GSS v Commissioner of Victims Rights

Case •

[2025] NSWCATAD 188

•

28 July 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: GSS v Commissioner of Victims Rights [2025] NSWCATAD 188
Hearing dates: 23 May 2025
Date of orders: 28 July 2025
Decision date: 28 July 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

(1) I remit the matter to the respondent for reconsideration and determination according to law pursuant to s 65(1) of the ADR Act.

(2) The matter is listed for directions at 9:30am on 12 September 2025

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – eligibility for victims support

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Victims Rights and Support Act 2013 (NSW)

Victims Support and Rehabilitation Act 1996 (NSW) Workers Compensation Act 1987 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of territory Revenue (2009) 239 CLR 27

FRL v Commissioner of Victims Rights [2023] NSWCATAD 131

GDM v Commissioner of Victims Rights [2024] NSWCATAD 169

Saleh v Victims Compensation Fund Corporation [2012] NSWDC 217:

Victims Compensation Fund v Brown [2002] NSWCA 155

Texts Cited:

None

Category:Principal judgment
Parties: GSS (Applicant)
Commissioner of Victims Rights (Respondent)
Representation:

Counsel:
S Burkitt (Applicant)

Solicitors:
Western Sydney Community Legal Centre (Applicant)
Crown Solicitor (Respondent)
File Number(s): 2024/00414509
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 an application for victims support in the form of counselling, financial assistance for immediate needs and a recognition payment lodged by the applicant, who is known by the pseudonym GSS initially before the Commissioner of Victims Rights.

  2. The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act). GSS alleged that he was the primary victim of an act of violence in the nature of an assault that occurred at Silverwater, in New South Wales, on 4 June 2022, and that he suffered physical injuries and a psychological injury as a result.

  3. I note that in relation to the claim for financial assistance, GSS claimed out of pocket expenses for medical treatment that were incurred as a result of his injuries, as well as the cost of replacement eye glasses and hearing aids.

  4. I further note that the following provision was contained in the Application for Victims Support:

Monies received from other sources

You must tell us if you have received money from any other source for the injury you have suffered, or if you receive money in the future.

Examples of how you may receive money from another source include:

  • Civil court action against either the person who injured you or from the owners of the location (e.g. licensed club or hotel) where the injury occurred

  • Legal action against a school or religious organisation who did not exercise adequate duty of care

  • Any payment from an individual or organisation arising from the interest.

  1. In response to this question, GSS stated that he had not received any money from a civil or other court claim, but on 20 March 2023, the District Court of NSW ordered the offender to pay him the amount of $9,812.40 as compensation. He registered the order with the Local Court of NSW, but has been unable to recover any monies under that order.

Decision at first instance

  1. On 4 June 2024, an Assessor (Client Claims) issued a Notice of Decision in relation to all three applications for victims support and determined, inter alia, that GSS was not eligible for victims support because he had been awarded compensation by a Court in relation to the act of violence. The application was therefore dismissed.

  2. I note that a copy of the decision was emailed to GSS’ solicitors under cover of a letter from the respondent dated 4 June 2024. I am therefore satisfied that the decision was served as required by the Act.

Internal review

  1. On 1 September 2024, the applicant’s solicitors applied for an internal review of the respondent’s decision. The request was supported by submissions that included the following:

  1. GSS provided receipts for medical treatment to the respondent and these receipts documented the relevant injury to his left eye, which was a dislocated intraocular lens;

  2. GSS also submitted a Certificate of Injury, which contains that diagnosis and attributes the injury directly to the act of violence;

  3. As a result of that injury, GSS required a Vitrectomy (a procedure to remove some or all of the vitreous humour from the eye and replace it with another solution), removal of the left eye lens and replacement with an artificial lens;

  4. The injury to the left eye is a really serious injury and therefore the injury constitutes grievous bodily harm and GSS is eligible for a category C recognition payment in the sum of $5,000;

  5. The purpose of ss 25(1), 44 and 48 of the Act is to prevent the concept of “double dipping”;

  6. In GDM v Commissioner of Victims Rights [2024] NSWCATAD 169, Senior Member McAteer stated:

66. It is clear form these provisions that under section 48 a claimant is legally bound to repay the Fund if an amount is recovered for the same act of violence form other sources, and likewise when determining whether to make a payment from the Fund (including the amount to award) the Commissioner is required to consider under section 44 monies obtained from other sources.

67. In my view the intention of the Parliament of these provisions is clearly expressed to ensure that the current Victims Support Fund, like its predecessors, will always remain a Fund of last resort as a matter of Government Policy for public interest reasons.

68. Why then is there a provision apparently barring victims support to persons who may have an entitlement arising from action taken by a Court under Part 6 of the Victims Act? On the face of it if s 25(1) applied to the current case, as argued by the Commissioner, GDM would be barred from receiving any victims support even though she may ultimately receive nothing under Part 6 of the Victims Act.

  1. In FRL v Commissioner of Victims Rights [2023] NSWCATAD 131, the Tribunal stated in referring to the decision of Knox J in Saleh v Victims Compensation Fund Corporation [2012] NSWDC 217:

39. His Honour also referred to the decision of Spigelman CJ in Victims Compensation Fund v Brown [2002] NSWCA 155 at [67] (Brown), that the old Act made it clear that a liberal approach should be adopted in the interpretation of this legislation, which has a remedial and beneficial objective. He also stated, relevantly:

64. Here the nature of the legislation, its effect and purpose - as well as the specific requirement that the assessor have regard to the subject of workers compensation - mandates that such a payment, the nature of it and what it covers, needs to be considered. If the effect of the legislation was to be as submitted on behalf of the Tribunal, it would have been easy for the Legislature to have simply said that such a payment assessed under the workers compensation scheme meant that no victims compensation was to be paid. The wording used must mean that the basis for the workers compensation payment needs to be regarded to determine whether, and if, the double-dipping prohibition is applicable given the other award…

41. While Saleh specifically referred to the WCA, I consider that it equally applies to the circumstances of this matter, particularly noting that the “compensation” awarded by the Local Court of NSW would preclude FRL from recovering those monies by way of financial assistance for immediate needs. However, the “compensation” could not be properly classed as either financial assistance for economic loss or a recognition payment.

42. I am not satisfied that it was the intention of Parliament to make FRL ineligible for all types of victims support under the Act merely because he was awarded “compensation” of $477 for dental treatment expenses during the police prosecution of the offenders. If that were Parliament’s intention, s 44(4) of the Act would be otiose.

  1. In GDM, the Tribunal cited FRL as authority that an award under Part 6 of the Act does not preclude an applicant from making a recognition payment claim. The Senior Member stated:

90. Another relevant issue arising from the statutory interpretation discussion above at [48]-[54] is the meaning of the words in the provision. The words ‘entitled’ and ‘compensation’ appear to be of particular importance because those words in the context of the words around them give the provision it’s meaning. Entitled as a verb is usually agreed to mean -to furnish with proper grounds for seeking or claiming something, - to give someone the right to do or have something, or similar. - to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim. These definitions arise in the Oxford, Cambridge and Miriam Webster Dictionaries. It would appear that whilst the claimant might be entitled to claim and ultimately receive, it does not in my view follow that in such circumstances that entitlement means that they will receive. This is particularly the case with GDM’s claim where her evidence is that she has received nothing by way of any payment and the onus is on her to pursue the perpetrator via the Notice to Payee issued eventually to her by the Court.

91. Further, I am not satisfied that on the circumstances above any payment will be made to GDM by the perpetrator and as such it does not appear that s 25(1) in its full meaning applies to these circumstances. That is because on a practical basis GDM will not receive the $300.00 from the perpetrator.

  1. The Tribunal must have regard to the that beneficial aspect when applying the provisions of the Act.

  1. I note that GSS’ solicitors also made submissions regarding his eligibility for financial assistance for immediate needs and/or economic loss. I have not set out those submissions in this decision as this Tribunal lacks jurisdiction to review a decision regarding financial assistance.

  2. On 14 October 2024, a Senior Assessor issued a Notice of Review Decision and determined that GSS was the primary victim of an act of violence, but that he was not eligible for victims support by operation of s 25(1) of the Act. The application was therefore dismissed.

  3. I note that a copy of this decision was emailed to GSS’ solicitors under cover of a letter from the respondent dated 14 October 2024. I am therefore satisfied that the decision was served as required by the Act.

Current proceedings

  1. 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.

  1. On 7 November 2024, the Tribunal received the current application fir administrative review, which alleged that:

  1. The respondent erred in finding that the amount of $9,812.40 ordered by the District Court of NSW to be paid by the offender to the applicant is compensation in respect of the act of violence under Part 6 of the Act;

  2. The respondent erred in finding that GSS is not eligible for victims support by operation of s 25(1) of the Act; and

  3. The respondent erred in dismissing the application for victims support.

  1. The matter came before me for Directions on 6 December 2024 and 28 February 2025. I ordered GSS to file and serve all evidence that he relied upon by 2 May 2025. I ordered eh respondent to file and serve submissions by 16 May 2025 and GSS to file and serve submissions in reply by 21 May 2025. I listed toe matter for hearing on 23 May 2025.

The hearing

  1. At the hearing on 23 May 2025, GSS was represented by Ms A Burkitt of Counsel and Mr R Carvosso, Crown Solicitor’s Office, appeared for the respondent.

Applicant’s submissions

  1. Ms Burkitt spoke to the written submissions filed on 23 May 2025., which I have summarised as follows:

  1. As a result of the act of violence, the offender was charged with recklessly causing grievous bodily harm (s 35(1) of the Crimes Act 1900 (NSW) and assault occasioning actual bodily harm (s 59(1) of the Crimes Act 1900 (NSW)). The matters were listed for hearing in the Local Court in Burwood on 27 January 2023.

  2. Following negotiations between the Prosecutor and the solicitor for the offender, the “reckless” charge was withdrawn and the offender pleaded guilty to assault occasioning actual bodily harm and the parties agreed to a set of agreed facts. The Magistrate held that the offender’s level of offending was well above the mid-range level and that it was so serious that a term of full-time imprisonment was necessary. The offender was sentenced to 27 months’ imprisonment, reduced to 2 years due to the jurisdictional limit of the Local Court of NSW, with a non-parole period of 12 months.

  3. The prosecutor made an application for a compensation order under s 93 of the Act in the sum of $9,812.40. In response to an invitation to respond to that application by the Magistrate, the offender’s solicitor responded “Obviously (he) can’t afford that, so that’s something that would be paid out of Centrelink I guess.”

  4. The Magistrate ordered the offender pay that sum for out of pocket expenses for treatments that GSS had to undergo to correct the injuries that he sustained at the hands of the offender.

  5. The offender appealed against the severity of the sentence and on 20 March 2023, the District Court of NSW varied the term of the imprisonment to 22 months and varied the non-parole period to 11 months, but thr compensation order was confirmed.

  6. The respondent conceded that the correct source of the power purportedly used by the Court is s 97 of the Act, rather than s 93, as the apparent basis for the order was to compensate GSS for out of pocket expenses (i.e. loss).

  7. However, the Court did not have power to make any order under s 97 of the Act and the order is therefore void, as s 93 of the Act defines “aggrieved person” as a person who has sustained injury through or by reason of:

(a) an offence for which the offender has been convicted, or

(b) an offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence.

  1. “Injury” has the same meaning as it does in s 18 of the Act, being defined as “actual bodily harm, grievous bodily harm or psychological or psychiatric harm, but does not include injury arising from loss or damage to property”.

  2. Section 94(1) of the Act states that a court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a sum not exceeding $50,000 be paid out of the property of the offender to any—

(a) aggrieved person, or

(b) aggrieved persons in such proportions as may be specified in the direction,

by way of compensation for any injury sustained through, or by reason of, the offence or any other offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence.

  1. Section 94(2) of the Act provides that a direction for compensation may be given by a court on its own initiative or on application made to it by or on behalf of an aggrieved person.

  2. Section 95(1) of the Act provides that a direction for compensation under this Division must not be given in respect of the conviction of a person for an offence if the aggregate of the sum specified in the direction and of all sums specified in a direction for compensation previously given under this Division—

(a) on the conviction of any other person for that offence, or

(b) on the conviction of that or any other person for a related offence,

exceeds $50,000.

  1. Section 97 of the Act states a court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a specified sum be paid out of the property of the offender to any—

(a) aggrieved person, or

(b) aggrieved persons in such proportions as may be specified in the direction,

by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted.

  1. Section 97(2) of the Act provides that a direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person.

  2. Section 98 of the Act provides:

Restrictions on court’s power to give directions for compensation for loss

A court may not give a direction for compensation—

(a) for economic loss for which financial support is payable under this Act or compensation is payable under Division 2, or

(b) for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt.

  1. Section 71 of the repealed Victims Support and Rehabilitation Act 1996 (the old Act) was the equivalent of ss 94 and 97 of the Act. Section 71 provided for “compensation for any injury or loss sustained through, or by reason of, the offence.”

  2. Section 72 of the old Act restricted a court’s power to give directions for compensation as follows:

(1) A direction for compensation must not be given in respect of the conviction of a person for an offence if the aggregate of the sum specified in the direction and of all sums specified in a direction for compensation previously given under this Division:

(a) on the conviction of any other person for that offence, or

(b) on the conviction of that or any other person for a related offence,

exceeds $50,000.

(2) A direction for compensation for injury for which statutory compensation is payable must not be given if an award of statutory compensation in respect of the injury has been made under Part 2 to or for the benefit of the aggrieved person.

  1. The correct interpretation of the restriction contained in s 98 of the act is that where an aggrieved person is entitled to make a claim for victims support (for economic loss for which financial support is payable), then the court may not give a direction for compensation for loss. This would include a situation where the aggrieved person is yet to make an application, but would be entitled to do so.

  1. The interpretation of the term “is payable” in s 98 of the Act as “being entitled to claim” is further supported by the wording of s 95(2). Here, there is a clear distinction between the concepts of compensation being payable under Part 4 and where there is approval for the giving of such financial support. It is clear that the Act intended the two concepts to be separate and distinct, both in this section/division but also in the Act as a whole.

  2. When the court made the direction for compensation under Division 3 of Part 6, GSS was an aggrieved person for whom financial support was payable under the Act, because when that direction was made, he was entitled to make such an application. The court was therefore statute-barred from making a direction for compensation to the applicant under Part 6. It therefore lacked power to make an order for compensation for loss under s 97 of the act, because GSS was able to apply for victims support (for economic loss for which financial support is payable) but he had not yet made an application (see s 98). Therefore, the court’s order is void and s 25(1) of the Act does not operate to disentitle GSS from receiving victims support.

  1. In the alternative, the Tribunal should adopt a wider interpretation of s 25(1) in order to find that GSS is eligible for support. Section 25(1) should be read in the wider statutory context including s 44(4) of the Act, which provides:

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.

  1. Section 44 does not presuppose that a person is otherwise eligible for victims support. By the very words of the title to that section, it outlines “Reasons for not approving the giving of victims support or for reducing the amount of financial support or recognition payment,” it concerns a decision to approve or not approve. GSS argued that s 44 contains key, mandatory, considerations when determining a claim for victims support. It does not presuppose eligibility and s 25(1) and s 44 should be read in tandem, rather than in isolation, and the factors set out in s 44(4) should be considered when determining the claim for victims support.

  2. If the considerations in s 44(4) are given due weight, the fact that GSS has received no compensation and is likely to receive no compensation in the future from the offender, is a determining factor in whether to approve the claim for victims support. It is clear from his statutory declaration that he has not received any payment from the offender and that he is unlikely to ever receive any payment from him. This is consistent with the advice given to the court by the offender’s solicitor when the order was made. Accordingly, there is no risk of double-dipping occurring in this matter.

  3. The Tribunal should adopt a beneficial approach as per the decision in Saleh.

  4. GSS argued that the Tribunal should determine that GSS is a primary victim of an act of violence and that he is eligible for victims support. The Tribunal should then remit the matter to the respondent under s 65(1) of the ADR Act for determination according to law and the Tribunal’s reasons.

Respondent’s submissions

  1. The respondent filed submissions on 13 May 2025, in which it argued that GSS is not eligible for victims support by operation of s 25(1) of the Act, as he is entitled to be paid compensation awarded by a court under Part 6 of the Act in respect of the same assault that grounds his application for victims support. Therefore, the correct and preferable decision is to affirm the Review Decision.

  2. As to the proper construction of s 25(1), this must start and end with a consideration of the text of the provision in its context, which includes the legislative history and extrinsic materials. As the High Court of Australia stated in Alcan (NT) Alumina Pty Ltd v Commissioner of territory Revenue (2009) 239 CLR 27 at [47]:

Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention/

  1. The language of s 25(1) is conditional – it prescribes as result that follows where the condition for its operation is satisfied and that condition is that a person has been paid, or is entitled to be paid, compensation awarded by a court in respect of an act of violence under Part 6, or if the person’s application for such compensation is pending. If satisfied, the result is that the person is not eligible to receive victims support in respect of that act of violence.

  2. This condition has been satisfied in this matter. While the transcript indicates that the Magistrate purported to make the order under s 93 of the act, and the correct source of power may have been s 97, since the apparent basis for the order was to compensate GSS for loss rather than injury, on either view the court awarded compensation under Part 6 of the Act. It does not matter that he has not been paid any money by the offender, it suffices that he is entitled to be paid compensation and he became so entitled when the order was made on 27 January 2023 (which was confirmed by the District Court on 20 March 2023).

  3. The consequence is that GSS is not eligible to receive victims support simpliciter in respect of the assault. There is no textual basis to read s 25(1) as disentitling an applicant from some but not all forms of victims support so as to preserve their eligibility for forms of victims support other than that embodied in the Part 6 compensation direction (cf FRL at [41]-[42]). That construction would involve reading s 25(1) as if it stated that a person is not eligible for victims support as far as they had been paid, were entitled to or had applied for compensation under Part 6. That would deprive effect to the conditional “if” and give the provision a meaning that its words cannot reasonably admit.

  4. Section 25(1) and s 44(4) are functionally quite different. It is incorrect to say that ss 44(4)(a) or (b) is otiose if the respondent’s construction is accepted (cf FRL at [42] and GDM at [79]-[80]). The better view is that ss 25(1) and 44(4)(a) have distinct fields of application, which are addressed to different legislative concerns. The former seeks to preclude the invocation of the Victims Support scheme where another mechanism for victims support under the Act has been engaged. The latter seeks to ensure that any money that ius ultimately paid out under Part 4 of the Act (by way of financial assistance or recognition payment) is appropriate, having regard to any other amounts the applicant has received from private or public sources in respect of the same act of violence.

  5. Nothing in FRL or GDM detracts from the force of this construction. Three points may be made about the Tribunal’s reasoning in those matters, namely:

  1. The asserted conflict between s 25(1) and 44(4) does not arise if the respondent’s construction is accepted;

  2. The Tribunal’s view that legislative amendments may be required to avoid the cruel and unjust outcome generated by the respondent’s construction of s 25(1) arguably implies that the Tribunal accepted that this construction is the more compelling one.

  3. The possibility of harsh outcomes does not outflank the need to construe the words in their context. It is not open to make a priori assumptions about the desired reach or operation of the statute, and to reason backwards arrive at a construction of s 25(1) which best achieves that desired operation. The task of construction requires the Tribunal to determine not what Parliament subjectively intended, but what it is taken to have intended by the words it actually used. The test is the surest guide to legislative intention and where, as here, the meaning of the statute is clear from its text and context, the Tribunal should uphold that meaning.

  4. The respondent concluded:

Unlike GDM or FRL, this is a case in which the effect of s 25(1) arises squarely for determination. The consideration of text and context outlined above, which did not require careful examination in the previous cases, tend powerfully tin favour of the respondent’s construction.

  1. In the alternative, the appropriate order would be to remit the matter to the respondent under s 63(3)(d) of the ADR Act for reconsideration of the application for a recognition payment.

Respondent’s submissions in reply

  1. The respondent filed submissions in reply on 23 May 2025.

  2. I note that despite having conceded that the proper source of power for the Magistrate’s order was s 97 of the Act rather than s 94 of the act, the respondent now sought to argue that GSS’s submission to this effect should be rejected and that the Magistrate’s order was not invalid. The respondent stated, relevantly:

20. The applicant’s proposed construction would produce surprising results. It would mean a court could never award compensation for loss under s 97 to a person who is entitled to make an application under Pt 4 – i.e. primary victims of acts of violence or modern slavery, their carers, secondary or family victims. That would deprive s 97 of much of its operation. It would also substantially undercut the scope of aggrieved persons under s 96 in whose favour a s 97 order may be made. There is no sextual or contextual basis to read down the broad language of s 96 in this manner.

21. This construction would also place significantly greater strain on the Victims Support Scheme in Pt 3, contrary to its intended operation as a scheme of last resort (see FRG… AT [23]…)

  1. The respondent also made submissions regarding “consequences of the alleged jurisdictional error” – if the Magistrate’s order was made without power.

  2. I have not extracted those submissions in this decision as this Tribunal has no judicial review power with respect to the Magistrate’s decision.

  3. The respondent also argued that GSS is seeking to have the Tribunal make a finding that the Magistrate’s order was invalid and it is inappropriate for GSS to simultaneously seek to rely upon that order and challenge the court’s jurisdiction to make it in different venues.

  4. As I do not have jurisdiction to consider these matters, I make no comment on the submission.

Consideration

Act of violence

  1. 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.

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

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

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

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

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

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

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

  1. The onus is on GSS to prove the allegation that he was the primary victim of an act of violence in the nature of an assault that was perpetrated by the offender on the balance of probabilities and that he suffered injury as a result.

  2. Based on the evidence before me, I am satisfied that GSS was a primary victim of an act of violence that occurred on 2 July 2022.

Is GSS ineligible for victims support?

  1. Section 25 of the Act provides, relevantly:

Persons not eligible for support

(1) Claimants for court compensation awards A person is not eligible to receive victims support in respect of an act of violence or act of modern slavery if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 6 or if the person’s application for such compensation is pending…

  1. The relevant provisions of the Part 6 of the Act have been set out in the parties’ submissions. The stated object of Part 6 of the Act is to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of crime.

  2. Based upon the definition in s 93 of the Act, I am satisfied that GSS could properly be regarded as an “aggrieved person”.

  3. The respondent submits that GSS is ineligible for victims support because the Local Court of NSW awarded him compensation for injury and/or loss – purportedly under s 93 of the Act, although in initial submissions it conceded that the appropriate section of the Act was s 97. However, in reply submissions the respondent sought to resile from that concession. In any event, the Magistrate’s order was later confirmed by the District Court of NSW.

  4. The court’s order does not expressly state that the amount of $9,812.40 was awarded for compensation for injury as defined in s 93 of the Act. In fact, the Magistrate stated that the amount was awarded by way of out of pocket expenses for the treatment that GSS had to undergo to correct the injuries he suffered at the hands of the offender.

  5. In FRL, I determined that even if I were satisfied that the compensation described in the court’s order was awarded to GSS under Division 6 of the Act, by operation of s 102(2) of the Act, he would not be precluded from bringing civil proceedings under Division 6 of the Act by reason of that award.

  6. Rather, s 102(3) would operate to prevent him from “double-dipping”, which means that if he were to commence civil proceedings in a court for compensation with respect to injury and/or loss suffered as a result of the act of violence, he could not be awarded compensation for monies awarded under Division 6 of the Act in those proceedings.

  7. In this matter, the respondent expressly submits that in FRL, the issue of eligibility was not squarely to be determined. I reject that submission as the reasons for decision speak for themselves on this issue. The issue of eligibility was required to be determined by the Tribunal and it was so determined.

  8. In GDM, the Tribunal adopted my determination in finding that the applicant remained eligible for victims support despite the court order.

  9. While the respondent now asserts that the Tribunal should adopt a different construction of s 25(1) and should construe it in a narrow manner, no case law has been cited that supports its proffered construction.

  10. I note that the respondent had rights to appeal either or both of the decisions in FRL and GDM, but there is no record of any appellate decision that overturned the construction of s 25(1) that the Tribunal preferred in those matters.

  11. In relation to s 44(4) of the Act, in FRL I held that it was significant that the provision was in very similar terms to s 30 of the old Act, because it clearly indicates a longstanding intention of Parliament to prevent double-dipping. I adopted and applied the decision of Knox J in Saleh, in which the Victims Compensation Tribunal had determined that s 30(3)(a)(ii) of the old Act precluded the victim from receiving compensation under that Act and that an award for compensation should not be made in his favour. That matter expressly considered the terms of the Workers Compensation Act 1987 (the WCA) and his Honour held that while the victim suffered both physical injuries and a psychological injury, the WCA (as in force at that time) did not provide for the recovery of lump sum compensation for permanent psychological impairment.

  12. His Honour also referred to the decision of Spigelman CJ in Victims Compensation Fund v Brown [2002] NSWCA 155 at [67] (Brown), that the old Act made it clear that a liberal approach should be adopted in the interpretation of this legislation, which has a remedial and beneficial objective. He also stated, relevantly:

64. Here the nature of the legislation, its effect and purpose - as well as the specific requirement that the assessor have regard to the subject of workers compensation - mandates that such a payment, the nature of it and what it covers, needs to be considered. If the effect of the legislation was to be as submitted on behalf of the Tribunal, it would have been easy for the Legislature to have simply said that such a payment assessed under the workers compensation scheme meant that no victims compensation was to be paid. The wording used must mean that the basis for the workers compensation payment needs to be regarded to determine whether, and if, the double-dipping prohibition is applicable given the other award…

  1. His Honour held that the old Act clearly required the decision-maker to make an assessment and, in the process, to “have regard to” other compensation payable or paid. The decision maker must consider the nature of the award, the basis of that award and how, for example, that other award is either different from, or identical to, the basis of the claim under the victims compensation regime. He stated:

69. What is clear from the second reading speech accompanying the introduction of the legislation is that the assessors and the VCT are to ensure that there is no double-dipping. In other words, to ensure that an award for victims compensation is not made where the recipient has already received compensation for the same injury.

70. I see no basis in the Act for a restrictive interpretation which would prevent a decision maker from making an award simply by virtue of the fact that another award had been made. Indeed, in my view, such an approach would run contrary to the established approach to the interpretation of beneficial legislation.

  1. While Saleh specifically referred to the WCA, I consider that it equally applies to the circumstances of this matter, particularly noting that the “compensation” awarded by the Local Court of NSW (and confirmed by the District Court of NSW) would preclude GSS from recovering those monies by way of financial assistance for immediate needs. However, the “compensation” could not be properly classed as victims support by way of a recognition payment.

  2. While the respondent argues to the effect that the Tribunal should not adopt a liberal construction of the relevant provisions of the Act, contrary to the decision of Spigelman J in Brown, no authority has been cited to support a narrow construction.

  3. For these reasons, I am not satisfied that it was the intention of Parliament to make GSS ineligible for all types of victims support under the Act merely because he was awarded “compensation” of for out of pocket expenses during the  prosecution of the offender. If that were Parliament’s intention, s 44(4) of the Act would be otiose.

  4. It follows that I am satisfied that the respondent’s decision dated 14 October 2024 is infected by error and should be set aside and that by way of substitution, to determine that GSS is eligible for victims support.

  5. However, as the respondent has not yet determined the claims for victims assistance for immediate needs and a recognition payment, I consider that it is appropriate for the Tribunal to remit the matter to the respondent for determination of those claims according to law.

  6. I have also considered whether it is appropriate to make the remittal order under s 63(1)(d) or s 65(1) of the Act. The latter provides:

Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

  1. In my view, if a matter is remitted pursuant to s 63(1) of the Act, the Tribunal is functus from the date of the order, while a remittal order under s 65(1) enables the matter to come back before the Tribunal in the event that there is an ongoing dispute between the parties.

  2. I am cognisant of the fact that this Tribunal’s administrative review power is restricted to a decision in relation to a recognition payment. However, I consider it is appropriate to make an order under s 65(1) of the Act in order to give effect to the object set out in 3(d) of the NCAT Act, namely which is “enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.”

Orders

  1. I make the following orders:

  1. I remit the matter to the respondent for reconsideration in accordance with these reasons pursuant to s 65(1) of the ADR Act.

  2. The matter is listed for directions at 9:30am on 12 September 2025.

**********

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

01 September 2025 - Coversheet - Representation amended.

Decision last updated: 01 September 2025

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

7

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
FRL v Commissioner of Victims Rights [2023] NSWCATAD 131