I declare under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 that this Tribunal has the power to award compensation against [LQC] pursuant to section 77 of the Powers of Attorney Act 2014 in respect of alleged breaches of duty under the power of attorney dated 30 October 2013 which arose after 1 September 2015.

I order that this proceeding be listed for directions before any Member so that a date for hearing of the compensation application can be allocated.

I order that the administrator's costs of this hearing before me be reserved for further determination by any Member on a date to be fixed.

The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 51AJ of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that, unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Powers of Attorney Act 2014 that identifies or could lead to the identification of a party to the proceeding.**

1. State Trustees, as administrator of the estate of DLM, seeks a declaration under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 that this Tribunal has jurisdiction to order compensation against LQC, the son of the represented person, in respect of various breaches which are alleged of his duty when exercising a power of attorney granted to him by the represented person.
2. DLM conferred an enduring power of attorney on his son LQC on 30 October 2013. He is now incapable of managing his affairs and State Trustees has been appointed his administrator. State Trustees is concerned that there has been significant mismanagement by LQC of his father's estate, including him entering into transactions using the power of attorney which were not in his father's interests. State Trustees wishes to bring a claim for compensation on behalf of the estate of DLM against the son LQC.
3. This application was previously listed before me on 13 September 2018. On that date the Tribunal received an email request from LQC that the proceeding be adjourned. I granted that request and listed the matter for 15 October 2018.
4. My order of 13 September 2018, in which 15 October 2018 was noted as the adjourned date of hearing, was emailed to LQC by the Tribunal on 13 September 2018. The email address used to contact him was the same email address that LQC had used in making his own request for an adjournment.
5. LQC did not appear before me on the adjourned date.
6. I was satisfied that LQC had been advised of the adjourned date and I proceeded to hear this application in his absence.
7. This Tribunal has no general common law or equitable jurisdiction. It has jurisdiction only where that jurisdiction is bestowed on it by an Act of Parliament. In this case, the administrator says that this Tribunal has power to order compensation, either under section 125Z(1)(d) of the Instruments Act 1958, (the Instruments Act) or under section 77 of the Powers of Attorney Act 2014 (the POA Act). I heard argument and received written submissions from the administrator in relation to each possible basis of jurisdiction.
8. I have received no material whatsoever from LQC.

THE DIFFERENCE BETWEEN A FINDING IN RELATION TO THE INSTRUMENTS ACT AND A FINDING IN RELATION TO THE POA ACT

1. If I were to find that the administrator was entitled to make this application under section 77 of the POA Act, then is it is accepted by the administrator that this remedy could only apply to breaches by LQC of his obligations after 1 September 2015. This is because it was on that date that the POA Act was proclaimed. There would be no jurisdiction to make orders in respect of breaches occurring before that date because that Act does not operate retrospectively.
2. This principle has been established in this Tribunal in three cases. The first is YDM.[1] The second is ODY.[2] The third is QSK.[3] The law has set its face against retrospective operation of legislation. It would need very clear words in the Act for me to find that section 77 of the Act operated retrospectively.
3. If I were to find that the administrator was entitled to make this application under the Instruments Act, then the breaches by LQC of his obligations as an attorney would be able to be dealt with whenever they had occurred. Here the administrator says that those breaches have occurred both before and after 1 September 2015.

THE INSTRUMENTS ACT- SECTION 125(1)(d)

1. The first matter I wish to deal with is the argument that the Instruments Act provides a pathway to access compensation through this Tribunal.
2. Until the POA Act came into operation, an enduring power of attorney was created under the Instruments Act. This was enacted well before the Victorian Civil and Administrative Tribunal (VCAT) came into existence. The regulation of attorneys under this Act was, as far as I am aware, originally supervised by the Supreme Court of Victoria through its equitable jurisdiction.
3. The Instruments Act was amended in 2003 in order to bestow this Tribunal jurisdiction over certain matters set out in new sections 125V, 125X, 125Y 125Z, and 125ZA. Thus, jurisdiction under this Act was shared between the Supreme Court and this Tribunal.
4. The relevant sections for the purpose of this application are sections 125V and 125Z.
5. Section 125V provides that an application may be made to the Tribunal for a declaration about any matter or question relating to the scope of an attorney's powers, the exercise of any power by an attorney, or any other thing in or related to this part of the legislation.
6. The words "any matter or question relating to the exercise of any power by an attorney under an enduring power of attorney" are the words relied on from this section to support the administrator's argument.
7. Section 125Z of the Instruments Act says this:
   1. The Tribunal, on its own initiative or on an application under section 125V, may

(a) make a declaration or make recommendations or give any directions it considers necessary in relation to an enduring power of attorney.

(b) vary the effect of an enduring power of attorney;

(c) suspend for a specified period an enduring power of attorney, either generally or in respect of this specific manner;

(d) make any order it considers necessary in relation to an enduring power of attorney.

1. The words "make any order it considers necessary in relation to an enduring power of attorney", are the words relied on from this section by the administrator.
2. The amendments did not refer to an application for compensation. Indeed, it has been commonly thought that the amendments did not bestow any such jurisdiction on the Tribunal, and that this was one of the shortcomings of this legislation. Words to that effect are contained in the Second Reading speech relating to the introduction of the POA Act, and in various law reform documents and submissions created prior to its introduction.
3. The administrator has nonetheless submitted that, properly construed, these new sections do contemplate an application to the Tribunal in relation to compensation, as section 125Z(d) gives to the Tribunal the power to make an order in relation to compensation, it being an order "necessary" in relation to the enduring power of attorney.
4. This construction does not "jump out of the page", as it were, when considering these sections. However, the applicant urged me to read those provisions broadly in order to provide a remedy under the Instruments Act. The applicant urged me to conclude that LQC's mismanagement of his father's estate using the power of attorney means that it is "necessary" for the Tribunal to order compensation and that the power to do so is clearly contained in section 125Z(1)(d) of the Instruments Act.
5. This is how the argument was outlined.
6. The wording of section 142 of the POA Act makes it plain that the POA Act does not affect the validity of old powers of attorney made under the Instruments Act. Indeed, far from doing so, it confirms that an old power of attorney still remains valid. This is plain from the wording of section 144(2) of the POA Act. It is thus clear that the jurisdiction of this Tribunal under the Instruments Act still applies to an old power of attorney, even though the POA Act is now in force.
7. Therefore, all old powers of attorney currently in use are governed by a combination of the old law in force before the POA Act was enacted and also by the POA Act itself.
8. It was submitted that each of the sections relied on, being contained in Division Six of the Instruments Act (which is the division conferring general supervisory jurisdiction to the Tribunal over powers of attorney), were directed to give this Tribunal power to prevent harm to a donor through misuse of a power of attorney. Self-evidently, misuse of a power of attorney could cause real harm to an estate. I was urged thus to give a broad and remedial construction to the words "the exercise of any power by an attorney" - where that phrase appears in section 125Z(1)(d), so that these words included the misuse of a power of attorney and compensation for that misuse, with the result that that section authorised the making of a compensation order.
9. I have not reproduced section 125Z(2) of the Instruments Act, but its existence was emphasised by the administrator and relied on in this way. This section provides that "without limiting subsection (1)", the Tribunal may give directions to an attorney. It was submitted that form of words demonstrated that subsection 2 was merely one example of the power in 125Z and added to the administrator's argument that the power given in section 125V(1) must be read very broadly.
10. Because the power came within the supervisory jurisdiction of the Tribunal and that power was remedial, it was submitted that limitations should not be readily implied on the power conferred by the section.
11. I was referred in particular to the Western Australian guardianship case of KS.[4] In that case the question was whether a section of the relevant Western Australian guardianship legislation requiring an attorney to keep records, and requiring those records to be audited, should apply where the donor had died, or whether it applied only during the lifetime of the donor.
12. In coming to the conclusion that the section should not be read down so as to apply only during the lifetime of the donor, the Court emphasised in that case its general supervisory jurisdiction of guardianship and powers of attorney. It was of the opinion that there would need to be a good reason before a narrow view was taken of the legislation.
13. This general approach is also reflected in TWU v Qantas.[5]
14. In that case the Full Federal Court was called on to consider the Workplace Relations Act 1996 (Cwth).
15. The relevant section provided that the Court could make an order for breach of a collective agreement which was worded as follows:

The Court may make one or more of the following orders in relation to a person who has contravened (the subsection) - injunctions, and any other orders that the Court considers necessary to stop the contravention or remedy its effects.

1. The case concerned the question as to whether those words were broad enough to give jurisdiction to the Federal Court to make an order for compensation for breach of that collective agreement.
2. Reference was made to the decision of the trial judge below, who had said this:

Ultimately the question is whether these are sufficiently clear signals that the express words should be treated as limited in the way discussed in (other authority) referred to earlier. They are not. The words used should be construed with all the amplitude that their ordinary meaning admits.

1. The trial judge thus found that he had power to award compensation, even though no explicit reference to compensation appeared in the section.
2. After referring to these findings, Buchanan and McKerracher JJ said this:

We agree with that conclusion. The guiding principle to be borne in mind is that limitations are not readily to be implied or found in the case of a grant of judicial power in terms which are themselves unconfined.

1. After quoting authority, the judges went on to say this:

A related principle which applies in the present case is that a remedial power should not normally be narrowly construed.

1. And of particular importance for the case before me, they then said:

The grant of power in section 494(5) was a very wide one. The court was given a power to make "any other orders of the court considers necessary" to remedy the effects of a contravention. A grant of power in wide terms does not render the grant of power ambiguous. Were it not for the structural considerations relied upon by the TWU, there would be no doubt in our view that taking the ordinary and natural meaning of the words used in section 494(5) of the WR Act. The terms of the grant of power were wide enough to include an order for compensation.

1. Reliance was particularly placed by the administrator on the words of Gray J at paragraph 4 of the judgement as follows:

The words are of wide import. Ordinarily, the conferral on a court of the statutory power to make orders should be construed broadly, not confined by implication that is not apparent from the words of the conferral themselves.

In accordance with this principle, the court should not confine the phrase "any other order" by reference to any implication, but only by reference to the terms of (the section) itself.

1. The respondents say that this case stands for the following three propositions, which are also applicable to the case before me.
2. Firstly, a Court should not limit a grant of power if that grant is unconfined, even if it is expressed in broad terms.
3. Secondly, where a power is given to a court which is remedial in nature, that power should not be construed narrowly.
4. And lastly, where a very wide power is given but it is not ambiguous then the breadth of the power is not of itself a reason for the power to be confined.
5. These principles, it was submitted, combine to compel the conclusion that the powers outlined in the 2003 amendments to the Instruments Act comprehend a power given to this Tribunal to make compensatory orders in respect of an attorney who has mis-used his power to the detriment of the estate.
6. Further, the respondents said there is nothing in the extrinsic material surrounding the passage of the Instruments Act which compels a contrary conclusion.
7. Given that there was no representation from the respondent, counsel for the administrator outlined three possible arguments against interpretation of Instruments Act in that way.
8. Firstly, it is clear that has not been considered in the past that this Act did confer to the Tribunal a general power to award compensation.
9. The administrator says that this of itself should not preclude a proper construction of the section.
10. Secondly, it might be said that the Act replacing the Instruments Act, (namely the POA Act,) was prepared to address this lack of power and this should be taken into account in interpreting the Instruments Act itself.
11. To counter this argument, the administrator took me to the case of Allina Pty Ltd v Commissioner of Taxation[6], and particularly to the observations at paragraph 212 of that report.
12. That paragraph reads as follows:

There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts.

1. After referring to authority, the paragraph goes on as follows:

We do not discern any ambiguity in the relevant words of (the section) so do not find it necessary to call in aid the language of the amendment.

1. Applying that observation to the case before me, the administrator submits that it is clear from the text of the POA Act and particularly sections 142 and 144(2) that the new Act does not seek to amend the Instruments Act, but rather preserves the relevant sections of that Act unaltered.
2. The words of the Instrument Act are not ambiguous and there has been no attempt in the new Act to remove possible doubts about that ambiguity.
3. The third possible argument against the administrator's position is that the wording of section 116(1)(h) of the POA Act correlates closely with section 125Z(1)(d) of the Instruments Act. That is, the relevant section of the POA Act gives power to VCAT over any other matter VCAT considers necessary in relation to the enduring power of attorney, and the section which is relied upon by the administrator also gives this Tribunal the power to make any order it considers necessary in relation to an enduring power of attorney.
4. This argument relies upon what is known as the Anthony Hordern principle.
5. It derives from reasoning of the High Court in the case of Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[7], where Gavin Duffy CJ and Dixon J said this:

Where the legislator explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

1. In reliance on this principle it may reasonably be argued that the wording of section 116(1)(h) of the POA Act does not include a power of compensation because there is a specific provision in that same Act for compensation. This is of course section 77 of that Act. Thus, section 116(1)(h) must be read down to allow section 77 to do its work.
2. Relying on that proposition, it may further be said that because the wording of section 125Z(1)(d) of the Instruments Act is virtually identical to section 116(1)(h) of the POA act, that wording must also be read down in the same way.
3. The clear answer to this argument is that in the new Act there is an express provision for compensation which is section 77. However, in the Instruments Act there is no need to read down the words of the section, because no equivalent of section 77 is contained in that Act.
4. In my view, in the context of this case, the broad interpretation of section 125(1)(d) of the Instruments Act put forward by the administrator is problematic. Although it is possible to make a logical argument that the power to award compensation could be encompassed within the wording of the sections referred to, I have determined that to do so would stretch the ordinary meaning of those sections to an unacceptable degree.
5. There is no compelling reason to do so. Clearly the Act itself is not internally inconsistent. The fact that on its face, the Act provides no remedy for compensation in this Tribunal is not a reason to import such a power. The Act also does not codify the powers or duties of an attorney under an enduring power, yet those powers and duties clearly exist at law. Causes of action for breach of those duties also exist at law.
6. In my view this marks a significant differentiation from the fact situation in TWJ. In that case the Federal Court was dealing with legislation in circumstances where an application for compensation could only arise at law if the section was construed broadly.
7. Here there is already a well-recognised jurisdiction for compensation for mismanagement or fraudulent use of a power of attorney. It is the equitable jurisdiction of the Supreme Court.
8. There is no logical reason to conclude that Parliament intended to replace supervision of those duties by the Courts with supervision of those duties by this Tribunal. I have already outlined the dual jurisdiction of the Supreme Court and this Tribunal created by the Instruments Act amendments. The fact that this legislation is remedial does not provide a basis for preferring one of those jurisdictions to the other.
9. The fact that it might be more difficult and expensive to access a compensation claim in a Court rather than this Tribunal is not of itself a reason for conferring on the Tribunal a power it does not appear to have been specifically given.
10. I find that the Instruments Act does not confer a power on the Tribunal to entertain a claim for compensation in respect of an enduring power of attorney.

THE POWERS OF ATTORNEY ACT 2014 - SECTION 77

1. The POA Act was significant and innovative. It established two important principles of relevance to this application.
2. The first was that it codified the duties of an attorney. Section 63 of the Act provides that an attorney must act honestly, diligently and in good faith. That section also provides that an attorney must exercise reasonable skill and care and not use the position of attorney for profit. The section also requires an attorney to avoid acting where there may be a conflict of interest and to keep accurate records and accounts.
3. Although these obligations were present in equity before the POA Act was enacted, this is the first time that the duties of an attorney have been spelt out so clearly and comprehensively in an Act of Parliament.
4. The second major innovation of the Act was that it specifically provided for a person to claim compensation from an attorney through VCAT. This right is contained in section 77 of the Act. That section reads as follows:

VCAT may order an attorney under an enduring power of attorney to compensate the principal for a loss caused by the attorney contravening any provision of this Act relating to enduring powers of attorney when acting as attorney under the power of attorney.

1. So, for the first time from September of 2015, Parliament provided for explicit legislative acknowledgement of what was expected of an attorney acting under an enduring power of attorney, and also provided a pathway easily accessible to a person who had suffered loss if an attorney did not properly exercise those powers.
2. There have already been several applications for compensation to this Tribunal under section 77 of the Act.
3. The three cases to which I have previously referred, namely YDM, ODY, and QSK, stand for three broad propositions in respect of the Tribunal's jurisdiction over old powers of attorney.
4. Firstly, any claim for compensation under section 77 of the Act cannot succeed if that contravention occurred before 1 September 2015, in order to avoid the section being given retrospective operation. It is clearly illogical to hold someone accountable for breaching a provision of an Act if that Act was not in existence at the date of the breach.
5. Secondly, any claim for compensation under section 77 can only succeed if the holder of an old power of attorney has contravened a provision of the POA Act. In other words, there may be available remedies in equity for breach of the duties of an attorney, but because this Tribunal is a creature of statute, those remedies cannot be pursued before this Tribunal.
6. And lastly, an attorney under an old power will only be liable in this Tribunal for a breach if that breach is described in section 142(2) of the transitional provisions.
7. Thus, in ODY Deputy President Nihill, being faced with a contravention alleged to have occurred before the commencement of the POA Act, dismissed the application for compensation.
8. The same approach was taken by Senior Member Hoysted in QSK where once again compensation was claimed in respect of a power of attorney entered into before the POA Act came into operation.
9. In QSK the Member accepted the principle set out in YDM and ODY that a claim under section 77 could only succeed where the applicant can prove that the attorney has contravened the provision of the POA Act, and therefore that the claim in that case could only apply to actions taken after that Act came into operation.
10. The approach in these cases was characterised by counsel for the administrator as the "literal" construction of the POA Act. The difficulties in taking this approach will become evident once the transitional provisions of the Act are examined.

1. The POA Act contains transitional provisions which are designed to deal with the relationship between the holders of old powers of attorney and the provisions of the POA Act. I have previously referred to section 142 of the Act in discussing the arguments put in relation to the application of the Instruments Act.
2. Section 142 provides that old enduring powers of attorney are still valid and the law enforced under the Instruments Act is taken to continue to have effect in relation to old enduring powers of attorney.
3. Section 142(2) provides this:

The following provisions of this Act are taken to apply to an old enduring power of attorney, as if it were an enduring power of attorney made under this Act -

1. The subsection then goes on to specify Divisions 2, 3 and 4 of Part 6.
2. Division 4 of Part 6 is the division which includes section 77, which is of course the compensation provision.
3. Thus, Parliament clearly intended that the compensation provisions of the new Act should apply to an old Enduring Power of Attorney. This is the obvious intention of the legislation and makes perfect sense.
4. There is however a snag. When one turns to the exact wording of section 77, that section requires VCAT to compensate the principal for any "loss caused by the attorney contravening any provision of this Act relating to enduring powers of attorney".
5. So, when considering an application for compensation in respect of an old power, the Tribunal must identify the provision of the Act which has been contravened.
6. It is immediately clear when trying to identify such a provision, that the transitional provisions appear to contain a startling omission. Section 146 contains what appears to be a comprehensive description of those provisions of the new Act which are taken to apply to all old enduring powers of attorney, but nowhere in the transitional provisions is there reference to section 63 of the Act. This is odd because section 63 is the very section which sets out the duties of an attorney, a breach of which provides the foundation for an application for compensation.
7. Thus, although it purports to extend the compensation provisions to an old enduring power of attorney, the section containing the transitional provisions does not in fact do so in any useful manner, because an attorney under an old power is not required to comply with the duties set out in section 63 of the Act.
8. So, a literal interpretation of the Act, as has to date been taken by this Tribunal, would mean that it would be most unlikely that an award of compensation could ever be made in respect of an old power of attorney.
9. This is because it will be necessary to identify a breach of a provision of the Act which is specifically named in the transitional provisions. The only examples that counsel for the administrator could put forward, if this literal interpretation of the provisions was adopted, are a possible breach of section 72 of the POA Act (a section requiring an attorney to implement a decision of the attorney for personal matters - a provision which is very little used) and a possible breach of section 83 (which is the section which requires an attorney not to exercise a power of attorney unless authorised by VCAT to do so).
10. It would not be expected that there would be very many applications for compensation based upon breaches of this description. Thus section 77 would have no practical application to old powers of attorney, even though it is named in the transitional provisions as being a section that does apply to an old power.

THE FIRST ARGUMENT - THE WORDS OF THE SECTION ITSELF

1. There is a simple way of viewing the section. Section 142(2) provides that the provisions of the Act specified therein are taken to apply to an old enduring power of attorney as if it were an enduring power of attorney made under this Act.
2. If those words "as if it were an enduring power of attorney made under this Act" - have any meaning, they must mean that in looking at the provisions specified, one must do so treating the old enduring power of attorney as if it were made under the new Act.
3. If it were made under the new Act then by definition those powers and duties set out in section 63 would clearly apply to it.
4. Thus, although section 63 is not specifically referred to in the transitional provisions, the powers and duties imposed in section 63 must apply to the old power because in considering an application for compensation the old power must be treated as if it had been made under the new Act.
5. This reasoning was not relied on by the administrator. I was told that a possible flaw in the reasoning is the specific structure of the remaining subparagraphs. It was said to be hard to conceive that this remaining part of the section could have any work to do if this reasoning was correct.
6. Nevertheless, I regard this reasoning as open to me and available to correct what is otherwise a nonsensical reading of the transitional provisions.

1. If I am wrong as to this initial interpretation of the transitional provisions, I have concluded that it is appropriate to give a purposive construction to the transitional provisions which provides a jurisdictional pathway for this application for compensation.
2. In doing so, I endorse the submissions of the administrator that I should not read the section literally, but I should read it purposively. This means that I should look at the purpose of the POA Act and make a determination as to what the purpose was meant to be of the transitional provisions.
3. The applicant has suggested that in order to achieve the purpose of the section, the section should be read in this way:

The Supreme Court or VCAT may order an attorney under an enduring power of attorney to compensate the principal for a loss caused by the attorney contravening or acting in a way that, had the enduring power of attorney been made under this Act would have contravened any provision of this Act relating to enduring powers of attorney when acting as attorney under the powers of attorney.

1. Clearly that formulation requires several words to be read into 77(1) of the Act. I have underlined the extra words above.
2. I accept the submission of the applicant that the intended purpose of section 77 is clear. The transitional provisions are designed to give a person a right of redress against an attorney exercising an old power of attorney. I accept that if the section as presently enacted does not give effect to that purpose, that this is inadvertent, and that what Parliament intended was to allow the same recourse to compensation in VCAT regardless of whether compensation was sought in respect of an old power or a power of attorney made under the POA Act.
3. I am fortified in my view by observations in the case of Taylor v Owners - Strata Plan No. 11564, a decision of the High Court of Australia.[8]
4. Counsel for the applicant referred me particularly to paragraph 548 of the judgement where this proposition is set out:

Consistently with this court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow a reading of the provision as if it contained additional words (or omitted words) with the effect expanding its field of operation.

The question of whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgement of matters of degree. That judgement is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".

1. It is a very bold step to read words into an Act of Parliament. I acknowledge that the addition of those words should not be taken lightly.
2. However, I accept that there is a drafting error which must be remedied to give the section its intended outcome. Unless the paragraph is read in this way, I accept that the section will operate in a manner that is an anomaly, or irrational, and that could have profound and unfortunate implications, in the way in which those words are used in the authorities cited to me by the applicant namely[9], and Minister for Immigration and Citizenship v SZJGV[10].
3. I accept also that without the addition of those words the section could be fairly described as creating "some inconvenience or absurdity which could hardly have been intended" in the way that phrase was used in SZJGV (at page 651). The new Act is beneficial legislation. It provides for a simple and efficient remedy for breaches by an attorney of the obligations of an attorney. I agree with the submission of the applicant that if this interpretation is not adopted, section 77 would apply to an old power only in the most exceptional cases, if at all. It provides a realistic solution to the problem pointed up by the literal approach to the words of the section and I accept that this approach corrects what was otherwise an unintended and unfortunate drafting error.

1. I am persuaded that on the grounds set out on the first and second arguments which I have outlined above, the Tribunal does have power to order compensation in this case pursuant to the POA Act.
2. My approach to interpretation of this Act is significantly different to the approach I have taken to interpretation of the Instruments Act. This is because the failure of the POA Act to precisely spell out that the remedy for compensation applies to old powers is clearly an omission which unless addressed undermines the clear intention of the legislation. There is no corresponding omission or ambiguity in the Instruments Act.
3. I have thus concluded that this Tribunal has power under section 77 of the POA Act to award compensation against LQC in respect of alleged breaches by him of his duties under the power of attorney dated October 2013, provided that those breaches arose after 1 September 2015.
4. And I so declare.

[1] YDM (2016) VCAT 758.

[2] ODY (2016) VCAT 804.

[3] QSK (2017) VCAT 2017.

[4] KS (2008) WASAT 29.

[5] TWU v Qantas (2012) FC AFC 10.

[6] Allina Pty Ltd v Commissioner of Taxation (1991)28 FCR203.

[7] Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932)47CLR 1 at 7.

[8] Taylor v Owners - Strata Plan No. 11564 [2014] HCA 9; (2014) 253 CLR 531.

[9] Leys [2012] VSCA 304; (2012) 44 VR 1 at paragraph 17.

[10] Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 2009 (238 CLR 642 at page 651).