BWL v Commissioner of Victims Rights

[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 bodily harm. The assessor determined that BWL was eligible for a recognition payment pursuant to s 35 of the Act and approved payment of a Category D recognition payment pursuant to s 35 (4) (d) of the Act and approved payment in the sum of $1,500.

4. On 17/03/2015, the Commissioner received a letter from BWL, in which she stated relevantly:

I (BWL) am not accepting the lowest payment of 1,500 this amount is just as bad as the assault itself I am appealing and will not accept anything under $10,000 The assault has brought back all suppressed nightmares of 16 years domestic violence to the point I can’t have relationships with men at all I’ve lost all confidence and will not even talk to men at all my pain was servere (sic) my jaw ached fir weeks on end and my concussion I nearly got run over and suffered with pain loss of moore (sic) dignity and self worth. I need you to look at past dr’s certificates of my past abuse in which I received permanent injurys (sic) was serverely (sic) underpaid me also. I also tried to commit suicide after the assault because of the past assaults if this is not accepted I will seek a lawyer as this is another grose (sic) injustice against me I will get one from legal aid so please don’t make a decision until then as I’m not accepting anything under $10,000.

Also in regards to this assault he was issued with a two year AVO and section 12 bond in which is serious and I’m in jail due to my neighbour breaching this AVO three times and the police telling me there doing nothing about this and charging me with being a menace so I’m doing time as the victim.

BWL also submitted that the Commissioner should speak to her psychologist and she concluded that the award of $1,500 was …another slap in the face and moore injustice (sic).’ However, she did not submit any additional medical evidence in support of her claim for victims support.

5. On 23 April 2015, the Senior Assessor conducted an internal review of the assessor’s decision and effectively affirmed it, although the Senior Assessor decided that if BWL wished to be considered for financial assistance she was encouraged to submit information to substantiate any claim for expenses related to the act of violence.

6. I note that the Commissioner served a copy of the Senior Assessor’s decision upon BWL by posting it to her on 27 April 2015.

Application for Administrative Review

7. 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.

8. On 13 May 2015, the Tribunal received the Application for Administrative Review. This asserts that BWL received the senior assessor’s decision on ‘29/9/20015’. However, as that date has not yet occurred and noting the date that the decision was posted to her, I am satisfied that this date should read ’29 May 2015’ and that the Application has been lodged within time. The Application repeated the grounds relied upon for internal review of the assessor’s decision. However, she did not lodge any additional evidence in support of her Application.

9. The matter was listed for hearing before Senior Member Molony on 3 July 2015, but there was no appearance by or on behalf of BWL and 4 separate attempts to contact her on her designated telephone number were unsuccessful. The Senior Member ordered that the Application be dismissed for failure to appear at the hearing pursuant to s 55(1) (c) of the Civil and Administrative Tribunal Act 2013 (No. 2) (“the CAT Act”).

10. On 22 July 2015, the Tribunal received an Application to set aside or vary Tribunal Decision from BWL, in which she asserted relevantly:

All as my rights I was assaulted and suffered a lot of physical pain and mental, emotional disturbances This was heard in my absence Im (sic) not accepting any moor (sic) injustice…

Magistrate & Police agree I’m entitled to a payment if your daughter was assaulted she would be entitled to this I was discriminated by Mr Molony and wish he does not take next hearing….

There are situations I need to explain in person to clarify (sic) things. There was a mishap with phone communications last time and request I come in person this time…

11. In support of that Application, BWL lodged a Statutory Declaration dated 8 July 2015, in which she declared relevantly:

…do solemnly swear that on the 3rd July no one rang me from the Tribunal no body rang at all that day as I had my phone with me all day. There is nothing technically wrong with my phone.

I’m requesting an urgent appeal on the grounds that all evidence was presented and I suffered a lot of physical pain, emotional, mental, depression as there is a strong history of abuse with permanent scars both physical and mental emotional I’ve contacted the Ombudsman and if my human rights are further violated due to Mr Molony’s personal dislike towards they will be investigating and superering (sic) all phone calls that he said he made the Registrar said around 4 times I never received one in any case he had evidence of the assault and should never have dismissed it if it was him he would expect compensation. Also I have 2 hearings in relation to the ongoing threats from the perpetrator and the abuse is ongoing please assign a new hearing date as soon as possible I will be there in person this time unless Im to sick and I will inform you Im also requesting Mr Molony do not take the hearing on that day due to moore conflict I’m the victim and have been put through enough.

12. The Application to set aside the Tribunal’s order dated 3 July 2015 came before me for hearing on 28 August 2015. BWL appeared in person and Mr S Matulewicz appeared for the Commissioner. The Tribunal had received s 58 documents from the Commissioner, which appeared to be comprehensive and complete and I also heard oral submissions from both parties.

13. In relation to BWL’s assertion that Senior Member Molony discriminated against her by dismissing her Application and her allegation that contrary to the Tribunal’s records, the Senior Member did not call her at all on 3 July 2015, I preferred the Tribunal’s records that indicate that he attempted to contact her by telephone on 4 occasions, without success. I reject the allegation that the Senior Member’s decision to dismiss the Application, pursuant to s 55(1)(c) of the CAT Act, was based upon any reason other than BWL’s non-appearance at the hearing and am satisfied that there was no evidence of discrimination against her by the Tribunal. However, I accepted that there had been a communications mishap on 3 July 2015 and that it was appropriate to reinstate the Application for Administrative Review pursuant to s 55(2) of the CAT Act, on the basis that BWL had provided a reasonable explanation for her non-attendance at the previous hearing.

14. However, based upon the s 58 documents received at that time, I observed there was very little by way of medical evidence that supported the allegation of psychological injury as a result of the acts of violence. I therefore granted BWL leave to file and serve a further evidence from her treating psychiatrist by 28 September 2015 and I granted leave to the Commissioner to file and serve any further evidence in response by 9 October 2015. I listed the matter for hearing on 9 October 2015.

15. On 21 September 2015, the Tribunal received further medical evidence from BWL, comprising reports from Dr Taylor dated 15 June 2015 and 11 September 2015.

Decision on the merits

16. At the hearing on 9 October 2015, BWL appeared in person and Mr S Matulewicz appeared for the Commissioner. I had considered all of the evidence lodged with the Tribunal and also heard oral submissions from the parties.

17. BWL submitted that the decision of the Senior Assessor should be reviewed in her favour because she had been sexually assaulted on 3 occasions; she had attempted suicide (more than once); she was the victim of long term domestic violence; and she ‘got taken by a lawyer and barrister and was put into poverty. She said that she suffered from depression between 2009 and 2013 and that she is unable to form relationships with men and is isolated. She complained that she has to live in Housing Commission accommodation, which is not suitable for her, particularly since she was sexually harassed by the neighbour who assaulted her. She said that she was sent to gaol and was currently ‘on bail’. She obtained a 2 year AVO from Magistrate Pearce, but the perpetrator breached it and ‘stole my birdcage’. She called the Police about this, but they did nothing. The next day, that neighbour threatened me and she contacted the Police again, but they came and put her in gaol and charged her with using a carriage service to menace and harass. She alleged that ‘ice clients’ of the neighbour were now also threatening her and that she was facing a 2 day hearing in January and she is without a lawyer as Legal Aid was terminated. She said that the Judicial Commission is now involved.

18. Mr Matulewicz submitted that the evidence that was now available, not all of which being available to the assessor and senior assessor, supported a finding that BWL had suffered both physical and psychological or psychiatric injuries as a result of an indecent assault … that is one of a series of related acts and that she is entitled to a Category B recognition payment pursuant to s 35 (2) (b) of the Act, in the sum of $10,000.

Consideration

19. I am satisfied that the available evidence, and particularly the Police COPS report, supports a finding that BWL was the primary victim of an indecent assault and harassment that continued over a period of time, which were committed by the same offender, and that these acts of violence are a series of related acts for the purposes of the Act.

20. In addition, I note that on 15 June 2015, Dr Taylor, treating psychiatrist, reported that BWL was in receipt of a Disability Support Pension for ‘depression and alcoholism’ and that she had a ‘long and complicated history with approximately 10 custodial sentences, some for fraud which she claims supported her alcohol problem. He also elicited a history of unstable mood over many years with episodic highs and periods of depression and symptoms of PTSD that were probably related to the incidences of abuse to which she has been subjected. Dr Taylor diagnosed Bipolar II Mood disorder, PTSD and Alcohol Dependence Syndrome (in remission), with paranoid ideation focussed on authority figures predominantly, which was the result of a combination of all of the factors that she described.

21. In view of the evidence of significant pre-existing psychological or psychiatric injury, I am satisfied that prior to the acts of violence, BWL’s psychological condition was that such that the “eggshell psyche” principle espoused by Spiegelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40] applies. I am satisfied that her eggshell psyche was aggravated as a result of the acts of violence and that her current psychological or psychiatric condition is a direct result of the acts of violence. The Act does not require that the acts of violence are the main contributing factor or a significant contributing factor to the injury.

22. For these reasons, I am satisfied that BWL is entitled to a category B recognition payment.

Orders

23. Pursuant to s 63 (3)(c) of the ADR Act, the decision of the Senior Assessor dated 23 April 2015 is set aside and I make the following decision in substitution for that decision :

1. BWL was the primary victim of an act of violence pursuant to s 19 and s 20 of the Act;

2. 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

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

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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

Decision last updated: 12 November 2015