CZJ v Commissioner of Victims Rights

[2017] NSWCATAD 259

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CZJ v Commissioner of Victims Rights [2017] NSWCATAD 259
Hearing dates:	9 June 2017
Date of orders:	24 August 2017
Decision date:	24 August 2017
Before:	M Riordan, Senior Member
Decision:	Pursuant to s 63 (3) (a) of the ADR Act, the decision of the Assessor dated 8 October 2015 is affirmed.
Catchwords:	Victims Rights and Support – administrative review – recognition payment – whether the applicant was a primary victim of an act of violence – act of violence not established on balance of probabilities
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (No. 2) 2013 Crimes Act 1900 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013
Category:	Principal judgment
Parties:	CZJ (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Applicant in person Victims Services Legal (Respondent)
File Number(s):	2017/00081786
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 15 February 2017, 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 “CZJ”).

Background

2. On 2 September 2015, CZJ lodged an Application for Support under the provisions of the Victims Rights and Support Act (“the Act”), which alleged that she was the primary victim of a sexual assault that was perpetrated by [name provided] over a period of time between 26 September 2012 and 15 July 2015, within NSW [location provided]. She also alleged that she had been sexually assaulted by the perpetrator, who was her manager at work, during the course of her employment between 3 December 2012 and 23 January 2013 “and subsequently”. She alleged that she suffered both physical and psychological injuries as a result and applied for counselling, financial assistance for immediate needs and/or economic loss and a recognition payment.

3. CZJ was not legally represented in relation to her application for support.

Evidence

4. The available evidence indicates that on 19 August 2015, CZJ and attended Kings Cross Police Station and reported that she had been the victim of a sexual assault. The COPS event report indicates (relevantly):

… On speaking with [CZJ], she was asked to explain why she had attended the station and what she would like to report. (She) repeated she wanted to report a sexual assault. Investigators attempted to have (her) identify specific details about this alleged sexual assault however, she was extremely vague and disjointed in her sentences.

Investigators were able to ascertain that [CZJ] gained employment at the (name withheld) bank (location provided) in December 2012, doing pay toll type work. [She] went on to say that she was terminated on the 23rd of January 2013 due to poor performance. After lengthy conversations about this termination, [she] informed police that she had been to the union in regards to her termination however they said there was nothing wrong with it as she was terminated due to poor performance in her probation period. [She] stated that she had been unable to obtain employment since and sought legal advice as she had consensual sex with the branch manager [name provided]. She was told to report this to police and requested that detectives give her a police report number for public housing priority and as the reason she has been unable to work.

[CZJ] was asked why (she) alleged this consensual sex was sexual assault. [She] replied that during a morning meeting, [the manager] spoke about credit card debts and looked at her and said “sexual harassment”. By her own admission, [she] only remembers those specific parts of the morning meeting conversation and nothing else. She was adamant that [the manager] was speaking to her about her large credit card debts (totalling at least $20000) by saying what he did in the meeting. Asked how she deducted this from a group morning meeting, [She] became angry and said that “he had to be”.

[CZJ] was questioned about the consensual sex and after extensive probing investigators were able to glean from her that [the manager] had asked her to stay for a drink and they ended up having sex on the kitchen table of the meal room… this happened about 4 or 5 times. [She] added that [the manager] is married and that it was wrong on his behalf. [She] freely admitted that [he] never promised her anything in return for sex or told her she had to have sex with him. She said she believed that [he] forced her to have sex with him because of her credit card debts. Asked how he did this, [she] referred back to the morning meeting conversation and that it is.

[CZJ] was asked if she understood what rape was and she said “yes, that’s why I didn’t say it was rape. It is sexual assault”. It was explained to her what sexual assault was and she referred again to the conversation in the meeting.

After an extensive conversation with [CZJ], investigators were able to ascertain that she is suffering significant financial hardships, housing difficulties and has not been attending any employment opportunities arranged for her by her employment agency.

[CZJ] recently obtained legal advice from Legal Aid about the fact she had sex with (the manager) and they advised her to report it to police and obtain a report number that they could use.

[CZJ] was informed that police, not Legal Aid, determine when/if an offence has been committed and that police did not believe a sexual assault was committed against her. She was advised a record would be made, but not in regards to a sexual assault. [She] was advised that if she thought she was terminated due to her sexual relations with [the manager], then this was something she needed to speak with the Union and/or the bank about.

[CZJ] appeared to understand this after much explaining and said she would “think of something else and come back”.

A record of this has been made for future reference, should [CZJ] attend another station.

Decision at First Instance

5. On 8 October 2015, 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.

6. The date that the Commissioner posted a copy of the Notice of Decision to CZJ is not indicated in the documents before me, although the covering letter is dated 8 October 2015.

Internal review

7. However, it was not until 16 January 2016, that CZJ sent an email to the Commissioner, in which she stated:

Can I please object the decision as there isn’t any consent on sex happened in the office as was pressured by [the perpetrator] acted as authority at the time.

The Commissioner regarded this email as a request for internal review of the assessor’s decision.

8. On 16 January 2017, the Commissioner responded to this email and provided CZJ with a further copy of the decision dated 8 October 2015. On 20 January 2017, the Commissioner sent an email to CZJ advising her that her case had been dismissed and that she was outside time to lodge a review. She stated:

…If you have any queries you can call the NSW Civil and Administrative Tribunal….

9. On 2 February 2017, the Commissioner wrote to CZJ advising that the legislation allows internal reviews to be considered where a written request is received within 28 days of the decision being sent and that the request for review was declined.

10. Despite this advice, CZJ submitted further medical evidence, namely a report from St Vincent’s Hospital dated 19 February 2014, to the Commissioner under cover of an email dated 26 July 2016. This indicated a diagnosis of ‘mild new-onset comedonal acne’.

Application for Administrative Review

Extension of time for filing application

11. The Application for Administrative Review was lodged out of time and without CZJ duly applying for an internal review within the prescribed timeframes.

12. However, s 55 (4) of the Administrative Decisions Review Act 1997 (“the ADR Act”), provides that the Tribunal may deal with an application for administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

13. Section 5 (5) of the ADR Act provides (relevantly):

In determining whether … an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regards to:

(a) The time when the applicant became aware of the making of the decision; and

…

(c) such other matters as it considers relevant.

14. In the application for administrative review, the applicant provided the following reason for its late lodgement:

The reason is I have been confronting severe accommodation issues. 8 October 2015, I was evicted from Elizabeth Bay Studio because there was rent arrears owing which I had been communicating with real Estate (NCAT File Number RT [number provided]). I had tried my best to catch up with the rent payments without increasing the rent arrears. The main reason why I have difficulties of meeting the rent payments is because I was sexually harassed by [the manager]. The horrible experience has impeded my change of getting employment.

15. I note that the Commissioner posted a copy of the assessor’s decision to CZJ at the address in Elizabeth Bay on the date upon which she was allegedly evicted from those premises.

16. In these circumstances, I am satisfied that it is appropriate for the Tribunal to extend the time for lodging the current application to the it was filed pursuant to s 41 (1) of the Civil and Administrative Tribunal Act (No. 2) 2013. I so order.

Powers on Administrative review

17. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.

18. This matter came before me for directions on 28 April 2017, when CZJ appeared in person and the Commissioner was represented by Mr Singh. I noted that the Commissioner had lodged its bundle of documents under s 58 of the ADR Act. I directed CZJ to file and serve any further evidence by 26 May 2017 and submissions in support of the application by 17 June 2016 and I listed the matter for hearing on 9 June 201715.

19. At the hearing on 9 June 2017 15, CZJ again appeared in person and Mr Singh again appeared for the Commissioner. The Commissioner sought to rely upon written submissions that were filed and served on 7 June 2017.

Applicant’s evidence

20. CZJ sought to rely upon further written evidence, in the form of a 4-page statement, which was neither signed nor dated. She asserted that she had lodged this document with her application for Victims Support, but Mr Singh stated that the Commissioner had not previously received it.

21. The Administrative and Equal Opportunity Division of the Tribunal is not bound by the rules of evidence and as the contents of the applicant’s ‘statement’ appeared to be relevant and probative to the matters in issue, I granted the applicant leave to file it in the proceedings, upon condition that she deposed that its contents are true and correct under oath.

22. CZJ was sworn in and she stated that the contents of her ‘statement’ are true and correct. She also gave further oral evidence, which I have summarised below.

1. She commenced employment as a Customer Service Advisor with the bank in question on 3 December 2012, after a probity check had been completed. She said that she felt that her contract ‘was not very solid’.

2. She asked her manager if she could consolidate her credit card debts and he told her to provide him with copies of her statements and that he would ‘have a look’. She provided him with her bank statements, but not all of them as some had already been ‘dealt with’. She said that some time later her manager asked her to look at the computer and he said that there was no credit card debt with the bank. This was apparently because the debt had been acquired by a credit corporation. She felt that as long as she was employed by the bank she would be able to pay off her credit card debts.

3. She could not recall what happened next, but the manager ‘never came back to me about consolidating the debts’ and ‘I could see that he did not seem willing to help me’. She therefore stopped asking him about this. She did not apply for a consolidation loan because she had a poor credit rating.

4. She stated:

After I started working at the bank I thought that he created an atmosphere of fear in me. During the interview process I had to move several time and I was insecure about my job. In late December (2012) or early January 2013, there was a regular group meeting. He discussed performance issues and he referred to “credit card debts”. I perceived this as an attempt to control me and to make me have sex with him. Also, a colleague told her this was ‘sexual harassment’ and I believed that the manager was asking me for sex by making that comment.

After the meeting, the manager asked the group: ‘Who wants to have a beer with me after work?’ My colleague said ‘no’ and the manager then asked me. I stayed after work and had a drink with him and we then had sex in the kitchen at work. I did not tell him that I didn’t want to have sex with him at the time. But I would not have had sex with him if he hadn’t brought up the credit card debt and [my colleague] told me ‘it was sexual’. I did not ever tell him that I didn’t want to have sex with him. I didn’t feel that we should have sex in the office.

Not long afterwards, the manager started giving me a hard time about my work performance. I felt that I did not have enough training to do the job that I was doing. He asked me to do the ‘register’ and ‘customer service”. My employment was then terminated and he told me that he could not have me there anymore. I did not receive any warnings before my employment was terminated. He just handed me a termination letter and then asked me to have lunch with him and then to go to his place.

On 25 June 2013, [the manager] sent me an email and mentioned a particular venue, where I had been for drinks a few times. I replied to him to ask about job opportunities in the bank, but he didn’t reply. In about October 2013, he asked me to come to see him at a hotel [name provided]. I was feeling very scared but I went to see him for a drink in order to ask him for a reference for work. I didn’t want to offend him as I want to come back to workforce. However, I couldn’t hold my feelings of resenting him as he was behaving like we were together for an unjustified date…

A few weeks later I found lots of pimple-like spots came out my skin. My previous landlord asked me why all these dots came out my skin and my skin was smooth and flawless for the first couple of months… I noticed the bird where I was living had the same spots on its body as its feathers fell off. I went to Medical Centre for the first time in regards to the specific condition on 24 October 2013. I was advised to see Dermatologist. Skin specialist had advised me my skin conditions won’t be cured. I was asked to come to the skin cancer meeting being held in coming September to get my skin examed (sic)…

23. The Tribunal asked CZJ why did not report any of this information to NSW Police? She replied that she had not reported this because she ‘did not remember all of it”. However, she said that she consulted the Union to see whether she could make a complaint about unfair dismissal and the Union advised her that her termination was proper because she was still ‘on probation’. She also said that she did not report these matters to the Police because she was ‘under duress”.

24. The Tribunal also noted that on 12 May 2017, CZJ wrote to it as follows:

I’ve been to the listing on Friday 28 April 2017. In the listing I was instructed that I can provide additional evidence in regards to my case. I have obtained medical report concerning my current health condition from doctor [name provided] on the 2 May 2017. Dots have been found inside my eyes. I believe it was the development of the facial dots which was caused by the pet bird at the time I was living in Vaucluse. My medical report has clarified the same opinion but I suspect she got the other doctor’s name wrong…

At my visit in April in regards to my eye condition, I was seen by a male doctor at room 5. He said there was no dot in my eye whilst blood vessels were clearly around the bulging dots in the eye. Photos can be provided as evidence. He transferred me to room 3. A female doctor looked at my eye condition and sent me to OPSM for detailed examination. A prescription has been provided afterwards.

25. I note that the medical report dated 2 May 2017 indicates that CZJ was advised that the spots on her eyes were “sun related spots and would never go away”. The doctor recorded that this advice ‘distressed her’. CZJ was advised to wear sunglasses as much as possible when outdoors.

Commissioner’s submissions

26. Mr Singh stated that the Commissioner relied upon her written submissions. These indicated (relevantly) that the evidence did not satisfy the definition of ‘act of violence’ under s 19 of the Act. As a result, the decision of the Assessor should be affirmed.

27. The Tribunal then reserved its decision.

28. However, on 19 June 2017, CZJ lodged ‘written submissions’ in support of her application, in which she responded to specific matters set out in the Police COPS Event report. In particular, she denied that she told the Police that she had engaged in consensual sex with her manager. She also asserted that she had suffered a psychological injury in the form of a fear of authority and that she suffers from feelings of victimisation by her manager. However, she did not lodge any medical evidence in support of the allegation of psychological injury.

Consideration

Act of Violence

29. Section 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.

30. “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.

31. Section 19 (8) of the Act defines … sexual assault as meaning (relevantly):

(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,

…

any other act resulting in injury that occurred in the commission of a personal

32. The onus is on CZJ to prove her allegations of sexual assault on the balance of probabilities.

33. Unlike the Assessor, I had the benefit of hearing CZJ give oral evidence. However, her oral evidence did not greatly assist me in determining this claim as she was vague in her description of the events that allegedly occurred within her workplace and she was unable to explain how the comments allegedly made by her manager regarding “credit card debts” was evidence of “sexual harassment”, as she now alleges.

34. I note that there is no contemporaneous report of a sexual assault, as defined in s 19 (8) of the Act to either the Police or other Government Agency and when she did report the matter to the Police, the detectives who interviewed her and created the COPS Event Report, upon which CZJ relies, specifically noted that she told them that she had engaged in “consensual” sex with her manager. While CZJ now complains that this is not an accurate report, I note that there is no evidence before me that supports a decision that she took any action to correct the alleged inaccuracy.

35. Further, in my view, there is no evidence that supports a decision that CZJ suffered any injury as a direct result of an act of violence. The available medical evidence refers to pathology that was allegedly contracted as a result of exposure to sun and/or a pet bird and there is no evidence of any diagnosable psychological injury.

36. Based upon a consideration of all of the available evidence in this matter, I am not satisfied that CZJ was the primary victim of an act of violence in the form of sexual assaults as alleged in the application.

Determination

1. Pursuant to s 63 (3) (a) of the ADR Act, the decision of the Assessor dated 8 October 2015 is affirmed.

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: 24 August 2017