CBU v Commissioner of Victims Rights

[2015] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CBU v Commissioner of Victims Rights [2015] NSWCATAD 196

Hearing dates:

21 August 2015

Date of orders:

28 September 2015

Decision date:

28 September 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. Pursuant to s 63 (3) (c) of the Administrative Decisions Review Act 1997, the decision of the Assessor dated 13 January 2015 is set aside and I make the following decision in substitution for that decision.

 

2. The applicant was more probably than not the primary victim of an act of violence pursuant to s 19 and s 20 of Victims Rights and Support Act 2013.

 

3. The applicant was the victim of an assault resulting in grievous bodily harm and would have been eligible for a Category C recognition payment in the sum of $5,000 pursuant to s 35 (3) (c) of the Victims Rights and Support Act 2013 and cl 12 of the Victims Rights and Support and Regulation 2013.

 

4. However, grounds for reduction of the amount of the recognition payment exist pursuant to s 44 (1) (e) of the Victims Rights and Support Act 2013 and the Tribunal is satisfied that it is appropriate to reduce the amount of the recognition payment to $3,500, which represents a 30% reduction.

 

5. In addition, the applicant is eligible for a special grant of in the sum of $5,000 pursuant to cl 5 (3) of sch 2 of the Victims Rights and Support Act 2013.

 6. However, pursuant to s 45 (1) of VRSA, I order the amount of the award to CBU is to be reduced by $1,000 by way of set off against the restitution order dated 23 November 2004.

Catchwords:

Victims rights and support – administrative review – application of Schedule 2 of Victims Rights and Support Act 2013 to application for compensation – Internal Review sought out of time – Application made within a reasonable time following the Assessor’s decision - Necessary for the Tribunal to deal with the Application in order to protect the applicant’s interests – Failure to provide reasonable assistance to pursuant to s 44 (1) (e) of the Victims Rights and Support Act 2013 - Reduction in amount of recognition payment – Set off against previous restitution order – set off amount capped

Legislation Cited:

Victims Support and Rehabilitation Act 1996 (NSW)
Victims Rights and Support Act 2013 (NSW)
Victims Rights and Support Regulation 2013 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Children Criminal Proceedings Act 1987 (NSW)

Cases Cited:

Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 355

Texts Cited:

Statutory Interpretation in Australia 5th Ed Pearce and Geddes (Butterworth's)

Category:

Principal judgment

Parties:

CBU (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:

  CBU (Applicant in person)
S Matulewicz, Victims Services (Respondent)

File Number(s):

1510379

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

Background Summary and Original Determinations

1. CBU who is aged 34 years (DOB: 28 February 1981) lodged an Application for Compensation under the Victims Support and Rehabilitation Act 1996 (NSW) (“the old Act”) on 5 August 2011. He alleged that he had been the primary victim of an act of violence that occurred at Sadlier, in New South Wales, on 14 October 2010. He said that he was assaulted while he was living in shared accommodation and that he suffered a cut to his right hand with a knife during the assault.

2. CBU stated that he reported the assault to Police at Green Valley, in New South Wales, on 14 October 2010, but said that he did not know the name of the offender(s). He nominated the compensable injuries of “Domestic Violence” and “Psychological: Chronic disorder that is disabling” and also an injury that was not listed in Schedule 1 of the old Act, namely “Cut tendons on right hand causing ongoing disability over 10 months”.

3. CBU was initially legally represented by Brydens, Lawyers. However, he is not legally represented in relation to this Application for Administrative Review.

4. I refer to the Police COPS Event Record (E41736060) dated 14 October 2010, which contains the following narrative:

The premises is a six bedroom premises of which five of the bedrooms are rented out to separate tenants. Witnesses 1, 2, 3 and 5 currently reside at the premises along with the owner who lives in the front bedroom of the premises. Each individual room is locked to prevent unauthorised access.

The victim was a prior resident at the location and had been there for two weeks having moved out last night (13/10/2010). Police were called to an incident at that location involving the victim and witnesses 1 and 4 last night (13/10/2010). COPS Event E42478421 relates.

At the stated time … contacted Police to report a fight at the premises. Police arrived a short time later to find large amounts of blood on the kitchen floor, hallway, walls and in the bathroom and shower of the premises. Police spoke to the persons present at the location (witnesses 1 to 4) who confirmed that the victim had arrived at the premises earlier and was involved in a fight with an unknown person.

Police spoke with witnesses … and … who were in the process of cleaning up the blood left in the kitchen area… were directed to stop cleaning the premises and their clothing seized.

Neither of the witnesses present at the premises were able to give an account of how the blood came to be on the floor, what happened during the incident or how the injuries may have occurred…

Enquiries were made with neighbours where it was confirmed the victim was seen running from the premises followed by two unknown males. The victim was seen running down ….Road …chased by the males. One of the males chasing the victim was seen holding a knife. The victim returned to the location around ten minutes later where he got into a silver coloured Honda and drove from the location in an unknown direction…

5. The COPS report also indicates that on 15 October 2010, Police from Green Valley Police Station attended Liverpool Hospital in order to speak with CBU, as he had admitted himself to the hospital for treatment for injuries suffered as a result of the incident on 14 October 2010. It indicates:

The victim had been to his family doctor… at Cabramatta yesterday to be treated before later attending Liverpool Hospital. The victim waited at the hospital for three hours before leaving.

The victim attended today where he gave a number of differing versions to Police as to how he had obtained his injuries.

Detectives attended Liverpool Hospital where the victim was seen and spoken to. The victim had suffered deep lacerations to the four fingers on his right hand. The victim stated that he received the wounds trying to prevent being stabbed and grabbing the knife.

The victim was asked if he know who his attackers were and stated that the offenders lived at his previous address … and as he had only lived there a short time did not know their names.

Attempts were made to make arrangements to obtain a formal statement from the victim. The victim refused to make arrangements and stated that he was not a ‘dog’. The victim stated that he did not know what would happen if he provided a statement and believed that he would be killed if returned to gaol as the male person that had stabbed him was a big time criminal and had been previously housed in the Supermax facility at Goulburn Gaol. The victim stated over and over that he did not want to give a statement to Detectives and was concerned that he would be hurt some way if he gave a formal statement…

6. Detectives stated that they spoke to a doctor at Liverpool Hospital, who confirmed that CBU would be undergoing surgery to repair tendons and nerve damage to his right hand; that this would take place either that day or the following day; and that he would be in hospital for one to two days recovering. However, on 17 October 2010, when the Detectives returned to Liverpool Hospital to see CBU, they were advised that he was discharged on 16 October 2010. Attempts were made to contact him on a number of mobile telephone numbers were unsuccessful and no contact had been received from him since his discharge from Hospital.

7. Victims Services issued Notices to Liverpool Hospital, Yagoona Medical Centre and Waldron Road Family Medical Practice requiring production of their records in relation to CBU’s injury on 14 October 2010.

8. On 2 October 2012, Liverpool Hospital replied that there was no record of CBU attending the hospital for treatment on 14 October 2010. This conflicts with the evidence contained in the Police COPS report, although I note that Police spoke to CBU and a doctor in the hospital on 15 October 2010, but the request for production specifically referred to an attendance on 14 October 2010. This is possibly why the Hospital failed to locate and produce any records to Victims Services.

9. Yagoona Medical Centre did produce a copy of the clinical notes relating to CBU. However, these commence in 2011 and contain no reference to any hand injury in 2010. Similarly, Waldron Road Family Medical Practice also produced their clinical notes relating to CBU, but these do not refer to the injury that is the subject of the Application for Compensation.

10. On 7 December 2011, Brydens wrote to CBU and advised him that owing to legislative amendments that took effect on 1 January 2011, they were ceasing to act for him. Thereafter, there is no evidence of contact from CBU until 27 September 2013, when he telephoned Victims Services. The File Note of that date indicates:

Applicant rang following up status of claim.

No medical evidence. Liverpool Hospital have no record of attending emergency department. Response to Requirement to Produce for Yagoona Medical Centre relates to wrong date. Applicant says he has documents from Liverpool Hosp. and will fax them in.

11. While I note that CBU faxed Discharge Referrals from Liverpool Hospital dated 10 March 2011 and 7 April 2011 and radiology reports from Dr Cohen dated 1 February 2011 and 8 February 2011 to Victims Services on 30 September 2013, none of these documents refer to the relevant injury.

12. On 1 October 2013, Victims Services wrote to CBU, acknowledging receipt of his fax dated 30 September 2013 and confirming that those reports do not relate to the injury alleged in his Application. It advised CBU, relevantly:

…You advised that you had seen a Dr Virulhapan in Cabramatta but he was not nominated on the Medical Information Release form you sent to Victims Services. Do you wish to have Dr Virulhapan’s records produced?

13. On 13 January 2015, the Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 VRSA and determined that there was insufficient evidence to establish, on the balance of probabilities, that CBU was the primary victim of an act of violence pursuant to s 19 and s20 of the old Act. The Application was therefore dismissed. In making that determination, the Assessor provided the following reasons:

Introduction

1. (CBU) lodged an application for statutory compensation as a primary victim under the Victims Support and Rehabilitation Act 1996 on 5 August 2011. On 7 May 2013 the New South Wales Government introduced changes to the types of support provided to victims of violent crime in NSW. The changes were introduced in the Victims Rights and Support Act 2013 (“the Act”), which replaces the Victims Support and Rehabilitation Act 1996 (“the previous Act”).

2. The Act commenced on 3 June 2013. Clauses 4 and 5 of Schedule 2 of the act effectively state that from 7 May 2013 onwards, applications that were lodged but not finally determined under the previous Act should be determined as if they were lodged under the current Act.

3. This means that (CBU’s) claim will be determined under the provisions of the Victims Rights and Support Act 2013 as an application for victims support.

Support available to Primary Victims

4. Primary victims who lodged an application for statutory compensation under the Victims Support and Rehabilitation Act 1996 are eligible to claim victims support under the current Act in the nature of counselling services, as well as payment in recognition of the trauma they have suffered. The recognition payment replaces any claim made in relation to ‘compensable injury’ under the previous Act.

5. Pursuant to Schedule 2, clause 5(3), support approved under the present Act to a primary victim who lodged a claim under the previous Act, does not encompass claims for “financial loss” (expenses, loss of earnings and loss of personal effects) sought under section 18 of the previous Act.

Primary Victim of an Act of Violence

6. An act of violence is defined by section 19 of the Act as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury to a person.

7. The applicant is applying as a ‘primary victim’. The primary victim of an act of violence is defined as, relevantly, a person who sustains an injury as a direct result of that act (section 20).

8. According to the application form on 14 October 2010, the applicant was a victim and sustained injury as a result of an assault, committed by unknown offenders at Sadlier, NSW.

9. It is alleged that the applicant’s right hand was cut with a knife, when he was defending himself from the alleged assault.

10. In addition to the application form, I have considered the police reports and medical evidence, together with the whole of the other documents on the applicant’s file.

11. Police reported they were called to the residence at …, Sadlier, where the assault on the applicant was alleged to have taken place. The scene was examined and exhibits collected. The applicant was not present when police arrived, and his whereabouts were unknown at that time.

12. The following day the applicant was spoken to by detectives about the incident and stated that he was not able to identify the males and gave differing versions of the events which led to his injury. Therefore, police were unable to ascertain what actually happened, how the applicant was injured, and who the offenders were. Consequently, police were unable to further investigate the matter.

13. I further note that Liverpool Hospital, in its letter to Victims Services (dated 2 October, 2012), advised there is no record of the applicant having attended hospital for treatment of the stated injuries. The other medical evidence on file does not correlate to the alleged incident.

14. Having considered the available material, it is apparent that the details of the incident are not confirmed or clarified. It cannot be ascertained what exactly occurred, how and why the applicant was injured, and the nature and extend of the injury sustained. Therefore, an act of violence cannot be established, on the balance of probabilities, for the purposes of Section 19 of the Act.

Conclusion and Orders

15. An act of violence is not established.

16. The application for victims support is therefore dismissed.

17. As I have not found an act of violence established, the claim is dismissed. By dismissing the application, I am not stating that the claim is definitely false or ingenuous. My finding is based on the fact that there is insufficient independent evidence on the file to establish that the applicant was the victim of an act of violence.

The applicant is therefore not eligible to receive a Schedule 2 Clause 5(3) grant.

14. A copy of the Notice of Decision was sent to CBU by post on 13 January 2015. It was posted to an address in Liverpool, being the address indicated in the letter from Brydens to himself dated 7 December 2011. This was the last recorded address recorded by Victims Services.

15. However on 9 June 2015, CBU sent a fax to Victims Services, in which he stated: I need to get my case review (sic)”.

16. On 12 June 2015, Victims Services wrote to CBU, acknowledging receipt of the request for internal review of the Assessor’s decision, and advising him that the legislation allowed internal reviews to be considered where a written request was received within 28 days of the date of the decision. It advised him that his request was made out of times and that it had no discretion to extend the permitted time. Therefore, the request for review was declined.

Application for Administrative Review

17. On 3 July 2015, CBU lodged the current Application for Administrative Review of the Assessor’s decision, which indicated that he sought a review on the following grounds:

Outside of 28 days (over the time allowed).

He stated that the Application was lodged outside the time allowed because he did not receive the Notice of Decision.

Consideration

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

19. The Application for Administrative Review came before on 21 August 2015, when CBU appeared in person and Mr Matulewicz appeared for the Respondent. The Respondent had lodged the documents required by Section 58 of ADR Act and these were comprehensive and complete. I advised CBU that I had read the documents in the file and that as there was no statement from him, I invited him to explain in his own words what happened on 14 October 2010. He replied, words to the effect:

I heard a knock at my door. I opened it and a person asked for money. I didn’t have any money. The other person started it. It’s all in the papers and you can read it for yourself.

20. I advised CBU that the documents in the file do not tell me what happened on 14 October 2010 and I referred him to the Police COPS Event report in the Respondent’s s 58 documents. CBU stated that he had not received those documents and Mr Matulewicz made a copy of the documents available to him. CBU then stated, words to the effect:

I do not want to answer any questions about how it happened.

21. However, CBU then said that the Police report was wrong; that the second man that was seen running after him was ‘a friend’ and that he did not drive away in a motor vehicle. I asked him where and when he received medical attention and he replied that he had gone to Liverpool Hospital “a few days later” and that he had been in hospital for about 2 weeks. However, I note that this conflicts with the evidence in the Police COPS report. He also asserted that after he was discharged from Liverpool Hospital, he saw a doctor at an Outpatients Clinic and also had physiotherapy (both at Liverpool Hospital). He said that his hand is now “60% better”.

22. I noted that there are no medical records that relate to the injury that is the subject of the Application for Compensation. However, CBU replied to the effect that he had sent all of the medical evidence to Victims Services and that I could read the evidence for myself.

21. On behalf of the Respondent, Mr Matulewicz confirmed that he had served a copy of the s 58 ADR Act documents on CBU at his last known address. He also submitted that as CBU had not applied for an internal review of the Assessor’s decision within the permitted time, it was necessary to consider the merits of the matter pursuant to s 55 of the ADR Act. If the procedural issue could be resolved and the Tribunal was satisfied that more probably than not CBU had been the primary victim of an act of violence, it was necessary to apply s 44 of VRSA in determining whether or not to approve the granting of victims support. He submitted that if the Tribunal was then minded to approve the giving of victims support, a Category C Recognition Payment would be appropriate.

22. Mr Matulewicz also stated that a Provisional Order for Restitution had been made against CBU on 24 April 2001 and that if the Tribunal approved a grant of victims support, the Respondent sought a set off order for the maximum amount of $1,000 against that grant as the Provisional Order was made in respect of a “juvenile conviction”.

23. I have read and considered all of the evidence that was before the Assessor (Client Services) in relation to the application and the s 58 documents lodged by the Respondent, as well as the oral submissions made during the hearing of the current Application. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons.

Jurisdiction to determine the current Application for Administrative Review

26. S 55 (3) of the ADR Act provides:

(3)  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).

27. However, , s 55 (5) of the ADR Act provides:

(5)  In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:

(a)  the time when the applicant became aware of the making of the decision, and

(b)  in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c)  such other matters as it considers relevant.

28. In the current matter, there is no evidence that the Respondent unreasonably refused to consider the application for internal review, as the Respondent has no power to extend the time in which an application for internal review may be made under s 49 (2) of VRSA.

29. It follows that this Tribunal may deal with the current Application for Administrative Review if it satisfied that it is necessary to do so in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the decision of the Assessor (s 55 (4) (b) of VRSA).

30. S 55 (4) of the ADR Act provides:

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:

(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(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.

31. In considering whether CBU made his current application within a reasonable time, I note his oral evidence that he did not receive the Assessor’s decision and did not apply for an internal review before 9 June 2015. Otherwise, the evidence before me indicates that he moved from Liverpool to Potts Point after the Application for Compensation was lodged and before he applied for an internal review of the Assessor’s decision, although the date on which he moved and/or the date upon which he notified Victims Services of his change of address is not indicated in those documents.

32. I am prepared to accept that CBU did not receive the Assessor’s decision within the time required to enable him to apply for an internal review pursuant to s 49(2) of VRSA and that he lodged his current application within a reasonable time after he became aware of that decision. Victims Services then refused to consider his application for internal review and it is clearly necessary for the Tribunal to deal with the application in order to protect CBU’s interests.

33. I am therefore satisfied that this Tribunal has jurisdiction to determine the current Application for Administrative Review.

Act of Violence

34. S 23 (1) of VRSA provides that a primary victim of an act of violence is eligible for the support under the Scheme described in s 26 of VRSA. Further, “act of violence” is defined in s 19 of VRSA as follows, relevantly:

(1)  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.

(2)  For the avoidance of doubt, the reference to an offence in subsection (1) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

35. S 20(1) of VRSA defines “primary victim of an act of violence” as “… a person who is injured… as a direct result of that act.”

36. The onus is on CBU to prove his allegations of assault on the balance of probabilities. It is of significant concern to this Tribunal that during the hearing of the current Application, CBU advised the Tribunal that he did not wish to answer any questions about how the alleged act of violence occurred. As he did not provide a statement to Police, the only evidence about what happened is set out in the Application for Compensation. However, that is in the form of a Statutory Declaration and in the absence of evidence that contradicts it, I am prepared to find that CBU was more probably than not the primary victim of an act of violence, being an assault that occurred on 14 October 2010, and that he suffered a laceration injury to his right hand as a direct result of that act.

Eligibility for Compensation

37. In the current matter, while the Applications for Compensation were lodged while the old Act was in force, they were not finally determined by the Respondent before 3 June 2013, being the date upon which the old Act was repealed and VRSA commenced and the determination of the Applications for Compensation are therefore subject to by Sch 2 of VRSA.

38. Sch 2 of VRSA provides, relevantly:

Schedule 2 Savings, transitional and other provisions

Part 2 Provisions consequent on enactment of this Act

2   Interpretation

(1)  In this Part:

introduction day means the day the Bill for this Act was first introduced into Parliament.

statutory compensation means statutory compensation within the meaning of the repealed Act.

the repealed Act means the Victims Support and Rehabilitation Act 1996 as in force immediately before its repeal by this Act.

(2)  For the purposes of this Part, proceedings are not finally determined if:

(a)  any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b)  any appeal in respect of the proceedings is pending (whether or not it is an appeal brought as of right).

4   Statutory compensation scheme closure

(1)  Statutory compensation is not payable after the introduction day unless an application for the statutory compensation was finally determined before that day.

(2)  Statutory compensation that would have been payable (less any deductions under section 19A of the repealed Act) from the Victims Compensation Fund pursuant to an application that was finally determined before the introduction day is payable (less such deductions) from the Victims Support Fund under this Act.

5   Applications for compensation under statutory compensation scheme

(1)  An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.

(2)  The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both.

(3)  The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund.

(4)  In subclause (3):

prescribed period means:

(a)  the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or…

(5)  Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act…

39. In the case of Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355, Brennan CJ noted the following matters:

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".

63 Whilst it is fair to observe that there are a small number of conflicts within both the VRSA and the old Act as well as conflicts between those Acts, the predominant observation that I make is that those conflicts seek to limit rather than exclude recovery for victims of violent crime.

64 In Statutory Interpretation In Australia (5th Edition Pearce and Geddes) the issue of beneficial legislation is addressed. (pg 15)

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... What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under a threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches.'

40. In relation to pending applications under the old Act, cl 5 is proscriptive and unambiguous. I have examined the Legislative Review Committee Report on the Bill (which became VRSA) and have determined that it is clear that the issue in BXH’s matters were of some concern to the Committee, as follows:

Retrospectivity affecting victims

133. Clauses 4 and 5 of Schedule 2 to the Bill require compensation applications that have not been finalised before the Bill was introduced into Parliament to be dealt with under the new support scheme proposed by the Bill rather than the Victims Support and Rehabilitation Act 1996.

Given the potential for different compensation outcomes under the provisions of the Bill compared to the Victims Support and Rehabilitation Act 1996, the Committee refers to Parliament whether it is appropriate to require existing applications for victims compensation to be dealt with under the provisions of the Bill rather than the Victims Support and Rehabilitation Act 1996.

41. Given the concerns of the Committee, it appears that these issues were considered and were seen to be of no great concern as they were not included in the various amendments to VRSA following its introduction and subsequent passing by the two chambers of the Parliament. In any event, CBU’s entitlements under the scheme were affected by the repeal of the old Act and by operation of cl 4(1) of sch 2 of VRSA, he is not eligible for statutory compensation pursuant to Sch 1 of the old Act as his Application for Compensation was not finally determined before 3 June 2013.

42. As a result, this Tribunal is required to assess the Application for Compensation as if it was an Application for Victims Support lodged under VRSA. Based upon the available evidence, CBU is eligible for a recognition payment in respect of his Application for Compensation and I am satisfied that he is eligible for a Category C recognition payment pursuant to s 35 (3)(c) of VRSA on the basis that he was the primary victim of an assault resulting in grievous bodily harm.

Section 44 Factors

43. S 44 of VRSA provides, relevantly:

(1)  In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following:

(e)  whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,…

44. In the current matter, the Police COPS Event report indicates that CBU provided the police with various versions of what had occurred on 14 October 2010 and that he declined to make a formal statement and told them that he was ‘not a dog’. As a result, Police were unable to further investigate the matter.

45. In my view, CBU’s decision not to provide a statement to Police is evidence that he failed to provide reasonable assistance to a duly engaged investigative body for the purposes of s 44 (1) (e) of VRSA. I have decided that it is appropriate to reduce the amount of the recognition payment to reflect that failure.

46. In view of the reasons that CBU gave to Police for not providing them with a statement, namely concerns for his personal safety if he provided such a statement, I have decided that not to refuse to approve the giving of victims support, but that it is appropriate to reduce the amount of the recognition payment and that a reduction of 30% is appropriate in all of the circumstances.

47. In addition, by operation of cl 5 (3) of sch 2 of VRSA, CBU is eligible for a special grant from the Victims Compensation Fund as he lodged his Application for Compensation within two years of the act of violence.

48. However, the issue of whether a previous restitution order that the Respondent made against CGU should be set off against the this grant of victims support is deferred for determination in Chambers and the parties are requested to file and serve written submissions on this issue.

Determination

49. Pursuant to s 63 (3) (c) of the Administrative Decisions Review Act 1997, the decision of the Assessor dated 13 January 2015 is set aside and I make the following decision in substitution for that decision.

1. CBU was more probably than not the primary victim of an act of violence pursuant to s 19 and s 20 of VRSA.

2. CBU was the victim of an assault resulting in grievous bodily harm and would have been 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 and Regulation 2013. However, the amount of the recognition payment is reduced by 30% pursuant to s 44 (1) (e) of VRSA and CBU is eligible for a recognition payment in the sum of $3,500.

3. In addition, CBU applicant is eligible for a special grant of in the sum of $5,000 pursuant to cl 5 (3) of sch 2 of VRSA.

50. However, the Respondent has sought an order pursuant to s 45 of VRSA, which provides:

45   Determination for restitution may be set off against amount of financial support or recognition payment

(1)  For the purpose of giving effect to a determination for restitution under Part 5 that has been made or is to be made against a person in respect of whom approval for the giving of financial support or making of a recognition payment has been given, the Commissioner may reduce the amount of financial support to be given or recognition payment to be made by the amount of the determination for restitution or proposed determination for restitution.

(2)  On the reduction under this section of the amount of victims support to be given or made, the person is taken to have paid the amount of the determination or proposed determination for restitution to the extent of the reduction.

51. On 23 November 2004, pursuant to s 48 of the old Act, the Victims Compensation Tribunal confirmed a Provisional Order for restitution that was made against CBU pursuant to s 46 of the old Act. That order related to a conviction for the offence of Common Assault that was entered by Lidcombe Children’s Court on 15 January 1997 and was in the sum of $7,513.

52. As the order for restitution was made under the old Act, it is subject to sch 6 Savings, Transitional & Other provisions of VRSA. Cl 16 (2) provides, relevantly:

16   Recovery proceedings against offender for amount payable under statutory award of compensation

A provisional order for restitution made in respect of a statutory award of compensation under Division 8 of Part 2 of the repealed Act before its repeal is (unless notice of objection to the order has been filed and proceedings on the notice have not been finally dealt with) taken on that repeal to have been made by the Commissioner under Part 5 of this Act and is to be dealt with accordingly.

53. Therefore, the Restitution Order dated 23 November 2004 is taken to have been made by the Respondent under Part 5 of VRSA. Therefore, it can be the subject of an order for set off pursuant to s 45 of VRSA. However, a juvenile at the time of the relevant conviction s 36 of the Children (Criminal Proceedings) Act 1987 applies. This provides, relevantly:

36   Compensation

(1)  If the Children’s Court makes an order under a paragraph of section 33 (1) it may, under section 94 or 97 of the Victims Rights and Support Act 2013, give a direction for the payment of compensation by the person.

(2)  In deciding whether or not to require a person to pay compensation, the Children’s Court shall have regard to the person’s means and income, if any.

(3)  The maximum amount of compensation that may be awarded is:

(a)  the amount that is equivalent to 10 penalty units (in the case of a person who is under the age of 16 years at the time the order is made), …

54. Therefore, the set off that can be ordered pursuant to s 45 of VRSA is capped at $1,000. I make an order for set off in that sum pursuant to s 45 (1) of VRSA and note that pursuant to s 45 (2) of VRSA, upon this reduction CBU is taken to have paid the amount of $1,000 by way of restitution.

Conclusion

55. I make the following orders:

1. The decision made by the Assessor on 13 January 2015 is set aside;

2. Award for CBU in the sum of $8,500.

3. However, pursuant to s 45 (1) of VRSA, I order the amount of the award to be reduced by $1,000 by way of set off against the restitution order dated 23 November 2004.

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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