ARD v Victims Compensation Fund Corporation

Case •

[2014] NSWCATAD 153

•

25 September 2014

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 153
Hearing dates:On the papers
Decision date: 25 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 affirm the decision of the compensation assessor.

2. Pursuant to section 35 (1) of the old Act I make an award of costs.

Catchwords: Balance of probabilities - Act of violence -
Legislation Cited: Victims Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Interpretation Act 1987
Cases Cited: Reifek - v - McElroy (1965) 112CLR 517 at 521 - 522
Category:Principal judgment
Parties: ARD (Appellant)
Victims Compensation Fund Corporation (Respondent)
Representation: Counsel
C Lonergan (ARD)
Michael J Corbett Solicitor (Appellant)
M Ting Victims (Respondent)
File Number(s):137008 (decision under review 126408)
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

  1. 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 New South Wales Police Officers on a number of occasions from June 1971 to September 1975 at various locations in Sydney in the State of New South Wales. (The actual incidents are dated October 1972 - September 1975).

  1. I note that ARD was represented by Michael J Corbett Solicitor before the compensation assessor and continues to be represented for this subsequent appeal.

  1. On 22 August 2006 ARD submitted Application 126408 to the Victims Compensation Tribunal ("the Tribunal"). Also on 22 August 2006 seven other claims were lodged with the Tribunal. An earlier claim and three subsequent claims were also lodged on behalf of ARD. Those matters are dealt with in separate appeal decisions (joint and otherwise).

  1. I note that the application was lodged outside of the statutory period required by section 26 of the old Act.

  1. Claim 126408 (VCT) was listed for leave to proceed out of time by way of letter dated 24 August 2006.

  1. On 28 August 2006 the Tribunal advised that on 24 August 2006, 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 126408.

  1. 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 2012.

  1. In the following months ARD's Solicitors attempted to obtain copies of further evidence that had been generated between ARD and NSW Police and NSW Health. Adjournments were subsequently sought and granted on 27 September 2011 and 13 January 2012. The matter was relisted for consideration during the month of May 2012.

  1. 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.

  1. Further material was obtained, and evidence and submissions submitted by ARD's Solicitor in the intervening months.

  1. 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 June 1971 and October 1975. The applicant details that during the time she was sexually assaulted by various police officers in police vehicles and police cells at various locations in NSW.
...I have read solicitor's submissions on file and note the report of (Dr R.G.) and counselling records obtained. I also note the letter from Senior Sergeant B on File. It appears that the applicant made a complaint concerning the alleged sexual assaults by telephone to the Police Royal Commission in 1996. Sergeant B details that matters were not investigated as it was considered that the incidents that the applicant had complained of occurred too long ago.
The applicant did not make a complaint to police until over twenty years after incidents apparently occurred. I further 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.
It appears that due to a huge delay in reporting incidents to police combined with the fact that there was no evidence from the time in question resulted in no further investigation taking place.
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.
Matters were not reported to police until over twenty years after they occurred. Matters are described in very general terms, there is no supporting evidence presented even moderately close to when the 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

  1. 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 21 July 2006 (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

  1. 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").

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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:

(1)   The Tribunal is satisfied that these matters cannot properly be determined without a hearing.

(2)   The application is fixed for hearing on 29 January 2014 for 1 day.

(3)   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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. (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.

  1. 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 27 and 28 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

  1. 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.

  1. 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.

  1. 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.

  1. 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 the three claims from prior to that time. This appears to be in part because of the clear volume of claims (the other eleven as opposed to this separate claim), and the fact that there for those eleven claims there was an amount of material equal to that in this claim, or a much larger holding of material.

  1. There was one mention of the fact that NSW Police had determined not to investigate these allegations (involving sexual and physical assaults by police) further. Whilst Counsel submitted that they did not know why this was, the letter from Senior Sergeant B of 21 July 1999 sets out the basis for the decision. There was also a submission that nothing adverse should be drawn for ARD because of a decision by NSW Police. There was some discussion as to whether NSW Police were aware of the names of any of the officers, and a comment that they may have been identified, (possibly through the Wood Royal Commission preliminary analysis process), but the evidence on this was equivocal.

  1. 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

  1. 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.

  1. The onus is on ARD to prove the allegations of act of violence on the balance of probabilities.

  1. 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

  1. I note the evidence provided by ARD. Much of the evidence relates to a significant percentage of the twelve claims before the Tribunal.

  1. In respect of this claim the relevant evidence that I can glean from the large volume of material filed consists of the following matters:

  • Matters declared in her application form (Claim 126408 VCT).
  • Reference in the clinical notes (received under section 38 (3) on 29 January 2014) entry 21/2/2001 'abused sexually by staff and on occasions Police Members who would pick her up from running away.'
  • Victims Comp Statement by ARD dated 17 March 2006 - Which takes the form of a damages pleadings (Page 2) Paragraph 13: 'On 18 July 1971, the victim was physically and sexually abused by the NSW Police Service it's servants and agents.' - In May 1974, the victim was physically and sexually abused by the NSW Police Service it's servants and agents.' - 'On 25 November 1971, the victim was physically and sexually abused by the NSW Police Service it's servants and agents.' - 'On 19 September 1975, the victim was physically and sexually abused by the NSW Police Service it's servants and agents.'
  • Victims Comp Statement by ARD dated 17 March 2006 which follows the pleadings and takes the form of a Chronology (Page 4) Paragraph 15, there is no specific reference to the 18 July 1971 incidents - which apparently occurred during the 'absconding' from Lynwood Hall Guildford.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 5) Paragraph 29: 'Ran away to Kings Cross - located and arrested at Wayside Chapel. Arrested by Police.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 5) Paragraph 30: - Sexually abused by NSW Police.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 5) Paragraph 32: - NSW Police touched victims genitals.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 7) Paragraph 44: - NSW Police assaulted ARD on 25 November 1974 using telephone books to hide bruising.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 7) Paragraph 47: - Between June 1975 and September 1975 AED was sexually abused by Police.
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 7) Paragraph 48: - June 1975 raped by more than one police officer on front seat of paddy wagon. (Two or more consecutively, not at the same time).
  • Victims Comp Statement by ARD dated 17 March 2006 (Page 7) Paragraph 49: - Setting fire to Police Cars at Darlinghurst.
  • The Letter of Senior Sergeant 'B' dated 21 July 1999 from Police Internal Affairs in response to telephone report to the Wood Police Royal Commission on 11 November 1996 alleging sexual assault by police officers attached to Darlinghurst, Kings Cross and Central Police Stations since 1971.
  • Report of Dr R. H. Consultant Psychiatrist dated 13 June 2012 (in respect of matters raised at paragraph 49 of ARD's 17 March 2006 Statement).
  • Statutory Declarations of ARD dated 18 October 2012 (x2) and 15 November 2012.

Whether to receive further evidence

  1. This issue has been dealt with in the hearing. Section 38 (3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". As outlined earlier, the clinical notes from the Nepean Mental Health Service / Wentworth Area Health were received during the initial hearing on 29 January 2014. The Senior Member received that material because he was satisfied that diligent attempts had been made by both ARD and her Solicitor to retrieve the relevant records in the months prior to the compensation assessor considering the matter. Evidence was given on this issue. The other piece of fresh evidence, the report of C.M. Registered Psychologist dated 11 December 2013, was not received.

  1. I have read and considered the whole of the evidence before the Assessor, and the evidence received on 29 January 2014. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons.

Consideration

  1. The material declared in the application form is as follows:

  • Q 24 When did the act(s) of violence happen? A. 'From June 1971 to October 1975'.
  • Q 25 Do you know the name of the offender(s) A. 'No, NSW Police Officers'.
  • Q 27 Where did the act(s) of violence happen? Include address, if known . A. 'In Police Vehicles and in Police Cells'.

  1. The matters outlined above are essentially the board allegations that form the basis of this claim. There are some minor issues with the manner in which the claim has been framed, which in my view go in part to the problems with the nature and level of the evidence, which lead to a difficulty in overcoming the threshold of section 5 (1) of the old Act. E.g.: on the evidence before me if the allegations were made out to the requisite standard, then they could not compromise a series of related acts, as other than the allegation that the perpetrators have the same employer, they are clearly discrete separate assaults involving different perpetrators at different times and places. However I note the wording of section 5 (3) (b) (iii) and (4) of the old Act.

  1. ARD's current claim appears to be based on up to five incidents involving different officers from different Commands, with incidents occurring at different locations. (Glebe, Mount Druitt, etc.) and incidents involving different types of acts of violence, e.g.: indecent assault, sexual assault, common assault and assault occasioning actual bodily harm, sometimes in a sexual assault context, and sometimes involving corporal violence with no sexual elements etc, and sometimes in company, and at other times involving a single offender. In all of these instances ARD appears to either be in a custodial situation (after being accused of some offence etc.), or a 'retrieval and transporting' type situation, whereby ARD had allegedly absconded from care and was located and forcibly returned to the institution by NSW Police Officers. I.e.: A minor who is being forcibly returned by police to her place of residence (neither in formal police custody, or free to leave).

  1. In some instances there is an otherwise unexplained clarity to aspects of the event (e.g.: the Mount Druitt Station Assault is alleged to have occurred on 25 November 1974, physical and sexual abuse on 18 July 1971 and 19 September 1975) and in other instances the allegations are vague and general in nature. Whilst I appreciate that some of these dates may have arisen from ARD's examination of her Care Files, and filling in the gaps in respect of various instances of absconding from certain institutions etc., and the timing and method of her forced return, that does not assist me in establishing whether to the requisite standard the alleged criminal incidents (assaults) occurred.

  1. Some of these assaults have allegedly occurred in public places, although it is not clear what time of day they would have occurred. The allegations of sexual assaults outside the Harold Park Raceway at Glebe appear particularly brazen, in that irrespective of whether it was day or night, the assaults alleged occurred in a marked police vehicle (Paddy Wagon) on the front bench seat of the vehicle which would have been clearly visible to any bystander or person passing by (in the absence of any evidence to the contrary such as it was evening, parked away from a lit area etc). There is some minor mention amongst the voluminous material on file that ARD thought that Police believed that she consented. In any event, the notion of on duty police in full uniform having sexual intercourse in an urban area (albeit next to a Horse Pacing Track in a built up area where the streets may have been empty or busy) with a young person who they would have known was 14 years of age at the time - whether 'consent' was believed to have been given or not appears somewhat fanciful and difficult to believe. In making this comment I do not imply that ARD is trying to be misleading, but that with the passage of time, the significant traumas that she was enduring at the time and since, and matters relating to what is raised in the Psychiatrist and Clinical Psychologist reports, all lead me to accept that ARD broadly believes these allegations.

  1. I note that there is no mention of the sexual assault allegations or the other assault allegations involving police in the report of Dr R.H. dated 13 June 2012. The only reference to Police arises at page 5 of that Report in respect of the arson incidents at Darlinghurst involving Police Cars, and the apparent attempted arson of Mount Druitt Police Station. It is not possible (on the available evidence) to extrapolate the basis for the arson behaviour or conclude that it was somehow in response to another trauma and therefore provides evidence if that other trauma.

  1. While the onus on the appellant (ARD) is the civil standard of the balance of probabilities the following statements of the High Court in Reifek v McElroy (1965) 112CLR 517 at 521-522 apply:

The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support a conviction upon a criminal charge.

  1. I note that the above test was formulated in adversarial proceedings, unlike applications for statutory compensation and subsequent appeals.

  1. For a range of reasons I am not reasonably satisfied that the allegations (as outlined throughout this claim and based on information contained across all twelve applications) occurred. Whilst it may be that ARD believes that these matters occurred, on the evidence before me, such a finding is not open to me to make. The evidence does not indicate that it is more likely than not that the allegation occurred. The evidence is vague, contradictory, and somewhat inconsistent in both detail and the amount of weight that can objectively be given to that evidence.

  1. The Applicant's evidence is understandably difficult to encompass, based in part on the volume of material provided addressing all claims and incidents, the impact of the other acts of violence and other matters relating to ARD's tragic but also somewhat resilient life experience. The dissociative disorder diagnosed on 17 October 1998 (from the clinical notes), and ARD's personality disorder as diagnosed by Dr R.H. have also impacted on her ability to provide cogent material in respect of these allegations both in written and oral evidence.

  1. Matters have been further compounded by the fact that much of the evidence could not properly be tested, either at hearing or otherwise. The Care Files which ARD has previously accessed are not before the Tribunal. Presumably this is because after considering their contents, ARD's Solicitor determined that they would not assist, as their contents were administrative in nature.

  1. I note Counsel's oral submission in respect of the fact that NSW Police declined to investigate the allegations, and how that is not attributable to ARD. However, it appears that with the paucity of material that could be considered cogent evidence, these allegations are unable to be advanced even to the civil standard, and that would indicate a good reason to not pursue the information in a manner leading to a higher (beyond reasonable doubt) assessment.

  1. Having considered all of the relevant material filed before the Tribunal, the provisions of the old Act, and in particular section 29 (2), I am not satisfied that on the balance of probabilities, ARD is the primary victim of an act of violence, in respect of the allegations contained within this application.

Conclusion

  1. I make the following orders:

(1)   (1) Pursuant to section 38 (5) (a) of the old Act, I affirm the decision of the compensation assessor.

(2)   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.

  1. 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 $250.00 per application (approximately 30% 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.

  1. 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: 26 September 2014

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