FQE v Commissioner of Victims Rights

Internal review

1. On 23 September 2022, FQE's solicitor applied for an internal review of the decision dated 28 June 2022, on the following grounds: 1. The assessor erred in not finding that the applicant's psychological injury amounted to grievous bodily harm. 2. The assessor erred in not providing sufficient reasons as to why the applicant's injury did not amount to grievous bodily harm. 3. The assessor erred in failing to apply the beneficial intent of the Victims Rights and Support Act 2013 (NSW) (the Act).
2. In their submissions dated 27 September 2022, FQE's solicitors argued that their client had suffered grievous bodily harm and that she should be awarded a category C recognition payment in the sum of $5,000.
3. FQE's solicitors referred to a number of decisions of this Tribunal to the effect that a psychological injury can constitute grievous bodily harm, but they did not lodge any further evidence such as a statement of evidence from FQE or any subsequent medical evidence in support of the claim. They nevertheless argued that FQE's psychological injury, referred to in Mr Callanan's Certificate of Injury in March 2022, met the criteria for grievous bodily harm.
4. FQE's solicitors also argued that the purpose of the Act is beneficial and it therefore ought to be interpreted liberally and beneficially and in favour of the grant of benefits to an applicant. They asserted that the Assessor erred by not giving enough weight to the beneficial intent of the Act.
5. On 4 November 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FQE was the primary victim of an act of violence and that she was eligible for a category D recognition payment in the sum of $1,500.
6. The Senior Assessor stated, relevantly: 17. In determining whether an injury can be considered 'grievous' in nature, I must consider factors such as whether the injury is permanent, disabling or debilitating or whether there are other factors to support that the injury is really serious. 18. In considering whether a psychological injury is 'grievous', I must be satisfied there is a diagnosis of a mental illness by a clinical psychologist and/or psychiatrist and whether there is a long-term impact on the health and wellbeing of the applicant, which impacts their day-to-day functioning or results in hospitalisation. … 20. There are two certificates of injury completed by Finn Callanan, mental health social worker, contained on file. The Certificate dated 23 March 2022 makes reference to the claimed act of violence occurring on one night. However, there were a series of related acts of violence over the course of several months. In any event, the certificate stated that (FQE) was receiving treatment and addressing her symptoms. 21. In the certificate dated 28 September 2022, it is stated that (FQE) has a ruptured attachment which impacts her sense of belonging, connection and safety. It is stated she is experiencing difficulties sleeping, it is not explained how this impacts her daily functioning. 23. (FQE) has not required hospitalisation at any time as a result of her symptoms. I also note that there is no evidence that (FQE) is unable to engage in work or study or activities of daily living. There is no evidence she is unable to leave the house or socialise. 24. Based on the information I have reviewed I am not satisfied that (FQE) has suffered an injury that can be considered grievous.
7. I note that a copy of the review decision was emailed to FQE's solicitors under cover of a letter from the respondent dated 4 November 2022. I am therefore satisfied that the review decision was served in accordance with the requirements of the Act.

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.
2. (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.
3. On 5 December 2022, the Tribunal received the administrative review application, which sought a review of the respondent's decision dated 4 November 2022 on the following grounds: 1. The Senior Assessor erred in finding that the Applicant's psychological injuries did not amount to grievous bodily harm; and The Senior Assessor erred in not giving sufficient weight to the beneficial intent of the Act.

Directions hearing

1. I conducted a directions hearing on 20 January 2023. Ms P Skuse appeared for the applicant and Ms K Douch appeared for the respondent. The matter was not ready to proceed and I listed the matter for a further directions hearing on 3 February 2023.
2. Senior Member McAteer conducted a directions hearing on 3 February 2023. Ms Skuse again appeared for the applicant and Ms Douch appeared for the respondent. He made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), ordered the applicant to file and serve submissions on or before 17 February 2023 and ordered the respondent to file and serve submissions on or before 2 March 2023. He listed the matter for hearing on 3 March 2023.

The hearing

1. At the hearing on 3 March 2023, Ms Skuse appeared for the applicant and Ms Douch appeared for the respondent.
2. I noted that FQE had not filed any further evidence in support of the application.

Applicant's submissions

1. FQE's solicitors argued to the effect that the Certificates of Injury issued by Mr Callanan demonstrates that FQE is suffering a long-term injury that impacts her daily functioning, which is sufficient to support a finding of grievous bodily harm.
2. As was the case in their submissions to the respondent, they referred to the commentary on Haoui v Regina [2008] NSWCCA 209 to define "grievous bodily harm", which was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated: 70. …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".
3. FQE's solicitors referred to the Senior Assessor's statement that a diagnosis of mental illness would be required by a clinical psychologist and/or psychiatrist. However, they argued that such a diagnosis is not required before a finding of grievous bodily harm can be made and that the Tribunal should rely upon Mr Callanan's provisional diagnosis.
4. FQE's solicitors also referred to prior decisions of this Tribunal in which a finding of grievous bodily harm was made in relation to a psychological injury, namely: FGD v Commissioner of Victims Rights [2022] NSWCATAD 118 and EGM v Commissioner of Victims Rights [2020] NSWCATAD 181. They argued that "the ongoing psychological injury which impacts her daily functioning supports a finding of grievous bodily harm", as she continued to seek treatment eighteen months after the act of violence ended, and that her symptoms "self-evidently" impact her daily functioning. In this respect, they directed the Tribunal to "the beneficial intent of the Act".

Respondent's Submissions

1. On 1 March 2023, the Tribunal received the respondent's submissions, which argued that the correct and preferable decision is to affirm the Senior Assessors' decision dated 4 November 2023.
2. The respondent referred to the Certificates of Injury from Mr Callanan (x 2) and noted that there was no evidence from a medical practitioner or psychologist that confirmed his provisional diagnosis.; Further, there is no information regarding the type of treatment that FQE received and/or whether this is ongoing. There was no evidence that the act of violence had a debilitating impact on her day to day functioning and there is no evidence that supports a finding of grievous bodily harm.
3. In relation to the FQE's argument regarding the "beneficial intent of the legislation", the respondent relied upon the decision of the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 (at [33]): … 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: "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".

Applicant's oral submissions

1. During the hearing on 3 March 2023, the Tribunal asked Ms Skuse why no further evidence had been filed or served in support of the current application?
2. Ms Skuse replied to the effect that FQE had moved and that she had been unable to contact her for the last month in order to obtain further instructions. She stated that her instructions are to the effect that FQE has not seen a General Practitioner, psychologist or psychiatrist and she has not been prescribed any medication. She believed that FQE was having ongoing counselling, but she was unable to provide any further information about this.
3. The Tribunal noted that while the Act is generally considered beneficial legislation, this does not mean that the Tribunal can make findings of fact without supporting evidence and that in this matter, there is no dispute regarding statutory interpretation.
4. Ms Skuse argued that the Tribunal has previously found that a Certificate of Injury from a Mental Health Social Worker could be relevant, such as the decision in EMT. She did not seek to make any other oral submissions.

Respondent's oral submissions

1. The respondent argued that "diagnosis" is a matter that would generally all outside the scope of practice of a Mental Health Social Worker. Otherwise, the respondent relied upon the written submissions.

Act of violence

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. … (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…
3. Section 20 of the Act defines "primary victim" as follows: (1) A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…
4. The onus is on FQE to prove the allegation that she was the primary victim of an act of violence in the nature of a home invasion and family/domestic violence on the balance of probabilities.
5. As required by ss 19(1), (3) and (4) of the Act, I am satisfied on the balance of probabilities that FQE was the primary victim of an act of violence, which was perpetrated by the named offender over a period of time from 1 February 2020 to 1 March 2021 and that she suffered a psychological injury as a result.
6. I am also satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.

Recognition payment

1. It is necessary to determine the relevant category of recognition payment that FQE is eligible to receive as a result of her injuries.
2. The respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that FQE was the victim of an assault not resulting in grievous bodily harm.
3. I note that at first instance, the Assessor effectively determined that a category D recognition payment was appropriate because FQE's medical evidence was considered inadequate for a finding that she had suffered grievous bodily harm.
4. 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.
5. I have considered all of the medical evidence before me, which comprises two certificates of injury that contain a provisional diagnosis of PTSD and anxiety, which was consistent with an incident on 8 February 2021.
6. There is no evidence in the form of a statement from FQE that addresses the symptoms that she suffered, the treatment that she received and/or the impact of her symptoms on her day to day functioning, and there is no evidence from a medical practitioner or psychologist, or any evidence from Mr Callanan after September 2022.
7. The parties have cited the decision in Haoui regarding the meaning of "grievous bodily harm", which was cited with approval by Johnson J in Am v R [2012] NSWCCA 203. This has been set out previously in this decision and it is not further extracted below.
8. Based upon the available evidence, I am not satisfied that the act of violence resulted in a "really serious" psychological injury and that FQE suffered grievous bodily harm.
9. It follows that I am satisfied that FQE is eligible for a category D recognition payment in the sum of $1,500.

Section 44 considerations

1. I have considered the factors set out in s 44 of the Act and am satisfied that there are no factors that support a decision not to approve the giving of victims support or to reduce the amount of support to be approved.

Conclusion

1. I am satisfied that the correct and preferable decision is to affirm the respondent's decision dated 4 November 2022 and I so order. 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: 17 March 2023