YBJ (a pseudonym) v Ukf (a pseudonym)
[2023] VSC 579
•2 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 02856
| YBJ (a pseudonym) | Plaintiff |
| v | |
| UKF (a pseudonym) | Defendant |
---
JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2023 |
DATE OF JUDGMENT: | 2 October 2023 |
CASE MAY BE CITED AS: | YBJ (a pseudonym) v UKF (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 579 |
---
ADMINISTRATIVE LAW — Appeal from decision of the Victorian Civil and Administrative Tribunal appointing an administrator under the Guardianship and Administration Act 2019 (Vic) — Enduring Power of Attorney affected by Tribunal’s order Powers of Attorney Act 2014 (Vic) — Procedural fairness — Whether a reasonable opportunity to be heard given — Time limitation imposed on hearing — What is a ’reasonable’ opportunity in the circumstances — Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215 applied — High volume jurisdiction — Expert Tribunal — Question of ‘what is at stake’ in determining a proceeding involving protective legislation requires the focus to be on the interests of the represented person — No decision making capacity in relation to financial matters established — Focus of issues at hearing not as expected by one party — Oral reasons — Reasons form part of the Tribunal’s order — Conduct of a hearing where not all parties represented — Whether any evidence on which Tribunal could make a finding that an administrator was needed — Tribunal not bound by the rules of evidence and may inform itself as it sees fit — Whether mandatory factors were taken into account — Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; [1986] HCA 40 applied — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 97, 98, 117 and 148 — Powers of Attorney Act 2014 (Vic) s 83, 116 and 120 — Guardianship and Administration Act 2019 (Vic) s 4, 8, 30 and 31 — No reasonable prospect of success on appeal — Leave to appeal refused.
GUARDIANSHIP AND ADMINISTRATION — Statutory construction — Suspension of attorney’s power under enduring power of attorney — Effect of order made under s 83 of Powers of Attorney Act 2014 (Vic) — Powers of the Tribunal to appoint an administrator under Guardianship and Administration Act 2019(Vic) where an enduring power of attorney in place — Relevant considerations — Powers of Attorney Act 2014 (Vic) s 83, 116 and 121 — Proper exercise of powers of the Tribunal to make an administration order in the circumstances — Guardianship and Administration Act 2019 (Vic) s 4, 8, 30 and 31.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Levine | Kelly & Chapman |
| For the Defendant | No appearance by party or practitioner | |
HER HONOUR:
INTRODUCTION
This is an appeal from a decision made in the Guardianship List of the Victorian Civil and Administrative Tribunal (‘VCAT’), regarding orders made about an enduring power of attorney (‘the Power of Attorney’) and appointment of an administrator for the represented person (‘the RP’).
The RP is an 88 year old widow with vascular dementia and poor mobility. The applicant, YBJ, is her son. He has lived with his mother for most of his life, but co‑resided as her primary carer from 2014. The respondent, UKF, is the applicant’s sister and daughter of the RP. The RP has been in full time care since at least April 2023.[1]
[1]Transcript of Proceedings, [Proceeding Name Redacted] (Victorian Civil and Administrative Tribunal, SM A Smith, 1 June 2023), 6–7 (‘Transcript’).
The RP was placed in respite care at Emerald Terrace then moved to Fronditha Clayton, where she currently resides.
The applicant challenges the VCAT Orders made on 1 June 2023 on the reassessment hearing under the Guardianship and Administration Act 2019 (Vic) (‘the GA Act’), appointing State Trustees Limited (‘State Trustees’) as administrator for the RP with power to make decisions regarding all financial matters.[2] Pursuant to s 83 of the Powers of Attorney Act 2014 (Vic), (‘the POA Act’) VCAT did not make an order authorising the use of the enduring power of attorney during the operation of the administration order.[3]
[2]Orders 1 and 2.
[3]Order 7.
For the reasons that follow, I am not persuaded that the appeal has a real prospect of success and I refuse leave to appeal on all grounds.
BACKGROUND
Material Facts
On 10 July 2014, and under Part XIA of the Instruments Act 1958 (Vic), the RP appointed the applicant her attorney under an Enduring PA (financial) and UKF as an alternative attorney.
According to the applicant’s sworn evidence,[4] in January 2019 he took control of the RP’s finances and commenced making payments from the RP’s bank accounts under the Power of Attorney. The delay between the making of the Power of Attorney and in utilising these powers under the POA Act was explained by the worsening of the RP’s vascular dementia. It was said that by 2019 she lacked capacity to manage her financial affairs.
[4]In an affidavit made on 4 April 2023; see also Transcript, n 1.
On 9 November 2021, the Office of the Public Advocate (‘OPA’) was appointed as guardian for the RP under the GA Act (the ‘Guardianship Order’).[5] At this time, the applicant remained the RP’s financial attorney.
[5]The circumstances which led to the initial appointment of the OPA as guardian were not before the court.
On 28 September 2022, the OPA’s representative, Ms Maree Ryan, prepared a ‘Report of Guardian’[6] in advance of a proposed hearing at VCAT. According to the Report, the applicant refused to allow UKF access to visit the RP. There had been reported complaints about family members having been denied visitation and access to the RP due to the applicant’s behaviour, both at her home and during periods of respite care. The OPA recommended that the Guardianship Order be revoked on “grounds of futility”.
[6]This was located at Court Book (‘CB’) 14.
UKF subsequently applied to VCAT for orders to revoke, vary or suspend the Power of Attorney, and for an administration order in respect of the RP.
On 17 January 2023, VCAT reassessed the Guardianship Order under section 159(1)(a) of the GA Act and retained the appointment of the OPA as the RP’s guardian. UKF’s application in respect of the financial administration of the RP’s affairs was adjourned to a later date. YBJ was given until 14 March 2023 to lodge with the Tribunal a statement of accounts in relation to the exercise of the Power of Attorney for each financial year from July 2014, including all bank accounts held in the RP’s name.[7]
[7]CB 11 (VCAT Order made 17 January 2023).
The Tribunal made further orders on 21 March 2023 extending the time for the provision of the financial information by YBJ and made directions for UKF to file her particulars of claim setting out the allegations made against YBJ and his administration of the RPs financial affairs. At this hearing concerns were raised by UKF about YBJ’s co‑operation with the appointed guardian. Order 7 of the 21 March 2023 orders recorded :
after discussion with his solicitor, [YBJ] indicated that he will fully co‑operate with the guardian, and that he understands the role of the guardian to make decisions where the [RP] lives and access to [RP]. [YBJ] confirmed he will provide financial information to enable the guardian to make the decisions she has the power to make, and [YBJ] will allow the guardian access to third parties to obtain information required to make the decisions she has the power to make.[8]
[8]CB 30 (VCAT Order made 21 March 2023).
At the hearing on 27 April 2023, the Tribunal revoked the applicant’s appointment as the RP’s attorney under the Power of Attorney and appointed State Trustees as her administrator, with power to make decisions about all financial matters. The Tribunal’s orders state that the Tribunal made the order because it was satisfied that:
the attorney is not complying with requirements of the Powers of Attorney Act 2014 that relate to enduring powers of attorney, and the principal does not have capacity to make decisions about making an enduring power of attorney.
The Tribunal’s 23 April 2023 orders also recorded that UKF had advised VCAT that she did not wish to undertake the role of alternative administrator and requested that it appoint an independent administrator.
On 4 May 2023, the applicant applied under s 80 of the Victorian Civil and Administration Act 1998 (Vic) (‘VCAT Act’) for a rehearing of the matters determined on 27 April 2023. VCAT listed the proceeding for rehearing. It is from the orders made by the Tribunal on the rehearing that this application for leave to appeal is made.
Decision Under Appeal
On 1 June 2023, a senior member of the Tribunal reheard YBJ’s application. The applicant, who was legally represented, UKF, and Ms Ryan were present. The Senior Member appointed State Trustees as the RP’s administrator and ordered that the Power of Attorney held by the applicant has no legal or financial effect while the administration order is on foot (‘the VCAT Order’).
The full text of the VCAT Order made 1 June 2023 is as follows:
VCAT orders that:
1.State Trustees Limited, 1 McNab Avenue, FOOTSCRAY VIC 3011, is appointed administrator for [the RP].
2.State Trustees Limited has power to make decisions about all financial matters.
3.The administrator has powers given under the Guardianship and Administration Act 2019 sections 46(1), 51 and 52.
4.The administrators’ powers have these restrictions:
-powers under section 51 of the Act can only be used with VCAT’s permission which may be granted in Chambers (without a hearing).
5.Administrators must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
6.The administrator must complete and send a Financial Statement to VCAT for approval at the time the order is due for reassessment, or when VCAT requests it.
Enduring power of attorney
7.VCAT has made an administration order in relation to [the RP]. [The RP] gave an enduring power of attorney for financial matters to the attorney, [YBJ] with [UKF] as alternate attorney on 10 July 2014.
Under section 83 of the Powers of Attorney Act 2014, VCAT does not authorise the use of the enduring power of attorney by either the attorney or the alternate attorney for any decisions or transactions during the operation of the administration order. For the avoidance of doubt, the enduring power of attorney has no legal or financial effect while the administration order is in effect.
VCAT makes this order because it is satisfied that:
-due to a disability, [the RP] does not have capacity to make decisions about the financial matters listed in this order,
-[the RP] needs an administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what’s important to them), and
-this administration order will promote the personal and social wellbeing of [the RP].
Reassessment of this order
8. This order applies until VCAT makes another order.
9.Anyone can apply for VCAT to reassess this order at any time.
10.VCAT will reassess this administration order no later than 30 June 2026.
Change of contact details
11.If State Trustees Limited or [the RP] changes contact details (email, phone or address), State Trustees Limited must immediately inform VCAT in writing.
Payment for acting as administrator
12.State Trustees Limited is entitled to payment (including GST) from the funds of [the RP] as follows …
The commission percentages from the RP’s pensions and assets to which State Trustees are entitled are then set out in the remainder of the Order 12.
On 13 June 2023, the applicant filed this appeal in respect of the VCAT Order.
Whilst the VCAT Order did not contain detailed written reasons, the Tribunal provided short oral reasons which are recorded in the Transcript of the Tribunal hearing. The Court Book filed in this application contained, among other documents upon which I have relied,[9] the Transcript of the VCAT hearing before the Senior Member on 1 June 2023, a copy of the written orders made including the oral reasons she gave for her decision.
[9]These documents include copies of the Tribunal orders made which are referred to in this decision, the affidavits of the applicant sworn 6 July 2023 and 1 August 2023, the Transcript of the hearing before VCAT on 1 June 2023 and the Report of Guardian.
At the outset of the hearing the Tribunal member discussed with the parties the scope of the hearing proceeding before her.[10] It was accepted as common ground that the RP had advanced dementia and did not have decision making powers for financial matters.[11]
[10]Transcript, n 1, 1–3.
[11]Ibid, 4, lines 1–6.
The issues were identified as being whether there were breaches of the power of attorney’s duties, whether there is a need for an administrator, and if so who would be a suitable administrator.[12]
[12]Ibid, 4, lines 7–12; 5, lines 24–26.
Notably, in providing her oral determination on 1 June 2023, the Tribunal member said:
So at the start of the hearing it was clear that there was agreement that the principal lacks decision making capacity because of her dementia. The primary question has come down to whether there was a proven breach of duties by the attorney or whether there was a need for an administrator.
From what I’ve heard, I consider that there is a need for an administrator. I think that [YBJ] has some very difficult personal financial decisions to make in regard to the principal’s assets in terms of his own accommodation there, about his future. He has a very limited income, from what he’s described today. And there are a number of very complex accommodation decisions that he personally is going to have to make.
I think that to continue as attorney is going to put him in a situation where his own dire financial interests are going to conflict with his mother’s financial interests in terms of her being able to easily afford to pay aged care fees.
I take into account that there is a long history of obstruction of the guardian, or lack of communication or lack of cooperation with the guardian. Prior to the making of the undertaking, I understand that an allegation of breaches of that undertaking to VCAT are disputed, but I think it’s disingenuous and not credible for [YBJ] to now say that he will work with the guardian in the future when there has - and I don’t accept his statements today that he will accept full time care and he will accept the directions of the guardian, to be credible.
He may well mean them now, but as we saw - even at the last hearing - he got himself into a distressed and emotional state such that he undertook behaviours that he now says were inappropriate. I infer that’s what he’s saying, that they were inappropriate. He blamed it on the level of distress to the situation he found his mother in. But I don’t know if there’s any guarantee that that won’t continue.
I also think the idea that he was under prepared for the questions about how he might financially meet the aged care payments, and his unpreparedness to understand the impact on his carer’s allowance, show that there are a lot of very complicated things that he needs to work out in his own financial backyard before he would be able to address his mother’s financial issues. I think that puts him in a situation where he would have an ongoing conflict as attorney, and I think that needs an administrator appointed, and I think it’s appropriate to confirm the appointment of the State Trustees.
In respect of the power of attorney application all I intend to do is to make an order under s 83 saying that there is no authority to act under that power. If there are disputes about the ongoing use of the enduring power of attorney medical treatment, then that could be the source of a separate application. And if someone wanted outright revocation of the financial power of attorney, that application could also be made.[13]
[13]Ibid, 46–48.
The Tribunal member also commented that “it’s likely that [the RP] will have an administrator for the rest of her life”.[14]
[14]Ibid, 48, lines 28–29.
Other Relevant Matters
The OPA reported on 12 April 2022 that the applicant and UKF had each obtained Family Violence Intervention Orders against the other.
Regarding the participation of UKF, the OPA, and State Trustees in this proceeding, there was an issue in August 2023 regarding the late service of orders of this Court on those parties by the applicant, being orders seeking to confirm their participation. The orders were made on 9 August 2023 but were not served by the applicant’s representative until 28 August 2023. This issue was resolved by orders made on 6 September 2023, giving those parties further time to notify the Court as to their intentions, and the 6 September orders were served in a timely fashion.
On 11 September 2023, the OPA filed a ‘Notice of Intention not to Respond or Contest’. UKF filed a notice of the same kind on 18 September 2023.
Based on the submissions made on behalf of the applicant as to the steps taken to notify the State Trustees of the hearing, I was satisfied that the State Trustees were notified of the hearing and, despite no appearance by them, I was satisfied that the matter should proceed.
QUESTIONS OF LAW
The following questions of law were identified as the basis of the appeal application. The grounds of appeal mirrored the questions of law and are set out below.
1.Whether VCAT applied the correct legal test in determining whether the proposed represented person was in need of an administrator, when the Appellant held the power of attorney thereof and was capable of making decisions in respect of financial matters on his [sic] behalf?
2.Was there any evidence that could reasonably make a finding that the proposed represented person was in need of administrator?
3.Did VCAT apply the correct legal test in determining whether the administrator should have had the power to make decisions on all financial matters being necessary or desirable to promote the proposed represented person’s personal and social well‑being?
4.Was there any evidence upon which VCAT could reasonably make a finding that the power to make decisions on all financial matters was necessary or desirable to promote the represented persons personal and social well‑being?
5.Did the VCAT fail to consider the following mandatory factors in determining whether there was a need to appoint an administrator pursuant to section 31 of the Guardianship and Administration Act 2019 (Victoria).
a)the will and preferences of the represented person;
b)whether decision(sic) in relation to the financial matters may be more suitably made by informal means or may reasonably be made through negotiation, mediation or similar means;
c)the wishes of any primary carer or relative of the represented person;
d)the desirability of preserving relationships that are important to the represented person (the mandatory matters).
6.Did VCAT deny the Appellant natural justice and/or act unfairly by relying upon the VCAT file to make a finding that there was a long history of obstruction, or lack of communication or lack of co‑operation with the Guardian pursuant to s 97 as/or s 98(1)(a) of the Victorian Civil and Administrative Act 2001 (Victoria) (VCAT).
7.Did VCAT deny the Appellant natural justice and/or act unfairly by limiting the time that the Appellant could present their case.
BASIS OF APPEAL
Grounds of Appeal
The applicant relies on the following grounds of appeal:[15]
[15]‘Amended Notice of Appeal’, filed 1 August 2023 filed in YBJ v UKF (Supreme Court of Victoria, S ECI 2023 02856), [8]–[14] (paragraph numbering adjusted to make grounds clear).
1.The VCAT erred in holding that the proposed represented person was in need of an administrator when the Appellant held the Power of Attorney thereof and was capable of making decisions in respect of financial matters on their behalf.
2.The VCAT erred in law as there was no evidence to reasonably make a finding that the proposed represented person was in need of an administrator.
3.The VCAT erred in holding that the administrator should have had the power to make decisions on all financial matters as being necessary or desirable to promote the proposed represented person’s personal and social wellbeing.
4.The VCAT erred in law as there was no evidence to reasonably make a finding that the administrator should have had the power to make decisions on all financial matters as being necessary or desirable to promote the proposed represented person’s personal and social wellbeing.
5.The VCAT failed to consider the following mandatory factors in determining whether there was a need to appoint an administrator pursuant to section 31 of the Guardianship and Administration Act 2019 (Victoria).
(a)The will and preferences of the represented person;
(b)Whether decision in relation to the financial matters may be more suitably made by informal means or may reasonably be made through negotiation, mediation or similar means.
(c)The wishes of any primary carer or relative of the represented person
(d)The desirability of preserving existing relationships that are important to the represented person (the mandatory matters).
6.The VCAT denied the Appellant natural justice and/or acted unfairly by relying upon the VCAT file to make a finding that there was a long history of obstruction, or lack of communication or lack of co‑operation with the Guardian pursuant to s 97 and/or s 98(1)(a) of the Victorian Civil and Administrative Act 2001 (Victoria) [sic](VCAT).
7.The VCAT denied the Appellant natural justice and/or acted unfairly by limiting the time that the Appellant could present their case.
Leave to Appeal
The applicant relied on the alleged strength of the errors of law identified, in particular the claim that the Tribunal failed to consider mandatory factors including “the will and preference” of the RP,[16] the denial of natural justice in both limiting the time to be heard, and the alleged different focus of the hearing to that which the applicant said it was prepared to meet (being the beaches of the power of attorney’s duties). It was submitted that the matters stated in Grounds 5 and 6 in particular were sufficient to demonstrate an error of law which should be corrected in the interest of justice.
[16]Reliance was also placed on the other factors are set out in section 31(b)–(d).
Section 148(2A) of the VCAT Act requires the Court in an application for leave to appeal to be satisfied that the application has a “real prospect of success”. The term “real prospect of success” has been interpreted as manning a ‘real’ as opposed to ‘fanciful’ chance of success.[17]
[17]Kennedy v Shire of Campaspe (2015) VSCA 47 [12]; Chopra v Department of Education and Training [2019] VSC 488 [21].
RELEVANT LEGISLATIVE PROVISIONS
The relevant provisions of the GA Act in this proceeding are set out below:
7Primary 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.
(2)In this section, the Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia.
8General principles
(1)A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles—
(a)a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances—
(i)to make and participate in decisions affecting the person; and
(ii)to express the person’s will and preferences; and
(iii)to develop the person’s decision‑making capacity;
(b)the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;
(c)powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.
(2)In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT.
…
30VCAT may make a guardianship order or administration order
(1)After considering an application made under Division 1—
(a)VCAT may make one or more of the following orders—
(i)a guardianship order, subject to subsection (2);
(ii)an administration order, subject to subsection (2);
(iii)a supportive guardianship order under section 87, subject to Part 4;
(iv)supportive administration order under section 87, subject to Part 4; or
(b)VCAT may make no order under this Act.
(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; and
(d)in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought.
31Factors to consider in determining need for guardian or administrator
For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following—
(a)the will and preferences of the proposed represented person (so far as they can be ascertained);
(b)whether decisions in relation to the personal or financial matter for which the order is sought—
(i)may more suitably be made by informal means; or
(ii)may reasonably be made through negotiation, mediation or similar means;
(c)the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application;
(d)the desirability of preserving existing relationships that are important to the proposed represented person.
The relevant sections of the Powers of Attorney Act 2014 (Vic) which set out the matters about which VCAT may make an order – including specifically in respect of an attorney’s power under an enduring power of attorney (s 116), the nature of the orders VCAT may make (s 120) and the complimentary power in respect of the operation of the VCAT orders in respect of administration (s 83) – are as follows:
116Matters about which VCAT may make an order
(1)On application under Division 3, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to an enduring power of attorney—
(a)any matter for or with respect to an attorney’s power under the enduring power of attorney including the following—
(i)the scope of the power of attorney;
(ii)the exercise of the power of attorney;
(b)the effect of any failure to comply with the method of execution of enduring powers of attorney or of instruments of revocation of enduring powers of attorney required by this Act;
(c)the validity of the enduring power of attorney;
(d)the validity of a transaction by an attorney under the enduring power of attorney if VCAT is satisfied there has been a failure to comply with Part 6 or for any other reason;
(e)the lodgement with VCAT of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period by the attorney responsible under this Act for keeping them;
(f)the examination and auditing of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period, including—
(i)determining the person to be responsible for examining or auditing the accounts or other documents; and
(ii)whether the person responsible under subparagraph (i) for carrying out the examination or audit should be paid and the amount of any such payment;
(g)giving a report on any examination and audit conducted under an order under paragraph (f) to—
(i)VCAT; and
(ii)the applicant or any other person ordered by VCAT;
(h)any other matter VCAT considers necessary in relation to the enduring power of attorney.
…
120Nature of VCAT orders
(1)In an order under section 116 in relation to an enduring power of attorney, VCAT may do any one or more of the following—
(a)revoke all or part of the enduring power of attorney;
(b)revoke the appointment of an attorney under the enduring power of attorney;
(c)vary the effect of the enduring power of attorney;
(d)suspend the enduring power of attorney for a specified period, either generally or as to a specified matter;
(e)authorise or validate a transaction for the purpose of section 65;
(f)make any other order it considers necessary in relation to the enduring power of attorney;
(g)do any other thing that VCAT is required or permitted to do by this Act.
(2)Before making an order under subsection (1)(b) to revoke the appointment of an attorney under an enduring power of attorney VCAT must be satisfied that—
(a)the attorney is not complying with provisions of this Act that relate to enduring powers of attorney; and
(b)the principal does not have decision making capacity in relation to making an enduring power of attorney giving the same power.
…
83 Effect of administration order or guardianship order on enduring power of attorney
(1) If VCAT makes an administration order for a principal, an attorney under an enduring power of attorney for that principal must not exercise a power for financial matters for that principal unless the attorney is authorised by VCAT to do so and then only so far as is authorised.
(2) If VCAT makes a guardianship order for a principal, an attorney under an enduring power of attorney for that principal must not exercise powers in relation to personal matters for that principal unless the attorney is authorised by VCAT to do so and then only so far as is authorised.
The relevant provisions of the VCAT Act in respect of the fair hearing obligations of the Tribunal are ss 97 and 98:
97Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98General procedure
(1)The Tribunal—
(a)is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c)may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
Section 148(1) provides that a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding, with leave of the Court.
Section 148(2A) provides that the Court may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.
ANALYSIS
In the oral submissions before the Court, counsel for the applicant dealt with the grounds of appeal leading with Ground 5 (failure to take into account a mandatory consideration), then the natural justice matters raised by Grounds 6 and 7, before turning to Grounds 1 and 2 which related to the question of ‘need‘ for the appointment of an administrator, then Grounds 3 and 4, which were similar in ambit to Ground 1.
At the outset it is apposite to make some observations about the approach of the Court on an appeal from an order of the Tribunal pursuant to s 148 of the VCAT Act.
Firstly, it is not an appeal on the merits. The appeal is in the general nature of a judicial review with an error of law sufficient to vitiate the decision being required to be established.
Secondly, the Courts have commented on numerous occasions on the approach to be taken to reasons produced by tribunals such as VCAT. In Mildura Rural CC v VABDSDevelopment Pty Ltd, Kyrou J said that:
Reasons for decision have to be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the proceeding. In reviewing the VCAT’s reasons for decision, the Court can have regard not only to what the VCAT expressly stated but also to the inferences that necessarily arise from what it expressly stated.[18]
[18]Mildura Rural CC v VABDSDevelopment Pty Ltd [2012] VSC 542 at [40] (citations omitted).
Thirdly, the Supreme Court should not examine briefly stated reasons by an expert tribunal “in an overly legalistic manner or by the overzealous drawing of inferences in order to disclose some supposed error”;[19] in determining whether VCAT’s reasons are adequate the Court “does not scrutinise those reasons overzealously with a view to finding error”.[20]
[19]Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc (1994) 14 AATR per Ashley J.
[20]Secretary to the Department of Justice v YEE [2012] VSC 447 at [96] per Kyrou J.
Fourthly, the Tribunal’s obligation is to act fairly and according to the substantial merits of the case in all proceedings.[21] The VCAT Act is not bound by the rules and procedural strictures of the courts. This is expressly provided in s 98 of the VCAT Act and requires a modification to the mindset of those accustomed to and experienced in superior court litigation.
[21]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 97 (‘VCAT Act’).
The Tribunal “is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction”.[22] The Tribunal is intended to render justice in a timely and cost-efficient manner without undue legal formality. The general procedure set out in s 98 underlines this approach to the exercise of the Tribunal’s jurisdiction. The Tribunal is not bound by the rules of evidence or practices or procedures applicable to the courts of record except to the extent it adopts those rules, practices, or procedures. It may inform itself on any matter as it sees fit and it must conduct proceeding with as little formality and technicality and determine each proceeding with as much speed as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.[23]
[22]Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 at [19] per Warren CJ.
[23]VCAT Act, n 21, s 98(1)(b), (c) and (d).
Fifthly, the Tribunal is bound by the rules of natural justice.[24] However, the concept of natural justice is not a fixed concept in its application to a particular circumstance. The Court of Appeal in Roberts v Harkness[25] observed that it is an essential requirement of a fair hearing that each party be given a reasonable opportunity of presenting its case, whether in writing or orally, or both. The court said what was ‘reasonable’ for this purpose will depend on the circumstances of the case. The court identified the following matters to be taken into account in “determining the practical content of fairness” in a particular case:
·the nature of the decision to be made;
·the nature and complexity of the issues in dispute;
·the nature and complexity of the submissions which the party wishes to advance;
·the significance to that party of an adverse decision (‘what is at stake’); and
·the competing demands of the time and resources of the court or Tribunal.[26]
[24]VCAT Act, n 21, s 98(1)(a).
[25]Roberts v Harkness (2018) 57 VR 334; [2018] VSCA 215 at [48]–[49].
[26]Ibid, [49].
The following observation made by the court in Khanna v Kulathayendran[27] is apposite in the context of this appeal which arises in the high‑volume but sensitive and protective jurisdiction of VCAT in the Guardianship List:
Courts on appeal from decisions of specialist tribunals have said repeatedly that tribunals have to deal with an enormous volume of cases with unrepresented persons with an imperative or expectation for cost‑cutting dispatch. For that reason, depending on the nature of the case, courts will not scrutinise reasons with a fine tooth comb to fastidious advice for the presence of appellable error.
[27]Khanna v Kulathayendran [2012] VSC 250 {1] (Muktar AJ).
With these observations in mind, I will deal with the grounds of appeal in the order counsel for the applicant addressed them in oral argument.
Ground 5 – Failure to take into account a mandatory consideration
The applicant alleged that VCAT failed to consider the mandatory factors set out in s 31 of the GA Act. It was argued that VCAT was required to specifically refer to the mandatory matters in its reasons and to fail to do so was an error of law.
Reliance was placed on the leading and oft-quoted authority of the High Court in Minister for Aboriginal Affairs v Peko‑Wallsend.[28] It was argued that if a decision‑maker makes no reference to a particular matter it may be inferred that he or she disregarded it either deliberately or through inadvertence. In either case, if it were a mandatory consideration, it would be an error of law. However, if the matter is still referred to, there may still be a basis for review. In some cases, it may be asserted that there has been a failure to give proper, genuine, or realistic consideration to a particular matter.
[28][1986] HCA 40; 162 CLR 24 839 [41] (Mason J); reference was also made to Lo v Chief Commissioner of State Revenue (2013) 85 NSW LR 86.
There is no doubt that the considerations set out in s 31 of the GA Act are mandatory considerations. The language is explicit in directing that VCAT must consider the matters set out in ss 31(a)–(d) in determining whether to appoint a guardian or administrator.
However, I am not satisfied on the material before me, reading the terms of the Tribunal’s order together with the short oral reasons given by the Tribunal, that there was a failure to take into account the mandatory considerations as required.
The oral reasons for the decision of the Tribunal are set out at [22] above. I reject the submission made on behalf of the applicant that the terms of the Order made by the Tribunal must be read subject to the reasons given by the Tribunal. The oral reasons given are part of the Order. Section 117(6) of the VCAT Act expressly states that the reasons for an order, whether oral or written, form part of the order.
The Orders made explicitly state (at Order 7) that VCAT made the order because it was satisfied that “[the RP] needs an administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what’s important to them)”, and “this administration order will promote the personal and social wellbeing of [the RP]” (emphasis added).
In my view, the Orders are in part explicit and in part implicit, in referring to the s 31 mandatory considerations. The decision of the Tribunal cannot be impugned on this round.
Contrary to the submissions made on behalf of the applicant there was an evidentiary basis in the material before the Tribunal which went to these considerations.
In respect of s 31(a), “the will and preferences” of the RP, which was emphasised by Counsel for the applicant as being a key omission, it was clearly submitted to the Tribunal that what the RP wanted in respect of her financial affairs was that her son have that responsibility and that he should be given that opportunity.[29] The existence of the Power of Attorney demonstrated her intention.
[29]Transcript, n 1, 44, lines 13–18.
That this state of affairs was accepted by the Tribunal must be the inference from the oral reason and the written orders. The reality of the situation was that the application for an independent administrator had been made which challenged the appropriateness of the applicant to remain in that role. If not explicit, it is at least implicit in this situation that the “will and preference” of the RP was that her son remain in that role. That is a given. There was no evidence that she wanted his removal from that role. The RP lacked decision‑making capacity because of her dementia. The Tribunal member explicitly stated in Order 7 of the VCAT Orders that the RP’s will and preference had been taken into account.
I am persuaded that the Tribunal did properly consider this factor.
The s 31(b) consideration of whether there might be a less interventionist approach, to the financial matters for which the order was sought, was put to the Tribunal through the applicant’s submissions.[30] It was argued that there was only one real decision that had to be made and that was how the RP is going to be funded to stay in permanent care.
[30]Ibid, 44, lines 4–31; 45.
As the Tribunal Member said in the oral reasons in determining to appoint an independent administrator, she was not convinced that the personal capacity (based in part on his ongoing conflict as attorney given his personal financial circumstances) and history of behaviour exhibited by the applicant demonstrated that he was appropriate to undertake the role and that an independent administrator was what was needed. It is implicit in these observations by the Tribunal that considerations of financial decision‑making by more informal means or through negotiation and mediation or some other means were considered and discarded. The continuation of the applicant in the financial administrator role was an option which was clearly and patently rejected by the Tribunal.
In relation to the s 31(c) considerations, that the wishes of any primary carer or relative of the RP or other person with a direct interest in the application be considered, the Tribunal had the opportunity to hear from each of the applicant (as primary carer), his sister (a relative), and the OPA as guardian (as a person interested in the application). It is implicit in the Tribunal’s observations as set out above at [52]–[53] that the competing wishes of the parties were taken into account.
The consideration in s 31(d) is the desirability of preserving existing relationships that are important to the RP. This consideration was commented upon by the Tribunal in the hearing. The Tribunal made the observation (disputed by the applicant) that one of the reasons that the decision for the RP to go into aged care, was the fact that she had no access to any other members of her family.[31] This observation was made immediately before the Tribunal Member announced her decision. It is implicit in the observations made in the oral reasons and the juxtaposition of this comment that the Tribunal did take this consideration into account. I am not persuaded there is any substance to this allegation.
[31]Ibid, 46, lines 20–23.
Consequently, I am of the view that each of the considerations set out in s 31 have been either explicitly or implicitly considered. The Order explicitly states that the considerations have been taken into account and when read with the oral reasons this conclusion is clear.
As observed earlier, the reasons given by the Tribunal are not to be scrutinised with an eye to appellable error.[32] Given the task identified by the Tribunal was whether there was a need for an administrator, and if so who should take that role, the conclusion that all mandatory considerations were taken into account is patent.
[32]See above at [40]–[41].
Ground 5 is not made out.
Grounds 6 and 7 – Natural Justice Grounds
Grounds 6 and 7 are based on alleged procedural errors or deficiencies. A failure to accord a fair opportunity to be heard based on lack of opportunity to respond to allegations made against the applicant and an arbitrary limitation of time are the matters that underpin these grounds.
Ground 6 alleged that the applicant did not have an opportunity to respond to the allegations relied upon by the Tribunal that there was a long history of obstruction or lack of communication or lack of cooperation with the Guardian appointed. It was argued that VCAT did not act fairly by providing the applicant with any particulars so that he could address the allegations.
I find this ground entirely without basis. Examination of the Transcript of proceedings before the Tribunal makes it clear that the applicant was given the opportunity to respond to the allegations of obstruction, lack of communication or lack of cooperation. The allegations were raised by Ms Ryan,[33] and supported by the oral evidence of the respondent.[34] The allegations were disputed both by the legal representative of the applicant and by the applicant himself in his extensive oral evidence.[35]
[33]Transcript, n 1, 7, lines 3–16; 11–12, lines 17–6; 13–14, lines 12–4; 15–16, lines 13–22.
[34]Ibid, 15, line 29.
[35]Ibid, 14, lines 5–11; 16–17, lines 31–7.
The history of this behaviour is recorded in the orders made by the Tribunal on 21 March 2023 where the Tribunal noted at Order 7 the concerns raised by UKF about lack of co‑operation by YBJ with the Guardian which was said to be affecting the Guardian’s ability to undertake her tasks. This complaint was not new to YBJ nor to his legal advisers. This is apparent from the terms of the observations made in Order 7.
The applicant submitted that the Tribunal acted unfairly by relying upon the file to make a finding that there was a long history of obstruction, or lack of communication or cooperation with the Guardian.
I am not persuaded that this is what occurred in the totality of the information before the Tribunal and given the legislated procedural flexibility available to the Tribunal in finding facts and informing itself. The Tribunal may inform itself as it sees fit[36] and part of the relevant information in the context of a long running guardianship matter will be the information which has been accumulated on the Tribunal file from in earlier applications and forms part of the ongoing record. This includes the Tribunal’s orders made on 21 March 2023 already referred to.
[36]VCAT Act, n 21, s 98(1)(c).
In my view, it is hollow for the applicant to suggest that he was taken by surprise by the allegations. The allegations of lack of cooperation and obstruction were raised early in the hearing. The allegations made by Ms Ryan and supported by the respondent were on the record prior to the Tribunal hearing from the applicant in his extensive oral evidence. As noted above at [67], he was given the opportunity to explicitly respond to the particular allegations in respect of the nursing home and the pharmacy arrangements. The history of the allegations and events referred to here were known prior to the hearing on 1 June 2023 and were a matter of record for all parties.
The specific allegations made about the interference with the nursing home arrangements, the issues with the pharmacy arrangements, the intimidation by videoing the Guardian in her interaction with the RP, the threats to the nursing home staff and the refusal to allow visitation by other members of the family were all squarely raised and an opportunity to respond was given.
After asking Ms Ryan and the respondent to outline the complaints about the applicant’s behaviour and references to emails received, (and the substance of what was contained in them) the Tribunal directly asked the legal representative for the applicant
Senior Member: So Mr Stanna, does that give you enough to respond to at this stage?
Mr Stanna: Yes, Senior Member. Senior Member, can I please start off with [YBJ] giving his evidence as to the issues raised regarding the nursing home, particularly with the issues raised with what manages emails? Would you like to give that evidence, please?[37]
[37]Transcript, n 1, 16–17, lines 31–7.
Oral evidence is then called from the applicant addressing the issues raised by Ms Ryan and the respondent (which goes over the next 10 pages of the Transcript).
Consistent with the principles set out by the Court of Appeal in Roberts vHarkness, a ‘reasonable’ opportunity to be heard is not absolute and open-ended and depends on the nature of the matter.
The application before the Tribunal was an application brought pursuant to the GA Act and the POA Act. These enactments provide the framework or a scheme for the transparent but protective arrangements for those who are under a legal disability with the supervision of the Tribunal as independent arbiter. The subject matter and priority under the scheme of this legislation is the welfare and wellbeing of the RP, not of the applicant or other persons. The seriousness of the proceeding is to be determined with reference to the objects of the GA Act and ought not be dictated by the perspective, feelings, or priorities of the applicant.
To the extent that the alleged breach of the fair hearing rule is justified by a submission that there was an expectation that the hearing would be solely about whether there were breaches of the administrator’s duties, it is misguided. The powers of the Tribunal in an application under s 116 are set out in the legislation. The Tribunal clarified with the parties what was and was not in issue at the commencement of the hearing. The Tribunal stated that:
The appropriate thing today is to define the scope to administration application and enduring power of attorney financial. Okay.[38]
[38]Ibid, 3, lines 25–30.
The Transcript identifies consent by all parties that this was to be the focus of the hearing. The Tribunal then went on to state that it was common ground that the RP has advanced dementia and does not have decision‑making capacity for financial matters. Again, consent was received to that observation.
The Tribunal then says,
So then the question really comes down to have there been any breaches of the power of attorney’s duties, and is there a need for a guardian – sorry, an administrator? And then of course if there was proven to be a need for an administrator who would be the suitable administrator?[39]
[39]Ibid, 4, lines 7–12.
I do not accept on the material before me, in particular the review of the Transcript and consistent with the Roberts v Harkness principles of what amounts to a ‘reasonable’ opportunity to be heard in the context of an application for the appointment of an administrator for financial matters, that the applicant was not given a reasonable opportunity to be heard.
Ground 7 is an allegation that the Tribunal unfairly limited the time for the appellant to present his case.
The applicant relied on several authorities the factual context of which are found in either criminal proceedings or immigration matters.[40] Notwithstanding that the factual context may distinguish these authorities from the circumstances here, the general principles to be applied must be seen in the legislative and factual context of the application that was before the Tribunal.
[40]Cameron v Cole (1944) 69 CLR 571596 (1944) ALR 130; Re Refugee Tribunal; ex parte Aala [2000] HCA 57; Escobar v Spindaleri (1986) 7 NSW LR 51; Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6.
The Tribunal does not have the luxury of an overly generous allocation of time, even in the context of these type of matters, to allow a party to present his or her case. In particular, s 98(1)(d) of the VCAT Act recognises there will be modifications, limitations, or concession made to the usual court practices to facilitate the efficient and timely running of proceedings. Conducting proceedings with the aim of addressing the substantial merits of the case is a key consideration and imperative.[41]
[41]VCAT Act, n 21, s 97.
Examination of the list of matters scheduled before the Guardianship List on any day demonstrates the volume and the consequent pressure of time within which a Tribunal member operates. A limited time slot is usually set with other matters scheduled following close after the case at hand. Setting a limit on time for each case is the norm and is consistent with the role and purpose of an expert tribunal such as VCAT, with its specialist jurisdiction and skilled members allocated to a particular List. A time limitation is not only commonplace across the Tribunal, but a well‑used case management tool across all of the Victorian jurisdictions, especially those exercising of summary jurisdiction. A time limit of itself is not appropriately accorded the label ‘arbitrary’ just because it is applied. The facts here, apparent from a review of the Transcript, demonstrate that the applicant had ample opportunity to respond to the matters raised by the other parties and the matters of concern to the Tribunal.
That of course does not absolve the Tribunal from dealing with each matter fairly and giving each party a reasonable opportunity to be heard.
The application before the Tribunal was directed at the administration of the RP’s financial affairs. The seriousness of the matter or its consequences for a party’s rights must factor into the level of scrutiny and time afforded to the parties in a time‑restricted environment, such as the Tribunal.
Every application involving guardianship and administration of a represented person’s affairs must be dealt with sensitively and in accordance with the principles in the GA Act and the VCAT Act, with the interests of the RP at the centre. On the applicant’s submissions, the complaints about the procedures adopted focused on the applicant’s interests and not on the RP. As such, this argument or emphasis is misdirected here. This type of hearing must have the RP as its focus. Considered objectively, this case is not an unusual one in the Guardianship List where proceedings involving powers of attorney and administration of a RP’s financial affairs are commonplace. This matter is not of the calibre of relative seriousness as a claim made against the human rights of a person,[42] or their immigration status or risk of deportation, or which affects one’s livelihood or business, nor is it a criminal proceeding. No matter how offended the applicant may feel when challenged in respect of his behaviour, the key focus must remain on the RP, not on his interests.
[42]Insofar as they are about the human rights and dignity of a person it is those of the RP, and not those of the applicant which must be the focal point.
The Tribunal member indicated that there was a time constraint and before she drew the hearing to a close, she asked if there was anything else the parties wished to say.[43] Nothing further was raised. In my view, both on the facts here (by reference to the Transcript) and in accordance with the principles set out in Roberts v Harkness, there is no error of procedural fairness established.
[43]Transcript, n 1, 49, lines 1–3.
Grounds 1, 2, 3 and 4 relate to various aspects of the Tribunal’s finding that there was a ‘need’ to appoint an administrator.
Ground 1 – Statutory Construction
Ground 1 was said to be a question of statutory construction. The argument proceeded on the basis of the allegation that it was not open to the Tribunal to revoke the Power of Attorney under s 120(1)(b) and 120(2)(a) of the POA Act, having found there was no evidence that there had been a breach of the duties under the Power of Attorney.[44] It was submitted that the Tribunal should have held, given that there was no basis to revoke the Power of Attorney in such circumstances, that there was no need to appoint an administrator as the Power of Attorney could make decisions on behalf of the RP pursuant to s 30(2)(b) of the GA Act. The note to s 30(1)(b) draws the decision maker’s attention to the s 31 factors (discussed above).
[44]Reference was made to Transcript, n 1, 41–42, line 24 and 42, lines 1–6.
This ground is misconceived. On a proper reading of the Orders made, the Tribunal did not purport to revoke the Power of Attorney under s 120(1)(b), but to suspend its operation under s 120(1)(d) and make orders under s 120(1)(c) and/or s 120(1)(g) including orders under s 83. Consequently, no finding under s 120(2) was necessary.
The subject matter of the hearing before the Tribunal was a rehearing of the matters determined on 27 April 2023. Order 1 of the 27 April 2023 Orders stated that:
1.The appointment of the attorney [YBJ] is revoked (ended).
VCAT makes this order because it is satisfied that:
-the attorney is not complying with the requirements of Powers of Attorney Act 2014 that relate to enduring powers of attorney, and
-the principal does not have capacity to make decisions about making an enduring power of attorney.
[UKF] told VCAT she does not wish to undertake the role of alternative administrator at this time and requests VCAT appoint an independent administrator.
The application before the Tribunal was brought under s 116 of the POA Act. Section 120 of the POA Act provides for the nature of the orders the Tribunal can make under an application brought pursuant to s 116. This includes revoke, vary, or suspend the effect of the enduring power of attorney, make any other order it considers necessary in relation to the enduring power of attorney and do any other thing that VCAT is required or permitted to do under the Act.
Section 120(2) provides a precondition to making an order under section (1)(b) (power of revocation) that the Tribunal be satisfied that the attorney is not complying with the provisions of the Act that relate to enduring powers of attorney and the principal does not have decision‑making capacity in relation to making an enduring power of attorney giving the same power.
Whilst the Tribunal purported to make an order revoking the Power of Attorney in its decision and orders made on 27 April 2023 the rehearing before the Tribunal the subject of this proceeding, the Tribunal did not purport to revoke the Power of Attorney. It is explicitly stated in the Transcript[45] that the Tribunal was not prepared to consider the application to revoke the Power of Attorney based on breach of the duties of the attorney and dealt only with the need to appoint an administrator and the identity of that administrator.
[45]Transcript, n 1, 4, lines 7–12; 5, lines 24–26.
The words of Order 1 appoint State Trustees as administrator. Order 2 provides that the administrator has power to make decisions about all financial matters. Order 3 grants the powers under the GA Act s 46(1), 51 and 52 and by Order 4 restricts the powers under s 51 to be used only with permission of VCAT.
Part 6 of the POA Act provides for the operation of enduring powers of attorney. Section 83 provides that where VCAT makes an administration order for a principal, the attorney must not exercise a power for financial matters unless the attorney is authorised by VCAT to do so and only so far as is authorised. This is a complimentary power or obligation which requires VCAT to consider whether a limitation on the use of the attorney’s power will be authorised. The Tribunal exercised this power in this case. It made clear that the appointment of the administrator suspended the powers of the attorney during the currency of the Tribunal’s orders. Order 8 stated explicitly the duration to apply to the order — that is until further VCAT order. Then, by Order 9, the Tribunal’s orders provide that anyone can apply to VCAT to reassess its order at any time. It provided for a reassessment no later than 30 June 2026 (Order 10).
It is clear from the parameters of the hearing which were set early in the hearing that the Tribunal was not prepared to consider the breach of duties issue. The terms of the Order made and the oral reasons pronounced follow this course. It is clear that the power to interfere with a power of attorney arises from s 116 of the POA Act. The Tribunal’s powers are subject to the limitations in s 120 of the POA Act. It is clear that the Tribunal does not revoke the power of attorney but merely suspends its operation until further order. Finally, if there had been a revocation there would be no need to make a limitation order under s 83 of the POA Act.
Ground 2 – Need for an Administrator
Ground 2 was based on submissions that there was an error of law as there was no evidence to reasonably make a finding that the proposed RP was in need of an administrator. This was based on the existence of a power of attorney.
The power of VCAT to make an administration order requires consideration of whether there is a need to appoint an administrator. The existence of an enduring power of attorney does not prevent the appointment of an administrator if the Tribunal forms the view there is a need to do so. The powers available to vary the appointment or operation of a power of attorney are set out in s 116 of the POA Act and the orders that the Tribunal can make are set out in s 120 of the POA Act. It is clear that there is, and must be, an interrelationship between the exercise of the powers available to the Tribunal under the GA Act and the POA Act. The mere existence of a power of attorney cannot be the end of the matter where there is some reason why the use of the power of attorney is not in the interests of the RP. That reason is not limited to a proven breach of the attorney’s powers.
It is relevant, to the exercise of the powers under the GA Act to appoint an administrator, that the s 31 factors are taken into account. I will not repeat my findings and observations about the taking into account of the mandatory consideration in s 31 which are set out above.
For these reasons I am not persuaded that there was no evidence upon which the Tribunal could reasonably conclude that there was a need for the appointment of an administrator. The orders note the Tribunal’s satisfaction that there is a need to appoint an administrator and that the Tribunal was satisfied that the considerations in s 31 were met.
I reject this ground.
Grounds 3 and 4
Grounds 3 and 4 were submitted to be similar to Ground 1. For the detailed reasons given in response to Grounds 1 and 2, I am not persuaded by Grounds 3 and 4.
CONCLUSION
Leave to Appeal Refused
For the reasons stated I am not satisfied that any of the grounds have a real prospect of success, which is the threshold for leave in an application brought pursuant to s 148 of the VCAT Act. I refuse leave to appeal.
Having considered the grounds raised in some detail, I am not persuaded, even if leave were granted, that any of the grounds are made out and the appeal would be dismissed in any event.
Disposition of the Application
For the reasons I have given above, I am satisfied there is no demonstrated error of law on these, or any of the grounds for which leave was sought.
Accordingly, I will make orders dismissing the application for leave.
I will hear submissions from the parties on the question of costs but I propose to make an order that all parties bear their own costs of the proceeding.
---
0
9
0