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[2014] NSWCATAD 42
NCAT Administrative and Equal Opportunity
2014-03-14
Original judgment source is linked above.
Background 1AXG who is aged 48 years old claimed compensation by way of an Application that was lodged on 18/04/2013, in which he alleged that he had suffered bruised ribs, black eyes, cuts & scratches over face & head & cuts on feet as a result on an assault, robbery & home invasion that occurred on 16/11/2010. He alleged that there were 3 offenders (Christopher Beer, William Beer & KL) and he described the incidents by reference to the "Police Report" attached to the Application. However, I note that the "Police Report" was actually his Witness Statement to NSW Police dated 20/11/2010. 2I refer to AXG's witness statement and note that he described KL as his "ex-wife" and stated that she had been staying with him for a while. He said, "We were not in a relationship but kind of remained friends" and further, "For the last 45 months KL has been staying with me at my unit..." He stated that he had a dog named "Lucy Lu", which his ex-wife bought for him, and that while his ex-wife was staying with him, he met another female "Annie" (who lives in a block of units opposite his unit) and they became friends. He stated that his ex-wife "... made it clear to me that she didn't want me speaking to Annie or me taking the dog over to Annie's place. KL and Annie don't get on at all." On 16/11/2010, late in the evening, he decided to take his dog over to Annie's place and they "hung out". While he was there, he heard the bedroom window get smashed and then the lounge room window was smashed and he saw 2 males come through the window. They started to kick and hit him in the body and head. Annie screamed and they "took off". After they had gone, he noticed that his dog was gone. The Police were called and he was taken to Green Valley police Station. An Ambulance arrived and took him to Liverpool Hospital. He was released the next day and when he returned home he noticed that KL had removed her things from the unit and that she had taken the phone. He stated that he had not seen his dog since then. 3AXG also stated that all offenders had been found guilty and that all but KL had been sentenced in the District Court of NSW. However, he did not allege that he had been the primary victim of an act of "domestic or family violence" and he did not claim that he had suffered the compensable injury of "domestic violence". 4I note that AXG was not legally represented in relation to this Application for Compensation. 5The Application was lodged more than 2 years after the alleged act of violence occurred and on 24/04/2013, the Compensation Assessor considered whether leave should be granted to lodge the Application out of time pursuant to Section 26(1) of the old Act. The assessor determined that the matter did not involve domestic violence, child abuse or sexual assault and that there is a presumption against the granting of leave unless a good reason is established, but that AXG had not provided any reason for the delay in lodgement. The assessor determined that the granting of leave should be deferred and that the applicant should be invited to provide submissions and relevant evidence to assist the assessor to determine whether there was "good reason" to grant leave. 6On 29/04/2013, the Victims Compensation Tribunal ("the Tribunal") wrote to AXG advising him that consideration of the "leave" issue had been deferred and it stated (relevantly): It is important that reasons are provided explaining why this application could not be lodged within the two-year period. Consideration of leave to apply out of time has been deferred to give you time to provide reasons to support your application for leave. In deferring consideration of leave the assessor made the following comments: Reasons for delay required. It directed AXG to ensure that it received all correspondence on this issue by 6pm on 30/04/2013. 7I further note that the Tribunal sent AXG an email that day, advising him that he was required to provide reasons for the delay in lodgement and that his application for leave would be further considered on 1/05/2013. 8A File Note dated 29/04/2013, records that an officer of the Tribunal had spoken to AXG by telephone and that he stated that he was unaware of the Tribunal or the 2 year time limit and that he thought that he had to wait until the court case was finalised before he lodged his Application for Compensation. 9On 1/05/2013, the Compensation Assessor issued a final Leave Determination, refusing to grant leave to AXG to lodge the Application for Compensation out of time. The reasons for decision are as follows: I act under delegation of the Director pursuant to section 63(2) of the Victims Support and Rehabilitation Act 1996 (the Act) on this application for leave to apply for statutory compensation out of time. The claim relates to incidents that are alleged to have occurred in Miller, New South Wales, on 16 November 2010. The application was lodged on 18 April 2013, five months outside of the time limit imposed on the Act. Section 26(1) of the Act provides that an application for statutory compensation must be lodged within two years after the relevant act of violence occurred. Section 26(2) permits applications to be accepted subject to Section 26(3). Section 26(3)(a) provides a policy that leave to lodge an application out of time should not be given unless the applicant establishes that there is a good reason to do so. As this matter does not involve domestic violence, child abuse or sexual assault there is a presumption against the granting of leave unless good reason is established. I note that the applicant has stated lack of knowledge of the compensation process and a mistaken belief that he had to wait until the criminal matter was finalised as his reasons for not being able to lodge an application within time. Section 36(3)(c) states that "leave should not be given merely because the applicant is unaware of the time within which applications should be lodged". It is consistent with this provision that leave should not be granted merely because the applicant is not aware of the process of applying for victims compensation. The legislation clearly indicates that there is a time limit for lodging claims. McHugh J stated in Brisbane South Regional Health Authority v Taylor (1996) 10 ALJR 866 [at 872]: Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation period is the general rule; an extension provision is the exception to it. The provisions relating to leave set out at section 26 of the Act indicate that applicants have an obligation to take reasonable steps to either pursue their legal rights or obtain advice from an appropriately qualified legal practitioner with respect to those rights. The explanation provided is not sufficient, particularly in light of the Section 26(3)(c) of the Act.
Grounds of Appeal 10The Notice of Appeal dated 3/06/2013, which was lodged on 24/06/2013, alleges: The assessor failed to take into account this matter was a domestic violence offence as is shown on charge sheets. Offender KL is my wife (estranged). 11AXG did not provide any particulars in support of the appeal, but he lodged fresh evidence as follows: (1)Copy of a Subpoena to Give Evidence in the District Court of NSW in the matter of The Queen v Christopher Geer, William Geer and KL. This required his attendance on 23/07/2012; and (2)Copy of a letter to him from Legal Aid NSW dated 21/05/2013. I note that this indicates that he had applied for Legal Aid in relation to this Appeal. The letter informed him that Legal Aid was not available "in matters of this nature".
Application to Submit Further Evidence and Material 12AXG did not apply for leave to adduce fresh evidence on the appeal. However, I regard it as necessary to consider whether leave should be granted to receive this evidence on the appeal before making a determination regarding the appeal itself. 13Section 38(3) of the old Act provides: 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." 14The concept of "special grounds" in Section 38(3) of the old Act has been considered in many cases. In Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75, the Court of Appeal referred with approval to the test laid down for "special grounds" by the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 [at 160]. Clarke JA (with whom Sheller and Powell JJA agreed on this point) said: Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are: 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; 2. The evidence must be such that there must be a high degree of probability that there would be a different verdict; 3. The evidence must be credible. 15In Wilson v The Prothonotary (2000) NSWCA 23 Heydon JA (with whom Sheller JA agreed) said [at 47]: The tests (from Akins) are general principles or conditions applying to the generality of cases but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances. See also Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 [at 140]. 16In Victims Compensation Fund Corporation v Sarah Jane Hill the Court of Appeal observed, at [31]: There appears no reason why those principles should not apply to S38(3), despite the fact that the appeal to the Tribunal is not an appeal from a court to a court. 17The Court also identified the legislative purpose for Section 38(3) of the old Act as follows: 26 The mischief that led to the enactment of s 38(3) was described by the Attorney General in debate in Committee on the Bill which became the Victims Compensation Act 1996. He explained why the Government opposed certain amendments (which were later rejected in the Legislative Council): The Government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then, after taking advantage of the current right to an appeal de novo to the District Court, introduce a great deal more evidence and produce more extensive material. (Parliamentary Debates, Legislative Council, 15 May 1996) 18The Administrative Decision Tribunal's Victim Support Division: Transitional Appeals: Guideline (a copy of which was sent to AXG) states: If a party seeks to rely on new evidence or material that party must either identify the special grounds on which the evidence or material should be received or establish that the evidence or material concerns matters occurring after the determination appealed against. [old Act, s 38(3)]
Applying Akins to the current matter 19I have applied the tests in Akins to the current matter as follows: (1)Could the evidence have been obtained with reasonable diligence for use at the determination? In my view, in relation to the Subpoena the answer to this question is "yes". As the Subpoena required AXG to attend to give evidence on 23/07/2012, it must have been served upon him before that date and he had therefore "obtained" it before the leave determination. However, in the case of the letter from Legal Aid NSW, the answer to this question is "No" as the letter did not come into existence until after the leave determination. (2)Is the evidence such that there must be a high degree of probability that there would be a different determination? In my view, the answer to this question is "No" in relation to all of the fresh evidence. These documents are not relevant to the issue of a grant of leave under Section 26(3) of the old Act. (3)Is the evidence credible? The documents speak for themselves. 20In addition, I am not satisfied that there are any exceptional circumstances that would otherwise justify the Tribunal exercising the discretion to grant leave to AXG to rely upon the fresh evidence on the appeal. 21In my view, this is not an exceptional case that would justify setting aside one or more of the "special grounds" requirements. As the High Court observed in Commonwealth Bank of Australia v Quade [1991] HCA 61, at [6]: If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence. 22Therefore, leave to adduce the fresh evidence on appeal is refused.
Application of the old Act 23On 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"). AXG's solicitors were informed that the appeal would be determined under the new Act. 24The 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. 25However, the Administrative Decisions Tribunal 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. 26Further, 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. 27As 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. 28On 16/08/2013, clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that appeals that were pending as at 3/06/2013 are to be determined under the old Act. As 'AXG had previously made submissions on the basis of the appeal proceeding under the new Act, the Registrar notified her of the commencement of Clause 16 of the Regulation and gave her the opportunity to make final submissions. 29AXG did not lodge any further submissions.
Decision on papers 30AXG has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing under Section 38(2) of the old Act. 31I have read and considered the whole of the evidence before the Assessor and I have taken it all into account even though I may not refer specifically to it in these reasons. 32The Appeal is concerned with a single issue, namely whether leave should be granted under Section 26 of the old Act to lodge the Application for Compensation out of time. 33As discussed by the Compensation Assessor in the Leave Determination dated 1/05/2013, Section 26(3) sets out the following policies that apply to the giving of leave by the Director (of Victims Services) for the acceptance of an application lodged out of time. I note that the assessor determined that as this was not a case of "sexual assault, domestic violence or child abuse", Section 26(3)(a) provided that leave should not be given unless the applicant establishes that there is a good reason to do so. The assessor further relied upon Section 26(a)(c), which provides that leave should not be given merely because the applicant is unaware of the time within applications should be lodged. 34The Appeal raises a single ground, namely that the assessor erred in finding that this was not a case of domestic violence as one of the offenders was his estranged wife. 35In relation to this matter, I note that the Application for Compensation does not state that this was an incident of domestic violence or claim for the compensable injury of domestic violence and it does not describe any relationship between the applicant and any of the 3 offenders named in it. 36However, a copy of AXG's Witness Statement to Police was lodged with the Application and was before the assessor and this describes one of the offenders - KL - as his ex-wife" and states that she was residing with him in his flat at the time the incident occurred. 37Section 5(2) of the old Act provides (in the context of an "Act of Violence") that violent conduct extends to ... domestic violence (as defined in the Dictionary). I note that the Macquarie Dictionary defines "domestic violence" as "personal violence committed by one member or former member of a household against another." 38Based on that dictionary definition and the evidence contained in the Witness Statement that was before the assessor, I am satisfied that the assessor erred in determining that this was not a case of domestic violence, as clearly there was an element of domestic violence in relation to the offences committed by KL. 39While the clear inconsistency between the description of KL in AXG's Witness Statement ("ex-wife") and that contained in Notice of Appeal ("Wife (estranged)", I have decided that this inconsistency does not auger against a finding of domestic violence in so far as KL involvement is concerned and factor is not relevant to the dictionary. They were, on the available evidence, members of the same household at the relevant time. 40As to whether a "good reason" for not lodging the Application for Compensation within 2 years of the alleged act of violence has been established, I note that AXG was not legally represented. In those circumstances, I do not regard it as being unreasonable for him to hold the beliefs that he described to the Tribunal (in response to its letter requesting a "good reason" for not lodging the Application within time), namely that he was unaware of the Tribunal and the 2 year time limit and that he believed that it was necessary to await the finalisation of the criminal matters before he lodged his Application for Compensation. 41In relation to this issue, I note that with the Application for Compensation AXG lodged letters from the Office of the Director of Public Prosecutions to himself dated 6/08/2012 and 19/11/2012. These informed him that in the case of his ex-wife, she had pleaded guilty to charges of "Intimidate with intent to cause fear of physical or mental harm" and "Intentionally damage property" and that she would be sentenced in the District Court of NSW on 4/02/2013. In the case of the other 2 offenders, it informed him that they had pleaded guilty to charges of "Aggravated enter and commit serious indictable offence, affray - in company" and "Assault occasioning actual bodily harm" and "Damage to property - in company" and that they were to be sentenced in the District Court of NSW on 14/09/2012. 42I further note that the Application for Compensation was lodged approximately 3 months after the last of the offenders was sentenced. I do not regard this as being an unreasonable delay in the circumstances. 43For these reasons, I am satisfied that it is appropriate to exercise the Tribunal's discretion under Section 26(2) of the old Act and to grant leave to AXG to lodge the Application for Compensation out of time.
Conclusion 44I make the following orders:
AXG
Victims Compensation Fund Corporation