FQR v Commissioner of Victims Rights

[2023] NSWCATAD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FQR v Commissioner of Victims Rights [2023] NSWCATAD 66

Hearing dates:

3 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The respondent’s decision dated 14 November 2022 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – recognition payment – grievous bodily harm – beneficial legislation

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Victims Rights and Support Act 2013 (NSW)

Victims Rights and Support Regulation 2019 (NSW)

Cases Cited:

AM v R [2012] NSWCCA 203

EGM v Commissioner of Victims Rights [2020] NSWCATAD 181

FGD v Commissioner of Victims Rights [2022] NSWCATAD 118

FQE v Commissioner of Victims Rights [2023] NSWCATAD 62

Haoui v R [2008] NSWCCA 209

Victims Compensation Fund Corporation v Brown [2003] HCA 54

Texts Cited:

None

Category:

Principal judgment

Parties:

FQE (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Ms P Skuse, Wirringa Baiya Aboriginal Women’s Legal Centre (Applicant)
Ms K Douch, Victims Services (Respondent)

File Number(s):

2022/00375465

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 lodged by the applicant known by the pseudonym FQR 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) on17 February 2022, and alleged that FQR was the victim of an act of violence that was committed her ex-partner (the alleged offender) over a period of time from 1 February 2019 to 20 September 2020, at Westmead, in New South Wales. She alleged that the alleged offender had been physically and psychologically abusive towards her for about 2 years, she had suffered bruising over all of her body and she still endured severe trauma from the abuse. She also alleged that he stalked, threatened and harassed her many times. threatening towards her, had broken into her home, demanded money for drugs and threatened violence. She alleged that she suffered physical injuries and a psychological injury as a result and sought victims support in the form of counselling, financial assistance for immediate needs and a recognition payment.

3. FQR stated that she reported these matters to NSW Police on 10 September 2020 and that a non-contact Apprehended Domestic Violence Order (ADVO) was made at Parramatta Local Court on 22 September 2020.

Decision at first instance

4. On 28 February 2022, an Assessor (Client Claims) issued a Notice of Decision which determined that FQR was the victim of an act of violence in the nature of domestic violence and approved financial assistance for immediate needs totalling $2,800.

5. The Assessor noted that in support of her application for the ADVO, FQR stated that the alleged offender threatened and harassed her and he constantly came to her home uninvited (approximately 50 to 70 times) and she felt harassed by his actions. She also stated that on 4 September 2020, he approached her whilst she was on a train and threatened her. She said that she had moved to her Mother’s home on a temporary basis because of panic attacks and was intending to relocate.

6. The Assessor stated that there was currently no evidence from a medical practitioner, dentist or counsellor in support of the claim and suggested that FQR should ask a medical practitioner or counsellor to complete a Certificate of Injury. The approval of financial assistance for immediate needs comprised fees for security rent and a removalist.

7. I note that a copy of this decision was emailed to FQR’s solicitor under cover of a letter from the respondent dated 28 February 2022.

8. On 6 July 2022, an Assessor (Client Claims) issued a further Notice of Decision in relation to the application for a recognition payment. The Assessor determined that FQR was the primary victim of an act of violence under ss 19 and 20 of the Act and that she was eligible for a category D recognition payment in the sum of $1,500.

9. The Assessor considered a report that established that FQR was injured as a direct result of the act of violence and that this caused an impact to her health and wellbeing. The act of violence was considered to be a series of related acts as they were committed against FQR by the same offender over a period of time. No relevant factors were noted under s 44 of the Act.

10. I note that a copy of this decision was emailed to FQR’s solicitor under cover of a letter from the respondent dated 6 July 2022. I am therefore satisfied that this decision was served as required by the Act.

Internal review

11. On 4 October 2022, FQR’s solicitors wrote to the respondent and requested an internal review of the decision dated 6 July 2022 on the following grounds:

(1) The original assessor erred in finding that the applicant’s psychological injury did not amount to grievous bodily harm;

(2) The original assessor erred in failing to provide sufficient reasons as to why the applicant’s injury did not amount to grievous bodily harm; and

(3) The original assessor erred in failing to apply the beneficial intent of the Victims Rights and Support Act 2013 (NSW) (the Act).

12. FQR’s solicitors lodged written submissions in support of the application for internal review and relied upon a Certificate of Injury dated 29 April 2022 and a copy of the Provisional ADVO dated 18 September 2022.

13. In her Certificate of Injury dated 29 April 2022, Ms A Volona, a Mental Health Social Worker, that FQR attended her practice on 25 March 2022 and gave a history of injury that occurred on 3 September 2020 that was caused by domestic violence by the alleged offender. She noted that the alleged offender “kicked her door, threatened to stab her… she had experienced 2-3 years of violence from him (punched, choked, beaten her, would not let her leave the house, verbally put her down)… before this incident was reported to police. FQR complained of severe anxiety, hyper-vigilance, flashbacks, sleeping problems, nightmares, memory and concentration problems, emotional numbness, self-doubt and low esteem, agoraphobia and avoidance behaviour”.

14. Ms Volona provided a provisional diagnosis of “post traumatic stress”, which was consistent with the incident as described to her. She also noted that FQR had been involved in a prior “domestic violence” relationship. She expressed the view that FQR required further treatment from allied health professionals (mental social work & counselling) and that a further appointment had been arranged on 20 May 2022.

15. Based upon Ms Volona’s Certificate, FQR’s solicitors submitted that the respondent should find that FQR suffered grievous bodily harm “especially when considered together with the nature and duration of the resulting symptoms”. In particular, they referred to this Tribunal’s decision in EGM v Commissioner of Victims Rights [2020] NCWCATAD 181, in which the Tribunal found that the applicant had suffered grievous bodily harm, on the basis that FQR’s symptoms “are relevantly similar to those in EGM”. They noted that in EGM, a counselling report was issued almost one and a half years after the act of violence and that as Ms Volona’s certificate was issued about the same length of time after the act of violence, it is evidence that FQR’s psychological injury is ongoing.

16. FQR’s solicitors also argued that as the purpose of the Act is beneficial, it ought to be interpreted liberally and beneficially and in favour of the grant of benefits to an applicant. They asserted that the original assessor erred by not giving enough weight to the beneficial intent of the Act.

17. FQR’s solicitors concluded that FQR had suffered grievous bodily harm as a result of the act of violence and that a category C recognition payment should be approved in the sum of $5,000.

18. On 15 November 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FQR was the primary victim of an act of violence and that she was eligible for a category D recognition payment in the sum of $1,500.

19. The Senior Assessor referred to the Court records regarding he issue of the ADVO and Ms Volona’s certificate of injury and found that this did not enable a finding to be made regarding the severity of FQR’s psychological condition, or establish the effect to which the act of violence caused it. There was no description as to how the disorder developed as a result of the act of violence, the extent to which any symptoms impacted her day to day functioning or what treatment she received with respect to her condition. Accordingly, the Senior Assessor stated that they were unable to find that FQR suffered grievous bodily harm as a result of the psychological injury suffered as a result of the act of violence.

20. I note that a copy of the Review Decision was emailed to FQR’s solicitors under cover of a letter from the respondent dated 14 November 2022. I am therefore satisfied that this decision was served in the manner required by the Act.

Application for Administrative Review

21. 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.

22. On 13 December 2022, the Tribunal received the administrative review application, which sought a review of the respondent’s decision dated 14 November 2022 on the following grounds:

1. The Senior Assessor erred in finding that the Applicant’s psychological injuries did not amount to grievous bodily harm; and

2. The Senior Assessor erred in not giving sufficient weight to the beneficial intent of the Act.

Directions hearing

23. I conducted a directions hearing on 20 January 2023. Ms P Skuse appeared for the applicant and Ms K Douch appeared for the respondent. The matter was not ready to proceed and I listed the matter for a further directions hearing on 3 February 2023.

24. Senior Member McAteer conducted a directions hearing on 3 February 2023. Ms Skuse again appeared for the applicant and Ms Douch appeared for the respondent. He made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act); extended the time for filing the application to 13 December 2022 (pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act); ordered the applicant to file and serve submissions on or before 17 February 2023 and ordered the respondent to file and serve submissions on or before 2 March 2023. He listed the matter for hearing on 3 March 2023.

The hearing

25. At the hearing on 3 March 2023, Ms Skuse appeared for the applicant and Ms Douch appeared for the respondent.

26. I noted that FQR had not filed any further evidence in support of the application and enquired of Ms Skuse whether FQR intended to participate in the hearing, as her participation would assist the Tribunal in determining the matter.

27. Ms Skuse replied to the effect that FQR was “at work”. While Ms Skuse was able to provide a contact telephone number for her client, she stated that “she probably won’t answer”.

28. The Tribunal attempted to telephone FQR using the number provided by Ms Skuse, but she did not answer the call.

Applicant’s submissions

29. Ms Skuse relied upon written submissions filed on 16 February 2023, which argued to the effect that the Ms Volona’s Certificate of Injury demonstrates that FQR is suffering a long-term injury that impacts her daily functioning, which is sufficient to support a finding of grievous bodily harm.

30. As was the case in their submissions to the respondent, they referred to the commentary on Haoui v Regina [2008] NSWCCA 209 to define “grievous bodily harm”, which was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated:

70. …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”.

31. FQR’s solicitors also referred to prior decisions of this Tribunal in which a finding of grievous bodily harm was made in relation to a psychological injury, namely: FGD v Commissioner of Victims Rights [2022] NSWCATAD 118 and EGM. They argued that “the counselling evidence records ongoing symptoms which significantly and self-evidently impact her day to day functioning, consistent with a finding of grievous bodily harm”. They also stated, relevantly:

18. The Applicant’s symptoms, resulting from the act of violence, are relevantly similar to those in EGM and FGD. When considered together with the beneficial intent of the Act, it is open to the Tribunal to make a finding of “really serious” psychological injury.

32. The Tribunal noted that there is no evidence that indicates that FQR is having any ongoing treatment for her psychological injury or any medical evidence that indicates a final diagnosis. Further, FQR’s apparent current employment is not referred to in, or addressed by, the submissions and it has not been possible to clarify these matters with FQR given her absence from the hearing.

Respondent’s submissions

33. On 1 March 2023, the Tribunal received the respondent’s submissions, which argued that the correct and preferable decision is to affirm the Senior Assessors’ decision dated 14 November 2022.

34. The respondent referred to Ms Volona’s certificate of injury and submitted that there is no medical evidence to indicate that the applicant has been formally diagnosed with a mental health disorder. There is also no evidence that she has been referred for treatment by a psychologist or psychiatrist or that she has been prescribed any medication by a medical practitioner and the available evidence does not support a finding of grievous bodily harm.

35. In response to the applicant’s submissions regarding previous decisions of this Tribunal, the respondent argued to the effect that in each of those matters the Tribunal was assisted on the evidence that the applicant required ongoing treatment by medical practitioners and/or that the act of violence had an extreme impact on the applicant and/or that symptoms continued for an extensive period of time after the act of violence. However, in this matter there is no available evidence that supports any such findings.

36. In relation to the FQR’s argument regarding the “beneficial intent of the legislation”, the respondent relied upon the decision of the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 (at [33]):

… Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".

37. Neither party sought to make oral submissions during the hearing.

Consideration

Act of violence

38. 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.

39. “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.

…

(3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because—

(a) they were committed against the same person, and

(b) in the opinion of the Tribunal or the Commissioner—

(i) they were committed at approximately the same time, or

(ii) they were committed over a period of time by the same person or group of persons, or

(iii) they were, for any other reason, related to each other…

40. Section 20 of the Act defines “primary victim” as follows:

(1) 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…

41. The onus is on FQR to prove the allegation that she was the primary victim of an act of violence in the nature of domestic violence on the balance of probabilities.

42. As required by ss 19(1), (3) and (4) of the Act, I am satisfied on the balance of probabilities that FQR was the primary victim of an act of violence, which was perpetrated by the alleged offender over a period of time from 1 February 2019 to 20 September 2020 and that she suffered a psychological injury as a result.

43. I am also satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.

Recognition payment

44. It is necessary to determine the relevant category of recognition payment that FQR is eligible to receive as a result of her injuries.

45. The respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that FQD was the victim of an assault not resulting in grievous bodily harm.

46. I note that at first instance, the Assessor effectively determined that a category D recognition payment was appropriate because FQR’s medical evidence was considered inadequate for a finding that she had suffered grievous bodily harm.

47. In effect, s 35(3)(c) of the Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. However, “grievous bodily harm” is not defined in the Act.

44. I have considered all of the medical evidence before me, which comprises a certificate of injury that contains a provisional diagnosis of post-traumatic stress, which was consistent with an incident described on 3 September 2020.

45. There is no evidence in the form of a statement from FQR that addresses the symptoms that she suffered, the treatment that she received and/or the impact of her symptoms on her day to day functioning, and there is no evidence from a medical practitioner or psychologist, or any evidence from Ms Volona after 29 April 2022.

46. Further, during the hearing, Ms Skuse advised the Tribunal that the applicant was not attending the hearing because she was at work and although the Tribunal stated that it would be assisted by her participation in the hearing, and attempted to contact her by telephone, the applicant did not answer the call. Accordingly, there is evidence before me that the applicant has some current work capacity, which is a relevant factor in considering the ongoing impact on a person’s day to day functioning.

47. The parties have cited the decision in Haoui regarding the meaning of “grievous bodily harm”, which was cited with approval by Johnson J in Am v R [2012] NSWCCA 203. This has been set out previously in this decision and it is not further extracted below.

48. Based upon the available evidence, I am not satisfied that the act of violence resulted in a “really serious” psychological injury and that FQR suffered grievous bodily harm.

49. It follows that I am satisfied that FQR is eligible for a category D recognition payment in the sum of $1,500.

Section 44 considerations

54. I have considered the factors set out in s 44 of the Act and am satisfied that there are no factors that support a decision not to approve the giving of victims support or to reduce the amount of support to be approved.

Conclusion

55. I am satisfied that the correct and preferable decision is to affirm the respondent’s decision dated 14 November 2022 and I so order.

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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: 22 March 2023