BWQ v Commissioner of Victims Rights
[2015] NSWCATAD 197
•18 September 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 Hearing dates: 14 August 2015 and 18 September 2015 Date of orders: 18 September 2015 Decision date: 18 September 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. Grant leave to the applicant to file the Application for Administrative Review, despite her making a late application for internal review by the Respondent, pursuant to s 55 (4) and s 55 (5) of the Administrative Decisions Review Act 1997.
2. Pursuant to s 63 (3) (b) of the Administrative Decisions Review Act 1997, I vary the decision of the Assessor (Client Claims) dated 4 February 2015 in so far as it relates to the recognition payment, as follows:
3. The applicant was a primary victim of an act of violence, comprising a series of related acts over a period from 1 December 2012 to 14 December 2014, which in the nature of an assault resulting in grievous bodily harm.
4. The applicant is entitled to a Category C recognition payment pursuant to s 35 (3) (c) of the Victims Rights and Support Act 2013 and cl 12 (c) of the Victims Rights and Support Regulation 2013, in the sum of $5,000.Catchwords: VICTIMS recognition – domestic violence – physical assault – leave to proceed – absence of internal review Legislation Cited: Administrative Decisions Review Act 1997
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Interpretation Act 1987Category: Principal judgment Parties: BWQ (Applicant)
Commissioner of Victims Rights (Respondent)Representation: Solicitors:
BWQ (Applicant in person)
14/08/2015 – S Matulewicz, Victims Services (Respondent)
18/09/2015 – M Ting, Victims Services (Respondent)
File Number(s): 1510267 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
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These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym BWQ initially before the Commissioner of Victims Rights.
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The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (the ‘Act’) on 15 December 2014. As a result it is not to be considered as a ‘transitional victims compensation’ matter, and is dealt with in its entirety under the 2013 legislation. This assessment is relevant when determining any amount to be awarded to an applicant.
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The application 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 BWQ was the primary victim of an act of violence in the nature of domestic violence & assaults perpetrated by her former partner in NSW over a period of time between 2012 and 2014. The assessor determined that BWQ 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 as she was not satisfied that the assaults had resulted in grievous bodily harm. She awarded BWQ the sum of $1,500.
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The applicant claims as a primary victim. Whilst there is a large amount of references in the material that was before the assessor to incidents which might be characterised as ‘domestic violence’
Leave to proceed
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S 55 (3) of the Administrative Decisions Review Act 1997 (‘ADR Act’) provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However s 55 (4) provides discretionary exceptions to that requirement.
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S 55 (4) (a) provides that this Tribunal can review the matter (in the absence of an internal review) if it is satisfied that the Respondent 'unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision'... (emphasis added)
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In the current matter, there is no evidence that the Respondent unreasonably refused to consider the application for internal review, as the application was lodged late and the Respondent has no power to consider a late application. However, s 55(4) (b) of the ADR Act confers a discretion to consider a matter where there has been no internal review, where 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.
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In the current matter, the evidence indicates that the Respondent posted a copy of the Assessor’s decision to BWQ at an address in Newcastle and that this address was the office of the Victims of Crime Advocacy League and not her residential address. Indeed she was living in a women’s refuge at that time.
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By operation of s 76 (1) (b) of the Interpretation Act 1987, the Respondent’s letter is deemed to have been delivered to that address on the 4th working day after it was posted, that is 10 February 2015. However, there is no evidence before me that BWQ received it that day as she was not living at the address to which it was posted and she could not recall exactly when she received it.
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In any event, BWQ had 28 days in which to apply to the Respondent for an internal review of the Assessor’s decision (that is, until 9 March 2015). However, she did not apply for an internal review until 21 March 2015 and the Respondent did not receive it until 23 March 2015. In other words, the application for internal review was made 2 weeks late.
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The issue relating to the 'applicant's interests' goes to the substance of BWQ’s claim and is bound up in the substantive issue of whether or not she was the primary victim of an assault resulting in grievous bodily harm.
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For the reasons set out below, I am persuaded on the evidence that is before me that BWQ was the victim of an assault resulting in grievous bodily harm. On that basis, I grant leave for the Application for Administrative Review to proceed pursuant to s 55 (4) of the ADR Act and accept it.
Decision on the merits
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The Tribunal has received s 58 documents from the respondent and a number of documents annexed to the application and further documents provided from the applicant since the initial hearing. The applicant has also made submissions by telephone and the Tribunal has heard submissions on behalf of the Respondent.
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The available evidence indicates that BWQ was the victim of multiple assaults that might be considered domestic violence that were perpetrated by her former partner and which are therefore a series of related acts. There is photographic evidence of extensive facial and bodily bruising and evidence from an expert psychiatrist that indicates that she also suffered major depression, anxiety and symptoms of PTSD as a direct result of the acts of violence.
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It is clear that the acts of violence have had a terrible impact on BWQ. Besides the general issues of how predominantly women are the victims of domestic violence rather than men, and women tend to be the primary caregivers of children and young persons, the applicant’s family life has been completely dislocated by these incidents and she has had to avail herself of crisis accommodation and other forms of support.
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There is evidence about treatment, counselling and also medical treatment by way of prescription medication and there is expert psychological and psychiatric evidence before the Tribunal that establishes a serious psychological or psychiatric condition arising as a direct result of the violence and having a debilitating and serious long-term impact and effect on the applicant. The evidence indicates that the psychological symptoms continue.
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In my view, the applicant is significantly impaired in her functioning and based upon the available evidence I am satisfied that she is entitled to a category C recognition payment on the basis that she suffered grievous bodily harm arising from a psychological condition that has had a serious impact upon her.
Orders
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On the basis of all the evidence before me, I order that the decision of the Assessor dated 4 February 2015 be varied in so far as it relates to the recognition payment and that BWQ is eligible for a Category C recognition payment in the sum of $5,000 pursuant to s 35 (3) (c) of VRSA 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: 28 September 2015
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