Aww v Victims Compensation Fund Corporation

[2015] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

AWW v Victims Compensation Fund Corporation. [2015] NSWCATAD 101

Hearing dates:

On the papers

Decision date:

15 May 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Molony, Senior Member

Decision:

1. The application is remitted to the Commissioner for Victims Rights for reconsideration as an application for victims support under the Victims Rights and Support Act 2013.

2. Such reconsideration to be completed within 30 days of the date of these reasons.

3. The appellant shall advise the Tribunal in writing, within 28 days of the date receipt of the new decision, whether or not he wishes to proceed with the application to review the new decision.

Catchwords:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Interpretation Act 1987
Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Interpretation Act 1987
Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013

Category:

Principal judgment

Parties:

AWW (Applicant)
Victims Compensation Fund Corporation (Respondent)

Representation:

Solicitors:
Mitchell Playford & Radburn (Applicant)

File Number(s):

137145

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2013, the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the Tribunal

Reasons fror decision

Background

1. AWW claimed statutory compensation for injuries which he received in an act of violence that occurred on 2 January 2009. The Compensation Assessor first considered AWW’s application for compensation on 28 February 2013 and dismissed it (the first determination). As a result of it being drawn to the assessor’s attention that the first decision did not consider submissions made by AWW’s solicitors dated 21 June 2012, the assessor made a fresh determination. While accepting that AWW had been a victim of an act of violence, the assessor found that AWW had not suffered a compensable injury and again dismissed AWW application (the reconsidered determination).

2. The reconsidered determination is dated 6 May 2013. That determination was posted to AWW’s solicitors on 4 June 2013.

3. On 18 June 2013 AWW’s present appeal was filed.

Application of the old Act

4. 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”). The old Act was repealed on 2 June 2013 and the new Act commenced on the date of assent, namely 3 June 2013.

5. 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 (the ADT). That Tribunal could exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.

6. On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2013 (“the Regulation”) commenced operation. This provided, among other things, that appeals against determinations of compensation assessors, which determinations were served before the repeal of the old Act, are to be determined under the old Act.

7. After clause 16 of the Regulation commenced AWW was advised of its provisions by the Registrar. AWW’s appeal has since been treated as an appeal which clause 16 of the Regulation requires be determined under the old Act.

8. On 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished. 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 Tribunal having all the functions that the ADT had immediately before its abolition, and the applicable law at that time continuing to apply.

Grounds of Appeal

9. The Notice of Appeal submits that AWW is entitled to compensation under the old Act.

The call for additional submissions

10. As already noted this appeal comes before me, and was transferred to, and has been managed by this Tribunal as an appeal to which the provisions of the old Act apply. Having considered the file however, I reached the preliminary conclusion that this is not the case and that AWW’s claim for statutory compensation falls to be determined under the new Act.

11. As a consequence on 24 September 2014 the Registrar wrote to the appellant’s solicitors (with a copy to the respondent) as follows –

“The Tribunal has been considering this application and has reached the preliminary view that it does not have jurisdiction to determine an appeal against the compensation assessor’s revised decision under the Victim Support and Rehabilitation Act 1996. The Tribunal considered that, in fairness, it should alert you to its thinking so that you may seeks instructions and make submissions with respect to its preliminary view.

In reaching this view the Tribunal noted that:

•   The assessor’s revised determination is dated 6 May 2013 and was posted to you on 4 June 2013.

• Applying s 76 of the Interpretation Act 1987, in the absence of evidence to the contrary, the revised determination is taken to have been served 10 June 2013.

• The Victim Support and Rehabilitation Act 1996 was repealed on 2 June 2013 and the Victims Rights and Support Act 2013 (the new Act) commenced operation on 3 June 2013.

•   The new Act was introduced into parliament on 7 May 2013 (the introduction day).

As a result of the above, the Tribunal’s tentative view is that notice of the revised determination, which your client seeks to appeal, was served after both the introduction day of the new Act and the repeal of the Victim Support and Rehabilitation Act 1996.

If that is correct, then it would appear that the transitional provisions contained in Part 2 of Schedule 2 of the new Act provides that AWW’s claim for statutory compensation, which was “not finally determined before the introduction day,” is to be determined “as if it were for victims support” under the new Act (see cl 5(1)). The introduction day is the day the Bill was first introduced into Parliament; i.e. 7 May 2013 (cl 2(1)). Clause 2(2) provides that a claim for statutory compensation is not finally determined, when an appeal is pending, or the time to bring an appeal is yet to expire.

The Tribunal also noted that the saving provision with respect to existing appeals found in clause 16 of the Victims Rights and Support Regulation 2013 appears to have no operation in AWW’s case because the assessor’s determination was not served before the repeal of the old Act.

If this analysis is correct, then the Tribunal’s tentative view is that, unless the appeal application is withdrawn, the correct and preferable view is to remit this matter to the Commissioner for Victims Rights for a decision under the new Act.

Any submissions should be filed and served by 1 November 2014.”

12. AWW’s solicitors replied to the effect that they did not act for AWW, and asked that the correspondence be referred directly to him. This occurred on 29 September 2014. AWW has not made any submissions in response.

13. The respondent, on the other hand, filed submissions on 5 November in which it, in short, agreed with my preliminary view.

Consideration

14. Notice of the assessor’s redetermination 0f AWW’s claim for statutory compensation was sent by post to AWW’s solicitors with a notice of decision, as required by s 29(6) of the old Act, on 30 May 2013. In the absence of evidence to the contrary (of which there is none) s 76 of the Interpretation Act 1987 provides that service is “taken to have been effected on the fourth working day after the letter was posted.” The fourth working day after 4 June 2013 was 10 June 2013. This means that the notice of determination was served after the repeal of the old Act. As a consequence clause 16 of the Regulation does not require that AWW’s appeal be determined under the old Act. Clause 16 relevantly provides–

“(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.

…”

15. Rather, the transitional provisions contained in Part 2 of Schedule 2 of the new Act provides that AWW’s claim for statutory compensation which was “not finally determined before the introduction day” is to be determined “as if it were for victims support” under the new Act (see cl 5(1)). The introduction day is the day the bill was first introduced into Parliament; i.e. 7 May 2013 (cl 2(1)). Clause 2(2) provides that a claim for statutory compensation is not finally determined, when an appeal is pending, or the time to bring an appeal is yet to expire.

16. In AWW’s case, his claim for statutory compensation was not finally determined before the introduction date, and he did not, at that time, have an appeal on foot or a right to bring an appeal. As a consequence clause 5 of Schedule 2 of the new Act provides that AWW’s claim for statutory compensation is to be treated as a claim for victim support under the new Act.

17. Clause 16 of the Regulation, to which I have already referred, was introduced on 16 August 2013. It was made pursuant to the regulation making power in clause 2 of Part 1 of Schedule 2 of the new Act which provides –

“(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”

18. Clause 16 does not have effect in AWW’s case because notice of the compensation assessors determination was served after the old Act was repealed. The Tribunal has no power to determine the appeal under the old Act. Rather, AWW’s claim is to be treated as one for victims support under the new Act.

19. Persons such as AWW are eligible under the new Act for “victims support under the Scheme comprising approved counselling services or a recognition payment, or both” (cl 5(2) of the Schedule 2 and in defined circumstances for a special grant under cl 5(3).

20. The new Act does not have an appeal procedure per se such as that found in the old Act. The new Act provides for administrative (merits) review of victims support decisions relating to the payment of recognition payments: see s 51. That section provides for internal review of decisions of delegates by the Commissioner of Victims Rights from which aggrieved persons may seek administrative review by the Tribunal. This is not an internal review under the Administrative Decisions Review Act 1997, but an internal review under the new Act (see s 49 and 50). The Tribunal has no power to stay or make interim orders affecting pending applications before it: s 52.

21. In the present case there is, as a result of an unfortunate combination of circumstances and dates, no decision with respect to what the new Act provides is to be taken as AWW’s application for victims support (recognition payment). There is a determination of a claim for statutory compensation under the old Act, which has been made redundant by subsequent legislation. How then is the Tribunal to conduct an administrative review?

22. In short, I do not think there is a relevant decision that this Tribunal can review under the Administrative Decisions Review Act 1997. At the same time it is clear that AWW has a claim for victims support under the new Act which needs to be determined.

Conclusion

23. I have reached the conclusion that the correct and preferable method of resolving this conundrum is to remit AWW’s application to the Commissioner for Victims Rights for reconsideration under s 65 of the Administrative Decisions Review Act 1997. AWW’s claim for victims support is not a complex one and should be readily determined in 30 days.

24. Section 65 provides –

“(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

25. Such a remittal will either result in AWW’s application being resolved, or there being a decision of the Commissioner made under the applicable legislation that is able to be reviewed. AWW will have to advise the Tribunal in writing, within 28 days of the date receipt of the new decision, whether or not he wishes to proceed with the application to review the new decision.

Orders

26. The Tribunal makes the following order:

1. The application is remitted to the Commissioner for Victims Rights for reconsideration as an application for victims support under the Victims Rights and Support Act 2013.

2. Such reconsideration to be completed within 30 days of the date of these reasons.

3. The appellant shall advise the Tribunal in writing, within 28 days of the date receipt of the new decision, whether or not he wishes to proceed with the application to review the new decision.

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

Decision last updated: 15 May 2015