CLC v Commissioner of Victims Rights

[2016] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLC v Commissioner of Victims Rights [2016] NSWCATAD 110
Hearing dates:	20 May 2016
Date of orders:	07 June 2016
Decision date:	07 June 2016
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor is affirmed.
Catchwords:	Victims Rights and Support – administrative review
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
Cases Cited:	R -v- Donovan [1934] 2 KB 498 at 509
Category:	Principal judgment
Parties:	CLC (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: CLC (Applicant in person) Victims Services (Respondent)
File Number(s):	1610097
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 12 February 2016, the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support that was lodged by the applicant (known by the pseudonym ‘CLC’).

Background

2. On 3 September 2015, CLC lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”). He alleged that he was the primary victim of an act of violence, in the nature of an assault that occurred on 28 August 2015, which occurred in Greenacre, NSW. In particular, he alleged:

Person from the above mentioned shop made punch grievous body harm to me see police statement.

3. The Applicant alleged that he suffered an unspecified physical injury as a result of the act of violence and claimed a recognition payment. However, he did not claim financial assistance for immediate needs or financial assistance for economic loss.

4. The Police COPS Event Report dated 28 August 2015, indicates that the Applicant reported that at approximately 4:45pm that day he attended a Smash Repairs business (name provided) in Greenacre and that he parked his vehicle in the service driveway. A male employee of that business asked him to move his vehicle from the driveway, but he “insisted that he required parts for his car and that he required assistance”. The employee “became aggravated that he was not following his instructions and began swearing” at him. A number of other employees overheard the arguing and swearing and watched the incident take place. After a short period, the male employee grabbed his left arm and began to push him away from the driveway. He got into his car and left the premises before contacting Bankstown Police, as he did not wish to wait for Police to attend. The Police came to his home that evening and obtained his version of events. They advised him of his options in relation to taking action against the alleged perpetrator, but he told them that he did not wish to provide a formal statement and that he simply wished them to make a report of the incident “in the event that further incidences occurred” involving the alleged perpetrator. Police advised the Applicant that they would attempt to identify the alleged perpetrator and speak with him in relation to the incident. The report notes the Applicant as being “unemployed”.

5. On 30 August 2015, the Applicant obtained a medical certificate from Canterbury Afterhours Clinic, which indicates that he provided a history that he was “assaulted and was punched by someone on the left deltoid and back” on 28 August 2015. The doctor noted that he had been “taking over the counter analgesics” since then and he reported, relevantly:

On examination no bruise or external mark seen but mild tenderness positive on left shoulder and on back below neck. Good range of movement of upper and lower limb. All other examination unremarkable.

6. On 30 November 2015, the Assessor (Client Claims) dismissed the Application on the ground that there was insufficient evidence to establish, on the balance of probabilities, that the Applicant was the primary victim of an act of violence.

7. I note that the Respondent served a copy of that decision upon the Applicant on 3 December 2015, by posting it to him.

8. On 4 December 2015, the Applicant sent an email to the Respondent, in which he requested an internal review of the decision. In particular, he stated:

I was on address (provided) on 28/07/2015 (sic) time around 3:30 pm in customer care section sitting on chair car when customer care officer came I came outside another person from next door came to me without speaking another customer use my shirt collar on my chest and pushed front of other customer I just told why did you use this behaviour and left the site. I called police control room about assistance this matter should not go further deteriorate but police not arrived on spot I wait long time outside then Campsie police came to my rented premises and I reported this matter same evening… outcome need to get recognition payment.

9. On 11 December 2015, the Respondent wrote to NSW Police and requested a brief report and copy of any statements obtained in relation to their investigation of the alleged act of violence.

10. On 16 December 2015, the reporting Police Officer sent an email to the Respondent, which repeated the contents of the COPS Event Report and stated that Police took no further action in relation to the matter.

11. On 8 January 2016, the Senior Assessor completed an internal review and dismissed the Application for Victims Support on the basis that the available evidence did not establish, on the balance of probabilities, that the Applicant was the primary victim of an act of violence pursuant to s 19 and s 20 of the Act.

12. I note that the Respondent served a copy of this decision upon the Applicant on 15 January 2016, by posting it to him.

13. Application for Administrative Review

14. 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.

15. The Application for Administrative Review pleaded the following grounds:

Original decision and review decision was incorrect both matter victim file #217163, 223719 had assault with physical me. Therefore, I am confirmed to get recognition payment from Australian Government called bodily harmed.

16. In support of his Application on 18 February 2016, the Applicant lodged a report from Musab Alam, physiotherapist, which indicates that on 6 February 2016, the Applicant complained of “severe pain in his lumbar and cervical spine”. However, he did not provide any history of the alleged act of violence. The report indicates that this was the Applicant’s third treatment session under “EPC Medicare”. The fact that this was in the nature of a progress report explains why the report did not contain a history regarding the “injury”, but I note that the Applicant did not obtain a comprehensive report from the physiotherapist in support of his claim. The report concluded:

Patient is unfit to return back to work unless appropriate duties are available.

Consideration

17. When this matter came before me for hearing on 20 May 2016, CLC appeared in person (by telephone) and the Respondent was represented by Ms Sabesan.

18. I attempted to elicit further information from the Applicant regarding his injuries and the medical treatment that he received for his injuries, with a view to ascertaining whether he wanted an opportunity to obtain and submit further medical evidence in support of his Application. However, the Applicant declined to provide the Tribunal with any further information in relation to his claim. Rather, he advised the Tribunal to the effect that he did not wish to participate in the hearing and that we had sufficient information to award him compensation. He ended the telephone call.

19. The Respondent made oral submissions that were consistent with the written submissions that were lodged with the bundle of documents under s 58 of the Administrative Decisions Review Act 1997.

20. At the conclusion of the hearing, I reserved the matter for determination in Chambers.

21. On 23 May 2015, the Applicant sent a letter to the Tribunal by facsimile transmission in which he stated:

Subject: Telephone hearing I tried to explain this sentence on 20/05/2016 at 9:30am

Sir/madam,

I (name provided), file no. 1619007, this matter I eligible for a lump sum payment to a primary victim to acknowledge the trauma suffered and show of an offensive weapon and I got grievous bodily harm.

Therefore, I am eligible for $10,000 for show of an offensive weapon and and (sic) grievous bodily harm. Regardless of whether I am employed or self-employed, I send evidence of income received from other sources such as Centrelink attached for claiming loss of actual earnings $30000…

22. The Applicant also submitted an Income Statement dated September 2015, which indicated that received the maximum New Start Allowance at that time.

23. In determining the Application, I have read and considered the whole of the evidence that was before the Assessor (Client Services) and the Senior Assessor (upon Internal Review) as well as all submissions made by and/or on behalf of the parties. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons.

Act of Violence

24. 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.

25. “Act of violence” is defined in s 19 (1) 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)

(a) 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…

26. The onus is on CLC to prove his allegations of assault on the balance of probabilities. While he alleges that he was assaulted by a male employee of a smash repairs business that he attended on 29 August 2015, he has provided conflicting histories of the alleged act of violence.

27. I note that the Applicant reported to Police that the male employee grabbed his left arm and began to push him away from the driveway of the business (where the Applicant had parked his vehicle) and that this occurred after the employee had asked him to move his vehicle and he had refused to do so.

28. I note that the Applicant told the Police that he did not wish to make a formal statement and the Police did not investigate the matter. However, is not determinative of the issue of whether an act of violence occurred on the balance of probabilities.

29. In any event, on 30 August 2015, the Applicant provided a history to Canterbury Afterhours Clinic that he was punched by someone on left deltoid neck and back on 28 August 2015. This was the description of injury alleged in the Application for Victims Support and it is not consistent with the version that he provided to NSW Police.

30. While the Police report supports a finding on the balance of probabilities that the Applicant was the victim of an assault on 28 August 2015, when the alleged perpetrator grabbed his left arm and began to push him away from the driveway of the business, there is no contemporaneous or corroborative evidence that he was punched to the left deltoid, neck and back as alleged in the Application for Victims Support.

31. The Applicant’s written submissions to the Tribunal received on 23 May 2016, in which he asserted that he had suffered trauma “…and show of an offensive weapon”, is not consistent with his report to Police. I am not satisfied on the balance of probabilities that the Applicant was shown an offensive weapon by the alleged perpetrator on 28 August 2015, as he now alleges.

32. The report from the Applicant’s treating General Practitioner dated 30 August 2015, indicates that there were no clinical findings of bruising or any external marks, but that the Applicant complained of “mild tenderness on the left shoulder and back “below neck”.” The Applicant did not complain of severe pain and he did not make any complaint of pain in his lumbar spine. However, the physiotherapist’s report dated 6 February 2016, which does not contain any history of the alleged act of violence, indicates that the Applicant complained of “severe pain in the cervical and lumbar spines”.

Injury

33. S 20 of the Act defines injury as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

34. In relation to whether or not the Applicant suffered actual bodily harm as a result of the assault, I refer to the decision in R v Donovan [1934] 2 KB 498 at 509, which is authority for the proposition that the ordinary meaning of “harm” “includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling."

35. In the absence of any medical evidence that establishes that the Applicant required any ongoing treatment for the “mild tenderness” noted by the treating General Practitioner on 30 August 2015, I am not satisfied that he suffered any hurt or injury that was more than merely transient or trifling as a result of the assault on 28 August 2015.

36. As a result, I am not satisfied that the Applicant suffered actual bodily harm as a result of the assault on 28 August 2015 and he is therefore not eligible for a recognition payment under s 35 of the Act.

37. I further note that the Applicant also purported to apply for administrative review in relation to “financial support for economic loss”. However, he did not make such a claim in his Application for Victims Support and the Respondent has not made any administrative decision that is capable of review. I therefore decline to determine that ground of the Application for Administrative Review.

Determination and Conclusion

38. Pursuant to s 63(3)(a) of the ADR Act, I have decided to affirm the decision of the Senior Assessor dated 8 January 2016 and I make that order.

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: 07 June 2016