CTK v Commissioner of Victims Rights

[2017] NSWCATAD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CTK v Commissioner of Victims Rights [2017] NSWCATAD 105
Hearing dates:	17 February 2017
Date of orders:	04 April 2017
Decision date:	04 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The Tribunal has jurisdiction to determine the application for administrative review. 2. The matter is listed for a Directions Hearing on 28 April 2017 at 9.30am.
Catchwords:	VICTIMS RIGHTS – administrative review – previous claim under 1996 Act lodged by a parent – prior claim determined while the Applicant was a ward of the state – whether the previous application was properly determined – whether the determination of the previous application is a bar to claiming victims support under the 2013 Act – when is a claim “made”?
Legislation Cited:	Administrative Decisions Review Act 1997 Children (Care and Protection) Act 1997 Courts and Crimes Legislation Further Amendment Act 2010 (NSW) Interpretation Act 1987 (NSW) Victims Compensation Act 1987 (NSW) Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 (NSW)
Cases Cited:	Project Blue Sky v Australian Broadcasting Authority 194 CLR 255 Bropho v Western Australia [1990] HCA 24
Category:	Principal judgment
Parties:	CXT (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Counsel: N/a   Solicitors: In Person (Applicant) J Singh (Respondent)
File Number(s):	2016/00378418
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.

REASON FOR DECISION

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 17 October 2016, the applicant sought administrative review of a decision made by a delegate of the respondent in respect of an application for support that was lodged by the applicant (known by the pseudonym “CTK”).

Background

Application for Compensation

2. On 21 October 1999, CTK’s mother lodged an Application for Compensation on his behalf under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”). This alleged that CTK was the primary victim of an act of violence in the nature of an indecent assault that occurred in April 1998. It named the alleged perpetrator and indicated that the alleged perpetrator was convicted of a charge of “Aggravated Indecent Assault – victim under the age of 16”.

3. CTK’s mother instructed solicitors to act for her in relation to the application.

4. On 1 November 1999, the Director of the Victims Compensation Tribunal (“the Director”) wrote to CTK’s solicitors, and advised (relevantly):

Verification of injuries claimed

If you have not done so already, you will need to provide medical reports to verify the compensable injury or injuries claimed other than the compensable injury of Psychological of Psychiatric Disorder. Compensation can only be awarded if there is an injury or injuries that appear in the Table of Injuries of the Act (a copy of this Table can be obtained from the Tribunal upon request).

Police report

The Tribunal has requested a report from the Police Service based upon the information provided in your application. When the report has been received, the Tribunal will determine whether additional information is required in relation to the act of violence claimed in the application.

The processing of statutory compensation claim by the Tribunal

Once the Tribunal has received all the information necessary to process your claim, the matter will be listed. You will receive a listing letter that includes a date on or after which your matter will be determined by an Assessor. All material upon which the application relies is to be received by the Tribunal prior to the date on which the application is listed for determination…

Please note that section 19A of the Act provides that the amount of $750 be deducted from each award of statutory compensation which is less than $20,001…

5. On 1 May 2001, the Director wrote to CTK’s solicitors advising of a listing date on or after 4 June 2001, and advised (relevantly):

…It is the responsibility of the applicant or their solicitor to establish that the applicant is a victim of an act of violence as required under Section 5 of the Victims Support and Rehabilitation Act 1996. The applicant must also demonstrate that they have sustained a compensable injury as set out in Schedule 1 of the Act.

All material to be relied upon… and documentation that you feel is necessary to support your claim, should be submitted to the Director at least 7 days prior to the above listing date.

The application will be determined solely upon the documentation before the assessor on the date of determination…

6. On 16 May 2001, CTK’s solicitors wrote to the Director, and advised that compensation was being claimed for the compensable injuries of Psychological injury and Sexual Assault Category 1. They stated (relevantly):

We are currently in the process of obtaining a report from the child’s counsellor (name provided).

We request that an Authorised Report Writer be appointed to see our client….

7. On 24 May 2001, the Director approved the appointment of an Authorised Report Writer (“ARW”) and requested CTK’s solicitors to nominate an ARW from its Panel.

8. On 10 July 2001, an Assessor adjourned the determination of the application for compensation for reasons that included:

…Applicants seeking to establish the compensable injury of psychological or psychiatric disorder must submit a written assessment from an authorised report writer (clause 5 of Schedule 1).

It is noted that this application is listed to be heard on the first available date after the 4th June 2001. As an authorised report writer was only approved on the 6th June 2001 I do not consider that this matter is ready to be determined.

Matter adjourned for four months.

9. On 18 July 2001, the Director advised CTK’s solicitors that the listing date for the application had been adjourned to 5 November 2001, based upon the Assessor’s reasons dated 10 July 2011.

10. On 5 November 2001, CTK’s solicitors requested a further adjournment. However, a copy of their letter is not in the s 58 documents.

11. In any event, on 9 November 2001, the Director adjourned the listing date to 7 January 2002.

12. On 21 December 2001, CTK’s solicitors requested a further adjournment on the basis that they had not yet received a report from the treating psychologist.

13. On 31 January 2002, an Assessor further adjourned the listing date on the basis that CTK required further evidence from his treating psychologist.

14. On 14 February 2002, the Director further adjourned the listing date to 19 April 2002.

15. On 20 February 2002, CTK’s solicitors lodged a report from the treating psychologist with the Director.

16. On 17 May 2002, an Assessor of the Victims Compensation Tribunal determined the application for compensation. The application was dismissed and the Reasons for Dismissal indicate that the Assessor was not satisfied on the evidence that an act of violence was established, essentially because the medical evidence did not indicate that CTK’s psychological condition resulted from the indecent assault “in isolation”.

17. On 22 May 2002, the Director wrote to CTK’s solicitors, enclosing a copy of the Assessor’s decision and advising them of CTK’s appeal rights under s 36 of the old Act. However, no appeal was lodged.

State Wardship

18. The evidence before me indicates that on 28 September 1999, CTK’s Mother lodged an Application under the Children (Care and Protection) Act, seeking orders in relation to the care of CTK on the basis that there was “… a substantial and presently irretrievable breakdown in the relationship between the child and one or more of the child’s parents”. The application suggested that this was based upon behavioural issues relating to CTK.

19. Evidence from DoCS dated 22 February 2005, indicates that during the period from 18 September 2000 to 18 November 2002 (inclusive), CTK was a Ward of the State.

20. Accordingly, while CTK was not a Ward of the State when the application for Compensation was lodged, he was a Ward of the State when the solicitors instructed by his mother to act on his behalf obtained medical evidence from his treating psychologist and when the ARW issued his report and when the Application was determined by the Victims Compensation Tribunal.

Application for Victims Support

21. On 26 April 2016, CTK lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the new Act”), in which he claimed victims support in respect of the same act of violence as that was the subject of the previous Application under the old Act.

22. CTK lodged this Application on his own behalf and he is not legally represented in relation to it.

23. On 13 July 2016, an Assessor (Client Claims) dismissed this Application on the basis that the act of violence was the subject of the previous Application, which was determined under the old Act, and CTK was not eligible to claim victims support under the new Act. The application for victims support was therefore dismissed.

24. The respondent served a copy of the Notice of Decision upon CTK under cover of a letter dated 2 August 2016.

25. The date of posting of that letter is not indicated in the evidence before me. However, on 17 August 2016, CTK sent a fax letter to the respondent, requesting a review of the Assessor’s decision. I am therefore satisfied that CTK received the respondent’s letter.

26. On 24 August 2016, the respondent received a statutory declaration from CTK. However, I have only received page 1 of this document and this does not contain any information as to when and where CTK declared its contents to be true and correct. However, he stated:

I would like to appeal the decision in regards to claim no. 238938.

As information on payment awarded docs are incorrect. I have two claims in for Assessment (different matters) and some how they have been merged together.

Claim no. 61408 – I have never received any money from this claim.

(Name provided) psychologist report was for claim no. 61408 not claim no. 238938. I was not 16 years old as payment recognit offer stated. Please review this matter.

27. On 5 October 2016, a Senior Assessor issued a Notice of Review decision, which again dismissed the application for victims support on the basis that the act of violence was the subject of a previous application that was dealt with in 2002 (repealed Act allocated claim 61408) and that CTK is “barred from eligibility for victims support” under the new Act.

28. I note that a copy of the Senior Assessor’s decision was posted to CTK under cover of a letter from the Respondent dated 5 October 2016. However, again the date on which this letter was actually posted to him is not indicated in the documents before me.

Application for Administrative Review

29. On 17 October 2016, CTK applied for administrative review of the Senior Assessor’s decision at first instance on the following ground:

My mother lodged it on my behalf when she had no right as I was a ward of the State. I’m being penerlised (sic) for someone else’s actions. I was a child when this crime happened to me and don’t see how I cannot be compensated for this crime.

30. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘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.

Preliminary Issues

31. At the hearing on 17 February 2017, CTK appeared in person, with the support of Ms Derrone (of VSCCS) and Mr Singh appeared for the Respondent.

32. The Tribunal had received the respondent’s s 58 documents. While these appear to be complete, some of the documents are difficult to read, no doubt due to the age and poor legibility of the source documents).

33. On behalf of the respondent, Mr Singh submitted that the following preliminary issues require determination before administrative review of the review decision in relation to the application for victims support can take place. These issues are:

1. Does clause 11 of Schedule 2 of the new Act prohibit CTK from making the current application?

2. Does the new Act revive the CTK’s right to make a further application?

3. Was the application made under the old Act made and dealt with under the old Act given that CTK was a Ward of the State between 18 September 2000 and 18 November 2002?

Submissions in relation to preliminary issues

34. The Respondent relied upon written submissions filed on 16 February 2017, which I have set out below:

Issue 1: Does clause 11 of Schedule 2 of the new Act prohibit CTK from making the current application?

Was the first Application a transitional claim?

The first application was lodged under the previous Act.

The current Act was introduced on 7 May 2013, and repealed the previous Act. The current Act provided that claims that were not finally determined under the Previous Act were to be dealt with under the transitional provisions of the current Act (see: clause 5 (1) of Schedule 2 of the current Act). All applications that were the subject of appeal proceedings or in which an appeal could duly be made under section 38 (3) (a) of the previous Act were to be determined under section 38 of the previous Act (other than section 38 (5) (b) (see: regulation 16 of the Victims Rights and Support Regulation 2013)).

The applicant’s claim was not the subject of an appeal and the 3 month period set by section 36 (3) (a) of the previous Act to file an appeal had expired. The applicant’s claim was finally determined on 17 May 2002 and hence was not the subject of the transitional provisions of the current Act.

Statutory interpretation of clause 11 of schedule 2 of the current Act

Clause 11 of Schedule 2 of the current Act states: Subject to this Act, this Act extends to an act of violence that occurred before the introduction day (other than an act of violence in respect of which an application for compensation has been made and dealt with under the repealed Act.)

The “introduction day” is the day that the Bill for the current Act was first introduced into Parliament, being 7 May 2013.

The respondent submits that clause 11 of schedule 2 of the current Act is set out in unequivocal and clear terms. It allows victims of acts of violence that occurred prior to the introduction of the current Act (7 May 2013) to apply for victims support under the current Act but only if the act of violence had not been the subject of a claim under the former Act. It expressly excludes acts of violence that have been made and dealt with under the previous Act. In the respondent’s view, the reference to “subject to this Act” at the beginning of clause 11 is to preserve those claims where an applicant had a right of appeal at the time of the introduction of the current Act which would otherwise be lost by operation of clause 11. Regulation 16 (1) of the Victims Rights and Support Regulation 2013 preserves the right of appeal.

Whilst the respondent is firmly of the view that the clause 11 of schedule 2 of the current Act is unambiguous and does not require detailed analysis. The respondent has below considered the rules relevant to statutory interpretation to demonstrate that, assuming the application was properly made and dealt with, nothing in the current Act revives the applicant’s rights to make a further claim under the current Act.

Issue 2: Does the current Act revive the applicant’s rights to make a further application?

Regard ought to be had to section 5 (2) of the Interpretation Act 1987 for the purposes of interpreting legislation except insofar as the contrary intention appears either in the Interpretation Act 1987 or in the Act or instrument concerned.

Part 4 of the Interpretation Act 1987 deals with amendments and repeals. Section 30 (1) (a) of that Act provides that an amendment or repeal of an Act or statutory rule does not revive anything not in force or existing at the time at which the amendment or repeal takes effect.

Section 23 (1A) of the previous Act provided:

(1A)  If a person’s application for statutory compensation in respect of an act of violence has been finally determined by the dismissal of the application, the person is not eligible to receive an award of statutory compensation by means of a further application that is made:

(a)  in respect of the same act of violence, and

(b)  in the same capacity of primary victim, secondary victim or family victim…

35. I note that in the written submissions, the respondent cited and discussed s 23A (1A) of the old Act. However, I take note of the fact that there was no subsection (1A) to s 23A of the old Act and I have presumed that the reference to s 23A is a typographical error and that the respondent is in fact referring to and relying upon s 23 (1A) of the old Act as follows:

…Having regard to section 23 (1A) of the previous Act, the clear intention of the legislature was to ensure that duplicate applications were not made with respect to the same act of violence even in instances where the application was dismissed. Section 23 was enacted on 7 December 2010 pursuant to the Courts and Crimes Legislation Further Amendment Act 2010. The explanatory notes indicate the purpose of section 23 was “to clarify that, if a person’s application for statutory compensation has been dismissed, the person cannot apply for and be awarded the same kind of statutory compensation in respect of the same act of violence.”

At the time the previous Act was repealed, by reference to section 23 (and assuming that the application was properly made), the applicant was unable to make a further application for statutory compensation with respect to the act of violence the subject of the first application. As set out above, the first application had been finally determined by the dismissal on 17 May 2002.

In the light of s 30 (1) (a) of the Interpretation Act 1987, unless a contrary intention is expressed in the current Act, the repeal of the previous Act does not automatically revive or create a right in favour of the plaintiff to make a further claim with respect to the same act of violence.

The provisions of the current Act do not expressly create such a right. In further considering whether the current Act intended to create such a right, reference can also be had to the language and purpose of all the provisions of the current Act. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”), Brennan CJ approved such an approach: “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.”

In Bropho v Western Australia [1990] HCA 24, a case concerned with the appropriate test for determining whether an Act was intended to bind the Crown, the High Court considered the rule of statutory construction on that matter and added:

One can point to other “rules of construction” which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such ‘rules’ are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively, which would deprive a superior court of power to prevent an unauthorised assumption of jurisdiction or which would take away property without compensation. The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear.

By reference to the above, the respondent submits that if the intention of the current Act was to revive the rights of applicants to lodge a fresh claim under the current Act and whose matters were determined under the previous Act, this would require the construction of clear and unambiguous provisions to displace the operation of section 23 of the previous Act and the operation of section 30 (1) (a) of the Interpretation Act 1987.

Section 33 of the Interpretation Act 1987 provides:

Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Section 34 (1) (a) of the Interpretation Act 1987 provides:

Use of extrinsic material in the interpretation of Acts and statutory rules

(1)  In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), 

Having regard to section 34 (2) of the Interpretation Act, the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(e)  any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f)  the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

Clause 6 of Schedule 2 of the current Act expressly stipulates that victims support is not payable under the current Act to a primary victim, secondary victim or family victim of an act of violence if the victim has already been awarded compensation or assistance under the previous Act. In conjunction with section 44 (4) of the current Act and the mandatory conditions for the approval of victims support set out in section 48 (2) of the current Act, it is clear that the intention of the current Act is ensure there is no “double dipping” in the approval of victims support.

The Second Reading Speech relating to the Victims Rights and Support Bill 2013 provides an insight into the purpose of the current Act: “The purpose of the bill is to establish a new Victims Support Scheme to replace the existing Victims Compensation Scheme”. The reason for the replacement of the former Victims Compensation Scheme was due to “protracted delays for victims in receiving compensation.” A review of the scheme was carried out to “give an independent assessment of how it could be improved”. The speech concluded: “The Victims Compensation Scheme will be closed immediately. All existing claims that have not yet been finalised will be transferred to the Victims Support Scheme. This will provide a speedier resolution for victims with existing claims”.

The (second) reading speech does not suggest that the current Act was enacted with the intention of creating new rights to individuals that had their applications “finally determined” under the previous Act. The purpose was to replace the existing scheme to create a more efficient, streamlined process for new applications. An interpretation of the current Act that allows applicants whose applications were dismissed under the previous Act (and indeed even under the initial Victims Compensation Act 1987) to make further claims is inconsistent with the purpose of the current Act. Such an approach would open the flood gates for all applicants that were dismissed under the previous Act or the Victims Compensation Act 1987.

It is the respondent’s view that there is nothing in the current Act that revives a right of the applicant to make a further claim under the current Act.

Issue 3: Was the first application ‘made and dealt with’ under the previous Act given that the applicant was a Ward of the State between 18 September 2000 and 18 November 2002?

Clause 11 of Schedule 2 of the current Act seeks to preclude those claims that were “made and determined” under the previous Act. An issue for determination is whether the first application commenced by the applicant’s Mother was properly “made”.

Section 25 (1) of the previous Act identifies the parties that have capacity to make an application for statutory compensation. Section 25 (1) (b) of the previous Act allows the application to be made by “any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim”. Section 25 is headed “lodging of applications”. It is the respondent’s submission that an application is “made” when it is lodged in the appropriate form.

It is the respondent’s view, but for evidence to the contrary, an application brought by a parent of a child would satisfy the elements of section 25 (1) (b) of the Act.

In the present circumstances, the applicant asserts that at the time the application was made, he was a Ward of the State. A letter from the Department of Community Services dated 22 February 2015 confirms that the applicant was a Ward of the State between the period 18 September 2000 and 18 November 2002. The first Application was lodged on 21 October 1999 (at a time when care of the applicant was with his mother). The application was determined on 17 May 2002 at a time when the applicant was a Ward of the State.

On 28 September 1999 an application was lodged by the applicant’s Mother under the Children (Care and Protection) Act. The application identifies the reason the applicant’s mother sought the orders: “There being a substantial and presently irretrievable breakdown in the relationship between the child and one or more of the child’s parents”. The application suggests the basis of the application was the behavioural issues attributed to the applicant as opposed to any concerns with the care provided by the applicant’s mother. The respondent submits that it can be established that the applicant’s mother had a genuine interest in the welfare of the applicant despite her relinquishing the care of the applicant for the following reasons:

The applicant’s mother engaged legal representatives to assist with the preparation of the application for statutory compensation.

Two psychologists’ reports were prepared for the applicant. The mother accompanied the applicant to both appointments. The mother appears to be helpful in explaining to the psychologist the changes she observed in the applicant after the act the subject of the application.

The report by Dr (name provided) dated 29 October 2001 notes that at the time the report was written, the applicant had moved back with his mother “even though DoCS said no… he has been back with his mother or six months”. The applicant’s mother informed the psychologist that “she had got [the applicant] back from foster care in January”.

The report by (name provided), psychologist, dated 31 January 2002 also suggests that the applicant was in his mother’s care at the time the reports were prepared: “I went into DOCS. I have been in more than ten foster placements, a couple have been good, a couple of nice people. I’ve only stayed for about three months each time. I’ve been back at home for about 9 months now but it’s not working. I’m going to move out in the next week or so.”

At the time both psychologists’ reports were obtained, the applicant was a Ward of the State. Section 90 of the Children (Care and Protection) Act 1987 notes that the Minister is the guardian of a ward, and subject to the Act, has custody of a ward to the exclusion of any other person until the ward attains the age of 18 years or other circumstances set out in the legislation. Whilst section 90 gives sole custody of a child to the Minister, in the respondent’s submission, this does not preclude a parent still satisfying the elements of s 25 (1) (b) of the previous Act (“genuine interest in welfare”) especially in circumstances where the custody was relinquished due to behavioural issues relating to the child. If the Tribunal accepts this position, then at all times, the applicant’s mother had capacity to make the application under section 25 (1)(b) of the previous Act and the applicant would therefore be precluded from making the Second Application by operation of Clause 11 of Schedule 2 of the current Act.

If the Tribunal is of the view that the relinquishing of the custody of the child (pursuant to section 90 of the Children (Care and Protection) Act 1987) precludes the applicant’s mother from satisfying the elements of section 25 (1) (b) of the previous Act, then the Tribunal must consider at what point in time the first application was “made”. As set out above, the respondent is of the view that an application is “made” when it is lodged in the appropriate form.

If the Tribunal finds that the making of an application under section 25 (1) (b) of the previous Act is a continuous process until a determination is finally made and that section 90 of the Children (Care and Protection) Act 1987 operates as set out in the above mentioned paragraph, the Tribunal may come to a view that the applicant’s mother no longer had capacity to make the application upon the applicant becoming a Ward of the State on 18 September 2000. In these circumstances, it may be open to the Tribunal to find that the first application was not properly “made” and hence the applicant is bound by the preclusion set by clause 11 of schedule 2 of the current Act.

The respondent is of the view that section 90 of the Children (Care and Protection) Act 1987 does not operate to preclude the applicant’s mother from making the application in the circumstances of the present case and hence the application was properly made. On this basis, the applicant is precluded by the operation of clause 11 of schedule 2 from making the second application.

36. CTK did not lodge any written submissions. However, at the hearing on 17 February 2017, he stated that he became a Ward of the State because of clashes with his step-father. He said that he would run away and on each occasion the Police would bring him home and it was the Police who called DoCS. He agreed that his mother had a genuine interest in his welfare, but stated that he should have been told about the previous application at the time and that he first learned of it when he received the decisions in relation to his current application. He also stated that he continues to consult the same treating psychologist and that he has expressed the view that the claim for victims compensation was determined too soon.

Consideration

37. While the respondent submits that the application for compensation was “made” under the old Act when the application was lodged on his behalf by the solicitors who were instructed by his mother, cl 11 of sch 2 of the new Act refers to claims that were “made and determined” (emphasis added) under the old Act.

38. I regard this as significant as it supports an interpretation that while a claim can be lodged and therefore registered by the Scheme’s Administrator, it is not “made” until all relevant information and evidence is submitted and it is capable of being determined.

39. In my view, this interpretation is consistent with the case management system in relation to old Act applications that was adopted and employed by the Scheme Administrator. Cl 5 (1) of Sch 1 of the old Act provided (relevantly):

Psychological or psychiatric disorder

(1)  For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant’s condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.

(1A)  In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1)…

40. Pursuant to cl 5 (1), the approval of an Authorised Report Writer (“ARW”) was mandatory in all in claims in which an applicant claimed compensation for a psychological or psychiatric disorder. Pursuant to cl 5 (2), the Tribunal or Assessor were not required to have regard to any report or assessment other than a report or assessment by an ARW.

41. This available evidence indicates that the Scheme Administrator approved the appointment of an ARW in this matter on 6 June 2011, which is approximately twenty (20) months after the application was lodged. In my view, it cannot be validly determined that the application for statutory compensation had been properly “made” before the report or assessment from the ARW was obtained.

42. This interpretation is also consistent with and evidenced by the multiple letters exchanged between the Scheme Administrator and CTK’s solicitors regarding the readiness of the application for determination by the Victims Compensation Tribunal. In fact, the listing date was adjourned on several occasions on the basis that further evidence was required and was being obtained before it was referred to an Assessor for determination.

43. Clearly, the case management system adopted in relation to old Act claims was not based upon a front-end loaded model, which requires all supporting evidence to be lodged with an application and allows further evidence to be admitted only in restricted circumstances. While this type of case management model has been adopted by other personal injury compensation schemes in NSW, it was clearly not adopted in relation to the determination of the application under the old Act.

44. While I am satisfied that CTK’s mother had capacity to lodge the application for compensation pursuant to s 25 (1) (b) of the old Act, I am not satisfied that she had capacity to conduct that application from and after 18 September 2000, being the date that CTK was made a Ward of the State. My view is based upon the provisions of s 90 of the Children (Care and Protection) Act 1987, which vests custody of a Ward of the State to the exclusion of any other person for the duration of the Wardship.

45. I reject the respondent’s submission that CTK’s mother retained capacity to conduct the application for compensation after 18 September 2000, because CTK returned to reside with her for periods after that date. In my view, if it was the intention of parliament to provide an exception to the Minister’s exclusive custody of the Ward in those circumstances, it should have made an express provision to that effect in the legislation. It did not do so.

46. I am therefore of the view that capacity to conduct the application for compensation on behalf of CTK vested in the Minister from 18 September 2000 and remained so vested until the application was determined or the period of Wardship ended – whichever first occurred. In this matter, the evidence indicates that the application for compensation was determined before the period of Wardship ended.

47. It follows that I am not satisfied that the application for compensation was properly determined under the old Act and that the determination dated 17 May 2002 is void.

48. As a result, I have determined that cl 11 of sch 2 of the new Act does not operate to prohibit the applicant from claiming victims support under the new Act in respect of the act of violence that occurred in April 1998.

49. I am therefore satisfied that this Tribunal has jurisdiction to determine the Application for Administrative Review.

Orders

50. 1. The Tribunal has jurisdiction to determine the application for administrative review.

51. 2. The matter is listed for a Directions Hearing on (date) at (time).

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 April 2017