Guardianship and Administration

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Rehearing of orders and appealing VCAT decisions

Rehearings

If a person believes that VCAT has made an error in making its decision to impose a guardianship or administration order (for example, they believe that VCAT failed to take into account relevant evidence or placed too much weight on matters that were not relevant), then they can apply to VCAT for a rehearing of the original decision. The Office of the Public Advocate has published a useful fact sheet about rehearings.

A rehearing is a de novo hearing (that is, a completely fresh rehearing of the merits).  A person has a right to a rehearing if they were unaware of the hearing that made the order or there is new evidence.  Generally, a rehearing is conducted by a VCAT Member more senior than the original Member who heard the case.

The application for rehearing can be made only by a party to the original hearing or by a person who received notice of the original hearing but was not a party to it, provided that person first obtains VCAT's approval (s 60A(1) and (2)).

The application for rehearing must be lodged with VCAT within 28 days after the day on which the original order was made or, if the party requested written reasons from VCAT for its first decision, then within 28 days after the date those reasons are received (60A(4) and (5)).

An application for a rehearing should be made in writing to the registrar, Guardianship List, VCAT and addressed to VCAT.  The VCAT reference number, the name of the person about whom the original order was made, the date of the original order and a brief summary of the reasons why the original order is believed to be incorrect (for example, a reference to irrelevant information that was relied upon) should be included in the application.

A rehearing application cannot be made in respect of the finding of a previous rehearing, nor can an application for leave to apply for a rehearing be the subject of a further rehearing (s 60A(6)(d)).

In determining a rehearing, VCAT may affirm, vary or set aside the order of VCAT at first instance (s 60C). Pending the rehearing, the order remains in force unless VCAT suspends it (s 60D).

An application for a rehearing does not affect the operation of any order or prevent the taking of action to enforce the order, unless VCAT makes an order staying the operation of an order pending the determination of the rehearing (s 60D). 

    Appeals on a question of law

    Under section 148 of the VCAT Act, it is possible to appeal a VCAT decision, on a question of law, to the Trial Division of the Supreme Court of Victoria.  The court must first grant leave to appeal, and the application for leave to appeal must be made within 28 days of the VCAT order, in accordance with the rules of the Supreme Court. The proceeding is by way of judicial review rather than by way of appeal and must be instituted within 14 days of leave being granted.

    On appeal, the Supreme Court may make the following orders:

    • an order affirming, varying or setting aside the VCAT order;
    • an order that VCAT had the power to make in the original proceeding;
    • an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by VCAT in accordance with the directions of the court; or
    • any other order the court thinks appropriate.

    It is not within the scope of this chapter to cover other judicial avenues available to clients following a VCAT decision.  However, be aware of your client's ability to appeal a decision of VCAT and inform the client of this. 

    Review hearings

    A person in respect of whom an order is made may apply to VCAT 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 (VCAT Act s 120(1)). VCAT may:

    • hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and
    • if it thinks fit, order that the order be revoked or varied.