BWL v Commissioner of Victims Rights

Case [2015] NSWCATAD 235


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BWL v Commissioner of Victims Rights [2015] NSWCATAD 235
Hearing dates:3 July 2015 & 9 October 2015
Date of orders: 09 October 2015
Decision date: 09 October 2015
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

1. The decision of the Senior Assessor dated 23 April 2015 is set aside and the following decision is by way of substitution:

 

a. BWL was the primary victim of an act of violence pursuant to s 19 and s 20 of the Victims Rights and Support Act 2013 (“the Act”);

 

b. BWL is eligible for a recognition payment under Category B, pursuant to s 35(2)(b) of the Act, as she was the victim of “sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts”; and

c. BWL is eligible for a recognition payment in the sum of $10,000 pursuant to s 35(2) (b) of the Act and cl 12 of the Victims Rights and Support Regulation 2013.
Catchwords: VICTIMS recognition – sexual assault, indecent assault or attempted sexual assault that is one of a series of related acts
Legislation Cited: Civil and Administrative Tribunal Act 2013 (No. 2) Administrative Decisions Review Act 1997
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Cases Cited: State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249
Category:Principal judgment
Parties: BWL (Applicant)
Commissioner of Victims Rights (Respondent)
Representation:

Counsel:

   

Solicitors:
3 July 2015:
No appearance (Applicant)
S Matulewicz, Victims Services (Respondent)

  9 October 2015:
BWL (Applicant in person)
S Matulewicz, Victims Services (Respondent)
File Number(s):1510249
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 claim for victim support and a recognition payment lodged by the applicant known by the pseudonym BWL initially before the Commissioner of Victims Rights (“the Commissioner”).

  2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (the ‘Act’) on 28 October 2014. BWL alleged that she was the primary victim of acts of assault and sexual assault by a neighbour, at Merrylands, on 12/09/2014 and over a period of time thereafter. She alleged that the offender had been sexually harassing her for a while whilst she was talking to him briefly and that he attacked her and that she had suffered physical and psychological injuries as a direct result.

  3. The application was considered by an assessor, client claims, being the first instance decision maker on behalf of the Commissioner. On 20 February 2015, the assessor made an administrative decision that BWL was the primary victim of an act of violence and that the act of violence fell into the recognition payment category D, being an assault not resulting in grievous…

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AGLC
BWL v Commissioner of Victims Rights [2015] NSWCATAD 235
Case
[2015] NSWCATAD 235
Decision Date

CaseChat Overview and Summary

The appellant, BWL, challenged the decision of the Senior Assessor, who had determined that she was not eligible for a recognition payment under the Victims Rights and Support Act 2013. BWL was the victim of a series of related acts, including sexual assault, indecent assault, and attempted sexual assault involving violence. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issue before the court was whether BWL was eligible for a recognition payment under the Act, specifically under Category B, as the victim of "sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts."

The tribunal examined the provisions of the Act and the relevant regulation to determine the eligibility of BWL for a recognition payment. The tribunal noted that the Senior Assessor had found that the acts suffered by BWL were not "related acts" within the meaning of the Act, and therefore, she was not eligible for a recognition payment. The tribunal disagreed with the Senior Assessor's interpretation of the Act, finding that the acts suffered by BWL were indeed "related acts" as they were part of a series of related events. The tribunal concluded that BWL was eligible for a recognition payment under Category B, as she was the victim of "sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts."

The tribunal set aside the decision of the Senior Assessor and substituted a new decision that BWL was eligible for a recognition payment in the sum of $10,000. The tribunal noted that the decision of the Senior Assessor was unreasonable as it failed to properly interpret the provisions of the Act and the relevant regulation. The tribunal further noted that the decision of the Senior Assessor did not take into account the relevant legislative framework and the purpose of the Act, which was to provide recognition and support to victims of violence. The tribunal concluded that the decision of the Senior Assessor was wrong and that BWL was entitled to a recognition payment under the Act.

Orders

Orders of the court

1. The decision of the Senior Assessor dated 23 April 2015 is set aside and the following decision is by way of substitution:

a. BWL was the primary victim of an act of violence pursuant to s 19 and s 20 of the Victims Rights and Support Act 2013 (“the Act”);

b. BWL is eligible for a recognition payment under Category B, pursuant to s 35(2)(b) of the Act, as she was the victim of “sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts”; and

c. BWL is eligible for a recognition payment in the sum of $10,000 pursuant to s 35(2) (b) of the Act and cl 12 of the Victims Rights and Support Regulation 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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