BWL v Commissioner of Victims Rights

[2016] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BWL v Commissioner of Victims Rights [2016] NSWCATAD 242
Hearing dates:	7 October 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Before:	M Riordan, Senior Member
Decision:	(1) The application for administrative review of the Commissioner’s decisions dated 27 May 2016 and 5 August 2016, with respect to the claims for financial assistance for immediate needs and economic loss in matter number 212432, are dismissed for want of jurisdiction. (2) The application for administrative review of the Commissioner’s decision dated 5 August 2016, with respect to the claim for financial assistance in matter number 233065, is dismissed for want of jurisdiction. (3) The decision of the Commissioner dated 5 August 2016 with respect to the claim for a recognition payment in matter number 233065 is affirmed.
Catchwords:	Victims Rights and Support – administrative review – Alleged further acts of violence over a period of time –Act of violence not established on the balance of probabilities – Financial Assistance - Jurisdiction of the Tribunal
Legislation Cited:	Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (No. 2)
Cases Cited:	BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255
Texts Cited:	Statutory Interpretation Australia (8th Edition Pearce and Geddes)
Category:	Principal judgment
Parties:	BWL (Applicant)  Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: BWL (Applicant in person) Victims Services (Respondent)
File Number(s):	1610535
Publication restriction:	A non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

1. These proceedings relate to a further claim for victims support for immediate needs and a recognition payment lodged by the applicant known by the pseudonym BWL initially before the Commissioner of Victims Rights (“the Commissioner”).

2. BWL previously made a claim for victims support for immediate needs and economic loss and a recognition payment and that matter was the subject of the decision reported as BWL v Commissioner of Victims Rights [2015] NSWCATAD 235.

3. The current application for victims support was lodged with the Commissioner on 11 April 2016 under the provisions of the Victims Rights and Support Act 2013 (“the Act”) and was assigned matter number 233065. In this application, BWL alleged that she was the primary victim of acts of assault and “aggravated ongoing stress threats” that were perpetrated by the same offender, in New South Wales, on 29 March 2016 and over a period of time “from 31 March 2016 to 4 April 2016”. She alleged that the offender had “inflicted numerous threats, taunts and intimidation to the point he should be in jail…” and that she had suffered a psychological injury as a result.

4. On 5 August 2016, the application in matter number 233065 was considered by an assessor - client claims, being the first instance decision maker on behalf of the Commissioner. The assessor made an administrative decision that an act of violence was not established on the balance of probabilities and dismissed the application.

Application for Administrative Review

5. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“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.

6. On 16 August 2016, BWL lodged the current Application for Administrative Review, in which she sought administrative review of 3 separate decisions made by the Commissioner. These are as follows:

1. Decision of an Assessor – Client Claims dated 27 May 2016 in relation to matter number 212432. I note that this decision was made as a consequence of the Tribunal’s decision regarding the previous application for administrative review and that it concerned claims for financial support for immediate needs.

2. A Review Decision made by a Senior Assessor on dated 5 August 2016 in relation to matter number 212432. I note that this decision concerned claims for financial support for both immediate needs and economic loss.

3. A decision of an Assessor-Client Claims dated 5 August 2016 in relation to matter number 233065. I note that this decision concerned claims for both financial support and a recognition payment.

7. BWL did not particularise any grounds for review, but she asserted that the Commissioner’s decisions evidence “injustice and malice” toward her by the Commissioner and that they were “unjustified… and aimed to inflict more injustice upon her”.

8. The date upon which BWL received each of these decisions is not indicated in the documents before me. However, I note that the current Application for Administrative Review was lodged within 28 days following the decisions dated 5 August 2016.

Consideration

9. In making this decision I have considered all of the evidence that has been lodged by the applicant, although I have not specifically referred to all of the evidence in this decision.

Early determination of the application

10. S 36 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (“the CAT Act”) provides:

36   Guiding principle to be applied to practice and procedure

The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

11. The matter was listed before the Tribunal for directions on 7 October 2016, when BWL appeared in person and the Commissioner was represented by Mr Singh. The Tribunal noted that the Commissioner had lodged a comprehensive bundle of documents pursuant to s 58 of the ADR Act.

12. The Tribunal also observed that BWL showed signs of extreme emotional distress, which included frequent loud outbursts directed at the Tribunal and the Commissioner and intimations of possible self-harming behaviour if her application was not dealt with promptly. However, BWL did not actually threaten to self-harm.

13. For this reason, and in order to give effect to the Tribunal’s guiding principal under s 36 of the CAT Act, the Tribunal decided that it was appropriate for the application to proceed to hearing without further delay. The Commissioner did not object to this course of action and the matter proceeded accordingly.

Jurisdiction of the Tribunal

14. While BWL sought administrative reviews of decisions that were made in relation to her claims for financial assistance for immediate needs and economic loss, in BMF v Commissioner of Victims Rights [2016] NSWCATAD 144, the Tribunal has previously determined that it lacks jurisdiction to administratively review of decisions regarding those claims. In particular, it stated, relevantly:

Jurisdiction with respect to financial assistance claims

48. I note that in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”) Brennan CJ held:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

49. I further refer to Statutory Interpretation Australia (8th Edition Pearce and Geddes) (at page 28), which provides:

Remedial or Beneficial Acts

The Courts have adopted the broad approach that where an Act is curing some ‘mischief’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit.

50. Applying these principles to the current matter, I accept the submission made by BMF’s solicitors to the effect that financial support for immediate assistance and economic loss form an integral part of the package of victims’ support that is potentially available to a primary victim of an act of violence under the Scheme established by the Act.

51. However, s 51 of the Actexpressly refers to an “applicant for a recognition payment” and “a decision with respect to a recognition payment” and I am not persuaded that Parliament intended that these references should also extend to provide a right of external administrative review to “an applicant for financial assistance”. It was open to Parliament to expressly confer this right with respect to such decisions, but it instead chose to distinguish between the various types of victims support provided for under the Victims Support Scheme and to restrict the right to seek external administrative review to decisions made with respect to a recognition payment.

52. I therefore reject the expansive interpretation of s 51 of the Act that has been proffered by BMF’s solicitors and find that his Tribunal does not have jurisdiction to conduct an administrative review the decisions made by the Respondent with respect to the applications for financial assistance under s 51 of the Act…

15. For these reasons, the Tribunal is satisfied that it lacks jurisdiction to administratively review the Commissioner’s decisions dated 27 May 2016 and 5 August 2016 in matter number 212432, as these decisions relate to claims for financial assistance for immediate needs and economic loss. Those aspects of the current application must be dismissed.

16. Further, the Tribunal lacks jurisdiction to administratively review the Commissioner’s decision dated 5 August 2016 in relation to matter number 233065, to the extent that this decision relates to a claim for financial assistance. That aspect of the current application must also be dismissed.

Jurisdiction with respect to the claim for a further recognition payment

17. I am satisfied that s 51 of the Act confers jurisdiction upon the Tribunal to administratively review a decision made in matter number 233065 regarding an application for a recognition payment.

18. However, s 55 (3) of the ADR Act provides:

If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

19. In the current matter, there is no evidence that BWL requested an internal review of the Commissioner’s decision regarding dated 5 August 2016 before lodging the current application for administrative review. However, this Tribunal has a discretion to deal with the current application, in the absence of a request for internal review.

20. In relation to this issue I note that s 55 (4) of the ADR Act provides, relevantly:

(4)  However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

…

(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

21. In view of the signs of extreme emotional distress displayed by BWL during the hearing on 7 October 2016, I am satisfied that it is necessary for the Tribunal to deal with the current application for administrative review, in the absence of a request for internal review, in order to protect the applicant’s interests and that the application was lodged within a reasonable time following the decision dated 5 August 2016.

Act of Violence

22. During the hearing of this matter on 7 October 2016, BWL alleged that the acts of violence had “continued to date”. The Tribunal therefore granted her leave to amend paragraph 20 (b) of her Application for Victims Support in matter no. 233065, to allege that she was the primary victim of an act of violence that occurred “over a period of time from 29 March 2016 to date”.

23. I note that NSW Police created further COPS Event Reports dated 29 March 2016 and 8 May 2016 and that these record numerous further complaints that BWL made against the alleged offender between those dates. These include, but are not restricted to, BWL’s belief that the alleged offender breached an Apprehended Violence Order by approaching her at or near a supermarket and by laughing at her, verbally harassing her and throwing items of fruit and vegetables at her windows.

24. In relation to these further complaints, I note that NSW Police sent an email to Victims Services dated 7 April 2016, which indicated, relevantly:

…(BWL) appears to be collecting event numbers in order to evict (the alleged perpetrator) and has further stated this to police. I investigated the matter and have conflicting versions. I also have independent witnesses that do not support (BWL)’s version thus will not be taking any action.

(BWL) contacted Triple 0 and Police link as she is not allowed to contact any police station unless there is a genuine emergency (Court order). A job broadcast was created by (BWL) on 4 April. I closed it tonight as police have attended there over 6 times with nil success, when she is spoken to on the phone, she claims (the alleged perpetrator) laughed and feels as though (he) has breached the AVO which is incorrect and, refuses to tell police where she is so we can see her. In addition, when police are finally able to speak to her, she rants on about unrelated events continuously.

The matter will not be investigated any further by police and should she continue to make false reports, she will be arrested and her own bail breached…

25. I note that on 30 June 2016, BWL sent a fax letter to Victims Services, in which she requested urgent approval for a referral to a psychiatrist on the basis that “…the Courts need a doctor’s medical submission before August…” She also stated that this report was required “as a result of the assault and all the ongoing stresses it has caused due to police corruption…”

26. During the hearing on 7 October 2016, BWL informed the Tribunal that she had reported the police officers, whom she alleged had failed to investigate her complaints against the alleged offender, to the NSW Ombudsman and that she believed that they were to be “prosecuted for corruption”. She also asserted on numerous occasions that she had reported officers of Victims Services to the Attorney-General and that she had been told by the Attorney-General that they were “in trouble” as a result of the way that they had treated her. However, she did not lodge any evidence with the Tribunal in support of those assertions.

27. I note that Dr Teoh, consultant psychiatrist, examined BWL on 29 July 2016 and issued a medical report to Victims Services dated 30 July 2016. He reported that BWL gave a history of assault and physical abuse by the alleged offender in September 2015, and said that the alleged offender had subsequently threatened and harassed her and that she became fearful for her life. He noted that she had called the police “up to 92 times” and that the police then charged her and she spent 6 weeks in prison and was currently “on bail”. He also noted a long history of psychiatric conditions requiring admissions to hospital and periods of suicidal thoughts and self-harming behaviour.

28. Dr Teoh opined, relevantly:

…She had to deal with a neighbour who started to threaten and harass her. This triggered significant traumatic memories and fear for her safety, I the background of her long history of psychological trauma.

Consequently, she had reacted in an extremely anxious and irrational manner. It was likely that she had psychological dissociation at the time when she called the police more than “92 times.”

…

(Her) presentation is consistent with a diagnosis of chronic post-traumatic stress disorder (DSM5 diagnostic criteria).

29. S 19 (1) of the Act defines “act of violence” as meaning, relevantly, “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.”

30. In relation to this issue, I note that Dr Teoh did not state that BWL’s current psychological condition resulted from the further acts of violence alleged in the application for victims support in matter number 233065. There is no other medical evidence before me that supports a finding of injury in the manner alleged.

31. Based upon a consideration of all of the available evidence in this matter I am not satisfied that an act of violence has been established on the balance of probabilities.

Orders

32. I make the following orders:

1. The application for administrative review of the Commissioner’s decisions dated 27 May 2016 and 5 August 2016, with respect to the claims for financial assistance for immediate needs and economic loss in matter number 212432, are dismissed for want of jurisdiction.

1. The application for administrative review of the Commissioner’s decision dated 5 August 2016, with respect to the claim for financial assistance in matter number 233065, is dismissed for want of jurisdiction.

2. The decision of the Commissioner dated 5 August 2016 with respect to the claim for a recognition payment in matter number 233065 is affirmed.

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

Decision last updated: 27 October 2016