DQH (Guardianship) [2017] VCAT 380 | Case summary | Zoe

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DQH (Guardianship) [2017] VCAT 380 (24 March 2017)

[2017] VCAT 380

Victorian Civil and Administrative Tribunal|2017-03-24

At a glance

AI case summary

Result

respondent. The Tribunal dismissed the applicant's application for orders relating to the enduring power of attorney, declined to order production of accounts (because the records had been offered for...

Key principles

VCAT will not declare an enduring power of attorney (EPA) invalid for lack of capacity unless satisfied with a greater degree of factual certainty about the principal's...
An applicant seeking to show invalidity for dishonesty or undue influence must produce evidence that, on balance, demonstrates inducement or improper influence; literal wording...
VCAT may refuse orders for production of attorney accounts where those records have been offered for inspection and the offer remains open; the Tribunal can require the applicant...
In costs applications under the VCAT Act s109, the Tribunal should have regard to the general rule that parties bear their own costs and the specific statutory factors; where the...

Issues before the court

Whether the applicant had standing to apply to VCAT about the enduring power of attorney.
Whether the 2003 enduring power of attorney was invalid because the principal lacked decision-making capacity when it was executed.

Plain English Summary

The nephew challenged a 2003 enduring power of attorney executed by his aunt, alleging she lacked capacity or was unduly influenced. VCAT accepted the nephew could bring the application but found the contemporaneous neuropsychological evidence equivocal (possible reversible causes of confusion, limited assessment, retrospective elements) and concluded there was not enough certainty to declare the EPA invalid for incapacity. The Tribunal also found the niece's letter and other evidence did not prove undue influence. The Tribunal refused to order production of accounts because the attorneys had already offered the applicant inspection and copying which remained open. Finally, although the substantive application was dismissed, the Tribunal refused to award costs against the self-represented applicant under s109 VCAT Act.

AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Deep Dive

1,917 words · generated 28/08/2026

What happened

DQH (Guardianship) [2017] VCAT 380 is a VCAT Human Rights Division (Guardianship List) decision delivered by Member B. Hoysted. The applicant, the deceased principal's nephew, challenged an enduring power of attorney (EPA) executed by his aunt in 2003. He alleged (1) that the principal lacked decision-making capacity when she executed the EPA, and (2) that the EPA was procured by dishonesty or undue influence by the appointed attorneys (the principal's niece and the niece's husband). He sought, among other things, disclosure of the EPA and the attorneys' financial records, a declaration that the EPA was invalid, and sought to cross-examine the niece.

Key factual matrix:

The principal was admitted to hospital in 2003 with a urinary tract infection (UTI), dehydration and confusion. A neuropsychological assessment was performed by Dr Leanne Kennedy on or about 28 October 2003.
Parts of Dr Kennedy's report were not finalised at discharge and were finalised retrospectively in 2016.
The EPA was executed about five weeks after the 2003 assessment.
The principal died in April 2011. The applicant applied to VCAT many years later (hearing 7 December 2016; written reasons 24 March 2017).
The attorneys' solicitor had previously offered the applicant the opportunity to inspect and copy the attorneys' records; the offer remained open at the time of hearing.

The Tribunal:

Accepted that the applicant had standing as a person with a "special interest" (s122(1)(e) Powers of Attorney Act 2014).
Allowed the applicant a copy of the EPA but refused his request to cross-examine the niece (the former attorney).
Declined to order production of accounts because the records had already been offered for inspection and copying and the applicant had not availed himself of the offer.
Examined Dr Kennedy's 2003 report and the surrounding circumstances and concluded the evidence was equivocal, there were caveats pointing to possible reversible causes of confusion, a retrospective element to part of the report, limited assessment time, discharge to home before report completion and a five-week interval between assessment and the EPA execution.
Concluded the Tribunal could not be satisfied, to the degree required, that the principal lacked capacity when the EPA was made; it also found insufficient evidence of dishonesty or undue influence.
Dismissed the substantive application and denied the former attorneys' application for costs under s109 VCAT Act.

Why the court decided this way

Two principal legal thresholds shaped the decision.

The statutory threshold for declaring an EPA invalid for incapacity (s118(a) of the Powers of Attorney Act 2014) requires VCAT to be satisfied that the principal did not have decision-making capacity when the EPA was made. The Tribunal emphasised that to make such a declaration requires "greater certainty about the principal's capacity than I felt - something akin to a finding of fact." The neuropsychology report relied upon contained multiple caveats:
- The assessment was limited by time constraints.
- Confusion might have been exacerbated or caused by a reversible medical state (UTI, dehydration, low B12).
- The report was in part finalised retrospectively in 2016, which weakens contemporaneity.
- The principal had been discharged to home, suggesting some clinical confidence in her capacity to function at home.
- There was an interval of some five weeks between the assessment and the EPA execution, allowing possible recovery.

Given these uncertainties and the possibility of improvement in cognition, the Tribunal found the evidence did not meet the required standard to declare the EPA invalid. Put simply, equivocal, caveated, or retrospective expert commentary was insufficient to meet the Tribunal's threshold for a factual finding of incapacity on the balance of probabilities in this context.

On undue influence/dishonesty (s118(c)), the Tribunal closely assessed the 2007 letter from the niece stating "we organised to take out an enduring power of attorney" and the neuropsychologist's note that the principal had consistently spoken about appointing the niece's husband. The Tribunal interpreted the niece's wording in context, as describing protective steps taken to preserve the principal's home from perceived risk of foreclosure or state intervention, and did not accept that the literal phrasing established improper inducement. The Tribunal also observed that cross-examination would likely produce assertion and denial and would not materially assist; it therefore refused the applicant's request to cross-examine the niece.

Regarding records and accounts (s116(1)(e)-(f)), the Tribunal exercised its discretion by declining to order production where the records had already been offered to the applicant by the attorneys' solicitor and the offer remained available; the applicant had not availed himself of that offer.

On costs (s109 VCAT Act), the Tribunal applied the statutory framework. The court reiterated the default position that parties bear their own costs and considered the statutory factors (vexatious conduct, prolongation, tenability of claims). The applicant, self-represented, was not found to have acted vexatiously or unreasonably; the Tribunal determined a costs order would not be fair.

Before and after state of the law

Before this decision, VCAT and courts had recognised that invalidating an EPA for incapacity or undue influence requires careful fact-finding and contemporaneous evidence. DQH confirms and exemplifies that approach within the jurisdiction of the Powers of Attorney Act 2014. The decision emphasises two practical points:

The Tribunal requires a clear factual basis to declare an EPA invalid for incapacity. Retrospective expert reporting, caveated assessments and evidence of potentially reversible contributors to confusion weaken the case for invalidity.
Contemporaneous documents whose wording might prima facie suggest third-party organisation must be read in context; literal phrasing alone does not establish undue influence.

After DQH, practitioners should recognise that:

A retrospective 'finish' to an expert report years later will be treated as a factor undermining the contemporaneous weight of that report.
Evidence of reversible causes of confusion at the time of the making of an EPA will lead the Tribunal to require closer proof that the principal's decision-making ability was decisively impaired.
Offers to inspect and copy records previously made and not availed of are a strong basis for the Tribunal to refuse an order for production of accounts.

DQH does not create new statutory interpretation, but reinforces existing doctrinal expectations about evidentiary sufficiency.

Key passages with plain-English translation

"I was satisfied that the applicant was a person with a special interest in the affairs of the principal ..." (My findings, para 1).
- Plain English: The nephew had legal standing to bring the application under s122(1)(e).
"I determined that to make a declaration required greater certainty about the principal's capacity than I felt - something akin to a finding of fact."
- Plain English: The Tribunal will not declare an EPA invalid because of incapacity unless the evidence is clear enough to support a firm factual finding that the donor lacked capacity at the time.
The Tribunal summarised caveats in Dr Kennedy's report: limited assessment time, possible effects of UTI and dehydration, the report being finalised retrospectively in 2016, discharge to home before report completion, and a five-week interval before the EPA was executed.
- Plain English: The neuropsychology evidence was equivocal; there were plausible reasons why the principal might have been temporarily confused, and the assessment itself was imperfect and late in being documented.
On the niece's letter: "The expression used by the niece 'we organised to take out' an EPA is suggestive of it being done by others to the principal but only on a literal interpretation of the words."
- Plain English: The phrase could be read to mean the niece organised the EPA, but when read in context it could instead reflect actions taken to protect the principal's interests; it is not proof of undue influence by itself.
On records: "I found no need to make any order requiring the former attorneys to provide accounts on the basis that they had been offered to the applicant, he had not availed himself of that offer and the offer remained open."
- Plain English: Because the attorneys had already offered the applicant the documents and the offer was still available, the Tribunal saw no reason to make a compulsory order.

What fact patterns trigger this precedent

The reasoning in DQH will be particularly relevant where:

A contemporaneous medical or neuropsychological assessment is incomplete, contains caveats, or is retrospectively finalised, and the EPA was executed shortly after an acute episode that may have caused reversible confusion (UTI, dehydration, medication effects, metabolic disturbances).
An applicant relies on later-supplemented expert notes to assert incapacity at the time of signing.
Contemporaneous correspondence or statements by an attorney suggest they 'organised' an EPA; DQH alerts that such wording is not determinative and must be read in context alongside evidence of the principal's stated wishes.
The attorney has previously offered the applicant access to records; the applicant has declined or not pursued the offer; the Tribunal may decline to order production because the remedy was already available.

Practically, DQH signals that challenges to EPAs will succeed only where the evidence establishes incapacity or undue influence with reasonable clarity and contemporaneity.

How later courts have treated it

As this deep dive is confined to the provided judgment, DQH's treatment by later courts or tribunals is not recounted here. The decision stands as a Tribunal-level authority articulating evidentiary expectations under the Victorian Powers of Attorney Act 2014. Users researching subsequent citations should search VCAT and Victorian judicial databases for cases citing DQH [2017] VCAT 380.

Still-open questions

Degree of certainty: The Tribunal described its requirement as "something akin to a finding of fact," but did not outline a precise standard beyond that phrase. Practitioners will want clearer guidance on whether the ordinary civil standard (balance of probabilities) suffices, or whether particular types of incapacity claims require more than the ordinary balance. DQH suggests a practical threshold rather than a new legal standard, but the absence of a precise articulation leaves room for interpretative variation.
Weight to retrospective expert documentation: DQH treats retrospective finalisation of expert reports as weakening contemporaneous weight. There remains an open question about how tribunals should treat retrospective documentation where the underlying contemporaneous clinical notes are uncontroversial and detailed.
Cross-examination thresholds: The Tribunal refused cross-examination on the basis that it would produce assertion and denial and not materially assist. There is limited elaboration on the criteria applied in exercising that discretion; later cases may clarify when cross-examination is necessary to resolve contested credibility in EPA disputes.
Interaction with s77 compensation claims: The Tribunal noted s77 allows compensation orders even post-mortem but s79 imposes time limits. The judgment highlights procedural traps for late claims; there is an open issue about the scope for s79 extensions in cases where material (for example, a relevant expert report) only becomes available many years later.
Remedies where inspection offers exist but are practically inaccessible: DQH refused an order for production because an offer to inspect remained open. It leaves open the question of what happens where an inspection offer exists in principle but, for practical reasons (geography, solicitor's uncooperative conduct, costs of copying) is not effectively accessible to the applicant.

Practitioners should treat DQH as a careful application of statutory thresholds and evidentiary scrutiny in EPA invalidity claims. For case-specific strategy, a lawyer should be consulted.

This analysis is informational only. It is not legal advice. I may make mistakes. Before relying on this, or using any draft or plan that stems from it, get a qualified Australian lawyer to check it.

Judgment (97 paragraphs)

[1]

The application by [redacted] for orders in relation to the enduring power of attorney is dismissed.

[2]

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.

[3]

The applicant was the nephew of the former principal who died in April 2011.
An enduring power of attorney (EPA) was executed by the principal in 2003 some five weeks after she had been discharged from hospital after a short stay precipitated by urinary tract infection, dehydration and confusion. While she had been in hospital an assessment of her decision making capacity to execute an EPA had been conducted however the report by the assessing neuropsychologist had not been completed.
Under the EPA, the principal appointed her niece and her niece's husband as her attorneys. The niece was the cousin of the applicant.
The applicant delivered to the Tribunal's registry an application for orders in relation to Powers of Attorney together with two undated typed letters, both headed "Confidential" and in both he sought "guidance" from the Tribunal as to whether he could make an application. He specified the remedies he sought:
1. disclosure of the EPA appointments made by the principal in or about October 2003, and
2. disclosure of the principal's financial records as managed by her former attorneys.

[4]

The day prior to the hearing the Tribunal received correspondence from the applicant in which he expanded on the orders he sought. Additionally, the applicant wanted:
1. a declaration that the EPA executed by his aunt in 2003 was invalid because the donor then lacked the capacity to make the appointment and/or was induced to make such an appointment by dishonesty or undue influence.
The matter came before me in December 2016.

[5]

The hearing was attended by the applicant who represented himself and the former attorneys who were represented by Ms Braun of counsel.
At hearing, the applicant submitted that his aunt lacked capacity to give the EPA when she did. In support of his assertion, the applicant produced a report written by neuropsychologist Dr Leanne Kennedy who had assessed the principal in 2003 while she was an in-patient. Dr Kennedy noted in her report under the heading "Impression and Recommendation" that:

[6]

..most of this report was completed on 28 October 2003 but not finalised with her discharge just after the assessment. This section is being finalised retrospectively in 2016 triggered by an FOI request from a nephew and in order to complete the Neuropsychology documentation in the medical records.

[7]

Dr Kennedy went on to indicate a number of deficits in the principal's memory and expressed a summary opinion that the principal was then "unable to demonstrate clear capacity to make an appointment of EPOA" and recommended an "application through VCAT to formalise any such appointment with appropriate checks".
The applicant also sought to prove that his aunt had not wanted his cousin to be her attorney. He said that the principal had spoken about appointing his cousin's husband but claimed his aunt had not intended to include his cousin. He wished to cross examine his cousin to prove his assertion that she had induced her aunt to appoint her under the EPA. He relied upon a letter written by his cousin dated June 2007 in which the cousin said:

[8]

..In order to finalise the house payment we needed authority to do so. We therefore organised to take out an Enduring Power of Attorney over her affairs.

[9]

The applicant claimed that the language illustrated that the principal had been passive in the execution of the EPA and that it had been brought about by the cousin and her husband.
Counsel for the former attorneys opposed the applicant's submission that he cross examine his cousin.
I denied his request to cross examine the former attorney.
The applicant sought disclosure of the enduring powers of attorney. I approved that disclosure and provided the applicant with a copy of the EPA during the hearing.
The applicant petitioned for the Tribunal to order the provision to him of records and accounts kept by the attorneys.
Counsel for the former attorneys stated that in litigation between the parties two years previously, her instructing solicitor had offered the applicant the opportunity to inspect and copy the records kept by the attorneys. Counsel further stated that the offer had been conveyed in writing to the applicant and remained open and that the former attorneys were surprised and frustrated that the applicant had not availed himself of the offer but had instead had made application to this Tribunal.
The applicant made explicit that his application was not one for compensation. In any event, he was, without the leave of the Tribunal, out of time to make such an application given that his aunt had died some five years earlier.
In submissions, written and oral, the applicant claimed that the former attorneys had involved themselves in the execution by the principal of a new Will in 2009. He submitted copies of Wills apparently executed by the principal in 2000 and 2009 with the later Will showing an increased bequest to the niece and her family and a reduced share of the estate to himself.
Counsel for the former attorneys asserted that the applicant had failed to demonstrate a cause of action. Counsel stated that her clients were distressed by the multiple actions brought by the applicant against them and the expense of again instructing lawyers to defend themselves.

[10]

Powers of Attorney Act 2014

[11]

Section 122 Who can apply for an order?

[12]

(1) A person may apply to VCAT for an order under Division 2 as to an enduring power of attorney or a supportive attorney appointment if the person is -

[13]

(e) any other person whom VCAT is satisfied has a special interest in the affairs of the principal.

[14]

Section 77 Compensation for acts of attorney

[15]

(1) 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 any provision of this Act relating to enduring powers of attorney when acting as attorney under the power of attorney.

[16]

(a) even if the attorney is convicted of an offence in relation to the attorney's contravention; and

[17]

(b) even if the principal has died, in which case compensation is payable to the estate of the principal; and

[18]

(c) even if the enduring power of attorney is invalid or has been revoked or, at the time of the contravention, was invalid or had been revoked.

[19]

Section 78 Who can apply for an order for compensation?

[20]

A person may apply for an order under section 77 if the person is -

[21]

(b) any attorney under the enduring power of attorney; or

[22]

[23]

(f) any other person whom VCAT is satisfied has a special interest in the affairs of the principal.

[24]

Section 79 Time limit for application for order for compensation

[25]

(1) An application for an order for compensation under this Division must be made -

[26]

(a) if the principal has died, within 6 months after that death; or

[27]

(b) if the attorney has died, within 6 months after that death; or

[28]

[29]

(2) The Supreme Court or VCAT may extend the time specified under subsection (1).

[30]

Section 116 Matters about which VCAT may make an order

[31]

(1) On application under Division 3, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to an enduring power of attorney -

[32]

(a) any matter for or with respect to an attorney's power under the enduring power of attorney including the following -

[33]

(b) the effect of any failure to comply with the method of execution of enduring powers of attorney or of instruments of revocation of enduring powers of attorney required by this Act;

[34]

[35]

(d) the validity of a transaction by an attorney under the enduring power of attorney if VCAT is satisfied there has been a failure to comply with Part 6 or for any other reason;

[36]

(e) the lodgement with VCAT of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period by the attorney responsible under this Act for keeping them;

[37]

(f) the examination and auditing of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period, including -

[38]

(i) determining the person to be responsible for examining or auditing the accounts or other documents; and

[39]

(ii) whether the person responsible under subparagraph (i) for carrying out the examination or audit should be paid and the amount of any such payment;

[40]

(g) giving a report on any examination and audit conducted under an order under paragraph (f) to -

[41]

(ii) the applicant or any other person ordered by VCAT;

[42]

Section 118 Considerations for invalidity of enduring power of attorney

[43]

Under section 116(1)(c) VCAT must not make an order declaring that an enduring power of attorney is invalid unless VCAT is satisfied that -

[44]

(a) the principal did not have decision making capacity in relation to making the enduring power of attorney at the time the enduring power of attorney was made; or

[45]

(b) at the time the enduring power of attorney was made it did not comply with the requirements of the Act; or

[46]

[47]

(d) the enduring power of attorney was legally invalid when entered into.

[48]

Section 119 Effect of finding of invalidity on enduring power of attorney

[49]

If VCAT makes an order declaring that an enduring power of attorney is invalid under section 116(1)(c), the enduring power of attorney is void from its commencement.

[50]

Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act)

[51]

Section 109 Power to award costs

[52]

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

[53]

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

[54]

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

[55]

(e) any other matter the Tribunal considers relevant.

[56]

I was satisfied that the applicant was a person with a special interest in the affairs of the principal and so could make application to the Tribunal for order in relation to the EPA.
While the applicant made clear that he was not seeking compensation, I noted that section 77 of the Powers of Attorney Act 2014 allowed for compensation orders to be made even if the principal had died however section 79 (1)(a) stipulated that such an application must be made within six months of the death unless the Supreme Court or VCAT had extended that time. Given that the applicant was unrepresented and much of what he submitted showed uncertainty about the relevant law, I addressed the legal requirements for an application to this Tribunal for compensation in my oral reasons.
The applicant, in both written material and oral submissions, raised allegations about the former attorneys that were beyond the jurisdiction of the Tribunal. I made explicit that the Tribunal could make no orders about the Will of the principal.

[57]

Should I have ordered the former attorneys to provide full accounts to the applicant?

[58]

I found no need to make any order requiring the former attorneys to provide accounts on the basis that they had been offered to the applicant, he had not availed himself of that offer and the offer remained open. He could obtain the records by contacting the solicitor who still represented the former attorneys.

[59]

Was the 2003 EPA invalid because the principal lacked capacity?

[60]

While noting that Dr Kennedy had expressed a summary opinion:
- that the principal had been "unable to demonstrate clear capacity to make an appointment of an EPA" and
- had recommended "application through VCAT to formalise any such appointment with appropriate checks"

[61]

I found the report contained a number of caveats that caused me, as the Tribunal Member some thirteen years later, to be unwilling to make the declaration sought by the applicant. I determined that to make a declaration required greater certainty about the principal's capacity than I felt - something akin to a finding of fact.

[62]

The principal had been admitted to hospital with a urinary tract infection (UTI) and mild dehydration and low levels of vitamin B 12. The reported confusion may have been exacerbated by a UTI or dehydration.
The assessment had been "limited" due to "limited assessment time available".

[63]

A more comprehensive assessment may have provided greater certainty.

[64]

That further investigation was warranted for possible neurodegenerative condition.

[65]

An indication to me that aetiology and effect were uncertain.

[66]

The principal was said to be recovering from prolonged confusion, and
That with further recovery it was not then clear how much improvement there would be.

[67]

In addition, the principal had been discharged to her home before the report was completed.

[68]

This suggested some improvement and some confidence by the treating team that she could manage at home.

[69]

Finally, the EPA was executed some five weeks after the date of the assessment by Dr Kennedy.

[70]

Time for possible resolution of acute conditions before the EPA was executed.

[71]

For all of these reasons, I determined that I could not make a declaration that the principal had lacked the necessary capacity to have executed the EPA when she had.

[72]

Was the EPA invalid because dishonesty or undue influence had been used to influence the principal?

[73]

The applicant asserted that the principal had never wanted to appoint her niece as her attorney.
A letter from the niece/cousin received by the applicant in 2007, informed him that his cousin and her husband had both been appointed and, as he read it, the wording of the letter had confirmed his view that his cousin had orchestrated the execution of the EPA and the appointment of herself. He deduced that his aunt had lacked capacity and had been unduly influenced.
In the 2007 letter to the applicant, the niece stated that "some time ago" when the principal had...

[74]

...one of her hospital trips and we realised she was having memory problems, we organised with her bank to pay off her house loan so she would fully own her house and therefore have no chance of the bank selling it on her.

[75]

...In order to finalise her house payments we needed authority to do so. We therefore organised to take out an enduring power of attorney over her affairs. The reason we did this was because the hospital wanted to put her affairs into the hands of the government and once that happens they can decide to do whatever they wish with her and we didn't want to see her house sold and have her put into a home against her will because she informed us that she wanted to live in her own home and at that time she was more than capable of doing so.

[76]

The letter did not persuade me that the principal had been induced or influenced in the execution of the EPA. The expression used by the niece "we organised to take out" an EPA is suggestive of it being done by others to the principal but only on a literal interpretation of the words. The explanation given by the niece about banks foreclosing and the government having the ability to do whatever they wanted suggests an uninformed view but also a desire to protect the wishes of the principal.

[77]

The neuropsychologist noted in her report that the principal had spoken consistently about appointing the husband of her niece.

[78]

That the principal, in discussion with the neuropsychologist, named only the niece's husband but ultimately appointed also the niece did not, even when considered together with the letter from the niece, persuade me that undue influence had been used on the principal.

[79]

I formed the view that the applicant had disclosed the extent of his evidence and that cross examination would involve an assertion and denial and leave me no better informed. I denied the applicant's request to cross examine his cousin.

[80]

Having read the submissions and heard arguments by the applicant and counsel for the former attorneys, I dismissed the application and provided oral decisions.

[81]

The applicant had failed to show a cause of action and that her clients had been put under personal and financial pressure as a consequence.
Because the principal had died some years before and her estate had been finalised, it was now not possible for the former attorneys to seek financial protection from the principal on whose behalf they had acted.

[82]

A previous application made by the applicant in another jurisdiction had been dismissed at the first return.

[83]

The applicant had represented himself and incurred no expense.
Unless a costs order was made, there would be no deterrent to the applicant again making application to this Tribunal or elsewhere leaving the former attorneys fearful about the possibility of the cost of further litigation.

[84]

The applicant opposed the application by counsel for the former attorneys for costs. In written submissions to the Tribunal since the hearing, the applicant stated the bases for his opposition:

[85]

He understood it to be a general VCAT principal that parties bear their own costs
That to order him to pay the costs of another party would undermine public policy that civil remedies should be financially accessible to the general public.

[86]

Counsel for the former attorneys:
1. appeared not to be in possession of his application when he had served it upon her instructing solicitor
2. addressed the Tribunal on the issues of whether compensation could be ordered
3. told the Tribunal that the issue of the principal's Will was long ago settled
4. asked the applicant for an additional copy of his application
5. foreshadowed an application for costs
6. sought to have her client excused from being cross examined by the applicant on the basis of the stress it would cause without providing a supporting doctor's letter

[87]

That had I allowed him the opportunity to cross examine his cousin, then I would have had a "very much better understanding of the matter".

[88]

While giving the Tribunal the power to order costs if satisfied that it is fair to do so, section 109(1) of the VCAT Act underscores the general rule that parties bear their own costs. Costs are not intended to discourage parties from accessing justice.

[89]

I was not persuaded that the applicant sought to unreasonably delay the proceeding or that he was vexatious in his conduct.

[90]

The former attorneys chose to have legal representation in a jurisdiction where many parties self represent. It would have been clear to them in the lead up to the hearing that the applicant was not represented.

[91]

Notwithstanding that I dismissed the application, I did not find that the applicant made the application aware that it had no tenable basis in fact or law.

[92]

I was not persuaded that, having regard to the provisions of section 109 of the VCAT Act, the conduct of the applicant in relation to this application was such that a costs order should be made.

[93]

Following the hearing, the applicant wrote to the Tribunal. In his correspondence the applicant drew a number of false conclusions, namely that his application had been dismissed because;

[94]

It was presumed by the Tribunal to be an application for compensation 2. It was presumed by the Tribunal to relate to separate civil proceedings about the principal's Wills

[95]

That counsel for the former attorneys may not, at the hearing, have had his original application to the Tribunal.

[96]

Concerned that his application had been misconstrued, the applicant opposed an award of costs which might be made based on reasons which did not relate to his application.

[97]

The applicant's correspondence made it clear to me that the applicant had not understood the reasons for my decision. I determined that I should provide written reasons to the parties so that the applicant, who felt aggrieved by my decision, could consider my reasons without seeking a rehearing which would most likely result in parties incurring further costs to do so.

DQH (Guardianship) [2017] VCAT 380 (24 March 2017)

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Deep Dive

Cited legislation

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (97 paragraphs)

Legislation Cited (2)

Cases Cited (1)

DQH (Guardianship) [2017] VCAT 380 (24 March 2017)

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