The applicant argues that the proceedings are not very different from similar cases VCAT has decided such as TCM_[5]_ and TXY[6] so it should not be referred on the basis of complexity.
The applicant says the application is ready for hearing and determination and this application for strike out and referral on the basis of a recently introduced equity argument disadvantages the applicant in time, convenience and costs. She argues that the application is an abuse of process and a delaying tactic.
The applicant submitted that the attorney has not raised any equitable defences, as none have been included in the materials filed by the attorney prior to this application and that which is in the referral application has not been sufficiently particularised.
[2]
In written and oral submissions, the applicant has often stated that the deed and the loan agreement are unenforceable as they have not come into operation under their own terms because the loan agreement is unsigned. The respondent says that the loan and the deed are valid and reflect the wishes and actions of a competent principal, which would excuse the attorney from any allegation of a breach of his duties.
In discussion during submissions made to me at both hearings, I have explained to the parties that I cannot make a determination about whether the deed is valid, as that question is beyond VCAT's jurisdiction. The applicant says it is evident on the face of the documents that it is not valid. The attorney says that the transactions set out in the deed and the loan have been effected and the documents are operable. It is clear that, even at that level, there is a question that is key to the proceedings that VCAT lacks jurisdiction to decide.
The attorney has said that his defence (or his contention that the documents are operable) rests on equitable principles. The applicant says that there is no such equitable principle and that the application is an abuse of process as it has not been pleaded. I am unable to see a means by which I could determine whether or not such an equitable principle exists and could apply (or not) to this case without extending beyond VCAT's jurisdictional limits. Referral seems inevitable.
An issue, not raised by the parties, that may require resolution is the extension of time to apply for compensation. As noted in paragraph 9 above, an order made on 4 February 2025 anticipated that VCAT would extend time to make the application under s 79(1)(a) of the POA Act and s 126 of the VCAT Act. However, the subsequent order made on 2 April 2025 only approved the extension under s 126 of the VCAT Act. The provisions for the Court to grant extensions of time for referred applications in s 77(4)(a) of the VCAT Act are limited to considerations that do not apply in this case. It appears that the applicant will have to apply to the Court under s79(2) of the POA Act to extend time to apply for compensation.