CLC v Commissioner of Victims Rights [2016] NSWCATAD 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CLC v Commissioner of Victims Rights [2016] NSWCATAD 110 Hearing dates: 20 May 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Before: M Riordan, Senior Member Decision: The decision of the Senior Assessor is affirmed. Catchwords: Victims Rights and Support – administrative review Legislation Cited: Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997 Cases Cited: R -v- Donovan [1934] 2 KB 498 at 509 Category: Principal judgment Parties: CLC (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: CLC (Applicant in person) Victims Services (Respondent) File Number(s): 1610097 Publication restriction: A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision 1. In these proceedings, which were commenced by an application ('the Application") filed on 12 February 2016, the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support that was lodged by the applicant (known by the pseudonym 'CLC').

Background 1. On 3 September 2015, CLC lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 ("the Act"). He alleged that he was the primary victim of an act of violence, in the nature of an assault that occurred on 28 August 2015, which occurred in Greenacre, NSW. In particular, he alleged: Person from the above mentioned shop made punch grievous body harm to me see police statement. 1. The Applicant alleged that he suffered an unspecified physical injury as a result of the act of violence and claimed a recognition payment. However, he did not claim financial assistance for immediate needs or financial assistance for economic loss. 2. The Police COPS Event Report dated 28 August 2015, indicates that the Applicant reported that at approximately 4:45pm that day he attended a Smash Repairs business (name provided) in Greenacre and that he parked his vehicle in the service driveway. A male employee of that business asked him to move his vehicle from the driveway, but he "insisted that he required parts for his car and that he required assistance". The employee "became aggravated that he was not following his instructions and began swearing" at him. A number of other employees overheard the arguing and swearing and watched the incident take place. After a short period, the male employee grabbed his left arm and began to push him away from the driveway. He got into his car and left the premises before contacting Bankstown Police, as he did not wish to wait for Police to attend. The Police came to his home that evening and obtained his version of events. They advised him of his options in relation to taking action against the alleged perpetrator, but he told them that he did not wish to provide a formal statement and that he simply wished them to make a report of the incident "in the event that further incidences occurred" involving the alleged perpetrator. Police advised the Applicant that they would attempt to identify the alleged perpetrator and speak with him in relation to the incident. The report notes the Applicant as being "unemployed". 3. On 30 August 2015, the Applicant obtained a medical certificate from Canterbury Afterhours Clinic, which indicates that he provided a history that he was "assaulted and was punched by someone on the left deltoid and back" on 28 August 2015. The doctor noted that he had been "taking over the counter analgesics" since then and he reported, relevantly: On examination no bruise or external mark seen but mild tenderness positive on left shoulder and on back below neck. Good range of movement of upper and lower limb. All other examination unremarkable. 1. On 30 November 2015, the Assessor (Client Claims) dismissed the Application on the ground that there was insufficient evidence to establish, on the balance of probabilities, that the Applicant was the primary victim of an act of violence. 2. I note that the Respondent served a copy of that decision upon the Applicant on 3 December 2015, by posting it to him. 3. On 4 December 2015, the Applicant sent an email to the Respondent, in which he requested an internal review of the decision. In particular, he stated: I was on address (provided) on 28/07/2015 (sic) time around 3:30 pm in customer care section sitting on chair car when customer care officer came I came outside another person from next door came to me without speaking another customer use my shirt collar on my chest and pushed front of other customer I just told why did you use this behaviour and left the site. I called police control room about assistance this matter should not go further deteriorate but police not arrived on spot I wait long time outside then Campsie police came to my rented premises and I reported this matter same evening… outcome need to get recognition payment. 1. On 11 December 2015, the Respondent wrote to NSW Police and requested a brief report and copy of any statements obtained in relation to their investigation of the alleged act of violence. 2. On 16 December 2015, the reporting Police Officer sent an email to the Respondent, which repeated the contents of the COPS Event Report and stated that Police took no further action in relation to the matter. 3. On 8 January 2016, the Senior Assessor completed an internal review and dismissed the Application for Victims Support on the basis that the available evidence did not establish, on the balance of probabilities, that the Applicant was the primary victim of an act of violence pursuant to s 19 and s 20 of the Act. 4. I note that the Respondent served a copy of this decision upon the Applicant on 15 January 2016, by posting it to him. 5. Application for Administrative Review 6. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"), which 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. The Application for Administrative Review pleaded the following grounds: Original decision and review decision was incorrect both matter victim file #217163, 223719 had assault with physical me. Therefore, I am confirmed to get recognition payment from Australian Government called bodily harmed. 1. In support of his Application on 18 February 2016, the Applicant lodged a report from Musab Alam, physiotherapist, which indicates that on 6 February 2016, the Applicant complained of "severe pain in his lumbar and cervical spine". However, he did not provide any history of the alleged act of violence. The report indicates that this was the Applicant's third treatment session under "EPC Medicare". The fact that this was in the nature of a progress report explains why the report did not contain a history regarding the "injury", but I note that the Applicant did not obtain a comprehensive report from the physiotherapist in support of his claim. The report concluded: Patient is unfit to return back to work unless appropriate duties are available.