FPD v Commissioner of Victims' Rights

[2023] NSWCATAD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPD v Commissioner of Victims’ Rights [2023] NSWCATAD 54

Hearing dates:

17 February 2023

Date of orders:

13 March 2023

Decision date:

13 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The respondent’s decision dated 7 October 2022 is set aside and I make the following decision by way of substitution:

(a) FPD was the primary victim of an act of violence as defined by ss 19 and 20 of the Act on the balance of probabilities; and

(b) FPD is eligible for a category D recognition payment in the sum of $1,500.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – act of violence – fresh evidence – application to re-open matter after decision reserved - recognition payment.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Act 2013 (NSW)

Victims’ Rights and Support Act 2013 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FPD (Applicant)
Commissioner of Victims’ Rights (Respondent)

Representation:

Applicant (Self Represented)
K Douch, Victims’ Services, Department of Communities and Justice (Respondent)

File Number(s):

2022./00333516

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 counselling and a recognition payment lodged by the applicant known by the pseudonym FPD 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 13 February 2014. FPD alleged that he was the primary victim of an act of violence in the nature of an assault that occurred at Cronulla, in New South Wales, on 22 September 2013 and that he suffered “physical injury” and “psychological injury” as a result.

3. In particular, FPD alleges that the alleged offender (named in this decision as SM) hit him unexpectedly while he was walking into a gym and that his head snapped back, in a whiplash fashion, causing him injury.

4. FPD stated that he reported the matter to police that day, but that Police did not take any action against the alleged offender after interviewing two persons whom FPD identified as witnesses to the incident. The Police COPS event record (number provided) indicates that SM denied assaulting FPD and that while FPD took out a Personal Violence Order against SM, this was later annulled by the Local Court.

Decision at first instance

5. On 26 May 2022, an Assessor (Client Claims) issued a Notice of Decision which determined that an act of violence was not established on the balance of probabilities and dismissed the application. In making that decision, the Assessor placed weight on the fact that Police were not satisfied that FPD was the victim of an assault in the manner alleged.

6. The Assessor was also not satisfied that the available medical evidence, including a clinical note from Dr Robles dated 30 October 2013 that indicates that FPD gave a history of pain in the back of the neck after he was “slapped hard on the chest and pushed his head backwards”, was sufficient to establish an injury as a result of the alleged act of violence on the balance of probabilities.

7. I note that a copy of this decision was emailed to the applicant under cover of a letter from the Respondent dated 26 May 2022. Accordingly, I am satisfied that a copy of this decision was served in the manner required by the Act.

Internal review

8. On 22 August 2022, FDP applied for an internal review of the decision dated 26 May 2022, on numerous grounds, including an attempt to rely upon SM’s death in 2019, earlier alleged breaches of AVO’s and a Community Corrections Order that was in place at that time “as powerful evidence as to SM’s violent character”. He also argued that he suffered a whiplash-type injury and that this took some time to “become manifest”.

9. On 29 August 2022, FPD sent a further email to the respondent, including further submissions in support of an assertion that the Assessor erred by finding that there was no act of violence based on the fact that the Personal Violence Order was discharged. He also asserted that the Assessor erred by failing to have regard “that SM gave untruthful evidence and by failing to have regard to SM’s character”. On 31 August 2022, he sent a further email to the respondent, again referring to SM’s character and including an email that FPD sent to the Magistrate on 2 July 2022 regarding SM.

10. On 7 October 2022, the Senior Assessor issued a Notice of Review Decision, which determined that there was insufficient evidence to establish that FPD was the primary victim of an act of violence on the balance of probabilities, and dismissed the application.

11. In particular, the Senior Assessor stated, relevantly:

33. The Police report, which details police’s very contemporaneous investigation of the alleged assault, states that police were not able to detect that there had been any assault against (FPD) by SM. Police spoke with (FDP), SM and a person nominated as a witness by (FPD) (as well as a further person) and they ascertained that (FPD) had not been assaulted by SM. I acknowledge (FPD’s) assertion that SM allegedly gave untruthful evidence, however, I have no further evidence to support this claim.

34. I also acknowledge (FPD’s) repeated reference to SM’s character and credibility, referring to a high range PCA conviction, failed drug test, community corrections order, and him as a “colourful addition to the legal profession”. While this may indicate that SM may have acted in a manner which contravened the Solicitors’ Conduct Rules, this is not a matter for me to decide. It does not, however, provide a sufficient basis for me to establish that he assaulted (FPD) when there is a very clear finding by police (on the day of the event) that no assault occurred.

35. In regard to the medical evidence provided, I note that this indicates that (FPD) suffers from a worsening back condition. While I am empathetic to (FPD), there is insufficient evide4nce that this is as a result of an assault. I note that (FPD) reported to Dr Robles that was “slapped hard on the chest and push his head backwards”, however, this self-report to a doctor does not satisfy me that an assault has occurred.

36. On the evidence before me, I am not satisfied that SM has perpetrated any offence or apparent offence against (FPD). Accordingly, all of the elements of section 19 of the Act are not present. An act of violence is therefore not established and (FPD)’s application for victims support is dismissed.

12. I note that a copy of this decision was emailed to FPD under cover of a letter from the respondent dated 7 October 2022. Accordingly, I am satisfied that the notice of decision was served in the manner required by the Act.

Application for Administrative Review

13. 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.

14. On 7 November 2022, the Tribunal received the current application for administrative review, which sought review of the decision dated 7 October 2022 on multiple grounds, including that the Senior Assessor erred:

1. By way of being misled in finding an act of violence is not established;

2. In not placing weight or any sufficient evidence on the objective evidence and history of SM’s violent character, life and credibility found in the facts surrounding his life and death at age 30, the effects of which are cumulative and “establishes a pattern of violent and criminal behaviour that is persuasive that SM had assaulted the Applicant in the manner claimed”; and

3. In not placing weight on objective facts that, at the time of the assault on 22 September 2013, the Applicant was “+62 ½ years of age”. SM was 33 years of age. This is a 29 year age gap. In the circumstances of the assault a 29 year age gap is significant.

15. FDP also sought to rely upon fresh evidence, namely, that at the time of the alleged assault:

1. FDP weighed approximately 72 kilos and SM weighed approximately 85 to 88 kilos;

2. SM was physically taller and had a more youthful and fit physique than FPD;

3. FPD was disabled with orthopaedic injuries resulting from a motor vehicle accident on 1 February 2013 and he was frail and his left hip and left femur were “sensitive and vulnerable to knocks and blows”;

4. It would have been physically impossible for a person of FPD’s age, with significant orthopaedic injuries and disabilities, to attempt to barge past SM in the manner that SM alleged to Police;

5. Therefore, “as a reasonable, sensible and logical deduction”, it is not credible that the incident occurred in the manner set out in the Police report, upon which the Assessor placed such weight;

6. He intended to “serve a subpoena on the Police Officer and to cross examine him about the errors in his report that led to such an inaccurate account that the Assessor relied on and hench, such an unfair outcome”;

7. Given the weight the Assessor placed on the police report, the decision to dismiss the application was procured and brought about by fraud. FPD also alleged that SM “blow beat and intimidated the other witnesses to the assault, (identified in this decision as AL and CA, respectively);

8. CA later told the Registrar of the Gym that he saw SM assault FPD in the manner described in the application and CA later confirmed this “to the Applicant”. He intended to serve a subpoena on CA to attend and give evidence; and

9. SM’s assault upon FPD was “the act of a bully and an act of ageism against a senior person… and it should be called out as such”.

16. The matter came before Senior Member McAteer for directions on 2 December 2022. FPD, who identified himself as a solicitor, appeared in person and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He ordered the respondent to file and serve documents under s 58 of the ADR Act by 13 December 2022 and he ordered FPD to file and serve his evidence in support by 27 January 2023. He granted FPD leave to issue summons to attend to give evidence to AL and CA, noted that FPD had issued a summons in respect of NSW Police material, and ordered the respondent to file and serve submissions by 10 February 2023. He listed the matter for hearing on 17 February 2023.

The hearing

17. At the hearing on 17 February 2023, FPD appeared in person and Ms K Douch appeared for the respondent.

18. FPD relied upon his statement filed 1 February 2023 and the following medical reports:

1. Report from Orthosports dated 8 March 2012;

2. Report from Urology Sydney dated 4 February 2014;

3. Body scan report dated 6 February 2014;

4. Reports from Shire Urology dated 11 April 2014 and 14 April 2014; and

5. Report of Dr G Fitzgerald dated 30/01/2013.

19. I note that these reports addressed the injuries that FPD suffered in his previous motor vehicle accident, but they do not directly address the injury allegedly suffered as a result of the act of violence.

20. FPD also stated that he had issues a summons to give evidence to 3 witnesses, namely AL, CA and Constable A Costabile of NSW Police, and that each witness was in attendance.

21. In addition, I note that on 23 January 2023, FPD sent an email to the Tribunal and the respondent, stating that he had “made a short video of the location where the assault took place” and that he sought to rely upon it. However, the file was too large to file or serve by way of email and he asked with the Tribunal was able to receive this evidence by way of “air Drop or text message attachment:.

22. At the hearing, FPD sought to rely upon the “video” evidence, which he said was created “recently”. He sought to submit this evidence in the form of a USB drive.

23. However, the Tribunal rejected the tender of this evidence on the basis that it was been previously served upon the respondent and it was created more than 9 years after the date of the alleged assault. Accordingly, there was a significant issue regarding the weight that should be given to evidence of that nature.

24. FPD called CA and he took an oath. He stated that as at 21 September 2013, he was a member of the gym. He initially stated that he did not “witness” an incident between FPD and SM, but said that he “heard something, which sounded like a tackle in a rugby league game”. He then stated that SM had stepped in front of FPD and “barged him into the wall” and that “FPD hit his head on the wall”. After that “a few words were said and then they separated.”

25. CA stated that he did not recall the police attending the gym and he had no recollection of the police interviewing him.

26. In cross-examination, Ms Douch noted that in his evidence, FPD stated that CA was present and that he did not wish to speak to police.

27. CA was then excused from the proceedings.

28. FPD then called AL and he took an affirmation. He stated that as at 21 September 2013, he was a member of the gym. He said that he did not recall whether he was present in the gym on that date, but that he recalled that there was tension between FPD and SM before that date. He denied witnessing any incident between FPD and SM on that date, but said that he did recall “an unpleasant conversation afterwards” and that FPD decided to call the police. He denied recalling any physical altercation between FPD and SM.

29. FPD showed AL an email dated 2 October 2013, which FPD alleged that AL had sent to him. However, AL asserted that this email “was a fake” and said that “I do not speak like that”.

30. FPD sought to “press” this issue, but AL noted that the copy of the email that was shown to him (and provided to the Tribunal) had the email address of the sender blacked out. FPD stated that he did not have a copy of the email (with the sender’s address intact) with him in the hearing room and that he was “not prepared” to deal with the witness’ denial of authorship of the email.

31. FPD put his version of the alleged assault to AL and asked him to confirm that this was accurate. However, AL replied to the effect that he “did not recall”, although he later said that he recalled a discussion about a payment by way of a bottle of cognac.

32. FPD put to AL that SM had hit him. AL denied this.

33. FPD put to AL that SM “had shouldered me”. AL denied this,

34. FPD put to AL that he had seen SM “bully me” and AL replied – “maybe you were”.

35. FPD put to AL that the police attended the gym, but Al said that he did not recall being interviewed by police.

36. In cross-examination, Ms Douch noted that the police report indicated that AL said that he did not want to be involved.

37. In re-examination, FPD put to AL that it was possible that he had not seen SM “shoulder me”. The witness agreed. He was then excused from further attendance.

38. FPD then called Detective Senior Constable Costabile and he took an oath.

39. FPD put to the witness that the police report was “wrong”. However, the witness denied this and he stated that he completed the report based on the enquiries that were made at that time.

40. FPD put to the witness that he was in fact the victim and that SM was “the aggressor”, but the witness stated that he stood by the contents of his report.

41. The respondent did not seek to cross-examine the witness and he was excused from the proceedings.

Applicant’s submissions

42. FPD did not file separate submissions, but I note that much of his “statement” filed on 1 February 2023 was in the nature of submissions. I also note that in addition to matters that he had previously raised, FPD also stated that following the alleged assault, a member of the gym (who I have described as MM for the purposes of this decision), told him that SM had attempted to intimidate him in a cafe and that SM had consumed a can of beer at breakfast and “had real problem with alcohol”.

43. However, I note that there is no direct evidence from MM and that this “evidence” is in the nature of hearsay. While this Tribunal is not bound by the rules of evidence in these proceedings, the evidence relied upon must be logical and probative and in my view, this “evidence” does not satisfy that test.

Respondent’s submissions

44. The respondent relied upon the submissions filed on 14 February 2023, which are to the effect that the correct and preferable decision is for the Tribunal to affirm the Senior Assessor’s decision dated 7 October 2022.

Applicant’s submissions in reply

45. On 17 February 2023, FPD filed submissions in reply. I note that he took issue with most of the statements referred to by the respondent, but that these submissions did not raise any new matters.

46. The Tribunal reserved its decision.

Application to re-open the matter

47. On 20 February 2023, FPD sent an email to the Tribunal in which he sought to re-open his case in order to further cross-examine the witness named as AL “as to his denial of the email I showed him in the witness box, was in fact, his”. In the alternative, he sought to tender into evidence “his contemporaneous emails, including the email he denied” and an email chain, which was allegedly between FPD and AL dated 27 September 2013 and 2 October 2013”, on the basis that this evidence “shows his evidence that it was not his email is false”. He stated, relevantly:

These emails contradict his testimony that the email in question was not his. His denial thwarted my cross examination. It denied me the opportunity to traverse important factual issues central to my case.

The prejudice is irremediable. The hearing miscarried by reason of (AL)’s false at the hearing and the account he gave to the police on 22 September 2013.”

48. Further, on 20 February 2023, FPD sought to file further evidence, including a schedule of out of pocket expenses with respect to his “treatment” for injuries allegedly suffered as a result of the act of violence. However, I note that FPD did not seek leave to file or serve any further evidence in support of his application at any time before the Tribunal reserved its decision.

49. On 21 February 2023, the Tribunal wrote to the parties, advising that as the matter was reserved and there was no timetable for filing further submissions, FPD’s emails would not be considered.

50. On 22 February 2023, FPD sent a further email to the Tribunal in which he asserted that the Tribunal’s letter dated 21 February 2023 was “wrong in law”, because only the Member could decide his application to re-open his application. He argued that it was in the interests of justice that his application be allowed.

48. On 28 February 2023, the respondent sent an email to the Tribunal, advising that there was no objection to FPD relying upon unredacted emails between himself and AL, but that the respondent objected to reliance on any further medical evidence or submissions in relation to medical treatment.

Application to re-open refused

52. Notwithstanding the matters raised by FPD in his emails dated 20 February 2023 and 22 February 2023, I note that while FPD appeared in person, he has at all relevant times described himself as a solicitor. This is not a matter in which the applicant lacks legal qualifications. While FPD asserted that his cross-examination of AL was “thwarted” by the witness’ denial that he wrote the email in question, it is difficult to understand how a competent legal practitioner could proceed to cross-examine a witness, who was potentially a hostile witness, without properly preparing.

53. In my view, the unredacted emails, upon which FPD now seeks to rely, were clearly within his possession, custody or control as at the date of the hearing and he has not provided an explanation for his failure to file and serve them, in accordance with the Timetable set by the Tribunal. With all due respect, it is no excuse for FPD to assert, as he did during the hearing, that he “did not expect” the witness to deny that he wrote the relevant emails.

54. Accordingly, the application to re-open the matter is refused.

Consideration

Act of violence

55. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

56. “Act of violence” is defined in s 19(1) of the Act as follows (relevantly):

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

57. Section 20(1) of the Act defines “primary victim” as follows:

A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…

58. The onus is on FPD to prove the allegation that he was the primary victim of an act of violence in the nature of an assault perpetrated by SM on the balance of probabilities.

59. Unlike the Assessor and Senior Assessor, I had the opportunity to hearing from three witnesses and observing their demeanour.

60. I accept Detective Senior Constable Costabile as a witness of truth and am satisfied to the required standard that his report was based upon the information that was available to him at the time of the alleged assault. However, there is no evidence that he interviewed CA at any time before the report was prepared and while AL was interviewed, the report clearly indicates that he did not want to get involved.

61. CA stated under oath that he clearly recalled an incident of assault by SM upon FPD on the date alleged in the application, although his recollection was that he heard something that he described as “a rugby league tackle”. He was unable to offer any explanation as to why he did not provide a statement to police at the time.

62. I also had the opportunity of observing AL while he was giving his evidence. It was apparent that AL was displeased that he was required to attend and give evidence in the proceedings and his manner was clearly hostile. For this reason, I am not satisfied that he is a witness of credit and/or that his evidence, such as it is, should be given any significant weight.

63. In any event, this Tribunal is not bound by the decision made by the police, to the effect that there was no basis for prosecution against SM. The police were required to determine whether there was sufficient evidence to justify a prosecution based upon the criminal standard of proof – beyond a reasonable doubt. However, the current proceedings are civil in nature and the relevant test is whether I am actually persuaded that an assault occurred on the balance of probabilities.

64. Considering all of the available evidence in this matter, I am satisfied that an act of violence has been established on the balance of probabilities, and that FPD was the primary victim of an act of violence as defined in ss 19 and 20 of the Act.

Recognition payment

65. The available evidence supports a finding that FPD suffered a soft tissue injury to his cervical spine as a direct result of the act of violence. However, there is no evidence before me that supports a finding that FPD suffered grievous bodily harm as a result of the act of violence.

66. Accordingly, I am satisfied that FPD is eligible for a Category D recognition payment on the basis that he was the victim of an assault resulting in actual bodily harm.

Conclusion

67. I make the following orders:

1. The respondent’s decision dated 7 October 2022 is set aside and I make the following decision by way of substitution:

1. FPD was the primary victim of an act of violence as defined by ss19 and 20 of the Act on the balance of probabilities; and

2. FPD is eligible for a category D recognition payment in the sum of $1,500.

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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: 13 March 2023