CFV v Commissioner of Victims Rights

[2016] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CFV v Commissioner of Victims Rights [2016] NSWCATAD 152

Hearing dates:

27 May 2016

Date of orders:

15 July 2016

Decision date:

15 July 2016

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. The time for filing the application is extended to 11 November 2015.

 

2. The decision of the Senior Assessor dated 1 December 2015 is set aside. In substitution for that decision the following decision is made:

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

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

Catchwords:

Administrative Review – Statutory interpretation - Jurisdiction to determine application for administrative review – Victims Rights and Support – Act of violence – Recognition payment

Legislation Cited:

Victims Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Victims Rights and Support Amendment (Transitional Claims) Regulation 2015
Administrative Decisions Review Act 1997
Civil and Administrative Decisions Act 2013 (No. 2)

Cases Cited:

CEL v Commissioner of Victims Rights [2016] NSWCATAD 83

Category:

Principal judgment

Parties:

CFV (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
CFV (Applicant in person)
Victims Services (Respondent)

File Number(s):

1510685

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

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 11 November 2015, 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 by the applicant (known by the pseudonym “CFV”).

Background

2. On 16 May 2012, CFV lodged an Application for Compensation under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”), in which she alleged that she was the primary victim of acts of violence (domestic violence and sexual assaults) that were perpetrated by her ex-husband over a period of time between 2000 and 2011, at Merrylands, NSW. She alleged that she suffered both physical and psychological injuries as a result and claimed compensation for the injuries of “domestic violence”, “sexual assault” and “psychological/psychiatric injury - category 2”.

3. I note that CFV was legally represented by Takchi & Associates in relation to the application and internal review, but she is not legally represented in relation to her current application for administrative review.

Evidence

4. A Police COPS Event report dated 16 October 2002, indicates that the alleged offender complained about a “domestic violence incident” that occurred at his home that day and alleged that CFV had attended his premises and that she bit him on the cheek during an argument. It names CFV as the “person of interest” and the alleged offender as “victim”, but it also indicates that each party gave conflicting versions of events and declined to provide formal statements. Police took no further action and, ultimately, the alleged offender signed a notice of retraction.

5. A further COPS Event report dated 19 May 2011, indicates that CFV’s eldest son complained to Police regarding a further domestic violence incident that occurred that day. He alleged that the alleged offender attended CFV’s premises and that he started an argument, during which he went to the kitchen and picked up a pair of scissors from the bench. He held the scissors against his stomach and threatened to stab himself and then stabbed himself once in the right thigh, resulting in a minor cut. The complainant tried to prevent him from further self-harming by trying to remove the scissors from his grasp and after removing them, he noticed a small cut to his right middle finger. CFV stated that the alleged offender was not happy with their relationship and that he was always finding an excuse to fight with her and the complainant. She also stated that he had threatened to shoot the whole family and then himself and that he had been threatening them regularly over the past few months. The complainant was taken by ambulance to Westmead Hospital by Ambulance for treatment. However, the alleged offender was treated at the scene and Police suspected that he suffered from mental health issues. They applied for an urgent AVO on behalf of CFV.

6. On 12 June 2012, Cynthia Hip-Waye, clinical psychologist, issued an Approved Counselling Report to the Respondent. I note that CFV gave a history that she had experienced domestic violence (including physical and emotional abuse) by the alleged offender for the past 17 years and that this occurred in front of her children. She said that on one occasion, the alleged offender sexually assaulted her in front of the children and that her eldest son ‘had to pull him off”. She also said that during the marriage the alleged offender was “involved in drugs; he was promiscuous”; and he suffered from mental illness (suspected as bipolar disorder) and that an AVO had been in place against him since May 2012. Despite this she remained very scared of the alleged offender as he held a shooting licence and she was also very concerned about her eldest son, who was “manifesting aggressive behaviour” and had received counselling through Victims Services. Ms Hip-Waye diagnosed some traumatic stress symptoms as a result of the emotional, physical and sexual abuse that CFV was subjected to over an extended period of time and she recommended a further 8 hours of approved counselling.

7. Vicki Garner, Clinical Psychologist, assessed CFV in the capacity of an Authorised Report Writer and issued a report dated 14 March 2013. She noted a history of domestic violence over a period of 11 years (from 2000 to September 2011) and that CFV first became depressed in 2005-2006. Ms Garner diagnosed post-traumatic stress disorder (moderate global rating), which was directly and substantially related to the domestic violence, and expressed the view that while CFV reported that she felt better and was coping with the usual demands of life, the majority of her post-traumatic symptoms ranged from moderate to severe, which may lead to difficulties and the need for further counselling in the future. She felt that CFV did not currently meet the diagnostic criteria for depression.

8. On 9 April 2013, CFV signed a Statutory Declaration, in which she stated that she still suffered from symptoms of depression and anxiety. She said that the abuse that she suffered at the hands of the alleged offender had left her ‘with a sense of failure in relation to her past’ and that she ‘feels that she wasted so many years suffering and being abused and seeing her children being abused’. She feared that her children would not be able to carry on normal lives as they got older as a result of the memories that ‘they are haunted with’ and that she continued to suffer from the mental and emotional abuse – ‘the memories and the scars and the fear that I live with’.

Applicable Legislation

9. 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 Victims Rights and Support Act 2013 (“the Act”).

10. 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 Act but not finally determined by 7 May 2013 should be determined under the Act as if it was an application for victims support under the Act.

11. For the purposes of this decision, I have assumed that the Respondent advised CFV’s solicitors that the application would be determined under the new Act as if it was an application for victims support. However, there is no letter to that effect in the documents that are before me.

Decision at First Instance

12. On 14 April 2014, an Assessor (Client Claims) determined that CFV had not established that she was the primary victim of an act of violence and dismissed the application. The Assessor determined (relevantly):

11. Whilst I accept wholeheartedly that (CFV) was in a very difficult relationship and that the relationship was irreconcilable, unfortunately there is very little contemporaneous or independent evidence before me that supports the applicant’s assertions of being subjected to domestic violence abuse over a protracted period as she contends. The applicant has not reported all matters to Police. Whilst I understand there may be reasons and circumstances for this, unfortunately this results in a lack of corroborative evidence.

12. Ultimately there is insufficient scope or detail to what is mentioned in the reports or evidence for me to form an opinion against the offender for the alleged acts of violence.

Internal Review Decision

13. On 13 May 2014, CFV’s solicitors advised the Respondent in writing that they were ‘instructed to apply for an appeal’ against the decision and that they would file a further Statutory Declaration from CFV in support of the ‘appeal’.

14. On 17 June 2014, the Senior Assessor deferred the determination of the internal review to provide CFV’s solicitors with an opportunity to submit further evidence.

15. For the purposes of this decision I have assumed that the Respondent served a copy of the Notice of Deferral upon CFV’s solicitors, but no letter to that effect is currently before me.

16. On 2 July 2014, CFV’s solicitors advised the Respondent that they ‘were in the process of obtaining a report’ from their client’s treating GP and would submit this ‘upon receipt of same’. However, they did not submit any report.

17. The Senior Assessor further deferred determination of the internal review on 11 August 2014 and 23 October 2014, each deferral being for a period of 2 months, to enable CFV’s solicitors to lodge further evidence.

18. For the purposes of this decision I have assumed that the Respondent served copies of the 2 further Notices of Deferral upon CFV’s solicitors, but no letters to that effect are currently before me.

19. However, CFV’s solicitors did not submit any further evidence and on 1 December 2014, the Senior Assessor issued a Notice of Review Decision. The Senior Assessor determined that CFV had not established that she was the primary victim of an act of violence on the balance of probabilities and dismissed the application.

20. For the purposes of this decision, I have assumed that a copy of the Notice of Review Decision was served upon CFV’s solicitors. However, no letter to that effect is in the documents before me.

Application for Administrative Review

21. 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

22. This matter came before me for hearing on 27 May 2016, when CFV appeared in person and the Respondent was represented by Mr Ting. Both parties made oral submissions and the Respondent had also lodged short written submissions with its bundle of documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”).

Extension of Time

23. The Application for Administrative Review was lodged out of time. I note that CFV stated she was unable to lodge it within time as her Solicitor failed to notify her of the Review Decision and that she learned of it when she followed up with them ‘a couple of months ago. She applied for a review of the decision on the following ground:

As we went through a lot of domestic abuse physical and mental. My solicitor did not keep me informed. I always had to chase her up. It’s been with her since 2011.

24. S 41 of the Civil and Administrative Tribunal Act 2013 (No. 2) (“the CAT Act”) provides:

41   Extensions of time

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired.

25. There is no evidence before me as to when CFV was first notified of the Review Decision, although she stated that this was only ‘a couple of months’ before she lodged the current application. I am satisfied that it is appropriate to extend the time for lodging the current application to 11 November 2015 pursuant to s 41 of the CAT Act and I make that order.

Objection to jurisdiction

26. The Respondent’s written submissions dated 11 December 2015, were restricted to an objection to this Tribunal’s jurisdiction to determine the current Application. The objection was based upon the Victims Rights 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 Act and that by operation of cl 18 of the 2015 Regulation, an application for compensation that was lodged under the old Act can no longer be dealt with under cl 5 of sch 2 of the Act as 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.

27. 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 Act and 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 Victims Rights 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 Victims Rights 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 Victims Rights 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 Goudappel to the current matter, I am of the view that by reading cl 18(2) of the amending Regulation in 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 Act applies to this matter and that cl 18(2) of the amending Regulation does 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.

28. During the hearing on 27 May 2015, the Tribunal asked Mr Ting whether the Respondent maintained its objection to jurisdiction in the light of the decision in “CEL”. Mr Ting withdrew the objection to jurisdiction.

Decision on the papers

29. At the conclusion of the oral hearing on 27 May 2016, the Tribunal made directions for the further conduct of the matter, which included providing CFV with an opportunity to file and serve further medical evidence and photographic evidence of her injuries and allowed the Respondent the opportunity to file and serve further submissions in relation to substantive issues. It also granted leave to the parties to approach the Tribunal to request a further oral hearing, should the need arise. However, both parties requested that the application should be determined on the papers.

30. Pursuant to s 50 of the CAT Act, and following consultation with the parties, I have dispensed with a further hearing because I am satisfied that the issues for determination can be adequately determined in the absence of the parties.

Act of Violence

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

32. “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.

33. S 19 (8) (a) of the Act defines sexual assault as meaning “sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat”.

34. S 19 (8) (f) defines domestic violence (relevantly) as “any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:

(i)  a person who is or has been married to the person who committed the offence, …

35. The onus is on CFV to prove her allegations of domestic violence and sexual assault on the balance of probabilities. During the hearing on 27 May 2016, the Tribunal referred to the reports of Ms Hip-Waye and Ms Garner, which evidenced that the Respondent had approved 10 hours of counselling for CFV and that the it was satisfied at that time that an act of violence had been established on the balance of probabilities. However, neither the Assessor (Client Claims) nor the Senior Assessor had considered this fact in determining that an act of violence was not established on the balance of probabilities.

36. Mr Ting stated that the Respondent conceded, and in my view properly so, that the available evidence establishes that CFV was the primary victim of an act of violence on the balance of probabilities.

37. Based upon a consideration of all of the available evidence, I am satisfied that on the balance of probabilities that CFV was the primary victim of acts of violence (in the nature of sexual assault and domestic violence), which occurred over a period of time from 2000 to September 2011, and that she suffered physical and psychological injuries as a result.

38. 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

39. As a result, I am satisfied that CFV is eligible for a Category B recognition payment pursuant to s 35 (2) (b) of the Act, as she was the victim of a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts.

Special Grant

40. 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.

41. 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.

42. I am satisfied that the application was lodged within the prescribed period and that CFV is eligible for a special grant pursuant to cl 5 (3) of sch 2 of the Act.

Section 44 Consideration

43. I am required by the Act to consider whether there are any factors under s 44 of the Act that 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

44. Pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Senior Assessor dated 1 December 2014 and I make the following decision in substitution:

1. CFV has established on the balance of probabilities that she was the primary victim of acts of violence that are a series of related acts and that she suffered physical and psychological injuries as a result.

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

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

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: 15 July 2016