ARD v Victims Compensation Fund Corporation
[2014] NSWCATAD 157
•29 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 157 Hearing dates: 29 January 2014 and 26 August 2014 Decision date: 29 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. Pursuant to section 38 (5) (a) of the old Act I set aside the decision of the compensation assessor.
2. Pursuant to section 29 (1) (a) of the old Act I make an award of statutory compensation.
3. Pursuant to section 35 (1) of the old Act I make an award of costs.
Catchwords: Victims Compensation - series of related acts - offence based injuries - Reporting to police - reduction of amount of compensation - Oral Hearing Legislation Cited: Victims Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Civil and Administrative Tribunal Act 2013
Interpretation Act 1987
Victims Support and Rehabilitation Rule 1997Cases Cited: Reifek v McElroy (1965) 112CLR 517 at 512-522 Category: Principal judgment Parties: ARD (Appellant)
Victims Compensation Fund Corporation (Respondent)Representation: Counsel
C Lonergan (Appellant)
M J Corbett Solicitor (Appellant)
M Ting, Victims Services (Respondent)
File Number(s): 1370003 (Decision under review 136013) Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a witness summoned by, or appearing before, the Tribunal.
reasons for decision
ARD claims statutory compensation by way of an application whereby she alleges that she suffered a compensable injury as a result of being sexually assaulted by one of her siblings when a child at Mount George in the State of New South Wales around the period 1963 to 1970.
I note that ARD was represented by Michael J Corbett Solicitor before the compensation assessor and continues to be represented for this subsequent appeal.
On 21 September 2006 ARD submitted Application 136013 to the Victims Compensation Tribunal ("the Tribunal"). Eleven other claims were also lodged by ARD, eight earlier claims and three subsequent claims. Those matters are dealt with in separate appeal decisions (joint and otherwise).
I note that the application was lodged outside of the statutory period required by section 26 of the old Act.
Claim 136013 (VCT) was listed for leave to proceed out of time by way of letter dated 2 October 2007.
On 31 October 2007 the Tribunal advised that on 30 October 2007, leave had been given to proceed outside the two year statutory limitation period, presumably for the reasons outlined in section 26 (3) (b) of the old Act for Claim 136013.
On 11 November 2008 the VCT received advice from NSW Police that they did not hold any records of the allegations (outlined in paragraph 1 above) being reported, and the Tribunal wrote to ARD's Solicitor in that regard on 27 November 2008.
In June 2009 ARD's Solicitor wrote to the Tribunal enclosing various documents and statements which ARD wished to rely upon (in respect of some or all of her twelve separate claims for victims compensation), which included information concerning the pursuit of separate civil proceedings concerning her time in care and cases against her former employer. The Solicitor advised that ARD had now decided not to pursue the alleged offenders through civil litigation.
In February 2011 approval was given for ARD to see an Authorised Report Writer (ARW) for the purposes of establishing section 5 (1) (c ) in respect of injury under the old Act on this claim and two of the other claims predating ARD being made a Ward of the State.
On 24 March 2011, ARD's Solicitor wrote to the Tribunal outlining other lines of inquiry in respect of police material in respect of the alleged assaults concerning ARD's sibling. It appears that notwithstanding the best endeavours of ARD, her Solicitors, the Tribunal and NSW Police, no actual material was located within NSW Police holdings in respect of this allegation.
On 23 May 2011 the Tribunal advised ARD's Solicitors that the matter was listed for determination at the first available opportunity on or after the month of September 2011.
In the following months ARD's Solicitors attempted to obtain copies of further evidence. Adjournments were subsequently sought and granted on 27 September 2011, 2 November 2011, and 13 January 2012.
A further adjournment was sought (and granted) on 24 April 2012. This was necessary as ARD had 12 separate claims, and due to the fact that they were all to be determined together, and required all the evidence for each particular allegation / injury, to be available and before the compensation assessor. The matter was relisted for determination on or after the month of August 2012.
Further material was obtained, and evidence and submissions submitted by ARD's Solicitor in the intervening months, including current photographs of an alleged (scaring) injury caused in 1963.
On 7 February 2013, the compensation assessor determined this claim having previously determined eight of ARD's 12 claims two days prior. The compensation assessor determined that ARD was not entitled to compensation and issued Notice of Determination under section 29 of the old Act. In respect of this claim, the compensation assessor found that there was insufficient evidence that ARD was the victim of an act of violence, and dismissed the claim. The Notice of Determination, which was (inter-alia) in the following terms, advised:
This application relates to a series of incidents that took place between 1963 and 1970. All incidents relate to sexual assaults perpetrated upon the applicant by (JLF) - the alleged offender.
...I have read solicitor's submissions on file and note the report of (Dr R.G.) and counselling records obtained.
The applicant details that she reported incidents to police in 1996. Police detail that they have no records relating to allegations apparently made by the applicant. It appears that a formal statement was never made to police and matters never investigated.
As matters were never investigated the applicant's allegations were never put to the alleged offender and the alleged offender was never charged with any offence whatsoever.
I note that no supporting evidence from the time in question was presented and it appears that the applicant did not receive any medical treatment in respect to the alleged incidents until relatively recently.
I note that the applicant commenced counselling in 2006; over thirty years after incidents took place. There is no medical evidence produced prior to 2006. It appears that the applicant never sought medical treatment in respect of the alleged incidents until 2006. The applicant has also been in a stable relationship since 1983 and worked in a number of positions including a district officer for DOCS and a childcare worker.
Police have no records indicating that matters were ever reported. The applicant's allegations were never investigated. There is no supporting evidence presented even moderately close to when incidents took place and it appears that the applicant did not seek medical treatment until thirty years after incidents took place.
Taking into account the abovementioned factors I cannot be satisfied that an act of violence in respect to any of the claims lodged is established.
Grounds of Appeal
The Notice of Appeal was lodged on 7 May 2013. The Grounds of Appeal are:
(1) The compensation assessor erred in determining that he / she could not be satisfied that any act of violence in respect of the Appellant's claims is established.
(2) Further, the compensation assessor erred in failing to take into account and otherwise consider, the Appellant's statutory declaration made on 14 September 2007 (the application) and 18 October 2012 and specifically the matters declared therein.
(3) To the extent that the compensation assessor utilised any discretion pursuant to s.30 of the Victims Support and Rehabilitation 1996 Act ("the Act") in making a determination that the act(s) of violence was not established, such exercise of discretion miscarried.
(4) The appellant relies on the (following) full Particulars to support the Appeal and for each ground.
Particulars of appeal were filed in support of each application. Those particulars amplified the matters outlined in the Grounds of Appeal by way of submissions, pointing to specific evidence in the claim, and providing grounds to the appropriate approach to various threshold issues in the old Act.
Application of the old Act
On 7/05/2013 the New South Wales Government introduced legislation that 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"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT").
Initially, as the 2013 Act had not been passed, the matters were listed for call-over in accordance with Schedule 2 of the old Act, and following the provisions of clause 15 of the Victims Compensation Rule 1997.
However, having been transferred into the ADT by the 4 June 2013 provisions, the former Chairperson of the Victims Compensation Tribunal (now sitting as a Deputy President of the ADT) on 26 June 2013 prepared a detailed four page memorandum to ARD's Solicitor outlining the necessary specific requirements applicable to all of ARD's claims in respect of the new regime. In particular matters relating to a hearing of ARD's appeals were canvassed and matters relating to the receipt of further evidence. The appeals were adjourned (for further consideration) until the week commencing 8 July 2013.
It appears that there were some transitional matters of an administrative nature that transpired in the months of July and August 2013. The newly created Commissioner for Victims Rights initially determined on 26 June 2013 that the appeals would be heard in the week commencing 8 July 2013 by the Deputy President of the ADT. However it appears that eventually the Commissioner transferred all of ARD's appeal claims to the Registrar of the ADT.
On 14 August 2013 the Registrar of the ADT wrote to ARD's Solicitor advising him that the Deputy President had not yet determined whether the appeals would be heard (or dealt with on the papers). ARD was given until 19 August 2013 to put on final submissions on this issue.
However, on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the 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.
On 23 September, the Registrar of ADT wrote to ARD's Solicitor advising him of the ADT's guideline for dealing with the appeals and the opportunity to make final submissions prior to the reserved date of 7 October 2013.
On 17 October 2013 the Registrar of the ADT wrote to ARD's Solicitor advising him that the matters were listed for Directions on 8 November 2013.
On 23 October 2013 an adjournment of the 8 November date was sought by ARD's Solicitor. The application was based on the unavailability of Counsel who had now been briefed in the matter. The Registrar of the ADT advised on 29 October 2013 that the adjournment had been granted and all of the matters were now listed for Directions on 15 November 2013.
Throughout the period from the lodgement of the appeals in early May 2013 until the Directions date of mid November 2013, ARD's solicitors had lodged numerous submissions concerning both the merits of all of ARD's appeals and the need for an oral hearing.
On 15 November 2013 all of ARD's matters came before Judicial Member Molony (as he then was) of the ADT who made the following Directions:
- The Tribunal is satisfied that these matters cannot properly be determined without a hearing.
- The application is fixed for hearing on 29 January 2014 for 1 day.
- Applicant to file and serve by 16 December 2013:
(a) Any further evidence on which she seeks to rely;
(b) Details identifying any other documents already filed that constitute fresh evidence that was not before the compensation assessor; and,
(c) Submissions as to why leave should be granted to rely on that evidence.
On 16 December 2013, ARD's Solicitor provided their proposed further evidence and additional summary of submissions in respect of the receipt of fresh / further evidence.
However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 (on 1 January 2014) and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides:
All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.
Further, Clause 7(3) provides:
For the purposes of subclauses (1) and (2):
(a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and
(b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
As outlined above ARD had applied for the appeals to proceed by way of hearing. Predominantly that request appears to be based on the matters raised in earlier submissions and addressing points raised in the former Deputy President's Memorandum of 26 June 2013. In addition I note that ARD's Solicitor wanted the opportunity to submit at a hearing before the Tribunal the appropriate approach and statutory construction that the decision maker should take to the existing evidence, both based on the somewhat 'non forensic' approach applied by the compensation assessor in first instance in respect of a large number of the appeals, (as put by Counsel) and the complexity of the myriad claims and voluminous evidence. There was also the issue of making further submissions and taking evidence on the interlocutory argument of whether the Tribunal should receive fresh evidence on the appeals.
The practice of the VCT and the practice of this Tribunal is that an appeal can be dealt with on the papers unless there is a significant issue of credibility in respect of the evidence. However as outlined above, ARD's matters were particularly complicated both in the way that the evidence was spread across many separate acts of violence, and the import of the approach taken to the claims by the compensation assessor.
(a) Section 38 (1) of the old Act provides that
(1) Except as provided by subsection (2), the Tribunal is to proceed to determine a matter the subject of an appeal or reference to it under this Division without a hearing.
(b) Section 38 (2) of the old Act provides that
(2) The Tribunal is to conduct a hearing into the matter if the Tribunal is satisfied that it cannot properly determine the matter without a hearing.
Credibility did not appear to be a live issue before the Tribunal in reaching its decision on this point, however in all matters where the decision maker in first instance does not find an act of violence, credibility is clearly within the scope of the appeal. Predominantly for the reasons outlined in paragraph 31 and 32 above, the Tribunal determined on 15 November 2013 that the matter would be dealt with by way of a hearing.
Hearing on 29 January 2014 and 26 August 2014
All of ARD's matters were initially heard before Senior Member Molony on 29 January 2014. However after the initial hearing of the matters, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52.
The matters were listed before me on 26 August 2014 and on that occasion representatives of both ARD and the Victims Compensation Fund Corporation were asked whether they consented to the section 52 reconstitution of the Tribunal. ARD's representatives consented, whereas the representative of the Respondent advised that they did not submit either way, and I took that to mean that it was a matter for the Tribunal.
As a result the provisions of section 52 (2) of the NCAT Act were satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act.
On 26 August 2014 Counsel for ARD, Mr Lonergan provided oral submissions on the evidence before the Tribunal (both on the papers and at the previous hearing). In addition there was discussion as to the approach that the Senior Member took on 29 January 2014 in respect of the question of whether to admit fresh evidence. Since that time I have had the benefit of listening carefully to the full audio CD recordings of the hearing on 29 January 2014. It is now for me to determine the matter having regard to all the material and evidence before me, the evidence and submissions given orally on 29 January 2014, and the submissions given on 26 August 2014. I note that the majority of the hearing focussed on the eight 'institutional' claims of abuse, and then to a lesser extent on the three claims from prior to that time, one of which is this claim. This appears to be in part because of the large volume of those claims.
In ARD's evidence at hearing, she advised that her allegations concerning the offender in this claim, (her brother) had caused distress in her birth family in recent years. Whilst there was evidence before the Tribunal of some other assault by the offender involving another child which resulted in police action and court matters, ARD's evidence was that she had been 'ostracised' by her family as a result of her allegations of sexual assault involving her brother. The evidence in respect of whether those actual allegations had ever been reported to police was somewhat equivocal. This was evident in the evidence that in effect escalating the allegations involving her brother would cause further problems within the family. Notwithstanding this, ARD's legal submissions maintained that the matters had in the intervening years been reported to police.
Importantly the following findings were made during the 29 January 2014 hearing:
- The Senior Member admitted the relevant VCT Files into evidence in accordance with section 38 (2) of the old Act (as exhibit 1).
- The Senior Member gave leave pursuant to section 38 (3) of the old Act to receive the Nepean Hospital Notes, which were not before the Assessor, (as exhibit 2).
- The Senior Member declined to give leave to receive fresh evidence in respect of the report of 'C.M.' Registered Psychologist dated 11 December 2013.
- Statutory Declarations of ARD dated 18 October 2012 x 2 and 15 November 2012 were affirmed by ARD in evidence as true and correct.
- There was no appearance for the Respondent.
Act of violence
Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that:
... On the balance of probabilities, that the person to whom the application for that compensation relates:
(a) is a primary victim, secondary victim or family victim of an act of violence, and
(b) is eligible to receive the amount of compensation provided by the award.
The onus is on ARD to prove the allegations of act of violence on the balance of probabilities.
ARD must establish that an act of violence occurred in order to be entitled to compensation. Section 5 of the Act relevantly provides;
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment.
(2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary).
(3) Except as provided by subsections (3A) and (3B), a series of related acts is two or more acts that are related because:
(a) they were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor:
(i) they were committed at approximately the same time, or
(ii) they were committed over a period of time by the same person or group of persons, or
(iii) they were, for any other reason, related to each other.
(3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.
(3B) An act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made.
(4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.
The evidence
I note the evidence provided by ARD. Much of the evidence relates to a significant percentage of the twelve claims before the Tribunal.
There is the applicant's statutory declaration which forms part of her application for Statutory Compensation. At answer to Question 32 ARD declares the following:
'I was 5 years old when my brother (JF) entered my bedroom when I was asleep on the floor and I woke with him on top of me and had pulled my swimmers down and had his hand on my mouth and a knife pressed into my left side and stabbed me and was raping me at the same time. I still have a scar from the knife wound. (Photo to be supplied).
(JF) was around 11 years of age at this time when we were living with our parents and the other siblings. My parents were regularly drunk so that (JF) was able to do with me what he liked and thereafter forced me to have intercourse with him a number of times I estimate would have been in excess of 4 assaults per month.
This continued until around 1970 when I was taken from my parents and made a state ward.
(JF) threatened to kill me if I told anyone and I knew he was serious from the stab wound that he inflicted on me on the first occasion that he assaulted me.
After that assault he locked me in the chicken shed where I remained for around 2 weeks recovering from the stab wound and only (JF) knew where I was. (JF) would then rape me at various locations often on the floor of the bedroom, under the water tank stand outside our home and in locations at nearby paddocks.
There are various references to this matter in the report of Dr R.H. dated 13 June 2012 and the report of Dr R.G. dated 28 April 2011.
Having read through the large amount of clinical notes located and admitted at hearing under section 38(3) of the old Act, there are also references to this act of violence. E.g.: 25/10/2010 entry 'CSA perpetrated by (JF)'.
Consideration
The following matters arise concerning the probative value of the evidence of the allegations relating to this claim. From the report of Dr R.H. dated 13 June 2012, of concern is a report of a parallel pattern of almost identical abuse by another family member (not the neighbours referred to in claims 1370002, and 1370004). That allegation refers to abuse occurring from a male (immediate relative), from the age of 5 until removal into Care at age eleven. This allegation appears to arise somewhat coincidently as part of ARD's traumatic history. On the basis of the multiple and myriad allegations of sexual abuse by four local males (two being family members), and noting that some of ARD's evidence goes back over 50 years beginning when she was five, I am of the view that only minimal weight can be given to that evidence.
The inconsistency in the reporting of the serious allegations concerning members of ARD's family is of concern. I make this observation not only in respect of police reporting, but histories provided to different treating / assessing professionals at different times. In my view this indicates that perhaps the overall trauma of her life, coupled with her previously existing diagnosed dissociative disorder, brings into question the quality of some of ARD's evidence. This is not a criticism of ARD, merely an observation that it is open to me to make, having regard to all of the available evidence.
There is no explanation by ARD or her Solicitor for the stark contrast that some of the material exhibits in respect of historical events of trauma, whereby in some material significant events appear, in others they are absent, but separate allegations are present, and vice versa. I do note however that Dr R.H. reports ARD 'as an accurate historian, neither exaggerative nor histrionic.' (Page 7 of Report).
On balance, whilst it is clear that significant trauma occurred during ARD's childhood within her family, (and subsequently whilst in care), it is difficult to fathom how ARD can be certain that the abuse by (JF), would 'exceed four assaults per month'. It is unlikely that a five year old child in any family circumstances would be able to recall contemporaneously with any certainty such details in respect of timing, let alone after 35 years or more. In any event such observations are consistent with the matters concerning the nature and quality of the evidence outlined in paragraph 50 (above).
ARD's evidence is that JF perpetrated these assaults when he was also a child, and that police did not proceed against him because of that issue. It appears that ARD may have confused this situation with the DPP's finding in respect of the offender (MB) in the related claim. There is clear evidence of this position in respect of (MB), and a decision not to prosecute in respect of the offender (KB), but only one reference by ARD to support this position in respect of the offender (JF) (answer to question 44 re: leave to proceed out of time in this claim before the VCT).
I note that section 5 (1A) of the old Act provides:
(1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment.
In this regard the concept of Doli Incapax does not apply to determining the issue of whether the conduct of JF amounts to an offence for the purposes of the old Act.
Based on the definition in the dictionary to the old Act and section 5 (as set out above), and the medical evidence on file, as well as sworn testimony both orally and deposed, in addition to other material on file, I am satisfied that the incidents that are described in the Application can properly be determined as an "act of violence" for the purposes of Section 5(1) of the old Act. The term 'offence' is defined in the dictionary to the old Act as 'criminal offence. On the material before me, including the report of Dr R. H. and the ARW Report of Dr R.G., the primary victim (ARD) has clearly sustained an injury (section 5 (1) (c) of the old Act) being 'psychological harm' (as defined in the dictionary to the old Act) in respect of these allegations as reported to the clinicians.
Having considered all of the evidence before the compensation assessor, I make a finding that ARD was the victim of an act of violence in accordance with section 5 (1) (a) (b) and (c) of the old Act, in respect of assaults perpetrated by JF. The issue to consider is whether these instances (on the available evidence) constitute a series of related acts or a pattern.
When examining the evidence in this claim it is unclear as to the exact details or nature of all the assaults. If anything the evidence is contradictory and difficult to assess, let alone apportion the allegations against the provisions of Clause 6 Schedule 1 of the old Act. The evidence concerning the use of the offensive weapon (the knife) is linked to a claim for a separate compensable injury, however the provisions of section 11 of the old Act, prohibit such an award where the main claim is for an offence based injury.
I have already determined (at paragraph 56 above) that ARD was the victim of an act of violence for the purposes of this claim. However, it is necessary for me to consider the provisions of section 30.
I have already formed the view that on consideration of all of the evidence before me, ARD has not reported these specific allegations to police. At paragraph 39 I set out some observations on this issue that arise from a consideration of all the available evidence. NSW Police maintain that there are no records of any matter related to the allegations which form the basis of this claim. It seems somewhat unusual that there would be COPS events, Police Statements made by ARD, and DPP correspondence and court results in respect of the related claims concerning KB and MB. I also note the matters that I raised at paragraph 52 above.
The Grounds for obviating the application of section 30 (1) of the old Act, (where it is a live issue), arise in section 30 (2) of the old Act.
Section 30 relevantly provides that:
30 Reasons for not making award or for reducing amount of compensation payable
(1) In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following:
......
(b) whether the act of violence was reported to a police officer within a reasonable time,
(2) In determining whether a matter relating to a victim was reported to a police officer within a reasonable time, the compensation assessor may have regard to such matters as the assessor considers relevant, including the following:
(a) the age of the victim when the act of violence is alleged to have occurred,
......
(c ) the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed,
(d) any fear of retaliation by any such person or persons to which the victim is subject.
I note that essentially for what appear to be considerations personal to the victim the evidence indicates that ARD has not reported this specific allegation. I make that observation in the context only of the period whereby ARD was pursuing her VCT claims (2006 onwards), and in doing so, I propose to reduce the amount of compensation in accordance with the section.
Section 30 (2) (a), (c ) and (d) may well have explained the understandable basis for ARD's non reporting of the allegations to police in the period up to 1976, and her general health and occupational life in the intervening 20 years might also explain the reasons for not reporting the matter. I note the myriad police reports made by ARD in the late 1990's concerning offences allegedly committed by members of the public (with no familial or occupational or care connection to ARD). Section 30 raises broad public interest considerations that apply to recipients of a State (rather than insurer based) statutory compensation scheme.
On the evidence before me, the issues relating to consideration of whether to report these matters to police arise more from personal rather than public interest considerations. Having said that I fully understand ARD's reasons for not vigorously pursuing that issue with the relevant authorities, but remain of the view that this is a relevant case to apply the section in all the circumstances. I note also that there are police records for all of ARD's VCT claims, and other matters (as referred to in paragraph 63 above).
I propose to reduce the award by 40% having regard to section 30 of the old Act.
In the matter involving perpetrator JF there will be an award in the nature of a Category 3 sexual assault being either a pattern of abuse involving Category 2 sexual assault, or unlawful sexual intercourse in which the offender uses an offensive weapon. (The knife). The apportionment of the appropriate 'offence based injury' (s-11 and Clause 6 Schedule 1 of the old Act) and consideration of the evidence and impacts of these instances is a difficult task, especially when having regard to Counsel's and Solicitor's submissions about other impacts on ARD's life, and noting the lack of availability of Clause 4 in such a situation.
In addition, nomination and quantum has been determined from the evidence before me, and having regard to the fact that the legislation should be interpreted beneficially in accordance with the principles laid down in Victims Compensation Fund Corporation v Brown and Ors HCA 54 [2003] and the objects under section 3 of the old Act.
Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury.
I note that in this claim, the evidence goes to trauma arising from matters commencing around 1963, over fifty years ago.
I am unable to consider the scarring claim due to the operation of section 11 of the old Act. On my assessment the 'disfigurement' would only be assessed as minor or significant which attracts a lower starting point of compensation than the Category 3 injury. Section 11 provides that in the absence of an election then I am to make that election beneficial to the appellant and I so do.
Conclusion
The following compensable injuries are present and I assess the award in the following manner and make the following orders:
In Appeal number 1370003 (VCT Ref: 136013)
(1) Pursuant to section 38 (5) of the old Act, I set aside the decision of the compensation assessor.
(2) I make an award of statutory compensation for Category 3 Sexual Assault in the sum of $25,000.00 being - a pattern of unlawful sexual intercourse. (Less the amount of $10,000.00 - 40% pursuant to section 30). Subtotal $15,000.00 Less $750.00 pursuant to section 19A $14,250.00 payable to ARD)
(3) Noting that the matter was determined after a hearing, I make an award of costs under section 35 (1) in the sum of $1,500.00 plus GST if applicable, in accordance with Clause 5.6 of the ADT Guideline of 23 September 2013.
There was some discussion at the end of the first hearing that the Tribunal could in effect alter the costs award of the compensation assessor (in first instance) on review. The compensation assessor made an award in the sum of $400.00 in this application (approximately 45% of the available scale). In respect of the request / provision to review the costs award, I am unaware of any provision in this regard, and can find no authority or other lawful precedent for this approach.
I note that an appeal can only be made by an 'applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application', (s-36 (1) of the old Act). For those reasons, and in the absence of any evidence to show how such an application satisfies section 36 (1), I decline to consider that matter.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 29 September 2014
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