GXS v Commissioner of Victims Rights [2025] NSWCATAD 221;

My neighbours set his dog onto me which I sustained multiple injuries. On 29-02-2024. Then the 1st of the 5th 2024. He attacked me from behind hitting me with a bat of some sort and hit me in the back of my neck as I was trying to get away. I went to Ballina Police Station and they took pictures of my injuries. I then made a statement. I have put in for a transfer over 12 months ago and I am on the priority at risk of further harm list with (Town) Dep Housing.

1. GXS alleged that he suffered physical injuries and a psychological injury as a result. He applied for victims support in the form of counselling and a recognition payment.

1. On 5 December 2024, an Assessor (Client Claims) issued a Notice of Decision and determined that an act of violence was not established as required by s 19 of the Act. The application was therefore dismissed.
2. The Assessor referred to the COPS Event Report (number provided) which described an incident on 18 April 20224. It indicates that GXS encountered the neighbour around the entry of the common foyer of the apartment where they both lived and the neighbour's dog barked at him. The neighbour was swearing at him at the time and did not move away from where he was standing, so that GXS had to walk around him to leave the area. However, there was no evidence that the neighbour moved towards GXS with his dog or that he made any verbal threats. The Police did not detect any offence.
3. The Assessor also considered a further COPS Event report (number provided), which referred to an incident on 1 May 2024. This indicates a history of ongoing issues between GXS and the neighbour for the prior 18 months, described as trivial and primarily involving name-calling. On 1 May 2024,GXS stated that he was leaving his unit and he encountered the neighbour in the stairwell. Following a confrontation, GXS alleged that the neighbour produced a bat and struck him mover the back of the head. Police noted that GXS was highly intoxicated the previous night. After the incident, GXS called an Ambulance and he was taken to the local Police Station. Injuries were very minor and did not warrant further treatment. Police attempted to take a statement from the neighbour but observed that GXS was still well-affected by alcohol and that he was unable to provide a clear sequence of events. He was also vague about the details of the alleged assault. Police concluded that no offence had been detected and no further action was taken.
4. The Assessor noted that living within the same unit complex as the neighbour would be very stressful for GXS, as reported by a report from his treating Psychiatrist (name provided) dated 15 October 2024. However, given Police's consistent involvement in matters involving the parties, the Assessor gave weight to their findings that they were not satisfied that any offences had been committed against GXS.
5. I note that a copy of the decision was emailed to GXS under cover of a letter from the respondent dated 5 December 2024. I am therefore satisfied that the decision was served as required by the Act.

1. GXS applied for an internal review of the Assessor's decision and in his application he stated that he had needed to cancel important appointments with some specialists because of his financial issues.
2. The internal review was supported by a report from GXS' treating psychiatrist dated 26 September 2024, which indicated that GXS had been admitted to a Private Hospital on 11 September 2024 and would be discharged on 17 October 2024. There had been numerous prior admissions between March 2020 and September 2024. The diagnosis was Major Depressive Disorder, Bipolar II Disorder, Generalised Anxiety Disorder, Post Traumatic Stress Disorder, Cognitive decline, alcohol dependence, alcohol-withdrawal seizures, nicotine use, Cluster B and C traits.
3. The doctor stated that the current admission was related to a violent assault on GXS that occurred in November 2019, and he noted that GXS was struggling with his current neighbour since he was hit from behind and on his ear by his neighbour on 1 May 2024. He also noted that the neighbour allowed his unleashed dog to attack and bite GXS and that Police took photos of his injuries. These events had worsened his PTSD and his other mental and physical disorders. Department of Housing had decided to relocate GXS as a result.
4. In a further report dated 15 October 2024, the treating psychiatrist stated that the current private hospital admission was due to the incident on 1 May 2024, when GXS suffered injuries to his head, a scratch to the back of his ear, bruises in his back and "an attack by the neighbour's dog by biting (his) leg".
5. On 4 February 2025, the treating psychiatrist reported that GXS was again admitted to the private hospital on 23 January 2025 and would be discharged on 19 February 2025. He stated that the admission was related to the physical abuse and aggression by GXS' previous neighbour, which worsened his PTSD features (suffered since 2019). He repeated his prior diagnosis.
6. On 10 February 02025, a Senior Assessor issued a Notice of Review Decision and determined that there was insufficient evidence to establish, on a balance of probabilities, that GXS was the primary victim of an act of violence. The application was therefore dismissed. The Senior Assessor stated, relevantly:

24. Considering all of the available evidence, I cannot establish that there has been violent conduct that would equate to a criminal offence of a violent nature perpetrated against (GXS). I do not find the evidence identifies violence to the necessary threshold of a balance of probabilities there is a clear indication of conflict between (GXS) and the alleged offender and it s reasonable given (GXS)'s history of trauma and mental health issues that such conflict at the least would have an impact on his emotional wellbeing.

25. I cannot however establish that these symptoms have resulted from violence displayed by the offender.

26. To confirm, the available evidence does not satisfy all of the required elements to meet the definition of an 'act of violence' as required under section 19 and 20 of the Act.

1. I note that a copy of the review decision was emailed to GXS under cover of a letter from the respondent dated 10 February 2025. I am therefore satisfied that the decision was served as required by the Act.

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(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.

1. On 19 March 2025, the Tribunal received the current application for administrative review, in which GXS stated, relevantly:

I disagree with the decision. I was assaulted by my neighbour (name provided). I went to the Police and they took pictures of my injuries. I has struck to the back and had scratches down my neck. Previous to this assault, he set his dog onto me which I have all pictures of my bite wounds his dog by law should have been on a lead and was not in the common area. The Council were involved.

1. The matter came before Senior Member McAteer for Directions on 11 April 2025, but it was adjourned at GXS' request as he was currently in hospital. Ms K Douch, Victims Services, appeared for the respondent.
2. Senior Member McAteer conducted a further directions hearing on 9 May 2025. The applicant appeared in person and stated that he was discharged from hospital the previous day and that he required a support person to appear with him. Ms Douch appeared for the respondent. The Senior Member set the matter down for a further directions hearing on 23 May 2025.
3. The matter came before me for directions on 23 May 2025. GXS appeared in person and Ms Douch appeared for the respondent. I made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting the publication or broadcast of the applicant's name.
4. As the application for administrative review had been filed late and the respondent did not object, I made an order under s 41 of the NCAT Act extending the time for filing the application to the date on which it was filed. I ordered the respondent to file and serve a summary of legal arguments by 13 June 2025 and listed the matter for hearing on 20 June 2025.

1. At the hearing on 20 June 2025, GXS appeared in person and he was supported by a Support Worker (who wished to be identified as Larissa). Ms Douch appeared for the respondent.
2. The applicant stated that his neighbour set his dog upon him and the dog bit him on the leg and that after he complained to the local Council, the council removed one of the neighbour's dogs - "but not the one that bit me". GXS stated that he needed to walk past the neighbour's door in order to exit the unit complex and "he came out and hit me from behind". Police took photos of his back and neck, but Police told him that they could not prove that the injuries were caused by being hit from behind. He said that after the dog bite, he was taken to Hospital where the wound was cleaned and dressed and he also had splinters removed from his buttocks as he fell into a garden fence.
3. The respondent noted that the dog attack incident occurred in January 2023, as evidenced by a council Form dated 27 June 2023. However, there is no documentary evidence of any dog bite incident in 2024.
4. The respondent noted that the treating psychiatrist's report dated 2 January 2024 appeared to have been drafted for the purpose of criminal proceedings brought against the applicant and the charges named GXS' neighbour as the victim of 2 incidents of stalk/intimidate on 6 and 8 January 2023, respectively. Those charges were ultimately dismissed on 31 July 2024 under s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and GXS was discharged into the care of a responsible person (his treating psychiatrist).
5. The respondent argued that to the extent that GXS sought to rely upon the alleged act of violence in January 2023, he will be ineligible for victims support under s 25(3) of the Act on the basis that he was engaged in behaviour constituting a criminal offence at the time that the alleged act of violence occurred.
6. The onus is on GXS to prove that he was the victim of an act of violence on the balance of probabilities. For there to be an act of violence there must be an act that has apparently occurred in the course of the commission of an offence, involving violent conduct, that directly results in injury.
7. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), the Court of Appeal (McDougall J , McColl & Bell JJA agreeing) held, at [46]:

On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.

1. In the application for victims support, GXS alleged that his neighbour set his dog upon him on 29 February 2024 and that he was subsequently assaulted with a bat on 5 May 2024. However, the first of the COPS Event numbers that he provided relates to an incident on 18 April 2024, with respect to which there is no evidence of a dog bite or that the neighbour moved towards GXS with his dog. The Police recorded this as an occurrence only and the respondent was not satisfied that this alleged conduct occurred in the course of the commission of an offence, involved violent conduct, and directly resulted in an injury as required by ss 19(1)(a) or (b) and 39(2)(b)(i) of the Act.
2. In relation to the incident on 1 May 2024, the respondent was not satisfied that the COPS Event report was sufficient to support a finding of an assault as alleged. There is also no evidence from NSW Ambulance or any other contemporaneous medical evidence that supports a finding that GXS suffered physical injuries consistent with the blunt-force trauma alleged in the application for victims support. The respondent also noted that the history recorded in the reports of the treating psychiatrist was provided by GXS and it has not been independently verified.
3. Therefore, the respondent was not satisfied that there is sufficient evidence to support a finding of an act of violence on 1 May 2024 as required by ss 19(1)(a) or (b) and 39(2)(b)(i) of the Act.
4. Accordingly, the respondent argued that the correct and preferable decision is to affirm the decision under review.

1. At the completion of the hearing, the Tribunal reserved its decision.

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly):

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

1. 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...

1. I agree with the respondent's submission that GXS bears the onus of proving that he was the primary victim of an act of violence in the nature of an assault that was perpetrated by the offender on the balance of probabilities and that he suffered injury as a result.
2. However, based on the evidence before me, I am not satisfied that GXS was the victim of an assault by his neighbour on 18 April 2024, as there is no evidence that the neighbour set his dog upon GXS at that time and/or that he suffered a dog bite as alleged in the application.
3. On the contrary, the available evidence indicates that "the dog bite" occurred in January 2023, and that in relation to that incident GXS was charged with 2 offences of stalk/intimidate the neighbour.
4. Section 25 of the Act provides, relevantly:

25 Persons not eligible for support

...

(3) Offenders A person is not eligible to receive victims support -

(a) in relation to an act of violence if the act occurred while the person was engaged in behaviour constituting an offence, or ...

1. Section 44 of the Act provides, relevantly:

Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following -

(a) for a victim of an act of violence or an act of modern slavery - any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, ...

(d) whether the victim participated in the commission of the act of violence, act of modern slavery or road crime, encouraged another person to commit the act of violence, act of modern slavery or road crime or otherwise gave assistance to any person by whom the act of violence, act of modern slavery or road crime was committed.

1. Based on the available evidence, and particularly the evidence relating to the incident in January 2023, I am satisfied that GXS is ineligible for victims support under ss 25(3) and 44(1)(a) and (d) of the Act.
2. In relation to the act of violence alleged on 1 May 2024, I am not satisfied on the available evidence that GXS was the primary victim of an act of violence in the nature of an assault, which involved the neighbour striking him from behind with a bat, on the balance of probabilities.

1. I am satisfied that the correct and preferable decision is to affirm the decision under review.

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.