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Act 2013 (NSW) Victims Rights and Support Regulation 2019 (NSW) Victims Support and Rehabilitation Act 1996 (NSW) (repealed)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

1. 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).

2. In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant has established for some claims that she is eligible to receive a victims recognition payment, and for other claims she has failed to establish an entitlement to a payment.

3. These proceedings concern whether the applicant in each of her claims has established that she was a victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, and is entitled to a recognition payment.

Background

4. The applicant has lodged seven applications for administrative review with the Tribunal. Each application concerns an administrative review of how the respondent has dealt with her initial applications and internal reviews for Victims Support.

5. These applications concern incidents that arise from the applicant’s employment whereby she asserts that she was the victim of crime. The applicant at the relevant times was engaged as a sex worker and the allegations in some claims concern the behaviour of colleagues, and in others the behaviour of clients. One claim concerns a third party.

Summary of the claims

6. Below is a summary of the alleged violent conduct perpetrated against the applicant following the summary provided by her in each of the seven claims.

1. 2019/00025382 (NCAT) 230800 (Victims Services)

1. At premises in Pendle Hill on 23/12/2015 the applicant was assaulted by a female who threatened to kill her and spat on her face. The perpetrator was a colleague.

2. The applicant claimed a physical and a psychological injury arising as a result of this incident.

2. 2019/00067742 (NCAT) 231045 (Victims Services)

1. From 2/11/2014 – 1/01/2015 the applicant worked at premises in Surry Hills where a male client held a knife to the applicant’s throat and forced the applicant to perform a sexual act.

2. The applicant claimed a physical and a psychological injury arising as a result of this incident.

3. 2019/00067763 (NCAT) 231047 (Victims Services)

1. From 8/7/2015 – 23/7/2015 the applicant was working at premises at Kensington. She was sent to a job at a private residence at Bondi Beach and the client rejected the applicant and refused services. When she returned to her employer’s premises the owner was not happy that the client had not paid the cancellation fee and would arrange for security to ‘bash the client’.

2. The applicant claimed a physical and a psychological injury arising as a result of this incident.

4. 2019/00067771 (NCAT) 235865 (Victims Services)

1. From 1/4/2014- 7/9/2015 the applicant was working at premises at Granville where she was bullied and harassed by the owner and the receptionist, the applicant claims that there was ‘a great deal of violence’ towards the applicant.

2. The applicant claimed a psychological injury arising as a result of this incident.

5. 2019/00067751 (NCAT) 245867 (Victims Services)

1. From 5/5/2015- 4/6/2015 the applicant was working at licensed premises at Rockdale where she was abused harassed bullied and hit by a colleague.

2. The applicant claimed a psychological injury arising as a result of this incident.

6. 2019/00067746 (NCAT) 245872 (Victims Services)

1. On 30/11/2016 at Rockdale the applicant was assaulted by a woman on a train whilst the applicant was carrying her infant in a carrier. The assailant pulled the applicant’s hair and touched her.

2. The applicant claimed a physical and a psychological injury arising as a result of this incident.

7. 2019/00067758 (NCAT) 277396 (Victims Services)

1. From 20/11/2015 to 29/3/2016 the applicant was subjected to domestic and family violence at Gerringong by her ex-partner, his father and a friend ‘S’ (a male).

2. The applicant claimed a physical and a psychological injury arising as a result of this incident.

7. Because of the number of claims, I believe that it is appropriate to set out briefly the key elements of the scheme and how the matters have been decided prior to the applications for administrative review.

Legislation

8. The Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an ‘act of violence’. The relevant current provisions are set out in the following sections of the Act:

5 Meaning of “victim of crime”

(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.

(2) A person suffers harm if, as a result of such an act:

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person’s property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person’s immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person’s immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

….

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.

20 Meaning of “primary victim”

(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.

(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:

(a) trying to prevent another person from committing that act, or

(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or

(c) trying to arrest another person who is committing, or who has just committed, that act.

….

9. The Act provides for a number of areas of support for victims of violent crime. These seven reviews concern an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.

10. Prior to accessing a recognition payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an ‘act of violence’. The section has been amended since the applications were lodged but on administrative review the Tribunal is able to apply the current legislative provisions to the claim. The section currently provides:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is:

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

(Emphasis added)

11. The other relevant legislative provision concerns a consideration as to whether an applicant is disentitled to receive support due to engaging in criminal behaviour at the time of the incident, whether the behaviour of an applicant contributed to the incident, and other matters such as entitlement to claim under alternate schemes such as workers compensation. Section 44 provides:

44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following:

(a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,

(b), (c) (Repealed)

(d) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed,

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,

(f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed,

(g) such other matters as the Commissioner considers relevant.

(2) (Repealed)

(3) In determining the matter referred to in subsection (1) (f) in the case of an act of violence involving sexual assault or domestic violence, the Commissioner must have regard to the nature of the relationship between the victim and the person or persons by whom the act of violence is alleged to have been committed.

(4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to:

(a) any amount that has been paid to the person or that the person is entitled to be paid:

(i) by way of damages awarded in civil proceedings, or

(ii) under any other Act or law (including workers compensation), or

(iii) under any insurance or other agreement or arrangement, and

(b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person,

in respect of the act of violence to which the application for financial support or a recognition payment relates.

(5) If the Commissioner is satisfied that the applicant may be entitled to workers compensation (or payment in the nature of workers compensation) in respect of the act of violence to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to workers compensation have been determined.

(6) If the Commissioner is satisfied that the applicant may be entitled to death and disability payments under Part 9B of the Police Act 1990 in respect of the act of violence to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to those payments have been determined.

(6A) If the Commissioner is satisfied that an applicant for victims support, who is a family victim referred to in section 25 (2A), may be entitled to any damages under the Compensation to Relatives Act 1897, or any payment under the Motor Accident Injuries Act 2017, in respect of the act of violence to which the application relates, the Commissioner is to postpone the determination of the application until any entitlement to those damages or to that payment (as the case may be) has been determined.

(7) The Commissioner may postpone the determination of a person’s application pending the determination of another application for financial support or a recognition payment if the person has been convicted of an offence that is a relevant offence under section 58 in relation to that other application.

12. The pathways under the Act which lead to a recognition payment are a necessary threshold precondition to access benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.

13. In six of the seven applications the initial decision maker dismissed the claim as they were not satisfied that the applicant was the victim of an act of violence. In the remaining claim (VS Ref: 277396) the decision maker found that it was a duplicate claim of a matter previously lodged and determined under the Act (VS ref: 227921) and also dealt with by the Tribunal on administrative review and finalised in 2016 (see: BMF v Commissioner of Victims Rights [2016] NSWCATAD 144).

14. In addition in all seven claims the applicant sought an internal review of the decision made by the initial decision maker (the assessor). All seven matters were decided by the same assessor and it appears that they were all determined or finalised on the one day (2 November 2018). The applicant then made a request for an Internal Review under s 49 of the Act. At the relevant time the Act provided for an Internal Review request to be received with 28 days from the date on which the decision is sent. The Act has since been amended to allow for receipt within 90 days of being given notice (s 49 (2)).

15. However as the seven applications for Internal Review were all received by the Commissioner on or after 9 January 2019 they were all outside of the 28 day period in force at that time. As a result, as the Internal Review request was received out of time, and the legislation does not provide for any provision for the Commissioner to extend the time to receive an Internal Review, the request was declined.

16. On 24 January 2019 the applicant filed an administrative review application with the Tribunal for VS Claim: 23800. On 28 February 2019 applications were received in the other six matters as listed at [6] above as matters (2) – (7) inlcusive.

Jurisdiction

17. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal.

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

18. At the first directions listing the Tribunal noted that all seven applications for administrative review had been lodged outside of the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997 (NSW), (the ADR Act) and cl 23 and 24 of the Civil andAdministrative Tribunal Rules 2014 (NSW).

19. Six of the applications were filed on 28 February 2019 with one application (2019/00025382 – VS Ref: 230800) filed four and a half weeks earlier on 24 January 2019.

20. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides for the Tribunal to extend the time for an applicant to make an application to the Tribunal. It provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

21. As s 57 of the ADR Act has been repealed the Tribunal is not required to determine whether an out of time application has been supported by a reasonable explanation for the delay in making the application. Section 41 of the NCAT Act does not import the same language as the former s 57. However the authorities indicate that there must be some explanation for the delay when the Tribunal is called upon to exercise its discretion.

22. Noting that the delay was not pressed, that there was no prejudice attaching to the respondent and that by completing the first application on 24 January 2019, the applicant intended to lodge it reasonably promptly after receiving the Commissioner’s advice in mid January 2019 concerning the Internal Review, I made the following order during the preliminary hearing. I extending time to lodge the review (to the extent necessary) to 5:00pm 24 January 2019 for claim 2019/00025382 and to 28 February 2019 for the other six claims, pursuant to s 41 of the NCAT Act.

23. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(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.

The Hearing

24. The matters were heard over two sittings of the Tribunal. There had been a number of delays in preparing the matters for hearing with some of these arising due to the applicant’s lack of availability at the nominated time. The Tribunal at one stage struck out all the applications because the applicant failed to appear at the initial hearing date in May 2019 (s 55(1)(c) of the NCAT Act). However the applications were reinstated as the applicant provided a reasonable explanation for the absence / delay s 55 (2) of the NCAT Act.

25. The matters were eventually listed for hearing on 11 October 2019 where the applicant requested (and was given) leave to appear by telephone.

26. The hearing of the claims proceeded with the applicant clarifying her claims and then beginning to give evidence over the telephone. However, it soon became apparent that it was not in the interests of justice to continue the hearing in this manner. The applicant has a number of claims where she filed joint or combined evidence and submissions. It was not possible to accurately identify aspects of her intended evidence or clarify with her sufficiently what evidence she relied upon in the hearing. The situation became unworkable as the Tribunal was not able to clarify what written material the applicant had before her, and could not effectively take the applicant to material that she had submitted with any clarity. This was particularly so because of the situation where many of the claims relied on joint or similar evidence concerning the act of violence and injury components.

27. The proceedings were adjourned part heard to 15 November 2019 with a direction that the applicant attend the hearing of her claims in person. As the applicant was Sydney based and had made no claim that attending the hearing would put her at any disadvantage, there was no discernible prejudice arising from the requirement to attend. As noted above the Tribunal believed that such usual arrangements would assist her case and facilitate the just and efficient disposition of the issues between the parties.

28. At the second tranche of hearing the applicant appeared in person and the respondent was represented by an employee Solicitor. The procedure of the Tribunal was explained to the applicant and at the conclusion of the hearing directions were made for the filing and serving of written submissions. I am satisfied that the provisions of s 38 (5) of the NCAT Act have been satisfactorily discharged especially in respect of the applicant’s need to provide evidence and submissions to support her case. Only the applicant’s evidence was adduced in the hearing. However evidence in written form from both parties was received and considered by the Tribunal when determining the matter. I will refer to the applicant’s evidence where relevant where I address and determine each individual claim below.

29. The applicant filed written material in support of her application in the nature of evidence and submissions. The applicant’s material consisted of one bundle filed 17 May 2019, and a further bundle of written material filed 18 October 2019. The material addresses many claims in detail and to some extent addresses all of the claims before the Tribunal. The material includes copies of typed and handwritten correspondence where the applicant gives some observations on matters and her account of certain incidents. There are also emails covering issues of trying to report matters to Police, making contact with Police officers and reports to support workers and health workers. In addition the material includes correspondence to Victims Services by the applicant’s case worker in a welfare support agency, medical certificates and payslips.

30. The respondent also filed and served s 58 (ADR Act) documents and written submissions filed March and May 2019. Further submissions dated 8 January 2020 were filed following the hearing.

The administrator’s decisions

31. These are summarised very briefly at paragraph [13] above. Before setting out the six claims where the assessor made a finding that the applicant was not a victim of an act of violence, I will deal with the single claim where the assessor found it was a duplicate application.

Claim 2019/00067758

32. 2019/00067758 (NCAT) 277396 (Victims Services reference). The claim is summarised as follows:

From 20/11/2015 to 29/3/2016 the applicant was subjected to domestic and family violence at Gerringong by her ex-partner, his father and a friend 'S' (a male).

33. In respect of injury arising from this incident the applicant claimed a physical and a psychological injury arising as a result of this incident.

34. The respondent submits that this application is a duplicate of the claim determined and finalised by the Tribunal in 2016. That matter was finalised by a published decision of BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 (‘BMF’). However in the current matter the applicant claims that the incident giving rise to the claim occurs at Gerringong, which is on the South Coast of NSW. In the case of BMF heard by the Tribunal on 26 May 2016 the incident occurred at Oyster Bay which is a southern suburb of Sydney. The current claim states that the incident occurred from 20 November 2015 and continuing until 29 March 2016, whereas BMF relates to an incident occurring only on 29 March 2015.

35. I note that the matters are described in BMF at paragraphs [4] and [5] as follows:

4. On 7 December 2015, BMF lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”). She alleged that she was the primary victim of an act of domestic/family violence that occurred on 29 November 2015, which occurred in Oyster Bay, NSW. In particular, she alleged:

I never had permanent accommodation and my partner would take me to the hotels and bring pocket knifes (sic), he would also be very aggressive and drive fast in his vehicle, I have all hospital records I am recently found pregnant to my partner, violent toward (sic).

5. BMF alleged that she suffered a psychological injury as a result of the act of violence and she claimed financial assistance for immediate needs (being unspecified costs for transportation by Ambulance to Royal North Shore Hospital on 30 November 2015) and a recognition payment. However, she did not claim financial assistance for economic loss and she did not attach any accounts/receipts for the claimed expense to the Application.

36. It is clear that the earlier application of BMF goes beyond an incident at Oyster Bay on 29 November 2015. The claim appears to be based on all of the violence and subsequent impacts of the perpetrator’s behaviour on the applicant over the entire period of their relationship. The timing of the claimed incidents and the applicant’s concerns appear to relate to issues in their relationship and the subsequent pregnancy of the applicant to the perpetrator and his alleged reaction to these matters.

37. I have based these views on an examination of the entire reasons for decision in BMF. At [54] of BMF the Tribunal observed the following matters:

Determination regarding recognition payment

54. In support of the recognition payment, BMF’s solicitors submitted:

...7. The Applicant also confirms her reliance on injury, as established by previous Victims Support claims before NCAT, and detailed in submissions on her behalf at the hearing of 27 May 2016, to establish her pre-existing level of psychological injury and the ‘eggshell psyche’ as applied in a finding of grievous bodily harm pursuant to the Act in the matter of BWL v Commissioner of Victims Rights [2015] NSWCATAD 235.

8. While it is not advanced that (BMF’s) pregnancy to the perpetrator is (?) to the act of violence – it is a compounding circumstance arising out of their intimate relationship and domestic violence and separation that has further aggravated her existing distress at the abuse and that has had an impact on matters including her homelessness following the end of the relationship and of the perpetrators...

9. The Applicant submits that there is sufficient evidence on which the Tribunal can be satisfied to the requisite standard of proof in such administrative decisions that she can establish the ‘really serious’ level of injury required to establish that she is a victim of an act of violence and eligible for a Category C payment of $5000.

38. In addition I observe the following from BMF concerning the nature of the events upon which the claim is based:

6. BMF stated that she reported the act of violence to NSW Police on 4 December 2015. However, it appears that she did not provide a Statement to Police until 19 January 2016 and that the COPS Event Report was created on that date. She stated that when she began seeing the offender, away from her usual place of employment, they would meet at various hotels in and around Sydney, where she would provide him with certain services for money. Her would bring a bag with him, which contained alcohol and “metal knifes” (sic). On a night in November 2015, she went for a drive with the offender in his car and during the drive he punched her in the left shoulder. She stated that this also occurred on a number of other occasions while they were “driving”, but she could not recall the dates and she could not recall whether or not she suffered bruising as a result of these “punches”. The offender also drove very fast and this frightened her. On another occasion in November 2015, the offender locked her in his car and closed the garage door so that she could not get out because ‘he did not want her to meet his parents’. In November 2015, she found out that she was pregnant with the offender’s child and since then they argued about a lot of different things. She continued to see the offender until 5 December 2015, but had not seen him since that date “...as he left me in a bad place”. The Police report indicates, relevantly:

...Police enquired as to the reason the victim was reporting the matter to police and if she wished any action to be taken. The victim continually stated she was ‘threatened’ and ‘verbally abused’ by the POI, but when asked what these threats were, stated that the POI had called her a ‘prostitute’, something she was greatly offended by.

The victim continually stated that she wanted to ‘clear her name’ and set the record straight. She stated the POI was spreading rumours about her and was damaging her reputation; she made no reference to any direct threats on her life or to her safety from the POI. The victim stated the POI’s parents were also abusive towards her. The victim described this abuse as non-acceptance of her employment by the parents and as such, them not wanting her to be with their son...

39. In my view the earlier claim of BMF clearly relates to more than matters occurring over the course of one day. The matters would appear (on the above descriptions as reproduced in BMF) to concern the applicant’s dealings with the offender over the course of their relationship over either weeks or possibly months. In any event, the starting period for the claimed act of violence in BMF is the same as that in this matter.

40. The respondent submitted that in both claims the applicant relied on the same Police evidence being Police Reports E59857544 and E60010531. I note that in support of this review the applicant has filed all of the material prepared by her and on prepared on her behalf in the earlier claim of BMF. In the large bundle of material filed 18 October 2019 referred to at [29] above, the applicant has included written submissions of 18 March 2016 which were prepared and submitted in VS ref: 227921 by Women’s Legal Services NSW for the Internal Review in that matter.

41. Those submissions highlight the following elements of the claim, which was ultimately determined by the Tribunal in BMF. The allegations solely concern the perpetrator ‘M.H.’, A reference is made to a lease with ‘M.H.’ in Gerringong. References are made to ‘M.H.’ hitting the applicant whilst driving, verbal abuse when sexual services were refused by the applicant, and other matters relating to their relationship. Whilst the submissions appear under the applicant’s hand they predominantly contained detailed legal submissions going to findings of superior Courts and legal principles. Their content and the letterhead on page one (being Women’s Legal Services NSW) distinguishes them as matters prepared on behalf of the applicant for her own submission in 227921 (BMF).

42. At hearing the applicant submitted no further evidence on the matter. The assessor made the following observations and findings on the matter when considering whether this claim (277396) was a duplicate of 227921. The assessor states:

Why this is a duplicate claim?

13. I have carefully considered the police reports on file COPS report E60010531, which has already been considered and analysed by Senior Assessor Lac in her previous decision, involved a claim that the alleged offender ‘M.H.’ owed her money for sexual services.

…

15. After carefully considering the contents of the current claim 277396, it is my opinion that the claim can be considered a duplicate since it relates to the same act of violence.

16. I have based my decision on the following factors:

•   The acts were committed by the same alleged offender: ‘M.H.’;

•   The dates and nature of the incidents are the same;

•   There is no evidence of violence committed by ‘I.H’ or ‘S’;

•   There is no evidence of violence being committed at Gerringong.

…

43. ‘I.H’ and ‘S’ were co-offenders in other claims. The assessor went on to find that the applicant’s claim was a duplicate claim and dismissed the matter. As there was no internal review this becomes the decision under review.

44. In my view, based on the evidence and material outlined above the claim is a duplicate claim, and I so find. The applicant has filed and relies on the same evidence from 277396 which was reviewed by the Tribunal as BMF to support this current claim. Even if I did not find that it was a duplicate claim I note the finding of the assessor that there was no evidence of violence being committed at Gerringong. The situation in respect of evidence arising from an act of violence committed at Gerringong on the South Coast of NSW remains. The absence of evidence to support the necessary precondition that the applicant is a victim of an act of violence means that the claim must fail.

45. In respect of these proceedings: 2019/00067758 the correct and preferable decision is that the decision of the respondent will be affirmed. The orders will be set out for all seven claims at the conclusion of these reasons.

Claim 2019/00025382 (NCAT) 230800 (Victims Services)

46. This claim is based on an allegation that the applicant was assaulted at her work premises in Pendle Hill on 23 December 2015. The alleged assailant was a female colleague who threatened to kill the applicant and spat on her face. The applicant claimed a physical and a psychological injury arising as a result of this incident.

Applicant’s arguments / evidence

47. At hearing the applicant gave evidence that she had been working at Pendle Hill when a colleague had an altercation with her. The applicant referred the Tribunal to the counselling report dated 13 October 2017 as evidence of this matter. The applicant said that the assailant was of Lebanese background and she told Police that all of the evidence was captured on the CCTV inside the premises. She said that as the premises were a brothel that was why there was CCTV installed.

48. The applicant submitted that she made a report to Police (E 61754482), which provides the following details:

INFT HAS BEEN SPAT ON, HARRASSED AND THREATENED TO BE KILLED BY POI. POI ‘MICHELLE’ OF MID EASTERN APP, BOTH ARE WORKERS AA. INFT DOES NOT WANT POL TO DIVULGE HER NAME TO POI. INFT GOES BY NAME OF ‘B---‘ . INFT IS SCARED AND WORRIED POI WILL FOLLOW THROUGH ON THREATS.

49. The narrative of the COPS Event sets out the circumstances of the allegations. The alleged assailant had been asked by a third party why her eyes were so red (bloodshot) and the applicant had answered that was because the alleged assailant ‘takes drugs’. This response apparently provoked the alleged assailant into a verbal altercation which escalated to spitting on the applicant’s face and the parties needed to be ‘broken apart’ or separated by a third party. At this time the threat on the applicant’s life was made, and that if the applicant came back to the brothel that night then she would take the threat further.

49. The report conveys that the applicant has grabbed her things and left and the alleged assailant has followed her out onto the road and repeated the threat. The applicant then said she would call the Police and proceeded to call Police.

50. Police attended and obtained a notebook statement from the applicant. Police inquiries did not identify any witnesses to the spitting and Police apparently observed no injuries, however they recorded the applicant being frightened by the experience. Police sought CCTV footage and the alleged assailant’s details. It is clear from the details recorded by Police in the COPS Event that the investigation of the matter was stymied by third parties, being the other employees of the premises who claimed not to be able to access / operate the CCTV system or know the name or details of the employee accused of assaulting the applicant.

51. The counselling records indicate a number of stressors arising from different incidents, many of which are in the applications under review. In respect of this specific claim the only real independent evidence of injury arises in the context of the counsellor overviewing all of the applicant’s sex industry based incidents and the cumulative effect that those incidents have had on the applicant’s well-being. There is reference to and evidence of: ‘a long and complex history of verbal abuse and assaults that she had experienced over a four year period whilst working as a sex worker’.

52. Section 39 (2) (b) (i) criteria have been met. (Police report). However there is also a requirement under s 39 ss (2) (b) (ii) that there be a medical or dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. Those words arise direct for the Statute and the operation of 39 (2) (b) (i) and (ii) is conjunctive.

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

(Emphasis added)

54. In the current claim I take the meaning of the words at the end of s 39 (2) (b) (ii) ‘as a result of an act of violence’ to mean: as a result of the act of violence upon which the relevant claim being assessed is based.

55. Whilst I might find that on the available evidence s 19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s 18:

injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.

56. Reading s 39 (2) (b) (ii) and 19 (1) (c ) together, it is clear that the legislature requires a recognition payment to be only made when there is independent professional evidence indicating that injury has arisen as a direct result of the violence.

57. Whilst the applicant has provided numerous items of information as set out at [29] above, the only real reference to this matter from a report as described in s 39 (2) (b) (ii) arises in the counselling report prepared by specialist counsellor and Psychologist ‘J.S.’ following a single session on 28 September 2017.

58. The report provides the following observations on the applicant’s counselling needs.

Ms (BMF)’s primary purpose for attending the counselling appointment appears to have been to obtain a ‘report’. She asked about details of this prior to coming for her first appointment and also when seen. She wanted to know when this report would be completed etc. She was also concerned about the details that would be written in the report. I explained that since the information I was obtaining from her was to assist in writing this summary report then our conversation was not confidential.

Ms (BMF) failed to attend the next scheduled appointment, despite texting to ask when it was and being provided with this information on the day of her appointment. No further messages were received from her at the time of writing this summary report. She did not reply to a text sent asking her if she was going to attend her second appointment when she had not arrived at the time expected.

59. In respect of the content of the report which might satisfy the requirements of s 39 (2) (b) (ii) I note the following:

Ms (BMF) reported that all the experiences she had in the brothels in which she had worked had ‘affected my general wellbeing’. She said ‘I’m not going to let the people who were abusive or assaulted me get to me as it’s affected me as a person. …

She said that she was ‘entitled’ to work in the sex industry if she wanted to and she should not be prevented from doing so by other people. She said that the events that had occurred prevented her working.

She spoke about being fearful as a result of the events and also talked about the bikie and criminal connections in many of the brothels in which she had worked. (BMF) said that she felt that she needed medication.

60. References were made in the report to other claims before the Tribunal including the remaining five claims and earlier claims determined by the Tribunal on review. Under the heading ‘prognosis’ the following is reported:

Ms (BMF) appears somewhat preoccupied by the events she reports experiencing whilst working in the sex industry. Her accounts indicate repeated patterns of very similar conflict with others in a significant number of different establishments. Her interactions with office staff over the telephone prior to her attendance and her presentation at interview were a little unusual. This is suggestive of possible underlying mental health problems and / or a personality disorder. She provided no information about any history of mental health difficulties at the interview and appeared reluctant to disclose much information about herself outside talking about the incidents to which her claims relate. She is someone who appears to have experienced a number of significantly traumatic events in her life. However, her presentation did not appear to be explained simply through a complex trauma formulation. Her presentation suggests a degree of rigidity in her belief systems, which is likely to be very hard to shift. Her presentation would suggest that some of these difficulties may predate the events to which her current claims relate and there is a chance that she still may not feel that the issues have been resolve [sic] after her claim is settled.

Respondent’s submissions

61. In written submissions the respondent referred to the lack of medical evidence, and broke down the matters outlined in the extracts from the report as set out above [58]-[60].

62. The responded submitted that:

..if the Tribunal were to be minded to award the applicant Category D recognition payment, the applicant must provide sufficient medical evidence to establish she suffered injury as a result of the act of violence.

63. The respondent concluded that the evidence did not meet the requirements of s 39 and failed to verify that the applicant suffered injury as a result of the act of violence as per s 19 of the Act.

Consideration

64. I have carefully examined all of the two bundles of material provided by the applicant to the Tribunal as a ‘global’ response to her seven applications for administrative review.

65. The difficulty with this claim is that there is no specific reference to the matters that occurred and were recorded in her application and reported and recorded in COPS Event E 61754482 other than the following summary from the counselling report:

‘Claim 230800 at Nivarna – spat at and pushed by other staff member’

66. The medical evidence does not in any great way particularise matters to the extent to satisfy s 39 (2) (b) (ii) criteria according to the respondent. The section requires the act of violence to be linked to injury arising as a direct result. Without a sufficient particularisation of the incident it is arguable that it is not possible to link the incident to any impact.

67. Whilst the report (along with other evidence) might assist that applicant with other claims (from the seven before me), much of the submitted material goes to the earlier and separate case of BMF and other claims by the applicant relating to other traumas not before me. There is also material which appears to relate to other stressors in the applicant’s life of which I have no direct knowledge of victims support action.

68. The conjunctive requirement linking s 39 (2) (b) (i) and (ii) is a potential barrier to the claim succeeding on the available evidence. Whilst the applicant might believe that she has obtained the necessary evidence and all matters might well have been reported, the material provided is not of any great assistance in the applicant in overcoming the requirement of s 39.

69. However, I note that the application contains an allegation of an assault by spitting on the applicant and this is referred to in the counselling report. I also note that the respondent agrees that the counselling report provides information on how the incident affected the applicant generally.

70. Having accepted that the report provides information as to how the incident affects the applicant in a general sense, the respondent then submits that such an acceptance does not provide evidence of injury. Psychological harm is of a low threshold and the guidance on the term ‘harm’ (under the former Act) comes from a guideline under s-65 of that Act. The reference is that the injury (to constitute harm) must be something more than transient or trifling.

71. The case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means “any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.

72. On my assessment of the brief observations of the counsellor, coupled with the verification by the observations of the applicant’s contemporaneous distress as observed by the Police, the applicant has suffered psychological harm.

73. There is nothing in the definition at s 18 of the Act that requires the harm to be such that it impacts on the person’s day to day functioning as stated by the assessor and the respondent. Those comments appear to be bound up in the consideration of a person claiming to have sustained grievous bodily harm.

74. I therefore make a finding that the applicant is the victim of an act of violence (being the spitting at her face by the perpetrator) by way of an assault.

75. In my view there is sufficient evidence in the counselling report to identify this discrete matter where a colleague spat at her and made a threat on her life. Whilst there is a reference to being spat at, (see [65] above), which I have found would constitute an assault, there is no reference to any threats on her life being made in connection with a claim based on incidents at these premises in Pendle Hill. The counselling report does contain evidence of threats to the applicant but those threats arise in the context of different premises in different locations around Sydney.

76. Further, the counselling report and the Police report would just get the applicant over the line, in respect of the elements of s 19 (1) (act of violence), having regard to the conjunctive requirements of s 39.

77. The applicant would be eligible for a Category D recognition payment, however the lack of similar evidence linking the matter to the alleged threats and lack of any reference in the medical material to the main violence (the threats) and as a result their impact, create a difficulty for the applicant.

78. I accept the circumstances of the events and the record that the victim was ‘frightened’ (understandably) as a result, as meeting the requirements of s 19. However this assessment relates to both the spitting and the serious and substantial threats and the perpetrator following the applicant outside and making further threats. Applying the legislation beneficially as per the cases outlined later in these reasons, I find that the elements of s 39 (2) (b) (i) and (ii) and as a result s 19 have been met and the applicant is entitled to a Category D recognition payment.

79. The applicant was given significant concessions and time to prepare her case, the benefit of adjournments, and was reminded on many occasions that the matter would be determined when she was prepared for a decision to be made. Through this (and the related claims) the applicant was adamant that all the evidence was before the Tribunal and that there was nothing else required. However due to the minimal and somewhat global evidence (a sole report) concerning verification of injury, there is little evidence to assess the level of injury sustained. I note that the applicant pressed for a determination as soon as possible after the reserved date by communication with the Registry.

80. I believe that with all of these claims and the detailed orders and provision of time to the applicant, there is no lack of fairness in the conduct of these reviews.

81. I also find that there is no basis to disentitle the applicant to any payment or reduce any amount payable under s 44 of the Act.

82. On the basis of the above finding at [78] the correct and preferable decision is to set aside the decision of the respondent. The applicant will be entitled to a Category D recognition payment.

Claim 2019/00067742 (NCAT) 231045 (Victims Services)

83. This claim is summarised as follows:

From 2/11/2014 – 1/01/2015 the applicant worked at premises in Surry Hills where a male client held a knife to the applicant’s throat.

The applicant claimed a physical and a psychological injury arising as a result of this incident.

84. The claim is based on an incident at a brothel where the applicant worked. The alleged perpetrator was a client who the proprietor allegedly coerced the applicant into seeing before the end of her shift.

85. The respondent relied on the provisions of s 39 in dismissing the application because there was no Police report or report of a Government agency that independently verified that an act of violence occurred.

Applicant’s evidence

86. The applicant provided a written statement in this matter. In her statement the applicant sets out that she had been having difficulties extricating herself from that employment (at the premises) and had called Police in this regard (concerning unpaid wages) the day prior to the incident. In her statement the applicant says that on her last day she was unwell and on antibiotics and on a 7:00pm – 11:00am shift. She states that she had to wait until closing time 11:00am to receive her pay.

87. The applicant states:

‘(the proprietor) pushed me to see a last client who she said was her friend. I remember he was Lebanese. He switched off the lights and shut the door. I insisted on the lights being on but the client refused and held his pocket knife against my throat, holding me down on the bed. He grabbed my head and told him me to suck his dick. I did what he said because I felt entrapped and scared that he would hurt me. I feel that (the proprietor) set me up with him to scare me. (She) had a lot of “friends” attending the brothel who she gave ‘favours’ to.

88. The statement goes on to detail poor relations between the applicant and her employer and issues relating to working conditions, intimidation, unpaid wages, witnessing drug related crime. The applicant says that these matters were only reported to Police as intelligence, in that they were recorded on the system as an Intelligence Report without the applicant’s name as she claimed to be in extreme danger in regards to the owner of the business.

89. At hearing the applicant adopted this statement. The applicant explained that two of her claims were related (this matter being related to 2019/00067763 NCAT and 231047 - Victims Services references, concerning an incident following a call-out job – as summarised at [6] above).

90. There was apparently some connection between these claims and the running of the business and manner in which staff were directed which encapsulates elements of the current Surry Hills claim.

91. The Tribunal notes that at page 15 of the s 58 documents tendered by the respondent that a Police report refers to this incident. The report refers to an interview between the applicant and a Police Constable whereby she conveys information about being sexually assaulted by a make client at the brothel in Surry Hills. The report notes that this information was conveyed separately to the officer, the applicant attending to report an unrelated matter to another officer.

92. The counselling report (contained at pages 22 - 25 of the s 58 documents) details a range of traumas and incidents subject to Victims Services claims. Unlike claim 2019/00025382 – where the counselling report makes no reference to those events, the report makes reference to the incident before me.

93. The report states:

Claim 231045 at (Surry Hills Brothel) – verbal abuse by ‘S’ who ran this brothel – according to (BMF’s) account ‘S’ then made (BMF) go with a client whilst she was employed at the brothel. (BMF) said that ‘S’ know the client who had some criminal / bikie associations and whilst having paid sex with her the client threatened (BMF) with a flick knife, which he held against her throat. ‘S’ held BMF against her will in one of the rooms in the brothel. She said that ‘S’ did not pay money she was owed for her work at the brothel and when she complained about this ‘S’ made threats that bikie gang members who she knew would harm her (BMF). (BMF) said that these people also later harassed her and watched her.

Respondent’s evidence and submission

94. The s 58 documents contain a lot of material that appears unrelated to this claim. There are significant files notes, case records concerning housing issues and problems with neighbours. At its highest some of this appears to relate to the allegations concerning persons stalking, and harassing the applicant at other locations arising from workplace incidents / instances at Surry Hills.

95. The respondent in written submissions argued that the incident was not reported to Police (being the sexual assault by the client with a knife). In respect of injury the respondent made the following submission:

11. Furthermore, the medical evidence, the counselling report does not establish any injury. The report makes reference to the various acts of violence throughout the applicant’s multiple applications, but does not specify any injury suffered.

96. However, the claim is clearly referred to in the counselling report. The circumstances are set out. The counsellor then observes that:

(BMF) reported that all the experiences she had in the brothels in which she had worked had affected her general well-being.

Consideration

97. I note that the assessor concludes that this incident was not reported to Police. The assessor’s decision is dated 2 November 2018. The following is observed on this point:

11. I note that this incident was not reported to police and so there is no report on file. In the absence of an official police report I have relied on the short report outlined the status of the investigation from Surry Hills Local Area Command.

12. On 1 March 2016 the applicant attended Surry Hills police station to report an incident which was unrelated to the sexual assault. During the interview the applicant disclosed that while she was working at (Surry Hills brothel) she was sexually assaulted by a client. The applicant informed police that she did not wish to report the incident. As such there is no particularisation of the incident and the police were unable to conduct an investigation of the incident.

…

17. in the absence of any police reporting it appears that an untested statement by the applicant and her support worker is all the evidence that is being relied upon in relation to this matter. Unfortunately the form of evidence is not decisive nor does it carry sufficient weight.

98. Section 39 of the Act states the following in respect of Police reports:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is:

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence,

(Emphasis added)

99. Having examined the Application Form provided at pages 1 - 4 of the s 58 documents, I note at Part 3 that the Application Form asks whether the matter was reported to Police. In the absence of any other evidence or submission, including a ‘tear off’ part of the Application Form which sets out standards or requirements as to evidence, I observe that there are no other criteria required under s 39 (1) concerning the standard of evidence:

as may be required by the approved form.

100. In addition I note that any requirement that there be a Police report only arises in the (now) discretionary terms of s 39 (2) (b) (i). In that regard an applicant may provide (in addition to what is required by the application form, a Police report, or a report of a government agency or any other agency that provides support services to victims of crime. The discretion being that the scheme now provides options to reporting to Police.

101. Whilst there is an implied reference to Police reporting in s 44 (1) (e) of the Act, the reference concerns whether an applicant has failed (on assessment) to provide reasonable assistance. The section does not refer to a mandated reporting to Police as a precondition to a recognition payment. In addition s 44 (1) only requires the decision maker to ‘have regard’ to the matters set out in the section. On this basis the manner in which the provision is considered is clearly discretionary.

44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following:

(a)…

(b)…

(c) (Repealed)

(d)…

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,

102. The above provisions were in force at the time that the matter was considered by the assessor. Notwithstanding the observations about the standard and level of evidentiary requirements, in my view the matter was clearly reported to Police. Police provided Victims Services with a detailed report dated 3 June 2016. The discussion or concern that the report is somehow deficient (in that it is not an ‘official report’ as referred to by both Police and the assessor) appears to arise in the context that the applicant did not wish to place her name on record about the matter. However because Police knew who the applicant was, and she was attending the Police Station on 1 March 2016 on numerous items of business, some being to make official reports, Police have recorded her details. The report of 3 June 2016 as to what was discussed and clearly recorded on 1 March 2016 is comprehensive.

103. Why Police might require an allegation to meet certain official administrative criteria is an internal Police matter. Presumably any rules, guidelines or other protocols for how their internal mechanisms function is related to resource allocation. It is clear from the Police report that Police made an assessment not to conduct an investigation.

RECOMMENDATION

(BMF) did not want to take any formal action about what had allegedly occurred and therefore no police investigation into the incident was conducted allowing the validity of her allegations to be determined.

104. In my view based on the words above, the only weight that could be given to this evidence concerns the application of s 44 (1) (e). However this is not what the assessor has done. I conclude that based on the analysis at [97]-[103] above, the assessor has placed a requirement on the applicant that is not required by the Act. In addition by dismissing the Police report of 3 June 2016 as not being an official report, but rather a report on the status of the investigation, and therefore having insufficient weight, the decision maker has placed an unsupported standard on the evidence.

105. When considering the Act at present, no Police report is strictly required, nor is there a requirement as to what form a Police report or record takes should one exist. Whether in determining whether to allocate resources to determine the existence (or absence) of a prima facie case Police require some statement by a complainant at the initial stage that they would be prepared to give evidence about the mater, is in my view a matter for Police. It is not a requirement or standard that a complaint / member of the public must adhere to, nor is it a mandatory legal requirement for a victim of crime seeking a recognition payment.

106. In respect of the medical evidence, I note that in a matter where the experience is traumatic, but no physical injury or serious injury is often present, the Act provides a low threshold of evidence of injury. In the current context of a traumatic sexual assault with an offensive weapon, the relevant definition under s 18 needs only to be:

psychological … harm

107. In this regard the Counselling report of September 2017 refers to:

“all the experiences she had in the brothels in which she had worked had ‘affected my general wellbeing’.”

108. Clearly a sexual assault in the context and the nature described by the applicant would have had some effect on the applicant’s general well being. I note the definition of injury as described above, and that the counselling report which records the evidence above, goes some way to meeting the requirements of s 39 (2) (b) (ii). The report comments on how the incident affects the applicant in a general sense.

109. The report identifies a possible underlying mental health problem or a personality disorder. In the absence of any evidence provided in her history to the Counsellor, it would appear that these matters are somewhat trauma related. Notwithstanding the Counsellor’s observation that (BMF’s) presentation did not appear to be explained simply through a complex trauma formulation, the Counsellor opined that some of these difficulties (and her rigidity of thinking) may predate the events to which her current claims relate. I observe that the incident would have been very traumatic and potentially having a psychological impact for the applicant.

110. However, having considered all of the medical material on file, and noting the additional evidence given by the applicant at hearing, in my view the report conveys the psychological harm that arose from the totality of the events subject of the report, but noting that this event is the most serious and would have been the most traumatic. There is additional evidence from the applicant, but the focus in these reasons is on the terms of s 39 (2) (b) (ii).

111. Having regard to the totality of the evidence, and noting the beneficial nature of the scheme as set out in Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA 185 and by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54, I find that the elements of s 39 (2) (b) (ii) are made out on the available evidence. The report verifies that the applicant has been injured by the act of violence and I so find.

112. In respect of the category of recognition payment I note that the circumstances of the offences would appear to meet the criteria of Category B recognition payment as defined at s 35 (2) of the Act.

(2) A category B recognition payment is a payment given in respect of an act of violence of the following kinds:

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(Emphasis added)

113. Section 36 of the Act sets out how recognition payments (as described in s 35) are payable:

36 Recognition payments

(1) Recognition payments are payable as follows:

(a) a category A recognition payment of an amount prescribed by the regulations is payable:

(i) to each family victim (other than a child referred to in subparagraph (ii)) who, immediately before the death of a primary victim as a result of an act of violence described in section 35 (1), was financially dependent on the primary victim, and

(ii) to each child of a primary victim who, immediately before the death of the primary victim as a result of an act of violence described in section 35 (1), was under the age of 18 years,

(b) a category A recognition payment of an amount prescribed by the regulations is payable to the following who were not, immediately before the death of the primary victim concerned, financially dependent on a primary victim who died as a result of an act of violence described in section 35 (1):

(i) a parent, step-parent or guardian of the primary victim,

(ii) any person who, immediately before the death of the primary victim, was the victim’s spouse or de facto partner as referred to in section 22 (3) (b),

(c) a category B recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (2),

(d) a category C recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (3),

(e) a category D recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (4).

(2) Only one recognition payment is payable to a single victim in respect of a series of related acts of violence against the victim.

(Emphasis added)

114. Clause 14 of the Victims Rights and Support Regulation 2019 (NSW) provides the following amounts payable for the various categories of recognition payments:

14 Recognition payments

The following are the prescribed amounts of recognition payment for the purposes of section 36 of the Act—

(a) for a category A recognition payment referred to in section 36(1)(a) of the Act—$15,000,

(b) for a category A recognition payment referred to in section 36(1)(b) of the Act—$7,500,

(c) for a category B recognition payment—$10,000,

(d) for a category C recognition payment—$5,000,

(e) for a category D recognition payment—$1,500.

(Emphasis added)

115. Having regard to the totality of the evidence and material before me I find that the applicant is a victim of an act of violence in accordance with s 19 of the Act, and as outlined above has satisfied the criteria of s 39. In addition having regard to the nature of the applicant’s concerns about intimidation, coming to harm, and retribution, I find that the basis for making the report in the terms set out by the officer in his report of 3 June 2016 is understandable. Therefore having regard to the provisions of s 44 of the Act I decline to not approve or reduce the giving of support by way of a recognition payment.

116. On the basis of the above finding the applicant’s claim for a recognition payment succeeds and the decision of the respondent will be set aside. The applicant is entitled to a recognition payment in the amount of $10,000 and that amount will be payable to the applicant.

Claim 2019/00067763 (NCAT) 231047 (Victims Services)

117. The claim is summarised as follows.

From 8/7/2015 – 23/7/2015 the applicant was working at premises at Kensington. She was sent to a job at a private residence at Bondi Beach and the client rejected the applicant and refused services. When she returned to her employer’s premises the owner was not happy that the client had not paid the cancellation fee and would arrange for security to ‘bash the client’.

The applicant claimed a physical and a psychological injury arising as a result of this incident.

Applicant’s evidence

118. The applicant sets out the circumstances of this matter in the application form (Pg 2 s 58 documents).

On 1 August I was sent to ‘X’ Sandgate Street Bondi Beach. The client wasn’t happy with me as I wasn’t the one that he had picked Online. I was asked to leave and I went back to the office. Can’t fit story in will post to you.

119. The applicant then provides a detailed statement witnessed by an officer from the Sex Workers Outreach Program (SWOP). The following is conveyed in the statement:

This is a statement of complaint against the owner of (‘XX’) Escort Agency. The office is located at (‘XXX’) Kingsford NSW.

…

I am a sex worker who applied for work with the agency …

As time went on I noticed this agency was sending me out using somebody else’s name and photo. I felt I was being placed in danger because some of the client’s made a fuss that [sic] wasn’t me in the photo and sent me back. I lost money and time.

…

The boss started to tell me that I was fat and needed to lose weight or he would reduce my hourly rate. He became abusive…

On 1 August 2015 I was sent to (No ‘X’) Sandgate Street Bondi Beach.

The client wasn’t happy with me as I wasn’t the one the one that he had picked online. I was asked to leave and I went back to the office. When the boss heard about this he wasn’t happy and he said he was going to get his security boys to go and bash the client for his cancellation fee.

I have a text message that says: ‘Hun, tell me what happened with the client when you get here. FYI the last guy got his head kicked in by security from being a smart arse and not paying the full cancellation fee …

I have issues regarding outstanding payments owed to me from clients credit card payments. I am still waiting for $1000.

120. The rest of the statement summarises the debt disputes between the applicant and this employer and makes reference to a view that they use violence to recover debts off alleged debtors. It also appears that the premises are located in Kensington not Kingsford.

121. This matter was apparently not reported to Police however the matter was referred to Police by Victims Services. The s 58 material contains at pages 13 and 14 a Police report received 11 November 2016 concerning the matter forward by Victims Services which records the address of the business premises. The matter is linked to this claim (VS Ref: 231047).

122. The applicant has provided a lot of material from SWOP and employment / payment information.

Respondent’s evidence / submissions

123. The respondent submits that the matter fails on the basis that s 39 has not been met by the applicant failing to report the matter to Police. As discussed at [97] and following paragraphs above there is no statutory requirement under the Act to report the matter to Police, as the matter can be reported to a Government or similar agency on the terms set out in the section.

124. The assessor notes the following at [13] of the decision:

Ms (CB) outreach and community services manager at Sex Workers Outreach Program (SWOP) has provided a personal statement by the applicant in relation to working at (the Kensington Premises). The statement does not mention or make disclosures of sexual or indecent assaults committed by ‘H.U.’ or any other individuals.

Consideration

125. I have carefully reviewed all of the material provided by the applicant. Curiously in some aspects the applicant has been able to establish that she received medical treatment which might relate to this claim, but has been unable to provide evidence of violent conduct. The applicant’s bundle of material filed 18 October 2019 with the Tribunal includes a Medical certificate from a GP practising at Miranda NSW. That Certificate refers to treatment over 23 July 2015 to 25 July 2015. Whilst this appears to be some weeks prior to the incident the Certificate has the name of the business premises (Brothel) hand written on the bottom of the document.

126. However, there is simply no evidence or material filed by the applicant which in my assessment would meet the criteria of s 19 (1) (a) and (b). There is no evidence in the application form or the written statement that the client at Bondi Beach or her boss engaged in any violent conduct towards the applicant which would amount to an assault. It appears that the management response to the client who cancelled the service has become conflated with the applicant’s own employer / employee or contractor / client industrial issues concerning payments and monies owed.

127. For unexplained reasons the applicant has filed a large number of payslips and payment information that does little other than confirm her engagement with the relevant premises. This issue has never been controversial between the parties.

128. The fact that such circumstances arise in the context where one of the parties asserts that the other has used violence to resolve disputes does not itself amount to an act of violence.

129. I note that the assessor does conclude that the claim is dismissed due to ‘act of violence not being established (s 19)’.

130. I make a finding that the available evidence does not establish an act of violence in accordance with s 19 of the Act. On this basis the application must fail and I so find.

131. The decision of the Assessor will therefore be affirmed.

Claim 2019/00067771 (NCAT) 235865 (Victims Services)

132. The claim is summarised as follows:

From 1/4/2014- 7/9/2015 the applicant was working at premises at Granville where she was bullied and harassed by the (victim) and the receptionist (there was) a great deal of violence towards the applicant.

The applicant claimed a psychological injury arising as a result of this incident.

Applicant’s evidence

133. At page 2 of the s 58 documents, the following is recorded:

I was working at the premises and have pay slips to verify I got bullied harassed and assaulted by the victim as well as one of the receptionists all of them were reported [sic] the police, a great deal of violence towards me.

134. The applicant relies on COPS Event E 53919125 which refers to issues between the applicant and a colleague ‘T’ at the premises (Brothel) in Granville. The Event referring to 1 April 2014 records:

The VIC believes that ‘T’ has become abusive as she believes its because she has taken a few of her clients. The VIC states that ‘T’ had been bad mouthing her stating things like ‘I can get you hurt. I know people who can fix problems for me.’ The VIC also believes that ‘T’ set up an occasion at the brothel where a male paid for sex with the VIC and during the intercourse the make became abusive and violent. The VIC believes the arrangement was set up by ‘T’.

135. In respect of the medical evidence the Counsellors report records the following about this matter:

Claim 245865 [sic 235865] at (Granville Brothel), verbal abuse from a co-worker ‘T’. ‘T’ made threats to kill her.

Respondent’s evidence

136. The respondent does not refer to the alleged violence by the client which was at the behest of the colleague ‘T’. Reference is only made to the alleged verbal and psychological abuse.

136. The respondent submits that the evidence provided does not meet the s 39 requirement and verify that the applicant was the victim of violent conduct.

Consideration

138. I note that the Counselling report makes no reference to the allegation that a make client was violent and that this was instigated by the colleague ‘T’. I also note that the Commissioner in submissions does not refer to this evidence, which was provided to Police on 1 April 2014. The assessor however does refer to this evidence.

139. However noting my observations and findings above about the operation of s 39 I find that the medical evidence does not establish (by way of verification) the act of violence. The main issue would relate to the actions of the client being violent with the applicant. In the absence of an existing personal or domestic violence order (interim or otherwise) I do not believe that verbal abuse and uncorroborated threats would meet the criteria of ‘violent conduct’ as such actions need to be ‘apparently in the course of the commission of an offence’ when quoting the statutory language. In this instance no criminal offence is evident concerning ‘T’ other than directing another to be violent and assault the applicant. This aspect is not however referred to in the counselling report so because of the operation of s 39 none of those findings (from that evidence) would apply to that allegation.

140. On this basis I find that the applicant has failed to establish the injury element of Act of violence as defined under s 19 and the other relevant provisions (such as the injury definition) in the Act. As s 19 has not been traversed s 39 and 44 do not need to be considered further.

141. The correct and preferable decision will be to affirm the decision of the respondent dated 2 November 2019.

Claim 2019/00067751 (NCAT) 245867 (Victims Services)

142. The claim is summarised as follows:

From 5/5/2015- 4/6/2015 the applicant was working at licensed premises at Rockdale where she was abused harassed bullied and hit by a colleague.

The applicant claimed a psychological injury arising as a result of this incident.

Applicant’s evidence

143. At page 3 of the s 58 Documents the applicant records the following in her application:

The worker harassed, bullied and hit me at the work premises it was all reported to the Police. I was also threatened by my life [sic].

144. COPS Event E 57467878 records the following relevant information about the claim:

About 11:05am on Tuesday 9th December 2014, the VIC (BMF) attended Surry Hills Police Station to report to police that she had been threatened, verbally abused and assaulted at her work premises (XX) a brothel located at Rockdale.

It was then allegedly stated by ‘N’ (a colleague) after an argument amongst the workers that:

.. “I know the Comancheros, I will bash you outside of work and no-one will know about it”.

‘N’ then walked over placing her hands onto (BMF’s) shoulders and continued to yell. This made (BMF) feel both threatened and scared.

Two of the females pulled ‘N’ back from (BMF) as they continued to argue.

145. I note that the applicant signed a statement in the Police notebook which appears at pages 15 and 16 of the s 58 documents. The counselling report makes the following reference to this incident:

Claim 245867 at (name of business) verbal abuse and threats re: bikie gang members harming her made by another worker ‘N’.

Respondent’s evidence and submissions

146. The respondent refers to the applicant being bullied harassed and hit by a colleague in the workplace. The respondent submits in their written submissions that in respect of the counselling report:

8. The report comments on how the incident affects the applicant in a general sense. The respondent submits that the counselling report does not provide information that the applicant suffered from psychological of psychiatric injury directly arising from the incident. Furthermore there is insufficient evidence that the applicant suffered from symptoms of depression anxiety or other forms of psychological trauma so as to harm her day to day functioning.

147. The respondent concluded that the evidence does not satisfy the requirements of s 39 of the Act.

Consideration

148. I note that the application contains an allegation of an assault by ‘N’ on the applicant. I also note that the respondent agrees that the counselling report provides information on how the incident affected the applicant generally.

149. Having accepted that the report provides information as to how the incident affects the applicant in a general sense, the respondent then submits that such an acceptance does not provide evidence of injury. Psychological harm is of a low threshold and the guidance on the term harm (under the former Act) comes from a guideline under s 65 of that Act. The reference is that the injury (to constitute harm) must be something more than transient or trifling.

150. As previously outlined the case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means “any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.

151. On my assessment of the brief observations of the counsellor, the applicant has suffered psychological harm. There is nothing in the definition at s 18 of the Act that requires the harm to be such that it impacts on the person’s day to day functioning as stated by the assessor and the respondent. Those comments appear to be bound up in the consideration of a person claiming to have sustained grievous bodily harm.

152. I therefore make a finding that the applicant is the victim of an act of violence (being the grabbing and holding and shaking of the applicant) by way of an assault.

153. Having regard to the totality of the evidence and material before me I find that the applicant is a victim of an act of violence in accordance with s 19 of the Act, and as outlined above has satisfied the criteria of s 39. In addition I note that the applicant reported the incident and I find no grounds having regard to the provisions of s 44 of the Act to not approve the giving of support by way of a recognition payment. Likewise I find no grounds to reduce the amount of support.

154. On the basis of the above finding the applicant’s claim for a recognition payment succeeds and the decision of the respondent will be set aside. The applicant is entitled to a recognition payment by way of Category D being an assault not resulting in grievous bodily harm, and the amount of $1,500 is payable.

155. The correct and preferable decision will be to set aside the decision of the respondent dated 2 November 2019.

Claim 2019/00067746 (NCAT) 245872 (Victims Services)

156. The claim is summarised as follows:

On 30/11/2016 at Rockdale the applicant was assaulted by a woman on a train whilst the applicant was carrying her infant in a carrier. The assailant pulled the applicant’s hair and touched her.

The applicant claimed a physical and a psychological injury arising as a result of this incident.

Applicant’s evidence

157. At page 2 of the s 58 documents the applicant records the following in her application:

I was on the train and a lady assaulted me I stood up with my baby in the carrier she pulled my hair and touched me physically I didn’t know her at all she was carrying a bottle of alcohol in her hand I was in fear shaking up [sic] I had witnesses.

158. The witness statement provided by the applicant and at page 005 of the s 58 documents is illegible. However in her bundle of documents filed 18 October 2019 there is a copy that is more legible. That version says ‘A white Caucasian woman touched the lady holding the baby, pulled the ladies hair, she was holding a bottle.’

159. The Police information in COPS Event E 62813175 states the following relevant information:

About 2:00pm on Friday 11 November 2016, the VIC boarded a south bound train from Central. The train was 601K, a south coast train…

As the train approached Wolli Creek RWS the VIC stood up in the vestibule area to see where the train was. As the VIC stood the POI approached her from behind. The POI pulled the Vic’s hair and touched her arm. The POI also touched the VIC’s baby. Following this the VIC said “What are you doing? don’t touch me”. The POI responded by giggling before touching her (own) forehead, her chest, left shoulder and right shoulder in the form of a cross. The POI alighted the train at Wolli Creek RWS and ran off in an unknown direction.

160. The Police material identifies a witness who corroborated the incident (see [158] above). In the Counselling report the following is recorded:

Claim 245872 (BMF) reported that at some point around August 2016 she was assaulted by a woman passenger on a train she was travelling in to Wolli Creek. (BMF) said that she was travelling with her baby in a baby carrier and was about to get off the train. She said that the woman pulled her hair and touched her without her consent.

Respondent’s evidence / submissions

161. The respondent appears to submit in written submissions that the s 39 requirement is not met. However the assessor finds that:

23. Overall, I find that the events which are referred to in the application do not satisfy the definition of an act of violence as required under section 19 and 20 of the Act. Unfortunately the application for victims support is dismissed.

Consideration

162. I note that Police took no further action in the matter. It would appear that having regard to the actions of the stranger on the train, the fact that the touching was minor, and that she made a sign of the cross and giggled at the end of the brief incident, may have informed Police action.

163. Having considered all of the evidence and material before me I do not believe that the behaviour of the woman on the train satisfies or otherwise meets the provisions of the Act that state that the conduct must be ‘violent’ and ‘occurs apparently in the course of the commission of an offence’.

164. In my view no offence has been committed on the available evidence. The person (for unexplained reasons) has touched the applicant and pulled at her hair. The applicant has not provided any evidence that her hair was pulled in a manner to cause pain of any significance, however I acknowledge that the incident would have caused some immediate distress in the circumstances described.

165. However in my view the behaviour of the woman does not in all of the circumstances constitute a criminal offence, as the term offence has been interpreted thought the history of the victim support scheme, including where statutory definitions have been included. Any arguable offence under s 61 of the Crimes Act 1900 (NSW) would be overcome by other legislative provisions for which a Court might dismiss the matter.

166. I therefore find on the totality of the evidence of the circumstances of the matter, that this incident does not constitute an act of violence as defined under the Act.

167. For those reasons the correct and preferable decision will be to affirm the decision of the respondent dated 2 November 2019.

Conclusion

168. For the reasons outlined above, and the decision of the respondent will be set aside in three claims and will be affirmed in the other four claims. The import of this decision is that the respondent is to grant the applicant one recognition payment in the nature of Category B in the sum of $10,000.00 and two recognition payments in the nature of Category D each in the sum of $1,500.00.

Orders

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.

169. As a result of the decisions in the seven claims above the applicant is to be provided with total recognition payments for the three successful claims providing a total payment in the amount of $13,000.00.

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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

Amendments

06 April 2020 - (1) File number corrected in Coversheet – Decision and Orders

(2) Semicolon added between each file number on the Coversheet

Decision last updated: 06 April 2020