Crimes Compensation Tribunal of Victoria v Lane
[1998] VSC 145
•20 November 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No.4818 of 1998
| CRIMES COMPENSATION TRIBUNAL | Appellant |
| OF VICTORIA | |
| v | |
| WARREN LANE | Respondent |
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| JUDGE: | Smith, J. |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 October 1998 |
| CASE MAY BE CITED AS: | Crimes Compensation Tribunal of Victoria v. Warren Lane |
| DATE OF JUDGMENT: | 20 November 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 145 |
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Crime - Compensation - Power to make interim award - Variation of award.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T.J. Ginnane | Victoria Government Solicitor |
| For the Respondent | Mr M.J. Garnham | Slater & Gordon |
HIS HONOUR:
The Appeal
This is an appeal brought by the Crimes Compensation Tribunal of Victoria (CCT) under s.52 (1) of the Administrative Appeals Tribunal Act 1984 against a decision of the Administrative Appeals Tribunal of Victoria (AAT) made on 20 February 1998. By that decision the AAT set aside the orders made by the CCT on 4 February 1997 and ordered that the CCT pay $5,716.00 to Warren Lane, the respondent to this appeal, pursuant to s.15 of the Criminal Injuries Compensation Act as expenses actually and reasonably occurred and that the CCT pay Mr Lane costs on County Court scale.
Background
On 30 May 1988 Mr Lane was the victim of a criminal assault following a football match. He alleged he suffered injuries as a result of the assault. On 6 April 1989 he filed an application for compensation. He asserted that he had been punched “straight in the mouth”. He stated that the injuries he received were “injuries to mouth and teeth - one tooth fell out - many in front were loose".
On 11 December 1989 the application came on for hearing before the CCT. The CCT found that the respondent was a victim of crime within the meaning of the legislation (the perpetrator having been found guilty of unlawful assault) and that he had suffered injuries. It published an "Award of Compensation" stating that the respondent was entitled to compensation for the following items:
(a) pain and suffering, $1,500.00 (b) expenses actually and reasonably incurred as a result of the injury or death, $353.20. The "Award of Compensation" contained a heading “Terms and Conditions". Under that heading was recorded “future expenses reserved”. It also provided for costs to be awarded in the sum of $525.00, covering legal costs and disbursements.
On 10 April 1990 Mr Lane’s solicitors, Slater and Gordon wrote to the CCT seeking clarification of the reference to “future expenses reserved”. They stated
“An Award was made and terms and conditions of this Award that (sic) future expenses be reserved. We should be pleased if the Tribunal would confirm the actual meaning of these conditions i.e. will expenses be paid upon the receipt of accounts or is the Applicant to pay for treatment himself and then provide the tribunal with receipts.”
On 2 July 1990 the CCT replied to Slater and Gordon stating
“I ...wish to advise that “future expenses reserved” means that your client can either pay his expenses and then make application to the Tribunal to be reimbursed or your client may produce accounts to the Tribunal and make application for payment of them. Either way the application will be referred back to the Tribunal member who will decide the amount which will be paid or reimbursed by the Tribunal.”
On 13 October 1994 Slater and Gordon wrote to the respondent advising him of his rights. In particular, it was said that the reference "future expenses reserved" meant
“any future expenses incurred by you can be the subject of an application back to the Tribunal who will decide the amount or reimburse you according to the accounts produced by yourself.”
On 6 February 1995, the respondent wrote to the Tribunal asking that the matter be reviewed. In his letter he stated, inter alia,
“Recently I contacted my solicitor and instructed them to make application and was advised that as the six year time frame had expired I was unable to make the application.
At no time was I ever advised of a six year time frame. Also the letter from the Tribunal does not state any time limit.
As can be seen from the attached correspondence from the prosthodontist the matter of teeth has been under specialist advice for some time and if I was aware of a time limit, application would have been made much sooner.
I believe the Tribunal is at fault for not notifying me of the time limit I would ask this matter be reviewed particularly as it is only a few months past the limit.”
On 28 February 1995 the CCT wrote to the respondent. It set out the requirements of s.25(2) of the Act namely
“The Tribunal shall not make an order for variation if the application for variation is made more than six years after the day of injury or injury causing death.”
The letter asserted that the Tribunal was under no obligation to notify the applicant of the provisions of the legislation and suggested that he contact his solicitors. The applicant wrote again to the Tribunal in the same terms on 28 February 1995 and received a similar letter in response on 27 March 1995.
On 19 June 1996 Alice Angelatos and Co, Solicitors, wrote to the CCT advising it that they acted for Mr Lane. They set out Mr Lane's case for the Tribunal to re-consider the matter. On 21 June 1996, the CCT wrote to Alice Angelatos and Co advising that the matter of further variation had been referred to a Tribunal member. It stated that unfortunately the matter could not be reconsidered because the Tribunal had no discretion "to vary an award more than six years after the date of injury". On 11 December 1996, Slater and Gordon wrote to the CCT requesting that the matter be listed to put oral submissions "seeking a quantification of the award made on 2 July 1990".
The matter came on for hearing on 4 February 1997 before the CCT. Submissions were made by counsel representing Mr Lane. Material was placed before the Tribunal in the form of reports. Counsel for Mr Lane submitted that no decision had been made in relation to the expenses put forward, that expenses had been reserved and that therefore s.25(2) of the Act had no application. He submitted further that given the evidence before the Tribunal at the original hearing, the Tribunal must have anticipated the failure of teeth outside the six year period and intended to cover such exigencies by the reference to “future expenses reserved”. He submitted that the legislation should be construed beneficially.
The CCT ordered that $650 legal costs be paid in relation to the application but refused the “variation application for dental expenses”.
The CCT published its reasons. It noted that
“an award was made on 11 December 1989 in favour of the applicant,
in respect of an injury arising out of an incident on 30 May 1998.”
It further noted that counsel for the applicant submitted that the words “future expenses reserved” recorded in the award had the affect that the application had not been finalised and was part heard and, therefore, it was not necessary to apply for a variation of the award under s.25 of the Act. The applicant, it was said, was merely seeking “quantification of the award”. The CCT then noted:
“It is common practice of the Tribunal to reserve future expenses when an award is made. In such circumstances it is accepted that the award is a final decision, and the addition of a clause reserving future expenses is an acknowledgement that the applicant may seek a variation of the awards at some future time, but not longer than six years from the date of the injury, in accordance with s.25. Any other interpretation of “future expenses reserved” would render superfluous the provision for variation.”
After referring to some of the facts and the argument advanced for the applicant that the Act, being a beneficial Act, should be interpreted in the applicant's favour so as not to attract s.25 to its application, the CCT commented:
“However, there would seem to be no doubt over the meaning and application of s.25. It applies to any situation where a final award has been made, as in this case, and where future expenses have been reserved, as a separate and additional notation. Therefore there is no discretion to interpret this section liberally in favour of the applicant.”
The AAT Application
The respondent filed an application for review dated 11 February 1997 in the AAT. That matter came on for hearing before the AAT on 20 February 1998. Mr Lane was represented as was the CCT. The AAT heard oral argument. As noted above, at the conclusion of the proceeding, it ordered that the decision be set aside, that the appellant pay the respondent $5,716.00 as expenses actually and reasonably incurred and that the appellant pay the respondents costs on Country Court Scale A. It was noted on the order that
"This is the final determination of all applications for injuries caused
to the applicant by the criminal act."
The AAT reasons
The Administrative Appeals Tribunal gave oral reasons which were recorded on transcript. The Tribunal referred to the history of the matter and the “award” made on 11 January 1990 which included the words “future expenses reserved”. The Tribunal indicated that the difficulty in the application arose because of the interpretation of those words in the “award”. It noted that counsel appearing for the CCT submitted that if the applicant was to receive anything more from the award he would have to bring himself within s.25 and apply for a variation. Counsel further submitted that he could not do that because six years had elapsed since the date of the injury. The Tribunal recorded that there was no dispute that that time had elapsed. It said that counsel for the CCT submitted that the award that had been made was a final determination and the condition was there simply to allow the applicant to make a variation application under Part Five of the Act. The Tribunal noted that counsel for the CCT admitted that that interpretation would render the words in the “award” superfluous. The AAT rejected the submission saying that
“the only sensible interpretation that can be given to these words is that the Tribunal, who in fact made the Award, contemplated that if (sic) within a future time, not necessarily within the six year period, that the applicant may incur future detail expenses. In fact, evidence has been given that it was always considered that the repair which was made to the applicants tooth was only temporary. So it is not surprising under those circumstances that those words should have been inserted by the Tribunal.
I, in fact, interpret those words more as to be that the award which was made in relation to medical expenses was in fact, an interim award and that at a later time the applicant would have leave to come back and apply for a final award and I take it that that is what in fact the applicant is doing now.”
After referring to the question of a “set off” and repeating the view expressed above, the Tribunal commented
“I see this application as a final determination and under those circumstances I intend not only to award the applicant the sum of which was claimed but I intend to make a notation that no future claim should be made for any further expenses and I will make an order accordingly.”
The CCT contended in its amended Notice of Appeal to this court that the
AAT erred in law in
(a) finding that the CCT had on 11 January 1990 made an “interim award” and that the applicant "could have leave to come back and apply for a final award” based on the CCT including the words “future expenses reserved” under the heading "terms and conditions" on the original order;
(b) proceeding on the basis that the AAT was reviewing an application for quantification rather than a refusal of an application for variation;
(c) deciding that the CCT had jurisdiction to make an interim award; and
(d) deciding that the CCT had jurisdiction to reserve for future determination the question of future expenses and thereby to provide it with jurisdiction to make an order in terms of the order made by the AAT.
This Appeal.
In its amended notice of appeal the appellant alleged that the following questions of law arose:
1. Did the CCT have power to make an interim award and to leave the matter, being the respondent's application, part heard?
2.
(a)
Did the CCT have power to reserve for future determination the question of future expenses?
(b) If yes to part (a), did that reservation (i) provide the AAT with jurisdiction or power to make the order under appeal?
(ii) preserve the jurisdiction of the AAT to make the order under appeal?
3. In circumstances where the CCT makes an award of compensation in respect of expenses pursuant to s.15 CICA and notes “Future expenses reserved” has the CCT made a final order in relation to expenses which can be varied only under s.25(2)?
4. What was the legal effect of the inclusion of the words “ Future expenses reserved” under the heading "terms and conditions of an order made by the CCT in relation to an award of compensation for expenses pursuant to s.15 of the CICA?"
Before me, counsel for the CCT referred to s.10 of the Act - the provision relating to adjournments. It provides,
“10. The Tribunal may adjourn consideration of an application for
compensation
(a) ... (b) ... (c) where the Tribunal believes it necessary or convenient to do so “
The CCT submitted that in this instance there was no adjournment of the application. Further, while the CCT, conceded that the Tribunal had power to adjourn the matter there was no such power once, as here, an award was made. Counsel submitted that the phrase “future expenses reserved” should be construed as either reserving liberty to apply in the traditional sense or, as was the view of the CCT itself, an acknowledgement of the right to apply for a variation. Counsel for the CCT accepted that there is always an inherent power to reserve liberty to apply in the traditional sense to enable application to be made in the future to deal with problems arising in the course of administering an award.
The CCT submitted that it lacked the power to reserve the question of future expense or to make any form of interim award and that that should be taken into account in construing the expressions used by it. It submitted that this supported the construction it advanced. To go beyond that construction would be to go beyond the jurisdiction and powers of the CCT and, therefore, the order made should be read down, if necessary, to ensure that it was within jurisdiction and power. The CCT argued that accepting its construction of the phrase “future expenses reserved”, the AAT misdirected itself as to its meaning and, therefore, fell into error.
Asked why there was a need for such a technical and formal approach, counsel submitted that it was desirable that, each time a claim was made for future expenses, it was formally triggered as a variation to ensure that there was a close analysis of the claim and in particular whether the injuries and compensations asserted were related to the crime in question. In my view a formal variation application would not encourage closer scrutiny. In any event, it is not clear why a claim for future expenses would warrant closer scrutiny than any other claim.
Counsel submitted that, in this instance, what had been sought by Mr Lane went beyond what was normally covered by the reservation of liberty to apply. Therefore, the only remedy for the applicant was to seek a variation under s.25. That was the mechanism provided under the Act for dealing with future expenditure . There was no power to make an interim award and once an award was made, future expenditure could be dealt with only by an application for variation on each occasion. If the expenditure was approved, then the variation would increase the amount of the award. The phrase “future expenses reserved” contained in the “award” did not entitle the CCT, and therefore the AAT, to make a further award. The CCT submitted that as, a result, the AAT erred in law by misdirecting itself as to its jurisdiction and power. Thus critical to the position of the CCT is the proposition that the CCT had no power to make an interim award or to award compensation while reserving other matters for future consideration.
Counsel for the CCT, summed up his clients case by submitting that the CCT acted within its power in making the notation in the sense that it was either reserving liberty to apply in the traditional sense or acknowledging the right to apply for variation under s.25. It is put that, therefore, the AAT misconstrued the meaning of “future expenses reserved” when it found that the CCT had effectively reserved the question of compensation for future expenses for determination on a future date. Alternatively, if the notation properly construed was an attempt to preserve for future consideration compensation for future expenses by making such a notation in the award, the appellant, the CCT, submitted that it had been in error in that it did not have the power to do so. Therefore, it is said that the AAT, in turn, misdirected itself as to its jurisdiction or power in proceeding on the basis that the issue of compensation for future expenses had been reserved and could be considered at a future date independently of any application for variation.
I note that this case presents the unusual phenomenon of a statutory authority seeking to limit its powers and arguing, albeit in the alternative, that it was in error.
Counsel for CCT submitted the proper orders in this instance should be
1 Appeal allowed. 2 Decision of AAT of February 1998 set aside. 3 Decision of CCT of 11 February 1997 affirmed.
He indicated that he was instructed not to seek costs. The CCT is treating this matter as a test case.
Counsel for the respondent submitted, firstly, that if the proper construction of the words "future expenses reserved" was that liberty to apply was reserved, the revived application came within the ambit of a reservation of liberty to apply. He drew attention to the fact that when an application is made a number of matters must be proved, including that:
1. the crime was reported to the police in a reasonable time;
2. an application was made within one year of the injury or an extension granted;
3. the injuries related to the crime.
Further, the applicant had to be in a position to address character and credit issues
(s.20).He submitted that in this instance when "future expenses" were reserved, the CCT had accepted that the applicant was a victim of a crime, and the nature of that crime and the nature of the injury suffered as a result. He had satisfied the other requirements as well and thus all that remained was the precise quantification of the expenses incurred and this task came within the scope of "liberty to apply". .
In my view this argument should not be accepted. “Liberty to apply” could operate in respect of an order to conduct an enquiry into damages, perhaps, but what was reserved was portion of the substantive issue in dispute and not some possible issue arising from technical problems in working out the orders made.
Counsel for the respondent, Mr Lane, also submitted in the alternative that it was clear that the words “further expenses reserved” showed that the CCT believed that the applicant was likely to incur further expenses and was, therefore, reserving to the applicant the right to return to have those expenses dealt with. The intention was to leave the matter open until claimed. This in essence was the view of the AAT.
In my view it was the clear intention of the CCT on 11 December 1989 when the original orders were made to reserve for future consideration claims for further expenses. The question to be resolved, therefore, is whether the CCT could award compensation in respect of expenses incurred up to a particular date and reserve for future consideration any claims for future compensation in respect of the same injury.
As noted above, counsel for the CCT submitted that the Act in terms authorised one award only and did not authorise the making of interim awards and that, accepting that the CCT had not reserved liberty to apply or the right to vary, it had in effect attempted to make an interim award. By way of example I was referred to Morrow v. Crowle [1967] SASR 165 at 172-3.
The question of whether there is a power to make orders in the nature of an interim award turns upon the question whether the Act itself limits the power to award compensation to the making of one order for compensation.
The immediately relevant part of the Act is Part 4, “Awards of Compensation”. I note the plural "Awards" in the heading which is part of the Act (s.36(1) Interpretation of Legislation Act 1984). Most of the sections speak in terms of the Tribunal having the power to award compensation and do so by using the phrase “may award compensation”. There is reference to the Tribunal making “an award” in s.16 (1)A, s.19(1) and (5) in s.20 and 22. In their context, the use of the terms “award” and “awards” does not shed light on the issue in question.
Despite its limiting heading s.23 appears to me to be the section which attempts to define what is meant in the Act by an "award of compensation". It provides:
“23 Advance payments
(1) An award of compensation - (a) in respect of the death of a victim - shall be a lump sum;
(b) in respect of injury - shall be a lump sum, but the Tribunal may authorise the making of payments by way of advance until the Tribunal awards a lump sum upon final assessment of the amount of the award.
(2)
The amount of payments by way of advance referred to in sub s.(1) shall not in total, and where a lump sum is also paid shall not when added to the amount of the lump sum exceed, the amount which would be payable by lump sum alone.
(3)
Despite sub-s (1), the Tribunal may order that an award compensation be paid by such instalments and that as such times as are determined by the Tribunal. “
Part V is headed "Variations of Awards and Appeals" (s.1).s.25 (1) provides:
“25. Variation of awards
(1) The Tribunal may, on the application of the Minister, the victim, a dependant or the offender, vary an order for compensation (including an order that has been previously varied) in such manner as the Tribunal thinks fit, whether as to the terms of the order or by increasing (subject to sections 15 to 18) or decreasing the amount or in some other way in accordance with this Act.”
It is significant that the variation power (s.25(1)) is expressed in terms of a power to “vary an order for compensation (including an order that has been previously varied)”. It does not refer to variation of an “award of compensation”. The section permits variation of each order which makes up an award. The list of matters that may be considered in varying "an order" comprises fresh evidence which has become available since the making of “the order”, any change of circumstances since "the order", any payments received by or payable to the victims or dependants in respect of the injury since “the order” was made or a previous variation of it, any payments received by the victim "since the order" or any variation and anything else which the Tribunal thinks is relevant. Part VI is headed "Payment and Recovery of Awards". Section 27 deals with the recovery of awards from offenders but again does not use the expression “award” but rather speaks of orders for compensation. On the other hand in s.28 (dealing with refunds) reference is made to an “award of compensation” and also in s.29 dealing with recovery between defendants - referring presumably to the ultimate lump sum.
It seems to me that s.23 makes it clear that by the expression "award of compensation", Parliament intended to mean a lump sum arrived out upon final assessment of the amount of compensation to be paid. Thus it seems to me to provide a clear indication that there was to be only one “award of compensation” made upon final assessment. At the same time it plainly envisages that until the final assessment is carried out advances can be made. Section 25, however, by its use of different terminology and references to "order for compensation" enables the CCT to vary orders by which advances are made as well as final orders forming part of the award of compensation". Thus an order reserving future expenses but making an advance does not, as the CCT argued, render the variation provision superfluous.
Counsel for the respondent, Mr Lane, submitted that s.23 contemplates the possibility of a series of payments until what is referred to as the "final assessment of the amount of the award" is made. He submitted that by reserving future expenses, the Tribunal plainly was not making a final assessment of the amount of the award. He contrasted that situation with the decision of the AAT which included a notation that the decision was "the final determination of all applications for injuries caused to the applicant by the criminal act". Counsel submitted that the reference to lump sum was critical because it is that which prescribes the limit of compensation (s.18 and s.18A of the Act). He submitted that it is only after "the final assessment of the amount of the award" that the amount awarded can be categorised as a lump sum under s.23(1)(b). He further submitted that in referring to "payments by way of advance" the legislation was not attempting to categorise a particular act and that until there has been a final assessment of the amount of the award there is no requirement under the legislation to categorise payments. He submitted that an advance would include an interim payment as that is what an advance is. While s.15(1) limits the power of the Tribunal to award compensation for expenses actually and reasonably incurred, counsel for the respondent submitted that s.23(1) permitted advances to be made in respect of payments of expenses that had been incurred. That power continues until the "final assessment of the amount of the award" is made.
Counsel for the CCT sought to restrict the scope of s.23(1). He argued first that s.23 provided a means for urgent action in circumstances where the CCT had not had the opportunity to make a final assessment. The payments made are in advance in the sense that they are supplied before an award is made. He gave the example of money being advanced to enable an urgent operation to occur. He submitted further that the power to make an advance is not applicable where expenses have already been incurred. In support of that argument he said that the scheme of s.15 and s.25 showed that compensation was provided for expenses that had been incurred. He submitted that an advance is for expenses that have not been incurred.
It is true that s.23 does not speak in terms of advances made in respect of incurred expenses. At the same time, in referring merely to an advance prior to final assessment of the amount of the award the power conferred is expressed in broad terms. I can see no reason why the power conferred on the CCT by the legislation should be read down in the way suggested by the CCT. The power conferred is flexible and should remain so. The interpretation advanced for the respondent enables the Tribunal to direct the payment of advances in respect of expenses incurred and to be incurred prior to final assessment of the amount of the award. It enables the CCT to tailor its order to meet the exigencies of any case that comes before it. As to the attempt to limit s.23 to advances in urgent circumstances, there is nothing in the section which would warrant such a limit and counsel did not direct my attention to any specific basis upon which that interpretation could be supported. While the word "advance" is sometimes used to refer to the extension of credit or payments made before goods are supplied or work done, the context of s.23(1) does not warrant the word being limited in that way.
The other argument advanced for the CCT is that the issues raised by the respondent do not arise in this case because the CCT did not purport to act under s.23 to authorise payment of dental expenses prior to making an award but rather made an award.
It is true that the CCT purported to make an “award of compensation” and did not describe the compensation awarded as an "advance" under s.23 of the Act. At the same time it is clear that the CCT did not purport to make a final assessment of the amount of compensation in 1989. Rather it reserved future expenses for further consideration. Until it made that final assessment, the lump sum had not been awarded and the CCT had the authority to do what it attempted to do in substance which was to order a payment in advance of the final assessment of the amount of the award. To argue that the CCT did not have the power to order the making of a payment for the compensation identified in its "award of compensation" would be to allow form to triumph over substance and it is not warranted.
The CCT sought also to rely upon the reference in the decision of the CCT to the $1500 being payment to the applicant in a "lump sum". The CCT argued that the original CCT decision, therefore, envisaged only the one award. It is clear, however, from the orders made in the document relied upon, that the CCT was envisaging compensation in respect of expenses incurred at that time and compensation in respect of future expenses. Under the Act it could only contemplate one award but could make a series of orders and the orders made are not inconsistent with that.
In the present case the CCT at the original hearing in 1989 purported to use a form of order appropriate to an award of compensation for the purpose of making a payment of compensation to the applicant in respect of expenses incurred and pain and suffering experienced to that time. At the same time it indicated that it intended to consider the question of future expenses should that arise and thus was not purporting to make a “final assessment of the amount of the award”. In those circumstances it seems to me that the correct characterisation to be placed upon what the CTT did at the 1989 hearing was that it authorised the making of payments by way of advance under s.23 while at the same time using the award procedure to record the then entitlement to compensation under the Act. It effectively adjourned the proceedings and had the power to do so under s.10 of the Act. Turning to the AAT, it seems to me that the AAT was not in error in describing what the CCT originally ordered as being an “interim award”. In substance, the advance ordered by the CCT was an interim award. The AAT was simply trying to describe what had occurred. It also had the power to deal with the matter as it did.
Conclusion
In relation to the questions of law posed in the amended notice of appeal the following answers appear to me to be correct:
1. The CCT did have the power to make the orders made in 1989 pursuant to the power to make advances and to adjourn the matter.
2.
(a) Yes.
(b) (i) Yes. (ii) Yes.
3. In the circumstances of the case, the CCT did not on 11 December 1989 make a final assessment of the amount of the award but made an order which can be varied under s.25.
4. The inclusion of the words "future expenses reserved" indicated that the CCT had not made a final assessment of the amount of the award and was adjourning the application..
In light of the foregoing the appeal by the CCT should be dismissed.
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