16 Counsel for the applicant submitted that the applicant's rights to claim compensation crystallised prior to the 2005 amendments to the Act, the Act was by its nature remedial legislation, the amendments had taken away or limited rights of the applicant, and therefore they should not apply to her. As, prior to the amendments to the Act which took effect from 24 June 2005, there was no time limit for the making of an application for criminal injuries compensation, the applicant should not have been made subject to the time limits imposed by the Act, s7(1A) and (1B) and should not have had to apply to extend time. As a consequence, in requiring and determining applications to extend time, the commissioner made an error.

17 In support of his submission that the 2005 amendments should not have retrospective effect, counsel for the applicant adopted the words of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 where he said:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occured in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

"But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed."

The Court discussed the difference between substantive and procedural rights.

18 Maxwell's case (supra) was considered by Evans J in McCarthy v State of Tasmania 124/1998 where the Court was dealing with workers compensation legislation and amendments to it. In that case, a time limit upon a worker's right to refer a matter for determination by a tribunal was imposed by amendments. The time limit had not previously existed. Evans J found the right of the worker was substantive and not procedural, and determined that the common law presumption against retrospectivity applied to deny the amendment imposing the time limit retrospective effect. His Honour found in relation to the legislation he was there dealing with that the amending Act contained no indication of any contrary intention.

19 Counsel for the respondent also referred to Maxwell's case, and to the judgment of Dixon CJ. At 270 his Honour said:

"Perhaps there could be no more practical summary of the principle, which, as was said, emerges from the English and Canadian cases, than the following, - 'unless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.'"

Having referred to that passage, counsel conceded that, whichever of the contexts identified by Dixon CJ was applicable in the present case, the amendments to the Act should on the face of them have operated prospectively. However, he submitted that it was necessary to look at the Act as a whole to determine if there was another section which might militate against that position. He referred the Court to the Act, s5(9), set out at par3.

20 The commissioner was presented with two applications for an award of compensation. He determined that the limitation period imposed by the 2005 amendments applied to those applications and that, as a consequence, because some of the offences which gave rise to the applications occurred outside the limitation period, the applicant needed to apply for an extension of time pursuant to the Act, s7(4). That is, he determined that the amendments operated retrospectively. Counsel for the respondent submitted that the Act, s5(9), clearly provides for an intention to that effect, namely a contrary intention to the common law presumption against retrospectivity. He submitted that the commissioner's determination was a determination in relation to an application and that s5(9) could have no meaning other than Parliament intended, particularly as it was inserted at the same time as the provision which imposed a limitation period, that the 2005 amendments would relate to any application lodged on or after 24 June 2005 irrespective of when the right to make a claim for compensation may have arisen.

21 With respect, I accept the submission of counsel for the respondent in this regard. I am satisfied that the 2005 amendments to the Act applied to the applications of the applicant and that the commissioner was correct in requiring and determining an application to extend time.

22 Counsel for the applicant submitted that the commissioner owed a duty to the applicant to apply the rules of natural justice to the determination of her application to extend time, that that duty required him to afford her an opportunity to be heard in person in respect of her application, and that the commissioner had breached that duty by failing to do so. This aspect of the ground was said to arise pursuant to the JR Act, s17(2)(a). Counsel also submitted that the commissioner's failure to hear the applicant and/or her solicitor in person in respect of her application to extend time was a breach of the Act, s7(4), reviewable by reference to the JR Act, s17(2)(b).

23 Before dealing with these issues, however, I need to deal with a more fundamental matter raised by counsel for the respondent. He challenged the capacity of the applicant even to seek a review of the commissioner's decision. The JR Act, s17(1), permits a "person aggrieved" to seek to review a decision. To be a person aggrieved by a decision, the decision must be made "under an enactment" and the applicant must be a person "whose interests are adversely affected by the decision".

24 As to the phrase "under an enactment", counsel for the respondent raised a variation on an argument which he unsuccessfully mounted in Grunseth v Resource Planning and Development Commission [2007] TASSC 92. In that case, Evans J summarised counsel's argument at pars3 - 5 where he said:

"Counsel for the Attorney-General sought to circumvent the application with an argument that if the applicants' contention is correct, then the Commission's decision is not one that can be reviewed under the Judicial Review Act. This is said to be so because that Act, s4(1), provides that a decision to which the Act applies means 'a decision of an administrative character made ... under an enactment ...'.

In support of his argument, counsel relied on the following passage from Griffith University v Tang [2005] HCA 7; (2004) 221 CLR 99, Gummow, Callinan and Hayne JJ at par89:

'The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise.'

Counsel submits that consistent with the first criterion, for a decision to be made under an enactment, it must be expressly or impliedly authorised by the enactment and of necessity a decision is not so authorised if beyond jurisdiction or not authorised, or made contrary to the requisite procedure."

25 Evans J disposed of the argument in the remainder of par5 and further at pars6 and 7 in the following terms:

"To so construe the Judicial Review Act, s4(1), would be contrary to the plain purposes of that Act and could render a number of the grounds detailed in s17(2) (as well as s18) nugatory. The grounds I have in mind are (b), (c) and (d) in both those subsections. Insofar as s17(2) and s18(2) spell out the grounds upon which application may be made for the review of a decision made under an enactment or conduct related to the making of a decision made under an enactment, they are protective provisions. Of necessity, provisions of this nature must be construed as providing relief, other than when the enactment that authorised the decision has been complied with, for when the enactment has been complied with, relief is not necessary. The relief is available to deal with failures to comply with the enactment, that is, a decision purportedly made under the enactment. That this is so is well illustrated by decisions in relation to the statutory protection provided in relation to conduct that require that the conduct was done pursuant to, or in execution of, a statutory provision: see Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, Dixon J at 108, and Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ at 605.

The decision in Griffith University v Tang relied upon by counsel for the Attorney-General involved the Judicial Review Act 1991 (Qld). That Act, s4(a), is in similar terms to the Judicial Review Act (Tas), s4(1), and the Administrative Decisions (Judicial Review) Act 1977 (Cth), s3(1). Each of these sections contains a provision that the Act in question applies to 'a decision of an administrative character ... made under an enactment'. Prior to the decision in Griffith University v Tang, there was a welter of authority in existence to the effect that a decision is made under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act (Cth), s3(1), if the decision is made in purported reliance upon the statutory authority bestowed by the enactment. It is not necessary to detail the decisions. Many of them can be found in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Anor (1996) 137 ALR 103 at 125 - 127. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 315 and 339 is a decision to the same effect with reference to somewhat different provisions contained in the Administrative Appeals Tribunal Act 1975 (Cth).

The focus of Griffith University v Tang was on whether the decision under review was made under an enactment, or a contractual, or other legal power. I have no doubt that the passage from this authority that is relied upon by counsel for the Attorney-General was not intended to have the impact contended for by counsel and was not intended to over-rule the authorities I have referred to. The argument is rejected."

26 The paragraph from Griffith University v Tang (2004) 212 CLR 99 to which Evans J referred above was only part of that paragraph. Their Honours said further:

"Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice"

As Evans J pointed out in par7 of Grunseth (supra), Griffith University (supra) focused on a particular matter. I agree with the view Evans J then expressed in par7.

I did not take counsel for the respondent to seriously argue that the impugned decisions in the present case were not decisions made under an enactment. In my view there can be little doubt they were, having regard to the power reposed in a commissioner by the Act, s7(1C).

1">27 The focus of counsel's submission was on the phrase "whose interests are adversely affected" in the definition of "person aggrieved" in the JR Act, s7(1), which was a matter not directly considered in Grunseth. The submission was refined to one that the applicant did not have a sufficient "interest" which could be said to have been adversely affected by the decisions. Counsel did concede that, were I to be satisfied that the Act, s7(4), applied to the applicant's applications to extend time, then there would be a sufficient interest which it could be said was abrogated by the commissioner's actions. However he submitted the section did not so apply.

28 In the circumstances, I will deal with that issue first, namely, does the Act, s7(4) apply to an application to extend time pursuant to s7(1C)?

Does the Act, s7(4), apply to an application to extend time?

29 Counsel for the respondent submitted that the Act, s7(4) did not apply to an application to extend time. He submitted the section only applied to what he described as competent applications for compensation. He submitted that an application for compensation made in relation to offending which occurred outside the limitation period, that is, all of the sex offence claim and one assault in the assault claim, was not a competent application in the absence of a successful application for an extension of time.

30 Counsel conceded that, as a consequence of the application of the Acts Interpretation Act 1931 ("the AI Act"), s10A, the words "is to" in the Act, s7(1A), were to be read as directory. However, he submitted that that interpretation should yield to the AI Act, s4. Section 4(1) relevantly provides:

"4 (1) Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as -

(a) any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;

(b) the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made."

31 Counsel contended that the structure of the Act, s7(1), (1A) and (1C) made it clear that Parliament's intention was to provide for a requirement that applications for compensation had to be made within three years and there was no reason otherwise for making provision for an application for an extension. An application out of time was, he argued, incompetent unless made competent by the exercise of a discretion in favour of an applicant. The AI Act, s8A, requires that an interpretation of a legislative provision which promotes the object of the Act incorporating it, is to be preferred to an interpretation which does not.

32 The object of the Act is "to provide for the payment in certain cases of compensation to persons suffering as a result of the criminal conduct of others". The Act, s7, provides for substantive applications for compensation to be made, for time limits to apply to such applications, and for applications to extend time to enable substantive applications to be made. It then continues in s7(4) to give to "a person applying for an award" an entitlement to be heard. There is nothing in the words of the subsection to suggest it should not apply to an application to extend time made by a person "applying for an award". I am satisfied that interpretation promotes the object of the Act, that is, to facilitate applications for compensation by persons suffering as a result of crime. The Act, s7(4), does, in my view, apply to an application to extend time.

33 That should resolve the question posed by counsel for the respondent as to whether the applicant could be a person aggrieved. However, if I am wrong as to that, I would, in any event, be satisfied that the applicant is a person with a sufficient interest to be a person aggrieved.

34 Leaving aside the issue of the application of the Act, s7(4), counsel for the respondent submitted that, in seeking an extension of time to bring a claim for compensation, the applicant was seeking a benefit to which she was not entitled, and that was not an interest which it could be said was adversely affected if she did not get that benefit. He submitted that the situation pre and post the impugned decisions was the same, that is the applicant had no capacity to pursue a substantive application for compensation.

35 Counsel referred to a number of texts and authorities. His starting point was the discussion commencing at 389 of the text Judicial Review of Administrative Action by Aronson, Dyer and Groves, 3 ed, where the learned authors in the chapter headed "Procedural Fairness - Scope of the Duty" deal with the question of the degree to which interests might be affected such as to justify the application of the rules of procedural fairness and the meaning of the term "interests". I do not propose to canvass the material referred to because it would appear to me the approach to be taken is far more straight forward than counsel suggested.

36 The applicant was seeking compensation for injuries alleged to have been suffered as a consequence of offending. She was seeking it pursuant to legislation designed to assist victims of crime to obtain compensation in circumstances where they might otherwise not be able to. Time limits on the making of such applications were imposed in 2005. The impact of those amendments was to remove a capacity which the applicant then had to seek compensation in respect of the sex offence claim and to place a time limit on the making of any claim in respect of the assaults in the assault claim. The amendments however also gave to the applicant the capacity to extend time limits in certain circumstances, so as to, in effect, be able to pursue claims in circumstances where the right to do so had been taken away or limited by the amendments. The applicant in this case utilised the capacity to apply for an extension of time given to her. She had an interest in the outcome of that application The result of her application was adverse to her.

37 I am satisfied the applicant had an interest within the framework of the definition of "person aggrieved" and that the decisions of the commissioner were adverse to that interest.

Applicant's entitlement to be heard in person in respect of the application to extend time (ground (a) continued)

38 As a consequence of the finding in par32 to the effect that the Act, s7(4), does apply to an application to extend time, ground (a) of the applicant's application must succeed in part, as should ground (c)(i). There is no dispute that the commissioner considered the applicant's applications to extend time "on the papers" and that neither she nor her solicitor were given any opportunity to be heard in person. The Act, s7(4), gave the applicant an entitlement to appear before and be heard, either personally or by another approved person, which the commissioner failed to afford her. However, the principal argument addressed by counsel for the applicant was that the commissioner breached the rules of natural justice by failing to invite the applicant to appear.

39 Counsel for the respondent urged that I dispose of all grounds of appeal unless there was a compelling reason not to do so. I do not propose to canvass the arguments of counsel relating to whether the rules of natural justice apply and require that the commissioner should have given the applicant a hearing. It would be an academic exercise given the conclusion I have reached in relation to the Act, s7(4), and would not advance the review.

40 Counsel for the applicant identified grounds (b), (c ) and (d) as arising pursuant to the JR Act, s17(2)(a), (b), (f) and (i), principally (f). He did not, however, when making his submissions, relate the complaints about what the commissioner did or did not do either to the grounds in the application or to the provisions of the JR Act, nor did he address an argument raised by counsel for the respondent that certain grounds of review, in particular grounds (c)(iii) and (iv), raised asserted errors of fact not law. Counsel for the respondent submitted these could not be errors of law unless I were satisfied the findings were not reasonably open to the commissioner properly instructed. He also submitted that there was an inescapable inference that the commissioner had had regard to all the material before him.

41 What these grounds were distilled to was an argument that the commissioner did not, in reaching his conclusion that by reference to the Act, s7(1C), there were no special circumstances which would justify an extension of time, take into account the whole of the material before him and take oral evidence from the applicant or hear submissions in relation to that and/or the written material he had. Further, that in any event he applied the wrong test in determining what were special circumstances. What he did was determine that the applicant's explanation for failing to apply in time was that she was unaware of her rights, and, applying the law as he determined it to be, that this did not amount to special circumstances.

42 The Act itself does not set out how an application to extend time should be made. The commissioner requested that the applicant make such an application in the form of a statutory declaration. She did so. That statutory declaration contained limited information. It did, however, provide to the commissioner an explanation for the applicant's failure to apply in time which is what the commissioner had requested.

43 The Act also does not provide any guidance as to the factors to be taken into account in determining whether special circumstances exist for the purpose of s7(1C) or the relevant test to apply to those factors. In the present case, the commissioner determined in respect of the assault claim that, for there to be special circumstances, there must be something unusual, uncommon or exceptional. He said in his decision relating to the sex offence claim that it should be regarded as "being synonymous with 'peculiar or abnormal circumstances'. It seems to me that something out of the ordinary must be found ...". The commissioner, on the face of his decisions, took into account only one factor, namely the applicant's explanation for her delay and determined her particular explanation did not amount to special circumstances.

44 The submissions of counsel demonstrate confusion between two matters. These are the question of what material the commissioner had access to and probably read prior to making his determinations, and what factors from that material which he "took into account" in making his determinations as to whether special circumstances existed. I accept that there is an inescapable inference that the commissioner had available to him a file or files which contained the applicant's applications, her solicitor's correspondence, and the material sent with it to the VAU and the police files. However the extent to which he took that material into account as relevant to his determination is what underpins this review.

45 While there can have been no expectation that the commissioner would list every factor he took into account in making his determination and explain the weight he accorded each, it was incumbent upon him to do so, particularly in the absence of any formal hearing, to the extent necessary to make clear to the applicant that he considered relevant matters. In the present case a reading of the commissioner's reasons leads to the inescapable conclusion that the only matter he considered relevant to his determinations was the applicant's explanation for her delay.

46 There are, therefore, two issues to be determined. What constitutes "special circumstances", and the extent to which factors in material before the commissioner should be taken into account for the purpose of determining whether they exist. The authorities to which counsel referred me tie both issues together. Underwood J (as he then was) dealt in Davies v Kennedy [1992] TASSC 58; (1992) 1 Tas R 266 at 268 with a crown appeal against a finding of special circumstances under the Road Safety (Alcohol and Drugs) Act 1970. He said at 268:

"As to the meaning of 'special circumstances' I agree with Crawford J in Gela v Cochrane 26/1992 and Johnston v Davies (75/1992) that they cannot be exhaustively enumerated. A useful expression is that used by Napier J (as he then was) in Gassner v Frost [1940] SASR 295 at 298 namely, something 'clearly distinguishable from the general run of the cases that Parliament had in mind when it provided for the penalty of disqualification'. See also Baskerville v Martin [1967] SASR 156; Dellar v Crawford, Zeeman J 55/1992. Any one circumstance or a combination of a number of circumstances might be sufficient to constitute special circumstances under the subsection provided it or they have the effect of clearly distinguishing the case at hand from the general run of cases that Parliament had in mind when it provided for the imposition of minimum penalties. Clearly, Parliament must have had in mind the defendant who drove in the belief that his/her blood alcohol concentration was less than the prescribed maximum and the defendant who would suffer economic hardship upon licence disqualification. Those circumstances are common to a large number of drink driving offences."

Counsel also referred to some passages in Re Corbett and Secretary, Department of Social Security (No 2) (1985) 9 ALD 321, a decision of the Administrative Appeals Tribunal, in relation to an allowance and a decision of the Full Court of the Federal Court of Australia in Corbett v Director-General of Social Security [1984] AATA 176; (1985) 7 ALD 670, an appeal from the first decision. While the substantive issue in those matters was the existence or otherwise of a residual discretion as to special circumstances in the Director-General, the cases did refer to the question of what might amount to special circumstances and made some reference to the material considered for the purpose of determining whether any existed.

"(i) The existence of special circumstances was to be determined from all the circumstances surrounding the application and the time at which it was made. The question was whether, when the relevant circumstances of the applicant were looked at in their entirety, they might fairly be described as unusual, uncommon or exceptional so as to warrant payment of the allowance earlier than the date from which it would ordinarily be paid."

"The central reason for C's delay in claiming the allowance had been her initial ignorance of its existence and her later misconception as to her possible eligibility. As this lack of awareness was common with many other mothers of handicapped children, it did not constitute 'special circumstances' for allowing a period of nearly four years for the lodgement of a claim in respect of A."

47 The Federal Court, on the review of the tribunal's decision, held that it was not possible to lay down precise rules or limits when determining what might constitute special circumstances, but determined that the decision-maker was entitled to take account of the fact that an extension of time for lodging a claim would be substantial and would lead to the payment of a substantial capital sum. In the case of a lengthy delay, weighty facts would be required to establish special circumstances. Counsel also referred to a Victorian case which dealt with the issue of special circumstances in the context of an extension of time to bring a workers compensation claim as support for the proposition that it was not necessary to show that circumstances were either exceptional or extraordinary to establish the existence of special circumstances. Pagone J in Connelly v MMI Workers Compensation (Vic) Ltd and Ors [2002] VSC 247 did indeed say that. However, he went on to say:

"In the end, little assistance will be gained by substituting other words for those found in the Rule itself. What an applicant for extension of time must show is that the quality of the circumstances relied upon justifies the making of the grant which is sought. It is thus not sufficient that the applicant is able to explain the failure to bring an application within the time contemplated by the Rule. ... An explanation for the delay or failure to commence proceedings will enable a court to understand why the time was not complied with, but will not of itself suffice to constitute a special circumstance. The requirement that the circumstances justifying an extension be capable of description as 'special' indicates that extensions were to be the exception rather than the rule."

48 Counsel for the applicant submitted that given the nature of the Act, the term "special circumstances" should be given a broad and liberal interpretation. In this case the commissioner, properly instructed, should have, even without hearing the applicant in person, taken into account all of the material before him and determined there were special circumstances. Counsel submitted there were a number of factors apparent from the material which should have led the commissioner to that view. There had been a change in legislation which extinguished the applicant's entitlement to bring the sex offence claim; the applicant was a minor when the offending occurred and there was strong evidence of the existence of the sexual relationship which would support the success of her claim. There was the report of the psychologist. There had never been any suggestion of prejudice to the State were the extension permitted.

49 A careful reading of the authorities to which counsel for the applicant referred does not lead to the conclusion that the commissioner made an error in the test he applied. What constitutes special circumstances will be different in every case. However, the common theme must be that they are circumstances which are out of the ordinary or unusual or are in some way peculiar to an applicant's case. The Act provided a time limit for the making of applications and provided that to obtain an extension of that time limit an applicant needed to establish special circumstances. Parliament can only have intended that the relevant circumstances be something out of the ordinary in such matters.

50 As to the material the commissioner should have taken into account, the words of Pagone J in Connelly's case (supra) at par47 of these reasons are apposite. An explanation for a delay will enable a court to determine why an applicant did not make an application in time. However, it will not suffice on its own. The entirety of the applicant's circumstances needs to be considered for a determination as to whether special circumstances exist.

51 I am satisfied that the commissioner should have allowed the applicant an opportunity to be heard on her application to extend time. If nothing else, the problem which has arisen on this review as to just what the commissioner should have considered would have been exposed and could have been dealt with. I am satisfied that the commissioner should have, in dealing with the applications to extend time, considered all the material before him relating to the applicant and not just the explanation for her failure to apply in time.

52 The onus is upon the applicant to make out her grounds of review. If they are made out, the Court may then make certain types of orders. I have already determined that the commissioner had an obligation to afford the applicant an opportunity to be heard in relation to her applications which he did not afford her. Thus ground (a) of the notice of review has been made out.

53 As to ground (b), the basis of this appears to be that in circumstances where the commissioner did not hear from the applicant in person, he did not take into account the evidence before him, and hence he did not follow procedures required by law. By "evidence before him" I take the applicant to mean the content of her substantive applications, all other material supplied by her solicitors in support of those, and the police files. This ground presupposes that the commissioner had before him all that material which I have said I accept he did. However, as I have already identified, that is a different question to what he took it into account when he made his decision. I accept that the commissioner had an obligation to consider, or take into account, all material made available to him relating to the applicant in determining whether special circumstances had been established.

54 Did he do so? The wording of the commissioner's decisions leads to the inevitable conclusion that the only matter he considered as relevant to the issue of special circumstances was the applicant's explanation for her delay. It follows he did not take into account the other circumstances of the applicant disclosed by the whole of her material in determining whether special circumstances existed. Ground (b) should therefore succeed.

55 As to ground (c)(i), I accept that in failing to offer the applicant an opportunity to be heard, there was an error of law. This ground should therefore succeed. Ground (c)(ii) adds nothing to what has already been raised by grounds (b) and (c)(i). As to ground (c)(iii), this is, in my view, an asserted error of fact not law, and as such is not open to review. For this to be an error of law, the applicant must satisfy the Court that the finding of the commissioner that there were no special circumstances was not reasonably open to him on the material before him. That has not been done. This ground will fail.

56 As to ground (c)(iv), in his decision relating to the assault claim, the commissioner determined that "being unaware of one's rights or entitlements to compensation amounts in itself to something exceptional, unusual or uncommon ...", that is, special circumstances. In the decision relating to the sex offence claim, the commissioner determined that "I do not accept that being unaware of one's rights or entitlements to compensation is of itself exceptional, unusual or uncommon and therefore does not amount to special circumstances." Counsel for the applicant asserts these findings were errors of law. It would seem to me that the applicant's case is that these findings in isolation were correct, that is, special circumstances could not be determined by reference to that one fact alone. However, to establish that these were errors of law, the applicant must establish that these findings were not reasonably open to the commissioner on the material before him. She has, in my view, not achieved that and this ground will fail.

57 As to grounds (d)(ii) and (iii), they are little more than variations on the theme covered by grounds (b) and (c)(ii). Given my findings in relation to ground (b), they must succeed.

58 As to the final ground, counsel for the applicant accepted that what this ground asserted was what is described as Wednesbury unreasonableness. He proffered, as the basis for the ground, the JR Act, s17(2)(f) and (i). However, in accepting the nature of the ground, it is apparent that the basis is more properly ss17(2)(e) and 20(g). Underwood CJ outlined the origin of this statutory form of review and commented upon it in Lark v Nolan [2006] TASSC 12 at pars43 - 46. I do not repeat his remarks, but adopt them when dealing with this ground. Was the decision of the commissioner so unreasonable that no reasonable person could have reached it? It is the decision of the commissioner which is relevant to this ground and not how he reached it. The applicant has not satisfied the Court that, had the commissioner considered all the material before him and applied the correct test, his decision would necessarily have been different. Ground (d)(iv) must therefore fail.

59 What order should the Court make given its findings? The applicant had an entitlement to be heard in respect of her applications, which she was not afforded. Had she been so, she may have given other evidence, and/or her counsel may have made submissions to the commissioner as to what matters contained in the material before him were properly relevant to his consideration of whether or not special circumstances existed. He may, for example, if it became apparent that the commissioner proposed only to consider the applicant's explanation for delay, have sought to persuade the commissioner otherwise. It is impossible to determine what, if any, effect the applicant's presence at a hearing would have had. However, given the applicant has succeeded to an extent in respect of her grounds of review and the nature of those grounds, it is appropriate the Court exercise its powers in her favour.

60 The orders of the Court in the circumstances should be that the decisions of the commissioner dated 6 August 2007 in relation to the applicant's applications be quashed and that the applications be remitted to the commissioner to be determined in accordance with law. Before making those orders, however, I will hear from counsel as to the course to be adopted.