HBC v Commissioner of Victims Rights [2025] NSWCATAD 300;

44 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,

(b) for a family victim of a road crime - any behaviour, including past criminal activity, attitude or disposition of the person who died as a result of the road crime that directly or indirectly contributed to the person's death,

(c) (Repealed)

(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,

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence, act of modern slavery or road crime or in the arrest or prosecution of any person by whom the act of violence, act of modern slavery or road crime was committed or alleged to have been committed,

(f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence, act of modern slavery or road crime was committed,

(g) such other matters as the Commissioner considers relevant.

(2) (Repealed)

(3) In determining the matter referred to in subsection (1) (f) in the case of an act of violence or act of modern slavery involving sexual assault or domestic violence, the Commissioner must have regard to the nature of the relationship between the victim and the person or persons by whom the act of violence or act of modern slavery is alleged to have been committed.

(3A) In determining a matter referred to in subsection (1) or (2) in the case of an act of modern slavery, the Commissioner must have regard to the nature of the relationship between the victim and the person or persons by whom the act of modern slavery is alleged to have been committed.

**(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 payments under the police officer support scheme under the Police Act 1990, Part 9B 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.

(6A) If the Commissioner is satisfied that an applicant for victims support, who is a family victim referred to in section 25 (2A), may be entitled to any damages under the Compensation to Relatives Act 1897, or any payment under the Motor Accident Injuries Act 2017, 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 entitlement to those damages or to that payment (as the case may be) has been determined.

(6B) To avoid doubt, subsections (5)-(6A) do not apply in relation to an application by a family victim of a road crime.

(7) The Commissioner may postpone the determination of a person's application pending the determination of another application for financial support or a recognition payment if the person has been convicted of an offence that is a relevant offence under section 58 in relation to that other application.

(Emphasis added)

1. A similar provision of the Victims Act (s 25 (1)) is drafted in similar terms. That section does not apply to these proceedings as in the current matter Part 6 of the Victims Act is not enlivened. However, the recent case of GDM v Commissioner of Victims Rights [2024] NSWCATAD 169 dealt in detail with s 25 (1) and applied it ultimately to a similar question being, whether the effect of the legislation is to prevent a claimant recovering under the statutory scheme if they could recover by some other method.
2. Section 25 of the Victims Act provides:

25 Persons not eligible for support

(1) Claimants for court compensation awards A person is not eligible to receive victims support in respect of an act of violence or act of modern slavery if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 6 or if the person's application for such compensation is pending.

1. As noted above the statutory scheme provides that applicants for recognition payments under the Victims Act may apply for an Internal Review of the first instance decision. HBC applied for Internal Review and on 6 May 2025 the delegate affirmed the original decision. Relevantly like the first decision maker they confirmed that HBC was the victim of an act of violence and implicit in that (due to s 19 (1) (c)) and explicit from the decision, made a finding that HBC suffered psychological harm because of that act.
2. However, like the first delegate, the senior delegate applied s 44 (4) of the Victims Act to the claim, based on the available material and having regard to the grounds of internal review. As a result the same ultimate position was reached whereby s 44 (4) was deemed applicable and the amount available (potentially a category B or C recognition payment) was reduced down to nil as the amount received through the civil claim exceeded the amount payable under the statutory scheme under the Victims Act.
3. Whilst HBC was found to be the victim of an act of violence, with a finding to that effect, as no recognition payment was payable after applying s 44 (4) of the Victims Act, HBC's application was dismissed.
4. HBC applied to the Tribunal on 19 May 2025 for administrative review. In that application HBC stated that they were notified of the decision under review on 7 March 2025 and attached a copy of the decision of that date. However also attached was the Internal Review decision of 6 May 2025. Whilst the Tribunal does not know when HBC received that decision, that decision becomes the decision under review in the current administrative review before the Tribunal.

1. Whilst the date that HBC received the Internal Review decision is unclear, nothing turns on this issue as the application for administrative review was lodged within the 28 day period provided for administrative review under the Civil and Administrative Tribunal Rules 2014.

Summary of the respective positions in first instance

1. In their grounds HBC outlined the following matters:

(i) My recognition payment was dismissed solely because I previously received civil compensation. However, Victims Services failed to assess the actual basis and purpose of my civil settlement, which related only to compensatory damages (economic loss and psychological injury) - not recognition, acknowledgement or symbolic trauma. Therefore, I request my application for a 'Recognition Payment' to be reviewed.

1. The Commissioner's position is that HBC has received a civil payment arising from the same circumstances (or act of violence) for which the recognition payment is sought. They submit that the statutory framework of the Victims Act provides that there are multiple provisions for blocking the making of a recognition payment including provisions requiring the repayment of recognition payments and provisions which prevent the Commissioner from taking recovery action against an offender to recover recognition payments erroneously awarded in such circumstances. Their main prong relates to this statutory approach on a reading of the legislative provisions. However they also engage before the Tribunal on HBC's argument as to on what basis the civil payment was made.

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 the 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.

1. 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.

1. The matter was heard on 29 August 2025. HBC was not legally represented but their case was based on legal submissions which were made orally at hearing including a consideration of detailed written material provided by HBC. I have examined that material in detail. The Commissioner also made oral submissions at hearing and provided written submissions which I have also considered. No witness gave evidence at hearing as the matter centred on the application and meaning of the legislation and its applicability to the facts.
2. Documents under s 58 of the ADR Act were filed and served by the Commissioner. These documents were relevant only in contrasting the circumstances of the application with the pleadings in the civil proceedings. This is because as noted above, no party disputes that HBC was the victim of an act of violence (a criminal act involving an assault) and sustained injury as a direct result of that act as per s 19 (1) of the Victims Act.
3. At hearing the Tribunal was referred to the case of Prompromis v Commissioner of Victims Rights [2017] NSWCATAD 195 (Prompromis) whereby the Tribunal considered the provision of s 44 (4) of the Victims Act. In Prompromis the proceedings were recovery proceedings whereby that applicant was seeking to reduce the about that they were liable for by way of restitution. An analysis of that case shows that the applicant had given the victim of crime a gift of $7,500.00. The basis of the gift is not clear from the reasons but the Tribunal refers to statutory declarations of the applicant and their father. The Tribunal noted that had the Commissioner been aware of this monetary gift then they would have been bound to consider s 44 (4) of the Victims Act and potentially or absolutely reduce the amount payable. The Tribunal deals with this at [35] - [36].

35. I am concerned that the victim did not disclose the payment to the Commissioner in her Application for Compensation. This is relevant to the approval of victims support and the issue of restitution, as s 44 (4) of the Act provides (relevantly):

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

...

(4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to:

...

(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 to which the application for financial support or a recognition payment relates.

36. In my view, the Commissioner would more probably than not decided to reduce the recognition payment approved for the victim if she had been aware of the Applicant's gift in the sum of $7,350. This exceeded the recognition payment that was approved ($5,000), but as the applicant would nevertheless have been eligible for the special grant of $5,000, it is likely that the amount of victims support approved for the victim would have been reduced from $10,000 to $2,650.

1. The Tribunal considers at [36] and [37] the amount that the applicant (Prompromis) would have been liable for by way of restitution. Because that amount on objection was less than the amount of the gift and because in the Tribunal's view if the Commission was aware of the gift, then applying the provision, no recognition payments would have been paid or special grant made, then the restitution order was reversed under the statutory provision with the result that the debt was effectively discharged.

37. The amount of restitution was reduced on Objection to $5,000 and I am satisfied that the Applicant has paid monies exceeding this sum directly to the victim, I am satisfied that it is appropriate to reverse the Commissioner's order dated 20 December 2016.

38. Therefore, I make the following order:

Pursuant to s 67 (1) (a) of the Act, the order made by the Commissioner on 20 December 2016 is reversed.

1. HBC submitted at hearing that the civil claim was compensation only, not a recognition payment. Reference was made to the case of Saleh v Victims Compensation Fund Corporation [2012] NSWDC 217. 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.

1. The Commissioner submitted that s 44 (4) of the Victims Act should be read with the purpose of the legislation in mind, noting that the section heading as set out at [5] above, is phrased:

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

1. Reference was also made by HBC to the case of National Insurance Company of New Zealand v Espagne [1961] 15 [1961] HCA 15; (1961) 105 CLR 569 which refers to what should be taken into account when assessing damages. At [19] the Court observed:

19. The most satisfying of the reasons that have been given for refusing to diminish damages because of voluntary gifts is that they are given for the benefit of the sufferer and not for the benefit of the wrongdoer. That, it may be said, cuts across the principle that damages for negligence are compensatory and not punitive. It may be that, at all events since Bradburn's Case [1854] EngR 538; (1874) LR 10 Ex 1 , there are some limits to strictly logical applications of that principle. But I do not think the two propositions necessarily come into collision. A donor can say who is to benefit by his generosity. If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances. There are statements in some of the cases that a wrongdoer ought not to be allowed to reduce his liability because of the generosity of others. These have been criticised as importing a punitive consideration into the assessment of compensation. That, of course, would be wrong. But as I understand the proposition it is really elliptical and means that the generous giver intended his generosity to benefit the injured man and not to affect the wrongdoer's liability, and that, that being the nature of his gift, it would so take effect. (at p599)

1. HBC submitted that this case showed that where there was silence in the other proceedings (the consent order / judgment) to any overlap by reference to the term 'recognition' or 'payment in recognition' etc. then there is evidence against any overlap. HBC submitted that the Commissioner had not shown that there was any overlap.
2. HBC in oral submissions referred to the difference between a recognition payment and a payment by way of compensation and damages. HBC submitted that a recognition payment's purpose is to acknowledge and symbolise the trauma of the act of violence. They also submitted that such a payment goes 'a bit each way' in that the mere fact of a payment is in recognition, which they described as the 'principle component', and that there was also a 'trophy component' whereby the different levels of category of payments recognised that some assaults were more serious than others.
3. HBC also made submissions at hearing critical of the position that the delegates appear to have dismissed the claim by applying the section in a rote manner without having regard to the circumstances of the matter. This it was submitted was particularly significant because HBC maintained that the settlement funds were tortious in nature, compensatory for harm done and unrelated to any concept of recognition.
4. Reference was made to the cases of Uren v VCFC [2003] DC2 and FRG v Commissioner of Victims Rights [2023] NSWCATAD 195 and FRL v Commissioner of Victims Rights [2023] NSWCATAD 131. Uren was cited in that the Court under the former Act acknowledged that the section does not prevent payment but prevents 'double dipping'. At [17] of Uren the Court observed:

17. Thus I see the V.C.T. as having made an error of law. Mr Burchett argued that the V.C.T. made no error because it "had regard" to his commutation sum. But "having regard" to an issue involves more than treating it as a necessarily excluding factor. Though there are substantial limits on what may be awarded under the Act, nothing in the Act says that no compensation is payable if an applicant has recovered a sum exceeding the V.C.T.'s jurisdictional limit. In particular the V.C.T. is not precluded from awarding compensation when more than its jurisdictional limit has been recovered elsewhere.

1. Regarding the case of FRL, the Tribunal addressed this issue at [38]-[42] as follows referencing Spigelman CJ's comments in Brown v Victims Compensation Fund Corporation [2022] NSWCA 155, the precursor to the High Court case.

38. His Honour noted that the victim had suffered both physical injuries and a psychological injury and that the WCA then did not provide for the recovery of lump sum compensation for permanent psychological impairment. His Honour stated, relevantly:

38. The second reading speech of the Victims Compensation Bill by the then Attorney-General, makes it clear that victims compensation should only be paid to the extent not recoverable under workers compensation legislation, in other words, to prevent what is commonly referred to as 'double-dipping'.

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...

40. His Honour held that the old Act clearly required the decision maker to make an assessment and, in the process, to "have regard to" other compensation payable or paid. The decision maker must consider the nature of the award, the basis of that award and how, for example, that other award is either different from, or identical to, the basis of the claim under the victims compensation regime. He stated:

69. What is clear from the second reading speech accompanying the introduction of the legislation is that the assessors and the VCT are to ensure that there is no double-dipping. In other words, to ensure that an award for victims compensation is not made where the recipient has already received compensation for the same injury.

70. I see no basis in the Act for a restrictive interpretation which would prevent a decision maker from making an award simply by virtue of the fact that another award had been made. Indeed, in my view, such an approach would run contrary to the established approach to the interpretation of beneficial legislation.

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.

1. Both HBC and the Commissioner referred in submissions to FRG whereby the Tribunal clarified how s 44 (4) should be applied by the finder of fact. At [23] - [24] 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.

1. HBC was critical that the delegates had not gone through this process and submitted that they had in effect sat the provision over the information provided in respect of the civil claim and determined that the provision applied adverse to HBC.
2. The Commissioner on the other hand submitted that the delegate was doing no more or less than what the statute required.
3. Both parties also referred to the case of GDM v Commissioner of Victims Rights [2024] NSWCATAD 169. GDM dealt with an eligibility provision rather than a reduction of disentitling provision of the Victims Act being s 25 (1) and referred to at [6] and [7] above. Reference was made to [74] of GDM whereby the Tribunal observed:

74. 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.

1. This notion of non compensatory acknowledgement appears to be a main prong of HBC's claim before the Tribunal. I note that GDM sets out a long history of the various statutory schemes effectively supporting victims of crime in some manner in NSW since the 1960s. We will return to some of those matters in due course.
2. HBC also submitted at hearing that the words 'having regard to' in s 4 means more than whether such a payment exists but an analysis of the circumstances and basis of that payment contrasted with the current scheme of Victims Support and its various nuanced forms of support to victims of violent crime.
3. In closing HBC confirmed that the medical evidence that they had provided to support establishing act of violence and the relevant category of recognition payment before the Tribunal was the same medical evidence relied upon in the civil proceedings and prepared for that purpose.
4. In addition to the matters outlined above the Commissioner noted that there were other provisions in the Victims Act that provided for the acknowledgment of benefits received from other sources. Section 48 (2) was referred to whereby repayments are sought from claimants who subsequently recover funds civilly or through similar means unlike HBC who obtained funds prior to lodging their Victims Services application.
5. Reference was also made to the position that under s 59 (2) (b) of the Victims Act an order for restitution cannot be issued by the Commissioner if civil proceedings have been commenced or maintained by or on behalf of the State against the offender in an action for damages arising from substantially the same facts as those upon which the relevant approval was based.
6. Reliance was also placed on the Tribunal's findings at [23] and [24] of FRG as set out at [30] above.
7. Specific reference was made by the Commissioner that it was not in dispute that the civil proceedings payment was for the same incidents upon which the Victims Support claim was based. They argued that the references to damages in HBC's civil proceedings included both economic and non economic loss contrary to HBC's assertions in these proceedings.
8. The Commissioner referred to the Judicial Commission of NSW commentary on civil damages in their Civil Trials bench Book (Update 61):

(a) General damages: this is the term applied to non-pecuniary damages or non-economic loss suffered as a result of pain, disability, loss of enjoyment and amenities of life, disfigurement or loss of expectation of life.

(b) Aggravated damages: awarded to a plaintiff who suffers increased distress as a result of the manner in which a defendant behaves when committing the wrong or thereafter.

(c) Exemplary damages: awarded to mark the court's disapproval of the conduct of the defendant and to deter its repetition by the defendant or others.

1. The Commissioner noted that the terms of settlement executed by way of a consent judgment entered in December 2020 includes the following in the Court's orders:

(a) Judgment for the applicant against the first defendant (being the perpetrator / offender) in the sum of $200,000.00 - the judgment sum); and

(b) the offender / first defendant pay the applicant's costs as agreed or assessed.

1. In this regard the Commissioner reiterated their submission that there was no evidence put forward that supported a submission by HBC that the Judgment Sum represented compensation for specific out of pocket expenses or economic loss which was why HBC had only sought victims support by way of a recognitional payment, not financial assistance under the Victims Support Scheme.
2. Reference was also made to the position that the medical legal reports relied upon in the civil proceedings were the same as the medical evidence relied upon in the Victims Support application.
3. In closing on this point the Commissioner made the following written submission:

29. In circumstances where the amount approved by the court well exceeds the amount that may be approved in respect of an act of violence under the Victims Rights and Support Act 2013 (NSW), the respondent submits that a recognition payment should not be approved (or otherwise reduced to nil) and the application for a recognition payment should be dismissed.

30. The respondent submits that the approach is consistent with the purpose of and context of the provision as set out above.

1. The Commissioner also referred to the High Court case of Brown (Victims Compensation Fund Corporation v Brown [2003] HCA 54) which is often referred to in order to both support the argument that the legislation is beneficial to claimants, but also to submit that such benefits have limitations and are not open ended.

1. HBC's position is that the delegate in a blanket approach dismissed the claim because in their view s 44 (4) was enlivened. Their complaint being that they did not have proper regard to the Court award but essentially the existence of the award effectively disentitled HBC to any recognition payment by way of victims support.
2. In addition to this position, they submit that the Court settlement provided different remedies to those available under the Victims Support Scheme. In essence the components of the $200,000.00 entitlement sum were not in recognition of what the perpetrator had done, but were an amalgam of tortious injury, loss and damages (in addition to costs).
3. HBC essentially argues that there is little if any relationship between the two claimed remedies, one pleaded in the Statement of Claim and one set out in the application for Victims Support seeking a recognition payment.
4. I note that the Tribunal examined s 44 (4) in the case of FRG v Commissioner of Victims Rights [2023] NSWCATAD 195. The relevant paragraphs are set out at [30] above.
5. I also note that HBC submitted that the approach in Saleh should be applied from the equivalent provisions in the former Act to the current Victims Act. It was submitted that the Tribunal decision in FRL was authority for following Saleh in respect of applying the relevant consideration to the current Victims Act.
6. Like other claimants before the Tribunal in respect of the Victims Act and either s 44 or s 25, HBC submitted that FRL is authority for a claimant being awarded a recognition payment under the Victims Act even if they have received or are eligible to receive other compensation. In this case the argument being that HBC has received funds, which I note they appropriately disclosed in their application to the Commissioner for Victims Support.
7. I note that the Commissioner has often submitted in relevant matters that the Tribunal had previously found that the operation of s 44 (4) has the intention of preventing double dipping.
8. I also note that in one of the lead cases on statutory interpretation Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 it was observed 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.

1. In this context the question is can the words of s 44 (4) of the Victims Act be read to make HBC eligible for any victims support.
2. In the case of GDM the Tribunal addressed the issue of the words of a section of the Victims Act in a similar but not identical context. When looking at s 25 of the Victims Act in GDM the Tribunal noted at [48] to [57] that:

48. ... 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.

49. 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)

50. 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).

51. 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. ...

52. 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.

53. 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.

54. 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.

55. 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.

56. 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.

57. 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.

1. Detailed discussion also occurred in GDM on the concept of a taxpayer funded scheme being a scheme of last resort to assist victims of crime. At [62] to [64] the Tribunal discussed these issues which in my view are equally applicable to s 44 (4) of the Victims Act. The Tribunal observed that:

62. 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 s 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.

63. 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.

64. 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).

1. In GDM the Tribunal then goes on to consider s 44 of the Victims Act and examines the very point in issue in these proceedings. At [65] the Tribunal observes:

65. 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.

66. It is clear from 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.

67. 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.

1. The Tribunal in GDM also addressed the issue of what exactly was the purpose, basis and policy context of the concept of recognition payments as they now sit in the statutory Victims Support Scheme. At [73] of GDM the Tribunal went on to observe that:

73. 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 replaced 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.).

74. 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.

75. 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.

76. 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.

77. What can be gleaned from this?

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

78. 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 replaced 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.).

79. 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.

1. In my view it is clear that HBC sued civilly and succeeded in their claim based on childhood sexual assault occasioned by the perpetrator. It is also clear that their Victims Support application was as a result of the same terrible wrong that was committed against HBC as a child, in a context of previous trust and support. Confronting, distressing and difficult as these matters may be to discuss it is necessary to find that both sets of proceedings, those before the Supreme Court and those before the Tribunal, are solely as a result of what the perpetrator carried out - including the impact that it had on HBC.
2. I note that for the matters summarised at [60] the Victims Act has its own statutory language and phrase for these matters being 'act of violence' which is set out 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.

1. In my view both claims are essentially triggered or dependent on the act(s) of violence and both require evidentiary satisfaction of those facts or elements of the act of violence (even by way of admission of the perpetrator without proceedings to a finding in the civil proceedings).
2. If this is the case then the provisions of s 44 (4) come into play as a matter of clear statutory language. The relevant part summarised are:

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.

(emphasis added)

1. Standing in the shoes of the Commissioner conducting a merits review I find that HBC is the victim of an act of violence and that they have traversed the provisions of s 39 of the Victims Act.
2. Whilst they have also traversed s 25 of the Victims Act in that they are eligible, I find for all of the reasons outlined above that there are relevant s 44 issues to consider. Specifically s 44 (4) of the Victims Act.
3. Having considered the statement of claim I note that HBC claimed damages at paragraph 22. of the pleadings and particularised injured. I also note that they particularised disabilities arising from those injuries and impairments. Specifically at paragraph 29. past and future general damages are claimed and at paragraph 30. aggravated and exemplary damages are claimed.
4. The General Consent Judgment ordered 21 December 2020 gives judgment for HBC against the first defendant in the sum of $200,000.00 ('Judgment sum'). Having regard to the pleadings it is clear that the payment is a settlement of the claim as summarised at [66] above.
5. I note that the evidence to establish the criminal behaviour of the perpetrator is essentially the same or similar in both claims being Police reports / COPS Events beginning in 2016 and Court material from 2017.
6. In addition, as previously noted the medical material relied upon by HBC in their victims support application was prepared to prosecute the pleadings in their civil claim before the Supreme Court. Whilst that matter did not proceed to trial and the evidence was not tested, it was accepted in the settlement having regard to the detailed nature of the pleadings at paragraph 22 of the Statement of Claim.
7. Having regard to all of these matters, and noting the reference to recognition payment at the conclusion of s 44 (4) of the Victims Act, the civil proceedings are clearly captured by HBC's current application for a recognition payment.
8. In making this finding I note that even with the shift from a 'compensatory' system to a 'support and rehabilitation' and now a 'recognition' victims of crime scheme, the relevant parts of the statutory threshold for initial eligibility for all remedies, whether an act of violence occurs, remains in near identical terms. Clearly the view of the Parliament is to provide remedies, however expressed, for persons who suffer violent assaults in New South Wales whereby they sustain injury. For those reasons in addition to the background to the litigation and this application, there is clear overlap between the two claims.
9. Noting the statutory language, the judicial and Tribunal and Parliamentary references to the scheme being a scheme of last resort, it seems appropriate to quantify the potential recognition payment against the payment received elsewhere for the same act of violence.
10. HBC received an amount greater than $180,000.00 and potentially less than $200,000.00 after solicitor client costs were factored in as the costs order appeared to be party / party costs only.
11. On my assessment HBC has a preliminary entitlement to a Category B Recognition payment in accordance with s 35 (2) (b) of the Victims, Act, and I so find.
12. However, applying s 44 (4) of the Victims Act, consistent with the matters detailed above, I determine that in approving a recognition payment to HBC based on the evidence before the Tribunal, the amount of recognition payment that is to be paid to HBC should be reduced to nil and I so find.
13. In concluding, I find that HBC is the victim of an act of violence in that they were assaulted on multiple occasions when in a vulnerable situation and have suffered injury as a result.
14. Whilst I have determined that HBC's Category B Recognition payment has been reduced from $10,000.00 to nil, I find that HBC as an eligible victim of crime is entitled to apply for approved counselling under the Victims Support Scheme, as that provision is not effected by the provisions of 44 (4) of the Victims Act which only concerns financial support or recognition payments.

1. Based on the findings that I have made above, and noting that this application and the decision of the delegates only concern an application for a recognition payment, in accordance with s 43 (1) of the Victims Act, there was a practical reduction of Victims Support to nil, rather than a disentitlement to victims support, in a practical sense this is not the giving of victims support as described in s 43 (1) (a). I therefore must in accordance with s 43 (1) (b) of the Victims Act, dismiss the application.
2. In addition, in dismissing 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.

1. As it is open to the Tribunal to affirm the decision of the respondent dated 7 May 2025 under the ADR Act because of the practical finding that I have made, it would also be appropriate to otherwise dismiss the application.
2. I therefore make the following orders.

(1) The decision of the respondent dated 6 May 2025 is affirmed.

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.