ATX v Victims Compensation Fund Corporation

NCAT Appeal Panel|2014-08-19

Introduction 1The preliminary issue in these proceedings is whether the Appeal Panel of the Civil and Administrative Tribunal has jurisdiction to hear an appeal from a decision of the Tribunal made under s 36 of the now repealed Victims Support and Rehabilitation Act 1996 (NSW) (the old Act). In our view the Appeal Panel does have jurisdiction. 2On 21 March 2014 the appellant lodged a notice of appeal against a decision of the Administrative and Equal Opportunity Division made on 21 February 2014. The Registry initially rejected the internal appeal because the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) excludes internal appeals against an administrative review decision for the purposes of s 51 of the Victims Rights and Support Act 2013 (NSW) (the new Act): NCAT Act, Sch 3, cl 15(g). The rejection on that ground was incorrect because the internal appeal is a decision made under the old Act, not the new Act.

History 3The history of this matter is that on 6 May 2011 ATX applied to the Victims Compensation Tribunal for compensation for an injury. On 18 February 2013 a compensation assessor determined that ATX was not entitled to compensation and issued a Notice of Determination under s 29 of the old Act. On 9 May 2013 ATX appealed the compensation assessor's determination to the Victims Compensation Tribunal. However on 7 May 2013 the government had introduced legislation to repeal the old Act. On 4 June 2013 the old Act was repealed and replaced with the new Act. Appeals to the abolished Victims Compensation Tribunal were taken to have been commenced in the Administrative Decisions Tribunal: new Act, Sch 2, cl 14. 4On 16 August 2013 the legislation was amended to provide that appeals that were pending to the former Victims Compensation Tribunal as at 3 June 2013 were to be determined under the old Act: Victims Rights and Support Regulation 2013 (NSW) (the new Regulation), cl 16. As ATX had previously made submissions on the basis of the provisions in the new Act, the Registrar of the Administrative Decisions Tribunal notified her of the change to the legislation and gave her the opportunity to make final written submissions. 5On 1 January 2014, the Administrative Decisions Tribunal was abolished and the Civil and Administrative Tribunal was established: NCAT Act, s 7 and Sch 1, cl 3. ATX's application for compensation was an "unheard proceeding" that is, a pending proceeding before the Administrative Decisions Tribunal that had not been heard before 1 January 2014. Unheard proceedings are taken to have been duly commenced in NCAT and may be heard and determined by NCAT: NCAT Act, Sch 1, cl 7(1). Under cl 7(3) NCAT has and is entitled to exercise all the functions which the Administrative Decisions Tribunal previously had. The legislation to be applied to the application for compensation is that which would have applied if the NCAT legislation had not been enacted. That means that the old Act applied.

First hearing 6The matter was listed on 19 August 2014 to determine whether the Appeal Panel had jurisdiction to hear the appeal. The Respondent, the Victims Compensation Fund Corporation did not appear. The Appeal Panel decided that it did have jurisdiction and gave ex tempore reasons. After making that decision, it came to the attention of the Appeal Panel that the Respondent had not been served with the Notice of Appeal and may not have had notice of the hearing. 7Submissions were sought from each party as to whether the ex-tempore decision should be set aside either by consent or because the Respondent's case had not adequately been put to the Tribunal: Civil and Administrative Tribunal Regulation 2013, cl 9. The Respondent consented to the decision being set aside. On 2 October 2014, the Appeal Panel made the following orders 'on the papers': (1)The decision of the Appeal Panel made on 19 August 2014 that the Tribunal has jurisdiction to hear this appeal, is set aside. (2)The Appeal Panel is satisfied, pursuant to Clause 9 (1) (b) of the Civil and Administrative Tribunal Regulation 2013 that the Respondent's absence has resulted in their case not being adequately put to the Tribunal. (3)The appeal will be reheard on the issue of jurisdiction on 10 October 2014.

Second hearing 8At the hearing of the jurisdictional issue on 10 October 2014 both parties were represented by lawyers. The Appellant submitted that Sch 3 of the NCAT Act did not apply because the matter was governed by the provisions of the old Act, not the new Act. As the provisions relating to appeals to the District Court had been repealed, there is a right of appeal to the Appeal Panel. 9The Respondent did not necessarily disagree but made submissions in their amicus role. The first submission was that a person's right of appeal to the District Court under the old Act may not have been extinguished by the new Act and the 2013 amendments to the victims' compensation statutory scheme. If that appeal right has not been clearly extinguished it may remain as a residual right or common law right. If that is the case, the District Court, not the Appeal Panel of NCAT has jurisdiction to hear an appeal. 10In support of that submission the Respondent referred to s 30 of the Interpretation Act 1987 relating to the effect of amendment or repeal of Acts and statutory rules, and to the Court of Appeal's decision in Attorney General of New South Wales v World Best Holdings Limited and Ors [2005] NSWCA 261 where the issue of the retrospective operation of a statute was discussed.

Reasoning and decision 11Section 32 of the NCAT Act gives the Tribunal internal appeal jurisdiction over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. 12The decision against which ATX has appealed is not an administrative review decision but it is a "general decision". NCAT's general jurisdiction is defined in s 29: (1) The Tribunal has "general jurisdiction" over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. 13In this case, the legislation which enables NCAT to make decisions or exercise other functions is 36 of the old Act in combination with cl 16 of the new Regulation. Section 36 provides that: (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. 14The Tribunal referred to in this provision is NCAT. Clause 16 of the new Regulation provides that: 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. 15This clause re-enlivens parts of s 36 and s 38 of the old Act. It does not re-enliven s 39 of the old Act which provided that an appeal was available to the District Court, with leave, on a question of law. 39 Appeals to the District Court on questions of law (1) An applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal. (2) An appeal by a person under this section may be instituted: (a) within the period of 3 months after the day on which the relevant notice of the determination made by the Tribunal was duly served on the person, or (b) within such further time as the District Court may in exceptional circumstances allow. (3) For the purposes of this section, the following matters are not questions of law: (a) a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description specified in that schedule, (b) a determination of whether a series of acts are related and constitute a single act of violence. (4) An appeal does not lie to the District Court against a decision of the Tribunal to refuse leave for a late application for statutory compensation. (5) On an appeal, the District Court may only: (a) affirm the determination of the Tribunal, or (b) set aside the determination and remit the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned. 16This provision was repealed on the commencement of the new Act on 4 June 2013. It was not re-enlivened by cl 16 of the new Regulation. The new Act sets out transitional provision in relation to appeals already before the District Court at the time of the commencement of the new Act. Schedule 2, cl 15 of the new Act provides that: 15 Pending District Court proceedings (1) This clause applies to proceedings before the District Court on an appeal under section 39 of the repealed Act that have not been finally determined by that Court on the commencement of this clause. (2) Proceedings to which this clause applies are to be determined as if this Act had not been enacted. 17The new Act only refers to District Court appeal rights in respect of pending proceedings before that Court. There is no express right of appeal in the District Court Act 1973 or in any other legislation. The only reference to District Court appeals under the old Act is in the Uniform Civil Procedure Rules 2005, but those Rules are procedural - they do not confer jurisdiction on the District Court: UCPR, cl 50.21-50.23. 18In our view following the repeal of s 39 of the old Act on 4 June 2013, the District Court does not have jurisdiction to hear an appeal from a determination under the old or the new Act. That conclusion is supported by the fact that cl 15 of Sch 2 of the new Act provides for pending District Court appeals already commenced at the time of the amendments. 19There is no residual or common law right to appeal to the District Court. Section 39 of the old Act has been repealed and that repeal does not "revive anything not in force or existing at the time at which the amendment or repeal takes effect": Interpretation Act, s 30(1)(a). 20In Attorney General of New South Wales v World Best Holdings Limited and Ors [2005] NSWCA 261 the issue of the retrospective operation of a statute was discussed. At [62] Spigelman CJ made the point that "Each legislative scheme must be interpreted in light of the language used and its purpose." 21In that case one of the issues was whether parliament intended to act unjustly or unfairly with respect to the retrospectivity of a legislative scheme. That is not the situation in this case. None of the provisions relevant to these proceedings purport to retrospectively validate an appeal right to the District Court.

Conclusion 22The Appeal Panel has jurisdiction to hear this appeal under s 32 of the NCAT Act because it is against a decision made by the Tribunal in proceedings for a general decision and is not excluded by cl 15 of Sch 3 to the NCAT Act. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 27 October 2014

Civil and Administrative Tribunal Regulation 2013(NSW)

Victims Support and Rehabilitation Act 1996(NSW)

Victims Rights and Support Regulation 2013(NSW)

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