EIE v Commissioner of Victims Rights

[2020] NSWCATAD 183

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EIE v Commissioner of Victims Rights [2020] NSWCATAD 183

Hearing dates:

3 July 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1)   I extend the time for filing the application for administrative review to the date it was filed.

(2)   The decision of the Senior Assessor dated 28 June 2019 is affirmed.

Catchwords:

Victims Rights and Support – administrative review – Time limits for an application for victims support – act of violence

Legislation Cited:

Victims Rights and Support Act 2013

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Cases Cited:

DXI v Commissioner of Victims Rights [2019] NSWCATAD 194

DSK v Commissioner of Victims Rights [2019] NSWCATAD 170

CKP v Commissioner of Victims Rights [2016] NSWCATAD 108

Turner v Commissioner of Police [2013] NSWCATAP 27

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EIE (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
M Zonolla (Applicant)
P Srikanth, Victims Services (Respondent)

File Number(s):

2020/00089042

Publication restriction:

A non-publication Order is made under s 64 (1) (b) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW).

REASONS FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 20 March 2020, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘EIE.

Background

Application for Victims Support

2. On 8 May 2019, EIE lodged an Application for Victims Support under the provision of the Victims Rights and Support Act 2013 (“the Act”), which alleged that she was a family victim of an act of violence as a result of the death of her brother (name provided). The act of violence occurred on 2 July 2016, when EIE’s brother was stabbed, and he died on 3 July 2016 as a result of his injuries. She sought approval for victims support in the form of counselling and a recognition payment.

3. On 9 May 2019, the respondent approved 22 hours of counselling for EIE.

4. A Police COPS Event Report number E61576450 was created on 11/07/2016. This indicates that on 2 July 2016, EIE’s brother was stabbed at Schofields, in New South Wales, and sought assistance from a resident. the victim informed the resident: “I need help. I dropped my mate off around the corner. He stabbed me and stole my car.” On 7 July 2016, Police arrested the offender and charged him with murder.

Decision at First Instance

5. On 13 May 2019, an Assessor (Client Claims) issued a Notice of decision, which determined that EIE was not eligible for victims support because her application was lodged out of time. The Assessor found that EIE’s brother was the primary victim of an act of violence. However, the assessor stated:

Is (EIE) a family victim of an act of violence?

1. A family victim of an act of violence is a person who, at the time the act is committed, is a member of the immediate family of a primary victim who has died as a direct result of that act (section 22 of the Victims Rights and Support Act 2013 (NSW) (the Act)).

2. A member of the immediate family of a primary victim is defined in the Act as being:

   a)   the victim’s spouse, or

   b)   the victim’s de facto partner who has cohabited with the victim for at least 2 years, or

   c)   a parent, guardian or step-parent of the victim, or

   d)   a child or step-child of the victim or some other child of whom the victim is the guardian, or

   e)   a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim.

3. (EIE) declares in the application form that she is the sister of (the victim). I consider her a family victim.

Is the application made in time?

1. Under s 40 (3) of the Act, an application for financial support or a recognition payment is to be made within 2 years after it is established that the primary victim died as a direct result of the act of violence.

2. The Police report indicates that (the victim’s) death was investigated as a homicide immediately after his tragic death.

3. This means that (EIE’s) application was required to be made no later than 3 July 2018. Unfortunately, the application is therefore out of time.

4. I have no choice but to dismiss the application.

   6. I note that a copy of this decision was emailed to EIE on 13 May 2019, under cover of a letter from the respondent of that date.

Internal review

7. I note that on 13 May 2019, EIE sent an email to the respondent, in which she stated:

I’m sorry but I couldn’t do anything until the court case u listed my mum when I lost my dad four years ago. (the deceased) has my last living sibling it devastated me when I heard of my brothers death. The court case destroyed me knowing that barma only got 11 years for killing my brother. I have a hard time dealing with people. No amount of money can bring my brother back this has destroyed my life. I sometimes feel like I need to be with my passed family. I have push everybody away because of this.

8. On 15 May 2019, the respondent sent an email to EIE in the following terms:

Dear (EIE),

Thank you for your email.

I understand that no monetary amount will compensate for the act of violence. However, unfortunately, as per the assessor’s decision, the Victims Services legislation only allows financial support to be considered if an application is received no later than two years after the date of the homicide. As the application was received past the two year time frame, the financial support component of your application was dismissed.

There is no time frame for counselling, so you can still contact the counsellor to organise an appointment. The counsellor will be able to assist you with the effects of the homicide…

9. On 15 May 2019, EIE sent emails to the respondent in the following terms:

I was not told by anyone that there was a time frame I to put a claim in by.

And

I did have a solicitor handling all this but I haven’t heard from her u think she went back to nz.

10. On 16 May 2019, the respondent sent emails to EIE in the following terms:

Dear (EIE),

The time frame requirements of the legislation for financial support are two years, and I understand this can be frustrating if you were not advised by your solicitor of the timeframe requirements.

If you do not agree with your decision, you may complete the internal review form that was attached with the decision.

However, if this form was completed, the senior assessor will dismiss the application due to it being received outside the timeframe requirements…

And:

…Further to this email, I can provide you with NSW Civil and Administrative Tribunal for advise if you wanted to review the Victims Services decision outside of Victims Services…

11. I note that on 2 June 2019, EIE requested an internal review of the assessor’s decision, although the date of the request is not indicated in the documents before me. In support of her request, EIE stated:

Dear Sir

In response to your letter dated 13/05/2019. I am very disappointed in your action stating I am not entitled to victims compensation. At the beginning of all of this court action I was never informed of a time limit of claim. I was under the impression you had to wait until court action had been finished and whilst money can never replace what I have lost, my last sibling and very close brother.

My state of mind has been greatly affected by his murder and I am finding it very hard to cope with what has happened. There was only the two of us left and we were very dependent on each other for emotional support.

Our brother died suddenly at the age of 15 due to an Asthma attack. We found being young at the time hard to cope with and had to support our parents, who understandably were extremely upset by this, my brother died in my mother’s arms.

Then we lost our mother due to cancer in 2003 aged 56 years, then we lost our father who was suffering from dementia as well as other illnesses in 2014, so there was only the two of us to support each other emotionally, and when needed financially. So once my brother was murdered it has been very hard for me especially…(illegible)…

This has also caused relationship breakdowns with some of my children and myself due to my not coping too well emotionally.

So, I hope you will reconsider your decision…

12. On 7 June 2019, the respondent acknowledged receipt of the request for internal review.

13. On 28 June 2019, the Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that EIE was a family victim of an act of violence, under sections 19 and 20 of the Act, but that as the application was submitted outside the legislative time limits in section 40 of the Act, she was not eligible for a recognition payment. The application was dismissed.

14. The Senior assessor held, relevantly:

Eligibility considerations – time limits

…

1. In relation to a family victim, the following extension of the general time limit applies:

   •   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 subsequent to the occurrence.

   •   In the circumstances described in subsection (2), an application for financial support or a recognition payment 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.

2. In summary, where it is not immediately apparent that an act of violence caused the primary victim’s death, however it is subsequently established that the primary victim died as a direct result of an act of violence; the date that this was later established (for the first time) becomes the date from which the time limit for family victim’s eligibility is determined.

3. I have considered the police report (number provided), which is the earliest dated piece of evidence relating to the act of violence, dated 3 July 2016. As the content of this report was discussed in the decision under review, I do not intend to re-visit it in detail. However, the report clearly indicates that (the primary victim’s) tragic death was considered by police to be a direct result of an act of violence that was perpetrated by an identified offender. This view was held by police from the time of (his) passing at Westmead Hospital.

4. Therefore, it was established that (the primary victim’s) death was a direct result of an act of violence on 3 July 2016, more than two years before the lodgement of the recognition payment application, on 8 May 2019.

5. Based on this evidence, I am unable to find that an extension to the general time limit applies in relation to this application.

6. As no other extension or discretionary exemption is available in relation to the time limits, regrettably, I must find that the application for a recognition payment was made out of time and must be dismissed.

   15. I note that a copy of the review decision was posted to EIE under cover of a letter from the respondent dated 28 June 2019. However, the date on which the letter was posted is not indicated in the documents before me.

   16. On 13 January 2020, a solicitor acting for EIE sent an email to the respondent in the following terms:

We act for (EIE) who wishes to lodge an appeal against the decision made in her application for victims support.

Could you please kindly advise whether the Department will engage in an internal review of the matter if we were to submit documentation for review.

If not, could you please kindly advise of the appropriate pathway of appeal – we are presuming that NCAT would be the next step…

17. On 14 January 2020, the respondent sent an email to EIE’s solicitor as follows:

I refer to your email below.

(EIE) requested an internal review with Victims Services on 2 June 2019.

The internal review was determined and posted to (EIE) on the 28^th June 2019.

Unfortunately an internal review cannot be lodged again with Victims Services.

(EIE) can contact the NSW Civil and Administrative Tribunal… to discuss external review rights.

Application for administrative review

Extension of time

18. The current application for administrative review was filed on 20 March 2020. Pursuant to s 41 (1) of the Civil and Administrative Tribunal Act 2013 (No 2), I extend the time for filing the application to the date it was filed.

The Tribunal’s powers

19. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   20. The matter came before me for Directions on 12 May 2020, when EIE appeared in person and Ms Sabesan appeared for the respondent. I ordered the respondent to file and serve the documents under s 58 of the ADR Act and its submissions by 5 June 2020 and allowed EIE until 19 June 2020 to respond. I listed the matter for hearing on 3 July 2020.

   21. The respondent filed submissions on 15 May 2020, which provided, relevantly:

Grounds of (EIE’s) application to the Tribunal

1. The grounds of (IE)’s application for administrative review are misconceived. They place reliance on the finding of guilt and verdict of homicide in order to establish an act of violence for the purposes of reckoning the time limits imposed by section 40 of the Act…

2. Police report (number provided) is the earliest dated piece of evidence relating to the act of violence, dated 3 July 2016. The report clearly indicates that (the victim’s) death was considered to be a direct result of the act of violence that was perpetrated by an identified offender. This view was held by police from the time of (his) passing at Westmead Hospital. It is well established that the Act does not require a finding of an act of violence on the criminal standard of proof and that findings are made on the balance of probabilities (section 39). The conviction of the offender is irrelevant to the finding of the act of violence, and therefore the time limit for making an application for support.

3. The act of violence was established on 3 July 2016. The applicant’s application for victims support as a family victim was lodged on 8 May 2019, which is outside the two-year time frame.

4. Section 40 does not provide any ability to exercise discretion outside these time limits to accept an application. This was referred to in CKP v Commissioner of Victims Rights [2016] NSWCATAD 108 at [22]. The Tribunal informed the applicant it does not have power to extend the time for the lodgement of an application.

5. Because the delegate had no option but to dismiss the application for recognition payment, that decision is the “correct and preferable” decision. It is correct in the sense that the Act does not allow an application to be made out of time. It is preferable in the sense that, in light of the time limits, there was and is no other option under the Act other than to refuse the approval of a recognition payment…

Eligibility of recognition payment

1. Irrespective of the issue regarding time limits, the applicant is not eligible for a recognition payment…

2. The applicant is the sister of the primary victim. The applicant does not fall under the category of a parent, step-parent, guardian under s 29 (3) of the Act. Furthermore, she has not provided evidence that she is a dependent family member on the primary victim at the time of his death.

3. As the applicant does not meet the threshold under s 29 (3) of the Act, she is irrespective not eligible for a recognition payment.

   22. EIE’s solicitor lodged submissions on 19 June 2020, which provided, relevantly:

…From an administrative review perspective, we note that the Tribunal is not being asked or required to determine the validity of (EIE’s) application, rather, the Tribunal is asked to consider whether the decision of Victims Services to dismiss the application on the grounds of the application being lodged out of time was appropriate in the circumstances.

We ask the Tribunal to consider the following:

1. Did (EIE) have a reasonable excuse or reasonable explanation for lodging her application out of time?

Section 41 of the Civil and Administrative Decisions Tribunal Act 2013 provides for the Tribunal to extend the time for an applicant to make an application to the Tribunal, if the Tribunal believes the applicant has provided a reasonable explanation for the delay in making the application. It provides:…

The decision in Turner v Commissioner of Police [2013] NSWCATAP 27 refers to the correct approach to be taken by the Tribunal in considering this issue. At para 17, the Appeal Panel held:

53. Late applications to Tribunal

(1)   despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

Because providing a ‘reasonable explanation’ or a ‘reasonable excuse’ is all that the Tribunal has to form an opinion about, other considerations such as the merits of the application for review, any prejudice to either party or the public interest are not relevant. The Tribunal made an error of law by taking these other matters into account in reaching its decision.

The appropriate course is to grant leave to extend the appeal to the merits of the Tribunal’s decision: ADT Act, s 113 (3). The other option would have been to remit the matter to the Tribunal for further determination. It is quicker and more efficient to determine the issue myself. The only prejudice to Mr Turner of not remitting the matter is that he will be denied the opportunity to appeal to the Appeal Panel against a further decision of the Tribunal. While this is arguably a disadvantage to him, avoiding further delay outweighs that consideration. The question for me to determine is whether Mr Turner has provided a ‘reasonable excuse for the delay’.

The applicant provides the following reasons for her delay in making the application:

1. The applicant appears to have received incorrect legal advice, or a lack of correct legal advice (in the absence of a positive statement from the Solicitor to the contrary). We refer you to (EIE’s) emails to Victims Services dated 15 May 2019. Relevantly, (EIE) states “I was not told by anyone that there was I time frame I had to put a claim in by” and “I did have a solicitor handling all this but I haven’t heard from her I think she went back to nz.”

EIE placed her trust in a legal professional who has not appropriately advised her in relation to time limitation. We note, the importance of this review, is that (EIE) is entitled to a full decision from Victims Services as to the proper reasons why she may or may not be entitled to the relief she seeks. (EIE) was denied that opportunity on the grounds of lodging the application out of time. This may have exacerbated (EIE’s) trauma from the incident due to (her) perception that she has been denied the closure of appropriate consideration by Victims Services for her application.

1. The applicant genuinely believed, assumed or was misinformed, that the time limitation period for the entitlement to Victims Support commenced as of the date that the Court proceedings against her late brother’s attacker were finalised.

2. Further to the immense grief that the applicant was processing during the two-year period following her late brother’s passing, the applicant was managing other priorities that we submit one could reasonably attribute such a delay in making her application. (EIE) is the full-time carer for her disabled son (name provided) and has been in that role since her late brother’s passing.

3. The applicant is a mother to 8 children and was caring for many of them sporadically during the period that the Court proceedings were on foot and during the period that her brother was killed. One of her 8 children tragically lost his life in a motorcycle accident in February this year. Two of her children live with her full time to this day.

4. The applicant was on a single parent and carer’s pension and therefore did not have the financial resources to seek further legal advice.

5. Ordinarily, the justice system in Australia operates on the premise of ‘innocent until proven guilty”. (EIE) instructs that she believes this was in fact the case with applying for a recognition payment. We refer you to the applicant’s handwritten letter where she states…”I was under the impression that you had to wait until court action has been finished”.

In the absence of correct legal advice regarding the time limitations imposed by the Victims Rights and Support Act 2019 (NSW) (“the Act”) (EIE0 employed logic that we submit could be reasonably expected of a person in her position that was not afforded legal advice to the contrary.

For the above reasons, we submit that the Tribunal can exercise its discretion under section 41 of the Civil and Administrative Decisions Tribunal Act 2013 by finding that (EIE) has provided a reasonable excuse for the delay in making her application, and subsequently allow (her) application to be processed by Victims Services.

The Commissioner has very broad powers to approve financial assistance to eligible victims under s 30 of the act which states that financial assistance may take the form of a grant, allowance, refund of expenditure, direct payment of an invoice, or any other form of financial assistance that the Commissioner may approve.

The applicant has incurred the following economic losses as a direct result of the act of violence:

1.   The applicant incurred out of pocket expenses in the vicinity of $900 for a memorial plaque and storage of the ashes of her late brother at St Matthews Church.

2.   The applicant relied on the deceased for provision of various household services, which the applicant submits would have amounted to financial dependence on the deceased, including.

2.1   Mowing the applicant’s lawn on a fortnightly basis – which would now cost the applicant approximately $70 per fortnight to engage a contractor. The applicant cannot afford this expense since the passing of her later brother.

2.2   Assisting with household cleaning for an average of 2 hours per week. The applicant cannot afford the commercial rate of household cleaning since the passing of her late brother.

2.3   Assisting her with maintenance of the household, including maintaining the electricals in the house (lighting), maintaining clean plumbing throughout the house and gardening. The deceased assisted the applicant with these duties for an average of 30 minutes per week and the applicant cannot afford the commercial rate to engage a contractor to carry out these duties.

Whilst the above may or may not entitle (EIE) to Victims Compensation under section 29 (4) (a) of the act, it is our submission that Victims Services should allow (her) application to be processed on the basis that the applicant had a reasonable excuse for the delay in lodging her application with Victims Services. (EIE) seeks closure through proper consideration of her application to Victims Services and provisions of reasons that extend beyond mere dismissal for lodging her application outside of the prescribed legislative time period.

23. At the hearing of the matter, Mr M Zonolla appeared for the applicant and Ms P Srikanth appeared for the respondent.

24. Mr Zonolla referred to the written submissions lodged in support of the application. He stated that EIE concedes that her application for victims support was lodged out of time and that there is no formal evidence of any financial dependency on the deceased primary victim. He stated that both EIE and the deceased primary victim were in receipt of unemployment benefits from Centrelink at the time of his death.

25. Ms Srikanth relied upon the respondent’s written submissions.

Consideration

26. Based upon a consideration of all of the evidence, I am satisfied on the balance of probabilities that EIE was a family victim of an act of violence under ss 19 and 22 of the Act.

27. However, by reason of s 40 of the Act, EIE is not eligible for victims support in relation to that act of violence because her application was not lodged within the required period of 2-years from the date of the act of violence and the Act does not permit any extension of time.

28. The applicant’s attempt to rely upon s 41 of the CAT Act as a basis for extending the time in which to lodge her application for victims support is misconceived. Section 41 applies to applications made to the Tribunal and, as previously indicated, I have exercise that power in the applicant’s favour in order to extend the time in which she was required to lodge her application for administrative review. However, s 41 does not provide any legislative basis for extending the time limit for lodgement of the application for victims support.

29. While it is not necessary for the Tribunal to determine whether EIE would otherwise have been eligible for victims support as a family victim, I note that section s 29 (3) of the act restricts the approval of a recognition payment to a parent, step-parent or guardian or a dependent family member. While EIE’s solicitors made submissions regarding her alleged financial dependence upon the deceased primary victim, there is no evidence before me that supports those submissions and based upon the available evidence, I am not satisfied that EIE was financially dependent upon the deceased primary victim at the time of his death. Accordingly, I am not satisfied that EIE is eligible for a recognition payment.

30. While EIE’s solicitors also made submissions regarding costs that their client incurred for a memorial plaque and storage of the deceased’s ashes, this Tribunal has no power to review any decision made by the respondent with respect to a claim for financial assistance.

Order

1. I extend the time for filing the application for administrative review to the date it was filed.

2. The decision of the Senior Assessor dated 28 June 2019 is affirmed.

**********

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 July 2020