1. DTV ('the principal') made an enduring power of attorney dated 15 June 2004 appointing her husband, LMU, and two of her daughters, ZMZ and CET, as attorneys, to act jointly and severally, and with immediate effect.
2. The principal died on 29 September 2024.
3. The applicant, VDA, is one of the principal's daughters. She made an application to VCAT dated 9 April 2025, pursuant to the Powers of Attorney Act 2014 (Vic) ('POA Act').
4. In her application VDA alleges that LMU breached the POA Act by using his position for personal gain and for the benefit of CET. She seeks accounts, compensation and for orders regarding conflict transactions and liability. Her application is against LMU only.
5. The principal left a Will dated 15 June 2004 appointing LMU as her executor. VDA received a legacy of $400,000, with the residuary estate divided equally between ZMZ and CET.
6. There are current proceedings relating to the estate in the Supreme Court involving ZMZ. VDA is not involved in those proceedings. She referred in her oral submissions to a possible Part IV claim, however no claim has been made.
7. By way of application dated 11 July 2025, LMU applied for VDA's application to be struck out or dismissed in accordance with section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), or alternatively to be referred to the Supreme Court in accordance with section 77 of the VCAT Act. LMU also argues that VDA does not have standing to make her application under the POA Act, and that her application should be struck out on that basis.
8. I informed the parties at the commencement of the hearing that an order pursuant to section 77 of the VCAT Act may only be made by a judicial member of the Tribunal. As I am an ordinary member, I am unable to hear that part of the application and make a referral. I informed LMU's counsel that the application could proceed as an application on the basis of section 75 of the VCAT Act, with the application pursuant to section 77 able to be adjourned with a right of renewal for determination by a judicial member. Alternatively both applications would need to be adjourned.
9. Ms Braun elected to proceed on the basis of the application pursuant to section 75 of the VCAT Act.
10. I heard the application in relation to section 75 at the hearing on 21 August 2025 and reserved my decision.

1. Section 75 allows the Tribunal to summarily dismiss or strike out proceedings which are frivolous, vexatious, misconceived or lacking in substance; or otherwise an abuse of process. In effect, this allows the Tribunal to dismiss or strike out an application without conducting a substantive hearing.
2. The accepted approach of the Tribunal is to proceed in section 75 applications with great caution. The principles which govern the exercise of the Tribunal's power are well established,[1] and have been previously summarised as follows:[2]
   • The proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail.
   • The power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be 'very clear' that the proceeding is 'absolutely hopeless'.
   • The power should not be invoked where all that is shown is that, on the material currently before VCAT, the applicant may fail to adduce evidence substantiating an essential element of the complaint.
   • A proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.
   • The respondent to a proceeding bears the persuasive burden of showing 'that the complaint is undoubtedly hopeless.'.
3. It is appropriate that the Tribunal exercise a high degree of caution in determining an application under section 75 of the VCAT Act. The discretion to summarily dismiss or strike out an application denies the applicant the opportunity to have their case heard and determined in the ordinary course, and the discretion should be exercised only in the clearest of cases. This is particularly the case where an applicant is self-represented.
4. In Medical Practitioners Board of Victoria v Saddik,[3] Deputy President Dwyer observed:

It is not appropriate for the Tribunal, in exercising its power under s 75 of the VCAT Act, to effectively conduct a pre-trial assessment to determine if the complainant can prove its case.

...

The respondent has an onus of showing the complaint is undoubtedly hopeless, unsustainable, and bound to fail, or that there is no reasonable question to be tried. This places a heavy burden on the respondent in making out a case for summary dismissal. It is not enough for the respondent to show that the proceeding against the respondent is weak.

LMU'S SUBMISSIONS THAT THE APPLICATION SHOULD BE DISMISSED OR STRUCK OUT

1. It appears to me that the substance of LMU's submissions in relation to a section 75 application is based on four grounds - firstly, that VDA does not have standing to make her application, secondly that the principal at all relevant times had decision making capacity, thirdly that the application is voluminous, vague and not particularised, and fourthly that it is an abuse of process or misconceived.
2. I confirmed with counsel at the time of the hearing that the main substance of the section 75 application was contained in their oral submissions, as these submissions were broader than the written submissions that I had received.

1. LMU argues that VDA does not have standing to make her application pursuant to the POA Act. They say that she is not a residuary beneficiary of the principal's Will, and subsequently does not have an interest in the estate, other than to the extent of her gift which is $400,000. They say that there are sufficient assets in the estate to discharge her legacy.
2. Counsel for LMU made oral submissions that VDA is using her application to obtain documents to further her sister's application in the Supreme Court, and that she is aligned with ZMZ.

1. It is submitted that at all times the principal had decision making capacity, and was able to make decisions, or ratify decisions made by LMU.
2. LMU relies on the medical report of Emeritus Professor David Ames dated 6 July 2025 in providing evidence that the principal had capacity at all relevant times. In that report, Emeritus Professor Ames states that he treated the principal from 7 March 2018, with his last consultation taking place on 28 August 2024. The principal had been diagnosed with bipolar disorder which was well managed throughout her life. From time to time she required treatment in hospital. It is submitted that with the exception of short periods, she retained full capacity. She is described as being a woman who was not easily influenced.
3. Emeritus Professor Ames writes that during the time he treated the principal, her illness was effectively managed with medication. He states that although she had a mild cognitive impairment, she did not fulfill the diagnostic criteria for dementia. She did experience temporary delirium, however, this was short term and she made a good recovery.
4. Counsel made submissions that during the course of a 61-year marriage, LMU managed the finances for the couple. He was a chartered accountant and company director and handled the finances of the couple with the full knowledge of the principal, including managing an inheritance.
5. Counsel made submissions that the presumption of capacity has not been displaced.

Application is voluminous, vague and not sufficiently particularised

1. Further submissions in relation to the section 75 application were that the application is voluminous, broad ranging, vague and not sufficiently particularised.
2. Counsel made submissions that VDA has effectively sought all documents which she could possibly think may relate to the couple's finances.

1. Counsel made submissions that the application has been made for ulterior purposes, enlivening section 75. She states that the application amounts to a malicious fishing expedition and appears to be an attempt to gather information to bolster or establish a claim against the principal's estate.
2. In her submissions, Ms Braun referred to numerous gifts made to family members during the principal's life, including to VDA. She states that the intention of VDA appears to be to bring those transactions into dispute, alleging that they have diminished the principal's funds. She states that these gifts were made with the full knowledge of the principal. She argues that there is no evidence to show that there has been a mismanagement of funds.
3. Counsel states that the intention of VDA appears to be to bolster claims on foot in the Supreme Court in which ZMZ is the applicant. Ms Braun states that although VDA is not a party to these proceedings, she is aligned with ZMZ.
4. Counsel argues that many of the requests for records relate to documents which can only be released by corporations, and that VCAT does not have jurisdiction to order the production of such documents. Ms Braun argues that the claims of VDA are vague and unsubstantiated, and that she seeks categories of documents which are external to VCAT's jurisdiction.
5. Ms Braun also bases her submissions on a request for documents which relates to companies LMU was a director of, and states that any actions undertaken in relation to those companies were as company director, not as attorney.
6. Counsel refers to VDA's email of 14 July 2025, and states that this email relates to numerous categories of documents she seeks to have produced. Counsel argues that these documents are external to the jurisdiction of the Tribunal.

VDA'S RESPONSE TO THE SECTION 75 APPLICATION TO STRIKE OUT OR DISMISS THE APPLICATION

1. VDA made submissions that the principal and LMU were estranged for at least a decade before the principal died. She says that LMU would use money for control and influence, and that he would only give the principal small amounts of money for shopping.
2. In her written and oral submissions, VDA makes reference to allegations of sexual abuse she has made, and threats she says were made to her from LMU regarding access to her family and finances if she made those allegations.
3. In her written submission, VDA states that the principal entered residential aged care in 2009. She states that prior to that time LMU exerted control to restrict the principal's ability to contact her.
4. VDA states that the principal had a severe mental illness, and that she required multiple mental health admissions. She does not provide any medical evidence, but states from her own experience that the principal's capacity was at many times impaired. She states that although the principal's illness was managed, she was unable to understand complex matters such as shares. She argues that LMU would only provide the principal with information on a 'needs to know' basis, and that he continued to have power and control. She argues that the intention of LMU was to distribute the assets of the principal prior to her death.
5. In relation to the medical evidence of Emeritus Professor Ames, VDA argues that he did not care for the principal for the duration of the enduring power of attorney, and that her mother's engagement with him was limited.
6. VDA states that at the commencement of the EPOA, the principal had assets of approximately $5 million. At the time of her death her estate was valued at $7.4 million. She states that there had been minimal growth in the assets, other than ASX shares which were bequeathed to LMU. She says that cash funds in Singapore are unaccounted for, and there are discrepancies in loan repayments from a trust.

DOES VDA HAVE STANDING TO MAKE HER APPLICATION?

1. The POA Act at section 78 specifies who is able to apply to VCAT for an order of compensation. The following are specified:

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

(a) The principal; or

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

(c) An executor or administrator of the principal's estate; or

(d) The Public Advocate; or

(e) The nearest relative of the principal; or

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

1. Section 122(1) specifies who is able to apply for an order under Division 2 of Part 8 of the POA Act. Specifically in this application, this section is relevant to the issue of standing in relation to the ordering of accounts and orders relating to conflict transactions.
2. The following are specified as able to apply to VCAT:

(a) the principal; or

(b) for -

(i) an enduring power of attorney, any attorney under the enduring power of attorney; or

(ii) a supportive attorney appointment, any supportive attorney under the supportive attorney appointment; or

(c) The Public Advocate; or

(d) The nearest relative of the principal; or

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

1. The category of having a 'special interest in the affairs of the principal' appears to be the category which could apply to VDA.
2. VDA is an adult child of the principal. Unlike her siblings she was not appointed as an attorney, the reasons for which are unknown to me. I was provided with some evidence that there was an estrangement between the principal and VDA. This was disputed by VDA who submitted that she had a close relationship with her mother.
3. In determining if VDA has standing to make her application I am guided by section 1 of the POA Act which outlines the purpose of the Act. Section 1(a)(iii) specifies that one of the purposes of the Act is 'the protection of persons whose affairs are being dealt with under enduring powers of attorney.'
4. This purpose of the POA Act supports the view that VCAT's jurisdiction is protective, and that it is appropriate to adopt an expansive view of who should be determined to have a 'special interest in the affairs of the principal'. To require an applicant to have a financial interest in the estate of the principal limits the operation of this section.
5. In the decision of MLO,[4] Deputy President Wilson discusses the issue of 'standing' and who has a 'special interest', observing that there is some complexity associated with assessing 'special interest' after a principal has died.
6. Deputy President Wilson points out that standing does not confer a personal right, and is not designed to allow an applicant to obtain documents for a collateral purpose, such as separate legal proceedings. He states:

Standing is given to be exercised to protect the affairs of the principal under the enduring power of attorney while they are alive and rights and interests of their deceased estate after the principal's death.[5]

1. I have taken into account the arguments put forward that VDA's application serves a collateral purpose to obtain documents to assist her sister's proceedings in the Supreme Court. I have not been provided with sufficient evidence to satisfied me that VDA's application is not a genuine attempt to protect the interests of her deceased mother's estate.
2. I am satisfied that VDA has a special interest in the estate of her mother. Although she does not have a direct financial interest in the outcome of a claim for compensation, it is appropriate that she be allowed to act to protect the interests of the estate. This not an assessment of the merits of her application, either for compensation or for accounts. It is rather an assessment of her role as having 'a special interest' in the affairs of her mother. In the absence of clear and compelling evidence that there was a significant estrangement between VDA and the principal, I am satisfied that VDA has a special interest in her mother's affairs.

IS THE PRINCIPAL'S DECISION MAKING CAPACITY RELEVANT TO A SECTION 75 APPLICATION?

1. Both parties have made submissions as to the principal's capacity, and LMU has provided written evidence from her treating psychiatrist.
2. The question of whether the principal had decision making capacity, and at what time she may have lost decision making capacity is an evidentiary question, and a question of fact. It is inappropriate to determine this question at a section 75 hearing. It is a question which should be determined at a full hearing.
3. It is relevant to note that although the issue of capacity is a very relevant issue, it is not a threshold issue which needs to be determined before an application pursuant to the POA Act can succeed. There is no rule that requires that a principal lack decision making capacity for a claim to be made under the POA Act. This is particularly the case when a EPOA takes immediate effect.
4. For these reasons, I am not satisfied that the issue of capacity is a determinative one in relation to the section 75 application.

1. The applicant in a section 75 application bears the onus to prove their case. In this instance it is for LMU to convince the Tribunal that the application made by VDA must be struck out or dismissed, because it is frivolous, vexatious, misconceived or lacking in substance; or otherwise an abuse of process.
2. It is not for VDA to prove her case, or to produce any evidence to support her case. A section 75 application is not an opportunity to assess the substantive merits of her case.
3. In determining the application to strike out or dismiss the application, I have considered that the section 75 application has been made early in these proceedings and that there has not yet been a directions hearing listed. It is the case that the proceedings are at an early stage, and the claim and defence have not yet been particularised.
4. Although the application in its current form may be vague, it is not necessarily appropriate to strike it out at this stage for this reason. In particular, I take into account that there has not yet been the benefit of further directions and orders.
5. It appears to me that a more appropriate, and usual procedure of the Tribunal would be to list the matter for a directions hearing, and to make directions to particularise the claim, particularise the documents sought, and to limit the scope of documents which are sought, if appropriate.
6. There are current Supreme Court proceedings involving ZMZ. Submissions were put to me that the documents sought by VDA in these proceedings are the same as documents sought by ZMZ in the Supreme Court proceedings. Counsel for LMU states that ZMZ and VDA are aligned. I am not satisfied that the application should be struck out or dismissed on this basis, as I am not satisfied on the evidence presented that the application of VDA amounts to an abuse of process.
7. In determining this application I am guided by the Tribunal's earlier decisions that make it clear that great caution should be exercised when considering a section 75 application. In particular, I place great weight on the fact that when dealing with an application for summary dismissal the applicant is denied the opportunity of a full hearing.
8. For the reasons outlined above, I am not satisfied that LMU has sufficiently made the case that the proceedings should be summarily struck out or dismissed.
9. I note briefly that correspondence was received from a solicitor representing CET. They state that they are not representing CET in VCAT proceedings, and if an application is made to join CET, they intend to defend such an application. It is noted that there has been no application to join another party.
10. There are additional written submissions relating to the Tribunal's jurisdiction in relation to an application pursuant to section 77 of the VCAT Act. That application has been dealt with in the orders made at the beginning of these reasons.
11. The application is referred for a directions hearing to be scheduled not before 24 October 2025.

[1] Owners Corporation No1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683.

[2] Axicom Pty Ltd v Melton CC [2020] VCAT 190 at [9].

[3] (Occupational and Business Regulation) [2010] VCAT 366 at [10].

[4] (Guardianship) [2025] VCAT 247 at [40].