HCO v Commissioner of Victims Rights [2025] NSWCATAD 321;

1. The Applicant is a 35-year-old woman who is dying of metastatic breast cancer. On 9 May 2024, the Applicant lodged an application for victims support under the VSR Act. In the application, the Applicant alleged that she was assaulted by her brother on 29 September 2023 and fractured her hip as a result of the assault.
2. On 18 July 2024, the Assessor decided the Applicant was not eligible for a recognition payment ('the Assessor's decision'). The Assessor considered the following documentary evidence:

(1) NSW Court Records which indicate that a Final Apprehended Violence Order was made on 4 October 2023. The Order identifies the Applicant as the person in need of protection and her brother as the defendant.

(2) A Discharge Referral from a hospital where the Applicant was an inpatient between 2 October 2023 and 17 October 2023. It records that the Applicant presented with right hip pain on 2 October 2023 and was diagnosed with a right femoral neck stress fracture which required surgery to repair.

1. The Assessor's decision was that the Applicant was not eligible for a recognition payment because the Applicant had not provided a medical report verifying that she was injured as a result of the act of the violence. The Assessor noted that the medical evidence did not refer to the cause of the Applicant's injury.
2. The Assessor's decision notified the Applicant that she had 90 days to apply for internal review. The Applicant did not apply for internal review of the Assessor's decision.
3. On 11 June 2025, the Applicant applied to the Tribunal for administrative review of the Assessor's decision.
4. When the matter came before this Tribunal for directions, the Tribunal made an order that disclosure of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ('CAT Act'). The parties agreed that a preliminary issue that arose for determination was whether the Tribunal had jurisdiction to determine the application.
5. The parties agreed that the matter be listed for hearing on 21 November 2025 on the basis that if the jurisdictional issue was resolved in favour of the Applicant, the Tribunal would proceed to hear evidence and argument on the substantive question of whether the Applicant is entitled to a recognition payment as a primary victim of an act of violence.

1. The Applicant filed an application for review on 11 June 2025. On 16 October 2025, the Applicant's representative filed submissions on the jurisdictional issue and the substantive issue. On the same date, the Applicant also filed a bundle of documents ('the Applicant's bundle') comprising of:

(1) An email from a caseworker at Illawarra Women's Health Centre, dated 30 July 2025.

(2) Medical records relating to the Applicant's admission to a [named] hospital between 2 October 2023 and 17 October 2023.

(3) Statutory declaration of the Applicant dated 15 October 2025.

(4) Statutory declaration of the Applicant's mother, dated 15 October 2025.

1. The Respondent relied upon the bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (NSW) ('ADR Act') on 31 July 2025 and the submissions filed on 14 November 2025. The Respondent's submissions were confined to the substantive issues and did not address the jurisdictional issue.
2. The representatives for the Respondent and the Applicant made oral submissions at the hearing on 21 November 2025. The Applicant did not seek to give evidence but relied upon the written evidence and submissions filed by her representative. The Respondent did not seek to cross-examine the Applicant.

1. The first issue that requires resolution is whether the Tribunal has jurisdiction to determine the application for administrative review in circumstances where:

(1) The Assessor's decision was not subject to internal review because the Applicant did not apply for internal review within 90 days; and

(2) The Assessor made a decision on 18 July 2024, and the Applicant did not apply for administrative review until 11 June 2025.

1. The ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Section 7 of the ADR Act provides that an administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Section 9 of the ADR Act provides that administrative review jurisdiction is conferred on the Tribunal if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. Section 51 of the VSR 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 finds that the decision of the Assessor for which the review is sought under the ADR Act is an administratively reviewable decision for the purposes of s 9 of the ADR Act. The Tribunal has previously found that the reference in s 51(2) of the VSR Act to 'the decision of the Commissioner' includes, for the purpose of s 9 of the ADR Act, a decision made by the delegate of the Commissioner such as an Assessor: FLI v Commissioner of Victims Rights [2022] NSWCATAD 281 at [75].
2. Section 55(4)(b) of the ADR Act relevantly provides that:

(4) ...the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

....

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

1. Having found the decision of the Assessor is an administratively reviewable decision, the Tribunal has considered whether it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests and whether the application was made in a reasonable time.
2. The evidence before the Tribunal indicates that at the time of the Assessor's decision:

(1) The Applicant was living with and managing treatment for metastatic breast cancer as well as other physical and mental health conditions during the relevant period.

(2) The Applicant was profoundly affected by the death of her son in a car accident in July 2024.

(3) The Applicant was caring for her mother who also had cancer throughout the relevant period.

1. The evidence filed by the Applicant identifies further circumstances, which are unnecessary to describe in any detail here, concerning the care of the Applicant's children, domestic violence the Applicant experienced from her ex-partner, legal proceedings relating to her ex-partner and her children, and ongoing experiences of domestic violence.
2. The Tribunal accepts, based on the evidence filed by the Applicant, that there was a delay in the Applicant obtaining legal advice. The Tribunal accepts that upon receiving legal advice, the Applicant promptly made this application for administrative review.
3. Having regard to the particular and tragic circumstances of this case, the Tribunal is satisfied that the application was made in a reasonable time.
4. In her statutory declaration dated 15 October 2025 the Applicant states that she has brought the application because she wants justice and closure, to make memories with her kids before she dies, and have some money for her funeral. She has been told by her doctors she has around three months to live.
5. Having regard to the evidence before it, the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests and that the application was made within a reasonable time. At the hearing, the Tribunal made orders that Applicant have leave to file the application under s 55(4)(b) of the ADR Act.
6. The role of the Tribunal
7. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the ADR Act. The Tribunal is to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.
8. The Tribunal may decide to affirm the decision under review, vary the decision under review, set aside the decision under review and make a decision in substitution for the decision it set aside, or set aside the decision under review and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3).

1. It is not in dispute that the Applicant was a primary victim of an act of violence on 23 September 2023. However, to access victim support in the form of a recognition payment, the documentary requirements in s 39(2)(b) of the VSR Act must be satisfied. Where the parties differ in this case is with respect to the question of whether the documentary evidence before the Tribunal is sufficient to verify that the Applicant has actually been injured as a result of the act of violence.
2. The issue for determination is whether the documentary evidence is sufficient to verify that the Applicant was actually injured as a result of an act of violence, as required by s 39(2)(b)(ii) of the VSR Act.

1. The VSR Act sets out eligibility criteria for victims of acts of violence to receive different types of support and assistance. This review concerns a recognition payment, which is a payment made in recognition of the trauma suffered by a victim of an act of violence: VSR Act s 34.
2. Section 5 of the VSR Act provides:

5 Meaning of "victim of crime"

(1) For this Act, 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) a criminal offence, including a criminal offence involving a motor vehicle, or

(b) conduct of a kind referred to in the Modern Slavery Act 2018, section 5(1), definition of modern slavery, paragraph (b).

(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

...

1. Section 17(a) of the VSR Act provides that the object of Part 4 'Victims Support Scheme' of the VSR Act is to provide support for victims of acts of violence.
2. 'Act of violence' is defined in s 19 of the VSR Act, 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.

(3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

1. Section 18 of the VSR Act defines injury as follows: 'injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property'.
2. Section 20 of the VSR Act provides that a primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.
3. Section 23(1) of the VSR 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 VSR Act. A primary victim of an act of violence, or somebody acting on their behalf, may apply for a recognition payment in recognition of the trauma suffered: s 38 of the VSR Act.
4. To access a recognition payment, the applicant must submit documentary evidence as required by s 39 of the VSR Act. Section 39 provides:

39 Documentary evidence

(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:

...

(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 or act of modern slavery, 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 or act of modern slavery.

(Emphasis added)

1. The category of recognition payment payable depends on the nature of the act of violence. Section 35 of the VRS Act provides for the following categories of recognition payment:

35 Categories of recognition payment

(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 -

(a) sexual touching or sexual act,

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

(c) a robbery involving violence,

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

1. Section 36 of the VRS Act provides for the payment of recognition payments and r 14 of the Victims Rights and Support Regulation 2019 (NSW) prescribes the amounts payable.

1. The Applicant submits that the police records support the claim that, on 29 September 2023, the Applicant was assaulted by her brother. A final Apprehended Violence Protection order was made on 4 October 2023. The Applicant submits that the documentary evidence is sufficient for the Tribunal to be satisfied that the Applicant was injured by the assault, physically and psychologically.
2. In her statutory declaration the Applicant states she was 'pushed' and spat on by her brother at her home. The Applicant continues:

Police were called and attended the scene, and I told them about the assault. I noticed pain in my hip at the time, but the cancer in my spine and back, my chemotherapy treatment, my strong medication and my kidney problems meant that I had lots of pain and numbing around my body, so this new pain wasn't on the front of my mind while dealing with the assault and police. I was in a state of shock and not fully thinking or talking clearly, so I didn't mention it to the police. I had to walk up and down the steps to speak to the police and to help look after my children. My main priority was to keep my kids safe.

The next morning, I notice my hip pain had gotten worse than it was the day before. Over the next few days, my hip pain became worse, but I was looking after my three children, so I was trying to manage it at home. When the pain became overwhelming, I called the ambulance and was admitted to hospital.

1. It is not in dispute that at the hospital the Applicant denied that the hip injury was caused by trauma or a fall. However, in her statutory declaration the Applicant stated that:

I was there to get treated for my injuries and I wasn't fully mentally there. I was just trying to get better and not thinking about what my failure to mention the cause of the injury would mean for the future. Also, I didn't want my brother to get in trouble or go to jail, because he was already in trouble...

1. The Applicant's representative submits that the Applicant's evidence about why she did not mention the cause of her injury in hospital is consistent with police records, which indicate that on 29 September 2023 the Applicant told police that she did not want to make a statement because she did not want her brother to be arrested or to get in trouble.
2. The hospital records indicate that on 2 October 2023, the Applicant reported that her hip pain had been worsening for two days. On 3 October 2023 progress notes indicate the Applicant told the hospital her pain began 'a few days ago.' Given the timing of events, the Applicant's position is that it can be inferred that the hip fracture that was identified following the Applicant's presentation at hospital on 2 October 2023 was caused by the assault on 29 September 2023.
3. The Applicant also submits that the hospital records indicate that the Applicant was psychologically distressed following the assault. In this respect, the hospital records indicate that on 10 October 2023, the Applicant disclosed suicidal thoughts, but later denied these thoughts, and that she received psychotherapy as a result.
4. The Applicant's representative submitted that the Applicant is entitled to a category D recognition payment under s 36(1)(e) of the VRS Act.

1. The Respondent's position is that while it is not in dispute that the Applicant was the primary victim of an act of violence when she was assaulted by her brother, the Applicant has not provided any medical, counselling or dental reports which verify that she was injured as a result of that act. Therefore, the documentary evidence requirements for approval of a recognition payment have not been met.
2. With respect to the medical records before the Tribunal, the Respondent submits:

(1) It is not in dispute that the Applicant was a victim of an act of violence, and it is accepted on the balance of probabilities that the Applicant suffered 'some form of injury' as a result of the assault.

(2) It is not in dispute that the Applicant suffered an incomplete transverse fracture of the right femoral neck in the days following the act of violence.

(3) The Applicant did not seek medical assistance until 2 October 2023, three days after the assault on 29 September 2023.

(4) While medical records note several instances of the Applicant complaining of significant pain to her hip region leading to the diagnosis of an incomplete transverse femoral neck fracture, there is no particularisation of how this injury was caused.

(5) The Applicant continued with her daily life chores in the days following the reported assault by her brother, including caring for her young children, her mother, and walking downstairs.

(6) Noting the lack of direct causation of the injury to the assault in any of the medical reports and the number of health factors already present in the Applicant's life, any number of her health issues could have caused the fracture.

(7) The medical evidence fails to verify that the Applicant sustained a fracture to her hip as a result of the act of violence as required by s 39(2)(b)(ii).

1. It is not in dispute that the Applicant was a victim of an act of violence. For the Applicant to access support in the form of a recognition payment, the Applicant must meet the requirements for documentary evidence set out in s 39(2)(b) of the VSR Act.

1. NSW Court records indicate a Final Apprehended Violence Protection order was made on 4 October 2023. The order identifies the Applicant as the person in need of protection and her brother as the defendant. According to the application for the Final Apprehended Violence Protection order:

(1) Upon arriving at the premises, the police spoke to the alleged offender before entering the premises where they observed the Applicant walk down the stairs.

(2) The Applicant told the police that 'he hit me and put a fist at me'. The Applicant later told the police the alleged offender 'spat at her multiple times and pushed her'.

(3) The Applicant told police she didn't want the alleged offender to get in trouble, but she wanted him to 'say sorry for abusing us because he lost his f**king drugs. There is no f**king need to do that in front my children. He has f***king smashed all the furniture around'.

1. The medical records in this case comprise a discharge referral from a hospital, which was before the Assessor, and hospital records for the period in which the Applicant was an inpatient at a [named] Hospital between 2 October 2023 and 17 October 2023, which were filed by the Applicant before the Tribunal.
2. The Discharge referral from the Hospital records that:

(1) The Applicant was an inpatient at the hospital between 2 October 2023 and 17 October 2023.

(2) The Applicant presented with right hip pain and was diagnosed with an incomplete transverse fracture of the femoral neck which required surgery to repair.

1. The in-patient hospital records indicate that on 2 October 2023 the Applicant presented 'with R hip pain & upper leg pain' and reported 'worsening R hip pain over the past 2 days, '[a]ttempted to mobile with SPS with some success yesterday but significant pain and inability to mobilise/weight bear today'. On 3 October 2023, a progress note reports the pain '[f]irst started a few days ago at this severity'. The in-patient hospital records also indicate that on 10 October 2023, the Applicant disclosed suicidal thoughts but later denied this to the treating team.

1. To be eligible for a recognition payment, an applicant must provide a medical, dental or counselling report verifying that the applicant who is the primary victim has actually been injured as a result of the act of violence. In s 39(2)(b)(ii) the words 'as a result of an act of violence' refer to the 'act of violence' upon which the claim for a recognition payment is being assessed is based.
2. The Tribunal accepts that the medical evidence indicates that the Applicant experienced worsening hip pain in the days following the act of violence on 29 September 2023 and that the Applicant was admitted to hospital on 2 October 2023 with right hip pain. It is not in dispute that, following her admission to hospital, the applicant was diagnosed with an incomplete transverse fracture of the right femoral neck.
3. In oral submissions, the Respondent conceded that if the Applicant had attended hospital immediately after the act of violence, that is on 29 September 2023, the Respondent would consider the medical reports sufficient to verify that the injury was the result of the act of violence. However, the Respondent's position was that, having regard to the passage of time between the act of violence on 29 September 2023 and the Applicant's admission of hospital on 2 October 2023 and the possibility that the fracture had other causes, the medical evidence was insufficient to verify that the applicant sustained a fracture to her hip as a result of the act of violence as required by s 39(2)(b)(ii) of the VRS Act.
4. The Respondent submits that the medical records indicate that following her admission to hospital the Applicant denied the hip pain was caused by trauma and falling. However, having considered the Applicant's statements to the police that she did not want her brother to get in trouble and did not want to make a police statement as well as her evidence about why she did not refer to the incident on 29 September 2023 when she was admitted hospital, the Tribunal accepts the submission that the Applicant has a plausible explanation for not disclosing that her hip pain was caused by the assault when she presented to the hospital.
5. The Tribunal has considered the Respondent's submission that 'any number of the applicant's health issues' could have caused the hip fracture. However, the medical evidence before the Tribunal does not indicate the fracture was caused by a particular pre-existing health issue. To the extent that the Assessor's decision and the Respondent's decision imply that a person with an incomplete femoral neck fracture would be unable to move up and down stairs or walk at the time the injury occurred, this implication is not supported by the medical evidence before the Tribunal.
6. The Tribunal has considered the statutory declarations filed by the Applicant and the Applicant's mother. The Tribunal accepts the Applicant's evidence that she noticed the pain after her brother pushed and assaulted her and that the pain worsened in the days before she presented to hospital. The Tribunal notes that the Respondent did not seek to cross-examine the Applicant on the contents of the statutory declaration she filed with the Tribunal. Nor did the Respondent seek to cross examine the Applicant's mother on the contents of her statutory declaration.
7. The Tribunal accepts that the medical records record that, following her admission to hospital on 2 October 2023, the Applicant reported that her hip pain began 'a few days ago' and had been worsening for two days. The Tribunal notes that the progress notes on the 3 October 2023 also record 'Few day history of acute chronic right lower limb pain'. The Tribunal accepts the Applicant's submission that the medical reports record that the pain began 'a few days ago' is consistent with her claim that the injury occurred as a result of the act of violence and that she presented to hospital after the pain worsened.
8. The purpose of documentary evidence required by s 39(2)(b)(ii) is to provide independent verification sufficient to satisfy the decision-maker that, on the balance of probabilities, the Applicant has actually been injured as a result of the act of violence. The medical reports are not to be considered in a vacuum from the other evidence that is before the Tribunal. The Applicant claims the hip fracture was caused by the act of violence. The Tribunal accepts that the timing of the hospital admission and the medical records about when the pain in the hip began establishes a causal link between the act of violence and the hip fracture. Having regard to the totality of the evidence, the Tribunal is satisfied, on the balance of probabilities, that the medical evidence is sufficient to verify the Applicant's claim that she fractured her hip as a direct result of the act of violence.

1. The Tribunal is satisfied on the balance of probabilities that the Applicant was the primary victim of an act of violence on 29 September 2023, that is due to having been the victim of domestic violence in the nature of assault, and that she suffered an injury as a result. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the medical evidence is sufficient to verify, on the balance of probabilities, that the Applicant was actually injured as a result of the act of violence.
2. Accordingly, the Tribunal is satisfied that the Applicant has established on the balance of probabilities that she was the primary victim of an act of violence that occurred in NSW for the purposes of s 19 and s 20 of the VRS Act. As the Tribunal is satisfied that documentary evidence requirements in s 39 of the VRS Act are met and, in particular, that the medical reports verify that the Applicant was injured as a result of the act of violence, the Applicant is entitled to a recognition payment.

1. The Tribunal now turns to the question of whether the evidence is sufficient to establish a Category C or a Category D recognition payment. For the reasons given above, the Tribunal accepts that the Applicant was a primary victim of an act of violence on 29 September 2023, that is due to having been the victim of domestic violence in the nature of assault and that, as a direct result of the act of violence, the Applicant sustained a hip fracture that required surgery to repair.
2. Section 35(3)(c) of the VSR Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. 'Grievous bodily harm' is not defined in the VRS Act. However, the Tribunal has had regard to the guidance provided in Haoui v Regina [2008] NSWCCA 209 at [138]- [139].
3. During the hearing, the solicitor for the Respondent noted that, if the Tribunal were to determine that the medical evidence was sufficient to be satisfied that the Applicant was a primary victim of an act of violence and entitled to recover a recognition payment, the Applicant would be entitled to a Category C recognition payment, not a Category D recognition payment. The Tribunal accepts this submission.
4. Having regard to its findings of fact, the Tribunal is satisfied that the Applicant is eligible for a Category C recognition payment in the sum of $5,000 pursuant to s 35(3)(c) and s 36(1)(d) of the VSR Act.
5. There is no evidence before the Tribunal that would support a conclusion that the recognition payment for which the Tribunal has found the Applicant is eligible should be reduced or withheld pursuant to s 44 of the VSR Act.

(1) The decision of the Assessor dated 18 July 2024 is set aside.

(2) The Tribunal substitutes a decision that the Applicant is entitled to a Category C recognition payment in the sum of $5,000.

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.