BGD v Commissioner for Victims Rights

NCAT Administrative and Equal Opportunity|2014-05-09

reasons for decision 1BGD has applied for administrative review of a Review Decision order made by the Assessor as the Delegate of the Commissioner of Victims Rights ('the Commissioner") on 6 September 2013 pursuant to section 51 of the Victims Rights and Support Act 2013 ("VRSA"). That 'review decision' is in effect the original decision of the Assessor (Client Claims) dated 11 September 2013 to award a Recognition Payment under Part 4 Division 5 of the VRSA, but to dismiss the application for a special grant of Victims Support under Part 4 Division 6 of the VRSA in respect of the claim. There have been no Review Decisions made pursuant to section 49 of the VRSA.

Background 2BGD's application is based upon an assault that occurred at licensed premises on 8 June 2009, whereby he claimed physical injuries to the head and face, and psychological injuries. 3In respect of the allegations outlined at paragraph 2 (above), BGD lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 13 July 2012. As the claims were lodged more than two years after the incident, leave was sought and was given to proceed out of time under the provisions of section 26 (3) (b) of the old Act. 4BGD was not legally represented in his claim initially before the Assessor, but is represented in respect of these proceedings before the Tribunal. 5The application was to be determined in accordance with the provisions of Parts 1 and 2 of the Victims Support and Rehabilitation Act 1996, with an award to be determined on the available evidence establishing that on the balance of probabilities BGD was the victim of an act of violence being - violent conduct against the person apparently in the course of the commission of a criminal offence resulting in injury to the applicant. 6On 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 The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 (VRSA "the new Act").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"). 7The victims compensation scheme was therefore changed by the Parliament in June 2013. As a result the matters were now to be determined under the provisions of the VRSA. Rather than claiming the compensable injuries outlined at paragraph 2 above, BGD could now apply for one of the Categories of Recognition Payment under Division 5 of the VRSA. 8Even though it was lodged in 2012, as BGD's application had not been determined prior to 4 June 2013, contrary to the matters outlined in paragraph 5 (above), BGD's application was now dealt with under the new provisions of the VRSA. 9On 6 September 2013 the Assessor (Client Claims) issued a Notice of Decision pursuant to section 43 of the VRSA under the delegated Authority of the Commissioner. Relevantly the Assessor found that BGD was the victim of an act of violence under section 19 of the VRSA, and that there should be no reduction or disentitlement of any award under section 44 of the VRSA. 10The Assessor made an award for a recognition payment in the sum of $5,000.00. In respect of the issue of whether to award a special grant, the Assessor (Client Claims) decision was in (inter alia) the following terms: Clause 5 (3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000.00 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years from the date of the act of violence [or 2 years from the day after the applicant reached 18 years of age (where applicable).] The applicant applied for statutory compensation of 13 July 2012. I note that the act of violence took place on the 8th of June 2009. The applicant is therefore not eligible to receive a Schedule 2 Clause 5 (3) grant. 11On 11 September 2013 the Commissioner wrote to BGD advising of the determination of the application on 6 September 2013 and attaching a copy of the decision. The letter concluded with the following words: 'If you would like this decision to be reviewed, you must apply to us in writing within 28 days of receiving this letter.' That letter was posted on either 12 September 2013 or 13 September 2013, which is the notation made and initialled on the copy provided by the Respondent as part of the section 58 documents. 12On 11 October 2013 BGD engaged the services of a Solicitor who wrote to the Commissioner requesting (amongst other things) a special grant in accordance with the provisions of Clause 5 (3) Schedule 2 of the VRSA, by way of an Internal Review of the 6 September 2013 decision. However, it appears that this letter was not received by the Commissioner until 18 October 2013. 13On 21 October 2013, the Commissioner wrote to BGD's Solicitors advising that as they received the request on 18 October 2013, it was received outside the 28 day period specified in section 49 (2) of the VRSA. 14It appears that BGD independently asked the Commissioner by way of letter dated 23 October 2013, that his matter be subject to an Internal Review. Unlike earlier communications by and on behalf of BGD, this letter was received by the Commissioner the following day (24 October 2013). 15As a result of the Commissioners reliance on section 49 (2) of the VRSA, no Internal Review has occurred.

Application for Administrative Review 16On 3 March 2014 BGD completed an Application for administrative review under the Administrative Decisions Review Act 1997 in accordance with section 51 (1) of the VRSA, in respect of his claim. The Application was lodged with the Tribunal on 27 March 2014. Having regard to service, and the provisions of the Administrative Decisions Review Act 1997 BGD's application was received out of time. I will address that issue in due course. 17The applications raise the following grounds: (1)As you can see from the attached photo I received significant injuries as a result of "assault occasioning grievous bodily harm". Under the superseded legislation I would have been entitled to between 30k -50k for the injuries I suffered. The new legislation took away / deprived me of this right and instead provided me with a modest amount of 5k. (Bearing in mind I req numerous reconstructive operations. (2)Whether the party (VS) has followed proper procedure and afforded the individual procedural fairness. Further particulars were supplied by BGD which amplified his grounds. 18The Tribunal's powers in relation to an application for administrative review are governed by section 63 of the Administrative Decisions Review Act 1997, which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 19BGD's matter was initially heard before Senior Member Molony on 9 May 2014. However after the initial hearing of the matters, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 20Correspondence was sent by the Registrar of the Tribunal to the parties on 15 August 2014 in respect of the section 52 'substitution' issue. The Respondent replied by letter dated 27 August 2014 indicating that they had no submission to make. BGD's Solicitors did not reply to the letter of 15 August 2014. 21As a result, the provisions of section 52 (2) of the NCAT Act were deemed satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act. 22I have had the benefit of examining the full transcript of the hearing before Senior Member Molony on 9 May 2014. I have read that Transcript. I have also read all of the material provided by both BGD, and all of the material provided by the Commissioner under section 58. I have taken all of that evidence and material into account even though I may not specifically refer to all the evidence, material and submissions in these reasons.

Hearing on 9 May 2014 23On 9 May 2014 the matters came before Senior Member Molony for hearing. BGD (who is also a legal practitioner) appeared and Mr Matulewicz appeared on behalf of the Commissioner. 24The central issue before the Tribunal is whether BGD is eligible for a Special Grant under Clause 5 of Schedule 2 of the VRSA. 25However, there are two preliminary issues, one was canvassed during the hearing and one has not been previously addressed in these proceedings. That (unaddressed) issue) issue relates to whether the application for review was received within time. I propose to deal with that issue now for the following reasons.

The extension of time issue 26The Respondent was legally represented and (notwithstanding the short period since the amendments) was in effect highly experienced in the provisions of the Victims Compensation / Support scheme. Preparation of the matter would have indicated the factual state in respect of the lateness of the appeal, and the fact that it was not raised either means that the Respondent was unaware of the matter, or did not take issue with the matter. In any event, the fact that the parties proceeded to argue submissions on the substantive issues (concerning the meaning of clause 5 (3)) and the known threshold issue (whether the requirements of section 51 of the VRSA had been met in respect of there being no internal review) shows that by the time the matter was being heard, no prejudice attached to the Commissioner. From an examination of the Transcript, it is clear that the 'late appeal' issue was not canvassed by either the Tribunal or the Parties. 27In the absence of a Notice of the Internal Review, it appears that BGD's further rights (if any) flowed from the receipt of the notification from the Commissioner dated 21 October 2013. In BGD's application to the Tribunal this document is referred to as 'Annexure "B" '. Whilst BGD states on the front of his application that he received this decision on 18 October 2013, that cannot be correct as it predates the document. Presumably because the issue had not been addressed, there is no evidence from the Commissioner as to when the 21 October 2013 letter was posted. In any event, working backwards, 28 days prior to the date that the review was lodged is 28 days prior to 26 March 2014 - being 26 February 2014. 28On the other hand, if the 21 October 2013 letter was posted the following day, the letter would have been deemed received 4 business days later in accordance with the Interpretation Act 1987 (being Monday 28 October 2013). The 28 days would have expired on those assumptions on Monday 25 November 2013. On these assumptions the application was received 3 months and one day out of time. In any event, on the basis of the material recorded on the front of the application, the administrative review was lodged out of time. 29Section 41 of the NCAT Act provides for extensions of time in these circumstances. 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 30In order to determine the other issues in BGD's application, albeit as threshold issues, in the exercise of my statutory discretion of my own motion I extend the time for BGD to lodge his application for administrative review to the Tribunal until 5:00pm 26 March 2014.

The Jurisdiction Issue 31Section 51 of the VRSA provides the following: 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner. (emphasis added) 32The provisions of section 51 (1) of the VRSA in my view make it clear that any application for review by the Tribunal, must follow an internal review of the first decision. 33Section 55 of the Administrative Decisions Review Act 1997 (the ADR Act) provide for the preconditions of an administrative review by the Tribunal. The section provides that: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note. The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies-the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. (Emphasis added) 34Section 55 (3) of the ADR Act provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However section 55 (4) provides discretionary exceptions to that requirement. 35Section 55 (4) (a) provides that I can review the matter (in the absence of an internal review) if I am satisfied that the Commissioner 'unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision'.. . (emphasis added) 36I am not satisfied that this provision applies in this instance. Whilst it is clear that the second part of the provision applies (in that the application was only two or three days late), there is no evidence that the Commissioner 'unreasonably refused to consider the application' , being the first part of the provision. I form this view because of the wording of section 49 (2) of the VRSA, which provides that 'The application must be made within 28 days after the day on which the applicant is given notice of the decision maker's decision'. 37There is no discretion for the Commissioner to receive late applications, due to the drafting of the word 'must' in the provision. In the absence of any statutory discretion, it is not possible to determine the reasonableness (or otherwise) of the Commissioner's consideration in the matter. 38Alternatively, the provisions of section 55 (4) (b) provides a discretion to consider a matter where there has been no internal review. That provision provides that I can deal with the matter if: it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. The issue relating to the 'applicant's interests' goes to the substance of BGD's claim and is bound up in the substantive issue. As the substantive issue before the Tribunal will fail, for reasons that I will set out later, unfortunately I am unable to make a finding in accordance with section 55 (4) of the ADR Act and accept the application for review. I will now turn to the substantive issue.

The Substantive issue 39This is not a case concerning a consideration of the evidence to prove the allegations of act of violence on the balance of probabilities, or the existence of injury. This matter relates to a consideration of the relevant statute as a whole, and the interpretation of the ordinary meaning of a specific clause. 40As stated at paragraph 24 (above), the central issue before the Tribunal is whether BGD is eligible for a Special Grant under Clause 5 of Schedule 2 of the VRSA. 41BGD submitted at the hearing that to take a strict or 'black letter' interpretation to the provision concerning a special grant, is the incorrect approach when one has regard to the objects of the Act, the beneficial nature of the legislation, and the common law. The Respondent submitted that there was no room or opportunity for the Tribunal to exercise any discretion in respect of the provision. 42The Respondent also submitted that the structure of the VRSA (in respect of which remedies are available under it) arises from the New South Wales Government commissioned review into the Victims Compensation Scheme in 2012.

Consideration 43Schedule 2 of the VRSA is titled: 'Savings, transitional and other provisions' The actual clause to be considered provides that: 5 Applications for compensation under statutory compensation scheme (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support. (2) The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both. (3) The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund. (4) In subclause (3): prescribed period means: (a) the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or (b) if the victim concerned was a child when the relevant act of violence was committed-within 2 years after the child reaches 18 years of age. (5) Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act. (6) The amount determined to be payable to the applicant under this clause is to be reduced by the amount of any interim award of statutory compensation made to the applicant under section 33 of the repealed Act. (7) The applicant is not required to refund any part of an interim award of statutory compensation made to the applicant under section 33 of the repealed Act that is more than the amount determined to be payable under this clause. 44It is clear from the wording of the clause, that the provisions of Clause 5 only apply to claims which were lodged under the old Act, but determined in the first instance under the new Act. I infer this from the wording of the Schedule, and the words 'statutory compensation scheme' as they appear in the clause. 45I have recently dealt with exactly the same issue as BGD's substantive claim concerning the special grant, in the recent case of BBO v Commissioner Victims Rights [2014] NSWCATAD 175. In that case I found that the purpose of the provision was to specifically exclude from the provisions of a special grant, the claims lodged under the Victims Support and Rehabilitation Act 1996 which had been lodged with the former Tribunal more than 2 years after the incident upon which the claim was based, or after the 20th birthday of the applicant, which ever was the later. 46Matters pertaining to the intent of the legislature when proposing the legislation was raised at the hearing. Specific reference was made by both parties of the need to go to the second reading speech. 47Mr Brad Hazzard MP on behalf of the then Attorney General gave the second reading speech in the Legislative Assembly on 7 May 2013. The relevant commentary in respect of the Clause is as follows: The Victims Compensation Scheme will be closed immediately. All existing claims that have not yet been finalised will be transferred to the Victims Support Scheme. This will provide a speedier resolution for victims with existing claims, who will be able to seek counselling and a recognition payment right away plus an additional payment of $5,000, provided they lodged their claim within two years of the incident or of turning 18 if they were a child at the time. This will enable the contingent liability to be addressed expeditiously. (Emphasis added) 48On 29 May 2013 the Hon Michael Gallacher gave the second reading speech in the Legislative Council. That speech referred to the Clause / additional payment for existing claims in identical terms to Mr Hazzard MP. 49In debate on 7 May 2013 in the Legislative Assembly, Mr Andrew Rohan MP (for Smithfield) spoke in response to objections to the Bill. He reiterated the comments concerning the additional payment and provisions for existing claims. Transitional provisions provide for the immediate closure of the Victims Compensation Scheme, with all claims outstanding to be transferred to the new scheme. This will enable victims with existing claims to receive immediate recognition payments and access counselling as well as a payment of $5,000 rather than having to wait and receive a contingent payment - provided that they meet the lodgement requirements. (emphasis added) 50Having considered these views, on analysis it would appear that there are a number of reasons for the provision which limits the availability of special grants to old claims. On one assessment, the provision introduces the new limitation periods for lodging claims under the new Act, to old Act matters. That is the general requirement to lodge a claim within two years of the incident or two years from turning 18 years of age, will apply equally to all claims dealt with under the VRSA, irrespective of whether they were lodged under the old Act or the VRSA. 51Additionally a relevant issue that arises in BGD's appeal is the issue of statutory interpretation. I note that this was in part raised at the hearing of the matter. 52A general authority for the correct approach to take in such instances, arises in the case of Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355. In that Case Brennan CJ noted the following: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 53In Statutory Interpretation In Australia (5th Edition Pearce and Geddes) the issue of beneficial legislation is addressed. (pg 15) Remedial or Beneficial Acts The courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. ..... What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under a threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches.' 54In my view it is clear that the VRSA does proscribe certain conduct under a threat of a penalty. That conduct (or action) in this instance relates to the time for lodging of claims. The VRSA takes away any discretion that existed under the former Acts in respect of extending the limitation period for lodging claims. It only provides for an assessment of the nature of the claim in determining whether an extended lodgement period is available, but even that provision is capped. (see section 40 (5) of the VRSA). 55In VCFC v Brown HCA 54 [2003] at 33 when referring to the old Act, Heydon J said: Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. 56This case was referred to by the Respondent as authority for the fact that there were limits to how a decision maker (on review) should consider the beneficial aspect of the legislative scheme. 57Having consider all of the matters outlined at paragraphs 30 to 56 (inclusive) above, I find that upon review BGD would fail in his request for a special grant under the provisions of Clause 5 (3) of Schedule 2 of the VRSA. 58I am not satisfied that the provisions of either part of section 55 (4) apply, in that the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. 59As I am not satisfied that the Commissioner unreasonably refused to consider the application (s- 55 (4) (a) and as the substantive issue in BGD's review must fail, I am therefore unable to accept the review under the provisions of section 55 (4) (b) of the ADR Act 1997 (having regard to the provisions of section 53 (9) ). That is because it is not necessary for the Tribunal to deal with the application in order to protect the applicant's interests, as those interests cannot be met by an order of the Tribunal - that is the merits case would fail. 60The correct and preferable decision is to extend time to appeal, and refuse the application in accordance with section 55 (3) in effect dismissing the application without determining the merits of the claim for the reasons set out above.

Conclusion 61I make the following orders: (1)In the exercise of my statutory discretion, I extend time for BGD to appeal to the Tribunal until 5:00pm 26 March 2014. (2)The Application is dismissed. (3)No order as to costs.

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

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