AWK v Victims Compensation Fund Corporation

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AWK v Victims Compensation Fund Corporation. [2013] NSWADT 251

Hearing dates:

On the papers

Decision date:

07 November 2013

Jurisdiction:

Victims Support Division

Before:

P H Molony, Judicial Member

Decision:

1. The appeal is dismissed.

2. No order as to costs.

Catchwords:

Victims Support and Rehabilitation - compensable injury - chronic psychological or psychiatric disorder - ARW reports - there must be a diagnosed psychological condition - expert report should clearly explain the basis on which diagnosis made

Legislation Cited:

Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2012

Cases Cited:

Commonwealth of Australia v Smith [2005] NSWCA 478
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Tame v State of New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348

Category:

Principal judgment

Parties:

AWK (Applicant)
Victims Compensation Fund Corporation (Respondent)

File Number(s):

137133

Publication restriction:

s 126 Administrative Decisions Tribunal Act

reasons for decision

Background

1. AWK who is aged 44 claims compensation for psychological injuries which he claims to have received on 6 July 2010 when he was the victim of a robbery at home. The robbery occurred when two men, posing as plain clothes police officers gained entry to his house on the pretext that they had a search warrant. The Compensation Assessor was satisfied that AWK had established an act of violence in the course of the commission of an offence, but was not satisfied that AWK had established that he suffered from a psychological/psychiatric disorder as a result.

Application of the old Act

1. On 7 May 2013 the New South Wales Government introduced into Parliament an Act which 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 The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). AWK's solicitors were informed that the appeal would be determined under the new Act.

1. The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.

1. On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. AWK's solicitors had previously made submissions on the basis of the appeal proceeding under the old Act. Since Clause 16 of the Regulation commenced AWK has been advised of it by the…