BFK v VOCAT - [2017] VSC 736

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 1426

BFK	Appellant
v
The Victims of Crime Assistance Tribunal	Respondent

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2017
DATE OF JUDGMENT:	6 December 2017
CASE MAY BE CITED AS:	BFK v VOCAT
MEDIUM NEUTRAL CITATION:	[2017] VSC 736 First Revision: 7 December 2017

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JUDICIAL REVIEW AND APPEALS – Appeal pursuant to Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 – Question of law – Whether there was any evidence to support a particular finding of fact – Whether Member erred in identifying and applying applicable legal test – Finding that a 23 year delay in making an application for financial assistance to the Victims of Crime Assistance Tribunal threatened the capacity of the decision-maker to make a fair decision – No error – Appeal dismissed – Victims of Crime Assistance Act 1996 (Vic), s 29(2) and (3).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	D Bracken (Victorian Bar Pro Bono Scheme)
For the Respondent	No appearance

HIS HONOUR:

Introduction and summary

In about November 1991, then a 19 year old first year university student, BFK (the appellant)[1] had sex with her then boyfriend, YVP,[2] became pregnant and later had an abortion. Twenty three years later she made a complaint to the police that she had been raped by YVP on that occasion. After a further six months, in mid-2015, she made an application for financial assistance to the Victims of Crime Assistance Tribunal (VOCAT), the respondent, on the ground that she was a victim of an alleged act of violence, namely the alleged rape in November 1991.
[1]Her name has been anonymised.
[2]His name has been anonymised.

The issue in this proceeding is whether the Victorian Civil and Administrative Tribunal (VCAT) made an error of law when, on review, it affirmed the decision of VOCAT to strike out BFK’s application for assistance for being brought out of time.[3]
[3]Technically, VOCAT had administratively struck out the application and then declined to reinstate it because it would otherwise strike it out for being out of time, but nothing turns on that technicality: see [4] below.

Section 29(2) of the Victims of Crime Assistance Act 1996 (Vic) (VOCA Act) provides that if an application for assistance is not made within two years of the alleged act of violence VOCAT must strike the application out unless in the particular circumstances of the case it considers that it should not do so.

After BFK made her application to VOCAT it was administratively struck out due to her failure to file some required supporting documentation. When she applied for reinstatement of her application a VOCAT member determined the reinstatement question together with the issue under s 29(2)—that is, whether the Tribunal must strike out the application—given that the application was brought well after the two year time period prescribed.…

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: [2017] VSC 736
Decision Date: 6 December 2017

CaseChat Overview and Summary

The matter before the court was an appeal by BFK against a decision of the Members of the Victorian Civil and Administrative Tribunal (VCAT), who dismissed BFK’s application for financial assistance under the Victims of Crime Assistance Act 1996. The Tribunal found that the 23-year delay in making the application threatened the capacity of the decision-maker to make a fair decision. The appeal was based on the argument that there was no evidence to support the Tribunal’s finding that the delay threatened the capacity of the decision-maker to make a fair decision and that the Tribunal erred in identifying and applying the applicable legal test.

The court was required to determine whether the Tribunal erred in finding that the delay threatened the capacity of the decision-maker to make a fair decision. The court had to consider whether there was any evidence to support this finding and whether the Tribunal correctly identified and applied the relevant legal test. The court also had to consider whether the Tribunal’s decision was unreasonable or irrational.

The court found that there was evidence to support the Tribunal’s finding that the delay threatened the capacity of the decision-maker to make a fair decision. The court held that the Tribunal correctly identified and applied the relevant legal test and that the decision was not unreasonable or irrational. The court dismissed the appeal and upheld the Tribunal’s decision. The court held that the delay in making the application was significant and that it was reasonable for the Tribunal to find that it threatened the capacity of the decision-maker to make a fair decision. The court also held that the Tribunal’s decision was not affected by any error in identifying or applying the legal test.

The appeal was dismissed and the decision of the Tribunal was upheld. The court did not make any orders for costs.

Orders