BXB v Commissioner for Victims Rights [2015] NSWCATAD 173

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BXB v Commissioner for Victims Rights [2015] NSWCATAD 173 Hearing dates: 31 July 2015 Decision date: 31 July 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) Leave granted to proceed to administrative review.

(2) Pursuant to section 35 (1) (e) of the Victims Rights and Support Act 2013 the applicant is eligible for a recognition payment. Catchwords: VICTIMS recognition – domestic violence – physical assault – leave to proceed – absence of internal review Legislation Cited: Administrative Decisions Review Act 1997 Victims Rights and Support Act 2013 Cases Cited: BGD v Commissioner of Victims Rights [2014] NSWCATAD 181 Category: Principal judgment Parties: BXB (Applicant) Commissioner of Victims Rights(Respondent) Representation: Solicitors: BXB (Applicant in person) S Matulewicz, Victims Services (Respondent) File Number(s): 1510281 Publication restriction: A Non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

Ex Tempore 1. These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym BXB initially before the Commissioner of Victims Rights. 2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (the 'Act'). In the absence of any indication of the exact date of lodgement I infer that because of the fact that the claim covers the period up to 2014 and it appears that it was submitted on 9 December 2014. As a result the matter is not to be considered as a 'transitional victims compensation' matter, and is dealt with in its entirety under the 2013 legislation. This assessment is relevant when determining any amount to be awarded to an applicant. 3. The application was considered by an assessor, client claims, being the first instance decision maker on behalf of the Commissioner. The assessor made an administrative decision to dismiss the application predominantly because they were not satisfied that the applicant was the victim of an act of violence within the meaning of the Victims Rights and Support Act 2013. 4. The relevant issue for the first instance decision maker seems to have focused on the fact that whilst there was a large amount of evidence of what would be categorised as "domestic violence" in a normal parlance definition, the Act refers to violence as involving, in effect, violent conduct which occurs apparently in the course of the commission of an offence and the reference extends to "criminal offence". 5. Section 19 of the Victims Rights and Support Act 2013 says, "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. 1. The applicant claims as a primary victim. Whilst there is a large amount of references in the material that was before the assessor to incidents which might be characterised as 'domestic violence', the assessor said at paragraph 14 of their decision of 16 January 2015 that, "Finding an offence occurred using the information contained in the COPS reports is difficult. The applicant started contacting police in April 2012 as she wanted assistance as a result of a verbal argument. Verbal arguments are not an offence under the Crimes Act 1900." 1. It appears for this reason that the claim was unsuccessful and the other aspects of the claim were not determined. That decision, as I have just stated, was made on 16 January 2015. It was conveyed to the applicant shortly thereafter. One of the issues is that the documents were apparently received at the applicant's address for service while she was overseas and as a result there is material before the Tribunal which indicates it did not come to her attention within time, the reference to time being the 28 days required under section 49 of the Act for an internal review.