BGF v Commissioner of Victims Rights (No 2)
[2015] NSWCATAD 232
•12 November 2015
|
New South Wales |
Case Name: | BGF v Commissioner of Victims Rights (No 2) |
Medium Neutral Citation: | [2015] NSWCATAD 232 |
Hearing Date(s): | 28 August 2015 |
Decision Date: | 12 November 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | M Riordan, Senior Member |
Decision: | The restitution order made against BGF on date 28 August 2013 is confirmed. |
Catchwords: | Victims Rights and Support – administrative review - restitution order against person convicted of relevant offence |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (No. 2) |
Cases Cited: | Commissioner of Victims Rights v BGF [2015] NSWCATAP 149 |
Category: | Principal judgment |
Parties: | BGF (Applicant) |
Representation: | Solicitors: |
File Number(s): | 1510424 |
Publication Restriction: | The publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them or is likely to lead to their identification is prohibited (s 64 Civil and Administrative Tribunal Act 2013). |
Reasons for decision
Background
This matter has been remitted to the Administrative and Equal Opportunity Division of the Tribunal for determination in accordance with the decision of the Appeal Panel dated 22 July 2015.
The Appeal Panel set aside the decision made by the Tribunal at first instance on 6 June 2015, which set aside a restitution order made by the Commissioner of Victims Rights (“the Commissioner”). That restitution order that was made in respect of an award of compensation that was made to BGF’s former wife (the victim) under the Victims Support and Rehabilitation Act 1996 (‘the old Act’).
The victim lodged two claims for compensation under the old Act on 2 October 2008, as follows:
(1)She alleged that she was the primary victim of acts of domestic violence committed by BGF over a period of time from 14 February 2004 to 7 July 2008 (‘the domestic violence claim’). The Commissioner registered this claim as claim no. 145797; and
(2)She alleged that she was the primary victim of an assault that was perpetrated by two of BGF’s associates and at his direction in a park on 9 September 2008, (‘the park assault claim’). The Commissioner registered this claim as claim no. 145962.
On 10 February 2009, BGF was convicted of two counts of assault occasioning bodily harm upon the victim at Lakemba, at 12pm on 6 July 2008.
On 12 October 2012, an Assessor determined the victim’s claims for compensation under the old Act and found ‘on the balance of probabilities an act of violence (from April 2004 to September 2008) is established.’ The Assessor determined that the park assault claim formed a part of the domestic violence claim and dismissed the park assault claim. The Assessor also held that that the victim had not established that she suffered a Category 2, chronic psychological or psychiatric disorder that is severely disabling and awarded her compensation of $9,250 for the compensable injury of ‘domestic violence’.
However, the victim appealed to the Victims Compensation Tribunal (‘the VCT’) under the old Act. On 20 June 2012, the VCT determined that the park assault claim was a separate claim to the domestic violence claim and it made a more favourable statutory award to the victim in relation to both of claims. I will discuss the VCT’s decision in further detail later in this decision.
Relevant Legislation
The new Act came into force on 3 June 2013, when the old Act was repealed. Part 4 of the new Act established a new Victims Support Scheme, with the object of providing financial support and recognition payments to victims of ‘acts of violence’.
The definition of ‘act of violence’ in s 5 of the old Act is the same as that in s 19 of the new Act, which provides:
19 Meaning of “act of violence”
(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.
(2) 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.
(3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence.
(4) Except as provided by subsections (5) and (6), 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 the Commissioner:
(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.
(5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.
(6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.
(7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.
(8) In this Act:
sexual assault and domestic violence means …
The objects of the old Act included providing support and rehabilitation for victims of crimes of violence by ‘…a statutory compensation scheme’ (see: s 3(a) of the old Act). S 6 of the old Act provided that ‘primary victims and other specified victims’ of an ‘act of violence’ were eligible for ‘statutory compensation’ under that Act. In the current matter there is no dispute that the victim made claimed statutory compensation as a primary victim and that each claim was based upon a separate ‘act of violence’.
Part 5 of the new Act empowers the Commissioner may take recovery action against the convicted perpetrator of acts of violence with respect to which financial support and recognition payments were made to a victim under Part 4 of the new Act. That recovery action is discretionary and is activated by the Commissioner making a provisional order for restitution under s 59 of the new Act. This provides:
59 Commissioner’s discretion to make provisional order for restitution by offender
(1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make a provisional order for restitution against the person.
(2) A provisional order may not be made against a person if:
(a) 2 years or more have elapsed since:
(i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or
(ii) the date on which the person was convicted of the relevant offence,
whichever is the later, or
(b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.
The Commissioner’s discretion to make a provisional order for restitution under s 59(1) of the new Act can only be exercised where an award for financial support or a recognition payment has been made to a victim under Part 2 of the new Act and the person upon whom the order is to be made has been convicted of a ‘relevant offence.’
The term ‘relevant offence’ is defined in s 58 of the new Act as follows:
Relevant offence means the following:
(a) an offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given,
(b) any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence,
(c) an offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.
However, sch 2, cl 16 (General Savings and Transitional provisions) of the new Act apply to this matter and these empower the Commissioner to make a provisional restitution order in respect of an award of statutory compensation made to the victim under the old Act. This relevantly provides:
16 Recovery proceedings against offender for amount payable under statutory award of compensation
(1) Part 5 of this Act applies to statutory awards of compensation made under Part 2 of the repealed Act that were not the subject of a provisional order for restitution under Division 8 of Part 2 of the repealed Act before its repeal in the same way as it applies to awards under Part 5 of this Act.
(2) …
Sch 2, cl 2 of the new Act defines ‘repealed Act’ to mean the old Act and it defines ‘statutory compensation’ as meaning statutory compensation within the meaning of the old Act.
Tribunal’s decision at first instance
At para 18 of its decision, the Tribunal referred to BGF’s conviction that it determined was relevant to the Restitution Order that was the subject of the Application for Administrative Review. The Tribunal found that BGF was convicted of ‘two counts of assault occasioning actual bodily harm of his wife [the victim] at Lakemba at 12pm on 6 July 2008.’ In relation to the statutory compensation that the victim sought, and which was awarded to her, the Tribunal stated:
19 BGF's wife made two applications for statutory compensation under the old Act. The assessor who considered them described them thus:
Application 145962 relates to a series of incidents that took place between April 2004 and the 7th July 2008. All incidents relate to domestic violence perpetrated upon the applicant by the offender at premises in Lakemba. Police and court records have been obtained for the subject period. I note the offender was convicted of assault occasioning actual bodily harm. I also note apprehended violence orders made for the applicant's protection.
Application 145797 relates to an incident that took place on the 9th September 2008. The applicant was in a park in Petersham when she was set upon by two men that were associates of the offender. The applicant was assaulted and she was threatened that worse was to come if she did not drop apprehended violence proceedings against the offender. I have read the police report concerning this incident and I also note solicitor's submissions concerning breach of an apprehended violence order.
20 The compensation assessor considered that the act of violence in September 2008 was domestic violence related. He considered that it was an attempt by BGF to intimidate his ex-wife into withdrawing domestic violence proceedings against him. As a consequence, he considered all the acts of violence to be related and treated them as such under s 5 of the old Act …
21 Based on the act of violence constituted by these related offences the compensation assessor awarded BGF compensation for domestic violence on application 145962 and dismissed the related claim on application 145797.
22 The compensation assessor's determination was appealed to the Victims Compensation Tribunal. The Tribunal set aside the determination. The Tribunal found that the two counts of assault occasioning actual bodily of which BGF was convicted constituted a series of related acts which should be treated as related acts. The Tribunal considered that included in this series were a series of alleged assaults committed during the marriage.
23 With respect to the other claim no 145762 the Tribunal found:
12. In that claim the appellant relies upon an assault which occurred on 9 September 2008. At that time the perpetrator in this matter was on bail in relation to the assault on 6 July 2008 and an interim ADVO order had been made against him. On 9 September 2008 the appellant met a counsellor in Petersham Park. The counsellor left. The appellant then went to the toilet. She was then severely assaulted by two or three men who during the assault made comments such as; "Drop the AVO against your husband, you're a slut for not wearing your hijab, go back to your husband." The police were contacted and made very extensive enquiries. They made arrangements for the appellant to be moved to a new, undisclosed location. The police were satisfied that the assault was carried out at the request and direction of the perpetrator but could not charge Him because of the lack of evidence.
13. I am satisfied that, in those circumstances, the assault by the two men established a domestic violence offence against the perpetrator as, on the balance of probabilities, I am satisfied that he could be charged as an accessory before the fact in relation to the assault.
14. The Compensation Assessor found the act of violence in this matter, based largely on assaults by the perpetrator from April 2004 to 7 July 2008, to be related to the act of violence in claim no. 145962 being the assault by the two men. Whilst I agree that the two acts of violence may be found to be related pursuant to the terms of s.5 (3) of the Act, I am satisfied that this is a matter to which s.5 (3A) applies. That section provides as follows:
…
15. In my view, the use by the perpetrator of two men to seriously assault the appellant at a time when the perpetrator was subject to charges of occasioning actual bodily harm and against whom an interim apprehended domestic violence order had been made including the mandatory order that he was not to assault the appellant does establish very serious and completely different criminal behaviour by the perpetrator which, in my view, establishes "particular circumstances" in relation to that act of violence which requires that the two acts of violence "ought not to be treated as related acts" pursuant to s.5(3A) of the Act.
16. I find the two acts of violence ought not to be treated as related acts and I proceed with the determination of this claim on that basis.
24 The Tribunal went on to find that the victim had sustained a category 2 chronic psychological/psychological disorder that is severely disabling. In the course of doing so the Tribunal made the following findings, at [27]:
27. Psychologist Somerville was of the opinion that such disorders were caused as a result of the domestic violence relied upon in this matter and also the assault on 9 September 2008. I am satisfied that, clearly, the major contributing cause of the appellant's psychological disorders was the acts constituting domestic violence inflicted upon her by the perpetrator during their marriage. I am satisfied that the psychological disorders are chronic in the sense of long term.
25 The Tribunal fixed the statutory compensation payable at $40,000, from which it deducted one-quarter on account of the victims' pre-existing mental health concerns.
As to whether BGF had been convicted of a relevant offence, the Tribunal stated:
26 The compensation that the Commissioner seeks to recover from BGF relates to that paid to the victim with respect to the two separate and distinct claims for separate and distinct acts of violence within the meaning of s 5. BGF has been convicted of the act of violence which were included in one of those claims and for which he was convicted of two counts of assault occasioning actual bodily harm.
However, the Tribunal found that ‘BGF has not been charged or convicted of any offence relating to the events that occurred when the victim was assaulted by persons unknown in September 2008.’ It stated (relevantly):
28 The statutory compensation paid to BGF was not apportioned as between those two claims. The issue that then arises is whether the compensation which the Commissioner requires restitution for is with respect to a relevant offence committed by BGF, or can include acts of violence that constitute offences he has not been convicted of?
29 The Commissioner submitted that part (c) of the definition of relevant offence in s 58 is applicable. This says relevant offence means, among other things:
(c) an offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.
30 Section 19 (4) mirrors s 5(3) of the old Act and provides –
…
31 The Commissioner said that in determining whether or not a relevant offence has been committed by BGF one should:
1) Determine the nature of the act of violence upon which the giving of support was based, with reference to all of the material before the original decision-maker, and if the act of violence consisted of invariably particular reference to the date or dates of the incidents alleged in the application and evidenced by material on file will be of assistance. Other matters may relate to any ongoing relationship between the victim and offender, the nature of the offences alleged and particularly any offences which may stand out so as to warrant a finding of being exceptional or outside of the incidents comprising the remainder of the act of violence.
2) Following identification of what the act of violence, being a series of (two or more) incidents that for any reason are considered related, consisted of, it is submitted the question becomes: Is the offence for which the applicant is convicted one that falls within the subset of offences that were accepted by the decision-maker as forming the series of related acts (as found in task 1, above)?
32 Applying that to the circumstances of BGF's case the Commissioner submitted BGF had been convicted of two of a series of related acts of violence perpetrated by him against the victim from 2004 to 2008. A finding that BGF had been convicted of one or more offence "within a series of related acts (being two or more acts that have been related for any reason by the Tribunal)" was said to lead to a compelling conclusion that a relevant offence had been committed.
33 I have considerable difficulty with this proposition. The reasoning would lead to the Commissioner being authorised to recover compensation paid to a victim from persons who have not been convicted of the offence(s) that gave rise to that payment, provided the Commissioner, or the Tribunal on review, is satisfied that the person was convicted of a related offence within the meaning of s 19 (4). In my opinion this is not what s 59 (1) authorises the Commissioner to do. It is also contrary to the stated object of part 5 of the [New Act].
34. The Commissioner's discretion under s 59 (1) [of the New Act] to make a provisional order is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of related offence makes it clear, whether or not one is considering one act of violence or a series of related acts, that the conviction has to relate to the act of violence (or series of acts of violence) concerning which payment is made. It does not allow the recovery of compensation for acts of violence that the person, from whom recovery is sought, has not been convicted of.
35 With respect to related acts it is a precondition to a provisional order being made that the Commissioner is satisfied (a) that payment to the victim has been made or approved with respect to identified and related acts of violence (b) that the person from whom recovery is sought has been convicted of an offence involving one of more of those acts.
36 This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that persons from whom recovery is sought must have been convicted of the offences arising from the acts of violence for which statutory compensation (or recognition payments) have been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to each such act of violence.
The Tribunal discussed the VCT’s decision and commented:
39 The VCT was also satisfied that the assault on the victim by two strangers in September 2008 was arranged and instigated by BGF and that BGF was an accessory to that assault. However, the VCT expressly found that that act of violence was not related to the other assaults committed by BGF. Given that finding it was not open to the Commissioner when considering making a recovery order to treat the acts of violence that the VCT had expressly found not to be related, to be related for the purposes of recovery.
40. The VCT went onto award the victim compensation with respect to both claims, with no attempt to distinguish between the compensation awarded with respect to each claim. The compensation was therefore awarded, without apportionment, with respect to:
- A series of related acts of violence that occurred between 2004 and 2008 which included two assaults that BGF had been convicted of in July 2008; and
- An unrelated act of violence involving the assault that occurred in September 2008.
It was open to the VCT to assess compensation payable with respect to each of the victim's claim separately.
The Tribunal determined that the compensation that the Respondent sought to recover from BGF was not a payment made with respect to a relevant offence in relation to which he had been convicted. Rather, it related to a series of acts, only some of which were related acts, and that he had only been convicted with respect to 2 of those acts of violence. On that basis, it was not satisfied that BGF had been convicted of a relevant offence, or that restitution was sought for compensation paid to the victim with respect to a relevant offence.
Appeal
I refer to the decision in Commissioner of Victims Rights v BGF [2015] NSWCATAP 149 and note that the Commissioner appealed against the Tribunal’s decision on the grounds that it had erred in:
1. Interpreting the meaning of ‘relevant offence’ for the purpose of Part 5 of the New Act,
2. Interpreting the interaction between a ‘relevant offence’ and an ‘act of violence’ for the purposes of Part 5 of the New Act,
3. Stating the legislative basis upon which the appellant Commissioner may issue a provisional order,
4. Making findings of fact for which there is no evidence, both as to the Victims Compensation Assessor’s findings and the Court’s record of proceedings.
BGF lodged a Reply to the Notice of Appeal in which he disputed that the Tribunal had erred and he submitted that its orders should stand on the basis that he ‘…committed no offence in September 2008’ and the legislation required a conviction before liability for restitution could arise.
The Appeal was listed for hearing on 25 November 2014. There was an appearance on behalf of the Commissioner but no appearance by or on behalf of BGF. The Appeal Panel noted that BGF had sent an email to the Tribunal’s Registry that morning, in which he advised that he was ‘unwell’ but he did not request an adjournment. The Appeal Panel determined to proceed with the hearing, subject to providing BGF the opportunity to respond to any new matters that arose during the hearing. However, no new matters arose and at the conclusion of the hearing the Appeal Panel reserved its decision.
Based upon the submissions made by the Commissioner and the material lodged in relation to the Appeal, the Appeal Panel determined the view that it may not have been provided with all of the relevant documentation required to determine the appeal. As a result, the Appeal was restored to the list for a further short hearing on 1 May 2015 and the Appeal Panel also ordered the Commissioner to file and serve the following material:
(a) A copy of the provisional restitution order and subsequent amendment (if any) to that order.
(b) A copy, with relevant redactions to preserve the privacy of the victim, of the two applications for compensation made by the victim that are the subject of the decision of the Victims Compensation Tribunal, dated 20 June 2012 (i.e. Application 145962 and Application 145797).
(c) A copy of any subsequent amendments to the abovementioned Applications for compensation by the victim.
(d) A copy of any other decision of the Victims Compensation Tribunal relating to the abovementioned Application(s) for compensation made by the victim.
BGF was also ordered to respond to any further material filed and served by the Commissioner.
The Principal Registrar wrote to the parties on 20 April 2015, advising them of the Appeal Panel’s orders and the further hearing on 1 May 2015. However, on the evening of 29 April 2015, BGF sent an email to the Principal Registry in which he said that he could not attend the adjourned hearing.
The Principal Registry contacted BGF on the morning of the further hearing and advised him that he could apply to appear at the hearing by telephone and that if he wished to make such an application he should do so as soon as possible. However, BGF did not seek an adjournment or apply to appear by telephone at the hearing on 1 May 2015. The Commissioner was represented and the further hearing of the Appeal proceeded in BGF’s absence.
The Appeal Panel considered all of the material that was before it and determined to allow the Appeal, but upon grounds that differed to those articulated by the Commissioner in the Notice of Appeal. In summary, it found that the Tribunal did not err in its construction of the relevant legislation, but that it was led into error by the Commissioner regarding the basis upon which the Assessor’s decision (which was the subject of the review) was made.
In relation to this issue, I note that the Appeal Panel stated (relevantly):
52. The error, as we have discussed below, lay in the Tribunal’s assumption that the decision the Commissioner had placed before it was the Victims Compensation Tribunal’s determination of the victim’s appeal in respect of her domestic violence claim and her park assault claim (i.e. both claims that had been made by the victim). As conceded by Mr Matulewicz at the hearing on 1 May 2015, the Commissioner did not inform, or place before the Tribunal, two additional decisions made by the Victims Compensation Tribunal on the same day in regard to the victim’s appeal. In the absence of being informed of, or provided with the other two decisions, the Tribunal understandably proceeded on the basis that the decision it had before it was the determination of the victim’s appeal from the decision of the Assessor. That is, it was a decision in respect of both claims the victim had made and the compensation amount determined in that decision applied to both claims (i.e. the domestic violence claim and the park assault claim, which the Victims Compensation Tribunal found to be separate claims in respect of separate acts of violence): see [26] of the Tribunal’s reasons for decision which is set out at paragraph 42 above.
53. Accordingly, the decision of the Tribunal must be read in this context. However, as we have discussed below, the Tribunal erred in this regard as the decision of the Victims Compensation Tribunal that was before it only related to the victim’s appeal in regard to her domestic violence claim with the victim being awarded $30,000 statutory compensation in regard to that claim exclusively.
54. For completeness, however, we will briefly deal with the construction issues raised by the Commissioner.
55. It is noted the Tribunal, at [4], in its reasons for decision correctly cited the meaning of ‘relevant offence’ as it appears in section 58 of the new Act.
56. We accept the submissions of the Commissioner that the correct interpretation of ‘relevant offence’ in section 58 of the new Act is that the conviction can be as a result of acts, or a series of related acts, that form part of the ‘act of violence’ for which an award was made. The Commissioner’s submissions were put as follows at paragraph [37]:
The Act clearly allows the Commissioner the ability to seek restitution from a person who has been convicted of an offence where that offence ‘involves’ an act that has been accepted by the Commissioner as one of those forming the series of related acts ground a payment of victims support
57. The Commissioner also raised concerns about the Tribunal’s looseness of language at [41] of its decision. Of particular concern to the Commissioner is the Tribunal’s description of the Commissioner’s restitution order as relating to ‘a series of acts, some related, some not of which BGF has been convicted of two only’. This wording the Commissioner contends may be interpreted as requiring a direct relationship between the conviction and the act of violence for which compensation was awarded to the victim. In our view the Tribunal’s words at [41] do not go so far as suggested by the Commissioner and should be read in the context of the facts, as understood by the Tribunal at the time of hearing.
58. The Commissioner nevertheless urged the Appeal Panel to interpret the Commissioner’s power to issue a provisional order, under section 59 of the new Act, in circumstances where:
1. a single conviction exists; and
2. that conviction is for an offence that involves one or more acts that falls within the act of violence as accepted by the decision maker when awarding compensation under the repealed Act or the new Act.
59. In our view, the Commissioner’s construction of section 59 is correct and we do not accept the Tribunal had construed it any differently.
60. It is clear from the definition of ‘relevant offence’ in section 58 of the new Act that the conviction of the person from whom restitution can be sought under section 59 must have been a conviction for an offence that is connected, in the manner prescribed in paragraphs (a), (b) or (c) of section 58, to the ‘act of violence’ for which victims support, or statutory compensation has been given.
61. As we have noted, in this case, the victim’s award of statutory compensation was made under the repealed Act. However, nothing turns on this as the victim’s claims and the award of compensation were ultimately held, on appeal to the Victims Compensation Tribunal, to be two separate ‘acts of violence’ giving rise to a separate award of statutory compensation for each ‘act of violence.’ The words ‘act of violence’ were defined in section 5 of the repealed Act in substantially the same terms to that contained in section 19 of the new Act and there is no dispute that the Commissioner had the power to seek restitution from BGF under the new Act.
The Appeal Panel noted that there was some confusion arising from the decision of the VCT with respect to the claim numbers for each of the victim’s claims, but after considering the bundle of documents filed by the Commissioner on 28 April 2015, the Appeal Panel determined that in determining the victim’s claims, the Assessor had ‘switched the file numbers’. It also determined that on 20 June 2012, the VCT made three (3) decisions in respect of the victim’s appeal from the Assessor’s determination, and that only one of those decisions was placed before the Tribunal at first instance. It stated (relevantly):
70. One of the decisions of the Victims Compensation Tribunal not before the Tribunal was the decision relating to both claims of the victim and in which that Tribunal made the following orders in regard to the orders made by the Assessor:
1) The orders made in claim no 145962 are set aside.
2) The orders made in claim no. 145797 are set aside.
3) With the consent and approval of the applicant’s solicitor I propose to re-determine claim no 145962 and to determine the appeal in relation to claim no 145797.
71. The other decision, which contained the number 145962, is clearly a re-determination of the victim’s park assault claim and for which the Victims Compensation Tribunal made an award of $9,250.00 to the victim.
72. These decisions, together with the decision that was before the Tribunal below, make it abundantly clear that the decision in which the Victims Compensation Tribunal made its award of $30,000 compensation to the victim solely related to her domestic violence claim. An additional award of $9,250 was made to the victim in regard to her assault in the park claim, which the Victims Compensation Tribunal found to be a separate act of violence to the act of violence that was the victim’s domestic violence claim (i.e. not part of a series of related acts as found by the Assessor).
73. Had the Tribunal been provided with these decisions, we doubt it would have erred in its finding that the award of $30,000 statutory compensation to the victim related to both claims (i.e. the domestic violence claim and the park assault claim).
74. In our view, the error is not one for which there was no evidence before the Tribunal. On the contrary, it was one that was clearly open to it on the basis of the material before it.
75. However, we do find that it is an error of fact that went to the Tribunal’s review jurisdiction.
76. There is no dispute that the Tribunal had jurisdiction to review the decision of the Commissioner to make a restitution order against BGF under section 59 of the new Act: see section 30 of the Civil and Administrative Tribunal Act 2013, section 9 of the Administrative Decisions Review Act 1997 and section 66 of the New Act.
77. The powers of the Tribunal on administrative review are set out in section 63 of the Administrative Decisions Review Act, which must be read together with the specific powers set out in section 67 of the New Act:
78. Section 63 in Division 3 of Part 3 of the Administrative Decisions Review Act relevantly provides:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal
79. Section 67 of the new Act relevantly provides:
67 Powers of Civil and Administrative Tribunal on administrative review
(1) On an administrative review, the Tribunal may:
(a) confirm, vary or reverse the original decision the subject of review, and
(b) make any other orders it thinks fit.
(2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.
(3) The Tribunal may confirm a provisional order made under section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision.
80. As noted above, in reviewing the decision of the Commissioner to make a restitution order against an offender, the Tribunal considers the matter a fresh and decides what the correct and preferable decision is having regard to the factual material before it and the relevant law (see subsection 63(1) above).
81. Subsection 67(3) of the new Act provides that the Tribunal may confirm a provisional order made by the Commissioner if satisfied that the applicant has been convicted of a relevant offence and if not so satisfied, it must reverse that decision.
82. On the material before the Tribunal, it found it was not satisfied that BGF had been convicted of a relevant offence. That finding being made on the basis that the Victims Compensation Tribunal had awarded a single amount of compensation to the victim in respect of two separate acts of violence when BGF had only been convicted of offences that arose from the same facts as those constituting only one act of violence (i.e. the domestic violence claim). This, as we have pointed out was an error of fact and one that was fundament to the question as to whether the Commissioner did or did not exercise his power lawfully, under section 59 of the new Act, in making a provisional restitution order against BGF. That is, the Tribunal erred in its finding as to the claim for compensation to which the decision of the Victims Compensation Tribunal applied and hence the factual basis on which the decision the subject for review had been made.
83. While the error was not of the Tribunal’s making, in our view it remains a sufficiently fundamental error of fact giving rise to a jurisdictional error. In the event we are wrong, in our view the error is also one that if allowed would be contrary to the objects of the new Act and the repealed Act. Both Acts not only provide for victims support for acts of violence, but also provision to seek restitution from offenders convicted of offences that arise from an act of violence for which the victim has been awarded compensation.
The Appeal Panel determined that it was appropriate to remit BGF’s Application for Administrative Review to a differently constituted Tribunal for reconsideration. I have been appointed by the President of NCAT to reconsider that Application.
Further hearing
In accordance with the orders made by the Appeal Panel, I conducted a further hearing of the Application for Administrative Review on 28 August 2015. Mr Matulewicz appeared for the Commissioner but there was no appearance by or on behalf of BGF and.
I was satisfied that BGF had been properly notified of the hearing as on 23 July 2015, the Divisional Registrar wrote to him at the address indicated in the Application and advised him of the further hearing of his Application. The hearing proceeded in his absence.
Mr Matulewicz submitted that the decision of the Commissioner to issue the restitution order should be confirmed and in support of his submissions, he relied upon the s 58 documents that the Commissioner filed in relation to both Application for Administrative Review and the Appeal.
Further Determination and Orders
After considering of all of the available evidence in relation to this matter, including the s 58 documents that were lodged in support of the Appeal, I am satisfied of the following matters:
(1)BGF was convicted of a relevant offence as defined in s 58 of the new Act, as on 10 February 2009, he was convicted of two counts of assault occasioning bodily harm upon the victim, at Lakemba, at 12pm on 6 July 2008, and those convictions arose from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made.
(2)The Commissioner properly issued the provisional order for restitution to BGF pursuant to s 59 of the new Act.
(3)The Commissioner notified BGF of his decision to issue a provisional order for restitution in accordance with the requirements of s 61 of the new Act by serving a written notice upon him by post.
(4)The notice of the provisional order complied with the requirements of s 61 (2) of the new Act.
(5)BGF’s Objection was lodged within the time provided by s 62 (2) of the new Act.
(6)The Commissioner determined the Objection and decided to confirm the decision to issue the preliminary order for restitution pursuant to s 64 (1) of the new Act.
(7)The Commissioner properly notified BGF of the decision made regarding the Objection by serving a Restitution Order upon him as required by s 65 of the new Act.
(8)The notice of determination of the Objection complied with s 65 of the new Act.
For these reasons, I have decided that it is appropriate to confirm the restitution order made by the Commissioner on 28 August 2013 against BGF pursuant to s 67 (1) (a) of the new Act. I make that order.
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
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