Victims Support Appeal Denied for Lack of Exceptional Circumstances

The claimant sought to appeal a determination out of time, arguing exceptional circumstances due to ongoing injuries. The Tribunal denied the appeal, citing insufficient evidence of exceptional circumstances.

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME]. [2013] NSWADT 241 Hearing dates: On the papers Decision date: 29 October 2013 Jurisdiction: Victims Support Division Before: [NAME], 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: [NAME] v [NAME] v [COMPANY] (2007) NSWCA 290 Category: Principal judgment Parties: [NAME] (Applicant) [NAME] (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 [NAME] on 20 June 2008 dismissing claims for victims' [NAME] 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 [NAME] was not satisfied that [NAME] had demonstrated an act of violence as he contended. 2ARF subsequently appealed to the [NAME] Tribunal ([NAME]) against the decisions with respect to claims 112483 and 119432. On 21 August 2008 the [NAME] dismissed his appeal with respect to claim 112483. The [NAME] awarded him victims [NAME] of $8,010 with respect to claim 119432, but the whole of that amount was set-off against a previous restitution order made against [NAME] in accordance with s 31 of the Victims Support and Rehabilitation Act 1996 (the old Act). 3On 12 October 2012 [NAME] filed a notice of appeal with the [NAME] in which he sought to appeal, "all the cases I made a claim for." He attached a discharge summary from [COMPANY] with respect to treatment he received following an assault on 5 October 2012 (the discharge summary). On the document [NAME] had written - Like legal action taken on this assault to (sic) please. No legal representation. 4On 29 October 2012 the [NAME] 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 [NAME] wrote to [NAME] 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 [NAME]'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 [NAME] information sheet entitled, "Section 38(3) of the Victims Support and Rehabilitation Act 1996." 6On 26 November 2012 the [NAME] again wrote to [NAME] 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 [NAME]'s application his application for leave to appeal was then adjourned to 9 April 2013. 8On 4 March 2013 [NAME] 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 [NAME] again wrote to [NAME] 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 [NAME]. 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 [NAME] 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 ([NAME]). As a Judicial Member in the Victim Services Division of the [NAME] I have been directed by the President of the [NAME] to hear the appeal and, in doing so, may exercise all the functions that the [NAME] 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 [NAME] has been advised of it by the Registrar and given the opportunity to make final submissions. [NAME] has not done so.

Relevant legislation 14Section 39 of the old Act is concerned with appeals against determinations made by [NAME]. It relevantly provides - (1) An [NAME] who is aggrieved by the determination of a [NAME] in respect of the application may appeal to the Tribunal against the determination. (1A)... (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 [NAME] or Director was duly served on the person, or (b) within such further time as the Tribunal may in exceptional circumstances allow. 15Section 36(3)(b) requires [NAME] to prove exceptional circumstances. "Exceptional" is defined in the Macquarie Concise Dictionary as; "forming an exception or unusual instance; unusual; extraordinary". 16In Foulkes v Victims Compensation Fund Corporation (3951 of 2007) Truss DCJ considered the same words "exceptional circumstances" in the context of s 39(2) of the old Act. The section requires that an appeal to the District Court be brought within 3 months of the date of the Tribunal's determination or within such further time as the Court may in exceptional circumstances allow. In other word it is substantially mirrors s 36(2). Her Honour stated as follows; "9. The respondent submitted that exceptional means out of the ordinary and disputed that the appellant's circumstances could be regarded as exceptional.

10. The respondent referred the Court to the following authorities: (a) O'beid v Victims Compensation Fund Corporation (20 February 2000 unreported). After referring to the principles set out by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Judge Garling, for the reasons enunciated on page 2, stated that the Tribunal was entitled to certainty and that extensions should only be granted where there was a very short period involved and where there was a good reason. (b) In West v Victims Compensation Fund Corporation (24 February 2005 unreported), the Chief Judge accepted that the appellant was a person who needed help by virtue of a number of hardships in her life in particular in relation to her children and DOCS, health problems and the death of her mother. Nevertheless His Honour considered that there was no basis for a finding of exceptional circumstances for her not lodging an appeal for almost two years after the Magistrate's decision. (c) In Makdessi v Victims Compensation Fund Corporation (1999) NSWDC 13 the focus was on the conduct of the appellant's solicitor and I agree with the remarks by Judge Robison that the discretion ought be exercised carefully and that the appellant is required to provide a full and satisfactory explanation for delay. 17The expression exceptional circumstances also appears in rule 31.18 of the Uniform Civil Procedure Rules and was considered by the Court of Appeal in [NAME] v [COMPANY] (2007) NSWCA 290. Campbell JA at [66] said that: (a) exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered; (b) exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors; (c) exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which although individually of no particular significance, when taken together are seen as exceptional.

Should leave be granted to allow the appeal to be made out of time? 18In the correspondence that [NAME] has sent to the Tribunal he has not provided any clear explanation as to why he has delayed bring his appeal against the [NAME]'s determination of claim 112481. That determination was made on 20 June 2008, more the four years before he lodged the notice of appeal on 12 October 2012. Aside from the fact that he considers that his injuries continue to disable him he has given no explanation for the delay. 19That delay is compounded by the fact that [NAME] clearly knew he was entitled to appeal against the [NAME]'s determination back in 2008, because he appealed against the [NAME]'s determination with respect his two other claims. Those determinations were made at the same time as this determination. While there is no evidence as to why he did not appeal this claim at that time, it is clear that it was not out of any ignorance of his right to appeal. 20ARF has been repeatedly asked to file submissions setting out why he says there are exceptional circumstances meriting him being allowed to lodge an appeal out of time. His letter of 4 March 2013 does not do so. 21In all the circumstances I am not satisfied that he has demonstrated exceptional circumstances meriting a grant of leave to lodge his appeal with respect to claim 112481 out of time. 22Insofar as he wishes to appeal against the previous appeal decisions of the [NAME] with respect claims 112483 and 119432, this Tribunal has no jurisdiction, and his notice of appeal is dismissed accordingly. 23Finally, insofar as [NAME] wishes to claim [NAME] with respect to the assault he claims to have suffered on 5 October 2012, he should contact [COMPANY] for advice as to how to do so. That is not a function of the [NAME].

Orders 24Leave to lodge an appeal out of time with respect to claim 112481 is refused. 25The notice of appeal with respect to claims 112483 and 119432 is dismissed for want of jurisdiction.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or [NAME] 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: 29 October 2013