CJX v Commissioner of Victims Rights

[2016] NSWCATAD 180

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CJX v Commissioner of Victims Rights [2016] NSWCATAD 180
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):	1610021
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 “CJX”) 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 20 May 2010, 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 sexual assaults that were perpetrated by a named offender over a period of time from 1 January 1967 to 31 January 1967, while the Applicant was an inmate at Parramatta Girls Training School. The alleged offender was subsequently appointed as the Deputy Superintendent of that facility. She claimed compensation for compensable injury of “sexual assault”.

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 and she was terrified of the offender.

6. 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

7. 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”).

8. 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.

9. 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.

Determination by the Respondent

10. In any event, on 1 July 2014, the Respondent initially determined the application under the Act, and found that an act of violence was established on the balance of probabilities, being a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts, and that the applicant was eligible for a Category B recognition payment in the sum of $10,000. The Assessor noted that the medical evidence established that the Applicant suffered chronic post-traumatic stress disorder, a recurrent major depressive disorder and personality disorders as a result of the acts of violence and determined that there were no factors upon which to refuse to approve the giving of victims support or for reducing the amount of support under s 44 of the Act. I note that the approved amount of victims support was paid to the Applicant.

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 Respondent approved on 1 July 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 16 October 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 NSW Department of Family and Community Services (“FaCS”).

The sum of money and the apology relate to the sexual abuse that (the Applicant) suffered at Parramatta Girls Training School. This is substantially the same factual foundation upon which (the Applicant) received a Category B recognition payment of $10,000.

The settlement involved no court proceedings and the settlement sum exceeded the quantum of the recognition payment. We note that as s 55 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 s 48 (2) (b).

We ask the Commissioner to take into account the following considerations:

1. 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 s 48 (4) in relation to the recovery of recognition payments.

2. As the Act gives the Commissioner the option but not the obligation to make a demand, serious weight should be given to relevant policies. The State’s policy position with respect to victims of institutional abuse includes the offer of compensation and formal apologies through FaCS, the offer of unlimited counselling through Victims Services, and the establishment of a memorial for people like (the Applicant) who were abused at Parramatta Girls’ Training School. We respectfully submit that it would be inconsistent with the overall policy of recognising the abuse suffered by (the Applicant) and others at Parramatta Girls’ Training School to demand the return of this recognition payment.

In view of these considerations we ask that the Commissioner make a decision not to require the return of (the Applicant’s) recognition payment.

As this decision has implications for a policy that is being implemented through both FaCS and through Victims Services, we suggest that this is a decision that would benefit from discussion with the Commissioner’s counterparts at FaCS….

We ask that the Commissioner notify us of her decision within 28 days of the date of this letter.

15. On 30 October 2015, the Respondent responded to the Applicant’s Solicitors’ letter dated 16 October 2015, and stated (relevantly):

…Thank you for giving notice that (the Applicant) has received a sum of money as the result of an un-litigated claim. I also note correspondence from Gadens Lawyers to Victims Services dated 22 October 2015 to the same effect. I further note your advice that the factual basis upon which the claim settled is substantially the same as 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 $10,000 under section 48 (2) (b) of the Act. Repayment may be made by cheque made out to the Department of Justice and posted to Victims Services.

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 by the Department of Justice which would prevent the course 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 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…

16. On 5 November 2015, the Applicant’s Solicitors made further submissions to the Respondent, as follows (relevantly):

We dispute that the approval of victims support took ‘into account the injuries, expenses and losses’ arising from the relevant act of violence. Referring to clause 8 (2) (c) of the Victims Rights and Support Regulation 2013, no amount of financial assistance was paid for the treatment of injuries resulting from the act of violence; referring to clause 8 (1) and (2) (d) & (e) no amount of financial assistance was paid for expenses resulting from the act of violence; and referring to clause 8 (2) (a) & (b) no amount of financial assistance was paid for losses resulting from the act of violence.

While the approval of victims support can include both financial assistance and a recognition payment, in this case only a recognition payment was approved. The recognition payment takes into account the act of violence to determine what amount should be awarded, unlike an award of financial assistance which would directly take into account the nature and severity of the injuries and the costs resulting from them. That the recognition payment does not take into account the injury is supported by the second reading speech for the Victims Rights and Support Act 2013:

But instead of the lump sum being determined according to what is known under the existing legislation as a “schedule of compensable injuries – that is compensation for specific injuries to particular parts of the body – under the new scheme the payment will be related to the nature of the violent act.

The power to make a demand under s 48 (2) requires a finding that the approval of victims support included a sum for a specific injury, expense or loss arising 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 that 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 sufficiently 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 hearings 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, we 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 this decision.

Referring to s 51 (2) of the 2013 Act, (the Applicant) has been aggrieved by the purported execution of the terms of the Commissioner’s decision with respect to (the Applicant’s) recognition payment. We note that in general most applications for administrative review are lodged with 28 days of receiving notice of the terms of the determination of the victims support application. However, it was not apparent at that time that (the Applicant) would be aggrieved by the Commissioner’s decision. After reviewing the authorities, the full court in Llewellyn v Clyde Group Inc [2008] TASSC 25 held that it is generally sufficient that a party has become aggrieved by a decision at the time that the application for review is lodged, and that this position is not detracted from by the existence of default time limits for lodging review applications.

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

17. 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 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 in 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 injuries sustained by your client were taken into account when the assessor found 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 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…

18. In the current application the Applicant seeks 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

19. 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.

20. 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.

21. 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

22. 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.

23. 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.

24. 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… 

25. 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.

26. 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.

27. 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, this 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 under cl 5 of sch 2 of the Act (as it was not finally determined by 7 May 2013).

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. In this case, the application for compensation was determined on 1 July 2014 as if it was an application for victims support, 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.

34. I note that the Respondent further submitted (see paragraph 47 of the written submissions) that this Tribunal’s administrative review jurisdiction under s 51 (2) of the Act “…was properly invoked and exercised when the Applicant applied to the tribunal on 24 June 2014 for review of the decision to refuse the applicant’s application for victims support.” It also submitted that this Tribunal’s administrative review jurisdiction expired when it determined that application. However, this paragraph appears to refer to the matter of BLR v Commissioner for Victims Rights (File no. 1610021), which was heard at the same time as this matter. I note that the Applicant in this matter did not apply for administrative review of the Respondent’s decision as an approval of victims support was issued on 1 July 2014.

Applicant’s Submissions

35. The Applicant submitted that the Tribunal’s administrative review jurisdiction continued after the Respondent’s determination of the application for compensation on 1 July 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”).

36. 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…

37. 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.

38. 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…

39. 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.

40. The Applicant submitted that if the Tribunal did not have jurisdiction to review the Commissioner’s attempts to recoup recognition payments from victims then, by way of the “restitution” provisions of Part 5 of the 2013 Act, convicted criminals (whose acts of violence are the subject of recognition payments to victims) would have greater rights and easier access to justice under the Victims Rights and Support Act 2013 than victims. She also stated (relevantly):

22. The Administrative Decisions Review Act 1997 (“the ADRA 1997”) is of assistance here as the terms of the provisions of s51 of the 2013 Act demonstrate clearly that Parliament intended the 2013 Act to operate cooperatively and harmoniously with the ADRA 1997. Therefore, it would not mislead to draw on the ADRA’s definition of decision to find that a ‘decision’ includes any conditions imposed by the decision maker (s 6 (1) (d)). Much the same as s 5(d) of the CAT Act).

23. In this matter the Commissioner purports to rely on a condition that she imposed as part of her decision with respect to the application for a recognition payment. The applicant, due to a change in her circumstances, has now become aggrieved by the Commissioner’s purported exercise of that condition. The very nature of the s 48(2)(b) condition is that it might come to affect the applicant’s interests sometime after the making of the decision (otherwise s44(4) of the 2013 Act, as it relates to benefits received from other sources, would be superfluous). It is therefore correct and highly preferable to extend time to give full effect to s51 of the 2013 Act and the ADRA 1997.

24. The correspondence referred to above whereby the Commissioner gave further consideration to her interpretation of the effect of the condition might be considered to satisfy any ‘internal review’ requirements of s55(3) of the ADRA 1997. And in any case, referring to s55(4)(b), it is necessary for the Tribunal to review the correct and preferable effect of the condition ‘in order to protect the applicant’s interests’.

Preliminary View and Further Directions

41. 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.

42. 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

43. 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.

44. 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.

45. 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

46. 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.

47. 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 sexual abuse that she suffered at Parramatta Girls Training School in 1967. Her solicitors described the facts in relation to which those monies were received and submitted that arose from essentially the same facts as 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.

48. 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.

49. 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.

50. 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".

51. 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 the Respondent on 1 July 2014, when it determined the application for compensation in favour of the Applicant.

52. I accept the Respondent’s submissions that its determination of the application for compensation on 1 July 2014, resolved or brought to an end that application for compensation and that as the Applicant is not aggrieved by that particular decision, this Tribunal lacks jurisdiction under s 51 of the Act to determine the current application.

53. 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.

54. 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 Respondent’s determination on 1 July 2014.

55. I also note that 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 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

56. With respect to the Applicant, there is no evidence before me that satisfies any of the 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.

57. In any event, 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 that 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