GFM v Commissioner of Victims Rights

Internal review

1. On 8 December 2023, GFM's solicitors wrote to the respondent requesting an internal review of the Assessor's decision in claim number 00476229. They made further submissions which are summarised, relevantly, as follows: The claim 6. The applicant's claim for a recognition payment relates to physical violence perpetrated by the offender against the applicant between May 2017 and November 2019. 7. The applicant has suffered psychological injury as a result of the violence and has been diagnosed with Post traumatic Stress Disorder and depression… The notice of decision 10. In the Notice of Decision dated 11 September 2023, the Assessor accepted that the applicant was a primary victim of domestic violence that occurred between 16 May 2017 and 29 November 2019 (at [7]). 11. The Assessor found on a balance of probabilities that the applicant was assaulted by the offender and that she sustained psychological injury as a result of this violence (at [10]). 12. However, the Assessor dismissed the application on the basis that applications 00408096 and 00476229, finding that applications 00408096 and 00476229 were a series of related acts that constituted one act of violence against applicant and that, therefore, only one application could be approved (at [20] and [25]). Grounds of the application for internal review 13. The applicant respectfully submits that: (a) The Assessor erred in finding that acts of violence described in applications 00408096 and 00476229 were a series of related acts that together constituted one act of violence against the applicant; (b) The Assessor erred in dismissing application 00476229; and (c) The Assessor erred in not interpreting the Act as beneficial legislation. 14. The applicant submits that she is eligible for a category C recognition payment in respect of application 00476229 under section 35(3)(c) of the Act for a physical assault resulting in grievous bodily harm. Act of violence 15. The Assessor accepted that the applicant was a primary victim of domestic violence involving physical assault. The applicant does not wish to challenge that finding. 16. The applicant and the offender were in a relationship for approximately three years. The relationship began in 2016 and ended in 2019. 18. If, however, the Senior Assessor is minded to review this aspect of the applicant's claim, the applicant would draw the assessor's attention to her medical and police records which describe the various acts of violence perpetrated by the offender throughout 2017 to 2019. In particular: (a) The clinical records of Royal Prince Alfred Hospital dated 16 May 2017 record that the applicant: (i) Was in a DV relationship with partner (name provided)… (page 2); (ii) Has a recent fall down the stairs, states her partner pushed her (page 3); and (iii) feels her social problems won't be remedied by antidepressants and expresses motivation to seek an AVO against her partner to start to address some of her problems (page 3). (b) Police event report (number provided) (pages 6-16 of the GIPA material) records that: (i) On 9 July 2017, the offender struck the applicant with a closed fist to the left side of her face causing the applicant to fall back into a nearby wall, and then, as the applicant crouched down, she felt a hard strike near to the centre of her back (9 July incident); and that (ii) On 26 October 2017, the offender was found guilty of common assault in relation to the 9 July incident (see page 6 of the GIPA material); (c) APM Employment records dated 29 November 2019 record that the applicant was going through DV issues - the applicant submits that the DV issues that these records refer to was domestic violence perpetrated by the offender; and (d) the psychological report of John Machlin, clinical psychologist, dated 24 November 2021 records at page 4 that the applicant recalled the onset of domestic violence in her relationship with (name) the offender. 19. The applicant submits that her medical, employment and police records should be sufficient to satisfy the Assessor on the balance of probabilities that she was the primary victim of ongoing physical violence perpetrated by the offender. Injury Grievous bodily harm 20. The applicant submits that she is eligible for a Category C recognition payment under section 35(3)(c) of the Act for an assault resulting in grievous bodily harm in the form of psychological injury. 21. Section 18 of the Act defines "injury" as "actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property." Grievous bodily harm is not defined in the Act. 22. BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 187 (3 November 2016) is authority for the principle that psychological or psychiatric harm falls within the definition of "bodily harm". 23. In BMF v Commissioner of Victims Rights [2016] NSWCATAD 54 (22 March 2016), the New South Wales Civil and Administrative Tribunal (Tribunal) held that "grievous bodily harm" is "really serious bodily harm" (at [27]). 24.. In EGM v Commissioner of Victims Rights [2020] NSWCATAD 181, the Tribunal found that the applicant, who suffered from PTSD and major depressive disorder as a result of an act of violence, suffered grievous bodily harm and was eligible for a category C recognition payment under section 35(3)(c) of the Act. 25. Similarly, in BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197, the Tribunal found that the applicant, who suffered depression, anxiety and symptoms of PTSD as a result of a series of domestic violence offences was "entitled to a category C recognition payment on the basis that she suffered grievous bodily harm arising from a psychological condition that has had a serious impact upon her" (at [17]). 26. In her certificate of injury dated 15 May 2023, the applicant's psychologist Ms Louise Wallace reports that the applicant presented with: Highly dysregulated mood, depression, anxiety, flashbacks, sleep paralysis, nightmares… Flat affect and severe fear of disclosure whilst in jail. Psychosomatic pain… Self-loathing and high triggers when looking in mirror. Disassociation when palpitations, voices, anal pain on defecation". 27. Ms Wallace diagnoses the applicant as suffering from Post Traumatic Stress Disorder. 28. Similarly, in his psychological report dated 24 November 2021, Mr John Machlin reports that the applicant "…has a long history of Post-traumatic Stress Disorder resulting from the years of violence, abuse and control" and later, that she "has a longstanding history of addiction, personality problems, PTSD and depression". 29. The applicant submits that her psychological injury can properly be considered as being "really serious bodily harm". The applicant suffered psychological injury including PTSD, depression and symptoms of anxiety as a direct result of the acts of violence perpetrated by the offender. 30. It is clear that the acts of violence by the offender have had a serious and long-term psychological impact on the applicant, affecting her day-to-day functioning for over four years after the acts of violence. 31. The applicant therefore submits that she suffered grievous bodily harm as a direct result of the acts of violence and she is eligible for a category C recognition payment under section 35(3)(c) of the Act. Causation … 36. The applicant submits that it is well within the bounds of reasonable probability that the physical violence perpetrated by the offender has contributed significantly to the serious and ongoing psychological harm that she has suffered, which continues to have a detrimental impact on her mental state and life. Unrelated acts 37. The applicant has made a separate application for victims support under the Act as a result of sexual assault perpetrated against her by the offender. 38. We submit that the physical and sexual violence perpetrated against the applicant by the offender should not be treated as a series of related acts because the Act treats sexual and physical violence differently. 39. Primary victims of violence and eligible for different recognition payments depending on whether they were victims of sexual or physical violence and the severity of the injury they suffered. 40. We submit that awarding victims of violence different recognition payments for physical and sexual violence recognises the different impacts that physical and sexual violence can have on victims. 41, We submit that treating physical and sexual violence committed by the same offender over a period of time as a series of related acts fails to recognise the unique harm caused by the different types of violence and the beneficial nature of the legislation. Beneficial legislation 42. Recognition payments are a symbolic acknowledgement of the pain, suffering and wrong that has been done. The applicant submits that the purpose of the Act is beneficial and that the Act therefore ought to be interpreted liberally and beneficially (Fleming v White [1981] 1 NSWLR 719 at 722) and in favour of the grant of benefits to an applicant (Elena Harvey v Victims Compensation Tribunal & Anor) [2001] NSWSC 604). 43. Recognition payments are a symbolic acknowledgement of the pain, suffering and wrong that has been committed. The applicant was the victim of the most heinous crimes in our community - domestic violence. The applicant's life was irreparably damaged by those atrocious acts of violence. 44. Awarding the applicant a category C recognition payment helps to acknowledge the really serious psychological injuries she continues to suffer as a direct result of the physical violence she experienced…
2. On 10 January 2024, a Senior Assessor issued a Notice of Review Decision under the Act and determined that the acts of violence (sexual and physical) were a series of related acts. The Senior Assessor approved a category B recognition payment in respect of claim 00408096 and dismissed claim number 00476229.
3. The Senior Assessor determined that both forms of violence were reported to the authorities and that there was medical evidence to confirm that the violence that GFM experienced resulted in her experiencing a range of psychological symptoms and periods of poor mental health. The medical evidence can be considered to establish an injury across both forms of violence.
4. The Senior Assessor also stated, relevantly: 14. Under section 19 of the Act, an act of violence can be either a single act or a series of related acts. A single assault for example would be considered an act of violence. 15. If there are a series of individual acts they are considered to be related if they are against the same victim at the same time or over a period of time and committed by the same person or group of persons. If it is established that there has been a series of related acts then they are considered to be a single act of violence. Should claims 408096 and 476229 be considered separately? 16. I note that both forms of violence from the named offender perpetrated against (GFM) have been reported to Police, the sexual assault by way of a sexual assault reporting options (SARO) document and the domestic violence reported via the relevant local area command. In 2017, the offender was charged and convicted of a domestic violence related assault. 17. The medical evidence in support of both claims includes certificates of injury completed for the two claims by psychologist Louise Wallace from Hawkesbury Trauma Centre. The information contained in the certificates of injury under the symptoms and diagnosis section of the certificates of injury appears to be duplicated and there is no information discussed aside from the nature of the violence that was perpetrated against (GFM) to differentiate between the violence that occurred and the resulting impact on the mental health of (GFM). 18. There is also supporting information in the form of a psychological report completed by clinical psychologist John Machlin for the purposes of criminal court proceedings against (GFM) for unrelated offences which acknowledges that she suffers from symptoms of posttraumatic stress disorder. This is consistent with the various forms of trauma that she has experienced both during her childhood and adult life. 19. Given that there is nothing specific in the medical evidence that addresses the individual forms of violence perpetrated against (GFM) by the named offender, I am unable to see that they should be considered as separate claims. If I was to consider them separately based on the available evidence then this would approve a lower amount to (GFM) and I do not find that the injuries sustained by her can be considered as grievous bodily harm or a serious bodily injury. 20. Therefore, I find it most appropriate to consider the violence across the two claims as one series of related acts which takes the form of a single incident or sexual assault and also a pattern of domestic violence…
5. I note that a copy of the Notice of Review Decision was emailed to GFM's solicitors on 11 January 2024. I am therefore satisfied that the decision was served in accordance with the Act.

Application for Administrative Review

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides: 63 Determination of administrative review by Tribunal (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.
2. On 12 February 2024, GFM's solicitors filed the current application for administrative review, which sought a review of the review decision on the following grounds: 1. The decision maker erred in finding that the acts of violence described in applications 408096 and 476229 were a series of related acts that together constituted one act of violence. 2. The decision maker erred in dismissing application 476229. 3. The decision maker erred in failing to find that the applicant was a victim of an assault resulting in grievous bodily harm. 4. The decision maker erred in not interpreting the Act as beneficial legislation.
3. The matter came before Senior Member McAteer for directions on 1 March 2024. The Senior Member extended the time for filing the application to 12 February 2024 under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He ordered that the proceedings numbered 2024/00053705 and 2024/00044485 be heard together. He made a non-publication order under s 64(1)(a) of the NCAT Act. He ordered the respondent to file and serve its bundle of documents under s 58 of the ADR Act by 12 March 2024. He ordered the applicant to file and serve any further evidence by 12 April 2023. He ordered the respondent to file and serve submissions by 26 April 2024 and listed the matters for hearing on 10 May 2024. He noted that the respondent intended to issue a summons to the Commissioner of Police for production of documents.
4. On 16 April 2024, Principal Member Simon amended the timetable for the filing and service of documents but maintained the hearing date.

The hearing

1. The matter came before me for hearing on 10 May 2024. Ms C Ashley appeared for GFM and Ms K Douch appeared for the respondent. There was no appearance by GFM and Ms Ashley stated that the applicant was currently incarcerated and did not wish to participate in the hearing.

Applicant's case

1. On 24 April 2024, GFM's solicitors filed the following further evidence: 1. Psychological report of Ms Louise Wallace dated 11 April 2024; and 2. Documents produced by the Commissioner of Police in response to the summons.
2. GFM's solicitors also filed written submissions (undated).
3. Ms Ashley stated that GFM was not seeking a review of the recognition payment that was awarded to her, but she was seeking a review of the decision that there was a single act of violence because the physical and sexual violence comprised a series of related acts.
4. However, I note that while GFM's solicitors made submissions to the respondent in relation to the "series of related acts" issue in relation to the internal review, this issue was not expressly addressed in their submissions filed in this Tribunal on 24 April 2024.
5. As the issue of whether or not the acts of violence were a series of related acts was the central issue in dispute in the current proceedings, I have taken note of the submissions that GFM's solicitors lodged with the respondent in support of the application for internal review. As those submissions were extracted previously in this decision, I have not repeated them here.
6. Otherwise, GFM's solicitors argued that the physical acts of violence were akin to an assault that resulted in grievous bodily harm and that GFM was therefore eligible for a category C recognition payment in the sum of $5,000 in addition to the category B recognition payment that was approved. They also addressed s 44 of the Act, although the respondent determined that no s 44 factors exist in this matter.

Respondent's case

1. The respondent filed written submissions on 8 May 2024.
2. In relation to the issue of "series of related acts", the respondent stated that it is evident from the express terms of s 19 of the Act, that the legislature intended the concept of "related acts" to incorporate acts committed over a period of time by the same person. This can include acts involving sexual and physical offending.
3. That intention was also apparent in the explanatory memorandum made when the terminology was first introduced into the now repealed Victims Rights and Support Act 1996 (NSW) (the old Act). This concept was first introduced in s 5 of the old Act on 1 January 2011 and the explanatory memorandum for the Amendment Bill provided: (a) to ensure that acts of violence committed against a primary victim over a period of time by the same perpetrator or perpetrators are generally treated as being part of the same act of violence for the purposes of determining applications for the award of statutory compensation under that Act…
4. In relation to the Act, the explanatory memorandum provided: Clause 19 defines act of violence for the purposes of the proposed Act. The definition is based on that currently contained in the VRSA. It deals with the circumstances in which a series of related acts is to be treated as a single act of violence for which only one approval of victims support is available.
5. However, s 19(5) of the Act enables either the respondent or the Tribunal to find that an act ought not be treated as a related act having regard to the particular circumstances of those acts of violence.
6. The respondent argued that a finding that the acts of violence in this matter are a series of related acts is consistent with the approach previously taken by the Tribunal in the following matters: 1. In CFV v Commissioner of Victims Rights [2016] NSWCATAD 152, the applicant was the victim of sexual assault and domestic violence perpetrated over a period between 2000 and September 2011. The Tribunal approved a category B recognition payment and found at [37] to [38]: 37. Based upon a consideration of all of the available evidence, I am satisfied that on the balance of probabilities that CFV was the primary victim of acts of violence (in the nature of sexual assault and domestic violence), which occurred over a period of time from 2000 to September 2011, and that she suffered physical and psychological injuries as a result. 38. The available evidence establishes that the acts of violence were perpetrated by the same offender and I am satisfied that they are a series of related acts pursuant to s 19 (4) of the Act. 1. In FGY v Commissioner of Victims Rights [2022] NSWCATAD 223, a question arose as to whether the applicant was entitled to a category C recognition payment in respect of domestic violence resulting in grievous bodily harm or a category B recognition payment in respect of a series of related acts involving both physical and relevant sexual acts. Ultimately, the Tribunal was not satisfied on the evidence that the applicant was the victim of a relevant sexual offence for the purpose of a category B recognition payment resulting in the approval of a category C recognition payment.
7. The respondent argued that based on these decisions, a finding that the acts of related acts is consistent with the approach adopted by the Tribunal.
8. In response to the applicant's submissions regarding "beneficial legislation", the respondent stated that in Victims Compensation Fund Corporation v JM [2011] NSWCA 89 (JM), the Court of Appeal stated at [10] - [11] (in relation to the old Act): As Young JA points out, the result in the present case might be seen by many as harsh. It is, however, the consequence of a statutory scheme which provides compensation for victims of crime, but in a manner which attempts to curtail the costs of the scheme. Not infrequently, legislation which seeks to reconcile competing objectives can lead to apparently anomalous or harsh results.
9. In Victims Compensation Fund Corporation v Brown [2003] HCA 54 (Brown), Heydon J stated (and the plurality agreed): 33. To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. 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"."
10. The respondent stated that the operation of s 19(5) of the Act should be considered in the context of the Act, the old Act and the decision of the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
11. While the applicant asserts that the physical and sexual violence should not be treated as related as there are different categories of recognition payments available depending on whether the victim has experienced sexual or physical violence, this approach is not supported by the express terms of s 19(4) of the relevant case law.
12. Considering the operation of s 19(5) of the Act in the context of the scheme, the respondent submits that the circumstances identified do not enliven the operation of s 19(5), as: 1. The acts were allegedly perpetrated by the same offender over a period of time; 2. The express terms of section 19(4) should be given considerable weight; 3. The acts were perpetrated by the same person in the context of domestic violence; 4. The acts occurred in the same general location, being within the home; 5. Whilst the applicant supplied a certificate of injury to support each application, the psychological symptoms referred to and the diagnosis are the same in each certificate and followed a consultation on the same date; and 6. The position of the applicant will result in overlapping periods of "related acts".
13. Therefore, the respondent argued that the Senior Assessor's decision should be affirmed.

Applicant's oral submissions

1. In oral submissions, Ms Ashley referred to her written submissions and she argued to the effect that the Tribunal should find that the acts of violence are not a series of related acts under s 19(5) of the Act because the physical domestic violence is different to the sexual assault.

Respondent's oral submissions

1. Ms Douch relied upon the written submissions and argued that the Tribunal should find that the acts of violence are a series of related acts under s 19(4) of the Act.

Act of violence

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): 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.
3. 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…
4. The onus is on GFM to prove the allegation that she was the primary victim of an act of violence that was perpetrated by the named offender on the balance of probabilities and that she suffered injury as a result.
5. Section 19(8) of the Act defines "sexual assault and domestic violence" as meaning aby of the following, relevantly: (a) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat, … (f) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons - (i) a person who is or has been married to the person who committed the offence, … (iii) a person who has or has had an intimate personal relationship with the person who committed the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, (iv) a person who, at the time of the offence, was living in the same household as the person who committed the offence,
6. Based on the evidence before me, I am satisfied that GFM was both a primary victim of a sexual assault, which was perpetrated by the named offender in December 2018, and domestic/family violence that was perpetrated by the same offender over a period of time from 16 May 2017 to 29 November 2019, and that she suffered a psychological injury as a result.
7. I note that the medical evidence relied upon by GFM does not distinguish between the different acts of violence in relation to causation of the psychological injury. As a result, I am not actually persuaded that the medical evidence supports a finding that the psychological injury resulted solely from the sexual assault in December 2018 or that it was aggravated etc. by the domestic/family violence.
8. I reject the argument that in view of the beneficial nature of the Act, the Tribunal should exercise its discretion under s 19(5) and find that the acts of violence in this matter should not be treated as a series of related acts. In my view, that construction is inconsistent with the decision of the High Court in Brown.
9. For these reasons, I am not satisfied that s 19(5) of the Act is engaged and that it is appropriate to find that the sexual assault in December 2018 and the domestic/family violence from 16 May 2017 to 29 November 2019 constitute a series of related acts for the purposes of s 19(4) of the Act.

Conclusion

1. In relation to matter no. 2024/00053727 (claim no. 00408096), I have concluded that the correct and preferable decision is to affirm the Senior Assessor's decision dated 10 January 2024.
2. In relation to matter no. 2024/00053705 (claim no. 00476229), the application for administrative review is dismissed.

Orders

1. I make the following orders: 1. In relation to matter no. 2024/00053727 (claim no. 00408096), the Senior Assessor's decision dated 10 January 2024 is affirmed. 2. In relation to matter no. 2024/00053705 (claim no. 00476229), the application for administrative review is dismissed. 3. Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons is prohibited.

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 18 June 2024 - Paragraph 44 - Fixed typographical error. 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: 18 June 2024