CQP v Commissioner of Victims Rights

[2016] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CQP v Commissioner of Victims Rights [2016] NSWCATAD 202
Hearing dates:	26 August 2016
Date of orders:	30 August 2016
Decision date:	30 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) In relation to the application for compensation (Victims Services reference no. 159288) the decision dated 12 August 2014 is set aside and a Category C recognition payment is approved in the sum of $5,000.  (2) In relation the application for compensation (Victims Services reference no. 171511), the decision dated 12 August 2014 is set aside and a Category C recognition payment is approved in the sum of $5,000.
Catchwords:	Victims Rights and Support – administrative review – Alleged domestic violence – Jurisdiction – Leave to proceed in the absence of internal review - Act of violence established on balance of probabilities – Jurisdiction
Legislation Cited:	Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Victims Rights and Support) Regulation 2015 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:	CQP (Applicant) Commissioner for Victims Rights (Respondent)
Representation:	Solicitors: CQP (Applicant in person) Victims Services – (Respondent)
File Number(s):	1610439
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 July 2016, the applicant sought administrative review of decisions made by a delegate of the respondent in respect of 2 separate applications for compensation that were lodged by the applicant (known by the pseudonym “CQP”).

Victims Services File no. 159288

2. On 11 December 2009, CQP lodged an Application for Compensation under the provisions of the VictimsSupport and Rehabilitation Act 1996 (“the old Act”),which alleged that she was the primary victim of an act of domestic violence that was perpetrated by her sister (name provided) on 6 March 1983, at Bourke, NSW. She claimed compensation for the injury of “Psychological/psychiatric injury (Category 2), domestic violence and scarring”.

3. The application for compensation was lodged out of time and on 30 March 2010, the respondent granted the CQP leave to lodge it out of time pursuant to s 26 of the old Act.

4. I note that CQP was legally represented by Western NSW Community Legal Centre in relation to her application for compensation, but that her solicitors ceased to act before the date of the decision at first instance. She is not legally represented in relation to her application for administrative review.

Evidence

5. In the application for compensation CQP alleged that she reported the act of violence to NSW Police on 6 March 1983. However, there is no Police Report in the documents that are before me.

6. On 18 October 2010, CQP signed a statutory declaration in which she stated that she was assaulted by the alleged offender on 5 March 1983 and that she suffered lacerations to her face that required admission to Bourke Hospital (26 stitches) and that she was interviewed by Police while she was in hospital. Her evidence on those matters has been corroborated by a statutory declaration from Kerry Smith dated 29 December 2010.

7. On 1 April 2010, Ms Kerrie Powell, clinical psychologist, was appointed as the Authorised Report Writer (“ARW”) and she conducted a clinical assessment of CQP on 17 November 2010. She issued a report dated 16 May 2012, in which she reported a history that included the act of violence in 1983. She expressed a diagnosis of “clinical depression” and stated that this resulted from all of the acts of violence of which CQP had been a victim.

8. I note that Ms Powell provided a further ARW report on 16 May 2012, which was restricted to the act of violence in 1983. She confirmed her previous diagnosis of clinical depression as a result of the 1983 act of violence and stated that CQP’s ongoing symptoms continued to be “moderately severe”.

Decision at First Instance

9. On 12 August 2014, an Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 of the Victims Rights and Support Act 2013 (“the Act”) and determined that an act of violence was not established on the balance of probabilities. The application for compensation was therefore dismissed.

10. I note that on 21 August 2014, the respondent posted a copy of the notice of decision to CQP at an address in Dubbo, NSW, under cover of a letter dated 14 August 2014.

11. On 10 November 2015, CQP sent an email to the respondent in which she requested that a copy of the decision dated 12 August 2014 be sent to her by post to a different address in Dubbo, NSW, and by email. The respondent posted a copy of the decision to CQP’s new address under cover of a letter dated 13 November 2015.

Internal Review

12. On 30 November 2015, CQP wrote to the respondent. She stated that she was not aware of the decision dated 12 August 2014 before she received the respondent’s letter dated 13 November 2015 (on 24 November 2015). She requested a review of the decision pursuant to s 49 of the Act on the grounds that the respondent’s file did not evidence that was available and which it should have been able to obtain, including records from NSW Police and records from Bourke Hospital. She submitted a copy of the records from Bourke Hospital which evidenced her admission on 6 March 1983 and that she had been assaulted and suffered 2 lacerations to her right eyebrow, which required suturing.

13. On 14 January 2016, the respondent wrote to CQP, advising her that her request for review was received out of time and that there was no discretion to consider requests that are received out of time. The respondent also advised her that her application was assessed under the Act as it had not been finally determined when the Act came into operation on 3 June 2013, and also stated (relevantly):

…From the 1 September 2015 as part of the government’s election commitment, the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 was introduced which allowed claims lodged under the previous legislation that had been determined under the new legislation to be reassessed in certain circumstances.

These claims were commonly referred to as “transitional claims”…

Unfortunately, the introduction of the Regulation effectively removes any further consideration of transitional claims under the current legislation. This means that even if the Commissioner did have discretion available to her to consider an out of time request for an internal review, there is no power available to her in the current Act to consider your request because of the transitional status of your claims.

As well, unfortunately you are not able to lodge a request for your claims to be reassessed under the transitional claims regulation because claims that were dismissed as no act of violence could be established are not eligible to apply.

I am sorry that a series of events have resulted in your claims not being able to be reviewed or reassessed by Victims Services. While it is unlikely that the NSW Civil and Administrative tribunal have powers under the act for you to appeal your situation with them you may wish to make your own enquiries…

Victims Services File no. 171511

14. On 22 December 2010, CQP lodged an Application for Compensation under the provisions of the VictimsSupport and Rehabilitation Act 1996 (“the old Act”),which alleged that she was the primary victim of multiple acts of domestic violence that were perpetrated by her de-facto partner (name provided) over a period of time between 1984 and 2004. She claimed compensation for the injury of “Psychological/psychiatric injury (Category 2), domestic violence and arms: humerus fracture of upper arm bone (full recovery)”.

15. The application for compensation was lodged out of time and on 16 August 2011, the respondent granted CQP leave to lodge the application late under s 26 of the old Act.

16. I note that CQP was legally represented by Western NSW Community Legal Centre in relation to her application for compensation, but that her solicitors ceased to act prior to the decision at first instance. She is not legally represented in relation to her application for administrative review.

Evidence

17. The application for compensation asserts that the acts of violence were reported to NSW Police and that there were proceedings in Bourke Local Court in 1995 and Dubbo Local Court in 2004 (when an Apprehended Violence Order was issued). A copy of CQP’s witness statement to NSW Police dated 24 October 2002 is included the evidence before me, as are multiple Police reports that indicate 9relevantly): (1) CQP was assaulted by the alleged offender on 19 May 1985 and suffered lacerations to her nose; (2) on 8 February 1987, she was assaulted by the alleged offender and suffered a sore jaw and a “split lip”; (3) on 3 June 1992, she was assaulted by the alleged offender and suffered redness and swelling to her right ear; (4) on 15 June 1995, she was assaulted by the alleged offender and suffered soreness to her head and face. An Apprehended Violence Order was issued in relation to this incident; and (5) on 7 February 1997, Police attended the applicant’s home as a result of a verbal argument between CQP and her de-facto partner. This is described as “domestic violence” and CQP is named as the victim.

18. On 1 April 2010, Ms Kerrie Powell, clinical psychologist, was appointed as the Authorised Report Writer (“ARW”) and she submitted a report dated 16 May 2012. Ms Powell took a history that included the act of violence that is the subject of this application and expressed a diagnosis of “clinical depression” that was the result of all of the acts of violence of which CQP was the victim.

Decision at First Instance

19. On 12 August 2014, an Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 of the Victims Rights and Support Act 2013 (“the Act”) and determined that an act of violence was not established on the balance of probabilities. In making that finding the Assessor determined that the evidence received from NSW Police indicated that CQP had been convicted of common assault and that there was no reference to any assault that was committed by the alleged offender. However, I note that this finding is contrary to the multiple police reports in the file. In any event, the application for compensation was dismissed.

20. I note that on 21 August 2014, the respondent posted a copy of the notice of decision to CQP at an address in Dubbo, NSW, under cover of a letter dated 14 August 2014.

21. On 10 November 2015, CQP sent an email to the respondent in which she requested that a copy of the decision dated 12 August 2014 be sent to her by post to a different address in Dubbo, NSW, and by way of email. The respondent posted a copy of the decision to CQP’s nominated address under cover of a letter dated 13 November 2015.

Internal Review

22. On 30 November 2015, CQP wrote to the respondent. She stated that she was not aware of the decision dated 12 August 2014 before she received the respondent’s letter dated 13 November 2015 (on 24 November 2015). She requested a review of the decision pursuant to s 49 of the Act on the grounds that the respondent’s file did not evidence that was available and which it should have been able to obtain, including records from NSW Police. She stated that she was a victim of ongoing and serious domestic violence and submitted that not all of the police records had been obtained. She also stated that on 8 August 2014, the District Court of NSW (at Dubbo) found her not guilty of the charge against her that involved the alleged offender and that during cross-examination, the alleged offender made a number of admissions in relation to the violence that he had committed against her. She requested that the respondent obtain a transcript of that evidence, but provided a transcribed copy of her solicitor’s notes regarding that evidence. She also provided medical records from Bourke Hospital relating to her numerous admissions resulting from domestic violence perpetrated by the alleged offender.

23. On 14 January 2016, the respondent wrote to CQP, advising her that the request for review was received out of time and that there is no discretion to consider requests that are received out of time. The respondent also advised her that her application was assessed under the Act as it had not been finally determined when the Act came into operation on 3 June 2013, and also stated (relevantly):

…From the 1 September 2015 as part of the government’s election commitment, the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 was introduced which allowed claims lodged under the previous legislation that had been determined under the new legislation to be reassessed in certain circumstances.

These claims were commonly referred to as “transitional claims”…

Unfortunately, the introduction of the Regulation effectively removes any further consideration of transitional claims under the current legislation. This means that even if the Commissioner did have discretion available to her to consider an out of time request for an internal review, there is no power available to her in the current Act to consider your request because of the transitional status of your claims.

As well, unfortunately you are not able to lodge a request for your claims to be reassessed under the transitional claims regulation because claims that were dismissed as no act of violence could be established are not eligible to apply.

I am sorry that a series of events have resulted in your claims not being able to be reviewed or reassessed by Victims Services. While it is unlikely that the NSW Civil and Administrative tribunal have powers under the act for you to appeal your situation with them you may wish to make your own enquiries…

Application for Administrative Review

24. 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.

25. However, s 65 of the ADR Act also provides:

65   Power to remit matters to administrator for further consideration

(1)  At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2)  If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a)  affirm the decision, or

(b)  vary the decision, or

(c)  set aside the decision and make a new decision in substitution for the decision set aside.

(3)  If the administrator varies the decision:

(a)  the application is taken to be an application for review of the decision as varied, and

(b)  the person who made the application may either:

(i)  proceed with the application for review of the decision as varied, or

(ii)  withdraw the application.

(4)  If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a)  the application is taken to be an application for review of the new decision, and

(b)  the person who made the application may either:

(i)  proceed with the application for review of the new decision, or

(ii)  withdraw the application.

26. On 18 July 2016, CQP lodged the current application for administrative review, which set out a single ground of review – namely that the application was sent to the respondent “before the new policy was introduced”.

Applicable Legislation

27. On 7 May 2013, the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in NSW. The old Act was repealed and replaced by the Act, which commenced operation on 3 June 2013. Cl 4 and cl 5 of sch 2 effectively provided 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.

28. I have therefore determined the applications pursuant to s 51 of the Act as if they were applications for victims support.

Consideration

29. This matter came before me for directions on 28 August 2016, when the applicant appeared in person and the Respondent was represented by Mr Singh. The Respondent had lodged its bundle of documents under s 58 of the ADR Act in relation to each of the applications for compensation that are the subject of the current Application.

30. Mr Singh submitted that based upon the available evidence it is open to the Tribunal to find that the alleged acts of violence have been established on the balance of probabilities. He also stated that the respondent neither consents to nor opposes the tribunal making those findings and that if such findings were made, CQP’s applications for compensation could then be remitted to the respondent for reconsideration (including reassessment pursuant to cl 19 of the Victims Rights and Support Regulation 2015 (“the 2015 Regulation”) – subject to the applicant applying for reassessment). He stated that the issues must be determined urgently as the deadline CQP to apply for reassessment under the 2015 Regulation is 1 September 2016.

31. In view of the urgency of the issues requiring determination and in order to give effect to the Tribunal’s guiding principle that is to be applied to issues of practice and procedure, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings, the Tribunal considered it appropriate to determine the application for administratively review immediately based upon the evidence lodged to date. As neither party objected to this course of action, the matter proceeded to hearing without further delay.

Jurisdiction

32. I confirm that in the matter of CEL v Commissioner of Victims Rights [2016] NSWCATAD 83, this Tribunal determined 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. For the reasons expressed in CEL, I am satisfied that the Tribunal has jurisdiction to determine the current application.

Leave to proceed

33. S 55 (3) of the ADR Act provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However s 55 (4) provides discretionary exceptions to that requirement and empowers this Tribunal to hear an application for administrative review (in the absence of internal review) if it is satisfied that it is necessary to deal with that application in order to protect the applicant’s interests and the application was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

33. In the current matter, the evidence indicates that the respondent posted copies of the Assessor’s decisions to CQP at an address in Dubbo, NSW, on 21 August 2014. CQP then had 28 days in which to apply to the respondent for an internal review of the decisions, but she did not do so until 2 December 2015.

34. However, CQP’s evidence in relation to this issue is that she did not receive the respondent’s letters dated 14 August 2014, and that she first became aware of the decisions when she received copies of them by post on 24 November 2015. Therefore, her application for internal review was made 8 days after she received copies of the decisions from the respondent.

35. The issue relating to the 'applicant's interests' goes to the substance of CQP’s claims and is bound up in the substantive issue of whether or not she was the primary victim of the alleged acts of violence. For the reasons set out below, I am persuaded on the evidence that is before me that CQP was the victim of acts of violence, as alleged in each of the applications for compensation, and that she suffered injury as a direct result of those acts.

36. I therefore grant leave for the Application for Administrative Review to proceed pursuant to s 55 (4) of the ADR Act and I accept it.

Act of Violence

38. 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.

39. “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.

40. S 19 (8) of the Act defines … domestic violence as meaning (relevantly):

(f)  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:

…

(ii)  a person who is or has been a de facto partner of the person who committed the offence,

…

(ix)  a person who is or has been a brother, sister, half-brother, half-sister, step-brother or step-sister of the person who committed the offence

41. The onus is on CQP to prove her allegations of domestic violence on the balance of probabilities. In my view, she has discharged her onus.

42. In relation to Victims Services File no. 159288, I am satisfied that CQP was the primary victim of an act of violence on the balance of probabilities pursuant to ss 19 and 20 of the Act.

43. In relation to Victims Services File no. 171511, I am satisfied that CQP was the primary victim of acts of violence on the balance of probabilities pursuant to ss 19 and 20 of the Act and that the acts of violence are properly considered as a series of related acts pursuant to s 19 (4) of the Act as they were perpetrated by the same offender.

Recognition payment

44. CQP is therefore eligible to receive a recognition payment pursuant to s 35 of the Act in respect of each of her applications for compensation.

45. In relation to Victims Services File no. 159288, the available evidence indicates that CQP was the victim of an assault and that she suffered both physical and psychological injuries as a direct result. Based upon the clinical assessment of Ms Powell in November 2010 (the subject of her report dated 16 May 2012), I am satisfied that she continued to suffer moderately severe psychological symptoms almost 28 years after the act of violence occurred.

46. I am therefore satisfied that the assault resulted in grievous bodily harm and that CQP is eligible for a category C recognition payment pursuant to s 35 (3) (c) of the Act.

47. In relation to Victims Services File no. 171511, the available evidence indicates that CQP was the victim of a number of physical and verbal assaults and that she suffered both physical and psychological injuries as a direct result of those related act of violence.

48. Based upon the clinical assessment of Ms Powell in November 2010, I am satisfied that CQP continued to suffer moderately severe symptoms almost 6 years after the last of the acts of violence occurred. I am therefore satisfied that the assaults resulted in grievous bodily harm and that CQP is eligible for a category C recognition payment pursuant to s 35 (3) (c) of the Act.

Section 44 Consideration

49. 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 CQP or to reduce any amount payable. I am satisfied that no s 44 factors have been made out in relation to either application for compensation.

Determination

50. In relation to Victims Services File no. 159288, pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Assessor dated 12 August 2014 and I make the following decision in substitution:

1. An act of violence is established on the balance of probabilities.

2. CQP is eligible for a Category C recognition payment in the sum of $5,000.

51. In relation to Victims Services File no. 171511, pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Assessor dated 12 August 2014 and I make the following decision in substitution:

1. An act of violence is established on the balance of probabilities.

2. CQP applicant is eligible for a Category C recognition payment in the sum of $5,000.

52. As I have determined the application for administrative review under s 63 (3) (c) of the ADR Act, there are no issues that re   quire remittal to the respondent for reconsideration pursuant to s 65 of that Act.

Orders

53. I make the following orders:

1. In relation to the application for compensation (Victims Services File no. 159288), a Category C recognition payment is approved in the sum of $5,000.

2. In relation to the application for compensation (Victims Services file no. 171511), a Category C recognition payment is approved 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

*********

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: 31 August 2016