YBJ (a pseudonym) v Ukf (a pseudonym) - [2023] VSC 579

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

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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

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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.

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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…

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 YBJ (a pseudonym) v Ukf (a pseudonym)

Details

AGLC: YBJ (a pseudonym) v Ukf (a pseudonym) [2023] VSC 579
Case: [2023] VSC 579
Decision Date: 2 October 2023

CaseChat Overview and Summary

The appeal in YBJ v Ukf concerns a dispute over the appointment of an administrator under the Guardianship and Administration Act 2019 (Vic), following a decision by the Victorian Civil and Administrative Tribunal (VCAT). The case involves an enduring power of attorney affected by a Tribunal order under the Powers of Attorney Act 2014 (Vic). The central issue is whether the Tribunal afforded procedural fairness to the parties and correctly exercised its powers in appointing an administrator.

The key legal issues before the court were whether the Tribunal provided a reasonable opportunity for the parties to be heard, given the time limitations imposed on the hearing, and whether the Tribunal's decision-making process was in accordance with the relevant legislation. The court examined whether the Tribunal correctly identified the factors necessary for appointing an administrator, particularly in light of the existing enduring power of attorney. The court also considered whether the Tribunal's decision-making process complied with statutory requirements and whether there was any evidence on which the Tribunal could make a finding that an administrator was needed.

The court found that the Tribunal did not err in its procedural fairness or in the exercise of its statutory powers. It held that the Tribunal had not limited the opportunity for the parties to be heard unreasonably and that the focus of the hearing, although not as expected by one party, was on the interests of the represented person, which was appropriate given the high volume jurisdiction and protective nature of the legislation. The court concluded that the Tribunal had properly considered the relevant factors and made its decision in accordance with the law. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders