Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Victims Rights v BGF [2015] NSWCATAP 149 Hearing dates: 25 November 20141 May 2015 Date of orders: 22 July 2015 Decision date: 22 July 2015 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President S Higgins, Principal Member Decision: The appeal is allowed. The decision of the Tribunal made on 6 June 2014 is set aside. The matter is remitted to the Administrative and Equal Opportunity Division of the Tribunal for determination in accordance with law. Catchwords: APPEAL – Commissioner for Victim's Rights – power to make provisional order – meaning of 'relevant offence' and 'act of violence' – conviction – error of law and of fact – finding of fact based on erroneous submissions – fundamental error of fact – jurisdictional error Legislation Cited: Administrative Decisions Review Act 1997 (NSW), Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Support and Rehabilitation Act 1996 (NSW), (repealed) Cases Cited: BGF v Commissioner for Victims Rights [2014] NSWCATAD 77 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 Soliman v University of Technology, Sydney [2012] FCAFC 146 Category: Principal judgment Parties: Commissioner of Victims Rights (Appellant) BGF (Respondent) Representation: M Ting on 25 November 2014 (Appellant) Mr S Matulewicz on 1 May 2015 (Appellant) File Number(s): AP 14/46450 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them or is likely to lead to their identification is prohibited(S 64, Civil and Administrative Tribunal Act 2013) Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: BGF v Commissioner for Victims Rights [2014] NSWCATAD 77 Date of Decision: 6 June 2014 Before: P H Molony, Senior Member File Number(s): 137332 REASONS FOR DECISION 1. The Commissioner for Victims Rights ('the Commissioner') appeals a decision made in the Administrative and Equal Opportunity Division of the Tribunal (the Tribunal) to: 1. reverse the restitution order the Commissioner made against the respondent under sections 59 and 64 of Part 5 of the Victims Rights and Support Act 2013 (i.e. Recovery of Victim Support Payments from Offenders), and 2. not to make an order requiring the respondent to make restitution to the Commissioner under Part 5 of that Act. (see BGF v Commissioner for Victims Rights [2014] NSWCATAD 77). 1. Consistently with the orders made by the Tribunal below, we have made an order under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 to prohibit the publication and broadcasting of the respondent's name, and any information that may lead to the disclosure of his identity or that of the victim. 2. The restitution order, the subject of review by the Tribunal, was made in respect of a victim's support payment made to BGF's former wife (the victim) under the Victims Support and Rehabilitation Act 1996. The victim had lodged two claims for compensation under that Act on 2 October 2008. One claim was made in respect of alleged acts of domestic violence by BGF, on the victim, throughout the period 14 February 2004 to 7 July 2008 ('the domestic violence claim'). It is common ground that this claim was given claim number 145797. 3. The other claim was made in respect of an alleged assault of the victim in a park, on 9 September 2008, by two associates of BGF and at his direction ('the park assault claim'). It is common ground that this claim was given claim number 145962. 4. On 10 February 2009, BGF was convicted of two counts of assault occasioning bodily harm. The victim of these offences was his former wife and the offending conduct occurred at Lakemba, at 12pm, on 6 July 2008. 5. On 12 October 2012, an Assessor determined the victim's claims under the Victims Support and Rehabilitation Act 1996. The Assessor found 'on the balance of probabilities an act of violence (from April 2004 to September 2008) is established.' That is, the Assessor found that the park assault claim could not be treated as a claim separate to the domestic violence claim and formed part of the domestic violence claim. 6. The Assessor also determined that a category 2 psychological disorder had not been established and awarded the victim compensation in the amount of $9,250 in respect of her domestic violence claim. On the basis of his finding that the park assault claim was not a separate claim, the Assessor dismissed that claim. 7. Being dissatisfied with that assessment the victim appealed, under the Victims Support and Rehabilitation Act 1996, to the Victims Compensation Tribunal. On 20 June 2012, the Victims Compensation Tribunal determined that the park assault claim was a separate claim to the domestic violence claim and made a more favourable statutory award to the victim with respect to her claims. We have dealt with this decision in more detail below. 8. The Victims Support and Rehabilitation Act 1996 (the Repealed Act) was repealed, on 3 June 2013, on the coming into force of the Victims Rights and Support Act 2013 (the New Act), which contained transitional and savings provisions in Schedule 2 in regard to the recovery, from offenders, of victim support payments that were made under the Repealed Act. There is no dispute that the Commissioner had power to make a restitution order under the New Act in respect of awards for compensation made under the Repealed Act. 9. In his grounds of appeal the Commissioner contends the Tribunal erred in: 1. interpreting the meaning of 'relevant offence' for the purpose of Part 5 of the New Act, 2. interpreting the interaction between a 'relevant offence' and an 'act of violence' for the purposes of Part 5 of the New Act, 3. stating the legislative basis upon which the appellant Commissioner may issue a provisional order, 4. making findings of fact for which there is no evidence, both as to the Victims Compensation Assessor's findings and the Court's record of proceedings. 1. In his Reply to the Notice of Appeal, the respondent contended that the Tribunal had not erred and its orders should stand. He said 'I committed no offence in September 2008', and submitted that the legislation required a conviction before liability for restitution could arise. 2. Subsection 80(1) of the Civil and Administrative Tribunal Act 2013 makes provision for making an appeal against an 'internally appealable decision' to the Appeal Panel. There is no dispute that the decision of the Tribunal from which the Commissioner seeks to appeal is an 'internally appealable decision.' 3. Subsection 80(2)(b) of the Civil and Administrative Tribunal Act 2013 provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 4. As we have noted, the Commissioner states that his appeal is on questions of law. Hence leave of the Appeal Panel is not required if the Commissioner establishes the alleged errors of law. Conduct of the Appeal 1. In accordance with directions made on 16 October 2014, the Commissioner filed and served further written submissions. 2. No further written submissions were filed and served by BGF. He had however, provided an outline of submissions in his Reply. 3. There was no appearance by the respondent at the commencement of the hearing on 25 November 2014. Mr M Ting, solicitor, appeared for the Commissioner and was ready to proceed. 4. On the morning of the hearing the Tribunal Registry received an email from BGF advising that he was unwell. He did not request an adjournment. We determined to proceed with the hearing, subject to any new matters arising for which BGF should be given an opportunity to respond. No such matters arose and at the conclusion of the hearing we reserved our decision. 5. In light of the submissions made by the Commissioner and the material filed in the appeal, we formed the view that the Appeal Panel may not have been provided with all the relevant background documentation in order to determine the Commissioner's appeal. Accordingly, we requested the matter be restored for a further short hearing on 1 May 2015. We also made an order for the appellant to file and serve the following material: (a) A copy of the provisional restitution order and subsequent amendment (if any) to that order. (b) A copy, with relevant redactions to preserve the privacy of the victim, of the two applications for compensation made by the victim that are the subject of the decision of the Victims Compensation Tribunal, dated 20 June 2012 (i.e. Application 145962 and Application 145797). (c) A copy of any subsequent amendments to the abovementioned Applications for compensation by the victim. (d) A copy of any other decision of the Victims Compensation Tribunal relating to the abovementioned Application(s) for compensation made by the victim. 1. Orders were also made for BGF to respond to any material filed and served by the respondent. 2. The Principal Registrar wrote to the parties on 20 April 2015 informing them of the orders made and that the matter had been restored for a short hearing on 1 May 2015. 3. On the evening of 29 April 2015, BGF sent an email to the Principal Registry to say he could not attend the adjourned hearing. The Principal Registry responded early the following morning and informed BGF that he could make an application to appear by telephone and if he wished to make such an application he should do so as soon as possible. 4. BGF did not seek an adjournment, or seek to appear by telephone at the adjourned hearing on 1 May. Mr S Matulewicz, solicitor, appeared on behalf of the Commissioner on this day and the hearing proceeded in the absence of BGF. 5. We have now considered all the material that was before us and for the reasons set out below we have determined to allow the appeal on grounds that differ to those articulated by the Commissioner in his Notice of Appeal. In summary, we have found the Tribunal did not err in its construction of the relevant legislative provisions, but was led into error, by the Commissioner, as to the basis on which the decision the subject of review was made. As a consequence, we have allowed the appeal and made orders remitting the matter to the Tribunal below, differently constituted, to consider BGF's application. 6. Before dealing with the appellant's grounds of appeal and the factual background to the decision the subject of review before the Tribunal, we need to briefly set out the statutory scheme giving the Commissioner the discretion to make a restitution order under Part 5 of the Victims Rights and Support Act 2013. Victims Rights and Support Act 2013 1. As we have noted, the Victims Rights and Support Act 2013 came into force on 3 June 2013 (the New Act). On coming into force, the New Act repealed the Victims Support and Rehabilitation Act 1996 (the Repealed Act). It is necessary to deal briefly with both Acts. 2. Part 3 of the New Act contains provisions establishing the position of the Commissioner (Division 1) and the Victims Support Fund (Division 2). The Commissioner's functions are set out in section 9 and 10 of Division 1 and includes a function to consider and determine applications for victims support under that Act (see paragraph 10(1)(i) of the New Act). 3. Part 4 of the New Act established a new Victims Support Scheme, with the object of providing financial support and recognition payments to victims of 'acts of violence'. 4. The term 'act of violence' is defined in section 19 of the New Act to mean: 19 Meaning of "act of violence" (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. (2) 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. (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), 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 the Commissioner: (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. (5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given. (7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. (8) In this Act: sexual assault and domestic violence means … 1. The objects of the Repealed Act included providing support and rehabilitation for victims of crimes of violence by '… and a statutory compensation scheme' (see section 3(a) of the Repealed Act). 2. Section 6 of the Repealed Act provided that 'primary victims and other specified victims' of an 'act of violence' were eligible for 'statutory compensation' under that Act. 3. There is no dispute that the victim had made her claims for statutory compensation as a primary victim and that each claim was based on a separate 'act of violence'. That is a domestic violence claim and a separate park assault claim. 4. The term 'act of violence' was defined in section 5 of the Repealed Act and for the purposes of this appeal, was in exactly in the same terms as section 19 of the New Act (see paragraph 29 above). As we have noted, the Assessor found that while the claims were made as separate acts of violence they were in fact not separate acts of violence. 5. Part 5 of the New Act makes provision for the Commissioner to take recovery action against the convicted perpetrator of the acts of violence concerning a financial support and recognition payment was made to the victim under Part 4 of the New Act. 6. Recovery action is discretionary and is activated by the making of a provisional order for restitution under section 59 in Division 2 of Part 5 of the New Act. That section is in the following terms: 59 Commissioner's discretion to make provisional order for restitution by offender (1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make a provisional order for restitution against the person. (2) A provisional order may not be made against a person if: (a) 2 years or more have elapsed since: (i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or (ii) the date on which the person was convicted of the relevant offence, whichever is the later, or (b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based. 1. As can be seen from the terms of subsection 59(1), the Commissioner's discretion to make a provisional order for restitution can only be made where an award for financial support or a recognition payment has been made to a victim under Part 2 of the New Act and the person on whom the order is to be made has been convicted of a 'relevant offence.' The term 'relevant offence' is defined in section 58 of the New Act to mean: relevant offence means the following: (a) an offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given, (b) any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence, (c) an offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act. 1. In this application, the Commissioner, in issuing a provisional restitution order to the respondent did not make the order in respect of financial support or a recognition payment made under Part 4 of the New Act. He made the order in respect of an award of statutory compensation made to the victim under the Repealed Act. 2. There was no dispute that the Commissioner had power to make a provisional restitution order in respect of an award of statutory compensation under the Repealed Act by reason of the transitionary provision in clause 16(1) if the New Act. That clause relevantly provides: 16 Recovery proceedings against offender for amount payable under statutory award of compensation (1) Part 5 of this Act applies to statutory awards of compensation made under Part 2 of the repealed Act that were not the subject of a provisional order for restitution under Division 8 of Part 2 of the repealed Act before its repeal in the same way as it applies to awards under Part 5 of this Act. (2) … 1. The term 'repealed Act' is defined in clause 2 of Schedule 2 of the New Act to mean the 'Victims Support and Rehabilitation Act 1996' and the term 'statutory compensation' is defined in the same clause to mean statutory compensation within the meaning of the Repealed Act. As we have noted, there is no dispute the victim was awarded statutory compensation under the Repealed Act. It is the Tribunal's finding that the Victims Compensation Tribunal award, to the victim, a single sum of $30,000 statutory compensation under the Repealed Act for both the domestic violence claim and the park assault claim that is in issue in this appeal. The decision under appeal 1. At [18] of its decision, the Tribunal set out BGF's conviction relevant to the Commissioner's Restitution Order the subject of review. The conviction the Tribunal noted related to 'two counts of assault occasioning actual bodily harm of his wife [the victim] at Lakemba at 12pm on 6 July 2008.' 2. At [19] to [25], the Tribunal went on to consider the statutory compensation sought and awarded to the victim. In this regard the Tribunal noted: 19 BGF's wife made two applications for statutory compensation under the old Act. The assessor who considered them described them thus: Application 145962 relates to a series of incidents that took place between April 2004 and the 7th July 2008. All incidents relate to domestic violence perpetrated upon the applicant by the offender at premises in Lakemba. Police and court records have been obtained for the subject period. I note the offender was convicted of assault occasioning actual bodily harm. I also note apprehended violence orders made for the applicant's protection. Application 145797 relates to an incident that took place on the 9th September 2008. The applicant was in a park in Petersham when she was set upon by two men that were associates of the offender. The applicant was assaulted and she was threatened that worse was to come if she did not drop apprehended violence proceedings against the offender. I have read the police report concerning this incident and I also note solicitor's submissions concerning breach of an apprehended violence order. 20 The compensation assessor considered that the act of violence in September 2008 was domestic violence related. He considered that it was an attempt by BGF to intimidate his ex-wife into withdrawing domestic violence proceedings against him. As a consequence, he considered all the acts of violence to be related and treated them as such under s 5 of the old Act … 21 Based on the act of violence constituted by these related offences the compensation assessor awarded BGF compensation for domestic violence on application 145962 and dismissed the related claim on application 145797. 22 The compensation assessor's determination was appealed to the Victims Compensation Tribunal. The Tribunal set aside the determination. The Tribunal found that the two counts of assault occasioning actual bodily of which BGF was convicted constituted a series of related acts which should be treated as related acts. The Tribunal considered that included in this series were a series of alleged assaults committed during the marriage. 23 With respect to the other claim no 145762 the Tribunal found: 12. In that claim the appellant relies upon an assault which occurred on 9 September 2008. At that time the perpetrator in this matter was on bail in relation to the assault on 6 July 2008 and an interim ADVO order had been made against him. On 9 September 2008 the appellant met a counsellor in Petersham Park. The counsellor left. The appellant then went to the toilet. She was then severely assaulted by two or three men who during the assault made comments such as; "Drop the AVO against your husband, you're a slut for not wearing your hijab, go back to your husband." The police were contacted and made very extensive enquiries. They made arrangements for the appellant to be moved to a new, undisclosed location. The police were satisfied that the assault was carried out at the request and direction of the perpetrator but could not charge Him because of the lack of evidence. 13. I am satisfied that, in those circumstances, the assault by the two men established a domestic violence offence against the perpetrator as, on the balance of probabilities, I am satisfied that he could be charged as an accessory before the fact in relation to the assault. 14. The Compensation Assessor found the act of violence in this matter, based largely on assaults by the perpetrator from April 2004 to 7 July 2008, to be related to the act of violence in claim no. 145962 being the assault by the two men. Whilst I agree that the two acts of violence may be found to be related pursuant to the terms of s.5(3) of the Act, I am satisfied that this is a matter to which s.5(3A) applies. That section provides as follows; … 15. In my view, the use by the perpetrator of two men to seriously assault the appellant at a time when the perpetrator was subject to charges of occasioning actual bodily harm and against whom an interim apprehended domestic violence order had been made including the mandatory order that he was not to assault the appellant does establish very serious and completely different criminal behaviour by the perpetrator which, in my view, establishes "particular circumstances" in relation to that act of violence which requires that the two acts of violence "ought not to be treated as related acts" pursuant to s.5(3A) of the Act. 16. I find the two acts of violence ought not to be treated as related acts and I proceed with the determination of this claim on that basis. 24 The Tribunal went on to find that the victim had sustained a category 2 chronic psychological/psychological disorder that is severely disabling. In the course of doing so the Tribunal made the following findings, at [27]: 27. Psychologist Somerville was of the opinion that such disorders were caused as a result of the domestic violence relied upon in this matter and also the assault on 9 September 2008. I am satisfied that, clearly, the major contributing cause of the appellant's psychological disorders was the acts constituting domestic violence inflicted upon her by the perpetrator during their marriage. I am satisfied that the psychological disorders are chronic in the sense of long term. 25 The Tribunal fixed the statutory compensation payable at $40,000, from which it deducted one-quarter on account of the victims' pre-existing mental health concerns. 1. The Tribunal then went on to consider whether BGF had been convicted of a relevant offence. At [26] the Tribunal set out the compensation the Commissioner was seeking to recover in the following terms: 26 The compensation that the Commissioner seeks to recover from BGF relates to that paid to the victim with respect to the two separate and distinct claims for separate and distinct acts of violence within the meaning of s 5. BGF has been convicted of the act of violence which were included in one of those claims and for which he was convicted of two counts of assault occasioning actual bodily harm. 1. The Tribunal noted at [27] that 'BGF has not been charged or convicted of any offence relating to the events that occurred when the victim was assaulted by persons unknown in September 2008' and went on to say the following at [28] to [34]: 28 The statutory compensation paid to BGF was not apportioned as between those two claims. The issue that then arises is whether the compensation which the Commissioner requires restitution for is with respect to a relevant offence committed by BGF, or can include acts of violence that constitute offences he has not been convicted of? 29 The Commissioner submitted that part (c) of the definition of relevant offence in s 58 is applicable. This says relevant offence means, among other things: (c) an offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act. 30 Section 19(4) mirrors s 5(3) of the old Act and provides - … 31 The Commissioner said that in determining whether or not a relevant offence has been committed by BGF one should: 1) Determine the nature of the act of violence upon which the giving of support was based, with reference to all of the material before the original decision-maker, and if the act of violence consisted of invariably particular reference to the date or dates of the incidents alleged in the application and evidenced by material on file will be of assistance. Other matters may relate to any ongoing relationship between the victim and offender, the nature of the offences alleged and particularly any offences which may stand out so as to warrant a finding of being exceptional or outside of the incidents comprising the remainder of the act of violence. 2) Following identification of what the act of violence, being a series of (two or more) incidents that for any reason are considered related, consisted of, it is submitted the question becomes: Is the offence for which the applicant is convicted one that falls within the subset of offences that were accepted by the decision-maker as forming the series of related acts (as found in task 1, above)? 32 Applying that to the circumstances of BGF's case the Commissioner submitted BGF had been convicted of two of a series of related acts of violence perpetrated by him against the victim from 2004 to 2008. A finding that BGF had been convicted of one or more offence "within a series of related acts (being two or more acts that have been related for any reason by the Tribunal)" was said to lead to a compelling conclusion that a relevant offence had been committed. 33 I have considerable difficulty with this proposition. The reasoning would lead to the Commissioner being authorised to recover compensation paid to a victim from persons who have not been convicted of the offence(s) that gave rise to that payment, provided the Commissioner, or the Tribunal on review, is satisfied that the person was convicted of a related offence within the meaning of s 19(4). In my opinion this is not what s 59(1) authorises the Commissioner to do. It is also contrary to the stated object of part 5 of the [New Act]. 34. The Commissioner's discretion under s 59(1) [of the New Act] to make a provisional order is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of related offence makes it clear, whether or not one is considering one act of violence or a series of related acts, that the conviction has to relate to the act of violence (or series of acts of violence) concerning which payment is made. It does not allow the recovery of compensation for acts of violence that the person, from whom recovery is sought, has not been convicted of. 35 With respect to related acts it is a precondition to a provisional order being made that the Commissioner is satisfied (a) that payment to the victim has been made or approved with respect to identified and related acts of violence (b) that the person from whom recovery is sought has been convicted of an offence involving one of more of those acts. 36 This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that persons from whom recovery is sought must have been convicted of the offences arising from the acts of violence for which statutory compensation (or recognition payments) have been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to each such act of violence. 1. At [39] to [40] the Tribunal made the following remarks about the VCT decision: 39 The VCT was also satisfied that the assault on the victim by two strangers in September 2008 was arranged and instigated by BGF and that BGF was an accessory to that assault. However, the VCT expressly found that that act of violence was not related to the other assaults committed by BGF. Given that finding it was not open to the Commissioner when considering making a recovery order to treat the acts of violence that the VCT had expressly found not to be related, to be related for the purposes of recovery. 40. The VCT went onto award the victim compensation with respect to both claims, with no attempt to distinguish between the compensation awarded with respect to each claim. The compensation was therefore awarded, without apportionment, with respect to: - A series of related acts of violence that occurred between 2004 and 2008 which included two assaults that BGF had been convicted of in July 2008; and - A unrelated act of violence involving the assault that occurred in September 2008. It was open to the VCT to assess compensation payable with respect to each of the victim's claim separately 1. At [41], the Tribunal concluded: 41. In those circumstances the compensation that the Commissioner now seeks to recover from BGF is not a payment made with respect to an offence involving a series of related acts of which BGF has been convicted. Rather, it relates to a series of acts, some related, some not, of which BGF has been convicted of two only. In the absence of specific compensation paid with respect to the acts of violence for which has been convicted, I cannot be satisfied that BGF has been convicted of a relevant offence, or that restitution is sought for compensation payable to the victim with respect to a relevant offence. Consideration 1. In our view, the first three grounds of appeal can be dealt with together, these being errors of law in: (a) interpreting the meaning of 'relevant offence'; (b) the interaction between 'relevant offence' and 'act of violence'; and (c) stating the legislative basis on which the appellant Commissioner may issue a provisional order under Part 5 of the New Act 2. We have dealt with the fourth ground separately (i.e. making findings of fact for which there is no evidence). Meaning of 'relevant offence', its interaction with the meaning of 'act of violence' and the legislative basis on which the Appellant can issue a provisional order 1. The Commissioner contends the Tribunal erred, in its reasons for decision, at [33] to [36], in regard to the meaning of the word 'relevant offence' and 'act of violence' in sections 58 and 19 respectively of the New Act and their application to the appellant's restitution order the subject of review. 2. The Commissioner also argues that there is no support for the proposition that the definition of 'relevant offence' prevents the recovery of compensation for acts of violence that the person has not been convicted of, as outlined in paragraph [36] of the Tribunal's reasons. The Commissioner submitted: …the provisions of Part 5 are not intended to be protective of the rights of those convicted of offences that give rise to payments of victims support or compensation. This is particularly so when viewed in the context of a scheme that is widely recognised as beneficial in nature to victims whose applications for support are determined in the absence of, and without any notice being given to, those named as perpetrators of the violence that grounds the award. It is acknowledged, however, that the protections of natural justice should nevertheless be given effect; however such protections are already accounted for in other provisions. Most notably, the opportunity to be heard on the making of a provisional order exists by way of section 62, and a wide discretion is afforded to the Commissioner to vary orders according to the circumstances and objections of the restitution defendant. The Tribunal appears to be interpreting clear and unambiguous words in the Act with reference to the result they produce, and, having taken issue with a perceived harshness of the result, has given the term 'relevant offence' a meaning that conflicts with the plain words of the Act, as well as the purpose of the provisions to which it relates. 1. In his written submissions the Commissioner said the definition of 'relevant offence' in section 58 is 'facilitative and not restrictive (or a safeguard) as the Tribunal has construed it'. It was contended that the Tribunal's use of the term was imprecise and as a result, The Tribunal appears to be requiring the existence of separate acts of violence, rather than separate acts that in themselves may not strictly be an 'act of violence' under the Act, in order to form a series of related acts (which the Tribunal on occasion terms 'a series of related acts of violence'). 1. We agree with the contentions of the Commissioner that the statutory scheme for the recovery of compensation payments made to victims is not intended to be protective of those persons convicted of a relevant offence. However in our view the Tribunal did not err in its construction of the meaning of 'relevant offence' and its interaction with the meaning of 'act of violence' in construing the discretionary power vested in the Commissioner, under section 59 of the New Act, to make a provisional order for restitution. 2. The error, as we have discussed below, lay in the Tribunal's assumption that the decision the Commissioner had placed before it was the Victims Compensation Tribunal's determination of the victim's appeal in respect of her domestic violence claim and her park assault claim (i.e. both claims that had been made by the victim). As conceded by Mr Matulewicz at the hearing on 1 May 2015, the Commissioner did not inform, or place before the Tribunal, two additional decisions made by the Victims Compensation Tribunal on the same day in regard to the victim's appeal. In the absence of being informed of, or provided with the other two decisions, the Tribunal understandably proceeded on the basis that the decision it had before it was the determination of the victim's appeal from the decision of the Assessor. That is, it was a decision in respect of both claims the victim had made and the compensation amount determined in that decision applied to both claims (i.e. the domestic violence claim and the park assault claim, which the Victims Compensation Tribunal found to be separate claims in respect of separate acts of violence): see [26] of the Tribunal's reasons for decision which is set out at paragraph 42 above. 3. Accordingly, the decision of the Tribunal must be read in this context. However, as we have discussed below, the Tribunal erred in this regard as the decision of the Victims Compensation Tribunal that was before it only related to the victim's appeal in regard to her domestic violence claim with the victim being awarded $30,000 statutory compensation in regard to that claim exclusively. 4. For completeness, however, we will briefly deal with the construction issues raised by the Commissioner. 5. It is noted the Tribunal, at [4], in its reasons for decision correctly cited the meaning of 'relevant offence' as it appears in section 58 of the New Act. 6. We accept the submissions of the Commissioner that the correct interpretation of 'relevant offence' in section 58 of the New Act is that the conviction can be as a result of acts, or a series of related acts, that form part of the 'act of violence' for which an award was made. The Commissioner's submissions were put as follows at paragraph [37]: The Act clearly allows the Commissioner the ability to seek restitution from a person who has been convicted of an offence where that offence 'involves' an act that has been accepted by the Commissioner as one of those forming the series of related acts ground a payment of victims support 1. The Commissioner also raised concerns about the Tribunal's looseness of language at [41] of its decision. Of particular concern to the Commissioner is the Tribunal's description of the Commissioner's restitution order as relating to 'a series of acts, some related, some not of which BGF has been convicted of two only'. This wording the Commissioner contends may be interpreted as requiring a direct relationship between the conviction and the act of violence for which compensation was awarded to the victim. In our view the Tribunal's words at [41] do not go so far as suggested by the Commissioner and should be read in the context of the facts, as understood by the Tribunal at the time of hearing. 2. The Commissioner nevertheless urged the Appeal Panel to interpret the Commissioner's power to issue a provisional order, under section 59 of the New Act, in circumstances where: 1. a single conviction exists; and 2. that conviction is for an offence that involves one or more acts that falls within the act of violence as accepted by the decision maker when awarding compensation under the Repealed Act or the New Act. 1. In our view, the Commissioner's construction of section 59 is correct and we do not accept the Tribunal had construed it any differently. 2. It is clear from the definition of 'relevant offence' in section 58 of the New Act that the conviction of the person from whom restitution can be sought under section 59 must have been a conviction for an offence that is connected, in the manner prescribed in paragraphs (a), (b) or (c) of section 58, to the 'act of violence' for which victims support, or statutory compensation has been given. 3. As we have noted, in this case, the victim's award of statutory compensation was made under the Repealed Act. However, nothing turns on this as the victim's claims and the award of compensation were ultimately held, on appeal to the Victims Compensation Tribunal, to be two separate 'acts of violence' giving rise to a separate award of statutory compensation for each 'act of violence.' The words 'act of violence' were defined in section 5 of the Repealed Act in substantially the same terms to that contained in section 19 of the New Act and there is no dispute that the Commissioner had the power to seek restitution from BGF under the New Act. Making findings of fact for which there was no evidence 1. A finding of fact will raise a question of law in limited circumstances. These include where the disputed finding is based on no evidence, or no logically probative evidence (see, for example, Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [91]). To constitute an error the disputed finding must be critical to the making of the decision (see Soliman v University of Technology, Sydney [2012] FCAFC 146 at [23]; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13]). 2. In his written submissions, the Commissioner contended that, at [38] through to [42] of its reasons for decision, the Tribunal found, contrary to the material before it, that the Victims Compensation Tribunal 'gave a single amount of compensation with respect to the two acts of violence which it had found to be unrelated.' That is, this was a finding of fact, by the Tribunal, for which there was no evidence. 3. In his oral submissions at the hearing on 25 November 2014, Mr Ting, on behalf of the Commissioner contended that the reviewable decision, that is, the restitution order made by a delegate of the Commissioner in August 2013, related solely to the domestic violence claim of the victim. In support, he pointed to the fact that the only file number appearing on the record of the restitution order and the Victims Compensation Tribunal decision, was the file number allocated to the domestic violence claim, number 145797. In oral submissions, he asserted that the uncontested evidence, as revealed by the Commissioner's files (not before the Appeal Panel) was that the Victims Compensation Tribunal had awarded the victim a separate amount of $10,000 in relation to the park assault claim (i.e. the claim that was file number 145962). 4. Mr Ting was correct that the decision of the Victims Compensation Tribunal that was before the Tribunal contained the number 145097. However, the decision also referred to claim number 145962. Also before the Tribunal was the decision of the Assessor which identified claim number 145962 as relating to victim's domestic violence claim and claim number 145097 relating to the victim's park assault claim. 5. Mr Ting also submitted that BGF's objection to the Commissioner's Provisional Restitution Order contained a file reference number of 145097, as did the decision of the Commissioner that was the subject of review by the Tribunal Sections 60 to 66 of the New Act make provision for the Commissioner to issue a Provisional Restitution Order, objections that can be made in regard thereto and the Commissioner's determination of any objection. It is the latter which is the decision the subject of review by the Tribunal. 6. On consideration of the material that had been filed by the Commissioner in this appeal, we were not altogether persuaded that the decision of the Victims Compensation Tribunal before the Tribunal below and filed in this appeal, was as contended by Mr Ting, namely a determination by the Victims Compensation Tribunal on the victim's domestic violence claim alone. 7. As a consequence, as noted in paragraph 19 above, we made orders for the filing and serving of any further documents relating to the victim's two claims for compensation. 8. It is evident from the bundle of documents filed and served by the Commissioner, on 28 April 2015, in compliance with that order, that: 1. In his determination, the Assessor had switched the file numbers of the victim's claims, and 2. on 20 June 2012, the Victims Compensation Tribunal made three decisions in respect of the victim's appeal from the determination of the Assessor and of these only one was before the Tribunal below. 1. One of the decisions of the Victims Compensation Tribunal not before the Tribunal was the decision relating to both claims of the victim and in which that Tribunal made the following orders in regard to the orders made by the Assessor: 1) The orders made in claim no 145962 are set aside. 2)The orders made in claim no. 145797 are set aside. 3)With the consent and approval of the applicant's solicitor I propose to re-determine claim no 145962 and to determine the appeal in relation to claim no 145797. 1. The other decision, which contained the number 145962, is clearly a re-determination of the victim's park assault claim and for which the Victims Compensation Tribunal made an award of $9,250.00 to the victim. 2. These decisions, together with the decision that was before the Tribunal below, make it abundantly clear that the decision in which the Victims Compensation Tribunal made its award of $30,000 compensation to the victim solely related to her domestic violence claim. An additional award of $9,250 was made to the victim in regard to her assault in the park claim, which the Victims Compensation Tribunal found to be a separate act of violence to the act of violence that was the victim's domestic violence claim (i.e. not part of a series of related acts as found by the Assessor). 3. Had the Tribunal been provided with these decisions, we doubt it would have erred in its finding that the award of $30,000 statutory compensation to the victim related to both claims (i.e. the domestic violence claim and the park assault claim). 4. In our view, the error is not one for which there was no evidence before the Tribunal. On the contrary, it was one that was clearly open to it on the basis of the material before it. 5. However, we do find that it is an error of fact that went to the Tribunal's review jurisdiction. 6. There is no dispute that the Tribunal had jurisdiction to review the decision of the Commissioner to make a restitution order against BGF under section 59 of the New Act: see section 30 of the Civil and Administrative Tribunal Act 2013, section 9 of the Administrative Decisions Review Act 1997 and section 66 of the New Act. 7. The powers of the Tribunal on administrative review are set out in section 63 of the Administrative Decisions Review Act, which must be read together with the specific powers set out in section 67 of the New Act: 8. Section 63 in Division 3 of Part 3 of the Administrative Decisions Review Act relevantly provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal 1. Section 67 of the New Act relevantly provides: 67 Powers of Civil and Administrative Tribunal on administrative review (1) On an administrative review, the Tribunal may: (a) confirm, vary or reverse the original decision the subject of review, and (b) make any other orders it thinks fit. (2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (3) The Tribunal may confirm a provisional order made under section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision. 1. As noted above, in reviewing the decision of the Commissioner to make a restitution order against an offender, the Tribunal considers the matter a fresh and decides what the correct and preferable decision is having regard to the factual material before it and the relevant law (see subsection 63(1) above). 2. Subsection 67(3) of the New Act provides that the Tribunal may confirm a provisional order made by the Commissioner if satisfied that the applicant has been convicted of a relevant offence and if not so satisfied, it must reverse that decision. 3. On the material before the Tribunal, it found it was not satisfied that BGF had been convicted of a relevant offence. That finding being made on the basis that the Victims Compensation Tribunal had awarded a single amount of compensation to the victim in respect of two separate acts of violence when BGF had only been convicted of offences that arose from the same facts as those constituting only one act of violence (i.e. the domestic violence claim). This, as we have pointed out was an error of fact and one that was fundament to the question as to whether the Commissioner did or did not exercise his power lawfully, under section 59 of the New Act, in making a provisional restitution order against BGF. That is, the Tribunal erred in its finding as to the claim for compensation to which the decision of the Victims Compensation Tribunal applied and hence the factual basis on which the decision the subject for review had been made. 4. While the error was not of the Tribunal's making, in our view it remains a sufficiently fundamental error of fact giving rise to a jurisdictional error. In the event we are wrong, in our view the error is also one that if allowed would be contrary to the objects of the New Act and the Repealed Act. Both Acts not only provide for victims support for acts of violence, but also provision to seek restitution from offenders convicted of offences that arise from an act of violence for which the victim has been awarded compensation. Appropriate orders 1. For the reasons set out above, we are satisfied that the Tribunal below erred as a matter of law and on this basis the appropriate order is to allow the appeal and set aside the decision of the Tribunal. 2. There was no application before the Appeal Panel for leave to extend the appeal to review the merits of the decision. Accordingly, the Appeal Panel was not in a position to determine and take into account the relevant factual matters that might be addressed in otherwise determining the correct and preferable decision given BGF's circumstances. For these reasons, the Appeal Panel formed the view that the most appropriate course was for the matter to be remitted to the Administrative and Equal Opportunity Division of the Tribunal for reconsideration in accordance with the findings of the Appeal Panel that the decision of the Victims Compensation Tribunal in which the Tribunal awarded the victim an amount $30,000 compensation is an award in respect of the victims domestic violence claim. 3. So that the Tribunal can understand more fully the reasons for our findings, a copy of the bundle of documents the Commissioner filed and served in this appeal on 27 April 2015, should also be provided to the Tribunal on re-consideration. Orders 1. The Appeal Panel orders that: 1. the appeal is allowed. 2. the decision of the Tribunal made on 6 June 2014 is set aside; 3. the matter be remitted to the Administrative and Equal Opportunity Division of the Tribunal for determination in accordance with law. 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: 22 July 2015