HCA v Commissioner of Victims Rights [2025] NSWCATAD 231;

1. In the first of the applications for victims support, on 31 October 2024 an Assessor (Client Claims) issued a Notice of Decision which determined that HCA was a primary victim of an act of violence that occurred on 24 November 2022. The Assessor approved a Category D recognition payment on the basis that HCA was the victim of an assault occasioning actual bodily harm.
2. In the second application for victims support, on 9 May 2025 as Assessor (Client Claims) issued a Notice of Decision which determined that the application related to the same act of violence as the previous application. The application was dismissed as a duplicate application.
3. I note that the decisions were emailed to HCA under cover of letters from the respondent dated 31 October 2024 & 9 May 2025, respectively. I am therefore satisfied that the decisions were served as required by the Act.

1. On 9 May 2024, HCA advised the respondent that she intended to apply for an internal review of the first decision, but that she lodged an incorrect form and set it to an incorrect address and the respondent did not receive it. However, she did not seek an internal review of the second decision.
2. The respondent declined to conduct an internal review of the first decision on the basis that the application was made out of time.

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

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

(a) any relevant factual material,

(b) any applicable written or unwritten law.

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

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. On 29 May 2025, the Tribunal received the current application for administrative review, which raised a single issue-namely that the Local Court documents indicated that the offender was charged with assault occasioning grievous bodily harm and the decision failed to reflect this.

1. The matter came before me for directions on 20 June 2025, at which time HCA appeared in person and Ms K Douch, Victims Services, appeared for the respondent.
2. The Tribunal noted that the application was lodged out of time, which required an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The respondent did not oppose an extension of time and I made an order under s 41 extending the time for filing the application to the date it was filed. I also set a timetable for the filing and service of evidence and submissions and listed the matter for a hearing, by way of audio-visual link on 15 August 225.

1. The matter came before me for hearing on 15 August. HCA was self-represented and Ms P Srikanth, Victims Services, appeared for the respondent.

1. HCA argued that the offender was charged with and convicted of assault occasioning grievous bodily harm and she referred to the Local Court's Result Sheet from the criminal proceedings (filed with the current application).
2. However, I note that the Result Sheet indicates that the offender was charged with assault occasioning actual bodily harm and pleaded guilty to that charge.
3. In any event, this is not determinative regarding the appropriate category of recognition payment, as this Tribunal is not bound by the charges laid and conviction entered by the Local Court.
4. Given the lack of evidence in HCA's case, it was necessary to obtain further information from her regarding the impact that the act of violence had upon her life.
5. Most of the documents in the Respondent's s 58 bundle relate to HCA's pre-existing mental health issues.
6. I note that following the act of violence, HCA presented to the (Name provided) Regional Hospital, with contusions to the left side of her head and a cut to the right side of her cheek, as a result of being hit with a fencing sword. This apparently caused a scar located approximately 5cm below the left eye.
7. HCA told the Tribunal that she was no longer having any treatment from a psychologist and she had last seen a practitioner about one month previously. She also stated that while she is not having ongoing treatment for her psychological condition, the offender lives very close to her (in the same street) and she feels afraid to be outside as a result of the assault. She also stated that she has had thoughts of harming the offender and that she believed that she left her body briefly after the assault and that she thought she was going to die. However, there is no medical evidence that records these matters.

1. The Respondent filed written submissions, which argued to the effect that the correct and preferable decision is to affirm the decision under review.
2. The Respondent stated that the Tribunal has considered the meaning of "grievous bodily harm" on various occasions and has been guided by the commentary in Haoui v Regina [2008] NSWCCA 209. Relevantly, Justice Beazley (as her Honour then was) stated:

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. The Respondent stated that it is apparent that grievous bodily harm involves a higher threshold than actual bodily harm. The threshold for actual bodily harm in respect of psychological injury was further considered in the matter of Shu Qiang Li v R [2005] NSWCCA 442 at [45]:

A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R v Lardner, unreported, NSWCCA, 10 September 1998).

1. The respondent conceded that the act of violence caused an aggravation or exacerbation of HCA's pre-existing psychological condition. In the written submissions, the Respondent stated that the Tribunal has previously found:

(1) In the case of BXB v Commissioner for Victims Rights [2015] NSWCATAD 173, there was evidence that the applicant was undergoing counselling and treatment by way of prescription medicine. However, despite noting that the impacts of the act of violence were quite devasting, the Tribunal did not find grievous bodily harm in the absence of a psychological report from a clinical psychologist or psychiatrist's report that established: (a) a serious psychological or psychiatric condition, (b) that arose as a direct result of the violence, and (c) had a debilitating and serious long-term impact on the applicant.

(2) In the case of EMT v Commissioner of Victims Rights [2021] NSWCATAD 39, despite the treating general practitioner opining that the applicant suffered post-traumatic stress disorder and prescribing medication for anxiety, neither the psychologist nor the mental health social worker formally diagnosed PTSD. The Tribunal was not satisfied that the evidence provided a safe climate for accepting a diagnosis of PTSD as a result of the act of violence. Further, the Tribunal was not satisfied that the psychological injury could properly be considered a "really serious" injury and approved a Category D recognition payment.

(3) In the matter of CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, the Tribunal accepted that the act of violence had a significant impact upon the applicant and that the applicant required psychological treatment for her depressive disorder and symptoms of post-traumatic stress. However, there was no evidence before the Tribunal that supported a finding that the applicant's condition required either treatment by a specialist psychiatrist or medication. It was further noted that the treating psychologist referred to symptoms of post-traumatic stress, but did not formally diagnose a post-traumatic stress disorder. Further, based on the available evidence, the Tribunal was not satisfied that the applicant's injury could be considered "really serious" and approved a Category D payment.

(4) In the matter of FQR v Commissioner of Victims Rights [2023] NSWCATAD 66, the applicant reported experiencing various symptoms including severe anxiety, nightmares, memory and concentration problems, self-doubt and low self-esteem, hyper-vigilance, agoraphobia and avoidance behaviour and was given a provisional diagnosis of post-traumatic stress by a Mental Health Social Worker. This Tribunal was not satisfied on this evidence that the applicant suffered grievous bodily harm, noting the absence of evidence in respect of the impact of the symptoms on the applicant's day-to-day functioning and evidence from a medical practitioner or psychologist.

(5) In the matter of FNA v Commissioner of Victims' Rights [2022] NSWCATAD 388, the Tribunal considered whether the applicant had suffered grievous bodily harm for the purpose of considering an extension of time. In this matter this applicant suffered physical injuries (being two lost teeth) and was diagnosed with adjustment disorder by his GP. In relation to the adjustment disorder, there was no evidence that the applicant required or received any treatment from either a psychiatrist or psychologist. On that basis, the Tribunal was not satisfised that the available evidence provided a safe climate for a finding that the applicant suffered grievous bodily harm.

1. The Respondent noted that HCA's medical evidence comprises a Certificate of Injury dated 9 June 2024, which indicates that the applicant first presented for counselling on 31 August 2023, about nine months after the act of violence. The counsellor noted that HCA presented with symptoms that could be consistent with a provisional diagnosis of post-traumatic stress. The certificate notes that the act of violence may have aggravated her pre-existing condition of Borderline Personality Disorder.
2. HCA also relied upon a Discharge Summary from the Hospital's Emergency Department on 25 November 2022, which found no evidence of visual changes, significant headaches, vomiting or dizziness. The Summary concluded that HCA "had a history of absconding and would be offered drugs and alcohol support in the Community Health setting." Further, during a follow up phone call with the nursing staff on 13 December 2022, HCA was "orientated and cheerful, requesting to see a psychologist first and see her GP before "departing on the AOD journey"." The remainder of the clinical notes relate to HCA's mental health struggles due to life being overwhelming and a lack of support.
3. The respondent argued that while HCA continues to experience mental health challenges and has sought intermittent assistance, she has not been diagnosed with a psychological or psychiatric condition related to the act of violence and there is no evidence that she has been referred to a suitably qualified specialist practitioner for diagnosis or treatment as a direct consequence or otherwise.
4. In the absence of a formal diagnosis, limited information regarding the impact of the act of violence on the HCA's daily functioning, and no medical evidence of treatment by way of prescription medication for psychological injuries arising as a direct result of the act of violence, the respondent was not satisfied that the available evidence verifies the injuries sustained meet the threshold of grievous bodily harm.

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

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

"Act of violence" is defined in s 19(1) of the Act as follows (relevantly):

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

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

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

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

1. Section 20(1) of the Act defines "primary victim" as follows:

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

1. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) the Court of Appeal (McDougall J, Bell & McColl JJA agreeing) stated, relevantly:

Discharge of the burden of proof: the relevant principles

44 A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

45 Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 - 162, and Mason J (with whom Brennan J agreed) in the same case at 168.

46 It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.

47 In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

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

1. I am bound by the Court of Appeal's decision in Nguyen and for HCA to succeed in her application for administrative review, I must consider the relevant probabilities of the alleged events having occurred or not occurred and I must feel a sense of actual persuasion that it occurred in the manner alleged.
2. I am satisfied that HCA was the primary victim of an act of violence in the nature of an assault and that this caused an aggravation of her pre-existing psychological condition. Therefore, I am satisfied that the provisions of ss 19 and 20 of the Act have been satisfied.
3. However, based on the medical evidence that is before me, I am not satisfied that the assault resulted in grievous bodily harm. In particular, while the Certificate of Injury indicates that HCA presented with some symptoms of post-traumatic stress, there is no evidence that she was formally diagnosed with a post-traumatic stress disorder that required referral to a specialist psychiatrist for treatment.
4. For these reasons, I am satisfied that the act of violence in 2022 was in the nature of an assault that occasioned actual bodily harm and that a Category D recognition payment is appropriate.

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.