CZU v Commissioner of Victims Rights

[2017] NSWCATAD 240

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CZU v Commissioner of Victims Rights [2017] NSWCATAD 240
Hearing dates:	12 May 2017
Date of orders:	07 August 2017
Decision date:	07 August 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 9 February 2017 is affirmed.
Catchwords:	Victims Rights and Support – administrative review –recognition payment – whether assault resulted in grievous bodily harm
Legislation Cited:	Administrative Decisions Review Act 1997 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 (NSW)
Cases Cited:	BQG v Commissioner of Victims Rights [2015] NSWCATAD 63 Director of Public Prosecutions (Vic) v Miller [1951] VicLawRp 49 Haoui v Regina [2008] NSWCCA 209 R v Blevins (1988) 48 SASR 65 R v Perks (1986) 41 SASR 355 R v Sergi [1974] VR 1
Texts Cited:	Butterworths Concise Australian Legal Dictionary (Second Edition)
Category:	Principal judgment
Parties:	CZU (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: CZU (Applicant in person) J Singh, Victims Services (Respondent)
File Number(s):	2017/00083462
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.

REASON FOR DECISION

1. In these proceedings, which were commenced by an application (“the Application”) filed on 3 March 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 “CZU”).

Background

2. On 29 June 2016, CZU 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 an assault that was perpetrated by [name provided] over a period of time from 26 June 2015 to 1 April 2016, at Gladesville in New South Wales. She alleged that while she was the victim of Domestic/Family violence that was verbal, emotional and psychological in nature and that she suffered a psychological injury as a result. She applied for counselling, financial assistance for immediate needs or economic loss and a recognition payment.

3. CZU was not legally represented in relation to her application for victim’s support.

Evidence

4. The available evidence indicates that on 11 February 2016, CZU reported the domestic/family violence to Police. The COPS Event report indicates that on that occasion, CZU and the perpetrator became involved in a verbal argument about money and Centrelink payments, and the perpetrator was holding their baby daughter and refused to give her to CZU. No injuries were observed.

5. The available evidence also indicates that in November 2015, CZU contacted Ryde Family Services regarding relationship difficulties that she was experiencing with the alleged perpetrator. On 17 February 2016, she described the argument that resulted in the Police report and also stated that there was an episode of recent conflict in which the alleged perpetrator pulled and twisted her nose.

Decision at First Instance

6. On 25 November 2016, an Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 of the Act and determined that an act of violence was not established on the balance of probabilities. The application was therefore dismissed.

7. The Commissioner sent a copy of the Notice of Decision to CZU under cover of a letter dated 6 December 2017, but the date of posting is not indicated in the available evidence. However, I note that CZU requested an internal review of that decision on 3 January 2017. I am therefore satisfied that a copy of the decision was properly served upon her.

Internal Review Decision

8. CZU submitted further evidence in support of the request for internal review of the Assessor’s decision, including a report from Ms M Oliver, Clinical Psychologist, dated 9 January 2017. She reported that she was treating CZU for “a depressive disorder and post-traumatic stress (flashbacks)” and that the major contributing stress factors were “an unwanted pregnancy secondary to domestic violence, with specific reference to mental and physical abuse by her partner”. She has treated CZU with psychotherapy since 5 October 2016 and felt that CZU was making good progress and that her symptoms of depression were decreasing.

9. On 9 February 2017, the Senior Assessor issued a Notice of Review Decision. The Senior Assessor determined that CZU was the primary victim of an act of violence on the balance of probabilities and that CZU was eligible for a Category D recognition payment in the sum of $1,500. The claim for financial assistance for immediate needs was remitted to an Assessor for consideration.

10. On 15 February 2017, the Commissioner posted a copy of the Review Decision to CZU.

Application for Administrative Review

11. On 3 March 2017, CZU applied for administrative review of the Senior Assessor’s decision on the following grounds:

The Notice of Review Decision states, that I am eligible for a category D recognition payment, pursuant to section 35 (4) of the Act.

I am currently under the treatment for a depressive disorder and post-traumatic stress (flashbacks) secondary to domestic violence.

I am a primary victim of an assault that resulted in a really serious psychological injury, such that I have suffered “grievous bodily harm” and not “actual bodily harm” as the Senior Assessor determined. Accordingly, I am of the view that I am eligible for a Category C recognition payment pursuant to section 35 (3) (c) of the Act.

12. 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.

Hearing

13. The Application for Administrative Review came before me for Directions on 28 April 2017, when CZU appeared in person and Mr Singh, of Victims Services, appeared for the Commissioner. The documents provided by the Commissioner under s 58 of the ADR Act appeared to be comprehensive and complete. CZU did not seek leave to file any further evidence and the matter was listed for hearing on 12 May 2017.

14. At the hearing on 12 May 2017, CZU again appeared in person (by telephone) and Mr Singh appeared for the Commissioner.

Act of Violence

15. 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.

16. “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.

17. The onus is on CZU to prove her allegations of assault on the balance of probabilities.

18. Based upon a consideration of all of the available evidence, I am satisfied that an act of violence has been established on the balance of probabilities, as CZU was the victim of an assault and suffered a psychological injury as a result.

Recognition Payment

19. During the hearing, CZU submitted that as a result of the act of violence she required psychological treatment, which is continuing. She stated that she continues to suffer flashbacks and that she has been unable to establish a new relationship because she lacks trust in men and she began living in a Women’s Shelter about 2 months ago. She said that her treatment has involved hypnotherapy, mindfulness training and counselling, but that she has not been prescribed any medication. She felt that her symptoms had improved, and particularly the flashbacks, since she began living in the shelter, but that she has not been given any timeframe for recovery at this time.

20. Mr Singh relied upon written submissions dated 11 May 2017. In relation to the issue of whether CZU was eligible for a category C recognition payment, the written submissions provide:

Issue – Does the evidence support a category C recognition payment?

8. The applicant submits that the act of violence falls within the ambit of s 35 (3) (c) of the Act as an “assault resulting in grievous bodily harm” on the basis that she is suffering from a depressive disorder and post-traumatic stress.

9. The Tribunal’s decision in BQG v Commissioner of Victims Rights [2015] NSWCATAD 63 suggests that a chronic psychological disorder can amount to grievous bodily harm if the injury is of a very serious nature. The Tribunal makes the following points regarding grievous bodily harm:

a. Grievous bodily harm includes any permanent or serious disfiguring of the person. Grievous bodily harm requires that an injury be a really serious one, but does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening: Haoui v R [2008] NSWCCA.

b. The Butterworths Concise Australian Legal Dictionary (Second Edition) defines the term “grievous bodily harm” as:

(i) GBH Bodily injury of a really serious kind; R v Sergi [1974] VicRp 1; R v Blevins (1988) 48 SASR 65.

(ii) At common law the expression has no fixed meaning and should be left to the jury to interpret in accordance with the ordinary current meaning of the word; Director of Public Prosecutions (Vic) v Miller [1951] VicLawRp 49; [1951] VLR 346; R v Perks (1986) 41 SASR 355; 20 A Crim R 201.

c. Whilst the words grievous bodily harm are not expanded upon other than the extension arising from the decision in R v King, it seems on that basis, this is a reference to the definitions, that grievous bodily harm is different to actual bodily harm or psychological or psychiatric harm as defined in section 18 of the Act.

d. Whether a harm relates to a specific type of harm (such as grievous bodily harm) is a question of fact. Specific evidence of injury is required to enable (a) decision maker to ascertain whether the injury falls within the scope of grievous bodily harm.

21. After discussing the available medical evidence, Mr Singh submitted that CZU had not suffered “very serious injury” and as a result, she had not been the victim of an assault that resulted in grievous bodily harm. It followed that she was not eligible for a category C recognition payment and that the decision of the Senior Assessor should be affirmed.

Consideration

22. Based upon a consideration of the principles discussed in the relevant case law and all of the available evidence in this matter, I am not satisfied on the balance of probabilities that the psychological injury that CZU suffered as a result of the act of violence constitutes “very serious injury”.

23. While I accept that the act of violence has had a significant impact upon CZU and that she has required psychological treatment for her depressive disorder and symptoms of post-traumatic stress, there is no evidence before me that supports a finding that her condition required either treatment by a specialist psychiatrist or medication. I also note that while the treating psychologist referred to symptoms of post-traumatic stress, she did not formally diagnose Post-Traumatic Stress Disorder.

24. As a result, I am satisfied to the required standard that the act of violence resulted in actual bodily harm and that CZU is eligible for a Category D recognition payment pursuant to s 35 (4) of the Act.

Order

25. I make the following order:

1. The decision of the Senior Assessor dated 9 February 2017 is affirmed.

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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: 07 August 2017