Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CLC v Commissioner of Victims Rights [2016] NSWCATAD 111 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 – act of violence – burden of proof – act of violence not established on the balance of probabilities 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): 1610092 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 for Administrative Review ('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 19 March 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 17 March 2015, which occurred in Lakemba, NSW. In particular, he alleged: I was on the Westpac Customer Another customer Westpac punch on my chest front of CCTV camera and other Westpac customer and telle (sic) of Westpac. See Police statement. 1. CLC alleged that he suffered unspecified physical and psychological injuries as a result of the act of violence and claimed a recognition payment and expenses (physiotherapy, massage, chemist). However, he did not claim financial assistance for economic loss and he did not attach any accounts/receipts for the claimed expenses to the Application. 2. On 17 September 2015, the Assessor (Client Claims) dismissed the Application on the ground that there was insufficient evidence to establish, on the balance of probabilities, that CLC was the primary victim of an act of violence. 3. The Respondent served a copy of that decision upon CLC on 28 September 2015, by posting it to him. 4. However, the date of posting appears to be incorrect as on 25 September 2015, CLC sent an email to the Respondent, in which he requested an internal review of the decision. In particular, he stated: I need to review the decision for this application due to time assault police not arrived I wait longer than 2 hours for the police and there were more than 10 people present as witness from Westpac bank cashier to public so therefore do not rely upon boy police report totally their failure to be present on timely incident spot and you need to do more than this as review department means itself justice quote… 1. On 2 November 2015, the Senior Assessor deferred determination of the internal review pending receipt of further information that addressed s 19 of the Act, namely a further report that contained witness statements and the CCTV footage from the bank. CLC was also invited to provide a statutory declaration or statement detailing his account of what occurred during the incident alleged in the Application. 2. The Respondent served a copy of the Notice of Deferral upon CLC on 5 November 2015, by posting it to him. 3. On 5 November 2015, the Respondent requested a further report from NSW Police and the Police provided a response on 2 December 2015, which is consistent with the COPS Event report. The Duty Officer from Campsie LAC stated: CCTV from this incident was viewed and no evidence of any assault upon (CLC) was detected. A compliant was made regarding police inaction/lack of investigation. This complaint was rejected after footage from the bank clearly showed no assault had taken place, and the independent bank manager had provided information. The footage and independent witness clearly showed no assault. A further complaint was made and this too was rejected as it was duplicitous. The 'victim' had no medical treatment and no injuries are evident. This file should be returned to Victim Services to adjudicate this claim very carefully. They provided the Respondent with copies of CLC's statement and CCTV footage. 1. On 17 November 2015, CLC submitted a further "statement" to the Respondent, in which he stated: I was on the Westpac bank address (address provided) on 17/03/2015 time around 1:30 pm in customer care section sitting on chair when customer care officer came another person sit next to me without speaking another customer punch on my chest in front of other customer and teller and other customer. I just told why did you punch and talk about you are the next if you believe than instantly I called police control room about assistance this matter should not go further deteriorate but police not arrived on spot i wait long time inside bank then I went campsie police station to reported it same day evening c. campsie police (address provided); nsw police (officer's name provided); also seen doctor medical certificate attached when I apply and lodged on 19/03/2015. Outcome need to get recognition payment. 1. On 13 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 CLC was the primary victim of an act of violence pursuant to s 19 and s 20 of the Act. 2. I note that the Respondent served a copy of this decision upon CLC on 15 January 2016, by posting it to him. Application for Administrative Review 1. 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 did not plead any grounds of review, but merely indicated: I seeking review of the decision on grounds for recognition payment grant. 1. In support of his Application on 18 February 2016, CLC lodged a report from Musab Alam, physiotherapist, which indicates that on 6 February 2016, CLC 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 CLC'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 CLC 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. 1. On 16 May 2016, CLC sent a letter to the Tribunal by facsimile transmission, in which he stated: I (name provided) file no. 1619002 (sic) this matter I eligible to apply for a lump sum payment to a primary victim to acknowledge the trauma suffered and I got grievous bodily harm. Therefore I eligible for $5000 for grievous bodily harm. However, he did not submit any further evidence in support of his Application. Consideration 1. When this matter came before me for hearing on 20 May 2016, CLC appeared in person (by telephone) and the Respondent was represented by Ms Sabesan. 2. I attempted to elicit further information from CLC with a view to clarifying his allegations regarding the act of violence and also ascertaining the injuries that he suffered and the medical treatment that he received for the injuries and whether he wanted an opportunity to obtain and submit further medical evidence in support of his Application. CLC stated that he had a bruise on his chest after the incident, but he had not taken a photograph of the bruise. Otherwise, he declined to provide any further information in relation to his claim and advised the Tribunal to the effect that he did not wish to participate in the hearing and that we had sufficient information to award him compensation. He then ended the telephone call. 3. The Respondent made oral submissions that were consistent with the written submissions that were lodged with the bundle of documents under s 58 of the Administrative Decisions Review Act 1997. 4. At the conclusion of the hearing, I reserved the matter for determination in Chambers. However, on 23 May 2015, CLC sent a letter to the Tribunal by facsimile transmission in which he stated: Subject: Telephone hearing I tried to explain this sentence on 20/05/2016 at 9:30am Sir/madam, I (name provided), file no. 1619002 (sic), this matter I eligible for a lump sum payment to a primary victim to acknowledge the trauma suffered and I got grievous bodily harm. Therefore, i eligible for $5000 for grievous bodily harm. Regardless of whether I am employed or self-employed, I send evidence of income received from other sources such as Centrelink attached for claiming loss of actual earnings $30000… 1. CLC also submitted an Income Statement dated September 2015, which indicated that received the maximum New Start Allowance at that time. 2. In determining the Application, I have read and considered the whole of the evidence that was before the Assessor (Client Services) and the Senior Assessor (upon Internal Review) as well as all submissions made by and/or on behalf of the parties. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons. Act of Violence 1. S 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act. 2. "Act of violence" is defined in s 19 (1) of the Act as follows (relevantly): (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… 1. The onus is on CLC to prove his allegations of assault on the balance of probabilities. While he alleges that he was assaulted by a fellow customer at the Westpac bank in Lakemba on 17 March 2015, he has provided conflicting histories of the alleged act of violence. 2. I note that the Police COPS Event Report dated 17 March 2015, indicates that CLC reported that at about 2:00pm that day he entered the Westpac Bank in Lakemba, NSW, as he had received an on-line alert about a suspicious detail change. The report states (relevantly): When the victim entered the bank he noticed there were no-one sitting in the customer care section. So the victim decided to go withdraw money from at the cashier. After withdrawing money, the cashier told the victim he needed to see customer care and he could go straight to booth 4. When the victim entered booth 4 he noticed there was someone already there. The victim returned to his seat. Seated next to the victim was the POI who the victim has never seen before… When the customer care staff member approached the seats, the victim thought it was his turn. The victim picked up his bags of groceries with both hands, carrying them in front of him. As the victim started to approach the staff member who asked "who's next?", the victim replied "I'm first". The POI has then gotten out of his seat and said "I'm first" as he extended his right arm with a closed fist striking the victim to his left side of his chest. This caused the victim to feel slight pain. The victim automatically put his hands up in front of himself to avoid getting hit, as the POI tried hitting the victim for the second time. The victim said to the POI "Why did you hit me?" The POI did not answer before walking up to the counter. During this time there were about 10 plus customers. The victim spoke to the manager of Westpac and said to him "Why did he hit me?" The manager said "I know you tried to do something for your own protection. Go out for ten minutes and then come back". The victim did not say anything to the manager before returning to his seat where he called '000'. The manager returned and enquired with the victim what his issue was. The manager was unable to solve the issue and started talking about the assault incident. The victim did not want to hear this and as a result walked out of the manager's office. The victim went to the cashier where he wanted to make a complaint about the manager's behaviour. The cashier provided the victim with a business card for the complaint department. The victim waited at his seat for a long time before heading to the medical centre as he started feeling pain where the POI had hit him. The medical centre was busy and told the victim to return after 4:30pm. At 4:00pm the victim attended the Campsie Police Station to report the incident. The incident made the victim feel insulted and mentally traumatised. The victim did not give the POI permission to assault him. 1. However, this version of events is inconsistent with the confused description that CLC provided in his letter to the Tribunal dated 16 May 2015. Unfortunately, as I have previously stated, CLC was not prepared to assist the Tribunal to clarify his allegations regarding the act of violence during the hearing of the matter on 20 May 2016. 2. I note that on 23 March 2015, Police spoke to the Manager of the Westpac Bank at Lakemba. The COPS Event report indicates, relevantly: …The manager informed police he was at the location however does not believe an assault occurred. The manager told police the POI had been sitting at the location for over 40 minutes. The victim had only been in the waiting area for a short time when one of the staffing members asked "who's next?". The POI got out of his chair and started approaching the staff. The victim then started carrying on. The manager told the victim the POI has been waiting for a long time. The manager did not see an assault however saw the POI put out his hand without even looking at the victim. It may be possible the victim had walked into the POI hand. The manager believes the victim was the aggressor when he was standing near the pair. Police have emailed Westpac to obtain CCTV footage of the incident to determine what has occurred… On Wednesday 6th May 2015, police viewed the footage from Westpac bank. Police observed the victim and PN sitting next to each other in the bank before the victim and the PN both got up at the same time and start approaching the customer service staff. Police observed the victim and the PN exchange words before they walk towards each other whilst still moving in a forward direction. As the victim and the PN walk towards the customer service staff, both the victim and the PN nearly colliding into one another, the PN and victim both use their hand in attempt to get in front of one another to be seen by the banking staff. As the victim and PN do so, the bank manager steps in preventing further confrontation. After viewing the footage, police don't deem the contact to constitute an assault as police believe the actions taken by both parties was a result of nearly colliding. 1. Victims Services obtained a copy of the Clinical Notes from CLC's treating Medical Centre. These indicate that on 18 March 2015 (the day after the alleged act of violence occurred), CLC gave a history that the previous day "someone hit him… on his left upper chest". The treating General Practitioner noted subjective complaints of tenderness and organised a chest x-ray. However, there is no report from the chest x-ray in the documents provided. He did not report any objective clinical findings consistent with any chest injury, but instead issued a medical certificate, which indicates that CLC suffers from "multiple medical problems" that all pre-dated the alleged act of violence. The doctor also issued a Centrelink Medical Certificate dated 18 March 2015, in which he certified that CLC was unfit for work or study from 18 March 2015 to 17 June 2015, and that this was the result of pain due to moderate osteoarthritis in back and type 2 Diabetes. He also stated that CLC suffered from pain in his left wrist and had difficulty using his left hand, due to osteoarthritis that worsened after a fall and a fracture of his left scaphoid, and severe lower back pain and certified that these "conditions" were permanent. 2. The clinical notes also indicate that on 19 March 2015, CLC attended the medical centre and requested Centrelink medical certificate "for hernia, hand pain". However, the doctor refused his request and he reported (relevantly): …He felt angry and started to abuse me. He feeling that if I know hernia I would write the certificate. I said to him, that's alright. OK if you can leave but stood near to me. I was worried so I call the practice manager (name provided) who attended instantly. I told (the practice manager) if the patient go out, then the patient point to pimple in his face stated I am sick, this pimple on his chin which is almost not seen… 1. On 27 March 2015, CLC again attended the medical centre and requested a medical clearance to operate a Public Passenger Vehicle. The doctor certified that CLC fit to hold an unconditional Authority as a Public Passenger Vehicle Driver. However, he did not record any complaint of injury to the left upper chest or report any clinical findings of injury at that time. 2. I have also viewed the CCTV Footage from Westpac Bank. Having done so, I have determined that the footage does not support CLC's descriptions of the incident that he provided to Police on 17 March 2015 and to the Tribunal on 16 May 2016. There is no video evidence that supports a finding that the alleged perpetrator punched CLC. Rather, it indicates that as CLC and the alleged offender moved towards the staff member's office, CLC stretched his left arm out in front of the alleged offender (who was on his left side) in order to try to prevent him offender from entering the staff member's office first. 3. In my view, the CCTV footage is consistent with the evidence of the independent bank manager and it supports the decision made by the Police, namely that there was no evidence of an assault upon CLC. 4. For these reasons, I am not satisfied that CLC has discharged his onus of proving on the balance of probabilities that he was the primary victim of an assault on 17 March 2015. Injury 1. Even if I was satisfied that CLC was the primary victim of an act of violence, I am not satisfied that the medical evidence establishes that he suffered any injury as a direct result of that act. 2. S 20 of the Act defines "injury" as meaning "actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property." 3. In relation to whether or not CLC suffered actual bodily harm as a result of the assault, I refer to the decision in R v Donovan [1934] 2 KB 498 at 509, which is authority for the proposition that the ordinary meaning of "harm" "includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling." 4. While the treating general practitioner noted a subjective complaint of left sided upper chest pain on 18 March 2015, he did not report any objective clinical findings (such as a mark or bruise) that is consistent with the existence of a physical injury. He did record any complaints that are consistent with any resulting psychological injury. In any event, on 19 March 2015, CLC made no further complaints regarding his alleged physical or psychological injuries and on 25 March 2015, CLC received a medical clearance to hold an unconditional Authority to drive a Public Passenger vehicle. 5. In the absence of any medical evidence that establishes that CLC required any ongoing treatment for the alleged "tenderness" noted by the treating General Practitioner on 18 March 2015, I am not satisfied that he suffered any hurt or injury that was more than merely transient or trifling as a result of the alleged act of violence. Determination 1. For these reasons, I am not satisfied that CLC suffered actual bodily harm, let alone grievous bodily harm, as a result of the alleged assault on 17 March 2015. 2. As a result, CLC is not eligible for either financial support for immediate needs or a recognition payment under the Act. 3. I further note that while CLC purported to apply for administrative review in relation to a claim for "financial support for economic loss", he did not make such a claim in his Application for Victims Support. As a result, there is no administratively reviewable decision and I decline to determine this ground of current Application for Administrative Review. Conclusion 1. Pursuant to s 63 (3) (a) of the ADR Act, I have decided to affirm the decision of the Senior Assessor dated 8 January 2016 and I make that order. 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: 07 June 2016