FCB v Commissioner of Victims Rights

Application for Administrative Review

1. This 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.

Consideration

1. FCB filed an application for administrative review of the Assessor's decision on 9 August 2021.

Objection to jurisdiction

1. On 19 November 2021, the Respondent filed written submissions that raised an objection to the Tribunal's jurisdiction to determine the application on the basis that FCB had not satisfied the relevant provisions of the Act and the Administrative Decisions Review Act 1997 (the ADR Act).
2. At the hearing of the matter before me on 3 December 2021, FCB appeared in person and Ms K Douch appeared for the Respondent. The Respondent pressed the objection to jurisdiction and it was therefore necessary for the Tribunal to determine this issue before determining the application.
3. The relevant legislative provisions are as follows: 1. Section 51(1) of the Act, which provides in effect, that an applicant for a recognition payment who is aggrieved by the decision of a decision maker may apply to the Tribunal for review of a decision made by the Commissioner after an internal review of that decision under s 49 VRSA; 2. Section 55(3) of the ADR Act, which provides in effect, that an applicant may not make an application for review of an Assessor's decision unless they have duly applied for an internal review by the Respondent and the review is taken to have been finalised under s 53(9) of VRSA; 3. Section 55(4)(b) of the ADR Act, which provides relevantly, that the Tribunal may deal with an application for the administrative review even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that "it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned"; and 4. Section 55(5) of the ADR Act effectively provides that in determining whether an application to the Tribunal was made within a reasonable time for the purposes of ss (4), the Tribunal is to have regard to (a) the time when the applicant became aware of the making of the decision, and … (c) such other matters as it considers relevant.
4. There is no dispute that FCB did not apply for an internal review by the Respondent. I note that on 6 August 2021, FCB sent an email to the Respondent in which she stated, relevantly: My request for victims services was dismissed last year on the grounds below. I know it states that I only had 90 days to appeal the decision however following the injuries caused to me by (the alleged offender being physical and psychological, I required intensive treatment which resulted in two mental health admissions increasing my anxiety, depression and newly being diagnosed with PTSD as a result of (the alleged offender). Furthermore, the initial paperwork by police suggested that I was listed as the person of interest. This was withdrawn by police in a court of law after establishing I was not in fact the person of interest but a victim. Police referred me to DV services where I received some counselling. (The alleged offender) also wrote a written apology to me submitted to the ADBNSW which was supplied to me indicating him as the person of interest and myself the victim. I am happy to supply this also. I was wondering if a review of facts can be looked at and I am happy to provide further evidence to support my claim if it is able to be re-opened?? Furthermore, may I request how many counselling hours I have available?...
5. On 6 August 2021, Victims Services sent an email to FCB in response to her email, and stated, relevantly: …Under section 49 of the Victims Rights and Support Act 2013 (NSW), an application for an internal review must be lodged within 90 days after the day the applicant was given notice of the decision. We have looked at your application and unfortunately it was lodged outside of this 90 day period. Victims Services is unable to give special consideration under any circumstance(s) and therefore must decline your application for internal review. In relation to your counselling with Victims Services, you have 22 hours of approved counselling remaining…
6. In a further email to FCB dated 6 August 2021, Victims Services advised that she could lodge an application for external review with this Tribunal.
7. I note that the application for administrative review was filed with the Tribunal approximately 9 months after FCB was notified of the Assessor's decision. It is therefore necessary for the Tribunal to consider whether this occurred within a reasonable time for the purposes of s 55(4) of the ADR Act.
8. In relation to this issue, FCB stated in the application that she did not "appeal" within 90 days of the Assessor's decision because she was having ongoing treatments and admissions to hospital. She said that she was diagnosed with PTSD as a result of being a victim and required multiple admissions to hospital, counselling, medications, and being unwell, as a result of the alleged offender's actions.
9. FCB submitted a letter of support from Dr Ghodusi, GP, dated 10 September 2020, which indicates that she experienced domestic violence in October 2020 and that since then has suffered an exacerbation of her mental diseases (depression, PTSD and anxiety) and that this led to her hospitalisation.
10. Further, the Respondent's s 58 documents include a Mental Health Treatment Plan issued by Dr Ghodusi on 26 October 2020, which referred FCB to Ms Shama, psychologist, for treatment of depression and an acute stress disorder. This also set out a history of depressed mood as a result of recent domestic violence and a suicide attempt.
11. Dr Ghodusi also issued a Centrelink Medical Certificate on 29 October 2020, which indicated that FCB suffered a right hand fracture and exacerbation of anxiety and PTSD and depression due to domestic violence on 21 October 2020.
12. The Respondent argued that the Tribunal lacked jurisdiction to determine the application because there is no administratively reviewable decision. The Respondent's written submissions assert that s 51(1) of the ADR Act confers jurisdiction upon the Tribunal to review a decision of a decision-maker with respect to a recognition payment following an internal review under s 49 of the Act and as there was no internal review, FCB did not satisfy the pre-condition to s 51(1).
13. The Respondent asserted that while s 51(2) of the ADR Act confers jurisdiction on the Tribunal to review a decision made by the Respondent in respect of an application for a recognition payment, this power only arises where the Commissioner for Victims Rights, and not a delegate, determines the application for victims support, and as the decision was made by a delegate, s 51(2) of the ADR Act does not apply.
14. The Respondent also argued that s 55(4) of the ADR Act does not apply to the application because there is no administratively reviewable decision. In support of this assertion, the Respondent sought to rely upon a decision of Deputy President Hennessy in CWS v NSW Department of Education [2017] NSWCATAD 287 at [15] (CWS): While I accept that s 55 of the ADR is not expressly excluded by s 52(4) of the PPIP Act, s 55(4) does not arise for consideration in the context of an application under the PPIP Act. Applications under that legislation are different from applications under legislation where an administrator makes an administratively reviewable decision which is then subject to internal review. Under the PPIP Act, an application for internal review under s 53 of the PPIP Act is a pre-condition to an administrative review by the Tribunal under s 55 of that Act. The Tribunal has no power to deal with the additional conduct in this case because the applicants have not applied for an internal review in respect of that conduct. Section 55(4) does not give the Tribunal jurisdiction to do so.
15. I note that the decision in CWS concerned an application made under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) and that the Deputy President expressly stated that s 55(4) of the ADR Act does not expressly arise for the Tribunal's consideration in the context of an application under the PPIP Act.
16. However, the Act does not exclude the operation of s 55(4) of the ADR Act in relation to an application for administrative review of a decision made under the terms of the Act. In my view, the decision in CWS is not authority for the proposition that a decision of an Assessor, which is an administratively reviewable decision for the purposes of an application for internal review to the Respondent, is not an administratively reviewable decision for the purposes of an external review by this Tribunal.
17. Section 55(5)(c) of the ADR Act confers a wide discretion on this Tribunal in determining whether the application was made within a reasonable time following the Assessor's decision and it allows the consideration of evidence that the Tribunal considers relevant. In my view, FCB's oral evidence, her submissions to Victims Services and to this Tribunal and the medical evidence from Dr Ghodusi are relevant to the determination of this issue and based on that evidence, I am satisfied that FCB filed her application for administrative review within a reasonable time.
18. Accordingly, I am satisfied that the requirements of s 55 of the ADR Act have been satisfied, as it is necessary for the Tribunal to deal with the application in order to protect FCB's interests, and that the Tribunal has jurisdiction to determine the matter.

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 of the Act, relevantly: (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (2) For the avoidance of doubt, the reference to an offence in subsection (1) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment… (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.
3. Section 19(8) of the Act defines "domestic violence", relevantly, as: (f) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons … (ii) a person who is or has been a de facto partner of the person who committed the offence, (iii) a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, (iv) a person who, at the time of the offence, was living in the same household as the person who committed the offence, …
4. The Respondent's written submissions assert that no act of violence has been established on the balance of probabilities, and that while FCB reported an act of physical violence to police on 19 October 2020, the police considered that she was the person of interest and not the victim applied for a provisional ADVO to protect the alleged offender. Further, while FCB has provided evidence of psychological injury caused by domestic violence, there is no contemporaneous evidence that verifies that she was the victim of a physical assault on 18 October 2021 (sic). The Respondent stated, relevantly: 54. In respect of the allegation of emotional abuse, psychological abuse, manipulation and direct verbal abuse, in the absence of particularisation or supporting documentation, the applicant has not established on the balance of probabilities that there was conduct that apparently occurred in the commission of an offence and/or that involved violent conduct as required by section 19 of the Act. 55. Further or in the alternative, the respondent submits that the applicant has not satisfied section 39(2)(b) of the Act as the police report and NSW Health discharge information is not sufficient to support on the balance of probability the applicant's claim to be a victim of an act of violence.
5. While the Respondent correctly states that the information in the police report does not support FCB's case, the evidence before the Tribunal clearly indicates that the information relied upon by the police in deciding that FCB was the person of interest and not the victim was both inaccurate and incomplete. In any event, this Tribunal is not bound by the decision made by police in determining whether FCB was the primary victim of an act of violence.
6. In my view, the Respondent's submissions fail to address the following evidence, which was not available to either the police or the Assessor: 1. FCB's email to the Respondent dated 6 August 2021 (set out previously in this decision), which provided, relevantly: …Furthermore, the initial paperwork by police suggested that I was listed as the person of interest. This was withdrawn by police in a court of law after establishing I was not in fact the person of interest but a victim. Police referred me to DV services where I received some counselling. (The alleged offender) also wrote a written apology to me submitted to the ADBNSW which was supplied to me indicating him as the person of interest and myself the victim. I am happy to supply this also. … 1. The written apology from the alleged offender dated 1 March 2021, which was referred to in FCB's email dated 6 August 2021, which provides: I write with much sadness and regret that you are feeling so hurt. I never wanted to hurt someone as caring as you. My actions were never intended to hurt you. I am in a very depressed, anxious mental state. As you are aware, with your medical background, I have been this way for a long time. I have sought and received professional help. I hope that with your professional knowledge and understanding, you can accept my sincerest apology. Personal remarks of a physical and medical nature are not acceptable and I regret saying what I said to you. By way of explanation, not an excuse, I was under enormous medical, financial and mental pressure when I met you at the detox facility. I know you were also under a great deal of pressure. Our timing to meet was not right. The end and liquidation of my business have added to the stress I am under and my response to you. I have learned from my treating psychiatrist that I need to own my mistakes. I am endeavouring to do so. I am trying to rebuild my shattered life and hope you can also. Thank you for your text messages of support over recent months. Again I am so sorry. Please accept this apology for any hurt I may have caused you, and it goes without saying that I wish you the very best for your future…
7. The Tribunal also had the benefit of hearing from FCB during the hearing and I was impressed by her forthrightness and candour in describing the nature of the abuse that she was subjected to by the alleged offender during the period of time referred to in the application for victims support. I accept her evidence that the alleged offender pushed her down stairs, which caused an aggravation of a pre-existing undisplaced fracture of the right fifth metacarpal, which in turn required surgery to internally fix the fracture with k-wire.
8. However, in the event that I am incorrect in finding that the need for that surgery resulted from the incident described by FCB, and that the aggravation of the fracture occurred while she was hospitalised for psychiatric treatment following her attempted suicide, which is suggested by the hospital's records, I am satisfied that this physical injury nevertheless resulted from the act of violence.
9. The legal test of causation was discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates [1994] NSWCCR 796 (Kooragang), in which Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that [f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate". After referring to earlier English authorities, his Honour added (at [462E]): Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.
10. The test in Kooragang is often described as the "but for" test. In applying that test to this matter, I am satisfied that but for the domestic violence and assault described by FCB in October 2020, she would not have suffered a psychological injury that caused her to attempt suicide and required her hospitalisation for psychiatric treatment, and that there is an unbroken chain of causation between the act of violence and the circumstances in which the aggravation of the fracture injury occurred. Therefore, the aggravation of the fracture injury resulted from the act of violence.
11. Based upon a consideration of all of the available evidence, I am satisfied on the balance of probabilities that FCB was the primary victim of an act of violence, in the nature of domestic violence and assault, which occurred over a period of time from 1 June 2020 to 19 October 2020, and that she suffered both physical and psychological injuries as a result.

Recognition payment

1. It is necessary to determine the relevant category of recognition payment that FCB is eligible to receive as a result of her injuries.
2. In effect, s 35(3)(c) of the Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. However, "grievous bodily harm" is not defined in the Act.
3. I have considered all of the evidence lodged with the Tribunal, including FCB's evidence that she required surgery to treat the aggravated fracture injury in her right hand, hospitalisations for psychiatric treatment, ongoing psychiatric and psychological treatment and medication for her psychological injury. I also accept the medical evidence that supports a finding that she has been unable to work since the act of violence occurred.
4. The Respondent did not address this issue in the written submissions, but during the hearing Ms Douch conceded, and in my view properly so, that if the Tribunal found that an act of violence was established, FCB was eligible for a category C recognition payment because she was the victim of an assault that resulted in grievous bodily harm.
5. Some guidance regarding the meaning of "grievous bodily harm" may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (as her Honour then was) (Johnson and McCallum JJ agreeing) in Haoui v R [2008] NSWCCA 209 (Haoui). In that matter, the Court considered its meaning in the context of the Crimes Act 1900 and Her Honour stated (relevantly): 137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one." 138 The question whether an injury amounts to "grievous bodily harm" has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the "middle third" of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43. 139 However, there are other injuries, which although "really serious injuries", are nonetheless less severe than those to which I have just referred. The fact that the concept of "grievous bodily harm" encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim's injuries were not "the worst case of grievous bodily harm", but were far from the low end of the range of injuries amounting to "grievous bodily harm". Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was "seriously injured", that he had suffered "significant injury", and where the offence was described as involving "gratuitous cruelty": Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim's cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12. 140 It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm However, no authority is cited for the proposition. 141 In my opinion, the jury verdict that Mr Mousselamani suffered "grievous bodily harm" was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was 'red' for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short. 142 In the appellate context in which I am considering whether the injury in this case constituted "grievous bodily harm", two fundamental matters have to be kept in mind. The first is that there is a range of "really serious injury" and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is "really serious injury", then there is "grievous bodily harm". Secondly, the question whether particular harm amounts to "grievous bodily harm" is a question of fact for the jury.
6. The decision in Haoui was cited with approval by the Court of Criminal Appeal in AM v R [2012] NSWCCA 203, in which Johnson J stated (relevantly): 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…
7. Based upon the available evidence, I am satisfied that the act of violence resulted in "really serious injury" and that it therefore resulted in grievous bodily harm.
8. It follows that I am satisfied that FCB is eligible for a category C recognition payment in the sum of $5,000 pursuant to s 35(3)(c) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (the Regulation).

Order

1. I make the following orders: 1. I grant leave to FCB to file the application for administrative review pursuant to s 55(2)(b) of the ADR Act. 2. The decision of the Assessor dated 5 November 2020 is set aside and the following decision is made by way of substitution: 1. FCB was the primary victim of an act of violence pursuant to ss 19 and 20 of the Act. 2. FCB is eligible for a recognition payment in the sum of $5,000 pursuant to s 35(3)(c) of the VRSA and cl 14(d) of the Regulation.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2021