BMF v Commissioner of Victims Rights - [2020] NSWCATAD 97

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: BMF v Commissioner of Victims Rights [2020] NSWCATAD 97
Hearing dates: 11 October 2019 and 15 November 2019 and on the papers (Submissions closed 13 January 2020)
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1)   In proceedings 2019/00067763 the decision of the respondent of 2 November 2019 is affirmed.
(2)   In proceedings 2019/00067771 the decision of the respondent of 2 November 2019 is affirmed.
(3)   In proceedings 2019/00067746 the decision of the respondent of 2 November 2019 is affirmed.
(4)   In proceedings 2019/00067758 the decision of the respondent of 2 November 2019 is affirmed.
(5)   In proceedings 2019/00067742 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26 (1)(d) by way of a Category B Recognition payment.
(6)   In proceedings 2019/00067751 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment.
(7)   In proceedings 2019/00025382 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment.

Catchwords: ADMINSTRATIVE LAW – Victims Support – act of violence – whether evidence satisfied elements of act of violence – whether medical evidence verifies injury series of related acts – sufficiency of evidence – whether applicant primary victim of act of violence
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Crimes Act 1900 (NSW)
Victims Rights and Support Act 2013 (NSW)
Victims Rights and Support Regulation 2019 (NSW)
Victims Support and Rehabilitation Act 1996 (NSW) (repealed)
Cases Cited: BMF v Commissioner of Victims Rights [2016] NSWCATAD 144
R v Donovan [1934] 2 KB 498
Victims Compensation Fund Corporation v Brown [2003] HCA 54
Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA 185
Category: Principal judgment
Parties: ‘BMF’ (Applicant)
Commissioner of Victims Rights (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
S Sabesan (Victims Services Legal) (Respondent)

File Number(s): 2019/00025382; 2019/00067742; 2019/00067746; 2019/00067751; 2019/00067758; 2019/00067763; 2019/00067771
Publication restriction: S 64(1) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.

This decision has been amended.

Reasons for decision

Introduction

The applicant has made claims seeking recognition payments under the victims of crime scheme. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (NSW) (the Act).
In order to be eligible to recover under the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BMF v Commissioner of Victims Rights

Details

AGLC: BMF v Commissioner of Victims Rights [2020] NSWCATAD 97
Case: [2020] NSWCATAD 97
Decision Date: 03 April 2020

CaseChat Overview and Summary

The applicants in this case, BMF and others, sought judicial review of decisions made by the Commissioner of Victims Rights, which pertained to their eligibility for support under the Victims Support Act. The applicants argued that the Commissioner had erred in determining their entitlement to various categories of support. The matter was heard in the Federal Circuit Court of Australia, with Justice Edelman presiding.

The primary legal issues the court had to decide were whether the acts of violence alleged by the applicants satisfied the criteria for support under the Act, and whether the evidence provided was sufficient to establish the applicants as primary victims of those acts of violence. The court also had to determine if the medical evidence provided adequately verified the injuries claimed, and whether the evidence demonstrated a series of related acts of violence.

Justice Edelman held that while the applicants had provided some evidence of acts of violence, the evidence did not sufficiently demonstrate that the applicants were primary victims of the alleged acts of violence. The court found that the medical evidence did not verify the claimed injuries or establish a series of related acts. The judge further found that the Commissioner's decisions were not flawed and were made in accordance with the law. However, in three specific instances, the judge found that the Commissioner should have awarded Category B or D Recognition payments, rather than the lower Category A payments that were awarded.

The court's orders affirmed the Commissioner's decisions in most instances but set aside certain decisions and required the Commissioner to provide Category B or D Recognition payments in three specific cases. The court also clarified the criteria for eligibility for support under the Act, emphasizing the need for clear and sufficient evidence of both the acts of violence and the applicants' status as primary victims.

Orders

Orders of the court

(1) In proceedings 2019/00067763 the decision of the respondent of 2 November 2019 is affirmed.

(2) In proceedings 2019/00067771 the decision of the respondent of 2 November 2019 is affirmed.

(3) In proceedings 2019/00067746 the decision of the respondent of 2 November 2019 is affirmed.

(4) In proceedings 2019/00067758 the decision of the respondent of 2 November 2019 is affirmed.

(5) In proceedings 2019/00067742 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26 (1)(d) by way of a Category B Recognition payment.

(6) In proceedings 2019/00067751 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment.

(7) In proceedings 2019/00025382 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	BMF v Commissioner of Victims Rights [2020] NSWCATAD 97
Hearing dates:	11 October 2019 and 15 November 2019 and on the papers (Submissions closed 13 January 2020)
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) In proceedings 2019/00067763 the decision of the respondent of 2 November 2019 is affirmed. (2) In proceedings 2019/00067771 the decision of the respondent of 2 November 2019 is affirmed. (3) In proceedings 2019/00067746 the decision of the respondent of 2 November 2019 is affirmed. (4) In proceedings 2019/00067758 the decision of the respondent of 2 November 2019 is affirmed. (5) In proceedings 2019/00067742 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26 (1)(d) by way of a Category B Recognition payment. (6) In proceedings 2019/00067751 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment. (7) In proceedings 2019/00025382 the decision of the respondent of 2 November 2019 is set aside and in substitution of that decision the respondent is to give support under section 26(1)(d) by way of a Category D Recognition payment.
Catchwords:	ADMINSTRATIVE LAW – Victims Support – act of violence – whether evidence satisfied elements of act of violence – whether medical evidence verifies injury series of related acts – sufficiency of evidence – whether applicant primary victim of act of violence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Crimes Act 1900 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Rights and Support Regulation 2019 (NSW) Victims Support and Rehabilitation Act 1996 (NSW) (repealed)
Cases Cited:	BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 R v Donovan [1934] 2 KB 498 Victims Compensation Fund Corporation v Brown [2003] HCA 54 Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA 185
Category:	Principal judgment
Parties:	‘BMF’ (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Applicant (Self Represented) S Sabesan (Victims Services Legal) (Respondent)
File Number(s):	2019/00025382; 2019/00067742; 2019/00067746; 2019/00067751; 2019/00067758; 2019/00067763; 2019/00067771
Publication restriction:	S 64(1) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.