Ejz v Commissioner of Victims Rights

[2020] NSWCATAD 279

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJZ v Commissioner of Victims Rights [2020] NSWCATAD 279

Hearing dates:

6 November 2020

Date of orders:

11 November 2020

Decision date:

11 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) EJZ is the primary victim of an act of violence for the purposes of ss 19 and 20 of the Act.

(2) The respondent’s decision dated 27 April 2020 is set aside.

(3) The matter is remitted to the respondent for determination of the application for victims support in accordance with these reasons.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – Administrative review – Time limits for an application for victims support – Whether application for victims support was duly made within time limits - Act of violence

Legislation Cited:

Victims Rights and Support Act 2013

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013 (No. 2)

Interpretation Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

EJL v Commissioner of Victims Rights [2020] NSWCATAD 229

CKP v Commissioner of Victims Rights [2016] NSWCATAD 108

Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216

Reid v Taylor [1929] 46 WN (NSW) 171

Bushby v Mackenzie 19 SR (NSW) 104

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EJZ (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Meliora Legal Services (Applicant)
Victims Services (Respondent)

File Number(s):

2020/00223546

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. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 30 July 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 ‘EJZ’.

Background

Application for Victims Support

2. EJZ is legally represented by Mr T Payne, Solicitor. The Tribunal notes that Mr Payne initially received instructions to act for EJZ in 2019 in his capacity as a solicitor employed by the Law Firm, Watson McNamara & White, and that he continues to act in his capacity as the sole principal of Meliora Legal Services.

3. The Tribunal notes that in a letter dated 16 September 2019 to the respondent, Mr Payne served an application for victims support under the provisions of the Victims Rights and Support Act 2013 (“the Act”) on behalf of EJZ. That application was handwritten, indicates that the assault was reported to NSW Police and it identified the COPS Event report number, the identity of the offender and that the offender was convicted of the charge of “Assault and wound person with intent to cause grievous bodily harm” in the District Court of New South Wales.

4. That application alleged that EJZ suffered both physical injuries and a psychological injury as a result of the act of violence and that he sought counselling, financial assistance for immediate needs or economic loss and a recognition payment.

5. There is a dispute between the parties as to whether or not Mr Payne’s letter was sufficient to duly make EJZ’s claim. The respondent asserts that she did not receive that letter and handwritten application and that EJZ bears the onus of proving actual service of the letter and application pursuant to the provisions of the Evidence Act (NSW).

6. This is a significant dispute as it was not until 17 April 2020, when Mr Payne became aware of the respondent’s assertion that his letter dated 17 September 2019 was not received, that he lodged a further Application for Victims Support on behalf of EJZ. This application wrongly alleged that EJZ was the primary victim of an act of violence in the nature of assault that occurred in Dubbo in New South Wales, on 13 December 2018, as follows:

Offender struck (EJZ) with the schooner glass to the left side of the head between temple and ear. (EJZ) stumbled back into the house and fell back on the floor of the hallway of the house. The offender entered through the front door and stood over (EJZ), who was still on the hallway floor and repeatedly punched (EJZ) to the face and head with a closed fist. (EJZ) was bleeding profusely. As a result of the assault (EJZ) suffered a 15cm laceration over the left temporal region extending to the forehead. The laceration involved muscle layer and overlying subcutaneous tissue. There was spurting blood from arteries, but no exposure of bone.

7. This application alleged that EJZ suffered both physical injuries and a psychological injury as a result of the act of violence and that he sought counselling, financial assistance for immediate needs or economic loss and a recognition payment.

8. While the Tribunal notes that both applications referred to a Police COPS Event report, the respondent has advised the Tribunal that it is not authorised by NSW Police to produce a copy of that report to the Tribunal in the documents that it is required to produce under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act).

Decision at First Instance

9. On 27 April 2020, an Assessor (Client Claims) issued a Notice of Decision. The Assessor referred to s 40 of the Act, which imposes time limits for lodgement of an application for financial assistance and a recognition payment and stated, relevantly:

1. Section 40 (1) provides that an adult victim of an act of violence (not involving domestic violence or sexual assault) must lodge their application for financial support and a recognition payment within two (2) years of the act of violence.

2. There is no scope under the Act for any exception to this time frame or the capacity to consider any extenuating circumstances.

FINDINGS

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

1. In his application form, (EJZ) states that the assault took place on 13 December 2018.

2. the Facts Sheet that was provided with the application form indicates that the assault occurred on 13 December 2017.

3. Medical records from Dubbo Hospital that were provided with the application form indicate that (EJZ) was discharged from Dubbo Hospital on 22 December 2017 after being treated for serious injuries following the assault.

4. Victims Support has obtained court records in relation to the charges against the offender in this matter that confirm that the assault took place on 22 December 2017 (case number provided). On 13 December 2018 at Dubbo District Court, the offender was convicted of common assault and wound person with intent to cause grievous bodily harm.

5. Having reviewed all the available material, it is clear that the relevant act of violence date is 22 December 2017.

6. The latest date that (EJZ) was able to lodge the application for financial support and a recognition payment was on or before 23 December 2019, being the next business day occurring two years after the act of violence.

7. (EJZ)’s application was received by Victims Services on 17 April 2020,

8. Unfortunately, the application for victims support was not lodged within 2 years from the date of the act of violence.

9. Therefore, the application for victims support, including the claims for financial support and a recognition payment under the Act, must be dismissed…

   10. The Notice of Decision advised EJZ that he could lodge a written request for internal review within 90 days of being given the Notice of Decision.

   11. I note that a copy of the Notice of Decision and a blank Internal Review Request Form were sent to EJZ under cover of the respondent’s letter to his solicitor dated 27 April 2020. The date of posting of that letter is not indicated in the documents before me, but I note that the respondent emailed a copy to EJZ’s solicitor on 1 May 2020.

   12. On 4 May 2020, Mr Payne sent an email to Victims Services in the following terms:

Good morning,

We refer to the attached decision and wish to advise that we notified victims services of our application last year.

I have attached a letter notifying victims services last year of our application. The online application was additionally filed this year in April, after we had received medical documents from Dubbo Hospital.

We would ask for this notification and application to be taken into consideration…

I note that copies of the letter dated 16 September 2019 and the handwritten application for victims support were attached to this letter.

Internal review

13. Although Mr Payne’s email dated 4 May 2020 did not request an internal review of the respondent’s decision, it appears that the respondent treated it as such a request. On 6 May 2020, respondent sent an email to Mr Payne in the following terms:

Dear Thomas,

I refer to the internal review request that you emailed on the 4 May 2020.

Your request for an internal review has been accepted and is due to be determined by a Senior Assessor on or after the 18 May 2020.

When a decision has been made, Victims Services will notify you…

14. On 20 May 2020, the respondent sent an email to Mr Payne in the following terms:

Dear Thomas,

Please find attached a decision regarding (EJZ)’s review with Victims Services…

15. I refer to the Notice of Review Decision dated 27 April 2020 and note that the Senior Assessor dismissed the application for financial support and a recognition payment on the basis that the application was lodged outside the time limits imposed by s 40 of the Act. The Senior Assessor stated, relevantly:

FINDINGS

Has (EJZ)’s application for financial support and a recognition payment been lodged out of time?

1. (EJZ)’s legal representative indicated in the internal review request that he had “notified Victims Services of our application last year”. Attached to the email was a letter from the same legal representative who was employed at Watson, McNamara and Watt Solicitors.

2. The letter was dated 16 September 2019 and states:

   We confirm that we act for (EJZ).

   We are writing to advise that we wish to file an application victims support for our client and hereby notify you of our application. We are awaiting medical documents to be prepared to file in support…

3. The letter indicates it was sent via post and email to Victims Services relevant postal and email addresses.

4. I note there is no correspondence between Victims Services and the legal representative confirming receipt of this letter and providing advice about lodging this application.

5. Section 38 and 39 of the Act provides the form in which an applicant is required to make an application for victims support.

6. Section 38 (1) states who can make an application for victims support, while section 38 (2) states how the application is to be made:

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

7. The approved form is available on the Victims Services website…. The form can be submitted online (as the applicant did in this case) or can be filled out and sent to Victims Services via post or email. An applicant is able to make one application applying for all types of support or make applications individually. Once received, the applicant is provided a unique case number and the submitted date is taken to be the day in which it was received.

8. Section 39 sets out the documentary evidence requirements for an applicant to apply for certain types of support.

9. Unfortunately, without the legal representative submitting an application in the approved form on 16 September 2019, I am unable to accept that an application had been made at that time. The Act does not provide for an applicant to state an intention to lodge or express an interest in applying for victims support – the application is to be made to the Commissioner in the approved form and the application must be made within the time limit for lodging specified in section 40.

10. The relevant act of violence date was 21 (sic) December 2017, as this is the day in which the act of violence was committed against (EJZ). This has been formed by the facts, indictments and court outcomes.

11. Therefore, for the application to have been considered within time, (EJZ) and his representative were required to lodge their application on or before 23 December 2019, being the next business day occurring two years after the act of violence.

12. The application submitted by the representative on behalf of (EJZ) was received on 17 April 2020

13. Regrettably, I am unable to approve financial support or a recognition payment in this application, as the application was lodged outside the timeframe as required by Section 49 (1) of the Act…

    16. On 24 June 2020, Mr Payne sent an email to the respondent in the following terms:

Good morning Daniel,

We write further to the previous decision made in this matter.

We have recently received the hard file from storage for our client (EJZ). This file was obtained from Watson McNamara & Watt in Armidale, a previous law firm I worked for in Armidale. In the file was the original application sent to Victims Services in 2019. I have attached a copy for your consideration. I had sent a letter which accompanied this to victim services some time ago, as it was only the electronic file I still had from the matter.

I would ask for Victims Services to consider this information…

17. On 24 June 2020, the respondent sent an email to Mr Payne as follows:

I refer to your email below.

The internal review was considered and determined by a Senior Assessor on the 20 May 2020.

Unfortunately Victims Services is unable to review the decision again.

If you disagree with the internal review decision, you may lodge an external review with the NSW Civil & Administrative Tribunal…

18. On 24 June 2020, Mr Payne sent a further email to the respondent as follows:

Thank you for your email.

Could you please show correspondence of my request for an internal review? I never requested a review nor did I fill out the appropriate form to request one. I am familiar with the process and would have filed additional information with a formal request.

I can see you emailed our firm on the 6 May 2020…

I have also reviewed my email of 4 May 2020 and it does not request an internal review.

Could someone please assist me with this enquiry?...

19. I note that the documents before me do not include any response from the respondent to this email.

Application for administrative review

20. The current application for administrative review was filed on 30 July 2020and I am satisfied that it was filed within time.

21. This 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.

   22. The Application came before me for Directions on 4 September 2020, when Mr Payne appeared for EJZ and Ms Srikanth appeared for the respondent. The respondent had not yet provided documents under s 58 of the ADR Act and I ordered them to file and serve these and any written submissions by 23 October 2020. I listed the matter for hearing on 6 November 2020.

   23. At the hearing of the matter on 6 November 2020, Mr Payne appeared for EJZ and Mr Ting appeared for the Respondent.

Applicant’s submissions

24. Mr Payne relied upon written submissions filed on 20 October 2020, in which he argued, relevantly:

…

1. On the 16 September 2019, a handwritten application in the approved form under section 38 (2) of the Victims Rights and Support Act 2013 (NSW) (“the Act”) was sent by post to Victims Services offices in Sydney. This application is attached in the evidence. The letter was sent from Watson McNamara and Watt in Armidale and is date stamped.

2. Several months went by with no response from Victims Services. After receiving no reply, the applicant made calls to Victims Services to enquire about the application. Victims Services replied and advised that they had not received any letter or application and that another application should be made online.

3. Subsequently, an additional application was then made online through Victims Services website on 17 April 2020. Victims Services provided a reply and advised that the application was dismissed as it was out of time.

4. The applicant replied via email to Victims Services asking for an explanation and advising that a letter was sent on 16 September 2019 attaching the application.

5. It is the applicant’s position that we did not request a review of the decision to dismiss the application. The reason the applicant did not request a review is that the applicant was waiting for the original file of the client to be pulled from the previous firm in Armidale, Watson McNamara & Watt. Once received, a formal request for an internal review would be made.

6. The applicant was then notified that their previous correspondence was considered a request for an internal review.

7. It is the applicant’s firm position that no formal request for internal review was made.

Applicant’s position on the date application was made

1. Victims Services advised in their findings that an application can be made by an approved form filled out. This was done so by the applicant 16 September 2019 and there was no response from Victims Services.

2. This letter was date stamped and Victims Services refutes that it was. On the balance of probabilities, the Tribunal can be satisfied that the applicant’s solicitor did send a letter and original application within the time period under section 40 of the Act.

3. When corresponding with Victims Services, the applicant advised that it had emailed the attached letter and application which was sent in September 2019. Victims Services advised that it could not consider the letter as the time period for internal review had pass (sic).

4. A member of Victims Services then advised and reassured the applicant that this information could be lodged with an Application for Administrative Review with NCAT, as they could no longer handle the matter.

5. The applicant should not have to suffer because Victims Services could not locate the letter and approved form which was sent on behalf of (EJZ).

Conclusion

1. The applicant submits the Tribunal can be satisfied on the balance of probabilities that the original application was made within the acceptable time under the Act.

2. The applicant submits (EJZ) should rightfully be entitled to financial support and/or a recognition payment.

   25. Mr Payne maintained that the application for victims support was properly made in September 2019, when he caused it to be sent by post to the respondent under cover of his letter dated 16 September 2019, which was addressed to Victims Services at its street address in Parramatta. He argued that the Act does not require an application to be served upon the respondent either personally or by registered post and if the letter went astray in the mail, it was through no fault of EJZ and he should not be prejudiced as a result.

   26. Mr Payne also maintained that EJZ did not request an internal review of the respondent’s decision at first instance and the respondent should not have treated his letter dated 4 May 2020 as such a request.

Respondent’s submissions

27. Mr Ting relied upon written submissions filed 23 October 2020, which provided, relevantly:

The application was duly made on 17 April 2020

1. The 2019 letter from the representative states:

   We confirm we act for (EJZ). We are writing to advise that we wish to file an application victims support for our client and hereby notify you of our application. We are waiting for medical documents to be prepared to file in support…

2. The 2019 letter indicates it was sent via post and email to Victims Services’ relevant postal and email addresses. There is no evidence of any correspondence between Victims Services and the legal representative confirming receipt of this letter.

3. Sec 38 of the Act requires that an application for victims support must be made to the Commissioner in the ‘approved form’. On 24 June 2020, the legal representative submitted a scanned handwritten application form for victims support. This form was dated 16 September 2019, and signed by the legal representative while he was employed by his previous employer.

4. There is no date stamp or electronic evidence of receipt on the face of this application form, neither is there any correspondence acknowledging lodgement of the application form in 2019.

5. In the absence of such acknowledgment or evidence of lodgement in 2019, the Commissioner submits that the applicant’s application was duly made on 17 April 2020, when Victims Services received the application form submitted online.

The application was lodged out of time

…

1. The applicant was born on 20 March 1992. As the applicant was over 18 years of age at the time of the act of violence, his ability to make an application for an assault expired two years from the end of the period of violence. That is, the applicant was required to have applied on or before 23 December 2019. As submitted in paragraph 17 Victims Services did not receive the application form until 17 April 2020.

2. 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.

3. This was also upheld in DSK v Commissioner of Victims Rights [2019] NSWCATAD and in EJL v Commissioner of Victims Rights [2020] NSWCATAD 229.

4. The Commissioner submits that the applicant is not eligible for victims support for the act of violence as it took place outside the time limits placed by section 40 of the Act. There is no discretion to extend the time limit or accept the application out of time…

   28. At the hearing, Mr Ting argued that strict proof of service of the application for victims support is required, based upon the decision of Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 (Northumbrian).

   29. However, Mr Ting conceded that EJZ did not request an internal review of the decision at first instance and that the respondent should not have regarded the correspondence from Mr Payne as such a request. He also conceded that the address shown in Mr Payne’s letter dated 16 September 2019 is the correct street address for the respondent.

Consideration

Act of Violence

30. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

31. “Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):

1. In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

   (a)   that has apparently occurred in the course of the commission of an offence, and

   (b)   that has involved violent conduct against one or more persons, and

   (c)   that has resulted in injury or death to one or more of those persons.

2. For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

   32. The onus is on EJZ to prove his allegations of assault on the balance of probabilities. There is no dispute that he was the primary victim of an act of violence that occurred on 22 December 2017. Based on the available evidence, I am satisfied that he has established that he was a primary victim of an act of violence for the purposes of sections 19 and 20 of the Act.

When was the claim duly made?

33. I note that the respondent argues that the decision in Northumbrian is authority for the proposition that EJZ must prove actual service of his application for victims support in 2019.

34. In Northumbrian, Brereton J considered the procedure for applying for default judgment under rule 16.3 (1A) of the Uniform Civil Procedure Rules 2005 (NSW). His Honour stated, relevantly:

1. On 4 September, the plaintiffs filed a Notice of Motion, returnable before the Registrar in chambers, in which they sought judgment for damages to be assessed and costs. The Motion for Default Judgment has not been served, as is permitted in the circumstances by Uniform Civil Procedure Rules 2005 (NSW), r 16.3(1A). When the matter came before the court on 21 September, that Motion was referred to me as Duty Judge. The court file was not available that day, and I referred the matter to be dealt with by me in chambers.

2. Whether the defendants are in default so as to authorise the entry of default judgment depends on whether they have failed to file a defence within the time limited by r 14.3(1) or within such further time as the Court allows. The Court fixed 17 July for the filing of a defence, which became the time limited by r 14.3(1). Accordingly default is established.

3. However, there is no absolute entitlement to default judgment, and where no notice has been given of the application, strict satisfaction of the requirements is necessary. That has not been established in respect of service of the Statement of Claim As proceedings had already been commenced and an appearance filed, only ordinary service as distinct from personal service, was required. But Mr Moriarty’s affidavit, the relevant part of which I have extracted above, does not prove that the envelope containing the Statement of Claim was posted, let alone duly posted with the appropriate postage affixed. Proof of service by post requires, at least:

   · Proof that the envelope bore the correct name and address;

   · Proof that the envelope contained the relevant document to be served;

   · Proof that the envelope bore the correct cost of postage; and

   · Proof that the envelope was placed in the post.

4. Precedents may be found in Neville & Ashe, Equity Proceedings with Precedents (NSW), Butterworths, 1981, precedent 19(2), Court Forms Precedents & Pleadings (NSW), “Service of Process”, precedents 40.5, 40.15.

5. While Mr Moriarty’s affidavit proves that the envelope contained the relevant document, it does not prove how the envelope was addressed (except the name of the firm of solicitors), it does not prove that it bore any postage stamp, and it does not prove that it was placed in the post: a solicitor’s statement that the envelope was placed with the outgoing mail does not prove at least on its own that it was posted.

6. I am therefore not satisfied that Mr Moriarty’s affidavit proves service of the Statement of Claim. I am not, without more, prepared to act on the Short Minutes of Order dated 26 June 2006, which although they are expressed to be by consent and provide for that the defendants serve their Defence by 17 July, were not signed on behalf of the defendants.

7. It is necessary to bear in mind that, so far as the evidence goes, the last communication the defendants received was the notice from the Court dated 24 July 2006 to the effect that the Court may dismiss the proceedings if there was no attendance by the plaintiff on the next occasion. While an applicant for default judgment is not bound to give notice of the application unless the Court otherwise orders [UCPR r 16.3(1A)], it is usually prudent to do so [Bushby v Mackenzie (1919) 19 SR (NSW) 104; Reid v Taylor (1929) 46 WN (NSW) 171; Emibarb Pty Ltd v Commonwealth Bank (NSWSC, Greenwood M, 2 March 1992]. In light of the non-appearance by both parties on 24 July, the unsatisfactory evidence of service of the Statement of Claim, and the absence of any evidence of communication between the parties since the Statement of Claim was filed, I decline to enter default judgment on the present state of the evidence without notice to the defendant. I propose to “otherwise order” for the purpose of r 16.3(1A), and to adjourn the motion to enable notice to be given and any further evidence to be adduced.

8. My orders are:

   (1)   Stand over the hearing of the motion filed on 4 September 2006 to 29 November 2006 at 09:30 before me.

   (2) Order that notwithstanding Uniform Civil Procedure Rules 2005 (NSW), r 16.3(1A), notice of the motion and of its adjourned hearing date be served on the defendant, by ordinary service.

   35. The Uniform Civil Procedure Rules do not apply in this Tribunal and in determining this application, I am not bound by the rules of evidence. Section 38 of the Civil and Administrative Tribunal Act 2013 provides, relevantly:

Procedure of the Tribunal generally

1. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

2. Despite subsection (2) —

   (a)   the Tribunal must observe the rules of evidence in —

   (i)   proceedings in exercise of its enforcement jurisdiction, and

   (ii)   proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and..

3. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

4. The Tribunal is to take such measures as are reasonably practicable—

   (a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

   (b)   if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

   (c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

5. The Tribunal—

   (a)   is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

   (b)   may require evidence or argument to be presented orally or in writing, and

   (c)   in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

   36. Mr Payne, as the solicitor for EJZ, has stated that he caused his letter to the respondent dated 16 September 2019, which enclosed a handwritten application for victims support, to be posted to the respondent. A scanned copy of that letter is in evidence before me and I note that Mr Ting has conceded that the street address for the respondent that it bears is correct.

   37. I refer to the Review Decision dated 20 May 2020, and note that the Senior Assessor stated (at [29]) that the approved form of application for victims support can be either completed online or be filled out and sent to the respondent by post or email. However, there is no requirement for an application to be served personally upon the respondent or by way of registered post.

   38. I take notice of the fact that service of a document by ordinary pre-paid mail does not provide the sender with proof of delivery of the posted item. However, the respondent seeks to argue that EJZ must prove that it received the posted application in order to prove that his application was duly made within the time limits imposed by s 40 of the Act.

   39. In my view, the decision of Brereton J in Northumbrian is not authority for a proposition that this Tribunal must have evidence that the respondent actually received an application for victims support before finding that a claim was duly made for the purposes of s 40 of the Act. The Uniform Civil Procedure Rules 2005 do not apply to this Tribunal and in any event, this is not a matter in which the Tribunal is being asked to enter a default judgment in favour of EJZ.

   40. In Northumbrian, his Honour stated that there is no absolute entitlement to default judgment and where no notice has been given of an application for default judgment, strict satisfaction of the requirements under the Uniform Civil Procedure Rules 2005 is necessary. In those circumstances, his Honour found that the plaintiff’s solicitor’s Affidavit was deficient because it did not prove that the envelope containing the Statement of Claim was posted, let alone duly posted with the appropriate postage affixed. His Honour considered that proof of service by post requires at least: (1) Proof that the envelope contained the relevant document to be served; (2) Proof that the envelope bore the correct cost of postage; and (3) Proof that the envelope was placed in the post.

   41. For evidence to be admissible in this Tribunal, it must be logical, probative and relevant. In this matter, there is evidence before me from Mr Payne to the effect that he wrote a letter to the respondent dated 16 September 2019, under cover of which he enclosed a handwritten application for victims support dated 16 September 2019. He also asserts that he caused that letter to be posted to the respondent. The respondent has conceded that the letter was correctly addressed,

   42. The respondent did not seek to cross-examine Mr Payne with respect to his evidence but sought to argue that because it did not receive the letter and application in 2019, the application was not duly made and EJZ is therefore not eligible for victims support by operation of s 40 of the Act.

   43. Based upon a consideration of the available evidence I am satisfied, on the balance of probabilities, that on 16 September 2019, Mr Payne, as a solicitor employed by the Law Firm of Watson, McNamara & Watt, wrote to the respondent and enclosed EJZ’s handwritten application for victims support dated 16 September 2019.

   44. I am also satisfied to the required standard that Mr Payne either posted the letter and application, or caused it to be posted to the respondent through the Law Firm’s mail system by way of ordinary pre-paid mail. I am therefore satisfied that EJZ took all reasonable steps necessary to duly make his application for victims support on 16 September 2019.

   45. I note that by operation of s 76 (1) (b) of the Interpretation Act 1987 (as in force at 16 September 2019), Mr Payne’s letter and the application for victims support dated 16 September 2019 are deemed to have been received by the respondent on the fourth working day after the letter was posted, that is on 20 September 2019.

   46. Accordingly, the application for victims support was lodged within the two-year time limit prescribed by s 40 of the Act and EJZ is eligible for victims support.

   47. In view of the respondent’s concession that EJZ did not request an internal review of the decision dated 27 April 2020, it is not necessary to determine the validity of the review decision dated 20 May 2020. In any event, as the decision that was the subject of the purported review has been set aside, the review decision is a nullity.

   48. There is currently no approval of victims support that can be reviewed by this Tribunal and I am satisfied that the correct and preferable decision is to set aside the respondent’s decision dated 27 April 2020 and to remit the matter to the respondent for determination in accordance with these reasons.

Orders

49. I make the following orders:

1. EJZ is the primary victim of an act of violence for the purposes of ss 19 and 20 of the Act.

2. The respondent’s decision dated 27 April 2020 is set aside.

3. The matter is remitted to the respondent for determination of the application for victims support in accordance with these reasons.

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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: 11 November 2020