GDM v Commissioner of Victims Rights

Proceedings before the Tribunal

1. GDM's application for administrative review was lodged beyond the 28 day period provided for administrative review under the Civil and Administrative Tribunal Rules 2014, being 28 days. The Clause relevantly provides: 24 Administrative review applications (1) An administrative review application must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the application. (2) An administrative review application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made - (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is - (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or … (Emphasis added.)
2. The Victims Act does not specify a time for a person seeking administrative review of decisions concerning a recognition payment to apply to the Tribunal. In those instances, the 28 day period applies.
3. As GDM was out of time by approximately eight days, and GDM cited the Christmas New Year Holiday period as causing delays in attending to administrative matters, and the Commissioner did not oppose an extension, the Tribunal extended time on 2 February 2024 pursuant to s 41 of the NCAT Act to allow the review to proceed before the Tribunal.

Summary of the respective positions in first instance

1. In her grounds GDM outlined the following matters: 1. (GDM) was unaware of Court hearing / outcome and would not have agreed to $300 compensation had they been involved. 2. $300 was for property damage - property worth over $800.00 3. victims compensation needed for lost wages. 4. Hardship and inherently unfair if not allowed victims comp.
2. GDM was not initially legally represented before the Tribunal. However by time of the first directions hearing the Tribunal made an order under s 45(1)(b)(i) of the NCAT Act appointing an agent for GDM. By the time that the proceedings were heard on 1 March 2024 Kingsford Legal Centre had carriage of GDM's matter and appeared at the hearing and provided oral and written submissions. However, in her earlier material filed 25 January 2024 GDM made written submissions consistent with her grounds outlined at [12] (above).

Jurisdiction

1. The Tribunal has defined jurisdiction under the Victims Rights and Support Act 2013. Section 51 makes provision for administrative review by the Tribunal of certain applications concerning victims support.
2. Under s 51 the jurisdiction is expressed in then following manner: 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
3. As noted from the section above, if an application under s 51 of the Victims Act was being considered, it is an administrative review. In such a case the Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law.

The hearing

1. GDM's case was based on her position that she had no knowledge or control over the Court's decision to make a compensation order in the sum of $300.00 at the time she applied to the Commissioner of Victims Rights for Victims Support. In addition GDM's case was that the payment was for property damage not for pain and suffering or 'recognition' of her experience and trauma as a victim of violent crime consistent with the making of a recognition payment. During the hearing evidence was adduced from the documents submitted by GDM that the payment ordered by the Court was in reality to pay for a fixture owned by the owner who as another person (Damage to screen door when Police entered premises).
2. GDM also submitted that s 25(1) could not be relied upon to disentitle her to Victims Support as she has not ever been a claimant for a court compensation award as set out in s 25(1) of the Victims Act in respect of the actions of the perpetrator.
3. The Commissioner's position in the Notices of Determination was quite straightforward in that because of the wording of s 25(1) of the Victims Act, GDM was ineligible for any victims support because of the effect of the Local Court ordering the $300.00 payment on her behalf.
4. This position was maintained in oral and written submissions at hearing. The Commissioner relied upon the express words appearing in s 25(1) being that 'a person is not eligible to receive victims support in respect of an act of violence 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'.
5. They relied on the absence of any distinction between injury and loss from damage in the express words of s 25(1). In summary the Commissioner submitted that that when read in an ordinary sense the words in the section applied to make an applicant ineligible for victims support if there is an award of compensation under Part 6 in respect of the act of violence.
6. As noted above both sides were legally represented at hearing. Prior to the hearing the Tribunal had requested that the Commissioner provide brief submissions on whether s 64 of the ADR Act was applicable to the approach that the Tribunal should take in the administrative review.
7. Section 64 of the ADR Act provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.
8. The Commissioner submitted that there was no relevant Government policy as defined in s 64(5) of the ADR Act that applied to this matter and that the issue turned entirely on statutory interpretation.
9. No oral evidence was adduced at hearing but the s 58 (ADR Act) documents were before the Tribunal relevantly comprising the decision under review, GDM's initial application to the Commissioner and Court documents (including Justicelink records) which were obtained by the Commissioner of their own motion during the assessment process. GDM provided other documents especially relating to the advice of the Informant Police Officer that the payment was (a) not sought by them and (b) in practice it was made to pay for damage to the screen door.
10. It is clear form those records that GDM was applying for a recognition payment (as per page 1 of the s 58 documents). At page 3 of the s 58's the incident which the claim is based on is described as: A male friend violently assaulted me in my home in an unprovoked attack, leading to Hospitalisation and some significant injuries for myself. I was unable to work from 06/08/2023 -08/09/2023. Physical and psychological / emotional injuries were nominated by GDM at item 20 of the application form.
11. At item 27 on the application form GDM names the perpetrator and indicates knowledge that they plead guilty. GDM states in respect of the proceedings and result: 'Unsure of Court dates as I was never made aware nor the officer in charge'.
12. At Part 7 of the application form which deals with 'Financial assistance for immediate needs and / or financial assistance for economic loss' at Item 28 GDM nominates under 'costs' under the non specific item of: other 'Damaged Wardrobe during assault'. A value of $749.00 is entered for the wardrobe.
13. At Part 9 item 31 of the application form GDM is asked to indicate 'Have you received any money or do you plan to make a claim using any of the following options: Workers Compensation, Civil or other court claim, Insurance payment or any other source including from an individual or organisation?' GDM answered 'No' to each of the three options.
14. It is important to observe that the information provided by GDM to the Commissioner as set out at [26] to [29] above is declared as true and correct by her and given prior to any issue under s 25(1) of the Victims Act being raised by the Commissioner's delegates.
15. In the s 58 documents at page 8 is reproduced the 'internal review request form'. At Part 2 of that form completed following the first rejection by the Assessor GDM provides the following evidence in answer to Question 4: 4. Your application must include the reasons why you are seeking a review. Please explain why you are seeking a review. You can attach additional pages if required. My application for victims services was recently declined due to the reason that I had received compensation through the courts. Upon speaking to the courts, and the officer in charge of this matter, I have been made aware that (perpetrator) was ordered to pay $300 in compensation relating to the offence. However this amount was to be paid to the secondary victim (MB) for the damage caused to her front door by the perpetrator (name) after he had fled the scene of the assault. In saying that I have not received any compensation for the damage to my property, nor my loss of wages for the time I had to miss work due to the nature of my injuries. I would like to have the decision reviewed and will chase up further evidence to support my claim if required..

GDM's submissions

1. GDM submitted that they have not applied for a Court compensation award for the act of violence she had experienced. In addition GDM relied on the absence of any evidence before the Tribunal that NSW Police sought compensation on her behalf. In this regard it was submitted that GDM does not fall within the parameters of s 25(1) as she was not a claimant for any court compensation award.
2. GDM also submitted that if the Tribunal found that she was awarded compensation under Part 6 of the Victims Act, because of the Court record of the $300:00 compensation, then she is not precluded under s 102(2) of the Victims Act from bringing civil proceedings. However if she did pursue that course, GDM would not recover any money from a civil suit because of the operation of s 102(3) of the Victims Act. This would create an illogical and unjust result.
3. Section 102 of the Victims Act provides: 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.
4. GDM also submitted that the Victims Act should not be examined in isolation, but rather as a whole, specifically taking into account s 44(4) of that Act. It was submitted that s 25(1) and s 44(4) operated in tandem. The section relevantly provides: 44 Reasons for not approving the giving of victims support or for reducing (2) (Repealed) (3) (3A) (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.
5. Reference was made to the case of FRG v Commissioner of Victims Rights [2023] NSWCATAD 195 (FRG) where the Tribunal examined s 44(4). At [23]-[24] of FRG the Tribunal observed: 23. Section 44 (4) provides that the decision maker must have regard to other monies or benefits received by the claimant from another source. It is apparent from the provision that it is designed to prevent multiple claims or what is often referred to as 'double dipping'. It is also designed to ensure that a claimant pursue other avenues of remedy prior to drawing on the scheme under the commonly referred to notion of 'scheme of last resort', as was referred to in the second reading speeches when the provision was explained before the Parliament. Such provisions are often raised when public money is to be applied to an individual need. 24. The provisions requires the decision maker to consider what, if any, alternate remedy for the same head of damage is available and whether that should be pursued or has been pursued by the claimant. If it has been pursued and resulted in a payment then the statutory amount to be awarded is reduced by the equivalent amount of the other payment. In many instances such a situation results in no recognition payment being forthcoming as the earlier payment is equal to or greater than the proposed recognition payment for victims support.
6. GDM submitted that applying FRG, the Tribunal should note that the amount of $300 is not equal to or greater than a recognition payment for victims support. In written submissions GDM submitted that the approach in Saleh v Victims Compensation Fund Corporation [2012] NSWDC 217 (Saleh) should be applied from the equivalent provisions in the former Act to the current Victims Act. Specific reference was made to the following passage from the decision in Saleh: 68. The legislation clearly requires the decision maker - here the VCT - to make an assessment and, in the process, to "have regard to" other compensation payable or paid. The VCT 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. 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. It was submitted that the Tribunal decision in FRL v Commissioner of Victims Rights [2023] NSWCATAD 131 (FRL) was authority for following Saleh in respect of applying the relevant consideration to the current Victims Act.
7. GDM submitted that FRL is authority for a claimant being awarded loss of wages, other economic loss and a recognition payment under the Victims Act even if they have received or are eligible to receive other compensation.

Commissioner's submissions

1. The Commissioner submitted that the object under Part 6 of the Victims Act was relevant to the Tribunal's consideration. 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.
2. The Court had made an order for the payment of $300.00 under the provisions of Part 6 which provided that the Court may make a direction for compensation for injury / loss of its own initiative (or on the application of an aggrieved person). The Commissioner submitted that Court record (Justicelink screen shots) indicated that that there was an award of compensation in relation to Sequence 1 - Destroy or damage property to cover the cost of property damage that occurred during the act of violence.
3. The Commissioner relied upon the High Court's consideration in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 in respect of the meaning of statutory provisions.
4. At 47 the High Court observed that: 47. This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
5. The Commissioner submitted that when considering the context of the Victims Act broadly, Part 6 of that Act is referred to in s 25. Other payments such as Workers Compensation damages from civil proceedings or under an insurance agreement are not referred to or captured by Part 6. Those provisions are addressed by s 44(4) which operates to 'adjust' any proposed level of victims support to take into account those types of payments and reduce (if appropriate) any support by the amount of those payments. This gives effect to the prevention of 'double dipping'.
6. Whilst the Commissioner noted in submission that the Tribunal had previously found that the operation of s 44(4) has the intention of preventing double dipping, such an interpretation also provides guidance to the intention of purpose of s 25(1) of the Victims Act. (FLR). However the Commissioner submitted that the operation and intention of s 44 cannot displace the clear meaning of s 25(1).
7. The Commissioner submitted quoting Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [71] that .. in construing a statutory provision a court must strive to give meaning to every word so that no clause, sentence or word shall prove to be superfluous, void or insignificant, if by any other construction they may all be made to be useful and pertinent.
8. In this context the Commissioner submitted that the reference to the words of s 25(1) of the Victims Act cannot be read to make GDM eligible for any victims support.

Consideration

1. I note that GDM submitted that the beneficial and remedial interpretation of s 25(1) requires the provision to be read in its entirety as applying to 'claimants for court compensation awards'. GDM then submitted that she had not been a claimant for a Court compensation award arising from the act of violence but has only claimed or applied to Victims Services seeking victims support. In addition to not being a direct claimant, GDM submitted that Police had not indirectly (or on her behalf) made a claim for compensation under Part 6 of the Victims Act, as there was an absence of any evidence before the Tribunal to indicate that.
2. I note that the reference to 'Claimants for court compensation awards' arises as a heading to s 25(1). The heading appears in bold in the published version of the Victims Act issued by Parliamentary Counsel's Office on the NSW Legislation website.
3. The Interpretation Act 1987 provides at s 35 as to how headings should be construed in the context of legislation. 35 Headings etc (1) Headings to provisions of an Act or instrument, being headings to - (a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or (b) Schedules to the Act or instrument, shall be taken to be part of the Act or instrument. (2) Except as provided by subsections (3) and (4) - (a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), (b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or (c) a marginal note, footnote or endnote in an Act or instrument, shall be taken not to be part of the Act or instrument. (3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being the date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument. (4) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if - (a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the firstmentioned provision) or by means of a symbol, in some other part of the Act or instrument, or (b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument. (4A) The number of a section, subsection, clause or subclause of an Act or instrument is taken to be part of the Act or instrument even though it appears in a heading to the section, subsection, clause or subclause. (5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates. (Emphasis added.)
4. It would appear from the provisions of s 35(2) of the Interpretation Act 1987 that the words 'claimants for court compensation awards' do not form part of the Victims Act at s 25(1).
5. In Statutory Interpretation in Australia (8th Edition) D C Pearce and R S Geddes the following is referred to at 1.37: 1.37 Headings in sections Each section of an Act is accompanied by a brief note that is intended to indicate its subject matter. The Interpretation Acts in some jurisdictions provide that marginal notes and headings to sections are not part of an Act. In other jurisdictions it is provided that some headings to sections are part of an Act. 4.56 .. However, there is a line of authority that, while not elevating notes not forming part of the Act to the level of the text of the sections, nonetheless contemplates the possibility of reference where the meaning of a section is in doubt. …
6. The commentary goes on to describe how notes may be used to interpret the meaning of the section, but the heading of a section is not referred to in the line of cases referred to including Ombudsman v Moroney [1983] 1 NSWLR 317 which deals with the issue only in respect of notes and to a lesser extent margin notes.
7. On a preliminary analysis the above observations would indicate that the heading to s 25 (1) is not part of the Victims Act, and as a result the words of the heading cannot be relied upon to illustrate that the ineligibility only applies to claimants for court compensation awards.
8. I note that the Interpretation Act 1987 provides that when considering the meaning and purpose of a function under an Act, (by way of interpretation) regard should be had to the objects and purpose of that Act. Section 33 provides: Interpretation Act 1987 No 15 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
9. It is clear from the objects of the Victims Act that the objects of Part 4 is to provide a scheme to support victims of violent crime: 17 Object of Part The object of this Part is to establish a scheme for the provision of support for victims of acts of violence and acts of modern slavery.
10. I also note that the object of Part 6 of the Victims Act is to provide an alternate method of support to the victims support scheme whereby convicted offenders pay compensation to their victims. Section 91 provides: 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.
11. In my view it is clear that the purpose of s 25(1) is to prevent the concept of 'double dipping' which was referred to in the second reading speeches of both the former Victims Support and Rehabilitation Act 1996 (repealed) and the current Victims Act.
12. When looking at the overall purpose and objects of the Victims Act (and as enabling legislation), it is beneficial legislation to support and recognise victims of violent crime. The scheme that underpins the current legalisation and its predecessors has been considered by the High Court as beneficial legislation. (Victims Compensation Fund Corporation v Brown [2003] HCA 54).(Brown)
13. In this regard, when considering the application, the Tribunal must have regard to that beneficial aspect (within limits) when applying the provisions of the enabling legislation. The objects of Part 4 of the Victims Act which deals with the Victims Support Scheme are set out at [55] above.
14. In the case of FRL, Senior Member Riordan applied the reasoning of the District Court in Saleh and the High Court in Brown to provide that s 25(1) did not entirely disentitle a claimant where an order had been made under Part 6 of the Victims Act by the Local Court.
15. At [39] and [41]-[43] of FRL the Tribunal observed: 39. 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... 41. 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.. 42. 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. 43. 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.
16. Throughout the history of the Victims Support schemes there has been a recurrent theme both from the Parliament and the Courts that as the payments are predominantly funded through consolidated revenue, and as a result they enliven the expenditure of public monies, such schemes are referred to as 'tribunals' (as in the past VCT) or schemes of 'last resort'. The public interest purpose of those intentions being that if a private entity or an individual can support, compensate, and where required rehabilitate a victim of violent crime, such support should continue to be privately funded whereby public monies are retained to support those with no other remedy. It is for these reasons that the provisions of s 48 and s 44 of the Victims Act exist, to ensure that there is no 'double dipping' of benefits.
17. If there is a 'double dipping' in such circumstances then the Crown monies are reimbursed to the extent that there is an overlap with the monies paid out of the Victims Support Fund.
18. Section 48 provides the following conditions in any victims support payment: 48 Victims support may be approved subject to conditions (1) Approval for the giving of financial support or making of a recognition payment may be given by the Commissioner subject to any of the following conditions - (a) notification to the Commissioner of such matters (including matters relating to the financial circumstances of the person to or for whose benefit the approval is given) as may be specified in the notice of determination relating to the approval, (b) assignment by the person to or for whose benefit the approval is given of that person's right to any entitlement that the person has by way of damages awarded in civil proceedings, (c) repayment of the whole or any part of the amount of the financial support or recognition payment under such circumstances as may be specified in the notice of determination relating to the approval, (d) in the case of victims support that is payable to a person for the benefit of some other person - (i) as to the payment of the money received under the approval to or for the benefit of that other person, or (ii) as to the holding of the whole or any part of that money on trust for that other person. (2) An approval of victims support is subject to the following conditions - (a) the person to or for whose benefit the approval is given (other than a family victim) must notify the Commissioner of any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving the approval, (b) the person to or for whose benefit the approval is given (other than a family victim) must repay from the amount approved any such future amounts referred to in paragraph (a) on demand by the Commissioner, (c) the person to or for whose benefit the approval is given must repay to the Commissioner the amount approved if it is subsequently ascertained that the approval was obtained by fraud or collusion, (d) the person to or for whose benefit the approval is given (if a primary victim of an act of violence or act of modern slavery) is to provide reasonable assistance to any person or body engaged in the official investigation of the act of violence or act of modern slavery. (2A) An approval of victims support is also subject to the condition that the person to or for whose benefit the approval is given must notify the Commissioner of any amount that the person has already received from other sources in connection with the act of violence to which the victims support relates. (2B) Payment under section 54 of the whole or any part of victims support may be withheld by the Commissioner if the person to or for whose benefit the approval is given fails to comply with subsection (2A).
19. Section 44 of the Victims Act at subsections (4) (5) and (6) operates to prevent an award if there is the likelihood of other private funds being paid to the victim. The sections provide: (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. (5) If the Commissioner is satisfied that the applicant may be entitled to workers compensation (or payment in the nature of workers compensation) in respect of the act of violence or act of modern slavery to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to workers compensation have been determined. (6) If the Commissioner is satisfied that the applicant may be entitled to death and disability payments under Part 9B of the Police Act 1990 in respect of the act of violence or act of modern slavery to which the application relates, the Commissioner is to postpone the determination of the application until any entitlements to those payments have been determined.
20. It is clear form these provisions that under section 48 a claimant is legally bound to repay the Fund if an amount is recovered for the same act of violence form other sources, and likewise when determining whether to make a payment from the Fund (including the amount to award) the Commissioner is required to consider under section 44 monies obtained from other sources.
21. In my view the intention of the Parliament of these provisions is clearly expressed to ensure that the current Victims Support Fund, like its predecessors, will always remain a Fund of last resort as a matter of Government Policy for public interest reasons.
22. Why then is there a provision apparently barring victims support to persons who may have an entitlement arising from action taken by a Court under Part 6 of the Victims Act? On the face of it if s 25(1) applied to the current case, as argued by the Commissioner, GDM would be barred from receiving any victims support even though she may ultimately receive nothing under Part 6 of the Victims Act.
23. I note that under the Victims Act GDM may have been eligible for either a Category D or C victims recognition payment, financial assistance for immediate needs (if any), a payment for financial assistance which might include loss of earnings and other expenses (if any). In addition, as a victim of an act of violence GDM would also be eligible for approved counselling. Part 6 of the Victims Act does not provide for payments to 'recognise' that a person is a victim of crime, nor does it provide orders and funds to pay for therapeutic treatment of a victim of violent crime, such as counselling services. Part 6 only provides for compensation for injury and compensation for loss.
24. I note the purpose of Part 6 is to provide an alternative system or scheme to the one in Part 4 for assisting victims of crime. Section 91 provides that: 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.
25. Part 6 also provides for compensation for injury whereas Part 4 of the Victims Act no longer provides such a remedy (unlike its predecessor). Division 2 of Part 6 deals with this at sections 93 to 95 of the Victims Act. Division 3 of Part 6 deals with compensation for loss at section 96 to 98 of the Victims Act.
26. The remaining provisions of Part 6 (sections 99-103) deal with similar matters as those arising under Part 4 being sections 44 and 48 of the Victims Act.
27. However I note that a recognition payment as a form of victims support is not compensation for injury, even though Categories B, C and D at s 35 refer to types of injuries or circumstances of the assault when assigning acts of violence to specific categories of recognition payments. However, when repealing the former Victims Support and Rehabilitation Act 1996 (itself a later renamed version of the Victims Compensation Act 1996, which relaced the earlier Victims Compensation Act 1987) the Parliament was quite clear to state that the Victims Act replaces remedies such as compensation with the concept of victims support which can be made up of financial assistance for immediate needs, financial assistance for expenses arising directly from the act of violence (such as medicals, loss of earnings, security measures etc.).
28. The current Victims Act therefore provides victims support not victims compensation. Recognition payments have been clearly expressed not as compensation but to recognise what has happened in a symbolic manner conducive to support and recovery.
29. The origin of Part 6 of the Victims Act arise from the former sections 437 and 554 of the Crimes Act 1900. These provisions gave the criminal Courts the power to award sums for which the convicted offender was liable, as compensation for injury to the victim. The introduction of the Criminal Injuries Compensation Act 1967 in 1968 saw a change whereby the same approach occurred, but the payment was made and underwritten by the State. It was described in the legislative digest as 'a qualified guarantee to the victim that the State would pay any compensation for injury awarded under these Crimes Act provisions' by the Criminal Court. A victim under that scheme had to apply to the Attorney General for payment following the making of the order. Prior to 1 January 1968 a victim needed to pursue the perpetrator for any payment awarded under s 437 or 554.
30. The purpose of the examination of the matters above is to outline the purpose the context and the developments of what are the current Part 6 provisions which are central to this review. It is clear from that analysis that prior to 1968 a victim needed to pursue and attempt to recover the amount from the perpetrator in order to receive any payment. From 1988 onwards if the Court made an award the claimant needed to successfully pursue the culpable debtor to recover the money, the provisions concerning State payments under the Criminal Injuries Compensation Act 1967 having been repealed after 20 years by the Victims Compensation Act 1987.
31. What can be gleaned from this? 1. It appears that prior to 1968 victims of violent crime could only recover under the Crimes Act if the trial Judge or Magistrate made an order. Whether they received any compensation was reliant on the debtor paying or the claimant successfully pursuing the debt. 2. From 1968 to 1987 if an order was made by the trial Judge or Magistrate on application the State would pay the victim the sum of compensation ordered. 3. From 1988 and effectively to the present day there have been statutory schemes under 1987, 1996 and 2013 legislation, each subsequent Act relacing the former Act. Whilst the purpose of each of these three Acts was to provide what has been referred to as a statutory scheme to assist a victim of violent crime, each of the 1987 and 1996 Acts had a provision similar to the current Part 6 in the 2013 Victims Act. 4. That provision (e.g. the current Part 6) which essentially reproduced the former Criminal Injuries Compensation and Crimes Act provisions allowing criminal Courts to have sums of compensation directed by the trial Judge or Magistrate against the perpetrator and to the benefit of the victim. 5. Each of these three Acts has also included a provision equivalent to the current s 25(1). The purpose of this provision appears to be twofold (i) to prevent double dipping in the same way that the current ss 44 and 48 are described to ensure that the Fund remains a Fund of last resort, and (ii) to ensure that the Act does not in essence 'contradict itself' by doubling up or performing different actions on a claim resulting in different outcomes. This appears to be a provision designed to ensure consistency and that if option 'B' (Part 6) in in play, then Part 4 cannot come back later as an option 'A' and create an inconsistency in adjudication. These final observations arise in the absence of any logical submission or cogent evidence to the contrary which better signifies the intention of Parliament.
32. The case of FLR as extracted at [61] above deals with circumstances whereby a claimant was awarded $477 under Part 6 of the Victims Act. The Tribunal found that the compensation awarded under Part 6 could not be considered as either financial assistance for economic loss or a recognition payment. The Tribunal found that the Part 6 payment would preclude FRL from recovering those funds by way of financial assistance for immediate needs. However, the "compensation" could not be properly classed as payment for financial loss or a recognition payment.
33. Importantly at [42] of FLR the Tribunal makes the following observation about the relationship between s 25, Part 6 and s 4 of the Victims Act: 42. 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. (Emphasis added.)
34. In my view this is a strong argument supporting the objects and purpose of the Victims Support Scheme and the Victims Act generally. If s 25(1) was to be applied strictly then it would be in conflict with a number of sections of the Victims Act, including the purpose of Part 6 as set out at s 91. In this instance if the Court was in fact utilising the provisions of Part 6 when it made the $300 order, then the purpose of that Part was not achieved by the actions of the Local Court.
35. In the absence of the 'alternate scheme' under Part 6 providing any practical remedy to GDM, it is difficult to see how any benefit arises to her, such that the legislature intended to prevent her recovering from the Scheme under Part 4. In my view the basis of the stated disentitlement is to prevent a claimant recovering 'twice' under the same Act. As the claimant GDM has not to date recovered funds under either Part 6 or Part 4 of the Victims Act, it is difficult to see how this situation arises.
36. Before concluding the consideration of the matter it is necessary to address the arguments of the Commissioner that Part 6 of the Victims Act is enlivened. This was a precondition to the disentitlement argument under s 25(1) of the Victims Act.
37. The evidence pointing to a possible engagement by the Local Court with Part 6 arises apparently from enquiries conducted by the Commissioner. As noted above prior to the first Assessor's determination GBD had no knowledge that the Court had made any such orders.
38. At pages 54-60 of the s 58 documents the Commissioner reproduces Justicelink data sets which provide information in respect of the results of the Local Court when dealing with the offences that the perpetrator was charged with. On Page 54 the Sequence 1 offence appears related to the malicious damage of GDM's wardrobe. On page 56 the Sequence 2 offence results in the AOABH to GDM. On page 58 the Sequence 3 offence appears to relate to the common assault offence against GDM. On page 60 of the s 58 documents the result of the Sequence 1 offence is that the offender is ordered to pay the following compensation: $300.00 payable to (GDM).
39. Page 44 of the s 58 documents includes a screen shot from the COPS Database listing the sentencing details for the offender. On that screen shot following the community corrections order and two year supervision sentences is listed 'COMPENSATION: $300'.
40. Whilst it is clear that the Local Court made the order and the administrative records indicate that the amount is payable to GDM (even though GDM says it was to her landlord 'MB' for the screen door), I am not entirely satisfied that the Court has exercised the provisions of Part 6 of the Victims Act. Other than the evidence set out at [84]-[85], there is no other evidence to support the Commissioner's contention, particularly that those matters arose under the provisions of Part 6 of the Victims Act. What is clear is that an order was made by the Magistrate that $300 compensation be paid for the offence listed in Sequence 1, and that order was made in addition to the other orders made in sentencing.
41. I note that the Commissioner has attached copies of pages for the Local Court Bench Book - General, Orders - Chapter 16. Whilst I agree that the material referred to in the Bench Book accords with orders made during the course of and following a hearing or guilty plea including sentencing orders, nowhere in the brief administrative records of the Court outcomes does a reference (specific or otherwise) to Part 6 of the Victims Act arise. Whilst the Commissioner submitted that the order was made under Part 6 (presumably because in their view there is no other method to give rise to such an order), I am not entirely satisfied that this is the case. The Commissioner did not obtain any information from the informant officer to explain by way of evidence the basis and circumstances of the order, even though the reference to damage to the wardrobe appears to provide some basis. It was open for the Commissioner to do this under the provisions of s 11 of the Victims Act in the same manner as they obtained the Court records.
42. I note also that the information relating to Part 6 was obtained by the Commissioner without the knowledge or consent of GDM utilising the provisions of s 11 of the Victims Act. In addition the reference at A3 of Part 12 of the Application Form of Victims Services refers to consenting to enquiries to verify GDM's information. I am not satisfied that the Local Court outcomes required verification bearing in mind GDM provided the COPS Event Number E95288154 in her application to the Commissioner at item 25 of the application form.
43. I note for completeness that the initial assessor when considering the s 39 information provided by GDM expanded that information to include 'Court Records' (paragraphs [9] and [10] of the initial decision dated 7 November 2023). This would appear to confirm that the Commissioner was making inquiries under s 11 of the Victims Act beyond the scope of verification of the act of violence. In such a situation a claimant is at a disadvantage and the process could be considered to be procedurally unfair unless s 43(2) was invoked by the Commissioner. I note that from a reading of the s 58 material no such step concerning s 43(2) - deferring the matter to allow GDM to respond, occurred.
44. Another relevant issue arising from the statutory interpretation discussion above at [48]-[54] is the meaning of the words in the provision. The words 'entitled' and 'compensation' appear to be of particular importance because those words in the context of the words around them give the provision it's meaning. Entitled as a verb is usually agreed to mean -to furnish with proper grounds for seeking or claiming something, - to give someone the right to do or have something, or similar. - to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim. These definitions arise in the Oxford, Cambridge and Miriam Webster Dictionaries. It would appear that whilst the claimant might be entitled to claim and ultimately receive, it does not in my view follow that in such circumstances that entitlement means that they will receive. This is particularly the case with GDM's claim where her evidence is that she has received nothing by way of any payment and the onus is on her to pursue the perpetrator via the Notice to Payee issued eventually to her by the Court.
45. Further, I am not satisfied that on the circumstances above any payment will be made to GDM by the perpetrator and as such it does not appear that s 25(1) in it's full meaning applies to these circumstances. That is because on a practical basis GDM will not receive the $300.00 from the perpetrator.
46. However more importantly in the current circumstances I am not satisfied that the compensation or payment directed for property damage is payment for an act of violence. An act of violence is defined at s 19 of the Victims Act. The section provides: 19 Meaning of "act of violence" (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) (a) 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.
47. In my view the Court order under Part 6 does not extend to the act of violence which is the subject of GDM's claim. The order arises for malicious damage to property, a matter whereby unless there was an existing apprehended violence order or similar in place, would of itself not constitute an act of violence against GDM by the perpetrator. Whilst I accept that GDM was assaulted directly by the perpetrator, in my view this behaviour clearly constituted an act of violence, and was sufficiently separated from the malicious damage to determine that the Court order arises in different circumstances.
48. Whilst I do not have any evidence or information to indicate why the Magistrate made the award or order for $300.00 compensation that they did, I infer that it may have been because of a reference to the damaged property. How the quantum of $300.00 was arrived at I am uncertain.
49. In addition it would have been open to the Court to make an order compensating GDM for injury but presumably as she was not before the Court and did not give evidence as to her injuries, or because no such application was ever made by the prosecuting Police, no such order was forthcoming. I note the comments in the Parliamentary Digest that such awards and orders by the Criminal Courts are rare and often only of token or nominal value. This may be for a range of reasons including that a convicted violent offender would be required to have the means to pay monies ordered under Part 6.
50. I observe that in that context, had compensation been ordered for the act of violence GDM (and others in similar circumstances) would on a narrow reading of the provisions of s 25(1) have been disentitled to recover under the Victims Support Scheme. Having regard to the objects of the Victims Act (including Part 6) and the Victims Scheme generally, this result appears to be both illogical and counterintuitive to the result intended to be achieved by a Victims Support Scheme.
51. A situation would therefore arise whereby a victim was given an order under Part 6 of the Victims Act, for a small sum for injury, by way of moiety, and as a result would be barred from accessing all of the support otherwise available under the Victims Support Scheme. This appears to be a cruel and unjust outcome especially considering that counselling also constitutes victims support, something not available under Part 6, but on a strict reading such a claimant would be unilaterally ineligible for all types of support even those not provided under the alternate provisions of Part 6. This is a matter that in my view requires consideration for amendment especially having regard to the conflict between the section and section 44 of the Victims Act. The Commissioner submitted at hearing that the appropriate method would be to pursue amendment rather than make a finding on the available evidence that GDM was eligible for support. The broad approach elsewhere in the Victims Act that claimant's cannot 'double dip' could be provided in such amendments consistent with the language occurring elsewhere at sections 44 and 48 of the Victims Act. Such an approach would provide clarity and ensure that none of the objects of the Act were open to be viewed as contradictory.
52. I note that GDM's claim arises in the context of domestic violence which is a significant context and percentage of the criminal activity in our society that comes before the Courts, and resultant claims on the Victims Support Scheme. The prevention of violence against persons is seen as a significant matter of public importance as is providing assistance to such victims.

Findings

1. I am not satisfied that there has been an award under Part 6 of the Victims Act concerning the act of violence (as defined in s 19 of that Act) for which GDM has claimed.
2. As a result I find that the $300.00 ordered by the Local Court, if ordered under Part 6 of the Victims Act, was not compensation awarded by a Court in respect of that act (being the act of violence) for which GDM made an application to the Commissioner.

What action to take on review

1. In granting the application, the ADR Act provides the following powers to the Tribunal under s 63 (3): 63 Determination of administrative review by Tribunal … … (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.

Conclusion

1. As GDM may wish to place more evidence before the Commissioner as well as have her other claims (not involving a recognition payment such as counselling and loss of earnings) considered afresh, it seems appropriate to make orders including an order under s 63(3)(d) of the ADR Act concerning a remittal. In making the following orders, this will not finalise this application before the Tribunal.
2. I therefore make the following orders.

Orders 1. The respondent's decision dated 8 December 2023 is aside. By way of substitution, I determine that: (a) GDM is a primary victim of an act of violence, (b) GDM is eligible for victims support. 1. The matter is remitted to the respondent for reconsideration pursuant to s 65(1) of the Administrative Decisions Review Act 1997 (NSW) according to law either with or without the receipt of further evidence. 2. On or before 16 August 2024 the respondent is to make a new decision in respect of the application for a recognition payment. 3. The matter is listed for directions before me at 9:30am on 30 August 2024.

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

Amendments 20 June 2024 - Order 1b. - GMD amended to GDM 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: 20 June 2024