1. Ms Bonner has applied to VCAT, seeking review of the Victims of Crime Assistance Tribunal's refusal of her application to it to vary its previous award of assistance to her.
2. Her variation application follows the Victims of Crime Assistance Tribunal (VOCAT) on 7 February 2008, making an award of assistance to her (the Original Award) under the Victims of Crime Assistance Act 1996 (the VOCA Act). That original award is not in dispute.
3. By letter dated 7 March 2014, Ms Bonner sought from VOCAT a variation of the original award to pay for dental treatment, said to be required as a direct result of the injury suffered by her as a victim of crime, to which the Original Award related.
4. Section 60(1) of VOCA Act permits a variation application at any time following an original award:

The Tribunal may, on the application of the person to whom, or for whose benefit, an award of assistance was made (including an award of special financial assistance made in accordance with section 8A), vary the award (including an award that has been previously varied) in any manner that the Tribunal thinks fit, whether as to the terms of the award or by increasing or decreasing the amount of assistance awarded or in some other way.

1. However, confusingly, as discussed below, s 60(2) places a time limit on VOCAT's power to decide the application.
2. On 8 July 2014, VOCAT refused the variation application. It decided that under s 60(2) of the VOCA Act, it must refuse a variation application made more than six years after the making of the award of assistance, unless the applicant was under 18 years old at the time of the crime. Ms Bonner was 26 at the time of the crime.
3. Ms Bonner's lawyers submit that under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), VCAT has jurisdiction to extend that six year time limit. VOCAT submits VCAT does not.
4. The parties agreed that VCAT decide the issue of the basis of written submissions, rather than after a hearing.

1. I have decided VCAT does not, under the VOCA Act and/or the VCAT Act have power to extend the six year time limit. Therefore VOCAT's decision is affirmed. The application remains refused.
2. Section 59(1)(c) of the VOCA Act gives VCAT jurisdiction to review VOCAT's 8 July 2014 refusal of the variation application.
3. With VCAT having jurisdiction, under s 51(1) and 51A of the VCAT Act, VCAT stands in the shoes of VOCAT which made the original decision. VCAT has:

1. All the functions of the decision-maker (here VOCAT); 2. Any other functions conferred on VCAT by or under the enabling enactment (here the VOCA Act); and

1. Any functions conferred on VCAT by or under the VCAT Act, the VCAT Regulations and VCAT Rules.
2. Under s 51(2) and 51A of the VCAT Act, VCAT may exercise those functions to:

1. Affirm the decision under review; 2. Vary the decision under review;

1. Set aside the decision under review and making a decision in substitution for it;

1. Set aside the decision under review and remit the matter for reconsideration by the decision maker in accordance with any directions or recommendations of the Tribunal; or 2. At any time in the proceeding invite the decision-maker to reconsider its decision.
2. With the variation application having been made to VOCAT outside the six years, the relevant power of VOCAT, which VCAT must have employ to in making its decision, is s 60(2) of the VOCA Act:

The Tribunal must not make an order for variation of an award if the application for variation is made more than 6 years after the making of the original award unless the person to whom, or for whose benefit; the award was made was under 18 years of age when the original award was made in which case an application may be made at any time up until he or she turns 24.

1. Subject to any other consideration, with the application being made outside the 6 years and Ms Bonner being 26 years old at the time of the crime, no variation award may be made.
2. The VOCA Act does not give VOCAT power to extend that time limit.
3. Ms Bonner's lawyers submitted VCAT is able to extend the 6 year limit under s 126 of the VCAT Act:

126 Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. Section 126 gives VCAT power to extend any time limit fixed by or under an enabling enactment (here the VOCA Act) for the commencement of a proceeding.
2. They submitted once Ms Bonner's application for variation was referred to VCAT for review, the reach of s 126 went beyond this VCAT proceeding to include the VOCA proceeding. If that is accepted, s 126 of the VCAT Act may be used to extend the s 60(2) time limit.
3. They cited the VCAT decision, Mare v Victims of Crime Assistance Tribunal (General) [2010] VCAT 414 as an example of VCAT doing that.
4. I rejected that submission.
5. Section 126 gives VCAT discretion to extend any time limit fixed by or under an enabling enactment[1] for the commencement of a proceeding. "Proceeding", as used in s 126, is defined at s 3 of the VCAT Act to mean a proceeding "in the Tribunal", "Tribunal" is defined by s 3 of the VCAT Act to mean "the Victorian Civil and Administrative Tribunal".
6. While VCAT may consider evidence of the VOCAT proceeding and has power to employ VOCAT's statutory powers as it decides applications for review, the VOCAT proceeding is not subsumed into the VCAT proceeding.
7. Therefore, s 126 does not empower VCAT to extend the time for commencement of the VOCAT proceeding.
8. Parliament cannot have intended the submitted interpretation. It would make no sense to deny an applicant access to variation awards at VOCAT but provide that same access on application to VCAT.
9. I note the discussion in Pizer's Annotated VCAT Act, 4th Ed concerning s 126. At page 661 he cites Waraglen Developments Pty Ltd v Maroondah CC [2008] VCAT 1608, which at para 33 says:

However, section 126 has its limitations. It is not possible to use section 126 to extend the time for making a request under section 69(1) of the Planning and Environment Act 1987 because this is a time limit applying to an act, which is outside the Tribunal proceeding. Section 126 applies only to a time limit for the commencement of a proceeding or for the doing of any act in a proceeding.

1. Pizer does note VCAT's decision in Davies v Diversiti Pty Ltd (unreported) where s 126 was employed to extend the six-year limitation period set out in s 159(3) of the Fair Trading Act 1999. Pizer doubts the correctness of that decision. As Nekvapil notes in Victorian Administrative Law (page 1-2369] in Davies v Diversiti Pty Ltd (Civil Claims) [2010] VCAT 1126, a different VCAT member was later asked to take the opposite view. He refused to enter that debate (see para 69), but noted there was force to submissions that s 126 may not be so employed.
2. Mare v Victims of Crime Assistance Tribunal is not an example of VCAT extending the time limit for making a variation application to VOCAT. In Mare, VCAT employed s 126 to extend the 28 day time limit to apply for review of the original award made by the Crimes Compensation Tribunal (the predecessor to VOCAT) to the Administrative Appeals Tribunal (a predecessor to VCAT).
3. Speaking generally on this, when VCAT is reviewing the first application to VOCAT for assistance, it may extend the two year time limit in which the first application may be made. It can do so because s 29 of the VOCA Act both sets the time limit (s 29(1)) and gives VOCAT the power to extend time (s 29(2)). VCAT may then stand in the shoes of VOCAT and decide whether to exercise the s 29(2) power. It does not exercise power under s 126 of the VCAT Act.
4. With VOCAT's decision affirmed, for completeness, I turn to another issue, which I do not decide.
5. There is arguably another reason why s 126 cannot be employed in this VCAT proceeding. Section 126 gives VCAT power to extend any time limit fixed for the commencement of a proceeding. Arguably, when a variation application is made, it is made in an already existing proceeding. The variation application does not commence a proceeding. An application under s 25 enables an application to commence a VOCAT proceeding. Section 29 deals with time limits for applications under s 25 of the VOCA Act.
6. As discussed above, s 60(1) enables variation applications but sets no time limit for them.
7. However, s 60(2) does not fix a time limit for the commencement of the proceeding. Rather, it limits VOCA's power (and so VCAT's power on review) to make a variation award within an existing VOCA proceeding after an original award is made.
8. Neither party made submissions on this issue. As it is not necessary to do so, I have not invited further submissions, nor reached any conclusion about it.

[1] Noting there are exceptions - See Pizer Annotated VCAT Act, 4th Ed, page 672.