XPU v VWA - [2022] VSC 620

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading XPU v VWA

Details

AGLC: XPU v VWA [2022] VSC 620
Case: [2022] VSC 620
Decision Date: 18 October 2022

CaseChat Overview and Summary

In the case of XPU v VWA, the applicant, XPU, sought guardianship and administration orders over the respondent, VWA, as well as the revocation of an existing enduring power of attorney. The matter was initially heard by the Victorian Civil and Administrative Tribunal (VCAT), which summarily dismissed the application. XPU appealed this decision, arguing that the summary dismissal was inappropriate.

The primary legal issue before the court was whether VCAT's decision to summarily dismiss the application was legally sound. This involved an examination of the relevant statutes, including the Victorian Civil and Administrative Tribunal Act 1998, the Powers of Attorney Act 2014, and the Guardianship and Administration Act 2019. The court also considered the principles of natural justice and procedural fairness, as well as the circumstances under which VCAT may summarily dismiss an application.

The court found that VCAT did not have the authority to summarily dismiss the application without giving XPU an opportunity to present their case. The tribunal's failure to do so amounted to a breach of natural justice, and the court held that the dismissal order was therefore unlawful. Consequently, the appeal was allowed, and the matter was remitted to VCAT for further consideration.

The court did not issue any further orders beyond allowing the appeal and remitting the matter to VCAT. The tribunal was directed to provide XPU with an opportunity to present their case, ensuring that all parties had a fair chance to be heard. This decision underscores the importance of procedural fairness in administrative law and the need for tribunals to adhere to established legal principles when making decisions that significantly impact individuals' rights and freedoms.

Orders