GYB v Commissioner of Victims Rights [2025] NSWCATAD 261;

1. The applicant in these proceedings before the Tribunal is referred to as 'GYB', in conformity with an order made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 on 9 May 2025. The section provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal) ...

1. The applicant described the incidents constituting an act of violence in her application for support under the victims support scheme. Her summary is as follows:

The Perpetrator inflicted physical and emotional abuse against me throughout the relationship.

The Perpetrator repeatedly made threats against my life. There was an incident where the Perpetrator broke in to my house and attempted to stab me with a kitchen knife. He chased me around the house and stated words to the effect of "I'm going to kill you and then kill myself". The Perpetrator stabbed himself during the incident and then fled from Police. One of our daughters witnessed the incident.

The perpetrator was physically abusive towards me which made me fear for my physical safety. The Perpetrator would continuously physically harm me by restraining me, pushing me, hitting me, etc. The Perpetrator would make repeated threats against my life.

The Perpetrator also destroyed my property. He would come to my house and smash my items.

1. In order to understand the basis of the claim, the administrative review and the position of Victims Services, it is necessary to briefly examine the legislation relevant to this claim.

1. As has been regularly observed, the VR&S Act continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an 'act of violence', being the statutory term. The relevant current provisions are set out in the following sections of the Act:

(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.

(2) A person suffers harm if, as a result of such an act:

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person's property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

(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.

(4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a) they were committed against the same person, and

(b) in the opinion of the Tribunal or the Commissioner:

(i) they were committed at approximately the same time, or

(ii) they were committed over a period of time by the same person or group of persons, or

(iii) they were, for any other reason, related to each other.

(5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.

(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:

(a) trying to prevent another person from committing that act, or

(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or

(c) trying to arrest another person who is committing, or who has just committed, that act.

1. The Act provides for a number of areas of support for victims of violent crime. This review concerns an area of support referred to as a recognition payment. Section 34 of the Act defines the term "recognition payment":

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.

1. Prior to accessing a recognition payment, an applicant must satisfy the criteria set out in s 39 of the VR&S Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an 'act of violence'. The section has been amended since the VR&S Act commenced. The section currently provides:

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26 - is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment - is:

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

1. These threshold elements are preconditions under the VR&S Act which lead to a recognition payment. If an applicant crosses the necessary thresholds, they are able to access certain applicable benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment_._
2. Sections 34 and 35 of the VR&S Act specify the types of recognition payments and particularises the factual circumstances of the act of violence (including injury) necessary to enliven a particular category of recognition payment. The sections provide:

category of recognition payment means a category of recognition payment described in section 35.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery.

series of related acts has the same meaning as in section 19 (4).

sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8).

sexual touching or sexual act means sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years.

(1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide.

(2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds -

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.

**(3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - **

(a) a sexual assault other than one referred to in subsection (2) (b),

(b) an attempted sexual assault resulting in serious bodily injury,

(c) an assault resulting in grievous bodily harm,

(d) physical assault of a child that is one of a series of related acts.

**(4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - **

(b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b),

(d) an assault (not resulting in grievous bodily harm).

1. GYB has already been assessed as eligible for a Category D recognition payment. The initial decision before the Assessor on 22 October 2024 determined a Category D recognition payment on the basis that the evidence established on the balance of probabilities that GYB was the victim of a series of assaults in the nature of domestic violence perpetrated over a period in excess of 19 years.
2. The internal review on 27 February 2025 reached the same conclusion. The basis of the internal review request was that the injuries to GYB as a direct result of the acts of violence constituted or resulted in grievous bodily harm, entitling her to a Category C recognition payment rather than 'not resulting in grievous bodily harm' as per s 35(4)(d) of the VR&S Act (as set out in bold at [14] above).
3. On administrative review before the Tribunal, GYB seeks to establish that she is eligible for a Category C recognition payment on the basis of sustaining an injury equating to grievous bodily harm. This is in order to displace the current finding that GYB was the victim of an assault that resulted in injury, but not resulting in grievous bodily harm.
4. On the question of act of violence, the Senior Assessor as delegate on review accepted and adopted the findings of the initial assessor and found that GYB was the victim of an act of violence. They did not establish any disentitling factors under s 44 of the VR&S Act.
5. On the question of injury and category of recognition payment the Senior Assessor on review set out the categories from the VR&S Act and explained the payment provisions for each. After considering those matters the Senior Assessor refers to the medical evidence and stated:

17. In terms of assessing the injuries that [GYB] experienced, I note there is no medical evidence provided that demonstrates [GYB] suffered a physical injury or injuries arising out of the violence perpetrated upon her. I note the two Certificates of Injury (COI's) lodged for [GYB] that have been completed by C Gillett, a social worker/counsellor, dated 30 November 2023 and 19 December 2024.

18. Ms Gillett states that [GYB] was as first seen on 9 February 2023 and for the first Certificate was examined on 30 November 2023. [GYB] reported experiencing various forms of domestic violence over an ongoing period of time. Ms Gillett indicates that [GYB] reported she suffered nightmares, hypervigilance, was mistrusting, suffered anxiety, fear and difficulties in relationships. Ms Gillett opines the symptoms could be consistent with that of a Post Traumatic Stress Disorder (PTSD) and anxiety.

19. The second Certificate obtained for the purposes of internal review, indicates ongoing symptoms [GYB] continues to suffer and Ms Gillett opines that the symptoms have increased in severity, are tiring to [GYB] and are impacting her daily. She again states that they could be consistent with Chronic Post Traumatic Stress Disorder and anxiety and ongoing treatment is needed in the medium to long term.

20. In assessing the impact of the violence on [GYB], I am satisfied from the two Certificates that she continues to suffer ongoing impacts of the violence psychologically. In spite of the ongoing nature of the psychological impacts mentioned, Ms Gillett does not mention any need to refer [GYB] for treatment by a clinical psychologist or psychiatrist to treat the nature and severity of the impacts being experienced.

21. To be eligible to receive a Category C recognition payment require the evidence to establish that the person who experienced the act of violence suffered grievous bodily harm. Grievous bodily harm, in my view, means a level of injury or harm that is very serious, as the word implies, and grave. Whilst such an injury is normally seen with very serious physical injuries, I accept it can be established arising from psychological harm experienced from a person who has suffered violence, but only where the nature and extent of the psychological injury essentially means they are unable to function in most or all of their normal day to day activities, and may have required inpatient hospitalisation, ongoing treatment with a psychiatrist or clinical psychologist and reliance on ongoing pharmacological treatment. In other words, it is at a level of seriousness and gravity that it has measurable impacts on a person's day to day functioning.

1. On 27 March 2025 GYB filed an Application for Administrative Review in the Tribunal. As GYB was notified of the decision on 28 February 2025 the application for administrative review has been received within time (on the 28th day after receiving notice of the decision) in the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997 (the ADR Act) and cl 24 of the Civil and Administrative Tribunal Rules 2014.

1. There is no dispute that the Tribunal has jurisdiction to hear the administrative review if validly lodged. Section 51 of the VR&S Act provides for administrative review by the Tribunal.

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.

1. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of 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:

(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. The Tribunal's function on review under s 63 of 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. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. The matter was heard briefly on 18 July 2025 with a number of items of material received in evidence. No person was required to give evidence at hearing and that matter was reserved to be determined by the Tribunal on the basis of the written material received.

(1) Certificate of Injury (COI) dated 30 November 2023.

(2) COI dated 19 December 2024.

(3) Discharge Summary of 3 March 2025.

(4) Letter from C Gillett dated 27 May 2025.

1. GYB also filed written submissions on 3 June 2025 and submissions in reply on 8 July 2025.

(1) Documents filed pursuant to s 58 of the ADR Act (74 pages).

1. The Commissioner also filed written submissions on 25 June 2025.

1. The decision under review is summarised in detail at [19] above
2. On my assessment of the evidence the decision of the Commissioner should be set aside and a recognition payment in the nature of Category C awarded. My reasons are as follows.

1. The COI dated 30 November 2023 refers to GYB having first seen that practice for treatment concerning the impact of the acts of violence on 9 February 2023.
2. At a later examination on 30 November 2023 GYB was found to be presenting with the following symptoms: "nightmares, hypervigilance, mistrusting, anxiety, anger, fear, and difficulties in relationships". As a provisional diagnosis the COI suggests that the symptoms "could be consistent with PTSD [Post Traumatic Stress Disorder] and anxiety". A follow up was scheduled for two and a half weeks, indicating that the symptoms and treatment were ongoing. The COI confirmed that the provisional diagnosis was consistent with the clinical findings.
3. A further COI dated 19 December 2024 was provided. It referred to GYB's symptoms and treatment being 'ongoing'.
4. At examination on 19 December 2024 GYB was found to be presenting with the following symptoms: "Hypervigilance, overthinking, catastrophising, mistrust, guilt & fear. [GYB] reports that these impacts have increased in severity, are tiring and are impacting daily".
5. The COI provides a provisional diagnosis of Chronic PTSD & anxiety and opines that "ongoing treatment is needed in the medium to long term". The COI confirmed that the provisional diagnosis was consistent with the clinical findings.
6. The discharge summary from the hospital dated 3 March 2025 recorded that the applicant had presented with chest pain, possible cardiovascular issues and respiratory issues (shortness of breath). According to GYB this presentation arose in the context of experiencing a panic attack in March of this year, apparently triggered by GYB's trauma. The detailed discharge summary makes no reference to this aspect of the evidence.
7. A letter/report from C Gillett under the letterhead of Counselling and Support Services dated 27 May 2025 indicates the following:

(1) GYB continues to experience the symptoms identified six months earlier in the December 2024 report.

(2) GYB's symptoms have not abated or lessened and treatment discussions have commenced regarding EMDR therapy to target traumatic memories and symptoms.

(3) The impacts that her symptoms have on her functioning remain the same as in the December 2024 COI.

(4) GYB had not as at May 2025 been referred to her GP or a psychologist for additional support, as she remains in the trauma recovery stages of stabilising, processing, integration and healing.

1. The evidence indicates that mistrusting, anxiety, anger, fear and difficulties in relationships is present. The COI suggests that the symptoms could be consistent with PTSD (Post Traumatic Stress Disorder) and anxiety.

1. I note that it is now a number of years since GYB's relationship with the perpetrator ended and that the act of violence concluded in early 2023. I also note that GYB claims domestic violence from her former partner over the 19-20 years of their relationship which involved raising children. It was over two years since the major incident in April 2023 when the most recent evidence (the letter of C Gillett of May 2025) was prepared, which indicates that GYB continues to be impacted and is still attempting trauma recovery.
2. GYB submitted that the COI is sufficient to establish grievous bodily harm. Reference was made to the meaning of the term as defined at s 4 of the Crimes Act 1900. The term grievous bodily harm is defined to include "any permanent or serious disfiguring of the person".
3. GYB submitted that the "psychological evidence affirms the chronic and severe nature of the psychological injuries sustained as a direct result of the violence perpetrated against her".
4. The applicant referred to the case of Haoui v R [2008] NSWCCA 209, which is often cited in administrative reviews under the VR&S Act. At [137] the Court considered the practical impact of the term "grievous bodily harm" and stated:

137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one".

1. Both parties relied upon Haoui in their reasoning and submissions.
2. GYB highlighted the Court's observation that the injury did not need to be permanent, or long lasting, or life threatening but that it must be a really serious bodily injury.
3. The applicant also referred to the case of Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 (Casey) which was followed by the Tribunal in EGM v Commissioner of Victims Rights [2020] NSWCATAD 181. Those cases are authority for the proposition that that grievous bodily harm extends to serious psychological injury. Whilst Casey was subject to an appeal that aspect was not impacted by the appeal.
4. GYB through her legal representatives submitted that her psychological injuries had been an overwhelmingly present factor in her life since the violence started. GYB noted (as has the Tribunal at [36] above) that it has been over two years since the last act of violence in April 2023 and the most recent medical assessment and evidence.
5. GYB submitted that the medical evidence concluded that her symptoms remain present and show no signs of abatement. To the extent that they wished to respond to the Delegates' references to medical treatment by a psychologist or psychiatrist GYB noted that the treatment being sought and obtained was treatment funded and authorised through Victims Services for victims of violent crime.
6. GYB also referred to the beneficial nature of the legislation and that she had engaged with her General Practitioner for medication around anxiety arising from the impact of the perpetrator's actions. They also noted in reply submissions that the Respondent takes issue that this matter has not been verified.

Consideration of the Commissioner's submissions

1. In written submissions the Commissioner referred to the lack of medical evidence supporting GYB's claim and that the evidence did not support a finding of 'grievous bodily harm' as a direct result of the act of violence for the purposes of a Category C recognition payment.
2. The case of R v Donovan [1934] 2 KB 498 at 509 was also referred to by both parties and provides authority for the proposition that actual bodily harm means any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling. Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. The current case goes beyond actual physical bodily harm and that is clearly the case as the Commissioner in finding act of violence was satisfied that GYB had been injured as a result of the act of violence, suffering psychological or physical harm, constituting actual bodily harm.
3. I note that both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.
4. Victims of violent crime claiming psychologically based injuries no longer require a formal diagnosis. Whilst there is nothing in the legislation requiring that the impact of the assaults be a diagnosed mental illness or disorder, the finder of fact must be satisfied that grievous bodily harm has been inflicted as a direct result of the assault with evidence sufficient to support such a finding.
5. The Commissioner relied upon a line of cases dealing with grievous bodily harm and serious bodily injury in the context of whether a claimant was eligible for a higher level of recognition payment. Where GYB referred to barriers in obtaining reports and specialist (psychiatrist) treatment the Commissioner noted that the onus was on GYB to establish that she was the victim of an act of violence and what relevant level of injury was present.
6. Whilst it has been referred to as obiter in at least one Tribunal case, I reject the Commissioner's implied submission that to have sustained grievous bodily harm in a psychosocial rather than physical sense a person must be under active medical and behavioural treatment by a psychiatrist and psychologist. There is no legislative requirement for such matters, but rather the finder of fact must identify sufficient evidence to establish the relevant matter to the requisite standard.
7. Reference was also made to Victims Compensation Fund Corporation v Brown [2003] HCA 54 with the Commissioner noting that the case also set out the limits of the beneficial nature of the legislation and that the Court was not required to give the most expansive possible interpretation to the circumstances of a case.

1. As noted above, in my view, having regard to the evidence before the Tribunal, there is sufficient evidence to establish a finding of grievous bodily harm. GYB was the victim of domestic violence for two decades involving numerous physical assaults and significant threats all constituting criminal acts whether charges were preferred or not.
2. This application was considered by the delegates as a series of related acts of violence constituting one act of violence, which under the legislation is a finding open to the decision maker: VR&S Act, s 19(4). GYB has not sought to overturn that matter however I do note that the final act of the perpetrator in April 2023 was a particularly violent and vicious incident and would have been terrifying for GYB.
3. The violence lasted 20 years and two years after it ended GYB continues to receive treatment and her symptoms and presentation have not, on the available evidence, abated or changed. The Tribunal is not determining whether GYB had been disabled seriously with a chronic condition but rather whether she presents with a level of harm that could be considered as equating to grievous bodily harm.
4. I note that GYB's symptoms have continued for in excess of two years so they would be considered chronic by a qualified clinician, predominantly as they have persisted (even with the benefit of treatment) for well in excess of six months.
5. In respect of criticisms by the Commissioner that certain evidence was not available or produced I note that no such evidence was sought or otherwise requested in these proceedings nor was GYB herself required for cross-examination at hearing.
6. Whilst the legislation is beneficial consistent with the obiter of the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54 at [31], there still must be evidence sufficient to make the findings sought or relied upon by a party. In my view the medical evidence coupled with the circumstances of the act of violence which the evidence refers to, is sufficient to substantiate that GYB has suffered grievous bodily harm by way of psychological or psychiatric harm.
7. In the current claim taking into consideration the totality of the evidence I find that GYB is the victim of an act of violence and is entitled to recover a recognition payment, that is due to having been the victim of domestic violence in the nature of assaults. I find no relevant issues under s 44 of the VR&S Act to disentitle or reduce GYB's victims support.
8. Notwithstanding the findings immediately above, the narrow issue in dispute was clearly agreed by the parties and their helpful submissions focused on this issue as to whether the evidence was sufficient to establish Category C or Category D recognition payment eligibility.
9. Because of the above finding, the decision of the Commissioner of Victims Rights delegate will be set aside following administrative review.

1. For the reasons outlined above, the decision of the respondent will be set aside and GYB is eligible to receive a Category C recognition payment.

(1) The decision of the respondent of 27 February 2025 is set aside.

(2) In substitution of that decision, the applicant is eligible for a Category C Recognition Payment in the amount of $5,000.00 for an act of violence resulting in grievous bodily harm.

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.