Pham v Victims of Crime Assistance Tribunal [2016] VSCA 102

STATUTORY INTERPRETATION - Presumption that word used throughout statute has consistent meaning - Strength of presumption - Presumption yields to considerations of context - Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2007] VSCA 140; (2007) 23 VR 474, 482 [31] applied.

1 I have had the benefit of reading the judgment, in draft form, of McLeish JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.

2 I agree, for the reasons given by McLeish JA, that leave to appeal should be granted and the appeal allowed.

3 The Victims of Crime Assistance Act 1996 ('the Act') provides for victims of crime to receive financial assistance for, among other things, loss of earnings suffered as a direct result of an act of violence. It also contains provisions to take account of compensation received from other sources. The maximum amount payable for loss of earnings is $20,000. The question in this application for leave to appeal is whether a victim of an act of violence, who has received more than $20,000 from other sources to compensate for loss of earnings, may still recover up to $20,000 under the Act in respect of the balance of those lost earnings.

4 The applicant was involved in a motor vehicle collision in April 2013. The driver of the other vehicle, which was travelling on the wrong side of the road, was subsequently convicted of reckless conduct placing a person in danger of serious injury contrary to s 23 of the Crimes Act 1958. On 11 June 2013 the applicant applied to the Victims of Crime Assistance Tribunal ('VOCAT') for financial assistance in respect of losses and expenses incurred as a result of the incident.

5 Relevantly for present purposes, the applicant claimed a loss of earnings in the sum of $47,165.28, which he reduced by $27,096 reflecting payments for loss of earnings received from the Transport Accident Commission ('TAC') to produce a total claim of $20,069.28. The applicant submitted that he should receive $20,000, being the maximum amount of financial assistance payable under the Act in respect of loss of earnings.

6 VOCAT found that the applicant met the statutory criteria for a grant of assistance but held that no amount was payable in respect of loss of earnings because the applicant had already received more than the statutory maximum of $20,000 by way of payments from the TAC.

7 On a merits review to the Victorian Civil and Administrative Tribunal ('VCAT') under s 59(1) of the Act, the decision of VOCAT was upheld.[1] The applicant seeks to appeal from that decision.[2]

8 The purpose and objectives of the Act are set out in s 1, in the following terms:

Purpose and objectives of Act

(1) The purpose of this Act is to provide assistance to victims of crime.

(2) The objectives of this Act are -

(a) to assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and

(b) to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime; and

(c) to allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources.

(3) Awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.

(4) The scheme provided by this Act is intended to complement other services provided by government to victims of crime.

9 Section 3(1) defines 'act of violence' as follows:

act of violence means a criminal act or a series of related criminal acts, whether committed by one or more persons, that has -

(a) occurred in Victoria; and

(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs ...

10 The expression 'primary victim' is relevantly defined in s 7(1), which provides:

(1) A primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her.

11 The nature and extent of assistance available to primary victims under the Act are set out in s 8, as follows:

Assistance available to primary victims

(1) A primary victim may be awarded by the Tribunal assistance of up to $60 000 plus any special financial assistance awarded in accordance with section 8A.

(2) The amount awarded to a primary victim may be made up of amounts -

(a) for expenses actually incurred, or reasonably likely to be incurred, by the primary victim for reasonable counselling services;

(b) for medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence;

(c) of up to $20 000 for loss of earnings suffered, or reasonably likely to be suffered, by the primary victim as a direct result of the act of violence;

(d) for expenses incurred by the primary victim through loss of or damage to clothing worn at the time of the commission of the act of violence;

(e) for safety-related expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim as a direct result of the act of violence.

(3) In exceptional circumstances, there may also be included in the amount awarded to a primary victim within the limit set by subsection (1) an amount for other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the primary victim to assist his or her recovery from the act of violence.

(4) Except as provided by subsection (2)(d) or (e), assistance may not be awarded to a primary victim for expense incurred through loss of or damage to property.

12 Division 5 of pt 2 of the Act is entitled 'Limits on assistance'. Sections 16 and 17 are within that division. They provide as follows:

16 Other entitlements to be taken into account

In determining the amount (if any) to be awarded to an applicant, the Tribunal -

(a) subject to paragraph (ab), must take into account and reduce the amount by the total amount of -

(i) any damages that the applicant has recovered at common law; and

(ii) any compensation, assistance or payments of any other kind that the applicant has received -

for the loss, expense or other matter for which assistance is sought from the Tribunal; and

(ab) in the case of special financial assistance under section 8A or an amount under section 13(2)(c), must not take into account any payments under any insurance policy (including life and health insurance) or superannuation scheme that the applicant has received or has not received but is entitled to receive, or would be entitled to receive if he or she applied for them, for the loss, expense or other matter for which assistance is sought from the Tribunal; and

(ac) must take into account and reduce the amount by any amount of financial assistance that the applicant has been awarded or is eligible to be awarded under section 12 of the Transport (Compliance and Miscellaneous) Act 1983 in relation to the incident to which the application relates; and

(b) in all cases but subject to paragraph (ab), may take into account and reduce the amount by the total amount of -

(i) any compensation, assistance or payments of any kind under any scheme, whether statutory or non-statutory, including that managed by the Transport Accident Commission and the Victorian WorkCover Authority and that established by the Police Assistance Compensation Act 1968 and any predecessor of any such schemes; and

(ii) any payments under any insurance policy (including life and health insurance) or superannuation scheme -

that the applicant has not received but is entitled to receive, or would be entitled to receive if he or she applied for it or them, for the loss, expense or other matter for which assistance is sought from the Tribunal.

17 Loss of earnings

Assistance for loss of earnings awarded by the Tribunal is for earnings lost by the primary or secondary victim as a direct result of total or partial incapacity for work during a period of up to 2 years after the occurrence of the act of violence.

13 Section 25(1) provides that an application may be made to VOCAT by a primary victim of an act of violence. The requirements for an application are set out in s 27, which relevantly includes the following matters:

What application must set out

(1) An application must set out -

...

(h) whether the applicant has applied for damages, compensation, assistance or payments of any kind under any other schemes whether statutory or non-statutory, including that managed by the Transport Accident Commission and the Victorian WorkCover Authority and that established by the Police Assistance Compensation Act 1968 and any predecessor of any such schemes;

(i) details of any relevant insurance cover (including life and health insurance) or superannuation benefit entitlements held by the applicant and, in the case of an applicant who is a related victim, by the deceased primary victim;

(j) any other matter required by the rules, or any practice directions, to be set out in the application.

...

14 As contemplated by s 27(1)(j), VOCAT issued a practice direction[3] regarding the making of claims for loss of earnings. It specified that an application for an award for loss of earnings was to be made by filing the attached claim form. The form itself required an applicant to specify the actual loss of earnings and any amounts received, and to calculate the difference which was described as the 'total amount claimed'. This was the process followed by the present applicant in making his claim for the maximum amount of $20,000 able to be paid by way of loss of earnings.

15 The powers of VOCAT to award assistance are found in s 50 of the Act. Section 50(1)(c) provides that VOCAT 'may award assistance to an applicant' if satisfied that the applicant is 'eligible to receive assistance'. The word 'eligible' is not defined. Section 50(2) provides that an award of assistance may be made subject to any conditions specified by VOCAT in the order making the award.

16 Part 4 of the Act is entitled 'Review, Variation and Refunds'. Section 59 provides for review by VCAT of final decisions of VOCAT. Section 60 empowers VOCAT, on the application of the person to whom an award of assistance was made, to vary the award in any manner that VOCAT thinks fit. Among the matters to which VOCAT may have regard in considering such an application are any payments received by or payable to the person to whom the award of assistance was made in respect of the injury since the award was made or last varied.[4]

17 Division 3 of pt 4 deals with refunds. It contains the following provisions:

61 Pursuing other remedies

Except as otherwise provided by this Act, the making of an award of assistance does not affect the right of a person to recover from any other person, by civil proceedings or otherwise, any damages, compensation, assistance or payments of any kind.

62 Refund of award

(1) If a person to whom, or for whose benefit, an award is made receives after the making of the award any damages, compensation, assistance or payments of any kind not taken into account by the Tribunal under section 16 on making the award but which the Tribunal would have been required by that section to take account of if received before then, the person must refund -

(a) the amount of the assistance paid to him or her under this Act, if it is equal to or less than the amount of the damages, compensation, assistance or other payments subsequently received; or

(b) the amount of the damages, compensation, assistance or other payments subsequently received, if the amount of the assistance paid to him or her under this Act is greater.

(2) Despite subsection (1), if the damages, compensation, assistance or other payments subsequently received were received from a person other than the person by whom the act of violence was committed or alleged to have been committed or another person on that person's behalf, a requirement to refund only arises if the Tribunal requires the person to whom, or for whose benefit, the award was made, to do so.

(3) If an award is varied under section 60 or on a review under section 59 by decreasing the amount of assistance, the person to whom, or for whose benefit, the award was made must refund the amount by which the assistance paid to him or her under this Act is decreased.

(4) Any money that is not refunded as required by this section may be recovered as a debt due to the State.

18 In upholding the decision made by VOCAT, the President of VCAT set out his reasoning in respect of the construction of ss 8 and 16 of the Act as follows:[5]

The expressions 'the amount', 'the amount (if any) to be awarded' and like expressions in Part 2 of the VOCA Act should be given a similar meaning. Section 16 refers to the process of determining an award. The amount (if any) to be awarded to an applicant must take into account, and be reduced by, the total amount of any damages recovered at common law, and the

compensation, assistance or payments of any other kind recovered or received by the applicant for the loss, expense or other matter for which assistance is sought by VOCAT. The reference to loss, expense or other matter for which assistance is sought from VOCAT is directly referable to the different classes of expenses listed in sub-ss 8(2)(a)-(e).

Moreover, the expression 'the amount awarded' is not only used in ss 8(2) and 16. In the case of secondary victims, it also appears in ss 10(2) and 10A(1), while in the case of related victims, it appears in ss 12(1) and 13(2). The preferred interpretation of s 16 leads to sensible and consistent results when applied to the provisions relating to primary, secondary and related victims.

Section 62 of the VOCA Act provides for the refund of damages, compensation, assistance or payments of any kind not taken into account by VOCAT under s 16 on making the award including for damages, compensation, assistance or other payments. It is reasonable and appropriate to adopt a construction of the VOCA Act whereby ss 16 and 62 have a similar and consistent effect, notwithstanding that VOCAT has been given a discretion under s 62(2) as to whether the refund is actually to be made in the individual case.

The interpretation advanced by the Attorney-General is consistent with the statutory purposes of the VOCA Act. In addition to implementing the objectives in sub-ss 1(2)(a) and (b), the interpretation adopted gives effect to the objective in s 1(2)(c) which provides for victims of crime to have recourse to financial assistance under the VOCA Act 'where compensation for the injury cannot be obtained from ... other sources'. It is also consistent with s 1(4), which describes the scheme provided by the VOCA Act as intended 'to complement other services provided by government to victims of crime'.

In my opinion, the purpose and structure taken with the text and context of the VOCA Act provide clear indications that the intention of Parliament is best represented by the interpretation advanced by the Attorney-General. I reject the interpretation advanced on behalf of Mr Pham.

The correct procedure to be adopted in determining the amount of any award can be stated as follows:

(1) VOCAT identifies the total amount to be awarded to a primary victim by identifying the applicable amounts, set out in subss 8(2)(a)-(e), ss 8(3) and 8A. This process includes establishing the total amount for loss of earnings in accordance with s 8(2)(c). That provision automatically caps the amount for loss of earnings at $20,000.00;

(2) the total amount to be awarded must then be reduced in accordance with s 16, by the total amount of:

(a) any damages that the applicant has recovered at common law for the loss, expense or other matter for which assistance is sought from VOCAT;

(b) any compensation, assistance or payments of any other kind that the applicant has received for the loss, expense or other matter for which assistance is sought from VOCAT; and

(c) any amount of financial assistance that the applicant has been awarded or is eligible to be awarded under s 12 of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) in relation to the incident to which the application relates;

(3) having reduced the amount of the award by the mandatory amounts in sub-ss 16(a) and (ac), VOCAT may take into account and reduce the amount to be awarded by the amount of funds that the applicant has not received, but is entitled to receive, or would be entitled to receive, if he or she applied for them, for the loss, expense or other matter for which assistance is sought from VOCAT; and

(4) the award is then made to the applicant.

These reductions apply to the damages, compensation, assistance or payments of any other kind received by the applicant that correspond with the award sought by the applicant. An applicant who receives an award of compensation that is unrelated to the loss, expense or other matter for which the applicant sought assistance in the application is not subject to any reduction under s 16.

19 The applicant seeks leave to appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). There are two proposed grounds of appeal, which plainly raise questions of law as required by that section. The grounds are as follows:

1. The learned President of the VCAT erred in concluding that on the proper construction of s 8 and of s 16 of the VOCA Act [the] amount of an award for loss of earnings to the primary victim of an act of violence is to be determined by first identifying the total amount of that loss in accordance with s 8(2)(c), inclusive of the cap of $20,000, and then reducing that amount in accordance with s 16 before an award of assistance is made to an otherwise eligible applicant.
2. The learned President of the VCAT erred in concluding that:

(a) s 16 and s 62 of the VOCA Act should be construed so as to have similar and consistent effect in circumstances where each provision has a different effect; and/or

(b) were relevant to the construction of s 16 of the VOCA Act.

20 The test for leave to appeal to the Court of Appeal from a decision of VCAT is whether the proposed appeal has a prospect of success which is real in the sense that it is not fanciful.[6]

21 In respect of the first ground of appeal, the applicant submitted that, when ss 8 and 16 are read in context, the word 'amount' refers to different subject matter that arises for consideration at different stages in determining an application for assistance. It was submitted that the opening reference in s 16 to 'determining the amount' indicated that that provision was concerned with calculating the amount of an award. It was submitted that this was consistent with s 17, which provides the starting point for the assessment of loss of earnings. The applicant submitted that s 8 then confers power upon VOCAT to make an award of assistance subject to the jurisdictional limits in s 8(2).

22 The applicant submitted that this distinction reflected the difference between 'the amount ... to be awarded' in s 16(1) and 'the amount awarded' in s 8(2). Because of the different purpose of each of these provisions, it was wrong to equate 'the amount' in each provision so as to require an identical meaning for that expression. Section 16 involved a calculation of the amount to be awarded, a calculation anterior to the decision to make an award and which required reference to the total loss suffered as well as relevant deductions. Section 8 then dealt with the making of the award, empowering VOCAT to do so by the use of the word 'may' in s 8(1). In the exercise of that power, s 8(2)(c) provided for a jurisdictional limit in respect of loss of earnings.[7]

23 It was submitted that this approach to ss 8 and 16 gives effect to the purposes of the Act in s 1(1) and the objectives in s 1(2) as well as the statement in s 1(3). However, the applicant conceded that elements of s 1 of the Act could also be invoked to support the contrary construction.

24 In respect of the second proposed ground of appeal, the applicant submitted that ss 16 and 62 operate quite differently and that VCAT was wrong to hold that s 62 was relevant to the question before it. In the first place, s 16(a) provides for the mandatory deduction of damages, compensation, assistance or other payments. In contrast, s 62 only operates in a mandatory fashion in those relatively rare cases in which damages, compensation, assistance or other payments are subsequently received from the person by whom the act of violence was committed (or another person on that person's behalf). In other cases, repayment is required only if VOCAT requires the person to do so.

25 Secondly, s 62 has what the applicant characterised as a 'blunt effect'. Whereas s 16 requires a comparison to be made between any damages, compensation, assistance or payment and the 'loss, expense or other matter for which assistance has been sought' and provides for an offset on the basis of a correspondence between the two, thereby requiring reference to the categories of assistance in s 8(2), s 62 simply provides for the deduction of any amount received, 'of any kind' which would have had to be 'taken into account' under s 16, from the amount awarded. VOCAT has no discretion, if it decides to require a refund to be made, to limit the extent of that refund so that it is required only in respect of the particular matter in s 8(2) in respect of which damages, compensation, assistance or payments have subsequently been received. In contrast, s 16 operates to refer any damages, compensation, assistance or payment back to the kinds of losses, expenses and other matters set out in s 8(2) and only deducts those amounts received in respect of the particular category of assistance in question.

26 VOCAT made a submitting appearance in both VCAT and this Court.[8] The Attorney-General intervened seeking to uphold VOCAT's decision.[9]

27 The Attorney-General submitted that the word 'amount' in s 8 and s 16 meant in each case the total amount of an award. In s 8, 'the amount' was the total amount of assistance awarded, rather than the individual amounts in ss 8(2) and (3) that make up that amount. In s 16, 'the amount' was the total amount that would otherwise have been awarded under s 8.

28 The Attorney-General submitted that s 8 was not merely a source of power to make an award; it also set out a process for calculating the amount of assistance. Section 8 contained a series of gross amounts to be determined and s 16 then provided for deductions from those gross amounts. Section 16 required deductions to be made from 'the amount' to be awarded, which was the same as 'the amount' identified under s 8(2).

29 In respect of loss of earnings, the Attorney-General submitted that s 17 did not provide a definition for the purposes of the calculation. While it referred to some elements of a loss of earnings claim, s 8(2)(c) contained other important aspects, including the nexus to an act of violence.

30 The Attorney-General placed considerable reliance on s 62, contending that s 16 should be construed in a way that avoided different results being reached depending on whether damages, compensation, assistance or other payments were received before an award was made (and thus deducted under ss 8 and 16) or afterwards (and deducted under s 62). It would be perverse if the timing of an application under the Act made a difference, especially if that difference created an incentive for a victim of crime to delay seeking assistance so as to avoid the adverse operation of s 62 and to benefit from the applicant's favourable construction of ss 8 and 16. In this connection, the Attorney-General relied on Baker v Stone, a case concerning provisions of the Criminal Injuries Compensation Act 2003 (WA) where the Court, in rejecting the appellant's construction, noted that if that construction were correct the assistance payable would 'depend upon an accident of timing'.[10] In the applicant's own case, on his construction, had he not received compensation from the TAC until after he had been awarded $20,000 by way of assistance for loss of earnings, s 62 would have operated to reduce the amount of assistance to nil. Yet the applicant's construction would yield assistance of $20,000 simply because the compensation had already been received when the award of assistance was made.

31 The Attorney-General gave other examples of scenarios under which it was said that the applicant's construction would benefit a person who delayed making an application to VOCAT so as to enable other damages, compensation, assistance or payments to be taken into account under s 16, rather than under s 62. This was said to undermine the beneficial intentions of the Act.

32 For example, the Attorney-General contended that, in a case where assistance was sought in respect of medical expenses in the amount of $100,000, and compensation of $20,000 was obtained from other sources in respect of those expenses, the applicant's construction would favour a person who delayed seeking assistance until after other compensation had been received. On the applicant's construction, where compensation was received before an award of assistance, the $20,000 figure would be deducted before applying the cap in s 8, and the person would receive the maximum amount of $60,000. But if the person had already received that amount of assistance before any compensation was received, s 62 would operate to reduce the amount ultimately received from $60,000 to $40,000. In contrast, it was said, on the Attorney-General's construction the figure of $20,000 would be deducted under s 16 from the $60,000 figure derived from s 8, producing assistance of $40,000, being the same result as would apply if the compensation was received subsequently.

33 The Attorney-General submitted that the objectives of the Act showed that it was not intended to achieve the awarding of full compensation, as distinct from a 'symbolic expression' of assistance, to victims of crime. The assistance was to complement, but not to supplement, other sources of assistance. Ultimately, however, it was submitted that the objectives of the Act were not determinative of the question of construction before the Court.

34 The principles to be applied in the present case are not in doubt and are conveniently set out in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[11]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

Consistently with the approach articulated above, it was not suggested that resort to extrinsic materials would assist the Court in the present matter.

35 It is convenient to commence by considering the power of VOCAT to make an award under the Act. Section 50(1) contains three criteria that must be satisfied to enliven that power. An act of violence must have occurred. The applicant must be, relevantly here, a primary victim of that act of violence. And the applicant must be 'eligible to receive the assistance'. This directs attention to the provisions of the Act that confer 'eligibility' for assistance.

36 As indicated, the concept of 'eligibility' is not in terms defined in the Act. However, pt 2 is entitled 'Eligibility for Assistance'. It is divided into five divisions. The first three are entitled 'Primary victims', 'Secondary victims' and 'Related victim' respectively. Division 4 is about funeral expenses and div 5 is headed 'Limits on assistance'. Each of the first four divisions contains provisions stating that assistance 'may be awarded' by VOCAT, together with provisions in respect of the amounts that may be awarded. Division 5, as its name suggests, contains provisions limiting the assistance available. It is apparent that eligibility for assistance under the Act is determined by all these provisions.

37 The Attorney-General contended, consistently with the reasoning of VCAT, that the use of the word 'amount' in s 8(2) and elsewhere in pt 2 to refer to the sum awarded to an applicant indicated that the word had the same meaning in s 16. It was submitted that the word should have a consistent meaning in the Act. As such, when s 16 refers to the 'amount to be awarded', it is speaking of the amount calculated under s 8(2) (in the case of a primary victim).

38 In my opinion, this argument places undue significance on the legislature's use of a neutral and non-technical word, in a variety of contexts, so as to elevate that word to unwarranted importance. While there is a presumption that a word used throughout a statute has a consistent meaning, it is only a presumption, which 'will always yield to the requirements of the context in which [the word is] used'.[12] In the Act, the word 'amount' denotes a sum or a figure. But there is no statutory definition or other significance attached to the term. Section 50, for example, does not speak in terms of VOCAT awarding an 'amount'. Section 8(2) itself refers to the 'amount awarded' being 'made up of amounts'. Section 8(3) contemplates that an 'amount' for other expenses may be included in 'the amount' awarded. The Act uses the word 'amount' simply to describe a sum or figure in a variety of contexts. Rather than giving the word an unvarying meaning, it is those contexts that must give meaning to the word in any given case.

39 There is therefore no requirement that 'the amount (if any) to be awarded' in s 16 must be read as referring to the same 'amount' as that which may be awarded under s 8. When one turns to the two provisions themselves, they reveal that the 'amounts' may differ. The 'amount awarded' under s 8 refers, by the words of the provision, to the actual award of assistance. In contrast, s 16 speaks of the 'amount (if any) to be awarded'. The latter expression speaks to an anterior point at which the amount to be awarded is being ascertained but the actual award of assistance, for which s 8 provides, is yet to be made. There is no reason why these two 'amounts' must be the same. The implication is rather to the contrary, because s 16 envisages that the 'amount' that is to be awarded is provisional because it is liable to be reduced under the section. The words 'to be awarded' emphasise the anterior operation of the provision.

40 It is true, as the Attorney-General submitted, that s 8 establishes categories for which assistance may be granted, including by prescribing criteria for falling within those categories. In doing so, it is aptly described as prescribing conditions of eligibility for assistance. Where its terms are satisfied, VOCAT therefore has power to award assistance under s 50(1) of the Act. However, s 8 does not address itself to the calculation of the amount of assistance in any particular case. Rather, s 8 is jurisdictional in character because, read with the requirement of eligibility for assistance in s 50(1)(c), it defines and circumscribes the power of VOCAT to award assistance to primary victims.

41 Section 16, in contrast, is expressly concerned with 'determining' the amount of assistance to be awarded. It operates by reference to 'the loss, expense or other matter for which assistance is sought from the Tribunal'. In other words, it presupposes that VOCAT's jurisdiction to award assistance has been invoked and that the Act has provided for that jurisdiction. The provision establishing jurisdiction is here found in s 8, read with s 50(1)(c). Viewed in that light, s 16 assists in ascertaining the amount of assistance to be awarded, but is subject to the jurisdictional limits fixed by s 8. Consistently with this structure, the parameters in s 8, including the pecuniary limits on recovery, only operate once s 16 has been applied and any reductions required by that provision have been made.

42 As described above, the Attorney-General contended that such an interpretation would give rise to anomalous and counterproductive results. If an applicant had already received compensation for loss of earnings, this interpretation would still enable that applicant to be awarded up to $20,000 for loss of earnings that had not been compensated. Yet, so it was said, an applicant who sought assistance prior to receiving compensation would be liable to an order that he or she refund that compensation out of any award of assistance already made. This was said to run counter to the beneficial objects of the Act, by encouraging delay in the bringing of applications. The result was said to be perverse.

43 The suggested perversity is said to flow from the terms of s 62, which provides for refunds of awards when compensation 'of any kind not taken into account' by VOCAT under s 16 is received, which VOCAT would have been required under s 16 to take into account had it been received before then. Evidently, s 62 is intended to avoid the retention of windfall benefits by applicants due to what might be regarded as accidents of timing. However, the manner in which that intention is realised shows that it is at best an uncertain guide to the meaning of s 16.

44 In the first place, s 16 relevantly provides for deductions of amounts of compensation 'for the loss, expense or other matter for which assistance is sought' from VOCAT. These words refer back to the kinds of loss and expense for which awards of assistance may be sought and made, relevantly, under s 8(2). In this way, s 16 applies the deduction by reason of damages, compensation, assistance or other payment for a loss or expense to the amount that would have been awarded in respect of that loss or expense. In contrast, s 62 provides for a refund which is undifferentiated according to whether the assistance to be foregone was referable to the loss or expense for which compensation was received. For example, if a person received $20,000 by way of assistance for loss of earnings and $10,000 under other heads of assistance, and later received $30,000 in compensation for loss of earnings, s 62 would provide for the refund of the whole of the assistance received. On both the applicant's and the Attorney-General's construction of s 16, had the compensation been received before the assistance was awarded, it would have been deducted only from the award for loss of earnings, and the applicant would still have received $10,000. An applicant in such circumstances would be better off if assistance was only awarded after all compensation had been received. If there is an incentive to delay seeking assistance until after damages, compensation, assistance or other payments from other sources have been received, it may therefore arise on either of the competing constructions. On any view, therefore, 'accidents of timing' are liable to occur.

45 Secondly, the operation of s 62 differs on the basis of the source of the compensation, by reason of sub-s (2). If the damages, compensation, assistance or other payment is received from or on behalf of the person by whom the act of violence was committed (or was alleged to have been committed), the obligation to refund the award arises automatically. But if payment is received from any other source, a refund is only to be paid if VOCAT requires it. The refund is therefore by no means automatic. In these circumstances, it may be doubted whether the risk of a refund being required operates in practice to discourage prompt applications for assistance, on either construction. But even assuming the contrary, the fact that s 62 operates to a very substantial extent only at the discretion of VOCAT again suggests that its provisions are not a reliable guide to the proper construction of s 16.

46 Nor does the decision of the Western Australian Court of Appeal in Baker, upon which the Attorney-General relied, point to any contrary result. While the general thrust of the legislation in issue in that case was very similar to that of the Act, there were also critical differences. In particular, the relevant deduction in respect of insurance amounts was required to be made from the 'compensation award', which expression was defined to mean, unless a contrary intention appeared, an award of compensation made under the legislation.[13] The Court held that the deduction provision, along with adjacent provisions preventing the awarding of compensation, operated on a 'compensation award', as defined. It rejected an argument that the expression 'compensation award' in the deduction provision did not have its defined meaning but referred to a 'notional award' pending the making of an actual award.[14]

47 In contrast, s 16 of the Act, as has been observed, uses the undefined expression 'amount' to designate the figure from which the deduction is to be made. Moreover, by using the expression 'the amount ... to be awarded', the section indicates that it operates by reference to a prospective or provisional figure. These differences suffice to distinguish the decision in Baker from the present case.

48 Reference to the purpose and objects of the Act, as both parties ultimately accepted, does not take the matter any further. The statement in s 1(1) of the purpose of the Act, namely 'to provide assistance to the victims of crime', is too general to provide any useful guidance in respect of the quite narrow point of construction now in issue.[15] When one turns to the stated objectives of the Act, such indications as there are point, albeit faintly, in both directions. Section 1(2)(a) describes an objective of the Act as being to assist victims of crime to recover from the crime 'by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime'. But the fact that the financial assistance for which the Act provides is described in s 1(2)(b) as 'a symbolic expression by the State of the community's sympathy and condolence' for the effects of crime upon victims indicates that the Act does not strive to achieve full compensation. Section 1(3) reinforces that position.

49 Section 1(2)(c) states that the Act allows victims to have recourse to financial assistance under the Act 'where compensation for the injury cannot be obtained from the offender or other sources'. This suggests a legislative policy against double recovery, but that is not the present question. It is not in doubt that, whatever the level of assistance for which the Act provides, s 16 seeks to avoid the payment of assistance when compensation is available from elsewhere. Similarly, the fact that s 1(4) states that 'the scheme provided by the Act is intended to complement other services provided by government to victims of crime' does not help to identify the relevant ambit of the 'scheme' referred to. All that can be said is that, while the Act does not provide for assistance where compensation from other sources is available, it is intended to work alongside other government services available to victims of crime.

50 Finally, it should be observed that resort to the practice direction issued by VOCAT, to which reference has already been made, is of no assistance. Although the Act required the applicant to complete the form, and the form proceeded on the apparent assumption that the construction for the Act for which the applicant now contends is correct, the Act gives the form no statutory force. Further, even if the practice direction and the form were to be treated as some form of delegated legislation, they would still not bear on the question of construction.[16]

51 It follows that, in my opinion, the better view is that any deduction under s 16 is to be made in the course of calculating the amount of assistance to be awarded to an applicant, and it is only after that has been done that the limits in s 8 are applied to decide the amount of assistance ultimately to be awarded.

52 Accordingly, I would grant leave to appeal and allow the appeal. The order made in VCAT in respect of the claim for assistance for loss of earnings should be set aside and in its place it should be ordered that the application to VCAT for review be allowed and the order made by VOCAT be varied by awarding the applicant $20,000 by way of assistance for loss of earnings.

[1] As well as dealing with the present issue, VCAT made orders referring for further hearing the applicant's appeal in respect of a claim for special financial assistance under s 8A of the Act. That part of the orders of VCAT is not the subject of the application for leave to appeal to this Court.

[2] The appeal lies to the Court of Appeal because VCAT was constituted by the President: Victorian Civil and Administrative Tribunal Act 1998 s 148(1)(a).

[3] Victims of Crime Assistance Tribunal, Practice Direction No 5 of 2008 - Claims for Loss of Earnings, 11 December 2008.

[4] Section 60(3)(c).

[5] Pham v Victims of Crime Assistance Tribunal [2015] VCAT 1733, [31]-[37] (Garde J).

[6] Metricon Homes Pty Ltd v Softley [2016] VSCA 60, [68] (Warren CJ), [72] (Tate JA), [293] (Robson AJA); Kennedy v Shire of Campaspe [2015] VSCA 47, [13] (Whelan and Ferguson JJA).

[7] The applicant relied on H v Crimes Compensation Tribunal [1997] 1 VR 608, 616 (Brooking, Tadgell and Charles JJA) in support of this proposition. That case concerned s 18 of the Crimes Compensation Tribunal Act 1983. The differences between the two statutes are such that the observations in H regarding the earlier legislation are not directly applicable to the Act and that decision is therefore not of assistance in the present matter.

[8] VOCAT relied on R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

[9] The Attorney-General intervened in the proceeding before VCAT pursuant to s 73(1) of the VCAT Act. He was entitled under s 73(4) to be joined as a party. It does not appear that he sought to be so joined; s 60(3) would have required VCAT to grant any such application. The definition of 'parties to a proceeding' in s 59 does not extend to an intervener who has not been joined as a party. As a result, the Attorney-General was not a party to the proceeding before VCAT. It follows that he is not a respondent to the present application for leave to appeal within the meaning of r 64.03(2) of the Supreme Court (General Civil Procedure) Rules 2015.

[10] [2015] WASCA 49, [47] (Buss, Newnes and Murphy JJA) ('Baker').

[11] [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).

[12] Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2007] VSCA 140; (2007) 23 VR 474, 482 [31] (Redlich JA; Ashley JA and Bell AJA agreeing); McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633, 643 (Gibbs J).

[13] Criminal Injuries Compensation Act 2003 (WA) ss 3, 42.

[14] Baker [2015] WASCA 56, [40]-[43] (Buss, Newnes and Murphy JJA).

[15] See Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 143 [5] (Gleeson CJ).

[16] See, eg, Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444, 455 [21] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Riverina Wines Pty Ltd v Registrar, Workers Compensation Commission (NSW) [2007] NSWCA 149, [90]-[91] (Campbell JA; Hodgson JA agreeing).