GHQ v Commissioner of Victims Rights - [2024] NSWCATAD 209

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHQ V Commissioner of Victims Rights [2024] NSWCATAD 209
Hearing dates: 19 July 2024
Date of orders: 30 July 2024
Decision date: 30 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:
1. The decision under review is set aside and I make the following decision by way of substitution.
2. The applicant is a primary victim of an act of violence that comprises a series of related acts.
3. The applicant is eligible for a Category B recognition payment.
4. The amount of victims support approved for the applicant is reduced by 1/10 under s 44(1)(a) of the Act; and
5. Victims support is approved in the amount of $9,000.

Catchwords:
Victims Rights and Support – administrative review – Alleged sexual assaults - Alleged offender not charged with any offence – Act of violence established on balance of probabilities – Eligibility for victims support - Application of s 44(1) of the Victims Rights and Support Act 2013 – calculating the amount of the reduction by way of analogy.

Legislation Cited:
Administrative Decisions Review Act 1997
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Victims Support and Rehabilitation Act 1996
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
BWL v Commissioner of Victims Rights [2015] NSWCATAD 235
EGM v Commissioner of Victims Rights [2020] NSWCATAD 181.
Rejfek v McElroy (1965) 112 CLR 517

Texts Cited:
Macquarie Dictionary Online

Category: Principal judgment
Parties: GHQ (Applicant)
Commissioner of Victims Rights (Respondent)
Representation: Solicitors:
Womens Legal Services NSW (Applicant)
Victims Services (Respondent)

File Number(s): 2024/00141543
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

These proceedings relate to a claim for victims support and a recognition payment lodged by the applicant known by the pseudonym GHQ initially before the Commissioner of Victims Rights (“the Respondent”).
The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 22 February 2023, and alleged that she was the victim of acts of sexual assault that occurred between 2 July 2021 and 5 July 2021, was perpetrated by a named offender (“the offender”), at Little Bay, in New South Wales. She alleged that she was sexually assaulted on 2 July 2021 and that she was then coerced into having a sexual relationship with the offender on 5 July 2021. She alleged that she suffered a psychological injury as a result of the act of violence and she sought victims support in the form of counselling and a recognition payment.
The applicant reported the matter to Police by way of the Sexual Assault Reporting Option (“SARO”). However, Police did not charge the offender with any offence.

Decision at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GHQ v Commissioner of Victims Rights

Details

AGLC: GHQ v Commissioner of Victims Rights [2024] NSWCATAD 209
Case: [2024] NSWCATAD 209
Decision Date: 30 July 2024

CaseChat Overview and Summary

GHQ sought judicial review of a decision by the Commissioner of Victims Rights, who had determined that she was ineligible for victims support. The applicant alleged that she was a victim of a series of sexual assaults by another individual who was never charged with any offence. The Federal Court was tasked with determining whether the applicant qualified for victims support under the Victims Rights and Support Act 2013.

The primary legal issue was whether the applicant qualified as a victim of an act of violence, as defined by the Act. The Court also needed to decide if the Commissioner's decision to reduce the amount of support payable under s 44(1)(a) of the Act was correct. The Court was asked to consider whether the Commissioner should have applied a different method to calculate the reduction in support.

The Court found that the applicant had established that she was a victim of an act of violence, as the relevant facts were proven on the balance of probabilities. The Court determined that the applicant was eligible for victims support as a primary victim of a series of related acts. The Court found that the Commissioner was correct in reducing the amount of support by 1/10 under s 44(1)(a) of the Act. The Court held that the reduction should be calculated by analogy to s 44(1)(b) and (c) of the Act. The Court set aside the decision under review and substituted its own decision, approving victims support in the amount of $9,000.

Orders

Orders of the court

1. The decision under review is set aside and I make the following decision by way of substitution.

2. The applicant is a primary victim of an act of violence that comprises a series of related acts.

3. The applicant is eligible for a Category B recognition payment.

4. The amount of victims support approved for the applicant is reduced by 1/10 under s 44(1)(a) of the Act; and

5. Victims support is approved in the amount of $9,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	GHQ V Commissioner of Victims Rights [2024] NSWCATAD 209
Hearing dates:	19 July 2024
Date of orders:	30 July 2024
Decision date:	30 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The decision under review is set aside and I make the following decision by way of substitution. 2. The applicant is a primary victim of an act of violence that comprises a series of related acts. 3. The applicant is eligible for a Category B recognition payment. 4. The amount of victims support approved for the applicant is reduced by 1/10 under s 44(1)(a) of the Act; and 5. Victims support is approved in the amount of $9,000.
Catchwords:	Victims Rights and Support – administrative review – Alleged sexual assaults - Alleged offender not charged with any offence – Act of violence established on balance of probabilities – Eligibility for victims support - Application of s 44(1) of the Victims Rights and Support Act 2013 – calculating the amount of the reduction by way of analogy.
Legislation Cited:	Administrative Decisions Review Act 1997 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Victims Support and Rehabilitation Act 1996 Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 EGM v Commissioner of Victims Rights [2020] NSWCATAD 181. Rejfek v McElroy (1965) 112 CLR 517
Texts Cited:	Macquarie Dictionary Online
Category:	Principal judgment
Parties:	GHQ (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Womens Legal Services NSW (Applicant) Victims Services (Respondent)
File Number(s):	2024/00141543
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.