Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ARD v Victims Compensation Fund Corporation [2014] NSWCATAD 156 Hearing dates: 29 January 2014 and 26 August 2014 Decision date: 29 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 of costs. Catchwords: Victims Compensation - Series of related acts - Civil Standard - Balance of Probabilities - Evidence of Victim - Related acts of violence - Oral Hearing - Beneficial Legislation - Offence based injuries Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Civil and Administrative Tribunal Act 2013 Interpretation Act 1987 Victims Support and Rehabilitation Rule 1997 Cases Cited: Reifek v McElroy (1965) 112CLR 517 at 521-522 Victims Compensation Fund Corporation v Brown and Ors HCA 54 [2003 Category: Principal judgment Parties: ARD - (Appellant) Victims Compensation Fund Corporation - (Respondent) Representation: Counsel C Lonergan (Appellant) M J Corbett Solicitor (Applicant) M Ting (Respondent) File Number(s): 1370004 (Decision under review 136012) 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 one of her neighbours when a child at Mount George in the State of New South Wales around 1968. 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 21 September 2006 ARD submitted Application 136012 to the Victims Compensation Tribunal ("the Tribunal"). Eleven other claims were also lodged by ARD, eight earlier claims and three subsequent claims. 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 136012 (VCT) was listed for leave to proceed out of time by way of letter dated 2 October 2007. 6On 31 October 2007 the Tribunal advised that on 30 October 2007, 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 136012. 7In February 2011 approval was given for ARD to see an Authorised Report Writer (ARW) for the purposes of establishing section 5 (1) (c ) in respect of injury under the old Act on this claim and two of the other claims predating ARD being made a Ward of the State. 8On 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 2011. 9In 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, 2 November 2011, and 13 January 2012. 10A 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. 11Further material was obtained, and evidence and submissions submitted by ARD's Solicitor in the intervening months. 12On 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 March 1968 and April 1970. All incidents relate to sexual assaults perpetrated upon the applicant by (KJB) - the alleged offender. ...I have read solicitor's submissions on file and note the report of (Dr R.G.) and counselling records obtained. I have also viewed the police records concerning this matter. The applicant reported incidents to police in 1996 and provided police with a statement on the 27th September 1996. The alleged offender was interviewed and denied allegations. I note the alleged offender was charged with two counts of sexual assault concerning the applicant. Both these charges were withdrawn by the DPP as it considered that there was no reasonable prospects of conviction. Matters were not reported to police until twenty six years after they 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. 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 that supported the applicant's allegations resulted in all matters being withdrawn by the DPP. 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 twenty six years, charges were withdrawn by the DPP and the alleged offender denied all allegations, there is no supporting evidence presented even moderately close to when 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. Grounds of Appeal 13The Notice of Appeal was lodged on 7 May 2013. The Grounds of Appeal are: (1)The compensation assessor erred in determining that he / she could not be satisfied that any act of violence in respect of the Appellant's claims is established. (2)Further, the compensation assessor erred in failing to take into account and otherwise consider, the Appellant's statutory declaration made on 21 July 2006 (the application) : and 18 October 2012 and specifically the matters declared therein together with various Police statements. (3)To the extent that the compensation assessor utilised any discretion pursuant to s.30 of the Victims Support and Rehabilitation 1996 Act ("the Act") in making a determination that the act(s) of violence was not established, such exercise of discretion miscarried. (4)The appellant relies on the (following) full Particulars to support the Appeal and for each ground. Particulars of appeal were filed in support of each application. Those particulars amplified the matters outlined in the Grounds of Appeal by way of submissions, pointing to specific evidence in the claim, and providing grounds to the appropriate approach to various threshold issues in the old Act. Application of the old Act 14On 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"). 15Initially, as the 2013 Act had not been passed, the matters were listed for call-over in accordance with Schedule 2 of the old Act, and following the provisions of clause 15 of the Victims Compensation Rule 1997. 16However, having been transferred into the ADT by the 4 June 2013 provisions, the former Chairperson of the Victims Compensation Tribunal (now sitting as a Deputy President of the ADT) on 26 June 2013 prepared a detailed four page memorandum to ARD's Solicitor outlining the necessary specific requirements applicable to all of ARD's claims in respect of the new regime. In particular matters relating to a hearing of ARD's appeals were canvassed and matters relating to the receipt of further evidence. The appeals were adjourned (for further consideration) until the week commencing 8 July 2013. 17It appears that there were some transitional matters of an administrative nature that transpired in the months of July and August 2013. The newly created Commissioner for Victims Rights initially determined on 26 June 2013 that the appeals would be heard in the week commencing 8 July 2013 by the Deputy President of the ADT. However it appears that eventually the Commissioner transferred all of ARD's appeal claims to the Registrar of the ADT. 18On 14 August 2013 the Registrar of the ADT wrote to ARD's Solicitor advising him that the Deputy President had not yet determined whether the appeals would be heard (or dealt with on the papers). ARD was given until 19 August 2013 to put on final submissions on this issue. 19However, 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. 20On 23 September, the Registrar of ADT wrote to ARD's Solicitor advising him of the ADT's guideline for dealing with the appeals and the opportunity to make final submissions prior to the reserved date of 7 October 2013. 21On 17 October 2013 the Registrar of the ADT wrote to ARD's Solicitor advising him that the matters were listed for Directions on 8 November 2013. 22On 23 October 2013 an adjournment of the 8 November date was sought by ARD's Solicitor. The application was based on the unavailability of Counsel who had now been briefed in the matter. The Registrar of the ADT advised on 29 October 2013 that the adjournment had been granted and all of the matters were now listed for Directions on 15 November 2013. 23Throughout the period from the lodgement of the appeals in early May 2013 until the Directions date of mid November 2013, ARD's solicitors had lodged numerous submissions concerning both the merits of all of ARD's appeals and the need for an oral hearing. 24On 15 November 2013 all of ARD's matters came before Judicial Member Molony (as he then was) of the ADT who made the following Directions: * The Tribunal is satisfied that these matters cannot properly be determined without a hearing. * The application is fixed for hearing on 29 January 2014 for 1 day. * Applicant to file and serve by 16 December 2013: (a)Any further evidence on which she seeks to rely; (b)Details identifying any other documents already filed that constitute fresh evidence that was not before the compensation assessor; and, (c)Submissions as to why leave should be granted to rely on that evidence. 25On 16 December 2013, ARD's Solicitor provided their proposed further evidence and additional summary of submissions in respect of the receipt of fresh / further evidence. 26However, the ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 (on 1 January 2014) 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. 27Further, 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. 28As outlined above ARD had applied for the appeals to proceed by way of hearing. Predominantly that request appears to be based on the matters raised in earlier submissions and addressing points raised in the former Deputy President's Memorandum of 26 June 2013. In addition I note that ARD's Solicitor wanted the opportunity to submit at a hearing before the Tribunal the appropriate approach and statutory construction that the decision maker should take to the existing evidence, both based on the somewhat 'non forensic' approach applied by the compensation assessor in first instance in respect of a large number of the appeals, (as put by Counsel) and the complexity of the myriad claims and voluminous evidence. There was also the issue of making further submissions and taking evidence on the interlocutory argument of whether the Tribunal should receive fresh evidence on the appeals. 29The 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. However as outlined above, ARD's matters were particularly complicated both in the way that the evidence was spread across many separate acts of violence, and the import of the approach taken to the claims by the compensation assessor. 30(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. 31Credibility did not appear to be a live issue before the Tribunal in reaching its decision on this point, however in all matters where the decision maker in first instance does not find an act of violence, credibility is clearly within the scope of the appeal. Predominantly for the reasons outlined in paragraph 28 and 29 above, the Tribunal determined on 15 November 2013 that the matter would be dealt with by way of a hearing. Hearing on 29 January 2014 and 26 August 2014 32All of ARD's matters were initially heard before Senior Member Molony on 29 January 2014. However after the initial hearing of the matters, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 33The matters were listed before me on 26 August 2014 and on that occasion representatives of both ARD and the Victims Compensation Fund Corporation were asked whether they consented to the section 52 reconstitution of the Tribunal. ARD's representatives consented, whereas the representative of the Respondent advised that they did not submit either way, and I took that to mean that it was a matter for the Tribunal. 34As a result the provisions of section 52 (2) of the NCAT Act were satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act. 35On 26 August 2014 Counsel for ARD, Mr Lonergan provided oral submissions on the evidence before the Tribunal (both on the papers and at the previous hearing). In addition there was discussion as to the approach that the Senior Member took on 29 January 2014 in respect of the question of whether to admit fresh evidence. Since that time I have had the benefit of listening carefully to the full audio CD recordings of the hearing on 29 January 2014. It is now for me to determine the matter having regard to all the material and evidence before me, the evidence and submissions given orally on 29 January 2014, and the submissions given on 26 August 2014. I note that the majority of the hearing focussed on the eight 'institutional' claims of abuse, and then to a lesser extent on the three claims from prior to that time, one of which is this claim. This appears to be in part because of the clear volume of claims. 36In ARD's evidence at hearing, she advised that the offender in this claim, and his brother were also close relatives. In earlier written material, these brothers were neighbours and close acquaintances of ARD and her family. I do however acknowledge the issue of kinship amongst the community especially in the geographic area where ARD spent her early years. 37Importantly the following findings were made during the 29 January 2014 hearing: * The Senior Member admitted the relevant VCT Files into evidence in accordance with section 38 (2) of the old Act (as exhibit 1). * The Senior Member gave leave pursuant to section 38 (3) of the old Act to receive the Nepean Hospital Notes, which were not before the Assessor, (as exhibit 2). * The Senior Member declined to give leave to receive fresh evidence in respect of the report of 'C.M.' Registered Psychologist dated 11 December 2013. * Statutory Declarations of ARD dated 18 October 2012 x 2 and 15 November 2012 were affirmed by ARD in evidence as true and correct. * There was no appearance for the Respondent. Act of violence 38Section 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. 39The onus is on ARD to prove the allegations of act of violence on the balance of probabilities. 40ARD 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 41I note the evidence provided by ARD. Much of the evidence relates to a significant percentage of the twelve claims before the Tribunal. 42There is the applicant's statutory declaration which forms part of her application for Statutory Compensation. At answer to Question 32 ARD declares the following: 'The first sexual assault was when I was swimming when (KB) called out to help him collect some wild cherries. I arrived and he pulled me down to the ground and pulled my swimmers down and he then raped me. There were many other subsequent times that he raped me including around July 1968 when at a local orchard. He gave me some oranges in return for sex. I was 10 years old at that time (see also Police Statement). K raped me on many subsequent occasions and the only time that I consented was as referred to above and that consent was made as I was hungry as at that time my parents had deserted the family and we had no food in the house. I do not really consider that this was a proper consent. The sexual assaults continued and I estimate on around 10 further occasions sometimes at his house or my house or at Water Tanks or in other paddock areas. On some occasions KB raped me in the company of his brother M and my brother J.' 43There is also ARD's Police Statement dated 27 September 1996. I note that this statement is fairly detailed and goes to seven pages. It appears that on the basis of this statement and the lack of admissions by the alleged perpetrator on 11 February 1997 a decision was made to charge KB with two counts of the relevant charge in existence at the time of the alleged offences. The matter was committed for trial in the District Court with a co-accused whereby the matter was adjourned on the Crown's application on three occasions. 44On 1 September 1998 the Crown case was withdrawn, with the Director of Public prosecutions determining that there was no reasonable prospect of a conviction. It appears from information contained within ARD's files that the issue of criminal responsibility was a live consideration in the DPP's reasoning. 45There are various references to this matter in the reports of Dr R.G. , Dr R.H. and in a minor capacity in the voluminous medical records (clinical notes) admitted under section 38 (3) at the hearing. Consideration 46I note that section 5 (1A) of the old Act provides: (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. 47In this regard the concept of Doli Incapax does not apply to determining the issue of whether the conduct of KB amounts to an offence for the purposes of the old Act. 48Based on the definition in the dictionary to the old Act and section 5 (as set out above), and the medical evidence on file, as well as sworn testimony both orally and deposed, in addition to other material on file, 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 before me, including the report of Dr R. H. and the ARW Report of Dr R.G., the primary victim (ARD) 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) in respect of these allegations as reported to the clinicians. 49Having considered all of the evidence before the compensation assessor, I make a finding that ARD was the victim of an act of violence in accordance with section 5 (1) (a) (b) and (c) of the old Act, in respect of assaults perpetrated by KB. The issue to consider is whether these instances (on the available evidence) constitute a series of related acts. 50When examining the evidence in this claim (and the related claim involving offender MB) it is clear that there are a number of instances of assault, with one instance allegedly in company. (KB and MB). However it is difficult to ascertain from the minimal evidence available whether that incident constituted one separate act of violence or was part of a series of related acts. In this regard I propose to make the award in this matter (and the related matter of MB) in the following manner. 51I will make an award for Category 3 sexual assault in the matter involving perpetrator KB. In the matter involving perpetrator JB there will be an award in the nature of a Category 2 sexual assault. The apportionment of the appropriate 'offence based injury' (s-11 and Clause 6 Schedule 1 of the old Act) and consideration of the evidence and impacts of these instances is a difficult task, especially when having regard to Counsel's and Solicitor's submissions about other impacts on ARD's life, and noting the lack of availability of Clause 4 in such a situation. 52In addition, nomination and quantum has been determined from the evidence before me, and having regard to the fact that the legislation should be interpreted beneficially in accordance with the principles laid down in Victims Compensation Fund Corporation v Brown and Ors HCA 54 [2003] and the objects under section 3 of the old Act. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. Conclusion 53The following compensable injuries are present and I assess the award in the following manner and make the following orders: In Appeal number 1370004 (VCT Ref: 136012) (1)(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 3 Sexual Assault in the sum of $25,000.00 being - a pattern of abuse involving category 1 and category 2 sexual assault including unlawful sexual intercourse in which 2 or more offenders are involved. ($25,000.00 payable to ARD) (3)Noting that the matter was determined after a hearing, I make an award of costs under section 35 (1) in the sum of $1,500.00 plus GST if applicable, in accordance with Clause 5.6 of the ADT Guideline of 23 September 2013. 54There was some discussion at the end of the first hearing that the Tribunal could in effect alter the costs award of the compensation assessor (in first instance) on review. The compensation assessor made an award in the sum of $250.00 per application (approximately 30% of the available scale). In respect of the request / provision to review the costs award, I am unaware of any provision in this regard, and can find no authority or other lawful precedent for this approach. 55 I note that an appeal can only be made by an 'applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application', (s-36 (1) of the old Act). For those reasons, and in the absence of any evidence to show how such an application satisfies section 36 (1), I decline to consider that matter. ********** 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: 29 September 2014