CDZ v Commissioner of Victims Rights

[2016] NSWCATAD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CDZ v Commissioner of Victims Rights [2016] NSWCATAD 157

Hearing dates:

15 July 2016

Date of orders:

19 July 2016

Decision date:

19 July 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

By Consent, the decision of the Senior Assessor dated 19 August 2015 is set aside and the following decision is made in substitution:

 

“1. The applicant is eligible for a Category B recognition payment in the sum of $10,000.

 

2. The applicant is eligible for a special grant in the sum of $5,000.

 3. The approved payments are to be paid to the NSW Trustee and Guardian and are to be held for the applicant’s benefit until he attains the age of 18 years.”

Catchwords:

Victims Rights and Support – administrative review – Alleged sexual assaults over a period of time – Alleged offender not charged with any offence – Act of violence established on balance of probabilities – Recognition payment

Legislation Cited:

Victims Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013 (No. 2) (NSW)

Cases Cited:

CEL v Commissioner of Victims Rights [2016]
NSWCATAD 83

Category:

Principal judgment

Parties:

CDZ (Applicant)
Commissioner for Victims Rights (Respondent)

Representation:

Counsel:
T Hackett (Applicant)

  Solicitors:
C & M Lawyers (Applicant)
Victims Services (Respondent)

File Number(s):

1510557

Publication restriction:

A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

reasons for decision

Background

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 18 September, the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Compensation that was lodged on behalf of the applicant (known by the pseudonym “CDZ”).

2. On 14 November 2011, CDZ’s mother lodged an Application for Compensation on his behalf under the provisions of the VictimsSupport and Rehabilitation Act 1996 (“the old Act”),which alleged that he was the primary victim of acts of sexual assault that were perpetrated by his father over a period of time between 2008 and 2010, Nambucca Heads, NSW. He claimed compensation for the injuries of “sexual assault category 2 and sexual assault category 3”, but did not specify whether he suffered physical and/or psychological injuries as a result of the acts of violence.

3. I note that CDZ has been legally represented by C & M Lawyers throughout the course of his claim.

Evidence

4. The application for compensation asserts that the acts of violence were reported to NSW Police and I note that a COPS Event report was created on 11 March 2010. This indicates that between June 2008 and 26 January 2010, CDZ resided with the alleged offender, during which time the alleged offender asked him to engage in aggravated indecent acts upon him with his older sister. The alleged offender (who was already in gaol for earlier offences) was arrested on 11 May 2011 and was charged with “aggravated act of indecency”.

5. The available evidence also indicates that CDZ’s mother had consulted medical practitioners and psychologists about certain behavioural issues involving CDZ, but that he had not yet commenced formal counselling because of his young age.

6. I confirm that at the hearing of this matter, the Respondent conceded, and properly so in my view, that the available evidence indicated that CDZ had suffered a psychological injury as a result of the acts of indecency/sexual assaults perpetrated by his father.

Applicable Legislation

On 7 May 2013, the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The old Act was repealed and replaced by the VictimsRightsandSupportAct2013 (“the Act”).

7. The Act commenced on 3 June 2013. Cl 4 and cl 5 of sch 2 effectively provide that an application for compensation that was lodged under the old Actbut not finally determined by 7 May 2013 should be determined under theAct as if it was an application for victims support under the Act.

8. I confirm that the Respondent advised CDZ’s solicitors that the application would be determined under the new Act as if it was an application for victims support.

Decision at First Instance

9. On 21 November 2014, an Assessor (Client Claims) determined that CDZ had not established that he was the primary victim of an act of violence and dismissed the application. The Assessor noted that CDZ’s solicitors had sought extensions of time for the determination to the claim to enable them to lodge further evidence in support, but that no further evidence had been lodged.

10. I note that the Respondent served a copy of the Notice of Decision upon CDZ’s solicitors under cover of a letter dated 21 November 2014, and that this was posted on 24 November 2014.

Internal Review Decision

11. On 9 December 2014, CDZ’s solicitors requested an internal review of the decision dated 21 November 2014. I note that the subsequently requested further extensions of time to enable them to lodge further evidence in support of the application.

12. On 1 June 2015, the Senior Assessor deferred determination for a further period of 6 weeks and the Respondent served a copy of the Notice of Deferral upon CDZ’s solicitors under cover of a letter dated 11 June 2015. The date of posting of those documents is not indicated in the documents before me.

13. I note that CDZ’s solicitors subsequently filed a copy of clinical notes from CDZ’s treating General Practitioner.

14. On 19 August 2015, the Senior Assessor issued a Notice of Review Decision. The Senior Assessor determined that CDZ had not established that he was the primary victim of an act of violence on the balance of probabilities and dismissed the application.

15. I note that the Respondent served a copy of the Review Decision upon CDZ’s solicitors under cover of a letter dated 24 August 2015, and that this was posted on 27 August 2015.

Application for Administrative Review

16. 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.

Consideration

17. This matter came before me for directions on 27 May 2016, when CDZ was represented by Mr Coorey and the Respondent was represented by Mr Ting. I noted that the Respondent had also lodged short written submissions with its bundle of documents under s 58 of the ADR Act. I directed that CDZ file and serve any further evidence and submissions in support of the application by 17 June 2016 and that the Respondent file and serve any further submissions in relation to substantive issues by 1 July 2016. I listed the matter for hearing on 15 July 2016.

18. At the hearing on 15 July 2016, CDZ was represented by Mr Hackett of Counsel and Mr Ting again appeared for the Respondent. CDZ had lodged further evidence and written submissions, but no further submissions were lodged on behalf of the Respondent.

Objection to jurisdiction

19. The Respondent’s written submissions dated 30 November 2015 were restricted to an objection to this Tribunal’s jurisdiction to determine the current Application. The objection was based upon the VictimsRights and Support Amendment (Transitional Claims) Regulation 2015(“the 2015 Regulation”). The Respondent argued that the right to administrative review of a decision with respect to a recognition payment arises under s 51 of the Actand that by operation of cl 18 of the 2015 Regulation,an application for compensation that was lodged under the old Actcan no longer be dealt with under cl 5 of sch 2 of the Actas if it is an application for victims support.Therefore, the decision of the Senior Assessor is not an administratively reviewable decision for the purposes of s 7 of the ADR Act.

20. I confirm that this Tribunal previously considered the Respondent’s objection to jurisdiction on those grounds in the matter of CEL v Commissioner of Victims Rights [2016] NSWCATAD 83 (“CEL”). The Tribunal determined that it was satisfied that it has jurisdiction pursuant to s 51 of the Act to determine an application for compensation that was lodged under the old Act, but not finally determined before 7 May 2013, despite the proclamation of the 2015 Regulation. The Tribunal held, relevantly:

Accrued Rights

40. The Respondent concedes, and in my view correctly, that the applicant’s right to apply to this Tribunal for administrative review may “truly be described as a right” (see: Esber)to which s 30 of the Interpretation Act 1987 applies.

41. The Applicant submits that in Esber, the High Court applied s 8 of the Acts Interpretation Act 1901 (Cth), which mirrors the Interpretation Actand held that in the absence of a clear intention to remove a right, s 8 operates to protect anything that may truly be described as a right, even though that right might be contingent or inchoate right. As a result, the applicant’s application for administrative review was not affected by the repeal of the relevant Act. Further, cl 18 of the amending Regulation makes no provision for retrospectivity and does not expressly deny or cut off accrued rights. Therefore, pursuant to s 30(1)(c) of the Interpretation Act and the principles expressed in Esber, cl 18 of the 2015 Regulation does not operate to exclude this Tribunal’s jurisdiction to determine the current application for administrative review.

42. The Respondent argues that the words of cl 18(2) clearly demonstrate an intention to affect accrued rights to apply for administrative review under s 51 of the new Act. In considering the intent and purpose of the amending Regulation, I refer to its Explanatory Note, which provides (relevantly):

The object of this Regulation is to amend the VictimsRights and Support Regulation 2013 to replace the previous arrangements for dealing with certain transitional claims for statutory compensation under the Victims Support and Rehabilitation Act 1996 (the former Act)with the following arrangements:

(a) a person who had applied for statutory compensation under the former Act, and whose application was not finally determined before the Bill for the VictimsRights and Support act 2013 (the new Act) was introduced into Parliament, will be able to apply for reassessment of that claim under the former Act not later than 1 September 2016,

(b) the scheme for converting any such claim into an application for victim support under the new Act will no longer apply,

…

(g) the only appeal against a decision on a reassessment application will be an internal review by the Commissioner of Victims Rights and the review provisions of the former Act will not apply,

…

This Regulation is made under the VictimsRights and Support Act 2013,including sections 16(f) and 117 (the general regulation-making power) and clause 1 of Schedule 2.

43. Paragraph (a) of the explanatory note clearly states the intention to confer a benefit upon those applicants who applied for statutory compensation under the old Act but whose claims were not finally determined before 7 May 2013 and were subsequently dealt with as if they were applications for victims support under the new Act. That benefit is the right to apply for the reassessment of their application under the compensation scheme provided for in the old Act.

44. However, I note that cl 19(3) of the amending Regulation restricts this benefit to applicants whose applications were determined in their favour, except where the ground for dismissal was that the applicant was a family or secondary victim who was not entitled to a recognition payment under the new Act.

45. I note that subject to administrative review of the respondent’s decision following internal review, cl 19(3) of the 2015 Regulation appears to make the applicant ineligible to apply for the reassessment of her application for compensation under the old Act. However, I am not concerned with whether or not she is eligible to apply for reassessment in due course, but rather whether her accrued right to apply for an administrative review of the Respondent’s decision is removed by cl 18 of the amending Regulation.

46. The 2015 Regulation does not expressly provide for the removal of an applicant’s accrued right to apply this Tribunal for an administrative review of an administratively reviewable decision under s 51 of the new Act. In fact, it makes no reference to the administrative review of decisions other than in relation to an application for statutory compensation that has been reassessed by the Respondent under the old Act.

47. In relation to those matters, I note that para (g) of the Explanatory Note provides:

the only appeal against a decision on a reassessment application will be an internal review by the Commissioner of Victims Rights and the review provisions of the Act will not apply.

48. This intention is expressly reflected in cl 27 of the amending Regulation, which provides:

27 Reviews of Determinations

Section 49 of the new Act (other than section 49(5) (c)) applies to a person who makes a reassessment application in the same way as it applies to a person who is an applicant for victims support.

49. In my view, if it was the intention of the legislature to remove the applicant’s right to apply to this Tribunal for an administrative review of an administratively reviewable decision under s 51 of the new Act, which right accrued prior to the commencement of the amending Regulation on 1 September 2015, the regulation should have expressly provided for the removal of that accrued right. However, it did not do so and I am not satisfied that this was the intention of the legislature.

50. I take notice of the fact that the Respondent wrote to the applicant’s solicitors following the commencement of the new Act, and advised them that the application would be dealt with as if it was an application for victims support under the new Act.

51. Cl 19(1) of the amending Regulation provides:

A person whose application for statutory compensation was lodged, but not finally determined, under the repealed Act before the day the bill for the new Act was first introduced into Parliament is eligible to make an application for reassessment of that application under this Division (a reassessment application).

52. However, cl 19(1) does not require a decision to have been made in respect of a transitional claim and all that an eligible applicant is required to do is to provide the Respondent with written notice of their wish to have their application reassessed under the old Act.

53. In applying the principles of interpretation expressed by the High Court in Goudappelto the current matter, I am of the view that by reading cl 18(2) of the amending Regulationin conjunction with and in the context of cl 19(1) of that Regulation, suggests that the intention of the amending Regulation was to make provision for the streamlined assessment of transitional applications that were not finally determined under the new Act before 1 September 2015 and in respect of which cl 19(1) conferred a right upon an applicant to apply for reassessment under the old Act.

54. I am not satisfied that the intention of the legislature was to remove the applicant’s accrued right to apply for an administrative review of an administratively reviewable decision under s 51 of the new Act in respect of a transitional application that was finally determined before 1 September 2015.

55. It follows that I am satisfied that s 30(1)(c) of the Interpretation Actapplies to this matter and that cl 18(2) of the amending Regulationdoes not affect the applicant’s right to apply to this Tribunal for an administrative review of the administratively reviewable decision of the Respondent under s 51 of the new Act.

56. Accordingly, I am satisfied that this Tribunal has jurisdiction to determine the current Application for Administrative Review.

21. I confirm that during the directions hearing on 27 May 2015, the Respondent withdrew its objection to jurisdiction in the light of the decision in “CEL”.

Act of Violence

22. S 23(1) of the Actprovides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

23. “Act of violence” is defined in s 19 of the Act 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…

(3)  For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4)  Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a)  they were committed against the same person, and

(b)  in the opinion of the Tribunal or the Commissioner:

(i)  they were committed at approximately the same time, or

(ii)  they were committed over a period of time by the same person or group of persons, or

(iii)  they were, for any other reason, related to each other.

(5)  An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

…

(7)  For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

24. S 19 (8) of the Act defines sexual assault as meaning (relevantly):

(d)  the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person, …

25. The onus is on CDZ to prove his allegations of sexual assault on the balance of probabilities. During the hearing on 15 July 2016, the Respondent conceded, and in my view properly so, that the available evidence establishes that CDZ was the primary victim of an act of violence on the balance of probabilities and that he had suffered a psychological injury as a result.

26. During the hearing on 15 July 2016, the Respondent conceded that the available evidence establishes on the balance of probabilities that CDZ was the primary victim of acts of violence (in the nature of sexual assaults) that occurred over a period of time from 2008 to 2010, and that he suffered a psychological injury as a result. In my view, this concession was properly made.

25. I note that the available evidence establishes that the acts of violence were perpetrated by the same offender and I am satisfied that they are a series of related acts pursuant to s 19 (4) of the Act.

Recognition payment

28. The Respondent has conceded that CDZ is eligible for a Category B recognition payment pursuant to s 35 (2) (b) of the Act,as he was the victim of a sexual assault, indecent assault or attempted sexual assault, involving violence, that is one of a series of related acts. I am satisfied that the available evidence supports a determination to that effect.

Special Grant

29. S 40 (5) of the Act provides:

An application for a recognition payment in respect of an act of violence involving domestic violence, child abuse or sexual assault must be made within 10 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 10 years after the day on which the child concerned turns 18 years.

30. Further, cl 5 (3) of sch 2 of the Act, provides:

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.

31. The Respondent has conceded that the application was lodged within the prescribed period and that CDZ is eligible for a special grant pursuant to cl 5 (3) of sch 2 of the Act. In my view, this concession was properly made.

Section 44 Consideration

32. I am required by the Act to consider whether there are any factors under s 44 of the Actthat would lead me to decline victims support to the applicant or to reduce any amount payable. I am satisfied that no s 44 factors have been made out in this matter.

Determination

33. By consent, pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Senior Assessor dated 19 August 2015 1 December 2014, and I make the following decision in substitution:

1. CDZ has established on the balance of probabilities that he was the primary victim of acts of violence that are a series of related acts and that he suffered psychological injury as a result.

2. CDZ is eligible for a Category B recognition payment in the sum of $10,000.

3. CDZ is eligible for a special grant in the sum of $5,000.

4. The approved payments are to be made to the NSW Trustee and Guardian and are to be held for the applicant’s benefit until he attains the age of 18 years.

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 June 2018