AVY v Victims Compensation Fund Corporation [2014] NSWCATAD 193

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AVY v Victims Compensation Fund Corporation [2014] NSWCATAD 193 Hearing dates: On the papers Decision date: 10 November 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: Act of Violence - Domestic Violence - balance of probabilities - evidence -requirement for sworn evidence corroboration - multiple acts of violence- related acts of violence Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Victims Compensation Rule 1997 Category: Principal judgment Parties: AVY (Applicant) Victims Compensation Fund Corporation- (Respondent) Representation: Beesley & Hughes Lawyers (Applicant) File Number(s): 137121 (Decision Under Review 173323) 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 1AVY claims statutory compensation by way of an application lodged in February 2011, in which she alleged that she had suffered various compensable injuries as the result of numerous assaults by her then de-facto partner at Huonbrook in the State of New South Wales between January 2007 and the end of April 2010. 2I note that AVY was represented in relation to the application for compensation and remains represented in respect of this appeal by Messrs Beesley and Hughes lawyers of Bangalow New South Wales. 3On 16 February 2011 AVY submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). 4I note that the application was lodged within the statutory period required by section 26 of the old Act. 5It is relevant to note that AVY lodged a separate application concerning a violent sexual assault perpetrated on her by the same offender around the end of April 2010. It appears that that extremely violent assault ultimately lead to the end of the relationship between the offender and AVY. I raise the matter only because there is some minor overlapping of the two claims, evidence was provided jointly for both claims, and the compensation assessor provided a joint determination. 6Interestingly, notwithstanding the manner in which the evidence covered both applications, the compensation assessor was satisfied that the elements of section 5 of the Victims Support and Rehabilitation Act 1996 (the old Act), concerning 'act of violence' were made out for the sexual assault based claim, but were not made out in respect of this claim. 7On 4 September 2012 the Tribunal wrote to AVY's Solicitors reinforcing the need to submit medical evidence prior to proceeding further with the claim. It appears that the Solicitors contacted the Tribunal by telephone on 12 September 2012 indicating that they were forwarding evidence to the Tribunal in order to have the matter deemed ready for listing. 8On 13 September 2012 the Tribunal issued correspondence indicating that the matter was listed for hearing at the first available opportunity on or after the month of November 2012. In that letter AVY'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. 9On 14 February 2013, the Compensation Assessor determined that AVY was not entitled to compensation and issued a Notice of Determination under section 29 of the old Act. The Assessor found that AVY was not the victim of an act of violence. The Notice of Determination covered both claims (see paragraph 5 above), and which was (inter-alia) in the following terms: In application 173323, the Applicant seeks compensation in relation to domestic violence perpetrated between 1 January 2007 and 29 April 2010 by her then partner, ('G.S.'). It is claimed that she was hit to the chin, punched in the face and had a chair thrown at her head. Application 17074 relates to sexual assaults by the same offender between 25 and 29 April 2010. ...... No medical evidence of injury is available. However, the COPS entry refers to "bruising, fracture, minor lacerations, muscle torn/strained, red marks, shock, sprain, and swelling". No mention is made in the police material of any earlier acts of violence against the applicant. Ms 'B' Domestic Violence Counsellor has provided a report dated 24 May 2012. The applicant gave a history of regular physical and sexual assaults. She said the offender treated her like a slave and used her like a sex slave. I have considered the solicitor's correspondence. No detailed submissions have been provided in either matter. No statutory declaration is available from the applicant outlining the domestic violence claimed in 173323. There is no evidence from any witness or medical practitioner who may have seen her following an incident of domestic violence during the period claimed. I do not find there is sufficient evidence to make a finding of acts of violence prior to the offences on 26 and 27 April 2010. Application 173323 is therefore dismissed. Act of violence is established in 170474. ...................