ARD v Victims Compensation Fund Corporation - [2014] NSWCATAD 152

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 152
Hearing dates: 29 January 2014 and 26 August 2014
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 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 - Civil Standard - Balance of Probabilities - Evidence of Victim - Related acts of violence - Oral Hearing - Beneficial Legislation - Offence based injuries
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 1997
Cases Cited: Reifek v McElroy (1965) 112CLR 517 at 521-522
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Victims Compensation Fund Corporation v Brown and Ors HCA 54 [2003]
Texts Cited: Diagnostic and Statistical Manual of Mental Disorders DSM IV TR
Category: Principal judgment
Parties: ARD (Appellant)
Victims Compensation Fund Corporation - (Respondent)
Representation: Counsel
C Lonergan (Appellant)
Michael J Corbett Solicitor (Appellant))

File Number(s): 137000, 1370005 , 1370006, 1370007, 1370012, 1370009, 1370010, 1370011.
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 eight separate applications one lodged in March 2006 and seven lodged in August 2006,. In these applications she alleges that she suffered a compensable injury as a result of being sexually assaulted and suffering domestic violence (whilst a child) in care at various locations in the State of New South Wales between April 1970 and May 1973.

On my assessment of the material before the Tribunal, ARD's claims which were before the compensation assessor on 5 February 2013 can be summarised briefly (Chronologically) as follows:

Claim 1370001- Mr S from April 1970 to December 1970 at Mittagong in the State of New South Wales. A pattern of indecent and sexual assault.
Claim 1370005 -Mr W around 14 September 1970 at Yerrinbool in the State of New South Wales. An incident of sexual assault.
Claim 1370006- Mr K between 1 July 1971 and 31 August 1971 at Guildford in the State of New South Wales. Assaults constituting domestic violence and an incident of sexual assault.
Claim 1370007- Mr G between August 1971 and September 1971 at Thornleigh in the State of New South Wales. Serious assaults constituting domestic violence.
Claim 1370012 - Mr H in July 1972 at Thornleigh in the State of New South Wales. Serious assaults constituting domestic violence.
Claim 1370009 - Mr M between November 1972 and January 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.
Claim 1370010 -Mr G between December 1972 and May 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.
Claim 1370011 Mr V between January 1973 and May 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.

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 17 March 2006 ARD submitted Application 122828 to the Victims Compensation Tribunal ("the Tribunal"). On 22 August 2006 the other seven claims which are the subject of this decision were lodged with the Tribunal.

I note that the applications were lodged outside of the statutory period required by section 26 of the old Act.

Claim 122828 (VCT) was listed for leave to proceed out of time by way of letter dated 4 April 2006.

On 5 April 2006 the compensation assessor (as Delegate of the Director) deferred consideration of giving leave to proceed outside of the statutory limitation period of 2 years on that claim. The reason given was that the Tribunal was awaiting a police report.

On 28 June 2006 the Tribunal advised that on 27 June 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 122828.

On 24 August 2006 the other seven claims subject of this decision were given leave to proceed out of time, once again presumably for reasons outlined in section 26 (3) (b) of the old Act.

On 23 May 2011 the Tribunal advised ARD's Solicitors that the matters were listed for determination at the first available opportunity on or after the month of September 2012.

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.

A further adjournment was sought (and granted) on 24 April 2014. 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.

On 5 February 2013, the Compensation Assessor determined eight of ARD's 12 claims and determined that ARD was not entitled to compensation and issued a 'joint' Notice of Determination under section 29 of the old Act covering the claims. This decision (as outlined earlier) covers those eight claims which were subject to the joint determination of the compensation assessor. In respect of these claims, 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:

The applicant has lodged eight applications for compensation. All claims relate to sexual assaults perpetrated upon the applicant when the applicant was an inmate [sic] at various children's homes in NSW. The applicant has nominated various superintendents from these children's homes as the nominated offenders.

(the compensation assessor then provides a three line summary in respect of the particulars of each of the eight applications). The Notice of Determination continues, (inter alia):

...I have read solicitor's submissions, the applicant's statutory declaration in support of her claim and records of interview held between the applicant and police. I have also viewed the DVD record of interview between the applicant and Senior Constable Jackson held at Penrith Police Station on the 12th November 2009.

... The applicant reported matters to police in 2006. It appears that all matters were reported after the applicant lodged her claims for compensation. I note that this was over thirty years after the last incident took place. It appears that the applicant did not make a disclosure prior to her reporting to police. The applicant details to Senior Constable Jackson that it was only after she attended a reunion at one of the particular girls homes that her memories of abuse came back and were confirmed.

It appears that due to a huge delay in reporting incidents to police that matters have not been investigated further and none of the alleged offenders have been charged with any offence.

No supporting evidence from the time in question or even within thirty years of the time in question is on file. There appears to be a gap of over thirty years from when the incidents took place to the filing of the applicant's claims for compensation.

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 thirty years after they took place, no person have [sic] ever been charged with any offence whatsoever, 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

The Notices of Appeal were 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 determining that he / she cannot be satisfied that any act of violence in respect to any of the Appellant's claims is established by taking into account the matters specified under FULL PARTICULARS herein.

(3) The compensation assessor erred in failing to properly take into account and otherwise consider, firstly, the Appellant's statutory declarations made on: (for each matter the relevant date of the initial application e.g.: 17 March 2006), and 18 October 2012 and secondly and specifically the matters declared therein as well as records of interview between the Appellant and NSW Police including the interview that took place on 12 November 2009.

(4) 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.

(5) 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 the matter 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 the appeals and the need for an oral hearing.

On 15 November 2013 the 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.

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, (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, this matter was 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 30 and 31 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

These matters were initially heard before Senior Member Molony on 29 January 2014. However after the initial hearing of the matter, 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.

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.

The approach taken by the compensation assessor

Based on matters that arose at hearing, I feel that it is necessary to address some of the matters raised at the hearing by Counsel for ARD and argued in written submissions, concerning the compensation assessor's approach. Mr Lonergan submitted that the compensation assessor had not taken a forensic approach to the material before them, but had in fact determined (without examining all of the evidence), matters relating to when the evidence was brought into being, as disentitling ARD to compensation. Specifically that the significant delay coupled with the absence of evidence originating in a form contemporaneous to the alleged incidents, provided a basis that there was insufficient evidence that ARD was the victim of an act of violence under section 5 (1) the old Act.

I agree with Counsel, that this would appear to be the incorrect path to follow when determining a matter under the old Act.

In essence the compensation assessor found that ARD was not a victim of an Act of violence. There was no reference to the specific provisions of section 5 (1) of the old Act, however nothing turns on that point. It appears (from the words of the determination) that the compensation assessor applied weight to the provisions of section 30 (1) of the old Act, in order to establish whether there was sufficient evidence that the elements of section 5 (1) were made out, ie: that ARD was a victim of an act of violence. With the greatest respect to the compensation assessor, in my view the decision maker's primary function is to look at the available evidence and determine whether there is evidence to the civil standard that an act of violence occurred.

A lack of reporting to police or assisting police (contemporaneously or otherwise) are matters which the decision maker must consider only when section 5 has been satisfied (on the available evidence). The references (from the joint decision) to the fact that none of the offenders have been charged with any offence are not matters which go to the evidence before the decision maker. There is an extremely large amount of police material on file, both in written and audio / visual form (eg: the DVD of one of the many records of interview - which was viewed by the compensation assessor).

Matters relating to whether offenders are charged, proceed to hearing, or the outcome of those hearings are ordinarily not matters entirely attributable to a complainant in a criminal proceedings. Decisions were made by investigating police as to what level of inquiry and what prosecutorial action (if any) might ensue from those investigations. There is evidence that New South Wales Police considered the evidence provided by ARD at great length, and in the hearing evidence was lead that the Director Of Public Prosecutions Office had considered certain matters and made a detailed consideration not to proceed. I note that some of those matters concern the four claims not subject of this decision. Some of the reasons provided for not proceeding in various complaints brought by ARD include, death of alleged perpetrators, the fact that one of the perpetrators was a child at the time, and below an age that (at that time) would permit any criminal action by the State.

Further, a decision to charge a person with an offence requires a police officer to form the view that on the available evidence, a properly instructed jury would be more likely than not to convict the accused, having regard to the requisite standard that they are satisfied beyond reasonable doubt. This assessment is required at the time of breaching a person, and is a higher standard than the standard to be applied to section 5 of the old Act.

In addition there was a significant amount of medical material which provided some expert insight into the functioning status of ARD, how such a status might arise, and the level of contribution that the reported incidents might give to that current status. These were matters which contained independent and professional opinions / evidence, and would withstand (on my assessment) any scrutiny as to the level of weight that could be placed on them in determining how they reached their conclusions, as per Makita (Australia) Pty Ltd v Sprowles (2001)

The majority of the matters that the compensation assessor appears to focus on in determining whether there is sufficient evidence that ARD was a victim of an act of violence in accordance with section 5 (1) of the old Act, are to my mind irrelevant considerations in establishing whether an applicant for statutory compensation passes through the threshold gateway of the statutory regime provided by section 5 of the old Act.

Additionally, when the compensation assessor considers the available evidence (rather than discretionary matters for which there is no evidence), it appears from the Determination that a somewhat subjective assessment is made of that evidence without considering its contents. There is no analysis of the sworn, medical and other evidence. There is an analysis of some aspects of the evidence provided to New South Wales Police, but this is really only an administrative analysis, examining the timing of ARD's interaction coupled with other matters such as victims compensation applications and treatment. If there is any analysis of a substantive nature, then the findings or observations from that analysis are not provided in the reasons for decision / notice of determination. In my view having regard to the statutory provisions of the old Act, and the task before the compensation assessor, the real issue to considerer is what evidence does the contents of those statements and other material provide in respect of whether section 5 is made out.

In addition, it would appear that the Assessor has considered section 30 (1) (b) and similar issues without having regard to the matters outlined in section 30 (2) and (2A) of the old Act. In this regard I note in particular the provisions of section 30 (2) (a), (c ) and (d) of the old Act. Eg: ARD was a child, in care, and allegedly suffering abuse from persons with care or authority over ARD. Further ARD's Solicitor provides significant submissions on the delay in reporting the matters to police. None of these issues are addressed in the decision.

A consideration of these issues indicates that the compensation assessor may have been seeking evidence of some sort of contemporaneous corroboration or verification of the allegations, which is not a requirement under the old Act. What was required was a weighing up of the evidence before the compensation assessor. The determination appears silent on this aspect.

In any event ARD's Counsel and Solicitor have made the point both in oral and written submissions that the reasons for decision read more like an application for leave to proceed out of time, rather than an assessment of the available evidence to the extent that section 5 (1) is made out to the civil standard.

The point was made during the hearing, that irrespective of Counsel's submissions that weight should have been be given by the compensation assessor to the fact that leave had been given to proceed out of time. In my view, little reliance should be placed on that fact.

Essentially section 26 (3) (b) of the old Act provides an effective 'presumption in favour' of giving leave in matters which involve allegations of child abuse domestic violence and sexual assault, and as a result ARD was given leave to proceed out of time.

Ordinarily the only threshold reason which would apply to a matter whereby there was a presumption in favour of leave, would be a matter where there was no jurisdiction to hear the matter for example (in accordance with the Interpretation Act 1987), such as if the act of violence occurred outside of the jurisdiction. This would be an example of where the language of the statute would be enlivened whereby leave should be given 'unless the Director is satisfied that there is no good reason to do so'. (Emphasis added). A claim which fails on jurisdiction rather than a premature assessment of the merits would in my view fall into that category. ARD's claims are not matters which fall into that category.

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;

(A) 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) hey 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. In respect of these eight claims the evidence consists of the following matters:

Matters declared in her application forms,
The Detailed Transcript of the ERISP interview concerning allegations against Mr S. (the House Parent) amongst others.
COPS Event E 161339592
NSW Police Statement dated 9 November 1996.
Report of Dr R. H. Consultant Psychiatrist dated 13 June 2012.
Police record of Interview dated 5 June 2007.
Submission to Senate Community Affairs Reference Committee authored by ARD.
ARW Clinical Psychologist Report of Dr R.G. dated 28 April 2011.
Statutory Declarations of ARD dated 18 October 2012 (x2) and 15 November 2012.
Detailed statement prepared by Solicitor in respect of Applications for Victims Compensation Parts 1-11 inclusive with 54 numbered paragraphs and annexure statement of ARD dated 17 March 2006.
Clinical notes and medical evidence filed 20 August 2013 and 22 August 2013.

I note that all of this material other than the last dot point, was before the compensation assessor.

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.

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

Whether to receive further evidence

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.

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

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 each of the Applications 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 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 each of the eight claims. There was other non-verified evidence of actual bodily harm in respect of some of the acts of violence, but this did not constitute medical evidence or lay evidence on that issue as observed by a third party.

Having considered all of the evidence before the 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 the following offenders at the following times and locations:

Mr S from April 1970 to December 1970 at Mittagong in the State of New South Wales.
Mr W around 14 September 1970 at Yerrinbool in the State of New South Wales.
Mr K between 1 July 1971 and 31 August 1971 at Guildford in the State of New South Wales.
Mr G between August 1971 and September 1971 at Thornleigh in the State of New South Wales.
Mr H in July 1971 at Thornleigh in the State of New South Wales.
Mr M between November 1972 and January 1973 at Parramatta in the State of New South Wales.
Mr G between December 1972 and May 1973 at Parramatta in the State of New South Wales.
Mr V between January 1973 and May 1973 at Parramatta in the State of New South Wales.

Has ARD sustained a compensable injury above the threshold?

Schedule 1 contains special provisions relating specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. With respect to psychological or psychiatric disorder Clause 5 provides:

(1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.

(1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1).

(2) The Director may suspend or revoke the designation of a person under subclause (1).

(3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences:

(a) armed robbery,

(b) abduction,

(c) kidnapping.

Psychological or Psychiatric injury

At some stage in the eight and a half year history of these claims before the VCT and now NCAT, the Solicitor for ARD claimed a Psychological or Psychiatric Disorder compensable injury on behalf of ARD, in the alternate to an 'offence based' injury as set out in section11 and Table 1 to Schedule 1 of the old Act. I make this assertion as a Report has been commissioned by the Director of Victims Services by an Authorised Report Writer.

In that regard the Report satisfies the provisions of Clause 5 (1) and (1A) of Schedule 1 to the old Act. In respect of the claim for a Category 2 Psychological or Psychiatric Disorder compensable injury, I note the ARW's opinion that there is no evidence of an Axis II diagnosis, and that the Axis III diagnosis relates to her chronic physical condition which has increased over recent years, and the Axis IV diagnosis is as a Victim of Crime. The Report makes no specific reference (that I can glean) to a Clinical Disorder (Axis I DSM - IV) and the Axis V diagnosis is a GAF rating of 70 which indicates moderate disability. The Reports observations and findings are a credit to ARD's resilience and ability to mitigate the psychological impact of her injury over many decades.

I have also had regard to the other psychological and medical evidence outlined in paragraph 57 (above). However, due to the absence of a chronic disorder that is severely disabling at the time of the assessment, it is not possible to find that a severe level of disability arises as a direct result of the act of violence, or as a result of the relevant exacerbation, aggravation, deterioration, or amelioration of an existing condition as per Clause 4 of Schedule 1 of the old Act. (Emphasis added) having had regard to the multiple victim of crime stressors that have impacted at some time on ARD. I note that as at 13 June 2012 Dr R.H. opined that ARD did not currently suffer from any Axis I diagnosable psychological or psychiatric condition.

'Offence based' injuries - s-11

I note the other compensable injuries claimed by ARD. In order for a Category 3 Sexual Assault award to be made, the decision maker must be satisfied that the act of violence involved:

A pattern of abuse involving category 1 or category 2 sexual abuse,
Unlawful sexual intercourse in which serious bodily injury is inflicted, or
Unlawful sexual intercourse in which 2 or more offenders are involved, or
Unlawful sexual intercourse in which the offender uses an offensive weapon.

Category 2 Sexual Assault involves:

Unlawful sexual intercourse, or
The infliction of serious bodily injury in the course of attempted unlawful sexual intercourse.

Category 1 Sexual Assault involves:

Indecent assault, or
As assault with violence in the course of attempted unlawful sexual intercourse.

[for victims under 16 years of age (such as ARD) Category 1 extends to an act of indecency committed with or towards or in the presence of a person - under 16 years of age - essentially not requiring an assault]

The evidence is contained in ARD's application form, her police evidence, her statutory declarations, and the self-reporting and observations recorded by the ARW, Psychiatrist, Counsellors and other Clinicians.

I note Counsel's submissions at hearing that clearly the other life experiences would have had an impact on her functioning. This submission takes into account all major negative impacting incidents that have dominated significant portions of ARD's life. Some of those arise from violence committed against ARD, and others arise from instances and circumstances which are not subject of the various claims before the Tribunal, and in some matters, circumstances beyond the jurisdiction of the Tribunal and scheme. I note in particular the comments of the professional assessments in respect of ARD's general 'difficult' upbringing, notwithstanding the criminal allegations concerning her treatment.

I note that the violence commenced in Appeal 1370001 as what could be described as Category 1 sexual assault Instances, and amplified to instances involving Category 2 sexual assault (as defined in Clause 6 of Schedule 1 of the old Act).

In Appeal 1370005 the violence could be described as an instance Category 2 sexual assault following Category 1 sexual assault conduct.

In Appeal 1370006 the violence could be described as an instance of domestic violence wherein an instance of Category 1 and 2 sexual assault also occurred.

In Appeal 1370007 the violence could be described as instances of serious domestic violence.

In Appeal 1370012 the violence could be described as instances of serious domestic violence.

In Appeal 1370009 the violence could be described as a pattern of Category 1 and Category 2 sexual assault.

In Appeal 1370010 the violence could be described as a pattern of category 2 sexual assault and physical assaults (constituting domestic violence).

In Appeal 1370011 the violence could be described as a pattern of Category 2 sexual assault and physical assaults (constituting domestic violence).

I note that the issue of separate / related acts for the purpose of section 5 (3) (3A) and (4) of the old Act was canvassed at hearing and is addressed by early correspondence and advice between the Solicitor and the VCT, resulting in the making of a single application for each nominated perpetrator, rather than multiple applications for certain perpetrators.

I agree that the claims involving the perpetrators in matters: 1370001, 1370006, 1370009, 1370010 and 1370011consititute a series of related acts for the purpose of section 5 of the old Act.

Having regard to the matters contained within the Statutory Declarations of the Applicant, the Solicitors submissions, and noting the age of the victim at the time and the matters in section 30 (2) of the old Act, I determine that there are no relevant section 30 issues.

Section 14(1) of the old Act provides:

(1) The statutory compensation for which a primary victim of an act of violence is eligible comprises:

(a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and

(b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury.

I make a finding that the following incidents comprise a description of compensable injuries for which I will assess the relevant award of statutory compensation having regards to the evidence and submissions and Schedule 1 and the Table to the old Act.

Mr S from April 1970 to December 1970 at Mittagong in the State of New South Wales. A pattern of indecent and sexual assault.
Mr W around 14 September 1970 at Yerrinbool in the State of New South Wales. An incident of sexual assault.
Mr K between 1 July 1971 and 31 August 1971 at Guildford in the State of New South Wales. Assaults constituting domestic violence and an incident of sexual assault.
Mr G between August 1971 and September 1971 at Thornleigh in the State of New South Wales. Serious assaults constituting domestic violence.
Mr H in July 1971 at Thornleigh in the State of New South Wales. Serious assaults constituting domestic violence.
Mr M between November 1972 and January 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.
Mr G between December 1972 and May 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.
Mr V between January 1973 and May 1973 at Parramatta in the State of New South Wales. A pattern of physical and sexual assaults.

From the paragraph above it is clear that I have nominated the descriptor of 'Domestic violence' to some of the assault incidents. This descriptor relies on the provisions of Clause 7A of Schedule 1 of the old Act, and the dictionary definition of same as provided for in Clause 7A subclause (3). Based on the facts that ARD was placed in residences or facilities run by the various perpetrators who also resided at those premises, then ARD is considered to have 'domestic violence standing' or eligibility for the purposes of the old Act.

I note ARD's Solicitor's and Counsel's submissions that they should be entitled to a full award of costs on each matter on appeal. I believe that this is an appropriate approach, as it is clear from having examined the material and evidence on these eight claims (and the other matters prepared on behalf of ARD), that significant time and expenditure has been incurred by the Solicitor in preparing and running these claims over the last eight and a half years, including copying, postage, telephone, and briefing Counsel. I also note that the compensation assessor appears to have omitted to consider the sole disbursement claim concerning the medico legal report of Dr R.H. when dealing with the matter in the first instance.

The following awards have regard to all of the material before me, the oral testimony of ARD, the Solicitor's and Counsel's written and oral submissions, taking into account the other life impacts (referred to elsewhere in this decision) which have been managed by ARD.

Finally, it is necessary in some manner to explain how awards for 'offence based injuries' (as referred to in section 11 of the old Act), are addressed. In essence clause 4 of Schedule 1 of the old Act does not apply to offence based injuries. The 'sliding scale' or 'range' provided for in the Table to Schedule 1 of the old Act is designed to take into account the number of instances of some of the cumulative compensable injuries (E.g.: domestic violence and Category 3 Sexual Assault) whereby there are provisions for a series of related acts giving rise to eligibility for that particular compensable injury. In addition the range is also designed to take into account the impact of the assault(s) on the victims in a similar manner to the more straightforward assessment attributable to Category 1 or Category 2 psychological injury.

I have attempted below to apportion the nature and circumstances of the offending by nominating or applying the relevant compensable injury, (see Section 11 (3) of the old Act), 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 have also tried to assess the appropriate quantum from the available range having regard to the fact that the evidence indicates that the short, medium and long term impacts on ARD of the assaults varied. This is understandable when the medical evidence is considered, and noting the rapid sequence and escalation of these assaults whilst in care, from persons in authority over ARD .

Conclusion

The following compensable injuries are present and I assess the awards in the following manner and make the following orders:

In Appeal number 1370001 (VCT Ref: 122828)

(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 abuse involving category 1 and category 2 sexual assault. ($25,000.00 payable to ARD)