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. ................... Grounds of Appeal 10The Notice of Appeal was lodged on 3 June 2013. The Grounds of Appeal are numerous: (1)The Appellant was the victim of a number of acts of violence. The act of violence of domestic violence is claimed separately to and constituted by acts of violence separated to the sexual assaults. (2)The assessor erred in the determination of the claim by not relevantly considering all of the evidence. (3)The evidence before the assessor was sufficient to establish that the appellant was a victim of domestic violence, separate from the sexual assault injury. (4)The assessor fails to take into account that the appellant disclosed to the police at least 3 separate domestic violence incidents that had occurred prior to the sexual assault, including the provision of photographs. (5)The assessor fails to take into account the two separate convictions for Assault Occasioning Actual Bodily Harm and the convictions for Breach Apprehended Violence Order. (6)The assessor fails to take into account that the Appellant provided statements to the police outlining domestic violence prior to and separate to the sexual assaults. (7)The assessor fails to give sufficient consideration and weight to the report of ('K.B') dated 24 May 2012. (8)The assessor notes that there is no statement from the Appellant this fails to take into account the statements given by the Appellant to the police. (9)The assessor notes that there is no statement from the Appellant. This fails to take into account the history provided to the counsellor, ('K.B.'). (10)The assessor failed to take into account that the appellant and her children have been severely impacted upon by the acts of violence and have required extensive ongoing support and counselling. Further particulars of appeal were filed in support of the application which amplified five aspects of the grounds of the appeal and the relevant evidence before the Assessor. Application of the old Act 11On 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"). AVY's Solicitor was advised of this (amongst other matters) by letter from the Registrar of the ADT dated 2 August 2013. 12However, 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. 13On 21 October 2013, the Registrar of ADT wrote to AVY'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 17 January 2014. 14However, 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. 15Further, 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. 16As 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 17AVY 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). Act of violence 18Section 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. 19In essence the compensation assessor found that AVY was not a victim of an Act of violence in accordance with the provisions of section 5 (1) of the old Act. It appears (from the words of the determination) that the compensation assessor applied weight to the quality of the evidence, and found that it was insufficient, but bearing in mind the other claim, was able to satisfy themselves that on similar evidence an act of violence had occurred. 20The compensation assessor makes a statement that 'no medical evidence of injury is available'. I am unsure as to why this statement has been made, because on the material before me there is both medical evidence and other evidence of injury. The medical evidence is contained in the report of the Counsellor 'K.B.' That evidence pertains to the presence of psychological or psychiatric harm as well as the independent observation of indicators of various psychological conditions during AVY's contact with 'K.B.' The non- medical evidence includes references to physical injuries not requiring a medical diagnosis which have been contemporaneously sighted and recorded, and have been provided as part of AVY's claim. The fact that these physical injuries arose from physical assaults is on the evidence before me, uncontroversial. 21The compensation assessor also refers to the apparent lack of any sworn material by AVY. 'No statutory declaration is available from the applicant outlining the domestic violence claimed in 173323.' (173323 being the VCT reference for this application). Unfortunately this statement is not correct. The application for statutory compensation is formatted as a statutory declaration. The hard copy forms in use exclusively from 1988 to early 2010 all take the form of a statutory declaration. As I understand it since the introduction of electronic or 'e' forms from early 2010, manual forms are still available for use and must be appropriately completed in order to be accepted. 22Section 25 (2) (a) of the old Act provides that an application must be lodged in the form required by the Rules. Clause 5 (1) of the Victims Compensation Rule 1997 provides that: For the purposes of section 25 (2) of the act, an application for statutory compensation is to be in a form approved and supplied by the Director. 23AVY lodged her application via her solicitors through an 'e' Form. Those forms were issued and approved by the Director. Like most electronic forms or on-line applications which have replaced or supplemented hard copy forms in recent years, where those processes require some attestation as to the veracity of the contents of the submission or form, a relevant statement / or conditions of lodgement must be acknowledged prior to lodgement. In the case of the Victims Compensation Application (relevantly) the following appears on the e-form: 'I declare that The information provided in this application is true and correct I understand that - Giving false or misleading information is a serious offence and may adversely affect the result of the application - Victims Services will make relevant enquiries to verify the information provided - Victims Services may request documents to prove identity at any time throughout the claims process I agree to the above conditions The last statement is accompanied by a box which the applicant endorses prior to electronically submitting the application. 24This approach is similar to the method by which citizens lodge tax returns, court documents and other important applications electronically. I take the view that like the manual forms, the contents of these 'e' applications have the same meaning as a sworn statement or declaration, albeit that they are not witnessed by an authorised justice or practitioner. For these reasons the contents of the application form are in my view (for the purpose of accepting / considering the veracity of the allegations) the equivalent of a statutory declaration. 25The report of 'K.B.' details years of abuse and being 'kept hostage' in the years prior to April 2009. The report also details the presence of psychological harm significantly related to and arising from the violence during the period of the relationship. 26Having considered the following evidence it is clear to me that AYV has been the victim of an act of violence in accordance with section 5 (1) (a) and (b) of the old Act: * Application by AYV dated / submitted 16/2/2012 Report of 'K.B.' dated 24/5/2012. 27Whilst the Solicitors submissions on appeal refer to statements to police in September 2008, around 10 December 2008, and about 18 April 2009, those statements were not before the Assessor nor are they before the Tribunal. The issues of the convictions for Assault Occasioning Actual Bodily Harm and Breaches of Apprehended Violence orders are less straightforward. The assault convictions in my view are bound up with the act of violence which is the basis of the related claim 170474. In this regard I note the provisions of section 5 (3) and (4) of the old Act which provides as follows: 5 Act of violence (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. (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. 28In any event, for reasons outlined earlier, I am satisfied that the elements of section 5 (1) (a) (b) and (c ) are made out. I make a finding that based on the available evidence to the requisite standard AVY is the victim of an act of violence within the meaning of section 5 (1) of the old Act. Having considered the matters on file, including in the application, submissions, and the medical report, and having regard to the provisions of section 30 (2) and (2A) of the old Act, I find that there are no relevant section 30 issues. Has AVY sustained a compensable injury above the threshold? 29Schedule 1 contains special provisions relating specified types of compensable injury. These include psychological or psychiatric disorder, sexual assault, burns and scarring and domestic violence. 30Based on the evidence on file, and noting the relationship between the perpetrator and AVY at the time of the incidents, and having regard to the definition of Domestic Violence in Schedule 1 Clause 7A of the old Act, AVY is entitled to the compensable injury of domestic violence. Physical injuries 31I note the physical injuries claimed by AVY. Having considered the injuries, in my view they fall within the compass of actual physical bodily harm rather than any discrete physical injury above the threshold of $7,5000 statutory compensation as individually particularised in Table 1 from Schedule 1 of the old Act. 32At present the following compensable injuries are present: * Domestic Violence 33Section 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. 34There is no evidence of a claim for financial loss as a direct result of a compensable injury. (s- 18 (1) of the old Act). 35Section 11 of the old Act provides that an applicant can receive statutory compensation for an offence based injury (Domestic Violence or one of the three Categories of Sexual Assault) or physical / psychological injuries. 11 Compensable injuries described by reference to act of violence (1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries. (2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries). (3) In the absence of an election, the person determining the application is to make the election. Note. See injury described in Schedule 1 as sexual assault. 36In the absence of any other evidence there will be an award for one 'offence based' injury covering the entire period of the claim as a series of related acts constituting one act of violence. Conclusion 37I 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 in the sum of $10,000.00 for the Compensable injury of Domestic Violence. (Pursuant to section 19A of the old Act, there will be a deduction of $750.00 from this award which means that the amount payable will be $9,250.00) (3) I make an award for costs under section 35 (1) in the sum of: $500.00 plus GST if applicable. Total Compensation payable to AVY: $9,250.00 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: 10 November 2014