AVR v Victims Compensation Fund Corporation.

[2013] NSWADT 265

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AVR v Victims Compensation Fund Corporation. [2013] NSWADT 265

Hearing dates:

On the papers

Decision date:

22 November 2013

Jurisdiction:

Victims Support Division

Before:

P H Molony, Judicial Member

Decision:

1. Leave to appeal out of time is refused.

2. Cost of the appeal is allowed in the exercise of my discretion in the sum of $550 inclusive of GST.

Legislation Cited:

Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013

Cases Cited:

Foulkes v Victims Compensation Fund Corporation
Yacoub v Pilkington (Australia) Limited (2007) NSWCA 290

Category:

Principal judgment

Parties:

Appellant - AVR
Respondent - Victims Compensation Fund Corporation.

Representation:

Appellant - Legal Aid NSW

File Number(s):

137108

Publication restriction:

S 126 Administrative Tribunals Act 1997

reasons for decision

Background

1. AVR claimed compensation for injuries which she received on 27 or 28 January 1979 as a result of an unlawful sexual assault. The Compensation Assessor was not satisfied that AVR had established that act of violence on the balance of probabilities. The Assessor dismissed her application for statutory compensation on 16 February 2011.

Application of the old Act

1. 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 The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). AVR's solicitors were informed that the appeal would be determined under the new Act.

1. 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. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.

1. 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. AVR's solicitors had previously made submissions on the basis of the appeal proceeding under the old Act. Since Clause 16 of the Regulation commenced AVR has been advised of it by the Registrar and given the opportunity to make final submissions. AVR has not done so.

Grounds of Appeal

1. The Notice of Appeal was lodged on 22 May 2013 and sets out the following ground;

The Assessor erred in that determining that an act of violence is not established.

Should leave be granted to allow the appeal out of time?

1. The appeal was lodged more than two years and three months after the Assessor dismissed AVR' application, well outside the time for making an appeal. I note that AVR's solicitors have been provided with a copy of the Victim Compensation Tribunals information sheet concerned with Leave to Appeal Out of Time.

1. Section 39 of the old Act is concerned with appeals against determinations made by Compensation Assessors. It relevantly provides -

(1) An applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination.

(1A)...

(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.

1. Section 36(3)(b) requires AVR to prove exceptional circumstances. "Exceptional" is defined in the Macquarie Concise Dictionary as; "forming an exception or unusual instance; unusual; extraordinary".

1. In Foulkes v Victims Compensation Fund Corporation Truss DCJ considered the same words "exceptional circumstances" in the context of s 39(2) of the old Act. The section requires that an appeal to the District Court be brought within 3 months of the date of the Tribunal's determination or within such further time as the Court may in exceptional circumstances allow. In other word it is substantially mirrors s 36(2). Her Honour stated as follows;

"9. The respondent submitted that exceptional means out of the ordinary and disputed that the appellant's circumstances could be regarded as exceptional.

10. The respondent referred the Court to the following authorities:

(a) O'beid v Victims Compensation Fund Corporation (20 February 2000 unreported). After referring to the principles set out by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Judge Garling, for the reasons enunciated on page 2, stated that the Tribunal was entitled to certainty and that extensions should only be granted where there was a very short period involved and where there was a good reason.

(b) In West v Victims Compensation Fund Corporation (24 February 2005 unreported), the Chief Judge accepted that the appellant was a person who needed help by virtue of a number of hardships in her life in particular in relation to her children and DOCS, health problems and the death of her mother. Nevertheless His Honour considered that there was no basis for a finding of exceptional circumstances for her not lodging an appeal for almost two years after the Magistrate's decision.

(c) In Makdessi v Victims Compensation Fund Corporation (1999) NSWDC 13 the focus was on the conduct of the appellant's solicitor and I agree with the remarks by Judge Robison that the discretion ought be exercised carefully and that the appellant is required to provide a full and satisfactory explanation for delay.

1. Ipp JA in Itex Graphix Pty Limited v Elliott [2002] NSWCA 104 explained the importance of their being a satisfactory explanation for any delay where a limitation period is sought to be extended -

89 The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts. It is hardly necessary to provide authority for this proposition, but, in addition to the authorities to which I have already referred, I would cite the following: Henricks v Agnew (1997) 26 MVR 277, Bartlett v Bartlett [2000] FCA 120; (2000) 170 ALR 25, Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139, Girando v Girando (1997) 18 WAR 450, Hoy v Honan[1997] QCA 250, Reid v Agco Australia Ltd [2000] VSC 363, Pomeroy v Thwaites Witham Pty Ltd [2001] SASC 125; (2001) 79 SASR 489, Menzies v Hoechst Australia Limited(1991) Aust Torts Reports 81-122, Hunter Valley Developments Pty Limited vCohen [1984] FCA 176; (1984) 3 FCR 344, Clark v Robb(1994) 118 FLR 71, Knight v Smith[1975] Tas SR 83.

90 The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament.

1. The expression exceptional circumstances also appears in rule 31.18 of the Uniform Civil Procedure Rules and was considered by the Court of Appeal in Yacoub v Pilkington (Australia) Limited (2007) NSWCA 290. Campbell JA at [66] said that:

(a) exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;

(b) exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;

(c) exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which although individually of no particular significance, when taken together are seen as exceptional.

1. In the present case AVR has made submissions in which she has offered some explanation of why she did not make her appeal within the required time. She wrote:

I have been delayed in making this appeal as I obtained further evidence.

I have also had problems with depression.

I had to engage further representation with legal aid at [town name] and it has been difficult between [home] and [town name].

I attach statement from [my daughter and sister] which support my claim and my report for sexual assault.

1. While AVR's submissions refer to a number of circumstances which she asserts have led to her delay in making her appeal, those submissions do not identify on what basis those circumstances are said to be exceptional or explain why they resulted in such a long delay.

1. AVR lodged statements from her daughter (who was not born at the time of the offence) and sister which demonstrate that she has complained to them about the sexual assault. She has not explained or provided any evidence demonstrating why obtaining those statements justifies a delay of two years in making her appeal. I note that her daughter's statement is dated 31 May 2012 (fifteen months after the Assessor's decision and a year before this appeal was filed). Her sister's statement is dated 9 October 2010 ((twenty-one months after the Assessor's decision and seven months before this appeal was filed). I am not persuaded on the material before me that unexplained delays in obtaining statements from AVR's daughter and sister constitute exceptional circumstances.

1. AVR said that the she has had problems with depression, but did not describe how to those problems had contributed to the delay in making her appeal, nor did she provide any medical evidence verifying the length and or severity of those problems. I do note that on 7 June 2010 the Authorised Report Writer, Roslyn Knight, Clinical Psychologist (the ARW) diagnosed AVR with Chronic PTSD, a Major Depressive Disorder and Alcohol Abuse all of which were, at that time, in partial remission. The ARW said of AVR that -

...overall, she has improved her level of functioning (is completing a course; has some friends; would be interested in a relationship) and decreased her level of distress ...

Given that level of functioning in June 2010, in the absence of evidence to the contrary, I am not satisfied that AVR's depression explains a delay of two years in making her appeal.

1. Next AVR said that delays in travelling between her home and her solicitor in western NSW contributed to the delays in making her appeal. I note that AVR is not working and accept that it would be costly for her to travel to her solicitor's and that this might go some way towards explain some delay in lodging her appeal. It does not however, without more, explain the two year delay in bringing her appeal.

1. Finally, I observe that this is not the first time that AVR has sought leave to appeal a decision of a Compensation Assessor out of time. In February 2010 she sought leave from the Victims Compensation Tribunal to appeal a determination made in May 2002. Her appeal application was then six months out of time. She was granted leave. The relevance of this is that it demonstrates that at the time the Compensation Assessor made his determination in the present case, on 16 February 2011, AVR had prior experience relating to appeal time limits, and should be taken to have been aware of them.

1. In all the circumstances I am not satisfied that any of the reasons advanced by AVR for the delay in making her appeal, whether considered alone or together, demonstrate exceptional circumstances justifying her being given leave to appeal two years out of time.

Conclusion

1. I make the following orders:

1. Leave to appeal out of time is refused.

2. Cost of the appeal is allowed in the exercise of my discretion in the sum of $550 inclusive of GST.

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Decision last updated: 22 November 2013