ARF v Victims Compensation Fund Corporation. [2013] NSWADT 241

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ARF v Victims Compensation Fund Corporation. [2013] NSWADT 241 Hearing dates: On the papers Decision date: 29 October 2013 Jurisdiction: Victims Support Division Before: P H Molony, Judicial Member Decision: 1, Leave to lodge an appeal out of time with respect to claim 112481 is refused. 2. The notice of appeal with respect to claims 112483 and 119432 is dismissed for want of jurisdiction Catchwords: Victim Support and Rehabilitation - application for leave to lodge an appeal out of time - leave refused - jurisdiction Legislation Cited: Victim Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Cases Cited: Foulkes v Victims Compensation Fund Corporation Yacoub v Pilkington (Australia) Limited (2007) NSWCA 290 Category: Principal judgment Parties: ARF (Applicant) Victims Compensation Fund (Respondent) File Number(s): 137014 Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997 applies

reasons for decision

Background 1ARF sought to appeal three determinations made by a Compensation Assessor on 20 June 2008 dismissing claims for victims' compensation brought by him. Those three determinations related to acts of violence being: * A home invasion and assault on 25 and 26 Februarys 2004 (claim 112481). * An assault at bus stop on 15 February 2004 (claim 112483). * An assault with brake and enter on 25 October 2004 (claim 119432). In each case the Compensation Assessor was not satisfied that ARF had demonstrated an act of violence as he contended. 2ARF subsequently appealed to the Victims Compensation Tribunal (VCT) against the decisions with respect to claims 112483 and 119432. On 21 August 2008 the VCT dismissed his appeal with respect to claim 112483. The VCT awarded him victims compensation of $8,010 with respect to claim 119432, but the whole of that amount was set-off against a previous restitution order made against ARF in accordance with s 31 of the Victims Support and Rehabilitation Act 1996 (the old Act). 3On 12 October 2012 ARF filed a notice of appeal with the VCT in which he sought to appeal, "all the cases I made a claim for." He attached a discharge summary from John Hunter Hospital with respect to treatment he received following an assault on 5 October 2012 (the discharge summary). On the document ARF had written - Like legal action taken on this assault to (sic) please. No legal representation. 4On 29 October 2012 the VCT wrote to him advising that he had previously appealed the decisions with respect to claims 112483 and 119432. If he was dissatisfied with the result his remedy was an appeal to the District Court under s 39 of the old Act. 5On 26 October 2012 the Registrar of the VCT wrote to ARF regarding claim 112481 acknowledging receipt of the appeal and advising he would need to provide, "submissions in relation to exceptional circumstances for lodging the appeal out of time" by 22 November 2012. He was also sent a copy of the VCT's information sheet entitled, "Leave to appeal out of time." A the same time he was sent a separate letter advising that if he wished to rely on the discharge summary as further evidence in his appeal application, he would need to file submissions seeking leave to rely on it under s 38(3) of the old Act. He was sent a copy of the VCT information sheet entitled, "Section 38(3) of the Victims Support and Rehabilitation Act 1996." 6On 26 November 2012 the Registrar of the VCT again wrote to ARF advising that he would need to make submissions seeking leave to make his appeal out of time and with respect to any further evidence before a callover to be held on 28 November 2012. 7On ARF's application his application for leave to appeal was then adjourned to 9 April 2013. 8On 4 March 2013 ARF filed a letter in which he explained how his injuries, especially his scarring, continue to cause him distress and harm and that he was writing "in the hope I may get my appeal overturned." He also attached photographs to demonstrate the extent of his scarring. 9On 5 March 2013 the Registrar of the VCT again wrote to ARF advising that he would need to make submissions seeking leave to make his appeal out of time and with respect to any further evidence before a callover to be held on 28 November 2012. 10The appeal was subsequently listed at callovers held on 21 May 2013 and 25 June 2013 and adjourned, with no further submissions or information being received from ARF. 11On 7 May 2013 the New South Wales Government introduced into Parliament an Act, which changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). ASF was informed that the appeal would be determined under the new Act. 12The VCT was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal (ADT). As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the VCT had immediately before the commencement of the new Act. 13On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. Since Clause 16 of the Regulation commenced ARF has been advised of it by the Registrar and given the opportunity to make final submissions. ARF has not done so.