P R A v M A & VCAT & Anor; P R A v M A & State Trustees Ltd [2004] VSCA 20

P R A v M A & VCAT & Anor; P R A v M A & State Trustees Ltd [2004] VSCA 20 - VSCA 2004 case summary — Zoe

[4]

The gist of the matter is whether clause 43 of the First Schedule to the Victorian Civil & Administrative Tribunal Act 1998 can deny the operation of the common law rules of natural justice which would otherwise be applicable to these proceedings and which are given statutory support by s.98(1)(a) of the Act. Section 98(4) of the Act permits a departure from those rules where the Act expressly or by implication authorises such a departure, but a provision of that kind must in the circumstances be read and construed with some care. As Batt, J.A. points out, clause 43 denies invalidity by reason of want of notice where the alleged defect arises "only because of a failure to give notice" in the prescribed way (and I have emphasised the word "only"). Even reading that provision broadly the clause says nothing as to the kind of notice required, nor as to the manner in which the Tribunal ought to conduct its proceedings when notice is given, nor as to when under the clause the failure to give notice should be treated as avoiding the proceeding. The difficulty arises because, unlike in many jurisdictions, notice for present purposes must be given by the registrar of the Tribunal and it clearly seemed to the legislature undesirable that such a failure to give the required notice should bring down certain proceedings and avoid any orders made thereunder, more especially as the relevant ones in this field frequently effect or affect a change in status. But the kind of notice to be given by the Tribunal can only be of the barest kind for, except where it is acting of its own motion, it is unreasonable to expect it to formulate appropriately relief which other parties to the proceedings may be seeking. So, if what is being sought by a party or what is proposed by the Tribunal is not apparent on the piece of paper served, it would to my way of thinking be generally necessary for the Tribunal to give a fair opportunity to each party affected to respond, either by the calling of evidence or the preparation of appropriate submissions, to the application made or the proposal of

[45]

of the VCAT Act for proceedings under s.118 of the Instruments Act, it is, in my view, plain that proper notice was not given to the attorneys, and in particular Peter A, and that there was accordingly a denial of natural justice. Moreover, and (as will appear) importantly, that resulted in this case in great unfairness to the attorneys, for, as the Tribunal knew, Maurice A's application was opposed by the attorneys and yet they personally were unable to attend and put their case at what proved to be the final hearing of the critical part of it and their solicitor, whilst attending, was, naturally, quite unprepared to put their case adequately. Although Peter A was told at 9.30 a.m. approximately on 29 May 2000 that there was to be a "meeting", that is, some form of hearing, in the matter of Maurice A's Tribunal application at the latter's request, he was not told that it was to be the hearing of the matter and in particular a hearing to determine whether final relief in relation to the enduring power should be granted. It is true that the last previous order made by the Tribunal had provided that the matter was to be listed for hearing on a date to be fixed by the Registrar for one day in mid-May, but, despite Peter A's questioning of the Acting Registrar of the Guardianship List, it was not suggested to him that the "meeting" was that hearing. Moreover, he was entitled to think that such was the shortness of the time before the "meeting" that it was not the hearing of the substantive application. Indeed, the word "meeting" strongly suggested that a directions hearing or the like only was to take place. (The Vice President so described it in the ruling of 29 May 2000.) It was submitted for Maurice A that everyone knew what he sought by way of relief. That is true, but it does not follow that everyone knew that it was the final hearing for that relief that was being called on with at most five hours' notice. Patrick was in an even worse position, because the only intimation of the "meeting" came to him via his co-attorney. The Tribunal seems from the transcript to have been of the view that it was up to Patrick to telephone the Registry and to find out for himself what was to be the business to be considered at 2.30 p.m. that afternoon. That is a misconception. Subject to the question of the statutory variation of the VCAT Act, it was, as stated below, for the Tribunal through its principal registrar to give due notice to the parties and persons entitled to attend the hearing. To state, as the Deputy President did on 2 June 2000, that Patrick could have applied for an adjournment is to put the cart before the horse. The anterior question is whether due notice had been given to him.

[57]

Clause 36(b), though not, I think, s.98(4), was relied on for Maurice A in argument, and the Bench referred to clause 43, which related specifically to proceedings under s.118 of the Instruments Act, the order under that section being the critical order in the matters before this Court. The first question is whether the attorneys fell within paragraph (a) of clause 43 or within paragraph (b). The only Acts enumerated in Schedule 1 under which a clause like clause 43 appears seem to be Acts concerned with persons who are or may be in need of care, protection or treatment.[28] Clearly Mrs. A, being such a person was "a person in respect of whom an application [had] been made" within paragraph (a). But could no-one else have been a person of the kind described? It is to be noted that the quoted words begin with the indefinite article, not the definite article. It might be said that the application, so far as it invoked s.118 of the Instruments Act, was made in respect of the attorneys (as well as Mrs. A) since it sought an order which affected them by terminating their authority as agents of Mrs. A under the enduring power of attorney. Some support could be sought from s.120(1) of the VCAT Act. It empowered "[a] person in respect of whom an order is made" to apply to the Tribunal for a review of the order if specified conditions were satisfied. It is clear that s.120 applied quite generally across the jurisdiction of the Tribunal under all the Acts authorising proceedings before it and not simply in the case of Acts concerned with the care, protection or treatment of persons in need of the same. But s.120(1) was concerned with orders, not applications. On the other hand, the requirement to notify the Public Advocate, whose statutory concern is with persons with a disability, favours an exclusive interpretation of paragraph (a). By reason of that consideration and the general context I have come to the conclusion, not without some hesitation, that the answer to the question posed is in the negative.[29] The attorneys thus fell within paragraph (b), so that the hearing and order of the Tribunal under s.118 was not invalidated or affected "only because of a failure to give notice" to them.

[58]

The second question posed by clause 43 is as to the force or effect of the word "only" in its introductory passage or, more specifically, whether the failure to give notice of the hearing to the attorneys had no effect by way of invalidating or affecting the hearing or order of the Tribunal on 29 May 2000. The object of clause 43 would seem to be to exempt the Tribunal from a mandatory obligation to give notice in every case under s.118 of the Instruments Act, largely because the jurisdiction under that section is intended to be a "parens patriae" or protective jurisdiction, where the interests of the person needing or said to need protection are paramount. The inclusion of the word "only" shows that invalidity or other affection did not result from the mere failure to give notice, and to that extent the VCAT Act authorised a departure from the rules of natural justice within s.98(4). But, notwithstanding the existence of s.98(4), the modern law is that any statutory authorisation, express or implied, of a departure from the rules of natural justice must be clear, and Parliament was not saying that the rules of natural justice, even so far as they related to notice of hearing, could not apply or that, when there was unfairness by reason of particular circumstances where a party was unable to present his or her case adequately, there should not be an appropriate remedy based on the ordinary rule in the Act requiring natural justice. This seems to have been the obiter view of Gobbo, J. in Moore v. Guardianship and Administration Board[30] on a precursor of the almost identical clause 36. What is required to be shown, however, in order to obtain such a remedy is more than a mere absence of notice: it must be shown that the absence of notice resulted in consequences causing genuine hardship to the party affected. This reading of the clause gives proper significance to the word "only". In the present case, as I have sought to show, there was a contested application for revocation on foot and it was quite wrong to allow it to be heard finally with inadequate notice or, in the case of Patrick, no notice, especially when the outcome was likely to affect contested court proceedings.

[62]

It was contended in writing for Maurice A that Peter A did not have standing to sue alone because the power was joint. That may be met by adding Patrick as a party and giving him time to indicate his attitude. What follows is subject to that. For the reasons I have given, I consider that in the judicial review proceeding an order should be made quashing the order revoking the enduring power. If that is done the temporary order appointing State Trustees as administrator of the estate and the order of 2 June 2000 are unnecessary and indeed inconsistent with the continued operation of the power and should also be quashed. The Tribunal application of Maurice A should be remitted to the Tribunal to be heard and decided again, with further evidence, in accordance with law, and a direction should be given that the Tribunal not be constituted for the re-hearing by either of the members who made the original orders. Ms Schoff for State Trustees, in an attractive argument, drew attention to the Court's discretion under s.148(7) of the VCAT Act and submitted that, in light of Patrick's attitude and the lapse of time, the Court should affirm the order of 29 May. But the unfairness to the attorneys in what occurred was so egregious that, whilst acknowledging the force of the two factors to which she referred, I do not consider that course should be adopted.[32] As to Mr. Galbally's application for the appointment, on a temporary basis at least, of an administrator, such an appointment is, for reasons already given, not required and in any event this Court is ill-equipped to make such an order in the exercise of original jurisdiction. Since the whole judicial review proceeding is before this Court for consideration, the interim injunction granted by Hedigan, J. on 19 June 2000 requires consideration. Having regard to the matters which appear to have influenced his Honour and to the lapse of time, I would make that injunction permanent. In any event, State Trustees accepted that, should the order appointing it as administrator

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Judgment (95 paragraphs)

Legislation Cited (2)