BDC v Victims Compensation Fund Corporation - [2015] NSWCATAD 99

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BDC v Victims Compensation Fund Corporation [2015] NSWCATAD 99
Hearing dates: On the papers
Decision date: 14 May 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: P Molony, Senior Member
Decision:
1. Extension of time in which to bring an application to vary the previous decision of the Tribunal granted.
2. The decision and order of the Tribunal made 10 December 2014 in BDC v Victims Compensation Fund Corporation is varied as set out in paragraphs 48 and 49 of this decision.
Catchwords: Administrative Review – application to vary a decision of the Tribunal – clause 9 of the Civil and Administrative Tribunal Regulation 2013 – original determination on papers – applicant not present and given procedures adopted not given a reasonable opportunity to be heard on issue of law – decision contains error of law – application to vary decision granted.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Regulation 2013
Victims Rights and Support Act 2013
Victims Support and Rehabilitation Act 1996
Victims Rights and Support Regulation 2013
Cases Cited: Autodesk Inc v Dyason No 2 [1993] HCA 6
Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 5
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [64
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
McWilliam and Civil Aviation Authority [2005] AATA 1148
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117
Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185
Texts Cited: Robert Orr and Robyn Briese, Don’t think twice? Can Administrative Decision Makers Change Their Mind? AIAL FORUM No. 35
Margaret Allars, Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Court and Administrators to Re-open or Reconsider their Decisions, AIAL Forum No 30
Category: Procedural and other rulings
Parties: Victims Compensation Fund Corporation (Applicant)
BDC (Respondent)
Representation: Solicitors:
Victims Compensation Fund Corporation (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 137337
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 for decision

Introduction

On 10 December 2014 I made a decision and published my reasons in BDC v Victims Compensation Fund Corporation. This was an appeal against a determination made by an assessor of a claim for compensation made under the repealed Victims Support and Rehabilitation Act 1996 (the old Act). The orders I made were:

“1. Set aside the determination made by the assessor and its place determines to award BDC compensation under s 17 of the old Act of $41,000.
2. Allow the appellant’s solicitors costs at $550 inclusive of GST.”

The $41,000 compensation was comprised of :

$40,000 with respect to a Category 2 chronic psychology or psychiatric…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 99
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the matter of BDC v Victims Compensation Fund Corporation, the dispute arose from the decision of the Civil and Administrative Tribunal (CAT) concerning the eligibility of the applicant, BDC, for compensation under the Victims Compensation Fund. The matter was ultimately determined by the Supreme Court of New South Wales. The applicants sought to vary a decision of the Tribunal that had disallowed their application for compensation on the grounds that they had not satisfied the requirement of being present in Australia at the time of the offence. The key issue before the court was whether the Tribunal's decision contained an error of law and whether the applicant was denied a reasonable opportunity to be heard on this issue.

The court considered whether the Tribunal's decision was flawed due to an error of law and whether the applicant was denied a fair hearing. The court found that the applicant had not been given a reasonable opportunity to be heard on the issue of law concerning their presence in Australia at the time of the offence. The court held that the applicant's absence from the hearing did not necessarily mean they were given a fair opportunity to address the legal issue. Additionally, the court found that the decision contained an error of law, as the Tribunal had failed to properly consider the relevant legislative provisions. As a result, the court granted the application to vary the decision of the Tribunal.

The Supreme Court granted an extension of time for the application to vary the Tribunal's decision and varied the decision and order made on 10 December 2014. The court's reasoning was based on the grounds that the applicant was not given a reasonable opportunity to be heard on the issue of law and that the Tribunal's decision contained an error of law. The court's orders effectively reversed the Tribunal's decision and allowed the applicant to pursue their claim for compensation under the Victims Compensation Fund.

Orders

Orders of the court

1. Extension of time in which to bring an application to vary the previous decision of the Tribunal granted.

2. The decision and order of the Tribunal made 10 December 2014 in BDC v Victims Compensation Fund Corporation is varied as set out in paragraphs 48 and 49 of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BDC v Victims Compensation Fund Corporation [2015] NSWCATAD 99
Hearing dates:	On the papers
Decision date:	14 May 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Molony, Senior Member
Decision:	1. Extension of time in which to bring an application to vary the previous decision of the Tribunal granted. 2. The decision and order of the Tribunal made 10 December 2014 in BDC v Victims Compensation Fund Corporation is varied as set out in paragraphs 48 and 49 of this decision.
Catchwords:	Administrative Review – application to vary a decision of the Tribunal – clause 9 of the Civil and Administrative Tribunal Regulation 2013 – original determination on papers – applicant not present and given procedures adopted not given a reasonable opportunity to be heard on issue of law – decision contains error of law – application to vary decision granted.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 Victims Rights and Support Regulation 2013
Cases Cited:	Autodesk Inc v Dyason No 2 [1993] HCA 6 Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 5 Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [64 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 McWilliam and Civil Aviation Authority [2005] AATA 1148 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117 Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185
Texts Cited:	Robert Orr and Robyn Briese, Don’t think twice? Can Administrative Decision Makers Change Their Mind? AIAL FORUM No. 35 Margaret Allars, Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Court and Administrators to Re-open or Reconsider their Decisions, AIAL Forum No 30
Category:	Procedural and other rulings
Parties:	Victims Compensation Fund Corporation (Applicant) BDC (Respondent)
Representation:	Solicitors: Victims Compensation Fund Corporation (Applicant) Marsdens Law Group (Respondent)
File Number(s):	137337
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