AXK v Victims Compensation Fund Corporation [2014] NSWCATAD 106

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AXK v Victims Compensation Fund Corporation [2014] NSWCATAD 106 Hearing dates: 30 April 2014 Decision date: 23 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy, LCM, Deputy President Decision: 1. The determination of the compensation assessor that the applicant's application for compensation is dismissed, is affirmed. 2. The applicant is awarded costs of $1500. Catchwords: VICTIMS COMPENSATION -whether, on the balance of probabilities, an "act of violence" occurred Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Support and Rehabilitation Rule 1997 Category: Principal judgment Parties: AXK v Victims Compensation Fund Corporation Representation: Counsel M Langenheim (Applicant) File Number(s): 137162

reasons for decision 1AXK was seriously injured during a brawl at the Cargo Bar in Darling Harbour, Sydney on 18 December 2010. He broke his jaw in two places and lost two teeth. AXK says that an unknown person punched him in the face. Another witness, JH, says that he saw AXK's head hit a table when a security guard grabbed him and pulled him to the ground. No-one was charged with assaulting AXK. 2AXK applied to Victims Services for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act). That application was refused on 7 March 2013 on the basis that AXK had not proved, on the balance of probabilities, that he had been the victim of an act of violence. Rather, the assessor concluded that AXK's injuries had resulted from 'an unfortunate accident'. AXK appealed to the Tribunal against that decision: s 36(2). The Tribunal may affirm or set aside any determination of a compensation assessor: Old Act, s 38(5). 3A hearing was held in this matter because the Tribunal was satisfied that it could not properly determine the matter without a hearing: Old Act, s 38(2). The Tribunal granted leave to hear new evidence, namely oral evidence from AXK, because it considered that special grounds existed. Those grounds were that there was a significant conflict between AXK's version of events and those of other witnesses. It was in the interests of justice that AXK's version be tested in a hearing. No other witness to this incident gave oral evidence.