FBM v Commissioner of Victims Rights [2022] NSWCATAD 30

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FBM v Commissioner of Victims Rights [2022] NSWCATAD 30 Hearing dates: 21 January 2022 Date of orders: 27 January 2022 Decision date: 27 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. The decision of the respondent dated 1 March 2021 is set aside and I make the following decision by way of substitution: (a) FBM is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Act. (b) FBM was the victim of a sexual assault other than one referred to in ss (2)(b) of the Act. (c) But for the approval of victims support made in matter no. 304414, FBM would have been eligible for a category C recognition payment under s 35(3)(c) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 in respect of this act of violence. (d) However, as FBM has previously received a category B recognition payment of $10,000, on the basis that this act of violence and that in claim no. 304414 were "related acts", she has no further entitlement to victims support in the form of a recognition payment in respect of this act of violence. Catchwords: ADMINISTRATIVE LAW – Victims rights and support - Recognition – sexual assault – whether act of violence established on the balance of probabilities – contents of medical notes to be approached with care – Applicant previously received a category B recognition payment on the basis that she was the victim of related acts of violence – No further entitlement to a recognition payment Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Decisions Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Rights and Support Regulation 2019 (NSW) Civil Liability Act 2002 (NSW) Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; (1990) 64 ALJR 316; 105 ALR 51; 19 ALR 607; 13 ALR 447; (1990) Aust Torts Reports ¶81–022; [1990] HCA 20 Mason v Demasi [2009] NSWCA 227 Category: Principal judgment Parties: FBM – Applicant Commissioner of Victims Rights – Respondent Representation: Solicitors: FBM - (Applicant Self-represented)) Victims Services (Respondent) File Number(s): 2021/00214070 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons