BXB v Commissioner of Victims Rights

[2015] NSWCATAD 173

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BXB v Commissioner for Victims Rights [2015] NSWCATAD 173
Hearing dates:	31 July 2015
Decision date:	31 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) Leave granted to proceed to administrative review. (2) Pursuant to section 35 (1) (e) of the Victims Rights and Support Act 2013 the applicant is eligible for a recognition payment.
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
Cases Cited:	BGD v Commissioner of Victims Rights [2014] NSWCATAD 181
Category:	Principal judgment
Parties:	BXB (Applicant) Commissioner of Victims Rights(Respondent)
Representation:	Solicitors: BXB (Applicant in person) S Matulewicz, Victims Services (Respondent)
File Number(s):	1510281
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

Ex Tempore

1. These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym BXB initially before the Commissioner of Victims Rights.

2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (the ‘Act’). In the absence of any indication of the exact date of lodgement I infer that because of the fact that the claim covers the period up to 2014 and it appears that it was submitted on 9 December 2014. As a result the matter 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.

3. 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 to dismiss the application predominantly because they were not satisfied that the applicant was the victim of an act of violence within the meaning of the Victims Rights and Support Act 2013.

4. The relevant issue for the first instance decision maker seems to have focused on the fact that whilst there was a large amount of evidence of what would be categorised as “domestic violence” in a normal parlance definition, the Act refers to violence as involving, in effect, violent conduct which occurs apparently in the course of the commission of an offence and the reference extends to “criminal offence”.

5. Section 19 of the Victims Rights and Support Act 2013 says,

“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.

6. 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’, the assessor said at paragraph 14 of their decision of 16 January 2015 that,

“Finding an offence occurred using the information contained in the COPS reports is difficult. The applicant started contacting police in April 2012 as she wanted assistance as a result of a verbal argument. Verbal arguments are not an offence under the Crimes Act 1900.”

7. It appears for this reason that the claim was unsuccessful and the other aspects of the claim were not determined. That decision, as I have just stated, was made on 16 January 2015. It was conveyed to the applicant shortly thereafter. One of the issues is that the documents were apparently received at the applicant’s address for service while she was overseas and as a result there is material before the Tribunal which indicates it did not come to her attention within time, the reference to time being the 28 days required under section 49 of the Act for an internal review.

Relevant chronology and Internal Review

8. On 19 January 2015 the decision was conveyed to the applicant, and posted by ordinary pre-paid post on 20 January. The problem that arises is that by the time the applicant got around to applying for an internal review the time period provided for by the Act had expired.

9. The relevant period set out in s 49 of the Act where it says at 49(1),

“An applicant for victims support may apply to the Commissioner for the internal review of the decision made by a person to whom the Commissioner has delegated the commission’s functions with respect to an application for victims support (in this decision called the decision maker).

10. Section 49(2) provides that:

The application must be made within 28 days after the day on which the applicant is given notice of the decision maker’s decision.”

11. Moving on to section 51 of the Act which refers to external review by this Tribunal, the section provides:

Application to the Tribunal for review of decision concerning recognition payment

(1) An applicant for a recognition payment who was aggrieved by the decision of the decision maker in respect of the application may apply to the Tribunal for a review of the decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment. (emphasis added)

12. Section 51(2) is worded in what has been considered by this Tribunal and as I understand it, the Commissioner in a somewhat unclear manner where it refers to,

“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 review of the decision made by the Commissioner.”

13. In essence the application to this Tribunal was out of time. However that is not the end of the matter.

Leave to proceed

14. In a case BGD v Commissioner of Victims Rights [2014] NSWCATAD 181 published on 27 October 2014 I made a decision which in part addressed the problem facing the applicant in these proceedings. I worked through the apparent conflict between parts of Division 7 of the Victims Rights and Support Act 2013 and also tried to examine and apply the relationship between that Act and the Administrative Decisions Review Act 1997 which I refer to as the “ADR Act”.

15. In that decision I focused on section 55 of the ADR Act where I looked at the provisions. Quoting my decision from ‘BGD’ at paragraph 34, I said the following:

Section 55 (3) of the 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 section 55 (4) provides discretionary exceptions to that requirement.

16. At paragraph 35 of ‘BGD’ I stated:

Section 55 (4) (a) provides that I can review the matter (in the absence of an internal review) if I am satisfied that the Commissioner '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)

17. At paragraph 36, I went on to consider that in the facts before me in that matter the provision did not apply. However I moved on to s 55(4) (b) at paragraph 38 of ‘BGD’ where I decided that there is a discretion to consider a matter where there has been no internal review. Quoting from paragraph 38,

Alternatively, the provisions of section 55 (4) (b) provides a discretion to consider a matter where there has been no internal review. That provision provides that I can deal with the matter if: 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.

The issue relating to the 'applicant's interests' goes to the substance of BGD's claim and is bound up in the substantive issue. As the substantive issue before the Tribunal will fail, for reasons that I will set out later, unfortunately I am unable to make a finding in accordance with section 55 (4) of the ADR Act and accept the application for review.

18. These proceedings differ from ‘BGD’ in that the current proceedings, I am of the view that the substantive claim will succeed. On that basis under section 55(4)(b) of the ADR Act I propose to determine the matter as

“It is necessary for the Tribunal to deal with the application in order to protect the applicant’s interest and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.”

19. In that regard the application to this Tribunal was lodged on 11 June and bearing in mind the applicant’s return from overseas and the discussion between her and the Commissioner’s delegates in February and March as to how the matter cannot be dealt with by the Commissioner, I give leave for the application to proceed in the absence of a review.

Decision on the merits

20. The Tribunal has received section 58 material from the respondent and a number of documents annexed to the application and further documents provided from the applicant through the Commissioner to the Tribunal today.

The applicant has given evidence by telephone on oath and a support person who is also a treating professional Ms L B has also given evidence by telephone today. The Tribunal has been assisted by an interpreter in Indonesian language and relevant dialect.

21. The evidence consisted of a large amount of instances where, what might be considered domestic violence, took place between the applicant and her then husband. I note there were two children in the relationship. The applicant’s evidence is she was married for 16 or 17 years. Domestic violence occurred since the time that they were married.

22. A number of instances were referred to. I will summarise these and by doing so I do not intend to diminish the impact of those matters in any way. The allegations consist of: financial abuse, verbal abuse, forms of intimidation, belittling and public shaming of the applicant. It is clear that all these matters were designed to impact upon the applicant in a detrimental way.

23. The applicant also gave evidence about some matters that happened in Indonesia. Unfortunately those matters cannot be considered by the Tribunal because the Act only extends to incidents which occur within the boundaries of New South Wales. There was also evidence of physical and verbal abuse and intimidation in a public place, being a shopping plaza where security personnel became involved.

24. The predominant problem that the applicant faced was that notwithstanding the general term of domestic violence, the trigger relates to what one might refer to as a physical assault, that is the laying on of hands or touching of the person without consent. In tort law mere words can constitute an assault but in the domestic violence context applicable to crimes in this jurisdiction, a domestic violence offence usually covers physical matters as well as other matters but it may cover non-physical matters where there is some order or other mechanism in place to protect a person in need of protection. Victims compensation will however require (by the meaning of section 19 of the Act), some form of offence against the person, which ordinarily would be physical, in the absence of any order in place to prevent an approach, stalking, harassment, intimidation, or contact.

25. If an interim or final order was in place, any breach may (depending on the evidence) be sufficient to meet the terms of section 19.

26. There is no evidence before the Tribunal that any orders or similar matters were in place at the time of these incidents. However, during the hearing the Tribunal received evidence of an assault with a rolled newspaper and another assault was referred to in the counselling notes dated 9 December 2014. In correspondence from the domestic violence support staff at Women’s Resource and Information Centre refer to the fact that the applicant had been accessing the services since 2011 in relation to her experiences of violence and abuse in her marriage.

27. I take the term “violence” to involve both physical and psychological or verbal violence. There are other references within the material in particular in a letter dated 4 April 2014 from the Women’s Resource and Information Centre signed by counsellor, Ms L.B., who I note gave evidence in the proceedings today, under the paragraph titled “History”. When reporting on a matter not directly related to any victims compensation application the following is said,

“Since pregnant with (‘J’), their first child (BXB) described numerous incidents of domestic violence and abuse in the relationship particularly in the forms of physical, social, emotional, verbal and financial abuse. Throughout the marriage police have attended and there have been incidents of violence and abuse.”

28. I am placing emphasis on the reference to the direct reporting of physical violence. That was consistent with evidence given during the hearing. On the basis of that material I find that the applicant is a victim of an act of violence within the meaning of s 19 of the Act. She has been the victim of behaviour which apparently occurred in the course of the commission of an offence and involved violent conduct against the applicant. Based on the medical material on file by way of counselling reports and other matters, those acts of violence have resulted in injury to the applicant.

29. Before turning to the type of recognition payment I am obligated to have a look at any matters which would be a reason for not approving or giving support or reduce the amount of support or recognition payment to the applicant. Those matters are set out at section 44 of the Act. I note that at section 44(2) the Act specifically refers to matters where an applicant/victim may not report matters to police, because they may be intimidated by a perpetrator. In essence that section requires the Commissioner or their delegate and the Tribunal to consider mitigating circumstances.

30. A relevant issue also is the fact that in this material before the Tribunal the applicant was alleged to have perpetrated some form of violence against the perpetrator. That involved an allegation concerning the throwing of a cup of hot water or tea over the other party by the applicant. That has been dealt with in the evidence and I particularly have regard to the submissions made by the Women’s Information Resource Centre in respect of the police conduct and action in taking the applicant into custody and not availing her of an interpreter. The circumstances of the offence and also the fact that the witness, Ms B, was able to give evidence about how the victim presented immediately following release from custody, in my view carry significant weight.

31. The evidence was that she was visibly distressed, cried and was sobbing. In my view in the absence of any serious matters, there are no section 44 issues which would impact on this claim.

32. The more difficult issue is the matter of recognition payment. It is clear that this dysfunctional relationship, for want of a better expression, has had a terrible impact on the applicant. 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.

33. There is evidence about treatment, counselling and also medical treatment by way of prescription medication. I do not have specific details of those matters before me. However, the Act refers to a range of recognition payments. The important considerations in this claim are whether an assault has resulted in grievous bodily harm or whether the result of the assault is not grievous bodily harm. The relevant sections are section 35(3) (c) and section 35(4) (d) of the Act.

34. As I said earlier it is clear that on the evidence before the Tribunal the impacts are quite devastating. However there is no psychological or psychiatric report before the Tribunal. In that I mean a psychological report from a clinical psychologist or psychiatrist to establish 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.

35. In my view it would appear that the applicant is significantly impaired in her functioning. However, I can only make such a finding from an evidentiary perspective if there is cogent relevant evidence before me. The applicant was asked whether she wished to rely on the medical information put before the Tribunal and she advised that she did. One of the difficulties is that the current Act provides different classes of recognition payments and in this sort of instance any claim based on grievous bodily harm arising from a psychological condition would have to have a serious impact.

36. I am very conscious of the fact that the applicant has been abused and violated and her life may never be the same as a result of this. However the Act provides that I must be satisfied that she has suffered grievous bodily harm in order to receive a category C recognition payment. As I have indicated grievous bodily harm in the absence of significant physical injuries is a difficult matter to ascertain in the absence of very strong expert evidence. Even if a report was available it may not establish the link between the meaning of the words “grievous bodily harm” when what presents is a psychological disorder.

Orders

37. On the basis of all the evidence before me I am bound by the provisions of the Act to make an order under s 35(4) (d) in that the applicant is entitled to a category D recognition payment.

38. The Commissioner and the applicant will receive a brief order which indicates the orders made today and the amount of payment.

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: 20 August 2015