60(3) In considering an application for variation the Tribunal must have regard to -

(a) any fresh evidence that has become available since the award was made or last varied;

(b) any change of circumstances that has occurred since the award was made or last varied or that is likely to occur;

(c) any payments received by or payable to the person to whom, or for whose benefit, an award of assistance was made in respect of the injury or death since the award was made or last varied;

(d) anything else that the Tribunal thinks is relevant.

(4) In exercising its power under this section, the Tribunal must do so in accordance with the other provisions of this Act relating to the payment of, or the amount of, assistance.

1. The application before me was for review of decisions made with respect to two matters. The provision of further counselling sessions and payment for a holiday requested.
2. Section 8(2)(a) of the Act provides for award for expenses actually incurred, or reasonably likely to be incurred, for reasonable counselling services.
3. Section 8(3) provides that in exceptional circumstances, there may also be included in the amount awarded an amount for other expenses actually and reasonably incurred or reasonably likely to be incurred, to assist the victim's recovery from the act of violence. The holiday request would be considered under this provision.

1. In the request for variation lodged with VOCAT, Ms PT claimed the cost of 3 counselling sessions already taken and claimed the cost of a further 20 counselling sessions as recommended by her psychologist. VOCAT awarded the cost of the past 3 sessions but only allowed 10 of the 20 further sessions sought.
2. On review, I am only able to review the decision made with respect to the original request which was for 20 sessions. This means, for example, that I cannot make an order for say 30 sessions, because that was not what was requested.
3. The psychologist had prepared a further report for this hearing and gave evidence. She elaborated on her report at the hearing. In her opinion, Ms PT was still suffering from post traumatic stress disorder with features of anxiety and depression. She referred to the significant increased distress suffered by Ms PT whilst she awaited the outcome of the perpetrator's appeal. She regards her symptoms as still being at a high level and to the difficulties Ms PT had had stretching out the remaining sessions available to her. She thought Ms PT may need counselling for a further two years.
4. I have no hesitation in granting the extra 10 sessions. I note the particular difficulties faced by Ms PT whilst the perpetrator's appeal remained on foot, which difficulties came out during the cross-examination of the psychologist. That was a feature in this case that was not resolved until after VOCAT's decision. I accepted the psychologist's evidence that the gaps in Ms PT's treatment were not optimal, that it had been difficult for Ms PT to attend counselling sessions with her work and family responsibilities, and that for some people their psychological counselling can take years.
5. I set aside the decision of the Tribunal to allow only 10 counselling sessions and substitute it with a decision to allow the full 20 sessions requested.

1. The application to VOCAT for variation contained a quotation for air fares and a 5 night stay at a named resort in Cairns for 2 people. In the psychologist's report that accompanied the variation application, the psychologist believed that Ms PT -

requires the boost of a holiday without the children. She would not be able to travel alone and some assistance may be required to enable a friend to accompany her. She deserves some pampering in order for her confidence to develop, thus it is suggested that some all-in package at a resort-style hotel be granted.

1. By the time of this hearing, what was sought was radically different, such that it was a different request from that considered by VOCAT. PT was not seeking the holiday to Cairns for 2 people. She was seeking time out on her own and respite. The psychologist in her report prepared for this review hearing, resiled from the resort-style holiday sought. The psychologist thought "personal respite in an environment where Ms PT can access some learning about relaxation, diet, exercise and gain some restful sleep is essential". In cross-examination, it became evident that she saw her counselling and such a break would need to work hand in hand; that Ms PT would need to be properly prepared for the respite and that although respite in the company of a friend was optimal, it was not essential.
2. The focus of the submissions for Ms PT was on what constituted "exceptional circumstances". However, the point made by Ms Segbedzi that what was sought was no longer an application for a holiday to Cairns but for something else, which she described as a therapeutic respite which lacked any detail, raises a fundamental problem with this application for review.
3. For this Tribunal to be considering and making orders with respect to an application different from that which was considered and determined by VOCAT, would mean that it would be falling into error. The Tribunal is not a primary decision-maker. It can only review matters which have been the subject of a reviewable decision by a primary decision-maker.
4. As Brennan J, as he then was sitting as the President of the Commonwealth Administrative Appeals Tribunal, observed in Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167 at p 175:

The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment.

1. Again, Davies J sitting as a Judge of the Federal Court in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 87 ALR 506 looked at what decision was before the Federal Administrative Tribunal and what its powers were on review. In that case the decision under review was a decision cancelling a pension. It was not a decision refusing to grant a pension which the applicant additionally contended for. At p 509, he refers to the Tribunal's jurisdiction, as follows :

The jurisdiction of the tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the tribunal's decision.

1. The same approach was taken in 1992 by the Full Court of the Federal Court in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1. At p 11, their honours say :

It is of course, well established that the tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The tribunal is, however, obliged to address the same question as was before the primary decision-maker. This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506.

1. Again, the ambit of the decision under review was considered in Re Tradigrain Australia Pty Limited and Export Development Grants Board (1984) 6 ALD 442, a decision of the Federal Administrative Appeals Tribunal in 1984. The issue in that case was whether subsequent to the application for review a new and separate decision raising an over payment was properly before the Tribunal on review. Observing that the decision to recover was an exercise of power not so far invoked in the matter in any shape or form, the Tribunal went on to say at p 447 :

If it is to be invoked it should be invoked by the Board 'raising' an overpayment in the manner discussed in the decisions of the Tribunal in the Federal Court in the social security area : see Director-General of Social Services v Hangan [1982] FCA 262; (1982) 45 ALR 23; 5 ALN No 5 and Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281; 5 ALN No 116. If this were done assuming there is some justification to be found for so doing, then the issue could properly be brought before the Tribunal. The decision then would not be as to original entitlement or assessment but that the requirements of s 19 were satisfied.

For the Tribunal to purport to assume a jurisdiction to review the original decision to grant would be to assume, as we see it, an ability to exercise a power of decision by an inadmissible pathway. The only admissible pathway for the Tribunal would be through s 19. But any decision by the Tribunal to invoke s 19 would be an entirely fresh decision and for the Tribunal to purport to exercise the powers contained in that section would be for it to act as a primary administrator, which is not the function of the Tribunal : see the passage to which we were referred in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167, when it was before the then President of the Tribunal, Mr Justice Brennan. At 175 he said :

The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment.

This is an important principle and it should not be subverted by the Tribunal concluding that any issue that might have been decided by the primary administrator at any stage may be decided by the Tribunal whatever the proper ambit of the decision under review.

1. The statements of principle set out in those cases apply to the Victorian Civil and Administrative Tribunal (VCAT), because its jurisdiction is modelled on the Commonwealth Administrative Appeals Tribunal. These cases make it clear that VCAT cannot adopt the role of the primary decision-maker and make a decision on a request that has not been considered by VOCAT. It has been impossible for me in this case to consider Ms PT's request, because of the jurisdictional issues referred to.
2. For those reasons, I affirm the decision made by VOCAT with respect to the holiday to Cairns. Just as my decision to grant the full 20 sessions of counselling does not mean Ms PT is precluded from seeking a further variation with respect to counselling, my decision to affirm VOCAT's decision to refuse the Cairns request does not preclude Ms PT from making a new variation request which will then need to be considered on its merits by VOCAT.