FFR v Commissioner of Victims Rights
[2022] NSWCATAD 103
•24 March 2022
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FFR v Commissioner of Victims Rights [2022] NSWCATAD 103 Hearing dates: 18 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The decision of the respondent dated 3 November 2021 is affirmed.
Catchwords: VICTIMS SUPPORT – merits review – act of violence –clear intention of Parliament to exclude claims where injury arises from loss or damage to property
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Victims Rights and Support Act 2013
Cases Cited: Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 255
R v Butcher (1986) VR 43
Texts Cited: Macquarie Dictionary
Category: Principal judgment Parties: FFR (Applicant)
Commissioner of Victims Rights (Respondent)Representation: Solicitors:
FFR (Applicant in person)
P Srikanth, Victims Services (Respondent)
File Number(s): 2021/00327162 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons
REASONS FOR DECISION
Background
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On 17 November 2021, the applicant (known as “FFR”) filed an Application for Administrative Review with the Tribunal, seeking review of the respondent’s decision dated 3 November 2021.
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The application for administrative review asserted that FFR’s car was destroyed by fire, which was proven as an act of arson, and that NSW Police had advised her that this was covered by victims compensation. She stated that this incident had severely impacted her.
Application for Victims Support
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On 19 April 2021, FFR lodged an application for victims support in the form of counselling and a recognition payment under the Victims Rights and Support Act 2019 (NSW) (“the Act”). She alleged that she was the primary victim of an act of arson that occurred on 25 February 2021, at Wallerawang in New South Wales, as follows:
Awoken by a neighbour bashing on the door to tell me my car was on fire. Applicant is 60 years old and has COPD, the smoke made her respiratory worse as she had to run down her steps to hose the car before the petrol tank exploded.
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The applicant alleged that she suffered both physical and psychological injuries as a result of this incident, which was reported to NSW Police.
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The application was considered by an Assessor, Client Claims, acting as a delegate of the respondent. On 2 August 2021, the Assessor made an administrative decision that an act of violence was not established on the balance of probabilities as required by s 19 of the Act and dismissed the application.
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The Assessor stated that for FFR to be considered eligible for victims support, the documentary evidence must establish that she was a victim of an act that apparently occurred in the course of the commission of an offence, which has involved violent conduct, and has resulted in physical or psychological injury. When all these elements are established, the applicant is considered a primary victim of an act of violence: s 20 of the Act.
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The Assessor stated that where an offence involving property has occurred and there is no element of direct personal violence against a person or persons, it does not meet the definition of an act of violence for the purposes of s 19 of the Act.
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The Assessor determined that based on the available information, it was not established that FFR was a victim of a personal violence offence. The incident described her vehicle either catching fire or being deliberately set alight; without first establishing that an offence involving violent conduct has been committed against her, it cannot be established that a related injury has been sustained.
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I note that a copy of this decision was posted to FFR under cover of a letter from the respondent dated 2 August 2021, but the date of actual posting is not indicated in the documents before me.
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In any event, on 26 September 2021, FFR applied for an internal review of the Assessor’s decision on the following grounds:
I am seeking this review as this incident was arson. I am the victim here. I have suffered back (pain) through no fault of my own. I now suffer PTSD, panic attacks, you have all the pics and doctors report. I had to move house because of this incident. You have no idea what I go threw because of this. Im 60 years old. This continues to haunt me. I am in regular contact with the mother and it was arson. I lost my 10,000 car because of some idiot that has effected rest of my life. I’m seeking councilling but COVID has put a sop to that. I don’t think you guys understand what I have been through and am still going threw could you please review this thank you.
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On 3 November 2021,a Senior Assessor issued a Notice of Review Decision, which determined that the evidence did not establish on the balance of probabilities that FFR was a primary victim of an act of violence and dismissed the application.
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The Senior Assessor expressed similar reasons to those of the Assessor, Client Claims, and held, relevantly:
Is there an act of violence for the purposes of section 19 and 20 of the Act?
18. I have read the application form and the evidence from Police. I accept that this was a highly distressing incident for (FFR), however based on the description of what occurred, I consider that this was an offence involving property damage only.
19. The Police report does not indicate that (FFR)’s residence was at risk and it is not established that the alleged offender’s actions were intended as violent conduct against (FFR) directly. The evidence indicates that (FFR) sustained injury as an indirect consequence of the alleged offender’s actions.
20. As the evidence refers to a property offence and does not establish that (FFR) was injured as a direct result of violent conduct involving direct personal violence, an act of violence, under section 19 of the Act, is not established.
21. As the evidence does not establish that the applicant was a victim of an act of violence, the application for victims support must, therefore, be dismissed.
22. In making this finding I wish to be clear that there is no intention to minimise the distressing nature of the incident that is the basis of this application. However, I must advise that the legislative criteria for approval of victims support is not satisfied.
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I note that a copy of the review decision was posted to FFR under cover of a letter from the respondent dated 3 November 2021, although the date of actual postage is not indicated in the documents before me.
Application for Administrative Review
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This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (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.
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At the hearing of the application on 18 March 2022, FFR appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent. The respondent had lodged a bundle of documents under s 58 of the ADR Act.
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FFR made oral submissions and informed the Tribunal that this was an act of arson and that it has wrecked her life. The matter is still being investigated by Police. Her vehicle was not insured because she is on a disability pension and she could not afford the premium. She suffered injury because she had to rush to hose the car before the petrol tank exploded and she should be entitled to victims support.
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The respondent relied on written submissions dated 4 March 2022, which asserted, relevantly:
9. “Injury” is defined in section 18 of the Act to mean:
Injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.
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14. While “violent conduct” is not defined in the Act, in considering the ordinary meaning conveyed by the text of a provision, relevantly the Macquarie Dictionary, provides the following definitions:
(a) “violent” as:
i. acting with or characterised by uncontrolled, strong, rough force;
ii. acting with, characterised by, or due to injurious or destructive force;
iii. intense in force, effect etc.
(b) “conduct” as:
i. personal behaviour, way of acting; deportment;
ii. direction or management; execution;
iii. the act of conducting; guidance; escort;
15. In considering the above definitions, the ordinary meaning of violent conduct can be construed as actions using rough or destructive force against a person.
16. Further guidance on violent conduct is found in R v Butcher (1986) VR 43. In this case, in considering what constitutes “violence” it was stated:
However, if actual force is not used, then the menace or threat must either be such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion, if force is used there can be no debate but that this is actual violence. If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is constructive violence, as Willes J said in Donnall’s case. But both putting a person in fear or seeking to put a person in fear of being “subjected to force” have always been accepted under the common law as violence, sufficient to rented a contemporaneous larcency a robbery.
17. There is no evidence that the applicant was subject to force by the offender. In fact, the applicant was asleep when the car caught fire and only became aware of the fire after being awoken by a neighbour.
18. Further, the alleged offender was unknown to the applicant and there is no evidence to suggest that the arson involved a direct personal threat of violent conduct against the applicant that was intended to cause intimidation or submission of the applicant.
19. in the absence of violent conduct and injury not arising from damage to property (as discussed below), there can be no act of violence, notwithstanding that there may be a victim of crime pursuant to s 5. The Act provides such victim certain rights under the Charter of Victims Rights, but not eligibility for the Victims Support Scheme…
Injury
20. To satisfy the requirements of a “primary victim” of an “act of violence” set out in sections 19 and 20 of the Act, the relevant act must result in an injury as a direct consequence of the act of violence. Injury includes actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property…
23. While it is unfortunate that the applicant has suffered the above injury, such did not occur as a direct consequence of violent conduct against the applicant. Further, as noted above, injury arising from loss or damage of property is expressly excluded from the definition of injury contained in section 18 of the Act.
24. As a consequence, the Tribunal cannot e satisfied that section 19(1)(c) of the Act has been satisfied.
Conclusion
25. The respondent believes that the correct and preferable decision is to dismiss the application and affirm the administratively reviewable decision in accordance with section 63(3)(a) of the Administrative Decisions Review Act 1997 (NSW).
Consideration and Findings
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The issue for determination is whether by reason of the act of arson that occurred on 25 February 2021, and the injuries arising as a result of that act, make FFR eligible for victims support under Pt 4 of the Act.
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While not expressly raised by FFR, it is clear that she is asking the Tribunal to adopt a beneficial interpretation of the term “act of violence” as defined in s 19 of the Act. However, the respondent argues that a strict interpretation should be adopted, as a result of which FFR is not eligible for victims support.
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I note that the leading authority as to how courts and tribunals should approach the issue of statutory interpretation is the decision of the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority (1988) 194 CLR 255, in which Brennan CJ stated at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.
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In applying this principle to the current matter, I am satisfied from the express terms of s 18 of the Act that Parliament intended that the definition of “injury”, for the purposes of ss 19 and 20 of the Act, should exclude an injury arising from loss or damage to property.
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As to the issue of what constitutes violence, the respondent relies on the decision in R v Butcher (1986) VR 43, which is set out in para 17 above. In applying that decision to this matter, I am satisfied to the required standard that the evidence before me does not support a finding that the act of arson was either such as to cause personal intimidation or intended to cause intimidation or submission of FFR.
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Rather, the evidence indicates that the alleged offender was not known to FFR and there is no evidence that the alleged offender made any threat of intimidation to her. Therefore, the common law definition of “violence” is not satisfied.
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While the medical evidence supports a finding that FFR suffered both physical injury and psychological or psychiatric harm as a result of the act of arson, those injuries did not arise as a direct result of an act of violence as defined in s 19 of the Act.
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Accordingly, I am satisfied that FFR is not eligible for victims support in respect of the act of arson that occurred on 25 February 2021.
Order
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I order that the decision of the respondent dated 3 November 2021 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: 24 March 2022
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