AST v Victims Compensation Fund Corporation
[2015] NSWCATAD 100
•14 May 2015
|
New South Wales |
Case Name: | AST v Victims Compensation Fund Corporation |
Medium Neutral Citation: | [2015] NSWCATAD 100 |
Hearing Date(s): | On the papers |
Decision Date: | 14 May 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | P Molony, Senior Member |
Decision: | The application is dismissed for want of jurisdiction |
Catchwords: | Administrative review – Victims Support and Rehabilitation – application for an extension of time in which to appeal under s 36(3)(b) of the Victims Support and Rehabilitation Act 1996 - transitional and saving provisions of the Victims Rights and Support Act 2013 - do not extend to preserve an application to extend time in which to appeal that was made before, but not determined by the commencement day – application for extension of time dismissed for want of jurisdiction |
Legislation Cited: | Administrative Decision Review Act 1997 |
Category: | Procedural and other rulings |
Parties: | AST (Applicant) |
Representation: | Solicitors |
File Number(s): | 137056 |
Publication Restriction: | Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal |
JUDGMENT
Background
AST who is aged 35 claims compensation for injuries which he received as a primary victim of an assault which occurred on 4 January 2009. AST claimed that he had suffered physical and psychological injuries as a consequence of the assault for which he sought statutory compensation.
A compensation assessor determined that AST had not been able to establish that he suffered from a Category 2 chronic psychological or psychiatric disorder that this severely disabling. As a result AST’s claim for statutory compensation with respect to a psychological injury failed. With respect to physical injuries the assessor accepted that AST had suffered a fractured mandible as a result of the assault, which entitled him to a standard amount of compensation of $7,200. The assessor did not accept that AST had suffered any other compensable physical injury.
Because AST was only entitled to compensation of $7,200, which is below the minimum compensation threshold of $7,500, established by s 20 of the Victims Support and Rehabilitation Act 1996 (“the old Act”), the assessor dismissed AST’s application for victims compensation.
The assessor’s determination was dated 6 November 2012.
On 18 April 2013 the appellant’s solicitors filed a notice of appeal on AST’s behalf. This was more than 3 months after the assessor made the decision and raises issues concerning whether the appeal can proceed or is out of time.
Application of the old Act
On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The old Act was repealed and replaced by the Victims Rights and Support Act 2013 (“the new Act”). AST’s solicitors were informed that the appeal would be determined under the new Act.
The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal.
On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2013 (“the Regulation”) commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act.
On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the old Act continuing to apply.
Decision on papers
AST has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing (s 38 (2) of the old Act).
Time for making the appeal
The Notice of Appeal sets out the following grounds;
“1. No allowance made for loss of wages $2,464.
2. The psychological injury was such that Mr Donnelly did not leave his home after dark for over 12 months.”
The notice of appeal was dated 6 November 2012. It was posted to AST’s solicitors of 21 November 2012. It is taken to have been served on the fourth working day after it was posted: i.e. 27 November 2012.
Section 36(3) of the old Act provides that –
“(3) An appeal may be made:
(a) within the period of 3 months after the day on which the relevant notice of the determination made by the compensation assessor or Director was duly served on the person, or
(b) within such further time as the Tribunal may in exceptional circumstances allow.”
The Victim Support & Rehabilitation Rule 1997 provided for the form and manner of appeals. Rule 15 provided –
“(1) An appeal under section 36 of the Act against:
(a) a determination of a compensation assessor in respect of an application for compensation, or
(b) a determination of the Director to refuse leave for a late application for compensation,
is to be instituted by the lodgment of a notice of appeal with the Registrar of the Tribunal.
Note. Section 36 (3) of the Act requires an appeal to be lodged within 3 months after notice of the determination is served on the appellant or within such further time as the Tribunal in exceptional circumstances allows.
(2) A notice of appeal is to be in a form approved and supplied by the Registrar of the Tribunal. The Registrar is required to provide to any person on request a copy of the appropriate approved form free of charge.
(3) A notice of appeal must contain all the grounds of appeal and full particulars of those grounds of appeal.
(4) On the lodgment of the notice of appeal, the Registrar of the Tribunal is to endorse on the notice and on a copy of the notice the date of receipt of the notice and date for call-over of the appeal. The Registrar is to return a copy so endorsed to the appellant.
(5) The Registrar is to conduct a call-over of the appeal:
(a) to consider the preparations for the hearing of the appeal, and
(b) to give directions for the conduct of the appeal proceedings.”
On 8 February 2013 AST’s solicitors wrote to Victims Services advising that “we wish to appeal the decision of 21 November 2012.” On 12 February the Registry replied providing the AST’s solicitors with a notice of appeal form and an information sheet relating to it. Both the letter and the information sheet drew attention to -
(1)The requirement of r. 15(2) and (3) with respect to the form and contents of the notice of appeal; and
(2)The three month time limit for the filing of appeals provided by s 36 of the old Act.
A hand written notice of appeal was filed on 18 April 2013. This is well outside the 3 month time for filing an appeal set out in s 36(3) of the old Act. As a consequence AST is required to establish that exceptional circumstances exist which justify an extension of time in which to lodge his appeal.
At a call over conducted on 30 April 2013 the appellant’s solicitors were required to produce full particulars in support of the appeal. On 17 May 2013 AST’s solicitors responded thus –
“The grounds of Appeal are as follows –
1. Failure to take into account lost wages.
2. Failure to take into account medical expenses.
3. Failure to give proper consideration to the diagnosis of chronic post traumatic stress disorder as outlined in the last paragraph of the report of Dr Steven Dragutinovich MPsych (TAS) PhD (QLD)”
An extension of time issue
On 19 June 2013 the appeal was considered by Deputy President Lulham, who has since resigned from the Tribunal. He wrote to AST’s solicitors on that date noting that no submissions had been received with respect to why an extension of time should be granted. In doing so the Deputy President indicated that he was prepared to treat the appeal as an application for review under s 55 of the Administrative Decisions Tribunal Act 1997 (now the Administrative Decision Review Act 1997), with the time for filing the appeal being that provided by s 36(3) of the old Act. He called for submissions as to why an extension of time should be granted under s 57 of the Administrative Decisions Tribunal Act 1997. That section has since been repealed on the creation of NCAT. Its successor is s 41 of the Civil and Administrative Tribunal Act 2103 which provides –
“(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.”
No submissions have been received from AST or his solicitors in response to the requests for submission on an extension of time.
In my view the certainty as to the application of the extension of time provisions in s 57 of the Administrative Decisions Tribunal Act 1997 is by no means as clear as indicated by the Deputy President.
As a consequence of that view the Registrar wrote to the appellant’s solicitors on 1 April 2015 (with a copy to the respondent) as follows:
“This matter has been referred to Senior Member Molony for a decision on the papers.
Mr Molony has asked me to alert you to the fact that he has reached the preliminary conclusion that NCAT does not have jurisdiction to determine your clients application for an extension of time to appeal under s 36(3)(b) of the Victims Support and Rehabilitation Act 1996 (the old Act).
Mr Molony notes that the old Act was repealed and replaced by the Victims Rights and Support Act 2013 (“the new Act”). Both the new Act and the Victims Rights and Support Regulation 2013 (“the Regulation”) contain transitional provisions which preserve certain rights with respect to appeals to the former Victims Compensation Tribunal.
It is Mr Molony’s preliminary view that they do not extend to preserve applications for extension of time in which to appeal under s 36(3)(b) of the old Act.
In reaching that conclusion Mr Molony notes that –
• Your client’s application for an extension of time in which to appeal had not been determined at the commencement date of the new Act;
• As a result he did not then have an appeal pending;
• The transitional provisions of the new Act and the Regulation do not appear to apply to preserve an application for an extension of time, as they do with appeals that had not been finally determined (see clause 2 and cl 14 of Sch 2 to the new Act)
• Section 36(3)(b) is specifically excluded from the operation of the transitional provision introduced by cl 16 of the Regulation.
Mr Molony intends to finally determine this matter after 22 April 2015. If you wish to make any submissions as to the correctness or otherwise of his preliminary view, those submission should be filed on or before 21 April 2015.”
No response was received from AST or his solicitors. The Commissioner for Victims Rights, on behalf of the respondent, agreed that there was no jurisdiction in this tribunal to entertain an application for an extension of time in which to appeal under the old Act.
Is there power to extend time in which to appeal under the old Act?
There are compelling arguments that because what was on foot when the new Act was introduced was an application for an extension of time in which to appeal, rather than an appeal per se, that the saving provisions of cl. 14 of Part 2 of Sch 2 of the new Act do not apply to it. At the core of this argument is the fact the cl. 2 of Part 2 of Sch 2 provides that –
(2) For the purposes of this Part, proceedings are not finally determined if:
(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or
(b) any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).
Clause 14 then provided, with respect with respect to pending appeals that –
(1) This clause applies to proceedings before the Victims Compensation Tribunal on an appeal under section 36 of the repealed Act or hearing on an objection under Division 8 of Part 2 of that Act that have not been finally determined on the commencement of this clause.
Read with the definition of “not finally determined” in clause 2, the saving provisions in clause 14 do not apply to applications for an extension of time in which to appeal, because such an application for an extension of time is not a proceeding within the meaning of that definition. An appeal made within time, on the other hand, is a proceeding that has not been finally determined.
Further, after Deputy President Lulham wrote to the parties in June 2013 the Victims Rights and Support Regulation 2013 was amended by the Victims Rights and Support Amendment (Transitional Provisions) Regulation 2013 on 16 August 2013. This had retrospective affect to the commencement date of the new Act, namely 3 June 2013. Clause 16 relevantly provided –
“(1) Despite the repeal of section 36 of the repealed Act, if notice of a determination of a compensation assessor was served before that repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b)) were still in force.
(2) An appeal referred to in subclause (1) is to be treated as if it were a proceeding referred to in clause 14 of Schedule 2 to the Act.
(3) Proceedings to which clause 14 of Schedule 2 to the Act applies (including proceedings referred to in subclause (1)) are, subject to clause 13 of Schedule 2 to the Act, to be determined under section 38 (other than section 38 (5) (b)) of the repealed Act as if the repealed Act were still in force.
(4) For those purposes, a reference in the repealed Act:
(a) to the Director or a compensation assessor is taken to be a reference to the Commissioner, and
(b) to the Victims Compensation Tribunal is taken to be a reference to the Civil and Administrative Tribunal.
(5) Despite clause 4 (1) of Schedule 2 to the Act, statutory compensation determined to be payable (less any deductions under section 19A of the repealed Act) pursuant to a determination under section 38 of the repealed Act as provided in accordance with subclause (3) is payable from the Victims Support Fund under the Act.”
It is to be noted that -
(1)clause 16(1) specifically excluded s 36(3)(b) – the power to extend time in which to appeal in exceptional circumstances – from its operation; and
(2)the transitional provision in new Act, specifically clause 1, authorised the making of regulations such as clause 16 which has a retrospective operation to before its publication -
“(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Regulations under this clause may have effect despite any provision of Part 2.”
As a result, I conclude the transitional provisions of the new Act do not operate so as to preserve the appellant’s right to appeal under the old Act, when what was on foot not an appeal, but an application to extend time in which to appeal.
Does the new Act apply?
AST’s application for statutory compensation under the old Act was finally determined by the assessor’s determination made on 6 November 2012, which determination was not appealed within time. As a consequence there was no pending application for statutory compensation to which clause 5 of the Sch 2 of the new Act applies, so as to require the pending application to be considered under the new Act. That clause relevantly provides –
“(1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.”
This leads inevitably to the conclusion that there no proceedings for statutory compensation on foot to which the new Act applies.
Conclusion
It follows that this Tribunal has no jurisdiction to consider AST’s application to extend time in which to appeal under the old Act. As the new Act does not apply there is no purpose to be served by remitting the present application to the Commissioner for Victims Rights under the new Act.
I think that the appropriate order is to dismiss AST’s application for want of jurisdiction.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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