Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AZR v Victims Compensation Fund Corporation [2014] NSWCATAD 143 Hearing dates: On the papers Decision date: 17 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. Pursuant to section 38 (5) (a) of the old Act I set aside the decision of the compensation assessor. 2. Pursuant to section 29 (1) (a) of the old Act I make an award of Statutory Compensation. 3. Pursuant to section 35 (1) of the old Act I make an award for costs. Catchwords: Civil Standard -Pattern of abuse - Victims Compensation Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Cases Cited: Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 Akins v National Australia Bank (1994) 34 NSWLR 155 [at 160] Commonwealth Bank of Australia v Quade [1991] HCA 61 Reifek v McElroy (1965) 112CLR 517 at 521-522 Buckley v Victims Compensation Fund Corporation (2004) NSWSC 513 at [34] Texts Cited: The Australian Concise Oxford Dictionary 3rd Edition Category: Principal judgment Parties: AZR (Appellant) Victims Compensation Fund Corporation- (Respondent) Representation: Kelso's The Law Firm (Appellant) File Number(s): 137299 (decision under appeal 170920) Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). reasons for decision 1AZR claims statutory compensation by way of an application lodged in November 2010, in which she alleges that she suffered a compensable injury as a result of being sexually assaulted (whilst a child) by an acquaintance of her older brother at Warners Bay in the State of New South Wales. 2I note that AZR was represented by Kelso's the Law Firm and continues to be represented for this subsequent appeal. 3On 30 November 2010 AZR submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). 4I note that the application was lodged outside of the statutory period required by section 26 of the old Act. 5The matter was listed for leave to proceed out of time by way of letter dated 7 December 2010. 6On 13 January 2011 leave was granted to proceed outside of the statutory limitation period of 2 years, presumably for the reasons outlined in section 26 (3) (b) of the old Act. 7On 13 September 2011, approval was given for AZR to see an Authorised Report Writer (ARW) for the purpose of establishing evidence of a compensable injury in accordance with Schedule 1 Clause 5 (1) of the old Act. I note that this approval was in respect of this application and a related application by AZR. Consequently AZR's solicitors changed the nominated injuries to Psychological or Psychiatric Disorder, with the initial 'offence based' injuries of sexual assault, now claimed in the alternative on both claims. 8On 6 June 2012 the Tribunal advised AZR's Solicitors that the matter was listed for determination at the first available opportunity on or after the month of September 2012. 9I note that AZR's Solicitors were reminded of the need to ensure that all relevant evidence to establish the claimed compensable injuries must be received prior to the listing date. 10On 30 April 2013, the Compensation Assessor determined that AZR was not entitled to compensation and issued a detailed Notice of Determination under section 29 of the old Act. The Assessor found that there was insufficient evidence that AZR the victim of an act of violence, and dismissed the claim. The Notice of Determination , which was (inter-alia) in the following terms, advised: ...After carefully reading through the material contained in (AZR's) application and file, I am not satisfied there is sufficient evidence to conclude that (AZR) was the primary victim of an act of violence as she asserts in her application form and claim. In this regard I note the alleged historic violence by a nominated young male person has never been reported to Police. The applicant, in her statutory declaration dated 23 May 2012 indicates that she was only assaulted on the one occasion (which appears in conflict with the information contained in the application form and her solicitors submissions that the violence constitutes a pattern of abuse for the purposes of establishing Category 3 sexual assault injury). Whilst I note the reasons detailed in the declaration as to why the applicant does not wish to report this particular 'act of violence' to Police, the onus nevertheless rests with (AZR) to provide sufficient independent and contemporaneous evidence (particularly in the absence of a Police investigation into the allegations) that lends weight and support the assertions made. The lack of independent evidence or Police investigation into the complaints of abuse, together with a lack of a detailed particularised account from the applicant setting out the circumstances in which the assault(s) occurred (ie: times of the year it occurred, what she remembers of the incidents etc.) and the lack of any other independent evidence that clearly sets out disclosures of the applicant pertaining to the violence in question means that even on the balance of probabilities, I do not regard the evidence on file as capable of establishing (AZR) to be the victim of an 'act of violence' in this matter. Grounds of Appeal 11The Notice of Appeal was lodged on 26 July 2013. The Grounds of Appeal are: (1)The Assessor erred in dismissing the application for compensation; (2)The Assessor erred failing to find act of violence; (3)The Assessor did not give proper weight to the circumstances which impeded the Appellant's ability to report this act of violence to police. Particulars of appeal were filed in support of the application. Those particulars amplified the matters outlined in the Grounds of Appeal by way of submissions. Application of the old Act 12On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). 13On 16 August 2013 the Registrar of the ADT wrote to AZR's Solicitors advising them of the matters outlined in paragraph 12 above. 14However, also on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b)) were still in force. 15On 16 October 2013 AZR's Solicitors filed further evidence in support of the appeal. 16On 22 October 2013, the Registrar of ADT wrote to AZR's Solicitors advising them of the ADT's guideline for dealing with the appeal and the opportunity to make final submissions prior to the reserved date of 24 January 2014. 17On 7 November 2013, AZR's Solicitors provided amended Grounds of Appeal. Those amendments only related to the particulars in support of the appeal, and 'pleaded' the 'orders' sought by AZR of the ADT. 18However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 19Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 20As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal and, in doing so, to exercise all the functions that were exercised by the Tribunal immediately before the commencement of the new Act. Decision on the papers 21AZR has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing under section 38(2) of the old Act, pursuant to section 38 (1). 22The practice of the VCT and the practice of this Tribunal is that an appeal can be dealt with on the papers unless there is a significant issue of credibility in respect of the evidence. 23(a) Section 38 (1) of the old Act provides that (1) Except as provided by subsection (2), the Tribunal is to proceed to determine a matter the subject of an appeal or reference to it under this Division without a hearing. (b) Section 38 (2) of the old Act provides that (2) The Tribunal is to conduct a hearing into the matter if the Tribunal is satisfied that it cannot properly determine the matter without a hearing. 24I note that the order of the Section 38 was rearranged by 2010 amendments to the legislation (Courts and Crimes Further Amendment Act 2010) whereby the old section 38 (1) became section 38 (2) and vice versa. In my view this reinforces the presumption that an appeal under the old Act is to proceed without a hearing unless the Tribunal is satisfied that it cannot properly determine the matter without a hearing, whereas prior to December 2010 the Tribunal could conduct a hearing on discretionary grounds. (Emphasis added). 25In this matter I note the significant passage of time since the incidents which are the subject of this application. I also note that notwithstanding the fresh evidence sought to be admitted, the related claim contains the majority of medical evidence dealing with section 5 (1) (c ) of the old Act, and compensable injury, as well as other evidence that goes specifically to section 5(1) (a) and (b) of the old Act. 26I note the evidence that was before the Assessor and the fresh evidence sought to be admitted. (See below). Notwithstanding the fresh evidence, based on the evidence before the Assessor, and the evidence referred to in paragraph 25 (above) administratively placed on the related claim, I am satisfied that I can properly determine the matter on the material before me. I have considered all of the evidence even though I may not specifically refer to all of it in these reasons for decision. Act of violence 27Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that: On the balance of probabilities, that the person to whom the application for that compensation relates: (a) is a primary victim, secondary victim or family victim of an act of violence, and (b) is eligible to receive the amount of compensation provided by the award. 28The onus is on AZR to prove the allegations of act of violence on the balance of probabilities. 29AZR must establish that an act of violence occurred in order to be entitled to compensation. Section 5 of the Act relevantly provides; (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. (1A) 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. (2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary). (3) Except as provided by subsections (3A) and (3B), a series of related acts is two or more acts that are related because: (a) they were committed against the same person, and (b) in the opinion of the Tribunal or compensation assessor: (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (3B) An act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made. (4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. The evidence 30I note the evidence provided by AZR. The evidence consists of the following matters: * Matters declared in her application form, * T the Report of the incident(s) involving this perpetrator (O.C.) as reproduced at the top of page 5 of the ARW report dated 12 December 2011, * AZR's statutory declaration of 2 May 2012 where at paragraph 3 she declares information in respect of the 'O.C.' assault, * The Statutory Declaration of 'A.T.' declared 9 May 2012 at lines 4 and 5 where the allegations concerning 'O.C.' are raised, * The detailed Statutory Declaration of AZR declared 23 May 2012 which deals solely with the allegations concerning 'O.C.'. * The Statutory Declaration of 'G.F' Declared 30 May 2012 at lines three and four where the allegations concerning 'O.C.' are raised. 31I note that much of this material was administratively located on the related file 170655 (VCT Ref). I have already discussed how there was a global ARW covering both claims. In any event it appears that the 23 May 2012 Statutory Declaration of AZR should have perhaps been located on the file dealing with this claim concerning allegations against 'O.C.' Irrespective of this, it appears that the compensation assessor (who determined both claims) read the relevant material concerning 'O.C.' from the related file. This is apparent due to the reference to the conflict in AZR's evidence which the compensation assessor raises in the determination (about the conflict as to whether there was one assault or a pattern of assaults). 32The compensation assessor appears to place significant weight on the lack of reporting to Police, the apparent lack of any contemporaneous reports of the allegations, the lack of 'independent' (presumably non AZR) evidence, and the lack of a 'detailed particularised account from the applicant setting out the circumstances in which the assault(s) occurred, (ie: times of year it occurred, who was present, when it occurred, what she remembers of the incidents etc.) and the lack of any other independent evidence that clearly sets out disclosures of the applicant pertaining to the violence in question ...' . 33I am unsure as to why those matters were deemed necessary by the compensation assessor. Whilst it is for a decision maker to be reasonably satisfied on the available evidence, that it is more likely than not that a specific allegation occurred, the particulars sought (to my mind) appear to go to a higher level requiring corroboration, verification and other levels of substantiation. One only needs to be reasonably satisfied on the available evidence. In this regard there is a large volume of inculpatory evidence and only one inconsistency that could be considered (at it's very highest) a form of exculpatory evidence. 34The information in the Statutory Declarations of G.F. and A.T. provide significant weight to a contemporaneous, or that the very least historical corroboration of allegations being made. I note the age of AZR at the time of the incident, as well as other matters relating to other acts of violence, the family situation at the time, and matters reported and observed by the ARW. 35The onus is on AZR to prove the allegations of act of violence on the balance of probabilities. While the onus on the appellant is the civil standard of the balance of probabilities the following statements of the High Court in Reifek v McElroy (1965) 112CLR 517 at 521-522 apply: The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support a conviction upon a criminal charge. 36I note that the above test was formulated in adversarial proceedings, unlike applications for statutory compensation and subsequent appeals. Whether to receive further evidence 37Section 38 (3) of the old Act provides that the appeal from a determination of a Compensation Assessor is to be determined "on the evidence and material provided to the Assessor". I have read and considered the whole of the evidence before the Assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons. 38Section 38(3) of the old Act provides as follows - "An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against" 39AZR seeks leave for the Tribunal to receive into evidence the following material - A Statutory Declaration by AZR dated 15 October 2013 which goes into more detail addressing section 5. 40The concept of "special grounds" in s 38(3) has been considered in many cases. In Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 Court (Mason P, Sheller JA and Foster AJA) referred with approval to the test laid down for "special grounds" by the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 [at 160]. Clarke JA (with whom Sheller and Powell JJA agreed on this point) said: "Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are; 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; 2. The evidence must be such that there must be a high degree of probability that there would be a different verdict; 3. The evidence must be credible. 41In Wilson v The Prothonatory (2000) NSWCA 23 Heydon JA (with whom Sheller JA agreed) said [at 47]; "The tests (from Akins) are general principles or conditions applying to the generality of cases but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances." See also Commonwealth Bank of Australia v Quaid (1991) 178 CLR 134 at 140]. 42In Victims Compensation Fund Corporation v Sarah Jane Hill the Court of Appeal observed, at [31]; "There appears no reason why those principles should not apply to S38 (3), despite the fact that the appeal to the Tribunal is not an appeal from a court to a court." 43The Court also identified the legislative purpose for s 38(3) - "26 The mischief that led to the enactment of s 38(3) was described by the Attorney General in debate in Committee on the Bill which became the Victims Compensation Act 1996. He explained why the Government opposed certain amendments (which were later rejected in the Legislative Council): The Government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then, after taking advantage of the current right to an appeal de novo to the District Court, introduce a great deal more evidence and produce more extensive material. (Parliamentary Debates, Legislative Council, 15 May 1996)" 44This Tribunal's Victim Support Division: Transitional Appeals: Guideline. A copy of which was sent to AZR's Solicitor, advises that - If a party seeks to rely on new evidence or material that party must either identify the special grounds on which the evidence or material should be received or establish that the evidence or material concerns matters occurring after the determination appealed against. [old Act, s 38(3)] 45This is not an exceptional case, which would justify setting aside one or more of the "special grounds" requirements. The following observation which the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) made in Commonwealth Bank of Australia v Quade [1991] HCA 61, at [6] is apposite - "If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence." Could the evidence have been obtained with reasonable diligence for use at the time of the Assessor's determination? 46In my view, when one has regard to the Assessors Determination the evidence could have been provided earlier. The matters that the Assessor concluded could have been reasonably foreseen by AZR, however I note that the fresh evidence in essence merely amplifies the statutory declarations from AZR and third parties already filed in support of her claims. On this analysis, it could be argued that AZR could not foresee the need for this further evidence prior to the Assessor's determination. Is the evidence credible? 47The evidence is no less credible (on the face of it) than any of the earlier evidence supplied by AZR. Is the evidence likely to result in a different outcome? 48Would it more likely than not it assist in a different outcome if it were received? On my assessment, as outlined above, the fresh evidence 'amplifies the matters relating to section 5, compensable injury, and section 30 (2) of the old Act. I have formed the view after looking at all of the evidence on file, that the fresh evidence is not the basis that this appeal is likely to result in a different outcome for AZR, as nothing of any great import (for reasons which will become self- apparent) turns on it. Therefore in the exercise of my statutory discretion I decline to receive the fresh evidence. 49Based on the definition in the dictionary to the old Act and section 5 (as set out above), and the police and medical evidence on file, as well as other sworn testimony, I am satisfied that the incidents that are described in the Application can properly be determined as an "act of violence" for the purposes of Section 5(1) of the old Act. The term 'offence' is defined in the dictionary to the old Act as 'criminal offence. On the material on the related file the primary victim (AZR) has clearly sustained an injury (section 5 (1) (c) of the old Act) being 'psychological harm' (as defined in the dictionary to the old Act). 50Having considered all of the evidence before the Assessor, I also make a finding that AZR was the victim of an act of violence in accordance with section 5 (1) (a) (b) and (c) of the old Act: Has AZR sustained a compensable injury above the threshold? 51Schedule 1 contains special provisions relating specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. With respect to psychological or psychiatric disorder Clause 5 provides: (1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director. (1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1). (2) The Director may suspend or revoke the designation of a person under subclause (1). (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences: (a) armed robbery, (b) abduction, (c) kidnapping. Psychological or Psychiatric injury 52In respect of the claim for a Category 2 Psychological or Psychiatric Disorder compensable injury, I note the ARW's diagnosis and rating of AZR's level of disability. However that report was also used in respect of the related claim, and contains evidence of other stressor's in AZR's life (including those arising from the incidents of the related claim). Put simply, based on the evidence obtained in the ARW report, it is clear that AZR's overall functioning, condition and level of disability is a culmination of a significant number of stressor from approximately 1979 to date (and possibly prior re: family environment). It is not possible to find that the severe level of disability arises as a direct result of the act of violence, or with any great certainty as a result of the relevant exacerbation, aggravation, deterioration, or amelioration of an existing condition as per Clause 4 of Schedule 1 of the old Act. Even if this was the case (which it is not) there would be a significant reduction on any quotient of statutory compensation available for a Category 2 Psychological or Psychiatric disorder based compensable injury. 'Offence based' injuries - s-11 53I note the other compensable injuries claimed by AZR. I am somewhat uncertain as to why AZR's Solicitors have persisted with a Category 3 Sexual Assault based claim. In order for a Category 3 award to be made, the decision maker must be satisfied that the act of violence involved: * A pattern of abuse involving category 1 or category 2 sexual abuse, * Unlawful sexual intercourse in which serious bodily injury is inflicted, or * Unlawful sexual intercourse in which 2 or more offenders are involved, or * Unlawful sexual intercourse in which the offender uses an offensive weapon. 54The only arguable grounds for a Category 3 award would be that the apparent two incidents (as pleaded in the application form) constitute a pattern of unlawful sexual intercourse, or that the unlawful sexual intercourse by O.C. has resulted in serious bodily injury (ie: the severely disabling psychological or psychiatric condition). 55Neither of these arguments (or any other basis for a Category 3 claim) are made out by the Solicitors. The serious bodily injury prong must fail for the reasons outlined in paragraph 52 above. The 'pattern' argument must also fail, predominately because on the available evidence, the weight of evidence points to only once incident occurring. In any event even if two incidents occurred, on its ordinary meaning, the term pattern does not mean two instances. 56The Australian Concise Oxford Dictionary (3rd Edition) describes pattern relevantly as: 1. a repeated decorative design on wallpaper, cloth, a carpet, etc. 2. A regular or logical form, order, or arrangement of parts. (Emphasis added) The ordinary meaning of pattern indicates that there must be a series of repeated instances, examples etc. For these reasons two similar instances would not, on my assessment constitute a pattern. 57Having regard to the matters contained within the Statutory Declarations of the Applicant, the Solicitors submissions, and noting the age of the victim at the time and the matters in section 30 (2) of the old Act, I determine that there are no relevant section 30 issues. 58Section 14(1) of the old Act provides: (1) The statutory compensation for which a primary victim of an act of violence is eligible comprises: (a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and (b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury. 59The following compensable injuries are present: * Sexual Assault Category 2 - unlawful sexual intercourse. Conclusion 60I make the following orders: (1)Pursuant to section 38 (5) of the old Act, I set aside the decision of the compensation assessor. (2)I make an award of statutory compensation for Category 2 Sexual assault in the sum of $15,000.00 (3)I make an award for costs under section 35 (1) in the sum of: $500.00 plus GST if applicable. 61Section 19A deduction from all awards of statutory compensation less than $20,001.00 - thus $14,250.00 statutory compensation payable. ********** 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2014