Dobbie v Commissioner of Victims Rights

[2018] NSWSC 1989

Supreme Court

New South Wales

Medium Neutral Citation:	Dobbie v Commissioner of Victims Rights [2018] NSWSC 1989
Hearing dates:	27 April 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) By order in the nature of certiorari, set aside the reassessment review decision of the Commissioner of Victims’ Rights dated 5 December 2017. (2) Remit the matter to the Commissioner of Victims’ Rights for redetermination according to law. (3) The defendant to pay the plaintiff’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of delegate of Commissioner of Victims’ Rights – statutory compensation – domestic violence – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘severely disabling’ was unreasonable in view of the report of an Authorised Report Writer (“ARW”) – whether the defendant’s finding that the plaintiff’s psychological injuries were not severely disabling was the result of an error of law – whether the defendant unreasonable declined to rely on the ARW’s findings – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was unreasonable – whether the defendant’s finding that the plaintiff’s psychological injuries were not a ‘direct result’ of the act of violence was an error of law – legal causation –scope of offenders conduct – whether the defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was a result of an error of law in construing the question of fact to be answered
Legislation Cited:	Crimes Act 1900 (NSW), ss 4, 59, 61 Uniform Civil Procedure Rules 2005 (NSW), R 59.10 Victims Rights and Support Act 2013 (NSW), cl 5, ss 9, 10, 14, 42, 43, 49 Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (NSW) Victims Right and Support Regulations 2013 (NSW), cll 16, 19, 20, 21, 27 Victims Support and Rehabilitation Act 1996 (NSW), Sch 1, cll 1, 2, 5, 7A, 51, ss 3, 5, 7, 10, 14, 19A, 65
Cases Cited:	Allianz Australian Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26 Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Hope v Bathurst City Council (1980) 144 CLR 1 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 House of Pearce Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 Minister for Immigration and Boarder Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 Victims Compensation Fund Corporation v Ainsworth and Another (2001) 51 NSWLR 466; [2001] NSWCA 92
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed) The Macquarie Dictionary
Category:	Principal judgment
Parties:	Jason Dobbie (Plaintiff) Commissioner of Victims Rights (Defendant)
Representation:	Counsel:     Solicitors: Kelso Lawyers (Plaintiff) Victim’s Services (Defendant)
File Number(s):	2018/48114

Judgment

1. The plaintiff seeks judicial review of a decision of a delegate of the Commissioner of Victims’ Rights (“the delegate”) in respect of an application for statutory compensation under the Victims Compensation Scheme. As will be explained below, the plaintiff’s entitlements were to be determined in accordance with the now-repealed Victims’ Support and Rehabilitation Act 1996 (NSW) (“The 1996 Act”). He claimed to be entitled to compensation under Sch 1 to The 1996 Act for the compensable injury of category 2, chronic psychological or psychiatric disorder that is severely disabling (“Psych Cat 2”). This injury attracts compensation in the range from $30,000 to $50,000. The delegate was not satisfied that claim had been made out and instead awarded compensation for the compensable injury of Domestic Violence at the maximum of $10,000.

2. The decision of the delegate was made on 5 December 2017 and the summons seeking relief in this Court was filed on 30 January 2018. Within the period of 3 months fixed by Uniform Civil Procedure Rules 2005 (NSW) 59.10.

Grounds

3. The plaintiff relies on the following grounds:

Ground 1:    The defendant’s finding that the plaintiff’s psychological injuries were not ‘severely disabling’ was unreasonable in view of the report by psychologist, Ms Melanie Kelly, Authorised Report Writer (“ARW”).

Ground 2:    The defendant’s finding that the plaintiff’s psychological injuries were not ‘severely disabling’ was the result of an error of law in construing the extent of impairment required to satisfy the description of ‘severely disabling’.

Ground 3: Having regard to cl 5(1A) of Sch 1 The 1996 Act, the defendant unreasonably declined to rely on the findings of the ARW’s report.

Ground 4:    The defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was unreasonable.

Ground 5:    The defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was an error of law, either in relation to the question of legal causation or the scope of the offender’s conduct that would constitute an act of violence.

Ground 6:    The defendant’s finding that the plaintiff’s psychological injuries were not ‘a direct result’ of the act of violence was the result of an error of law in construing the question of fact to be answered.

Background

4. The plaintiff was born in 1990 and from the age of about 4 to 11 years, the plaintiff was subjected to physical violence, intimidation and neglect mainly by his father, and sometimes by his mother. The violence was significant involving frequent beatings with the power cord from an electric jug. In May 2000, the Department of Child Services (as it was then called) intervened. In March 2002, the plaintiff and his siblings were removed from his parents and placed in State care.

5. On 4 October 2012, the plaintiff lodged an application for victim’s compensation under The 1996 Act. On 5 February 2013, the plaintiff was awarded an interim award of $8,000 due to financial hardship.

6. While the application remained pending The 1996 Act was repealed by Victims Rights and Support Act 2013 (NSW) (“The 2013 Act”), which came into force on 3 June 2013. As the plaintiff’s claim had not yet been determined by 7 May 2013 it was then treated as an application under The 2013 Act: cl 5, Sch 2. He was awarded a Category C recognition payment under s 35 The2013 Act of $5,000. As the interim award exceeded this amount no additional payment was made.

7. On 1 September 2015, the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (NSW) came into force. It amended the Victims Rights and Support Regulation 2013 (NSW) (“The 2013 Regulation”), made under The 2013 Act by adding Division 3 of Part 5 of The 2013 Regulation. This permitted ‘transitional claims’ including those like the plaintiff’s, which were pending when the Bill for The2013 Act was first introduced to Parliament to be assessed under The 1996 Act. The plaintiff became eligible to make an application for reassessment of his application (cl 19) before 1 September 2016 (cl 20(1)), however, there was to be no right of review by NSW Civil and Administrative Tribunal’s (“NCAT”) of these reassessments.

8. On 3 June 2016, the plaintiff lodged a reassessment application under cl 19 of The 2013 Regulation. This reassessment application was determined on 20 October 2017. The plaintiff was awarded the additional sum of $1,250. The total determination upon the reassessment was $10,000, the maximum payable for the compensable injury of domestic violence. Of this, $750 was deducted in accordance with s 19A The 1996 Act. The interim payment of $8,000 was also deducted.

9. The plaintiff then requested an internal review of the reassessment determination under s 49 The2013 Act. This provision applied under cl 27 The 2013 Regulation. The plaintiff claimed to be entitled to statutory compensation for the compensable injury of Psych Cat 2 specified in Sch 1 to The 1996 Act.

Legislative Framework

10. So far as is presently material, s 14 The 1996 Act makes the following provision:

1. The statutory compensation for which a primary victim of an act of violence is eligible comprises:

(a)   Compensation for compensable injuries received by the victim as a direct result of the act of violence

11. Section 5 defines acts of violence in so far as it is applicable to the present case, it is in the following terms:

1.  In this Act, an act of violence means an act or series of related acts, were they committed by one or more persons:

1. That has apparently occurred in the course of the commission of an offence, and

2. That has involved violent conduct against one or more persons, and

3. That has resulted in injury or death to one or more of those persons.

Section 5(3) defines the expression “a series of related acts”. It need not be set out; there is no doubt that that expression was applicable to the violence suffered by the plaintiff.

12. Injury is defined by the dictionary as meaning:

1. Actual physical bodily harm;

2. Psychological or psychiatric harm;

3. Repealed

But does not include injury arising from loss or damage to property.

13. By s 7 “a primary victim of an act of violence is a person who receives a compensable injury … as a direct result of that act”. The plaintiff clearly falls into this category.

14. Section 10 is in the following terms:

(a) The schedule of compensable injuries is set out in Schedule 1.

(b)  The schedule specifies those injuries that are compensable injuries for the purposes of this Act.

(c)  The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts. (Emphasis added.)

15. Schedule 1 contains a table of compensable injuries which appears at the end of cl 10. By cll 1 and 2 of the Sch, the injuries specified in column 1 of the table are compensable injuries and the standard amount of compensation for any such compensable injury is the amount, or range of amounts, specified in column 2 opposite the injury.

16. Subclauses 5(1) and (1A) of Sch 1 are important in the present case. They make the following provisions:

(1)   For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant’s condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.

(1A)  In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1).

The qualified person referred to in subcl 5(1) is also known as the ARW and I will refer to the report as the ARW Report. By subcl 16(4) The 2013 Regulation, a reference to the Director is taken to be a reference to the Commissioner.

17. Clause 7A defines the compensable injury of Domestic Violence. For present purposes it is enough to record that it consists of injury resulting from an act that occurred in the commission of a domestic violence offence. In the period leading up to the making of orders in the Children’s Court for the plaintiff’s protection and so far as is material, that provision was in these terms:

The compensable injury of domestic violence consists of …  injury resulting from an act that occurred in the commission of a domestic violence offence… (within the meaning of the Crimes Act 1900).

This was subject to any guidelines made under s 65 The 1996 Act. Neither party drew to my attention the existence of any guidelines and I have proceeded on the assumption that there are none applicable. The table of relevant legislative provisions behind Tab 39 of the Court Book does not refer to any such guidelines. Under s 4 Crimes Act 1900 (NSW) (“Crimes Act”), when the orders were made for the protection of the plaintiff, a domestic violence offence was defined as a personal violence offence committed against, inter alia, a person who is or has been a relative … of the person who commits the offence. Under s 4(6), relative includes “a son”. A personal violence offence is also defined by s 4. It is sufficient to record that the definition embraces common assault and assault occasioning actual bodily harm: ss 61 and 59 Crimes Act respectively.

18. Psychological and psychiatric disorder as a compensable injury was specified in the following way:

Category 1, chronic psychological or psychiatric disorder that is moderately disabling - $7,500 - $15,000.

Category 2, chronic psychological or psychiatric disorder that is severely disabling - $30,000 - $50,000.

19. Accordingly, for the plaintiff to be eligible for statutory compensation for Psych Cat 2 it was necessary for the decision maker to be satisfied, to blend the applicable provisions, that the plaintiff suffered a chronic psychological or psychiatric disorder that is seriously disabling as a direct result of a series of related acts committed by a person in the course of the commission of an offence involving violent conduct against him and that has resulted in injury.

20. The compensable injury of domestic violence, again blending the applicable provisions, would consist of injury, relevantly psychological or psychiatric harm, resulting from an act that occurred in the commission of a domestic violence offence, including the offence of common assault or assault occasioning actual bodily harm, committed by his father against him.

21. For the plaintiff to be eligible for statutory compensation under s 14 for the compensable injury of domestic violence, it remains necessary that the compensable was a “direct result of the act of violence” including an act of violence falling within the extended definition of “a series of related acts”. There is a “double” causation test. To establish a domestic violence injury the causal link is harm resulting from an act, etc. To establish eligibility for statutory compensation under s 14, the domestic violence injury must be the direct result of the act of violence relied upon. The duplication of language makes it clear, that the “direct result” test is stricter than the “resulting from” test.

22. As a matter of statutory construction the psychological or psychiatric harm constituting “injury” simpliciter for the purpose of The 1996 Act need not rise to the level of a recognised disorder required for either Psych Cat 1 or Psych Cat 2. It is enough if one suffers psychological harm such as symptoms of anxiety or distress, even of a temporary, perhaps even transient, nature: cf State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445, Spigelman CJ at [11]:

“I can see no reason why the word “injury” in s 3B(1)(a) should not be given its natural and ordinary meaning. That meaning would encompass the harm occasioned by an apprehension of physical violence. (See also Houda v NSW (2005) Aust Torts Reports ¶81-816 (68,021) at 68,050 [338]-[346], per Cooper AJ.)”

23. For completeness, I should point out by cl 5 of Sch 1, the compensable injury of Psych Cat 1 is only available if it is the direct result of an act of violence that has apparently occurred in the course of the commission of armed robbery, abduction or kidnapping. Psych Cat 1 was not available to the plaintiff.

24. Clause 21 of The 2013 Regulation requires a reassessment application to be determined as if it were an application for statutory compensation duly made under The 1996 Act. The provisions of The 1996 Act continue to apply subject to certain modifications, which are unnecessary for present purposes to specify. However, by cl 27 The 2013 Regulation, s 49 The 2013 Act providing for an internal review of decisions applies to reassessment applications, again, with one modification which is not presently relevant. The decision called into question here is the internal review decision made by the delegate.

Authorised report writer’s report

25. As required by cl 5 of Sch 1 The 1996 Act, the plaintiff’s reassessment application was accompanied by an ARW Report prepared by Ms Kelly. Ms Kelly had the benefit of a long interview with the plaintiff, lasting 90 minutes. She was also provided with other material, which was put before the delegate including a psychological assessment report by Dr Christopher Lennings dated 19 May 2002 and 3 reports of Mr Peter Comino, a qualified social worker dated 20 November 2004, 7 December 2005 and 23 May 2008 respectively. Ms Kelly also administered psychometric tests and recorded the results in her ARW Report and provided her opinion as to their significance.

26. In her opinion, the plaintiff suffered from both Post-Traumatic Stress Disorder (“PTSD”) and a Major Depressive Disorder due to the physical assaults inflicted upon him by his father during the period 1994 to 2002. In her opinion:

“[the plaintiff] showed a severe impairment of functioning evidenced by the impact of the traumatic events on his engagement socially and academically, low motivation, withdrawal, agitation, and a considerable negative view of himself and the future.” (CB 70)

By reference to the Global Assessment of Functioning scale (“GAF”), Ms Kelly indicated that her assessment of severe impairment was “…due to major impairments in several areas including occupational functioning, social relationships, judgement, thinking and mood (depression, suicidal thoughts, foreshortened future)” (CB 70).

27. It is important to understand that in coming to these conclusions, Ms Kelly had regard to the contact of Dr Lenning’s report and the reports of Mr Comino. By necessary implication, to her professional eye, there was nothing inconsistent with her conclusions in any of those reports. She referred to Dr Lennings psychometric test results and Dr Lenning’s opinion that the plaintiff’s “overall cognitive ability places him in the low-average range for ability, or better than the bottom 18% of the population for his age. [The plaintiff’s] academic abilities are well below that expected for his age and ability.” (CB 67 [8.14]) She also recorded Mr Comino’s conclusion of his report of 14 March 2008 that the plaintiff “is doing well at the moment but may need further counselling at a future date” (CB 67 [8.17]). Importantly, none of this material was considered by Ms Kelly to be in any way inconsistent with her own impressions and findings or the conclusions she reached.

28. When explaining her conclusions about functioning in the body of her report (CB 68 [10.1]-[10.6]), Ms Kelly said:

“… [the plaintiff] has impairment in his interpersonal and social relationships, difficulty feeling safe in new environments, often withdrawing socially and with limited protective factors.

[The plaintiff] has been unable to engage in studies or employment, reporting this due to his epilepsy however may equally be due to symptoms of depression including low mood, motivation and low confidence. [The plaintiff] has significant changes in his appetite and his regular suicidal thoughts.

[The plaintiff] experienced some sleep disturbance, agitation, hypervigilance, ruminating over past trauma experiences and grief over the loss of family and disconnection.

[The plaintiff] has limited supports and limited engagement in the community.”

She stated that the results of her psychometric testing showed severe depressive symptoms and severe anxiety, which correlates with the clinical interview (CB 69 [12.1]-[12.2]). The results also indicated a high score of significance in relation to the diagnosis of PTSD. Ms Kelly acknowledged that the test results had some limitations because they are self-report based. However, the self-reporting by the plaintiff was consistent with her clinical impression during her “standard clinical interview” with the plaintiff (CB 69 [12.4]). It is also perhaps important to bear in mind that the only evidence that the plaintiff suffers from epilepsy is his self-report. Dr Lenning had recorded in his report that “[the plaintiff] has been diagnosed with “minor epilepsy” but there is no further information” (CB 72 [6]). The plaintiff told Dr Lenning he had been prescribed Epillim and Dr Lenning wondered whether his vague presentation on interview was due to overmedication.

The delegate’s decision

29. In his Notice of Decision, the delegate (Snr Assessor T. Wallis) found that the abuse perpetrated against the plaintiff by his father were “acts … committed in the commission of an offence which involved violent conduct against the applicant and resulted in psychological harm to the applicant” (at [22]). He was satisfied that the acts were a series of related acts and constituted a single act of violence for the purpose of The 1996 Act (at [23]). His formal finding was expressed in these terms (at [24]):

“[c]onsidered on the balance of probabilities, I find that the evidence establishes an act of violence occurred during the period 1 January 1994 to 31 March 2002, consisting of a series of related acts.”

30. The delegate recorded that the applicant was applying as a primary victim and that such a person was eligible for compensation for compensable injuries received as a direct result of the act of violence in accordance with s 14(1)(a) The 1996 Act. He noted that the applicant was applying on alternative bases. The first identified compensable injury was “domestic violence”. The second was Psych Cat 2. He dealt with the latter first.

31. The delegate directed himself as follows: (at [32]-[35]):

“[t]here are three elements to the compensable injury of psychological/ psychiatric disorder category 2, First, the evidence must show that the applicant has suffered a psychological/ psychiatric disorder Psychological symptoms which do not amount to a disorder are insufficient to satisfy this element. Examples of psychological/ psychiatric disorders include, but are not limited to, post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and anxiety disorder. Second, the evidence must show that such disorder is chronic, This requires that the disorder is of longstanding duration. Third, the evidence must show that such chronic disorder has effects on the applicant that are severely disabling,

The term “severely disabling” is not defined In the Act; however, the wording used to describe this compensable injury, given its ordinary meaning, requires that the evidence establishes the presence of a psychological/psychiatric disorder of chronic duration, causing impairment in functioning that is more serious than a “mild” or “moderate” disability.

The Macquarie Dictionary defines severe as “extreme”, “serious”, and “grave”, in respect of an illness. The Global Assessment of Functioning Scale (GAF), used as a point of reference by Authorised Report Writers (ARW), gives examples of “severe” impairments including: that a person stays in bed all day, has no job, home or friends.

It must be evident that there is a psychological/ psychiatric injury that is a chronic disorder and severely disabling in its effects. It must have been sustained or significantly exacerbated as a result of the act of violence that is the subject of the application. Such an assessment is made on a case-by-case basis taking into account the particular circumstances of an individual applicant.”

32. The delegate analysed Dr Lennings and Mr Comino’s reports quite differently from the ARW. The delegate focused on Dr Lennings opinion about the difficulty of disentangling “the proximal effects of separation from the more long term effects of “problematic parenting and probable abuse”.” (CB 12;[41]) From Mr Comino, the delegate emphasised the former’s impression that the plaintiff “had made significant process particularly in the areas of past and present relationships” (at CB 12; [41]-[42]). The delegate continued (CB 12-13; [43]-[46]):

“Unfortunately there is no recent report from a treating health professional.

The findings of the ARW point to a severe impact on the applicant's functioning, while the report of Dr Lennings makes no conclusion about the applicant's psychological status except for very clear recommendations for treatment and more intensive analysis of the applicant's psychological profile. I note that the report of Mr Comino indicated progress by the applicant, based on counselling which ceased in 2008. Unfortunately, there is a lack of recent evidence from treating health professionals that would indicate the extent of any ongoing severe disability, and there is an absence of evidence regarding any psychological treatment in the period of time between the final report of Mr Comino in 2008 and the ARW assessment in 2016. I cannot make a finding on the limited and somewhat disparate evidence that is before me that the applicant's psychological injury is severely disabling on him.

I also note that the domestic environment of the applicant's childhood whilst living with his parents included both direct physical abuse, and also psychological trauma caused by the perpetrator's mental health issues, parental neglect, and ownership of explosives and firearms. I therefore do not consider any psychological injury the applicant has is a direct result of the act of violence that was inflicted on him as there were multiple stressors in his family environment.

I do not find the compensable injury of psychological or psychiatric disorder category 2: chronic disorder that is severely disabling established.”

33. Not being satisfied that Psych Cat 2 had been established, the delegate turned his attention to the question of the compensable injury of domestic violence (CB 13 [47]-[49]). He directed himself that psychological symptoms, by implication as opposed to disorder, were “sufficient to amount to “injury” for the purpose of establishing the compensable injury of “domestic violence”” (CB 13; [47]). He did not directly address the question of causation connoted by the phrase “direct result” required by s 14. As the delegate was satisfied that the plaintiff was entitled to statutory compensation for this compensable injury, he must be taken to have done so by necessary implication.

The issues

34. I have been greatly assisted by the written submissions of each party prepared by their respective solicitors and by the oral submissions of Mr Kelso, solicitor, for the plaintiff and Mr Ting, solicitor, for the Commissioner. I do not propose to summarise those submissions fully, but I have taken them into account in my decision.

35. For the purpose of identifying the issues, I think it appropriate to group the plaintiff’s grounds into related areas. It is apparent that the delegate rejected the plaintiff’s application for statutory compensation for Psych Cat 2 on two grounds. First, he felt unable to find, on the available evidence, that the plaintiff’s psychiatric disorder was severely disabling. Secondly, he was not satisfied that the plaintiff’s psychological disorder was the direct result of his father’s assaults because the plaintiff was exposed to other stressors in the context of his parents’ dysfunctional and abusive parenting. Grounds 1 to 3 impugn the first finding and grounds 4 to 6, the second. I propose to group grounds 1 to 3, and grounds 4 to 6, together.

36. Ground 1 essentially raises the question of legal unreasonableness reviewed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and recently revisited in Minister for Immigration and Boarder Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713.

37. Ground 2 in substance raises an error of law in the interpretation of the expression “severely disabling”. This may be taken as being a misdirection point, that is to say the plaintiff’s argument is that the delegate fell into jurisdictional error by asking himself the wrong question.

38. Ground 3 is, again, expressed in terms of unreasonableness. It is put that, having regard to cl 51(A) of Sch 1 The 1996 Act, it was unreasonable for the delegate not to act on the ARW’s Report. This, perhaps, may be characterised as an error of law falling into that marginal category where the evidence necessarily satisfied the s 14 statutory test as a matter of law, “because no other application is reasonably open”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (“Azzopardi”) at 157; Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138.

39. In response to Ground 1, the Commissioner argued that the delegate, who is the repository of the statutory power, was required to make an evaluative judgment about whether the plaintiff was eligible in terms of s 14 The 1996 Act. The exercise of the statutory power did not depend upon the exercise of a broad discretion and the doctrine of legal unreasonableness had no real part to play. The questions upon which the plaintiff’s eligibility for statutory compensation depended were questions of fact for determination by the delegate. That the Court might see the facts differently was not to the point. The question of whether the plaintiff’s psychological disorder was severely disabling was itself a question of fact. It was not a technical expression dependent upon the possession of specialised knowledge, although expert evidence was relevant. Rather, the words “severely disabling” were ordinary words and whether they had been satisfied by the material available to the delegate in the case at hand was itself a question of fact not susceptible to judicial review. For the same reasons, the Commissioner disputed Ground 2.

40. In response to Ground 3, the Commissioner said that this was not that category of case where the primary facts found were necessarily within the statutory expression “severely disabling”. Indeed, the delegate did not find primary facts which even supported that legal conclusion.

41. To make Ground 4 good, the plaintiff argued that the finding that the psychological disorder was not “a direct result” of the act of violence was legally unreasonable.

42. Grounds 5 and 6 should be taken together. To me, they both seem to raise the same question of statutory construction and the same issue about whether the delegate asked himself the right question. This latter point also involved, what was referred to as, “the scope of the offender’s conduct that would constitute an act of violence” (see CB 13, [46]).

43. In response to each of Grounds 4 to 6, the Commissioner argued, as per the delegate’s decision, the plaintiff’s condition was not severely disabling and had been made within jurisdiction. Whether the delegate’s decision was or was not affected by legal error, any error was not jurisdictional error because the decision in that regard was not material to the outcome. Reliance was placed upon the dissenting judgment of Kirby P in Azzopardi (at 151). It is unnecessary to set out the whole passage but emphasis was laid on the phrase “crucial to [the] decision”. Since this case was argued before me, the High Court of Australia has emphasised that materiality is an essential attribute of jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780.

Was the decision, that the plaintiff’s psychological disorder was not severely disabling, affected by jurisdictional error?

44. It is quite clear that the ARW’s Report fully supported the plaintiff’s claim that he suffered the compensable injury of Psych Cat 2. Acceptance of the ARW Report would have legally entitled the plaintiff to a finding that he had suffered that compensable injury. The issue which arises is whether the delegate was entitled to reject the opinions expressed by the ARW.

45. The delegate’s reasons for refusing to find in favour of the applicant are encapsulated at [44] of his reasons set out above (at [32]). He appears to infer that the ARW Report does “point to a severe impact on the applicant’s functioning”. Curiously, Dr Lenning’s report of 19 May 2002 appears to give him cause, because of the absence of the expression of an opinion, as to diagnosis. Likewise Mr Comino’s reports, because they indicated some progress. The delegate seems to have regarded these matters as constituting a conflict in the material before him and because there was an absence of evidence from treating health professionals and no evidence of ongoing treatment he said:

“I cannot make a finding on the limited and somewhat disparate evidence that is before me that the applicant’s psychological injury is severely disabling on him”. [sic]

46. It is important to bear in mind that the statutory language defines Psych Cat 2 as “chronic psychological or psychiatric disorder that is severely disabling”. The delegate directed himself that this category of compensable injury has three elements. The first is a psychological disorder. The delegate made it clear that this required a recognised psychiatric disorder, such as a disorder recognised in Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (“DSM-5”), rather than mere psychological symptoms. The second element is one of chronicity and the third element relates to the consequence of the disorder, that is to say, the effects on the sufferer must be severely disabling.

47. The delegate saw the second and third elements as being mere questions of fact for him while the first element obviously depends upon the expression of expert opinion.

48. I am not convinced that the delegate’s approach is correct. First, the statutory expression is obviously a composite or compound concept that should be considered as a whole. There is not necessarily any difficulty in recognising that there may be different elements or aspects to the composite idea but breaking it up into those elements and considering each of them separately is likely to mislead a decision maker. Secondly, I am not convinced that the question of chronicity is always a mere question of primary fact, not depending upon expert opinion. Chronicity may be part of the diagnostic criteria that an expert diagnostician needs to consider. The delegate’s definition of chronic as “longstanding duration” may not match the medical definition of what may properly be regarded as a chronic disorder (CB 11;[32]).

49. Having said this, I acknowledge that these errors were not material. It seems tolerably clear that the delegate accepted that the plaintiff suffered from a chronic psychological disorder, although he does not expressly say so. However, I have drawn this inference because Mr Ting concedes in his written submissions (Defendant’s Submissions (“DS”) at [2]) that the decision not to award statutory compensation “was based on a finding that the plaintiff’s psychological injury was not “severely disabling””. And at DS [6] it is stated “it is common ground that the plaintiff was diagnosed with psychological disorders”. Mr Ting confirmed that there was no issue that the plaintiff suffered a chronic psychological disorder in oral argument (26.15 – 27.10T).

50. I am prepared to act on this basis, however, in recording his findings (CB 13 [46]), the delegate rolled his conclusion up in a compendious way by saying:

“I do not find the compensable injury of “psychological or psychiatric disorder category 2: chronic disorder that is severely disabling” established.”

This rather suggests he was not satisfied of the existence of any of his three elements. Given the conclusions of the ARW, it would have been irrational for the delegate to have rejected the contention that the plaintiff suffered from a chronic psychiatric or psychological disorder. The reports of Dr Lenning and Mr Comino were not to the contrary. They were written for a different purpose and they both accepted, it seems to me, that there were ongoing psychological issues which needed further treatment. The opinion of neither of them is capable of being read as inconsistent with the opinions expressed by the ARW.

51. In my opinion, the delegate misdirected himself as to the meaning of “severely disabling”. I am prepared to accept, as the delegate stated (CB 11; [33]) that the expression severely disabling should be given its ordinary meaning. However, this does not mean that the concept is not to be informed by expert evidence from a psychiatrist or a psychologist. Moreover, one can accept that severe must mean something which is more serious than a mild or moderate disability, as the delegate expressly decided. Indeed one should refine it: severe means something more serious than a moderate disability.

52. But the delegate fell into error (at [34]) when he defined severe by reference to the Macquarie Dictionary’s definition as “extreme”, “serious” and “grave”. He then married this by reference to the GAF scale. From this document he drew examples of “severe” impairments as including: that a person stays in bed all day, has no job, home or friends. Again, the delegate seems to have taken a somewhat unnecessary, and uncalled for, truncated approach to the process of interpretation.

53. Dictionaries may be useful aids in determining the ordinary meaning of a word or phrase. In House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498, Mason P said (at [28]):

“A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice even if published relatively concurrently. They can illustrate the usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.”

54. Following his Honour’s approach, in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 (“Comcare v Martinez”), Robertson J said:

“…in statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context.”

55. Finally I will refer to Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 (“Lee v Showmen’s Guild”) at 338. Sommerville LJ said:

“[i]t is often fallacious in considering the meaning of a phrase consisting of two words to find a meaning which each has separately and then infer that the two together cover the combination so arrived at. The two together may … have acquired a special meaning of their own.”

56. It is also important to bear in mind that in the interpretation or construction of a statute one is generally searching for the legal meaning of the word or phrase in its statutory context. As Beazley ACJ said in Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 at 85:

“[n]or can the meaning of a word as a matter of ordinary English usage override the necessity to construe the statutory language in context."

57. For my part the meaning of the expression “severely disabling” to the extent to which it should be separated from the composite expression is: “more than moderately disabling; seriously disabling.” In my judgment the delegate fell into error when he defined severe separately from disabling as meaning “extreme, serious or grave” by reference to The Macquarie Dictionary definition. The error falls into the categories identified by Robertson J in Comcare v Martinez and Sommerville LJ in Lee v Showmen’s Guild.

58. It was also an error to then consider disabling separately by reference to the GAF, a tool or aid for the use of qualified experts. In particular, with respect, it was an error to cherry-pick from that publication an example of severe impairment as including: a person who stays in bed all day, has no job, home or friends. First, impairment is not necessarily the same thing as disability. Secondly, if, as I believe, in the statutory context the expression severely disabling means more than a moderate or serious disability, Psych Cat 2 obviously will cover a range of different cases. These will extend from merely to somewhat more than moderately disabling to the catastrophically disabling. The example plucked from GAF by the delegate is more consistent with the high end of that range than a condition that has only just crossed its threshold. In my judgment this misdirection; asking himself the wrong question was material to the delegate’s decision and constitutes jurisdictional error.

Legal unreasonableness

59. I return now to the question of whether the delegate was bound to accept and act upon the opinions expressed by the ARW. It is quite clear that cl 5 of Sch 1 constitutes the ARW’s Report (written assessment in the language of the clause) as both necessary (cl 5(1)) and sufficient (cl 5(1A)) evidence for deciding whether there is a compensable injury of a psychological or psychiatric disorder. That such a report, or written assessment, is necessary evidence arises from the language of cl 5(1) which provides that the application for statutory compensation for such an injury must be accompanied by such a written assessment. The sufficiency requirement derives from cl 5(1A). This provision is cast in negative terms and relieves the delegate from any obligation or requirement “to have regard to any report of assessment other than” the ARW’s Report . The purpose of these provisions is obvious. Psychiatric or psychological injuries are to be assessed by an independent ARW who is a qualified person lawfully designated by the Commissioner under the statute for that purpose.

60. It is true that the function of deciding whether the person suffers a chronic psychological or psychiatric disorder that is severely disabling is not expressly conferred upon the ARW. The functions of the Commissioner include considering and determining applications for victims support (s 10). The Commissioner has a duty to consider every duly application for victim support (s 42). In determining the application, the Commissioner is empowered to approve the giving of victim’s support or dismiss the application (s 43(1)) and the Commissioner is empowered to conduct an internal review of a decision in relation to victims support on an application by the victim (s 49). All of these provisions of The 2013 Act taken together make it clear that it is the Commissioner (or the delegate: s 9) who has the authority to make a decision about victims support under The 2013 Act and, under the transitional provisions I have set out above, statutory compensation under The 1996 Act.

61. In the particular case of an application for statutory compensation for psychological disorder, the provisions of cl 5 of Sch 1 of The 1996 Act are central. It seems to me that where the issue is “whether there is a compensable injury of psychological or psychiatric disorder” either Psych Cat 1 or Psych Cat 2, cl 5 of Sch 1 evinces the intention that the delegate must have regard, and give weight, to the assessment made by the ARW; even to the exclusion of other or contrary opinion. The first proposition arises from the consideration that the ARW’s Report is necessary evidence; and the second, from the consideration that the ARW’s Report is sufficient evidence, to support the decision no matter what other evidence is available.

62. It is also clear for the purpose of cl 5 of Sch 1 that the reference to “compensable injury of psychological or psychiatric disorder” is a reference to both of Psych Cat 1 or Psych Cat 2 extending to all of their elements. By that I mean that the delegate is not entitled to disregard the opinion of the ARW as to the whole composite concept embodied in the extended statutory expression. That is to say, the delegate is required to have regard to the ARW’s assessment in relation to not only the existence of a psychological or psychiatric disorder, but also as to its chronicity and the magnitude of its disabling effects.

63. This does not mean that the delegate is reduced to “rubber stamping” the ARW’s opinion. The interpretation I have made still leaves the statutory decision making function in the hands of the delegate. However, the statutory expectation is that the delegate will act upon the ARW’s assessment of the question of compensable injury unless there is compelling contradictory evidence.

64. In my opinion, the reports of Dr Lenning and Mr Comino did not constitute compelling contradictory evidence. Those reports were prepared for a different purpose. They did not purport to address the assessment of compensable injury. Certainly, Mr Comino, as a social worker, could hardly be a qualified person for that purpose. It is also pertinent to bear in mind that those reports were well out of date and did not provide evidence of the plaintiff’s current condition at the time the delegate carried out his review. That is a matter of some significance as the description of the compensable injury specified in column 1 of the table is expressed in the present tense. Psych Cat 2 requires a chronic disorder that is severely disabling. The present tense is most significant. The effect of the disorder must be severely disabling when the decision about statutory compensation is made. Evidence remote in point of time may not be completely irrelevant, but it could hardly trump, in the statutory context, the assessment of the ARW.

65. The delegate’s concern about the absence of contemporaneous treating evidence was doubtless relevant. However, the absence of evidence is not compelling contradictory evidence. Moreover, cl 20(4) of The 2013 Regulation empowers the Commissioner to require a person who makes a reassessment application to provide any documentary evidence or other information requested in writing by the Commissioner. There is no evidence before me that such a request was made.

66. Taking all of these legal considerations into account, while I am of the view that the Commissioner was not legally bound to accept the ARW’s assessment, in the absence of compelling contradictory evidence, his failure to do so was legally unreasonable.

The causation question - Grounds 4 to 6

67. I reiterate that, the causation question is that posed by s 14 The 1996 Act. Assuming the existence of the Psych Cat 2 compensable injury, the question posed by s 14 is whether that injury was the direct result of the act of violence as found by the delegate. As I have pointed out above, the delegate decided this question against the plaintiff in substance because he regarded the act of violence, that is to say, the series of related acts involving beatings with a power cord as but one of “multiple stressors in his family environment” (CB 13 [45]). The other matters included “psychological trauma caused by the perpetrator’s mental health issues, parental neglect and ownership of explosives and firearms” (CB 13;[45]). There was material before the delegate of these other matters. However, there was no evidence that any of those other matters were a cause of the psychological or psychiatric disorders diagnosed. The ARW’s opinion was that the cause of the plaintiff’s condition was the physical assaults on him, and the domestic violence he witnessed on others, in the period ranging from 1994 to 2002. Accepting the other matters may be stressors, there is no evidence that such stressors, in fact, caused the plaintiff’s PTSD or his Major Depressive Disorder.

68. Equally, fundamentally the delegate misdirected himself by treating the statutory phrase “a direct result” as requiring that the act of violence be the sole cause of the compensable injury. In Victims Compensation Fund Corporation v Ainsworth and Another (2001) 51 NSWLR 466; [2001] NSWCA 92 Mason P emphasised (at [30]):

“[t]he Act speaks of “a” direct result, not “the” direct result.”

Mason P also said at [27]:

“The particular statutory language must be kept in mind (here the requirement is proof of “a direct result”). A determination that the necessary causal link is present or absent will usually involve a question of fact, although the reasoning process may reveal an error of law in that the tribunal of fact misdirected itself as to the correct approach to the issue. (Emphasis added.)

In my judgment that is what occurred here. The statutory language, “a direct result” is suggestive of a proximate, effective or dominant cause, but not the sole cause. In determining whether a compensable injury is a direct result of the relevant act of violence, indirect or more remote causes must be eschewed. But as I have said, the evidence here did not elevate those other stressors to the status of causes.

69. As Gummow, Hayne and Heydon JJ observed in Allianz Australia Insurance Limited v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26 at [99]:

“notions of “cause” as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose.”

The objects of The 1996 Act included the provision of “support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme”: s 3(a). The objects extended to providing for the recovery from offenders of compensation paid and a levy on offenders generally for the purpose of funding the statutory compensation scheme. These objects are consistent with a test of legal causation which looks to a direct, rather than an indirect relationship, between the act of violence and the compensable injury. Neither the language of s 14 nor the objects require a test of legal causation which looks for the sole cause.

70. Given what I have said about the delegate’s decision as to compensable injury being affected by jurisdictional error, it follows that absent that error, his decision as to causation is material to the outcome. Both errors in my judgment are material, and therefore jurisdictional errors.

71. The plaintiff also argued that there was an important inconsistency between the delegate’s decision that causation was not established for a compensable injury of Psych Cat 2 but had been when the test of causation established by s 14 (“direct result”) was the same for both injuries (see [21] and [33] above). There is force in this argument. But given my decision that error, if established, is not jurisdictional as it is not “material”.

Orders

72. My orders are:

1. By order in the nature of certiorari, set aside the reassessment review decision of the Commissioner of Victims’ Rights dated 5 December 2017.

2. Remit the matter to the Commissioner of Victims’ Rights for redetermination according to law.

3. The defendant to pay the plaintiff’s costs.

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Decision last updated: 20 December 2018