VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. 102727	
CATCHWORDS	
Referral under section 179 Guardianship and Administration Act 2019 – whether referral is futile – lack of evidence regarding proposed represented person’s decision-making capacity for legal matters – whether appointment of an administrator may be futile.	

PRINCIPAL	OXA	
WHERE HELD	Melbourne 	
BEFORE	Senior Member A. Smith	
HEARING TYPE	Directions hearing	
DATE OF HEARING	3 May 2024	
DATE OF ORDER	3 May 2024 	
date of written reasons	13 May 2024	
citation	OXA (Guardianship) [2024] VCAT 448	

Order

VCAT orders that: 
Under section 80 of the Victorian Civil and Administrative Tribunal Act 1998:
The register is amended to remove the application for supportive guardianship and guardianship and to add an application for administration. 
Only the Office of Public Advocate attended the hearing. 
The proceedings are adjourned to a further directions hearing on a date to be fixed before Senior Member Smith. For the purposes of the next directions hearing only, Saltwater Clinic (through its solicitors Lander & Rodgers) is to be added as an interested person. 
Unless representations are made by any person at the next directions hearing that the referral is meritorious and not futile, the application referred under section 179 of the Guardianship and Administration Act 2019 will be dismissed for reasons set out in a brief statement of reasons produced today.

A. Smith
Senior Member			

APPEARANCES:	Office of the Public Advocate	

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 1986 that identifies or could lead to the identification of a party to the proceeding.
1	In these written reasons for decision, I refer to the person who is the subject of the application as OXA. The Victorian Civil and Administrative Tribunal (‘VCAT’) has given the person that anonymised name to protect their identity and the confidentiality of their personal information. 
2	This proceeding is listed as an application for guardianship and supportive guardianship following a referral from the Supreme Court under section 179 of the Guardianship and Administration Act 2019 (‘GAA’). The referral includes the usual Court records supplied by the Deputy Prothonotary of the Court (‘the records’). The referral is received as if it is an application to VCAT under the GAA (section 179(2)(a)). The aim of the referral is to have a litigation guardian for OXA in the proceedings before the Court. 
3	VCAT’s registry has recorded the referral as an application for guardianship and supportive guardianship. This is misconceived. The role of a litigation guardian in a claim for damages would usually be the role of an administrator. I have amended the proceedings accordingly. 
4	From the records, it appears that the proposed represented person is a 40-year-old impecunious refugee with a mental illness. OXA filed a writ in the Court against a mental health clinic seeking $3,000,000 in damages related to his interactions with that clinic. On 30 October 2023 OXA obtained default judgment. The defendant applied to set aside the default judgment on 14 December 2023 and the Court granted that order on 28 March 2024. On the same date the Court referred this application to VCAT.
5	At the directions hearing today, only the Office of the Public Advocate (‘OPA’) attended. OXA did not answer the mobile phone number supplied to VCAT. 
6	VCAT cannot appoint an administrator unless it is satisfied that OXA lacks decision making capacity for these legal matters – section 30(2)(a)(ii) GAA. While the records include mental health records, there is not an assessment of OXA’s decision-making capacity for legal matters amongst those. 
7	The usual course of action after referral from the Court is for VCAT to ask OPA to investigate the application. This would often include a request for a neuropsychological assessment in relation to decision-making capacity for the matters about which the application is made and investigation of other related matters, such as the need for a guardian or administrator and the proposed represented person’s will and preferences. 
8	At the directions hearing, I expressed the following concerns that a possible referral by VCAT to OPA, and the ultimately the referral from the Court to VCAT, may be futile:
(a)	OXA is impecunious and cannot fund a neuropsychological assessment. He may be unlikely to consent to an assessment. OPA is not funded to pay for such assessments. There does not appear to be a practical means to supply information required for the purposes of section 30(2)(a)(ii) of the GAA.
(b)	The records show that OXA has filed materials and achieved a default judgment against a major institution without legal assistance. After assessment, a neuropsychologist might deduct from the court records and transcript that he has adequate capacity to conduct legal proceedings to the standard of an ordinary unrepresented litigant. 
(c)	Even if VCAT was to be satisfied of matters in section 30(2)(a)(ii) of the GAA, an administrator appointed to act as a litigation guardian will be bound by principles in sections 8 and 9 of the GAA to give all practicable and appropriate effect to OXA’s will and preferences. Under those provisions, the administrator can only override OXA’s will and preferences if necessary to do so to prevent serious harm to OXA. 
(d)	From the records, it appears OXA’s will and preferences are to proceed independently with his action for $3,000,000 against the mental health facility. 
(e)	An administrator may decide that there is not a risk of serious harm (noting his impecuniosity mitigates the risk of any future adverse costs orders causing him harm) and decline to intervene in the proceedings as a litigation guardian. 
9	For these reasons, I adjourned the proceedings to give an opportunity for a person to explain why the application may not be futile and why the application justifies the use of OPAs resources to investigate and VCAT resources to consider. 

A. Smith
Senior Member