FDT v Commissioner of Victims Rights - [2022] NSWCATAD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FDT v Commissioner of Victims Rights [2022] NSWCATAD 155
Hearing dates: 18 February 2022
Date of orders: 18 May 2022
Decision date: 18 May 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the respondent of 21 May 2021 is set aside.
(2) In substitution of that decision FDT is awarded a Category B recognition payment in accordance with s 35 (2) (b) and s 36 (1) (c ) of the Victims Rights and Support Act 2013.

Catchwords:
VICTIMS Support – Administrative law – act of violence – whether evidence satisfied elements of act of violence – whether evidence established on balance of probabilities as series of related acts - whether medical evidence verifies injury–- sufficiency of evidence - whether applicant primary victim of act of violence being a series of related acts

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2014
Crimes Act 1900
Victims Rights and Support Act 2013
Victims Support and Rehabilitation Act 1996 (repealed)
Victims Support and Rehabilitation Regulation 2019

Cases Cited:
BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 137
BMF v Commissioner of Victims Rights [2016] NSWCATAD 144
CRT v Commissioner of Victims Rights [2017] NSWCATAD 174
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
Fleming v White [1981] 2 NSWLR 719
Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604
R v Donovan [1934] 2 KB 498
Victims Compensation Fund Corporation v Brown [2003] HCA 54
Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA

Texts Cited:
Macquarie Dictionary (3rd Edition)

Category: Principal judgment
Parties: FDT (Applicant)
Commissioner of Victims Rights (Respondent)
Representation: Solicitors:
Women’s Legal Service NSW (Applicant)
Victims Services Legal (Respondent

File Number(s): 2021/00296963
Publication restriction: S 64 (1) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.

REASONS FOR DECISION

Introduction

The applicant has made a claim seeking a recognition payment under the victims of crime scheme. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (the V S and R Act).
In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant had previously established that she was the victim of violent crime and was entitled to a recognition payment.
On Internal Review the same matters were established with the reviewer affirming…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FDT v Commissioner of Victims Rights

Details

AGLC: FDT v Commissioner of Victims Rights [2022] NSWCATAD 155
Case: [2022] NSWCATAD 155
Decision Date: 18 May 2022

CaseChat Overview and Summary

The case of FDT v Commissioner of Victims Rights involved an individual seeking recognition and compensation as a victim of a series of related acts of violence under the Victims Rights and Support Act 2013. The primary issue before the court was whether the evidence presented by the applicant was sufficient to satisfy the elements required to classify the acts as an act of violence, specifically whether they constituted a series of related acts and if the evidence established this on the balance of probabilities. The court was also required to determine whether the medical evidence provided was adequate to verify the injury sustained by the applicant and to establish that the applicant was the primary victim of the acts of violence in question.

In assessing these issues, the court examined the evidence presented by the applicant, which included witness statements and medical reports. The court found that the evidence, while not perfect, was sufficient to conclude on the balance of probabilities that the acts in question were indeed a series of related acts of violence. The medical evidence provided was deemed adequate to verify the injury, and it was established that the applicant was the primary victim of these acts. The court held that the decision of the respondent, which had denied the application for recognition, was flawed in its assessment of the sufficiency of the evidence.

The court concluded that the decision of the respondent was set aside, and in its place, the applicant was awarded a Category B recognition payment. This decision recognised the applicant as a primary victim of the acts of violence as a series of related acts, in accordance with the statutory provisions. The court's ruling emphasised the importance of a balanced approach in assessing the sufficiency of evidence in such cases, ensuring that the rights of victims are upheld and appropriately compensated under the Act.

Orders

Orders of the court

(1) The decision of the respondent of 21 May 2021 is set aside.

(2) In substitution of that decision FDT is awarded a Category B recognition payment in accordance with s 35 (2) (b) and s 36 (1) (c ) of the Victims Rights and Support Act 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	FDT v Commissioner of Victims Rights [2022] NSWCATAD 155
Hearing dates:	18 February 2022
Date of orders:	18 May 2022
Decision date:	18 May 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent of 21 May 2021 is set aside. (2) In substitution of that decision FDT is awarded a Category B recognition payment in accordance with s 35 (2) (b) and s 36 (1) (c ) of the Victims Rights and Support Act 2013.
Catchwords:	VICTIMS Support – Administrative law – act of violence – whether evidence satisfied elements of act of violence – whether evidence established on balance of probabilities as series of related acts - whether medical evidence verifies injury–- sufficiency of evidence - whether applicant primary victim of act of violence being a series of related acts
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Crimes Act 1900 Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 (repealed) Victims Support and Rehabilitation Regulation 2019
Cases Cited:	BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 137 BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Fleming v White [1981] 2 NSWLR 719 Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604 R v Donovan [1934] 2 KB 498 Victims Compensation Fund Corporation v Brown [2003] HCA 54 Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA
Texts Cited:	Macquarie Dictionary (3rd Edition)
Category:	Principal judgment
Parties:	FDT (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Women’s Legal Service NSW (Applicant) Victims Services Legal (Respondent
File Number(s):	2021/00296963
Publication restriction:	S 64 (1) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.