FQR v Commissioner of Victims Rights

On 28 February 2022, an Assessor (Client Claims) issued a Notice of Decision which determined that FQR was the victim of an act of violence in the nature of domestic violence and approved financial assistance for immediate needs totalling $2,800.
The Assessor noted that in support of her application for the ADVO, FQR stated that the alleged offender threatened and harassed her and he constantly came to her home uninvited (approximately 50 to 70 times) and she felt harassed by his actions. She also stated that on 4 September 2020, he approached her whilst she was on a train and threatened her. She said that she had moved to her Mother's home on a temporary basis because of panic attacks and was intending to relocate.
The Assessor stated that there was currently no evidence from a medical practitioner, dentist or counsellor in support of the claim and suggested that FQR should ask a medical practitioner or counsellor to complete a Certificate of Injury. The approval of financial assistance for immediate needs comprised fees for security rent and a removalist.
I note that a copy of this decision was emailed to FQR's solicitor under cover of a letter from the respondent dated 28 February 2022.
On 6 July 2022, an Assessor (Client Claims) issued a further Notice of Decision in relation to the application for a recognition payment. The Assessor determined that FQR was the primary victim of an act of violence under ss 19 and 20 of the Act and that she was eligible for a category D recognition payment in the sum of $1,500.
The Assessor considered a report that established that FQR was injured as a direct result of the act of violence and that this caused an impact to her health and wellbeing. The act of violence was considered to be a series of related acts as they were committed against FQR by the same offender over a period of time. No relevant factors were noted under s 44 of the Act.
I note that a copy of this decision was emailed to FQR's solicitor under cover of a letter from the respondent dated 6 July 2022. I am therefore satisfied that this decision was served as required by the Act.

[3]

Internal review

On 4 October 2022, FQR's solicitors wrote to the respondent and requested an internal review of the decision dated 6 July 2022 on the following grounds: (1) The original assessor erred in finding that the applicant's psychological injury did not amount to grievous bodily harm; (2) The original assessor erred in failing to provide sufficient reasons as to why the applicant's injury did not amount to grievous bodily harm; and (3) The original assessor erred in failing to apply the beneficial intent of the Victims Rights and Support Act 2013 (NSW) (the Act).
FQR's solicitors lodged written submissions in support of the application for internal review and relied upon a Certificate of Injury dated 29 April 2022 and a copy of the Provisional ADVO dated 18 September 2022.
In her Certificate of Injury dated 29 April 2022, Ms A Volona, a Mental Health Social Worker, that FQR attended her practice on 25 March 2022 and gave a history of injury that occurred on 3 September 2020 that was caused by domestic violence by the alleged offender. She noted that the alleged offender "kicked her door, threatened to stab her… she had experienced 2-3 years of violence from him (punched, choked, beaten her, would not let her leave the house, verbally put her down)… before this incident was reported to police. FQR complained of severe anxiety, hyper-vigilance, flashbacks, sleeping problems, nightmares, memory and concentration problems, emotional numbness, self-doubt and low esteem, agoraphobia and avoidance behaviour".
Ms Volona provided a provisional diagnosis of "post traumatic stress", which was consistent with the incident as described to her. She also noted that FQR had been involved in a prior "domestic violence" relationship. She expressed the view that FQR required further treatment from allied health professionals (mental social work & counselling) and that a further appointment had been arranged on 20 May 2022.
Based upon Ms Volona's Certificate, FQR's solicitors submitted that the respondent should find that FQR suffered grievous bodily harm "especially when considered together with the nature and duration of the resulting symptoms". In particular, they referred to this Tribunal's decision in EGM v Commissioner of Victims Rights [2020] NCWCATAD 181, in which the Tribunal found that the applicant had suffered grievous bodily harm, on the basis that FQR's symptoms "are relevantly similar to those in EGM". They noted that in EGM, a counselling report was issued almost one and a half years after the act of violence and that as Ms Volona's certificate was issued about the same length of time after the act of violence, it is evidence that FQR's psychological injury is ongoing.
FQR's solicitors also argued that as the purpose of the Act is beneficial, it ought to be interpreted liberally and beneficially and in favour of the grant of benefits to an applicant. They asserted that the original assessor erred by not giving enough weight to the beneficial intent of the Act.
FQR's solicitors concluded that FQR had suffered grievous bodily harm as a result of the act of violence and that a category C recognition payment should be approved in the sum of $5,000.
On 15 November 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FQR 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.
The Senior Assessor referred to the Court records regarding he issue of the ADVO and Ms Volona's certificate of injury and found that this did not enable a finding to be made regarding the severity of FQR's psychological condition, or establish the effect to which the act of violence caused it. There was no description as to how the disorder developed as a result of the act of violence, the extent to which any symptoms impacted her day to day functioning or what treatment she received with respect to her condition. Accordingly, the Senior Assessor stated that they were unable to find that FQR suffered grievous bodily harm as a result of the psychological injury suffered as a result of the act of violence.
I note that a copy of the Review Decision was emailed to FQR's solicitors under cover of a letter from the respondent dated 14 November 2022. I am therefore satisfied that this decision was served in the manner required by the Act.

[8]

Respondent's submissions

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 14 November 2022.
The respondent referred to Ms Volona's certificate of injury and submitted that there is no medical evidence to indicate that the applicant has been formally diagnosed with a mental health disorder. There is also no evidence that she has been referred for treatment by a psychologist or psychiatrist or that she has been prescribed any medication by a medical practitioner and the available evidence does not support a finding of grievous bodily harm.
In response to the applicant's submissions regarding previous decisions of this Tribunal, the respondent argued to the effect that in each of those matters the Tribunal was assisted on the evidence that the applicant required ongoing treatment by medical practitioners and/or that the act of violence had an extreme impact on the applicant and/or that symptoms continued for an extensive period of time after the act of violence. However, in this matter there is no available evidence that supports any such findings.
In relation to the FQR'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".
Neither party sought to make oral submissions during the hearing.

[10]

Recognition payment

It is necessary to determine the relevant category of recognition payment that FQR is eligible to receive as a result of her injuries.
The respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that FQD was the victim of an assault not resulting in grievous bodily harm.
I note that at first instance, the Assessor effectively determined that a category D recognition payment was appropriate because FQR's medical evidence was considered inadequate for a finding that she had suffered grievous bodily harm.
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.
I have considered all of the medical evidence before me, which comprises a certificate of injury that contains a provisional diagnosis of post-traumatic stress, which was consistent with an incident described on 3 September 2020.
There is no evidence in the form of a statement from FQR 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 Ms Volona after 29 April 2022.
Further, during the hearing, Ms Skuse advised the Tribunal that the applicant was not attending the hearing because she was at work and although the Tribunal stated that it would be assisted by her participation in the hearing, and attempted to contact her by telephone, the applicant did not answer the call. Accordingly, there is evidence before me that the applicant has some current work capacity, which is a relevant factor in considering the ongoing impact on a person's day to day functioning.
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.
Based upon the available evidence, I am not satisfied that the act of violence resulted in a "really serious" psychological injury and that FQR suffered grievous bodily harm.
It follows that I am satisfied that FQR is eligible for a category D recognition payment in the sum of $1,500.

FQR v Commissioner of Victims Rights - [2023] NSWCATAD 66 - NSWCATAD 2023 case summary — Zoe

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (5)

Cases Cited (6)

Cited By (1)