BLR v Commissioner of Victims Rights

[2016] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BLR v Commissioner of Victims Rights [2016] NSWCATAD 178
Hearing dates:	18 March 2016 & 10 June 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The application is dismissed.
Catchwords:	Administrative Review – Jurisdiction to determine application for administrative review – Victims Rights and Support – Demand for repayment of recognition payment under s 48 (2) (b) of the Victims Rights and Support Act 2013 – Whether such a demand is a decision made in relation to an application for a recognition payment – Demand made pursuant to a mandatory statutory condition – Jurisdiction not established
Legislation Cited:	Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (No. 2)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 31 Llewellyn v Clyde Group Inc [2008] TASSC 25 Mediana (owners) v Comet (owners), The Mediana [1900] AC 113 at 116 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Sharples v O'Shea [1999] QSC
Texts Cited:	Statutory Interpretation in Australia (8th Edition, Pearce and Geddes)
Category:	Principal judgment
Parties:	BLR (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Kelso Lawyers (Applicant) Crown Solicitor’s Office (Respondent
File Number(s):	1610019
Publication restriction:	A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

1. In these proceedings, which were commenced by an application (‘the application”) filed on 4 January 2016, the Applicant (known by the pseudonym “BLR”) sought administrative review of a decision allegedly made by a delegate of the Respondent in respect of an application for compensation.

2. The Respondent has lodged an application for dismissal for want of jurisdiction and this decision is in relation to that application.

Background

3. On 25 January 2012, the Applicant lodged an application for compensation under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”), which alleged that she was the primary victim of acts of violence (in the nature of assaults/domestic violence) that were perpetrated upon her by members of staff at the Parramatta Girls Home over a period of time between 13 March 1970 and 12 November 1971. She alleged that she was physically assaulted and verbally abused and claimed compensation for the injuries of “domestic violence” and “psychological/psychiatric injury - category 2”.

4. I note that the applicant has been legally represented throughout the course of her application and that she is currently represented by Kelso Lawyers.

Evidence

5. The Application for Compensation indicates that the alleged acts of violence were not reported to NSW Police because they occurred while the applicant was a child. However, the documents produced by the Respondent under s 58 of the Administrative Decisions Tribunal Act 1997 (“the ADR Act”) do not contain copies of any evidence that the Applicant relied upon in support of her application for compensation.

Applicable Legislation

6. While the application for compensation was lodged under the Old Act, on 7 May 2013, the NSW Government introduced legislation that 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 Act”).

7. The Act commenced on 3 June 2013. Cl 4 and cl 5 of sch 2 effectively provides that an application for compensation that was lodged under the Old Act, but not finally determined by 7 May 2013, should be determined under the Act as if it was an application for victims support under the Act.

8. For the purposes of this decision, I have assumed that the Respondent advised the Applicant’s solicitors that the application would be determined under the new Act as if it was an application for victims support. However, there is no letter to that effect in the documents before me.

Previous Determinations

9. In any event, on 16 June 2014, the Respondent initially determined the application under the Act, and dismissed it on the basis that there was insufficient evidence to establish on the balance of probabilities that the Applicant was the primary victim of an act of violence.

10. I note from the Respondent’s written submissions that on 24 June 2014, the Applicant applied to this Tribunal for administrative review of the respondent’s decision dated 16 June 2014. The Tribunal determined that application on 5 December 2014, and approved a Category C recognition payment in the sum of $5,000. The approved amount of victims support was paid to the Applicant.

Current Application for Administrative Review

11. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Background to the Current Dispute

12. The current dispute concerns the construction of s 48 (2) of the Act and whether the Respondent’s decision to issue a demand to the Applicant for repayment of the amount of victims support that the Tribunal approved on 5 December 2014 is an administratively reviewable decision for the purposes of s 51 of the Act. If so, the Tribunal has jurisdiction to determine it.

13. S 48 (2) of the Act provides (relevantly):

(2) An approval of victims support is subject to the following conditions:

(a) The person to or for whose benefit the approval is given (other than a family victim) must notify the Commissioner of any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving the approval,

(b) The person to or for whose benefit the approval is given (other than a family member) must repay from the amount approved any such future amounts referred to in paragraph (a) on demand by the Commissioner…

14. On 25 September 2015, the Applicant’s solicitors wrote to the Respondent and stated (relevantly):

In accordance with the conditions attaching to the approval of (the Applicant’s) victims support payment … under s48(2)(a) of the Victims Rights and Support Act 2013 (“the Act”), we notify you that (the Applicant) has received a sum of money and a formal apology from the State of NSW.

The sum of money and the apology relate to the abuse that (the Applicant) suffered at Parramatta Girls Training School (“PGTS”) in 1970-1971. This abuse included physical assaults by PGTS officers (for which she was awarded a recognition payment by NCAT order 1410481), an injury to her hip suffered by the negligence of a PGTS officer, and acts of sexual abuse and indecency by the PGTS doctors and officers.

We note that there is a partial overlap in the factual basis upon which (the Applicant) received her recognition payment of $5,000 and her subsequent settlement. The settlement involved no court proceedings and the quantum was greater than the recognition payment.

We note that as s55 of the Act is not engaged, a requirement to repay the recognition payment can only arise upon a demand by the Commissioner in accordance with s48(2)(b). In making such a decision, we submit that the following matters require consideration:

First, the Act does not expressly provide a deadline for the making of a decision for the purposes of s48(2)(b). However, it would be highly undesirable and impractical to accept an interpretation that allowed victims to be retained indefinitely in a state of uncertainty over whether they will have to repay their recognition payment. The common law position should therefore apply, that a decision must be made within a reasonable period of time. As a party will have 28 days to lodge an objection to a provisional order in restitution proceedings, we submit that is similarly reasonable for the Commissioner to have no more than 28 days to make a demand under s48(2)(b).

Second, as the repayment obligation is not automatic, the Commissioner has a discretion whether or not to make the demand. And this is further supported by the use of the word ‘may’ in s48(4) in relation to the recovery of recognition payments. In the light of the small sum involved, the subject matter of the payment, the State’s demonstrated concern and decision to apologise to those abused at PGTS, and the Commissioner’s previous graciousness towards the plaintiffs in the Bethcar Children’s Home litigation (documented in Case Study 19 of the Royal Commission into Institutional Responses to Child Sexual Abuse), we submit that it is thoroughly open to the Commissioner to make a decision not to demand repayment of (the Applicant’s) recognition payment.

Finally, s49(2) should be read in line with the overriding purposes of the Act, which are discerned by reading the Act as a whole (see Blue Sky v ABC at [69]). Noting the reference in s48(2) to the matters ‘taken into account’:

…money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving approval.

and the reference in s55(3) to ‘subrogation’:

On the payment to a person of approved victims support, the person’s rights to commence and maintain civil proceedings against any other person in respect of the same facts as those on which the approval is based is, by operation of this section, subrogated to the State to the extent of the amount of the amount of support so paid.

Noting that the right of subrogation permits a party to be reimbursed only after the injured party has been fully compensated for the relevant loss or damage… the overriding object appears to be that of avoiding people being overcompensated, that is, paid in full by Victims Services and then again by another party for the same thing.

Referring to s34 of the Act, (the Applicant’s) recognition payment only took into account the ‘pain and suffering’ head of damages with respect only to the physical assaults she suffered from PGTS officers. We submit that the sum of $5,000 could not have left (the Applicant) paid in full for the ‘pain and suffering’ caused by the physical assaults. It is important that (the Applicant’s) settlement took into account other abuses not addressed in her Victims Support application. Furthermore, it is difficult to make a finding that the Applicant has been fully compensated for the ‘pain and suffering’ by the settlement, referring to Lord Halsbury’s words in The SS Mediana v The Lightship Comet [1900] AC 113 at 116:

[H]ow is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone…

15. The Applicant’s Solicitors argued that the Respondent should provide notice of a decision regarding the issue of a demand within 28 days of the date of their letter and concluded that it was open to the Respondent to decide that the Applicant ‘would not be left overcompensated if she were allowed to retain her victims support payment.’

16. On 8 October 2015, the Respondent responded to the Applicant’s Solicitors’ letter dated 25 September 2015, and stated (relevantly):

…Thank you for your advice that (the Applicant) has received a sum of money as the result of an un-litigated claim. I further note your advice that the factual basis upon which the claim was settled overlaps with the basis upon which she received a recognition payment.

I assume, because your letter is styled as a notification made under section 48(2)(a) of the Victims Rights and Support Act 2013, that the settlement money was received in connection with the injuries, expenses and losses taken into account in approving the recognition payment. If I am wrong in that assumption, I would be grateful if you could confirm the same or provide a copy of the deed of settlement.

If I am correct in that assumption, then I advise that the Commissioner makes a demand for payment of $5,000 under section 48(2)(b) of the Act. Repayment may be made by cheque made out to NSW Department of Justice and posted to Victims Services at the above address…

17. On 15 October 2015, the Applicant’s Solicitors made further submissions to the Respondent and stated (relevantly):

In view of the particularly special and exceptional circumstances of this matter, and the approach being taken by the NSW Government to victims of institutional abuse through the Department of Family and Community Services (‘FaCS’), we respectfully suggest that it would be appropriate for the Commissioner to revisit this decision, and to do so with the benefit of discussions with her colleagues at FaCS.

At the heart of this issue is the question of whether making a s48(2)(b) demand would sit harmoniously with the State’s overall policy provision on victims of institutional abuse. As part of this policy position the State has graciously decided not to rely on the limitations defence, and instead has commenced making offers of compensation and formal apologies through FaCS. Another key component of this policy position has been the provision of unlimited counselling through Victims Services, and the establishment of a memorial for those who were abused at Parramatta Girls Training School. This policy has been received with gratitude by (the Applicant) and other victims of institutional abuse, and has greatly assisted their healing process.

There is therefore concern that the beneficial effect of this policy may be detracted from if the recognition of their suffering through an offer of unlimited counselling is coupled with a demand to repay their recognition payment…

18. On 30 October 2015, the Respondent wrote to the Applicant’s Solicitors and stated (relevantly):

…Thank you for notifying the Commissioner of Victims Rights that (the Applicant) has received a sum of money as the result of an un-litigated claim. I note correspondence to that effect sent by Gadens Lawyers to Victims Services on 27 October 2015. I confirm my understanding that the settlement was received in connection with the injuries, expenses and losses taken into account in giving the approval of victims support.

I advise that the Commissioner renews the earlier demand for payment of $5,000 under section 48(2)(b) of the Act…

The Commissioner notes your comments in relation to policy. Enquiries have been made with the Department of Family and Community Services. I am unaware of any policy articulated by that Department or the Department of Justice which would prevent the course of action that is now being taken.

While I understand that your client may feel a sense of disappointment with the above, I trust that you will relay the reasons why a payment of victims support is subject to the conditions set out in the Act. The Victims Support Fund is a fund of last resort. The conditions attached to the giving of victims support help ensure that this limited resource is employed where support or redress is otherwise unavailable…

19. On 5 November 2015, the Applicant’s solicitors wrote to the Respondent. They formally disputed that the approval of victims support took into account the injuries, expenses and losses arising from the relevant act of violence and argued that ‘no amount of financial assistance was paid for the treatment of injuries resulting from it, or for expenses resulting from it or for ‘losses’ resulting from it (see: cl 8(1) and cl 8(2)(d) and cl 8(2)(e) of the Victims Rights and Support Regulation 2013). They also stated (relevantly):

…The power to make a demand under s 48(2) of the Act requires a finding that the approval of victims support included a sum for a specific injury, expense or loss resulting from the act of violence and that the Applicant has subsequently received a sum from a third party for that same injury, expense or loss. If the approval of victims support did not specifically apportion a sum to assist with any particular injury, expense or loss then any subsequent payment the Applicant receives cannot result in the Applicant being reimbursed twice for the same item (such as medical treatment, immediate needs, or loss of income).

In addition to the above, (the Applicant’s) situation is similar to that of the plaintiffs in the Bethcar Children’s Home Litigation which was the subject of Case Study 19 of the Royal Commission into Institutional Responses to Child Sexual Abuse. It was noted in the Case Study 19 that the Commissioner had decided not to pursue the repayment of victims support from any member of that class. This decision gives rise to a legitimate expectation that other victims of institutional abuse, especially those who were abused while in State care, would similarly not be pursued for repayment in the event that they subsequently received a settlement. No reasons have been given by the Commissioner for why (the Applicant’s) case should not be dealt with in accordance with this legitimate expectation – (the Applicant), like the Bethcar plaintiffs, was abused while in State care at an institution that was the subject of a case study by the Royal Commission.

Unless we are advised within 7 days of the date of this letter that the Commissioner will not be pursuing (the Applicant) for repayment of her recognition payment, we are instructed to apply to NCAT for administrative review of that decision.

Referring to s51(2) of the 2013 Act, (the Applicant) will have been aggrieved by the purported execution of the terms of the Commissioner’s decision with respect to (the Applicant’s) recognition payment…

If it becomes necessary to file the application for administrative review we will issue a media release. This is our standard practice in matters of public interest.

20. On 3 December 2015, the Respondent wrote to the Applicant’s Solicitors and stated (relevantly):

The Commissioner is of the view that recognition payments fall within the ambit of section 48(2)(a) of the Victims Rights and Support Act 2013 (“the Act”).

The requirement in section 19(1)(c) of the Act that an act that meets the criteria in sections 19(1)(a) and (b) has resulted in “injury” directs attention to the injuries suffered by a person. Injury is defined by section 18 of the Act as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

An “act of violence”, incorporating the requirement of “injury”, forms the basis for each of the different kinds of recognition payment provided for in section 35 of the Act.

A recognition payment cannot be approved unless there has been an act of violence, and there has not been an act of violence within the meaning of the Act unless the act has resulted in injury or death to the victim. A person’s injuries are taken into account when determining whether to approve the making of a recognition payment.

The psychological, and certainly the physical injuries sustained by your client were taken into account in order to resolve (the Applicant’s) application for administrative review by consent. The Tribunal could not have given a recognition payment without being satisfied that: your client was injured; the injury was a direct result of an act of violence; and a recognition payment under section 35(2)(b) was appropriate.

To the extent that it might have been unclear before, I trust that the above clarifies how the Commissioner proposes to apply the Act so that you may further consider your client’s position.

Based on the information that you have provided, and subject to any clarification from your client about the circumstances of the settlement, it appears that the settlement referred to in your earlier correspondence is connected with the injuries taken into account in giving approval for the relevant recognition payment. It appears that the settlement falls within the ambit of sections 48(2)(a) and (b) of the Act…

21. In the application lodged in January 2016, the Applicant sought administrative review of the Respondent’s decision to demand repayment of the recognition payment on the grounds of: (1) Error of Law; (2) Legitimate Expectation; and (3) Merit. However, on 14 March 2016, her solicitors lodged an amended application, which indicates that the application was lodged late because she was “… not aggrieved by the decision at the time that it was made, she became aggrieved at a later stage due to a change in her circumstances.”

Hearings and Directions Made

22. The matter was initially listed for hearing on 18 March 2016, when Mr Kelso appeared for the Applicant and Ms Johnston appeared for the Respondent. Ms Johnston applied for an adjournment on the ground that the Respondent mistakenly believed that the matter was listed for directions only and that it wished to make an application to dismiss the application for administrative review on the ground that this Tribunal has no jurisdiction to determine it under s 51 of the Act. Mr Kelso did not object to the proposed adjournment.

23. The Tribunal made orders for the filing and service of written submissions by the parties and listed the matter for hearing on 22 April 2016. However, the directions made on 18 March 2016 were subsequently varied by consent. The time for lodging written submissions was extended and the hearing date of 22 April 2016 was vacated. The matter was listed for hearing on 10 June 2016.

24. At the hearing on 10 June 2016, the Applicant was again represented by Mr Kelso and the Respondent was represented by Ms Johnston. Both legal representatives made oral submissions in relation to the issue of jurisdiction, which were based upon their written submissions, which I have summarised below.

Respondent’s Submissions

25. The Respondent submitted that the legislative provisions that are relevant to the current dispute are as follows:

1. S 28 of the Civil and Administrative Tribunal Act 2013 (No. 2) (“the CAT Act”), which provides:

28   Jurisdiction of Tribunal generally

(1)  The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2)  In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction:

(a)  the general jurisdiction of the Tribunal,

(b)  the administrative review jurisdiction of the Tribunal,

(c)  the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

(d)  the enforcement jurisdiction of the Tribunal.

(3)  Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.

Note. Section 35D of the Ombudsman Act 1974 enables the Ombudsman and the President to enter into arrangements with respect to the co-operative exercise of the respective functions of the Ombudsman and the Tribunal (including providing for the referral of matters between them).

2. S 30 of the CAT Act, which provides:

30   Administrative review jurisdiction

(1)  The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note. See section 9 of the Administrative Decisions Review Act 1997.

(2)  The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:

(a)  the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)  the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.

(3)  An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note. See section 7 of the Administrative Decisions Review Act 1997.

(4)  An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note. See section 8 of the Administrative Decisions Review Act 1997.

(5)  An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

(6)  An administrative review application is an application made to the Tribunal for an administrative review decision.

Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

3. S 9 (1) of the ADR Act, which provides (relevantly):

9   When administrative review jurisdiction is conferred

(1)  The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)  in the exercise of functions conferred or imposed by or under the legislation, or

(b)  in the exercise of any other functions of the administrator identified by the legislation.

4. S 7 (1) of the ADR Act, which defines “administratively reviewable decision” as “…a decision of an administrator over which the Tribunal has administrative review jurisdiction.”

5. S 51 of the Act, which provides:

51   Application to Tribunal for administrative review of decision concerning recognition payment

(1)  An Applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2)  An Applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

26. The Respondent noted that the Applicant is aggrieved by the Respondent’s demand for repayment made under s 48 (2) (b) of the Act and that her solicitors described this (in their written submissions) as “the condition which the Commissioner imposed by way of s 48 (2) (b) of the 2013 Act when determining the application for a recognition payment”. However, this condition is mandatory and attaches to any approval of victims support issued under Division 6, Part 4 of the Act.

27. In relation to the interpretation of s 51 of the Act, the Respondent referred to and relied upon the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR at [69] - [71] (“Project Blue Sky”), in which Brennan CJ stated (footnotes omitted):

Conflicting statutory provisions should be reconciled so far as is possible

69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"... Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions… 

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision… 

28. Further, in Alcan (NT) Alumina Pty Ltd V Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 31, French CJ noted:

The starting point… is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.

29. In applying these principles to the current matter the Respondent submitted that the correct and preferable construction of s 51 (2) of the Act excludes the demand under s 48 (2) (b) of the Act from the scope of “a decision of the Commissioner in respect of the application.” Therefore, it is not “an administratively reviewable decision” for the purposes of s 51 (2) of the Act.

30. The Respondent also submitted that the Applicant applied for victims support (in the form of a recognition payment) under s 26 of the Act and the Respondent determined that application under s 43 of the Act. However, that submission is incorrect as the evidence clearly indicates that the Applicant applied for compensation under the Old Act and that her application was determined by the Respondent as if it were an application for victims support because it was not finally determined before 7 May 2013.

31. In any event, s 43 of the Act provides:

43   Determination of applications

(1)  After considering an application for victims support, the Commissioner must determine the application:

(a)  by approving the giving of the victims support, or

(b)  by dismissing the application.

(2)  The Commissioner may defer the determination of the application if the Commissioner is of the opinion that there are relevant matters requiring further consideration or clarification.

Note. Section 11 enables the Commissioner to carry out inquiries and investigations with respect to applications.

(3)  The Commissioner must not approve the giving of victims support unless satisfied that the person to whom the application relates:

(a)  is a primary victim, secondary victim or family victim of an act of violence or is a parent, step-parent or guardian who is caring for a child who is a primary victim of an act of violence, and

(b)  is eligible to receive the victims support concerned.

(4)  Written notice is to be given to the Applicant of the determination of the application.

5)  If approval is given, the notice must include a statement of the amount (if any) payable by way of financial support (including whether for immediate needs or economic loss, or both) or by way of recognition payment, together with a statement of the reasons for approving the giving of those amounts.

(6)  If the application is dismissed, the notice must include a statement of the reasons for the dismissal.

32. The consequence of the Applicant’s preferred construction of the Act is that “the application” would be said to continue indefinitely so as to engage the Tribunal’s administrative review jurisdiction if/when the Respondent issues a demand under s 48 (2) of the Act. This construction would lead to “an odd result” and it is not supported by the language and structure of the Act for the following reasons.

33. The Macquarie Dictionary, 4th Ed defines “determine” as “to settle or decide (a dispute, question etc.) by an authoritative decision” and “chiefly in law” it means “to put an end to; terminate”. Applying this definition, the application for victims support was resolved or brought to an end when it was determined under s 43 of the Act. From that time an approval for victims support existed, which is subject to the imposition of discretionary conditions (see s 48 (1) of the Act) and mandatory conditions (see s 48 (2) of the Act). Therefore, the issue of a demand under 48 (2) of the Act is an action taken in respect of an approval or in respect of a payment of victims support (emphasis added), but it is not a decision in relation to the application for victims support.

34. The mandatory condition under s 48 (2) (b) of the Act, which requires the person to or for whose benefit the approval is given to repay the amount on demand by the Respondent, runs indefinitely and may arise at any time after the issue of an approval and payment of victims support - provided that the condition precedent to its operation (payment from another source) is satisfied.

35. A construction of s 51 (2) of the Act that does not encompass a demand under s 48 (2) (b) of the Act should be preferred to one that does encompass it, because it avoids the odd result that enforcement of that condition would be “an administratively reviewable decision” if the demand was made in relation to a recognition payment, but not if was made in relation to any other type of victims support. This is because the jurisdiction provided under s 51 of the Act is restricted to a recognition payment.

36. The Tribunal’s administratively reviewable jurisdiction under s 51 of the Act was properly invoked and exercised when the previous application for administrative review was lodged on 24 June 2014. That application was determined on 5 December 2014, at which time it was resolved and ceased to exist and an approval of victims support that was subject to the mandatory condition in s 48 (2) (b) of the Act then existed. The Tribunal’s administrative review jurisdiction under s 51 (2) of the Act expired on 5 December 2014 and it has no jurisdiction to determine the current dispute.

Applicant’s Submissions

37. The Applicant submitted that the Tribunal’s administrative review jurisdiction continued after the determination of the previous application on 5 December 2014, and that it has jurisdiction to determine the current dispute. She argued that the case law supports her position and that the Respondent’s submissions regarding “the finality of executive decision” is incompatible with the decisions of the Supreme Court of Tasmania in Llewellyn v Clyde Group Inc [2008] TASSC 25 (“Llewellyn”) and the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”).

38. The Applicant relies upon the following passages of the Judgment of Gleeson CJ in Bhardwaj:

[5] There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent…

And further:

[8] The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness…

And further:

[11] To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision…

39. The Applicant submitted that Bhardwaj concerns the common law power of a Tribunal to revisit its own decision upon becoming aware that it was affected by jurisdictional error. While there are differences between that case and the current matter, the point remains that the mere act of the Executive in conferring powers on itself by way of a decision, and notifying the Applicant of the terms of that decision, does not by definition relieve it of any further scrutiny.

40. The Applicant also submitted that the policy issue of the uncertainty that could arise from potential ongoing jurisdiction to review a decision was thoroughly considered and resolved in the Applicant’s favour in the Llewellyn, in which Crawford J stated (relevantly):

[8] In Judicial Review of Administrative Action 3rd Ed by Aronson, Dyer and Groves at 644, it is stated that "people can acquire standing after the making of the decision whose validity they want to litigate" and Sharples v O'Shea [1999] QSC 190 at par 23 is cited as authority for the proposition…

And further:

[12] When looking for the answer, a court should look at other provisions in the Act that may be material, including those that govern the consequences that might result from one or other interpretation. Further, an interpretation that required an Applicant to be aggrieved at the time of the making of the decision would provide closure for the determination of the class of potential Applicants. On the other hand, if any person, at any time following the making of the decision, could become a person aggrieved by it by coming into existence or acquiring a material interest that was affected by the decision, in some cases, perhaps a great many, the class of potential Applicants might never close. Consideration needs to be given to the possibility that if a liberal interpretation is to be preferred, applications for review could legitimately be made a great number of years after the making of the decision, during which time the decision may have been accepted and acted upon by many, including those who were affected by it at the time it was made…

And further:

[16] … Because of all those matters, it can be seen that a number of safeguards are in place to ensure that justice can be done in the case of a person who makes an application for review a relatively substantial time after the making of the relevant decision…

41. The Applicant argued that the Respondent’s proposed construction would impractically constrain the Tribunal’s jurisdiction and thereby constrain access to justice for victims and that the proper construction must be that the Tribunal has jurisdiction over decisions that involved a recognition payment. She concluded:

Ultimately for the Tribunal’s supervisory jurisdiction to be effective, it must not only have the authority to change the terms of a decision, but also the power to correct how those terms are interpreted and applied. Further, while a term of a decision lays dormant in the absence of the purported factual circumstances required to render it operative, the time for having that decision reviewed must also remain open. There is no undesirable uncertainty involved as the Commissioner is aware the whole time that she has yet to execute that term of the decision and therefore the term has not yet had opportunity to aggrieve the Applicant, and it is the aggrievement that grants standing to challenge the content or interpretation of a term of a decision.

Preliminary View and Further Directions

42. At the conclusion of the hearing on 10 June 2016, the Tribunal expressed a preliminary view. This was that the decision that aggrieves the Applicant is the Respondent’s decision to apply the statutory condition set out in s 48 (2) of the Act as a result of the Applicant receiving monies from the State of New South Wales in connection with the injuries, expenses and losses taken into account in giving the approval. However, that decision does not enliven this Tribunal’s jurisdiction under s 51 of the Act, as the Applicant is not aggrieved by a decision of the Respondent in relation to her application for victims support, but by the application of a mandatory statutory condition that attaches to the approval of victims support.

43. The Tribunal granted the Applicant’s solicitors leave to file and serve any further submissions in relation to the issue of jurisdiction by 1 July 2016 and granted the Respondent’s solicitors leave to file and serve any submissions in reply by 15 July 2016.

Determination of Jurisdiction Dispute On the Papers

44. After consultation with the parties’ legal representatives on 10 June 2016, the Tribunal also expressed the view that the Respondent’s application could be adequately determined in the parties’ absence by considering the oral and written submissions lodged with or provided to the Tribunal. However, it granted the parties liberty to apply for a further oral hearing on 29 July 2016, if required.

45. On 30 June 2016, the Applicant’s solicitors wrote to the Registrar, advising that they did not intend to file any further submissions in relation to the issue of jurisdiction. On 11 July 2016, the Respondent’s solicitors stated that they would not file any further submissions on the issue.

46. In accordance with s 50 (2) of the CAT Act, I have decided to dispense with a further oral hearing of the matter and to determine the dispute regarding jurisdiction based upon the oral and written submissions that the parties have filed to date.

Consideration

47. There is no dispute between the parties that the Tribunal had jurisdiction to determine the previous application for administrative review as when the Applicant lodged it she was aggrieved by the Respondent’s decision not to approve victims support (in the form of a recognition payment). However, on 5 December 2014, the Tribunal determined that application in the Applicant’s favour and approved a recognition payment in the sum of $5,000.

48. The Respondent submits that the approval of victims support was subject to the mandatory conditions set out in s 48 (2) of the Act, which required the Applicant: (a) to notify the Respondent of any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving the victims support payment; and (b) to repay the victims support payment to the Respondent from any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving the approval.

49. I note that the Applicant complied with the mandatory statutory condition in s 48 (2) (a) of the Act on 25 September 2015, when her solicitors disclosed to the Respondent that she had received a sum of money and an apology from the State of New South Wales in relation to the abuse that she suffered at Parramatta Girls Training School in 1970-1971. Her solicitors described the facts in relation to which those monies were received and submitted that there was “a partial overlap in facts” with the act of violence for which victims support was approved. They argued that the Respondent “has a discretion whether or not to make the demand” under s 48 (2) of the Act and that for numerous reasons, which are essentially of a public policy nature, the Respondent should not demand repayment of the recognition payment from the Applicant.

50. In response to the disclosure under s 48 (2) (a) of the Act, the Respondent issued a demand for repayment of the recognition payment under s 48 (2) (b) of the Act. The Applicant is aggrieved by this demand.

51. The Tribunal’s administrative review jurisdiction under s 51 (2) of the Act is not enlivened unless the Respondent’s demand for repayment under s 48 (2) (b) of the Act is “a decision of the Commissioner in respect of the application (for a recognition payment)”. However, for the reasons set out in this decision, I have decided that the Respondent’s demand is not an administratively reviewable decision for the purposes of s 51 (2) of the Act and that the Tribunal does not have jurisdiction to determine the current application.

52. I note that in Project Blue Sky, Brennan CJ stated:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

53. I have applied these principles to the current dispute and I am satisfied that the language of s 48 (2) of the Act is mandatory and that the condition set out in s 48 (2) (b) of the Act applies to all approvals of victims support. In the current matter, the relevant approval was made by this Tribunal on 5 December 2014, when it determined the Applicant’s previous application for administrative review.

54. I accept the Respondent’s submissions that the Tribunal’s determination of 5 December 2014, resolved or brought to an end the application for compensation (which was determined as it if were an application for victims support under cl 5 (1) of sch 2 of the Act), and that the jurisdiction under s 51 (2) of the Act expired at that time.

55. I note that the Applicant disputes this and submits that the Tribunal’s administrative review jurisdiction continues after an application has been determined and that it has power to administratively review any subsequent decision made by the Respondent in relation to the approval of victims support. She cites the decisions in Bhardwaj and Llewellyn as supporting her position.

56. However, I note that the decision in Bhardwaj concerned a Tribunal’s power to revisit its decision where there was evidence of jurisdictional error and that there is no evidence of any jurisdictional error on the face of the Tribunal’s decision to approve victims support on 5 December 2014. Further, in Llewellyn, the Supreme Court of Tasmania considered the proposition that "people can acquire standing after the making of the decision whose validity they want to litigate" as well as the issue of delay in seeking a review of an administratively reviewable decision. While I note that the Applicant seeks to rely upon the latter part of paragraph 16 of the Judgment of Crawford J as supporting her position, the entire paragraph reads as follows:

16. If an Applicant makes an application for review a long time after the making of the decision that is sought to be reviewed, the application might be refused by the court because it was made outside one of the 28-day time limits.  If the Applicant has not been given a document setting out the terms of the decision, the court has a discretion whether to refuse to consider the application.  If the Applicant applies to the decision-maker under s29 for a statement of reasons for the decision, the decision-maker may refuse to provide the statement if the request was not made within a reasonable time.  The court may or may not overrule that refusal.  Further, under s38 (1) (a) (i), the court has a discretion whether to dismiss an application if it considers that it would be inappropriate to grant it.  Considerations of delay, and the effects of the passage of time, might be relevant to the exercise of the discretion. Because of all those matters, it can be seen that a number of safeguards are in place to ensure that justice can be done in the case of a person who makes an application for review a relatively substantial time after the making of the relevant decision

57. With respect to the Applicant, there is no evidence before me that satisfies any of the matters factors that Crawford J discussed. There is no evidence that supports a finding that the Respondent failed to notify her that the approval of victims support was subject to the condition set out in s 48 (2) (b) of the Act or that she was otherwise unaware of the conditions under s 48 (2) of the Act. On the contrary, the fact that her solicitors expressly made the disclosure under s 48 (2) (a) of the Act augers against such a finding. I also note that the Respondent provided its final reasons for the demand to the Applicant’s solicitors on 3 December 2015 and that the Applicant lodged the current application for administrative review on 4 January 2016. In other words, there was no undue delay.

58. In my view, the facts in this matter differ significantly from those in Llewellyn and I am not satisfied that the decision in Llewellyn supports a determination that this Tribunal retains its administrative review jurisdiction in relation to an application for victims support after that application has been finally determined under s 43 of the Act. Further, unlike the Supreme Court of Tasmania, this Tribunal has no inherent jurisdiction to determine the validity of the Respondent’s demand for repayment of the recognition payment under s 48 (2) (b) of the Act.

59. For these reasons, I am satisfied that the relevant demand is not an administratively reviewable decision for the purposes of s 51 of the Act and that this Tribunal lacks jurisdiction to determine the current application.

Determination

60. The Respondent’s application to dismiss the application for administrative review is upheld.

Order

61. The application is dismissed.

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: 19 August 2016