Victorian Civil and Administrative Tribunal Act 1998 - application for order "correcting" order dismissing application, or alternatively for order summarily dismissing application - order not containing mistake - grounds for summary dismissal not made out where application consequence of referral by County Court.

Victorian Civil and Administrative Tribunal Act 1998 - application for "rejection of application" by principal registrar or, alternatively, for referral by him to Tribunal to consider rejection of application - whether power to make such order.

Victorian Civil and Administrative Tribunal Act 1998 - contempt - alleged disobedience of orders of Courts and Tribunal - no contempt of Tribunal established and not power to deal with contempt of a Court.

Victorian Civil and Administrative Tribunal Act 1998 - application for injunction restraining applicant and another - Court of Appeal proceeding pending - grounds for injunction not made out where application consequence of referral by County Court.

MNC: SB (Guardianship) [2007] VCAT 333

The Tribunal dismisses applications by the proposed represented person for orders or directions under sections 71, 75, 119, 123 and 137 of the Victorian Civil and Administrative Tribunal Act 1998.

Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal amends the application under section 126 for an extension of time in which to apply under section 120 of the Act by amending the section under which the application is brought to "section 126 (2)".

Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal extends the time for applying under section 120 of the Act to today.

The Tribunal being satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing on 10 January 2007, the Tribunal revokes the order made that day dismissing the application for non-appearance.

Pursuant to clause 35 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal refers the proceeding to the Public Advocate for investigation.

The Tribunal directs that the principal registrar schedule a hearing under sections 19 and 43 of the Guardianship and Administration Act 1986, to be heard at Melbourne not before 9 March 2007, before any Member of the Victorian Civil and Administrative Tribunal.

Mr. D. Masel, counsel on behalf of the principal registrar of the County Court, the applicant, instructed by the Victorian Government Solicitor.

Ms. N. Larkin, solicitor, office of the Victorian Government Solicitor.

(Counsel on behalf of a party to County Court proceedings in which SB is plaintiff, and his instructing solicitor, volunteered to withdraw when SB objected to their presence).

Christoudias v. Bogdanis and Port Phillip CC [2001] VCAT 454.

Alesci v. Salisbury [2002] VSC 475.

Curcio v. HGF and SPV Homes Pty. Ltd. [2003] VCAT 1041.

XYZ v. State Trustees Limited and anor [2006] VSC 444.

1. At some time in the future the Tribunal may have to consider whether a woman identified in these reasons as SB needs a guardian or administrator or both. The application for guardianship or administration orders arises because the County Court has referred that issue to the Tribunal. The applicant is the principal registrar of the Court. SB regards the application as defamatory, abusive and psychologically harmful to her. For now, I must consider merely whether the application, dismissed on 10 January when the applicant did not appear and was not represented, should be reinstated or whether, in particular, the application should now be summarily dismissed. On 2 March 2007 I conducted a hearing to determine those matters. I reserved my decision and now give my decision and reasons.

2. SB is a litigant in civil proceedings before courts including the County Court of Victoria and the Federal Court of Australia. She has appealed from the County Court to the Court of Appeal. She has been involved in related Supreme Court proceedings and told me at the hearing that she has recently sought to appeal directly to the High Court from the County Court (from the same order that is subject to the appeal to the Court of Appeal) and from one or more orders of the Federal Court.

3. SB told me that although she did not have formal legal training her involvement in litigation meant that she had acquired some legal knowledge. She believes that she has been abused by participants in various proceedings, including now the Tribunal. I am conscious that these feelings may only be reinforced by the fact that I reject numerous submissions made by her as essentially misconceived and dismiss her applications at the same time that I grant applications made by the principal registrar of the County Court. Therefore, although I was not hearing and determining any application for a guardianship or administration order, I begin with some general comments about guardianship and administration orders that I hope may be helpful to her.

4. The Tribunal will not be able appoint a guardian or administrator for SB unless, in particular, it is satisfied that she has a disability by reason of which she is unable to make reasonable decisions about relevant matters, and that she needs a guardian or administrator: Guardianship and Administration Act 1986 sections 22 and 46. Importantly, section 4 (2) of the Act provides that Parliament intends that, among other things, the Tribunal's jurisdiction be exercised so that the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests of a person with a disability are promoted; and the wishes of a person with a disability are wherever possible given effect to: see XYZ v. State Trustees Limited and anor [2006] VSC 444, per Cavanough J.

5. On 6 December 2006 the County Court (Judge Coish) made an order under section 66 of the Guardianship and Administration Act 1986 referring to the Tribunal for its determination the issue whether SB needs a guardian or administrator or both. Section 66 provides:

(1) If in any civil proceedings before a Court the Court considers that a party may need to have a guardian or administrator or both appointed under this Act, the Court may refer the issue to the Tribunal for its determination.

(2) If a Court refers an issue to the Tribunal under sub-section (1) -

(a)

the referral is to be treated as if it were an application to the Tribunal for the making of a guardianship order or an administration order (as the case requires); and

(b)

the prothonotary (in the case of a referral by the Supreme Court) or the principal registrar of the Court (in any other case) is to be taken to be the applicant."

6. The application was formally commenced by the applicant, the principal registrar of the County Court, later that month.

7. On 20 December 2006 the Federal Court (Middleton J) made an order staying proceedings commenced by SB pending the outcome of the VCAT application.

8. SB made a written submission to the Tribunal on 2 January 2007 indicating that, among other things, she had appealed from the order of Judge Coish.

9. On the following day SB obtained a Supreme Court injunction, ex parte. Bell J granted the injunction restraining the applicant and others from participating in the Tribunal proceeding. There was liberty to the applicant to apply for the order to be dissolved.

10. In the meantime, on 21 December 2006, the Tribunal scheduled a hearing of the application for 10 January 2007 at Dandenong and gave notice of hearing. A Member dismissed the application on 10 January, there being no appearance by or on behalf of the applicant. (SB was not present either).

11. On 1 February 2007 Heerey J of the Federal Court essentially maintained the stay earlier granted by Middleton J.

12. On 9 February the Supreme Court (Hansen J) made two orders. The first order, made inter partes on summons filed on behalf of the applicant, varied Bell J's order by permitting the applicant to file an application seeking reinstatement of the Tribunal proceeding "but to proceed no further with the application" until determination of SB's appeal to the Court of Appeal. The second order, made on SB's oral application, ex parte., dissolved the injunctions granted by Bell J and the variation made earlier that day by Hansen J.

13. The applicant subsequently applied to the Tribunal, on 15 February, under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 for review of the Tribunal's order dated 10 January (and, under section 126(1) of that Act, for an extension of the time in which to make that application). The applicant also applied for unspecified directions. Leave to amend the application (to one under section 126(2)) was sought on 22 February.

14. On 23 February the Tribunal gave notice of hearing scheduled for 2 March indicating that the hearing would proceed under sections 80 (Directions) and 120 of the Victorian Civil and Administrative Tribunal Act 1998.

15. Then, on 28 February, SB applied under section 119 of the Act for order correcting the Tribunal's order dated 10 January, effectively to record that the application was dismissed summarily. The stated reasons included that the application was vexatious and malicious and that SB's treating GP had given an opinion (attached to SB's application) that SB "has no need to have guardianship".

16. On 1 March SB made further applications. She applied, first, under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 for an order that the principal registrar (of the Tribunal) "rejects application for order" or alternatively, under section 76 (6) that the principal registrar "refers the application for order" to the Tribunal and that the Tribunal reject the application. Further or alternatively, SB sought to have the application summarily dismissed under section 75 as "unjustified" and to have the applicant and another informed of contempt charges under section 137, being for interference with the administration of justice and disobedience of the orders made by Bell J on 3 January. Finally, SB sought injunctions against the applicant and her solicitor restraining them from initiating or participating in proceedings against her "unless when called as Defendants". In an affidavit in support SB described the applicant's actions as vexatious, oppressive, abusive and unlawful and "wilfully intended to cause psychological injuries and trauma". She later described there has having been "criminal conduct" on the part of participants in the matter to date, both judicial and non-judicial.

17. Affidavits filed with the Tribunal disclose that SB has filed a summons to appear before the Court of Appeal, seeking an expeditious hearing of her appeal from the order of Judge Coish. The summons is returnable at the end of this week - on 9 March 2007.

18. At the commencement of the hearing it was confirmed that SB wished to proceed with her applications and Mr. Masel wished to proceed with the applicant's. Although Mr. Masel did not object to SB's applications being dealt with, SB objected to the applicant's being dealt with. At least they should be adjourned, she said.

19. It was then confirmed that the applicant did not seek more than the reinstatement of the proceeding and certain directions. That is, the applicant did not ask the Tribunal to hear and determine the application for a guardianship or administration order if the review were granted. (As noted, in any event, the Tribunal's notice of hearing referred only to sections 80 (directions) and 120 (reopening of proceeding) under the Victorian Civil and Administrative Tribunal Act 1998). Mr. Masel submitted that his client's application should proceed: there was no impediment, given that Hansen J finally dissolved the injunctions; and there was no stay of Judge Coish's order (see rules 64.25 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2005). On the other hand there were several proceedings in which SB was involved that were more or less in abeyance while the Tribunal proceeding was unresolved. I noted some remarks made by Judge Coish (at page 120 of transcript exhibited to an affidavit sworn by the applicant on 15 February 2007) that (in the context of appeals from a number of His Honour's rulings) he was aware of comments made by the Court of Appeal in relation to "the need to deal with this matter as expeditiously as possible". Mr. Masel was unable to tell me what this referred to precisely, but I understood SB to say that the concern had been to minimise the harm that proceedings were causing her.

20. As was highlighted by Mr. Masel, the summons returnable before the Court of Appeal on 9 March sought an expeditious hearing of the appeal - it did not mean that the appeal would be heard then. (SB did say, though, that she would be seeking to amend the summons with a view to achieving that result).

21. I took these matters into account and also considered that, whatever the outcome of the application for a guardianship or administration order, this was better determined as soon as possible. I therefore decided to proceed to hear all applications, commencing with those made by SB whom I permitted to make final submissions after I heard from Mr. Masel.

Application by SB to "correct" Tribunal's order dated 10 January 2007

22. SB submitted that the Tribunal's order made on 10 January 2007 should be corrected as it contained a "defect of form". Asked to explain what she meant by this she said that although the order correctly dismissed the application, the order should have stated not that the application was dismissed on the grounds that the applicant did not attend but rather that the application was summarily dismissed as an abuse of process. (SB used expressions such as "frivolous" and "futile" and "abuse of process" more or less interchangeably during the hearing).

23. The mistake in the order arose, SB said, because a Senior Registrar of the Tribunal had (according to the applicant's affidavit sworn on 15 February 2007) given advice that her attendance was not required. Thus, SB argued, the application could not be dismissed for the applicant's failure to attend. (It actually appears from the applicant's affidavit that there may have been some misunderstanding about advice given by the Senior Registrar and another officer of the Tribunal. The applicant deposed that she was under the impression that the advice was that she was not required to appear either personally or through a representative. It does not appear that the Senior Registrar purported to excuse the applicant from attending and of course, only the Tribunal - that is, a Member - could excuse a party from attendance. This did not occur). In any event, the applicant stated in her affidavit that the injunction prevented her from attending on 10 January.

24. SB then said that the order was incorrect because the Victorian Civil and Administrative Tribunal Act 1998 and Victorian Civil and Administrative Tribunal Rules 1998 provided that attendance was not required - that the Tribunal could deal with the application "on the papers". When I asked if she was referring to section 100 (2) of the Act she said that she was and stated further that she had agreed (as the section requires) for a decision to be made without her attendance. This was actually not supported by her written submission and affidavit affirmed on 29 December 2006, however. On the contrary, SB there requested an adjournment and set out reasons why the matter should not go ahead.

25. While it is so that the Member could have adjourned or even struck out the application on 10 January instead of dismissing it, the Member dismissed the application in circumstances where the applicant did not attend and was not represented. I cannot therefore concluded that there was any "defect of form" or other mistake that would warrant correction of the order. More significantly, SB's submission that the application should, by means of "correcting" the order dated 10 January, be summarily dismissed involved, as Mr. Masel put it in his submissions, a collateral attack on the order by Judge Coish. I now elaborate on that point in dealing with SB's application for summary dismissal of the application.

Application by SB for summary dismissal of proceedings

26. SB applied under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 to have the proceeding dismissed on the grounds that it was, among other things, an abuse of process.

27. I suggested to SB that section 66 of the Guardianship and Administration Act 1986 operated in such a way that if there was an order of the County Court referring an issue to the Tribunal then the "application" automatically resulted and so could not be said to be an abuse of process. The Tribunal could not interfere with the order of the Court. The Tribunal therefore could not dismiss the application summarily.

28. SB stated that the proceeding was futile and frivolous because there was no evidence to indicate that she needed a guardian or administrator. She referred to the report by her own GP. As I pointed out, however, that report expressed the opinion merely that "SB has no need to have guardianship". It was possible of course that the GP confused guardianship and administration. Still the report did not state that SB has no need of an administrator. On the other hand, the transcript mentioned earlier recorded Judge Coish quoting the report of a psychiatrist dated 5 December 2006 that contained the opinion that "[g]iven [SB's] fixed delusional beliefs, she does not have capacity to conduct litigation on her own behalf". (The test under the Guardianship and Administration Act 1986 with regard to administration orders is the person's capacity "to make reasonable judgments in respect of the matters relating to all or any part of her or his estate": section 46 (1) (ii), it may be noted).

29. Therefore, although given the way in which section 66 is clearly intended to operate I can see no basis for finding the application to be "unjustified" within the meaning of section 75 of the Victorian Civil and Administrative Tribunal Act 1998, I also do not accept the submission that there is "no evidence" in support of the application.

Application by SB to require principal registrar of Tribunal to reject application

30. SB submitted that I should in effect direct the principal registrar to exercise his power under section 71 of the Victorian Civil and Administrative Tribunal Act 1998 to reject the application, the grounds being that, for instance, the application was lodged out of time or did not comply with the Act or Rules.

31. It was not clear whether in this context SB meant the application for review or the originating application under section 66 of the Guardianship and Administration Act 1986. She said she meant the application for review but some of her submissions were clearly directed to the originating application. Whichever she meant (and whatever the precise meaning of "application" for the purposes of section 71) I note that section 71 permits (but does not require) the principal registrar to reject an application or to refer the matter to the Tribunal to consider rejecting the application. The principal registrar did neither. I do not see that the section permits the Tribunal to direct the principal registrar either to reject an application (especially after it has already been accepted) or to refer the matter to the Tribunal.

32. Undoubtedly intending to refer to the originating application, SB submitted that the applicant made the application without knowing or giving a reason for it and that she failed provide evidence in support even though she was given a chance to do so. The application was therefore "invalid". I have already stated why I cannot make orders under section 71 but I observe that there is no requirement in section 66 of the Guardianship and Administration Act 1986 for the applicant to know or do the things mentioned by SB. The applicant becomes the applicant by operation of law. By implication the applicant must notify the Tribunal of the referral, which she did. However, given the nature of the Tribunal's protective jurisdiction under the Guardianship and Administration Act 1986 and its powers under the Victorian Civil and Administrative Tribunal Act 1998 (including power to give directions or to refer the proceeding to the Public Advocate for investigation), it appears that the "statutory applicant", as Mr. Masel described the applicant, is not necessarily required to do more than notify the Tribunal.

33. SB's application for an order or direction under section 71 was therefore, in my view, misconceived.

Application by SB in relation to alleged contempt

34. SB applied for the Tribunal to "inform" the applicant and her solicitor of "contempt charges", being for "interference with the administration of justice" and "wilful disobedience" of orders of Courts and Tribunals - especially of Bell J's order. SB alleged that the applicant had deceived Courts and the Tribunal by proceeding at a time when Bell J's order remained on foot. As I understood her, SB did not accept that Bell J's order had been dissolved because, she said, the document had been produced in subsequent hearings.

35. I note that the Tribunal's powers to deal with contempt may be exercised by judicial Members only: section 137 Victorian Civil and Administrative Tribunal Act 1998, but I do not see that there has been any contempt of the Tribunal and of course it would not be for the Tribunal to deal with any contempt of a Court.

Supreme Court injunctions and the dissolution of those orders

36. I should say something further about SB's contention that Bell J's order remained in effect and that the applicant's conduct, when the matter returned to the Supreme Court to be dealt with by Hansen J on 9 February, and afterwards, was deceptive.

37. SB asserted that an undertaking was given to Hansen J on the applicant's behalf not to participate in the Tribunal proceeding (pending determination of the appeal from Judge Coish's order) beyond lodging an application for review. I observe that Hansen J's first order dated 9 February permitted the applicant to file an application seeking reinstatement but to proceed no further with the application until determination of the appeal. Mr. Masel, who appeared when Hansen J made his first order on 9 February, stated that there was no such undertaking and drew my attention to the relevant summons filed on the applicant's behalf seeking orders including one that Bell J's order be varied "to permit [the applicant] to participate in the proceeding before VCAT by apply (sic) to reinstate the proceeding and applying to have it adjourned until after 9 March 2007".

38. It appears likely, therefore, that the second reference to an "application" in Hansen J's second order meant the originating application under section 66: see paragraph 12, above. Whatever the case, Hansen J's second order dissolved his first order along with Bell J's order. It also appears significant to me that neither of Hansen J's orders recorded any undertaking by the applicant. I therefore do not accept SB's contentions. (SB told me that she has appealed also from one or more of Hansen J's orders and intends to have that consolidated with the appeal from Judge Coish's order).

Application by SB for injunction restraining applicant and her solicitor

39. SB applied for an injunction restraining applicant and another from initiating or participating in proceedings "against" her. I dismiss that application. To grant such an injunction would frustrate the order made by Judge Coish.

40. There were other submissions that SB made that were also misconceived. One was that the proceeding was invalid because the Tribunal did not assign a new proceeding number after the application was dismissed. Another was that it was unconstitutional for the Victorian Government Solicitor to represent "the judiciary" (notwithstanding that it was the principal registrar of the Court who was represented). Finally, SB submitted that it was a denial of natural justice for the application for reinstatement to be determined before the appeal from the order of Judge Coish was heard.

Applications by the principal registrar of the County Court

41. The application to have the proceeding reinstated involved the applicant first seeking an extension of time for that application. The applicant also applied to amend the application for the extension, however, for it was expressed to be pursuant to section 126 (1) of the Victorian Civil and Administrative Tribunal Act 1998 when this should have read section 126 (2). SB had no objection to the application being amended and so I amended it.

42. The issue then was whether time for the application under section 120 of the Act should be extended. (Rule 4.18 requires the application to be made within 14 days after the applicant becomes aware of the order). The essential reason given for the delay was the injunction granted by Bell J. SB opposed the extension and said that time should not be extended when the application was ultimately futile and frivolous. For reasons given earlier, I reject that submission. I exercised my discretion to extend the time.

43. Section 120 provides that a person "in respect of whom an order is made" may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made. The applicant was a person "in respect of whom" the order was made: see Christoudias v. Bogdanis and Port Phillip CC [2001] VCAT 454 and Curcio v. HSG and SPV Homes Pty. Ltd. [2003] VCAT 1041.

44. SB submitted, however, that the applicant could not apply under section 120 and that the applicant's only option was to appeal from the order dated 10 January. SB submitted also that section 120 applied only to interlocutory orders. In my view SB misunderstood the meaning and purpose of section 120, and I am satisfied that the injunction itself provided a reasonable excuse for the applicant not appearing or being represented at the hearing on 10 January. In this regard Mr. Masel cited Alesci v. Salisbury [2002] VSC 475 (quoted at p 417 in Pizer's Annotated VCAT Act (2d ed)) where Bongiorno J said:

"Section 120 is a section which is to be construed liberally. It would be difficult, I think, to put forward a case where a blameless non attending defendant would not be entitled to a review of the order made in his or her absence." (at paragraph 4)

45. I therefore revoke the order made on 10 January 2007. This enables the section 66 application to be heard and determined at some future time, subject obviously to the outcome of SB's appeal. For me to order otherwise would, as Mr. Masel put it, render Judge Coish's order nugatory.

46. Mr. Masel applied to have the Public Advocate substituted as applicant, submitting that the Public Advocate was better suited to perform that role than the principal registrar of the County Court who was applicant solely by operation of section 66 of the Guardianship and Administration Act 1986. I contemplated inviting an officer of the Office of the Public Advocate to attend to respond to this but SB reacted very strongly and very negatively at the suggestion, saying that it was an abuse of her. As I indicated to her after a break in the hearing, not for any legal reason but because I was concerned about the distress caused her by the prospect being raised, I decided not to pursue that course. Instead I inquired of Mr. Masel whether his client would be satisfied with a direction that she be excused from further participation in the proceeding. He confirmed that this would be satisfactory.

47. I prefer to excuse the applicant rather than to substitute the Public Advocate as applicant. The Public Advocate is entitled to intervene in the proceeding or be joined as a party: see Victorian Civil and Administrative Tribunal Act 1998 Schedule 1 clause 33. Nevertheless, the Public Advocate or his delegate was not present and able to express the Public Advocate's attitude to being substituted as applicant. My concern, that the Public Advocate may also have had, was not to substitute him as applicant when the proceeding might be referred for investigation under the Victorian Civil and Administrative Tribunal Act 1998 Schedule 1 clause 35.

48. SB argued that this issue should not even be considered because she had not been given notice about it. (The applicant in fact had formally applied for directions but did not specify what directions were sought). I see that as no obstacle in the circumstances however and note that section 80 permits the Tribunal to give directions at any time.

49. Finally, even if the County Court principal registrar were actively to remain as applicant, there do appear to be investigations to be undertaken that could not conveniently be undertaken by such an officer. It is therefore desirable that the proceeding be referred to the Public Advocate for investigation.

50. I therefore make the orders and give the directions set out at the beginning of these reasons.