VIC Guardianship VCAT

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sammy01

Well-Known Member
27 September 2015
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i saw your other thread. you really need to ask specific questions to get specific answers
 

Joanne Mansell

Active Member
18 December 2018
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Thanks Sammy. I have the grounds of appeal sorted I just have no idea about the questions of law that go with them.
 

Docupedia

Well-Known Member
7 October 2020
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454
Do you mean 'question of law' as in 'you can only appeal on a question of law'?
 

Joanne Mansell

Active Member
18 December 2018
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0
31
Yes. I have the grounds to appeal. See below. Unsure of the laws that apply to them.


THE GROUNDS OF APPEAL ARE:

1. Member Josephs erred in finding the plaintiff was solely responsible for obtaining the medical evidence required to support her application, given that it was VCAT itself which instigated the creation of a neuro-psychological report of the represented person.

2. Member Josephs erred by denying the Plaintiff procedural fairness.

3. Given VCAT’s role in the protection of those with a disability, Member Josephs should have ordered the expert engaged by the Office Public Advocate to finalise his report and reach a conclusion as to the represented person’s capacity to make financial decisions.

4. Such further or other grounds that may arise upon the submissions.
Cheers
 

Docupedia

Well-Known Member
7 October 2020
179
15
454
This just means that you can't appeal a factual finding, you can only appeal an interpretation of the law. Picking out what is relevant (a) requires a proper review of the decision which you are appealing and (b) constitutes legal advice - so you're not going to be able to get your answer here.

Your best option is to engage a lawyer who can do this for you. Your appeal pathway appears to be to the Supreme Court, so it's not something you want to get wrong.

The DIY option is to:
1. Identify the issues you wish to appeal (which you appear to have done above);
2. Look at the explanation given in the decision for the findings you wish to appeal;
3. Determine whether those findings are made on the basis of a finding of fact, or an interpretation of the law;
4. If it's the latter, then that is a question of law and you phrase it as such.

For example: The member determined that you had the onus of proof for a particular issue, and found against you because you didn't tender sufficient evidence to do so. The evidence itself amounts to a question of fact. The finding that you had the onus is a question of law - which you could phrase as, "That the member erred in finding the respondent had the burden of proof in establishing [situation] under [legal provision]."