Elena Harvey v Victims Compensation Tribunal

[2001] NSWSC 604

CITATION:	Elena Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604 revised - 17/10/2001
CURRENT JURISDICTION:	Administrative Law
FILE NUMBER(S):	SC 30032/00
HEARING DATE(S):	6/2/01
JUDGMENT DATE:	19 July 2001
PARTIES :	Elena Harvey Victims Compensation Tribunal Victims Compensation Fund Corporation
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Ms S Norton- Plaintiff Mr R Lancatser- Defendant
SOLICITORS:	Marrickville Legal Centre- Plaintiff I.V Knight- Defendant
CATCHWORDS:	Victims Compensation Tribunal - Supreme Court Appeal - Mandamus - Denial of Natural Justice - Error - Setting aside determination
LEGISLATION CITED:	Evidence Act 1995 Family Provision Act 1982 Veterans Entitlement Act 1986 (Cth) Victims Compensation Act 1996
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Angus Fire Armour (Aust) Pty Ltd v Collector of Customs (NSW) (1988) 16 ALD 449; 19 FCR 477. Dickinson v Perrignon (1973) 1 NSWLR 72. Hamilton v Consumer Tribunal of New South Wales [1999] NSWSC 847. Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542. L v Veterinary Surgeons Investigating Committee [1999] NSWCA 68. NSW Bar Association v Muirhead (1998) 14 NSWLR 173. Re Kiss and Repatriation Commission (1995) 38 ALD 443. State Rail Authority of New South Wales v Consumer Claims Tribunal (1998) 14 NSWLR 473. Tayros Holdings Pty Ltd v Dyar (Unreported, NSWSC, 23 June 1997).
DECISION:	1. Appeal allowed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

DOWD J

19 JULY 2001

30032/00

Elena Harvey v Victims Compensation Tribunal & Anor

Judgment

1    This is an application for judicial review of a decision made by a Magistrate, a tribunal member of the Victims Compensation Tribunal (‘the Tribunal’) on 2 March 1999. The claimant, Elena Harvey, who had sought an order extending time for the commencement of proceedings for compensation under the Act, submitted that the Tribunal denied her procedural fairness, misinterpreted the provisions of s26 of the Victims Compensation Act 1996 (‘the Act’) and failed to give adequate reasons.

2    Originally, the proceedings had been commenced against the “Director of Victims Compensation Tribunal”, but subsequently the proceedings were amended to include the Tribunal and the Victims Compensation Fund Corporation (‘the Corporation’), as the Tribunal is a proper party to the proceedings, but ought not be the contradictor to the claim. The Corporation therefore has that role in the proceedings

Facts

3    The claimant lodged an “application for compensation as a primary victim” dated 17 April 1998, with the Director of the Tribunal for compensation in relation to the years of physical and emotional abuse she had experienced as a child, perpetrated by her father. An application for leave to accept the application out of time was also lodged with the application under s26(2) of the Act, as the acts of violence occurred more than two years earlier. An application lodged out of time may only be accepted with leave.

4    The application for leave was made by way of a letter from the claimant’s then solicitors, Coleman & Greg, in the letter of 21 April 1998, which included the following sentences:

“The details on the application form are only brief, and much more information is available, should you require it to assist you in your consideration of hearing this application out of time.
“Should you require any further information, please telephone.
“I look forward to hearing from you shortly”.

5    At the time of lodging the application, the claimant was some forty-eight years of age. The claimant submitted that the inordinate delay in making the application was due to the fact that she was not in a fit emotional state until applying in 1998, and that since her father’s death in October 1991, she has been involved in a Family Provision Act 1982 dispute. In addition to these reasons, the claimant further submitted that she was unaware of her entitlements under the Act.

6    On 22 June 1998, the application for leave to accept out of time was refused by an assessor of the Tribunal. In his reasons for refusing the application, the assessor cited, inter alia, the considerable delay in the lodging of the application, and that there was no prima facie evidence to support the compensation claim. The claimant was notified of this decision by letter dated 23 June 1998.

7    Following notification of the refusal, the claimant then appealed to the Tribunal against that determination under s36(2) of the Act. Section 36(3) of the Act requires that the appeal be made no later than three months after the date on which the notice of the determination was made by the Assessor and served on the claimant. As such, the claimant effectively had until 26 September 1998 to lodge the application.

8    The Grounds of Appeal were prepared by the claimant’s then solicitors together with a covering letter. Both of these documents were dated 21 September 1998. The two documents were placed in the Document Exchange box on that same day. The Notice of Appeal was not however stamped as received by the Tribunal until 2 October 1998, that being outside the three month appeal period.

9    Nevertheless, the application was considered by a Tribunal Member on 2 March 1999, and was however dismissed as being incompetent, out of time and without merit. In the reasons for judgment, the Tribunal held that being unaware of victims compensation entitlement did not constitute a “good reason” for leave to be granted, nor did the claim that the claimant was not in a fit emotional state. The Tribunal Member also noted that in seeking to lodge the Notice of Appeal out of time, no “exceptional circumstances” were submitted, as required by the Act.

10 The claimant, prevented from appealing the matter further as no appeal lies to the District Court against a decision of the Tribunal to refuse leave for a late application: s39(4) of the Act, now applies to this Court under ss65, 69 and 75 of the Supreme Court Act 1970, for prerogative relief in respect of the decision of the Tribunal to refuse leave for a late application for statutory compensation.

11    The claimant seeks the following orders from this Court:

1. An order, if it is necessary, extending the time for the commencement of these proceedings.
2. An order in the nature of Certiorari removing to this Court the record of the proceedings before the first opponent for the purpose of quashing an order made by a magistrate and tribunal member on 2 March 1999 pursuant to the Victims Compensation Act 1996.
3. An order that the first opponent erred in law in refusing to grant the claimant an extension of time sought under the provisions of Section 26(b) of the Victims Compensation Act 1996.
4. A declaration that the determination made by the magistrate and tribunal member was wholly erroneous and did not correctly consider and apply the provisions of Section 26 of the Victims Compensation Act 1996.
5. An order in the nature of Mandamus that the matter be remitted to the opponent and heard and determined according to law.
6. An order that the opponent pay the claimant’s costs of this summons.
Denial of Procedural Fairness

12    The claimant submitted that the Tribunal and the assessor denied her procedural fairness under Pt 2 of the Act, when her application was first determined by the assessor and when her application was determined by the Tribunal Member.

13    As to the submission concerning the assessor, the claimant submitted that prior to the assessor dismissing the application, she should have indicated her intention to dismiss the application and invited the claimant’s then solicitor to make further evidence in support of the application. The claimant submitted that despite being notified that there was further information available supporting the application which, in fact, there was, were it required, the assessor did not contact the claimant’s then solicitors prior to refusing leave. The claimant submitted that the assessor’s failure to request any further information before making her decision was a denial of procedural fairness.

14    As to the submission that the claimant was denied procedural fairness by the Tribunal Member, the claimant submitted evidence or submissions should have been sought from the claimant’s solicitor before the determination was made that the internal appeal was lodged out of time. The claimant further submitted that the Tribunal Member was wrong in determining that the claimant’s application was lodged out of time. The claimant submitted that the application was lodged within the three month time period as stipulated by s36(3) of the Act, and that the determination by the Tribunal Member that the Grounds of Appeal were only lodged on 2 October 1998 was incorrect.

15    As to the claimant’s submissions, the Corporation submitted that there was and is no obligation of procedural fairness upon the Tribunal to make any inquiries of the claimant at any stage during the proceedings, that is, neither at the Assessor or appeals stage. The Corporation submitted that the Tribunal was and is entitled and obliged to act only on the material submitted to it by claimants. The Corporation further submitted that at the appeals stage, all that was necessary for the Tribunal, in the present case, to have to make its decision were the Grounds of Appeal under cover letter dated 21 September 1998, and the fact that those documents had been received by the Tribunal on 2 October 1998.

16 The Corporation further submitted that the claimant’s submissions that the appeal was lodged within time is incorrect. The Corporation submitted that a document is not lodged with the Tribunal when it is placed in a tray for distribution by DX and that unlike articles sent by post under s160 of the Evidence Act 1995, there is no presumption of receipt of materials sent by DX. The Corporation submitted therefore that the appeal was clearly out of time and that the Tribunal Member did not err in dismissing the appeal.

This Court’s Power to Deal with the Relief Sought

17 The claimant, in bringing these proceedings, relies on ss65, 69 and 75 of the Supreme Court Act 1970. Section 69 of the Supreme Court Act, with some qualifications, provides a power for proceedings in this Court in lieu of the former prerogative writs, and continues the jurisdiction of this Court to grant relief through remedies in the nature of that prerogative relief.

18 Section 69 declares that the Court’s power to grant relief includes jurisdiction to make any such order on the basis of an error of law on the face of the record of the proceedings of a Court.

19    For the purposes of these proceedings, I find that the Tribunal is an Inferior Court for the purposes of this Court’s consideration, and for the application of the principles of judicial review: NSW Bar Association v Muirhead (1998 ) 14 NSWLR 173, at 185ff, Hamilton v Consumer Claims Tribunal of New South Wales [1999] NSWSC 847, State Rail Authority of New South Wales v Consumer Claims Tribunal (1998) 14 NSWLR 473 at 478-480.

20 Under s75 of the Supreme Court Act, declaratory relief can also be granted.

21    A person aggrieved by the determination of an assessor to refuse leave for late application, may appeal to the Tribunal under s36(2) of the Act, subject to the time limitation referred to above. Clearly, under the provisions of the Act, there is no provision which prevents this Court in a proper case exercising its power to quash or review a decision of the Tribunal to refuse a leave for late application. The provision of the Act providing for appeal to the District Court as to various matters specifically excludes an appeal against a determination not to grant leave for a late application.

22 The Supreme Court has a general power under s65 of the Supreme Court Act to order any person to fulfil any duty, in the fulfilment of which power the person seeking the order is personally interested. This power is expressed as being in addition to any other powers of the Court, and particularly additional to the s69 powers. There is no issue in the proceedings that the claimant is a person who has a personal interest in the orders sought.

23 The s65 powers provide for a simplified process for the Court to issue orders which will have the same compulsive effect as writs of mandamus that are available free of the technical procedural limitations which restricted the grant of the prerogative writ of mandamus: Dickinson v Perrignon (1973) 1 NSWLR 72, at 82-84. However, powers under s65 ought not however to be exercised where more specific statutory remedies are available.

24    The Court has a discretion to refuse relief in the nature of prerogative relief if relief would be of no present utility: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, and 594-597, and if there is undue delay in seeking mandamus. The delay in proceeding with the appeal to this Court, being largely occasioned by legal and approval problems, entitles this Court to find that there is no undue delay, and I so find.

25    It is submitted by the Corporation that this Court is disinclined to grant prerogative relief or relief in the nature of prerogative relief where there is a facility of internal appeal readily available: L v Veterinary Surgeons Investigating Committee [1999] NSWCA 68.

26    In the present proceedings, under the Act there is the facility of an appeal to the District Court, as referred to above, which would make relief in the nature of prerogative relief inappropriate, but under s39(4) of the Act, there is no appeal to the District Court against a decision of the Tribunal to refuse leave for late application. The Court should not therefore decline on discretionary grounds to entertain an application for relief in the nature of prerogative relief in respect of a refusal to grant leave for a late application.

27    Clearly, these proceedings constitute a proper matter for the Court to exercise its discretion in respect of the issues raised in the Amended Summons, as there is no other relief available, and the relief would be of utility, and there has not been undue delay since the exercise of the assessor’s or the Tribunal’s findings.

28    The basis of the claimant seeking relief is not on the basis of jurisdictional error or whether the decision is effected by fraud, and thus leaves the claim for relief on the basis, first, of a failure to observe procedural fairness, and secondly, on the basis of an error of law demonstrated on the face of the record.

Structure of the Act

29    Section 26 of the Act provides as follows:

“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.
(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 purposes 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”.

30    From this section, it can be seen that although there should not be an extension of time unless good reason is given, that leave should be given in a case of domestic violence or child abuse, unless the Director is satisfied there is no good reason to do so. Section 26(3)(d) only applies to incorporate matters as to reporting to a police officer if the determination is under s26(3)(a). Therefore, it is not relevant to a determination as to the Director being “satisfied that there is no good reason to grant leave” under s26(3)(b) of the Act. It should be noted that s 26(3)(c) simply provides for a circumstance where the only reason given is the unawareness of the applicant. “Merely” can only be given this meaning. Accordingly, the claimant being unaware of the time to lodge the application, is a policy which is applicable to the granting of leave, and should therefore be taken into account as a factor if there is any other material to examine in the exercise of the Director’s discretion.

31    Section 27 provides that applications duly lodged are to be considered by a Compensation Assessor. The application for leave to apply out of time requires the leave of the Director, who may under s63 of the Act delegate to a compensation assessor his function to grant such leave. I note that the determination by the assessor on 22 June 1998 refusing leave does not purport to be a determination by the Director, nor does it purport to be a determination pursuant to a delegation under the Act to the assessor of the Director’s powers, and on the face of the determination is not a determination of the Director, the person appointed by the Act.

32    No point, however, is taken by the claimant in respect of the assessor’s determination in the Grounds of Appeal, nor was that issue raised in the course of the hearing before me. I must therefore presume that the claimant accepts the fact of the exercise of due delegation by the Director to the assessor.

33    Div 5 of Pt 2 of the Act then sets out the procedure and mechanics of awarding compensation, imposing conditions and awarding costs.

34    Under Div 6 of Pt 2, an appeal is provided to the Tribunal by s36(2) for a person aggrieved by the determination of the Director to refuse a late application for compensation, and grants power to extend the three months for making an appeal “within such further time as the Tribunal may in exceptional circumstances allow”.

35    Section 38 provides for the procedure for hearing and determination by the Tribunal, incorporating prescribed rules and practices of such hearings as provided in Sch 2 of the Act. The Tribunal has power to determine a matter without hearing if it is so satisfied.

36    Section 38(3) is unusually couched, in that it purports to deal only with an appeal from a determination from a compensation assessor, and not an appeal from a determination by the Director. Even though the Director may delegate the determination to refuse leave for late application for statutory compensation to an assessor, that determination by the Director is specifically referred to in s36(2) of the Act, quite separately from the appeal from an assessor under s36(1). Even though the function is delegated to the assessor, it is nevertheless the Director’s determination. If, for instance, the Director had not delegated that function to an assessor, and had determined the matter him or herself, s38(3) does not appear to apply to the exercise of the Director’s discretion under s26(2) of the Act.

37    Section 38(4) provides that the relevant provisions of Div 5 shall apply in a determination by way of appeal under Div 6 of Pt 2 of the Act. The Tribunal may affirm or set aside any determination of a compensation assessor, or remit the application to be considered and determined again by a compensation assessor in accordance with the direction of the Tribunal, or may remit the matter if further material received by the Tribunal could have reasonably been provided to the compensation assessor who dealt with the matter. It seems to me that notwithstanding the omission of any reference to an appeal from a discretionary decision of the Director in s38, that the determination by the Tribunal as set out in s38 of the Act must contemplate a determination by the Director and the provision of s38 should apply other than s38(3) of the Act.

38    In my view, the interpretation of the powers of the Tribunal in its appellate function, that is, other than by reference could mean that only ss38(1), (2), (4), (5) and (6)apply to an appeal under s36(2) of the Act, which obliges the Tribunal to exercise the powers set out in ss26(2) and (3) of the Act as the only part of Div 5 which logically apply, and thus substantially the Tribunal should exercise the appeal from the refusal to grant leave as provided in s26(2) of the Act, and thus to consider matters set out in ss26(3)(b) and (c) of the Act only.

39    For the purposes of this appeal, however, I can see no difference if s38(3) of the Act also applied to an appeal under s38(2) of the Act.

40    The Corporation submitted that as the appeal was disposed of on two bases, firstly that the appeal was incompetent when made out of time, and secondly, that the refusal to grant leave to lodge the statutory compensation application was properly refused, and therefore each of those conclusions were independently sufficient to dispose of the appeal, the claimant must successfully prove both conclusions to succeed before this Court. I accept those submissions.

41    The determination by the Director to refuse leave to lodge out of time was made on the basis of a letter enclosing an application, the assessor being on notice that there was in fact additional material available. The purpose of the Act is beneficial, as being used to grant benefits to people otherwise unable to recover compensation for injuries done to them. It should thus be interpreted in favour of the grant of benefits to a claimant. For the assessor, in exercising the Director’s powers, to examine a determination in the knowledge in this case of the fact that there is material available which has not been provided, is, in my view, an error in the exercise of that discretion looking at the purposes of the Act. The determination by the assessor is, on the face of the record, an absurdity, when the letter enclosing the application makes it clear that there is more material available, and the determination finds that there is insufficient evidence provided.

42    As a matter of procedural fairness, however, I do not consider that there is an obligation generally on the Director of the Tribunal, where an application is lodged, which appears to contain the material comprised in the application and required by the application, to seek to ascertain if there is further information or to indicate that it is proposed not to grant leave to lodge out of time.

43    In the normal course, an applicant must be presumed to have provided all the information that is required. If however an application is clearly incomplete or foreshadows additional information, it is at that stage that procedural fairness requires a request for additional information in the same way that the appeal was listed for hearing, a letter was forwarded to the claimant requiring additional submissions.

44    I consider that the assessor, being on notice that additional material was available but had not been included, in the light of the nature of the form that is lodged, obliged the assessor to seek that additional information by way of letter or to point out that failure to provide the information to the claimant, and constitutes a failure to accord procedural fairness and this is a denial of natural justice notwithstanding the incompetent way in which the solicitors lodged the original application.

45    I consider further that notwithstanding that s26 of the Act provides a number of policies to be applied, there is no interpretation of those policies that displaces the ordinary meaning of the words in subsection “the director is satisfied that there is no good reason to” grant leave. The reasons advanced by the assessor include a finding that the claimant was born in Greece, that being a finding of total irrelevance as no inference can be made as to when she came to Australia.

46    Part 4 of the application form clearly states that the acts of violence happened largely in the family home in Strathfield South, clearly within the jurisdiction of New South Wales. The assessor then stated that there was no evidence to support a prima facie eligibility to compensation under the jurisdiction and that there was no evidence whatsoever to support her claims.

47    The evidence before the assessor was a claim form largely expressed in general terms but it is a statutory declaration, made by the claimant herself, being the person on whom the injuries, assaults, and abuse were perpetrated. The claim sets out, inter alia, that she was tied to the kitchen table as a young child; that her father would hit her on the face and back with objects such as chairs or bare hands. She alleged that he burnt her books; held a knife to her throat; threatened to kill her; verbally abused her in front of people; and hit her with rubber hoses She alleged that that behaviour continued through her childhood, for the duration of her father’s life, until 1991.

48    It is clear that there was no supportive evidence lodged. However, the assessor, in holding that there was no evidence, was in error since clearly the assessor had some evidence before him. As to abuse, again, the finding was that “there was no evidence whatsoever” on which to make a finding that the abuse occurred in a domestic situation. The whole application indicates that largely, the incidents occurred in the home and involved a father and a child. The assessor then took into account a difference in surname and inferred a change in name through marriage, a factor that is totally irrelevant as no inference can be drawn on the face of the application as to when the marriage occurred, or what effect, if any, that had on the pattern of injury.

49    The assessor then took into account an inappropriate consideration that the allegations were serious and the fact that there was no evidence in support which was thus even more a reason to decline leave. The assessor was on notice that there was evidence to support the application. In any event, the seriousness of assaults against children does not necessarily involve supportive evidence or witnesses. Absence of corroboration per se is an inappropriate consideration to take into account.

50    On the face of the reasons given, the assessor also took into account “the inherent deficiencies in the way this matter has been presented”. There is no doubt that as presented to the assessor, there were deficiencies in presentation. This factor, of itself, was inappropriately considered by the assessor. It is a matter outside the factors which should be taken into account and constitutes an error of law as a factor to be taken into account in exercising the policies under the Act to determine whether the Director should grant leave to lodge out of time.

51    For the reasons set out above, I consider that the claimant was denied procedural fairness and denied natural justice in the consideration by the assessor. The assessor erred in that determination by failing to consider the matters set out above which ought to have been taken into consideration and, as set out above, has taken into account matters that ought not to have been considered in the exercise of the discretion contained in s26(2) of the Act.

52    I consider, therefore, that the Director erred in law in refusing to grant the claimant an extension of time sought under the provisions of s26(2) of the Act.

The Question of Lodgment of the Appeal to the Tribunal Within Time

53    The issue in the present case is whether the application for review was “made” on 21 September 1998 when it was placed in the DX Box. If this question is answered in the affirmative, then the three month rule would have been complied with and the application could not therefore be considered as being out of time.

54    Section 36 of the Act provides that an appeal “may be made ” to the Tribunal against a determination of the Assessor:

“(a) within the period of three months after the day on which the relevant notice of the determination made by the compensation assessor or Director was duly served on the person, or
(b) within such further time as the Tribunal may in exceptional circumstances allow.”

How an the appeal is made is left silent by the Act.

55    In an application under s25 of the Act, one can assume that an appeal is made when it is lodged with the Director. What might constitute lodgment under the Act however is another question.

56    I am not aware of any decision in which a Court in Australia has been asked to consider what might constitute a lodgement under the Victims Compensation Act. There are however some few cases on the question of lodgment in other Acts, and I have been referred to the cases of Re Kiss and Repatriation Commission (1995) 38 ALD 443 and Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542.

57    In Re Kiss, which was a decision of the Administrate Law Appeals Tribunal, Matthews J, then President, had to consider two applications made under the Veterans Entitlement Act 1986 (Cth). Like the Victims Compensation Act, the Veterans Entitlement Act was also silent on what might constitute lodgment. The claimant in Re Kiss submitted that the central test concerned is that of control, that once an application is passed from control of the applicant to the control of the tribunal, then it is effectively lodged. Her Honour Matthews J rejected the control test, however finding prevailing authority to the contrary, that some element of reciprocity is required.

58    In Howship Holdings, and in a later case, Tayros Holdings Pty Ltd v Dyar (Unreported, NSWSC, 23 June 1997), the Supreme Court was asked what constituted service of a summons through DX under s109Y of the Corporations Law. Like Re Kiss, these cases seemed to suggest that service or lodgement without some receipt could not be considered good service.

59    The question here, however, is not whether the appeal is lodged, because that fact is not in question. The issue is as to when the letter was received, being clearly a date between 21 September 1998 and 2 October 1998. Since both of those days were working days, there were therefore two weekends during that period. There is therefore a period of eight working days involved, the 26 September 1998 being the relevant date for lodgement.

60    The evidence of the applicant as to lodgement is supported by an affidavit of Nyree Deiirmendjian of 23 May 2000, and although couched in terms of an affidavit being partly from her own knowledge and partly from information contained on the file, the affidavit asserts that it was sent to the Tribunal on 21 September 1998. Ms Deiirmendjian was not cross-examined on her affidavit, and there is no issue that was raised which questions the truth of the action she took. The Court has not been provided with any evidence as to the system which prevails in the office of the Tribunal, and as to what delays may occur in that office in the handling of mail and documents coming from the Document Exchange.

61    The evidence therefore of Ms Deiirmendjian is uncontradicted as to the actual date of forwarding to the Tribunal by the Document Exchange, and is backed up by uncontradicted records of her office. There is clearly no presumption as to delivery, but in the light of the fact of delivery, which is not contested, the Court is able to infer that in the normal course, an organisation such as the Tribunal, would collect and deliver material lodged at the DX with reasonable promptness, and therefore I infer that the claim would have been received by the relevant date, being 26 September 1998.

62    That inference, however, would not have been available to the Tribunal who would have only been presented with a letter, where it bears a date of being received on 2 October 1998, and the Tribunal inevitably must accept that as the date of receipt. Therefore, on that issue, there was no error on the part of the Tribunal in determining the fact that the appeal was lodged out of time.

The Determination by the Tribunal

63    When the matter was heard by the Tribunal, there was available to the Tribunal, a statement of the claimant filed on 26 August 1998; a statement of the claimant’s cousin, Tina Pappas, dated 26 August 1998; and a statement of Josephine Volpe of 26 August 1998. Those documents were lodged with the Notice of Appeal. There was also available a medical report of Dr Nicholas Cassimatis dated 16 November 1998; a letter written by Dr Nicholas Cassimatis dated 29 September 1981, and a further letter written by Dr Cassimatis, dated 3 August 1998.

64    At the time of the consideration by the Tribunal members on 2 March 1999, the claimant’s solicitors had received a letter from the Registrar of the Tribunal, seeking submissions as to the special grounds which exist for leave to be given to admit the fresh evidence. In reply to that letter, the psychiatric evidence was furnished, being the report of Dr Nicholas Cassimatis of 16 November 1998. That letter advised the Tribunal that Dr Cassimatis had been the claimant’s treating psychiatrist during 1978; for five months of psychotherapy in 1981; and July to November 1998. That letter also requested that the material be included in the evidence before the Tribunal.

65    Clearly, it would have been desirable for proper submissions to have been made, in the light of the then contention by the Tribunal that the appeal had been lodged outside the three month period.

66    If the Tribunal is entitled to receive evidence under s38(3) as being an appeal from a determination of the assessor in this claim, then clearly since the evidence additionally provided was received by the Tribunal and constitutes the overwhelming bulk of evidence in support of the application, it is clear that the Tribunal ought, in the proper exercise of a discretion, receive that further evidence.

67    If subsection 38(3) of the Act does not apply to an appeal under s36(2), then s38, nevertheless, by subparagraph 6, contemplates the Tribunal examining evidentiary material and requires the Tribunal to determine whether that material could reasonably have been provided to the compensation assessor who dealt with the matter. That is clearly the case here. Section 38(6) of the Act provides, in addition to the powers in subsection 5 to affirm or set aside the determination, is specifically required by subsection 6, which is in the following terms:

“ 38. Hearing and determination by Tribunal

…..(6) The Tribunal is to so remit the application if further evidence and material received by the Tribunal could reasonably have been provided to the compensation assessor who dealt with the matter.”

and should have so remitted the matter as clearly the evidence in these proceedings could reasonably have been provided to the compensation assessor.

68    The evidence in support, lodged by the claimant, was her own very detailed statement showing injuries as a child and as an adult, and which were supported by detailed observations by two independent witnesses of many of those incidents of abuse and violence. The application was supported by detailed evidence by a doctor who could give evidence covering significant parts of the period from 1978 to quite late in the period of violence and abuse. That medical evidence showed very significant damage to the claimant and are matters which ought properly to have been considered by the Tribunal in the event of any determination as to special circumstances.

69    The Tribunal in its reasons, determined that the Notice of Appeal was lodged out of time. The Tribunal then found “no ‘exceptional circumstances’ had been submitted by the solicitors seeking leave under s36(3)(b) to lodge this Notice of Appeal out of time”. In that respect, the Tribunal did not consider evidence that was already before it.

70    The solicitors for the claimant in lodging the original claim on 21 September, had been advised in the letter of the claimant’s solicitors of 26 June 1998, had been advised that it would take some time to put together the required documents. The letter of 21 September 1998, of the claimant’s new solicitors Castagnet & Associates, in lodging the material, stated “we are still awaiting responses by the Police Service as to the reports of the acts of violence and a medical report from our client’s treating psychiatrist, and shall forward the same when to hand.”

71    In answer to a request from the Tribunal for submissions, the solicitors for the claimant in forwarding additional material on 11 December 1998, furnished a medical report of Dr Cassimatis of 16 November 1998, which was not received until 20 November 1998, and that letter contained a request that the medical report be included in the evidence. The medical evidence clearly provided evidence in addition to the damage to her personality structure and had found that the claimant suffered from a “chronic post-traumatic stress disorder with anxiety and panic.”

72    The Tribunal clearly misdirected itself in saying that there was no evidence furnished by the solicitors. Clearly, the evidence furnished as summarised above, constituted evidence which was available and indeed should have been considered in the determination of exceptional circumstances. The Tribunal was therefore In error in finding that there was no such submission.

73    I consider that the words ‘exceptional circumstances’ must be looked at in each case. Clearly, where an applicant is unable to provide material within time and the Tribunal has been so notified, and the claimant has been awaiting material from another Department, namely the Police Service, and the time that constitutes the exceeding of the appeal period, is at most, three or four working days, this would constitute in the proper exercise of a discretion, exceptional circumstances. In beneficial legislation such as this, a claimant ought not to be deprived of the right to make that claim or to appeal against a determination on the claim, through no fault of her own where the exceeding of the period is so short. If it had been a matter of some months, then clearly ‘exceptional circumstances’ would require additional evidence.

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.

76    The finding that there is absolutely no good reason why the applicant could not have lodged an application during the early 1990’s, flies in the face of the clear medical evidence before the Tribunal, and therefore, the Tribunal also misdirected itself and was in error.

77    The Tribunal also misdirected itself in its finding that being unaware of victim’s compensation is not a good reason. The test which the Tribunal applied is that in s26(3)(a), not the test in 26(3)(b) which requires the director to be satisfied there is “no good reason” to grant leave. Thus the Tribunal erred in the test that it applied.

78    I consider further that the Tribunal has considered in isolation, the fact of not knowing of victim’s compensation, does not constitute a good reason for the applicant being permitted to lodge an application out of time. This also is an application of the test under s26(3)(a) not s26(3)(b), and in any event, the policy in this respect, says that being unaware of the victim’s compensation should not merely be used, that is, not be used solely. This claimant’s claim for leave to lodge out of time, is based on other factors as well and thus the Tribunal has misdirected itself. There is also an error on the part of the Tribunal in the finding that if the applicant was capable of seeking advice under the Family Provision Act, then she was capable of seeking advice on victim’s compensation.

79    In my view therefore, the Tribunal, in the misdirections that I have referred to above, has erred in the determination and the determination therefore should be set aside.

80    In the light of the fact that the claimant has been wholly successful in these proceedings, I can see no basis for any order other than that the claimant should have costs of this proceedings, including the costs of the hearing before the Tribunal.

Orders

81    In these proceedings, I make the following orders:

1. That the record of the Tribunal determination of 2 March 1999, be removed to this Court in the nature of certiorari.

2. That the determination of the Tribunal member of 2 March 1999, pursuant to the Victim’s Compensation Act, be quashed.

3. I declare that the determination by the assessor refusing to grant leave to file an application under s26(b) of the Victim’s Compensation Act, was an error of law.

4. I order that the in the nature of mandamus, that the complaint be remitted to the Tribunal and heard and determined according to law.

5. I order that the corporation pay the claimant’s cost of these proceedings.

oOo

Last Modified: 10/22/2001