submissions made by [the applicant] that [the second respondent] has acted dishonestly and incompetently. [The second respondent has] acknowledged several errors and, in the case of the local government rates, the error has been corrected at the administrator’s own expense. [RP] has not suffered harm as a consequence. I was satisfied that [the second respondent] has complied with the requirements as stated in section 55 of the Act. I do not accept [the applicant’s] argument that in failing to challenge the orders made by the FCA, [the second respondent] has failed to act as an advocate for [RP]. A competent administrator must make an assessment of the merits or otherwise of such a proposition. [The second respondent] has determined it would be futile and a waste of [RP’s] resources to mount such a claim. I agree with their assessment of the merits of making such a claim.
I have considered the principles of the legislation. Section 8 applies to VCAT, so I am required to consider [RP’s] will and preferences. In my oral reasons, I explained that my consideration of [RP’s] will and preferences is made in a context, and that context includes [RP’s] disability and impaired capacity, what might have been said to [RP] by [the applicant] that might influence her, and her ability to form an independent view about the matters.
I have considered possible alternate administrators. [RP’s] finances are such that the appointment of any alternate administrator would be financially disadvantageous to [RP].
For these reasons, I have reappointed [the second respondent] as administrator for [RP] for a period of three years.[27]
[24]Ibid [53].
[25]Ibid [54].
[26]Federal Circuit Court of Australia.
[27]Ibid [56]–[62].
Appeal to the Trial Division
Being dissatisfied with the orders made in VCAT on 5 April 2023, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), the applicant sought leave to appeal on a question of law to the Trial Division of the Supreme Court. In his notice of appeal,[28] the applicant sought, amongst other things, that the orders of 5 April 2023 ‘be dismissed, quashed, rejected, revoked, set aside, replaced or reversed’.
[28]The final version of which was dated 7 June 2023.
In his notice of appeal, the applicant purported to advance nine questions of law, together with nine proposed grounds of appeal. It is not productive to set out either the purported questions of law or the proposed grounds of appeal. They are prolix; argumentative; difficult to follow; and contain material which, on any view, could not be relevant to an appeal limited to the resolution of questions of law.[29]
[29]As to which, see generally, Sandbach v Victorian Legal Services Commissioner [2024] VSCA 143 [54]–[58] (Niall, Lyons JJA and J Forrest AJA) (‘Sandbach’).
Resolution of the application for leave to appeal to the Trial Division
After setting out relevant background, relevant provisions of the GA Act and summarising the parties’ submissions,[30] the primary judge distilled the issues for determination raised by the applicant’s notice of appeal to be:
(1)Whether the Tribunal properly considered RP’s will and preferences in accordance with the GA Act and made sound findings of fact in that regard.
(2)If there was a need to appoint an administrator, what were the considerations relevant to the appointment of a particular party to that role?[31]
[30]During the course of which RP was sometimes incorrectly referred to as JZT (see, for example, Quigley J Reasons, [1], [11], [12], [14]-[18], [26], [44] and [51]–[55]) — which, as we have said, no party sought to make anything of in this Court: see n 1 above.
[31]Quigley J Reasons, [41].
Ultimately, her Honour concluded that the Tribunal did not make any error of law in its assessment of the application before it. Specifically, her Honour said:
The appellant has not met the threshold of ‘a real prospect of success’ on the grounds he has raised.
I am satisfied, in reviewing the evidence before me and the reasons of the Tribunal, that the Tribunal properly considered the requirements of [the GA Act], in particular s 8 being the represented person’s will and preferences. The Tribunal was correct in its analysis that consideration of a represented person’s will and preferences is made in a context, which in this case includes a disability and impaired capacity and what might be said to be [the applicant’s] influence and her ability to form an independent view about matters.
The matter before the Tribunal was a reassessment of the administration order. The Tribunal was not satisfied that there should be a variation to the existing order and set out its evidentiary findings as to that conclusion. I am of the view that the Tribunal did not make any error of law in its assessment of the application before it.
I am not satisfied that the Tribunal’s decision exhibits any legal error in the principles applicable, nor their application to the relevant evidence that was before the Tribunal, and that the findings made by the Tribunal all had a legitimate evidentiary basis upon which the Tribunal could be satisfied as required by [the GA Act].
The application for leave to appeal will be dismissed.[32]
[32]Ibid [75]–[79].
The application for leave to appeal to this Court
In his application for leave to appeal to this Court, the applicant advances five purported questions of law, together with five corresponding proposed grounds of appeal. While the five proposed grounds of appeal suffer from some of the same problems that the nine grounds of appeal advanced in the Trial Division suffered from, the purported questions of law are more focussed in this Court than they were before the primary judge. Specifically, those questions of law are:
Question of Law 1.
Has the judge denied the represented person in the VCAT matter G82352 her human rights under the Convention on the Rights of Persons with Disabilities?
Question of Law 2.
Has the judge unfairly accepted the submission provided by State Trustees Ltd when it was around three weeks late?
Question of Law 3.
Has the judge unfairly accepted the argument put forward by State Trustees Ltd that the applicant’s Affidavit filed and accepted by the Court on 18/10/2023 in relation to the potentially criminal conduct of State Trustees Ltd should not be allowed on the basis that it was late by 9 days?
Question of Law 4.
Has the judge erred in law in relation to any of the grounds put forward by the applicant in the Notice of Appeal dated 02/05/2023?
Question of Law 5.
Has Justice Quigley, having identified the requirements of section 30(2)(d) of the Guardianship and Administration Act 2019 failed to recognize and enforce the requirements of that section in relation to State Trustees Ltd who is aware (or should be aware) of the requirements of that legislation and the represented person’s residential status?
By contrast, the applicant’s first proposed ground of appeal is:
Grounds for Appeal 1.
The Guardianship and Administration Act 2019 states at section 7 that ‘the primary object of this Act is to protect and promote the human rights and dignity of persons with a disability’. It is submitted that the judge in this case did not meet the primary object of the Act by failing to protect the human rights of the represented person in this case. The represented person has exercised her human right to state in writing her will and preferences to the best of her ability which, due to her inability to write, has required her to seek the assistance of her eldest son (who is also the primary full-time carer) to put into words her will and preferences. However, the judge has determined on the basis of mere speculation (without any supporting evidence, whilst ignoring the written advice of two professional medical practitioners, that she knows what is happening with regard to the sale of her house) that the eldest son has put forward his own beliefs about her will and preferences, even though he has signed the relevant documents concerned to confirm that he has not done so. Furthermore, no other efforts (that adequately meet the requirements, conditions and expectations of sections 5 and 6 of the Act) to determine the represented person's will and preferences have been undertaken by either VCAT or the Court. Cursory and superficial half-hearted efforts have been made by the VCAT members in all hearings because, it is submitted the members have all sought to keep State Trustees Ltd as administrator even though they have all known that is against the will and preference of the represented person.
Applicant’s submissions
In his written case filed in this Court, the applicant repeated his grounds of appeal without further elaboration. The applicant’s written case then concludes:
CASE:
1.It is submitted that the judge has erred in law and been quite unfair in her rulings in this matter, for the reasons set out in the above questions of law and grounds for appeal.
2.It is further submitted that the judge has thus possibly shown a potential bias in allowing the submission of the Respondent to be considered, even though it was quite late, and in not allowing the Applicant's Affidavit dated 18/10/2023 to be considered, thus potentially showing a favourable bias towards the VCAT Senior Member Hoysted, (noting that she was previously President of VCAT whilst Senior Member Hoysted served there), and also refused the Applicant's request to recuse herself from the case.
3.It is submitted that all judicial officers of the Supreme Court of Victoria should in all situations not only act without bias, but should also endeavour to leave not even the slightest doubt open to such a possibility, as currently exists in view of the outcome of this case. It is also respectfully submitted that the reputation of the Supreme Court of Victoria should be zealously guarded by all judicial officers and so even the slightest doubt of potential bias should not be allowed to be open to question.
Consideration
The applicant’s material and submissions in this Court appear to raise the following issues:
(1)Whether the judge erred in failing to recuse herself;
(2)Whether the judge erred in not permitting the applicant to rely on an affidavit sworn by him on 18 October 2023 (‘the 18 October 2023 affidavit’);
(3)Whether the judge erred in allowing the second respondent to advance submissions which had been filed three weeks late;
(4)Whether the judge denied RP her human rights;
(5)Whether the judge erred in rejecting any or all of the applicant’s proposed grounds of appeal; and
(6)Whether the judge erred in failing to enforce the requirements of s 30(2)(d) of the GA Act.
We will deal with each of these issues in turn.
Did the judge err in not recusing herself?
At the commencement of the hearing before the judge, the applicant said that he wished to discuss an issue he had written to the court about: namely, ‘whether or not you [the judge] may want to recuse yourself from these proceedings’. The applicant said that it was ‘not anything against’ the judge, but that ‘subsequently’, he was:
... going to be taking certain actions, to go public with this matter, and — I’m afraid that once I go public, it’s out of my control; people may ask some awkward questions.
The matters that appeared to concern the applicant were: first, that the judge was a former president of VCAT; secondly, there were ‘sensitive matters’ that he did not wish to put in writing, including some possible or potential issues of corruption; and thirdly, that, at the request of the court, the applicant had sent a letter to the Attorneys-General of the Commonwealth and States and territories, one of whom (the Attorney-General for Western Australia) was a Mr Quigley.
There was then a discussion between the judge and the applicant, in which the judge told the applicant that she was not related to Mr Quigley. In addition, the judge patiently explained the principles of apprehended bias to the applicant. At the conclusion of this discussion, the applicant said that he did not want to press the issue; and that he was ‘quite happy that we should progress’.
It is plain from the transcript of the hearing before the judge that the applicant did not press any application for the judge to recuse herself. In any event, there was no basis upon which the judge could or should have recused herself.
Further, as these reasons demonstrate, the judge conducted herself in an exemplary manner in the conduct of the appeal including in relation to the 18 October 2023 affidavit. There could no serious suggestion that there was any actual or apprehended bias in the way the judge addressed the issues for determination before her.
As a result, the recusal or bias issue which the applicant seeks to raise in this Court is totally without merit.
Did the judge err in not permitting the applicant to rely on the 18 October 2023 affidavit?
The applicant’s assertion under this ground is that the judge treated him unfairly in refusing to allow him to rely on the 18 October 2023 affidavit because it was ‘quite late’; whereas, the judge permitted the second respondent to rely on submissions that had been filed late (an issue we will come to below).
There is no substance in this complaint. The judge did not refuse to allow the applicant to rely on the 18 October 2023 affidavit because it was late. As the transcript of the hearing reveals, the judge patiently explained to the applicant why the affidavit was irrelevant in his application for leave to appeal against the VCAT orders made on 5 April 2023. The affidavit was a short, two page affidavit, exhibiting four exhibits. It contained a brief high-level submission that the material exhibited to it established the existence of ‘potential criminal conduct’ on the part of the first respondent, the second respondent, RP’s deceased husband, two other family members and a firm of solicitors; ‘and the possible attempt to cover up by certain VCAT members’. It contained facts, capable of being the subject of dispute, which were not in any way relevant to the application for leave to appeal before her Honour.
The judge explained that the material in the affidavit, if relevant, was ‘better dealt with’ at VCAT,[33] and was not relevant to the question of whether, in making the orders of 5 April 2023, the Tribunal erred in law.
[33]As we have already observed, the VCAT orders of 5 April 2023 permit anyone (including the applicant) to apply to VCAT at any time to reassess those orders.
While the judge received the 18 October 2023 affidavit for the purposes of identification, she was plainly correct in concluding that it was inadmissible on the application for leave to appeal. The judge did not err in not permitting the applicant to rely on the 18 October 2023 affidavit.
Did the judge err in allowing the second respondent to advance submissions which had been filed late?
On 24 May 2023, Keith JR made orders for the filing and serving of written submissions. The applicant was ordered to file his submissions on or before 19 July 2023; the second respondent was ordered to file its submissions on or before 16 August 2023; and the applicant was ordered to file and serve reply submissions on or before 23 August 2023. The applicant filed and served his submissions on 18 July 2023, but the second respondent was 18 days late, filing its submissions on 4 September 2023. The applicant then filed submissions in reply on 6 October 2023, and the hearing before the judge occurred some three weeks later, on 27 October 2023.
Following the debate between the applicant and the judge about the relevance (or lack thereof) of the material in the 18 October 2023 affidavit, the applicant (who prefaced what he was then about to say with, ‘I hope the court doesn’t take this as a cheeky comment on my part’) told the judge that the second respondent’s outline of submissions had been presented ‘three weeks late’. The applicant said:
In terms of fairness, can I ask the question, should that be allowed?
In the course of exploring this issue, the judge said to the applicant that the question was whether the late service of the second respondent’s submissions put the applicant ‘at any disadvantage today’. The applicant, having had time to respond in writing to the second defendant’s submissions, appears to have accepted that he was at no disadvantage in running his application for leave to appeal then and there. The judge invited the applicant to identify ‘some real prejudice’ caused to him by the late service of the second respondent’s submissions. The applicant did not identify any prejudice. The judge concluded the issue by saying, ‘So I think it’s probably better we get on with it’; to which the applicant replied, ‘Thank you, Your Honour’.
As the transcript of the hearing before the judge discloses, no application was made by the applicant to adjourn the hearing, and no prejudice was identified by him arising out of the second respondent’s late provision of its submissions. In the circumstances, the judge was plainly correct to allow the matter to proceed on the basis of the written submissions which had been filed by the parties some weeks prior to the hearing.
Did the judge deny RP her human rights?
There is no basis for any assertion that the judge denied RP any of her human rights. To the extent that the applicant submits otherwise, that submission is devoid of merit. The judge’s conduct of the application for leave to appeal was, with respect, exemplary. She was extremely patient with the applicant and his arguments, and, at all times, explained the process, the issues and the matters that needed to be dealt with for the purposes of determining the application for leave to appeal.
To the extent that the applicant’s assertion that the judge’s ultimate decision involves a denial of RP’s human rights, we will deal with that assertion when dealing with the applicant’s submission that the judge erred in rejecting his proposed grounds of appeal.
Did the judge err in rejecting the applicant’s proposed grounds of appeal?
Proposed ground 4 (related to the applicant’s fourth question of law set out in his application for leave to appeal) asserts that the judge erred in rejecting his proposed grounds of appeal. This is not a proper ground of appeal. In advancing a proposed ground of appeal, it is the task of an applicant for leave to appeal to identify, with specificity, in a concise statement, the point sought to be argued by the applicant.[34]
[34]See r 64.04(c)(i) of the Supreme Court (General Civil Procedure) Rules 2015. See further, Motor Accidents Board v Coutts [1984] VR 790, 797 (per Brooking J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (per Ryan J); Victoria v Bacon [1998] 4 VR 269, 285 (per Phillips JA); Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327, [74].
That said, having examined the material relied upon by the applicant, there is no substance in the applicant’s contention that the judge erred in refusing his application for leave to appeal. To the contrary, the judge was plainly correct for the reasons she gave. Specifically:
(1)The Tribunal’s construction of the relevant provisions of the GA Act (and in particular ss 8 and 9) was correct, and the judge was correct to so hold.
(2)The applicant has not identified any error of law made by the Tribunal in making the 5 April 2023 orders.
(3)The Tribunal’s conclusion that it was RP’s will and preferences that the applicant be appointed as her administrator did not require the Tribunal to arrive at that conclusion and appoint the applicant as administrator. While RP’s will and preferences were a relevant matter to be taken into account, the Tribunal was required to consider that fact in the context of all of the evidence before it. The assertion that the failure to comply with RP’s will and preferences was an error of law on the part of the Tribunal is, in the circumstances of the evidence before the Tribunal in this case, without foundation.
Did the judge err in failing to have regard to s 30(2)(d) of the GA Act?
Section 30(2)(d) of the GA Act deals with applications for an administration order for a person who does not reside in Victoria. The case conducted before the Tribunal was conducted on the basis that RP resides in Victoria. It appears that the applicant now wishes to contest that issue. Neither the Trial Division nor this Court is the place for that issue of fact to be first ventilated. If there is any real issue about whether RP resides in Victoria, that is a matter that could be taken up in a fresh application made by the applicant to VCAT pursuant to the leave referred to him (and any other person) to bring an application at any time.
Resolution of the application for leave to appeal to this Court
None of the applicant’s proposed grounds of appeal have any prospects of success. For the reasons set out above, the proposed appeal is devoid of merit. There was no error of law committed by the Tribunal in making the orders it made on 5 April 2023; and the judge was right to so conclude.
For completeness at the hearing the applicant submitted that the second respondent had no ‘standing’ to appear. Given that the second defendant is the administrator of RP and in that capacity was a party to the hearing before VCAT, to the appeal to the judge and to the application for leave to appeal to this Court, this submission must be rejected.
Conclusion
The applicant’s application for leave to appeal must be refused.
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