GTP v Commissioner of Victims Rights

[2025] NSWCATAD 128

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTP v Commissioner of Victims Rights [2025] NSWCATAD 128

Hearing dates:

14 March 2025

Date of orders:

04 June 2025

Decision date:

04 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) In proceedings 2024/00333385 the decision of the respondent of 13 August 2024 is set aside. In substitution of that decision the Applicant is entitled to a Category B recognition payment.

(2) In proceedings 2024/00452724 the decision of the respondent of 13 August 2024 is set aside. In substitution of that decision the Applicant is entitled to a Category B recognition payment.

(3) In proceedings 2024/00452751 the decision of the respondent of 13 August 2024 is set aside. In substitution of that decision the Applicant is entitled to a Category B recognition payment.

(4) In proceedings 2024/00452752 the decision of the respondent of 13 August 2024 is set aside. In substitution of that decision the Applicant is entitled to a Category B recognition payment.

Catchwords:

VICTIMS Support – Administrative law – act of violence – single act of violence as series of related acts -whether evidence satisfied elements of act of violence being treated as separate acts– whether medical evidence verifies injury arising from series of acts –- related acts – unelated acts – circumstances of acts of violence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Victims Rights and Support Act 2013

Victims Support and Rehabilitation Act 1996 (repealed)

Cases Cited:

GCL v Commissioner of Victims Rights [2024] NSWCATAD 200

Victims Compensation Fund Corporation v Brown [2003] HCA 54

Victims Compensation Fund Corporation v JM [2011] NSWCA 89

Texts Cited:

Second Reading Speech 24 November 2010 Hon John Hatzistergos Courts and Crimes Legislation Further Amendment Act 2010

Chairpersons Report Victims Compensation Tribunal October 2008 Victims Services NSW Attorney General’s Department

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
Clayton Utz Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00333385
2024/00452724
2024/00452751
2024/00452752

Publication restriction:

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

Reasons for decision

Introduction

1. The applicant made claims to the Commissioner of Victims Rights seeking recognition payments under the victims of crime scheme. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants or payments and access to the provision of services under the Victims Rights and Support Act 2013 (the Act).

2. In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant has previously established before the Commissioner that she is eligible to receive a victims recognition payment for the relevant claimed events for the matters before the Tribunal.

3. These proceedings however concern whether the applicant in each of her claims having established that she was a victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, whether that act of violence which is subject of the individual claim, should be treated as a separate act of violence rather than each claim forming one of a series of related acts. The answer to this question will determine whether GTP is entitled to a separate recognition payment on each claim where an act of violence is established.

Background

4. The applicant has lodged four applications for administrative review with the Tribunal. Each application concerns an administrative review of how the respondent has dealt with her initial applications and internal reviews for Victims Support. The applicant in these proceedings before the Tribunal is referred to as ‘GTP’ in accordance with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.

5. All of these applications concern incidents that arise from a period in the GTP’s life where as a teenager under the age of 16 years she was the victim of assaults including sexual assaults in a number of instances when she was required to work in the sex-work industry in Sydney. In each instance GTP was around 13 or 14 years of age and was forced into sex-work at a brothel.

6. The Tribunal notes that at such an age GTP could neither consent to the nature of the work or the sexual acts and as such all instances where there is evidence of sexual acts, those acts constitute an assault. The Tribunal understands that these matters occurred approximately 25 years ago and were protracted whereby GTP cannot remember all the details of instances when she was forced to engage in sex work with adult males. GTP can only recall specific details of five different men, some of them having attended more than once. On this basis out of the numerous instances that GTP states she was forced to have sex with male clients she has only made five claims to the Commissioner under the Victims of Crime Support Scheme under the Act.

GTP’s claims before the Commissioner

7. GTP lodged (as the Tribunal understands it) five applications for victims support under the Act. The claims related to her experience as a victim of crime in circumstances as outlined at [5] above. These claims therefore related to being a victim of child sexual assault by being coerced into prostitution when GTP was legally a child. The Tribunal understands from submissions made at hearing that GTP experienced many more instances of sexual assault in this context from many perpetrators. However GTP lodged five specific claims because the offender in each claim was distinct and GTP could recall specific particulars of the violence in each set of matters. The submission presented being that in the significant majority of instances of assault GTP was unable to remember sufficient cogent details to frame any claim and so only five separate and distinct claims were ultimately lodged with Victims Services.

Summary of the five claims from the applications:

8. Below is a summary of the alleged violent conduct perpetrated against GTP following the summary provided by her in each of the five claims before the Commissioner:

1. 509185 (Victims Services)

1. In 1997/1998 at age 13 or 14 years old I was forced to work at a Brothel where I was sexually and physically assaulted. This offender sexually and physically assaulted me on one occasion.

2. 2024/00033385 (NCAT) 509193 (Victims Services)

1. In 1997/1998 at age 13 or 14 years old I was forced to work at a Brothel where I was sexually and physically assaulted. The offender sexually and physically assaulted me 4-5 times throughout the duration that I worked there.

3. 2024/00452751 (NCAT) 509204 (Victims Services)

1. In 1997/1998 at age 13 or 14 years old I was forced to work at a Brothel where I was sexually and physically assaulted. This offender sexually assaulted me on more than one occasion. I can’t remember exactly how many – maybe 2 or 3.

4. 2024/00452724 (NCAT) 509210 (Victims Services)

1. In 1997/1998 at age 13 or 14 years old I was forced to work at a Brothel where I was sexually and physically assaulted. This offender sexually assaulted me on more than one occasion, maybe 2 or 3 times.

5. 2024/00452752 (NCAT) 509213 (Victims Services)

1. In 1997/1998 at age 13 or 14 years old I was forced to work at a Brothel where I was sexually and physically assaulted. This offender sexually and physically assaulted me on more than one occasion whilst holding a knife to my neck and body.

9. Because of the number of claims, and the approach taken by the Commissioner’s delegates I believe that it is appropriate to set out briefly the key elements of the scheme and how the matters have been decided prior to the applications for administrative review.

Legislation

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

5 Meaning of “victim of crime”

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

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

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

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

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

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

….

19 Meaning of “act of violence”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20 Meaning of “primary victim”

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

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

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

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

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

….

11. The Act provides for a number of areas of support for victims of violent crime. These four reviews concern an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment.

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

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

39 Documentary evidence

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

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

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

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

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

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

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

14. In all of the five applications before the Commissioner the initial decision maker did not expressly make a finding of ‘act of violence’ on each claim but stated:

21. I have considered the violence described across applications 509185, 509193, 509204, 509210 and 509213. I do not consider the violence to be separate distinct acts of violence. …

22. While I understand that different males were involved in committing the violence against (GTP). This does not satisfactorily separate the acts into individual acts of violence.

23 ….

24 ….

25. I therefore must consider that the violence comprises a series of related acts in accordance with section 19 (4) and (5) of the Act in consort, facilitated by an individual and committed at the same residence. For these reasons, I am unable to approve a recognition payment on multiple applications as they relate to the same act of violence. …..

26….

27. I find that the violence perpetrated against (GTP) forms a series if related acts that constitute a single act of violence. I make this finding s the violence was perpetrated against (GTP) by a group of perpetrators over a specific period of time.

15. Whilst the initial delegate’s decision does not make a specific finding that each claim and act of violence is established under s 19 (1) of the Act, I glean from the above reasoning that by determining that the acts constitute a series of related acts, and that no specific claimed act is clearly rejected by the delegate, there was a finding of act of violence in each mater, albeit then determining that they should be wrapped up into one act as a series of related acts.

16. The matter was then subject to Internal Review on 13 August 2024 whereby the senior delegate arrived at the same conclusion as the initial delegate. The senior delegate seems to in part rely on the earlier findings on act of violence to inform their approach and conclusion.

27. In the decision under review, it has been accepted that the available evidence is sufficient to establish that (GTP) was employed as a sex worker in a brothel when she was a child, and was subjected to sexual assaults and other violence while working there that forms a series of related acts. …

28. Noting the evidence provided I consider it appropriate to uphold the findings, that the violence (GTP) experienced while working in the brothel when a young teenager, forms a series of related acts.

17. Again a direct finding on each claim prior to considering whether they are a series of related acts is not clear, but becomes evident once the consideration and application of s 19 (4) arises. I make this observation because only an act of violence, as found, can then be considered as a series of related acts under s 19 (4) of the Act.

18. The observations at [15] to [17] above are in my view pertinent because they show that all aspects of GTP’s evidence in her claims was accepted by the delegates. Whilst there was some reference to the person who had forced GTP into sexual servitude / prostitution, that was only considered in the context of considering evidence as to whether the acts were related, and there was sufficiently commonality.

19. There was no reduction of victims support applied to GTP because of any failure on her part, merely the consideration and subsequent finding under s 19 (4) of the Act that was adverse to her applications. It was adverse in that GTP had made five applications based on being sexually assaulted, and because of the series of related acts finding, one victims recognition award was made because all five maters were considered one act of violence. This resulted in four of GTP’s applications being administratively dismissed due to the s 19 (4) related acts finding.

20. On 9 September 2024 GTP filed an administrative review application with the Tribunal. (Reference: 2024/00333385)

21. On 5 December 2024 following a requirement of the Tribunal, GTP filed three further administrative review applications (References: 2024/00452724, 2024/00452751, and 2024/00452752 so that each of the four claims which GTP was dissatisfied with could be considered by the Tribunal.

Jurisdiction

22. There is no dispute that the Tribunal has jurisdiction to hear the matters (subject to leave in three). Section 51 of the Act provides for administrative review by the Tribunal.

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

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

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

23. At the first directions listing the Tribunal noted that there were in effect decisions relating to four of the five Victims Services claims which GTP sought administrative review. Three further review applications were required and the respondent agreed that was the appropriate course and as such would not press any limitation issue as to jurisdiction as the proposed further claims would be out of time. An application for administrative review subject to any extension of time granted, must be lodged within the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil andAdministrative Tribunal Rules 2014.

23. Section 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides for the Tribunal to extend the time for an applicant to make an application to the Tribunal. It provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

25. As s 57 of the ADR Act has been repealed the Tribunal is not required to determine whether an out of time application has been supported by a reasonable explanation for the delay in making the application. Section 41 of the NCAT Act does not import the same language as the former s 57. However the authorities indicate that there must be some explanation for the delay when the Tribunal is called upon to exercise its discretion.

26. Noting that the delay was not pressed, the position that there was no prejudice attaching to the respondent and that the applications were effectively lodged at the request of the Tribunal to regularise the proceedings, the Tribunal made an order extending time to lodge the reviews (to the extent necessary) to 5:00pm 5 December 2024, pursuant to s 41 of the NCAT Act.

27. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Hearing

28. The matters were heard over one hearing of the Tribunal. Noting that the section 58 documents contained all the evidence that the parties wished to rely upon, particularly noting that it was not disputed that GTP was the victim of an act of violence each claim (as outlined at [14] – [17] above), the hearing adduced no evidence concerning the claims.

29. Both parties were legally represented at hearing.

30. At the beginning of the hearing the Tribunal confirmed with the parties that GTP was considered by the Commissioner to be the victim of an act of violence in each of her five applications, but that they should all be treated as a series of related acts comprising one act of violence as summarised at [19] above.

GTP’s Case

31. In oral submissions GTP’s advocate submitted that consistent with the Tribunal’s observations the sole issue for determination was whether the actions of five different perpetrators at different times should be considered one act of violence or not.

32. They submitted that contrary to the Commissioner’s written submissions this application did not raise a ‘floodgates’ argument, meaning that other claims would automatically be entitled to multiple applications and payments. In addition a submission about the level of the beneficial nature of the scheme being limited as referred to in the case cited at paragraph [39] of the Commissioner’s submissions did not equate to the provisions being construed narrowly.

33. In addition it was submitted at hearing that when examining the evidence at page 13 of the section 58 documents the trauma suffered by GTP because of the acts of violence remains ongoing many decades later.

34. In written submissions GTP set out the background and legislative context of the applications. They submitted that the correct and preferable decision for the Tribunal was to treat the acts of violence committed against GTP by five separate offenders as five distinct acts, for which GTP should be awarded 5 Category B recognition payments.

35. GTP submitted that the stated purpose of the Act under s 17 was ‘To establish a scheme for the provision of support for victims of acts of violence’. Reference was made to the decision in Victims Compensation Fund Corporation v Brown ][2003] HCA 54 at [31] (Brown) whereby the Court observed that:

31. The principal argument in favour of the disjunctive construction which attracted the majority of the Court of Appeal was that the legislation had remedial and beneficial objectives, one of which was, as stated in s 3(a) of the Act, "to give effect to a statutory scheme of compensation for victims of crimes of violence". It may be accepted at once that the legislation did have remedial and beneficial objectives. While at common law the victim of a criminal act of violence can sue the perpetrator for the tort of battery, and, depending on the circumstances, other torts, commonly the criminal will have vanished, or will lack any assets with which to satisfy a judgment.

36. GTP linked the beneficial and remedial objectives observed in Brown applied to the current case under the Act due to the provisions of section 4 and 17 of the Act.

4 Object of Part

The object of this Part is to recognise and promote the rights of victims of crime.

..

17 Object of part

The object of this part is to establish a scheme to provide support for—

(a) victims of acts of violence, and

(b) victims of acts of modern slavery, and

(c) family victims of road crime.

37. As a result GTP submitted that the review applications should be determined beneficially. GTP’s advocate noted that the Commissioner in submissions did not contest any of the evidence including that GTP suffered harm as result of each of the assaults, consistent with the earlier findings of the delegates. They submitted that the relevant finding for the Tribunal to consider was the finding at [28] of the review decision. That finding is expressed as follows:

28. The evidence provided I consider it appropriate to uphold the finding that the violence the Applicant experienced while working at the brothel when a young teenager, form a series of related acts. I note section 19 (4) of the Act identifies that violence committed over a period of time by the same group of persons would be considered related acts. Noting that the violence and injury are described in extremely similar terms across all applications, occurred over the same period of time, at the same location, and was all facilitated by the same brothel owner or manager, I am satisfied it is appropriate to consider the violence as forming a series of related acts which constitute a single act of violence.

(Emphasis added)

38. GTP submitted that the above approach of the delegate as identified in bold at [17] above unduly ignored the very distinctive nature of the violence perpetrated by five unrelated individual offenders, against a 13 year old victim. This it was submitted was not a beneficial approach to the matter in accordance with the objects and purpose of the Legislation. GTP submitted that the approach unduly minimised the amount of recognition payments which should otherwise have been available to her as a victim of multiple child sexual assaults for which she still suffers psychological symptoms a quarter of a century later. GTP submitted that the approach involved; ‘a contortion of the evidence of the assaults themselves with the clear intention of depriving her of what she would otherwise have received under the Act.’

39. GTP also submitted that the acts occurred in the context of modern slavery which adds to the overall seriousness of the offending and served as a unique circumstance in which the acts of violence perpetrated by the offenders ought not be treated as related acts.

40. In respect of the factors considered by the delegate in the review decision, GTP in submissions rejected the finding that the acts were all described in similar terms. It was conceded that the language had some commonality mainly because matters were being recalled over 25 years later, the language was not identical and should not be used to disqualify a claim being separate on it’s merits. GTP noted that the evidence was sufficient for the delegate to understand and accept that it sufficiently described multiple attacks by different offenders.

41. Submissions were made concerning the separate SARO (Sexual Assault Reporting Option) reports prepared by GTP which it was submitted provided accepted evidence sufficient for discrete injury as an element of act of violence to be identified for each discrete claim.

42. GTP also submitted that each perpetrator committed a series of related acts against her and that series of related acts by the individual offender should constitute one act of violence. This it was submitted was the proper approach to the evidence and was recognised in the Act and s 35 (2) (b) which provides:

35 Categories of recognition payment

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

(2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds—

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.

(Emphasis added)

43. In respect of the injuries being described in similar terms GTP submitted that it was obvious why the injuries from each assault were similar. The assaults were described to the clinician in broad terms leading to the experience of global harm. GTP submitted that the reports terms pointing to global harm was not sufficient to bundle all five claims together in respect of being one act of violence.

44. They submitted that the separate SARO reports and the email from T Stander Psychotherapist from August 2024 set out the distinct characteristics of each separate offender. It was submitted that that evidence describes distinct violence as well as GTP’s distinct experience of the violence by the separate offender.

45. It was also submitted that the actions of each perpetrator met the criteria for a series of related acts as their distinct incidents of assault took multiple forms with repeated assaults in the nature of sexual assault, indecent assault, common assault and assault occasioning actual bodily harm. The Tribunal notes that with one offender there was an assault with an offensive weapon in addition to sexual and physical assaults.

46. GTP submitted that whilst the multiple acts of violence perpetrated by each offender may be considered related acts, it is not appropriate to consider the set of discrete violence perpetrated by any other one offender to be related to the discrete set of violence perpetrated by another offender. GTP also submitted that the reference to the term ‘same period of time’ in the Victims Act should not be construed narrowly. It is clear from the unchallenged evidence that the assaults occurred by different perpetrators on different dates. GTP submitted that there was no evidence that any of the acts by a separate offender upon which the five claims were based occurred on the same day as that of another offender. GTP referred to no reference to timeframes in the decision other than the SARO referring to ‘several weeks in 1997/1998’ when (GTP) was between the ages of 13 and 14.

47. Reference was also made by GTP to the decision in GCL v Commissioner of Victims Rights [2024] NSWCATAD 200 as authority for acts of violence occurring at the same location not necessarily equating to those acts being related acts. GTP submitted that in GCL the evidence should not automatically produce a finding that violence by multiple offenders who have not acted together should be treated as related acts.

The Commissioner’s Case

48. In oral submissions at hearing the Commissioner referred to importance of ensuring that public funds were put to proper use to assist victims of crime and that the scheme was not intended to be unsustainable, hence the legislative provisions of related acts.

49. Reference was made to paragraph [35] of GTP’s written submissions where reference was made to the decisions seeking to ‘minimise’ the amount of payment to GTP. The Commissioner referred to the statutory purpose of the Act being to assist.

50. The Commissioner submitted that the ordinary meaning of the word ‘related’ means that the facts or circumstances are ‘in some way similar’. Reference to the word ‘any’ in s 19 (4) in reference to ‘any other reason’ it was submitted means a valid reason, which includes where there are different perpetrators. Tabs 4,8,12,16 and 20 of the section 58 documents show how the Psychotherapist has shown the clear relationship between all of the claimed incidents.

51. In further oral submissions the Commissioner submitted that the fact that the victim at the time was a child should not count against the Fund. The Tribunal took this submission to mean that because the victim was a child they should not be assessed any differently to an adult victim. However I note that the Act makes provision for certain exceptions and additional benefits for persons who were under 18 at the time of the incident on which victims support is made, such as more generous limitation periods.

52. The Commissioner submitted that the matters should be considered related because they all took place at the same location, over a relatively short period of time (six to seven weeks it was submitted), and that the nature of the offending conduct was described in similar terms. In addition the Commissioner submitted that because the nature of the injury sustained by GTP it was described in similar terms for each claim. That was another basis for considering the matters as related acts of violence. The final submission at hearing of the Commissioner concerned the nature of each claim. Their submission was that each claim was related when regard is had to what was described as the position of the perpetrator. The Tribunal infers that this submission means that the perpetrators were all clients of the business or brothel where GTP was forced to service clients.

53. In written submissions the Commissioner submitted that the single decision for the Tribunal was to consider whether the assaults subject of the applications which are conceded as having occurred and been ‘committed by five different perpetrators acting separately, be treated as a series of related acts within the meaning of s 19 (4) of the VRS Act’.

54. Whilst they submitted that the scheme was beneficial in nature and that the applications should not be approached with an eye towards how to minimise the number of recognition payments which might be awarded, no legislation pursues its purposes at all cost. It was submitted relying on superior Court authority that such an approach frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.

55. Reference was made to the authority arising from Victims Compensation Fund Corporation v Brown [2003] HCA 54 at [33]:

The "remedial and beneficial objectives" argument

33. To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require[29]. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said[30]: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances"[31].

56. The Commissioner submitted that the Tribunal’s attention must be to the words in s 19 (4) and (5) of the Act and on the purpose that these provisions serve within the statutory scheme. The Commissioner then provided detailed submissions on the history of the Schemes. They focused on the developments of the various statutes around the ‘related acts’ issue and referred to the former Act being amended in 2011 to contain the same language as that ultimately now used in the current Act. The background to the amendment was to strengthen the (then) s 5 (3) of the former Act that stated that the act (of violence) was related if it was committed against the same person by the same perpetrator or group of perpetrators. In Parliament on 24 November 2010 during the second reading of the Courts and Crimes Legislation Further Amendment Act 2010 reference was made to the intent being that:

.. the acts generally will be considered as related. Such related acts are treated as a single act of violence for the purposes of victims compensation under the Act. However, compensation assessors will still retain the discretion to treat multiple claims as unrelated acts, which is made clear in the new section 5 (3A).

57. As can be identified from the full second reading speech the background to the above s 5 amendment in 2010 concerned fiscal reasons about the long term viability of the Fund, delays in finalising claims and the existing circumstances resulting in ‘reduced compensation for other victims of crime’.

58. The Commissioner submitted that for all of these reasons s 19 (4) and 19(5) do not serve any simply stated purpose to ‘promote the rights of, and to support victims of crime’ as had been submitted by GTP.

59. The Commissioner submitted that the inquiry to be conducted by the Tribunal required under s 19 (4) that the acts only be related in that there be a connection. They submitted that the surrounding context (the circumstances of GTP being in sexual servitude) identify a single commonality in the time of their commission, a commonality in the identity of the perpetrators… . However noting the case of Victims Compensation Fund Corporation v JM [2011] NSWCA 89 at [6] which dealt with the former Act, the Commissioner submitted that there are no prescriptive set of factors that will be relevant to every case.

6. An applicant's difficulty in challenging the Tribunal's decision is exacerbated by the legislature's lack of guidance as to what is involved in the concept of acts of violence being related for the purposes of the Act. The features that are intended to characterise acts of violence as related are left unstated. As a result widely different views may be reached about the same factual situation. The legislature has given primacy to the subjective view of the Tribunal (where there has been an appeal from a decision of an Assessor). Unless that view falls outside the range of reasonable and rational views that could possibly be arrived at (or reflects one of the other errors described in the authorities to which I have referred above), it is not open to challenge. Bearing in mind the breadth of the concept of relationship and the lack of delimitation of this concept by the Act, I do not consider that the Tribunal's views in this case fell outside that range.

60. The Commissioner submitted that the Tribunal needs to examine features of the assaults at a fairly high level in order to evaluate the degree of connection they share. They submitted that the inquiry must be focused on the objective features of the acts.

61. Further submissions referred to the legislative provision in s 34 that recognition payments are made ‘in recognition of the trauma suffered by the victim of an act of violence’. In this regard it was submitted that as the total trauma experienced was cumulative in respect of all assaults of this nature, that might be a more compelling reason to treat the acts as related.

62. Other submissions were made concerning the objective seriousness of the assaults and it was noted that all claimed assaults were extremely serous but that was also a reason to link them as related due to that aspect of commonality.

63. Reference was also made by the Commissioner to GCL as referenced at [47] above. The Commissioner submitted that there was little authority on matters involving separate perpetrators involved in acts of violence at different times. The Commissioner relied on the following passages from GCL when that case considered two of the three assaults being related acts:

87. In respect of the other two incidents involving ‘L.B.’ and ‘Ratu’, there is more to potentially link these incidents than the earlier one. Both incidents on the best evidence occur or predominantly occur in the common area in the Mackenzie Unit. After the earlier incident GCL goes and sits with his roommate in the TV area and later goes outside to have a cigarette. He then goes to the toilet and is then washing his face. It is at this time that ‘L.B.’ comes up behind him and attempts to have sex with him (in GCL’s own words) and that ‘L.B.’ is behind him and pushing his penis into his backside.

88. Then GCL said that ‘L.B.’ pushed him towards the room during which time GCL said that he could not move. GCL said that he ‘tried to escape’ and run towards the exit door but ‘L.B.’ came again from behind and punched GCL with a fist (GCL said that action was because he would not have sex with ‘L.B.’). GCL said that he then collapsed. By the time of the third assault by ‘Ratu’ GLC appears to be still in the common area as when he woke up (being unable to stand) he ‘crawled’ to the exit door, so it would appear from his evidence in an attempt to get outside.

89. This third incident begins with ‘Ratu’ coming in the exit door and stomping on GCL’s right palm. GCL said that ‘Ratu’ then pulled GCL’s pants down and exposed his buttocks. ‘Ratu’ then beat GCL’s buttocks with his hand two times and commented as outlined at [13] above. GCL said that he tried to pull away and pull his pants up and crawl. GCL said that he was on all fours and had managed to get the top half of his body out of the exit door. It was at that time that two officers from the facility came in and the incident ended.

90. In my view these incidents are related in that they both deal with attempts by the perpetrators to sexually assault or engage in sexual touching or a sexual act in the context of physical assaults. They predominantly occur in the common area (Ratu’s assault appears to do so in its entirety). The similarities with the first matter are only that GCL was assaulted earlier that same day.

91. Having regard to section 19 (4) of the Act it is clear that they were committed against the same person, and in my opinion, they were also related having regard to s 19 (4) (b) (ii) being that: they were, for any other reason, related to each other. This is because of the nature of what actually transpired as outlined at [89] and [90] above. I therefore find that the assaults by ‘L.B.’ and ‘Ratu’ are a series of related acts of violence for the purposes of s 19 (4) of the Act.

64. In resect of the other incident being a separate act of violence rather than a series of related acts, the Tribunal observed:

81. In my view the first assault involving the perpetrator ‘Big Fella’ is a discrete matter. The assault effectively occurred in GCL’s room. It involved both sexual touching and a sexual assault as well as at least one instance of a physical assault.

…

85. Having had the benefit of the better evidence where GCL gave evidence on oath and that evidence was tested by cross examination, I find that the assault by ‘Big Fella’ is a separate act of violence. The only matters linking that act with the others is that GCL was the victim, and that it occurred at the same address and was perpetrated on the same day by other detainees. In the best available evidence, the reference to the phone cards only arises with ‘Big Fella’. As noted, this incident predominantly occurs in GCL’s room when the roommate was absent. I note that generalised references to seeking phone cards as recorded elsewhere in the records, but I place little weight on that matter having heard GCL’s own evidence.

65. The Commissioner submitted that there is a compelling reason to treat the acts as related and relied on the common features. Location, timing, the nature of the offending conduct, the nature of the injuries and the context of the offending (victim assaulted by person in commercial arrangement with third party for sexual services).

The administrator’s decisions

66. These are summarised very briefly at paragraphs [14], [18]. And [37] above.

67. The first decision notes that as the medical evidence does not particularise specific injury or damage arising from each individual offenders actions, being an injury solely attributable to that offender, then the matters needed to be considered related acts of violence.

25. (GTP) has disclosed that she sustained physical injury as a result of her encounters with certain offenders. Unfortunately, contemporaneous medical evidence from a suitably qualified medical practitioner has not been provided to establish injury from each offender.

26. I therefore must consider that the violence comprises a series of related acts in accordance with section 19 (4) and (5) of the Act in consort [sic], facilitated by an individual and committed at the same residence. For these reasons, as I am unable to approve a recognition payment on multiple applications as they relate to the same act of violence…. .

68. The second decision (the Internal Review) the delegate appears to make a finding that the act of violence was a series of related acts at the same time as the primary finding on act of violence. That being that at [27] of the Internal Review they refer to:

27. ,,, the decision under review it has been accepted that the available evidence is sufficient to establish that GTP… . was subjected to sexual assaults and other violence while working there that forms a series of related acts.

69. Later in the decision they adopt similar reasons to the first decision maker concerning related acts, but make the following additional observations:

28. Noting the evidence provided I consider it appropriate to uphold the finding that the violence (GTP) experienced while working in the brothel when a young teenager, forms a series of related acts. I note section 19 (4) of the Act identifies that violence committed over a period of time, at the same location, and was facilitated by the same brothel owner or manager, I am satisfied it is appropriate to consider the violence as forming a series of related acts which constitute a single act of violence.

GTP’s reply submissions

70. In response to the Commissioner’s submission, GTP submitted that they were not stating that the claims bore no common features. Nor did they suggest that connections between the circumstances of each offender’s conduct could not be drawn.

71. GTP noted that there were no significant submissions at hearing by the Commissioner against the beneficial approach that the objects of the Act provided.

72. In closing GTP submitted that when looking at the applications and their circumstances at a high level, the matters would ordinarily be viewed as unrelated matters.

Consideration

73. I have carefully considered the matters raised by both parties. I note in particular GTP’s submission that her claims on the Fund were not ambit claims, but constrained and limited to the five individual perpetrators who she could remember sufficient descriptors and other relevant details about their individual behaviours so that she could make a cogent and as highly detailed as possible application.

74. It is clear that the legislature has given the finder of fact significant discretion to consider that acts of violence related to form one series of related acts, or unrelated acts. The language in the statute at s 19 (5) is clear in that: ‘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 s related acts .

75. Likewise in s 19 (4) a broad discretion applies when one has regard to the statutory language particularly at 19 (4) (b) (iii) .. ‘they were for any other reason, related to each other.’

76. The statutory basis for the Commissioner’s finding that GTP’s incidents of sexual assaults were a series of related acts is found in the provision of s 19 (4). That section provides:

(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.

77. Both delegates of the Commissioner focus on the similarities in that GTP was the victim, the assaults were sexual in nature comprising sexual assault and sexual touching, and they occurred apparently at the same premises in South Western Sydney. They also note that all perpetrators were male and the Commissioner made submissions that they had similar interests in that at [79] of the Commissioner’s submissions reference is made to the perpetrators all having similar sexual predilections.

79. Each assault involved a patron of a reportedly illegal brothel who (based on the applicant’s evidence of the Madam’s comments to her) knowingly sought out an underage child for the purpose of committing acts of sexual assault.

78. I do not agree with this submission. The fact that the perpetrators were persons with similar interests is not in my view a relevant consideration when examining an incidence of assault. The Parliament has made it clear that the relevant matters that ‘count against’ any victim claiming support are contributory behaviour, offending - being that at the time they were involved in their own criminal act or enterprise or in some instances a failure to mitigate injury. None of these matters (which are outlined at s 25 and 44 of the Act) apply to GTP and her circumstances, nor is it argued that they do. However, the circumstances of the acts of violence which are beyond GTP’s control such as her life circumstances, are submitted against her. I do not accept that such a matter counts against her both having regard to the objects of the Act and the available evidence as to context.

79. Whilst the broad discretion in s 19 goes either way, in that acts can be considered related and can also be considered unrelated, those matters must be examined in the context of the total circumstances.

80. Like in GCL whilst that applicant was in immigration detention not of his own choosing, so was GTP in circumstances not of her own choosing. It is wrong to consider that matters beyond a persons control should count against them when considering factors to be taken into account as to persons eligibility for victims support, including the extent and nature of that support.

81. The significant issue in the current case concerns two matters. The most significant in my view is that the perpetrators were five distinct individuals with nothing in common other than their gender, their engagement of the services of the brothel, their asserted sexual predilections as set out at [77] above, and their propensity to engage in criminality. There is no evidence that any of the perpetrators knew each other, or that they had knowledge that GTP had been assaulted and as a result violated by other patrons like them.

82. These five men engaged in various assaults of GTP. Whilst nearly all claimed matters had a sexual element at least one perpetrator also engaged in general corporal violence in the nature of choking. There is evidence that hair on GTP’s scalp was pulled and significantly there is evidence that sexual assaults in respect of one perpetrator involved the use or circumstances where an offensive weapon was present. (Knife held to GTP).

83. Unlike the circumstances in GCL the assaults did not occur at approximately the same time or closely following each other, but occurred at different dates over an extended period of time.

84. The multiple claims referred to in the Commissioner’s submission referencing the 2010 amendments and the Chairperson’s Report does not pick up all of the relevant issues canvassed in those recommendations and rationale for law reform. Whilst the 2007/2008 Chairperson’s Report does reference this, it does so in a context that approximately 20% of applicant’s with claims pending before Victims Services at that time had multiple applications. (extrapolating number of claimants with multiple claims as a percentage of number of pending claims). Comments about the lack of detail in those claims and the difficulty in determining such claims are referenced by the Chairperson. These matters are not raised in respect of GTP’s current applications by the Commissioner.

85. GTP submitted that she had significantly curated her claims in order to only bring matters whereby she believed that she had sufficient evidence to meet the requirements of the Act. GTP has in her submission not claimed for the majority of assaults committed on her in the period 1997/1998.

86. The reference to the same person of group of persons in s 19 (4) (b) (ii) has always been taken to mean that group of offenders were acting in concert. This provided that where there was for example a sexual assault committed by multiple offenders, that claim could be considered as one act of violence, but was recognised for its severity by being picked up in s 35 (2) (a) of the Act which provided for an act of violence in the nature of a sexual assault carried out by two or more persons, opening up a Category B payment rather than the lesser Category C payment.

87. In that instance or in circumstances meeting s 35 (2) (a) situation, such that the assault occurred in situ and involved multiple perpetrators, GTP has not made any claims concerning multiple perpetrators. Each of her five claims concerns an individual perpetrator acting alone.

88. In my view the operation of the provisions in s 19 and s 35 does not provide for a situation whereby under section 19 where there is a finding of a series of related acts forming one act of violence, the decision maker can then turn to s 35 and apply the provisions to recognise the multiple acts. Section 35 (2) (a) uses the language sexual assault (in the singular) and the words carried out on my assessment relates to the assault being performed or executed.

89. In GTP’s circumstances we have a situation whereby strangers with nothing in common o0ther than the matters identified at [81] above, engage in violent and significant assaults on GTP to differing degrees of seriousness at different times not cognisant of the others actions.

90. In my view the provisions in s 19 should be interpreted to recognise an incident in the singular involving multiple perpetrators either constituting separate acts of violence or a series of related acts leading to one act of violence under s 19 (1) of the Act. It is arguable that each of GTP’s claims are claims based on a series of related acts committed by one perpetrator. Nowhere is the claim made that more that one perpetrator was involved. GTP has been diligent as was submitted to only claim for instances and circumstances that she recalled sufficient evidence and particulars about.

91. On the issue of acts committed by one or more persons, the delegates seem to have construed this as being a provision that applies to assaults over a period of time. In my view as outlined above it is no such provision. In section 34 of the Act the definitions or Part 4 Division 5 arise. Whilst the words series of related acts is defined, person or 2 or more persons is not defined.

92. The position in my view is that the multiple offender provisions apply to an incident or a series of incidents, such as those described in the second and third assaults in GCL at [63] and [64] above, whereby the acts are a series of acts constituting one act of violence (due to their proximity to each other) involving two or more persons.

93. A series of related acts can take account of a situation whereby one perpetrator commits multiple acts of violence on a victim over a period of time, in some instances a lengthy period of years or decades. This might apply to instances of claims concerning child sexual assault by an adult or person in authority, incidents of domestic violence by the same / sole perpetrator and similar claims. Each matter would however turn on its own facts where determining if multiple applications were made whether they should be considered related acts (or not).

94. It is difficult to envisage a domestic violence claim being treated in the same manner as the claims of GTP. It is in my view unlikely and misconstruing the provisions for a decision maker who receives a number of claims by a person in the context of domestic violence type crimes and trauma which nominate different partners or perpetrators being treated as a series of related acts if s 19 (1) was sufficiently traversed on the available evidence. It seems illogical to consider that because the same types of things happened to a victim by different perpetrators at different times the provisions of s 19 (4) of the Act should be applied in a determinative manner. This position does not sit well with the submission that the Tribunal should look at the matters at a high level.

95. In addition in respect of all claims made by an individual applicant they always have elements in common in that the claimant in such matters will be a common point. The Act is clearly not intended to be interpreted to ‘wrap up’ any multiple claims by any claimant as a series of related claims (or acts of violence) under s 19 (4) (b) (iii). That intention is not evident from the drafting in s 19.

96. Putting to one side the submissions of either party, it is open to the Tribunal for the reasons outlined in some detail above, to find that each of GTP’s claims should be considered as a claim based on an act of violence. Section 19 (5) of the Act provides that:

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

97. I find that GTP is the primary victim of an act of violence in each of the four claims before the Tribunal and is eligible for victims support. I find that there are no relevant section 44 issues to disentitle or reduce the amount of support available for GTP.

98. Having considered those matters, and taking into account the submissions of both GTP and the Commissioner, I find the following:

99. Application 2024/0003385 is a discrete claim based on a series of related acts involving a single perpetrator.

100. Application 2024/00452754 is a discrete claim based on a series of related acts involving a single perpetrator.

101. Application 2024/00452724 is a discrete claim based on a series of related acts involving a single perpetrator.

102. Application 2024/00452752 is a discrete claim based on a single act of violence.

Conclusion

103. For the reasons outlined above, and the decision of the respondent will be set aside in the four claims under administrative review. The import of this decision is that the respondent is to grant the applicant three further recognition payments in the nature of Category B on three claims for which section 35 (2) (b) will apply. On one claim (number 2024/00452352) a further recognition payment in the nature of Category B for which section 35 (2) (a) will apply.

Orders

1. In proceedings 2024/00033385 the decision of the respondent of 13 August 2024 is set aside and in substitution of that decision the respondent is to give support under section 36 (1) (c) by way of a Category B Recognition payment on the basis of s 35 (2) (b) being a series of related acts.

2. In proceedings 2024/00452751 the decision of the respondent of 13 August 2024 is set aside and in substitution of that decision the respondent is to give support under section 36 (1) (c) by way of a Category B Recognition payment on the basis of s 35 (2) (b) being a series of related acts.

3. In proceedings 2024/00452728 the decision of the respondent of 13 August 2024 is set aside and in substitution of that decision the respondent is to give support under section 36 (1) (c) by way of a Category B Recognition payment on the basis of s 35 (2) (b) being a series of related acts.

4. In proceedings 2024/00452352 the decision of the respondent of 13 August 2024 is set aside and in substitution of that decision the respondent is to give support under section 36 (1) (c) by way of a Category B Recognition payment on the basis of s 35 (2) (a) being a sexual assault which involved an offensive weapon.

104. As a result of the decisions in the four claims above GTP is entitled to be provided with total recognition payments for the successful claims before the Tribunal providing a total payment in the amount of $40,000.00.

105. I have not considered the nature of the payment made in Victims Services matter No 509185 (for which the series of related acts of violence payment was administratively made) as that matter is not before the Tribunal for review. I note however that as a result of my findings on the other four claims, based on the limited information in the decision (as set out at [8] sub 1. above) that claim appears to relate to one claimed instance of sexual assault.

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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: 04 June 2025