BYV v Victims Compensation Fund Corporation [2013] NSWADT 281

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: BYV v Victims Compensation Fund Corporation [2013] NSWADT 281 Hearing dates: 29 October 2013 Decision date: 29 November 2013 Jurisdiction: Victims Support Division Before: Judge K P O'Connor, President Decision: Leave granted to reinstate appeal filed 25 June 2013 and withdrawn on 28 June 2013 Catchwords: VICTIMS SUPPORT - Appeal under Victims Compensation Act 1996 - Withdrawn - Retroactive change in law - Application to reinstate - Statutory Interpretation - Leave granted, Victims Rights and Support Amendment (Transitional Provisions) Regulation) 2013, cll 14, 16 Legislation Cited: Victims Rights and Support Act 2013 Victims Rights and Support Amendment (Transitional Provisions) Regulation 2013 Victims Rights and Support Regulation 2013 Victims Support and Rehabilitation Act 1996 Category: Principal judgment Parties: BYV (Applicant) Victims Compensation Fund Corporation (Respondent) Representation: Ms M Woodroffe, HALC (Applicant) No appearance (Respondent) File Number(s): 137155

reasons for decision 1The Victims Rights and Support Act 2013 (the 2013 Act) commenced on 3 June 2013 (the commencement date). The Act repealed and replaced the Victims Support and Rehabilitation Act 1996 (the 1996 Act) which previously governed the making and determination of victims compensation claims. The 2013 Act included regulations (see sch 4) operative from the commencement date - the Victims Rights and Support Regulation 2013 (the Regulation). 2On 26 March 2013 a compensation assessor issued a determination under the 1996 Act, awarding 'BYV' a sum of $35,000 in compensation for sexual and physical assault in response to a claim lodged on 23 April 2010. The 1996 Act allowed three months in which to appeal (s 36). The applicant exercised that right on the last available day, 25 June 2013, with the result that the appeal came before this Tribunal, the successor to the tribunal created by the 1996 Act, the Victims Compensation Tribunal. The appeal sought a higher award, the maximum award under the 1996 Act being $50,000. However the regulations made under the 2013 Act contained provisions which purported to restrict the award that might be made in relation to an appeal (see Schedule 2, cll 2, 5), in the present instance to a maximum of $10,000. Having regard to this fact, the appeal was unviable. The applicant withdrew the appeal on 28 June 2013. 3On 17 October 2013 the applicant wrote to the Tribunal seeking, in effect, to re-lodge the appeal in light of a change in the law. The change in the law occurred on 16 August 2013. On that date, the Regulation was amended by the Victims Rights and Support Amendment (Transitional Provisions) Regulation 2013 to add new Parts 4 and 5. 4Relevant to his case are two of the provisions in Part 5, cll 14 and 16. They are declared to be operative as from 'the commencement date' (i.e. 3 June 2013) (cl 2). Clauses 14 and 16 provide: Part 5 Savings and transitional provisions 14 Definitions In this Part: statutory compensation means statutory compensation within the meaning of the repealed Act. the repealed Act means the Victims Support and Rehabilitation Act 1996 (and the regulations and rules made under it) as in force immediately before its repeal by the Act. 16 Appeals against determinations regarding applications for statutory compensation (1) Despite the repeal of section 36 of the repealed Act, if notice of a determination of a compensation assessor was served before that repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b)) were still in force. (2) An appeal referred to in subclause (1) is to be treated as if it were a proceeding referred to in clause 14 of Schedule 2 to the Act. [Clause 14 of Schedule 2 provides; 14 Pending appeals and objections to Victims Compensation Tribunal (1) This clause applies to proceedings before the Victims Compensation Tribunal on an appeal under section 36 of the repealed Act or hearing on an objection under Division 8 of Part 2 of that Act that have not been finally determined on the commencement of this clause. (2) The person or persons determining the matter the subject of the appeal or objection: (a) are (subject to any practice notes or directions of the President of the Administrative Decisions Tribunal) to continue on and from the commencement of this clause to determine the matter, sitting as the Administrative Decisions Tribunal, and (b) have and may exercise, while sitting as the Administrative Decisions Tribunal under this clause, all the functions that the Victims Compensation Tribunal had immediately before that commencement.] (3) Proceedings to which clause 14 of Schedule 2 to the Act applies (including proceedings referred to in subclause (1)) are, subject to clause 13 of Schedule 2 to the Act, to be determined under section 38 (other than section 38 (5) (b)) of the repealed Act as if the repealed Act were still in force. (4) For those purposes, a reference in the repealed Act: (a) to the Director or a compensation assessor is taken to be a reference to the Commissioner, and (b) to the Victims Compensation Tribunal is taken to be a reference to the Administrative Decisions Tribunal. (5) Despite clause 4 (1) of Schedule 2 to the Act, statutory compensation determined to be payable (less any deductions under section 19A of the repealed Act) pursuant to a determination under section 38 of the repealed Act as provided in accordance with subclause (3) is payable from the Victims Support Fund under the Act. 5This clause enables an appeal to proceed after the commencement date 'as if section 36 (other than section 36(2) and (3)(b)) were still in force'. The provisions of section 36 that the provision in effect seeks to revive are these: 36 Appeal to Tribunal by applicant (1) An applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination. (1A) The applicant may not appeal to the Tribunal: (a) for the correction of a miscalculation in the amount awarded as Victims Assistance, or (b) against a determination of a compensation assessor under section 35 in relation to costs. Note. An applicant may apply to the Director under section 35A for the correction of a miscalculation in the amount awarded as Victims Assistance. (3) An appeal may be made: (a) within the period of 3 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. 6The complication in this case is that the ordinary period for lodgment of the appeal expired on 25 June 2013. The law, as now revised, does not address the situation where an appeal was lodged in the period 3 June to 15 August 2013 and withdrawn as a matter of prudence given the apparent state of the law during that time. 7It may be argued that a person who withdraws an appeal has effectively concluded the proceedings, and should not be allowed to re-lodge. Applied to this case, that would mean that the applicant would have to be content with the amount of the award and not now seek by appeal a higher amount. 8How I am to treat the application made 17 October 2013, which seeks, in effect, to re-open the withdrawn appeal? 9On 29 October 2013 I heard the application. The applicant's solicitor appeared by telephone, and spoke to her written submissions. The written submissions first sought leave to proceed with the appeal. They referred in particular to the history outlined above. They then went on to deal with the merits of the case. As is customary, there was no appearance on behalf of the Fund Corporation. 10I gave leave for the application to proceed, and remitted it to a member for determination. These are my reasons. 11In this case, as I see it, the solicitor properly withdrew the appeal given the law as it stood at 28 June 2013. It clearly was not in the client's interests to pursue the appeal. 12However the amendments made on 16 August 2013 allowed appeals to be determined by reference to the old law's criteria. Further, the provisions were made retroactive. Accordingly those provisions may now be treated as properly stating the law as at 28 June 2013. In these circumstances the withdrawal of the appeal should, I consider, be regarded as a nullity, as it occurred under a reasonable understanding of the law as it stood at the time which has now been retroactively quashed. 13I also draw support in reaching this conclusion from a provision in the 2013 Act dealing with the subject of regulations and their operation. Clause 1 of sch 2 of the Act provides: 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) Regulations under this clause may have effect despite any provision of Part 2. 14In my opinion, cl 1 contemplates the possibility that regulations may be made to protect the rights of persons that have retroactive effect, and may reach back to the date of assent: see esp cl 1(3). It may be perhaps argued that cl 1(3) itself sought to preserve existing rights, and that the provisions such as cll 14 and 16 should have been read down to accommodate that principle. The amending regulation put the matter beyond doubt. In that regard I note that cl 1(3) does not specify that the accrued right is to have been on foot "immediately" before the date of publication, but simply "before the date of publication." 15In my view persons such as BYV, who withdrew existing appeals because of the new legislation, should not be prejudiced by the regulation retrospectively applying the old, rather than the new law, after they withdrew. It is the retrospective change which has created their difficulty, and there is a clear statement of legislative intent they should not suffer the consequences. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2013