FRG v Commissioner of Victims Rights

[2023] NSWCATAD 195

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FRG v Commissioner of Victims Rights [2023] NSWCATAD 195

Hearing dates:

17 March 2023, 31 March 2023 and on the papers.
(Submissions closed 1 May 2023).

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 the period for FRG to lodge his application for administrative review is extended to 9 January 2023.

(2) Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 the identity of the applicant is not to be disclosed by way of publication or broadcast.

(3) The decision of the respondent dated 5 December 2022 is affirmed.

Catchwords:

VICTIMS Support – Administrative law – act of violence – whether evidence satisfied elements of act of violence – whether behaviour is violent conduct apparently occurring in the commission of an offence

- whether applicant primary victim of act of violence – whether evidence established on balance of probabilities

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Crimes Act 1900

Victims Rights and Support Act 2013

Victims Support and Rehabilitation Act 1996 (repealed)

Victims Support and Rehabilitation Regulation 2019

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

EJF v Commissioner of Victims Rights [2021] NSWCATAD 168

R- v Butcher (1986) VR 43

Victims Compensation Fund Corporation v Brown [2003] HCA 54

Texts Cited:

Nil

Category:

Principal judgment

Parties:

‘FRG’ (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Victims Services Legal (Respondent)

File Number(s):

2023/00008147

Publication restriction:

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

Reasons for decision

Introduction

1. The applicant has made a claim seeking a recognition payment under the victims of crime scheme. The applicant asserts that they are a victim of violent crime and have suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (‘the VR & S Act’).

2. The applicant in these proceedings before the Tribunal is referred to as ‘FRG’, in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 on 3 February 2023. The section provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

3. In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme.

Background

4. In the current matter, the applicant (FRG) is seeking victims recognition as a primary victim in that they assert that they were the victim of an assault of a sexual nature, variously described as non consensual sexual touching.

5. The initial claim concerned an allegation that whilst employed in a NSW Government Department a female colleague ‘sexually touched’ FRG, with the claim described as: ‘Sexual Harassment and Sexual Touching Falsifying Information’. There was a related workers compensation claim involving FRG but it was submitted that this claim was unrelated to the matters cited above.

6. The alleged incident occurred over a period of two and a half years whilst FRG was employed at the Department between 2018 and 2021. On initial determination the Assessor as delegate of the Commissioner dismissed the application as they were not satisfied that an act of violence as defined in the VR & S Act had occurred. Reference was made to FRG’s claim and evidence referring to two separate alleged acts of violence, one involving the colleague and one by a medical practitioner when they were referred for a medical examination.

7. However the claim as set out in the initial application for victims support only referred to the alleged assault in the workplace. The Assessor found that the alleged incident concerning the medical examination was unrelated to the claim and arose in the context of a workers compensation assessment for a claim based on bullying and harassment in the workplace. There was an absence of any evidence concerning a sexual assault in the workplace. The medical examination issue was addressed by the Health Care Complaints Commission (HCCC) with nil adverse findings arising. On the basis of these two issues the Assessor found that the alleged act of violence was not established, and the claim was dismissed.

8. On Internal Review the same outcome arose where the Senior Assessor as delegate of the Commissioner found that an act of violence had not been established. The delegate noted from the Police report that FRG had reported various matters including those based on this claim. The decision states:

11. … (FRG) contacted police on 20 June 2022 to report an incident of alleged sexual touching that took place while he was working at the Department (X). The report also contains a history of (FRG)’s Workers Compensation matter at his former place of employment. Police attended (FRG’s) residence and spoke to him about the incidents. The police report states that the employee apparently responsible for the incidents was a female (colleague). FRG reported that while there was consensual touching between himself and the named offender, such as hugs and other physical contact, the named offender would sometimes touch FRG’s leg, making him feel uncomfortable. The report states that police discussed these incidents with (FRG) and took the view that he had placed different references on particular instances of physical contact that were not significantly different to other instances that he told police did not make him feel uncomfortable. After considering the information provided police did not take the view that the conduct described was consistent with ‘indecent assault’ and therefore did not consider that an offence was disclosed. No further action was taken in regard to the report.

9. The delegate considered the medical evidence which provided slightly different descriptions of the alleged conduct that what was recorded by Police. A report from a Consultant Psychiatrist and Occupational Physician indicates that FRG only worked in the Department from August 2018 and resigned in April 2019 in the context of his workers compensation claim. The report refers to:

• People in the organisation being pushy, assertive and overbearing towards him;

• Two females showed him sexually explicit photos and made sexually suggestive comments;

• A male colleague regularly took (a described item) from (FRG’s) desk;

• On one occasion a senior manager invited (FRG) to their home to meet their kids which (FRG) felt was very inappropriate;

• (FRG) felt discriminated against after discussing his (medical) status and after disclosing that he did not wish to work in a particular locality as he had worked (in a different role / employment) in that locality previously;

• In April 2019 a senior staff member told (FRG) that he was being referred for an independent medical examination due to workplace concerns.

10. The delegate also noted that a Certificate of Injury provided in support of the Victims Support application noted that FRG presented with psychological injury and presents with symptoms consistent with Post Traumatic Stress Disorder (PTSD). The certificate / report refers to these matters arising from FRG’s employment with the Department generally and specifically to sexual harassment that was reported to police. The report also refers to another staff member ‘grabbed (FRG’s) thigh, close to his groin and proceeded with a deep intensive rub’. The report author refers to unwanted exposure to communication of a sexual nature and a sexualised environment.

11. The delegate made a finding that the evidence did not establish an offence involving sexual violence apparently in the course of the commission of an offence and dismissed the claim. FRG then lodged an administrative review with the Tribunal.

12. As set out in the application for Administrative Review, these proceedings concern whether the applicant (FRG) in his claim has established that he was a victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, and is entitled to a recognition payment.

13. FRG lodged an application for administrative review with the Tribunal on 9 January 2023.

Jurisdiction

14. The decision under review was made on 5 December 2022 while the application for administrative review was completed and signed and dated by FRG on 21 December 2022. However, potentially due to the NSW Government shutdown period the post was not processed until Monday 9 January 2023. An application for administrative review must be lodged within 28 days of the date that the applicant was notified of the decision, being the period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil and Administrative Tribunal Rules 2014. From the information in the application form FRG was notified on the same date that the decision was made (5/12/2022). On that basis the application for administrative review should have been lodged by 2 January 2023 (with 3 January 2023 being permissible as 2 January 2023 was a public holiday being a day that the Tribunal Registry was closed).

15. On this basis the Commissioner did not press any lateness noting that they prepared the matter for hearing without raising any concerns or prejudice to their case. It therefore appears that it is the interests of justice to extend the time for lodgement of the administrative review to the extent necessary pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) extending the period for lodgement of the review until 9 January 2023.

16. In order to understand the basis of the claim, the administrative review and the position of Victims Services it is necessary to briefly examine the legislation relevant to this claim.

Legislation

17. The Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an ‘act of violence’. The relevant current provisions are set out in the following sections of the Act:

5 Meaning of “victim of crime”

(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence...

(2) A person suffers harm if, as a result of such an act:

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person’s property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person’s immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person’s immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

….

19 Meaning of “act of violence”

(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.

2) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.

(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.

(5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

…

20 Meaning of “primary victim”

(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.

(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:

(a) trying to prevent another person from committing that act, or

(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or

(c) trying to arrest another person who is committing, or who has just committed, that act.

….

18. The Act provides for a number of areas of support for victims of violent crime. This review concerns an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence…

19. Prior to accessing a recognition payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an ‘act of violence’. The section has been amended since the VR & S Act commenced. The section currently provides:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is:

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

20. These pathways or preconditions under the Act which lead to a recognition payment are a threshold issue to an applicant accessing the benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.

21. Section. 34 of the VR & S Act specifies the types of recognition payments and particularises the factual circumstances of the act of violence (including injury) necessary to enliven particular category of recognition payment. The section provides:

34 Definitions

In this Division—

category of recognition payment means a category of recognition payment described in section 35.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery.

series of related acts has the same meaning as in section 19 (4).

sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8).

sexual touching or sexual act means sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years.

35 Categories of recognition payment

(1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide.

(2) A category B recognition payment is a payment 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.

(3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following—

(a) a sexual assault other than one referred to in subsection (2) (b),

(b) an attempted sexual assault resulting in serious bodily injury,

(c) an assault resulting in grievous bodily harm,

(d) physical assault of a child that is one of a series of related acts.

(4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following—

(a) sexual touching or sexual act,

(b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b),

(c) a robbery involving violence,

(d) an assault (not resulting in grievous bodily harm).

(Emphasis added)

22. As noted above, in the current claim in order to be eligible for a Category D payment FRG must succeed in establishing that they were the victim of sexual touching or a sexual act that apparently occurred in the commission of an offence. Whilst FRG has evidence that they sustained a PTSD diagnosis and injury, that matter appears to arise in the context of the workers compensation claim predominantly based around bullying and harassment in the workplace. In any event even if that diagnosis arose from sexual touching in addition to the other matters, it would be captured by the provisions of s 44 (4) of the VR & S Act. That section provides:

(4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to—

(a) any amount that has been paid to the person or that the person is entitled to be paid—

(i) by way of damages awarded in civil proceedings, or

(ii) under any other Act or law (including workers compensation), or

(iii) under any insurance or other agreement or arrangement, and

(b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person,

in respect of the act of violence or act of modern slavery to which the application for financial support or a recognition payment relates.

23. Section 44 (4) provides that the decision maker must have regard to other monies or benefits received by the claimant from another source. It is apparent from the provision that it is designed to prevent multiple claims or what is often referred to as ‘double dipping’. It is also designed to ensure that a claimant pursue other avenues of remedy prior to drawing on the scheme under the commonly referred to notion of ‘scheme of last resort’, as was referred to in the second reading speeches when the provision was explained before the Parliament. Such provisions are often raised when public money is to be applied to an individual need.

24. The provisions requires the decision maker to consider what, if any, alternate remedy for the same head of damage is available and whether that should be pursued or has been pursued by the claimant. If it has been pursued and resulted in a payment then the statutory amount to be awarded is reduced by the equivalent amount of the other payment. In many instances such a situation results in no recognition payment being forthcoming as the earlier payment is equal to or greater than the proposed recognition payment for victims support.

25. Another provision necessary for recognition payment to proceed is the provisions outlined in s 39 of the VR & S Act concerning the type of evidence that must establish whether an act of violence has occurred. Section 39 provides:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required—

(a) …

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is—

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence or act of modern slavery, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence or act of modern slavery.

(3)….

(4) …

(a) …

(b)….

(5) In this section—

agency includes a non-government agency funded by the Commonwealth to provide support services to victims of crime.

(Emphasis added)

26. The Commissioner submitted that the available evidence did not establish that behaviour constituting an assault occurred. In addition, they submitted that the statutory requirements of s 39 were not made out on the available evidence to allow a payment even if the Tribunal determined that the touching of the leg constituted an assault and as such an offence. In this regard the Commissioner submitted that the material submitted by FRG did not meet the statutory requirements to enliven the making of a recognition payment.

27. On the question of act of violence which is a threshold issue, I note the following evidence submitted by FRG. From the report of Dr Rastogi dated 20 October 2020 in respect of the Workers Compensation claim the Doctor records at page 3:

‘He (FRG) had a caseload of 5 cases even though his employer claimed that he had a caseload of two. 2. He (FRG) would try and seek help from his co-workers who undermined and brushed him of and told him he should find it himself. [sic]. He was on 12 months’ probation and tried hard to manage things. He (FRG) stated that he was isolated and alienated from the start and he felt unwanted. There were eight people in the (XX) team and they would smirk at him (FRG) and ridicule at him and looked down on him. He (FRG) stated that everyone had a different style of functioning and different expectations and it was perplexing as there was no clear protocols. He (FRG) stated that his manager (’P’) was abrupt and rude in her demeanour and made derogatory comments. He (FRG) stated that ‘P’ discussed about his professional development skills with another caseworker and breached his confidentiality.

….

He (FRG) reported another incident with another co-worker (‘YY’) who was a mature age woman and who confided in him about her tragic life and grief and losses. He would just listen to her and would give her a hug sometimes as a friendly gesture and empathized with her. He then realized he was being groomed and she would make sexual inappropriate remarks and sing with sexual connotation in office. He (FRG) felt very uncomfortable as it was directed towards him. He (FRG), felt victimised being targeted by the way he was treated as he was of aboriginal descent and so were the co-workers but he did not respect him.

28. Other than hugs initiated by FRG there is no evidence in Doctor Rastogi’s report of any matter which could be considered an assault or behaviour consistent with the concept of ‘sexual touching’. The only reference in all of the material to being touched on the leg near the groin arises from FRG’s own accounts given to Victims Services and the Tribunal. (Some of this evidence was by way of certificate of injury).

29. In submissions provided by FRG in response to the Commissioner’s submissions, concerning the documentary evidence, the following is stated:

Even though the incidents had been reviewed with his treating doctors and legal counsel during a previous workers compensation claim, the applicant states that his experiences of sexual harassment and sexual touching were never investigated. The Tribunal must consider such employer behaviours to be assessed based on them as the applicant was the victim due to an act of violence from the employer. The Tribunal will need to do this independently because the employer has found nothing in the applicant’s workers compensation claim of them.

30. The above reference is placed in FRG’s submissions immediately after a quote from the case of EJF v Commissioner of Victims Rights [2021] NSWCATAD 168. FRG refers to [79] – [81] of EJF.

79. In the current claim I take the meaning of the words at the end of s 39 (2) (b) (ii) ‘as a result of an act of violence’ to mean: as a result of the act of violence upon which the relevant claim being assessed is based.

80. Whilst I might find that on the available evidence s19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s – 18:

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.

81. Reading s 39 (2) (b) (ii) and 19 (1) (c ) together, it is clear that the legislature requires a recognition payment to be only made when there is independent professional evidence indicating that injury has arisen as a direct result of the violence.

31. Immediately following the discussion of EJF, FRG makes a submission concerning having sent email communication to the employer Department and the relevant NSW Minister concerning sexual harassment and sexual touching. Following a Government Information (Public Access) Act 2009 application FRG’s submissions imply that the relevant NSW entities were recently unable to locate evidence of records containing such information. FRG relies on the position that he has sent numerous correspondences to the Minister about these issues as evidence in support of his claim.

32. FRG submits that the reason that the certificate of injury completed by his psychologist is brief in its description of the act of violence is due to the fact that:

‘the certificate of injury form and the government-funded organisational report only allows a certain amount of words to be entered into them on the Victims Services portal. When I asked what she had meant by that, she discussed when you want to keep typing, it does not allow you to do that. It just cuts off and stops at a certain point’.

33. FRG characterised the two earlier decisions that went against his claim as seeing the evidence differently. The main basis being the assessment that the Police report did not establish act of violence on the basis that it (the investigation) had concluded or reached that current conclusion. FRG submitted that he had pursued inquiries himself with Police and because his report was marked as active then the inquiries were still ongoing such a conclusion could not be reached.

Jurisdiction

34. There is no dispute that the Tribunal has jurisdiction to hear the administrative review if validly lodged. Section 51 of the VR & S Act provides for administrative review by the Tribunal.

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

35. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.

36. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Hearing

37. The matter was heard in sittings on 17 February 2023 and 17 March 2023. Various directions were made for filing and serving material in reply to the material filed by the other side with final submissions after 17 March 2023.The sitting on 17 March 2023 was brief and the hearing was impacted by technical difficulties whereby FRG could be seem in the Virtual Meeting Room but not heard. On this basis the remainder of the hearing was agreed to be done on the papers in accordance with s 50 (2) of the NCAT Act 2013.

38. Throughout this process FRG was on notice of the need to address issues concerning evidence of violent conduct constituting an act of violence which apparently occurred in the commission of an offence, and the procedural requirements of s 39 of the VR & S Act. Both parties made oral written submissions. A number of items were received into evidence from both parties, some of the material having been obtained by summons issued by the Registrar on the application of the Commissioner and then material copied and provided to both parties.

Consideration of FRG’s submissions

39. FRG made a Statement received as Exhibit ‘A-3’ which was dated 17 February 2023. That statement takes the form of a submission in the first person. The statement acknowledges that in these proceedings the Tribunal is prevented from addressing allegations of sexual harassment. Reference is made to the ‘sexual touches’ not being voluntary. References to treatment by way of mitigation including counselling are raised in this statement / submission. Other references are made to how the workers compensation component was handled by FRG’s own representatives and the insurers lawyers.

40. FRG submitted that there are two Certificate of Injury forms whereby clinicians have attested to the act of violence in accordance with s 39 of the VR & S Act. The Certificate completed by C Kulyk dated 25 October 2022 refers to FRG being subject to ‘continued sexual harassment which he has reported to police.’ When asked to describe the incident in detail at Item 7 the following is recorded:

Over the period of time a staff member grabbed (FRG’s) thigh, close to the groin and proceeded with a deep and intense rub. (FRG) was also exposed to certain unwanted images on screen, sexual jokes and sexualised verbal and non-verbal communication. Describing the workplace as a sexualised environment.

41. The Certificate completed by J Sideris dated 13 November 2022 refers to: (FRG) was exposed to unwanted sexual jokes, sexualised verbal and non-verbal communication. He reported being touched and rubbed without consent often leaving him confused and ‘unsure’. The Kulyk Certificate does not identify any assault but touching or being grabbed. The Sideris Certificate refers to touching and rubbing without consent being given.

42. The report of Dr Miller refers to FRG complaining to his employer about being ‘stalked and intimidated.’ FRG had raised that staff members were looking at him, or someone smiled when he walked past, he interpreted that this was a form of harassment.

He also raised an incident where a staff member was buttering her toast loudly in the kitchen when he was there and this was interpreted by the applicant as harassing behaviour.

FRG also raised various other instances of being asked to respond to various requests, the responses of which required FRG to disclose very sensitive matters in an open workplace area overheard by numerous staff.

43. FRG referred to the Crimes Act 1900 definition of sexual touching:

61HB Meaning of “sexual touching”

(1) For the purposes of this Division, sexual touching means a person touching another person—

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual.

(1A) The continuation of sexual touching as defined in subsection (1) is also sexual touching for the purposes of this Division.

(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include—

(a) whether the area of the body touched or doing the touching is the person’s genital area, anal area or breasts—

(i) whether or not the breasts are sexually developed, and

(ii) regardless of the person’s gender or sex, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

(3) Touching carried out solely for proper medical or hygienic purposes is not sexual touching for the purposes of this Division.

44. FRG provided numerous other items of information and material. However, the correspondence with the HCCC, the Minister, the NSW Parliament and the academic journal extracts provided by FRG on appeal to the Tribunal do not in my view advance the matter. That is because they do not provide any better evidence of whether the actions of the alleged perpetrator were orchestrated to sexually arouse them or provide sexual gratification to them.

45. In addition the material which I have not set out in any detail does not, on my assessment of it, clarify or take further whether the actions of the perpetrator constituted an assault noting the other behaviours in the workplace (such as hugs) were initiated by FRG albeit for compassionate and supportive reasons.

46. A report of Dr Verma from April 2021 prepared for other proceedings refers to the workplace matters in the following way:

.. people in the organisation were very pushy, assertive and overbearing towards him. He stated that at times some of his colleagues would smirk out of context when they were with him and he started to believe that this was directed towards him. .. He stated that there were two females who sexually harassed him eg by showing sexually explicit photos and then asking him “does that turn you on?” or by saying, “if you want to f… let me know” followed by “just kidding”.

47. FRG’s application to the Tribunal for Administrative Review was described in his application as an act of violence which he describes as: sexual harassment, sexual touching and falsifying information.

Consideration of Commissioner’s submissions

48. In written submissions the respondent referred to the lack of compliance with the provisions of s 39 of the VR & S Act. Reference was made to the COPS Event No: E 88686214 which has been reproduced in part above at [8]. The entry states:

Police have discussed the alleged incident of sexual touching with VIC. The fellow employee whom is stated to have been involved is a woman named (YY) who was an Aboriginal caseworker for (Departmental Program) at the time. The VIC explained that they were friends and their relationship consisted of various hugs and friendly / casual touching.

On several occasions (YY) would touch the VIC’s leg and some of these times the VIC found these touches to be “dirtier” and made the VIC to feel “icky”. When asked to elaborate on the different nature of these touches and why they were “dirtier” in nature the VIC was unable to articulate. Police speaking to the VIC got the impression that these touches were not physically different from any other exchanged during their working relationship, but the VIC has placed a different inference on them for no apparent reason.

Police have obtained the aforementioned information from the VIC and have liaised with Balmain Detectives who are satisfied the incident does not consistent [sic] an indecent assault.

49. The Commissioner submitted that there was no violent conduct. Reference was made to the case of R- v Butcher (1986) VR 43 with reference to the meaning of what constitutes violence. In addressing the lack of force in some instances, the case refers to the need for a menace or threat to cause personal intimidation, or to be intended to cause intimidation or submission.

50. In further submissions in reply the Commissioner addressed the content of the Certificates of Injury. The Commissioner maintained their position that based on the material in COS Event E 88686214 section 39 of the VR & S Act was not satisfied so FRG was not entitled to a recognition payment.

Consideration

51. I have carefully considered FRG’s evidence concerning the sexual touching claims. These are in my view the only matters captured by the application for a recognition payment. Sexual or other harassment in the workplace or elsewhere, whilst inexcusable, does not constitute being a victim of violent crime. Likewise feeling threatened or intimidated in the absence of any protective order (such as an Apprehended Violence Order) being in place with an apparent breach, are not matters that constitute acts of violence or assaults (including deemed assaults).

52. However, the Police report which is filed in support of the claim does not in my view support the claim that FRG is the victim of an act of violence. If anything the report makes a determination (after seeking advice) that no crime consistent with an indecent assault occurred.

53. Section 61 KC of the Crimes Act 1900 sets out the offence of ‘sexual touching’.

61KC Sexual touching

Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally—

(a) sexually touches the complainant, or

(b) incites the complainant to sexually touch the accused person, or

(c) incites a third person to sexually touch the complainant, or

(d) incites the complainant to sexually touch a third person,

is guilty of an offence.

Maximum penalty—Imprisonment for 5 years.

54. In my view when Police had regard to the material before them, they had difficulty separating the ongoing workplace behaviour (to which FRG had not put up any clear objections) to the other instances of physical contact or touching. Whilst they specifically address the offence of indecent assault finding that no offence had occurred of that nature, no direct refence is made to sexual touching.

55. The elements of the sexual touching offence would be similar to the offence of indecent assault. However like sexual touching, gratification is an element of the offence, and with sexual touching, reference is made to the circumstances of the offence assisting in determining whether that particular offence has occurred.

56. Section 61 HB (2) of the Crimes Act sets out the parameters to consider in determining whether the ‘touching’ by one person of another constitutes sexual touching. The section states:

2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include—

(a) whether the area of the body touched or doing the touching is the person’s genital area, anal area or breasts—

(i) whether or not the breasts are sexually developed, and

(ii) regardless of the person’s gender or sex, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

57. Whilst FRG makes references to one of the alleged assailant’s actions constituting ‘grooming behaviour’ whereby the female person is attempting to groom and otherwise anesthetise FRG to desensitise him to her actions, grooming is usually only associated with the actions of adults toward children, or persons operating under an incapacity or otherwise under a disability.

58. The position that FRG believed that the female was engaged in grooming behaviour at the relevant time the behaviour was occurring establishes that such grooming was unsuccessful. FRG was not groomed but the subject of unwanted advances and behaviour in the workplace including harassment and possibly sexual harassment in the workplace. FRG appears fully aware of what was occurring based on the available evidence and had formed his own view about such matters.

59. The issue of grooming only seems relevant on the requirement that a person engaged in the inappropriate behaviour needs to establish that they engaged in the behaviour for the purpose of seeking sexual gratification or sexual arousal.

60. FRG has not established exactly how the touching on the leg on one hand, and references to squeezing and rubbing the leg on another meets the criteria set out in s 61 HB (2) (a) of the Crimes Act. In my view the evidence, whilst there is a reference to description addressed s 61 HB (2), being ‘grabbed (FRG’s) thigh, close to the groin’ this is not enough to establish the requirements for sexual touching. This is in part due to the conflicts in the evidence and the difficulty establishing gratification.

61. In the Police report this action is referred to the perpetrator ‘sometimes touching his leg’. I note in particular that none of the evidence set out here and at the paragraph immediately above was raised in similar terms with any of the medical experts that FRG attended on for the purposes of his workers compensation claim which arose in the same circumstances, being the same workplace with the same colleagues allegedly harassing him.

62. The case of Victims Compensation Fund Corp v Brown [2003] HCA 54 (Brown) is often referred to in order to establish that the legislation upon which the scheme is based should be applied beneficially. However, that case also referred to the limits on that beneficial approach noting that all claims and all arguments as to the interpretation of evidence and statutory provisions would not always equate to a positive outcome for a claimant.

63. At [33] of Brown the High Court observed:

To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require [29]. 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 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 [30]: "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" [31].

64. In my view the evidence does not establish that an offence of sexual touching occurred, or that any assault occurred. Whilst FRG says that the touching was not consented to, there is significant evidence that any perpetrator would have been unaware of such circumstances based on mutual prior behaviours. Whether FRG objected to such behaviours at that time was a matter for him. He appears to have taken no steps to deal with his concerns other than to respond to management concerns about his mental well-being and raise matters in that context. Whilst such workplace behaviour may be against policy and not condoned in the workplace, the behaviours allegedly occurred without complaint and based on the Police material were considered below the level of any threshold for Police intervention.

65. FRG pursued workers compensation remedies for a range of issues arising from his workplace concerns and grievances. It is not entirely clear whether the matters upon which the current claim is based were referred to fully in the workers compensation computation concerning whole person impairment. In any event the provisions of s 44 (4) of the VR & S Act would appear to apply.

(4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to—

(a) any amount that has been paid to the person or that the person is entitled to be paid—

(i) by way of damages awarded in civil proceedings, or

(ii) under any other Act or law (including workers compensation), or

(iii) under any insurance or other agreement or arrangement, and

(b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person,

in respect of the act of violence or act of modern slavery to which the application for financial support or a recognition payment relates.

(Emphasis added)

66. In my view FRG has not established that he was the victim of an act of violence within the meaning of s 19 of the VR & S Act. The conduct does not on my assessment of the evidence meet the criteria for an offence of sexual touching having regard to the statutory guidance for determining whether such an offence has occurred consistent with s 61 HB (2) of the Crimes Act.

67. Having regard to the totality of the evidence and whilst noting the beneficial nature of the scheme, but also applying the limits to that beneficial application based on the evidence and other facts as set out by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54, I find that the elements of s 19 and s 39 (2) of the VR & S Act 2013 are not made out on the available evidence.

68. In making this finding I note that FRG has been approved and received approved counselling as a victim of violent crime under the scheme consistent with Part 4 Division 4 of the VR & S Act. There is an inconsistency between this and the finding that I have made noting the requirements of s 23(1) and s 26 (1) (a) of the VR & S Act, being that the threshold of act of violence is required. However I note that there are also provisions that allow for counselling to be approved for the purposes of determining whether a claimant is the victim of an act of violence.

69. In respect of the claim, I am not satisfied that the elements of s 19 of the VR & S Act have been met on the available evidence and I so find.

70. Because of this finding the decision of the Commissioner of Victims Rights Delegate will be affirmed following administrative review.

Conclusion

71. For the reasons outlined above, the decision of the respondent will be affirmed. The procedural orders allowing the administrative review and protecting FRG’s identity will also be made.

72. The Tribunal makes the following orders:

Orders

1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 the period for FRG to lodge his application for administrative review is extended to 9 January 2023.

2. Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 the identity of the applicant is not to be disclosed by way of publication or broadcast.

3. The decision of the respondent dated 5 December 2022 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

Amendments

02 August 2023 - Para [65] amended from s 44(3) to s 44(4) of the Victims Rights and Support Act 2013.

Decision last updated: 02 August 2023