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

5. 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

the Board itself. A failure to bring those matters properly to the attention of the parties and a failure to give them a sufficient opportunity to put their case must in the circumstances be treated as different from a mere failure to give notice of the particular proceeding or step in the proceeding. That is what occurred here, as Batt, J.A. demonstrates, and that is why the orders made must be quashed. Our conclusions in this case, however, should not deny the possibility that in certain circumstances the justice of the matter will require that an order be made urgently by the Tribunal, or possibly in other circumstances, without notice having been given. Much of what the Tribunal in this field does is, subject to the difficult discretions imposed in it, relatively straightforward and unlikely to produce contention. The requirements of natural justice apply where there is real contention or where it would otherwise be unfair to shut out one party or another and it is in those circumstances that the parties should be given a fair opportunity to put their cases.

10. These two proceedings concern the affairs of a woman whom I shall call Mrs. A and constitute some only of the litigation in which her children have been engaged continuously, though in a somewhat leisurely manner, since 1999 to the considerable detriment of her by no means large estate.

13. Mrs. A is a widow. She is aged 89. She has five living children, namely, William (Bill), who was 61 at the time of the hearing in this Court; Brian, then aged 59; Peter Raymond (Peter), the appellant and plaintiff, then aged 57; Maurice Patrick (Maurice), a respondent and defendant, then aged 50; and Mary (Mrs. E, as she may be called), then aged 47.

16. A man whom I shall call Patrick, now aged 77, is the sole surviving brother of Mrs. A. Neville Cousins, the legal practitioner who for many years acted for Mrs. A and held the title to her Melbourne suburban house property, is married to a niece of Mrs. A.

19. For many years Mrs. A as to one half and her son Brian and his wife Cheryl as to the other half conducted in partnership at two locations an authorised newsagency business (including a Tattslotto agency). In March 1998 it became clear that the profits of the partnership business had decreased markedly.

22. On 19 July 1998 Mrs. A appointed her brother Patrick and her son Peter "jointly or the survivor" to be her attorneys under an enduring power of attorney.

25. In October-November 1998 Mrs. A was diagnosed as suffering from moderate to severe dementia of mixed Alzheimer's and cerebrovascular pathology. As a consequence she is unable to manage her own financial affairs. Her son Peter has since 1982 or 1983 lived with her in her suburban house and is and has been her primary carer, in particular administering her medication and taking her to her medical appointments.

28. In June 1999 the newsagency partnership was dissolved with effect from September 1999. Brian and Cheryl A then conducted the business on a day to day basis. In September the attorneys commenced in Mrs. A's name Supreme Court proceeding No.7219 of 1999 against Brian and Cheryl A, seeking the appointment of a receiver to the business and damages. Peter A contended that there were irregularities in the conduct of the affairs of the partnership by the defendants, and in February 2000 an affidavit by a newsagency assessor was filed in which the opinion was expressed that gross profits had been understated in three years. The defendants, with the support of Maurice and Bill A, attempted to have the proceeding dismissed on the ground that Mrs. A was incapable of bringing it. On 17 November 1999 Beach, J. dismissed that application and appointed the attorneys as litigation guardians.

31. The partnership proceeding was fixed for trial commencing on 15 June 2000 on an estimate of three (or four) days.

34. At about the time the proceeding was so fixed Mrs. A's assets were insufficient for the conduct of the trial. The attorneys determined to borrow $100,000 on the security of Mrs. A's suburban property in order to conduct the trial. The duplicate certificate of title to the property was, however, held by Mr. Cousins, who refused to hand it over to the attorneys. They therefore on 22 May 2000 commenced in Mrs. A's name by themselves as litigation guardians Supreme Court proceeding No.5461 of 2000 against Mr. Cousins for delivery up of the certificate of title. A summons for that relief was returnable before a Master on 31 May 2000. After being served Mr. Cousins agreed to deliver up the certificate of title on the morning of 30 May 2000.

37. Meanwhile Maurice A had lodged in the Guardianship List within the Civil Division of the Victorian Civil and Administrative Tribunal ("the Tribunal") an application which sought in relation to his mother the appointment of an administrator, the appointment of a guardian and the revocation of the enduring power of attorney. The applicant's declaration on the last printed page of the application is dated 9 November 1999, but the Tribunal's file transmitted to this Court appears not to contain the original application and perusal of the file does not make apparent the date on which the application was filed.[1] The Tribunal was empowered to appoint an administrator by s.46 of the Guardianship and Administration Act 1986[2] subject to the requirements specified there and in s.47, and was authorised to do so by a temporary order by s.49 of the Act. It was empowered to appoint a guardian by s.22 of the same Act and to do so by temporary order by s.33. The Tribunal was empowered by s.118 of the Instruments Act 1958[3] to revoke an enduring general power of the attorney if "satisfied that it is not in the best interests of the donor ... for the power to continue".

40. On the application form Maurice indicated that his application was supported by his brothers William and Brian and opposed by his brother Peter. His sister's attitude was not known. In an attachment headed "Reasons for urgent hearing" he alleged that Peter was trying to get the title to their mother's house so that he could place it in his name; that the partnership proceeding was costly and would further diminish her assets; that she had told Peter not to take the action and Peter was in conflict with her; that any moneys from the sale of the business would be under Peter's control and would not last long as they would be gambled away; and that would affect their mother's long term financial security. In another attachment, dealing with why an administrator or guardian was needed, Maurice stated that his brother Peter had been trying to gain control of their mother's finances for himself; that he now sought to exploit her age by having her place the title to her house in his name; that he believed that in that Peter had a conflict of interest; that Peter had a life long problem with gambling from his teenage years; that in late 1997 Peter had borrowed $50,000 from his mother as down payment for a taxi licence which he promised to repay by late March 1998 if the licence was not available, but that the money was not repaid and no licence was purchased as he had lost the money gambling; and that the joint attorneys had failed to recover this money owing to Mrs. A.

43. On 17 February 2000 the Tribunal proceeding was brought on before Deputy President S. Davis upon an application for a compulsory conference under s.83 of the Victorian Civil and Administrative Tribunal Act 1988 ("the VCAT Act").[4] An order was made, amongst other things, adjourning the hearing of Maurice's application to a date to be fixed by the Registrar. On 27 March upon another application under s.83 of the VCAT Act an order was made that the attorneys provide to Mr. Francis of the Office of the Public Advocate[5] on or before 30 April an affidavit or affidavits of their management of the estate of Mrs. A since 19 July 1998 (the date of the power), including a statement of her assets, liabilities, income and expenditure and any transfers between accounts in the name of Mrs. A and those in the name of Peter A, along with all supporting documents, and all bank statements relating to a specified bank account. It was further ordered that the documents so provided not be released to any of the parties without further order of the Tribunal and that arrangements be made as specified for a visit by Mr. Francis to Mrs. A at her home. It was also ordered that the hearing date of 18 April be vacated and the matter be listed for hearing on a date to be fixed by the Registrar for one day in mid-May 2000. Mr. Delahunty swore in his affidavit of 16 June 2000 - and the Tribunal on 29 May 2000 seems to have accepted his statement to it that day - that on 27 March the Deputy President had stated that she did not propose to list the Tribunal application for hearing within one month of the date fixed for the trial of the partnership proceeding.

46. In response to the order for an affidavit or affidavits Peter A swore on 3 May a 14-page affidavit with lengthy exhibits. It dealt with matters of administration, but perhaps ranged more widely. This was filed at the Tribunal on 5 May and a copy was forwarded to Mr. Francis on 4 May, in each case without copies of the exhibits. The bank statements were provided to the Tribunal and Mr. Francis at the hearing mentioned below on 29 May. It was contended on that day for the attorneys that the affidavit, albeit late, complied with the order. This was disputed by Mr. Francis and rejected by the Tribunal. I find it unnecessary to determine whether the Tribunal was correct in that.

49. At about 9.30 am. on Monday 29 May 2000 Peter A received a telephone call from a person at the Tribunal who said her name was "Sue" (and who was in fact Sue Lalji, then Acting Registrar of the Guardianship List at the Tribunal), informing him that there was a "meeting" being held that afternoon at 55 King Street, Melbourne (the premises of the Tribunal) regarding Mrs. A. He asked her why that "meeting" was being held at that time. She stated that she did not know. He asked her what the reason for the meeting was. She stated that Maurice A had called a meeting which was to be held that afternoon. She could not give him any reason why Maurice A had called that meeting. He told her that as he was the full time care giver of his mother, Mrs. A, he could not come at short notice and, unless he could make arrangements for his mother to be looked after, it was unlikely that he would be present. He asked "Sue" if she would inform the other attorney of the meeting and she stated that she would. She stated that she was in the middle of a "ring around" and that she would ring the other attorney under power, Patrick.

52. Patrick did not receive a call from Ms Lalji, though the records of the Tribunal show that she did attempt to contact him by telephone. However, at approximately 9.40 am. on 29 May 2000 Peter A rang Patrick to inform him that he had been contacted by "Sue" from the Tribunal, who stated that a meeting was being held that afternoon, called by Maurice A. He informed Patrick that he did not know the nature of the meeting or the reason for its being convened.

55. When he was telephoned by Peter A on 29 May Patrick was at home on his farm at a locality which he swore was "145 miles" north of Melbourne. His evidence was that it takes approximately three and a half hours to drive by car from the locality to Melbourne. In any event, he stated in his affidavit of 14 June 2000, his car was at the garage for servicing as it had been overheating and accordingly he would not have been able to travel to Melbourne. As against that, however, in cross-examination before the Tribunal on 2 June 2000 he said that he was changing a tyre "down the back" when the telephone call came through. There is an inconsistency if the tyre belonged to his own car. But my view in this matter does not depend upon Patrick's not having access to a car on 29 May or upon his credibility.

58. Mr. Ross Delahunty was a solicitor practising under the firm name or style of Legal Rite who had acted for Mrs. A in the partnership proceeding and who had initially appeared in the Tribunal proceeding as solicitor for Mrs. A and the attorneys under power. He had, however, on and after the directions hearing on 27 March 2000 announced his appearance in the Tribunal proceeding as solicitor for Mrs. A only, because of a possible divergence of interests between Mrs. A and the attorneys which the Deputy President had noted. On 29 May 2000 Mr. Delahunty was out of his office until approximately 11.30 am. When he returned he saw that a telephone message had been left by Ms Lalji from the Tribunal. He telephoned her and was informed by her that an urgent directions hearing had been called for that day at 2.30 p.m. She asked to be informed whether he would be attending. He said that he would. He asked her the reason for the application and by whom it was brought and she was unable to tell him.

61. No written notice of the hearing on 29 May was given by the Tribunal to either attorney or to Mr. Delahunty.

64. The "meeting" was in fact an urgent hearing of Maurice A's application to the Tribunal brought on by the Tribunal at his request. It is clear from the second page of the transcript of the proceedings before the Tribunal on 29 May that the catalyst for Maurice A's request for an urgent hearing was his learning from his brother Bill that Mr. Cousins was proposing to hand over the certificate of title on the morning of 30 May. The Tribunal was constituted by a Vice President (being a County Court judge) and Deputy President Davis. The only persons attending were Maurice A, Bill A, Mr. Francis and Mr. Delahunty. The latter announced that he acted for Mrs. A. Although a few times during argument the Tribunal questioned him, and he answered, as though the attorneys were his clients in the Tribunal proceeding, at bottom the Tribunal accepted that he acted only for Mrs. A in the proceeding.[6]

67. Maurice A asserted to the Tribunal that the attorneys were engaging in a deliberate strategy to frustrate the Tribunal application by not complying with the order for the filing of financial affidavits and documents. He expressed concern about a bank account in which, he said, Mrs. A two and a half years earlier had $113,000 and then $60,000 six months later after lending Peter A $50,000 but only $2,000 at the date of the hearing. He referred to the attorneys' proposal to borrow $100,000 on the security of Mrs. A's home. Mr. Francis complained of the slowness with which the Tribunal application was proceeding and complained that by reason of the "obstructive strategies" of the attorneys he did not have sufficient information to undertake a detailed investigation as to the management of the estate and said that he had not had time to analyse the documents the attorneys had supplied that day, though there were clearly still deficiencies. Mr. Delahunty contended that the Tribunal proceeding was a diversion to ensure that the partnership proceeding did not come to trial on 15 June by preventing the attorneys as litigation guardians from obtaining the funds necessary to prosecute the proceeding.

70. Mr. Delahunty's submissions were not well received by the Tribunal, which, against the background of the allegations in the initial application to the Tribunal and Mr. Francis' complaints, was not unnaturally concerned about what it considered was a failure to comply with the direction of 27 March, though my reading of the transcript suggests that detachment gave way to indignation.

73. The Tribunal retired briefly, with the Vice President saying that the conduct of the attorneys had put the Tribunal in a very difficult position. On resumption the Vice President announced the Tribunal's decision in the following ruling:

"This has been an unusual situation for the tribunal, the circumstances appear to us to be one of extreme urgency. It seems to be a view held as expressed, I think, by Mr. Delahunty to the effect that the tribunal is a toothless tiger, and it is unusual in a directions hearing of this sort to make the type of orders that we propose to make. However, this is a case where we find there has been consistent and contumacious failure by the attorneys to comply with the directions of the tribunal or to comply with the requests by Mr. Francis. We are particularly concerned by the total failure by the attorneys to provide, despite repeated requests, any proper accounting of the estate, and indeed the impression given by Mr. Delahunty, who says he represents the estate, that they did not appear to be particularly concerned about compliance with directions of this tribunal because they did not consider it in the best interests of [Mrs. A]. In addition, Mr. Delahunty has advised us that he spoke to Mr. Peter [A] who at one stage was going to attend this hearing, and he at a later stage was told simply that he did not intend to attend this hearing. In all the circumstances, and particularly having regard to the Supreme Court application which is due on Wednesday, it is our view that it is in the best interests of the estate of [Mrs. A] that the present power of attorney dated 19 July 1998 is revoked and accordingly [we] propose to make a temporary order of appointing the State Trustee administrator of the estate, and to bring this matter back before us on Friday 2 June, that is this coming Friday, when we will then review the temporary order, and at that stage, of course, the present attorneys can present material and perhaps provide a full accounting. This order will take effect immediately. ..."

The formal order of the Tribunal, dated 29 May 2000 and headed "Temporary Administration Order", contains appropriate recitals for the exercise of the powers under s.118 of the Instruments Act and s.60 of the Guardianship and Administration Act and contains orders pursuant to those sections that accord with the ruling of the Tribunal. The order appointing State Trustees Ltd. administrator of the estate of Mrs. A conferred and imposed upon it all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act.

78. The subsequent history of this familial dispute may be traced more briefly. On 2 June the Tribunal reconvened. Maurice A was legally represented, as were the attorneys and State Trustees. Mr. Delahunty appeared for Mrs. A and Mr. Francis was in attendance, as well as Patrick, Bill A, Brian A and Mary E. The Tribunal was told that Peter A was unable to attend as he was looking after his mother (although in its reasons the Tribunal expressed itself as not satisfied by the explanation given for his failure to appear). The Vice President made it clear that the order revoking the enduring power of attorney was final and that the matter for consideration was the review of the temporary administration order. Patrick through his solicitor applied to be appointed administrator. He gave evidence and was cross-examined. His application was refused and State Trustees was appointed administrator with the same powers and duties as before for the reasons given on behalf of the Tribunal by the Deputy President. The Tribunal's formal order contains standard provisions as to fees, annual statements of income, assets and expenditure and review. One of the Tribunal's reasons for refusing Patrick's application and its reason for appointing State Trustees was the desirability of having an impartial person from outside the family as administrator.

81. On 8 June 2000 in proceeding No.5461 of 2000[7] on the oral application of State Trustees Peter A and Patrick were removed as litigation guardians and ordered to pay the costs of the defendant Mr. Cousins and State Trustees and the proceeding was dismissed.

84. On 9 June 2000, as a result of a mediation hearing that day, a compromise of the partnership proceeding was, subject to its approval by the Supreme Court, entered into between State Trustees as administrator of the estate of Mrs. A. and the defendants, Brian and Cheryl A. It provided for payment by the defendants of the sum of $250,000 by 31 July 2000 for the benefit of Mrs. A in full and final settlement. The application for its approval was in due course listed at 2.15 p.m. on 19 June 2000.

87. On 16 June 2000 Peter A filed an originating motion in proceeding No.5781 of 2000 ("the judicial review proceeding") naming as defendants the Tribunal, Maurice A and State Trustees, and seeking, amongst other things, the quashing of the Tribunal's decisions of 29 May and 2 June on the grounds that the first and second defendants had failed to give the attorneys (as I shall continue to call them) any or any adequate notice of the application to be made by the first defendant on 29 May; that the first and second defendants had denied the attorneys natural justice in that they were not heard on 29 May and in that those defendants allowed the proceeding on 29 May to proceed in their absence; and that the first defendant erred in law in various respects in its decision to revoke the enduring power of attorney and in its decision to appoint State Trustees as administrator. The originating motion sought, further or alternatively, leave to appeal pursuant to s.148 of the VCAT Act from the decisions of the first defendant of 29 May and 2 June on substantially the same grounds.[8] It also sought an interim and permanent injunction restraining State Trustees from seeking the approval of the compromise that had been entered into of the partnership proceeding.

90. On 19 June, before 2.15 p.m., in the judicial review proceeding Hedigan, J., after hearing counsel for Maurice A and State Trustees as well as counsel for the plaintiff, Peter A, granted an injunction restraining State Trustees from seeking approval of the compromise until further order. On 28 June his Honour adjourned the originating motion and summons on it, together with a summons filed on behalf of Brian A and Cheryl A to be joined as defendants, to a date to be fixed. The latter summons was not proceeded with.

93. The partnership proceeding has not been concluded either by judgment or settlement, but the newsagency business was sold for $525,000 by the agreement of State Trustees and Brian and Cheryl A, with settlement occurring on 4 March 2002. A receiver therefore can no longer be appointed to the business.

96. The summary of facts prepared for the Court by the solicitor for the appellant/plaintiff, which has not been dissented from by any respondent, states that the only outstanding issues in the estate are legal costs and the taxation thereof and that the estate has no funds and only the house property remains as an asset, Mrs. A being on a pension. In September 2001 a caveat was lodged against the title to the house property by Russell Kennedy, the solicitors for State Trustees, pursuant to a Deed of Charge between them and State Trustees as administrator of Mrs. A's estate to secure payment of costs.

99. After the judicial review proceeding had been commenced it was realised by those advising the plaintiff, Peter A, that, as the orders impugned had been made by a Vice President with another, leave to appeal had to be obtained from the Court of Appeal. Accordingly, on 26 June 2000 a summons seeking such leave was filed in proceeding No.5883 of 2000. Leave was granted on 21 July 2000.

102. A notice of appeal was filed pursuant to the leave on 3 August 2000. The notice was defective because it did not state the relief sought. Accordingly during the hearing of the appeal the appellant was granted leave to file and serve an amended notice of appeal. Even the new notice is, strictly, defective in that it does not state the questions of law upon which the appeal under s.148 of the VCAT Act is brought, as required by Rule 4.17(1)(b)(iv) of Chapter II of the Rules, though what they are contended to be may perhaps be discerned from the grounds set out. The first ground alleges a denial of natural justice and procedural fairness by the Tribunal and the first respondent, Maurice A, in respect of the hearing on 29 May 2000 in a number of enumerated respects, which are similar to but by no means the same as those in the originating motion. Those in the notice of appeal include the revocation of the enduring power of attorney in circumstances where there was no reason to make a final order rather than making orders preserving the status quo to enable the attorneys to be given proper notice of the hearing and to be heard. The next ground alleges a failure by the Tribunal and the first respondent to give the attorneys the statutory notice of the two hearings required under the Guardianship and Administration Act and the VCAT Act. Other grounds allege errors of law in revoking the enduring power of attorney that are amongst those alleged in the originating motion in the judicial review proceeding. The remaining grounds challenge the order of 2 June 2000.

105. On 24 September 2001 Balmford, J. ordered pursuant to s.17B(2)[9] of the Supreme Court Act 1986 that the judicial review proceeding be reserved for the consideration of the Court of Appeal. Section 17B(3) provides, in part, that if a proceeding is reserved for the consideration of the Court of Appeal and the Court of Appeal gives leave the proceeding may be considered by the Court of Appeal. On 19 April 2002 two Judges of Appeal ordered that leave to appeal be granted. That was clearly per incuriam: the leave required was leave for consideration of the proceeding by the Court of Appeal. Counsel for the parties represented before us consented to its being corrected in due course by this Court under the slip rule. Their Honours also ordered that the proceeding be listed for hearing in conjunction with the appeal in proceeding No.5883 of 2000. Thus it is that the two proceedings were heard together by this Court. Why they took so long to come on for hearing, particularly when they concerned the affairs of a person who was already very elderly when the Tribunal made its orders of 29 May and 2 June 2000, was never explained to us.

108. Although, as indicated, the grounds of appeal and the grounds for judicial review ranged more widely, Mr. Galbally for the appellant/plaintiff, Peter A, in opening the appeal after preliminary matters had been disposed of, in essence stated that the short point was whether the telephone call received about 9.30 a.m. on 29 May 2000 by Peter A was sufficient notice of the hearing which transpired that afternoon or whether, on the other hand, there had been a denial of procedural fairness. As part of his argument on the "short point" he submitted that it had been open to the Tribunal to grant an interim injunction under s.123(4) of the VCAT Act[10] and (by implication) thereby to avoid denying procedural fairness. Although the written outline of argument for the appellant/plaintiff asserted other errors in the decision of 29 May 2000 (such as taking far too critical a view of the attorneys while overlooking the strength of the partnership proceeding) and criticised the hearing on 2 June as oppressive and dominated by too adverse a view of the attorneys, Mr. Galbally in oral argument confined the case for the appellant/plaintiff to the "short point". In that he was, in my opinion, correct: whatever errors might be shown if the Court were hearing an appeal by way of rehearing on fact and law, no question of law was propounded by the other grounds which had a real prospect of success and no other ground for the grant of relief in the nature of certiorari existed.

111. In the outline of argument and perhaps initially in oral argument the claim for judicial review was not persisted in. This was on the basis of this Court's decision in Kuek v. Victoria Legal Aid[11], where it was held that, in the absence of exceptional circumstances, a litigant could not raise as an alleged error of law for determination under Order 56 of Chapter I of the Rules a matter or thing which was proper for determination on an appeal under s.109 of the Magistrates' Court Act 1989. When, however, it was pointed out that it was uncertain whether a denial of procedural fairness gave rise to a question of law for the purposes of s.148(1) of the VCAT Act, so that the judicial review proceeding might be required to obtain relief[12], Mr. Galbally resiled, as he was entitled to do, from the former stance. As pointed out in Roy Morgan Research Centre,[13], the VCAT Act makes no express provision excluding the general supervisory jurisdiction of the Supreme Court and s.148 may do no more than provide, in some cases, an important discretionary reason for not permitting resort to that general supervisory jurisdiction. This is in cases where s.148 provides a suitable alternative remedy.

114. The amended notice of appeal sought, amongst other things, the quashing of the order of 29 May 2000 and Mr. Galbally's argument was directed to achieve that. Nevertheless, the amended notice of appeal also sought, and Mr. Galbally orally asked for, a temporary order from this Court appointing Peter A as administrator of the estate of Mrs. A.[14] There is a tension[15] between the two orders sought, for, if the revocation of the enduring power of attorney is quashed, so that the power continues in force, it is difficult to see that the Tribunal (or the Court) could be satisfied of one of the prerequisites[16] for making an order or a temporary order appointing an administrator, namely, that the person whose estate is in question is in need of an administrator of the estate. As a result of discussion, the court announced on the first day of hearing that it accepted that Patrick was not fit (for health reasons) to be an attorney. It was clear that Patrick's health and attitude led the appellant/plaintiff to seek the second order discussed in this paragraph. Whether the result desired by the appellant/plaintiff would in substance come about on the ground that, if Patrick was unwilling or unable to continue as attorney, Peter A was "the survivor" within its meaning, was not debated and it is inappropriate to express any view on the point.

117. The order revoking the enduring power was not an interim or temporary order, but a final order.[17] The Tribunal had by letter dated 22 June 2000 declined to review under s.61(3) of the Guardianship and Administration Act the order appointing an administrator because of the pendency of the judicial review proceeding. No application was made to re-open the order revoking the power under s.120 of the VCAT Act,[18] but, although counsel for Maurice A pointed out that s.120 could have been availed of on 2 June 2000, she did not, I think, go to the extent of submitting that, because that alternative was not pursued, relief under s.148 or by way of judicial review should be refused.[19] (Such a submission based on s.60A of the Guardianship and Administration Act was made, but that section was not then in force.) In any event, it may be thought unlikely, in light of the Tribunal's observations and rulings, that it would have considered the condition in s.120(4)(a) for entertaining any such application, namely, that the applicant had a reasonable excuse for not attending, was satisfied. I would not refuse relief on this discretionary ground.[20]

120. Subject to the important question of the effect of a special statutory variation[21]

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.

125. If it be said that Mr. Delahunty, contrary to what he told the Tribunal on 29 May and to the view I have expressed above, was acting for the attorneys themselves, the position is at best, from the Tribunal's point of view, the same. He was unable to elicit the reason for the application to the Tribunal or by whom it was brought. Indeed he was positively told that it was a directions hearing that had been called urgently.

128. Even if the attorneys or, on the assumption last made, Mr. Delahunty had been told orally at 9.30 a.m. that the substantive hearing of the application would take place at 2.30 p.m., that would in the circumstances of this case have been quite insufficient notice; for the attorneys and their advisers were entitled to more time than that to give final consideration to how their defence of the application was to be conducted, to prepare their case for the actual hearing and to arrange for the attendance of any witnesses. Moreover, Patrick, living where he did, was entitled to more than five hours' notice (assuming, contrary to the fact, that he was notified) in order to get himself to the Tribunal's premises in King Street, Melbourne.

131. Taking the view which it did of the attorneys' attitude to its orders, the Tribunal clearly found itself in a difficult position, as was apparent from the reasons given by the Vice President on 29 May 2000. But the dilemma was more apparent than real, for the Tribunal, constituted as it was by a judicial member and a member who was a legal practitioner,[22] had power by order to grant an interim injunction on its own initiative if it was just and convenient to do so, by virtue of sub-ss.(1), (2) and (3) of s.123 of the VCAT Act. Moreover, it was authorised by sub-s.(4) to do so whether or not it had given any person whose interests might be affected by the order an opportunity to be heard. In my opinion, it would have been just and convenient to exercise the power by way of restraining the attorneys until, for instance, 4 p.m. on Friday 2 June 2000 or further order from acting under the power otherwise than by way of providing for the day to day living requirements and expenses of Mrs. A and in particular from taking any step in proceeding No.5461 of 2000, including the receipt of the certificate of title, other than applying for the adjournment of the summons returnable on 31 May 2000. That would not have been an interference with the Supreme Court proceeding, but rather an interim injunction directed in personam to persons subject to the jurisdiction of the Tribunal, namely, the attorneys. There would during the currency of the interim injunction have been no need for an order appointing an administrator or a temporary order of that kind.

134. I have so far considered the question of procedural fairness from the standpoint of general principle. Subject to the reservation concerning the statutory variation of the VCAT Act, reference to that Act confirms the views so far expressed. Thus, s.97 provided that the Tribunal must act fairly and according to the substantial merits of the case and by s.98(1)(a) the Tribunal was bound by the rules of natural justice. Further, by s.99(1) the principal registrar[23] must give notice, in accordance with the rules, of the time and place for the hearing of a proceeding to at least each party to the proceeding and each other person entitled to notice of a proceeding or hearing under the VCAT Act, the enabling enactment or the rules. By Rule 4.12 the notice must be in writing. It was only when notice had been given to a person in accordance with the rules that s.99(2) authorised the hearing to be held in the absence of a person. (Section 123(4) was an exception to that.)

137. In my opinion, for the reasons which follow, the attorneys were parties and entitled to written notice of the time and place of hearing. There being no specific provision in the Instruments Act, by s.59(1)(a) the parties to a proceeding in the Tribunal's original jurisdiction (as this application was) were, so far as material, the applicant Maurice A and "(iii) any person joined as a party to the proceeding by the Tribunal". The Act, then, does not leave the determination of who the parties are to nomination by the applicant in the application. (In this case Patrick is not mentioned in the completed printed part of the application lodged.) Now, paragraph 2 of the order of the Tribunal made on 17 February 2000 refers to "the parties or their legal representatives". Mr. Delahunty had appeared on that day as solicitor for Mrs. A and for the attorneys. No order by the Tribunal for the joinder of the attorneys as parties has been drawn to the Court's attention, but the correct understanding of the course of proceedings, taken with the requirement in s.98(1)(d)[24], is, in my view, that on 17 February 2000, if not before, an order for joinder of the attorneys was impliedly or tacitly made: Wu v. The Queen[25] and R. v. Ng[26].

140. One other statutory provision casting doubt upon the validity, or at least the correctness, of the Tribunal's order revoking the enduring power should by way of caution be mentioned, even though it was not relied on by the appellant/plaintiff. By the variation to the VCAT Act worked by clause 42 of Schedule 1 to that Act, the Tribunal might refer any matter relating to a proceeding under s.118 of the Instruments Act to, amongst others, the Public Advocate for investigation and report and a person to whom a matter was referred must investigate and report to the Tribunal on that matter. By sub-clause (3) the Tribunal must not determine a question referred under the clause unless it has received and considered the report of the referee. By s.16(1)(d) of the Guardianship and Administration Act the Public Advocate was authorised to submit a report to the Tribunal on any matter referred to him or her for a report by the Tribunal. It seems reasonably clear from statements made by Mr. Francis to the Tribunal, and the presumption of regularity requires, that the Tribunal had referred the matter of the administration of the estate of Mrs. A by the attorneys under the enduring power to the Public Advocate for investigation and report. The statements by Mr. Francis on 29 May 2000 show that he had not by then completed his investigation and report. Nevertheless, the Tribunal that day revoked the enduring power. It may be a question whether the Tribunal on 29 May 2000 determined the question referred and, if it did, another question what the effect of the consequent non-observance of sub-clause (3) is. Since these questions were not raised by the grounds of appeal or grounds for judicial review and were not argued, it is not appropriate to attempt to answer them.

143. It was submitted in argument for Maurice A that in its ruling of 29 May 2000 the Tribunal acted in accordance with s.78(2)(b) of the VCAT Act. Sub-section(1) of s.78 provided that the section applied if the Tribunal believed that a party to a proceeding was conducting it in a way that unnecessarily disadvantaged another party by conduct such as failing to comply with an order or direction of the Tribunal without reasonable excuse. By sub-s.(2)(b), if the section applied, the Tribunal might if the party causing the disadvantage was not the applicant determine the proceeding in favour of the applicant and make any appropriate orders, or order that the party causing the disadvantage be struck out of the proceeding. By sub-s.(3) the Tribunal's powers under the section were exercisable (which I take to mean here to be exercised rather than capable of being exercised) by the presiding member. The attorneys were not struck out of the proceeding. It is true that the proceeding was determined in favour of the applicant and that orders appropriate to his success were made. But the Tribunal did not profess to act under the section, as one would expect if it were doing so, and, perhaps more importantly, it gave reasons which went to the merits of Maurice A's application, speaking of "all the circumstances" and "having regard to the Supreme Court application which is due on Wednesday". Further, although the ruling was given by the presiding member, the Vice President, he used the first person plural of the Tribunal, which is inconsistent with the exercise by him alone in accordance with sub-s.(3).

146. I come now to the one point of real difficulty in this case, of which I have earlier reserved consideration. This is the statutory variation of the VCAT Act in relation to applications under s.118 of the Instruments Act. It may be noted that it was not relied on by the Tribunal on 29 May or 2 June 2000. Part 4 of the VCAT Act set out the general procedure of the Tribunal. Section 58(2) stated that Schedule 1 set out variations from the general procedure for certain types of proceedings.[27] Clause 43 of the Schedule provided:

"43. Proceeding not invalidated by failure to give notice A hearing or order of the Tribunal in a proceeding under section 118 of the Instruments Act 1958 is not invalidated or affected only because of a failure to give notice - (a) to a person in respect of whom an application has been made, if the Tribunal - (i) has dispensed with the requirement for notice to be given to that person; and (ii) has notified the Public Advocate that it has done so; or (b) to any other person."

Almost identical provisions are contained in clauses 36 and 49 relating respectively to proceedings under the Guardianship and Administration Act and proceedings under s.5C of the Medical Treatment Act 1988, and the concept of the person in respect of whom an application is or has been made or a person in respect of whom one could be made is found in, for instance, ss.22(1), 46(1), 59(1) and 60(1) of the first-mentioned Act. With clause 43 is to be read s.98(4), whereby sub-s.(1)(a), providing that the Tribunal is bound by the rules of natural justice -

"does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice."

152. 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.

155. 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.

158. It follows that the order of 29 May was invalidated or void in the circumstances of this case for breach of the rules of natural justice because of the failure to give adequate notice of the final hearing of the application for revocation to the attorneys or their solicitor. It is to be emphasised that the conclusion I have expressed and the interpretation I have placed upon clause 43 do not mean that the Tribunal may not act validly in appropriate circumstances where there has simply been no notice given to anyone (provided that as regards the donor of the power paragraph (a) of clause 43 has been satisfied). It is in each case a question of the circumstances.

161. If, contrary to the conclusion expressed above, clause 43 protected the order of 29 May from invalidity, nevertheless there was nothing to suggest that the Tribunal had dispensed with the requirement for notice to Mrs. A or had notified the Public Advocate that it had done so. The Acting Registrar's "ring around" suggested to the contrary, and the Tribunal did not during the hearing or in its ruling mention that it had taken those two steps. Indeed it did not suggest that clause 43 was applicable. It would follow that there was a failure to notify Mrs. A through her solicitor Mr. Delahunty. It would not, however, seem open to the attorneys to rely on a denial of natural justice to another party, the de cujus.

164. The question was raised by the Bench during the hearing whether the attorneys had any rights to complain especially when the de cujus had been legally represented and, by corollary, whether she should have been joined as a party to the appeal and the judicial review proceeding. This question was not taken up by either respondent/defendant represented. In any event, I consider that the attorneys had a sufficient interest to be heard before the Tribunal and to appeal and seek judicial review. If the view that they were "parties" in the Tribunal is correct, they were entitled to be heard in the Tribunal and to appeal under s.148(1) of the VCAT Act as "part[ies] to a proceeding" in the Tribunal. So far as judicial review is concerned, s.11 of the Administrative Law Act 1978, read with the definition of "person affected" in s.2, applies, but by its terms it is not exhaustive. It is to be noted that Mrs. A has not challenged the orders of 29 May or 2 June 2000. The Tribunal's order of 29 May 2000 affected the attorneys' interests or at any rate their legitimate expectations. Their personal and business reputation was affected. True it is that, at least while the matter remained in the Tribunal, clause 44(1) of Schedule 1 to the VCAT Act confined to the parties and the family knowledge of the fact that Peter A and Patrick were the attorneys whose authority had been revoked. On the whole, I conclude that the attorneys, and in particular Peter A, satisfied the criteria for successful complaint in judicial review proceedings stated in Ainsworth v. Criminal Justice Commission[31].

167. 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

be quashed, the injunction should be made permanent. The appeal should be dismissed, but only because the relief is more appropriately granted in the judicial review proceeding.

171. It may be that Peter A's success will prove illusory. The various parties may find that other steps have to be taken urgently with respect to Mrs. A's estate, such as it now is.

176. I agree with Batt, J.A. that, for the reasons stated by his Honour, the order revoking the enduring power of attorney should be quashed, the 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 the members who made the original orders, and the appeal dismissed.

[1] It is stated in an affidavit sworn 16 June 2000 by Ross Delahunty, a solicitor referred to again later, that the application was filed on 17 November 1999 in response to the order of Beach, J. of that date appointing the attorneys litigation guardians in the partnership proceeding; but, although Mr. Francis also stated to the Tribunal on 29 May 2000 that the application was lodged on 17 November 1999, there are some errors in the affidavit and the statement, which cannot be verified, must be regarded as speculative.

[2] This Act is cited as in force between 9 November 1999 and 22 June 2000. That excludes new ss.60A to 60D relating to rehearings, which commenced on 28 November 2000.

[3] The section is to be repealed and a detailed and extensive Part substituted by the Instruments (Enduring Powers of Appointment) Act 2003, which has been proclaimed to commence on 1 April 2004. Proposed s.125ZN will save existing enduring powers "as if [they] had been made under Division 2" of the new Part.

[4] Again, this Act is cited as in force between 9 November 1999 and 22 June 2000.

[5] The Public Advocate was entitled to intervene pursuant to clauses 33(a) and 41(a) of Schedule 1 to the VCAT Act.

[6] Outside the proceeding he had most confusingly acted for the attorneys.

[7] There are more statements than one in the papers that the order was made in the partnership proceeding, but it is not so headed and the subsequent attempt to compromise the partnership proceeding would have been pointless if the proceeding had been dismissed.

[8] Although s.148 uses the word "appeal", the Court's original, not appellate, jurisdiction is invoked by a proceeding in the nature of judicial review: Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue (Vic.) [2001] HCA 49; (2001) 207 C.L.R. 72 at 79, para. [15].

[9] The authenticated order refers to s.17B(3), but that is clearly a slip.

[10] That is, without notice to the attorneys.

[11] [2001] VSCA 80; (2001) 3 V.R. 289.

[12] Denial of procedural fairness is an established ground for relief in the nature of certiorari: Craig v. South Australia [1995] HCA 58; (1995) 184 C.L.R. 163 at 175-6.

[14] The amended notice of appeal sought preferably an order appointing Peter A as administrator that was not a temporary order.

[15] This led counsel for State Trustees to submit that seeking an administration order meant that the claim for quashing the revocation order was abandoned. But, whatever the consequences, this was not how Peter A's case was put.

[16] In s.46(1)(a)(iii) and s.60(1)(a)(iii) respectively of the Guardianship and Administration Act.

[17] If the hearing on 29 May 2000 was intended as a directions hearing, the statement in the text remains true. There would simply be an illustration of the proposition that a final order may be made on an interlocutory application.

[18] This seems to embody the common law principle applying to ex parte orders of courts and to place certain limitations upon it.

[19] The time for applying was limited by Rule 4.18(1) of the Victorian Civil and Administrative Tribunal Rules 1998 to 14 days after the applicant became aware of the order, though that could be extended under s.126(2) of the VCAT Act read with Rule 4.19.

[20] Compare Moore v. Guardianship and Administration Board [1990] VicRp 80; [1990] V.R. 902 at 913, lines 30-46.

[21] Set out in para.[[] below.

22] By s.12(2) of the VCAT Act a Deputy President must be a person admitted to legal practice for not less than five years.

[23] By s.32(3) a registrar other than the principal registrar had, subject to the direction of the latter, all the functions of the latter.

[24] This was that the Tribunal must, amongst other things, conduct each proceeding with as little formality and technicality as the requirements of the Act and the enabling legislation and a proper consideration of the matters before it permitted.

[25] [1999] HCA 52; (1999) 199 C.L.R. 99 at paras.[8], [62], [76] and [103].

[26] (2002) 5 V.R. 257 at paras.[34] to [37].

[27] A like provision is made with respect to the general jurisdiction and functions of the Tribunal by s.39(2).

[28] I shall sometimes refer to such a person as the de cujus, an expression explained by Sir Owen Dixon in "The Teaching of the Classics and the Law", reprinted in Jesting Pilate, 226.

[29] This was clearly the meaning of what seems to have been the prototype of clause 43, namely, s.72 of the Guardianship and Administration Board Act 1986, as originally enacted.

[31] [1992] HCA 10; (1992) 175 C.L.R. 564 at 576-578. See also Moore v. Guardianship and Administration Board at 917 line 47 - 913 line 9. It may be noted that under s.125W(2)(c), which will be inserted in the Instruments Act when the Instruments (Enduring Powers of Attorney) Act 2003 commences, an attorney under an enduring power is entitled to notice.

[32] Compare Moore v. Guardianship and Administration Board at 913, lines 30-40.