Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BMF V Commissioner of Victims Rights [2016] NSWCATAD 54 Hearing dates: 5 February 2016 Date of orders: 22 March 2016 Decision date: 22 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. Grant leave to BMF to file the Application under Section 55 (2) (b) of the Administrative Decisions Review Act 1997. 2. The decision of the Assessor dated 20 January 2015 is set aside and the following decision is made by way of substitution: a. BMF was the primary victim of an act of violence pursuant to s 19 and s 20 of the Victims Rights and Support Act 2013 ("VRSA"). b. BMF is eligible for a recognition payment under Category C, pursuant to s 35 (3) (c) of VRSA as she was the victim of an act of violence resulting in grievous bodily harm; and c. BMF is eligible for a recognition payment in the sum of $5,000 pursuant to clause 12 of the Victims Rights and Support Regulation 2013. Catchwords: Victims Support and Recognition – assault – failure to apply for internal review – jurisdiction - whether assault resulted in grievous bodily harm Legislation Cited: Civil and Administrative Tribunal Act 2013 (No. 2) Administrative Decisions Review Act 1997 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Cases Cited: Project Blue Sky v ABA 194 CLR 355 Haoui v Regina [2008] NSWCCA 209 AM v R [2012] NSWCCA 203 Category: Principal judgment Parties: BMF (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: BMF (Applicant in Person) Victims Services (Respondent) File Number(s): 1510744 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 1. These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym BMF initially before the Commissioner of Victims Rights ("the Commissioner"). 2. Following a hearing of the matter on 5 February 2016, I made the following ex-tempore orders: 1. Grant leave to lodge the Application under s 55 (2) (b) of the Administrative Decisions Review Act ("the ADR Act"). 2. Pursuant to s 63 of the ADR Act, the decision of the Commissioner's delegate dated 20 January 2015 is set aside and the following decision is made in substitution: 1. The applicant is a primary victim of an act of violence pursuant to s 19 and s 20 of VRSA. 2. The applicant was the victim of an act of violence resulting in grievous bodily harm. 3. The applicant is eligible for a Category C recognition payment in the sum of $5,000. My reasons for that decision are set out below. Background 1. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (the 'Act') on 8 December 2014. BMF alleged that she was the primary victim of an assault by a taxi driver at Brookvale, New South Wales, on 7 October 2014. She alleged that the offender became aggressive when she asked to be taken to a non-residential address and that he tried to eject her from the taxi. He punched her in the arms, especially on her right hand, pulled her arm and wrenched it. She alleged that she suffered physical and psychological injuries as a direct result. 2. The application was considered by an assessor, client claims, being the first instance decision maker on behalf of the Commissioner. On 20 January 2015, the assessor made an administrative decision that BMF was the primary victim of an act of violence and that the act of violence fell into the recognition payment category D, being an assault (not resulting in grievous bodily harm). The assessor determined that BMF was eligible for a recognition payment pursuant to s 35 of the Act and approved payment of a Category D recognition payment pursuant to s 35 (4) (d) of the Act in the sum of $1,500. 3. I note that the Commissioner served a copy of the Assessor's decision upon BMF by positing and emailing it to her on 23 January 2016. Application for Administrative Review 1. This Tribunal's powers in relation to an application for administrative review are governed by both the Victims Rights and Support Act ("VRSA") and the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"). 2. S 51 (1) of VRSA provides in effect that an applicant for a recognition payment who is aggrieved by the decision of a decision may apply to the Tribunal for review of a decision made by the Commissioner after an internal review of that decision under s 49 of the Act. 3. S 55 (3) of the ADR Act provides, in effect, that BMF may not make an application for review of the assessor's decision unless she has duly applied for an internal review by the Commissioner and the review is taken to have been finalised under section 53 (9) of VRSA. However, she did not apply for an internal review by the Commissioner. 4. S 55 (4) (b) of the ADR Act provides (relevantly) that the Tribunal may deal with an application for the administrative review even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that "it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned." 5. S 55 (5) of the ADR Act effectively provides that in determining whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to (a) the time when the applicant became aware of the making of the decision, and … (c) such other matters as it considers relevant. 6. S 63 of the ADR Act provides: (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. In this matter, BMF lodged her Application for Administrative Review on 24 November 2015, approximately 10 months after she was notified of the Assessor's decision. 2. It is therefore necessary to determine a preliminary issue, namely whether Tribunal has power to determine the Application. This is dependent upon BMF satisfying the requirements of s 55 (4) (b) of the ADR Act. Subject to finding jurisdiction, the Tribunal must then determine whether the assault resulted in grievous bodily harm or actual bodily harm and determine the appropriate category of recognition payment. Jurisdiction 1. In her Application for Administrative Review, BMF submits that she lodged her Application outside time because she has "serious medical conditions and I wasn't able to address the matter and I wasn't aware of my legal rights to appeal the decisions". 2. In view of previous administrative review proceeds that she commenced in this Tribunal on 20 August 2014 (matter no. 1410515), I reject BMF's submission that she did not request an internal review from the Commissioner because she was not aware of her legal rights to appeal the decision. The Tribunal's records indicate that it heard BMF's previous Application for Administrative Review on 5 December 2014 and that the evidence was to the effect that the Commissioner had advised her of her review rights and that she requested an internal review before she lodged the Application with the Tribunal. This evidence is contrary to her submission in the current proceedings that she was not aware of her review rights. 3. In relation to BMF's submission that she was not able to address this matter within the required time because she suffered from "serious medical conditions", I note that she has filed medical reports from Dr Hassim, GP, dated 8 October 2014 and 20 March 2015. While the 2014 report was available to the Assessor, the 2015 report post-dates the Assessor's decision. 4. I refer to Dr Hassim's reports. I note that in 2014 he reported that BMF "has been exposed to grievous bodily harm. It has left her anxious and afraid, fearful for her life. She now suffers from insomnia. I have sent her for x-rays to determine the extent of her injuries". He also reported that she was suffering from "flashbacks" and that she displayed signs of anxiety; bruising on the inside and the lateral aspect of her left arm; tenderness of the body generally including the right lower back; and evidence of nerve root impingement at the L2/3 level. In 2015 he reported that BMF continued to present with moderately severe pain in both legs and pins and needles in the soles of both feet that had not eased since the assault; symptoms of depression; and evidence of nerve root impingement at the L2/3 and L3/4 levels. He attributed these symptoms to the assault. 5. At the hearing on 5 February 2015, BMF advised the Tribunal that following the assault, she consulted her doctor about twice per week and that she continued to receive "counselling" from him for her psychological symptoms (particularly for anxiety and fear). She also said that she consulted a Counsellor who works with "SWAP" for more than a year, but that she had not obtained a report from that Counsellor because of the cost involved. She also said that she had to take a lot of time off work because of her injuries and that she is still having treatment for her back injury, although her current treatment options are restricted by her pregnancy (with respect to which she has also been hospitalised "on and off"). 6. Section 55 (5) (c) of the ADR Act confers a wide discretion on the Tribunal in determining whether the Application was made within a reasonable time following the Assessor's decision and it allows the consideration of evidence that it considers relevant. 7. In my view, both the worker's oral evidence and the medical evidence from Dr Hassim are relevant to the determination of this issue. Based upon that evidence I am prepared to accept that BMF has satisfied the requirements of s 55 (4) (b) of the ADR Act as it is necessary for the Tribunal to deal with the current Application in order to protect BMF's interests. I am also prepared to accept that she made the current Application within a reasonable time after the Assessor's decision (as required by s 55 (5) of the Act). 8. I am satisfied that the Tribunal has jurisdiction in this matter. Grievous Bodily Harm 1. In effect s 35(3) (c) of the Act provides that a Category C Recognition Payment is given in respect of an act of violence involving an assault resulting in grievous bodily harm. However, the term "grievous bodily harm" is not defined in VRSA. 2. At the hearing on 5 February 2016, BMF appeared in person and Mr S Matulewicz appeared for the Commissioner. I considered all of the evidence lodged with the Tribunal, including the Section 58 documents lodged by the Commissioner, and I also heard oral submissions from the parties. 3. BMF submitted that she suffered both physical and psychological injuries as a result of the assault and she is still had treatment for those injuries. In effect, she submitted that her injuries are "really serious" and that the assault caused "grievous bodily harm" and she is entitled to a Category C recognition payment. 4. On behalf of the Commissioner, Mr Matulewicz submitted that established case law indicates that "grievous bodily harm" means "really serious injury". He submitted that the evidence of nerve root impingement in the lumbar spine would satisfy that definition, subject to the Tribunal being satisfied that the pathology causing that impingement resulted from the assault. However, he submitted that there is insufficient evidence to satisfy that definition solely on the basis of the alleged psychological injury as there is no evidence that a formal diagnosis has been made by a psychologist or psychiatrist. 5. In relation to the issue of statutory interpretation, I note that in Project Blue Sky v ABA 194 CLR 355, the High Court of Australia stated (per Brennan CJ): However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out [57]: "The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted) 1. Some guidance regarding the meaning of "grievous bodily harm" may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209. In Haoui the Court considered its meaning in the context of the Crimes Act 1900 and Her Honour stated (relevantly): 137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one." 138 The question whether an injury amounts to "grievous bodily harm" has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the "middle third" of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43. 139 However, there are other injuries, which although "really serious injuries", are nonetheless less severe than those to which I have just referred. The fact that the concept of "grievous bodily harm" encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim's injuries were not "the worst case of grievous bodily harm", but were far from the low end of the range of injuries amounting to "grievous bodily harm". Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was "seriously injured", that he had suffered "significant injury", and where the offence was described as involving "gratuitous cruelty": Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim's cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12. 140 It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that "It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm" However, no authority is cited for the proposition. 141 In my opinion, the jury verdict that Mr Mousselamani suffered "grievous bodily harm" was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was 'red' for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short. 142 In the appellate context in which I am considering whether the injury in this case constituted "grievous bodily harm", two fundamental matters have to be kept in mind. The first is that there is a range of "really serious injury" and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is "really serious injury", then there is "grievous bodily harm". Secondly, the question whether particular harm amounts to "grievous bodily harm" is a question of fact for the jury. 1. I note that this decision was cited with approval by the Court of Criminal Appeal in AM v R [2012] NSWCCA 203, in which Johnson J stated (relevantly): 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209… 1. Based upon the available evidence and particularly the evidence of nerve root compression at the L2/3 and L3/4 levels, which was not available to the Assessor, I am prepared to accept that the assault resulted in "really serious" physical injury. I am therefore satisfied that the assault resulted in "grievous bodily harm" and not "actual bodily harm" as the Assessor determined. Recognition Payment 1. For the reasons set out previously in this decision, I am satisfied that BMF is eligible to receive a Category C recognition payment pursuant to s 35 (3) (c) of VRSA and pursuant to clause 12 (c) of VRSA, she is entitled to a recognition payment in the sum of $5,000. 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 March 2016