DDY v Commissioner of Victims Rights

[2018] NSWCATAD 14

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DDY v Commissioner of Victims Rights [2018] NSWCATAD 14
Hearing dates:	13 October 2017
Date of orders:	17 January 2018
Decision date:	17 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	1. The decision of the Respondent is affirmed. 2. The application is dismissed.
Catchwords:	VICTIMS Support – Administrative law – Beneficial legislation – Limitation periods – Powers of Tribunal to extend time – Charter of Victims Rights
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Rules 2014 Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 (repealed)
Cases Cited:	Bropho v Western Australia [1990] HCA 24 CSN v Commissioner of Victims Rights [2017] NSWCATAD 139 Harvey v Victims Compensation Tribunal and Anor [2001] NSWSC 604 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255
Category:	Principal judgment
Parties:	‘DDY’ (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Illawarra Legal Centre (Applicant) Victims Services Legal (Respondent)
File Number(s):	2017/00225094
Publication restriction:	Section 64 (1) of the Civil and Administrative Tribunal Act applies to the identity of the applicant.

Reasons for decision

Introduction

1. The applicant was a victim of a robbery and assault whereby offenders broke into his dwelling and assaulted him and his friends in addition to stealing property. The incident occurred in 2013 in New South Wales, and the applicant was assessed to be a victim of an ‘act of violence’ under the current victims’ rights and support Scheme. The applicant’s eligibility as a victim of violent crime has never been in issue between the parties.

2. The issue that concerns these proceedings relates to the fact that the applicant initially applied for counselling support and treatment under the scheme. By the time that the applicant made a separate application or claim for victims recognition and support he was outside of the strict two-year period upon which to lodge a claim. The applicant argues that as his counselling application satisfied this limitation period criteria, the subsequent application is captured by the counselling claim as a result is deemed to have been lodged within the two year limitation period.

3. The respondent argues that the schemes (and any subsequent applications) are separate and since amendments in 2013 this was further specified in the legislation. The respondent argues that the application must be rejected as it is separate from the counselling claim and had been lodged outside the strict two-year period. As a result the Commissioner of Victims Rights (the respondent) cannot deal with the matter. The respondent submits that the Tribunal is similarly prevented from dealing with the matter.

4. For the reasons which follow the Tribunal finds that since 2013 the applications for specific types of victims support (such as counselling services and recognition payments) are quarantined from each other within the governing legislation. In addition there is no longer any statutory discretion to extend the time for lodgement under the current scheme. As a result the applicant’s application for victim’s recognition is out of time and in the absence of any statutory discretion or other power to extend the period, the application must be dismissed.

Background

5. On 23 December 2016 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with his Internal Review application for Victims Support.

6. The application for review set out the following grounds:

I believe that Victims Services should have attached my claim for recognition to my counselling claim number and if that is not accepted I believe that Victims Services had a duty of care to advise me of the relevant time limitation to amend my claim to include a recognition payments and Financial Assistance Claim.

Legislation

7. On 3 June 2013 the Victims Rights and Support Act 2013 (the Act), replaced the former Act – the Victims Support and Rehabilitation Act 1996. (the 1996 Act). The 1996 Act provided for victims of violent crime to recover compensation for injuries through eligibility based on a table of compensable injuries or table of maims. Each compensable injury had a fixed amount payable and additional injuries were paid at a lower rate with a maximum of three injuries payable. The maximum amount of compensation was $50,000.00 for each successful claim. All claims required applicants to establish that they were the victim of what the legislation referred to as an ‘act of violence’.

8. The current Act provides identical provisions in establishing injury as a victim of an act of violence. The main difference between the two Acts is that compensation or injury has been replaced by the giving of ‘victims support’ (s26 of the Act.) by way of a recognition payment (s34 of the Act). Part 4 Division 5 deals with recognition payments which provides for four general categories of payment rather than almost 300 specific injury amounts under the 1996 Act.

9. In addition to the shift from ‘compensable injuries’ to categories of ‘recognition payments’ there were a number of structural amendments to the way the new scheme operated. Under the 1996 scheme - in its final form – the Victims Support and Rehabilitation Act 1996 (the ‘old Act’) section 26 provided a limitation period for all claims, (2 years from the incident giving rise to the claim) however it also provided for a number of exemptions, and a statutory discretion for the relevant decision makers. Section 26 of the old Act provided:

26 Time for lodging applications

(1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred or, in the case of a family victim, within 2 years after the death of the primary victim.

(2) An application that is lodged out of time may be accepted with the leave of the Director.

(2A) The Director must not give leave for the acceptance of an application that is lodged out of time if:

(a) the application is for Victims Assistance, or

(b) except as provided by subsection (2B), the applicant is a family victim of the relevant act of violence.

(2B) The Director may give leave for the acceptance of an application that is lodged out of time by or on behalf of a family victim if the Director is satisfied that, on the date on which the application was lodged:

(a) the family victim was under 20 years of age, or

(b) no more than 2 years had elapsed since it was established (whether or not by a court) that the primary victim through whom the family victim’s claim has been made died as a direct result of the relevant act of violence.

(2C) However, the Director must not give leave under subsection (2B) if a total amount of $50,000 by way of statutory compensation has been awarded in respect of the relevant act of violence to one or more of the following:

(a) the primary victim,

(b) any person whose claim was made through that primary victim as a family or secondary victim,

(c) any person whose claim was made under section 33A in respect of the funeral expenses of that primary victim.

Note. $50,000 is the maximum amount that the primary victim of an act of violence and any other victims claiming through that victim are together eligible to receive. (See section 19 (3). See also sections 16 (1) and 33A (5).)

(3) The following policies apply to the giving of leave by the Director for the acceptance of an application lodged out of time:

(a) leave should not be given unless the applicant establishes that there is good reason to do so,

(b) however, leave should be given in cases of sexual assault, domestic violence or child abuse unless the Director is satisfied that there is no good reason to do so,

(c) leave should not be given merely because the applicant is unaware of the time within which applications should be lodged,

(d) the matters taken into account under section 30 (2) for the purpose of determining whether an act of violence was reported to a police officer within a reasonable time should also be taken into account for the purpose of determining whether there is a good reason for giving leave.

10. As a result late claims concerning sexual assault, child abuse, or domestic violence were usually given leave to proceed out of time consistent with the provisions of the former s 26(2) and s 26(3). Other types of claims could (where relevant) have time extended following a consideration of principles set out in the case law of superior Courts. Various amendments were made to the section over its 17 years in force, and these sought to legislate a strict two-year limitation period in specific cases (e.g.: s 26 (2A), (2B) and (2C).

11. When the current Act, the Victims Rights and Support Act 2013 was enacted the limitation periods were tightened. The current section 40 provides for the limitation periods on lodgement of various applications for victims support.

40 Time for lodging, and duration of, applications

(1) Except as provided by subsections (2) and (3), an application for financial support must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.

(2) An application for financial support or a recognition payment may be made by a family victim more than 2 years after the relevant act of violence that resulted in the death of the primary victim occurred if it was only established (whether or not by a court) that the primary victim died as a direct result of the relevant act of violence subsequently to the occurrence.

(3) In the circumstances described in subsection (2), an application for financial support may be duly made within 2 years after it is established that the primary victim died as a direct result of the relevant act of violence.

(4) Except as provided by subsection (5), an application for a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.

(5) An application for a recognition payment in respect of an act of violence involving domestic violence, child abuse or sexual assault must be duly made within 10 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 10 years after the day on which the child concerned turns 18 years of age.

(6) Claims may continue to be made under an application that is duly made in respect of an act of violence until whichever of the following first occurs:

(a) the expiration of the period of 5 years after the application is made,

(b) the total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence has been given.

(7) This section (other than subsection (6)) does not apply to an application for financial support, being for financial assistance of a kind specified in clause 8 (2) (b) or (d) of the Victims Rights and Support Regulation 2013, or a recognition payment for a person who is a primary victim of an act of violence that occurs in the course of the commission of a sexual offence against the person when the person is under 18 years of age. There is no time limit on when such an application can be made.

12. The new section 40 provided no comparable provision to the old section 26 (2) by way of a statutory discretion to extend the limitation period to accept claims. Under the old Act the Director of Victims Services delegated the giving of leave to proceed out of time. Under the current Act the Commissioner of Victims Rights has no discretion or statutory power to give leave to accept a late claim. I note for completeness that the circumstances of the act of violence in the current matter, whilst clearly serious, attracted no presumption in favour of giving lave to proceed out of time if the claim was lodged under the old Act.

13. It was settled between the parties that there was no power to extend the limitation period for the applicant’s claim. Essentially the dispute centred on whether the application for counselling constituted the making of the applicant’s total claims under the scheme, for the purpose of meeting the lodgement date criteria. The applicant claims that it does, and the subsequent applications arising from the same act of violence should have been held under the initial counselling claim number. The respondent says that the legislation is quite clear, quarantining specific types of applications from each other, and for some providing limitation periods, and for others no limitation period is specified.

Jurisdiction

14. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal.

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.

15. In addition there was no dispute that the application had been lodged within the 28 day period provided for by the operation of the s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and Clauses 23 and 24 of the Civil and Administrative Tribunal Rules 2014. The decision was dated 24 November 2016, and the applicant attested on his application that he was notified of the decision on 7 December 2016. As the application was lodged on 23 December 2016 it is within time.

16. The application under s 51 of the Act followed an internal review under s 49 of the Act. That review on 24 November 2016 reached the same decision as the original decision maker, and refused the application as it was lodged out of time.

17. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.

Hearing

18. At the hearing the applicant was represented by a Solicitor from a Community Legal Centre and the respondent was represented by an employee Solicitor. It appears that the matter was delayed for a period of months as the applicant attended to various requisitions in respect of filing fees and evidence of limited financial means. These matters were only finalised in mid-July 2017 and the matter was then given a directions hearing which occurred on 4 August 2017.

19. The following material was filed by the parties in support of the respective positions:

Applicant’s written evidence

• Application for Administrative Review dated 22 December 2016 including grounds - Exhibit ‘A-1’.

Respondent’s written evidence

• Documents filed under s 58 of the ADR Act dated 14 August 2017 - 69 pages – Exhibit ‘R-1’.

Applicant’s evidence at hearing

20. The applicant gave evidence at the hearing. In evidence-in-chief the applicant stated that he was never given any information by Police or Victims Services as to his entitlements to support and assistance as a victim of violent crime. The applicant stated that his questions at the time were dismissed and he was ‘shot down with the words – has it gone to Court yet?’ When asked by his Solicitor who said those words the applicant stated that it was ‘the victims compensation people’.

21. The applicant stated that he was told by hospital staff and the police that he should at least ring up and make a claim. ‘M’ the applicant’s counsellor had helped the applicant quite a bit and had arranged for his appointment with the Solicitor.

22. At all times he was told, and it made sense to him, that he had to wait to apply for financial payment. The applicant was asked whether anyone called him in respect of other forms of support (other than counselling/treatment) such as financial assistance or recognition payments? The applicant stated that no one contacted him and he was only dealing with ‘M’ concerning treatment. The applicant was asked whether he believed that, at all times, his claim had been lodged to which he answered – yes.

23. When he subsequently lodged a claim at his Solicitor’s office the applicant included the existing ‘Claim number’. His psychologist had given him advice that you can’t really do anything about what happened (the assault) unless you make a claim. By the term ‘claim’ the applicant in his oral evidence understood it to mean a victim of crime claim.

24. The applicant stated that he believed that he had made a claim and had ‘started the ball rolling’. It took them (police) two and a half years to get him (the perpetrator) in Victoria, and then he had to go to court. The applicant made a statement as to whether he was asked had he made a claim or were his actions merely just one part of being shoved off to the victims people.

25. In cross-examination the applicant was taken to folios 1 and 2 of the s 58 material (‘R-1’). He was asked what was in the heading of the form. (‘Application for Counselling’).

26. The respondent’s solicitor asked the applicant who told him that he needed to wait until the matter went to Court. The applicant stated that Victims Services persons told him that when he called. They asked whether the matter had gone to Court and advised that he had to wait until he obtained the police material and evidence to support any application.

27. In re-examination the applicant was asked about the application form referred to in cross-examination. He was asked whether the form was faxed from the Illawarra Psychological service office. The applicant confirmed that it was. Folio 25 from the s-58 documents was referred to. (The initial assessment of counselling approval). It was noted that that letter contained no reference to other services available or reference to the applicant’s rights under the Charter of Victims Rights. The only reference on the document was a link/web address for a feedback survey.

28. The Tribunal inquired of the applicant on matters relating to his evidence. The applicant confirmed that he was provided with the practice details (of ‘M’ the psychologist/counsellor) to call and make the necessary arrangements. He initially made a call to the practice but later he went to his doctor to obtain a referral. This was after he was discharged from hospital.

20. At Court all he was told was to ‘do an impact statement’. The Tribunal understands this to be a victim impact statement. When pressed further about how he commenced to access services/victims of crime resources, the applicant said that he spoke to the victims compensation people pretty much straight away.

21. The applicant did not recall talking to any Victims Services staff prior to making the claim through the counsellor.

Respondent’s submissions

31. In oral submissions the respondent submitted that the evidence adduced supported the fact that at the relevant time following the act of violence the applicant had not made a claim other than the counselling claim. It was submitted that the types of services available under the 2013 scheme are defined and quarantined within the Act.

32. The respondent submitted that the claim for a recognition payment and financial support were lodged out of time (consistent with the two internal decisions). The respondent further submitted that the applicant’s submission, that a claim for approved counselling should also be considered a claim for other types of victims support, is misplaced. Such a claim was inconsistent with the terms of s 40, and reference was made to the lead case on statutory interpretation, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255. Referring to Brennan CJ’s comments:

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.

33. Reference was also made to Bropho v Western Australia [1990] HCA 24 concerning the appropriate test for determining whether an Act was intended to bind the Crown. The Court observed that:

One can point to other ‘rules of construction’, which require clear and unambiguous words before the statutory provision will be construed as displaying a legislative intent to achieve a particular result.

34. The respondent submitted that the applicant made two separate applications for victims support, one being the counselling application on 4 January 2014, and the other being the application for a recognition payment made on 12 February 2016.

35. The respondent addressed the applicant’s written submissions and their reliance on the case of CSN v Commissioner of Victims Rights [2017] NSWCATAD 139. In that case the Tribunal considered matters relating to the relationship between counselling applications and recognition payments. The issue being that an earlier approval of counselling was claimed by that claimant as binding on the Commissioner in determining eligibility for a recognition payment. The case concerned the threshold issue of an ‘act of violence’ under the Act, and whether a finding of an act of violence for counselling bound later claims. The Tribunal found that it did, but those matters are not in issue in these proceedings.

36. As set out above there is not dispute that the applicant is eligible on the criminal and medical evidence, merely that his recognition/financial application has been lodged out of time, notwithstanding a prior counselling claim.

37. The further claim by the applicant that the respondent’s officers and police owed him a duty of care to inform him of services and advise him of other types of claims and their limitations was denied by the respondent. However without examining the evidence further the respondent submitted that this was not a matter within the Tribunal’s jurisdiction.

Applicant’s submissions

38. The applicant relied on their written submissions. Preliminary submissions and final submissions were filed. The earlier submissions focused initially on the perceived failure of the respondent and others to properly assist him with access to services and information about his entitlements. This submission was in part supported by the evidence at hearing.

39. The applicant referred to the acceptance of his counselling claim, and that this was evidence that Victims Services classified him as a victim of an act of violence. Reference was made to the case of CSN as referred to above (in the respondent’s submissions).

40. Reference was also made to the second reading of the Bill by the Hon Michael Gallacher MLC on 29 May 2013 in the Legislative Council.

Staff within Victims Services in my department will assist victims to quickly access appropriate help under the Victims Support Scheme, by assessing victims' immediate needs and preparing an appropriately tailored support package, including counselling, financial assistance and referral to local support agencies. Victims Services will also help victims to understand what documentation they need to provide and to navigate the service system. Accessing help from the Victims Support Scheme will be so much simpler and more straightforward than the Victims Compensation Scheme, which means that there will be no need for victims to routinely obtain lawyers to help them apply for assistance.

41. In addition the applicant referred to Project Blue Sky as supporting the proposition that the applicant was assessed for services by the respondent and as a result the respondent was aware of facts which gave rise to the applicant being eligible for financial support and recognition.

42. Reference was also made to the case of Harvey v Victims Compensation Tribunal and Anor [2001] NSWSC 604 concerning the beneficial aspect of the legislation. That case however examined how the Tribunal had exercised its statutory discretion in refusing a claim out of time under the old Act. Dowd J found at paragraphs 74 and 75:

74. The Tribunal made the following finding:-

“However Section 26(3)(b) does not provide that leave must be given in cases of sexual assault, domestic violence or child abuse. It provides a “policy” for leave to be granted but which is subject to the proviso “unless the Director is satisfied there is no good reason to do so”. Section 26(3) does not simply give sexual assault, domestic violence or child abuse victims the right to lodge an application at any time simply because it is a case of sexual assault, domestic violence or child abuse. There is good reason why s.26(3)(b) provides a specific “policy” of granting leave in cases of sexual assault, domestic violence and child abuse. In my view that is because those types of offences are frequently not reported or disclosed by the victims until some much later time, often because of fear of the perpetrator, shame and embarrassment, or the victim’s tender age.”

75. I consider that the Tribunal has again misdirected itself. A ‘policy’ leaves to the person applying that policy, a discretion. The way that s26(3)(b) is expressed is a clear intention by the legislature to make claims of sexual assault, domestic violence or child abuse outside the general policy, as determined by the balance of s26(3). That discretion should not be limited to exclude the claimant in this case. The finding by the Tribunal that those considerations do not apply, is clearly a manifest error. The history and evidence in this matter clearly shows that the violence occurred. The medical evidence, particularly the finding that I have quoted above as to the finding that she suffers from chronic post traumatic stress disorder, with anxiety and panic, would constitute proper reason for the delay in the making of a claim.

43. Whilst the applicant submitted that Harvey is authority for the beneficial aspect of the legislation in my view it is not on point in the current case. A different question was being considered albeit on whether to accept a claim out of time. There are however many other authorities supporting the concept of the victims’ legislation being interpreted beneficially, and I am cognisant of this provision in determining matters under the Act.

44. In further submissions the applicant referred to section 38 constituting a ‘package’ of victims support. The remainder of the submissions examined the argument concerning the lack of information about other claims, or dealing with the counselling claim in isolation as being tantamount to a denial of procedural fairness.

45. Further reference was made to the Charter of Victims Rights as referred to in the Act.

Consideration

46. I note that the respondent submitted that s 26 of the Act set out the types of ‘support’ available under the scheme. Counselling, Recognition Payments, and Financial Assistance are all types of victims support. The section provides:

26 Composition of support—primary victims

(1) The support under the Scheme for which a primary victim of an act of violence is eligible comprises the following:

(a) approved counselling services with respect to that act of violence,

(b) financial assistance for immediate needs up to a maximum amount in total prescribed by the regulations to cover expenses for treatment or other measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim’s safety, health or well being,

(c) financial assistance of up to a maximum amount in total prescribed by the regulations for the economic loss suffered by the primary victim as a direct result of that act of violence of a kind described in the regulations,

(d) if a recognition payment is payable under this Part in respect of the act of violence—that recognition payment.

47. In my view it is also clear from this definition that both financial assistance and approved counselling are forms of victims support. Part 4 of the Act deals with the Victims Support Scheme. Division 6 of that Part is titled: Victims Support. Section 40 (which deals with the limitation periods – see par 11 above) falls within Part 4. The definitions section under Part 4 is contained in s 18 which provides:

18 Definitions

In this Act:

act of violence—see section 19.

approved means approved by the Commissioner.

approved counselling services—see section 31.

family victim—see section 22.

financial support means the following:

(a) financial assistance for immediate needs under section 26 (1) (b) or 29 (1) (b),

(b) financial assistance in respect of economic loss under section 26 (1) (c), 27 or 29 (1) (d),

(c) funeral expenses under section 29 (1) (c).

grievous bodily harm includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.

primary victim—see section 20.

recognition payment—see section 34.

secondary victim—see section 21.

sexual assault and domestic violence—see section 19 (8).

victim of an act of violence means a primary victim, secondary victim or family victim of the act of violence.

victims support means support in the form of approved counselling services, financial support or a recognition payment under the Scheme.

(Emphasis added)

48. Whilst both approved counselling and recognition payments are forms of victims support, approved counselling does not constitute financial assistance as defined in s 18. This is of relevance because of the wording of s 40 concerning the limitation periods. The section seems to focus on two particular types of victims support (financial assistance and recognition payments), and provide for limitation periods in respect of such claims. Breaking down the section further s-40 (1) addresses financial support and s 40 (4) addresses recognition payments.

40 Time for lodging, and duration of, applications

(1) Except as provided by subsections (2) and (3), an application for financial support must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.

…

(4) Except as provided by subsection (5), an application for a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.

49. On this wording it appears that the legislature intended to at least refer to two specific types of ‘applications’ in the section, and that such applications be separate matters. I note the reference to the words ‘an application for financial assistance’ and ‘an application for a recognition payment’. Each type of application is singularly referred to.

50. Section 38 refers to the making of applications for victims support and again uses the term in the sub section ‘application’.

38 Applications for victims support

(1) An application for victims support may be made by the following:

(a) a victim of an act of violence,

(b) a parent, step-parent or guardian of a primary victim who is a child,

(c) any other person, on behalf of a victim, who has a genuine interest in the welfare of that victim.

(2) The application is to be made to the Commissioner in the approved form, which is to be supplied by the Commissioner free of charge.

Subsection (2) seems to envisage that there are different types of forms for the four different types of applications contemplated by a reading of s 26 (1).

Further Consideration

51. Much of the arguments ventilated in this case concern whether the respondent should have accepted the applicant’s financial support/victim recognition application out of time. In addition it was argued that the basis that a separate claim was only lodged in 2016 is due to a failure by the respondent to comply with the Charter of Victims Rights and other matters concerning assisting victims of violent crime. This hearing and these reasons however are predominantly concerned with:

1. Whether a claim for approved counselling should be treated for the purposes of the limitation periods as a totality of claims for victims support, and

2. Whether if such a requirement is made out (the lodgement of separate claims), the Commissioner of her staff should have accepted the claim out of time.

52. The argument that the respondent did not provide the applicant with the necessary information to attend to these matters both under the Charter of Victims Rights, and other policies governing Victims Services generally and the Act is in my view not something that this Tribunal has power to address. The powers are limited to an administrative review of decisions by the Commissioner concerning recognition payments and restitution.

53. In my view the intent of the legislature was to separate out the types of applications under the current scheme by the specific reference to four classes of victims support in s 26. In addition approved counselling and financial support are separately defined under s 18, which is the overriding definition section for Part 4, which deals with the Victims Support Scheme.

54. Under the old Act the approved counselling services were not referred to in s26 (which covered limitation periods). Similarly under the current Act there is no reference to approved counselling services in s 40 (the current limitation section).

55. Notwithstanding the detailed submissions of the applicant and his evidence at hearing, in my view the legislature clearly intended to make financial payments of any sort subject to limitation periods (under both the old and new Acts). On the other hand the intention appears to be to allow that access to services (such as counselling) to be open-ended from a time perspective, inferred by the absence of any reference to time limits in s 21 and 21A of the old Act, and the absence of any reference to counselling in s 26 of the Act. Likewise sections 31, 38 and 40 of the current Act operate to deliver similar restrictions and benefits.

56. I note that the respondent placed into evidence the various separate forms in use at the relevant times, and these forms provide different information and ask different questions. For example the Counselling Form does not refer in any manner to time limits, whereas Part 12 of the second form (covering all types of support) specifically refers to the time limits (page 32 Exhibit ‘R-1’).

57. In respect of the matters relating to the level of information given to the applicant concerning access to the victims support scheme, denials of procedural fairness and matters relating to the Charter, this Tribunal cannot determine those matters as they do not arise from a decision on a recognition payment or restitution.

58. The situation is that the application was not accepted by Commissioner as it was out of time and the application was therefore dismissed administratively. The parties may wish to examine the evidence tendered in these proceedings should they wish to address the procedural fairness aspects of that matter between themselves. However, I observe that as it appears that the applicant qualifies as a victim of violent crime, then the applicant should be afforded all available assistance under the Charter of Victims Rights consistent with the objects of the Act.

Findings

59. On the basis of the above consideration of all of the evidence and material I find that the legislation makes a clear distinction for the types of victims support being sought and available (s-26 (1) (a) – (d) inclusive). An applicant can apply for victims support in any or all of the categories under s 26 (1) (a), (b), (c) and (d).

60. I also find that on or about 9 January 2014 the applicant made an ‘application for counselling’ under the Victims Support Scheme s-26 (1) (a).

61. I also find that on or about 12 February 2016 the applicant made an application for financial assistance for immediate needs or economic loss, an application for a ‘recognition payment’, and a further application for ‘counselling’. S-26 (1) (a), (b) (c) and (d).

62. Based on the finding at [61], I find that the applications for recognition payment and financial assistance for immediate needs or economic loss, (s-26(1) (b), (c) and (d) were received beyond the period provided for under sections 40 (1) and 40 (4) of the Act.

63. As there is no provision under the Act to extend the time provided for in sections 40 (1) and (4), those applications cannot be accepted by the Commissioner.

Conclusion

64. For the reasons outlined above it follows that as the applications for Victims Support under s-26 (1) (b), (c) and (d) cannot be accepted by the respondent, that claim cannot proceed.

65. For those reasons the application must be dismissed and the decision of the respondent affirmed.

Orders

1. The decision of the respondent is affirmed.

2. The application is dismissed.

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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: 17 January 2018