Fxe v Commissioner of Victims Rights

[2023] NSWCATAD 296

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXE v Commissioner of Victims Rights [2023] NSWCATAD 296

Hearing dates:

27 October 2023

Date of orders:

08 November 2023

Decision date:

08 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. The reviewable decision is set aside and I make the following decision in substitution for it:

a. FXE was a primary victim of an act of violence on the balance of probabilities; and

b. A Category C recognition payment is approved in the sum of $5,000 pursuant to s 35(3)(c) of the Act.

Catchwords:

ADMINISTRATIVE LAW – Victims rights and support - Recognition – assault – Failure to apply for internal review – Jurisdiction – Whether the applicant suffered grievous bodily harm

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1900 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

BJR v R [2008] NSWCCA 43

BQG v Commissioner of Victims Rights [2015] NSWCATAD 63

CQP v Commissioner of Victims Rights [2016] NSWCATAD 202

DEL v Commissioner of Victims Rights [2017] NSWCATAD 376

DPP v Smith [1961] NSWCCA 209

EMT v Commissioner of Victims Rights [2021] NSWCATAD 39

Eja v Children's Guardian [2021] NSWCATAD 202

Haoui v R [2008] NSWCCA 209

R v Kama [2000] NSWCCA 23

R v Remilton [2001] NSWCCA 546

R v Shannon [2003] NSWCCA 106

R v Sumeo [2002] NSWCCA 271

R v Williams [2005] NSWCCA 14

R v Woodland [2007] NSWCCA 29 at [35]

Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333

Vann v Palmer [2001] ACTSC 12

Texts Cited:

None

Category:

Principal judgment

Parties:

FXE (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
K McDonald, Women’s Legal Service NSW (Applicant)
K Douch, Victims Services, Department of Communities and Justice (Respondent)

File Number(s):

2023/00231347

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons

REASONS FOR DECISION

Background

1. These proceedings relate to a claim for victims support in the form of financial assistance and a recognition payment lodged by the applicant known by the pseudonym FXE 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 14 February 2022. FXE alleged that she was the primary victim of an act of violence in the nature of an assault that occurred between 30 July 2022 and 21 October 2022 at Somersby, in New South Wales, and that she suffered “physical injury” and “psychological injury” as a result.

3. FXE gave a detailed description of an incident on 28 October 2022, in which she states that the named offender assaulted her while they were pulled over on Wiseman’s Ferry Road and that following the assault, the named offender lied to police and stated that she had driven a vehicle whilst disqualified. The matter was reported to police.

Decision at first instance

4. On 7 March 2023, 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 particular, the Assessor stated:

Reports to police and court outcomes

11. I have read NSW Police COPS Report (number provided) which is dated 28 October 2022. The report states that at about midday on 28 October 2022, police received information that a woman had been assaulted on Wiseman’s Ferry Road, Somersby. A short time later, (FXE) contacted police and advised that she was trying to get away from someone called (name provided), (FXE) would not advise where she was located.

12. Police attended the scene and then Gosford Hospital, however, could not locate (FXE), the named offender, or the vehicle they were in. while they were conducting the search, the named offender was seen by paramedics who transported him to Gosford Hospital. Police spoke with the named offender at the hospital. According to the report, he was clearly affected by intoxicating drugs, and refused to provide a statement. However, he did disclose that he was in an intimidate (sic) relationship with (FXE) and that she and he had attended a residence in Somersby to obtain drugs. The named offender further disclosed that (FXE) told him to get out of the car as she could not collect the drugs with any other person. (FXE) then allegedly accused the named offender of stealing earnings and has allegedly assaulted him while driving. The report states then states that (FXE) stopped the car and told the named offender to get out, which he has refused to do. This has developed into a further argument and a witness has stopped to assist. Police have spoken to this witness who advised that they did not see the alleged assault, but another person had told them to contact police after they have seen blood on (FXE’s) face.

13. There is no detail in the report about (FXE’s) discussion with police. I am not able to locate any further relevant reports.

Evidence of physical or psychological harm

14. In order to be considered for a recognition payment or financial assistance for economic loss, the required evidence is a documentary report to police or a government agency and medical, dental evidence or a report from a counsellor.

15. I have before me a Victims Services Certificate of Injury completed by Dr (name provided) on 11 February 2023. This states that (FXE) reported that she was the victim of physical abuse on 28 October 2022 (reported on 29 October 2023). As a result, she has suffered facial bruises, scalp bruises, and scratches. There was also a suspected nasal bone fracture (although I note that this doesn’t appear to have been confirmed by the time the certificate was issued).

16. I also have before me invoices and documents relating to a rhinoplasty correction that occurred on or around 24 January 2023 at Brisbane Waters Private Hospital. These documents do not refer to the incident described in the application.

17. I have also seen photographs provided by (FXE) of her injuries. I note that these are time stamped to 28 October 2022.

5. I note that a copy of this decision was emailed to FXE under cover of a letter from the respondent dated 7 March 2023. I am therefore satisfied that the decision was served in the manner required by the Act.

No application for internal review

6. FXE did not apply to the respondent for an internal review of the Assessor’s decision.

Application for administrative review

7. 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.

8. On 20 July 2023, FXE’s solicitors filed the current application for administrative review, which raised the following grounds:

1. The decision maker erred by failing to interpret the Act as beneficial legislation when they gave insufficient weight to the Applicant’s own evidence that she was a victim of an act of violence; and

2. The decision maker erred by failing to find that the applicant was a victim of an assault causing grievous bodily harm.

9. In a document headed “Annexure A”, which was filed with the application, FXE’s solicitor made the following submissions:

1. This application is being made without the Commissioner of Victims Rights conducting an internal review of the original decision because the applicant is out of time to seek an internal review.

2. On 28 October 2022 the applicant was assaulted by her ex-partner (the offender) and suffered injuries as a result of the violence perpetrated against her.

3. Following the assault, the applicant attempted to make detailed witness statement to the Police about the assault, but the Police refused to take a witness statement from her.

4. On 14 February 2023 the applicant made an application for financial assistance and a recognition payment in relation to the violence perpetrated against her by the offender.

5. The assault was reported to Police and the applicant provided medical evidence that she suffered an injury as a direct result of the violence she experienced.

6. The applicant was still trying to make a witness statement to Police about the assault when she received the decision on 7 March 2023 dismissing her application on the grounds that the act of violence was not established (the decision).

7. The applicant’s application was dismissed because the Police records document the offender’s version of the evidence on 28 October 2022, which contradict the applicant’s version of the event.

8. On reviewing the decision, the applicant was very disappointed that another government agency had not believed that she was a victim of the act of violence by the offender.

9. The applicant started using drugs again to manage the trauma of not being believed and was incarcerated in early May 2023.

10. The applicant received legal advice about the decision on 6 July 2023, being more than 90 days since the date of the decision and outside the timeframe permitted to seek an internal review of the decision.

11. The applicant submits that the Tribunal should determine this application in the absence of an application for internal review because it is necessary to protect the applicant’s interests and it was made within a reasonable time following the decision, being four months after the decision and less than two weeks after being provided with legal advice about her rights to seek a review.

Procedural matters

10. On 4 August 2023, Senior Member McAteer conducted a directions hearing at which Ms McDonald appeared for FXE and Ms 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), which prohibited the publication or broadcast of FXE’s name . He ordered FXE to file and serve evidence and submissions (including fresh material) in support of the merits of the claim and reasons for the delay so that the respondent could form a position as to whether it presses the lateness of the application, by 15 September 2023. He listed the matter for a further directions hearing on 29 September 2023 and noted that at that directions hearing, the respondent will indicate whether it continues to press the lateness of the application or lack of internal review. He stated that if this issue is pressed, the interim threshold issue will be given a special fixture hearing date. If not, the Tribunal will consider extending time under s 41 of the NCAT Act and setting a timetable for the hearing of the substantive matter.

11. The matter came before me for a directions hearing on 29 September 2023. Ms McDonald appeared for FXE and Ms Douch appeared for the respondent. The respondent did not press the lateness of the application or the absence of an internal review. I noted that FXE had complied with the previous timetable and that the respondent had lodged its bundle of documents under s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). I ordered the respondent to file and serve a summary of legal arguments by 13 October 2023 and listed the matter for hearing by way of AVL on 27 October 2023.

The hearing

12. At the hearing on 27 October 2023, Ms McDonald appeared for FXE and Ms Douch appeared for the respondent. Ms McDonald stated that FXE was not attending the hearing because she was currently incarcerated and she was participating in a sentencing hearing that day.

Applicant’s evidence

13. I note that on 25 August 2023, FXE filed and served the following evidence:

1. Documents produced under summons by NSW Police;

2. Documents produced under summons by the NSW Department of Communities and Justice;

3. Certificate of injury completed by Dr (name provided) on 11 February 2023;

4. FXE’s medical records from Brisbane Water Private Hospital;

5. Statutory declaration of FXE dated 25 August 2023; and

6. Photos taken by FXE on 28 October 2023.

14. I note that the contents of the Police COPS Event report is consistent with the description provided by the Assessor in the decision that is the subject of the current review.

15. In relation to the documents produced by NSW Department of Communities and Justice, I note that on 9 November 2022, FXE attended an interview with a named officer at Gosford Community Corrections. The report states, relevantly:

(FXE) attended the interview room following her CS duties.

She advised she was not well and had a headache. She showed me injuries to her face and a bite mark on her arm as a result of being assaulted. She told me that she has lots of make-up on to cover her black eyes.

Assault details: She bumped into offender (name & MIN number provided) last week in Gosford. Not previously known to her. He agreed to give her a lift on 4/11/22. On wiseman’s Ferry Road in the vehicle he assaulted her by punching her 10 times in the head and biting her arm. Police were called by witnesses, as was the Ambulance Service. (She) attempted calling Gosford Police but stated that the phone operator was unreceptive to her. The following day she got scans which confirmed a break in her nose. She told me that she wants to report the matter to Police but fears getting rejected by Police again. I told her to make the report the sooner the better, and to report it to Gosford Police following the interview. She told me she would report it, but stated she would get a brined to drive her to Woy Woy Police Station instead.

She reported that she had maintained her abstinence since the assault.

16. I further note that on 19 December 2022, the officer at Gosford Community Corrections documented a phone call from FXE as follows:

…She was extremely upset. She spoke about her current crisis, which led into a long rant about how corrupt Gosford Police Are…

(FXE) called to update me about a recent Police interaction…

She advised that yesterday she walked into Gosford Police Station to report an assault that she had previously disclosed to me on 9/11/22. She said that when she attended the Police advised her that the other party involved had made a counter-claim that she had assaulted him and she was being treated as the suspect. She said that she walked out of the Police station very upset. She advised that she is going to engage a solicitor before co-operating with the investigation. Nil charges laid yet…

17. I note that on 21 December, the same officer of Gosford Community Corrections reported that he conducted an interview with FXE that day, and he noted that FXE had organised a solicitor to attend Gosford Police Station with her for the interview.

18. The Certificate of Injury dated 11 February 2023 indicated that FXE attended the doctor on 29 October 2022 and reported that she had suffered “physical abuse” on 28 October 2022. The doctor gave a provisional diagnosis of “face multiple bruises, suspected nasal bone fracture, forearm scratches, scalp bruises”, which was consistent with the incident described to him. He was uncertain whether any pre-existing factors were aggravated by the incident and he referred FXE for a CT scan.

19. The documents produced by Brisbane Waters Private Hospital indicate that on 30 November 2022, FXE signed a consent to undergo a bony rhinoplasty and that this procedure was performed on 24 January 2023.

20. In her Statutory Declaration, FXE stated that in May 2022, she was disqualified from driving for two years. On the evening of 27 October 2002 or the morning of 28 October 2022, she was talking to (the offender) about needing to do some errands and he agreed to drive her around in her car. They agreed to meet at Gosford Train Station. She needed to buy a new washing machine so (the offender) drove her to Bunnings in West Gosford. However, he “started acting weirdly in Bunnings” and she thought he was drug affected. She said that they left Bunnings because he was embarrassing her and he continued to act strangely in the car. She said that she decided to try to get him to pull over, get him out of her car, and drive away. She managed to get him to pull over on Wiseman’s Ferry Road in Somersby. Suddenly, he climbed out of the driver’s seat, moved on top of her in the passenger seat, and started punching her in the face and pulling her hair. He bit her arm and drew blood and she had her hands up trying to cover her face. She still had her seatbelt on and she decided to lower her hands to try to get her seatbelt off. While (the offender) was punching her, she saw two people on motor bikes stop by the driver’s side of the car and then drive off. She got her seatbelt off and then “somehow” she and the offender “ended up outside of the car, next to the passenger’s side”. She ran around to the driver’s side and got in. the keys were still in the ignition. She started the car and drove off, but the offender grabbed at the windscreen wiper and she saw in the rear vision mirror that he as chasing the car. She drove slowly because she was shaken up and a short distance up the road, she saw the two motorcyclists. They called out to her that help was on the way. She then called 000 but was having trouble expressing herself because she was distressed and in shock. She drove straight home and took photos of her face and the injuries from the assault.

21. FXE stated that the next day she consulted a doctor and was referred to an ENT surgeon to get a CT scan because he thought that her nose had been broken. She reported the assault to the Community Corrections Officer on 9 November 2022 and he told her to report the matter to Police as soon as possible. She told the Community Corrections Officer that she did not know the offender because she knew that he had a criminal record and she did not want the officer to think that she was doing the wrong thing. She was reluctant to report the matter to Police because she had been a victim of violence in the past and they had not believed her. She is known to Gosford Police and was worried that she may be charged with driving whilst disqualified. When she did report the matter to Police, both of the officers told her that the did not believe that the offender had assaulted her and questioned why she had not reported it earlier and threatened to charge her with driving whilst disqualified. She attempted to show them the photographs of her injuries but they refused to look at them.

22. FXE stated, relevantly:

25. I was so disappointed that I wasn’t believed again. It’s been an ongoing issue for me, not being believed. I had been doing well, not using drugs, trying to get my life back on track, but this decision, and not being believed by the Police, shook me. I started using drugs again to try to manage the sad feelings I was having.

26. At the time I received the decision, I was still trying to persuade the Police to charge (the offender) with assaulting me. I kept trying, hopeful that f they decided to charge him, I’d have more evidence to support my victims support case.

27. Unfortunately, I was locked up in early May 2023.

28. I didn’t think I had any other avenues to challenge the Victims Services decision. I thought I had exhausted everything but someone in jail suggested I talk to Women’s Legal Service about my case/

29. I thought a Services and Programs Officer (SAPO) would need to help me to speak with WLS, so I out my name down on a list to speak with a SAPO.

30. I had to wait ages to speak to my SAPO. When I finally spoke with them, they told me I could call WLS directly using the jail phone system.

31. I called WLS on 3 July 2023 and left a message for someone to call me back. They called me back on 6 July 2023.

Applicant’s submissions

23. FXE’s solicitors filed written submissions on 25 August 2023, which are summarised below.

1. Section 55(4) of the ADR Act provides:

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

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

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

2. Section 55(5) of the ARD Act provides:

In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.

3. The discretion conferred by s 55(4) of the ADR Act has been considered by the Tribunal in CQP v Commissioner of Victims Rights [2016] NSWCATAD 202 (CQP) and FCB v Commissioner of Victims Rights [2021] NSWCATAD 202 (sic, 365) (FCB).

4. In CQP, the Tribunal stated:

36. The issue relating to the 'applicant's interests' goes to the substance of CQP’s claims and is bound up in the substantive issue of whether or not she was the primary victim of the alleged acts of violence. For the reasons set out below, I am persuaded on the evidence that is before me that CQP was the victim of acts of violence, as alleged in each of the applications for compensation, and that she suffered injury as a direct result of those acts.

37. I therefore grant leave for the Application for Administrative Review to proceed pursuant to s 55(4) of the ADR Act and I accept it.

5. In FCB, the Tribunal stated:

25. Section 55(5)(c) of the ADR Act confers a wide discretion on this Tribunal in determining whether the application was made within a reasonable time following the Assessor’s decision and it allows the consideration of evidence that the Tribunal considers relevant. In my view, FCB’s oral evidence, her submissions to Victims Services and to this Tribunal and the medical evidence from Dr Ghodusi are relevant to the determination of this issue and based on that evidence, I am satisfied that FCB filed her application for administrative review within a reasonable time.

6. FXE’s evidence indicates that even after receiving the reviewable decision, she continued to try to gather evidence to support her claim, whilst also struggling with the detrimental impact the decision was having upon her. She also did her best to get legal advice after she was incarcerated and the current application was filed within two weeks of receiving that advice. On that basis, the Tribunal should exercise its discretion to deal with the application in the absence of an internal review.

7. Further, based on FXE’s evidence, the Tribunal should be satisfied that an act of violence has been established on the balance of probabilities and that she suffered a “really serious injury” as a result.

8. FXE suffered grievous bodily harm in the form of very serious physical injuries as a direct result of the act of violence and she underwent bony rhinoplasty on 24 January 2023.

9. Section 4 of the Crimes Act 1900 (NSW) defines “grievous bodily harm” to include permanent serious disfiguring of the person. At common law, the words are given their ordinary and natural meaning. “Bodily harm” needs no explanation and “grievous” means “really serious”: DPP v Smith [1961] NSWCCA 209 at [137], [160]. Further, the way in which grievous bodily harm may be inflicted varies substantially and may be assessed by reference to the viciousness of the attack and severity of the consequences (R v Kama (2000) 110 A Crim R 47 at [16]-[17]).

10. Section 18 of the Act stipulates that “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”.

11. The offender viciously attached FXE causing her injuries that required surgery and therefore this injury should be considered “a very serious injury”. Her medical records should be sufficient to satisfy the Tribunal, on the balance of probabilities, that she suffered a really serious injury as a direct result of the acts of violence by the offender.

12. The purpose of the Act is beneficial and therefore should be interpreted liberally and beneficially in favour of the grant of benefits to an applicant and “awarding the applicant a category C recognition payment helps to acknowledge the serious impact that this violence has had on her”.

13. There are no factors pursuant to section 44 of the Act that would lead to the refusal or reduction of victim’s support, FXE did not give the offender permission to commit the acts of violence against her or behave in a manner to motivate or provoke the offender to violently assault her and she did not participate in the act of violence.

14. FXE is eligible for a category C recognition payment in the sum of $5,000.

Respondent’s submissions

24. The respondent filed written submissions on 11 October 2023 and these are summarised below.

1. The respondent does not object to an extension of time to 20 July 2023 (the date of filing of the current application) or to the Tribunal’s jurisdiction pursuant to s 55(4) of the ADR Act.

2. The respondent is satisfied that FXE was the primary victim of an act of violence on 28 October 2022, on the balance of probabilities, and submits that she is entitled to a category D recognition payment in the sum of $1,500.

3. However, as FXE seeks a category C recognition payment, the issue is whether she suffered grievous bodily harm as a direct result of the act of violence.

4. The respondent noted that “grievous bodily harm” covers the most serious types of injury and the Tribunal has considered its meaning on various occasions (DEL v Commissioner of Victims Rights [2017] NSWCATAD 376; BQG v Commissioner of Victims Rights [2015] NSWCATAD 63; EMT v Commissioner of Victims Rights [2021] NSWCATAD 39). The Tribunal has been guided by the decision of Beazley JA (as her Honour then was) in Haoui v Regina [2008] NSWCCA 209:

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

138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm”, but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12.

5. While the Certificate of Injury provided a provisional diagnosis that included a suspected nasal bone fracture, this does not comprise grievous bodily harm and there is no evidence from FXE as to whether that fracture directly resulted from the act of violence and/or the extent of any injury to the nose that directly resulted from the act of violence.

6. The clinical notes from the Brisbane Waters Private Hospital do not record the cause of the deviated bony septum for which bony rhinoplasty was required. This is significant as FXE had a pre-existing nose injury and the admission for surgery occurred some months after the alleged act of violence occurred.

7. FXE submitted a prior claim for victims support with respect to an injury to her nose (case number provided) and a decision was made in respect of that application on 18 December 2020. A copy of that decision was annexed.

8. The decision dated 18 December 2020 indicates that a medical report dated 18 August 2008 indicates that FXE attended Westmead Hospital for treatment of another medical condition and, while in hospital, was noted to have an acute right nasal bone fracture. Further, on 20 June 2013, she presented at the hospital again following an assault that she described as being headbutted and punched in the face. She was observed to have a deformity to her nose.

9. Further, on 22 June 2014, FXE was seen by a general practitioner and the report indicated that she had a crooked nose, which was an old injury. Further, on 19 September 2014, medical records indicated that she was assaulted one and a half years previously and that she required repair to her nose.

10. The respondent noted that FXE provided records from nasal surgery that was undertaken on 22 July 2018 and a CT scan dated 26 August 2020 indicated that she had a minimally displaced fracture of the nasal bone and moderate displacement of the nasal septum.

11. The respondent approved a category C recognition payment in the sum of $5,000, on the basis that the previous act of violence was a series of related acts.

25. The respondent concluded that the correct and preferable decision is to vary the reviewable decision as follows:

1. FXE is the primary victim of an act of violence on 28 October 2022; and

2. FXE is approved a category D recognition payment in the amount of $1,500.

Applicant’s oral submissions

26. Ms McDonald stated that her instructions are to the effect that FXE did not have treatment for the 2020 injury to her nose. She argued that the act of violence caused an exacerbation of her pre-existing nasal injury, which then required surgery.

Respondent’s oral submissions

27. Ms Douch relied upon the respondent’s written submissions.

Consideration

Jurisdiction

28. Section 55(3) of the ADR Act provides:

If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

29. FXE did not apply for an internal review by the respondent. However, s 55(4(b) of the ADR Act provides that the Tribunal may deal with an application for administrative review even though the applicant has not duly applied for an internal review if it is satisfied, that it is necessary for it to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision.

30. Based on the evidence before me, I am satisfied that the requirements of s 55(4)(b) of the ADR Act are satisfied and that the Tribunal has jurisdiction to determine the current application for administrative review.

Extension of time

31. By consent, the Tribunal extends the time for filing the current application to the date filed pursuant to s 41 of the NCAT Act.

Act of violence

32. 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.

33. “Act of violence” is defined in s 19 of the Act, 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.

(2) For the avoidance of doubt, the reference to an offence in subsection (1) 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…

(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.

34. Based upon a consideration of all of the evidence before me, I am satisfied, on the balance of probabilities, that FXE was a primary victim of an act of violence that occurred on 28 October 2022 and that she suffered physical injury as a direct result of that act of violence.

Recognition payment

35. It is necessary to consider which category of recognition payment should be approved for FXE pursuant to s 35 of the Act.

36. Based on the evidence before me, there are two possible categories, namely:

1. Category C – Section 35(3)(c) provides that this applies where the act of violence was an assault resulting in grievous bodily harm; or

2. Category D – Section 35(4)(d) provides that this applies where the act of violence was an assault (not resulting in grievous bodily harm).

37. The respondent has made submissions to the effect that FXE has previously received an approval of victims support in the nature of a category C recognition payment respect of an act of violence that caused multiple injuries including an injury to the nose. The respondent also argues that there is no evidence that directly attributes the need for the bony rhinoplasty surgery to the act of violence on 28 October 2022, and that the Tribunal should therefore not find that the act of violence resulted in grievous bodily harm.

38. However, based on the available evidence, including the respondent’s previous decision dated 18 December 2020 and FXE’s statutory declaration, I am not satisfied that the nose injury suffered in 2020 was such as to warrant surgery at any time prior to the act of violence on 28 October 2022.

39. I am satisfied that the act of violence on 28 October 2022 caused an aggravation and/or exacerbation of a pre-existing nose injury such that bony rhinoplasty was recommended in December 2022 and performed in early 2023.

40. While the Act requires that the injury must directly result from the act of violence, it does not require that the act of violence must be a substantial contributing factor or main contributing factor to the injury and/or the need for treatment.

41. For these reasons, I am of the view that it is appropriate to approve victims support in the form of a category C recognition payment pursuant to s 35(3)(c) of the Act.

Section 44 of the Act

42. Section 44(1) of the Act provides:

Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following—

(a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,

(b), (c) (Repealed)

(d) whether the victim participated in the commission of the act of violence or act of modern slavery, encouraged another person to commit the act of violence or act of modern slavery or otherwise gave assistance to any person by whom the act of violence or act of modern slavery was committed,

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or act of modern slavery or in the arrest or prosecution of any person by whom the act of violence or act of modern slavery was committed or alleged to have been committed,

(f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence or act of modern slavery was committed,

(g) such other matters as the Commissioner considers relevant.

43. I note that the respondent has not raised any matters under s 44(1) of the Act.

44. I note that the evidence before me indicates that the Police were reluctant and/or not prepared to take a formal witness statement from FXE, apparently because the alleged offender made a complaint against her, I am not bound by the decision made by the Police regarding the investigation with respect to the act of violence.

45. After considering all of the evidence before me, I am satisfied that there are no factors under s 44(1) of the Ac that auger against an approval of victims support or the reduction of the amount of victims support that is approved.

Conclusion

46. FXE is eligible for a category C recognition payment in the sum of $5,000.

47. I make the following orders:

1. The reviewable decision is set aside and I make the following decision in substitution for it:

1. FXE was a primary victim of an act of violence on the balance of probabilities; and

2. A Category C recognition payment is approved in the sum of $5,000 pursuant to s 35(3)(c) of the Act.

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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: 08 November 2023