FNA v Commissioner of Victims Rights

[2023] NSWCATAD 151

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FNA v Commissioner of Victims Rights [2023] NSWCATAD 151

Hearing dates:

9 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The application for administrative review is dismissed for lack of jurisdiction.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – jurisdiction – reviewable decision previously reviewed by Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203

AMP General Insurance Ltd v Kull [2005] NSWCA 442

Briginshaw v Briginshaw (1938) 60 CLR 336;

DZE v Commissioner of Victims Rights [2020] NSWCATAD 21

Eqf v Commissioner of Victims Rights [2021] NSWCATAD 236

FNA v Commissioner of Victims Rights [2022] NSWCATAD 388

Gallo v Dawson (1990) 64 ALJR 458

Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Molyneux v Chief Commissioner of State Revenue 91 ATR 599; [2012] NSWADTAP 53

Nanschild v Pratt [2011] NSWCA 85

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FNA (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Applicant (Self Represented)
K Douch, (Legal, Victims Services) (Respondent)

File Number(s):

2023/00158749

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

1. These proceedings relate to a claim for victims support in the form of financial assistance and a recognition payment lodged by the applicant known by the pseudonym FNA initially before the Commissioner of Victims’ Rights (“the respondent”).

2. The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 9 January 2022. FNA alleged that he was the primary victim of an act of violence in the nature of an assault that occurred a Lakemba, in New South Wales, on 13 November 2021, and that he suffered “bodily injury and mental harm” as a result. He applied for counselling, a recognition payment and financial assistance for immediate needs.

Decision at first instance

3. On 3 February 2022, an Assessor (Client Claims) issued a Notice of Decision, which determined that FNA was the primary victim of an act of violence and approved a Category D recognition payment in the sum of $1,500.00, on the basis that he was the victim of an assault not resulting in grievous bodily harm.

4. In making that determination, the Assessor referred to the Certificate of Injury completed by FNA’s GP on 2 February 2022. This describes sleep disturbance and pain in the “tooth”, knee and left leg.

5. However, the Assessor did not approve the claims for financial assistance for immediate needs and out of pocket expenses, on the basis that the expenses claimed were business expenses and were not incurred as a direct result of the act of violence. The Assessor stated (at [29]):

You can apply for an internal review within 90 days after the day you were given notice of this decision.

6. I note that a copy of the Notice of Decision was emailed to FNA under cover of a letter from the respondent dated 3 February 2022.

7. However, FNA did not apply for an internal review of that decision.

8. On 26 July 2022, an Assessor (Client Claims) issued a Notice of Decision with respect to the claim for financial assistance for economic loss. The Assessor disallowed the claim on the basis that there was insufficient evidence to establish that FNA was unable to work during the periods claimed as a direct result of the act of violence. At para [14], the Assessor stated:

You can apply for an internal review within 90 days after the day you were given notice of this decision.

9. I note that a copy of the Notice of Decision was emailed to FNA under cover of a letter from the respondent dated 26 July 2022.

10. However, FNA did not apply for an internal review of that decision.

Previous application for administrative review

11. On 30 August 2022, the Tribunal received an application for administrative review, which sought a review of the respondent’s decision dated 26 July 2022, on the following grounds:

1. Failure to comply with ss 35(d), 36(e), 43(5) and 26(1) of the Victims Rights Act (sic) 2013, and its regulation.

2. Failure to comply with the Workers Compensation Act, s 82.

12. In that application, FNA asserted that he had applied for an internal review and that the Respondent had not responded within the time allowed (deemed refusal). He also stated:

... I was assaulted, the offender was an aboriginal man, he demolished my place, where I live and work. I sustained many injuries and damaged two electronic devices, computers, iPhones come up furniture and main door glass and structure. Indeed, rice suffered serious physical harm and injuries including back neck foot leg and dental injuries Ain other psychological injuries. I lost my capacity to earn, also I have two business is. Injuries certificates, invoices, payslips Ain other documents were supplied, but in vain.

The episode was documented by the NSW forensic team, and it has been acknowledged by the victims services NSW on 10 Jan 2022...

Since then, I tried to obtain my entitlements under the Victim's Rights and Compensation Act (sic) 2013 And other legislation.

The assessor … tried maliciously to diminish my entitlements, over 8 months, by applying subjective rules come out false resumptions (sic) with invalid technicality to reduce my entitlements.

since the assault in Nov 2021, I tried to recover some of my financial, physical, mental and property loss, but this was in vain.

To manage a past my case to a fanatic assessor … as a delegate off the Commissioner of Victims’ Rights has used his power subjectively, to inflict emotional harm, which lead to add more harm to the victim status, and instead of assist the venerable victims, they discredit an attack the injured and make their life more miserable. Thus, (the Assessor) is in breach of the Code of Ethics and Conduct for NSW public servant.

Every time I submit a request to the victim services they ask for more documents, no empathy and very rude servants, and reply after full weeks of each inquiries, most of the public servants are not working according to their employment contracts and abuse the victims systematically. A negligent management system, where staff provide misleading and or false information, no ethics, no respect to protocols, as no one control their actions. In the end, the victims will receive more harm and or develop major depression and or mental disorders.

Determination of the previous application

13. The matter came before me for a directions hearing on 23 September 2022, at which FNA appeared in person and Ms K Douch, Victims Services, appeared for the Respondent. Ms Douch stated that FNA had not applied for an internal review of any decision made by the Respondent.

14. I noted that the applicant had applied for administrative review of the Respondent’s decision dated 26 July 2022, which related to the claim for financial assistance, and I stated that this Tribunal did not have jurisdiction to review that decision.

15. FNA replied that this was a “mistake” on his part and that he wanted a review of the decision dated 3 February 2022, which was in relation to the claim for a recognition payment.

16. Accordingly, the Tribunal granted FNA leave to file and serve an amended application, which sought administrative review of the decision dated 3 February 2022, on the basis that the application was lodged out of time.

17. The Tribunal also ordered the respondent to file and serve a bundle of documents under s 58 of the ADR Act and to file and serve its summary of legal arguments by 28 October 2022. The matter was listed for hearing on 3 November 2022.

18. I conducted a hearing on 3 November 2022, at which FNA appeared in person and Ms Douch appeared for the Respondent.

19. The Tribunal noted that on 6 October 2022, FNA filed an amended application for administrative review, but that this did not comply with the leave granted during the directions hearing. The only obvious amendments were the inclusion of “s 51” of the Act in Ground 1, and the addition of the word “Amended” after the title of the document. However, the application still sought a review of the decision dated 26 July 2022 and maintained FNA’s assertion that there was a “deemed refusal” in relation to an application for internal review.

20. The Tribunal repeated its previous ruling that it lacked jurisdiction to administratively review the decision dated 26 July 2022.

21. The Tribunal also noted that instead of providing an explanation for his failure to request an internal review and/or to file the application for administrative review within time, FNA instead purported to request an internal review of the decision dated 26 July 2022 from the respondent. In fact, he attached a copy of that request to his amended application.

22. FNA maintained his view that the respondent had not determined his request for internal review. However, the Tribunal noted that the respondent had no discretion to extend the time in which an internal review could be requested and, in any event, he purported to request an internal review of a decision that the Tribunal did not have power to review.

23. FNA then stated that the reference to the decision dated 26 July 2022 was “a mistake” and that he was seeking administrative review of the decision dated 3 February 2022.

24. The Tribunal noted that while it has a discretion to extend the time for filing the application for administrative review under s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), this provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

25. The Tribunal noted that in his request for review dated 23 September 2022, FNA stated:

The assessor has not considered appropriately, the materials supplied to the departments of VA, including medical certificates, injury certificates and recently the physiotherapy assessment. The assault has been established and was evidenced by 34 images and video, end result caused physical and mental injuries to the victim, and classified as “serious bodily harm” by many court/tribunal cases, and supported by (Police report: number provided). it cannot be classified as category D for recognition payment. further, an immediate payment of $5000 shall be made on 3 Feb 2022 and other payments of household items, closing doors/locks damages, security cameras and appliances ($1650 + 300 + 2000 + 300 + 2300).

The appropriate category for recognition payment is B as described in s 35(2) of the VSR Act.

26. The Tribunal asked FNA to clarify why he believed that he was eligible for a Category B recognition payment, noting that s 35(2) of the Act provides that this is given in respect of “an act of violence or act of modern slavery of the following kinds”:

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.

27. The Tribunal asked FNA whether he alleged that he was the victim of an act of violence of the type(s) described in ss 35(2)(a) or (b)? He replied, “No”.

28. FNA then stated that his injuries were “serious” and permanent (he had lost 2 teeth) and that the assessment of a category D recognition payment was “wrong”.

29. The Tribunal referred to the report from L Alba, physiotherapist, dated 16 September 2022, which FNA attached to his request for internal review, which indicated that he received “soft tissue therapy” to his shoulder and neck and joint mobilisations of the cervical and thoracic spines and that a home based exercise program was prescribed, but no scans were necessary.

30. FNA said that he also suffered “adjustment disorder” and the Tribunal noted that his GP provided a medical certificate dated 26 September 2022, which referred to an “adjustment disorder”. However, this also referred to “the accident” on 13 November “202” (sic). FNA replied that there was no “accident” and that the doctor had made a mistake in the medical certificate.

31. The Tribunal asked FNA why he had failed to either request an internal review of the decision dated 3 February 2022 or to file the application for administrative review within time. He replied that he was not aware of his review rights at that time.

32. However, the Tribunal referred FNA to para 29 of the decision dated 3 February 2022, which provided:

You can apply for an internal review within 90 days after the day you were given notice of this decision.

33. FNA then stated that he “did not read that part of the decision” at that time because he was in a lot of pain relating to his teeth and his neck and shoulder and he also was taking Zoloft and Panadeine Forte.

34. The Tribunal asked FNA whether he had received any treatment for his adjustment disorder from a psychiatrist or psychologist. He replied “No”.

35. The Respondent filed written submissions on 28 October 2022, which argued that if the applicant wished to proceed with a review of the decision dated 3 February 2022, he would need to file a further amended application for administrative review, and this would be significantly out of time.

36. In relation to s 41 of the NCAT Act, the Respondent referred to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel stated, relevantly (at [22]):

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant – Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(3) Generally, in an application for an extension of time the Appeal Panel will be required to consider:

(a) the length of the delay;

(b) the reason for the delay;

(c) the appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) the extent of any prejudice suffered by the respondent (to the appeal),

Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [49] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] – [59].

37. The Respondent argued that the application for administrative review was filed substantially out of time and FNA had not provided a satisfactory explanation for the delay, noting that he was clearly advised of his review rights in all of the decisions.

38. The Respondent also argued that FNA had not proved that his matter had more substantial merit than merely being arguable, and that an extension of time should not be granted. Further, his supporting medical evidence did not support a finding that he suffered grievous bodily harm as a direct result of the injuries suffered in the act of violence.

39. The Respondent noted that the Tribunal had previously held that under s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), it has jurisdiction to administratively review a decision where there has not been an internal review. Section 55(4)(b) provides:

However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

40. Therefore, the respondent concluded that the current application should be dismissed.

41. On 1 December 2022, the Tribunal published its decision in FNA v Commissioner of Victims Rights [2022] NSWCATAD 388. The Tribunal refused FNA’s application for an extension of time and dismissed the application for administrative review on the basis that it had no prospects of success.

42. The Tribunal was not satisfied, based upon the available evidence, that the application for administrative review was filed within a reasonable time after FNA became aware of the decision dated 3 February 2022. Further, in determining whether it was appropriate to exercise the Tribunal’s discretion to extend the time for filing that application under s 41 of the NCAT Act, it was necessary to consider the merits of the application and its prospects of success. The Tribunal stated, relevantly:

50. While FNA’s late request for internal review to the Respondent sought a category B recognition payment under s 35(2) of the Act, the relevant act of violence does not satisfy the description in either ss 35(2)(a) or (b).

51. As a result, for FNA to succeed upon review, he must prove that he was the victim of an assault resulting in grievous bodily harm. If so, he is eligible for a category C recognition payment under s 35(3)(c) of the Act. If not, the Respondent’s decision must be affirmed.

52. For the following reasons, based on the evidence before me, I am not satisfied that FNA suffered grievous bodily harm as a direct result of the injuries suffered in the act of violence.

53. The Tribunal has considered the meaning of “grievous bodily harm” in numerous occasions and was guided by the commentary in Haoui v Regina [2008] NSWCCA 209 (Haoui) in which Beazley JA (as her Honour then was) stated:

137. The trial judge informed the jury that the third element of the offence, namely, that the impact caused “grievous bodily harm” was in dispute. His Honour directed the jury to look at “the seriousness of the injury that Mr Mousselamani suffered”. The trial judge correctly directed the jury as to the meaning of “grievous bodily harm” and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to “grievous bodily harm” which, he explained, “simply means really serious bodily injury”. No challenge is made to this direction, although the adverbial qualification of “simply”, should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to “grievous bodily harm”. His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that “grievous bodily harm” meant that the injury was “a really serious one”

54. The decision in Haoui was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated, relevantly:

70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…

55. A finding of grievous bodily harm involves a higher threshold than actual bodily harm. In relation to a psychological injury, the threshold for actual bodily harm was considered in Shu Qiang Li v R [2005] NSWCA 442:

45 A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to “actual bodily harm” (see R v Lardner, unreported, NSWCCA, 10 September 1998). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant.

56. In this matter, I note that while the FNA complains of ongoing pain and that he lost two teeth, I am not satisfied that the medical evidence relating to the physical injuries provides a safe climate for a finding that he suffered grievous bodily harm as a result of the act of violence.

57. In relation to the “adjustment disorder”, to which FNA’s treating GP refers in his medical certificates, there is no evidence before me that FNA has required or received any treatment from either a psychiatrist or psychologist. On that basis, I am not satisfied that the available evidence provides a safe climate for a finding that FNA suffered grievous bodily harm as a direct result of the adjustment disorder.

Current application for administrative review

43. FNA filed the current application for administrative review on 18 May 2023, and sought an administrative review of the respondent’s decision dated “3 May 2023”, pursuant to “s51 of the Victims Rights and Support Act 2013”.

44. In this application, FNA asserted that he had made an application for internal review and the respondent had not responded within the time allowed (deemed refusal).

45. Attached to the application was a copy of a Notice of Decision by an Assessor (Client Claims) dated 21 June 2022 (not 3 May 2023 as stated in the application), which approved victims support for FNA in the form of financial assistance for economic loss totalling $536.90.

46. In support of this application, FNA filed a Statutory Declaration that he signed in May 2023 (the date of execution is difficult to decipher), in which he described himself as “Legal/Journalist”. After setting out a background to the act of violence and his application for victims support, FNA stated, relevantly:

21. On 19 Apr 2023 a medical imaging revealed that I was received additional injuries, including two hernia and left ankle joint tenosynovitis with venous thromboses and fatty liver disease. Those conditions are more than a trauma. The medical evidence shows multiple injuries.

22. On 26 Apr 2023, the Assessor Mr Madison, after seven months of waiting for financial support, he simply rejected any payments eligibility for the certificate of earning that I submitted from Aug 2022 to Apr 2023. Claiming that I received income from third parties, but cannot give any evidence. Mr Madison ignored the documentary evidence and unfairly, he attacked the medical reports physicians claiming that the imaging reports and the GP reports are not good evidence, therefore, no support available under the VRS Act, and denied any rights for the victim…

24. The victim eligibility for support has been established, also affirmed in the case of Briginshaw v Briginshaw (1938) 60 CLR 336; [1930] AC 1; DZE v Commissioner of Victims Rights [2020] NSWCATAD 21 at [30]-[35]; EQF V Commissioner of Victims Rights [2021] NSWCATAD 236.

25. Section 4 of the Crime Act 1900 (NSW) defined “Grievous bodily harm” at (b) “any permanent or serious disfiguration of the person”.

26. On 27 Apr 2023, I requested a review of my case, by Ms Alice from VS (Victims Support) department has refused my internal review request. considering that my injuries has been stabilised and affirmed by the updated medical conditions and the original recognition of category D decision is not accurate and shall be reviewed pursuant to s 35(3)(A)(c) (sic) of the Act.

27. On 8 May the medical specialist Mr Jay Abeysinghe has examined me and booked my operation for both hernias for 11 July 2023. The costs of the surgery are about $8,000 plus, and it has not been approved yet by the assessor, and deemed to be refused.

28. Most of the VS support assessors are trained to degrade, attack the credibility of the minority victims. The department statistics show that over 50% of all claims submitted in 2022 to VS were refused unfairly, where most assessors targeting victims from disadvantaged minorities or communities. With no regards, no respect, no duty of care, no ethics or compliance of any code of conduct or human rights laws. The VS department protocols and internal policies are made or aimed at maximise the exclusion of victims rights, distorting the meaning and the application of the VRS Act 2013 and its Regulation 2019, with the effect to increase victim suffering, inflect (sic) severe emotional harm and or mental disorder, which seems to be a serious breach of Human Rights Laws.

47. However, I note that FNA did not refer to this Tribunal’s decision dated 1 December 2022 in his Statutory Declaration and he did not disclose that this Tribunal has previously advised him that it lacks power to administratively review a decision in relation to financial assistance. I regard these matters as significant in the context of the current application.

Further directions hearing

48. On 9 June 2023, I conducted a directions hearing, at which FNA appeared in person and Ms K Douch, Victims Services, appeared for the respondent.

49. The Tribunal noted that the current application sought administrative review of a decision in relation to financial assistance and confirmed that the Tribunal does not have jurisdiction to determine such a decision.

50. However, FNA replied to the effect that this is “a mistake” and that he is actually seeking a further review of the respondent’s decision dated 3 February 2022. He stated that he had filed further medical evidence in the Registry that morning.

51. Ms Douch drew the Tribunal’s attention to its decision dated 1 December 2022, which determined FNA’s previous application for administrative review in relation to the approval for a category D recognition payment. She noted that the Tribunal refused to grant FNA an extension of time to file his application for administrative review, which was significantly out of time, and dismissed the application on the basis that there were no prospects of success.

52. In response, FNA stated that he now had evidence to support that he had suffered further injuries as a result of the act of violence.

Ex Tempore Determination

53. The Tribunal determined that it had no jurisdiction to determine the current application for administrative review, as an application in respect of the recognition payment was determined on 1 December 2022.

54. FNA then stated to the effect that he intended to appeal the Tribunal’s decision and he requested that the Tribunal provide him with written reasons.

55. In response to that request, I confirm my determination that in view of the decision dated 1 December 2022 (FNA v Commissioner of Victims Rights [2022] NSWCATAD 388), the Tribunal has no jurisdiction to determine the current application for administrative review. My reasons are as follows:

1. The decision that was the subject of the Tribunal’s decision dated 1 December 2022 was made by the respondent in respect of an application for victims support that FNA lodged on 9 January 2022;

2. That application for victims support alleged that FNA was the primary victim of an act of violence, in the nature of an assault, which occurred on 13 November 2021, at Lakemba, in New South Wales;

3. On 3 February 2022, an Assessor approved a category D recognition payment for FNA in the sum of $1,500.00;

4. Contrary to FNA’s assertions in the previous proceedings, he did not request an internal review before he filed the previous application for administrative review with this Tribunal;

5. FNA has not alleged that he has been the victim of any further act of violence and now seeks a further administrative review of the respondent’s decision dated 3 February 2022;

6. FNA asserted that in 27 April 2023, he requested a further review of “his case” from the respondent, and that the respondent rejected that request. I am satisfied that as this request was made out of time and after the Tribunal’s determination dated 1 December 2022. Accordingly, the respondent had no power to further review the decision dated 3 February 2022;

7. In view of the Tribunal’s decision dated 1 December 2022, it does not have jurisdiction to conduct a further administrative review of the respondent’s decision dated 3 February 2022; and

8. While the decision identified in (and attached to) the current application for administrative review is dated 21 June 2022, that decision approved financial assistance for economic loss and this Tribunal lacks jurisdiction to administratively review a decision made by the respondent in relation to claims for financial assistance.

Conclusion

56. For these reasons, I determined that the Tribunal lacked jurisdiction to determine the current application and that the application should be dismissed.

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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: 16 June 2023