Ejl v Commissioner of Victims Rights

[2020] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJL v Commissioner of Victims Rights [2020] NSWCATAD 229

Hearing dates:

4 September 2020

Date of orders:

15 September 2020

Decision date:

15 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the Senior Assessor dated 16 June 2020 is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW - Victims Rights and Support – Time limits for an application for victims support where the applicant was an adult when the act of violence occurred

Legislation Cited:

Administrative Decisions Review Act 1997

Victims Rights and Support Act 2013

Cases Cited:

CKP v Commissioner of Victims Rights [2016] NSWCATAD 108

DSK v Commissioner of Victims Rights [2019] NSWCATAD 170

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EJL (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Victims Services (Respondent0

File Number(s):

2020/00186944

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons

REASONS FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed in June March 2020 (the actual date of filing is illegible), 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 ‘EJL’.

Background

Application for victims support

2. On 4 March 2020, EJL lodged an Application for Victims Support under the provision of the Victims Rights and Support Act 2013 (“the Act”), which alleged that he was a primary victim of an act of violence in the nature of sexual assaults that occurred over a period of time from 10 February 1972 to 10 February 1974 at Sydney, New South Wales. He alleged that the assaults were perpetrated by multiple offenders, that these occurred in his workplace and that he suffered both physical and psychological injuries as a result of the acts of violence. He sought approval for victims support in the form of a recognition payment.

3. There is no dispute that the matter was reported to NSW Police.

Decision at first instance

4. On 15 May 2020, an Assessor (Client Claims) issued a Notice of decision, which determined that EJL was not eligible for victims support because her application was lodged out of time.

5. The Assessor stated, relevantly:

1. The relevant act of violence date is between 10 February 1972 and 10 February 1074, as this is the time period when the act of violence occurred. This has been substantiated by the application and the submissions provided by (EJL). I note that (EJL)’s submissions also indicate that he joined (the employer) on his 18^th birthday and the incidents occurred when he was over 18.

2. (EJL) was required to lodge the application for a recognition payment on or before 10 February 1984. Unfortunately, the application for a recognition payment was not lodged within 10 years from the date of the act of violence.

3. Therefore, the application for a recognition payment under the Act must be dismissed.

4. (EJL) is, however, eligible to access the Act’s approved counselling services.

5. While I am unable to approve support due to the strict time limits in the legislation, I have read the evidence supporting (EJL’s) application and I wish to acknowledge the severity of the acts committed against (him) and the trauma he has suffered as a result.

   6. I note that a copy of this decision was posted to EJL under cover of a letter from the respondent dated 15 May 2020, but the date of posting is not indicated in the documents before me.

Internal review

7. I note that on 23 May 2020, EJL applied for an internal review of the Assessor’s decision on the following grounds:

1. At the time of my early sexual assaults, physical attacks and injury I was still in my 6 months’ probation period from the (employer) awaiting my confirmation exams. The perpetrators of the above were my senior supervisors and watched on by now equivalent rank Chief Superintendent (then District Officer). If I were to make a complaint I would be complaining to my perpetrators and put my career at risk. It has only been since (the employer) has changed from “Private Run” (name provided) to State run department that things slowly changed by force of hand and the above was finally made an offence as per submitted documentation.

2. The same senior supervisors who oversaw and participated in my earlier attacks, followed up further mental assaults against me as Station Officer in charge of (location provided) of allegation of fraud, conspiring with others to defraud, criminal activity, incompetent and incapable Station Officer, and a Police matter. It took me app. 2 years to clear my name and receive a written report from Chief Officer (of the employer) clearing me. Yet I was still forced to report to Headquarters Sydney to take charge costing me my young family’s future in (location provided) and my subsidised rent many dollars in extra costs and excess travel and endless mental damage.

3. To date no action has been taken against these perpetrators and my ability to apply for promotion hampered by lack of confidence in the system and failure to officially accept or note to me the wrongs carried out. It is only in recent times that the (employer) has applied its By-Laws and taking action on sexual assaults, drinking on duty, etc. that I feel able to speak out now, and to apply a rigid time frame for compensation reviews is unfair.

   8. On 25 May 2020, the respondent acknowledged receipt of the request for internal review.

   9. On 16 June 2020, the Senior Assessor issued a Notice of Review Decision, which determined that the act of violence that is the subject of the application is outside of the time for lodging limits set out by section 40 of the Act. The application was dismissed, but EJL remained eligible for counselling under the Act.

   10. The Senior Assessor held, relevantly:

Has (EJL)’s application for victims support been lodged out of time?

1. I am unable to approve financial support or a recognition payment in this application. The relevant act of violence date established by the evidence is between 10 February 1972 and 10 February 1974, as this is the period (EJL) has reported that the act of violence was committed against him.

2. As required by section 40 of the Act (discussed in the above table), (EJL) was required to lodge his application for financial support within 2 years and his application for recognition payment within 10 years of the relevant act of violence date.

3. (EJL) confirmed that he was an adult at the time of the offences, being 18 or 19 years of age.

4. Therefore, for the application to have been considered within time, (EJL) was required to lodge his application on or before 13 February 1984, being the next business day occurring 10 years after the act of violence to be eligible for a recognition payment.

5. The application submitted by (EJL) was received on 4 March 2020.

6. Accordingly, the application for financial support and a recognition payment under the Act must be dismissed.

7. I can appreciate that the act of violence has caused (EJL) significant trauma and that he still experiences a feeling of injustice to this day. I am sorry that I have been unable to approve support in this application. (EJL) is advised, however, that he remains eligible to access the Act’s approved counselling services. This is a free service and a primary victim is eligible for 22 hours of counselling.

   11. I note that a copy of the review decision was posted to EJL under cover of a letter from the respondent dated 16 June 2020. However, the date on which the letter was posted is not indicated in the documents before me.

Application for administrative review

12. The application for administrative review was lodged on 25 June 2020. I confirm that it was filed within the permitted timeframe.

13. 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.

   14. The matter came before me for Directions on 3 July 2020, when EJL appeared in person and Ms Srikanth 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 7 August 2020 and allowed EJL that date to file and serve any further evidence in support of his application. I listed the matter for hearing on 4 September 2020

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

The application was lodged out of time

1. According to the application form, the applicant was a victim of sexual assaults which occurred at his place of employment with (the employer) between 1972 and 1974 in Sydney NSW. The applicant was born in 1953 and was over 18 years of age at the time of these assaults.

2. The time for applying for victims support under section 40 of the Act provides, relevantly:

   40 Time for lodging, and duration of, applications

   (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.

3. As the applicant was 18 years of age (or older) at the time of the alleged act of violence, his ability to make an application for sexual assault expired ten years from the end of the period of violence. That is the applicant was required to have applied by February 1984. The application was submitted on 4 March 2020.

4. Section 40 does not provide any discretion to accept applications out of time. 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 lodgement of an application.

5. This was also upheld in DSK v Commissioner of Victims Rights [2019] NSWCATAD 170, at 39: the Tribunal found that, “by reason of s 40 of the act, DSK is not eligible for victims support in relation to these acts of violence because his application was not lodged within the permitted timeframe and the Act does not permit any extension of time.”

6. The respondent submits that the applicant is not eligible for victims support for these offences that took place over 45 years ago, as it falls outside the time limits placed by section 40 of the Act. There is no discretion, on compassionate grounds or otherwise, to extend the time limit or accept the application out of time.

Conclusions

1. The respondent believes that the correct and preferable decision is to dismiss the application as the Act does not allow an application to be made out of time.

2. The respondent submits that the Tribunal ought to affirm the decision of the respondent made on 16 June 2020 and dismiss this application for administrative review.

   16. On 3 August 2020, EJL filed a further copy of his submissions in support of the application for internal review with the Tribunal, together with copies of various emails that he exchanged with the respondent.

   17. At the hearing of the matter, EJL appeared in person and Ms P Srikanth appeared for the respondent.

   18. EJL argued that because the Act commenced operation in 2013, the 10 year time limitation period should commence from the date of commencement of the Act and not from the end of the period of the act of violence.

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

Consideration

20. Based upon a consideration of all of the evidence, I am satisfied on the balance of probabilities that EJL was a primary victim of an act of violence under ss 19 and 20 of the Act.

21. While I noted EJL’s argument, that the limitation period should commence from the date of commencement of the Act, I am unable to accept this argument as having any sound basis in law.

22. By reason of s 40 of the Act, EJL is not eligible for victims support in the nature of a recognition payment in relation to that act of violence because his application was not lodged within the required period of 10 years from the end of the period of the act of violence and the Act does not permit any extension of time.

23. However, there is no limitation period on approved counselling under the Act and I note that EJL is eligible for counselling under the Act.

Order

1. The decision of the Senior Assessor dated 16 June 2020 is affirmed.

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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: 15 September 2020