Appellant v Second Respondent

1 On 30 November 2017, Konstantin German made an application to the Victorian Civil and Administrative Tribunal under the Guardianship and Administration Act 1986 (Vic) (1986 Act), for orders appointing him as the guardian and administrator for his mother, EG.[1] The application was contested by EG's estranged husband, Naoum Germantsis, and her other sons, Steven and Nicholas.[2] They contended that EG needed an independent guardian and an administrator.

2 The Tribunal heard the application on 15 January 2018, and was satisfied that EG had a 'disability' and needed an independent guardian and administrator. Instead of appointing Mr German to those roles, the Tribunal appointed the Public Advocate as EG's guardian, and State Trustees Ltd as administrator of her estate. The Tribunal's 15 January 2018 orders provided that the guardianship order would stand revoked on 31 March 2019, unless an application was made before then for it to continue. The 15 January 2018 orders also provided for the administration order to be reassessed by 31 March 2021.

3 As EG's guardian, the Public Advocate had to make a decision about where EG was to live - specifically, whether she should continue living by herself in the family home in Greensborough, or move to Western Australia with Mr German. In February 2018, James Doran of the Office of the Public Advocate decided that EG should move to Western Australia with Mr German, in accordance with her clearly expressed wishes. EG lived in Western Australian for most of 2018 and 2019.

4 By 31 March 2019, no application had been made for the guardianship order made on 15 January 2018 to continue. As a result, the guardianship order stood revoked and ceased to have effect on 31 March 2019.

5 In June 2019, Naoum initiated a proceeding against EG in the Federal Circuit Court of Australia, in relation to their matrimonial property. On 2 September 2019, State Trustees was appointed as EG's litigation guardian in that proceeding. State Trustees immediately consented to final property orders effecting a fifty-fifty division of the parties' assets and liabilities. The main asset of the marriage was a 75% interest in the family home in Greensborough.[3]

6 In late 2019, Mr German and EG returned from Western Australia to the Greensborough property, where they continue to live.

8 On 1 March 2020, the 1986 Act was repealed and replaced by the Guardianship and Administration Act 2019 (Vic) (2019 Act). Under the transitional provisions of the 2019 Act, an administration order made under the 1986 Act remains in force as provided in the order.[4] Any reassessment of an order made under the 1986 Act is to be conducted in accordance with the 2019 Act.[5] This meant that the administration order made on 15 January 2018 continued in force and that the reassessment due before 31 March 2021 would be conducted under the 2019 Act.

9 On 15 and 26 March 2020, Mr German applied to the Tribunal seeking reassessment of the 15 January 2018 orders, and for orders appointing him as EG's guardian and administrator. These applications were heard and dismissed by the Tribunal on 21 May 2020. The Tribunal was not satisfied that EG was in need of a guardian, and so did not appoint one. The administration order made on 15 January 2018 remained in effect. The orders made by the Tribunal on 21 May 2020 were:

The applications dated 15 and [26] March 2020 for a guardianship order are both dismissed.

The administration order dated 15 January 2018 still applies.

10 On 10 March 2021, the Tribunal on its own motion conducted a further reassessment of the administration order made on 15 January 2018. Mr German appeared at that hearing and made a number of complaints about State Trustees' administration of EG's estate. These included the fact that State Trustees had consented to the property orders made by the Federal Circuit Court and was now attempting to remove EG from the Greensborough property so that it could be sold. The Tribunal adjourned that hearing, in part to enable Mr German to research and suggest, if he wished, an alternative administrator. The Tribunal also ordered that the administration order dated 15 January 2018 would apply until VCAT made another order, and would be reassessed no later than 30 September 2021.

11 Mr German commenced this proceeding on 28 June 2020, seeking leave to appeal from the Tribunal's orders of 21 May 2020. He has since amended his notice of appeal so that he now also seeks:

(a) an extension of time within which to seek leave to appeal from the Tribunal's 15 January 2018 orders and, if an extension is granted, leave to appeal from those orders; and

(b) leave to appeal from the Tribunal's orders of 10 March 2021.

12 The proceeding is brought under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which provides for an appeal on a question of law from an order of the Tribunal, with leave of the Trial Division of this Court. An application for leave to appeal must be made within 28 days of the relevant order of the Tribunal, or later if the Court extends that time limit.[6] I may grant leave to appeal only if I am satisfied that the appeal has a real prospect of success.[7]

13 Mr German represented himself throughout the proceeding, including preparing his own notice of appeal, affidavits and submissions. The questions of law identified in Mr German's further amended notice of appeal are:

Question of Law (1).

Did VCAT have jurisdiction over Konstantin Philip German (who has been a resident of Western Australia since August 2008) or [EG] (who has been a resident of Western Australia since 12/12/2017) with respect to any and all of the Orders made on or since 15/01/2018, in particular the Orders of 15/01/2018, 17/09/2019, 14/04/2020, 21/05/2020 and 10/03/2021 and subsequently, if VCAT did not have jurisdiction to make such Orders, do any of the hearings held in relation to this matter (and the transcripts of such hearings) have any legal relevance or effect, and do any of the Orders have legal validity?

If it is found that VCAT does have jurisdiction in this matter, was VCAT still correct to decide on 21/05/2020 that the represented person, [EG] (who suffers from Alzheimer's disease) did not have a need for a guardianship Order, and thus leave her without a guardian, even though a guardianship and administration Order had previously been sought with [EG's] permission and ordered by VCAT on 15/01/2018, and had expired without a review being undertaken, and the represented person, [EG], (who needs full-time care) advised to VCAT that her will and preference on 21/05/2020 was to have Konstantin Philip German appointed as guardian and administrator under the Guardianship and Administration Act 2019?

If it is found that VCAT does have jurisdiction in this matter, was VCAT still correct to not comply on 21/05/2020 with Guardianship and Administration Act 2019 Sections 5, 8 and 9 with respect to the will and preferences of the represented person, [EG], to appoint her eldest son and full-time carer (for almost 4 years) Konstantin Philip German as guardian and administrator, after the Office of the Public Advocate ceased to act as her guardian in April 2019, and after having lost trust in State Trustees Ltd. who improperly sought to be appointed as her litigation guardian and consented to the sale of her property on 2nd September 2019 in the Federal Circuit Court of Australia whilst being aware that this was without her knowledge and against her will, and then subsequently deliberately and improperly prevented her from successfully applying for an extension of time to appeal against the judgement since she had failed to apply to appeal within 28 days because she had not been aware that the trial had taken place and did not have sufficient time to lodge an appeal in a timely manner?

In view of the fact that [EG] is currently, and has been since 12/12/2017, a resident of Western Australia, and due to the High Court of Australia ruling in Bums v. Corbett [2018] HCA 15 that a tribunal of a State has never had the jurisdiction to make Orders in relation to a resident of another State, was the continued application of the appointment of State Trustees Ltd. on 21/05/2020 and 10/03/2021 as administrator for [EG] an error in law and does State Trustees Ltd. thus have the necessary legal authority to operate as her administrator purportedly under the Guardianship and Administration Act 1986 or the Guardianship and Administration Act 2019, which are both Victorian Acts that are meant to be applied to Victorian residents?

14 Reading these questions of law together with the grounds of appeal set out in the further amended notice of appeal, I understand the questions of law to be:

(a) Assuming that one or both of Mr German and EG were residents of Western Australia at the relevant times, did the Tribunal have jurisdiction to make the orders of 15 January 2018, 21 May 2020 and 10 March 2021? This question concerns the inability of the Tribunal to exercise federal jurisdiction in a matter between residents of different States within the meaning of s 75(iv) of the Commonwealth Constitution, as ruled by the High Court in Burns v Corbett.[8]

(b) If the Tribunal did have jurisdiction to make the orders of 21 May 2020, was it wrong in law to conclude that EG did not need a guardian?

(c) If the Tribunal did have jurisdiction to make the orders of 21 May 2020 and 10 March 2021, was it wrong in law not to appoint Mr German as EG's guardian and administrator?

15 There are two respondents to the proceeding: Nicholas and State Trustees. On 24 March 2021, Nicholas was excused from taking any further steps in the proceeding, until further ordered by the Court.[9] No further order having been made, Nicholas did not appear at the trial of the proceeding.

16 On 27 August 2021, Mr German gave notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). The Attorney-General for the State of Victoria intervened in the proceeding, pursuant to s 78A of the Judiciary Act. No other Attorney-General intervened.

17 For the reasons that follow, there is no substance to Mr German's contentions that the Tribunal lacked jurisdiction to make the 15 January 2018 orders or its later orders. He has not established that its later orders were affected by legal error. His application for an extension of time must be refused, and his application for leave to appeal dismissed.

18 Burns v Corbett concerned proceedings in the Civil and Administrative Tribunal of New South Wales (NCAT) under the Anti-Discrimination Act 1977 (NSW). The proceedings involved complaints made by a resident of New South Wales against two residents of Victoria and a resident of Queensland, about statements alleged to vilify homosexual people, contrary to s 49ZT of the Anti-Discrimination Act. The respondents contended that NCAT did not have jurisdiction to hear the proceedings, because to do so would have involved determining matters between residents of different States. The appeals before the High Court were conducted on the basis that NCAT was not a 'court of a State' and that the NCAT proceedings involved the exercise of federal jurisdiction in a matter under s 75 of the Constitution - specifically, the adjudication of a dispute between residents of different States.

19 The High Court held that a State law that confers jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a tribunal, which is not one of the 'courts of the States' referred to in s 77, is inconsistent with Ch III of the Constitution, and hence invalid. As a result, the Parliament of New South Wales could not validly confer jurisdiction on NCAT to hear and determine the proceedings.

20 Mr German contended that, applying the principle in Burns v Corbett, the Tribunal had no jurisdiction to make any of the impugned orders, because the proceeding was a matter between residents of different States.

21 It was not in dispute that the Tribunal is not a 'court of a State' referred to in s 77 of the Constitution, and so cannot exercise federal jurisdiction in a matter between residents of different States.[10] I will assume that both Mr German and EG were, at the relevant times, residents of Western Australia.[11]

22 Two matters were disputed by State Trustees and the Attorney-General:

(a) first, whether, in making the impugned orders, the Tribunal was exercising 'jurisdiction'; and

(b) second, whether the proceeding before the Tribunal was 'between' parties.

State Trustees and the Attorney-General submitted that the answer to both questions was 'no' and that, as a result, the Tribunal was not exercising federal jurisdiction in a matter between any persons when it made the impugned orders.

23 In the course of the hearing, Mr German also questioned whether EG, as a resident of Western Australia, could be the subject of an order made by the Tribunal in Victoria, under a Victorian law. While this was not a matter raised in any version of the notice of appeal or in Mr German's written submissions, State Trustees and the Attorney-General attempted to address it in their oral submissions. I set out my preliminary views below.

25 The federal Judicature established under Ch III of the Constitution comprises the High Court, other federal courts, and State courts that are invested with federal jurisdiction and may exercise the judicial power of the Commonwealth. Federal jurisdiction includes the matters listed in s 75 of the Constitution including, in s 75(iv), a matter 'Between States, or between residents of different States, or between a State and a resident of another State'.

26 The concept of 'jurisdiction' encompasses authority to adjudicate a controversy about legal rights through the exercise of judicial power.[12] As explained by the plurality in Burns v Corbett:[13]

It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts, albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution.

27 The question whether the Tribunal exercised judicial power in making guardianship and administration orders under the 1986 Act was considered by Bell J in PJB v Melbourne Health (Patrick's case).[14] His Honour concluded that those functions are administrative rather than judicial in nature.[15] I agree with that conclusion, and the analysis that underpinned it.

28 There is no relevant difference between the Tribunal's powers to make guardianship and administration orders in the 1986 Act and the 2019 Act. Under both Acts, the Tribunal's powers to make guardianship and administration orders are 'discretionary in nature', involve the 'application and consideration of protective criteria', and are 'subject to rehearing on the merits and also to regular reassessment'.[16] Under both Acts, the Tribunal is concerned with creating new rights and obligations for the protection of the represented person. Neither Act requires the Tribunal to make a binding determination of existing legal rights and obligations, which is an essential characteristic of judicial power.

29 The Tribunal's powers to make guardianship and administration orders under the 1986 Act and the 2019 Act are very similar to the corresponding powers of the State Administrative Tribunal of Western Australia (WASAT), under the Guardianship and Administration Act 1990 (WA) (WA Act). These were considered recently in GS v MS,[17] a case that involved the same constitutional question that has been raised by Mr German in this case.

30 After reviewing the relevant provisions of the WA Act, and setting out some principles as to the nature of judicial power, Quinlan CJ concluded that WASAT's power to make guardianship and administration orders 'falls clearly on the "administrative" side of the "borderland" of judicial and administrative functions'.[18] In support of this conclusion, his Honour noted that an application for a guardianship or administration order under the WA Act lacks many of the features that characterise judicial power:[19]

(a) First, an application for a guardianship or administration order is not concerned with settling a question as to the existence of a right or obligation.

(b) Second, applications for guardianship and administration orders are ultimately concerned with the creation of new rights, and the determination of what future rights and obligations should be.

(c) Third, while proceedings in relation to guardianship and administration may be contested, they are not essentially about resolving disputes. Rather, they are protective in nature and are particularly concerned with the protection of the proposed represented person.

32 The features of the 1986 Act identified by Bell J in Patrick's case are 'relevantly identical' to those in the WA Act considered in GS v MS.[20] Those features are also found in the 2019 Act, which now governs guardianship and administration matters in Victoria. Consistent with the reasoning of Bell J in Patrick's case and Quinlan CJ in GS v MS, I conclude that the Tribunal did not exercise judicial power when it made the 15 January 2018 orders, and was not called on to exercise judicial power on either 21 May 2020 or 10 March 2021. It follows that the Tribunal's orders could not have involved the exercise of federal jurisdiction.

33 Although the 1986 Act and the 2019 Act both contemplate that there will be parties to a proceeding on an application for a guardianship or administration order, neither contemplates an adversarial dispute between those parties. The Tribunal must instead conduct a broad inquiry, having regard to the mandatory considerations set out in each Act. On an application for a guardianship order, those matters include the wishes (or 'will and preferences') of the proposed represented person, the wishes of family members, and the desirability of preserving existing family relationships.[21] Similar considerations must be taken into account on an application for an administration order.[22] Under the 1986 Act, the Tribunal had to be satisfied that an order would be in the best interests of the proposed represented person,[23] and any order made had to be 'the least restrictive of that person's freedom of decision and action as is possible in the circumstances'.[24] Under the 2019 Act, the Tribunal must be satisfied that the order will promote the 'personal and social wellbeing' of the proposed represented person.[25]

34 Both the 1986 Act and the 2019 Act identify the persons who are entitled to notice of an application for a guardianship or administration order.[26] In each case, notice is to be given to a range of persons who may have an interest in the application, including the primary carer of the proposed represented person and the Public Advocate. The 2019 Act also provides that the applicant, the proposed represented person, the person proposed as guardian and administrator, and any current guardian or administrator, are parties to a proceeding on an application for a guardianship or administration order.[27] The Tribunal may also join any other person as a party to the proceeding.[28]

35 These provisions set up a procedure for the Tribunal to ascertain the views and wishes of relevant persons, which it must consider before making a decision on an application. That does not mean, however, that the application is between those persons. Rather, it is about the proposed represented person - whether that person needs a guardian or administrator and, if so, who should be appointed and with what powers.

36 This is reflected in the form of the impugned orders in this case. Each was made 'in relation to' EG. None of them identifies any other party to the proceeding in which the orders were made.

37 The non-adversarial nature of an application for a guardianship or administration order is not altered if it happens that the application is made against the background of a family dispute, or if family members take sides in the proceeding. That is what occurred in this case, and it is understandable that Mr German felt that he was involved in a dispute between parties at the hearing on 15 January 2018 and at subsequent hearings. However, the Tribunal's function was not to resolve that dispute. It was solely concerned with whether guardianship and administration orders should be made in relation to EG and, if so, what those orders should be.

38 For those reasons, I do not consider that the Tribunal made the impugned orders in a matter 'between' anyone at all. Again, my conclusions are consistent with those reached by Quinlan CJ in GS v MS, in relation to the very similar process provided in the WA Act.[29]

39 During his oral submissions at the hearing of the appeal, Mr German asked why Victorian legislation was being applied to a Western Australian resident. He referred to the existence of the WA Act, WASAT, and the Public Trustee in Western Australia. He said that the question went to a fundamental question of sovereignty of States, and their power to make laws for their own residents.

40 The question was not raised by Mr German in his notice of appeal, and he did not include it in his notice of a constitutional matter. State Trustees and the Attorney-General were able to provide some response in the course of the hearing, within the limited time available. In those circumstances, it is not appropriate that I answer the question definitively. However, for the following reasons I do not consider that it would have added anything to Mr German's appeal against the Tribunal's orders.

41 I begin by observing that the Tribunal made the 15 January 2018 orders in relation to EG because Mr German applied to it to do so. The Tribunal was the forum chosen by Mr German in November 2017, when he applied for orders appointing him as his mother's guardian and administrator. Mr German said that he and his mother took up residence in Western Australia in December 2017. Assuming that to be so,[30] he would have been free from that time to discontinue his application to the Tribunal in Victoria, and instead apply to WASAT for orders under the WA Act. However, he chose to proceed with his application in Victoria. Having initiated and continued the application in Victoria, under Victorian law, it is surprising that Mr German now queries why guardianship and administration orders were made in this jurisdiction.

42 The Parliament of a State - including Victoria - has power to pass legislation with extraterritorial effect. So long as there is a real connection - even a remote or general connection - with Victoria, Victorian legislation can extend beyond the State's borders and can affect residents of other States.[31] Where a Victorian statute does not make express provision about its connection with Victoria:[32]

... the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with [Victoria]. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.

43 I did not have the benefit of submissions from any party on the question of whether the 1986 Act and the 2019 Act, properly construed, have extraterritorial reach. My preliminary view is that they do. I note the following:

(a) The central conception of the legislation is to enable the making of guardianship orders and administration orders for persons who are unable by reason of disability to make reasonable judgments about matters relating to their person, circumstances and estate. The purpose of both statutes is protective, a purpose that is best achieved by giving the legislation the fullest operation possible. In each case, the Tribunal's powers to make guardianship and administration orders must be exercised for the wellbeing of the person concerned.

(b) An application for an order may be made in respect of 'a person with a disability', with no residency criterion specified.[33] Section 43(2) of the 1986 Act contemplates that an application for an administration order may be made in relation to a person who does not reside in Victoria, in respect of so much of that person's estate as is in Victoria. Similar provision is made in s 23(2) of the 2019 Act.

(c) Part 6A of the 1986 Act dealt with interstate orders, and provided a scheme for the registration by the Tribunal of interstate orders made under a corresponding law of another State. Part 8 of the 2019 Act contains like provisions. Once registered, an interstate order can be reassessed and varied by the Tribunal in accordance with the Victorian statute. An order made under the 1986 Act, and now the 2019 Act, is not revoked in Victoria if the order is registered in a participating State.[34]

44 In this case, there was ample connection with Victoria. Mr German's choice of forum aside, EG had a real and longstanding connection with the State. She had lived here for most of her life. She raised her children here and, as at January 2018, her estranged husband and her son Steven were still living in Victoria. Her main asset was her interest in the family home in Greensborough, where she returned in late 2019 and where she is still living.

45 For those reasons, I very much doubt that Mr German's appeal would have succeeded on an extraterritoriality argument, had that question of law been included in his further amended notice of appeal.

46 The constitutional arguments raised in the further amended notice of appeal are without merit. The Tribunal was not exercising judicial power when it made its initial orders on 15 January 2018, or its subsequent orders, and so it could not have been exercising federal jurisdiction. Further, the orders were not made in a matter 'between' anyone. The Tribunal had jurisdiction to make the impugned orders.

Was the Tribunal wrong in law that EG did not need a guardian as at 21 May 2020?

47 In March 2020, Mr German filed two applications with the Tribunal. By that time, Mr German and EG had returned to Melbourne and were living in the Greensborough property.

48 EG had been reviewed in February 2020 by her neurologist and geriatrician, Dr Ganesvaran. He reported that she had worsened cognitively since her last review in November 2017, but seemed to understand that there was a plan to sell her home and was clear in her wish that it should not be sold because she wanted to live in the house. Dr Ganesvaran noted that her son was willing to be EG's carer if she was to live in the house.

49 Mr German's March 2020 applications sought reassessment or cancellation of the administration order, on the ground that State Trustees was not promoting the personal and social wellbeing of EG. Mr German was deeply unhappy about State Trustees' conduct of the Federal Circuit Court proceeding on behalf of his mother. He complained that State Trustees had consented to orders in relation to the Greensborough property without ascertaining EG's will and preference, which was to live in the house until she dies. He sought the appointment of a new administrator in place of State Trustees.

50 In relation to guardianship, Mr German sought the reassessment of the guardianship order, noting that the guardianship order had expired on 31 March 2019 and that no reassessment had been made.

51 Much of the Tribunal hearing on 21 May 2020 was concerned with State Trustees' conduct of the Federal Circuit Court proceeding, and whether it should continue as EG's administrator. In relation to guardianship, the Tribunal member said at an early stage of the hearing:[35]

You don't need a guardian because somebody has a disability. We only appoint guardians if they're needed, and they're only needed if there are decisions that have to be made, that are contentious and difficult. For example, if you decided that your mother should be placed in a nursing home, and she strongly said that she didn't want to go, that would be appropriate to appoint a guardian for that kind of decision. Okay? So I'm not hearing that there's anything that we need to worry about in terms of appointing a guardian.

52 After explaining that the guardianship order made on 15 January 2018 had lapsed, and that there was no guardianship order in place, the Tribunal member turned his attention to the issues that had arisen in relation to State Trustees' administration of EG's estate. Having dealt with that aspect of the application, the member returned to the question of guardianship:[36]

In relation to guardianship, nothing has been said to me today which makes me think that there is a decision that needs to be made by a guardian. I cannot see any basis on which it would be appropriate to appoint one. While that is not necessarily the end of the hearing, I need to be satisfied that everybody has had an appropriate opportunity to address me.

Those are my thoughts at the moment and I have not made any orders yet, but as things stand they are the orders that I would be inclined to make if or when this hearing is finally completed. Mr German, you are the person who made the application, is there anything you would like to address about?

53 Mr German addressed the Tribunal member about various matters, including EG's wish to continue living in the Greensborough property, and not move into a nursing home. He posed the question of what would happen if he returned to Perth and left it to his brothers to worry about their mother. He asked 'What are you going to do? Are you going to drag her out and throw her into a nursing home? What are you going to do?'

In the event that a decision needs to be made about what your mother does in terms of accommodation, we'll appoint - and there's nobody - the family can't agree on what's going to happen, we'll appoint a guardian, absolutely. But at the moment there's no evidence that that needs to happen. Right now she's living in her old home with you looking after her, and she doesn't have a decision that needs to be made at the moment.

The tribunal is always open and you can always make application in the event that there's a need for a guardian. The tribunal will hear that. At the moment I'm not satisfied there is the need for a guardian.

55 The Tribunal dismissed the March 2020 applications for a guardianship order.

56 Mr German contended that the Tribunal member failed to comply with ss 30, 31 and 32 of the 2019 Act in determining whether there was a need for a guardian to be appointed for EG. He said that there was clearly an unresolvable dispute between family members over where EG should live and who should make decisions regarding her welfare. He argued that this is precisely when a decision is required to appoint a guardian, and that the Tribunal's failure to do so was a failure to accept its responsibilities under the 2019 Act, in particular ss 30, 31 and 32. Mr German emphasised that his mother lacked decision-making capacity, and that the Tribunal had on 15 January 2018 considered that she needed a guardian.

57 Section 30(1)(a) of the 2019 Act gives the Tribunal power to make a guardianship order, subject to s 30(2). Section 30(2) provides, relevantly:

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

Note

Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator.

(c) the guardianship order or administration order, as the case requires, will promote the proposed represented person's personal and social wellbeing; and

...

58 The term 'personal matter' is defined in s 3(1) to mean, in relation to a person, 'any matter relating to the person's personal or lifestyle affairs'. Examples of personal matters are given in a note to the definition. These include 'where and with whom the person lives'. Section 5 of the 2019 Act provides a definition of 'decision-making capacity'.

59 Section 31 sets out a list of factors for the Tribunal to consider in determining the need for a guardian or administrator, as follows:

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.

60 Section 32(1) deals with eligibility to be appointed as a guardian. One criterion of eligibility is that the person is a 'suitable person to act as the guardian for the proposed represented person'.[38] Suitability is to be determined having regard to the factors set out in s 32(3). Section 32 is not relevant unless and until the Tribunal is satisfied that a guardian should be appointed for a person. In this case, the Tribunal was not so satisfied, and so had no occasion to consider the eligibility criteria in s 32(1) or the suitability factors listed in s 32(3).

61 Mr German did not really identify any arguable error of law in the Tribunal's conclusion that EG did not need a guardian. He did not contend that the Tribunal member had failed to have regard to one or more of the mandatory considerations in s 31 of the 2019 Act, concerning 'need'. His argument appeared to be that the Tribunal was wrong in its assessment that EG was not in need of a guardian, in circumstances where he thought the need was obvious. On that basis, the Tribunal's conclusion could only involve an error of law if the conclusion 'was simply not open to it on the evidence'.[39]

62 The Tribunal did not appoint a guardian for EG on 21 May 2020 because it was not satisfied that there was a need for a guardian. That conclusion was open to the Tribunal on the material before it, including the most recent report of EG's neurologist and geriatrician. At the time of the hearing, EG was living at the Greensborough property with Mr German. That arrangement accorded with the wishes she had expressed to her doctor. Mr German had lived with EG as her carer for several years, both in Perth and in Greensborough. He did not say that he wanted to cease that arrangement. His question about what would happen if he went back to Perth was plainly a rhetorical one.

63 As at 21 May 2020, there was no decision that had to be made about any personal matter, including where and with whom EG should live. The Tribunal understood that such a decision will have to be made at the point when the house is sold to give effect to the property orders made by the Federal Circuit Court. However, the Tribunal member apparently considered that the decision might more suitably be made informally, by EG's family, with the ability to apply to the Tribunal for an order if agreement could not be reached. There was no evidence that the family had been unable to agree on where EG would live after the house was sold.

64 Mr German has not established that the Tribunal erred in law in concluding that EG did not need a guardian, as at 21 May 2020. He remains free to apply to the Tribunal for an order appointing a guardian for his mother, if her circumstances change and there is a need for someone to make decisions about where and with whom she lives, or in relation to any other personal matter.

Did the Tribunal err in law in not appointing Mr German as guardian and administrator?

65 Mr German advanced two grounds on which he contended that the Tribunal erred in not appointing him as EG's guardian and administrator.

66 First, he said that the Tribunal had not applied s 5 of the 2019 Act, which states that a person should be presumed to have decision-making capacity unless there is evidence to the contrary. He said that no evidence had been provided to the Tribunal that EG did not have the capacity to make a decision with respect to the appointment of a guardian or administrator.

67 Second, he said that the Tribunal had failed to observe the requirement in ss 8 and 9 of the 2019 Act, that the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person.

68 The first ground involves something of a paradox. Mr German applied to the Tribunal for orders appointing him as his mother's guardian and administrator, which it could only do if satisfied that she lacked decision-making capacity in relation to relevant personal and financial matters. At the same time, he complains that the Tribunal should have presumed that EG had decision-making capacity in relation to the appointment of a guardian and administrator. If EG had had that capacity, she would not have needed a guardian or an administrator in the first place.

69 In any event, the Tribunal was not satisfied that EG needed a guardian as at 21 May 2020. In relation to the identity of her administrator, the presumption referred to in Mr German's first ground was rebutted by the evidence he relied on in support of his application.

70 The definition of 'decision-making capacity' in s 5 of the 2019 Act provides, relevantly:

(1) For the purposes of this Act, a person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able -

(a) to understand the information relevant to the decision and the effect of the decision; and

(b) to retain that information to the extent necessary to make the decision; and

(c) to use or weigh that information as part of the process of making the decision; and

(d) to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means.

(2) For the purposes of subsection (1), a person is presumed to have decision-making capacity unless there is evidence to the contrary.

...

(4) In determining whether a person has decision-making capacity, regard must be had to the following -

(a) a person may have decision-making capacity in relation to some matters and not others;

(b) if a person does not have decision-making capacity in relation to a matter, it may be temporary;

(c) it should not be assumed that a person does not have decision-making capacity in relation to a matter on the basis of the person's appearance;

(d) it should not be assumed that a person does not have decision-making capacity in relation to a matter merely because the person makes a decision that, in the opinion of others, is unwise;

(e) a person has decision-making capacity in relation to a matter if it is possible for the person to make the decision with practicable and appropriate support.

...

71 In November 2017, Mr German applied to the Tribunal for guardianship and administration orders in relation to EG. His application was supported by a letter from EG's treating neurologist and geriatrician, Dr Ganesvaran. The letter stated:

I have been treating [EG] regarding an underlying diagnosis of Alzheimer's dementia. She has had progressive cognitive impairment over the last few years.

I feel she currently lacks the capacity to make an informed decision regarding her finances and accommodation and also to appoint a power of attorney.

Dr Ganesvaran reviewed EG in February 2020, and opined that she appeared to have deteriorated cognitively since her last review. Mr German provided this report to the Tribunal in support of his March 2020 applications.

72 Dr Ganesvaran's reports were, clearly, 'evidence to the contrary' for the purposes of s 5(2) of the 2019 Act. In light of the medical evidence, the Tribunal did not have to presume that EG had decision-making capacity in relation to the appointment of her own administrator.

73 As to the second ground, a person exercising a power under the 2019 Act must have regard to the principle that the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person.[40] This principle applies to the Tribunal.[41] Mr German contends that the Tribunal failed to have regard to the principle on 21 May 2020 and also on 10 March 2021, because it disregarded EG's stated will and preference that State Trustees should be removed as her administrator, and Mr German should be appointed in its place.

74 There is a question whether EG did state that this was her will and preference. The hearing on 21 May 2020 was, due to the COVID-19 pandemic, conducted by telephone. As mentioned, there was evidence before the Tribunal that EG lacked decision-making capacity in relation to financial matters and to appoint someone to act on her behalf. In the course of the hearing, Mr German told the Tribunal member that his mother was with him and was able to speak to the Tribunal and articulate her preferences. Mr German said that she would say that she 'does not trust State Trustees anymore'. The Tribunal member asked to speak with EG over the telephone. The following exchange took place:

MEMBER: ... [EG] can you hear me?

MR GERMAN: She's just dozed off. Let me wake her up, Your Honour. Mum, the judge wants to speak to you. Can you speak to - he wants to ask - - -

MEMBER: No, don't - I will ask the question. I will ask the question, not you, Mr German. Just - [EG] - - -

MR GERMAN: She (indistinct words) a bit closer. That's all. The judge will speak to you, mum. Okay. Stay there. Stay there.

MEMBER: Okay.

MR GERMAN: I'll bring the phone to you. Okay. You can speak now.

MEMBER: Good morning, [EG].

[EG]: Hello.

MEMBER: I'm Member Buchanan. I want to ask you a question.

[EG]: Yes.

MEMBER: You know your finances are being looked after by somebody, don't you?

[EG]: (Indistinct words).

MEMBER: Your - - -

MR GERMAN: Your finances.

MEMBER: No, no. No. Mr German, Mr German, thanks. I will speak to your mother. [EG].

[EG]: Yes.

MEMBER: Do you know about - do you know who is looking after your money at the moment?

[EG]: My husband. My husband is still alive.[42]

MEMBER: Your husband is still alive, and he looks after your money?

[EG]: Well, I do it myself.

MEMBER: You do it yourself. Yes. Okay.

[EG]: Yes.

MEMBER: Do you think that there's somebody called State Trustees looking after you? Do you think somebody called State Trustees looks after your money?

[EG]: Yes.

MEMBER: You think they do. Yes. Do they do a good job?

[EG]: No.

MEMBER: No. Why not?

[EG]: Why not. Why not, they say now. Well, why not. He ask me why not.

MEMBER: Yes, I know. And is Kon helping you with your answers?

[EG]: (Indistinct words) Kon helping me with my what?

MEMBER: Mr - - -

MR GERMAN: She's having - - -

MEMBER: Yes.

MR GERMAN: - - - difficulty.

MEMBER: Yes, and I'm having difficulty myself. I don't think that I'm going to get any benefit from speaking to your mother. I don't think that she is likely to be able to clearly express an independent and properly formed view about who should be her administrator.

75 The exchange was unsatisfactory at a number of levels. It would have been preferable for the Tribunal member to have heard directly from EG in an environment where he could see as well as hear her, and where he could have confidence that he was hearing EG's own views and not those of Mr German. Unfortunately, that was not possible at the time of the hearing. In the circumstances that prevailed on 21 May 2020, and in light of the medical evidence, it was open to the Tribunal member to conclude that EG was not able to express her own will and preference about who should be her administrator.

76 The Tribunal member did not disregard Mr German's grievance about State Trustees' administration of his mother's estate, which centred on the fact that State Trustees had consented to the property orders in the Federal Circuit Court, without consulting with EG as required by the 1986 Act. The Tribunal member addressed the grievance directly in explaining to Mr German why he would not be appointed as EG's administrator:[43]

The court approved the settlement. It was aware that your mother suffered from Alzheimer's. It approved the settlement notwithstanding. ... I have no doubt that ... the court who approved the settlement knew about that, was fully aware of your mother's situation and concluded that the settlement was an appropriate one. There's really nothing that you've presented to me that tells me that there's any ground for concluding that State Trustees failed to achieve the best result that they could've achieved for your mother, regardless of whether or not they consulted her.

And yes, it is perfectly true that State Trustees on their own admission did not consult with her as they should have done, but that is not exactly an immaterial matter. It is significant; it is part of the legislation. The current version of the guardianship and administration order lays great stress on the need to consult with the represented persons when it is practical to do so, and unfortunately it did not happen in this case.

But the end result is, did that lead to a result that disadvantaged your mother, and I am satisfied that the answer is quite simply, no, it did not. That is really the test. Did State Trustees do it as well as they might have done? No, they should have had more consultation with your mother, but in the end they got the right result and in the end that is the function that they are entrusted with, to protect the assets of the represented person, and they have done that.

And it would not be an appropriate thing to remove State Trustees as administrator simply because they had not consulted as widely as perhaps they should have done when they represented your mother. I am also concerned by the things that you said to me about what you think would be appropriate. You are clear that you would pursue litigation in the event that you were appointed as guardian - as administrator, rather, that you would pursue litigation to attempt to undo the settlement and to attempt to prevent the sale of the property.

In view of what I have heard today, I believe that any such legal actions would be fruitless and a waste of your mother's resources. Those proceedings could not be pursued without expensive legal assistance and there is no rational basis for believing that they are likely to succeed, from what I have been told.

Put simply, I think that if you were appointed as administrator, I have great concerns that you would waste your mother's money on pointless litigation simply to retain her right to live in a home which, unfortunately, the way the law and life has worked means that that is not something that is going to be possible. I can see no basis for appointing you in place of State Trustees as administrator.

77 Those conclusions were well open to the Tribunal on the material before it. Even if EG had been able to express a preference to have Mr German as her administrator instead of State Trustees, the Tribunal would not have been obliged to give effect to that preference. Given the Tribunal's cogent and soundly based view that Mr German was likely to waste his mother's money on pointless litigation, it would not have been practicable to appoint him as her administrator.

78 The hearing on 10 March 2021 was initiated by the Tribunal, to reassess the administration order and the ongoing appointment of State Trustees as EG's administrator. There was no application before the Tribunal to remove State Trustees as the administrator, and Mr German confirmed that was not his intention.[44] EG did not participate in the hearing, being unwell at the time.

79 However, in the course of the hearing, Mr German aired various grievances about State Trustees, including its refusal to support an appeal against the property orders made in the Federal Circuit Court. The Tribunal member asked Mr German who would be an appropriate administrator, in place of State Trustees.[45] She explained that 'if there are limited assets of the estate State Trustees is usually the appropriate administrator as many of the others are simply unaffordable'.[46] Further discussion ensued, and Mr German made clear his concern that State Trustees was not acting to give effect to EG's clearly expressed wish to continue living in the Greensborough property.

80 The Tribunal member acknowledged Mr German's concerns and said that she did not intend to disregard them. However, in the absence of an alternative, she had no option but to keep State Trustees in place as EG's administrator. She explained that Mr German could apply to the Tribunal at any time to change the administrator.[47]

81 There is no substance to the complaint that on 10 March 2021 the Tribunal disregarded EG's will and preference about the identity of her administrator.

82 Mr German has not demonstrated any error of law in the Tribunal's orders of 21 May 2020 and 10 March 2021, confirming the administration order made on 15 January 2018.

83 The Tribunal had jurisdiction to make the 15 January 2018 orders, which it did on Mr German's application. His late challenge to the Tribunal's jurisdiction is without merit. For that reason, I decline to extend time for Mr German to seek leave to appeal against those orders.

84 There is no basis to Mr German's contentions that the Tribunal's orders of 21 May 2020 and 10 March 2021 were affected by legal error. For the reasons given, I am not satisfied that his appeal against those orders has a real prospect of success, and so I cannot grant leave to appeal.[48]

(a) The application for an extension of time to apply for leave to appeal against the Tribunal's order in Tribunal proceeding G82352 made on 15 January 2018 is refused.

(b) The application for leave to appeal against the Tribunal's orders in Tribunal proceeding G82352 made on 21 May 2020 and 10 March 2021 is dismissed.

86 I will hear from the parties on the question of the costs of the proceeding.

[1] On 12 August 2022, I ordered that Mr German's mother was to be referred to in the documents filed with the Court, in oral submissions and in the judgment by the pseudonym 'EG'.

[2] For clarity and convenience, I will refer to Naoum, Steven and Nicholas in this judgment by their given names. No disrespect is intended.

[3] The other 25% interest is owned by Nicholas.

[4] Guardianship and Administration Act 2019 (Vic) (2019 Act), s 199.

[6] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), ss 148(2), (5).

[8] (2018) 265 CLR 304 (Burns v Corbett).

[9] Orders of Judicial Registrar Keith dated 24 March 2021, order 4.

[10] Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30; (2020) 60 VR 361.

[11] State Trustees disputed that EG was in fact a resident of Western Australia on 15 January 2018, when the first of the impugned orders was made. As will become apparent, it is not necessary to determine whether or when EG became a resident of Western Australia.

[12] Burns v Corbett, [70] (Gageler J).

[13] Burns v Corbett, [21] (Kiefel CJ, Bell and Keane JJ) (footnotes omitted).

[14] [2011] VSC 327; (2011) 39 VR 373 (Patrick's case).

[15] Patrick's case, [124]-[129].

[16] Patrick's case, [125]; Guardianship and Administration Act 1986 (Vic) (1986 Act), ss 22, 46, Pt 6; 2019 Act, ss 30, 31, Pt 7.

[17] [2019] WASC 255; (2019) 344 FLR 386 (GS v MS).

[19] GS v MS, [78]-[85]. The fact that WASAT (like the Tribunal) does not have power to enforce its own orders was an equivocal consideration: see [86]-[88].

[21] 1986 Act, s 22(2); 2019 Act, s 31.

[22] 1986 Act, s 46(2); 2019 Act, s 31.

[25] 2019 Act, s 30(2)(c) and s 4 - Meaning of promote the personal and social wellbeing of a person.

[26] 1986 Act, ss 20, 44; 2019 Act, s 26.

[28] 2019 Act, s 25(f); VCAT Act, s 60.

[29] GS v MS, [83]-[84], [114]-[116], [120]-[122].

[30] While noting that State Trustees disputed whether EG had moved to Western Australia before 15 January 2018.

[31] Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 14; DRJ v Commissioner of Victims Rights [2020] NSWCA 242; (2020) 103 NSWLR 692, [20] (Bell P), [128] (Leeming JA); Infosys Technologies Ltd v State of Victoria [2021] VSCA 219; (2021) 64 VR 61, [60]-[65] (Kennedy JA, McDonald AJA).

[32] DRJ, [157] (Leeming JA), applied in Victoria in Infosys, [65]-[66] (Kennedy JA, McDonald AJA).

[33] 1986 Act, s 43; 2019 Act, ss 22, 23(1).

[34] 1986 Act, s 63E(5); 2019 Act, s 172(5).

[35] Tribunal transcript, 21 May 2020, 10:4-13.

[36] Tribunal transcript, 21 May 2020, 38:11-23.

[37] Tribunal transcript, 21 May 2020, 42:1-12.

[39] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).

[40] 2019 Act, s 8(1)(b). Section 9 provides decision-making principles for a person making a decision for a represented person - such as a guardian or an administrator - and had no application to the Tribunal's decisions in this case.

[42] In fact Naoum had died more than three months earlier, and had not lived with EG for some years before his death.

[43] Tribunal transcript, 21 May 2020, 36:12-38:10.

[44] Tribunal transcript, 10 March 2021, 8:11-12.

[45] Tribunal transcript, 10 March 2021, 13:11-15, 15:21-26, 17:17-20.

[46] Tribunal transcript, 10 March 2021, 17:26-29.

[47] Tribunal transcript, 10 March 2021, 26:14-30; see also 27:18-28, 28:13-25.