Victims of Crime (Statutory Compensation) Regulations 2019 (SA)

South Australia

Victims of Crime (Statutory Compensation) Regulations 2019

under the Victims of Crime Act 2001

1Short title

These regulations may be cited as the Victims of Crime (Statutory Compensation) Regulations 2019.

3Interpretation

In these regulations, unless the contrary intention appears—

Act means the Victims of Crime Act 2001;

allied health practitioner means a health practitioner other than a dentist or medical practitioner;

dentist means a person registered under the Health Practitioner Regulation National Law—

1. (a)

   to practise in the dental profession as a dentist (other than as a student); and

2. (b)

   in the dentists division of that profession;

hospital report, in relation to a victim, includes a report on the victim written by a member of the hospital's medical personnel, the whole of the victim's record from the hospital or the written summary given to the victim on the victim's discharge from the hospital;

limited claim—a claim for statutory compensation is a limited claim if it is limited to a claim for compensation for 1 or both of the following:

1. (a)

   grief suffered in consequence of the commission of a homicide (see section 17(2) of the Act);

2. (b)

   funeral expenses (see section 17(4) of the Act),

and limited application has a corresponding meaning;

medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

period for negotiation—see section 18(5) of the Act;

related claim—a claim for statutory compensation is a related claim if—

1. (a)

   in proceedings under the Act, the same legal practitioner represents more than 1 victim of an offence claiming compensation in respect of injury arising from the offence; or

2. (b)

   in proceedings under the Act, the same legal practitioner represents more than 1 victim of a series of offences claiming compensation in respect of injury arising from the series of offences;

series of offences means—

1. (a)

   offences committed consecutively by 1 offender, or offences committed simultaneously or consecutively by offenders acting in concert; or

2. (b)

   offences committed in circumstances in which those offences constitute a single incident,

(see section 23 of the Act);

specialist health practitioner has the same meaning as in the Health Practitioner Regulation National Law.

4Requirements for applications for statutory compensation (section 18 of Act)

1. (1)

   For the purposes of section 18(4)(a)(i) of the Act, the information required to be included in an application for statutory compensation is set out in Schedule 1 Part 1.

2. (2)

   For the purposes of section 18(4)(a)(iii) of the Act, a list of the documents required to accompany an application for statutory compensation is set out in Schedule 1 Part 2.

   Note—

   See also section 18(4)(a)(ii) of the Act which requires an application for statutory compensation to be accompanied by any medical reports relevant to the injury in the possession of, or accessible to, the claimant.

5Legal costs – prescribed amounts

For the purposes of section 25(1) of the Act, the prescribed amounts are as set out in Schedule 2.

6Legal practitioner not negligent if relies on certain reports

For the avoidance of doubt, a legal practitioner who relies on a report obtained under these regulations in the course of, or in connection with, giving advice about a claim for compensation in respect of the claimant will be taken not to have acted negligently in so doing.

Schedule 1—Requirements for applications for statutory compensation

Part 1—Information to be included in application

1—Claimant information

A claimant must include in an application for statutory compensation the following information:

1. (a)

   the name, address and date of birth of the claimant;

2. (b)

   the name, address and date of birth of the victim of the offence (if not the claimant);

3. (c)

   the date, time and place of the offence;

4. (d)

   the nature of the offence and the details surrounding the occurrence of the offence;

5. (e)

   when and where the offence was reported to the police or, if not reported, the reason for not reporting the offence;

6. (f)

   details of the nature and extent of the injury;

7. (g)

   if the claimant seeks to rely on a relationship to a victim to claim compensation—the nature of the relationship with the victim;

8. (h)

   if the victim of the offence is dead—

   1. (i)

      the relationship of the claimant to the victim; and

   2. (ii)

      the date of death; and

   3. (iii)

      the date of the funeral.

Note—

Failure to report an offence to the police within a reasonable time after its commission may result in a claimant being refused statutory compensation unless the claimant can establish good reason for the failure—see section 20(7) of the Act.

2—Offender information

A claimant must include in an application for statutory compensation the following information about the offender:

1. (a)

   the name and address of the offender (if known);

2. (b)

   the outcome of the prosecution of any offence (if known), including, if the offender was convicted of an offence—

   1. (i)

      details of the conviction recorded; and

   2. (ii)

      details of the court in which the conviction was recorded; and

   3. (iii)

      the date of the conviction; and

   4. (iv)

      details of any appeal lodged against the conviction by the offender;

3. (c)

   whether the claimant gave evidence for the prosecution at the trial of the offender and, if not, the reasons why the claimant did not give evidence.

   Note—

   Failure of or refusal by the victim to give evidence in the prosecution of an offender may result in a claimant being refused statutory compensation unless the claimant can establish good reason for the failure or refusal—see section 20(7) of the Act.

4—Information about statutory compensation being claimed

1. (1)

   A claimant must include in an application for statutory compensation that is limited to compensation for funeral expenses an itemised list of funeral expenses.

   Note—

   Section 17(4) of the Act sets out who is eligible to claim statutory compensation for funeral expenses.

2. (2)

   A claimant must include in an application for statutory compensation the following information about the compensation being claimed:

   1. (a)

      particulars of any special damages being claimed, including—

      1. (i)

         an itemised list of expenses in relation to any treatment and the name of the person or institution to whom the expense was paid or is payable;

      2. (ii)

         as to each item, details of any refund or entitlement to refund of treatment costs from Medicare, an insurer or any other source;

      3. (iii)

         an itemised list of funeral expenses;

   2. (b)

      particulars of any loss of earnings as follows:

      1. (i)

         if past loss of earnings is being claimed, details of the period off work or any period of reduced work and the amount that would have been earned had the claimant worked during that period (showing how this is calculated);

      2. (ii)

         if an ongoing loss of earnings or a loss of earning capacity is being claimed, details of—

         1. (A)

            the occupation or business of the claimant at the time of the injury and during the 12 months prior to the injury; and

         2. (B)

            the gross income received from the occupation or business during the 12 month period ending on 30 June last prior to the injury; and

         3. (C)

            any disability (including mental disability) from which the claimant is suffering or has suffered in consequence of the injury and which is preventing or has prevented (wholly or in part) the claimant from carrying on the claimant's occupation or business; and

         4. (D)

            the periods since the injury during which the claimant has been unable (wholly or in part) to perform the claimant's usual occupation or business, together with the periods during which the incapacity has been total and the periods during which it has been partial; and

         5. (E)

            where there has been partial incapacity, the nature and extent of the partial incapacity; and

         6. (F)

            the periods since the injury during which the claimant has been employed or otherwise engaged in an occupation or business and, in respect of each such occupation or business—

            • •

              the nature of the occupation or business; and

            • •

              the address at which it was conducted or performed; and

            • •

              the name of the employer; and

            • •

              the gross income received by the claimant.

5—Formulated claim

1. (1)

   A claimant must include in an application for statutory compensation (other than a limited application) a formulated claim showing the amount of compensation for which the claimant proposes the claim be settled.

2. (2)

   The formulated claim must set out separately—

   1. (a)

      the number of points claimed for non-financial loss (see section 20(3)(a)(ii) of the Act); and

   2. (b)

      the amount claimed for—

      1. (i)

         any closed period of past loss of earnings; and

      2. (ii)

         any loss of earning capacity; and

      3. (iii)

         special damages.

3. (3)

   The formulated claim must include a statement of all amounts received, or likely to be received, by or on behalf of the claimant from the offender, an insurer or any other source, and details of any steps taken to obtain payment or compensation from the offender or any other person, body corporate or government department or agency in respect of the injury.

Part 2—Documents required to accompany application

6—Identification

An application for statutory compensation must be accompanied by copies of 2 identification documents (of which at least 1 must be a photographic identification document) certified by a legal practitioner, justice or police officer to be true copies of the original documents as seen by the legal practitioner, justice or police officer (as the case requires).

7—Relationship

If the claimant seeks to rely on a relationship to a victim to claim compensation, the claimant must provide copies of documentation confirming the nature of the relationship with the victim.

8—Hospital reports and reports from general medical practitioner or dentist

The claimant's application for statutory compensation (other than a limited application) must be accompanied by at least 1 of the following reports:

1. (a)

   if the victim was treated for the injury in a hospital—the hospital report (up to 20 pages) relating to the victim;

2. (b)

   a report from a general medical practitioner or dentist summarising—

   1. (i)

      the history taken from the victim; and

   2. (ii)

      the nature and extent of the injury; and

   3. (iii)

      the history of the treatment of the injury; and

   4. (iv)

      whether there is a need for any future treatment and, if so, the nature of the future treatment; and

   5. (v)

      the prognosis; and

   6. (vi)

      the nature and extent of any permanent disability resulting from the injury.

Note—

See also Schedule 2 clause 4.

10—Statement of loss of earnings etc

1. (1)

   If an application for statutory compensation includes a claim for past loss of earnings—

   1. (a)

      by the claimant as an employee, the application must be accompanied by—

      1. (i)

         a letter from the employer or employer's insurer; or

      2. (ii)

         some other written evidence,

   confirming the period during which the claimant lost earnings and the amount lost during the period;

   1. (b)

      by the claimant as a self-employed person, the application must be accompanied by written evidence confirming the period during which the claimant lost earnings and the amount lost during the period.

2. (2)

   If an application for statutory compensation includes a claim for loss of earnings as a result of the claimant being unable, as a consequence of the injury, to enter into, or carry out, a contract with a particular person, the application must be accompanied by—

   1. (a)

      a letter from the person confirming the availability of work for the claimant during the relevant period and the value of that work; or

   2. (b)

      some other written evidence supporting the claim.

3. (3)

   If an application for statutory compensation includes a claim for loss of earning capacity by the claimant, the application must be accompanied by a copy of the claimant's income tax return—

   1. (a)

      for each of the 5 financial years immediately preceding the commission of the offence resulting in the injury; and

   2. (b)

      for the financial year during which the offence resulting in the injury was committed; and

   3. (c)

      for each of the financial years occurring since the financial year referred to in paragraph (b).

   Note—

   Copies of tax returns may be obtained from the Australian Taxation Office.

11—Documents relating to amounts received by claimant from other sources

An application for statutory compensation must be accompanied by copies of any documents relating to any amounts received, or likely to be received, by or on behalf of the claimant from the offender, an insurer or any other source, and details of any steps taken to obtain payment or compensation from the offender or any other person, body corporate or government department or agency in respect of the injury.

Schedule 2—Legal costs and disbursements

1—Preliminary

In this Schedule—

disability has the same meaning as in the District Court Civil Rules 2006 as in force at the commencement of this clause.

2—Solicitor

1. (1)

   The prescribed amounts in relation to costs of a solicitor for a claim for compensation are as follows:

   1. (a)

      for all work involved in a limited claim where the identity of the offender is known and compensation is agreed—$700 (indexed);

   2. (b)

      for all work involved in a claim that is not a limited claim or a related claim—$1 400 (indexed);

   3. (c)

      for all work involved in a claim that is a related claim—

      1. (i)

         for the first claim—$1 400 (indexed); and

      2. (ii)

         for each of the other related claims—$1 100 (indexed).

2. (2)

   The prescribed amount in relation to costs of a solicitor for all work involved in an application to the court for approval of settlement of a claim made by a person under a disability is $350 (indexed).

3—Counsel

The prescribed amounts in relation to costs of counsel for a claim for compensation are as follows:

1. (a)

   for all work preparatory to an application to the court for compensation (including advice on evidence and any other legal advice on the application, conferences and proofing witnesses) and for the first 5 hours of the hearing of the application—$1 000 (indexed);

2. (b)

   for each hour or part of an hour after the first 5 hours of the hearing of the application—$200 (indexed);

3. (c)

   for an opinion as to the settlement of a claim for compensation made by a person under a disability—$700 (indexed);

4. (d)

   for an opinion as to the settlement of a related claim for compensation made by a person under a disability—$500 (indexed).

3A—Appeal

The prescribed amount in relation to costs for an appeal is $700 (indexed).

4—Disbursements

1. (1)

   Subject to this clause, if—

   1. (a)

      an application for statutory compensation is made to the court, a legal practitioner may recover all disbursements reasonably incurred under the Act as certified by the court;

   2. (b)

      an application for statutory compensation is settled without any such application being made, a legal practitioner may recover all disbursements reasonably incurred as certified by the Crown Solicitor.

2. (2)

   A legal practitioner may recover the reasonable cost of obtaining the following reports relating to a claim for statutory compensation:

   1. (a)

      a hospital report (up to 20 pages);

   2. (b)

      the report of a general medical practitioner or dentist.

3. (3)

   A legal practitioner may not recover the cost of obtaining a report relating to a claim for statutory compensation—

   1. (a)

      in the case of a hospital report that is longer than 20 pages, unless—

      1. (i)

         the Crown Solicitor has given prior agreement; or

      2. (ii)

         the court is satisfied that the whole of the victim's record from the hospital is, in the circumstances, necessary for the determination of the matter;

   2. (b)

      in the case of a report from a specialist health practitioner or other expert, unless—

      1. (i)

         the Crown Solicitor has given prior agreement; or

      2. (ii)

         the court is satisfied that the report from a specialist health practitioner or other expert is necessary to provide the court with the evidence required for the determination of the matter;

   3. (c)

      in the case of a report from an allied health practitioner, unless—

      1. (i)

         the Crown Solicitor has given prior agreement that the report is necessary, having regard to—

         1. (A)

            the nature of the claimant's injury; and

         2. (B)

            the qualifications and field of practice of the allied health practitioner; and

         3. (C)

            whether the claimant was referred to the allied health practitioner for treatment by a medical practitioner; and

         4. (D)

            whether a report from a general medical practitioner or dentist could provide the evidence necessary for the determination of the matter; and

         5. (E)

            the estimated cost of the report from the allied health practitioner; and

         6. (F)

            whether obtaining the report from the allied health practitioner would likely avoid the need to obtain a more costly report from a medical practitioner or dentist; and

         7. (G)

            whether the claimant has obtained, or proposes to obtain, a report from a medical practitioner or dentist; and

         8. (H)

            any other matter that, in the circumstances, may compromise (or give the appearance of compromising) the independence of the allied health practitioner or undermine the reliability of the report; or

      2. (ii)

         the court is satisfied that the report of a medical practitioner or dentist would not provide the court with the evidence necessary for the determination of the matter;

   4. (d)

      in the case of any other report, unless—

      1. (i)

         application for statutory compensation was made to the Crown Solicitor in accordance with section 18 of the Act but no acceptable settlement offer was made within the period for negotiation; or

      2. (ii)

         the Crown Solicitor has given prior agreement that the additional report is necessary, having regard to—

         1. (A)

            the nature of the claimant's injury; and

         2. (B)

            whether the person proposed to provide the report has treated the claimant for the injury; and

         3. (C)

            whether a report from a general medical practitioner or dentist would provide the evidence necessary for the determination of the matter.

Legislative history

Notes

• •

  Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

• •

  Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.

• •

  For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or revoked by principal regulations

  The Victims of Crime (Statutory Compensation) Regulations 2019 revoked the following:

  Victims of Crime (Statutory Compensation) Regulations 2004

  Principal regulations and variations

  New entries appear in bold.

  Year	No	Reference	Commencement
  2019	193	Gazette 25.7.2019 p2843	25.7.2019: r 2
  2019	203	Gazette 22.8.2019 p3109	2.9.2019: r 2
  2023	31	Gazette 11.5.2023 p937	11.5.2023: r 2

  Provisions varied

  New entries appear in bold.

  Entries that relate to provisions that have been deleted appear in italics.

  Provision	How varied	Commencement
  r 2	omitted under Legislation Revision and Publication Act 2002	2.9.2019
  r 4
  r 4(3)	deleted by 203/2019 r 4	2.9.2019
  Sch 1
  cl 2	(d) deleted by 203/2019 r 5	2.9.2019
  cl 3	deleted by 31/2023 r 3(1)	11.5.2023
  cl 6	substituted by 31/2023 r 3(2)	11.5.2023
  cl 9	deleted by 31/2023 r 3(3)	11.5.2023
  Sch 3	omitted under Legislation Revision and Publication Act 2002	2.9.2019

  Historical versions

  2.9.2019