The VCFC's application to vary my decision relies on cl 9(1)(b) of the Regulation; i.e., that the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. This requires that in order to exercise the discretion to set aside or vary the Tribunal first be satisfied that decision:
1. The decision was made in the absence of a party; and
2. That as a consequence that party's case was not adequately put to the Tribunal.
See Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [64].
The only other power statutory power that enables the Tribunal to correct its decisions is found in 63 of the Civil and Administrative Tribunal Act 2013 provides -
"(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons."
In order to properly determine the application to vary it is necessary to consider the procedures and law applicable to the decision it original decision. The decision was a determination of an appeal made under s 36 of the old Act from the decision of an assessor made on 7 March 2013. Under the old Act the appeal would have been heard by the Victims Compensation Tribunal.
On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The old Act was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it were taken to have been commenced before the Administrative Decisions Tribunal. At the time of the commencement of the new Act BDC's appeal was still pending before the Victims Compensation Tribunal.
On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. As a consequence BDC's pending appeal was to be determined under the old Act.
On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the old Act continuing to apply.
Section 38 of the old Act sets out the procedure to be followed on appeals. It relevantly provides -
(1) Except as provided by subsection (2), the Tribunal is to proceed to determine a matter the subject of an appeal or reference to it under this Division without a hearing.
(2) The Tribunal is to conduct a hearing into the matter if the Tribunal is satisfied that it cannot properly determine the matter without a hearing. Any such hearing is to be conducted in accordance with Schedule 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.
(4) The Tribunal is to determine the matter in accordance with the relevant provisions of Division 5 and, for that purpose a reference in that Division to a compensation assessor or the Director is taken to be a reference to the Tribunal.
(5) The Tribunal may, without limiting the generality of subsection (4), do any of the following:
(a) affirm or set aside any determination of a compensation assessor,
(b) remit the application to be considered and determined or re-redetermined by a compensation assessor in accordance with the directions of the Tribunal.
In the case of BDC's appeal the decision was made without a hearing upon consideration of the papers. The appellant did not request an oral hearing. I did not consider a hearing necessary. As a consequence the decision was made in the absence of the VCFC and of BDC, thereby satisfying the first limb of cl 9(1)(b) of the Regulation: i.e. the decision was made in the absence of a party.
Given that the old Act established a procedure whereby appeals were determined on the papers without a hearing, the issue of whether a party is thereby deprived of the opportunity to properly put their case is a difficult one. The scheme of the old Act involved the applicant being given the opportunity to provide all the evidence and material on which she relied, and to make any submissions. The VCFC did not play an active role in appeals, and did not (and still does not) act as a contradictor in old Act appeals. It does not present evidence and does not make submissions, relying on the Tribunal to make its own findings of fact and to apply the law correctly. This is so despite the fact that s 11 of the old Act provides that:
"The Compensation Fund Corporation is the respondent to any appeal or reference under this Division."
Here the variation of the decision is sought on the ground that I failed to properly apply section 11 of the old Act.
Section 11 of the old Act provides:
"(1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries.
(2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries).
(3) In the absence of an election, the person determining the application is to make the election.
Note. See injury described in Schedule 1 as sexual assault."
As I understand it VCFC says that this provision required in BDC's case that she not be awarded compensation for both a Category 2 psychological disorder and domestic violence. In the application VCFC wrote -
The Senior member did not correctly apply section 11 of the Victims Support and Rehabilitation Act 1996.
Section 11 does not allow for the award of two ranged amounts domestic violence and sexual assault. It only allows for one.
Without a close examination of the schedule of compensable injuries and the old Act as a whole it is very difficult to attach a comprehensible meaning to s 11. Before this application for variation I had not appreciated its precise effect.
The schedule of compensable injuries (Sch 1 of the old Act) specifies a long and detailed list of physical and psychological injuries, and the amount or range of compensation payable with respect to each of them. It includes two compensable injuries (domestic violence and sexual assault) which, while not strictly injuries per se, are to be treated as compensable injuries provided that an act of violence is established: Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185. Act of violence is defined in s 5 to mean:
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment.
(2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary)
The Dictionary defines sexual assault and domestic violence thus:
sexual assault and domestic violence means any of the following:
(a) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent (within the meaning of section 61R of the Crimes Act 1900) or with consent obtained by means of a non-violent threat (within the meaning of section 65A of the Crimes Act 1900), or
(b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having an intellectual disability (within the meaning of section 66F of the Crimes Act 1900), or
(c) self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat (within the meaning of that section), or
(d) the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person, or
(e) participation with a child under the age of 18 years in an act of child prostitution (within the meaning of section 91C of the Crimes Act 1900) or the use of a child under the age of 18 years for the production of child abuse material (within the meaning of section 91G of the Crimes Act 1900), or
(f) the intimidation or stalking of a person (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) in apparent contravention of an apprehended violence order in force under that Act, or
(g) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:
(i) a person who is or has been married to the person who committed the offence,
(ii) a person who is or has been a de facto partner of the person who committed the offence,
(iii) a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
(iv) a person who, at the time of the offence, was living in the same household as the person who committed the offence,
(v) a person who, at the time of the offence, was living as a long-term resident in the same residential facility as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987),
(vi) a person who, at the time of the offence, had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who committed the offence,
(vii) a person who is or has been a parent, guardian or step-parent of the person who committed the offence,
(viii) a person who is or has been a child or step-child of the person who committed the offence, or some other child of whom the person is the guardian,
(ix) a person who is or has been a brother, sister, half-brother, half-sister, step-brother or step-sister of the person who committed the offence.
The compensable injuries of sexual assault and domestic violence are described by reference to the act of violence, rather than the nature of the injury, and are therefore compensable injuries to which s 11 of the old Act applies.
In Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185 Mc Coll JA, with whom Mason P and Ipp JA agreed, explained the operation of s 11. Her Honour first noted that the Attorney General's Second Reading Speech on the introduction of the Bill, New South Wales Legislative Council, Parliamentary Debates (Hansard) 15 May 1996 at p 975 - 976 contained the following passage (the Court's emphasis):
"Victims of crime and the community have a right to expect that victims compensation awards be consistent and equitable. The Government considers that this can most appropriately be achieved by standardising the amounts to be awarded for similar injuries. The reform proposal provides for compensation for injury to be determined according to a comprehensive injury and award schedule. An applicant will receive an award based on the severity of the injury suffered. The schedule of awards published in the Bill lists specific categories of injuries to which are assigned specific award amounts. The injury schedule makes special provision for certain categories of sexual assault, where a range of minimum and maximum awards will apply. Categories of sexual assault have been specifically identified in the schedule, in addition to the injury categories, to recognise the particular needs of this group of victims. A victim of sexual assault claiming compensation either may choose to claim under a relevant sexual assault category or may instead elect to claim for other relevant injuries listed in the schedule. The schedule is structured to ensure that compensation is directed towards those victims suffering the most serious injuries. The award amounts proposed in the injury schedule also give greater recognition to the length of time an injury may be suffered and to those injuries where there is continuing disability ... The Government considers that the injury schedule provides a fair and consistent basis for comparing the severity of different injuries, as well as providing an equitable basis for providing for the competing needs of victims."
Her Honour then said, at [52]
"Section 11 was intended, as the note indicates and the Second Reading Speech said, to give effect to the proposition that victims of sexual assault claiming compensation may choose either to claim under a relevant sexual assault category or may elect to claim for other injuries listed in the Schedule. In 1998, in circumstances which I will shortly detail, Schedule 1 was amended to include a category of "domestic violence" with the intention of giving victims of such offences a right to elect pursuant to s 11(2)."
Those amendment were introduced by the Victims Compensation Amendment Act 1998. McColl J observed, at [74] that:
"In his Second Reading Speech the Minister responsible for the Bill which became the 1998 Act said (New South Wales Legislative Council, Parliamentary Debates (Hansard) 22 October 1998 at p 8855):
"The Bill also provides for the creation of a new global injury category of domestic violence. As the Select Committee acknowledges, on present award trends, the majority of claims arising from domestic violence have been for psychological injury. The creation of this injury category will enable such claims to continue to be considered.
The creation of this category will enable domestic violence victims, like sexual assault victims, to elect whether they wish to claim for separate injuries suffered, or alternatively apply for a global award. The changes to the approach in providing monetary awards for psychological injury will ensure that genuine claims for severe psychological injury, which could occur as a result of for example a vicious street assault, an armed hold up or an armed home invasion, may still be considered. The changes will also ensure that psychological injury may still be claimed by sexual assault victims and victims of domestic violence, which is commonly the major injury they experience." (emphasis supplied)"
It follows that an applicant such as BDC is not entitled to an award for both the compensable injury of domestic violence and for a category 2 psychological or psychiatric disorder that is severely disabling. Section 11(2) requires her to elect between the two, and in the absence of such an election requires the person determining the application to make the election.
As a consequence it is clear that I was in error in awarding BDC compensation for both a category 2 chronic psychological or psychiatric disorder that is severely disabling, and domestic violence. As she had not made an election between the two, I was required to but did not do so. My failure to do so is a mistake of law, not a clerical error or a slip or omission to which s 63 of the NCAT Act applies.
It can be argued that because of the error my decision is one which exceeded the Tribunal's jurisdiction under the old Act, rendering it a nullity: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117. In such a case, given the administrative nature of the decision, the Tribunal would be free to make the determination afresh: see the discussion in Robert Orr and Robyn Briese, Don't think twice? Can Administrative Decision Makers Change Their Mind? AIAL FORUM No. 35 at pp 11- 14; and Margaret Allars, Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Court and Administrators to Re-open or Reconsider their Decisions, AIAL Forum No 30 at pp 1 -22.
I have concluded that the provisions of clause 9 of the Regulation are such that I do not need to go down the nullity path with the many complexities that the authors of the above articles point out. Rather, I have concluded that I can reconsider and vary my decision under clause 9(1)(b) of the Regulation on the basis that -
1. The VCFC was not present when the decision was made; and
2. That as a consequence the Tribunal procedures VCFC was not given a reasonable opportunity to put its view of the applicable law to the Tribunal.
In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 the Appeal Panel focussed on what is meant by a party being unable to put their case, in circumstances where the party knew of a hearing. The Appeal Panel wrote, at [88 - 89]:
"On our findings set out above, the documents were delivered to the Hinchinbrook Address and were thus served on Ozzy. On this basis, it could be said that Ozzy has had, at least, an opportunity to be heard. The law, however, requires that a party be given a reasonable opportunity to be heard or otherwise have its submissions considered. The reasonableness standard requires all relevant circumstances to be considered.
89 If it were proved that the documents, although received by Ozzy at the Hinchinbrook Address, were deliberately not passed on to Ms Ince by a responsible officer of Ozzy, Ozzy could properly be seen as deliberately rejecting the opportunity offered. It could then be said that Ozzy had been given a reasonable opportunity to be heard in the circumstances but chose not to avail itself of the opportunity: see, for example, CMT [2014] NSWCATGD 11 at [47]. Similarly, if a respondent deliberately decided not to attend a hearing so that, at a later time, it could make an application to have the decision set aside on the basis of its absence and gain time by having any orders stayed while that application was heard and determined, it could also be concluded that the respondent had been given a reasonable opportunity to be heard but did not take up that opportunity for tactical reasons."
The VCFC does not participate in appeals as a matter of practice that derives from the scheme set up under the old Act. The assessor's file forms part of the materials before the Tribunal on appeal, but the VCFC does not make submissions of fact or law. This practice is one that was followed in the Victims Compensation Tribunal and is consistent with the old Act. An applicant, such as BDC on the other hand, is invited to put on submissions and evidence, and is to be warned of, and given an opportunity to address, previously unflagged, adverse determinations before they are made. A determination is then reached on the papers.
Under the old Act there was no provision such as clause 9 of the Regulation which allowed a party request that a determination be varied or set aside, and the VCFC's only remedy when the Tribunal erred in law was to appeal the District Court under s 39 of the old Act. With the creation of NCAT and the transfer of jurisdiction under the old Act to the Tribunal the opportunity for the VCFC to rely on clause 9(1)(b) when there is a clear error of law in a decision arises.
I accept that had the VCFC been alerted to my mistaken view as to the effect of s 11 of the old Act before I made the decision, it would have sought to make submissions alerting me to my misconception. The procedures traditionally followed in the Victims Compensation Tribunal, as adopted in this Tribunal, do not provide such a facility. As a consequence I accept that they did not provide the VCFC with a reasonable opportunity to be heard with respect to the proper application of s 11 of the old Act.
I add that were the mistake I made one of fact, and not an error of law, then I would not be of the same view. This is so because given the procedures adopted in these matters I think the VCFC was entitled to rely on the Tribunal properly implementing non-controversial aspects of the applicable law.
I am reinforced in this conclusion with respect to the operation of clause 9 of the Regulation by two things. First by s 36 of the NCAT Act which relevantly provides -
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) …
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
The view I have taken with respect to the VCFC not being able to adequately put submissions regarding the operation of s 11, will ensure the just, quick and cheap resolution of the issue relating to error of law contained in my decision. Certainly, given that I accept the error, it will avoid the expense and difficulty associated with an appeal against that decision. Secondly, it will allow me to correct an error in my decisions which may well result in it being a nullity, and to issue a perfected decision: see Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117; and McWilliam and Civil Aviation Authority [2005] AATA 1148, per Forgie SM at [32-26].
While I accept that there are competing strong arguments with respect to the preservation of the public interest in the finality of decisions, the comments of Mason CJ in Autodesk Inc v Dyason No 2 [1993] HCA 6 indicate that repairing an error of fact or law, to which the parties did not contribute, can be an exception to that public interest. At para [4] Mason CJ said:
"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
I note that it can also be argued that the error which the VCFC seeks to remedy is one that entitles the VCFC to internally appeal to an Appeal Panel as of right: see s 80 of the Civil and Administrative Tribunal Act 2013, and that an appeal is the appropriate remedy, rather than an application to vary under cl 9 of the Regulation. While I accept that the VCFC is entitled to appeal errors of law as of right, I consider that variation under cl 9 of the Regulation provides an alternative remedy, which is consistent with the guiding principles of the CAT Act.
It follows that I will grant the VCFC's application that I vary my decision to correct my error in not properly understanding and implementing s 11 of the old Act. The effect of these variations will be that BDC will not receive compensation of $1,000 for domestic violence. She will still receive the $40,000 I awarded for a Category 2 psychological disorder.
[2]
The variations
My decision made 10 December 2014 is amended by deleting from order 1 "$41,000" and replacing it with $40,000."
My reasons for decision dated 10 December 2014 are amended as follows:
1. Deleting all of paragraph 37 and inserting in its place the following:
"BDC has also claimed compensation for domestic violence. The effect of s 11 of the old Act is that an applicant cannot receive compensation for both domestic violence and a category 2 chronic psychological or psychiatric disorder that is severely disabling. Rather, an applicant is to elect which compensation she wishes to receive, and in default of election the decision maker is to do so. As BDC will receive compensation of $40,000 for a category 2 chronic psychological or psychiatric disorder that is severely disabling, and $10,000 for the compensable injury of domestic violence, electing to receive the higher amount of compensation is the obvious choice. As a consequence BDC cannot recover compensation for domestic violence."
1. Deleting from paragraph 40 "$41,000" and replacing it with $40,000."
2. Deleting from paragraph 40 "$31,750" and replacing it with $30,750."
[3]
Orders
The Tribunal makes the following orders:
1. Extension of time in which to bring an application to vary the previous decision of the Tribunal granted to the Victims Compensation Fund Corporation.
2. The decision and order of the Tribunal made 10 December 2014 in BDC v Victims Compensation Fund Corporation is varied as set out in paragraphs 48 and 49 of this decision.
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: 14 May 2015
Parties
Applicant/Plaintiff:
BDC
Respondent/Defendant:
Victims Compensation Fund Corporation
Cases Cited (9)
Extension of time
The principles applicable to an extension of time were discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 5. In considering an application for an extension of time the Tribunal is to have regard to:
1. the length of the delay;
2. the reasons for the delay;
3. the VCFC's prospects for success;
4. the extent of any prejudice to BDC;
5. whether strict compliance with the 7 day time stipulation would work an injustice on the VCFC.