The Law Handbook 2024

978 Section 10: Accidents, insurance and compensation Although rare, VOCAT may consider notifying alleged offenders where charges have not been laid, or if charges have been withdrawn, or if the alleged offender was found not guilty of charges. VOCAT Practice Direction No. 4 of 2008 sets out the procedure for notification of the alleged offender and third parties. Before VOCAT notifies the alleged offender, it must first advise the applicant and allow them the opportunity to be heard. This affords an opportunity for the applicant to express the potential impact should the alleged offender be notified, and should be supported by medical or psychological evidence. If VOCAT still decides to notify the alleged offender, the applicant is notified and given 21 days to advise if they are still pursuing their application. If the applicant still chooses to proceed, the alleged offender is then notified. If the alleged offender elects to participate in the hearing, the application must be listed for a directions hearing. If the alleged offender either elects not to participate, or does not respond to the notification, the applicant will be notified accordingly, and the matter will proceed towards determination. In reality, alleged offenders very rarely elect to participate in proceedings. Criminal history and conduct of the victim In considering an application for assistance, VOCAT is required to take into account the character, behaviour and attitude of the applicant at any time. In considering the applicant’s behaviour, any criminal history including guilty findings or convictions are taken into account (s 54(a)). It is therefore imperative to check if the applicant has any prior criminal history when obtaining instructions. In particular, applicants with serious and recent prior criminal convictions, especially for crimes of violence and dishonesty, face the prospect that VOCAT may refuse the application or reduce their award. VOCAT must also consider whether the applicant provoked the act of violence, or whether any condition or disposition of the applicant may have contributed to their injury (s 54(c), (d)); or whether the alleged offender will benefit from the award (s 54(e)). In the case of applications by related victims, the character and behaviour including any past criminal activity of the deceased primary victim must be taken into account, as well as other factors (s 54(b)). Other assistance received In determining how much to award an applicant, VOCAT must take into account and reduce the amount, by the total amount of any damages recovered at common law; and any compensation, assistance or payments of any kind that the applicant has received, for the same loss, expense or other matter that it is sought from VOCAT. Some exceptions apply (s 16). It is important therefore to correctly classify the assistance sought from VOCAT and to check if the assistance received from the external source is the same category as that which is sought from VOCAT, to determine if it needs to be taken into account to reduce the award. Lawyers’ fees Lawyers’ fees are payable at the discretion of VOCAT (s 48). Invariably, however, fees are payable, even if the application is refused, provided there was merit to the application and it was made in good faith. Check the Legal Costs Guideline 1 of 2023 on the VOCAT website for up-to-date fees, which increase slightly every year. Reviews of decisions A person whose interests are affected by a VOCAT decision may apply for a review of a final decision to VCAT (s 59(1)). Reviews may be sought if an application is refused, if the amount of assistance given is insufficient, an application to vary an award is refused, or if the person is required to make a refund under section 62(2). Applications for review must be made within 28 days of either VOCAT’s decision or – if a request is made under section 45 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for reasons for the final decision, the 28 days run from the day on which reasons are provided or the person is advised that no reasons will be given (s 59(2)). Further assistance after the final award Applicants may apply to vary an award made by VOCAT within six years from the final award, or, if the applicant was a child, up until they are 24 years old (s 60(2)). Variations are often sought for further counselling, medical and other expenses.