CSN v Commissioner of Victims Rights

[2017] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CSN v Commissioner of Victims Rights [2017] NSWCATAD 139
Hearing dates:	20 January 2017
Date of orders:	02 May 2017
Decision date:	02 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. Pursuant to s 63 (3) (c) of the ADR Act, the decisions of the Assessor (client claims) dated 7 May 2014 and the Senior Assessor dated 8 August 2014, respectively, are set aside. 2. I make the following decision in substitution: a) The applicant was the primary victim of an act of violence, in the nature of sexual assaults, which were a series of related acts. b) The applicant is eligible for a Category B recognition payment in the sum of $10,000.
Catchwords:	Victims Rights and Support – administrative review –standard of proof – statutory interpretation - act of violence - whether decision to approve counselling for 10 hours involves an acceptance that an act of violence is established - act of violence established on balance of probabilities – eligibility for recognition payment
Legislation Cited:	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) Acts Interpretation Act 1901 (Cth)
Cases Cited:	Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 Fleming v White [1981] 2 NSWLR 719 at [722] Elena Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604
Texts Cited:	Second Reading Speech of the Victims Rights and Support Bill 2013 – The Hon. Michael Gallacher dated 29 May 2013 Statutory Interpretation Australia (8th Edition Pearce and Geddes)
Category:	Principal judgment
Parties:	CSN (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: R Manwaring (Disability Support Advocate) –(Applicant ) J Singh (Victims Services) - Respondent
File Number(s):	2016/00378350
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 20 September 2016, the applicant sought administrative review of decisions made by a delegate of the respondent in respect of an application for support that was lodged by the applicant (known by the pseudonym “CSN”).

Background

2. On 22 June 2013, CSN lodged an Application for Support under the provisions of the Victims Rights and Support Act (“the Act”), which alleged that he was the primary victim of a sexual assault that was perpetrated by (name provided) on 12 December 2008, at [town], NSW. He alleged that he suffered both physical and psychological injuries as a result and applied for counselling and a recognition payment.

3. CSN was not legally represented in relation to his application for victims support.

Evidence

4. The available evidence indicates that on 19 March 2009, CSN and his brother attended Coffs Harbour Police Station and reported that they had both been indecently assaulted several times by the same perpetrator (a fellow special education student) whilst at the High School that they attended. Their allegations were subsequently investigated by the Joint Investigation Response Squad (“JIRT”).

5. The documents produced by NSW Police indicate that CSN reported that the perpetrator followed him into the disabled toilet at the School and had “touched his private parts” outside his clothing. He said that the first time this had occurred the perpetrator had paid him $20 “to keep his mouth shut”, but he was not paid “the other times”. He became confused regarding the timeframes and particulars of these incidents.

6. Police and Community Services Officers attended at the High School on 24 June 2009 and discussed the allegations with staff. They also viewed the amenities area, where the alleged assaults took place. They formed the view that no criminal process should commence as CSN was not a competent witness.

7. On 14 August 2013, Phil Rolfe, clinical psychologist, provided an initial counselling report to the Commissioner. This indicates that he was appointed as the Approved Counsellor and assessed CSN on 17 July 2013 and 31 July 2013, respectively. He reported a history that during class times, lunch and recess breaks, the perpetrator would follow him into the toilets and would “tell me to do something sexual”, including “masturbating himself as a kind of test”. The perpetrator told him not to tell anyone and that he would pay him money. On several occasions after that, the perpetrator followed him into the toilets and pushed him against the wall and pulled his pants down and “got his penis out and rubbed against me”. He had also “been forced to perform oral sex” on the perpetrator and that the perpetrator had “done the same” to him. He had received payments of $20 and $50 from the perpetrator. He became increasingly anxious and angry about these incidents and on one occasion he became emotionally distressed and spoke about the assaults in class. He was sent to see the School Counsellor and he was suspended. He felt that all of the teachers were against him and did not believe him. He made a statement to Police, but did not tell them what had happened as he was “too ashamed”.

8. Mr Rolfe also reported that CSN suffers from Asperger’s disorder and has a mild intellectual disability. I note that this is consistent with information set out in a report from Mr McCombie, clinical psychologist, dated April 2007. He assessed CSN in relation to a previous claim for victims support, which related to domestic violence. Mr McCombie diagnosed depression.

9. Mr Rolfe also noted that CSN had complained of increased anxiety since the acts of violence that are the subject of this application occurred; that he is anxious around people and cannot catch buses or walk to the shops alone; and that he would not leave the house except for an important reason like an appointment - when his partner accompanies him. CSN said that he thinks about the assaults “a lot” and becomes distressed when he passes the School or sees the perpetrator and is irritable. He also loses his temper easily. He concluded that CSN’s problems were not caused by the assaults alone, but that he hoped that some behavioural changes may improve his lifestyle and emotional level. He recommended formal review “at completion of 10 sessions”.

10. Mr Rolfe provided an updated report to the Commissioner on 22 July 2014, when 5 hours of the 10 approved hours of counselling had been completed. At that time, he diagnosed Moderate Intellectual Disability and Generalised Anxiety Disorder and he concluded:

(CSN) requested this report be provided at this stage to facilitate the process of compensation. I note some ambiguities about the nature of the incident and also have suggested a diagnosis of Generalised Anxiety Disorder about because anxiety is not specifically related or clearly consequent on the incident, although he does report that these symptoms have developed since the incident.

Decision at First Instance

11. 7 May 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 was therefore dismissed.

12. I note that in making that decision, the Assessor failed to address the fact that the Commissioner had approved 10 hours of counselling pursuant to s 26 (1) (a) of the Act.

13. Section 32 of the Act provides:

32   Authorisation of payments for approved counselling services

(1)  The regulations may make provision for or with respect to the authorisation of payments for or in relation to approved counselling services provided to victims of acts of violence (whether resident in Australia or elsewhere), including the application (with or without modification) of the provisions of this Act relating to financial support or recognition payments.

(2)  The regulations may make provision for or with respect to the provision of approved counselling services, and authorisation of payments for such services, to persons who are relatives of primary victims who have died as a result of an act of violence, but who are not family victims within the meaning of this Act.

14. Clause 5 of the Victims Rights and Supports Regulation provides, relevantly:

5   Authorisation of payments for approved counselling services

(1) For the purposes of section 32 of the Act, the Commissioner may authorise payments for approved counselling services for a victim (other than a family victim or relevant family member):

(a)  for a period of up to 10 hours of counselling (including counselling for the purposes of an application for continued counselling), and

(b)  for such further periods of counselling as the Commissioner may consider appropriate.

(2)  The Commissioner may consider a person to be a victim (other than a family victim or relevant family member) referred to in sub clause (1), for the purposes of authorising payments for an initial period of 2 hours of counselling for the person, if satisfied that counselling may assist in establishing whether or not the person is a victim.

15. The date that the Commissioner posted a copy of the Notice of Decision to CSN is not indicated in the documents before me. However, I note that CSN requested an internal review of that decision on 4 June 2014. I am therefore satisfied that a copy of the decision was properly served upon him.

Internal Review Decision

16. On 8 August 2014, the Senior Assessor issued a Notice of Review Decision. The Senior Assessor determined that an act of violence was not established on the balance of probabilities and dismissed the application.

17. The documents before me do not indicate the date on which a copy of the Review Decision was posted to CSN and it is not clear when he received it.

18. However, I note that on 15 July 2016, the Commissioner wrote to CSN’s partner in response to an email that she sent to the Commissioner on 4 July 2016, CSN’s partner sent an email to the Commissioner outlining ‘concerns regarding Victims Services processes’ and requesting a second review of the claim. The Commissioner responded (relevantly:

…I have investigated the matter and upon checking the original application submitted by (CSN) to Victims Services in 2013, a male counsellor from the Coffs Harbour area was requested by (CSN). This is the reason (CSN) was assigned a male in the first instance. I can confirm that in June 2016 a change of counsellor was made to a female counsellor. I have attached a copy of the 2013 application form for reference.

In reference to (CSN’s) request for a second review of his claim, there unfortunately is no provision (for) Victims Services to conduct another review of his Internal Review Decision. The NSW Civil and Administrative Tribunal (NCAT) is an independent organisation that may be able to offer assistance to (CSN) in relation to lodging an Application.

Application for Administrative Review

19. On 20 September 2016, CSN applied for administrative review of the decision at first instance on the following ground:

Because victim services placed me with a male councellor (sic) after I asked for a female, I wasn’t comfortable telling the male everything that happened.

The Application provided the following reason for lodging the application late:

Because I have new evidence to support the final decision through NCAT.

20. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘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.

21. The Application for Administrative Review came before Senior Member McAteer for Directions on 4 November 2016, when Ms Smith appeared for CSN in her capacity as a Disability Support Advocate and the Commissioner was represented by Mr Singh. The documents provided by the Commissioner under s 58 of the ADR Act appeared to be comprehensive and complete.

22. I confirm that on 4 November 2016, Senior Member McAteer made the following orders:

1. Pursuant to s 41 (1) of the CAT Act I give leave for Ms V Smith to act as the Applicant’s Agent;

2. Pursuant to s 41 (1) of the CAT Act, having regard to the evidence of Ms Smith, the Applicant and his carer, I extend the time for lodging the Application to 20 September 2016;

3. List for hearing on 20 January 2017 at 10:00am – 1 hour;

4. Applicant to lodge any further material/evidence with NCAT and serve on the Respondent by 4:30pm on 13 January 2017;

5. Respondent to serve any material in reply on the Applicant by email by 18 January 2017 and is to serve the Tribunal at the hearing;

6. Leave granted to the Applicant and Agent to appear at the hearing by Telephone.

23. Senior Member McAteer also noted that an issue for determination at the hearing is whether the Applicant is properly considered a victim of an act of violence as counselling was approved under s 23 (1) of the Act and this constitutes “support” for the purposes of s 26 (1) of the Act.

Hearing

24. At the hearing on 20 January 2017, Ms Smith was not available to appear for CSN. The Tribunal therefore granted leave to Mr Robert Manwaring, Disability Support Advocate, to act as CSN’s Agent during the hearing. Mr Manwaring, CSN and his partner participated in the hearing by telephone.

25. CSN sought to rely upon a report from Ms Ellis, clinical psychologist, dated 14 December 2016. This had been served upon the Commissioner and was the subject of comment in the Commissioner’s written submissions dated 18 January 2017.

Issues of Statutory Interpretation

26. As this involved an issue of statutory interpretation, Tribunal determined that it was appropriate to consider that issue before proceeding to submissions relating to the merits of the application.

Commissioner’s Submissions

27. Mr Singh made oral submissions, which I have summarised as follows.

1. The Commissioner disputes that the approval of counselling pursuant to s 23 (1) of the Act constitutes the approval of victims support for the purposes of s 26 (1) of the Act. As a result, CRS is not considered to be the victim of an act of violence.

2. While s 26 of the Act talks about the eligibility for victims support under the Scheme in certain circumstances where an act of violence is established, the Division that deals with the approval of counselling services does not talk about an act of violence “as defined in the Act”.

3. Section 32 of the Act allows for the approval of counselling and provides relevantly (emphasis added):

32   Authorisation of payments for approved counselling services

(1)  The regulations may make provision for or with respect to the authorisation of payments for or in relation to approved counselling services provided to victims of acts of violence (whether resident in Australia or elsewhere), including the application (with or without modification) of the provisions of this Act relating to financial support or recognition payments.

4. Section 32 of the Act refers to “victims of acts of violence”. This differs to ss 23 and 26 of the Act, which refer to “a victim of an act of violence” or to “a victim of a series of related acts…” Unlike s 32, ss 23 and 26 adopt the definitions of those terms (as found in s 19 of the Act).

5. Section 23 (1) of the Act provides:

23   Eligibility for support

(1)  A primary victim of an act of violence is eligible for the support under the Scheme described in section 26…

6. Further, s 26 (1) of the Act provides (relevantly):

26   Composition of support—primary victims

(1)  The support under the Scheme for which a primary victim of an act of violence is eligible comprises the following:

(a)  approved counselling services with respect to that act of violence,

…

(d)  if a recognition payment is payable under this Part in respect of the act of violence—that recognition payment.

7. The fact that s 32 refers to “victims of acts of violence” and not to “a victim of an act of violence” or “a victim of a series of related acts” (as is the case in ss 23 and 26 of the Act) supports an argument that the Legislature did not intend that Counselling should only be approved where an act of violence or a series of related acts of violence were established by a victim. This is consistent with the fact that s 32 (2) of the Act, which allows counselling to be approved for persons other than primary victims, secondary victims and family victims.

8. The Act does not set out a separate definition of “victims of acts of violence” for the purposes of approving counselling pursuant to s 32, but the absence of a separate statutory definition does not mean that a decision to approve counselling services for a victim means that the victim is considered to be “a victim of an act of violence as defined in s 19 of the Act”.

9. Clause 5 of the Victims Rights and Support Regulation 2013 (“the Regulation”), provides (relevantly):

5   Authorisation of payments for approved counselling services

(1) For the purposes of section 32 of the Act, the Commissioner may authorise payments for approved counselling services for a victim (other than a family victim or relevant family member):

(a)  for a period of up to 10 hours of counselling (including counselling for the purposes of an application for continued counselling), and

(b)  for such further periods of counselling as the Commissioner may consider appropriate.

(2)  The Commissioner may consider a person to be a victim (other than a family victim or relevant family member) referred to in sub clause (1), for the purposes of authorising payments for an initial period of 2 hours of counselling for the person, if satisfied that counselling may assist in establishing whether or not the person is a victim….

10. Further, cl 4 of the Regulation provides a separate definition of “victim”, namely:

victim means:

(a)  a family victim, or

(b)  a primary victim or a secondary victim, or

(c)  a relevant family member,

but does not include a person who is the victim of an act of violence:

(d) arising in the circumstances described in section 25 (2) of the Act, unless the person is a family victim of the act and the act apparently occurred in the course of the commission of the offence of murder or manslaughter, or

(e) arising in the circumstances described in section 25 (3) or (4) of the Act.

28. In the alternative, Mr Singh submitted that the determinations regarding the approval of counselling for a victim and their eligibility for other types of victims support are made by different decision makers. While the approval of counselling is considered early on in the application process, and is generally based upon providing an applicant with “the benefit of the doubt”, an assessment of the eligibility for other types of victims support occurs much later.

28. Essentially, Mr Singh argued that a decision to approve counselling does not bind a subsequent decision maker in determining the eligibility for other types of victims support, as s 26 of the Act does not tie any one or more types of victims support together. He submitted that in the event that the Tribunal determines that an act of violence did not occur, it may find that the prior approval of counselling for CSN was made improperly.

29. Mr Singh conceded, and in my opinion properly so, that there are no authorities that support the Commissioner’s submissions in relation to these issues.

Applicant’s Submissions

31. Mr Manwaring declined to make submissions in relation to the legal issues on the basis that he is not a legal expert.

Consideration - Statutory Interpretation

32. In the matter of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”)Brennan CJ held:

69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

33. In applying the principles expressed in Project Blue Sky to this matter, I have considered the intention of the Legislature and the purpose of the Act as indicated in the Second Reading Speech for the Victims Rights and Support Bill (as it then was) on 29 May 2013. The Minister, the Hon. Michael Gallacher, stated relevantly:

…The purpose of the bill is to establish a new Victims Support Scheme to replace the existing Victims Compensation Scheme and to provide for a new Commissioner of Victims Rights…

The Government commissioned PricewaterhouseCoopers to review the Victims Compensation Scheme and provide an independent assessment of how it could be improved to provide faster and more effective support to victims of violent crime.

The review involved consultation with a broad range of stakeholders—but the unanimous points were:

(1) that assisting victims at the earliest point after the act of violence delivers the best outcomes;

(2) that the provision of counselling is supported and should continue; and

(3) that a lump sum payment in recognition of trauma is an important part of the rehabilitation process.

In reviewing the scheme, PricewaterhouseCoopers noted that:

whilst counselling in general is provided in a timely and effective manner, there [are] other services and supports identified which are not currently provided by the scheme, but which would be beneficial to claimants and assist them to begin their healing process shortly following the act of violence. These include relocation assistance, security upgrades and assistance with medical and dental expenses.

PricewaterhouseCoopers' report was delivered to the Government in the second half of 2012. It recommended a radical overhaul of the way in which victims are supported, by closing the Victims Compensation Scheme and replacing it with a new scheme—the Victims Support Scheme—that is underpinned by the following key principles:

first: financial viability—to ensure that victims receive timely support;

second: appropriate prioritisation of funds to:

meet the immediate needs of victims of violent crimes;

provide financial assistance and rehabilitation; and

recognise and acknowledge the trauma suffered;

third: consistency with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

It is my great pleasure today to announce that the Government has adopted PricewaterhouseCoopers' recommendations. We acknowledge that the Victims Compensation Scheme needed to be replaced with something more effective. This bill does just that—it establishes the new Victims Support Scheme which is modelled very closely on the scheme proposed by PricewaterhouseCoopers. It is an excellent scheme that the Government is confident will provide an infinitely better response to victims than that provided by the Victims Compensation Scheme.

Instead of reducing everything to a lump sum compensation payment, the focus of the Victims Support Scheme will instead be on providing a package of practical and financial support, tailored to victims' individual needs and provided to victims at the time they need it, while still providing a lump sum payment in recognition of the trauma experienced by victims of crime. But instead of the lump sum being determined according to what is known under the existing legislation as a "Schedule of Compensable Injuries"—that is, compensation for specific injuries to particular parts of the body—under the new scheme the payment will be related to the nature of the violent act.

Counselling will continue to be provided, but the rates have been increased and counsellors will now be able to claim for travel time in excess of two hours. This is so the scheme will improve access to counselling services in rural, remote and Aboriginal communities.

The Victims Support Scheme will provide the following types of support to victims who have sustained an injury as a result of a violent crime:

firstly, 22 hours of counselling, which can be extended where appropriate;

secondly, an individually tailored package of up to $5,000 to address a victim's immediate needs…

fourthly, needs-based financial assistance of up to $30,000 for victims who can demonstrate economic loss, to aid in their rehabilitation and recovery… and

finally, a lump sum payment to acknowledge the violence and trauma. The amount will vary, depending on the nature of the act of violence, as follows:

$15,000 for a family member who was financially dependent on a homicide victim;

$7,500 for a parent of a homicide victim but who was not a dependent;

$10,000 for a victim of the most serious kind of sexual assault—one involving serious injury, the use of a weapon or multiple offenders or for a victim of a series of related acts involving sexual assault, indecent assault or attempted sexual assault involving serious bodily injury;

$5,000 for a victim of a less serious sexual assault, a victim of an attempted sexual assault resulting in serious injury or an assault resulting in grievous bodily harm, including the loss of a foetus, or for a victim of a series of related acts involving the physical assault of a child; and

$1,500 for a victim of an indecent assault, an attempted sexual assault involving violence, a robbery involving violence or an assault not resulting in grievous bodily harm.

While these amounts are less than the maximum amounts of compensation available under the Victims Compensation Scheme, they are in addition to financial assistance available for immediate needs and longer-term expenses. And, most importantly, they will be able to be paid up front, rather than victims having to wait for two or three or more years. In general, therefore, victims will be better served by the new Victims Support Scheme with its emphasis on up-front practical and financial assistance at a time when they need it most…

34. I also note that Statutory Interpretation Australia (8thEdition Pearce and Geddes) (at page 28)provides:

Remedial or Beneficial Acts

The Courts have adopted the broad approach that where an Act is curing some ‘mischief’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit.

35. It has long been established law that the Act is beneficial legislation and that it should be interpreted liberally and beneficially. See: Fleming v White[1981] 2 NSWLR 719 at [722]) and Elena Harvey and Victims Compensation Tribunal &Anor [2001] NSWSC 604 (Dowd J).

36. I am not satisfied that the Legislature intended that the word “victims” in s 32 of the Act should be interpreted as meaning anything other than the plural version of the word “victim” as defined in 19 of the Act.

37. In my view, the Commissioner’s submission to the effect that by using the plural “victims” in s 32 of the Act, the Legislature intended that the definitions of the singular “victim” should not be applied, is flawed and contradicts s 23 of the Acts Interpretation Act 1901 (Cth), which provides (relevantly):

Rules as to gender and number

In any Act:

…

(b)  words in the singular number include the plural and words in the plural number include the singular.

38. In any event, the Commissioner’s interpretation is based upon a narrow and restrictive interpretation of the Act and in my view, this is not consistent with the language and purpose of all the provisions of the Act.

39. I also reject the Commissioner’s submission that the decision to approve counselling for CSN under s 23 (1) of the Act does not involve an acceptance that he was a victim of an act of violence as defined by s 19 of the Act.

40. The available evidence indicates that the Commissioner approved counselling in excess of the initial 2-hour period that is authorised by cl 5 (2) of the Regulation pending an act of violence being established by the applicant. In my view, the extension of counselling to 10 hours necessarily involved an acceptance by the Commissioner that an act of violence had been established to the required standard of proof.

41. I also reject the Commissioner’s submission that her decision to approve Counselling does not bind her in relation to a later determination of whether an applicant is eligible for other types of victims support under s 26 (1) (d) of the Act. I note that this submission was essentially put on the basis that the decisions regarding the approval of counselling and the eligibility for other types of victims support under s 26 (1) of the Act are made at different times in the life of a claim and by different decision makers.

42. However, in my view, the correct question for consideration is not whether an earlier decision to approve further counselling is binding upon a later decision maker in determining an applicant’s the eligibility for other types of victims support, but rather whether each of the decision makers applied the correct standard of proof in making their respective decisions.

43. In my view, the same standard of proof applies to a decision regarding the approval of counselling exceeding the initial 2-hour period and a decision regarding the eligibility for other types of victims support under s 26 (1) of the Act, namely the balance of probabilities. It follows that the decision to approve further counselling necessarily required that decision maker to be satisfied that CSN was the victim of an act of violence on the balance of probabilities.

44. Neither the Assessor (client claims) nor the Senior Assessor considered these matters, although there does not appear to be any dispute that 10 hours of counselling was approved before the decision at first instance was made. I note that 5.5 hours of the 10 hours of approved counselling had been utilised when Mr Rolfe issued his Progress Report dated 22 July 2014.

45. In my view, the Assessor (client claims) and Senior Assessor erred in law in finding that an act of violence was not established on the balance of probabilities and their decisions should be set aside pursuant to s 63 (3) (c) of the ADR Act.

Consideration - Merits of the Application for Victims Support

Act of Violence

46. Section 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.

47. “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.

(8)  In this Act:

sexual assault and domestic violence means any of the following:

(a) 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,

(b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having a cognitive impairment (within the meaning of that section),

(c) self-manipulation (within the meaning of section 80A of the Crimes Act 1900) which a person is compelled to engage in because of a threat (within the meaning of that section),

(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,

…

48. The onus is on CSN to prove his allegations of sexual assault on the balance of probabilities.

49. For the reasons set out previously in this decision, I am satisfied that an act of violence has been established on the balance of probabilities. However, it is also necessary to consider the Commissioner’s written submissions filed on 18 January 2017 in relation to this issue.

50. In particular, the Commissioner observed:

a. the report from Mr Rolfe dated 22 July 2014 states:

Since many of (CSN’s) symptoms do not appear to be specifically linked to the incident, but rather expression of generalised anxiety future interventions might address this anxiety more generally rather than being trauma focused [sic].

And further:

I note some ambiguities about the nature of the incident and also have suggested a diagnosis of Generalised Anxiety Disorder above because anxiety is not specifically related or clearly consequent on the incident, although he does report that these symptoms have developed since the incident.

b. Employment Services Assessment Report provides details of his intellectual disability however does not establish that the symptoms were caused by the alleged incidents.

c. Ms Ellis, psychologist, report dated 14 December 2016 indicates the applicant may be suffering from chronic PTSD. However, the report does not say that this is likely to have resulted from the alleged incident. Based on the various documents in the Bundle, it is [sic] appears the applicant suffered domestic violence and may have been subject of sexual abuse as a child (other than the alleged incidents) which may have resulted in his current diagnosis.

51. In the current matter, the available evidence indicates that CSN had previously been the primary victim of an act of violence, in the nature of domestic violence, with respect to which he made a claim for victims compensation. In April 2007, Mr McCombie, the approved counsellor, diagnosed Depression, Asperger’s Disorder and Attention Deficit Hyperactivity Disorder and also reported that Ms Harman, the School Counsellor, noted: a severe receptive language delay; a moderate expressive language delay; and moderate intellectual disability.

52. Section 19 (1) of the Act does not require that the act of violence to be the sole cause of an injury, or even a substantial or significant cause of injury. In the current matter, the available evidence indicates that CSN suffered increased anxiety symptoms following the act of violence. This is sufficient to establish that he suffered an injury as a result of the act of violence.

53. Pursuant to s 19 (4) of the Act, I am also satisfied that CSN was the primary victim of a series of related acts of sexual assault as the acts were committed by the same perpetrator.

54. While the Assessor (Client Claims) and Senior Assessor placed considerable weight on decision made by the Police to not prosecute the perpetrator, as it was felt that there was insufficient available evidence to secure a criminal conviction, that decision involves a different standard of proof and it is not binding upon this Tribunal in the determination of the current application for administrative review.

Recognition Payment

55. During the hearing, Mr Manwaring submitted that as there was a pattern of sexual or indecent assault, CSN is entitled to a Category B recognition payment pursuant to s 35 (2) (b) of the Act.

56. In response, Mr Singh submitted that if the Tribunal was satisfied that CSN was the primary victim of a series of related sexual or indecent assaults, he would be entitled to a Category B recognition payment. However, if a series of related acts was not established, he would be entitled to a Category C recognition payment.

57. As I have determined that CSN was the primary victim of a series of related acts of violence, in the nature of sexual assault, I am satisfied that he is eligible for a Category B recognition payment pursuant to s 35 (2) (b) of the Act.

Orders

58. I make the following orders:

1. Pursuant to s 63 (3) (c) of the ADR Act, the decisions of the Assessor (client claims) dated 7 May 2014 and the Senior Assessor dated 8 August 2014, respectively, are set aside.

2. I make the following decision in substitution:

1. The applicant was the primary victim of an act of violence, in the nature of sexual assaults, which were a series of related acts.

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

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 May 2017