XPU v VWA

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01250

XPU (a pseudonym)	Appellant
v
VWA (a pseudonym)	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2022
DATE OF JUDGMENT:	18 October 2022
CASE MAY BE CITED AS:	XPU v VWA
MEDIUM NEUTRAL CITATION:	[2022] VSC 620

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ADMINISTRATIVE LAW – Guardianship – Victorian Civil and Administrative Tribunal – Application for guardianship and administration orders and revocation of an enduring power of attorney – VCAT summarily dismissing application – Whether summary dismissal order appropriate – Appeal allowed – Victorian Civil and Administrative Tribunal Act 1998 ss 75, 148; Powers of Attorney Act 2014 Part 8; Guardianship and Administration Act2019 ss 7, 22, 23, 28, 30.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J P Wheelahan Mr C Fitzgerald	Briefed directly pursuant to the Victorian Bar Pro Bono Scheme
For the Respondent	Ms L H Kirwan	Galbally & O’Bryan

HIS HONOUR:

The appellant, XPU, appeals from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) of 10 March 2021 summarily dismissing her application for the appointment of a guardian and administrator for her mother, VWA, and the revocation of an enduring power of attorney given by her mother to her other daughter QKG.^* The VCAT order was made under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).[1]
*Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) s 37(1) states that unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies, or could reasonably lead to the identification of, a party of the proceeding. Penalty: 20 penalty units.
[1]VWA (Guardianship) [2021] VCAT 193 (‘Reasons’).

Background

The respondent, VWA, is aged 91 and has two daughters, the appellant, XPU and QKG.

On 21 November 2018, XPU applied to the Tribunal seeking orders for the appointment of a guardian and administrator for VWA and the revocation of an enduring power of attorney (‘the Application’). In the Application, XPU claimed that VWA suffered from a physical disability and dementia and detailed her alleged disability as including ‘Cognitive Impairment, Chronic Alcoholism, and Muscular Atrophy’.[2] XPU suggested at a later directions hearing that the words ‘muscular atrophy’ should be ‘brain atrophy’. XPU gave the following reasons for making the Application:[3]

[QKG] has engaged her lawyer to act for herself and [VWA] in transferring [VWA’s] property at… (with an estimated value in excess of $3M) by gift to [QKG]…[QKG] currently controls all aspects of [VWA’s] finances and [VWA] no longer comprehends the value of money or the nature and extent of her assets.

[2]Exhibit XPU 1 to the Affidavit of XPU affirmed 1 June 2021.

[3]Ibid.

The Tribunal was provided with a title search showing that QKG had been registered as sole proprietor of that property on 31 May 2019.

Accompanying XPU’s Application was a report from Dr D Fonda, a Consultant Geriatrician and Rehabilitation Specialist, who conducted a comprehensive geriatric assessment of VWA and prepared two reports. His first report, dated 4 April 2017, noted that VWA had poor muscle control, mild cognitive impairment, episodes of ‘freezing’, excess alcohol use, lymphocytic colitis and oesophageal stricture. He organised further MRIs of her brain and recommended lifestyle changes. His second report, dated 16 May 2017, which accompanied XPU’s Application, was made after VWA had been admitted to a hospital having presented with an apparent transient ischaemic attack. He noted that the aforementioned issues were still present, as well as symptoms of the recent ischaemic attack, but otherwise concluded that she was ‘fairly stable’.

The Tribunal proceeding

The Tribunal’s reasons detail the procedural history of the Application.[4] The key events in that history are as follows.
[4]Reasons, [1]-[47].

The Application was initially listed for hearing on 22 February 2019, which became a directions hearing. The Member adjourned the hearing and made directions under s 80 of the VCAT Act. She directed that by 1 March 2019, XPU provide VWA’s lawyers with a list of three independent specialists, and by 8 March 2019, VWA was to advise the lawyers then acting for XPU of her chosen specialist. VWA was then to attend an appointment with the specialist and obtain a report for the Tribunal’s use pertaining to her ‘capacity to make reasonable decisions about personal, medical and financial matters, and her capacity to revoke or make an [enduring power of attorney]’.[5] Directions were made requiring XPU to provide her witness statements to VWA’s lawyer by 22 March 2019.
[5]Ibid [20].

VWA sought her costs of the hearing of 22 February 2019, because she had had to seek an adjournment due to having insufficient time to prepare for the hearing. After directing that written submissions be filed on that issue, the Member, although accepting that XPU had failed ‘to comply with VCAT’s requirements because she did not ensure that her mother was served with a copy of the application and the associated documents in a timely manner’[6] dismissed VWA’s costs application. Her written reasons included the following:[7]
[6]VWA (Guardianship) [2019] VCAT 407, [23].
[7]Ibid [30]-[34], [38]-[42].

Did XPU cause the adjournment?
…
A central issue in this application is whether VWA has the capacity to make reasonable decisions, especially financial decisions, in circumstances where she is contemplating a gift of a substantial asset, without the benefit of independent legal representation.
A principal reason for the adjournment was to obtain a comprehensive assessment of VWA’s capacity, by a suitable specialist. The adjournment was necessary because the file material indicated that XPU had been unable to obtain the current medical evidence required by VCAT as to VWA’s capacity to make reasonable decisions. In those circumstances, it is usual for VCAT to adjourn to obtain relevant medical evidence. Hence, an adjournment in this matter was always a likely possibility.
The lack of a current medical report must have been evident to VWA’s solicitors, and they would have been aware of the possibly of an adjournment occurring, unless VCAT accepted the medical evidence that they presented on behalf of VWA. On the day of the hearing, VWA’s lawyers submitted a report from her general practitioner, dated 18 February 2019, stating that VWA did not have a significant cognitive impairment. However, they chose not to rely on that report and proceed with the hearing. Instead, they immediately requested the adjournment.
I am not satisfied that XPU’s conduct of the proceedings, including her failure to comply with VCAT’s requirements regarding service of her application and documents, was the cause of the adjournment in this case. It is essential that VCAT has the benefit of a current independent report from a suitable specialist, and this could not be arranged by XPU as the applicant, without the benefit of the hearing on 22 February 2019.
As the adjournment was principally for purposes essential to the proper consideration of the application, being matters beyond XPU’s control, I find that XPU did not cause the adjournment.
…
Should an order be made for costs?
According to section 109 of the VCAT Act, the general rule in proceedings before VCAT is that each party bears its own costs. That is the starting point. An order for costs will only be made when VCAT considers it fair to do so having regard to the considerations set out in section 109(3).
Relevant considerations in this case included whether XPU conducted the proceeding in a way that unnecessarily disadvantaged VWA or caused an adjournment by her conduct. The matters raised by VWA in respect of these issues have been discussed above, and I was not satisfied that VWA was unnecessarily disadvantaged by XPU’s conduct or that XPU caused an adjournment by her conduct. Neither has XPU’s conduct unreasonably prolonged the proceedings.
The issues arising for consideration in this case are serious and potentially involve a vulnerable person, who may have a disability that affects her decision-making. Although VWA’s legal representatives submitted a report from her general practitioner stating that she has capacity to make reasonable decisions, they did not seek to rely upon it at the hearing on 22 February 2019 by requesting a dismissal of the application. Further, in my view that medical report was not consistent with Dr Fonda’s earlier findings. I also note that when I addressed VWA, her legal counsel intervened rather than allowing her to answer my question. All the affidavits thus far provided to VCAT on behalf of VWA have been sworn by VWA’s legal representatives, setting out her instructions to them. No affidavit has been provided that has been sworn by VWA.
In my view there are reasons to doubt the conclusions of VWA’s general practitioner, that VWA has no cognitive impairment, hence the adjournment was necessary to ensure that a comprehensive assessment takes place. Having considered the available medical evidence before me, I am not satisfied that the application has no tenable basis in fact or law.
I also take into account that the guardianship jurisdiction of VCAT is recognised as a protective one. For this reason, there are no fees for lodging an application with VCAT. Applications are typically and commonly made without the assistance of legal representatives. Hearings without legal representation for any party are also common. Applicants make VCAT applications in the guardianship list with a view to seeking protective orders for a person they believe are vulnerable because of disability. There must be a good reason to depart from the general rule that parties to proceedings should bear their own costs, and for VCAT to make a costs order against an applicant in those circumstances.

I have quoted those passages from the Member’s reasons only because they demonstrate that the Member, as did a later Senior Member, considered it essential that the Tribunal have the benefit of a current independent assessment or report about VWA. I accept that the Member’s statement that she was not satisfied that XPU’s Application had no tenable basis in fact or in law had no relevance to VCAT’s decision on the summary dismissal application or to this Court’s determination of the present proceeding.

The parties agreed on a specialist with whom VWA was to attend an appointment on 17 June 2019, but they were unable to agree on the terms of reference for the assessment, or who was to pay for it. The Tribunal therefore listed the matter for directions on 4 June 2019. At that hearing, the Tribunal ordered that by 16 June 2019 all VWA’s medical records on which the parties intended to rely must be made available to the specialist, who was also to receive a letter detailing the terms of reference for the specialist assessment. The lawyers agreed on a joint letter of instruction, however the appointment did not proceed. XPU’s lawyer wrote to the Tribunal on 20 June 2019 stating that, on the morning of the scheduled appointment, the doctor’s secretary had written to advise that the doctor was unable to comply with the Tribunal’s orders. The lawyer requested a further directions hearing at which either VCAT or the Office of the Public Advocate (‘OPA’) ‘take direct control over the assessment process given the difficulties encountered between the parties since 22 February 2019.’[8]
[8]Reasons, [24].

On 18 July 2019, the Tribunal adjourned the Application and referred it to the OPA to arrange a neuropsychological assessment of VWA. The Senior Member made the following directions:

Pursuant to section 80 of the Victorian Civil and Administrative Tribunal Act 1988 the Tribunal gives the following directions:
1.The application is adjourned and is referred to the Public Advocate to arrange for a neuropsychological assessment of [VWA] for the purposes of obtaining a relevant and detailed report for the Tribunal regarding her capacity to make reasonable judgements in relation to personal, medical and financial matters, and her capacity to revoke or make an Enduring Power of Attorney.
2.The parties can provide the Public Advocate with any medical material or records in their possession relevant to the issues identified in paragraph 1.
3.The costs of the examination and report are to be borne by [VWA].
4.Upon receipt of the report, the Tribunal will provide the parties with a copy, and will list the proceeding for a further Directions Hearing.

On 7 August 2019, XPU emailed the Tribunal to advise that she no longer resided at her mother’s apartment, and informed the Tribunal of her new contact details. Her evidence is that she had been caring for her mother, but had been evicted from her mother’s apartment by her sister QKG.[9]
[9]Affidavit of XPU affirmed 1 June 2021, [12].

On 2 March 2020, the OPA provided the Tribunal with a fifteen page report by Mr D Phillips, Senior Clinical Neuropsychologist. Mr Phillips referred to the medical documentation relating to VWA, which recorded testing carried out. It varied in its assessment of VWA. Thus Associate Professor Rose, a geriatrician, in March 2019, diagnosed VWA with cognitive impairment. In contrast, VWA’s general practitioner, Dr A Allan, examined VWA on 18 February 2019 and the tests that he performed confirmed that VWA had no significant cognitive impairment and had full capacity to make significant financial decisions. He firmly believed that she did not require the appointment of a guardian or administrator.[10]
[10]Reasons, [18].

Mr Phillips expressed the following opinion:[11]

[VWA] completed a neuropsychological assessment for the purposes of an application before the Victorian Civil and Administrative Tribunal (VCAT) regarding orders concerning enduring powers of attorney and the appointment of a guardian and administrator. The history was notable for extensive white matter changes on brain imaging, excessive alcohol use in the past, and a decline on the ACER cognitive screen from 2017 to 2019 (even after accounting for its later truncation).
The assessment was notable for a marked vision impairment, inefficient new learning and recall on a word list memory task, occasional instances of what appeared to be rapid forgetting and other functional memory problems, and some concreteness with her thinking at times. In contrast, verbal reasoning (on testing), nonverbal reasoning, and basic attention span were sound.
On balance, I believe [VWA] has shown cognitive decline, likely from an above average baseline. While the considerable vascular burden likely plays a large part, I do not believe that her profile can be explained by this alone. While she benefitted from cueing on testing – typical of a more vascular picture – qualitatively her functional memory difficulties suggested rapid forgetting.
Rapid forgetting suggests a number of potential aetiologies. The first to come to mind is the early stages of a neurodegenerative process such as Alzheimer’s. If accurate, [VWA] could show a further deterioration with time. Alcohol use could also be contributory to the profile. If she is currently taking benzodiazepine-based sleep medication – and I don’t know if this is the case – then such medications could also produce a similar profile. In contrast, while [VWA] likely experienced a traumatic brain injury at age 70, I do not believe this has had any long-lasting impact.
In view of the underlying cerebrovascular pathology, my view is that [VWA] may be at increased risk of developing temporary confusional states when medically unwell. She may also be affected cognitively by anaesthesia. I recommend anticipating and planning around these issues with respect to her ongoing medical treatment.

[11]Exhibit ELO-2 to the Affidavit of Evelyn Lik Lin Ooi dated 31 May 2019.

Mr Phillips gave the following responses to the questions contained in the letter of instruction from the OPA:[12]
[12]Ibid.

1. Does [VWA] have a disability? If so, what is the nature of the disability?
This is a borderline case. The answer to this is that, in my view, it depends. At times, it does appear that [VWA] has memory difficulties that can be disabling.
2. If [VWA] has a disability, is she by reason of the disability, unable to make reasonable judgements in respect of all or any of the matters relating to her person and personal circumstances (such as accommodation, access to services, her health and who she has contact with)?
No. At the current point in time, I believe that [VWA] retains the capacity to make reasonable and informed decisions around her person and her personal circumstances. In [VWA’s] case, I view such decisions as less complex in view of her strong views about her life and the people in it, and her well-developed and long-standing network of formal services and supports which I believe one can presume she has set up in accordance with long-standing preferences. In this domain of decision making, I also believe that [VWA] can rely more on old knowledge – including her knowledge about the people she relies on or interacts with, and her view of her daughters – which is less likely to be affected by her memory difficulties and, hence, easier overall for her to negotiate.
3. If [VWA] has a disability, is she by reason of the disability, unable to make reasonable judgements in respect of her financial and legal affairs?
My answer to this is that it depends.
On interview, [VWA[ showed a number of preserved skills with regards to her finances. She knew where to find her bills and was able to locate the amounts due correctly, despite her vision difficulties. She also provided reasonable estimates of the values of the … and … properties. She provided an account of the current legal action that appeared consistent with the documentation and briefing I have received this far.
However, there was also some significant missteps. Despite being in the midst of a significant legal action, [VWA] was unable to name her current law firm. Similarly, while the issues of the wills and estates were pertinent, she was vague about some aspects of her will and was unable to recall with any certainty to whom she had bequeathed some $1M. (Interestingly, she also appeared unsure of to whom she would bequeath this money).
Accordingly, my view is that, on balance, [VWA] lacks the capacity to make reasonable and informed decisions regarding complex financial and legal affairs as a function of her memory difficulties. This is because this information is more complex and changes dynamically as her legal case progresses, which creates more new information for [her] to keep track of and remember. I believe [VWA] would benefit from the appointment of a litigation guardian as required.
I believe, however, that her will and testament is conceptually less complex for [VWA] and something around which she is better able to reason. I have discussed this in greater detail under the Supplementary Note on page 14 below.
4. Does [VWA] understand the nature and effect of making an enduring power of attorney?
Yes, I believe that she does.
I anticipated [VWA] would have difficulties learning and remembering things, and I took this into account when providing information to her about EPOAs. I provided information in a simplified form. I then explicitly tested her memory of it, and gave her immediate feedback. I tested her memory repeatedly and across two sessions separated by some six weeks. Even after this period of time, [VWA] appeared able, in my view, to retain sufficient information about EPOAs over time and understands the nature and effect of making an enduring power of attorney.

5. Does [VWA] now have capacity to make and/or revoke an enduring power of attorney?
Yes, I believe [VWA] currently has the capacity to make and/or revoke an enduring power of attorney for reasons given in my answer to Question 4 above.

Mr Phillips made a number of recommendations including that VWA might benefit from functional neuroimaging, such as FDG PET, to help confirm or rule out the diagnosis of a neurodegenerative disorder.

The Tribunal member who made the summary dismissal order stated that, despite Mr Phillips answering the issue of whether VWA had a disability to be a borderline case as ‘it depends’, he considered that Mr Phillips was strong in his belief that VWA retained the capacity to make reasonable and reasoned decisions about her person and her personal circumstances. However, to the question of, if VWA had a disability, whether she by reason of it was unable to make reasonable decisions in respect of her financial and legal affairs, Mr Phillips again answered: ‘it depends.’[13] The Tribunal Member stated that:[14]

Unfortunately, Mr Phillips’s response on this issue is somewhat unclear and inconsistent but more importantly is compromised because it refers in part to VWA’s testamentary capacity which is an irrelevant consideration in the proceeding and in relation to the Tribunal orders of 18 July 2019. Finally, Mr Phillips was strong in his beliefs that VWA both understood the nature and effect of making an enduring power of attorney and that she retained the capacity to make and/or revoke an enduring power of attorney.

[13]Reasons, [32].

[14]Ibid.

I should observe the following at this point. Mr Phillips’ assessment report was the subject of criticism in the submissions put to me, a number of which are recorded in this judgment. Because of the nature of this proceeding, Mr Phillips has not been called as a witness or had the opportunity to respond to the criticisms. Nor have I seen the letter of instructions sent to him.

XPU obtained a witness statement dated 27 April 2020 from Dr P Ashkar, a Forensic Psychologist and Clinical Neuropsychologist. He stated:

(a) that, in his view, the report of Mr Phillips contained inconsistencies that needed to be resolved. He gave the example that, on the one hand, the report detailed rapid forgetting in VWA, but on the other, it stated that her recall ranged from ‘low average’ to ‘average’ and that she remained able to learn and retain some information over time;

(b) that there was been insufficient investigation of VWA’s learning and memory and higher-level executive thinking skills;

(c) that the report did not allow him to determine if VWA truly had the capacity to process and reason with information regarding her financial decision-making and other decision-making;

(d) that the report failed to provide convincing evidence of capacity one way or the other;

(e) that further testing addressing the above concerns was needed to establish capacity one way or the other; and

(f) that follow up testing that addressed those issues could be completed as soon as convenient for all parties concerned.

Following receipt of the Phillips report, the Tribunal listed the matter for a directions hearing on 24 March 2020. The previous day, XPU’s solicitor notified the Tribunal that he no longer represented her as she had no capacity to pay for ongoing legal representation.

Directions hearing on 24 March 2020

By this time the COVID pandemic had arrived in Australia and the directions hearing was conducted remotely. XPU’s solicitor participated in it, although informing the Member that he was ceasing to act. VWA’s counsel informed the Tribunal that she did not wish any orders to be made about the enduring power of attorney and did not wish that a guardian or administrator be appointed. In his reasons of 10 March 2021, the Member set out an account of the directions hearing of 24 March 2020 including the following:[15]

[VWA] submitted that no substantive evidence, including current medical evidence, had been provided by XPU and there was no evidence of any incapacity. Ms Kirwan further submitted that QKG provided adequate care for VWA and VWA is very happy with her current arrangements. VWA regularly consulted her long–standing GP, Dr Allan, and, if required, her geriatrician who is Mr Campbell. QKG took her to appointments. Ms Kirwan also submitted that VWA has regularly utilised the services of her same accountant for a long time and she has no medical or financial needs. Ms Kirwan sought to make a strike-out application at the hearing under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) but I refused to grant leave to do so due to insufficient prior notice having been given to XPU about the making of such an application. Ms Kirwan indicated that VWA could call seven to eight witnesses at any hearing. XPU indicated she would call three witnesses. Ms Kirwan also raised concerns about the equivocal nature of the report of Mr Phillips, his enquiries of VWA about her Will, and its admissibility into evidence at any hearing.

[15]Ibid [35].

At the directions hearing, VWA sought to make a summary dismissal application, but the Tribunal considered that XPU had not received adequate notice of it. Rather, the Tribunal ordered:[16]
[16]Order dated 24 March 2020 in VCAT Proceeding G85455/01.

2. By 30 April 2020, the Applicant shall send to the Respondent and file with the Tribunal:
(a)a list of all witnesses she intends to call at the hearing of the application;
(b) a list of the documents upon which she intends to rely at the hearing of the application;
(c) a statement of the evidence of each witness she intends to call at the hearing of the application; and
(d) a copy of each document upon which she intends to rely at the hearing of the application.

3.By 15 June 2020, the Respondent shall send to the Applicant and file with the Tribunal:
(a)a list of all witnesses she intends to call at the hearing of the application;
(b)a list of the documents upon which she intends to rely at the hearing of the application;
(c)a statement of the evidence of each witness she intends to call at the hearing of the application; and
(d)a copy of each document upon which she intends to rely at the hearing of the application.

4.Unless the Tribunal gives leave at the hearing of the application, the parties may not:
(a)present a case at the hearing different from that contained in the material filed by that party in the proceeding;
(b)call a witness whose statement has not been provided;
(c)seek to present further evidence – in – chief beyond that contained in the statement of a witness’s evidence filed with the Tribunal.

5.The hearing of the application is adjourned to a date and time to be fixed by the Principal Registrar not before 1 July 2020. …

The Application was adjourned to be listed for hearing on a date not before 1 July 2020.

On 29 April 2020, the Tribunal granted XPU an extension of two weeks to comply with the orders of 24 March 2020.

On 4 May 2020, at XPU’s request, the Tribunal issued a subpoena for the medical records of VWA from the Alfred Hospital.

On 12 May 2020, XPU requested a further extension of time to submit her witness statements, but on 27 May 2020, the Tribunal refused it. Nevertheless, on 14 May XPU filed and served a two page statement from Dr P Ashkar, who is a clinical neuropsychologist and whose statement I have set out above, which stated that the Phillips report did not provide convincing evidence of capacity one way or the other and further testing was required.

On the same day, XPU wrote to the Tribunal providing the following information about her case:

List of witnesses
Dr Peter Ashkar
A list of documents
PA 1: Dr Peter Ashkar CV
PA 1: Dr Peter Ashkar Witness Statement
A statement of the evidence of each witness I intend to call at the hearing
PA 1: Dr Peter Ashkar CV
PA 1: Dr Peter Ashkar Witness Statement
A copy of each document upon which I intend to rely at the hearing of the application.
PsyAx report by Dougal Phillips, dated 28/02/2020 (VCAT and Cornwalls have this report).

The Tribunal heard VWA’s application for summary dismissal of XPU’s Application on 9 July 2020 and on 10 March 2021, delivered reasons for decision and ordered that:[17]

1 The application of the respondent [VWA] under section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 is granted and the proceeding is wholly dismissed.
2 Any application of the respondent [VWA] for costs is to be filed with the Tribunal and provided to the applicant [XPU] by 4.00 pm on 9 April 2021.
[17]Reasons, Order.

Submissions at the Tribunal hearing on 9 July 2020

XPU submitted to the Tribunal that her main concern was that the medical evidence about VWA denoted a significant level of impairment. Medical reports in 2008 indicated cerebral atrophy and severe small vessel ischaemic white matter change. The precise extent of her cognitive deterioration could not be determined until she submitted to an examination by a competent neurologist or neuropsychologist. The report by Mr Phillips was not satisfactory.

XPU submitted that her Application should be allowed to run its course and the Tribunal should have the opportunity to consider in depth Mr Phillips’ report and Dr Ashkar’s opinion about its deficiencies. She said that further witness statements were not relevant until an assessment of VWA had been completed. She was concerned about the improper dealings with her mother’s property including the transfer of one of the properties. She argued that natural justice required that the Application should go to a full hearing and that the Phillips report and its deficiencies be considered.

XPU said that the COVID pandemic had crippled her on many fronts.[18] She did not have access to Wi-Fi, she was using a library computer for half an hour at a time and the library had shut down. She was not in a good financial position. She said that she did want to put in witness statements, but she was time poor, and things were not easy for her. She stated that she had every intention to be a witness and that her Application should be explored a little bit more.
[18]Transcript of VCAT Proceeding (G85455, 9 July 2020) (‘Transcript of VCAT Proceeding’) 44.

VWA argued that XPU had been warned of the need to comply with orders, including filing witness statements. She understood the requirements of the orders and her solicitor was present at the directions hearing of 24 March 2020. She had also not complied with the orders of February 2019. XPU sought further medical testing but only the Public Advocate’s office could arrange that. Guardianship applications have to be dealt with in a reasonable time, particularly bearing in mind that VWA was an elderly lady for whom testing was very taxing.

VWA’s submission was that the Phillips report was not admissible so there was nothing for her to respond to. There was no evidence that VWA was not capable of managing her financial affairs. XPU, as primary carer, had chosen not to give evidence. Normally VCAT will require medical reports to have been prepared no more than three months previously.[19]
[19]Ibid 31.

If the proceeding returns to VCAT and further testing is required, it will create many more months of delay which will adversely affect VWA.

The Tribunal’s reasons

The Tribunal’s reasons for granting VWA’s summary dismissal application were as follows:[20]
[20]Reasons, [85]-[94].

It was abundantly clear to XPU at the directions hearing on 24 March 2020 about the evidentiary material required and she acceded to the timetable made and understood the nature of the orders.
Indeed, orders made at the hearing on 22 February 2019 first required XPU to provide witness statements by 22 March 2019, but none have been forthcoming.
In her responses to the submissions of VWA at the hearing on 9 July 2020, XPU effectively conceded that there are no other witnesses other than perhaps herself.
However, as to any evidence being forthcoming from XPU, there was no indication given by her on 9 July 2020 that she would ever provide a witness statement.
It is simply insufficient, when invoking VCAT’s jurisdiction, to just present allegations. Supporting evidence has to be provided and it is not for the Tribunal to have to ‘hunt around’ for it. The application and submissions of XPU in this proceeding are mere allegations, without evidentiary support.
The application itself is deficient as to the matters for which orders are sought. Fundamental matters about which there has not been any supporting evidence have already been stated earlier in these reasons. Additionally, there has not been any supporting evidence provided about the making and operation of the EPA and VWA’s financial affairs, and why there is a need, not only for the EPA to be revoked, but for there to be a guardianship and administration order made. In the latter regard, there has not been any evidence provided about personal or financial circumstances or requirements of VWA which might give rise to even considering the making of these orders.
VWA has not been given any indication by XPU, despite ample time and opportunity to do so, about what it is to which she needs to respond.
I also found it to be of great concern in the responses of XPU to VWA’s submissions on 9 July 2020, that XPU contended that the application should be the subject of further exploration. This is consistent with, and indicative of, an application commenced and continued in the hope that some possible evidentiary support for it might be found at some point in the future.
I have no reason to doubt that the applicant has put the entirety of her case in the material before me but, despite this, I cannot find an issue of substance to go to final hearing.
I find XPU’s application to be undoubtedly hopeless and lacking in substance and I therefore grant the application of VWA for summary dismissal of the entire proceeding. Orders have been made accordingly.

Legislation and legal principles

XPU sought leave to appeal the Tribunal’s order pursuant to s 148 of the VCAT Act. Section 75 of that Act deals with summary dismissals and provides:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.

…
(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal’s own initiative.
(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

The Tribunal Member stated that, in determining applications under s 75, the Tribunal has consistently followed principles set out in State Electricity Commission of Victoria v Rabel (‘Rabel’).[21] The Tribunal also noted that the relevant principles were summarised by Garde J in Owners Corporation No 1PS537642N v Hickory Group Pty Ltd.[22] The Tribunal summarised the principles as follows:[23]

The Tribunal should be very cautious before summarily terminating a proceeding under section 75 as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is manifestly hopeless, undoubtedly untenable, or doomed to fail. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.
It is also accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case depends on findings of fact based on contested evidence, or if the ultimate fate of the proceeding depends upon contested questions of fact that would be established or illuminated by oral evidence or cross–examination.
The Tribunal is also obliged to ensure that self-represented parties have a genuine opportunity to articulate their case in considering the respondent’s application. I should take the applicant’s case at its highest. I must not strike out or dismiss the applicant’s case just because she has not articulated or explained it properly. However, I must also take into account the right of the respondent to understand the case put against her.

[21][1998] 1 VR 102 (‘Rabel’). See also Reasons, [49].

[22][2015] VCAT 1863, [6]-[12]. See also Reasons, [49].

[23]Reasons, [50]-[52].

In LG v The Public Advocate,[24] Forbes J summarised the principles applicable to the summary dismissal of an application as follows:[25]

(i) The onus lies on the person seeking summary dismissal of an application to show that the application is undoubtedly hopeless. This onus is similar to the burden imposed by courts when considering application under Order 23 of the Rules of the Supreme Court.
(ii)Such an application for summary dismissal is of an interlocutory nature and may be heard without the taking of full evidence.
(iii) If the material discloses a dispute as to a fact in issue then the complaint ought not be summarily determined for lack of substance.
(iv) A distinction is to be drawn between the complaint itself and the evidence to be presented in support of the claim, in determining whether a claim is undoubtedly hopeless.
(v) Summary disposition of an applicant’s case is to be exercised with caution as it deprives the person bringing the application of the opportunity to have their claim heard.
[24][2019] VSC 514, [12].
[25]Citing Rabel.

Guardianship and Administration Act

The Guardianship and Administration Act 1986 (‘old Act’) was repealed on 1 March 2020. Under the old Act, s 22 governed the appointment of a guardian and what the Tribunal was required to assess when making a guardianship order. Section 22(1)-(2) stated:

(1)If the Tribunal is satisfied that the person in respect of whom an application for an order appointing a guardian is made—
(a) is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and

(c) is in need of a guardian—
the Tribunal may make an order appointing a plenary guardian or a limited guardian in respect of that person.
(2)In determining whether or not a person is in need of a guardian, the Tribunal must consider—
(a)whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person’s freedom of decision and action; and
(ab)the wishes of the proposed represented person, so far as they can be ascertained; and
(b)the wishes of any nearest relatives or other family members of the proposed represented person; and
(c)the desirability of preserving existing family relationships.

The old Act defined the term ‘disability’ to mean ‘intellectual impairment, mental disorder, brain injury, physical disability or dementia’.[26] The Tribunal was prohibited from making an order under s 22(1) unless it was satisfied that the order would be in the best interests of the person concerned.[27]
[26]Guardianship and Administration Act 1986 (‘Old Act’) s 3.
[27]Old Act s 22(3).

The Guardianship and Administration Act 2019 (‘new Act’) commenced on 1 March 2020. Section 201 of the new Act requires that, on or after the commencement day, applications made under the old Act for guardianship and administration orders that were yet to be determined were taken to be applications made under the new Act and must be determined by the Tribunal in accordance with the new Act.[28] Section 7 of the new Act states:
[28]Guardianship and Administration Act 2019 (‘New Act’) s 201(1)-(2).

7 Primary object
(1)The primary object of this Act is to protect and promote the human rights and dignity of persons with a disability by—
(a)having regard to the Convention on the Rights of Persons with Disabilities, recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives; and
(b)if a guardianship order or administration order is made for such persons—
(i) enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators when making such orders; and
(ii)requiring VCAT to review regularly such orders; and
(iii)providing guidance for guardians and administrators when making decisions for represented persons, as the case requires.

Sections 22 and 23(1) of the new Act govern applications for guardianship and administration orders and state:

22 Application for guardianship orders
A person may apply to VCAT for a guardianship order that appoints a guardian for a person with a disability who is—
(a) of or over 18 years of age; or
(b)under 18 years of age but the order takes effect on that person attaining 18 years of age.

23 Application for administration orders
(1) A person may apply to VCAT for an administration order that appoints an administrator for a person with a disability who is—
(a) of or over 18 years of age; or
(b)under 18 years of age but the order takes effect on that person attaining 18 years of age.

The term ‘disability’ is defined in the new Act to mean ‘neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia’.[29] Section 30(2) of the new Act states:
[29]New Act s 3.

30 VCAT may make a guardianship order or administration order
(2) VCAT may only make a guardianship order or an administration order under this Division if satisfied that—
(a)because of the proposed represented person’s disability, the person does not have decision-making capacity in relation to—
(i)in the case of a guardianship order, the personal matter in relation to which the order is sought; or
(ii)in the case of an administration order, the financial matter in relation to which the order is sought; and

(b)the proposed represented person is in need of a guardian or administrator, as the case requires; and
(c)the guardianship order or administration order, as the case requires, will promote the proposed represented person’s personal and social wellbeing…

Section 31 of the new Act lists factors that the Tribunal must consider in determining the need for a guardian or administrator under s 30(2)(b), being: the will and preferences of the proposed represented person, so far as they can be ascertained; whether decisions in relation to the personal or financial matter for which the order is sought may more suitably be made by informal means or reasonably be made through negotiation, mediation or similar means; the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application; and the desirability of preserving existing relationships that are important to the proposed represented person.[30]
[30]New Act s 31.

Powers of Attorney Act 2014

Part 8 of the Powers of Attorney Act 2014 gives VCAT power to revoke powers of attorney.

Questions of law and grounds of appeal

XPU’s questions of law and grounds of appeal are in substantially the same terms. In essence, they raise the question of whether the Tribunal properly applied the principles governing the summary dismissal of a proceeding under s 75 of the VCAT Act. The questions of law are as follows:[31]

1. Did the Tribunal err in law by finding that the conditions on its power in s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘Act’) were enlivened?
2. Did the Tribunal err in law by summarily dismissing the proceeding on the basis that the applicant had not provided sufficient evidence in support of her application, in the absence of a final hearing?
3.Did the Tribunal err in law when applying s 75(1) by conducting a pre-trial assessment of evidence relied on by the applicant to determine whether she could prove her case?

[31]XPU’s Amended Notice of Appeal dated 15 December 2021.

XPU filed affidavits in this proceeding which included a description of facts and expression of opinion, which cannot be taken into account on this application for leave to appeal. The affidavits filed by VWA’s solicitor on her behalf largely exhibited the documents necessary for the conduct of this proceeding.

Question of law 1 and ground 1: Did the Tribunal err in law by finding that the conditions on its power in s 75(1) of the Act were enlivened?
XPU’s submissions

XPU submitted that the content of the medical reports provided to the Tribunal established that the ‘central’ issues of whether VWA suffered from a ‘disability’ and lacked ‘decision-making capacity’ remained in dispute. Mr Phillips, a specialist engaged at the direction of the Tribunal, considered that VWA suffered from memory difficulties ‘that can be disabling’. He concluded that, as a result, she lacked capacity to make reasonable and informed decisions about complex financial and legal affairs. He took into account a number of medical reports, including two reports from Dr Fonda which concluded that VWA’s short-term memory had significantly declined and that she had ‘mild cognitive impairment’, while Dr Allan, VWA’s general practitioner, considered that XPU had ‘no significant cognitive impairment’. Dr Ashkar concluded that further testing was required to determine whether VWA lacked capacity.

The Tribunal found that XPU’s Application was ‘undoubtedly hopeless and lacking in substance’,[32] despite those unresolved factual issues; despite not having heard oral evidence from any medical experts or lay witnesses, including XPU and VWA; despite not having received the results of further testing recommended by both Mr Phillips and Dr Ashkar; and no updated opinion from Dr Allan following the Phillips report. This material did not clearly resolve whether VWA suffered from a disability and whether she lacked decision-making capacity. XPU wished to rely on further evidence, including her own, to establish her claim and so her proceeding was not ‘undoubtedly hopeless’ and it was ‘obvious’ that the power should not be exercised. XPU did not concede that the Tribunal had received all the material on which she wished to rely. Her failure to comply with the timetable did not detract from the fact that she wished to rely on further material.
[32]Reasons, [94].

VWA’s submissions

VWA submitted that one of XPU’s principal motivations in seeking guardianship and administration orders and the revocation of the enduring power of attorney was to attempt to prevent the foreshadowed transfer of a property to her sister, QKG. But that was a matter for a court and not the Tribunal. XPU chose not to provide witness statements or evidence regarding the transfer of property or seek to substantiate her allegations regarding it. She had not explained this failure despite being granted a number of extensions of time.

The fact that the Member presiding at the directions hearing on 22 February 2019 made observations about the medical evidence before the Tribunal at that point was irrelevant to whether summary dismissal of the proceeding was justified on 10 March 2021.

VWA submitted that Mr Phillips’ report travelled well beyond the matters referred to in the Tribunal’s order of 18 July 2019, his proper fields of endeavour and inquiry and canvassed matters pertaining to VWA’s will, her testamentary intentions, matters which may have been the subject of legal professional privilege and relied upon his conclusions about her testamentary capacity. It was inadmissible. The Report referred to none of the matters required by the new Act. In any event, Mr Phillips did not conclude that VWA had a disability, except to say she had memory difficulties that ‘could be disabling’, and that ‘it depends’. He concluded that VWA ‘retained the capacity to make reasonable and reasoned decisions around her person and her personal circumstances’.[33] He reached no conclusion on which a guardianship or administration or administration order could be made under the new Act. Dr Ashkar’s report relied on by XPU concluded that the Phillips report ‘fails to provide convincing evidence of capacity one way or the other’. XPU herself contended that it was ‘unsatisfactory’, ‘appears incomplete’ and contains ‘deficiencies’. ‘None of the Tribunal, the Public Advocate or XPU asked Mr Phillips to re-visit his report in light of the commencement of the new Act, in advance of a final hearing or seek to have VWA undergo the testing suggested by Mr Phillips.
[33]Ibid [32].

VWA argued that if the matter were to be remitted to the Tribunal, she was the only party that would suffer prejudice and injustice.[34] She is 91 years old and justice requires that she be free to live her life without the threat of orders that had the potential to deprive her of her freedom and liberty.[35] Further testing would be required and the Application would essentially revert where it was when it was filed in 2018.
[34]Transcript of Proceeding (S ECI 2021 01250, XPU v VWA, Ginnane J, 7 February 2022) 79-80.
[35]Ibid.

VWA submitted that by the time the summary dismissal application was made, XPU was conducting her Application in a vexatious manner, she had concealed the Application from VWA for some months and the Application did not address the criteria required by the new Act, in particular those set out in s 24. By way of example, XPU had not specified what the matter or matters were in respect of which guardianship or administration orders were sought.

XPU failed to comply with the Tribunal’s orders for filing evidence, sought extensions and, despite the paucity of relevant evidence, argued that the Application should continue so that it could be ‘explored’ further, in some unspecified way. XPU conducted her Application in an unjust and unfair manner, given that VWA still did not know the case she had to meet 18 months after it was filed. The Tribunal’s finding that the Application was ‘undoubtedly hopeless’ was tantamount to a finding that it was, by 9 July 2020 at the latest, an abuse of process.

The Application was lacking in substance as there was still no cogent current medical evidence before the Tribunal in relation to the key question, namely whether VWA had a disability. The Tribunal found that XPU gave no indication on 9 July 2020 that she would ever provide a witness statement; in a nutshell, her position was explained to the Tribunal as follows:[36]

[XPU]: I believe it should be a scenario that’s explored a little bit more. The application itself. It’s my opinion.

[36]Transcript of VCAT Proceeding, 48.

VWA submitted that no dispute as to a fact in issue existed. There was no evidence, which is why the Tribunal concluded ‘I cannot find an issue of substance to go to final hearing’.[37] The Tribunal was not required to give the Applicant an open-ended opportunity to advance her case. The Tribunal gave XPU every opportunity to file and serve any additional evidence on which she intended to rely, however she failed to do so. She did not make any application for further assessment of VWA. The lack of evidence, and the absence of an issue of substance, enlivened the Tribunal’s proper exercise of s 75(1) of the VCAT Act.
[37]Reasons, [93].

The present case was distinguishable from Rabel[38] and Forrester v AIMS Corporations (‘Forrester’)[39] because unlike those applicants who were seeking to vindicate their rights, XPU had involved the protective guardianship jurisdiction, seemingly urgently, in respect of her elderly mother, but provided no evidence on which the Tribunal could make the orders sought under the new Act. The Application was in every respect ‘lacking in substance’ and the Tribunal’s order was properly made.
[38][1998] 1 VR 102.
[39]Forrester v AIMS Corporations & Ors [2004] VSC 506 (‘Forrester’).

Analysis

The Tribunal summarily dismissed XPU’s Application on the basis that it lacked substance and thus the power in s 75(1) of the VCAT Act was engaged. It reasoned that XPU had presented allegations and not evidence and as a result VWA did not know the case she had to meet. The Member considered that there was no likelihood that XPU would present any further evidence at a final hearing if one were held. He stated that ‘XPU effectively conceded that there are no other witnesses other than perhaps herself’. To similar effect, the Member stated:[40]

I have no reason to doubt that the applicant has put the entirety of her case in the material before me but, despite this, I cannot find an issue of substance to go to final hearing.

[40]Reasons, [93].

In deciding whether to summarily dismiss the proceeding, the Tribunal was required to consider whether the material presented to it disclosed a dispute as to a fact in issue. If it did, the Tribunal erred in summarily dismissing the proceeding. XPU contended that VWA had a cognitive impairment. If that were so, VWA may well have had a disability which affected her decision-making capacity. There was differing medical opinion on this issue, but no recent opinion when the Tribunal heard the Application, other than the Phillips report. XPU was proposing to rely on Dr Askhar’s witness statement and Mr Phillips’ report and it seems on her own evidence, although she had not made a witness statement. Mr Phillips’ report stated that VWA’s history was notable for the extensive white matter changes on brain imaging. He considered that VWA had shown cognitive decline and that her functional memory suggested rapid forgetting and that she may be at increased risk of developing temporary confusional states when medically unwell. He considered that VWA was a ‘borderline case’. He considered that she had memory difficulties that could be disabling; retained the capacity to make reasonable and informed decisions around her person and her personal circumstances; lacked the capacity to make reasonable and informed decisions regarding complex financial and legal affairs as a function of her memory difficulties; understood the nature and effect of making an enduring power of attorney and currently had the capacity to make and/or revoke an enduring power of attorney.

VWA foreshadowed objections to the admissibility of all or parts of Mr Phillips’ report, but the Tribunal was entitled to take it into account in determining the summary dismissal application, as this Court can in deciding this application for leave to appeal.

Dr Ashkar considered that Mr Phillips’ report did not allow him to determine if VWA had capacity to process and reason with information regarding her financial and other decision making and that further testing addressing these concerns was needed to establish VWA’s capacity one way or the other.

The Tribunal Members whose orders and directions in February and July 2019 had eventually led to Mr Phillips’ report, considered it important to gain an independent assessment of VWA. The Tribunal was exercising a protective jurisdiction. The Senior Member recognised this in July 2019, when she directed that the OPA arrange an independent specialist examination of VWA, when the parties could not agree on a suitable person. But the objective of that direction was not achieved as Mr Phillips’ report was not conclusive and suggested the possibility of further testing. In addition, the Phillips report did not address the criteria contained in the new Act. No further testing was obtained before the summary dismissal application was heard on 9 July 2020, by which time the Phillips report was four months old. But as Dr Ashkar suggested, and as common sense would have indicated, further testing could have been carried out. The issues that the Senior Member had identified as requiring an independent assessment still remained and XPU’s Application still raised factual issues as to VWA’s cognitive and decision-making capacity. They remained significant facts in issue.

XPU suggested, but did not press for orders that further testing of VWA occur. She did bear the onus of proving the matters required to obtain the orders that she sought. However, she was, after 24 March 2020, a self-represented litigant and the Tribunal, as the Member recognised, had the obligation of ensuring that she had a ‘genuine opportunity to articulate [her] case’.[41] That included her right to request the Tribunal to order further testing before it decided whether to summarily dismiss her Application. The Tribunal Member could have made such a direction under s 80 of its own motion as it appears the Senior Member did in July 2019.
[41]Reasons, [52]; Victorian Civil and Administrative Tribunal, Practice Note PNVCAT3: Fair Hearing Obligation, 10 March 2022, [17]-[18]. See also Tomasevic v Travaglini (2007) 17 VR 100.

In my opinion, the case was set down for a summary dismissal application without the preliminary steps the Tribunal had intended, and directed, being completed. It was then dismissed because XPU had made allegations and not provided evidence, when the evidence obtained as a result of the Tribunal’s direction was inconclusive. XPU expressed the wish to call Dr Ashkar, who would have been able to indicate the kind of testing that was desirable. While XPU bore the onus of establishing her case, the history of the proceeding included that the Tribunal had considered it appropriate and necessary to order an independent assessment of VWA, and that, as recently as 24 March 2020 XPU, had become a self-represented litigant. The issues of whether VWA had a disability and whether, as a result, she did not have decision-making capacity within the meaning of the new Act remained unresolved by expert opinion. Those issues were relevant to the determination of all the orders that XPU sought: guardianship and administration orders and the revocation of the enduring power of attorney. XPU had the right under the orders of 24 March 2020 to seek leave to lead or rely on further evidence. On that day, her solicitor asked for further testing of VWA to be performed and so did XPU on 9 July 2020, although they did not formally seek a direction to that effect.

Within about 2 months after receiving the Phillips report, XPU obtained Dr Ashkar’s statement of 27 April 2020. Her solicitor ceased to act on 23 March 2020 and, on her account, she had no fixed address and limited access to computers. This was in the early days of the COVID pandemic. I do not consider that her failure to comply with the Tribunal’s timetable indicated that she would continue to fail to comply with directions. VCAT has particular powers to dismiss a proceeding when a party’s failure to comply with an order or direction unnecessarily disadvantages another party to the proceeding.[42] The summary dismissal order was not made under that power. A point may have been reached when XPU’s failure to provide a witness statement herself may have justified the Tribunal in refusing her leave to give evidence, but that point had not been reached on 9 July 2020. The chronology of events is significant. XPU’s Application had been on hold from the Senior Member’s direction in July 2019 for the Public Advocate to arrange for a neuropsychological assessment of VWA until that assessment in the form of the Phillips report was received by the Tribunal. The Tribunal then provided the parties with a copy of the assessment and listed the proceeding for a further directions hearing.
[42]VCAT Act s 78.

I do not consider that the fact that XPU was motivated to commence this Application because of the impending transfer of property to QKG was relevant to the determination of the summary dismissal application, or is relevant to the determination of this application for leave to appeal. Guardianship and administration proceedings can arise from differences in families about an elderly parent’s capacity to dispose of their property.

The combination of the matters to which I have referred made it inappropriate for the Tribunal to summarily dismiss the proceeding on the ground that it was lacking in substance. Such orders must always be made cautiously. In my opinion, there were sufficient factual issues in dispute to require the Application to go to a final hearing. XPU bore the onus of proving that VWA suffered from a disability which caused her not to have decision-making capacity. Whilst the evidence filed and served by XPU to date did not prove such facts in issue, there was sufficient evidence to require a full hearing. At such a hearing, any further evidence from Dr Ashkar, XPU and of any further testing of VWA could have been considered.

I accept, and have taken into account, that XPU’s Application will have placed stress and a considerable burden on VWA and that the orders XPU seeks, if made, would restrict her freedom and autonomy. Guardianship and administration applications are intended to be determined promptly.[43] However, normally a litigant in a contested matter is entitled to expect that the proceeding will proceed to a final hearing unless previously resolved and XPU’s Application was scheduled to go to a final hearing not before July 2020.
[43]See s 28 of the New Act.

For the reasons I have given, this was not a case appropriate for a summary dismissal order. With respect, the Member erred in deciding that it was. That error raised a question of law,[44] and XPU has established her grounds of appeal connected to that question of law.

Question of law 2 and ground 2: Did the Tribunal err by summarily dismissing the proceeding under s 75(1) on the basis that the appellant had not, at that stage, provided sufficient evidence to support her application?

[44]VCAT Act s 75(5).

The submissions about questions of law 2 and 3 and the associated grounds of appeal overlap to some extent with each other and also with question of law 1, but I will consider the issues they raise separately.

XPU’s submissions

XPU submitted that the Tribunal erred in finding that she had conceded that the totality of her evidence was before it. The Tribunal stated that:[45]

In [XPU’s] responses to the submissions of VWA at the hearing on 9 July 2020, XPU effectively conceded that there are no other witnesses other than perhaps herself.

[45]Reasons, [87].

XPU submitted that the Tribunal’s order of 24 March 2020 provided her with the right to seek leave to present further material, or rely on further evidence, and neither party was excluded from seeking such leave.

The Tribunal’s findings ignored the fact that, as no final hearing was conducted, it did not hear evidence from XPU or VWA, or from Mr Phillips, or other medical specialists before making its findings.

XPU submitted that her Application should have gone to a full hearing at which the Phillips report and its deficiencies would be considered. She said that she would like to put on evidence and call witnesses and provide witness statements and intended to be a witness. It was not possible for the Tribunal to conclude at the hearing on 9 July 2020 whether VWA suffered from a disability and whether her decision-making was affected. The Tribunal erred by adopting an approach that was tantamount to that applicable to a no case submission. The Tribunal was required to view the evidence in the light most favourable to the applicant. The Phillips report alone was evidence that would, when viewed in the most favourable light, support XPU’s Application. Issues of its admissibility or weight could have been dealt with if the matter proceeded to a final hearing.

XPU submitted that as important facts in issue about VWA’s medical condition remained unresolved and XPU wished to rely on further evidence to establish her claim, the Tribunal should not have exercised the power of summary dismissal. The proceeding was not ‘undoubtedly hopeless’. The central issues of whether VWA suffered from a ‘disability’ and lacked ‘decision-making capacity’ remained in dispute. The fact that XPU had not filed material in accordance with the procedural timetable did not detract from that conclusion.

VWA’s submissions

XPU’s contention that the Tribunal’s decision was ‘erroneous’ because XPU did not ‘clearly concede’ that ‘the material before the Tribunal did not contain the whole of her case’ was an impermissible attack on factual findings made by the Tribunal. These were that ‘there was no indication given [by the respondent] that she would ever provide a witness statement’ and that the Tribunal had ‘no reason to doubt that the applicant has put the entirety of her case in the material before me’.

VWA also submitted that the issue of whether XPU conceded that there was no evidence she wished to adduce beyond what was already filed with the Tribunal was irrelevant. XPU had no unilateral right to seek that the matter continue to a final hearing on grounds that she made no concession that the totality of evidence on which she would rely upon was before the Tribunal.

VWA submitted that it was unrealistic to suggest that further medical evidence, or further testing of VWA, should have been considered as an outcome instead of dismissing the Application when none of the Tribunal, XPU or the Public Advocate had requested it. It was not open to XPU to seek to further ‘explore’ the matters raised in her Application at a final hearing, particularly given the directions which had been made previously for the expeditious and fair hearing and determination of the Application. Nor was it open to XPU to now rely on that submission as a basis to contend that her Application should not have been summarily dismissed.

Analysis

VWA relied on the Tribunal’s finding that XPU conceded at the hearing of 9 July 2020 that there was no proper evidence on which an order should be made.[46] But the transcript of the hearing of 9 July 2020 includes statements by XPU that she:[47]
[46]Transcript of VCAT Proceeding, 21-22.
[47]Ibid 45.

would still like to put in evidence and witnesses, witness statements and so forth…

and that she:[48]

had every intention of being a witness and providing witness statements and all of that.

[48]Ibid 47.

XPU did reiterate that she intended to be a witness at the final hearing of her Application. I have stated in respect of question of law 1, why I consider that issues about whether VWA had a disability and as to her decision-making capacity remained in issue.

The Tribunal’s findings that XPU had effectively conceded that she had no further witnesses to call, and that the entirety of her case was before the Tribunal were incorrect. VWA submitted that the Tribunal was within its right to give appropriate weight to XPU’s oral submissions during the hearing for summary dismissal and also consider XPU’s written submissions which were in part contradictory to her oral submissions. This is in part so, however, appropriate weight should have been given to the fact that XPU, as a self-represented litigant, was unlikely to understand the consequence of a statement that might indicate such a concession was made. At the directions hearing on 24 March 2020, she said that she was living in a car having been evicted from her mother’s apartment and was limited in using computers and printers as a result of COVID restrictions. I do not consider that XPU conceded that the Tribunal had the entirety her case before it at the hearing on 9 July 2020 for summary dismissal. Relevantly, the Tribunal noted in its reasons that:[49]

[XPU] denied that she was not giving evidence. Rather, she maintained that she had been very affected by COVID as she required use of a computer at a library to prepare a statement and the pandemic had prevented her from doing so. XPU also maintained that she was significantly constrained from both financial and time perspectives and she had been advised not to handwrite and scan documents.

[49]Reasons, [82].

Whilst there is no guarantee that an application by XPU for leave to adduce additional evidence at a final hearing would have been granted, the Phillips report provided some evidence that VWA had suffered a cognitive decline. Then there was Dr Ashkar’s statement critiquing the Phillips report. VWA wished to call him as a witness at the final hearing and his evidence, particularly if it came after his suggested further testing of VWA, may have clarified the issues in dispute. XPU wanted to give evidence, which, if allowed, was likely to include her observations of VWA, while she was residing with her.

For the reasons, I have given in respect of question of law 1, I consider that the Member erred in deciding that XPU had not provided sufficient evidence in support of her Application in the absence of a final hearing. In many proceedings, and this was one, unresolved issues can only be determined at a final hearing.

Question of law 3 and ground 3: Did the Tribunal err in law when applying s 75(1) by conducting a pre-trial assessment of the evidence relied on by XPU to determine whether she could prove her case?
XPU’s submissions

XPU submitted that, as had been the case in Forrester, this application for summary dismissal was heard ‘without the taking of full evidence’.[50] The Tribunal was therefore required to ‘view [the] evidence in the light most favourable to’ XPU.[51] XPU contended that the Tribunal had conducted a ‘pre-trial assessment’ of the material that she was to rely upon, something that Kaye J in Forrester said should not occur in the following passage:[52]

…it is not for the Tribunal, at least at an interlocutory stage of proceedings, to conduct a pre-trial assessment of the complainant’s evidence to determine whether the complainant can prove his case. Such an approach is incorrect and inappropriate, at least unless the complainant clearly concedes that the material he has placed before the Tribunal contains the whole of the complainant’s case.

[50]Forrester, [25].

[51]Ibid [38].

[52]Ibid [33].

The ‘pre-trial assessment’ led the Tribunal to find that XPU presented ‘mere allegations, without evidentiary support’.[53] The Tribunal Member had ‘no reason to doubt that the applicant has put the entirety of her case in the material before [the Tribunal]’.[54]
[53]Reasons, [89].
[54]Ibid [93].

VWA’s submissions

VWA submitted that the Tribunal did not make a pre-trial assessment of XPU’s evidence. The Phillips report and Dr Ashkar’s evidence were, in effect, no evidence. As there was no evidence, including lay evidence, to be assessed by the Tribunal, there was no basis upon which this Court could find an error of law on the grounds of the purported pre-trial assessment. This was a case where there was no evidence, so axiomatically, no pre-trial assessment could possibly have been carried out.

The Tribunal’s conclusion that the Application was ‘undoubtedly hopeless and lacking in substance’ was based upon its findings that XPU had made ‘mere allegations, without evidentiary support’, that the Application ‘itself [was] deficient’ and that fundamental and supporting evidence was absent.

Analysis

In considering the Application, and the subsequent submissions of XPU, the Tribunal reached conclusions that XPU had ‘invoke[ed] VCAT’s jurisdiction, to just present allegations’ and that ‘[t]he application and submissions of XPU in this proceeding are mere allegations, without evidentiary support’.[55] Accordingly, the Tribunal held that the Application should be dismissed under s 75 of the VCAT Act. The Tribunal did acknowledge that it had to view the evidence in the most favourable way towards XPU.
[55]Ibid [89].

Having considered the Tribunal’s findings, I consider that it examined the evidence that was advanced by XPU as though it was the totality of evidence that would be before the Tribunal at a full hearing. In that respect the Tribunal conducted a pre-trial assessment of the evidence relied on by XPU to determine whether she could prove her case. As Kaye J in Forrester stated:[56]

The Tribunal examined, in detail, the evidence then put before it by the appellant, as if that was the sum total of the evidence which had been called before the Tribunal on a full hearing of the complaint. In doing so the Tribunal adopted an approach akin to that which was prescribed in Assal, but which was rejected by the Court of Appeal as being inappropriate to an application at an interlocutory stage of the proceeding.

[56]Forrester, [31].

The Tribunal did not refer to the fact that XPU had filed and served on 14 May 2020 a list of witnesses, documents and statements that she intended to call and rely upon at the final hearing of the matter, the details of which I have set out above. The Tribunal stated in its decision that there were ‘[f]undamental matters about which there has not been any supporting evidence’.[57] I consider, with respect, that this reasoning is incorrect and did not provide a basis for the Tribunal to exercise its power under s 75 of the VCAT Act. The Tribunal could not have concluded, that at a final hearing, XPU would not have presented evidence to the Tribunal that supported her Application. This was particularly the case as she was a self-represented litigant. As the decisions in Rabel and Forrester make clear it is inappropriate for the Tribunal, at an interlocutory stage of a proceeding, to conduct a pre-trial assessment of evidence to determine whether an applicant can prove their case, unless there is a clear concession that the material before the Tribunal is the entirety of that applicant’s case.[58] As I have concluded in respect of question of law 1, the assessment sought by the Tribunal of VWA’s condition had not been satisfactorily completed. XPU’s Application was always likely to turn on the outcome of that assessment, when completed. There was also the question of the effect of any evidence that XPU or Dr Ashkar might give. Those matters could not have been determined at the hearing of the summary dismissal application.
[57]Reasons, [90].
[58]Forrester, [33].

Conclusion

XPU has established the questions of law on which she relies and her proposed grounds of appeal. In the usual case, leave to appeal would be granted and the appeal allowed.

I have considered the delay in the Application which was commenced on 21 November 2018 and then summarily dismissed by the Tribunal on 10 March 2021. Delay occurred in the provision of the Phillips report to the Tribunal. The Application was ongoing for almost 2 years and 4 months before the summary dismissal was heard. Further time has been taken in this Court, including in my preparation and delivery of this judgment. This delay has meant that VWA has been facing this Application and the stress associated with litigation for almost 4 years. I have taken that into account. However, I do not consider that the delay should prevent the usual orders being made. I have decided that the Tribunal erred in summarily dismissing XPU’s Application on 10 March 2021, and, subject to further directions, should have allowed the Application to be proceed to a full hearing. Guardianship and administration orders are part of a protective jurisdiction and I consider that the Tribunal erred in summarily dismissing XPU’s Application.

The Court has a discretion in deciding whether to grant leave to appeal and must consider the justice of the case.[59] But, having established her grounds of appeal, I do not consider that XPU should be left to consider the need to commence a new application. As is usual, XPU’s application for leave to appeal and the argument on the appeal if leave were granted were heard together. Having determined that the Member erred in law in making a summary dismissal order, I consider that I should grant leave to appeal. I will allow the appeal and set aside the Tribunal’s orders of 10 March 2021. I consider that the Tribunal should proceed to hear XPU’s Application after giving appropriate directions. I will hear the parties as to the appropriate form of orders.
[59]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [29]-[34].

[2022] VSC 620

18 October 2022