FFI v Commissioner of Victims Rights

[2023] NSWCATAD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FFI v Commissioner of Victims Rights [2023] NSWCATAD 92

Hearing dates:

31 March 2023

Date of orders:

21 April 2023

Decision date:

21 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer Senior Member

Decision:

(1) The decision of the respondent of 28 July 2022 is set aside.

(2) In substitution of that decision FFI is found to be the victim of an act of violence within the meaning of s 19 of the Victims Rights and Support Act 2013.

(3) The matter is listed for directions before the Tribunal on 26 May 2023 at 9:30am to determine the future conduct of the proceedings.

Catchwords:

Victims Support – Administrative law – act of violence – whether evidence satisfied elements of act of violence – whether evidence established on balance of probabilities as an act or series of related acts - whether medical evidence verifies injury– sufficiency of evidence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Crimes (Administration of Sentences) Act 1999

Crimes (Administration of Sentences) Regulation 2014

Victims Rights and Support Act 2013

Victims Support and Rehabilitation Act 1996 (repealed)

Victims Support and Rehabilitation Regulation 2019

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

DZE v Commissioner of Victims Rights [2020] NSWCATAD 21

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

‘FFI’ – Applicant
Commissioner of Victims Rights - Respondent

Representation:

Counsel:
T Bagley (Applicant)

Solicitors:
M J Corbett (Applicant)
Victims Services Legal (Respondent)

File Number(s):

2021/00313202

Publication restriction:

S 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.

REASONS FOR DECISION

Introduction

1. The applicant has made a claim seeking a recognition payment under the victims of crime scheme. The applicant asserts that he 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 Act’).

2. 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 was a convicted inmate serving a custodial sentence at the time of the incident upon which his claim is made. This matter was established after significant investigation during the prehearing processes before the Tribunal. The matter is significant because as a starting point under the scheme, convicted inmates are ineligible…