ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 153 Hearing dates: On the papers Decision date: 25 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 affirm the decision of the compensation assessor. 2. Pursuant to section 35 (1) of the old Act I make an award of costs. Catchwords: Balance of probabilities - Act of violence - Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Interpretation Act 1987 Cases Cited: Reifek - v - McElroy (1965) 112CLR 517 at 521 - 522 Category: Principal judgment Parties: ARD (Appellant) Victims Compensation Fund Corporation (Respondent) Representation: Counsel C Lonergan (ARD) Michael J Corbett Solicitor (Appellant) M Ting Victims (Respondent) File Number(s): 137008 (decision under review 126408) 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 witness summoned by, or appearing before, the Tribunal.

reasons for decision 1ARD claims statutory compensation by way of an application whereby she alleges that she suffered a compensable injury as a result of being sexually assaulted by New South Wales Police Officers on a number of occasions from June 1971 to September 1975 at various locations in Sydney in the State of New South Wales. (The actual incidents are dated October 1972 - September 1975). 2I note that ARD was represented by Michael J Corbett Solicitor before the compensation assessor and continues to be represented for this subsequent appeal. 3On 22 August 2006 ARD submitted Application 126408 to the Victims Compensation Tribunal ("the Tribunal"). Also on 22 August 2006 seven other claims were lodged with the Tribunal. An earlier claim and three subsequent claims were also lodged on behalf of ARD. Those matters are dealt with in separate appeal decisions (joint and otherwise). 4I note that the application was lodged outside of the statutory period required by section 26 of the old Act. 5Claim 126408 (VCT) was listed for leave to proceed out of time by way of letter dated 24 August 2006. 6On 28 August 2006 the Tribunal advised that on 24 August 2006, leave had been given to proceed outside the two year statutory limitation period, presumably for the reasons outlined in section 26 (3) (b) of the old Act for Claim 126408. 7On 23 May 2011 the Tribunal advised ARD's Solicitors that the matter was listed for determination at the first available opportunity on or after the month of September 2012. 8In the following months ARD's Solicitors attempted to obtain copies of further evidence that had been generated between ARD and NSW Police and NSW Health. Adjournments were subsequently sought and granted on 27 September 2011 and 13 January 2012. The matter was relisted for consideration during the month of May 2012. 9A further adjournment was sought (and granted) on 24 April 2012. This was necessary as ARD had 12 separate claims, and due to the fact that they were all to be determined together, and required all the evidence for each particular allegation / injury, to be available and before the compensation assessor. The matter was relisted for determination on or after the month of August 2012. 10Further material was obtained, and evidence and submissions submitted by ARD's Solicitor in the intervening months. 11On 7 February 2013, the compensation assessor determined this claim having previously determined eight of ARD's 12 claims two days prior. The compensation assessor determined that ARD was not entitled to compensation and issued Notice of Determination under section 29 of the old Act. In respect of this claim, the compensation assessor found that there was insufficient evidence that ARD was the victim of an act of violence, and dismissed the claim. The Notice of Determination, which was (inter-alia) in the following terms, advised: This application relates to a series of incidents that took place between June 1971 and October 1975. The applicant details that during the time she was sexually assaulted by various police officers in police vehicles and police cells at various locations in NSW. ...I have read solicitor's submissions on file and note the report of (Dr R.G.) and counselling records obtained. I also note the letter from Senior Sergeant B on File. It appears that the applicant made a complaint concerning the alleged sexual assaults by telephone to the Police Royal Commission in 1996. Sergeant B details that matters were not investigated as it was considered that the incidents that the applicant had complained of occurred too long ago. The applicant did not make a complaint to police until over twenty years after incidents apparently occurred. I further note that no supporting evidence from the time in question was presented and it appears that the applicant did not receive any medical treatment in respect to the alleged incidents until relatively recently. It appears that due to a huge delay in reporting incidents to police combined with the fact that there was no evidence from the time in question resulted in no further investigation taking place. I note that the applicant commenced counselling in 2006; over thirty years after incidents took place. There is no medical evidence produced prior to 2006. It appears that the applicant never sought medical treatment in respect of the alleged incidents until 2006. The applicant has also been in a stable relationship since 1983 and worked in a number of positions including a district officer for DOCS and a childcare worker. Matters were not reported to police until over twenty years after they occurred. Matters are described in very general terms, there is no supporting evidence presented even moderately close to when the incidents took place and it appears that the applicant did not seek medical treatment until thirty years after incidents took place. Taking into account the abovementioned factors I cannot be satisfied that an act of violence in respect to any of the claims lodged is established.