FRL v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2023-05-12

Background

These proceedings relate to three (3) applications for victims support in the form of counselling, financial assistance for immediate needs and/or economic loss and a recognition payment lodged by the agent of the applicant known by the pseudonym FRL initially before the Commissioner of Victims' Rights ("the Respondent").
The applications were lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) in September 2022 (the actual date of lodgement are not indicated in the documents before me). FRL alleged that he was the primary victim of an act of violence in the nature of an assault that occurred at Leeton, in New South Wales, on 1 July 2022 and that he suffered "physical injuries" (including dental injuries)" and "psychological injury" as a result.
I note that in relation to the claim for financial assistance, FRL claimed medical treatment expenses totalling $720, dental treatment expenses totalling $1,315, loss of actual earnings in the sum of $3,000, $210 for loss of personal effects, $2,324 for security cameras and out-of-pocket expenses (travel expenses) totalling $450.
I further note that the following provision was contained in the Application for Victims Support: Monies received from other sources You must tell us if you have received money from any other source for the injury you have suffered, or if you receive money in the future. Examples of how you may receive money from another source include:

Civil court action against either the person who injured you or from the owners of the location (e.g. licensed club or hotel) where the injury occurred
Legal action against a school or religious organisation who did not exercise adequate duty of care
Any payment from an individual or organisation arising from the interest.

In response to this question, FRL stated that he had not received monies and did not intend to make a claim workers compensation benefits, a "civil or other court" action, insurance payment or other source.

Decision at first instance

On 27 September 2022, an Assessor (Client Claims) issued a Notice of Decision in relation to all three applications for victims support and determined that FRL was not eligible for victims support because he had been awarded compensation by a Court in relation to the act of violence. The applications were therefore dismissed.
I note that a copy of the decision was emailed to FRL under cover of a letter from the respondent dated 27 September 2022. I am therefore satisfied that the decision was served as required by the Act.

Internal review

On 29 July 2022, FRL applied for an internal review of the respondent's decision. He stated that the offenders only paid $159 each ($477 in total), which for emergency dental treatment costs and that he was still out of pocket for all expenses that were yet to be incurred and he also said that he was advised from the start by NSW Police to apply to Victims Services. He also stated: As mentioned, the offenders only paid $159 each for the First emergency Dental work. I am out of pocket for that expense and on the day had to come up with that money as I was in extreme pain, yet the offenders are allowed to pay it off. I still have to have Dental work done. So I am expected to pay for something that was caused by the offenders and I am reminded of this every day? I have lost earnings because of this and all the appointments. I had to attend an emergency MRI scan I had a bleed to the brain. Am I supposed to pay for that scan that was caused by the offenders? I am out of pocket for travel, clothing, scans, appointments, medications medical and dental appointments still to attend. My life has been turned upside down. I have never had to encounter anything like this and live with this every day and I am expected to pay for everything these offenders have done to me. How is this fair, it certainly is not fair. I was not informed by NSW police to submit all costings incurred. They had informed me to go through Victims Services. I have spent many weeks getting all information and submitting everything that I could. I have spoken to a solicitor and they have said that if I was to through civil it could cost me thousands of dollars and probably still get nowhere. Why should I pay thousands of dollars for a crime that was committed and I was not at fault. I was repeatedly pushed in this attack and hit in the head full force by big guys and a girl at least 15 times as reported by police with the footage they viewed. It was an unprovoked attack and I was hit from behind without warning. That is a sickening attack and I have to live with those flashbacks for however long. If you require further evidence, I can submit that, but I thought that's what Victims Services do is gather the information from police. I also have proof of the compensation they were to pay if you need that also. I have been living in fear of these offenders and one of the offenders a few weeks after my attack had another AVO taken out as they assaulted my cousin. I just want what is right for my circumstances and to be recognised for what happened to me. I want my old self back to a happy me. Not an anxious, feared, depressed person who has to keep fighting for the correct rights and be out of pocket by all of this…
On 15 November 2022, a Senior Assessor issued a Notice of Review Decision, which determined that in respect of one of the three applications for victims support, FRL was the primary victim of an act of violence that was perpetrated by multiple offenders. The other two applications were dismissed on the basis that they relate to the same act of violence. However, it was also determined that by operation of s 25(1) of the Act, FRL was ineligible for victims support. Therefore, the application was dismissed. The Senior Assessor stated, relevantly: 25. While I am satisfied that (FRL) is the primary victim of an act of violence as established on application (number provided), the court records confirm that each of the three named offenders were ordered by the court to pay (FRL) compensation for assaulting him. 26. I acknowledge (FRL)'s submissions that he has incurred costs associated with the act of violence which exceed what was awarded in compensation by the court. Regrettably, this is not a factor that can be taken into consideration when determining eligibility for support under section 25(1) of the Act. I have no discretion to approve victims support where a court has ordered compensation be paid. 27. As the court records indicate compensation was awarded to (FRL), section 25(1) of the Act applies to make him ineligible for victims support…
I note that a copy of the review decision was emailed to FRL under cover of a letter from the respondent dated 15 November 2022. I am therefore satisfied that a copy of the decision was properly served.

Application for Administrative Review

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.
On 17 January 2023, the Tribunal received the current application for administrative review, which sought a review of the Senior Assessor's decision dated 15 November 2022 on the following grounds: I am seeking a review as I am considerably out of pocket for all of the expenses occurred (sic) due to the sickening attack on me by 3 offenders. This has caused me absolute stress and anxiety that I never in a lifetime expected. I was awarded a small amount of $477 all of my MRI scans and medical bills and loss of wages and loss of belongings and dental work still to come far exceed what I was compensated. I don't understand why I have to pay for all the expenses that was caused by 3 offenders. How is that acceptable. Please review my application carefully.
The matter came before Senior Member McAteer for directions on 3 February 2023, at which FRL's mother appeared as his agent and Ms K Douch appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He listed the matter for further directions on 3 March 2023 and noted that the respondent would seek instructions about the applicability of the operation of s 25(1) of the Act to the facts of this matter, noting that the small Local Court orders seem to be by way of reimbursement for expenses (rather than compensation) and this is a recognition payment claim. If necessary the parties will enter into informal settlement discussions in the interim.
The matter came before me for further directions on 3 March 2023. FRL's mother again appeared as his agent and Ms Douch appeared for the respondent. Ms Douch stated that she was instructed that the respondent maintained that FRL was ineligible for victims support by operation of s 25(1) of the Act. I noted that this was the primary issue in dispute. I ordered the respondent to file and serve submissions by 28 April 2023 and I ordered FRL to file and serve any submissions in reply by 5 May 2023. I listed the matter for hearing on 12 May 2023 and granted the parties leave to appear by telephone.

The Hearing

At the hearing on 12 May 2023, the respondent relied upon written submissions that were filed on 28 April 2023. In relation to the primary issue, the respondent relied upon three documents headed "Notice to Payee", which were addressed to FRL by the Local Court of New South Wales (Leeton) on 13 September 2022. This informed him that each offender had been ordered to pay him $159 by way of "compensation".
The respondent argued, relevantly: 14. It is evident from a review of both the orders and the Notice to Payee that the amount to be paid was "compensation". As noted above, a Court may award a victim compensation under Part 6 of the Act up to $50,000 for injury (ss 94 and 95 of the Act) and up to the maximum amount that a court is empowered to award in civil proceedings for a loss (ss 97 and 98 of the Act). Such awards may exceed the amount available pursuant to the scheme. 15. While the compensation awarded in this matter was not in respect of all expenses incurred, such does not affect the express terms of section 25(1) of the Act or the applicant's ineligibility for victims support. 16. While this outcome may appear harsh, any amendment to the express terms of section 25(1) is a matter for statutory review. As noted in Victims Compensation Fund Corporation v Brown [2003] HCA 54 at [29]: Even if it were considered harsh or anomalous, it could not be said that this would be fatal to the construction urged by the appellant if the text or otherwise required that construction. The introduction of caps and limitations upon recovery, usually justified by reference to supposed affordability, has been a relatively common feature of Australian compensation legislation in recent times.
On that basis, the respondent argued that the Senior Assessor's decision should be affirmed.
During the hearing, the Tribunal noted that there was no evidence that FRL ever applied to a court for compensation. Considerable time was then spent seeking to ascertain why the respondent maintained the view that the award of $477 for emergency dental expenses by the Local Court at Leeton during the Police prosecution of the offenders, constituted compensation that was paid by a Court under Part 4 of the Act.
Ms Douch replied to the effect that these were her instructions.

Act of violence

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.
"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.
Section 20(1) of the Act defines "primary victim" as follows: 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…
The onus is on FRL to prove the allegation that he was the primary victim of an act of violence in the nature of an assault that was perpetrated by the three offenders on the balance of probabilities and that he suffered injury as a result.
Based on the evidence before me, I am satisfied that FRL was a primary victim of an act of violence that occurred on 2 July 2022.
I am also satisfied that the acts of violence are a series of related acts as defined in s 19(4)(b)(1i) of the Act, as they were they were committed against the same person, and they were they were committed at approximately the same time.

Is FRL ineligible for victims support?

Section 25 of the Act provides, relevantly: Persons not eligible for support (1) Claimants for court compensation awards A person is not eligible to receive victims support in respect of an act of violence or act of modern slavery if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 6 or if the person's application for such compensation is pending…
Part 6 of the Act provides, relevantly: Compensation awarded by court Division 1 Preliminary 91 Object of Part The object of this Part is to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime. 92 Definitions In this Part - aggrieved person - (a) in relation to an injury - has the meaning it has in section 93, and (b) in relation to loss - has the meaning it has in section 96. direction for compensation - (a) for an injury - means a direction for compensation under section 94, and (b) for loss - means a direction for compensation under section 97. Division 2 Compensation for injury 93 Definition In this Division - aggrieved person, in relation to an offence - (a) other than an offence in respect of the death of a person - means a person who has sustained injury through or by reason of - (i) an offence for which the offender has been convicted, or (ii) an offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence, or (b) in respect of the death of a person - means a member of the immediate family of the person. 94 Directions for compensation for injury (1) A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a sum not exceeding $50,000 be paid out of the property of the offender to any - (a) aggrieved person, or (b) aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any injury sustained through, or by reason of, the offence or any other offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence. (2) A direction for compensation may be given by a court on its own initiative or on application made to it by or on behalf of an aggrieved person. 95 Restrictions on court's power to give directions for compensation for injury (1) A direction for compensation under this Division must not be given in respect of the conviction of a person for an offence if the aggregate of the sum specified in the direction and of all sums specified in a direction for compensation previously given under this Division - (a) on the conviction of any other person for that offence, or (b) on the conviction of that or any other person for a related offence, exceeds $50,000. (2) A direction for compensation under this Division for which financial support is payable under Part 4 must not be given if an approval for the giving of such financial support in respect of the injury has been made under that Part to or for the benefit of the aggrieved person. (3) For the purposes of this section, an offence is related to another offence if - (a) both of the offences were committed against the same person, and (b) in the opinion of the court, both of the offences were committed at approximately the same time or were, for any other reason, related to each other. However, an offence is not related to any earlier offence in respect of which a direction for compensation has been given if it is committed after the direction was given… Division 3 Compensation for loss 96 Definitions In this Division - aggrieved person, in relation to an offence, means a person who has sustained loss through or by reason of - (a) an offence for which the offender has been convicted, or (b) a further offence that a court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. court means the Supreme Court, the Court of Criminal Appeal, the District Court or the Local Court. 97 Directions for compensation for loss (1) A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a specified sum be paid out of the property of the offender to any - (a) aggrieved person, or (b) aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. (2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person. 98 Restrictions on court's power to give directions for compensation for loss A court may not give a direction for compensation - (a) for economic loss for which financial support is payable under this Act or compensation is payable under Division 2, or (b) for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt. Division 4 General 99 Factors to be taken into consideration In determining whether or not to give a direction for compensation and in determining the sum to be paid under such a direction, the court must have regard to the following - (a) any behaviour (including past criminal activity), attitude or disposition of the aggrieved person which directly or indirectly contributed to the injury or loss sustained by the aggrieved person, (b) any amount which has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, (c) such other matters as it considers relevant. 100 Payment of sum directed Subject to section 9 of the Criminal Appeal Act 1912 and to the provisions of the Criminal Procedure Act 1986, any sum directed to be paid by an offender to an aggrieved person, under a direction for compensation, must be paid immediately, or within such period (if any) as is specified in the direction, to the registrar of the court for payment to the aggrieved person… 102 Effect of directions for compensation on subsequent civil proceedings (1) This section applies to civil proceedings commenced or maintained in respect of an injury or loss sustained by a person in respect of whom a direction for compensation has been given on the basis of the same facts as those on which the civil proceedings are based. (2) A direction for compensation does not affect a person's right to commence or maintain civil proceedings, and damages in the civil proceedings must be assessed without regard to the direction. (3) The judgment of the court in which the civil proceedings are determined - (a) must not be entered in respect of so much of the amount of damages assessed by the court as is equivalent to the sum of the amounts that have been paid under the direction for compensation, and (b) must not be enforced, except with the leave of the court, in respect of so much of the amount of damages assessed by the court as is equivalent to the sum of the amounts that have not been paid under the direction for compensation. (4) This section does not limit the operation of section 55 or 74.
The stated object of Part 6 of the Act is to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of crime.
Based upon the definition in s 93 of the Act, I am satisfied that FRL could properly be regarded as an "aggrieved person".
However, it appears that the respondent is asserting that each Notice to Payee represents either a direction of compensation for injury (as defined in s 93 of the Act) or a direction for compensation for loss (as defined in s 97 of the Act).
I note that the Notice to Payee documents do not expressly indicate that the amounts totalling $477 were awarded for compensation under Division 6 of the Act. The respondent did not address this in submissions or lead any evidence or cite any authorities that support the submission.
However, if even I was satisfied that the compensation described in each Notice to Payee was awarded to FRL under Division 6 of the Act, by operation of s 102(2) of the Act, he would not be precluded from bringing civil proceedings under Division 6 of the Act by reason of those awards.
Rather, s 102(3) would operate to prevent him from "double-dipping", which means that if he were to commence civil proceedings in a court for compensation with respect to injury and/or loss suffered as a result of the act of violence, he could not be awarded compensation for monies awarded under Division 6 of the Act in those proceedings.
I also refer to s 44 of the Act, which provides, relevantly: Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment (4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to - (a) any amount that has been paid to the person or that the person is entitled to be paid - (i) by way of damages awarded in civil proceedings, or (ii) under any other Act or law (including workers compensation), or (iii) under any insurance or other agreement or arrangement, and (b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person, in respect of the act of violence or act of modern slavery to which the application for financial support or a recognition payment relates.
Section 44 (4) of the Act is in very similar terms to s 30 of the old Act. In my view, this is significant because it clearly indicates a longstanding intention of Parliament to prevent double dipping.
In Saleh v Victims Compensation Fund Corporation [2012] NSWDC 217 (Saleh), Judge Knox SC considered the victim's entitlement to compensation under the old Act in circumstances where he was entitled to claim benefits under the Workers Compensation Act 1987 (NSW) (the WCA).
The Victims Compensation Tribunal determined that s 30(3)(a)(ii) of the old Act precluded the victim from receiving compensation under that Act and that an award for compensation should not be made in his favour.
His Honour noted that the victim had suffered both physical injuries and a psychological injury and that the WCA then did not provide for the recovery of lump sum compensation for permanent psychological impairment. His Honour stated, relevantly: 38. The second reading speech of the Victims Compensation Bill by the then Attorney-General, makes it clear that victims compensation should only be paid to the extent not recoverable under workers compensation legislation, in other words, to prevent what is commonly referred to as 'double-dipping'.
His Honour also referred to the decision of Spigelman CJ in Victims Compensation Fund v Brown [2002] NSWCA 155 at [67] (Brown), that the old Act made it clear that a liberal approach should be adopted in the interpretation of this legislation, which has a remedial and beneficial objective. He also stated, relevantly: 64. Here the nature of the legislation, its effect and purpose - as well as the specific requirement that the assessor have regard to the subject of workers compensation - mandates that such a payment, the nature of it and what it covers, needs to be considered. If the effect of the legislation was to be as submitted on behalf of the Tribunal, it would have been easy for the Legislature to have simply said that such a payment assessed under the workers compensation scheme meant that no victims compensation was to be paid. The wording used must mean that the basis for the workers compensation payment needs to be regarded to determine whether, and if, the double-dipping prohibition is applicable given the other award…
His Honour held that the old Act clearly required the decision maker to make an assessment and, in the process, to "have regard to" other compensation payable or paid. The decision maker must consider the nature of the award, the basis of that award and how, for example, that other award is either different from, or identical to, the basis of the claim under the victims compensation regime. He stated: 69. What is clear from the second reading speech accompanying the introduction of the legislation is that the assessors and the VCT are to ensure that there is no double-dipping. In other words, to ensure that an award for victims compensation is not made where the recipient has already received compensation for the same injury. 70. I see no basis in the Act for a restrictive interpretation which would prevent a decision maker from making an award simply by virtue of the fact that another award had been made. Indeed, in my view, such an approach would run contrary to the established approach to the interpretation of beneficial legislation.
While Saleh specifically referred to the WCA, I consider that it equally applies to the circumstances of this matter, particularly noting that the "compensation" awarded by the Local Court of NSW would preclude FRL from recovering those monies by way of financial assistance for immediate needs. However, the "compensation" could not be properly classed as either financial assistance for economic loss or a recognition payment..
I am not satisfied that it was the intention of Parliament to make FRL ineligible for all types of victims support under the Act merely because he was awarded "compensation" of $477 for dental treatment expenses during the police prosecution of the offenders. If that was Parliament's intention, s 44(4) of the Act would be otiose.
For these reasons, I am satisfied that the respondent's decision dated 15 November 2022 is infected by error and should be set aside and that by way of substitution, to determine that FLR is eligible for victims support.
However, as the respondent has not yet determined the claims for victims assistance for immediate needs and/or economic loss and a recognition payment, I consider that it is appropriate for the Tribunal to remit the matter to the respondent for determination of those claims according to law.
I have also considered whether it is appropriate to make the remittal order under s 63(1)(d) or s 65(1) of the Act. The latter provides: Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
In my view, if a matter is remitted pursuant to s 63(1) of the Act, the Tribunal is functus from the date of the order, while a remittal order under s 65(1) enables the matter to come back before the Tribunal in the event that there is an ongoing dispute between the parties.
I am cognisant of the fact that this Tribunal's administrative review power is restricted to a decision in relation to a recognition payment. However, I consider it is appropriate to make an order under s 65(1) of the Act in order to give effect to the object set out in 3(d) of the NCAT Act, namely which is "enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible."

Orders

I make the following orders: 1. The respondent's decision dated 15 November 2022 is set aside and by way of substitution I determine that: 1. FLR is eligible for victims support; and 2. FLR is the primary victim of an act of violence, which is a series of related acts of violence. 1. I remit the matter to the respondent for reconsideration pursuant to s 65(1) of the Administrative Decisions Review Act 1997 (NSW). 2. The matter is to be listed for directions on a date to be fixed by the Registrar, which is not less than three months from the date of this decision.

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 June 2023

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (3)

Cited By (1)