FNA 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 Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The application for administrative review

1. On 30 August 2022, the Tribunal received the current application, which sought a review of the respondent's decision dated 26 July 2022, on the following grounds: 1. Failure to comply with ss 35(d), 36(e), 43(5) and 26(1) of the Victims Rights Act (sic) 2013, and its regulation. 2. Failure to comply with the Workers Compensation Act, s 82.
2. In the application, FNA asserted that he had applied for an internal review and that the Respondent had not responded within the time allowed (deemed refusal). He also stated: ... I was assaulted, the offender was an aboriginal man, he demolished my place, where I live and work. I sustained many injuries and damaged two electronic devices, computers, iPhones come up furniture and main door glass and structure. Indeed, rice suffered serious physical harm and injuries including back neck foot leg and dental injuries Ain other psychological injuries. I lost my capacity to earn, also I have two business is. Injuries certificates, invoices, payslips Ain other documents were supplied, but in vain. The episode was documented by the NSW forensic team, and it has been acknowledged by the victims services NSW on 10 Jan 2022... Since then, I tried to obtain my entitlements under the Victim's Rights and Compensation Act (sic) 2013 And other legislation. The assessor … tried maliciously to diminish my entitlements, over 8 months, by applying subjective rules come out false resumptions (sic) with invalid technicality to reduce my entitlements. since the assault in Nov 2021, I tried to recover some of my financial, physical, mental and property loss, but this was in vain. To manage a past my case to a fanatic assessor … as a delegate off the Commissioner of Victims' Rights has used his power subjectively, to inflict emotional harm, which lead to add more harm to the victim status, and instead of assist the venerable victims, they discredit an attack the injured and make their life more miserable. Thus, (the Assessor) is in breach of the Code of Ethics and Conduct for NSW public servant. Every time I submit a request to the victim services they ask for more documents, no empathy and very rude servants, and reply after full weeks of each inquiries, most of the public servants are not working according to their employment contracts and abuse the victims systematically. A negligent management system, where staff provide misleading and or false information, no ethics, no respect to protocols, as no one control their actions. In the end, the victims will receive more harm and or develop major depression and or mental disorders.

The directions hearing

1. The matter came before me for a directions hearing on 23 September 2022, at which FNA appeared in person and Ms K Douch, Victims Services, appeared for the Respondent.
2. When the directions hearing commenced, Ms Douch informed the Tribunal that contrary to the allegation in the application, FNA had not applied for an internal review of any decision made by the Respondent.
3. I noted that the applicant had applied for administrative review of the Respondent's decision dated 26 July 2022, which related to the claim for financial assistance, and I stated that this Tribunal does not have jurisdiction to review that decision.
4. FNA replied that this was a "mistake" on his part and that he wanted a review of the decision dated 3 February 2022 in relation to the claim for a recognition payment.
5. Accordingly, the Tribunal granted FNA leave to file and serve an amended application, which sought administrative review of the decision dated 3 February 2022, on the basis that the application was lodged out of time.
6. The Tribunal also ordered the respondent to file and serve a bundle of documents under s 58 of the ADR Act and to file and serve its summary of legal arguments by 28 October 2022. The matter was listed for hearing on 3 November 2022.

The hearing

1. At the hearing on 3 November 2022, FNA appeared in person and Ms Douch appeared for the Respondent.
2. The Tribunal noted that on 6 October 2022, FNA filed an amended application for administrative review, but that this did not comply with the leave granted during the directions hearing. I noted that the only obvious amendments were the inclusion of "s 51" of the Act in Ground 1 and the addition of the word "Amended" after the title of the document. However, the application still sought a review of the decision dated 26 July 2022 and maintained the assertion that there was a "deemed refusal" in relation to an application for internal review.
3. The Tribunal repeated its previous ruling that it lacks jurisdiction to administratively review the decision dated 26 July 2022.
4. The Tribunal also noted that instead of providing an explanation for his failure to request an internal review and/or to file the application for administrative review within time, FNR had instead purported to request an internal review of the decision dated 26 July 2022 from the respondent. He attached that request to his amended application.
5. FNA responded that the Respondent had not determined his request for internal review. However, the Tribunal stated that the Respondent has no discretion to extend the time in which an internal review can be requested. In any event, he had purported to request an internal review of a decision that the Tribunal does not have power to review.
6. FNA then stated that the reference to the decision dated 26 July 2022 is "a mistake" and that he is seeking an administrative review of the decision dated 3 February 2022.
7. The Tribunal stated that it has a discretion to extend the time for filing the application under s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), which 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.
8. The Tribunal noted that in his request for review dated 23 September 2022, FNA stated: The assessor has not considered appropriately, the materials supplied to the departments of VA, including medical certificates, injury certificates and recently the physiotherapy assessment. The assault has been established and was evidenced by 34 images and video, end result caused physical and mental injuries to the victim, and classified as "serious bodily harm" by many court/tribunal cases, and supported by (Police report: number provided). it cannot be classified as category D for recognition payment. further, an immediate payment of $5000 shall be made on 3 Feb 2022 and other payments of household items, closing doors/locks damages, security cameras and appliances ($1650 + 300 + 2000 + 300 + 2300). The appropriate category for recognition payment is B as described in s 35(2) of the VSR Act.
9. The Tribunal asked FNA to clarify why he believes that he is eligible for a Category B recognition payment, noting that s 35(2) of the Act provides that this is 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.
10. The Tribunal asked FNA whether he alleges that he was the victim of an act of violence of the type(s) described in ss 35(2)(a) or (b)? He replied, No.
11. FNA then stated that his injuries are "serious" and permanent (he lost 2 teeth) and that the assessment of a category D recognition payment is "wrong".
12. The Tribunal referred to the report from L Alba, physiotherapist, dated 16 September 2022, which FNA attached to his request for internal review, that indicates that he received "soft tissue therapy" to his shoulder and neck and joint mobilisations of the cervical and thoracic spines and that a home based exercise program was prescribed, but no scans were necessary.
13. FNA said that he also suffered "adjustment disorder" and the Tribunal noted that his GP provided a medical certificate dated 26 September 2022, which referred to an "adjustment disorder". However, this also referred to "the accident" on 13 November "202" (sic). FNA replied that there was no "accident" and that the doctor had made a mistake in the medical certificate.
14. The Tribunal asked FNA why he had failed to either request an internal review of the decision dated 3 February 2022 or to file the application for administrative review within time. He replied that he was not aware of his review rights at that time.
15. However, the Tribunal referred FNA to para 29 of the decision dated 3 February 2022, which provided: You can apply for an internal review within 90 days after the day you were given notice of this decision.
16. FNA then stated that he "did not read that part of the decision" at that time because he was in a lot of pain relating to his teeth and his neck and shoulder and he also was taking Zoloft and Panadeine Forte.
17. The Tribunal asked FNA whether he had received any treatment for his adjustment disorder from a psychiatrist or psychologist. He replied "No".
18. The Respondent filed written submissions on 28 October 2022, which argued that if the applicant wished to proceed with a review of the decision dated 3 February 2022, he would need to file a further amended application for administrative review, and this would be significantly out of time.
19. In relation to s 41 of the NCAT Act, the Respondent referred to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel stated, relevantly (at [22]): (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time the Appeal Panel will be required to consider: (a) the length of the delay; (b) the reason for the delay; (c) the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) the extent of any prejudice suffered by the respondent (to the appeal), Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [49] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
20. The Respondent argued that the current application is substantially out of time and that FNA has not provided a satisfactory explanation for the delay, noting that he was clearly advised of his review rights in all of the decisions.
21. The Respondent also argued that FNA has not proved that his matter has more substantial merit than merely being arguable and that an extension of time should not be granted. Further, his supporting medical evidence does not support a finding that he suffered grievous bodily harm as a direct result of the injuries suffered in the act of violence.
22. The Respondent noted that the Tribunal has previously held that under s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), it has jurisdiction to administratively review a decision where there has not been an internal review. Section 55(4)(b) provides: However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: … (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
23. The Respondent concluded that the current application should be dismissed.

Extension of time

1. There is no dispute that FNA did not apply for an internal review of the reviewable decision within prescribed time.
2. In my view, the absence of an internal review is not fatal to an application for administrative review by reason of s 55(4)(b) of the ADR Act. However, this requires the application to be made within a reasonable time following the decision dated 3 February 2022 (by 4 March 2022).
3. However, the application for administrative review was filed on 30 August 2022, which is significantly late, and I note that FNA's only explanations are that he was not aware of his review rights and/or that he was in a lot of pain when the decision was made.
4. Based upon the evidence before me, I am not satisfied that the application was filed within a reasonable time after FNA became aware of the decision dated 3 February 2022.
5. In determining whether it is appropriate to exercise the Tribunal's discretion to extend the time for filing the current application under s 41 of the NCAT Act, it is necessary to consider the merits of the application and its prospects of success.
6. While FNA's late request for internal review to the Respondent sought a category B recognition payment under s 35(2) of the Act, the relevant act of violence does not satisfy the description in either ss 35(2)(a) or (b).
7. As a result, for FNA to succeed upon review, he must prove that he was the victim of an assault resulting in grievous bodily harm. If so, he is eligible for a category C recognition payment under s 35(3)(c) of the Act. If not, the Respondent's decision must be affirmed.
8. For the following reasons, based on the evidence before me, I am not satisfied that FNA suffered grievous bodily harm as a direct result of the injuries suffered in the act of violence.
9. The Tribunal has considered the meaning of "grievous bodily harm" in numerous occasions and was guided by the commentary in Haoui v Regina [2008] NSWCCA 209 (Haoui) in which Beazley JA (as her Honour then was) stated: 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"
10. 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…
11. A finding of grievous bodily harm involves a higher threshold than actual bodily harm. In relation to a psychological injury, the threshold for actual bodily harm was considered in Shu Qiang Li v R [2005] NSWCA 442: 45 A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R v Lardner, unreported, NSWCCA, 10 September 1998). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant.
12. In this matter, I note that while the FNA complains of ongoing pain and that he lost two teeth, I am not satisfied that the medical evidence relating to the physical injuries provides a safe climate for a finding that he suffered grievous bodily harm as a result of the act of violence.
13. In relation to the "adjustment disorder", to which FNA's treating GP refers in his medical certificates, there is no evidence before me that FNA has required or received any treatment from either a psychiatrist or psychologist. On that basis, I am not satisfied that the available evidence provides a safe climate for a finding that FNA suffered grievous bodily harm as a direct result of the adjustment disorder.

Conclusion

1. For the following reasons, the Tribunal declines to exercise its discretion to extend the time for filing the application for administrative review: 1. The delay in filing the application is not reasonable; 2. There has been no reasonable explanation for the delay in lodging the application; and 3. The application has no prospects of success.

Orders

1. I make the following orders: 1. The application for an extension of time is refused. 2. The application is dismissed.

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: 01 December 2022