CEL v Commissioner of Victims Rights

[2016] NSWCATAD 83

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CEL v Commissioner of Victims Rights [2016] NSWCATAD 83
Hearing dates:	24 March 2016
Date of orders:	04 May 2016
Decision date:	04 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The respondent’s application for the proceedings to be dismissed for want of jurisdiction is refused.
Catchwords:	Administrative Review – Statutory interpretation - Jurisdiction to determine application for administrative review – Whether Regulation operates to extinguish a right to request a review that accrued prior to the commencement of the Regulation
Legislation Cited:	Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 Interpretation Act 1987 (NSW) Interpretation Act 1991 (Cth) Administrative Decisions Review Act 1997
Cases Cited:	Esber v Commonwealth (1992) 174 CLR 430 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Fleming v White [1981] 2 NSWLR 719 Elena Harvey and Victims Compensation Tribunal & Anor [2001] NSWSC 604 ADCO Constructions Pty Limited v Goudappel [2014] HCA 18; (2014) 254 CLR 1 Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223 Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185; 60 NSWLR 310
Texts Cited:	Statutory Interpretation in Australia (8th Edition, Pearce and Geddes)
Category:	Principal judgment
Parties:	CEL (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Womens Legal Services NSW (Applicant) Victims Services (Respondent)
File Number(s):	1510588
Publication restriction:	A Non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

1. These proceedings relate to an application for administrative review of a decision made by a delegate of the Respondent in relation to an application for victims compensation that was lodged by the applicant (known by the pseudonym ‘CEL’).

2. This decision is concerned with the preliminary question of whether this Tribunal has jurisdiction to determine the application for administrative review following the commencement of the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (NSW). A separate decision will be published in relation to the substantive claim.

Background

3. On 17 April 2011, CEL lodged an application for compensation with the Respondent (“the Commissioner”) under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”). She alleged that she was the primary victim of an act of violence, in the nature of a sexual assault that occurred on 30 August 2007 at a Caravan Park/Motel in Sussex Inlet, NSW. She declared that she reported the matter to NSW Police that same day and she named the alleged perpetrator. She claimed compensation for the compensable injury of ‘sexual assault’.

4. CEL was legally represented in relation to her initial application by Messrs Kelly, Mullard & White Solicitors. She was then assisted by Legal Aid NSW in relation to her application for internal review and she is legally represented by Women’s Legal Services NSW in relation to the current proceedings.

5. The application for compensation was lodged out of time. The applicant’s solicitors applied for leave to lodge the application out of time and the Respondent granted that leave on 19 April 2011.

6. On 21 April 2011 the Respondent approved 10 hours of counselling for CEL.

7. On 7 May 2013 the New South Wales Government introduced the Bill 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 new Act”).

8. On 5 September 2014 the Respondent advised CEL’s solicitors that the application for compensation would be treated as if it was an application for victims support under the new Act and that the new Act made no provision for compensation for ‘compensable injuries’. The Respondent requested them to make submissions regarding the appropriate category of recognition payment and to lodge any medical evidence and evidence of disbursements before 26 September 2014.

9. On 17 September 2014 CEL’s solicitors advised the Respondent that they did not have any medical reports to lodge in support of the Application. However, they stated that CEL relied upon the report that was issued to the Respondent by the approved Counsellor.

10. On 9 December 2014 the application for compensation was considered and determined by an Assessor (Client Claims). The Assessor issued a Notice of Decision that indicates that in determining the application they relied upon cl 4 and cl 5 of Sch 2 of the new Act, which effectively provide that from and after 7 May 2013 applications that were lodged under the old Act, but not finally determined by that date, should be determined as if they were lodged under the new Act.

11. The Assessor decided that the available evidence did not establish on the balance of probabilities that the applicant was the primary victim of an act of violence (pursuant to s 19 and s 20 of the new Act) and dismissed the application. In making that decision the Assessor:

1. Determined that the Police COPS Event report did not specifically mention the act of violence that was the subject of the application, although CEL had reported alleged incidents of indecent assault upon her by the alleged perpetrator on or about 25 September 2007 and 1 October 2007. However, those alleged acts of violence were not alleged in the application;

2. Determined that CEL had not lodged any medical evidence that established that she had suffered an injury as a result of an act of violence (as defined by s 18 of the new Act); and

3. Stated that although the Respondent approved 10 hours of counselling for CEL on 19 April 2011, the Respondent’s records indicate that CEL did not attend that counselling and there was no report from the counsellor in the file.

12. The Commissioner posted the Notice of Decision to CEL’s solicitors on 11 December 2014.

13. On 19 December 2014 CEL wrote to the Respondent and advised that she ‘wished to appeal’ her claim and she submitted medical evidence in support of ‘the appeal’.

14. However, I note that the medical evidence that CEL submitted primarily related to treatment that she received for a pregnancy in 2009 and the subsequent premature delivery of a stillborn child.

15. On 28 January 2015 the Senior Assessor issued a Notice of Review Decision (Deferral), and deferred the determination of the ‘application for a recognition payment’ for a period of two months. This was to allow Victims Services to obtain an update from the Local Area Command regarding their investigation of the applicant’s complaint, given that the evidence indicated that the applicant was seeking to relocate due to an alleged sexual assault some two years she made a report to Police in October 2007 and to obtain the Police COPS Event report (number provided) regarding a complaint that the applicant made in April 2007.

16. The Respondent sent the Notice of Review Decision (Deferral) to the applicant by post, but there is no evidence before me as to when that document and the Respondent’s covering letter were actually posted. However, on 23 February 2015 those documents were returned to the Respondent by Australia Post and I note that the envelope was marked “Return to Sender”.

17. On 4 March 2015 the Respondent succeeded in contacting the applicant by telephone and ascertained that she had moved. The applicant provided her new postal address and the Respondent sent the Notice and a covering letter dated 9 March 2015 to her by post. However, there is no evidence before me as to when those documents were actually posted.

18. On 24 March 2016, Legal Aid NSW wrote to the Respondent and advised that the applicant had requested their assistance in relation to the internal review of the Assessor’s decision. They requested that determination of the internal review be deferred and sought copies of documents in the file.

19. The Respondent provided Legal Aid NSW with most of the requested documents under cover of a letter dated 25 March 2015. However, the Respondent stated that un-vetted copies of NSW Police reports could not be copied and advised Legal Aid NSW to either request a vetted copy from NSW Police or to request a copy of the Police file under GIPA. The Respondent stated that there were no reports from any Victims Services approved counsellors in the file, but confirmed that “up to ten hours of counselling was approved” and that this “remained to be utilised” by the applicant. The request to defer determination of the internal review was granted.

20. On 14 April 2015, Legal Aid NSW requested further deferral of the determination for internal review as they had arranged for the applicant ‘to return to see her former counsellor for the purpose of obtaining medical evidence that was required for the claim’. The Respondent granted that request on 15 April 2015.

21. On 4 June 2015, Legal Aid NSW sought a further deferral on the basis that the counsellor’s report had been completed, but that it was awaiting approval by her superiors (within the Area Health Service). This request was referred to the Senior Assessor for consideration and on 27 July 2015 the Senior Assessor issued a Notice of Deferral of Review Decision. This allowed the applicant a final deferral of the internal review to enable her legal representatives to provide the medical evidence referred to in their letter dated 4 June 2015. The Senior Assessor stated (relevantly):

3. Given though that a period of 7 weeks has now elapsed from the time of the last request for deferment and the report is not before me presently, I consider it appropriate to allow a ‘formal’ further deferment, only for a period of 2 weeks, to enable the outstanding report to be provided.

Conclusion

4. The matter should be relisted back before me in a fortnight’s time. (CEL) and her legal representative are advised that the matter will be determined on the next occasion it is before me.

22. The Commissioner sent the Notice of Deferral to Legal Aid NSW by express post on 28 July 2015.

23. On 14 August 2015, Legal Aid NSW lodged the counsellor’s report with the Respondent and made submissions to the effect that the report corroborated the applicant’s allegations of assaults upon her by the alleged perpetrator and that while the Area Health Service redacted the perpetrator’s name, the redacted name was that of the perpetrator named in the application. They also submitted that the applicant’s presentation to the counselling service was consistent with her being the victim of sexual assault and that the psychologist’s opinion was evidence of injury as a direct result of the act of violence and that she suffered ongoing psychological symptoms including fear, anxiety and anger.

24. On 26 August 2015 the Senior Assessor issued a Notice of Review Decision and determined that the available evidence did not establish on the balance of probabilities that the applicant was the primary victim of an act of violence pursuant to s 19 and s 20 of the new Act. The application for victims support was dismissed and the Senior Assessor advised the applicant of her right to apply to this Tribunal for an administrative review of that decision under s 51 of the new Act.

25. The Commissioner sent the Notice of Review Decision to Legal Aid NSW by post on 1 September 2015.

Application for Administrative Review

26. 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.

27. On 24 September 2015 CEL’s current Solicitors lodged the Application for Administrative Review with this Tribunal. This asserts that the applicant received the Review Decision on 4 September 2015 and it set out the following grounds:

1. The decision maker erred in dismissing the claim for failing to prove an act of violence that took place on 30 August 2007.

2. The decision maker erred in failing to find act of violence despite evidence of a series of acts of violence perpetrated by the same offender against the Applicant on other dates in 2007.

3. The decision maker erred in giving too much weight to the failure by police to investigate the offences.

4. The decision maker erred in not interpreting the Act as beneficial legislation.

Dispute in relation to Jurisdiction

28. On 1 December 2015 the Commissioner disputed that this Tribunal has jurisdiction to determine the current application.

29. Both parties lodged written submissions in relation to the jurisdiction and powers of this Tribunal and their legal representatives also made oral submissions at the hearing of this matter on 24 March 2016.

Respondent’s Initial Submissions

30. The Respondent’s initial written submissions were lodged on 1 December 2015 and I have summarised them as follows.

• Cl 5 of Sched 2 of the new Act sets out a process for determining a person’s entitlement to counselling, a recognition payment and special grant. However, on 1 September 2015, the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (“the amending Regulation”) commenced and it created Div 3 of Pt 5 of the Victims Rights and Support Regulation 2013 (“the Regs”). This sets out a process for determining a person’s entitlement to statutory compensation by way of reassessment under the old Act.

• As a result, a subset of people whose applications for statutory compensation that were lodged but not finally determined under the old Act before the date on which the Bill for the new Act was introduced to Parliament may apply to have their application reassessed under the old Act (cl 19(1) and cl 19(3) of the amending Regulation).

• There is an overlap between the arrangements regarding the assessment of transitional claims under the new Act and the reassessment of transitional claims under the amending Regulation and that the scope of this Tribunal’s powers depends on how it construes the operation of those two sets of arrangements. These were not intended to operate in parallel, but rather it was intended that the reassessment arrangements under the amending Regulation were intended to replace the arrangements under the new Act. This ‘has an impact’ upon this Tribunal’s power to continue to deal with applications for administrative review in relation to decisions made in respect of transitional claims.

• Support for this construction is found in the text of cl 18(1) of the amending Regulation, which provides:

18 Operation of Division

(1) The provisions of this Division have effect despite any provision of Part 2 of Schedule 2 to the [new Act].

(2) An application cannot be dealt with under clause 5 of that Schedule or clause 15 of this Regulation after the commencement of this Division.

• The Respondent stated (relevantly):

8. Clause 18 rests under Pt 5 of the Regs, which is titled “Savings and transitional provisions”. It is expressed as having “effect despite any provision of Pt 2 of Sched 2 to the new Act, which is similarly titled “Savings, transitional and other provisions”. The amending Reg refers to the savings and transitional regulation-making power under cl 1 of Sched 2 to the new Act. The word “application” in Reg 18(2) is used without qualification. It is wide enough to encompass any application capable of being “dealt with” under cl 5 of Sched 2 to the new Act.

9. The respondent submits that because transitional regulations were made under a regulation-making power with respect to transitional provisions and they were stated to apply despite existing transitional powers, it was intended that the transitional arrangements set out in the regulations replace those set out in cl 5 of Sched 2 o the new Act. Where a matter falls under both sets of arrangements, the reassessment arrangements prevail.

10. Although there is no ambiguity, the construction above is confirmed by reference to the explanatory note to the amending Reg. It says, in part and with emphasis added:

The object of this Regulation is to amend the Victims Rights and Support Regulation 2013 to replace the previous arrangements for dealing with certain transitional claims for statutory compensation under the Victims Rights and Support Act 1996 (the “former Act”) with the following arrangements:

(a) a person who had applied for statutory compensation under the former act… will be able to apply for reassessment of that claim under the former Act…

(b) the scheme for converting any such claim into an application for victims support under the new Act will no longer apply…

• Cl 18 of the amending Regulation impacts upon this Tribunal’s jurisdiction to deal with matters to which cl 5 of Sched 2 to the new Act would otherwise apply. Cl 5 of Sched 2 of the new Act provides (relevantly):

(1)  An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.

(2)  The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both.

(3)  The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund.

(4)  In subclause (3):

prescribed period means:

(a)  the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or

(b)  if the victim concerned was a child when the relevant act of violence was committed—within 2 years after the child reaches 18 years of age.

(5)  Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act.

• The Administrative Decisions Review Act 1997 (the ADR Act) provides, in part:

7 Meaning of “administratively reviewable decision”

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

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 or 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.

• S 51 of the new Act provides:

51 Application 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 respondent 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 respondent 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 respondent.

31. The Respondent submitted, in effect, that this Tribunal’s jurisdiction to conduct an administrative review of an administratively reviewable decision under s 51 of the new Act is dependent upon the operation of cl 5 of Sched 2 to the new Act, as this provided the mechanism for dealing with an application for statutory compensation under the old Act as if was an application for victims support under the new Act. However, as cl 18 of the amending Regulation expressly states that after 1 September 2015 such an application cannot be “dealt with” as if it was an application for victims support under the new Act, the applicant has no right to apply to this Tribunal for administrative review under s 51 of the new Act. It asserted that any other result would allow the original arrangements and reassessment arrangements to operate in parallel, which is contrary to the purpose or object of the amending Regulation.

32. The Respondent also submitted that even if the Tribunal found that it has jurisdiction to conduct an administrative review of its decision, our powers are set out in s 63 of the ADR Act, which provides:

63   Determination of administrative review by Tribunal

(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.

33. The Respondent concluded that this Tribunal is unable to exercise power in relation to the current application for administrative review under s 63 of the ADR Act because we cannot deal with the application as if it was an application for victims support under cl 5 of Sched 2 of the new Act.

Applicant’s Initial Submissions

34. On 12 February 2016, the applicant’s solicitors lodged their initial submissions on jurisdiction and powers and asserted that this Tribunal has jurisdiction to hear and determine the Application for Administrative Review. I have summarised these as follows:

• As at 26 August 2015, when the Senior Assessor dismissed the application for compensation following an internal review, the applicant had an accrued or acquired right to apply to this Tribunal for an administrative review of that decision.

• The intention of the amending Regulation is to provide eligible applicants with the opportunity to have their claim for victims compensation re-assessed under the old Act. Therefore, the amending Regulation is beneficial in nature and it should be interpreted beneficially.

• Section 30(1) of the Interpretation Act 1987 (NSW) (“the Interpretation Act”) provides:

30   Effect of amendment or repeal of Acts and statutory rules

(1)  The amendment or repeal of an Act or statutory rule does not:

(a)  revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b)  affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c)  affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d)  affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e)  affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

• In Esber v Commonwealth (1992) 174 CLR 430 (“Esber”), the High Court of Australia considered whether an appellant, who had lodged a request for review of a decision, had a right to have the review determined despite the fact that after lodging the review but before the hearing by the Tribunal, the relevant Act was repealed. The Court applied s 8 of the Acts Interpretation Act 1901 (Cth), which mirrors the Interpretation Act, and held that in the absence of a clear intention to remove a right, s 8 operates to protect anything that may truly be described as a right, even though that right might be a contingent or inchoate right. Accordingly, the Court found that the application for review was not affected by the repeal of the relevant Act.

• By applying s 30(1) of the Interpretation Act and the principles in Esber to the current application for administrative review, this Tribunal should be satisfied that we have the power to hear and determine it.

• Cl 18 of the amending Regulation makes no provision for retrospectivity and its legislative intent is not to exclude the applicant from her accrued right of review, but rather to provide those who applied for compensation under the old Act with the opportunity to have their claim reassessed under the old Act. By doing so it cured a mischief that resulted from the commencement of the new Act.

• In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”) Brennan CJ held:

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".

• By applying the principles of Project Blue Sky to the current matter, the intent of the amending Regulation should take precedence, particularly if a conflict arises by virtue of drafting. The applicant referred to and relied upon Statutory Interpretation Australia (8th Edition Pearce and Geddes) (at page 28), which provides:

Remedial or Beneficial Acts

The Courts have adopted the broad approach that where an Act is curing some ‘mischief’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit.

• Case law has established that both the old Act and the new Act are beneficial legislation and they should therefore be interpreted liberally and beneficially. The applicant referred to and relied upon the decisions in Fleming v White [1981] 2 NSWLR 719 at [722]) and Elena Harvey and Victims Compensation Tribunal & Anor [2001] NSWSC 604 (Dowd J).

Respondent’s Submissions in Reply

35. On 8 March 2016 the Respondent lodged Submissions in response to those lodged by the applicant. I have summarised these as follows:

• The respondent conceded that when the internal review decision was made on 26 August 2015, the applicant had a right to make an application for administrative review of that decision and that the right to apply for administrative review may “truly be described as a right” to which s 30 of the Interpretation Act 1987 applies (see: Esber).

• However, the presumption in s 30 of the Interpretation Act that the amendment of a legislative instrument does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the legislative instrument may be displaced by a contrary intention (see: Attorney General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485; and Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223.

• Section 5(2) of the Interpretation Act 1987 provides:

This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

• In ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 (ADCO), the High Court construed provisions of delegated legislation said to interfere with existing rights. French CJ, Crennan, Kiefel and Keane JJ rejected an argument that it is for the party asserting that accrued rights have been adversely impacted to search for express text that displays an intention to impact on accrued rights. Their Honours said, at 15-16:

…The appropriate enquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.

• The respondent conceded that the new Act and the amending Regulation are beneficial and remedial in nature. However, the essential question is the meaning of the relevant words used in the legislation (see: Victims Compensation Fund Corporation v GM & 5 Ors [2004] NSWCA 185; 60 NSWLR 310 at 332 per McColl JA, with whom Mason P and Ipp JA agreed).

• The Respondent maintains that the text of cl 18(2) of the Regulation is clear and that it prevents an application from being dealt with under cl 5 of Sched 2 of the new Act or cl 15 of the Victims Rights and Support Regulation 2013 after 1 September 2015. To the extent that a right to deal with an application under those provisions is presumed to have accrued under s 30 of the Interpretation Act, the words of cl 18(2) of the amending Regulation demonstrate an intention to the contrary, namely that those rights are affected.

• Finally, the respondent agrees that the purpose of the amending regulation is to provide a facility for the beneficial reassessment of certain claims for statutory compensation, but it maintained that the transitional arrangements introduced by the amending Regulation were not intended to run in parallel to the existing transitional arrangements.

Applicant’s Further Submissions

36. On 23 March 2016 the applicant’s solicitors lodged further Submissions in reply to the Respondent’s submissions. I have summarised these as follows:

• The interpretation proffered by the Respondent would remove entirely the plain operation and effect of section 30 of the Interpretation Act and the Tribunal cannot accept this as being the correct interpretation of the amending Regulation.

• The amended Regulation is delegated legislation and cannot override or conflict with either the new Act or the Interpretation Act.

• S 33 of the Interpretation Act provides that regard must be had to the purposes or objects of the Act and statutory rules and these must be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act, is plain. The interpretation that would best achieve the legislative purpose or object must be chosen.

• In Statutory Interpretation in Australia (8th Edition Pearce and Geddes), the object and purpose is addressed at page 43:

When the purpose or object is brought into account, an alternative interpretation of the words may become apparent. And if one interpretation does not promote the purpose of object of an Act and another interpretation does so, then the latter interpretation must be adopted.

• The purpose of the amending Regulation is to provide for the reassessment of claims that were lodged under the old Act but which had not been finally determined before 7 May 2013 (when the Bill for the new Act was introduced to Parliament). These claims, which are referred to as “transitional claims”, were caught by the retrospective effect of the new Act. As a result, applicants were entitled to much lower compensation than the amounts potentially available under the old Act.

• The retrospective effect of the new Act upon transitional claims was not beneficial in nature. However, the amending Regulation provides for a beneficial reassessment of transitional claims.

• However, in relation to this issue, I note that the benefit conferred by cl 19 of the amending Regulation is not available to all transitional claims, but is restricted to those transitional claims that were dealt with as applications for victims support and which were determined in the applicants’ favour.

• The purpose and object is clear from the text of the amending Regulation and also its Explanatory Note.

• The applicant also submitted (relevantly):

…13. The applicant understands that at the time the regulation was introduced on 1 September 2015, Victims Services had determined all transitional claims and so on the face of it, this regulation, being beneficial in its nature and purpose, provided for the reassessment of those claims. However it is clear that not all applications for external review had been finalised at the time the Regulation was introduced.

• However, in relation to this issue, there is no evidence before me as to whether all transitional claims had been determined by the Respondent, either at first instance or upon internal review, as at 1 September 2015.

• If the Tribunal accepted the respondent’s interpretation of cl 18(2) of the amending Regulation, it must be accepted that the drafters intended that applicants who had an accrued right to apply for an administrative review of an administratively reviewable decision would lose that right and would also be denied the opportunity to have their claim reassessed under the old Act pursuant to cl 19 of the amending Regulation. It would also leave the applicant in “a jurisdictional black hole.”

• However, given the object and purpose of the amending Regulation, it is difficult to accept that interpretation and the preferred meaning must be that which results in least detriment to the applicant’s rights.

• S 5 of the Interpretation Act provides that the Interpretation Act applies to the act or Instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. Cl 18(2) of the amending Regulation does not express a contrary intention and it needs to do so in terms and having had regard to the plain preservation of accrued rights in s 30 of the Interpretation Act.

• In addition, the amending Regulation fails to reach the standard of certainty referred to by Dixon CJ in the matter of Maxwell v Murphy (1957) 96 CLR 261 at 267. This decision is quoted with approval a number of times in the matter of ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 at [27] and [50] (“Goudappel”):

“a statute changing the law ought not, unless the intention appears with reasonable certainty to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events.”

• In Goudappel, the High Court held that s 30(1)(c) of the Interpretation Act was displaced by s 5 of that Act because “a contrary intention” was evidenced by the savings and transitional provisions of the Workers Compensation Act 1987 (NSW) (“WCA”) as amended and by the regulation made pursuant to those provisions. It accepted that the WCA’s character reflects a beneficial purpose that requires a beneficial construction in favour of an injured worker. However, the Court also stated:

“…to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially… and

• The Court also held (at [28]):

The appropriate inquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.

• The decision in Goudappel does not assist the Respondent.

Consideration

37. This matter came before me for hearing on 24 March 2015. The applicant was represented by Ms Davis and the respondent was represented by Mr Matulewicz. Both legal representatives made submissions that were based upon and consistent with their written submissions. I have considered those submissions in determining the jurisdictional dispute.

38. There is no dispute that prior to 1 September 2015 the applicant had an accrued or inchoate right to apply to this Tribunal for administrative review of an administratively reviewable decision that was made by the Respondent’s delegate on 26 August 2015. However, the Application for Administrative Review was not lodged with this Tribunal until 24 September 2015.

37. The Respondent submits that as the amending Regulation commenced before the current application for administrative review was lodged, cl 18(2) of the amending Regulation had deleted the mechanism (under cl 5 of Sch 2 of the new Act) for dealing with the application for statutory compensation (which was lodged but not finally determined before 7 May 2013) as if it were an application for victims support under the new Act. As applicant’s right to apply to this Tribunal for an administrative review is dependent upon a decision in relation to a recognition payment, and the application for compensation cannot be dealt with as if it were an application for a recognition payment after 1 September 2015, this Tribunal has no jurisdiction to hear and determine the current application for administrative review.

Accrued Rights

40. The Respondent concedes, and in my view correctly, that the applicant’s right to apply to this Tribunal for administrative review may “truly be described as a right” (see: Esber) to which s 30 of the Interpretation Act 1987 applies.

41. The Applicant submits that in Esber, the High Court applied s 8 of the Acts Interpretation Act 1901 (Cth), which mirrors the Interpretation Act and held that in the absence of a clear intention to remove a right, s 8 operates to protect anything that may truly be described as a right, even though that right might be contingent or inchoate right. As a result, the applicant’s application for administrative review was not affected by the repeal of the relevant Act. Further, cl 18 of the amending Regulation makes no provision for retrospectivity and does not expressly deny or cut off accrued rights. Therefore, pursuant to s 30(1)(c) of the Interpretation Act and the principles expressed in Esber, cl 18 of the 2015 Regulation does not operate to exclude this Tribunal’s jurisdiction to determine the current application for administrative review.

42. The Respondent argues that the words of cl 18(2) clearly demonstrate an intention to affect accrued rights to apply for administrative review under s 51 of the new Act. In considering the intent and purpose of the amending Regulation, I refer to its Explanatory Note, which provides (relevantly):

The object of this Regulation is to amend the Victims Rights and Support Regulation 2013 to replace the previous arrangements for dealing with certain transitional claims for statutory compensation under the Victims Support and Rehabilitation Act 1996 (the former Act) with the following arrangements:

(a) a person who had applied for statutory compensation under the former Act, and whose application was not finally determined before the Bill for the Victims Rights and Support act 2013 (the new Act) was introduced into Parliament, will be able to apply for reassessment of that claim under the former Act not later than 1 September 2016,

(b) the scheme for converting any such claim into an application for victim support under the new Act will no longer apply,

…

(g) the only appeal against a decision on a reassessment application will be an internal review by the Commissioner of Victims Rights and the review provisions of the former Act will not apply,

…

This Regulation is made under the Victims Rights and Support Act 2013, including sections 16(f) and 117 (the general regulation-making power) and clause 1 of Schedule 2.

43. Paragraph (a) of the explanatory note clearly states the intention to confer a benefit upon those applicants who applied for statutory compensation under the old Act but whose claims were not finally determined before 7 May 2013 and were subsequently dealt with as if they were applications for victims support under the new Act. That benefit is the right to apply for the reassessment of their application under the compensation scheme provided for in the old Act.

44. However, I note that cl 19(3) of the amending Regulation restricts this benefit to applicants whose applications were determined in their favour, except where the ground for dismissal was that the applicant was a family or secondary victim who was not entitled to a recognition payment under the new Act.

45. I note that subject to administrative review of the respondent’s decision following internal review, cl 19(3) of the 2015 Regulation appears to make the applicant ineligible to apply for the reassessment of her application for compensation under the old Act. However, I am not concerned with whether or not she is eligible to apply for reassessment in due course, but rather whether her accrued right to apply for an administrative review of the Respondent’s decision is removed by cl 18 of the amending Regulation.

46. The 2015 Regulation does not expressly provide for the removal of an applicant’s accrued right to apply this Tribunal for an administrative review of an administratively reviewable decision under s 51 of the new Act. In fact, it makes no reference to the administrative review of decisions other than in relation to an application for statutory compensation that has been reassessed by the Respondent under the old Act.

47. In relation to those matters, I note that para (g) of the Explanatory Note provides:

the only apply against a decision on a reassessment application will be an internal review by the Commissioner of Victims Rights and the review provisions of the Act will not apply.

48. This intention is expressly reflected in cl 27 of the amending Regulation, which provides:

27 Reviews of Determinations

Section 49 of the new Act (other than section 49(5)(c)) applies to a person who makes a reassessment application in the same way as it applies to a person who is an applicant for victims support.

49. In my view, if it was the intention of the legislature to remove the applicant’s right to apply to this Tribunal for an administrative review of an administratively reviewable decision under s 51 of the new Act, which right accrued prior to the commencement of the amending Regulation on 1 September 2015, the regulation should have expressly provided for the removal of that accrued right. However, it did not do so and I am not satisfied that this was the intention of the legislature.

50. I take notice of the fact that the Respondent wrote to the applicant’s solicitors following the commencement of the new Act, and advised them that the application would be dealt with as if it was an application for victims support under the new Act.

51. Cl 19(1) of the amending Regulation provides:

A person whose application for statutory compensation was lodged, but not finally determined, under the repealed Act before the day the bill for the new Act was first introduced into Parliament is eligible to make an application for reassessment of that application under this Division (a reassessment application).

52. However, cl 19(1) does not require a decision to have been made in respect of a transitional claim and all that an eligible applicant is required to do is to provide the Respondent with written notice of their wish to have their application reassessed under the old Act.

53. In applying the principles of interpretation expressed by the High Court in Goudappel to the current matter, I am of the view that by reading cl 18(2) of the amending Regulation in conjunction with and in the context of cl 19(1) of that Regulation, suggests that the intention of the amending Regulation was to make provision for the streamlined assessment of transitional applications that were not finally determined under the new Act before 1 September 2015 and in respect of which cl 19(1) conferred a right upon an applicant to apply for reassessment under the old Act.

54. I am not satisfied that the intention of the legislature was to remove the applicant’s accrued right to apply for an administrative review of an administratively reviewable decision under s 51 of the new Act in respect of a transitional application that was finally determined before 1 September 2015.

55. It follows that I am satisfied that s 30(1)(c) of the Interpretation Act applies to this matter and that cl 18(2) of the amending Regulation does not affect the applicant’s right to apply to this Tribunal for an administrative review of the administratively reviewable decision of the Respondent under s 51 of the new Act.

56. Accordingly, I am satisfied that this Tribunal has jurisdiction to determine the current Application for Administrative Review.

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: 04 May 2016