BCU v Victims Compensation Fund Corporation [2013] NSWADT 275

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: BCU v Victims Compensation Fund Corporation [2013] NSWADT 275 Hearing dates: On the papers Decision date: 22 November 2013 Jurisdiction: Victims Support Division Before: P H Molony, Judicial Member Decision: Decision under review affirmed Catchwords: Victims Rights and Support Act 2013 - retroactive application of legislation to claims lodged under Victim Support and Rehabilitation Act 1996 before Act introduced to Parliament Legislation Cited: Victim Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Category: Principal judgment Parties: Applicant - BCU Respondent - Victims Compensation Fund Corporation. Representation: Applicant - in person Respondent - Mr Ting, Legal Officer File Number(s): 137324

reasons for decision

Background 1On 12 February 2008 BCU lodged an application with the Victims Compensation Tribunal seeking statutory compensation under the Victim Support and Rehabilitation Act 1996 (the old Act). She sought compensation for a compensable injury she received as secondary victim, on becoming aware of a compensable injury received by her daughter (the primary victims) as a consequence of a series of sexual assaults. 2BCU's application for statutory compensation was not determined until 13 August 2013, when, as a result of changes to the applicable law, it was considered under the provisions of Victims Rights and Support Act 2013 (the new Act), rather than under the old Act. 3The Compensation Assessor dismissed her application under the new Act. This was confirmed on internal review on 9 September 2013. 4BCU then applied to this Tribunal for review. 5The new Act commenced operation on 3 June 2013, some five and a quarter years after BCU's application for statutory compensation was first filed. 6Schedule 2 of the new Act contains transitional provisions. Clause 5 in Part 2 relevantly provides - (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support. (2) The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both. (3) ... (5) Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act. (6) ... 7Clause 2 of Part 2 of Schedule 2 contains interpretative provisions relevant to understanding clause 5. Relevantly it provides - (1) In this Part: introduction day means the day the Bill for this Act was first introduced into Parliament. statutory compensation means statutory compensation within the meaning of the repealed Act. the repealed Act means the Victims Support and Rehabilitation Act 1996 as in force immediately before its repeal by this Act. (2) For the purposes of this Part, proceedings are not finally determined if: (a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or (b) any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right). 8The new Act was introduced into parliament on 7 May 2013, before the Act commenced. 9The effect of clause 5 is that the new Act applies to all applications made under the old Act that were not finally determined on 7 May 2013. The effect is to retroactively apply the new Act to old matters not finally determined. BCU's application for statutory compensation was not finally determined as at 7 May 2013. As a consequence, the new Act stipulates that it is to be determined in accordance with the new Act. 10Section 21 of the new Act defines secondary victim. It duplicates the definition of secondary victim in the old Act. It relevantly provides - (1) A secondary victim of an act of violence is a person who is injured as a direct result of witnessing the act of violence that resulted in the injury to, or death of, the primary victim of that act. (2) A secondary victim of an act of violence extends to a person who is injured as a direct result of subsequently becoming aware of the act of violence that resulted in the injury to, or death of, the primary victim of that act, but only if: (a) the person is the parent or guardian of the primary victim of that act, and (b) the primary victim was under the age of 18 years at the time of that act, and (c) the person did not commit that act. The person is taken, for the purposes of this Act, to have witnessed the act of violence. (3) ... 11Section 28 sets out the composition of support under the new Act for secondary victims. It provides - The support under the Scheme for which a secondary victim of an act of violence is eligible comprises approved counselling services with respect to the act of violence. 12Under s 15(1) of the old Act (subject to certain qualifications) secondary victims were eligible for - (a) compensation for compensable injuries received by the victim as a direct result of witnessing the act of violence, and (b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury. 13In her application under the old Act BCU sought compensation under s 15. As a secondary victim under the new Act she is not eligible for similar compensation. She is not eligible for a recognition payment. The support available to her under the new Act is limited to approved counselling. 14BCU argues that she has been severely prejudiced by the fact that her application has been determined under the new Act, rather than the old. She says that she had an expectation of receiving statutory compensation under the old Act. She says that the delay in processing her application by the Victims Compensation Tribunal (VCT) was inordinately long and that she has been prejudiced as a result. Indeed, she alleges that the VCT deliberately stopped processing claims in 2012, well before the new Act was introduced. When I pressed her on this she indicated that she had been told this by a former solicitor. 15Mr Ting, who appeared for the Commissioner, told me that the VCT had not stopped processing claims. He said that it had experienced substantial delays in processing applications for statutory compensation with the average delay being 29 months. This is approximately three years less that the delay experienced by BCU. 16I endeavoured to explain to BCU that I have no power to deal with issues of delay and alleged maladministration within the VCT, and no power to go behind the law as enacted by Parliament. I can certainly understand her anger at the delays she has experienced, and why she sees them as being responsible for not now receiving compensation to which she considers she was legally entitled. 17Unfortunately, I am bound to implement the law as it now stands and have no discretion not to do so. 18I agree with the Respondent that BCU as a secondary victim is not entitled to the compensation she sought under the new Act. As a result the correct and preferable decision is to affirm the decision under review.