ASQ v Victims Compensation Fund Corporation

NCAT Administrative and Equal Opportunity|2017-03-13

Reasons for decision

On 24 November 2014 I made a decision in an application by ASQ relating to the incident the subject of this current application. That 2014 decision was made in NCAT claim number 1370543 which had commenced in the former Victims Compensation Tribunal on 6 October 2009 as case number 161375. That claim concerned an incident (referred to by way of reference to the legislation as an act of violence) which occurred on 3 January 2003.
The application was brought under the provisions of the now repealed Victims Support and Rehabilitation Act 1996 (the old Act) in ASQ's capacity as a secondary victim. In that regard the old Act made provision for parents of primary victims under the age of 18 years at the time of the act of violence, to bring a claim if it could be established that they suffered a compensable injury as a direct result of becoming aware of the act of violence. These claimants were referred to under the old Act as secondary victims under section 8 (2) of the old Act.
Other classes of secondary victims covered under the old Act were persons who suffered a compensable injury as a direct result of witnessing an act of violence directed towards a primary victim, or persons who were trying to assist or otherwise help or rescue a primary victim immediately after the act of violence.
ASQ's claim related to a primary claim concerning his then infant son (referred to by the Tribunal as 'ARU'). The operation of section 8 (2) of the old Act required the primary claim to be determined successfully prior to consideration of the merits of such secondary claims. The basis of this legislative requirement is that all secondary claimants are required to establish standing through a successful primary claim. If a primary claim fails all related secondary claims fail by operation of the legislation.
In addition however any successful primary claim is entitled to a pool of statutory compensation up to $50,000 subject to (amongst other things) establishing the nature and level of compensable injury. A secondary claim (after establishing the mandatory requirements under the old Act), is entitled to an award totalling or up to the value of any remaining statutory compensation available from the original $50,000 pool of potential funds.

The Initial Determination New South Wales Civil and Administrative Tribunal Case Title: ASQ v Victims Compensation Fund Corporation (No 1) Medium Neutral Citation: [2014] NSWCAT Hearing Date(s): On the papers Decision Date: 27 November 2014 Division: Administrative & Equal Opportunity Division Before: J McAteer Senior Member Decision: (1) Pursuant to section 38 (5) (a) of the old Act I affirm the decision of the Director's delegate under section 26 of the old Act. (2) The appeal is dismissed. (3) There is no order as to costs. Catchwords: Victims Support - Leave to appeal - no prospects of success - secondary victim claim where primary victim claim dismissed Legislation Cited: Victims Support and Rehabilitation Act 1996 Cases Cited: ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203 Texts Cited: Category: Appeal Decision Parties: ASQ Victims Compensation Fund Corporation Representation - Counsel: N/A N/A - Solicitors: ASQ - McKells Solicitors VCFC - N/A File number(s): 137053 (Decision under review 161375) Publication Restriction: REASONS FOR DECISION 1 ASQ claimed statutory compensation under the provisions of the Victims Support and Rehabilitation Act 1996 (the old Act), as a secondary victim to an act of violence apparently relating to one of his children. As a secondary victim ASQ claimed that he received a compensable injury as a direct result of becoming aware of his child's injury. 2 The claim was brought on 6 October 2009 and related to an incident which apparently occurred on 3 January 2003. The claim was therefore lodged over four and a half years beyond the limitation period provided for in section 26 of the old Act. 3 Section 26 of the old Act relevantly provides that: 26 Time for lodging applications (1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim. (2) An application that is lodged out of time may be accepted with the leave of the Director. (3) The following policies apply to the giving of leave by the Director for the acceptance of an application lodged out of time: (a) leave should not be given unless the applicant establishes that there is good reason to do so, (b) however, leave should be given in cases of sexual assault, domestic violence or child abuse unless the Director is satisfied that there is no good reason to do so, (c) leave should not be given merely because the applicant is unaware of the time within which applications should be lodged, (d) the matters taken into account under section 30 (2) for the purpose of determining whether an act of violence was reported to a police officer within a reasonable time should also be taken into account for the purpose of determining whether there is a good reason for giving leave. (emphasis added) 4 As a result ASQ required leave to proceed outside of the limitation period. The other provisions of section 26 do not concern this application. The apparent reasons for the delay related to the fact that the primary victim claim (upon which this claim was based) was only lodged within the previous 12 months and as a result, it was therefore not possible for this matter to have been lodged within time. 5 The provisions relating to secondary victim claims are as follows: 8 Who is a secondary victim? (1) A secondary victim of an act of violence is a person who receives a compensable injury as a direct result of witnessing the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act. (2) A secondary victim of an act of violence extends to a person who receives a compensable injury as a direct result of subsequently becoming aware of the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act, but only if: (a) the person is the parent or guardian of the primary victim of that act, and (b) the primary victim was under the age of 18 years at the time of that act, and (c) the person did not commit that act. The person is taken, for the purposes of this Act, to have witnessed the act of violence. (3) For the purposes of this section, a primary victim does not include a person who is a primary victim only because of the operation of section 7 (2). The specific provisions of section 8 (2) pertain to ASQ's standing to bring a claim in his capacity as a secondary victim. 6 ASQ has been legally represented throughout, as was his child's primary victim claim. A compensation assessor as delegate of the Director of Victims Services considered the issue of leave to apply outside of the two year statutory limitation period on 1 April 2011. Leave was declined because there was a presumption against the giving of leave to proceed, as the claim was not one which fell within the provisions of section 26 (3) (b) of the old Act (see paragraph 3 above). An additional basis implied in the compensation assessor's decision of 1 April 2011 was that at that time, the primary victim claim (having been given leave to proceed on appeal) had been dismissed on its substantive merits appeal. ASQ's claim therefore had no prospects of success. On this basis the compensation assessor declined to give leave to proceed out of time. 7 On 4 July 2011 a Notice of Appeal was lodged with the Victims Compensation Tribunal within the three months required by the old Act (after taking into account the rules relating to service of the Notice of Determination). That Notice of Appeal indicated that the decision of the Tribunal to dismiss the primary victim's substantive claim, was being appealed. At that time such appeals lay to the District Court of New South Wales and subsequent appeals were lodged with the Court that month. One of the grounds of appeal stated that: (2) The Appellant in this matter appeals against the decision in this matter on the basis that appeals are being lodged against dismissals of the appeals to the VCT by the primary victims to the acts of violence. If those appeals are successful, then the decision in this matter was made on a basis that is not good in law and the matter should therefore be remitted for consideration according to law. 8 Ordinarily such an appeal would be dealt with by the Tribunal within six months, however, as its result was predicated on what would be the appeal outcome of the primary victim claim, by consent this appeal was adjourned to be considered after the primary claims appeals were finalised. 9 For a range of reasons which are detailed by way of explanatory background in the decision of this Tribunal in the case ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203, between July 2011 and November 2014 the primary victim claim was awaiting finalisation. As that claim was recently finalised it is now possible to proceed with this matter. Application of the old Act 10 On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). August 2013. 11 However, on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b) ) were still in force. 12 On 4 June 2013 this appeal was transferred to the ADT. However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 13 Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 14 As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal and, in doing so, to exercise all the functions that were exercised by the Tribunal immediately before the commencement of the new Act. 15 This is a claim whereby there is a presumption against the giving of leave. (see section 26 (1) and 26 (3) (a) of the old Act). As such ASQ must establish that there is a good reason to give leave. 16 The primary claim was recently dealt with in the appeal decision of ARU (ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203). In that decision the application by ARU was dismissed because the Tribunal was not satisfied that ARU had suffered a compensable injury, to which statutory compensation was payable, as a direct result of the act of violence. 17 Section 22 of the old Act relevantly provides the following: Division 4 Persons not eligible for statutory compensation 22 Secondary or family victims (1) A secondary victim or family victim is not eligible to receive statutory compensation if the primary victim through whom he or she is claiming is not eligible, or if the primary victim had not died would not have been eligible, to receive statutory compensation to which section 14 applies. (Emphasis added). 18 As a result of the decision in ARU, the primary victim through which ASQ is claiming, is not eligible to receive statutory compensation. It follows that ASQ's claim is captured by the provisions of section 22 (1) of the old Act. ASQ is therefore a person who is not eligible to receive statutory compensation in accordance with the terms of Division 4 of Part 2 of the old Act. 19 As ASQ is not eligible to receive statutory compensation, there can be no good reason to give leave to proceed outside of the limitation period. 20 As there is no good reason to give leave in accordance with section 26 (3) (a) of the old Act, I therefore decline to give leave to proceed. 21 The appeal application is therefore dismissed. There is no order as to costs.

As can be seen from the decision above, in ASQ v Victims Compensation Fund Corporation (No 1), the Tribunal did not end up addressing the issue of compensable injury in ASQ's claim. There are a number of reasons from this both explicit and implied in the reasons. The first issue gleaned from the reasons is that ASQ's then claim had been brought beyond the statutory limitation period provided for under the old Act. (See s-26 two years from date of act of violence). Another reason was just prior to that time ARU's primary claim had been dismissed. (See ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203 published 23 November 2014.
On the second basis ASQ's claim would be characterised in the manner referred to at paragraph 4 (above). However because of the question of leave to proceed outside of the statutory limitation period remained in abeyance, as a matter of statutory approach rather than determine the merits of the claim, the decision identified the lack of any prospect of success (due to the primary claim dismissal) as grounds for finding that there was no good reason to give leave in accordance with section 26 (3) (a) of the old Act. 26 Time for lodging applications (1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim. (2) An application that is lodged out of time may be accepted with the leave of the Director. (2A) … (2B) … (2C) … (3) The following policies apply to the giving of leave by the Director for the acceptance of an application lodged out of time: (a) leave should not be given unless the applicant establishes that there is good reason to do so,.. .

Relevant History of the primary claim (ARU)

ASQ's son (ARU) has had an equally long history before the former Victims Compensation Tribunal and this Tribunal. In addition ARU's claim was before the District Court (under the statutory appeal provisions of the old Act) prior to being remitted 'by consent'.
The relevant history and findings of ARU's claims are set out in his final decision ARU v Victims Compensation Fund Corporation [2016] NSWCATAD 87 which was remittal from the Appeal Panel of this Tribunal. At paragraphs 1 to 7 inclusive the Tribunal observed: 1 On 22 November 2014 the Tribunal made a decision which affirmed the decision of the compensation assessor under the Victims Support and Rehabilitation Act 1996, and dismissed ARU's claim for victims compensation. (See ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203). Legislative Background / Jurisdiction 2 ARU's proceedings are brought entirely under the provisions of repealed legislation, the former Victims Support and Rehabilitation Act 1996 - ( the 'old Act'). This was because notwithstanding the repeal of the old Act on 3 June 2013, all appeals before the former Victims Compensation Tribunal not finally determined, would by regulation be dealt with by the new Tribunal under the old legislation. (See Clause 16 of the Victims Rights and Support Regulation 2013). 3 On 3 June 2013 the Victims Rights and Support Act 2013 (the new Act), replaced the old Act. In addition all pending appeals before the former Tribunal were transferred to the Administrative Decision Tribunal (ADT). However on 1 January 2014 the ADT was abolished and all pending and fresh matters were dealt with by the newly created New South Wales Civil and Administrative Tribunal (NCAT) which is the Tribunal for the purpose of these proceedings. Appeal 4 Following the 24 November 2014 decision to dismiss the application in December 2014 ARU commenced an appeal before the Appeal Panel of the Tribunal. In separate proceedings involving other parties the Appeal Panel had already determined that there was jurisdiction to hear an appeal such as that brought by ARU, (see ATX v Victims Compensation Fund Corporation [2014] NSWCATAP 71). 5 On 30 September 2015 the Appeal Panel decided ARU's appeal. There were five grounds of appeal. ARU was successful in respect of one ground of appeal and as a result the appeal was allowed and the matter was remitted back to the Administrative and Equal Opportunity Division of NCAT for reconsideration in accordance with these reasons. (See ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211). 6 In that decision the appeal panel found the following error in the decision of the Tribunal in first instance. At paragraph 61 through to paragraph 67 the Appeal Panel observed the following: 61. The Tribunal concluded (at [64]): I find having examined all of the evidence that ARU's psychological injuries arose predominantly not as a direct result of the act of violence, but as an indirect result of other acts of violence for which ARU has not claimed and is in all probability, not entitled to claim. That is, the weight of cogent evidence is that previous and subsequent events (which could be termed acts of violence against other members of ARU's immediate family), has been the significant contributor to his current psychological / psychiatric state. ...(emphasis added) 62.The Tribunal then went on to state (at [68]): Whilst there is some evidence that the act of violence had an impact on ARU's functioning, I am not satisfied on the evidence before me that the impact is the major or significant basis for the claimed compensable injury. (emphasis added) 63. After considering cl 4 of Schedule 1 of the 1966 the Tribunal commented (at [72]): Whilst there is evidence of an existing condition as referred to in the 2008 Report, in my view whilst the evidence indicates that the act of violence had an impact which may have aggravated exacerbated or accelerated that condition, other significant post act of violence factors (as detailed in the material above) contributed to ARU's development of his condition. Additionally, there is significant evidence that those matters were all as an indirect result, rather than as a direct result. 64. While the Tribunal correctly stated the test of causation (see [39], [55], [62]), in applying that test the Tribunal fell into error by in effect imposing a requirement that ARU's Separation Anxiety Disorder and Global Learning Disorder must be not only a direct result of the subject act of violence but also that the subject act of violence is the major or significant cause of that injury (see [64] and [68]). In reaching that conclusion, we are mindful that the reasons for the decision are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 65. What the provision required was for the Tribunal to identify the injury, if any, that had been inflicted directly as a result of the act of violence. If the injury was an exacerbation or aggravation of a previous condition, as it appears the Tribunal thought it was (see [72]), its task was to assess the difference between the status of ARU's condition before the act of violence and its subsequent aggravated state. And the relevant difference to be assessed was the difference directly referable only to the act of violence itself -- no easy fact-finding task admittedly. 66. In attempting that task, it was no doubt necessary to consider ARU's condition as a whole, then to consider to the degree to which it could be apportioned between factors that were directly connected with the act of violence and factors that had no connection or an indirect connection. This was required to enable the Tribunal to make the ultimate assessment of what effect, if any, direct effect the act of violence had upon ARU. The Tribunal did not reject the evidence that supported a finding that the act of violence had directly impacted upon ARU. It simply could not be satisfied that its impact was of "major or significant" effect. In effect, the Tribunal reversed the test that it was required to apply. 67. For these reasons, we find that the Tribunal erred in its application of s 7 of the 1996 Act. 7 The question to now consider is the application of section 7 of the old Act to the evidence and material before the Tribunal.
By the time that the matter was remitted from the appeal panel, fresh evidence was before the Tribunal. That evidence was obtained for the purpose of the internal appeal even though the appeal dealt with a question of law leading to an error of law.
Having re-examined the operation of section 7 of the old Act (according to law) the merits of ARU's claim were examined. A significant consideration for the Tribunal was the issue of the fresh evidence (medical report) obtained in the context of the appeal. Whilst the old Act only provided for fresh evidence to be received if special grounds had been established by an applicant, the unusual history of ARU's litigation / claim, and the fact that reports had been obtained by the Tribunal using it's own powers, the applicant, and the Fund as contradictor, this created a strong argument that the reasonable diligence requirement should be overcome.
Section 38 (3) of the old Act deals with the receipt of fresh evidence. 38 Determination by Tribunal of appeals and references (1) … (2) … (3) An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against.
In ARU No 2 (the remitted determination) from paragraph 23 to 26 the Tribunal concluded on the receipt of fresh evidence in respect of the claim. 23 It follows that as a result of the receipt of the earlier reports, it was not possible for this report (the report of 17 March 2015) to have been provided previously with reasonable diligence, (owing to the fact that this report addresses matters discovered by the operation of section 28 of the old Act - being further Tribunal commissioned medical reports). 24 The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by ARU. It is provided by a consultant clinical psychologist who is qualified to make a diagnosis (if present). 25 Is the evidence likely to result in a different outcome? Having read the report, and having regard to my observations in the first instance, and the relevant aspect of the decision of the Appeal Panel in respect of the approach to take to section 7 of the old Act, it appears that there will be a different outcome. 26 Therefore in the exercise of my statutory discretion I receive the fresh evidence, being the report of S. Borenstein dated 17 March 2015.
In ARU No 2 the Tribunal received the fresh evidence and ultimately having found that ARU was a victim of an act of violence, reapplying section 7 found a compensable injury and made an award of statutory compensation.
The concluding aspects of that decision are at paragraphs 34-36. 34 ARU's condition as a whole presents (in respect of the evidence of S. Borenstein) as: 'a chronic psychiatric disorder consequent to his father and the family unit being at risk of death and continually threatened over some years, highlighted when (ARU) witnessed a drive by shooting on 3 January 2003.' The 'head' disorder is nominated as separation anxiety disorder, however there are a number of other stressors and conditions / factors nominated in his medical history. 35 In applying the this evidence to the correct approach as set out in paragraph 65 of ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211, there will be a 15% reduction due to the operation of Clause 4. 36 I note that at the time of the most recent assessment ARU had suffered from the relevant disorders for approximately 12 years. In that regard, and having regard to the apparent level of debilitation as evidenced from all of the evidence and material before the Tribunal, I assess the statutory compensation payable (before any Clause 4 reduction) to be in the middle of the available range.
After applying the relevant provisions of the old Act, ARU received an award of statutory compensation in a sum totalling $35,352.00 made up of $34,000 compensation for injury (s-17) and $1,352 compensation for actual expenses (s-18 (1) (a) old Act).

Reinstatement of ASQ's claim

On 25 August 2016 the respondent (the Victims Compensation Fund Corporation - 'the Fund') filed an application to the Tribunal under section 45 of the Civil and Administrative Tribunal Act 2013 to reinstate the proceedings brought by ASQ which were dismissed by the Tribunal on 24 November 2014.
The application noted that … all parties to the proceedings have agreed to the decision being set aside or varied. (Answer to Item C on set aside application Tribunal Form). The application also noted that an extension of time to bring the set aside application was required, and the Solicitor for the Fund provided a legal submission by way of sworn evidence as to certain historical facts.
The sworn submission (or evidence) concerning the set aside application and the lateness of it's lodgement detail the lengthy history of this claim and the related claims (of ASQ's family members). The submission refers to the fact that leave to proceed outside of the limitation period on ASQ's substantive claim, was declined due (in effect) to the claim having no prospects of success. The ensuing statutory provision was invoked by the earlier decision makers and the application to proceed was rejected.
The submission goes on to refer to the subsequent success of ARU's primary claim (after approximately half a dozen earlier determinations predominantly unsuccessful). At page 2 paragraph 3 of the Statutory Declaration of M. Ting dated 19 August 2016 the followed is stated. 'For present purposes it is sufficient to note that ARU was ultimately found to be the primary victim of an act of violence, and was awarded statutory compensation on 11 May 2016 (see Annexure B - Reasons for Decision in ARU v Victims Compensation Fund Corporation [2016] NSWCATAD 87). The applicant's claim should have been reconsidered after the primary victim succeeded.
The submission then outlines the history of this current claim by reference to changes to the scheme and changes in review jurisdiction from the Victims Compensation Tribunal (VCT), Administrative Decisions Tribunal (ADT) and subsequently NCAT having jurisdiction to deal with the claim. The submissions goes on to note the ultimate award in May 2016 in respect of ARU's claim, and observes at paragraph 4 page 2 that: Unfortunately, neither the Internal Appeal Panel or Senior Member McAteer were conscious of the effect of that decision on the applicant in this matter. The decision to dismiss the appeal against refusing leave on the basis that the primary victim had not succeeded cannot stand as the primary victim has now succeeded.
I am not certain that the above submission as declared is an entirely factual proposition, in that the declarant purports to understand the knowledge of the Appeal Panel or the Member. In my view the correct position would be that at that time the applicant (through his agent who was also the agent / tutor in ARU's claim) should have considered whether to apply to set aside the 2014 ASQ decision in accordance with the relevant provisions of the Civil and Administrative Tribunal Act 2013 and clause 9 of the Civil and Administrative Tribunal Regulation 2013.
Notwithstanding the fact that the Tribunal had disposed of the matter in a particular manner, that decision was determined on the evidence and material before the Tribunal at that time. In my view it was incumbent on the applicant to pursue any renewed rights that in his view had arisen due to further consideration of another claim (ARU).
In any event, it appears appropriate that the respondent eventually pursued this matter on the applicant's behalf in the first instance. The respondent is associated with administering of the current Victims Assistance and Support Scheme, and custodians of claims under the former scheme (which applies to this application). The current schemes are administered by the Commissioner of Victims Rights who is an independent statutory officer created by the Victims Rights and Support Act 2013. In my view in the absence of Compensations Assessor's, a Director, or Magistrate Tribunal Members to decide questions of leave and compensation under the repealed Act, it is appropriate that they (the Fund or appropriate delegate) navigate the claim (as it currently is) for the Tribunal to determine afresh.
The set aside application was lodged on 25 August 2016 over 20 months after the original decision of this Tribunal. In addition the matter was lodged three and a half months after the decision in ARU No 2 of 11 May 2016 which arguably enlivened new rights to ASQ.
Having considered the history of both ARU and ASQ's litigation before this Tribunal, the former tribunal and District Court, and noting the legislative changes and the matters set out in the Statutory Declaration of M Ting of 19 August 2016, I made the following orders on 1 November 2016: 1. Pursuant to section 45 (1) (b) (i) of the Civil and Administrative tribunal Act 2013 I give leave to ASQ's spouse to represent the applicant as Agent. 2. Pursuant to section 41 (1) of the Civil and Administrative Tribunal Act 2013 I extend time for filing this application until 12 September 2016. 3. Pursuant to Clause 9 (1) (a) of the Civil and Administrative Tribunal Regulation 2013 I set aside the decision of the Tribunal (as constituted by me) on 1 December 2014 in proceedings 137053.

ASQ's Leave to Proceed (beyond the limitation period) Application.

It now falls to the Tribunal to determine whether to give leave to the applicant to proceed with his secondary victim claim outside of the two-year limitation period provided for by section 26 of the repealed Act.
This claim is a matter whereby there is no 'presumption' in favour of giving leave. Section 26 of the repealed Act sets out the relevant leave provisions including the type of matters whereby there is a 'presumption' in favour of giving leave section 26 (3) (b). 26 Time for lodging applications (1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim. (2) An application that is lodged out of time may be accepted with the leave of the Director. (2A) The Director must not give leave for the acceptance of an application that is lodged out of time if: (a) the application is for Victims Assistance, or (b) except as provided by subsection (2B), the applicant is a family victim of the relevant act of violence. (2B) The Director may give leave for the acceptance of an application that is lodged out of time by or on behalf of a family victim if the Director is satisfied that, on the date on which the application was lodged: (a) the family victim was under 20 years of age, or (b) no more than 2 years had elapsed since it was established (whether or not by a court) that the primary victim through whom the family victim's claim has been made died as a direct result of the relevant act of violence. (2C) However, the Director must not give leave under subsection (2B) if a total amount of $50,000 by way of statutory compensation has been awarded in respect of the relevant act of violence to one or more of the following: (a) the primary victim, (b) any person whose claim was made through that primary victim as a family or secondary victim, (c) any person whose claim was made under section 33A in respect of the funeral expenses of that primary victim. Note. $50,000 is the maximum amount that the primary victim of an act of violence and any other victims claiming through that victim are together eligible to receive. (See section 19 (3). See also sections 16 (1) and 33A (5).) (3) The following policies apply to the giving of leave by the Director for the acceptance of an application lodged out of time: (a) leave should not be given unless the applicant establishes that there is good reason to do so, (b) however, leave should be given in cases of sexual assault, domestic violence or child abuse unless the Director is satisfied that there is no good reason to do so, (c) leave should not be given merely because the applicant is unaware of the time within which applications should be lodged, (d) the matters taken into account under section 30 (2) for the purpose of determining whether an act of violence was reported to a police officer within a reasonable time should also be taken into account for the purpose of determining whether there is a good reason for giving leave.
Not all of the above provisions were in force when this claim was lodged out of time on 6 October 2009. In particular subsections 2A, 2B and 2C were enacted the following year.
A secondary victim claim is not strictly a matter which acquires standing due to the circumstances of a primary victim claim. I.e.: a consideration of whether the circumstances of a primary claim which create the beneficial leave presumption (involving child abuse, domestic violence or sexual assault) are transferable to secondary claims brought under section 8 (2). (Those s-8 (2) claims being the 'nervous shock' type provisions of the former scheme). It is also arguable whether the primary circumstances / attributes transfer across to the other secondary claims - those under section 8 (1) witnesses, to the actual act of violence. In any event, the circumstances of the act of violence of the primary victim (ASQ) are not on the evidence before me, circumstances of the character described in section 26 (3) (b) of the repealed Act, in that ASQ's primary victim claim was not based on an incident involving 'child abuse', 'sexual assault', or 'domestic violence' and I so find.
The former Victims Compensation Tribunal initially dealt with the leave application (VCT Ref 147755) following refusal to give leave by a compensation assessor. The matter was subsequently adjourned on half a dozen occasions by the VCT whilst the primary claim (ARU and other claims) was delayed, considered, determined, appealed, remitted by consent and re-determined. As set out in the decision in ASQ v Victims Compensation Fund Corporation (No 1) [2014] NSWCATAD Unreported (as reproduced above at paragraph 8) the question of leave to proceed was delayed and ultimately only addressed in late 2014 because of delays with the primary victim claim of ARU. Some of these delays in the former VCT, ADT and NCAT were due to decisions to obtain further independent medical evidence so as to establish the extent (if any) or a resultant injury to ARU arising from the act of violence.
The applicant's claim (on the merits) appears to have some prospects of success due to (a) the success of the primary claim, (b) the potential availability of approximately up to $15,000.00 statutory compensation, (c) the primary finding as to act of violence, and (d) that the VCT on appeal gave leave to ARU.
For these reasons the declining of leave to proceed out of time, due to there being 'no good reason to give leave' leading to a finding under section 26 (3) of the old Act (a) falls away.
In addition notwithstanding the lodging of duplicate claims, the handling of the related claims by different legal practitioners at different times, and the impact that the event, the general background events to the event (act of violence) had on the applicant, it would appear appropriate that claims relating to the same act of violence should all be considered in the same manner.
In ARU No 1, (ARU v Victims Compensation Fund Corporation [2014] NSWCATAD 203) I considered the approach of the VCT Chairperson in giving leave to proceed out of time to ASQ's son (ARU). At paragraphs 6-7 I observed: 6. ARU appealed to the Victims Compensation Tribunal (VCT) on 7 January 2009 in respect of the refusal to give leave to proceed outside of the limitation period. The then Chairperson of the Tribunal issued three interlocutory decisions in respect of the leave appeal, being 16 July 2009, 29 September 2009 and 22 October 2009 before determining the issue on 3 November 2011. The reason for these interlocutory decisions relates to the fact that there was significant ambiguity in what ARU was claiming, which incident, and in what capacity. It is relevant to note that members of ARU's immediate family had claims of differing magnitude of injury and related or similar facts before the VCT, and that some of these claims overlapped. 7. The Chairperson gave ARU leave to proceed out of time in his decision of 3 November 2009. Significantly, the basis of the giving of leave addressed the matters outlined in section 26 (3) (d) of the old Act. The Chairperson in giving leave concluded that: The appellant's age, his health problems, the enormous problems faced by the whole family, and the failures of the solicitors originally instructed all provide good reason to do so.
The matters referred to by the Chairperson in ARU are (on the evidence and material before me) equally applicable to this applicant. The applicant is a member of ARU's family and his claim is based on the same circumstances or act of violence (albeit with different standing). In addition I note the applicant's submissions on pages 3, 4 and 6, of the applicant's written bundle of submissions and evidence before me filed 25 November 2016. I have read the earlier and more recent medical reports from S Borenstein, and note (in addition to current functioning) that there are various diagnoses from the period of delay in question. I also note that those reports link those diagnoses to the principal issues central to the claim, the act of violence and it's background.
These observations of the evidence lead me to conclude that exactly the same sort of factors (including health problems) were impacting on ASQ like his young son ARU. If anything the diminished functioning (as a percentage) at that time was greater, but such a diminution was clearly due to a number of factors both central and peripheral to the specific act of violence.
For these reasons it follows that the applicant has established a good reason for the giving of leave in accordance with section 26 (2) of the repealed Act, and I so find.

Consideration of substantive application for compensation

Having given leave, I now turn to the substantive claim before me being whether, after ARU has established that he was the victim of an act of violence, ASQ now has established that he should be awarded compensation for the compensable injury of Category 2 Psychological or Psychiatric Disorder.
It appears that the parties may have inferred that the Tribunal would proceed to deal with this issue if leave was given. The applicant's submissions address his eligibility to be awarded statutory compensation. Before the repeal of the 1996 Act this would have been a fairly straightforward matter, with the VCT Member remitting the matter back to a compensation assessor to determine the award. If such a determination was adverse to the applicant, then an appeal as of right (within time) to the VCT was open to an applicant.
The legislative landscape has changed somewhat since May 2013 and the 1996 Act has been repealed in June 2013 and the new scheme (under the Victims Rights and Support Act 2013) has been in place for almost four years. Neither compensation assessors or tribunal members (as they were) under the 1996 Act continue under the 2013 Act. Different provisions are in place for determinations of victims support and assistance by assessors and internal review by senior assessors. This Tribunal now deals with administrative reviews of those decisions, and decisions of the Commissioner for Victims Rights.
The decision in ARU No 1 sets out the history of the changes other than the introduction of the reassessment regime in the second half of 2015, (See paragraphs 50-52 (below).
The respondent may have been attuned to some of these issues. I note that in the 19 August 2016 Statutory Declaration the respondent provided the following submission as the concluding paragraph: There is no power in the Victims Rights and Support Act 2013 for the granting of leave, however should the decision of Senior Member McAteer be set aside and remitted to him to determine the appeal against the granting of leave, and leave is granted, then the applicant may proceed to have the matter "reassessed' under the provisions of Division 3 of the Victims Rights and Support Regulation 2013.
Whilst various savings provisions and legislative amendments were passed in the months following the repeal of the 1996 Act in respect of pending matters, those matters only related to pending appeals before the Tribunal.
Clause 16 of the 2013 Regulation came into effect in August 2013 to in essence capture pending 1996 Act appeals before the ADT, that had not been finally determined. The clause says: 16 Appeals against determinations regarding applications for statutory compensation (1) Despite the repeal of section 36 of the repealed Act, if notice of a determination of a compensation assessor was served before that repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b)) were still in force. (2) An appeal referred to in subclause (1) is to be treated as if it were a proceeding referred to in clause 14 of Schedule 2 to the Act. (3) Proceedings to which clause 14 of Schedule 2 to the Act applies (including proceedings referred to in subclause (1)) are, subject to clause 13 of Schedule 2 to the Act, to be determined under section 38 (other than section 38 (5) (b)) of the repealed Act as if the repealed Act were still in force. (4) For those purposes, a reference in the repealed Act: (a) to the Director or a compensation assessor is taken to be a reference to the Commissioner, and (b) to the Victims Compensation Tribunal is taken to be a reference to the Civil and Administrative Tribunal. (5) Despite clause 4 (1) of Schedule 2 to the Act, statutory compensation determined to be payable (less any deductions under section 19A of the repealed Act) pursuant to a determination under section 38 of the repealed Act as provided in accordance with subclause (3) is payable from the Victims Support Fund under the Act.
I note the reference to the term 'applications for statutory compensation' in the chapeau to the Clause. In addition I note the references to omitting section 36 (2) and (3) (b) - of the 1996 Act, as it would appear to the residual provisions and rights enlivened under clause 16. On an initial assessment it would appear that the matter pending before the VCT as at the date of repeal was an appeal under section 36 (2) of the 1996 Act. The section provided: 36 Appeal to Tribunal by applicant (1) An applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination. (1A) The applicant may not appeal to the Tribunal: (a) for the correction of a miscalculation in the amount awarded as Victims Assistance, or (b) against a determination of a compensation assessor under section 35 in relation to costs. Note. An applicant may apply to the Director under section 35A for the correction of a miscalculation in the amount awarded as Victims Assistance. (2) A person who is aggrieved by a determination of the Director to refuse leave for a late application for statutory compensation may appeal to the Tribunal against the determination. (3) An appeal may be made: (a) within the period of 3 months after the day on which the relevant notice of the determination made by the compensation assessor or Director was duly served on the person, or (b) within such further time as the Tribunal may in exceptional circumstances allow. (Emphasis added)
I am unsure at to whether this Tribunal has jurisdiction to deal with the substantive claim. In addition I note that the Government by regulation initiated a review of all successful claims captured by the retrospective nature of the 2013 Act. Those claims being ones in which support or assistance was given rather than being dismissed under the 2013 Act.
Division 3 of the 2013 Regulation covers these reassessments. Such applications for reassessment appear to have opened on 1 September 2015 and closed on 31 August 2016.
The relevant part of Division 3 of the 2013 Regulation in respect of reassessments provides: Division 3 Reassessment of applications for statutory compensation under repealed Act 17 Definitions In this Division: new Act means the Act. reassessment application - see clause 19. 18 Operation of Division (1) The provisions of this Division have effect despite any provision of Part 2 of Schedule 2 to the new Act. (2) An application cannot be dealt with under clause 5 of that Schedule or clause 15 of this Regulation after the commencement of this Division. 19 Eligibility for reassessment applications (1) A person whose application for statutory compensation was lodged, but not finally determined, under the repealed Act before the day the Bill for the new Act was first introduced into Parliament is eligible to make an application for reassessment of that application under this Division (a reassessment application). (2) A person is eligible to make a reassessment application even if the person subsequently withdrew the application for statutory compensation or withdrew from having the application dealt with under clause 5 of Schedule 2 to the new Act. (3) Despite subclause (1), a person whose application was dealt with under clause 5 of Schedule 2 to the new Act and was dismissed is not eligible to make a reassessment application unless the ground for dismissal was that the person was a family or secondary victim who was not entitled to a recognition payment under the new Act. (4) For the purposes of this section, an application was not finally determined if: (a) any period for bringing an appeal as of right in respect of the application had not expired (ignoring any period that may have been available by way of extension of time to apply), or (b) any appeal in respect of the application was pending (whether or not it was an appeal brought as of right). 20 Reassessment applications (1) A person cannot make a reassessment application after 1 September 2016. (2) A reassessment application is to be made by written notice to the Commissioner indicating that the applicant wishes to have the previous application for statutory compensation reassessed under this Division. (3) No fee is payable for making a reassessment application. (4) The Commissioner may require a person who makes a reassessment application to provide any documentary evidence or other information requested in writing by the Commissioner. The evidence or information must be provided not later than 6 months after the reassessment application is made. (5) If a request for evidence or information to be provided by the applicant is made by the Commissioner more than 3 months after the reassessment application is made, the applicant must provide the evidence or information not later than 3 months after the request is made. 21 Application of repealed Act to reassessment applications (1) A reassessment application is to be determined as if it were an application for statutory compensation duly made under the repealed Act and the provisions of the repealed Act continue to apply to and in respect of a reassessment application, subject to this Division. (2) For the purposes of this Division, a reference in the repealed Act: (a) to the Director or a compensation assessor is taken to be a reference to the Commissioner, and (b) to a determination for restitution is taken to be a determination under Part 5 of the new Act (as applied by this Division), and (c) to the Compensation Fund is taken to be a reference to the Victims Support Fund, and (d) to the Compensation Fund Corporation is taken to be a reference to the Secretary of the Department of Justice. (3) The following provisions of the repealed Act do not apply to a reassessment application: (a) sections 25 (2) and (3), 26, 34, 35 and 42 (1) (b), (b) Divisions 6, 8 and 9 of Part 2, (c) Part 3, (d) Parts 4 and 5, (e) Schedule 2.
Without indicating any clear view on the jurisdictional issues, I note that they are not straightforward.
In light of the significant jurisdictional questions to resolve, rather than determine the matters immediately, having regard to the requirements in respect of procedural fairness and natural justice, it is necessary to adjourn this matter, either for remittal (if such power exists on the current facts), or final determination.
In reaching this position I am mindful of the history of this and the related claims, and the number of times those matters have been before a body (under the previous and current scheme) for assessment and adjudication.

Further consideration / interim findings

If the claim is ultimately to be determined on its merits by this Tribunal or some other body then the question of what evidence is to be considered appears to be a contentious issue between the parties. In the current claim I note that ASQ seeks to file further evidence. At page 2 of the submission filed 25 November 2016 the applicant states: • I am requesting leave to rely on a further medical report by Sam Borenstein Clinical Psychologist dated 23/11/2016 (Annexure "A") attached. Leave should be granted for the following reasons: • The Applicant's case would be severely disadvantaged if this report was not allowed. It contains crucial evidence in determining the Applicant's case. • The Applicant's last ARW report from Sam Borenstein Clinical Psychologist was dated 10 may 2010. Due to the lengthy history of this case the undated report should be allowed. • Aim of NCAT is to make an informed decision on whether or not to award compensation to the victim and new evidence that would assist in making that determination if withheld would be detrimental of the Applicant.
In my view, in any reassessment application under Division 3 of the Victims Rights and Support Regulation 2013 (the Regulation), or other applicable jurisdiction for ASQ's claim, having given leave to proceed out of time, the time for filing of evidence and material remains open. This is because of the operation of the provisions of section 38 (3) of the repealed 1996 Act only limit evidence if introduced after the substantive matter is first determined (by a compensation assessor). (3) An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against. (Emphasis added)
ASQ's claim has never been determined by a compensation assessor on the substantive claim, only a leave application. In this regard if the Tribunal has jurisdiction to deal with the substantive claim (in first instance or on appeal), it would be open to the applicant to rely on all evidence and material filed to date, and continuing up until the time of the compensation claim being determined. On the basis that I have jurisdiction, I make a finding to that effect, having regard to the guiding principle of the Tribunal under the Civil and Administrative Tribunal Act 2013.
When the question of jurisdiction is settled it may be that if the claim can be determined to finality, any award may be complicated by other factors. Due to the evidence already before the Tribunal in respect of leave, and noting the interplay (in part) between ASQ and ARU's claims, similar issues concerning causation, existing injuries, and other stressors could come into play.
It may be that when considering to make and award, the fact finder may need to consider Clause 4 of Schedule 1 of the 1996 Act (if applicable), and the provisions or operation of section 19 (3) (a) of the Victims Support and Rehabilitation Act 1996 (if applicable from a jurisdiction perspective) on any award.

Orders

I therefore make the following orders: 1. I grant leave to the applicant to proceed in accordance with section 26 (2) of the Victims Support and Rehabilitation Act 1996 (the repealed Act). 2. Section 38 (3) of the repealed Act does not apply to these proceedings in their current form and as a result I find that all material sought to be relied upon by the applicant is received and to be considered in any subsequent assessment of compensable injury. 3. I direct that the respondent provide submissions within 28 days of publication of these reasons as to how the substantive matter (consideration of compensable injury for a secondary victim under section 8 (2) of the repealed Act), should be disposed of (either by the Fund, the Commissioner or the Tribunal), and if it is submitted that the matter should be disposed of by the Tribunal, submissions as to jurisdiction. 4. In making order (3) the Tribunal notes the respondent's submissions as referred to in their Statutory Declaration of 19 August 2016, and the provisions of clause 19 and 20 (1) of Division 3 of the 2013 Regulation as referred to above in these reasons. 5. The applicant has a further 28 days from receipt of the respondent's submissions to file and serve any further submissions it may wish to file in reply on the question of jurisdiction. 6. The matter is to be fixed for further directions before me on a date suitable to the Tribunal and both parties in June 2017 by arrangement with the Registrar. 7. Liberty to either party to apply. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2017

At a glance

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Judgment (8 paragraphs)

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Cases Cited (5)