Guardianship and Administration Act 2019, ss 5, 6, 8, 30, 32, pt 7.

Powers of Attorney Act 2014, s 33.

Charter of Human Rights and Responsibilities Act 2006, ss 4, 7, 8, 12, 20, 24, 32, 38.

Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301; PJB v Melbourne Health (Patrick's case) [2011] VSC 327; (2011) 39 VR 373; Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141, followed.

LG v Melbourne Health [2019] VSC 183, considered.

1. The second applicant, Raye, is now 97 years of age. She has two children, Gregory (the first applicant) and Jillian (the respondent).
2. All are tertiary educated. Raye practised as a psychologist for many years. Jillian has followed in the same profession. Gregory is a retired geophysicist.
3. For the past 11 years, Gregory has lived with his mother in a suburb of Melbourne. He has been his mother's full‑time carer in recent years. Jillian lives in Sydney.
4. In mid‑2022, because of Jillian's concern as to her mother's capacity to manage her affairs, she applied to the Victorian Civil and Administrative Tribunal ('VCAT') for orders concerning (amongst other things) the validity of several powers of attorney and allied instruments made by Raye from 2017 onwards.
5. The central question underpinning Jillian's application was that of Raye's capacity to manage her personal and financial affairs.
6. In August 2024, the Vice President of VCAT, Judge English, concluded that Raye did not have decision‑making capacity regarding financial, legal, or personal matters in 2023 and thereafter.
7. The Vice President made 29 consequential orders. These included the appointment of Gregory as an administrator pursuant to the Guardianship and Administration Act 2019 (the 'GA Act') and the appointment of a temporary administrator to conduct a financial audit. Her Honour also made orders relating to the validity of several powers of attorney made by Raye under the Powers of Attorney Act 2014 (the 'POA Act'). Raye's powers of attorney of June 2022 and February 2023 were held to be invalid. However, her power of attorney, executed in 2017, remained extant as she had capacity at that time.
8. The Vice President has subsequently vacated a number of the GA Act orders relating to the limited appointment of a temporary administrator, as their purpose has been satisfied. The result is that Gregory is currently the sole administrator of Raye's estate, but the extant orders significantly limit the exercise of his powers under the GA Act.
9. Most of the remaining orders are now challenged by Gregory and, at least nominally, by Raye (jointly 'the applicants') on this application for leave to appeal the Vice President's decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). Gregory has consistently maintained that Raye does not need an administrator or a guardian. Jillian agrees about the lack of a need to appoint a guardian but contends that Raye needs an independent administrator.
10. The primary questions on this application are:

(a) whether it was open to the Vice President to conclude that Raye lacked the capacity to make a power of attorney that she signed in 2022; and

(b) whether the Vice President should have appointed an administrator (Gregory) under the GA Act to manage Raye's financial affairs.

1. At the hearing of the application the applicants submitted that the answer to these questions essentially depended on whether the Vice President was entitled to accept the opinion of a neuropsychologist, Dr Karen Bird, regarding Raye's mental acuity; and whether the Vice President applied the relevant provisions of the Charter of Human Rights and Responsibilities Act 2006 (the 'Charter') in determining to appoint an administrator.

1. Raye was born on 4 July 1928 and practised as a psychologist. She is widowed and lives at home in a suburb of Melbourne with Gregory.
2. In November 2014, when she was aged 83, Raye suffered a major stroke. An MRI of her brain revealed: 'an acute infarct involving the left PCA territory, with sparing of the occipital cortex. Severe periventricular and brain stem ischemic changes were also noted'. She was subsequently diagnosed by her general practitioner, Dr Penelope Bennett, as having vascular dementia.
3. From May 2016 onwards, Raye executed multiple powers of attorney under pt 3 of the POA Act. For the purpose of this application, the following are relevant:

(a) On 19 September 2017, naming Jillian and Gregory as joint enduring attorneys (the 'September 2017 Power of Attorney').

(b) On 28 June 2022, naming Gregory as sole enduring attorney (the 'June 2022 Power of Attorney'). This document is described in some VCAT orders as having been made on 1 July 2022, although that appears to be the date upon which it was certified as a true copy. The actual date of signing is 28 June.

(c) On 7 February 2023, naming Gregory as sole enduring attorney (the 'February 2023 Power of Attorney').

1. On 25 June 2022, Jillian filed an application with VCAT seeking:
   • [to] revoke, vary or suspend the June 2022 power of attorney
   • [to] require an attorney to provide accounts
   • [to] resolve a disagreement between attorneys and
   • sole guardianship for [her] mother [Raye].
2. On 12 July 2022, Raye signed an appointment of a medical treatment decision‑maker, naming Gregory as the first decision‑maker and Jillian as the second. Jillian has not accepted that appointment.
3. On 28 September 2022, a VCAT member declared the June 2022 Power of Attorney to be invalid. Orders were made adjourning the hearing and referring the matter to the Office of the Public Advocate ('OPA') for an investigation and report, noting that a psychological report would require Raye's consent to an examination. Raye did not attend the appointment arranged for her assessment by a neuropsychologist.
4. On 13 February 2023, a VCAT member made an order (the 'February order') under s 80 of the VCAT Act, including a direction pursuant to order 4.15 of the Victorian Civil and Administrative Tribunal Rules 2018 that Raye undergo a neuropsychological examination:

Pursuant to Order 4.15 of the VCAT Rules 2018 [Raye] is directed to submit to a neuropsychological examination with Dr Karen Bird to be arranged by the Office of Public Advocate (the 'OPA').

1. At the OPA's request, Dr Bird examined Raye on 22 February and 7 March 2023. Her report dated 23 March 2023 was forwarded to VCAT and is set out in more detail later.
2. On 9 May 2023, Mr Dean Madden, an investigations officer of the OPA, provided an investigation report to VCAT, which included and relied upon the neuropsychological report of Dr Bird.
3. Although Jillian's application originally identified only the June 2022 Power of Attorney as the subject of her application, it was clear from the correspondence and submissions of the two siblings that at this time there were two substantive issues that VCAT was required to determine: the efficacy of the multiple powers of attorney signed by Raye, and whether a guardian and/or administrator should be appointed to manage Raye's affairs under the GA Act.
4. On 29 May 2023, Jillian's application was heard at VCAT by the Acting Deputy President of VCAT (Senior Member Steele). Dr Bird's report was tendered, and she was cross-examined by Gregory, as was Mr Madden, the OPA investigator.
5. The Senior Member concluded that Raye 'now lacks decision‑making capacity in relation to financial, property, and legal matters', and in relation to some personal matters. Raye also lacked decision‑making capacity to make an enduring power of attorney in February 2023.
6. On 2 August 2023, the Senior Member provided reasons for her decision.
7. On 9 August 2023, Gregory made a series of submissions to VCAT, which it treated as an application for a rehearing.
8. On 24 August 2023, a Deputy President of VCAT permitted Gregory to apply for a rehearing of 'the application made about [Raye]', which, after several adjournments, was set down for hearing on 9 July 2024.
9. The rehearing took place on 9 July 2024 ('the rehearing'), and its details, including the Vice President's orders, are set out below.
10. On 5 December 2024, Raye and Gregory attended a VCAT hearing with Jillian attending via Zoom. The Vice President revoked the orders that related to the appointment of Mr Nelson Wong, an accountant, who had completed his task as a limited administrator, after finalising an audit of Raye's accounts.
11. The Vice President also amended order 16 to grant Gregory additional powers under s 51 of the GA Act and noted that Gregory had sought the inclusion of the power under s 51 as administrator to undertake legal proceedings.

1. The definition of decision‑making capacity in both the POA Act and the GA Act is virtually identical. Under the GA Act, decision‑making capacity is defined in s 5 as follows:

(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.

(3) For the purposes of subsection (1)(a), a person is taken to understand the information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(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.

For the purposes of this Act, a person who is assessing whether a person has decision‑making capacity in relation to a matter must take reasonable steps to conduct the assessment at a time at which, and in an environment in which, the person's decision‑making capacity can be assessed most accurately.

1. Section 8 of the GA Act sets out 'general principles' and includes:

(1) A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles -

(a) a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances -

(i) to make and participate in decisions affecting the person; and

(ii) to express the person's will and preferences; and

(iii) to develop the person's decision‑making capacity;

(b) the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;

(c) powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.

1. Section 30(2) of the GA Act provides that VCAT may only make a guardianship order or administration order about a person if satisfied that because of the person's disability they lack decision‑making capacity for the personal or financial matters in relation to which the guardianship or administration orders respectively are sought; that the person needs a guardian or administrator; and that the appointment of a guardian or administrator will promote their personal and social wellbeing.
2. Section 32(3) of the GA Act provides:

In determining whether a person is a suitable person to act as a guardian or administrator for a proposed represented person, VCAT must take into account the following -

(a) the will and preferences of the proposed represented person (so far as they can be ascertained);

(b) the desirability of preserving existing relationships that are important to the proposed represented person;

(c) the desirability of appointing a person who is a relative of the proposed represented person, or who has a personal relationship with the proposed represented person, rather than appointing a person with no such relationship;

(d) whether the person will be available to the proposed represented person and able to meet and communicate with the proposed represented person;

(e) whether the person will act cooperatively with any current guardian or administrator for the proposed represented person (as the case requires);

(f) whether, in the case of an administration order, the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act.

The evidence and submissions at the rehearing

1. A rehearing is permitted under pt 7 of the GA Act and div 4 of pt 8 of the POA Act. Both Acts give VCAT the power to confirm, vary, or set aside the original order, or to make a new order.
2. Gregory and Raye attended the rehearing in person, while Jillian attended via video conference from Sydney. Mr Madden appeared on behalf of the OPA.
3. The parties produced a vast number of documents for use on the application. For instance, Gregory's statement ran to 69 pages, and he produced 164 exhibits. It would serve no useful purpose to list all the documents (over 200) that were before the Vice President. In addition to the various powers of attorney, the significant documents with a precis of their contents were as follows:

(a) A medical report of Jillian dated 27 June 2022 (prepared using the VCAT medical report template in which Jillian is noted as completing the report in her capacity as 'Daughter, Clinical Psychologist' and which was referred to by the Vice President as 'not a formal "report"') and her submissions (usually in the form of statutory declarations) dated 11 August 2023, 8 April 2024 and 2 July 2024, with exhibits. Jillian argued that her mother lacked decision‑making capacity and asserted that, accordingly, any powers of attorney made in 2022 or 2023 were invalid. She did not support the appointment of a guardian but sought the appointment of an independent administrator.

(b) A statement of Gregory of 69 pages (with 164 exhibits) dated 17 April 2024 and a number of written submissions. Gregory argued that the February 2023 Power of Attorney was valid; and that the reports of Jillian, Dr Bennett, and Dr Bird were 'invalid, void and unlawful'. He submitted that neither an administrator nor a guardian should be appointed.

(c) A statement of Raye dated 17 April 2024, and several submissions. Raye supported Gregory's submissions.

(d) A report of Dr Bennett, Raye's general practitioner between 2007 and 2018. It is dated 19 July 2022 with printouts of Dr Bennett's patient summaries of December 2015 and May 2017.

In her report to VCAT, Dr Bennett noted that Raye had stopped driving in December 2014 due to impaired vision 'post CVA' and that her son Gregory started attending with her from 11 April 2017.

Dr Bennett described the diagnosis as one of vascular dementia diagnosed on 11 November 2014 which was progressive 'as vascular dementia declines with age'. She noted that in November 2014 Raye had cognitive impairment and made the following observation:

• On the date that Medical Power of Attorney was drawn up & dated 29/05/2016. Raye would have had some decision‑making capacity. Raye had a stroke in November 2014. An MRI Brain stated that as well as recent stroke had severe vascular ischemia of the brain. Raye's memory after this event was impaired. Raye declined to complete MMSE after not being able to answer first questions - orientation - incorrect - Day & month. a referral was made to Eastern Health. Cognitive Dementia & Memory Clinic but Raye DECLINED Appt. 17/5/2016.[2]

Dr Bennett could not opine as to Raye's current decision‑making capacity about her financial and property affairs but thought it unlikely and recommended contacting her current general practitioner. In her opinion:

• Raye was diagnosed with vascular dementia on 11/11/2014 following a stroke.
• as Raye declined to complete an MMSE - 30/3/2016 & declined to be assessed in a dementia clinic 17/5/2016.
• Her cognitive impairment was not able to be further assessed or quantified.
• as I have not seen Raye since 13/3/2018, I am not able to comment on her current health status.
• Her current GP (unknown to me) may be able to help with her current level of cognition.

Dr Bennett thought that at the time that the enduring power of attorney was made in June 2016, Raye probably understood the impact of making it.

(e) Reports of Dr Weng Lee Leong, Raye's general practitioner since November 2019 - dated 16 September 2022, 19 May 2023 and 5 September 2023. In her September 2022 report, Dr Leong noted that she had been the patient's medical practitioner since 11 November 2019 and that Raye usually attended her clinic with Gregory. She provided the following diagnosis: 'stroke in 2014 large ischemia distal left PCA area'. She reports that Raye is 'back to normal with perhaps some short term memory loss.' Dr Leong's opinion was that Raye 'has decision making capacity' and that '[s]he is able to understand and process information when explained in a clear, concise manner'. She noted Raye scored 25/30 on the mini mental test, and said that Raye was able to understand the impact of making an enduring power of attorney.

(f) Reports of Dr Boniface Chan, cardiologist, who treated Raye for heart failure between 2014 and 2019, dated 13 October 2014, 17 November 2014, 16 February 2015, 17 August 2015, 17 September 2015, 7 March 2016, 12 September 2016, 12 October 2017, 15 March 2018 and 18 March 2019. Dr Bennett referred Raye to Dr Chan, an interventional cardiologist, whom she saw between 2014 and 2018. His examinations primarily concerned her cardiac condition.

At his initial consultation he noted that she had engaged in both overseas and interstate travel but was suffering from apparent functional decline with incremental dyspnea. In November 2014, he referred her to Dr Graeme Gonzales, a neurologist. In his last report of March 2019, he noted that she had controlled right heart failure and had remained symptomatically stable and well.

(g) A report of Dr Sarah Rossiter dated 16 January 2015, clinical neuropsychologist, which refers to two assessments on 23 December 2014 and 16 January 2015. Dr Rossiter treated Raye shortly after her stroke. In her report she noted that Raye had identified changes to her short‑term memory and speed of processing information and had greater acceptance of the stroke. She noted that 'Raye demonstrated good insight into memory changes, reporting that salient and personally meaningful information was better encoded, but that she had trouble "consolidating" briefly presented or less meaningful information'. She noted that Raye had discontinued her involvement with the clinic, however at that time the assessment results from completed sessions suggested that her intellectual abilities were 'well preserved'. There was some compromise to medial memory structures important for encoding and storing new information and, '[a]lthough her stroke occurred on the left side, [Raye] appears to have difficulty storing and retrieving information bilaterally (e.g. both verbally and visually) suggesting it may have impacted memory structures on both sides'. She noted that the history did not indicate there was any decline in cognition prior to the stroke and therefore her memory changes were unlikely to be due to underlying neurodegenerative processes.

(h) A report of Dr Hayden Prime, radiologist, dated 11 November 2014. Dr Prime conducted an MRI and MRA of the brain on the day of the report. He concluded that there was a recent left PCA territory infarct with sparing of the occipital cortex, minimal haemorrhagic transformation and severe background ischemic changes in the brain stem and supratentorial brain.

(i) Reports of Dr Gonzales, neurologist and epileptologist, dated 20 November 2014 and 23 February 2015. Dr Chan asked him to examine Raye. In his report of 20 November 2014, he noted that at the time of his examination Raye had some amnesia, anomia, word recollection difficulties and non‑specific executive function impairment with partial visual impairment. On 23 February 2015, Dr Gonzales certified Raye as being fit to recover her private vehicle licence. He noted that she had sustained a large recent ischemic stroke.

(j) A report of Associate Professor Nicholas Brennan, geriatrician, dated 30 September 2015. Associate Professor Brennan examined Raye in September 2015 and considered that Raye had no residual deficits from her stroke and could not detect any significant field loss in her vision. He performed 'some cognitive testing' which was within normal limits and she scored 29/30 on the mini mental state examination. He could not detect any signs of progressive dementia but noted that 'historically there is some mild cognitive impairment which is probably related to a multi‑infarct state'. He doubted that the memory problems related to her posterior circulation infarct and noted that an MRI scan showed per‑ventricular white matter ischaemic change. He concluded: '[h]er memory should simply be kept under review and I would not treat with cognitive enhancement therapy, especially in the light of her episodic syncopal episodes and cardiac disease'.

(k) A note of Ms Elizabeth Barber, investigations team leader of the office of the OPA, who conducted a home visit with Raye on 13 April 2023. She described Raye as 'somewhat vague and repetitive'.

(l) Reports of Mr Madden, investigations officer of the OPA, dated 15 September 2022, 9 May 2023 and 30 January 2024 with exhibits.

(m) The report of Dr Bird dated 23 March 2023 and commissioned by Mr Madden of the OPA, details of which will be set out in a moment.

1. At the outset of the hearing, the Vice President summarised the procedural aspects of Jillian's application, noting that she (the Vice President) was engaged in a rehearing of the Senior Member's decision.[3] The Vice President then stated the process for taking evidence and the witnesses who would be called. She also observed that the material that had been filed should be 'taken as read'.[4]
2. Three witnesses then gave viva voce evidence:

(a) Dr Bird, who was cross‑examined by Gregory and Jillian;

(b) Mr Madden of the OPA, who was cross‑examined by Gregory and Jillian; and

(c) Gregory, who was cross‑examined by Jillian.

1. It is only necessary to refer to the evidence of Dr Bird who examined Raye on 22 February and 7 March 2023 and prepared a report dated 23 March 2023.
2. The Vice President summarised the contents of Dr Bird's report and evidence as follows (noting that RCF refers to Raye):

Dr Bird noted RCF's presentation indicated a significant amnestic syndrome with poor new learning, rapid forgetting of verbal information, and poor recall for recent and remote events. Dr Bird's opinion was that, due to her disability, RCF did not have decision‑making capacity for issues related to property, finances, legal affairs or personal matters, even with support. In Dr Bird's opinion RCF does not have capacity to make appointments of an EPA in relation to personal or financial matters. She noted that due to RCF's disability and dependence, she is at high risk of undue influence.

Dr Bird's opinion was that RCF meets the DSM‑5‑TR criteria for Major Neurocognitive Disorder due to vascular dementia of moderate severity. Noting that the course of vascular dementia is highly individual, Dr Bird predicted a stepwise decline over time, with periods of relative plateau in functioning.

Dr Bird specifically considered RCF's memory difficulties and deficits that interfere with her decision‑making abilities as follows:

1. She would be generally able to understand information relevant to most decisions and to appreciate the ultimate broad effects of decisions, however, her ability to exercise this understanding is significantly impacted by memory difficulties;
2. She has difficulty gathering together and remembering all of the information relevant to decisions;
3. She is able to generally engage in conversations around a decision but is likely to forget the content of the conversation as soon as the conversation lapses;
4. She has difficulty holding onto information long enough to assign weight to its relative importance when considering benefits and risks of a decision; and
5. She will have difficulty recalling and communicating the decision and will be unlikely to recall the reasoning process behind any decision.[5]

1. Dr Bird also expressed the opinion that Raye was 'unlikely to have had capacity to make appointments of an enduring power of attorney on 29 May 2016'. It was 'difficult to know' if Raye had decision‑making capacity to appoint a medical treatment decision maker on 12 July 2023, as it was 'unlikely that she had any significant recovery of memory functioning and probable that she had had subsequent deterioration due to underlying neuropathology'. Dr Bird said that Raye was diagnosed in 2014 with vascular dementia, which explained her memory impairment, which Dr Bird considered to be moderately severe. She thought that Raye did not have the capacity to make an enduring power of attorney on 7 February 2023 and that she was 'highly vulnerable to undue influence'.
2. Gregory (EMY in the Reasons) cross‑examined Dr Bird. The Vice President summarised Dr Bird's evidence in cross‑examination as follows:
   1. Dr Bird was questioned by EMY on the following themes:

RCF's informed consent

1. EMY cross‑examined Dr Bird, specifically testing her compliance with the AHPRA Code of Conduct and Australian Psychological Society Code of Ethics in respect to obtaining 'informed consent' from RCF prior to conducting her assessments. Specifically, Dr Bird was asked if she informed RCF about 'how information was collected'. Dr Bird's evidence was she was satisfied she complied with the Code of Conduct and Code of Ethics and that RCF gave informed consent.

Compliance with the expert evidence Practice Note

1. Dr Bird was also asked whether she had complied with the Tribunal Practice Note PNVCAT2 ‑ Expert Evidence, requiring her to provide all instructions defining the scope of the report. Dr Bird said she did, noting she attached her letter of instruction and a list of all the attachments (which numbered 327 pages) to her report. She agreed the first letter of referral from Mr Madden dated 26 October 2022 was not included, as she considered his letter dated 20 February 2023 as a new referral.
2. She also agreed she did not refer to a telephone call with Mr Madden dated 5 October 2022, stating that she could not recall the details of the conversation.
3. EMY put to Dr Bird that as she did not take RCF through the 327 pages of attachments, being the documents Dr Bird considered as per the list attached to her report, prior to her assessment, RCF did not give her informed consent. Dr Bird disagreed with that proposition.
4. It was put Dr Bird did not comply with the expert evidence Practice Note because she did not disclose her 'relationship with the OPA' as an expert. Dr Bird stated she received about 5 referrals from the OPA per year, over a fifteen‑year period. EMY put to her she had said that 'VCAT always accepted her recommendations' which Dr Bird denied, stating she has no such power and often has no knowledge of the outcome in cases after submitting her report. She estimated she had attended VCAT as a witness on approximately 8 - 10 occasions.
5. When asked about referrals for assessments from the OPA, Dr Bird stated she finds the proposed person has capacity 'about 20% of the time'.

Second assessment 7 March 2023

1. EMY asked Dr Bird questions about the second session with RCF on 7 March 2023. Dr Bird indicated she had no further memory beyond what was recorded in her report, however denied stating she wanted to schedule a third session with RCF as RCF did not want to participate in psychometric testing and to take it any further would be unethical. She did recall that EMY was 'very annoyed' that RCF had not done the testing.
2. EMY questioned why Dr Bird assessed testamentary capacity when it was not part of the Tribunal proceedings and asked if she understood the different thresholds for assessment of decision‑making and testamentary capacity. Dr Bird agreed with EMY that testamentary capacity was different to other decision‑making capacity and explained that often assessments regarding powers of attorney, guardianship and testamentary capacity are 'rolled into one assessment' so as to avoid the need for multiple assessments.
3. Dr Bird rejected the proposition put by EMY that she took a report by Dr Rossiter from RCF's handbag during the assessment, stating she was handed a bundle of documents by him.
4. EMY put a number of propositions to Dr Bird about conversations he had with her about RCF's demeanour during the second session, but Dr Bird did not recall those conversations. She did recall RCF asking 'why am I here', but not in an angry manner. She also recalled RCF expressing the concern '[EMY] will be disappointed with me' because she had forgotten some rehearsed answers.
5. Dr Bird stated she told RCF about the purpose of the assessment, stating that the referral questions provided by the OPA was the 'direct speech I would've used'.
6. Dr Bird was asked by EMY about an answer RCF gave in response to being asked to explain the meaning of an EPA, where she described it as 'giving someone legal permission to act for you when you can no longer act for yourself'. In her report Dr Bird stated RCF 'was unable to explain the enduring nature of an EPA.' EMY put to Dr Bird that RCF's explanation did in fact explain the meaning of an EPA. Dr Bird conceded, 'Perhaps. Maybe not completely, but perhaps... the difference between power of attorney and the enduring power of attorney is that the enduring power carries on after the capacity is lost, and so I would be seeking that as an answer from her.'
7. EMY asked why RCF was given a 'fact sheet' about EPAs, describing it as an 'ambush' because of her age‑related memory issues. Dr Bird stated it was to encourage people to have the 'best chance' to show they have capacity. She stated it is simply written information which remains on the table for people to refer to and gives people the best opportunity to respond to her questions and show they understand an EPA.
8. EMY asked how Dr Bird assessed RCF when she made no observations about her functional presentation, which he was best placed to describe. Dr Bird responded she tends not to give weight to materials provided by the parties to the dispute but that RCF's previous medical reports and the OPA report gave her a lot of information about RCF's functional abilities.
9. When asked by SBZ[6] about her familiarity with the Dementia Severity Rating Scale used by EMY to assess RCF, Dr Bird stated she does not use this scale often, and that it tends to be a test used more by geriatricians.

Other Doctor's assessments

1. EMY asked Dr Bird why she dismissed Dr Leong's 'mini mental test' of RCF's capacity in her report dated 16 September 2022, where she scored 25/30. Dr Bird stated she did not dismiss it but described it as 'fairly meaningless' as it can be achieved without someone remembering much at all. She went on to describe it as a 'dreadful test'. She stated those assessments take about 20 minutes and are used for screening but do not pinpoint what is wrong. Further, she noted it was not explained by Dr Leong how she arrived at her finding that RCF had decision‑making capacity.
2. EMY put to Dr Bird there was no diagnosis in 2014 of vascular dementia although referred to by Dr Bennett, and there is no medical report that contains that diagnosis. Dr Bird responded that did not fit with the information she had.[7]

The orders of the Vice President and those now sought to be appealed

1. The Vice President reserved her decision and, on 7 August 2024, made the following orders:[8]

ORDERS AND DECLARATIONS

Capacity

1. VCAT finds [Raye] does not have decision‑making capacity regarding financial, property, legal or personal matters.

Orders about the powers of attorney and other instruments

1. The enduring power of attorney, supportive power of attorney and enduring power of attorney (medical treatment) dated 29 May 2016 are not valid for failure to comply with section 33(1)(b) of the Powers of Attorney Act 2014 (Vic) ('POA Act').
2. The enduring power of attorney dated 19 September 2017 is valid but, pursuant to section 83(1) of the POA Act, as it relates to financial matters is suspended.
3. The enduring power of attorney dated 28 June/1 July 2022 is not valid for failure to comply with section 33(1)(b) of the POA Act.
4. The appointment of a medical treatment decision maker dated 12 June 2022 is not valid for failure to comply with section 28(1)(g) of the Medical Treatment Planning and Decisions Act 2016 (Vic).
5. The enduring power of attorney dated 7 February 2023 is not valid for failure to comply with section 23(1)(b) of the POA Act.

Appointment of a guardian

1. The application to appoint a guardian is dismissed as VCAT is not satisfied there is a need for a guardian at this time.

Appointment of administrators

1. Nelson Wong, Rucker Financial Group, Suite 1/1010 Doncaster Road, Doncaster East VIC 3109, is appointed administrator for [Raye] until the further hearing of this matter on 7 November 2024.
2. Noting the legislative intent of the Guardianship and Administration Act 2019 (Vic) that orders are limited to the extent possible, Mr Wong as administrator has the following restrictions:
3. Mr Wong is appointed as administrator for the purpose of auditing [Raye]'s financial accounts, namely all dealings, transactions and payments made to [Gregory] and [Jillian] for the period so far as her banking and financial records permit and provide a report to VCAT. Mr Wong is also required to include in the report advice as to the reasonable and appropriate amount that could be paid as a carer's payment.
4. Mr Wong's report is to be filed with VCAT by Friday 24 October 2024.
5. Mr Wong is entitled to be paid for the administration of the estate at the hourly rates quoted in his email of 15 June 2023. Mr Wong must send itemised invoices to VCAT for approval.
6. Each time the invoices are sent to VCAT, Mr Wong must send copies to [Gregory].
7. [Gregory] is to pay the invoices of Mr Wong within seven days of approval by VCAT, from [Raye]'s estate.
8. The administrator must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
9. [Gregory] is appointed administrator for [Raye] until the further hearing of this matter on 7 November 2024.
10. [Gregory] has power to make decisions about the following financial matters.
11. [Gregory] has powers given under the Guardianship and Administration Act 2019 section 46 to make decisions about the financial matters in relation to [Raye].
12. [Gregory]'s powers have these restrictions:

‑ [Gregory] is not to make any payments to himself as a carer;

‑ [Gregory] is not to sell (dispose of) any of [Raye]'s property,

‑ [Gregory] is not to make any gifts over $100;

‑ [Gregory] is not to make any loans.

1. [Gregory] must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
2. [Gregory] must complete and send to VCAT for approval a Financial Statement and Plan no later than Wednesday 28 August 2024.
3. [Gregory] must prepare an annual Account by Administrator ('ABA') for each financial year. The first ABA must be submitted for the accounting period 7 August 2024 to 30 June 2025 as soon as possible after that date and no later than 30 September 2025.
4. [Gregory] must submit all later ABA's

‑ For each financial year from 1 July to the following 30 June;

‑ As soon as possible after 30 June, and no later than 30 September each year.

1. [Gregory] is to provide a written report by email to [Jillian] of all [Raye]'s financial transactions on a fortnightly basis commencing 21 August 2024.
2. VCAT makes these decisions because it is satisfied that:

‑ Due to a disability [Raye] does not have capacity to make decisions about the personal and financial matters listed in this order.

‑ [Raye] needs an administrator considering the factors set out in section 31, including [Raye]'s will and preferences.

‑ These orders will promote [Raye]'s personal and social well‑being.

Reassessment of this order:

1. These administration orders will continue to have effect until VCAT makes further orders.
2. VCAT will reassess these administration orders on 7 November 2024 when the matter is listed for a directions hearing at 10:00am in person.

Other orders:

1. The application to identify parties to the proceeding is refused.
2. The application for a stay of these orders is refused.[9]

1. In terms of the POA Act, the effect of the extant, non‑challenged orders is that Jillian and Gregory remain the enduring attorneys under the September 2017 Power of Attorney. However, by s 83(1) the making of orders as to the administration of Raye's estate means that this power of attorney cannot be exercised for financial matters unless authorised by VCAT.
2. The result is that the substantive orders now challenged by Gregory are:

(a) the orders (orders 1 and 15-25) authorising Gregory to manage Raye's financial affairs, subject to the conditions set out in orders 17-24 ('the administration orders'); and

(b) order 4 holding that the June 2022 Power of Attorney was invalid due to incapacity.

1. The Vice President's reasons were delivered on 7 August 2024 and occupy some 50 pages. Her Honour commenced by setting out the history of Jillian's application, noting that under s 42(2) of the VCAT Act, the jurisdiction that was being exercised on the rehearing was original and not review jurisdiction. It was a hearing de novo.[10] The Vice President noted that there was 'no burden of proof on the parties, however the test of proof is the balance of probabilities'.[11]
2. The Vice President then set out the arguments advanced by Gregory, which included that:
   • there should be no auditing of Raye's finances;
   • the enduring power of attorney and supportive attorneys dated 29 May 2016 are void, but that the enduring power of attorney of 19 September 2017 is valid, as are all the other powers of attorney executed in his favour by Raye;
   • if Raye did not have capacity, then Jillian should be suspended as an attorney;
   • the reports of Jillian and Drs Bennett and Bird were 'invalid, void and unlawful'; and
   • if Dr Bird's assessment is invalid, void or unlawful, then the enduring power of attorney of 7 February 2023 should be found to be valid and enforced.[12]
3. The Vice President noted Raye's submissions - to the effect that VCAT should make the same findings requested by Gregory.[13]
4. Jillian's submissions were noted as follows:
   • that a guardian did not need to be appointed.
   • that she respected Raye's wishes to continue living at home with Gregory.
   • that the supportive power of attorney of 29 May 2016 with Gregory was still viable;
   • that Mr Wong be appointed as an independent administrator and conduct a forensic audit of Raye's finances.
   • that she believed Gregory had written and submitted numerous documents in his mother's name and that her mother's will had been changed on December 2021 with Gregory named as the sole executor and main beneficiary; and
   • that based on Dr Bird's assessment (remembering that Jillian is also a psychologist), she doubted whether her mother had the capacity to make the new will (executed in 2024).[14]
5. The Vice President also noted that she had received reports from Mr Madden of the OPA, which recommended that the orders made by Senior Member Steele should be affirmed.
6. The Vice President then identified the following issues for decision:
   • whether Raye had decision‑making capacity;
   • whether the May 2016 power of attorney, supportive power of attorney and enduring medical power of attorney were valid;
   • whether the July 2022 appointment of a medical treatment decision‑maker was valid;
   • whether the September 2017 enduring power of attorney was valid;
   • whether the June 2022 enduring power of attorney was valid;
   • whether the February 2023 enduring power of attorney was valid;
   • whether a guardian should be appointed for Raye; and
   • whether an administrator should be appointed for Raye.[15]
7. The Vice President then turned to the fundamental question on the application - Raye's decision‑making capacity over the years since 2014.
8. She summarised the evidence of Dr Bird, Mr Madden and Gregory and then noted that Raye had attended in person with Gregory and set out parts of their written submissions and witness statements.[16]
9. The Vice President then examined the evidence of a number of the treating medical practitioners: Dr Leong, Dr Bennett, Dr Rossiter, Dr Chan, Dr Prime, Dr Gonzales, and Associate Professor Brennan. She also noted Jillian's report, which she treated as a summary of Raye's medical records.[17]
10. Having carefully summarised the significant parts of the evidence before her, the Vice President then turned to her analysis of that material. She noted that Raye was clear (and Gregory supported this) that she did not have a disability, and if she did, it had not affected her decision‑making capacity.[18]
11. After referring to the decision in the Trial Division of this Court in LG v Melbourne Health,[19] the Vice President addressed the question of the authenticity and reliability of the documents filed by Raye. She noted that Gregory had typed the documents and after careful analysis concluded that there was a disconnect between the detailed statement and submissions by Raye and descriptions by an OPA officer of her as repetitive and vague. She noted in particular Dr Bird's observation of Raye that: 'she has an extremely poor understanding of the current VCAT process and is unable to represent herself or to provide instructions for others acting on her behalf'.[20]
12. After taking into account similarities between the statements and submissions of Gregory and Raye and the fact that Gregory typed Raye's letters, statements and submissions, and noting the complete agreement and repetition of the contents of the statements, Gregory's strong personal interest in maintaining the status quo, and Raye's dependence upon him, the Vice President was not convinced that the statements and submissions made by Raye expressed her own views. She was satisfied that Gregory's strong hand appeared in those statements and submissions. She therefore gave Raye's evidence less weight but did not discount it altogether. However, the Vice President accepted that Raye wished to live in her own home and wished for Gregory to remain as her carer.[21]
13. The Vice President then turned to the evidence of Mr Madden of the OPA. She noted that Gregory queried 'the independence and objectivity of the OPA'.[22] Having summarised the various criticisms made by Gregory of the OPA and addressing the evidence which supported the independence of the OPA, her Honour rejected the 'serious accusations levelled at Mr Madden concerning his independence and fairness', concluding the evidence did not support them.[23]
14. The Vice President rejected Gregory's assertion of conspiracies and collusion between Mr Madden and Dr Bird, concluding there was no evidence of improper conduct by the OPA staff, whilst acknowledging there may have been some errors in communication.[24] The Vice President rejected Gregory's submission that Mr Madden was Jillian's advocate.
15. The Vice President then summarised several mental state examinations which had been carried out since 2015 and noted the views of Dr Leong, Raye's treating general practitioner, which included his opinion that she:
    • was not confused;
    • was able to articulate her concerns and symptoms;
    • was able to understand management and treatment of medical conditions explained to her; and
    • can lip‑read, which addresses difficulties associated with her hearing impairment.[25]
16. Then the Vice President examined in detail the evidence given by Dr Bird and the various criticisms made of her opinion by Gregory. Part of this has already been referred to. She concluded, contrary to Gregory's submission, that Dr Bird had obtained Raye's informed consent for her examination.[26] She rejected Gregory's attacks on the expertise and independence of Dr Bird.[27] Her reasons for doing so are set out subsequently.
17. The Vice President then considered Dr Bird's diagnosis that Raye did not have decision‑making capacity and met the DSM‑5‑TR criteria for major neurocognitive disorder. She examined a number of the medical reports available to both Dr Bird and to VCAT. These included reports of several specialists: a report of Dr Prime (radiologist), who diagnosed vascular dementia as a result of a stroke in 2014; Dr Rossiter (clinical neuropsychologist) who noted 'some compromise to medial (midline) memory structures important for encoding and storage of new information' with bilateral impact on Raye's memory structures (verbal and visual) and ischaemic changes which 'may be additionally contributing to difficulties maintain[ing] attention and concentration'; and Dr Gonzales (neurologist), who opined that the stroke had left Raye with 'memory impairment, word recollection difficulties, anomia, and non‑specific executive function impairment'.[28] She also noted Associate Professor Brennan's report that, in September 2015, Raye's cognitive testing was within normal limits and that she had 'some mild cognitive impairment which is probably related to a multi‑infarct state'.[29]
18. The Vice President considered that the report of Dr Bennett (Raye's general practitioner from 2007 through to 2018), which covered the period before and after her stroke in 2014, was significant.[30] Gregory had attacked Dr Bennett's report as 'invalid, void and unlawful' because it was written more than four years after Raye last saw Dr Bennett and 'contain[ed] false statements of fact and lacked evidence on substantive issues'.[31] The Vice President rejected this submission and gave significant weight to Dr Bennett's opinion. She was satisfied that the diagnosis of vascular dementia in 2014 was properly made particularly as it was consistent with the expert opinions of Drs Prime, Gonzales and Rossiter.[32]
19. The Vice President then returned to Dr Bird's assessment of Raye, which was the result of two examinations conducted in February and March 2023. She noted that Dr Bird was a qualified neuropsychologist with significant experience in assessing decision‑making capacity, and that her qualifications and experience were not in issue. In her report and in cross‑examination, Dr Bird maintained that the appropriate diagnosis was one of vascular dementia, which was consistent with the medical material that had been provided (and particularly that of Dr Prime).[33]
20. The Vice President then turned to her conclusion as to Raye's decision‑making capacity, noting that there was a presumption that a person had decision‑making capacity unless there was evidence to the contrary.[34]
21. She took into account the evidence of Gregory and Raye (notwithstanding her reservations as to the quality of Raye's evidence), as well as the fact that a couple of justices of the peace had certified that Raye was capable of making her own decisions when witnessing the respective powers of attorney. She noted that no evidence was adduced as to how these gentlemen reached that conclusion.[35]
22. The Vice President accepted the evidence of Ms Barber of the OPA based on her home visit, in which Ms Barber described Raye as repetitive and vague.[36]
23. The Vice President noted particularly Raye's non‑participation in neuropsychological assessment and testing over the years, and particularly between September 2015 and 2022 when Dr Leong complete the MMSE and Dr Bird's report in 2023.[37]
24. Having conducted this comprehensive analysis of the medical evidence and Dr Bird's opinion, the Vice President concluded:
    1. I prefer Dr Bird's report given her expertise as a neuropsychologist, over Dr Leong, who is a GP who conducted a mental state assessment of [Raye] ... Dr Bird's assessment of [Raye] is the most recent and her report is more comprehensive in nature.
    2. I find she is an independent expert. I also had the benefit of hearing Dr Bird's evidence which was tested at the rehearing and give her evidence greater weight.
    3. Taking all the evidence, both lay and expert, into account, on the balance of probabilities, I accept Dr Bird's diagnosis that [Raye] has a disability and does not have decision‑making capacity. I find there is evidence to the contrary to displace the presumption of capacity, namely Dr Bird's assessment of [Raye] and the medical reports provided which indicate that [Raye] meets the DSM‑5‑TR criteria for Major Neurocognitive Disorder due to vascular dementia of moderate severity. I find [Raye] has a disability under section 3 of the GA Act, namely dementia. In considering its impact on [Raye]'s decision‑making capacity, I find [Raye] is not able to comply with the requirements of section 5(b), (c) and (d) of the GA Act and does not have decision‑making capacity with respect to property, financial, legal and personal matters. There is a causal relationship between [Raye]'s disability and her lack of decision‑making capacity.[38]
25. Having reached that conclusion, and after setting out the relevant provisions of the POA Act (ss 4(1), 23, 33, 116 and 118), the Vice President reached the following conclusions as to the various powers of attorney:
    • That the May 2016 enduring power of attorney and supportive power of attorney both failed - not because of incapacity but because of Gregory's uncontradicted evidence that there were not two witnesses present at the time of execution, which rendered the power of attorney invalid.[39] The Vice President also concluded that, notwithstanding Dr Bird's opinion that it was 'unlikely' that Raye had decision‑making capacity in May 2016, this was contradicted by Associate Professor Brennan's opinion in September 2015. The Vice President noted that there was no evidence of Raye's deterioration prior to May 2016.[40] Accordingly, she could not be satisfied that the presumption of capacity was displaced in relation to this power of attorney.[41]
    • The enduring medical power of attorney of 29 May 2016 was invalid as it also failed to comply with the requirement that two witnesses be present.[42]
    • Given Associate Professor Brennan's opinion, the September 2017 Power of Attorney was valid - Raye had capacity and the procedural requirements of the POA Act were satisfied.[43]
    • That the June 2022 Power of Attorney was not valid as there were irregularities with its execution.[44]
    • That the February 2023 Power of Attorney was invalid as Raye did not have the requisite capacity to enact it, based upon Dr Bird's diagnosis.[45]
26. And then the Vice President said:
    1. After considering the validity of the EPAs I find the EPA dated 19 September 2017 is still valid.
    2. Although I find on the evidence [Raye] lacked the requisite capacity to execute the 2023 EPA, in my view there is no evidence her memory had significantly deteriorated to the same extent in 2017, thus the presumption of capacity is not displaced.
    3. The names of the attorneys are [Gregory] and [Jillian] and the terms of this appointment are as follows:
    4. The EPOA authorises 'my attorney to do anything on my behalf that I can lawfully do by an attorney (including both personal and financial matters)' and notes they act as 'several' attorneys, meaning that each attorney must make decisions separately. There is no start date nominated and no conditions.[46]
27. The Vice President then made findings in relation to the guardianship of Raye, which are not challenged on this appeal.[47]
28. The Vice President addressed the final issue: whether an administrator should be appointed. She noted the position taken by each of the parties - namely that Gregory and Raye opposed this step, and that Jillian sought the appointment of an administrator.[48]
29. Based upon the reports of Mr Madden and Dr Bird, the Vice President concluded:
    1. The Tribunal can only appoint an administrator if satisfied because of their disability the person does not have decision‑making capacity about financial matters in relation to which an order is sought and that the person needs an administrator. Further, the Tribunal must be satisfied that the administration order will promote the person's personal and social wellbeing.

...

1. There has been no indication of the attorneys' willingness to work together in the future. [Jillian]'s cross‑examination of [Gregory] at the rehearing revealed the deep and historical conflict between them about [Raye]'s financial affairs.
2. I have formed the view both attorneys have potential conflicts of interest regarding [Raye]'s financial assets.
3. I have found the 9 September 2017 EPA to be valid but under section 83(1) of the POA Act suspend it for financial matters. As the remaining part of the EPA is valid, this will assist to preserve [Raye]'s existing relationships with [Gregory] and [Jillian].
4. I note that [Gregory] has been managing and/or assisting to manage [Raye]'s financial affairs for a number of years with regards to day to day living.
5. I therefore propose to make two administration orders under section 30(1)(a)(ii).
6. The first is to appoint Nelson Wong, accountant, as an administrator with limited powers until the further hearing of this matter on 7 November 2024.
7. Mr Wong is appointed as administrator for the purpose of auditing [Raye]'s financial accounts, namely all dealings, transactions and payments made to [Gregory] and [Jillian] for the period so far as her banking and financial records permit, and provide a report to VCAT. Mr Wong is also required to include in the report advice as to the reasonable and appropriate amount that could be paid as a carer's payment.[49]

1. The Vice President then set out the details of the appointment of the administrators, which are reflected in the orders made by her Honour and which we will return to later. Then, finally, the Vice President rejected Gregory's application to publish the names of the parties and to stay her orders.[50]
2. These orders were varied in December 2024 as we set out at [28]-[29] above.

Background to this application for leave to appeal the VCAT orders

1. In the months preceding the hearing of this application, Gregory attempted to file numerous documents with the Court that were not in evidence before VCAT. He was reminded, by email, of the nature of his application for leave to appeal and that the Court would only receive and review the material before VCAT and the transcript of that hearing.
2. At the hearing before us, Raye and Gregory attended in person, and senior counsel represented Jillian. At our request (and prior to the Court being advised that Jillian was represented), we arranged for an amicus curiae to assist the Court, given the lack of representation at that point in time. We record our thanks to Ms Amanda Burnard of counsel for her extremely helpful and thorough written and oral submissions.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

...

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

1. The legislative policy underlying these provisions is that 'VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal'.[51] And '[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal'.[52]
2. A decision of VCAT cannot be overturned by a court, unless there is a vitiating error of law. Recently in this Court, in Sandbach v Victorian Legal Services Commissioner,[53] it was said, of an application for leave to appeal and appeal under s 148:

First, pursuant to s 14C of the Supreme Court Act 1986, this Court can only grant an application for leave to appeal from VCAT if it is satisfied that the appeal has a real prospect of success. Thus an applicant may only be granted leave to appeal if this Court is satisfied that the appeal has real (as opposed to fanciful) prospects of success; even if the Court is so satisfied, there remains a residual discretion to refuse leave.

Second, under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), this Court's jurisdiction is limited to the resolution of questions of law. Such a limitation has been said to impose a 'significant constraint' upon the role of the Court in reviewing the decision and reasons of an administrative tribunal. This Court summarised the principles in Secretary to Department of Justice and Regulation v OUX (a pseudonym) ('OUX'):

• This 'practical as well as principled restraint' means that the Court 'will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts'. Hence, the reasons of the Tribunal for the decision under review 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. The reality is 'that the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'.

Third, identification of a question of law is critical. As was put by Garde AJA (with whom Tate and Kyrou JJA agreed) in Patsuris v Gippsland and Southern Rural Water Corporation:

• Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.
• The 'question of law' requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.

Fourth, the primary question for this Court when investigating whether an administrative tribunal has made a legal error in making a finding of fact or drawing an inference from facts is whether 'it was open to the Tribunal to conclude as it did on the evidence'. As was further explained in Karakatsanis v Racing Victoria Ltd ('Karakatsanis'):

• If it was so open then the Tribunal did not commit an error of law in reaching the conclusion that it did, albeit that it may (or may not) have erred on the facts. The appeal was not concerned with the weight of the evidence insofar as that bore upon the assessment of the relative weight of competing considerations. It was concerned with the question of whether the Tribunal's conclusion was properly open to it.

Fifth, where the Tribunal's identification and application of the appropriate statutory provisions is impugned, it must be satisfied that the Tribunal did other than apply the correct terms of the section before this Court will interfere with the decision. The following statement of Smith J (with whom Adam J agreed) in Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works, which has subsequently been applied to VCAT, is apposite:

• [T]he appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

Finally, the Tribunal's task is to resolve the issues that have been presented to it by the parties. It has been said that an appeal court must 'recognise the forensic realities of the way in which the case was put to the Tribunal', which will inform the way that a tribunal responds in its reasons. This consideration is particularly relevant where there is a challenge to the sufficiency of the decision‑maker's reasons.

The applicants' questions of law and the proposed grounds of appeal

1. The applicants identified the following questions of law in their application for leave to appeal

Questions of law on which the appeal is brought or proposed to be brought

1. Question 1. Did VCAT err in law by reaching conclusions or findings not open or reasonably open to VCAT on the evidence or the facts?
2. Question 2. Did VCAT err in law by misconstruing statutes, rules or documents?
3. Question 3. Did VCAT err in law by denying Appellants procedural fairness and natural justice?
4. Question 4. Did VCAT err in law by reaching conclusions or findings which are illogical and not supported by the facts or supported on logical grounds?
5. Question 5. Did VCAT err in law by not providing sufficient or adequate reasons and failing to address in its reasons submissions that were worthy of consideration and were seriously advanced?
6. Question 6. Did VCAT err in law by denying Appellant [Raye] her human rights?
7. Question 7. Did VCAT err in law by failing to dismiss the case or exclude evidence where the impartial functions of VCAT were directly corrupted by fraud on the court?

1. The proposed grounds of appeal mirrored the questions of law and need not be set out.
2. There were written submissions filed and purportedly signed by both Gregory and Raye in support of the application for leave to appeal. It was not at all apparent to us, however, that the submissions apparently made by Raye were necessarily made of her own volition. Gregory acknowledged before VCAT that he typed (or, in some places, wrote) the submissions. The Vice President noted that Raye's voice in the submissions was a replica of Gregory's. The same holds good on this application. Notwithstanding these reservations, we have treated the submissions as being made on behalf of both.
3. Although the applicants' application for leave to appeal contains seven proposed grounds (and multiple sub‑grounds), in their oral submissions, they relied on two primary propositions. First, that the Vice President should not have accepted the report and evidence of Dr Bird: it was tainted by a lack of informed consent on the part of Raye and was inconsistent with other reports; therefore, to use Gregory's words, it was 'unlawful and null and void'. If that was accepted, then the 2022 power of attorney was valid, and Gregory alone held that power. Second, the Vice President, in her reasons, failed to apply the provisions of the Charter in making the administration orders. We will address these two propositions, and then briefly address the other contentions in the applicants' written case, most of which do not raise a requisite question of law.

The first argument: Was it open to the Vice-President to accept the evidence of Dr Bird and hold that the February 2023 power of attorney was invalid?

1. The substance of Dr Bird's evidence is set out at [41]-[43] above.
2. As just mentioned, the primary point Gregory made at both VCAT and before this Court was the asserted failure by Dr Bird to obtain informed consent from Raye.
3. Dr Bird, it might be recalled, gave evidence on two separate occasions - first before Senior Member Steele and then before the Vice President on the rehearing.
4. During Gregory's cross-examination of Dr Bird before Senior Member Steele, it emerged that Dr Bird had not told Raye either before or at the time of the consultations about the contents of the letters of referral to her from Mr Madden of the OPA and the attachments to those letters. Nor, according to the applicants, had Dr Bird told Raye how the information obtained from Raye would be collected.
5. Before this Court, the applicants contended that the failure to do so meant that Dr Bird had acted contrary to Part A.3 (Informed Consent) of the Australian Psychological Society ('APS') Code of Ethics ('the Code'). This failure, so they argued, was fatal to the reception in evidence of Dr Bird's report, which underpinned the orders made by VCAT.
6. It was accepted that Dr Bird was a member of the APS and that the Code 'commits members to comply with the ethical standards of the codes and the rules and procedures used to enforce them'.[54] Within the Code, 'clients' are defined as 'a party or parties to a psychological service involving teaching, supervision, research or professional practice in psychology.' Under the heading 'A.3. Informed Consent':

A.3.1. Psychologists fully inform clients regarding the psychological services they intend to provide, unless an explicit exception has been agreed upon in advance, or it is not reasonably possible to obtain informed consent.

A.3.2. Psychologists provide information using plain language.

A.3.3. Psychologists ensure consent is informed by:

(a) explaining the nature and purpose of the procedures they intend using;

(b) clarifying the reasonably foreseeable risks, adverse effects, and possible disadvantages of the procedures they intend using;

(c) explaining how information will be collected and recorded;

(d) explaining how, where, and for how long, information will be stored, and who will have access to the stored information;

(e) advising clients that they may participate, may decline to participate, or may withdraw from methods or procedures proposed to them;

(f) explaining to clients what the reasonably foreseeable consequences would be if they decline to participate or withdraw from the proposed procedures;

(g) clarifying the frequency, expected duration, financial and administrative basis of any psychological services that will be provided;

(h) explaining confidentiality and limits to confidentiality (see standard A.5.);

(i) making clear, where necessary, the conditions under which the psychological services may be terminated; and

(j) providing any other relevant information.

A.3.4. Psychologists obtain consent from clients to provide a psychological service unless consent is not required because:

(a) rendering the service without consent is permitted by law; or

(b) a National Health and Medical Research Council (NHMRC) or other appropriate ethics committee has waived the requirement in respect of research.

1. The Vice President's reasons for rejecting Gregory's submissions concerning the admission of Dr Bird's report based on a failure to obtain Raye's informed consent were as follows (RCF refers to Raye and EMY to Gregory):
   1. Dr Bird, clinical neuropsychologist, has conducted an assessment of RCF's capacity and provided conclusions in her report dated 23 March 2023. Although Dr Leong's report is more recent, dated September 2023, it effectively repeats a paragraph from her second report dated 19 May 2023 and the remainder of the content explains the circumstances in which the mini mental state examination was conducted on RCF in 2022. This makes Dr Bird's assessment (as opposed to the date of her report) the most recent for my consideration.
   2. EMY and RCF have questioned the validity of Dr Bird's report on a number of bases.
   3. The first is on the grounds that Dr Bird did not obtain RCF's informed consent. At the outset I note RCF's 'consent' to Dr Bird's assessment is modified to an extent by the fact she was directed to attend the assessment by the Tribunal order dated 13 February 2023.
   4. RCF's statement dated 17 April 2024 notes 'I attended only because I was ordered to do so. I did not consent to the neuropsychological assessment.' The issue of consent and the information provided to Dr Bird by Mr Madden's referral were front and centre issues for EMY and RCF.
   5. RCF wrote three letters to Mr Madden, dated 6 October, 30 December 2022 and 6 March 2023. In these letters she raised the following issues:

• She does not give informed consent for Dr Bird's assessment;

• She is concerned about the 'ongoing' relationship between the OPA and Dr Bird;

• She is concerned the assessment by Dr Bird would go beyond an assessment of cognitive function and capacity and would instead be a 'medi‑legal' assessment;

• She is concerned that the referral and report would be secret, that Dr Bird might interview other people, and that the expert evidence Practice Note states the assessor has a paramount duty to the Tribunal and not to her;

• She is concerned the conditions of consent for her to be assessed by Dr Bird had not been fulfilled, noting information withheld from her regarding the nature and purpose of the procedures which will be used, the risks in the procedures, the information which will be collected and from whom, and the consequences 'if I decline to participate';

• She is concerned the assessment is contrary to the Australian Psychological Society Code of Ethics; and

• She is concerned about information Mr Madden provided to Dr Bird in the referral letter, including the diagnosis of vascular dementia. She denied this diagnosis stating SBZ 'made it up' and had 'manipulated Dr Bennett into writing a misleading report supporting [SBZ]'s position'.

1. After RCF wrote to Mr Madden advising she had decided not to attend the assessment with Dr Bird, at a hearing on 13 February 2023, the Tribunal made an order directing RCF to attend a neuropsychological assessment with Dr Bird to be arranged by the OPA.

2. EMY submitted neither the first or second referral by Mr Madden to Dr Bird were provided to RCF prior to the first assessment on 22 February 2022, 'so that my mother was not informed about the purpose of the assessment or the information collected. My mother could not give informed consent for the assessment.'

3. In his statement dated 17 April 2024 EMY queries how Dr Bird had the time to go through the questions, proffering that she either did not go through the questions, or '...went through at such a speed to overwhelm my mother. In either case, my mother could not give informed consent, which makes the assessment unlawful.' Further, she did not take RCF through the 300+ pages of materials she was provided with prior to the assessment.

4. EMY referred to the case of LG v Melbourne Health, where the assessor, a clinical neuropsychologist, agreed in cross‑examination they did not explain to LG that LG's answers could be used as evidence in a VCAT application, nor the purpose of the assessment.

5. This case is very different. RCF's letters to Mr Madden demonstrate, so far as they can be attributed as her views, she was well aware that the purpose of the assessment was for use at the Tribunal hearing.

6. Dr Bird's report indicates her first assessment of RCF concluded after one hour as she was tired. At the second assessment, RCF was able to effectively communicate to Dr Bird her reluctance to engage in formal psychometric testing, a position fully respected by Dr Bird. I am satisfied section 6 of the GA Act was met and that the assessment took place in an environment which allowed Dr Bird to most accurately assess RCF's decision‑making capacity.

7. Dr Bird detailed in her report, at section 4.1, the information she advised RCF. This included:

8. the purpose of the assessment (as described in section 3 of in this report);

9. that she could cease participation at any time;

10. that the assessment would take around 2 hours, with the opportunity for breaks as needed;

11. the content of the assessment, including questions about her life and opinion as well as a series of short tests to discover her strengths and any difficulties;

12. that a report of the assessment would be sent to the Office of the Public [Advocate] and may be used in VCAT proceedings;

13. her relationship with me was not therapeutic, and any information she revealed during the assessment would likely be included in the report of assessment; and

14. storage of her neuropsychology file and limits of confidentiality.

15. Under 'purpose of the assessment' there is a reference to section 3 of the report, which is the 13 questions Dr Bird was asked to answer in the assessment by Mr Madden. These were also given to RCF. In her report, and in her evidence under cross‑examination, Dr Bird stated she believed she received RCF's informed consent.

16. Dr Bird has provided accurate, detailed and relevant information to RCF. She has documented this and been cross‑examined. I accept her evidence.

17. RCF has clearly put her position to Mr Madden prior to Dr Bird's assessments that she has not given informed consent, and this is a position she and EMY have continued to agitate.

18. I am satisfied the evidence supports [the] finding that Dr Bird obtained RCF's informed consent.[55]

1. Gregory argued that Dr Bird's report was 'unlawful and void; accepting and relying on the report was an error in law'. He asserted that the Code required a psychologist to ensure informed consent, as confirmed by Richards J in LG.[56]
2. The thrust of Gregory's argument in this Court appears to be that, under clause A.3.3.(c) of the Code, a psychologist must ensure consent is informed by explaining how information will be collected. Gregory noted that, under cross‑examination at the hearing before the Senior Member in May 2023, Dr Bird confirmed that she had only advised Raye of the matters identified at paragraphs (a) to (g) of her report[57] and did not explain to her how the information would be collected nor what other information she had accessed for the assessment.
3. Gregory also relied upon an alleged breach of clause A.3.3.(f) of the Code, which requires a psychologist to ensure consent is informed by explaining to clients what the reasonably foreseeable consequences would be if they decline to participate or withdraw from the proposed procedures. At the May 2023 hearing, Dr Bird confirmed that she did not have that discussion with Raye.
4. Gregory submitted that, as Dr Bird knew that Raye had impaired or limited capacity, it was necessary to obtain his consent or that of anyone else with the legal authority to act on behalf of Raye. Dr Bird confirmed she did not seek Gregory's consent.
5. As we will now explain, the applicants' arguments regarding informed consent are misconceived for a number of reasons; however, there is some force in their complaint about the timely provision of the OPA's referral letters and attachments ('the referral material') to Dr Bird. This error, however, was of no consequence.
6. We accept that, in principle, informed consent is necessary in a therapeutic setting in which a patient is the subject of a proposed course of treatment or an operative procedure. A medical practitioner is obliged to provide the patient with 'all the relevant information' for the patient to understand the material risks associated with the treatment or procedure and then be in a position to make an informed decision as to whether to undertake the proposed treatment or procedure.[58] This principle had, however, little or no application in this case.
7. First, Raye had refused to make herself available for independent neuropsychological testing. The applicants forcefully maintained that she should not be required to do so.
8. A VCAT member determined in February 2023 that this was not good enough. As the Vice President observed, Dr Bird was performing a task assigned to her by the OPA pursuant to an order of a VCAT member requiring Raye to undergo neuropsychological testing. That order is set out at [18] above.
9. The question of Raye's cognitive functioning was central to the questions VCAT had to resolve, and thus the order was made that Raye submit to neuropsychological testing. In such circumstances, and despite the broad definitions within the Code, Raye was not a 'client' of Dr Bird. She was not being seen for any therapeutic reason. She had not engaged Dr Bird to treat her. She attended Dr Bird for examination because she had been directed to do so by VCAT and solely to assist VCAT in assessing her mental acuity and determining whether guardianship and/or administration orders should be made.
10. While it may be true to say that Raye was the subject of an assessment to be made in Dr Bird's professional practice in psychology, as we have said, Raye was not seeking Dr Bird's professional advice or opinion. Rather, the OPA referred Raye to Dr Bird for an opinion on Raye's cognitive capacity, so as to provide the Tribunal with relevant information on an issue critical to its decision. In these circumstances, Raye could not be considered a 'client' of Dr Bird, within the meaning of the Code.
11. Further, contrary to the applicants' submission, LG does not stand for the proposition that failing to obtain consent will render a neuropsychological report inadmissible. In that case, Richards J was merely stating that, in the circumstances of the case and in a situation where the Tribunal had not given reasons for rejecting the contention, the argument as to admissibility was 'worthy of consideration'.[59] In this case, however, the applicants' submission was considered by the Vice President, who, correctly, distinguished LG.[60]
12. Moreover, as the Vice President noted, in contrast to the facts in LG: 'RCF's letters to Mr Madden demonstrate that, so far as they can be attributed to her views, she was well aware that the purpose of the assessment was for use at the Tribunal hearing'. Further, at the commencement of the consultation, Dr Bird explained to Raye the nature of the testing that she proposed to undertake as well as how the results might be used.[61]
13. Assuming Raye had the ability to understand what Dr Bird was saying, we do not doubt that the Vice President was correct in concluding that, in the circumstances, Dr Bird's disclosures to Raye and her acquiescence to the examination and testing constituted appropriate consent from Raye to participate in the examination and undergo Dr Bird's testing.
14. Further, the failure to disclose to Raye the existence and content of the referral material is irrelevant to the question of informed consent. The sole question on this issue (if it is relevant) is that of adequate disclosure of the proposed form of examination and testing to be undertaken by Dr Bird - and there was such disclosure.
15. Finally, it is clear that the referral material was not provided to the applicants before Raye met with Dr Bird - despite Gregory's requests for it before that appointment. However, there was no obligation on Dr Bird, VCAT, or the OPA to supply this material prior to the consultation. At the February 2023 hearing (which resulted in the February order), there was considerable discussion as to how the report and the referral material would be provided to the parties. The result was that the Senior Member said, 'I'll make sure the report is released and all the attachments, so you don't have to contact VCAT and request it in the usual way'. This, as the Senior Member noted, was a departure from the 'usual way' parties request material from VCAT.
16. In an adversarial curial proceeding, r 44.03(1) of the Supreme Court (General Civil Procedure) Rules 2015[62] would have mandated that a party supply the referral material to their opponent if they proposed to rely upon the report at trial. This was not, however, required in VCAT proceedings. The relevant question in the present context is, however, one of fairness, not informed consent.
17. It is difficult to determine precisely when the applicants became aware of the contents of the referral material. As best as we can determine, the situation is as follows: the first referral letter was emailed by VCAT to Gregory at 3:50 pm on 22 February 2023, following Dr Bird's initial examination. It identified the accompanying referral material but did not provide the attachments. It then appears that VCAT emailed a copy of Dr Bird's report to the applicants on 10 May 2023. The second referral letter is appended to Dr Bird's report. This report listed the 32 documents that she had read and considered - these had also been forwarded as attachments to the second referral. However, the email to the applicants did not include the attachments to that referral.[63]
18. It does not appear that the attachments have been sent to the applicants by either VCAT or the OPA since then. As Mr Madden pointed out when cross‑examined by Gregory, these documents were substantial and could be accessed via the VCAT file to which the applicants had access. Gregory, who was highly experienced in navigating the VCAT file, was able to access those documents.
19. Therefore, the referral letters were in the applicants' possession or accessible a year before the July 2024 VCAT hearing. It is unquestionably unfortunate that there was not greater coordination between the OPA and VCAT as to the provision of the attachments to the applicants at the time that Dr Bird's report was provided. However, the attachments were identified in the referral letters, and Gregory could access those documents.
20. It follows that any irregularity (and any alleged consequent unfairness) was cured by the fact that the referral material in its entirety was available to the applicants well before the rehearing. Armed with this material, Gregory was able to cross‑examine Dr Bird as he saw fit.
21. In summary, the applicants' complaint about the failure to provide the referral material before the consultation is ill‑founded. Any timing issue associated with the provision of the referral letters subsequent to the examinations was remedied, and there was no unfairness to the applicants.
22. The other issue raised by the applicants (absent the informed consent point) relates generally to the Vice President's acceptance of Dr Bird's opinion - whether it was open to the Vice President to rely upon it in making the orders under the GA Act.
23. Dr Bird's report and opinion was properly admitted into evidence by the Vice President. It was contemporaneous and relevant - indeed, it went to the very heart of the controversy that had to be determined.
24. It is clear that there were conflicting opinions as to Raye's mental acuity between 2015 and 2024. The opinion of Dr Bird generally conforms with that of Dr Bennett, Raye's general practitioner between 2010 and 2018. Dr Bennett's diagnosis of vascular dementia was consistent with the MRI study carried out in 2014, after Raye's stroke. She opined that it was unlikely that Raye had decision-making capacity, but noted that she had not seen her for over four years.
25. On the other hand, Associate Professor Brennan, who performed limited cognitive testing in 2015, thought that, at that time, Raye's cognitive testing was normal. Dr Leong, Raye's general practitioner since 2019, expressed the opinion in 2023 and 2024 that Raye had decision-making capacity.
26. The Vice President had to resolve this apparent conflict. The rules of evidence did not bind her, and she could inform herself as she saw fit.[64] It was for her to determine which parts of the evidence she accepted or rejected, and the weight she attached to particular pieces of evidence.
27. In any event, the Vice President did not accept the entirety of Dr Bird's opinion. She accepted (contrary to Dr Bird's view) that Raye had decision‑making capacity in 2017 and therefore the September 2017 Power of Attorney was valid. No doubt this was influenced by her acceptance of Associate Professor Brennan's opinion. However, by 2023, that was not the position - as demonstrated by Dr Bird's opinion - which the Vice President accepted. In consequence, the Vice President determined that, as of February 2023, Raye lacked decision‑making capacity.
28. The result is that the Vice President did what VCAT is authorised to do: make a decision based on the evidence presented to it. There was nothing unreasonable or irrational about her analysis of the evidence. The applicants' complaint raises no question of law. This argument fails.

The second argument: Did the Vice President comply with the provisions of the Charter?

1. The applicants allege that the Vice President erred in law by failing to comply with the provisions of the Charter in making the administration orders under the GA Act.
2. Subsections 38(1) and (2) of the Charter read as follows:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

1. In Thompson v Minogue,[65] this Court said the following about s 38(1):

Section 38(1) of the Charter has two limbs: a procedural limb and a substantive limb. The procedural limb requires public authorities, when making a decision, to give proper consideration to a relevant human right, whereas the substantive limb requires public authorities to act in a way that is compatible with a human right. The procedural limb applies to the making of a decision, whereas the substantive limb applies to an act. As the distinction between an act and a decision is not material for present purposes, in the analysis that follows, we will use the term 'conduct' to describe both an act and a decision.[66]

1. Whilst there were scattered references to 'human rights' in the voluminous submissions filed by the applicants at VCAT, it was not at all clear on the rehearing before the Vice President exactly which provisions of the Charter the applicants alleged had been infringed.
2. For instance, in his submissions of 9 August 2023, Gregory asserted that a fair hearing was denied at the original VCAT hearing before Senior Member Steele by reason of her conducting the hearing by videolink.
3. In his submissions dated 17 April 2024, Gregory reiterated his submission that Dr Bird's assessment was 'invalid, void and unlawful and cannot be accepted into evidence because':
   1. The assessment violates my mother's human rights. Mr Madden and VCAT failed to provide the referrals as directed by Senior Member Preuss.
4. Raye's submissions dated 17 April 2024 were substantially identical to those of Gregory of the same date, including with respect to Dr Bird's assessment being a violation of 'my human rights'. Her submissions regarding violations of 'my human rights' in respect of the appointment of an administrator were in virtually identical terms to those used by Gregory in the relevant paragraphs of his August 2023 submissions, including the following:
   1. There is no existing problem or anticipated problem that justifies appointing an administrator for my mother's property or finances, even if limited in scope. Against her will, my mother would be forced to pay for the administrator, a taking of her property. This would be a violation of her human rights.
   2. If State Trustees were appointed administrator, they might take a fee based on my mother's assets and income. Such a fee would be far in excess of any reasonable compensation for work actually performed, a taking of my mother's property. I strongly oppose appointing State Trustees as my mother's administrator. Doing so would be a violation of my mother's human rights.
5. In contrast to the way in which the argument was put before the Vice President, in their written case on this application in this Court, the applicants identified which of Raye's rights under the Charter they said were engaged and should have been addressed by the Vice President, as follows:

(a) her right to recognition and equality before the law: s 8;

(b) her right to freedom of movement: s 12;

(c) her property rights - a person must not be deprived of that person's property other than in accordance with law: s 20; and

(d) her right to a fair hearing: s 24.

1. Section 4(1)(j) of the Charter provides that 'a court or tribunal except when it is acting in an administrative capacity' does not fall within the definition of a public authority governed by the provisions of the Charter. Accordingly, depending on the nature of the application before it, VCAT may, at times, act in an administrative capacity and therefore be subject to the Charter's provisions.[67] In Patrick's case, Bell J held that VCAT acted administratively when appointing a guardian or administrator under the Guardianship and Administration Act 1986[68] - the precursor to the GA Act.
2. In this Court, it was not disputed that the provisions of the Charter applied to this application. It follows that VCAT, when considering the application before it, was obliged to consider Raye's relevant human rights (the procedural limb) and to ensure that the administration orders were compatible with Raye's human rights (the substantive limb) under s 38 of the Charter.
3. The obligation to consider the provisions of the Charter was described by Emerton J in Castles v Secretary, Department of Justice[69] as follows:

The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a 'common or garden' activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over‑zealously by the courts.

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision‑maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision‑maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.[70]

1. This analysis has been accepted by this Court in HJ (a pseudonym) v IBAC[71] and Bare v Independent Broad‑based Anti‑Corruption Commission.[72]
2. In LG v Melbourne Health,[73] Richards J was required to determine a similar issue to that which arises here: whether VCAT had acted lawfully in making orders as to guardianship and administration (under the predecessor legislation to the GA Act) in the context of its obligation under s 38. Her Honour said:

A number of decisions of this Court have outlined what is required of a public authority in order to discharge its obligation to give proper consideration to relevant rights. Here, the Tribunal was required to seriously turn its mind to the possible impact of the decision on LG's human rights and the implications for her of a guardianship and administration order. It had to identify and balance the competing interests and obligations. While its consideration of LG's human rights did not have to be a sophisticated legal exercise, it did have to be genuine and not formulaic.

Although the focus of the Charter is different to that of the Guardianship Act, the analysis required of the Tribunal by ss 4(2), 22 and 46 of the Guardianship Act overlaps to a significant extent with the Tribunal's obligation, under s 38(1) of the Charter, to give proper consideration to relevant rights. Whether the person's needs can be met by means less restrictive of the person's freedom of decision and action involves a proportionality analysis similar to that required by s 7(2) of the Charter. Where the Tribunal has had regard to each of the mandatory considerations in ss 4(2), 22 and 46 of the Guardianship Act, it will be a long way towards having properly considered relevant human rights under s 38(1) of the Charter.[74]

1. The Vice President's reasons refer to Gregory's submissions regarding a potential violation of Raye's human rights in the context of the appointment of an administrator and the involvement of State Trustees; however, there is no other mention of the Charter generally or reference to the application of s 38(1) to the determination of the application.
2. In LG, VCAT provided limited oral reasons for making prescriptive orders as to the appointment of a guardian and administrator under the predecessor to the GA Act. Contrary to the position in LG, this Court has the benefit of the Vice President's detailed written reasons, which address the basis for the making of the administration orders in the context of the provisions of the GA Act.
3. As we explain below, notwithstanding the lack of specific references to Raye's relevant Charter rights in her reasons, we are satisfied that, having regard to the matters that the Vice President expressly mentioned in her discussion on the GA Act, she in fact turned her mind to Raye's human rights, albeit that she considered them through the prism of the principles contained in the GA Act (as would naturally occur in such a case as this).
4. Section 8(1)(b) of the GA Act, to which the Vice President referred and which she applied,[75] obliges VCAT to 'have regard to ... the will and preferences of a person with a disability' which 'should direct, as far as practicable, decisions made for that person'.
5. Other relevant provisions of the GA Act to which the Vice President expressly turned her mind[76] included ss 8(1)(c) and 30(2)(c). Section 8(1)(c) provides that 'powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances'.[77] Section 30(2)(c) of the GA Act mandates that any order made as to administration 'will promote the proposed represented person's personal and social wellbeing'.[78]
6. In this context, s 32 of the Charter, headed 'Interpretation', is relevant. This provision states that:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

1. In her reasons, the Vice President said as follows:
   1. Section 8(1) of the GA Act lists the general principles at (a), (b) and (c) that apply when carrying out of a function under the Act. I note in particular that under (b) the wills and preferences of a person with a disability should direct, as far as practicable, decisions made for that person, and (c) powers, functions and duties should be exercised in a way which is least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.

...

1. Section 30(1)(a)(ii) of the GA Act provides that, after considering an application made under Division 1, the Tribunal may make an administration order subject to subsection (2). The requirements and considerations when making an administration order are as outlined in section 30(2) and 31 above.

1. The Vice President then set out the terms of s 32(3) which are reproduced at [140] above. In particular, she noted the following relevant considerations for making an administration order:

(a) the will and preferences of the proposed represented person (so far as they can be ascertained);

(b) the desirability of preserving existing relationships that are important to the proposed represented person;[79]

1. The Vice President continued:
   1. The Tribunal can only appoint an administrator for a person if satisfied that the person lacks capacity for making decisions about financial matters (and only for the financial matters about which they lack capacity) and needs an administrator.

...

1. The Tribunal can only appoint an administrator if satisfied because of their disability the person does not have decision‑making capacity about financial matters in relation to which an order is sought and that the person needs an administrator. Further, the Tribunal must be satisfied that the administration order will promote the person's personal and social wellbeing.
2. The Tribunal must consider the person's will and preferences and whether decisions could be made informally or by negotiation, as well as the desirability of preserving existing relationships important to the person.

...

1. The second administration order is to appoint EMY as a limited administrator for until the further hearing of this matter on 7 November 2024. Given her lack of decision-making capacity and the need to manage her financial affairs on a day‑to‑day basis, RCF is in need of an administrator. This will promote her personal and social wellbeing.
2. Despite the identified potential conflict of interest and EMY's conflict with SBZ, I am satisfied these can be managed by the imposition of restrictions. This order is consistent with RCF and EMY's preferences and wishes and, through the imposition of restrictions, RCF's relationships with both EMY and RCF are preserved. RCF will not be subject to their quarrelling about her finances. She will continue to live in her own home with EMY as her carer.

1. It was, of course, open to the Vice President not to make an administration order, given that she had found the 2017 Power of Attorney valid. It is, however, clear from her Reasons[80] that the Vice President (having accepted that Raye could not manage her own affairs) took this into account and was concerned as to the potential conflict of interest of the two attorneys - Gregory and Jillian - who were in disagreement as to what was the best course of action in protecting Raye's interests.
2. As the statements in LG and Castles, to which we have referred, demonstrate, consideration of the rights enshrined in the Charter requires a practical application. In particular, the following statement of Richards J in LG demonstrates the point:

In relation to these grounds of appeal, I was conscious of the need to avoid over‑zealous scrutiny, and also of the challenging circumstances in which this and other guardianship applications are dealt with by the Tribunal. As I have said, there is a significant overlap between proper consideration of human rights and the analysis required by the mandatory considerations set out in ss 4(2), 22 and 46 of the Guardianship Act. I may have reached a different conclusion, had I had the benefit of full reasons for the Tribunal's conclusions under the applicable provisions of the Guardianship Act. Unfortunately, that was not the case.[81]

1. Here, as previously mentioned and unlike LG, this Court has a detailed set of written reasons that address the various considerations raised under the GA Act. It is now convenient to address each of the Charter rights that, on this application, the applicants argue should have been considered by the Vice President.
2. Section 8 of the Charter provides that

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy their human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

1. The Vice President took into account Raye's personal autonomy, her wishes, her wellbeing and her family situation in the context of her inability to make decisions in her own independent interest. As the Reasons demonstrate, in practice the principles outlined in the GA Act reflect those in the Charter, especially those in s 8. The consideration of the requirements in ss 8, 30, and 32 of the GA Act means that Raye's rights under s 8 of the Charter were considered in the manner required by s 38.
2. Similarly, in terms of Raye's s 12 Charter right to freedom of movement and the freedom to choose where to live, the Vice President considered both. The question of Raye's ongoing living at home with Gregory was central to her decision. It is also clear that she considered the effect any orders might have on Raye's capacity to travel to Queensland, as she often did with Gregory. Raye remains free to travel wherever she likes. There was no restriction on this right.
3. In terms of Raye's s 20 Charter property right, the basic complaint of the applicants was the cost of appointing an administrator. Gregory opposed the appointment of an administrator primarily on the basis of cost, submitting that:

If State Trustees were appointed administrator, they might take a fee based on my mother's assets and income. Such a fee would be far in excess of any reasonable compensation for work actually performed, a taking of my mother's property. I strongly oppose appointing State Trustees as my mother's administrator. Doing so would be a violation of my mother's human rights.

1. As it transpired, Gregory was appointed administrator, thereby negating any question of disproportionate cost and any arguable infringement of Raye's property rights. Moreover, Raye's ability to deal with her own property was central to the Vice President's decision. The Vice President was conscious of the need to protect that right and to ensure that the management of her property was in Raye's best interests. Having found that Raye lacked decision-making capacity and, given the history of disputes over the use of Raye's assets, the Vice President made orders that limited Gregory's powers as an administrator. By appointing the interim administrator, Mr Wong, and by imposing restrictions on the administrator's capacity to make payments, Raye's property rights were preserved rather than diminished. It is also clear that in appointing Gregory as administrator, the Vice President had regard to Gregory's opposition to the appointment of the State Trustees and to any alleged diminution in Raye's property as a result of such an appointment.
2. It is patently clear that the Vice President considered Raye's s 24 Charter right to a fair hearing. The application for the appointment of an administrator was heard twice: once before the Senior Member, followed by a rehearing at Raye's request before the Vice President. On each occasion, we are entirely satisfied that the hearing was conducted with procedural fairness in accordance with the provisions of the VCAT Act.[82]
3. In summary, although it may have been tangential, we are satisfied that the Vice President gave genuine consideration to each of Raye's relevant human rights as she was required to by s 38(1) of the Charter.
4. Finally, there is the question of the application of the substantive limb of the Charter in s 7(2), namely whether the administration orders were incompatible with Raye's human rights.
5. Section 7 of the Charter provides:

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

1. There was a body of evidence before the Vice President that justified the imposition of limitations on Raye's human rights when making the administration orders and appointing Gregory as the administrator and subject to the conditions imposed in the administration orders. The Reasons make this clear and we refer specifically to the evidence of Drs Bennett and Bird, which we set out earlier.
2. It is also clear from the Vice President's Reasons that the administration orders took into account Raye's dignity, equality, and freedom in light of her incapacity to make appropriate decisions about her own well-being and best interests.[83]
3. The administration orders addressed the circumstances of Raye's relationship with her two children, the issue of proportionality and the appropriate level of administration, aiming for the least possible restriction on Raye's personal autonomy and reflecting the requirement that VCAT's powers be exercised in the least restrictive manner 'taking into account all relevant factors' - not the least of which was her lack of decision‑making capacity and the need to make orders for her own protection.
4. The limits imposed by the administration orders upon Raye's personal autonomy, in the circumstances, were reasonable. The orders were consistent with the provisions of ss 7(2) and (3) of the Charter.
5. There was no breach of the Charter's provisions. The applicant's argument to the contrary must fail.

1. The bulk of the applicants' remaining complaints (which are numerous) are mostly merit-based and do not raise questions of law. The applicants endeavoured to alter the character of what was essentially a merits complaint by asserting that a finding by the Vice President was not 'reasonably based' or was not 'reasonably open'. These multifaceted criticisms ignore VCAT's ability to admit evidence as it sees fit and to attach whatever weight it sees fit to that evidence. In truth, the gravamen of the remaining parts of the applicants' case is their dissatisfaction with the Vice President's conclusion.
2. Notwithstanding this observation, we briefly address the other issues raised by the applicants.
3. Dr Bennett's report was not 'unlawful and void'. It was an account of Dr Bennett's treatment of Raye, along with her opinion on the cause of her condition and her prognosis. She diagnosed the existence of vascular dementia. Her opinion was relevant and admissible.
4. Nor was Jillian's report 'unlawful and void'. Jillian is a clinical psychologist and was entitled to express her opinion regarding her mother's mental acuity. Whether it was accepted (or not) was a matter for the Vice President. The Vice President, understandably, treated Jillian's opinion warily noting that while Jillian's report was completed on the medical report template, 'it was not a formal report' and that 'as it [was] not a report, but more a summary of [Raye's] medical records' she would 'treat it as such'.[84] For instance, the Vice President, in accepting the diagnosis of vascular dementia, did not rely on Jillian's opinion but, rather, relied on those of Drs Bennett and Prime.
5. There was no error by VCAT in misconstruing statutes, rules and documents. An example of the applicants' mistaken approach is the following complaint. They asserted that, in relation to the rehearing, the Vice President should have provided citations for any case relied upon in determining how to conduct the rehearing and that the Vice President should have addressed each of the arguments raised in the original hearing before the Senior Member. Not only is the argument without foundation, but it contradicts one of the statutory purposes of VCAT: to conduct its proceedings with as little formality and technicality and as much speed as permitted by the legislation and proper consideration of the matters before it.[85]
6. Another example is the attack on the February order. This, contrary to the applicants' submission, was both lawful and appropriate. The Senior Member was aware that the general practitioner, Dr Wong, had examined Raye at the request of VCAT; however, in the circumstances where Raye, supported by Gregory, refused to undergo neuropsychological testing, the Senior Member was entitled to make an order directing Raye to undergo such an examination. The VCAT rules permitted such a course. The underlying question for both the purposes of the powers of attorney and guardianship or administration applications turned upon Raye's mental state which required contemporaneous qualified neuropsychological testing.
7. There was no denial of procedural fairness in the conduct of the July rehearing by reason of the Vice President's refusal to allow Gregory to cross‑examine his sister. Subject to s 98 of the VCAT Act, the Vice President was entitled to conduct the hearing as she saw fit. At the risk of being accused of repetition, the real question here was whether Dr Bird's opinion (supported by Dr Bennett) should be acted upon. Permitting Gregory to cross‑examine Jillian (who did not give evidence) regarding her views on Raye's mental acuity was a pointless exercise, as the Vice President appreciated.
8. The applicants' allegation of apprehended bias on the part of the Vice President is also without foundation. The basis for it is misguided and does not satisfy any part of the test set out in Ebner v Official Trustee in Bankruptcy.[86]
9. The applicants argued that Mr Madden's participation in the VCAT hearing was unlawful. They also assert that the 'only finding reasonably open to VCAT is that Mr Madden was not independent but rather he was biased and an advocate for VCAT applicant [Jillian]'.
10. The Vice President considered these submissions and held as follows:
    1. EMY queried the independence and objectivity of the OPA. This was because Mr Madden took the initial call from SBZ on 24 June 2022 on the OPA advice line. In evidence Mr Madden explained he only took the advice line call because the OPA was short staffed. Following the call, he then made inquiries and prepared the advocacy report for the Tribunal. This contact between Mr Madden and SBZ has created the perception for EMY that the OPA has not conducted an independent investigation.
    2. EMY cross-examined Mr Madden about this. It appears that in normal circumstances there would be a different person on the OPA advice line to the person who became the OPA investigator and that is the preferable position.
    3. Mr Madden conceded in his evidence where he had misstated his observations in the advocacy report, based on a misreading of the EPA.
    4. Mr Madden also conceded Ms Mackey, solicitor for the OPA, had been incorrect in her email dated 15 May 2024 when she stated the OPA had only been involved since the Tribunal's referral on 28 September 2022.
    5. The OPA is an independent statutory office established under Part 2 of the GA Act. The functions of the OPA are set out in section 15 of the Act, including (a) to promote the human rights of persons with a disability and the development of the ability of such persons to act independently.
    6. The OPA clearly has functions to promote and inform public awareness and under 16(1)(d) may give advice to any person, including about the provisions of this Act. Further, under 16(1)(g), the OPA may investigate any complaint or allegation that a person is under inappropriate guardianship, is being exploited or abused, or is in need of guardianship.
    7. Mr Madden was complying with these provisions of the GA Act.
    8. EMY alleges that the OPA has not conducted an investigation impartially or fairly. In my view, whilst it would have been preferable for a different officer to the one who took the advice line call from SBZ to have conducted the investigation, the circumstances as to how this arose have been explained. I am not of the view that the serious accusations levelled at Mr Madden concerning his independence and fairness are supported by the evidence.
    9. EMY has spent paragraphs in his materials analysing the chronology by which letters of referral prepared by Mr Madden to Dr Bird were sent to both himself and RCF and the Tribunal, alleging conspiracies and collusion. The timeline shows Mr Madden to have been timely in sending materials to the Tribunal: the first referral dated 26 October 2022 was sent to the Tribunal the same day, the second referral dated 20 February 2023 was sent to the Tribunal on 14 March 2023, and Dr Bird's report dated 23 March 2023 was sent to the Tribunal on 3 April 2023. The Tribunal has been less timely in sending the materials to EMY, but that is not Mr Madden's fault. The differences between the first and second referral to Dr Bird relate to the new EPA executed by RCF on 7 February 2023.

(b) to protect persons with a disability from abuse, neglect and exploitation; and

(c) to undertake advocacy for persons with a disability on a systemic or individual basis ...

1. Section 16 sets out the powers and duties of the Public Advocate. These include that the Public Advocate:

(b) may make an application to VCAT for -

(i) the appointment of a guardian, a supportive guardian, an administrator or a supportive administrator; or

...

(c) may advocate for the human rights and interests of a person with a disability (irrespective of the person's age) by -

...

(v) with the leave of a court or VCAT -

(A) joining as a party to proceedings in the court or VCAT that involve the rights and interests of the person; and

(B) assisting the court or VCAT as amicus curiae in proceedings in the court or VCAT that involve the rights and interests of the person ...

1. Clause 33 of Sch 1 to the VCAT Act specifically provides that the Public Advocate:

(a) may intervene at any time; and

(b) is entitled to be joined as a party -

in a proceeding under the [GA Act].

1. It follows from the above that, contrary to the applicants' submission, Mr Madden was entitled to appear and take an active role in the rehearing, with or without formal leave.
2. The OPA was performing its statutory function and endeavouring to protect Raye's interests. Gregory's dissatisfaction with the manner in which it carried out its role is no basis upon which to conclude that it acted in a biased or partisan fashion, as he submits. Gregory's submissions concerning partisanship, bias or unlawfulness on the part of virtually every member of the OPA staff he came into contact with are equally spurious. The Vice President considered these complaints and rejected the applicants' submission. She was correct to do so.
3. The contention of the applicants that VCAT did not provide 'sufficient or adequate reasons' is also misconceived. The Vice President's Reasons run for 50 pages. They explain adequately, indeed lucidly, why she reached her decision regarding Raye's decision-making capacity and the basis for the administration orders. As we have just mentioned, the Reasons omit any reference to the Charter, but that oversight, in the light of the consideration of the provisions of the GA Act, does not advance the applicants' argument. Viewed as a whole, the Reasons explain in detail the basis for the Vice President's orders and demonstrate, in our view, convincingly, why the Vice President reached the decision that she did[87].
4. Finally, the references to American authority on the meaning of 'fraud on the court'[88] have no bearing on the manner in which Jillian's application and the rehearing were conducted.

1. For these reasons, none of the applicants' proposed grounds of appeal have a real prospect of success.
2. Leave to appeal should be refused.

[1] This judgment has been anonymised by the adoption of a pseudonym in place of the names of the parties and by the use of first names only.

[2] MMSE apparently refers to a mini mental state examination.

[5] RCF (Guardianship) [2024] VCAT 748, [60]-[62] (Vice President Judge English) (citations omitted) ('Reasons').

[7] Reasons, [68]-[85] (citations omitted).

[8] This order was amended on 19 August 2024 by the Vice President to replace the anonymised names referred to in the original order with the full names of the parties. For the purpose of this application, we have referred to the parties by their first names.

[9] The italicised orders are either not the subject of this application or have, by force of orders at VCAT, been vacated.

[19] [2019] VSC 183, [49] ('LG').

[49] Reasons, [314], [320]-[326].

[50] Reasons, [353]-[356], [361]-[364].

[51] Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521, [10] (Croft J) referring to Commissioner of State Revenue v Frost (2011) 83 ATR 832, 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-6 and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48, 55-6 [28].

[52] Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521, [10] (Croft J) referring to Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[53] [2024] VSCA 143, [52]-[58] (citations omitted). See also Hoskin v Greater Bendigo City Council [2015] VSCA 350; (2015) 48 VR 715.

[54] Code of Ethics, 'Application of the Code', page 10.

[55] Reasons, [192]-[207] (citations omitted).

[56] [2019] VSC 183, [56]-[66].

[57] See Reasons [203] set out above at [93].

[58] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 489 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); [1992] HCA 58.

[59] LG [2019] VSC 183, [66].

[62] As were in force at the relevant time.

[63] In respect of the second referral, within his exhibits, Gregory included a document titled 'Chronology of the second referral to Dr Bird' based on his review of the hard copy file. He asserts that the first time he and Jillian received the second referral was when it was emailed by VCAT on 24 May 2023. Nothing turns on this.

[64] Sections 98(1)(b) and (c) of the VCAT Act. Christian Youth Camps Ltd v Cobaw Community Health Services Ltd[2014] VSCA 75; (2014) 50 VR 256, 320 [258] (Maxwell P); [2014] VSCA 74.

[65] (2021) 67 VR 301; [2021] VSCA 358.

[66] Ibid 322 [79] (Kyrou, McLeish and Niall JJA).

[67] Sabet v Medical Practitioners Board (2008) 20 VR 414; [2008] VSC 346 [127].

[68] PJB v Melbourne Health (Patrick's case) [2011] VSC 327; (2011) 39 VR 373, 405 [125]; [2011] VSC 327. See also LG v Melbourne Health [2019] VSC 183, [75] ('LG').

[69] (2010) 28 VR 141; [2010] VSC 310 ('Castles').

[70] Ibid 184 [185] (Emerton J) (emphasis added).

[71] [2021] VSCA 200; (2021) 64 VR 270, 306 [155] (Beach, Kyrou and Kaye JJA); [2021] VSCA 200.

[72] [2015] VSCA 197; (2015) 48 VR 129, 199 [221] (Warren CJ), 223 [288]-[289] (Tate JA), 297-9 [535]-[538] (Santamaria JA); [2015] VSCA 197.

[73] LG [2019] VSC 183.

[74] Ibid [77]- [78] (citations omitted) (emphasis added).

[77] Emphasis added. See also Reasons, [297].

[81] LG [2019] VSC 183, [83].

[83] See, for example, the passages from the Reasons set out above.

[84] Reasons, [138], [140]. See [55] above.

[86] (2000) 205 CLR 337; [2000] HCA 63.

[87] Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 [56], [64]; [2000] VSCA 171.

[88] Bulloch v United States, [1983] USCA10 283; 721 F.2d 713 (10th Circuit, 1983).