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Guide 6 - Time for Lodging Applications for Statutory Compensation (Section 26)

Section 26 of the Victims Support and Rehabilitation Act 1996 states that an application for statutory compensation must be lodged within 2 years after the relevant act of violence occurred or in the case of family victim within 2 years after the death of the primary victim.
Section 26(2) provides that applications out of time may be accepted with the leave of the Director. Policies for the giving of leave by the Director for the acceptance of an application lodged out of time are set out in Section 26(3). The issue of reporting to police will be considered (Section 26(3)(d)) in the light of matters set out in Section 30(2).

The matters listed in Section 26(3) are not exhaustive. As a result, each application will be considered on its merits. For example, leave to lodge an application out of time is unlikely to be granted where an applicant may not be a victim of an act of violence or there may be no act of violence within the meaning of the Act.

Whilst each application will be considered on a case-by-case basis, applicants are expected to actively pursue their claims for compensation and it is the responsibility of an applicant or their legal representative to lodge a claim within time. The application may be lodged prior to the conclusion of legal proceedings or medical treatment.

The Tribunal is of the view that lack of knowledge of victims compensation may not of itself be a good reason within the meaning of Section 26.

In the appeal of O'Beid which was an application for leave to extend time for an appeal under the 1987 Act. Garling DCJ referred to Brisbane South Area Health Service v Taylor 70 ALJR 866 in which the High Court considered the extension of a limitation period for commencing an action. His Honour said:

"One of those matters Justice McHugh spoke about of course was that bodies such as the Victims Compensation Tribunal are entitled to have some certainty. The Victims Compensation Tribunal is certainly entitled to some certainty because, one, they have an obligation to attempt to recover any award from the person responsible for the injury. Secondly, they have a public fund to manage. Thirdly the way these matters are brought has been dramatically changed in recent times and fourthly the majority of the monies are paid out of public money". O'Beid v Victims Compensation Fund Corporation, 25 February 2000, Garling DCJ, Sydney District Court (Unreported)

It appears that Garling DCJ's summary of Justice McHugh's decision applies to applications for leave to lodge an application out of time under Section 26.

Except in the case of domestic violence, child abuse or sexual assault there is a presumption against the granting of leave unless the applicant establishes good reason to do so.

In the case of domestic violence, child abuse or sexual assault there is presumption in favour of leave unless the Director is satisfied that there is no good reason to do so. The presumption is reversed because, it would appear, it is these group of victims, due to their age or shame, embarrassment or fear of the perpetrator, who might delay submitting an application for statutory compensation. However, once the applicant reaches adulthood or the matters are reported to police then prima facie there is no reason why an application could not be lodged. Each case is, again, determined on its merits.

Cec Brahe
Chairperson, Victims Compensation Tribunal
28 April 2000