Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 Hearing dates: 27 May 2016 Date of orders: 06 July 2016 Decision date: 06 July 2016 Before: M Riordan, Senior Member Decision: 1. The application for administrative review with respect to financial support is dismissed. 2. The decision of the Senior Assessor dated 15 April 2016 is set aside. In substitution for that decision the following decision is made: "The applicant is eligible for a Category C recognition payment in the sum of $5,000." Catchwords: Victims Rights and Support – administrative review – jurisdiction of the Tribunal – grievous bodily harm 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: Project Blue Sky v Australian Broadcasting Authority 194 CLR 355 R v Donovan [1934] 2 KB 498 BXB v Commissioner of Victims Rights [2015] NSWCATAD 173 BMF v Commissioner of Victims Rights [2016] NSWCATAD 54 Haoui v Regina [2008] NSWCCA 209 AM v R [2012] NSWCCA 203 Texts Cited: Statutory Interpretation in Australia (8th Edition, Pearce and Geddes) Category: Principal judgment Parties: BMF (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: Women's Legal Services NSW (Applicant) Victims Services (Respondent) File Number(s): 1610197 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 26 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 'BMF'). 2. BMF was not legally represented in relation to her Application for Victims Support. However, she is legally represented in relation to her current Application for Administrative Review by Women's Legal Services NSW. 3. 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. Background Application for Victims Support 1. On 7 December 2015, BMF lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 ("the Act"). She alleged that she was the primary victim of an act of domestic/family violence that occurred on 29 November 2015, which occurred in Oyster Bay, NSW. In particular, she alleged: I never had permanent accommodation and my partner would take me to the hotels and bring pocket knifes (sic), he would also be very aggressive and drive fast in his vehicle, I have all hospital records I am recently found pregnant to my partner, violent toward 1. BMF alleged that she suffered a psychological injury as a result of the act of violence and she claimed financial assistance for immediate needs (being unspecified costs for transportation by Ambulance to Royal North Shore Hospital on 30 November 2015) and a recognition payment. However, she did not claim financial assistance for economic loss and she did not attach any accounts/receipts for the claimed expense to the Application. 2. BMF stated that she reported the act of violence to NSW Police on 4 December 2015. However, it appears that she did not provide a Statement to Police until 19 January 2016 and that the COPS Event Report was created on that date. She stated that when she began seeing the offender, away from her usual place of employment, they would meet at various hotels in and around Sydney, where she would provide him with certain services for money. Her would bring a bag with him, which contained alcohol and "metal knifes" (sic). On a night in November 2015, she went for a drive with the offender in his car and during the drive he punched her in the left shoulder. She stated that this also occurred on a number of other occasions while they were "driving", but she could not recall the dates and she could not recall whether or not she suffered bruising as a result of these "punches". The offender also drove very fast and this frightened her. On another occasion in November 2015, the offender locked her in his car and closed the garage door so that she could not get out because 'he did not want her to meet his parents'. In November 2015, she found out that she was pregnant with the offender's child and since then they argued about a lot of different things. She continued to see the offender until 5 December 2015, but had not seen him since that date "…as he left me in a bad place". The Police report indicates, relevantly: …Police enquired as to the reason the victim was reporting the matter to police and if she wished any action to be taken. The victim continually stated she was 'threatened' and 'verbally abused' by the POI, but when asked what these threats were, stated that the POI had called her a 'prostitute', something she was greatly offended by. The victim continually stated that she wanted to 'clear her name' and set the record straight. She stated the POI was spreading rumours about her and was damaging her reputation; she made no reference to any direct threats on her life or to her safety from the POI. The victim stated the POI's parents were also abusive towards her. The victim described this abuse as non-acceptance of her employment by the parents and as such, them not wanting her to be with their son… 1. On 8 January 2016, Victims Services received an unsigned and undated statement from BMF, in which she alleged that her relationship with the offender began to change when she declined to take the 'morning after pill'. She stated, relevantly: …He then 'started getting aggressive during the car vehicle recklessly hitting me and being abusive behaviour towards me evolving his friends and me getting threatened by them (he) bringing knives to hotels in a bag and I would question that and he locked me in a garage with garage door closed. (The offender) got his friend involved (name provided) threatening me with his mates. As time went on I ended up falling pregnant and (the offender) is the father as soon as he knew he wanted me to abort the child I said no and he started acting weird hanging the phone ignoring me and didn't show up when he said he would meet me leaving me hrs waiting for him… I then decided to introduce myself to his family… they the parent never excepted (sic) me the Father (name provided) treated me badly then the family said I can stayed (sic) over except the next week when I ended up at the family door step they turned against me and told me to leave and called the police for no reason nothing happened regards to police. (The offender's) family didn't care about me nor the baby they want nothing to do with us I got treated horribly and ended up hospitalized on numerous occasions because of the mistreatment that (he) had put me through during the time we were together I have lost weight and (he) has left me in a very difficult situation to cope with the pregnancy alone… 1. On 27 January 2016, Victims Services received further submissions from BMF, in which she stated that she wished to address her concerns "Regards to rental contract and domestic violence matter". She stated that she required some urgent assistance "to chase up the tenant to pay the rent before Christmas and or after New Year 2016 so I have a place to live". She also stated, relevantly: …I need someone to help me and do something about the fact that he doesn't want to pay his rent half and I won't have a place to leave and I have the pressure by the Real-Estate to pay this rent as its overdue one month and I need someone to step in to (the offender) make this payment in this contract and doesn't want me to take responsibility, I am struggling because I have no income at the moment so if someone can come to my aid to spend Xmas at (location provided) or at least hold the lease until I got to Tribunal next year as I am pregnant. (The offender) has the pay for the six months lease. 1. I note that BMF submitted a number of tax invoices for accommodation at various hotels during the period from 18 September 2015 to 23 November 2015 and copies of the Application for the lease of the relevant property and copies of the clinical notes from her Social Worker in relation to her various hospital admissions. Decision at First Instance (Recognition Payment) 1. On 2 February 2016, the Assessor (Client Claims) issued a Notice of Decision and determined that BMF was the primary victim of an act of violence. The Assessor found, relevantly, that the Hospital records evidenced that BMF had experienced domestic violence (both physical and verbal abuse) and that she felt 'depressed, helpless and anxious' and she had therefore established that she had suffered an injury as a result of the act of violence in November 2015. The Assessor approved a Category D recognition payment in the sum of $1,500 as the evidence indicated that BMF was the victim of an assault that caused actual bodily harm but not grievous bodily harm. 2. I note that the Respondent served a copy of that decision upon BMF. However, the evidence before me does not indicate either the date of service or means of service of that decision. Application for Administrative Review (Recognition Payment) 1. On 24 February 2016, BMF lodged the Application for Administrative Review of the Assessor's decision with this Tribunal. She sought review of the Assessor's decision on the grounds that she 'did not agree with the amount that she received and that domestic violence happened at the property leased and that she had lost work'. 2. On 18 March 2016, BMF sent written submissions to the Respondent (although I note that these appear to have been prepared by her current legal representatives), in which she argued that the decision to approve a category D recognition payment was incorrect because it failed to take into account the full extent of the psychological injury that she had suffered as a result of the act of violence. She stated that the correct and preferable decision would be a decision that approved a category C recognition payment as she had suffered "grievous bodily harm". She provided extracts from several reported cases and stated, relevantly: …I suffered both actual physical injuries and psychological injuries as a result of the acts of violence by (the offender). The physical injuries were bruising to my arm area from being hit and a back injury from his dangerous driving... 1. However, I note that BMF also complained that the Assessor had failed to determine her applications for financial assistance. Internal Review Decision (Recognition Payment) 1. On 29 March 2016, the Senior Assessor deferred the internal review pending receipt of psychological/psychiatric evidence and stated, relevantly: 8. To establish grievous bodily harm, I must be satisfied the applicant has suffered an injury that is "really serious" but it need not be permanent, long lasting or life threatening. Whether or not I consider the harm as "grievous" is a question of fact. 9. in circumstances where an applicant relies on the injury of "psychiatric or psychological harm" as evidence of grievous bodily harm, I must take into account whether the psychiatric evidence establishes a significant impact to the applicant's day to day functioning and overall impairment. 10. On the current counselling and psychiatric report before me, I am not satisfied that the applicant experienced a reportable psychological injury which was as a direct result of the act of violence. In considering the particulars of the psychological injury such as the duration, effect and prognosis, again I am not satisfied in the current circumstances and facts that the nature of the "injury" was grievous. 11. I note a category D recognition payment is approved where the applicant can establish that they sustained "actual bodily harm". "Actual bodily harm" means any hurt or injury to a person, which does not have to be permanent, but is more than transient and trifling (R v Donovan [1934] KB 498). 12. I am aware the applicant sought to have her matter determined at the next listing date. However, in order to provide the applicant procedural fairness, I will have to defer the matter for further psychological or psychiatric evidence. 1. While I note that this decision was served upon BMF, the evidence before me does not indicate the date and method of service. 2. However, on 31 March 2016, BMF sent a facsimile letter to the Respondent, in which she stated: I will not be giving any further information or submissions when I have provided everything. I am pregnant with serious medical conditions and I will not wait any longer then I have this stressing me out. I want to take this to the Tribunal. NCAT this is causing so much stress and strain. No time to wait. Initial Hearing of the Application for Administrative Review 1. The Application for Administrative Review was initially listed for hearing before Senior Member McAteer of this Tribunal on 8 April 2016, when the Senior Member made the following orders in relation to financial assistance: 1. The matter is remitted under s 65 (1) of the Administrative Decisions Review Act 1997. 2. The Commissioner of Victims Rights is to determine the matter and notify the applicant by 22 April 2016. 3. If the applicant is satisfied with the Commissioner's decision she should notify the Tribunal of this by 30 April 2016. 4. The proceedings are adjourned until 27 May 2016. 5. Section 58 documents and submissions are to be filed by the respondent by 13 April 2016. 6. Any further material to be submitted by the applicant is to be submitted by 20 May 2016. Decision at First Instance (Financial Support) 1. On 14 April 2016, the Respondent determined the application for financial support. The Assessor determined that BMF was the primary victim of an act of violence and approved payment of financial assistance for immediate needs in relation to storage fees of $257.00. 2. The Notice of Decision states that cl 8 of the Victims Rights and Support Regulation ("the Regulation") provide for financial assistance of up to $5,000, subject to proof that the expenses claimed were incurred as a direct result of the act of violence. In this matter, BMF claimed expenses totalling $9,3634.88, comprising: Storage fees ($257); Rental assistance (arrears in the sum of $2,600); Hotel invoices ($5,290.67); Room charges ($3,190); Phone charges ($1,818.45); Credit Card debt ($4,089.43); and a Transport NSW Fine ($200). 3. In relation to the rental assistance claim, the Assessor determined that the evidence indicated that both BMF and the alleged offender were liable for the rental arrears as the lease was in both names and that by 5 January 2016 neither party lived at the property. Further, the Hospital's clinical notes dated 5 January 2016 evidenced that BMF was: …not at risk of harm from partner, has ended relationship and partner not interested in a relationship with her or future child. 1. The Assessor determined that rental expenses may be approved where the victim and alleged offender lived together and the applicant fled violence in order to remain safe, but that this was not the current scenario. The claim for rental assistance was therefore declined. 2. In relation to the claim for hotel fees, the Assessor determined, relevantly: 18. It is clear that at some point the applicant and the alleged offender had a professional-client relationship prior to the act of violence. Sometime after, the relationship progressed and the applicant understood that she and the alleged offender were in an intimate personal relationship. 19. Ordinarily, assistance if provided to help the applicant remove themselves from the company or presence of the alleged offender. As the majority of the hotel accommodation expenses and invoices are for the provision of professional services to the alleged offender, these expenses could more appropriately be characterised as business expenses. 20. In relation to the invoices for 1 and 3 November they are in the alleged offender's name and accordingly are not payable. 21. Bearing in mind that the act of violence occurred sometime in November 2015, I am mindful that the invoices dated 13, 15 and 22 November 2015 might flow from the act of violence. For this reason, these expenses are deferred pending further information from the applicant. Could the applicant explain whether she stayed on these dates with the alleged offender or whether she stayed on her own to flee the alleged offender? 22. Whilst this is a difficult situation for the applicant, it is not the intention of the Victims Support Scheme to provide financial assistance for a situation where the applicant shared time with the alleged offender. Expenses that might be considered must flow from the act of violence. Accordingly, I am not able to approve some of these expenses as they do not arise as a direct result of the act of violence. 1. In relation to the claim for room charges, the Assessor determined based upon the evidence (invoices) that these expenses related to BMF's occupation and did not arise as a direct result of the act of violence. 2. In relation to the claim for phone charges, credit card debt and Transport NSW fine, the Assessor was not satisfied that these were incurred as a direct result of the act of violence and determined that they were more properly characterised as an ordinary expense of living. The Fine notice was also issued "some months" after the act of violence alleged in the Application. 3. The Assessor determined, relevantly: 27. Expenses for immediate needs are approved when they arise as a direct result of the act of violence and enhance the applicant's health, safety or wellbeing. On the evidence before me, there is insufficient evidence to establish a direct link between most of the expenses incurred (storage costs notwithstanding) and the act of violence that the legislation requires. … 29. I am not satisfied that the other expenses submitted were treatment or other measures that needed to be taken urgently, as a direct result of the act of violence, to secure the victim's safety, health or wellbeing pursuant to section 26(1)(b) of the Act. Payment of the other requested expenses is not approved. … 30. As mentioned, the invoices for 13, 15 and 22nd November 2015 will be considered in due course upon the receipt of further information from the applicant. 1. In relation to the claim for financial assistance for economic loss, the Assessor stated that cl 8 (2) of the Regulation provides that a primary victim of an act of violence can receive up to $30,000 as financial assistance for economic loss, including up to $20,000 for loss of actual earnings (see: cl 8 (2) (a)). Further, cl 7 of the Regulation provides that loss of actual earnings is to be calculated at the rate stated in the table – 'After 26 weeks, maximum weekly payment" found in the "Workers Compensation Benefits Guide". Money received by the applicant from other sources such as leave entitlements, workers compensation, income protection and Centrelink benefits may be deducted from this rate. 2. The Assessor noted that BMF submitted invoices totalling $66,171, with respect to 'entertainment services' that she provided to the offender between 25 September 2015 and 23 November 2015. The Assessor determined, relevantly: Invoices from 25 September to 28 October 2015 36. I have read police report (number provided) and note that the Applicant told the police that, "the POI apparently amounted to (sic) a $30,000 bill with the victim over 7 months. He then told the victim he loved her and an agreement was made to waive the debts owing. The relationship continued on a purely sexual basis. The victim recently told the POI that she was five weeks pregnant." Noting other evidence, it appears they entered an intimate personal relationship. 37. Further, I note that the act of violence to which the police report (number provided relates took place in a car at Oyster Bay and not during the above times when the applicant provided professional services to the alleged offender. I also note that most of these debts were incurred prior to the act of violence which took place sometime in November 2015. 38. Accordingly, the above debts do not flow from the act of violence. To explain, this is not a situation where the applicant suffered a reduced earning capacity or sustained actual loss of earnings. It is clear from the evidence that the applicant waived a debt to the alleged offender on the basis that an intimate personal relationship was entered into. 39. On the evidence before me, I am not satisfied that the applicant suffered loss of actual earnings as a result of the act of violence for the invoices from 25 September 2015 to 28 October 2015. Invoices from 1 to 23 November 2015 40. Again there were some invoices for the applicant's provision of services to the alleged offender for November 2015. It is unclear to me whether the applicant and the alleged offender re-entered a professional relationship. From the evidence before me, it appears that the alleged offender stopped seeing the applicant in both personal and professional capacities although it is unclear precisely when this took place. Could the applicant elaborate on these issues so that the invoices from 1 to 23 November 2015 can be considered? (emphasis added). 41. In addition, I note from the Travelodge invoices for the accommodation the alleged offender paid for accommodation on 1 and 3 November 2015. From this I can infer that the act of violence likely occurred after that date. 42. Consideration of the above expenses will be deferred pending receipt of further information from the applicant on this issue. (emphasis added). 1. I note that the Respondent served a copy of this decision upon BMF under cover of a letter dated 15 April 2016, by posting it to her designated address. However, the date of posting is not indicated in the documents before me. Internal Review Decision (Recognition Payment) 1. On 15 April 2016, the Senior Assessor issued a Notice of Review Decision in relation to the claim for a recognition payment under s 9 of the Act. The Senior Assessor determined that the evidence establishes that BMF was the primary victim of an act of violence and that she was eligible for a Category D recognition payment in the sum of $1,500, but she had not established that she had suffered grievous bodily harm. The Senior Assessor stated, relevantly: 50. In circumstances where an applicant relies on the injury of 'psychiatric or psychological harm' only, I might take into account whether there is a reportable or diagnosable psychological/psychiatric injury sustained as a direct result of the violence. I might also consider whether the evidence establishes a significant impact to the applicant's day to day functioning and overall impairment by considering any duration, effect and progress of that injury. Having regard to the approaches taken by NCAT, a finding of significant impairment or (sic) functioning can only be made where there is cogent relevant evidence in this regard. See the comments of Senior Member McAteer in BXB v Commissioner for (sic) Victims Rights [2015] NSWCATAD 173 at 35. 51. On the current medical evidence before me, I am not satisfied that the applicant experienced a really serious reportable or diagnosable psychological/psychiatric injury which was sustained as a direct result of the act of violence. This is necessary for me to be able to determine any duration, effect and prognosis of that injury. I do not have before me a report from a psychologist or psychiatrist which diagnosis the applicant with any psychological injury and which ties that diagnosis to the act of violence, comprising of the incidents I detailed a t paragraph 46 above. In the absence of such evidence, I am unable to assess whether the applicant's injury is 'really serious' in that the applicant suffered significant impairment and (sic) functioning. I am not satisfied in the current circumstances and facts that the nature of the injury was grievous. 52. The evidence I have before me relates to injury the applicant self-reported, being anxiety and depression. I accepted this as an injury for the purposes of establishing an act of violence. I also relied on the applicant's observed presentations of being angry, teary, out of breath etc. to amount to physiological reactions stemming from the conduct of the alleged offender and therefore psychological injury for the purposes of finding an act of violence. 53. I note a category D recognition payment is approved where the applicant can establish that they sustained 'actual bodily harm'. 'Actual bodily harm' means any hurt or injury to a person, which does not have to be permanent, but is more than transient or trifling (R v Donovan [1934] KB 498). In the absence of a reportable or diagnosable psychological/psychiatric injury or other cogent relevant evidence, I am of the view the applicant's self-reports of anxiety and depression combined with her physiological reactions amount to 'actual bodily harm'… 1. I note that the Respondent served a copy of this decision upon BMF by email dated 15 April 2016. A hard copy was also served upon her under cover of a letter dated 15 April 2016, which was posted to her designated address that day. I also note that the Respondent re-sent its email to BMF on 18 April 2016. Application for Internal Review (Financial Assistance) 1. On 28 April 2016, BMF requested an internal review of the Assessor's decision in relation to the claim for financial assistance. In support of this Application, she submitted a further statement dated 28 April 2016, in which she addressed the issues raised by the Assessor as follows: Paragraph 15 (The offender) and I started a personal relationship in October 2015 which ended in December 2015 due to his violence and aggression. The reason why we moved in together is that (he) didn't want to spend any more money on hotels. My friend offered me to stay in her property at (location provided) and sign a tenancy agreement… We moved into the house at (location provided) in November 2015. At that time I found out I was pregnant, he became very aggressive, he told me to take the morning after pill. I bought it on my credit card… but I didn't take it due to consequences it may have had on my medical condition. During this period when we were living in the rented house, he became very violent. He would drive really vigorous on the roads whilst I was in the car, he would carry pocket knives in his bag and he would lock me in the garage. He was a violent alcoholic. (He) moved out of the house in (location provided) in December 2015 when he was very violent and I could no longer take it. He was not paying his share of the rent so I then took him to the Tenancy Tribunal… (He) did not appear at the Tribunal, however his solicitor did. An agreement was made with (him) and his solicitor that if he wanted to get out of the lease he had to pay a certain amount, he paid $3,000.00. This was around March 2016. The lease is now in my name. This relates to the act of violence because I had to leave the premises in December 2015 because I was fearful of my safety. I have not returned since and I am in arrears of $3,000. I now stay in hotels and other cheap accommodation. Paragraph 18 (He) had asked me to leave the business and told me he wanted to see me as a private client. I asked (him) if he understood that my rates would now be different as I am a sub-contractor with an ABN number and I'm running my own business, He said that he wanted to spend time with me. He then started to see me regularly at different hotels where we would stay the night. The intimate personal relationship started in October 2015 until 5 December as stated in the police report. The invoices for the hotels from 2 October 2015 to 22 November 2015 directly relate to the act of the violence because of all the hours spent together at the hotels. Paragraph 19 In September 2015 I had asked (him) for the money he owed me. He didn't pay me for services owing from 25 September to 23 November 2015. He asked if he could change the agreement instead of paying me an hourly rate of $300, could he pay me $5000 per week. He signed the agreement. My accountant had to close down my business because payments weren't made which meant I lost my business. Paragraph 36 (He) told the Police that an agreement was made with me to waive the $30,000.00 that he owed me for my professional services. This is a lie as (he) signed an agreement in October 2015 that he wanted to pay a weekly rate of $5,000 for one year. This did not occur. Paragraph 39 When I asked (him) for the money owing for my professional services for the period from October 2015 to 5 December 2015 he became very aggressive and violent towards me. Paragraph 40 In September 2015, (he) was seeing me for my professional services. We had made a business agreement that if he wanted to see me that he would have to pay for my services. Both (he) and I ceased our relationship in December 2015 when I went to his house. The reason I went to his house was because I was invited by his parents as we were to discuss issues relating to the baby. This is when the relationship ended on 5 December 2015. Paragraph 41 Although (he) paid on his credit card, we actually shared the cost of the hotel rooms. Internal Review Decision (Financial Assistance) 1. On 6 May 2016, the Senior Assessor issued a Notice of Review Decision in relation the claims for financial assistance. The Senior Assessor declined to approve the claim for financial assistance for economic loss with respect to the invoices issued from 25 September to 28 October 2015, as these evidenced a debt that the alleged offender owed to BMF and was therefore a civil matter for which BMF could not seek recourse through Victims Support. In relation to the invoices that BMF issued to the alleged offender from 1 to 23 November 2015, the Senior Assessor determined: 53. As Assessor Guidice did not make a determination regarding these invoices and allowed the applicant an opportunity to clarify the nature of her and the alleged offender's relationship, I will remit consideration of these invoices to an Assessor at first. This will preserve the applicant's right of review as there is no provision under the Act for an external review of financial assistance matters. 1. The Senior Assessor also declined to approve the claim for financial assistance for immediate needs, with the exception of hotel accommodation invoices for 3 dates (13, 15 and 22 November 2015), which was remitted to the Assessor for consideration. Further Decision (Financial Assistance) 1. On 17 May 2016, the Assessor issued a further Notice of Decision following remittal of the financial assistance claims. The Assessor declined to approve the claim for hotel accommodation as the evidence indicated that these expenses were incurred in relation to the provision of professional services by BMF to the alleged offender and they were not incurred as a direct result of the act of violence. Similarly, the claim for economic loss was declined on the basis that the evidence indicated that BMF was self-employed and continued to work during November 2015. The Assessor was not satisfied that she had established that she was required to take a leave of absence (see: cl 8(2) of the Regulation) and that she suffered a loss of actual earnings as a direct result of the act of violence. 2. The Respondent served a copy of this decision upon BMF by sending it to her designated address under cover of a letter dated 18 May 2016. I note that this was posted on 23 May 2016. Consideration 1. The Application for Administrative Review was listed for further hearing before me on 27 May 2016, when Ms Jillard appeared for BMF and Mr Ting appeared for the Respondent. 2. On 27 May 2016, the Tribunal received a further letter from BMF, in which she expressed concerns regarding the alleged involvement of "33-degree mason lawyers and judges" in her matters. She made complaints regarding the manner in which her tenancy claim was determined by the Consumer & Commercial Division of NCAT and the conduct of the Department of Fair Trading, the real estate agent and the alleged offender in the course of that matter. These complaints are not relevant to the matter before me. She also complained that the same Assessor at Victims Services had looked at her case and denied the matter on several occasions. Any complaint about the conduct of assessors should be made to Victims Services. 3. During the hearing on 27 May 2016, BMF became distressed. As a result, the matter was stood in the list and it was subsequently adjourned part-heard at the request of the parties. I made directions for the filing of further evidence and submissions by the parties and listed the matter for further hearing on 10 June 2016. Further hearing not required 1. On 8 June 2016, BMF's solicitors wrote to the Tribunal and requested an extension of time to file further supporting evidence and submissions to 15 June 2016 and that the matter proceed on the basis of "written statements". The Respondent consented to these requests and I therefore made orders that the hearing date of 10 June 2016 be vacated and I extended the time for filing further evidence and submissions to 17 June 2016. 2. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (No. 2) ("the CAT Act") and after consultation with both parties' legal representatives, I dispensed with the further hearing because I am satisfied that the issues for determination can be adequately determined in the absence of the parties. Respondent's Written Submissions 1. On 6 May 2016, the Tribunal received the Respondent's written submissions dated 4 May 2016. The Respondent argued that the correct and preferable decision is to affirm the decision of the Senior Assessor and dismiss the application for administrative review. The Respondent raised the following objection to the Tribunal's jurisdiction: 1. to make directions on 8 April 2016. It argued that Senior Member McAteer based jurisdiction upon its failure to finalise an internal review within a period of 42 days. It submitted that s 49 (5) of the Act does not require an internal review to be finalised within 42 days of an application; and 2. to conduct administrative review of decisions in relation to financial assistance. It stated, relevantly: Financial Assistance – Tribunal does not have jurisdiction 24. The applicant has also submitted an internal review for financial assistance. In summary, on 14 April 2016 a decision was made to approve $257 in financial assistance. The internal review was submitted on 28 April 2016. At the time of writing, the internal review regarding financial assistance is pending and has not been finalized. 25. At the time of writing, the applicant has not filed an application to the Tribunal to review the decision concerning financial assistance. In the event the applicant does file an application to the Tribunal, it is submitted that per s51 of the VRS Act, the Tribunal only has jurisdiction to review a decision concerning recognition payment. There is no jurisdiction for the Tribunal to hear an application relating to financial assistance. 1. On 2 June 2016, the Tribunal received further written submissions from the Respondent in relation to the jurisdiction issue. The Respondent stated, relevantly: …4. The section (s 50 of the Act) enables administrative review of two classes of decisions: first, those applications for recognition payment that have undergone internal review under section 49; and second, those applications for recognition payment that have not undergone internal review. 5. Under both sub-section 51(1) and (2), an application for administrative review may be made by "an applicant for a recognition payment". The trigger for administrative review under both sub-sections is that person's being "aggrieved by the decision… in respect of the application." 6. The Tribunal has asked for submissions addressing section 51(2) of the Act and its interpretation. The Tribunal has foreshadowed a view that this section enables administrative review of decisions not concerning a recognition payment. Tue it is that both sub-sections do not specify which class of decision administrative review jurisdiction is granted over. Both specify that the nature of the review is administrative review of "a decision made by the Commissioner". In the context of the section, which itself expresses that the section deals with the right to have "administrative review of decision concerning recognition payment", it is submitted that the reference to "a decision" must be a shorthand reference to the decision on recognition payment. While the title to the section itself is not a substantive part of the Act, as extrinsic material to aid construction is persuasive (see: s 35 of the Interpretation Act 1987 (NSW)) 7. Intrinsically there is contextual support in the Act for this interpretation. For example, sections 39 and 40 apply different time limits and documentary requirements to different types of applications for different types of victims support. Section 53 suspends payment of recognition payments pending "administrative review of a decision concerning a recognition payment". The notice requirement under section 49(5)(c) refers to recognition payments only. 8. It is further submitted that the proper interpretation of section 51(2), in consideration of the above, is that it enables applicants for administrative review to circumvent the bar to jurisdiction imposed by section 53(3) of the ADR Act, ie. The unavailability of administrative review where no internal review has been conducted. This is still subject to the leave principles set out under s 55(4) of the ADR Act. 9. That the Tribunal may previously have made decisions contrary to these submissions is no bar to a finding in accordance with these submissions on this occasion. The respondent is aware of one particular decision in relation to the same applicant in these current proceedings, a decision of 20 February 2015. 10. Unlike a court, the Tribunal is not bound by its previous decisions (see for example discussion in Seven-Nine Investments Pty Ltd v Mooney Valley CC [2006] VCAT 1548 at [9], Clovelly Manor Pty Ltd v Monash CC [2004] VCAT 133). 11. The application before the Tribunal is not in relation to an application for recognition payment under the act. It relates to decision in respect of financial assistance under section 26 of the Act. It is therefore a decision whereby the Tribunal has not been conferred administrative review jurisdiction as required by section 30 of the CAT Act and section 9 of the ADR Act. 12. It is respectfully submitted that the only order that can be made is to dismiss the application for want of jurisdiction. Applicant's Submissions in relation to Jurisdiction 1. On 16 June 2016, BMF's solicitors submitted written submissions to the Tribunal, as well as copies of further invoices for "services provided under contract" by BMF from the week ending 30 November 2015 to the week ending 11 April 2016 and a report from BMF's Social Worker dated 9 June 2016. 2. BMF's solicitors did not specifically address jurisdiction with respect to the recognition payment. However, they made the following submissions in relation to the issue of jurisdiction to determine the claims for financial support: (i) Jurisdictional issue: Can NCAT review decisions concerning the payments for economic loss or immediate needs 10. Section 10 of the Civil and Administrative Tribunal Act ("CAT Act") establishes the Tribunal's jurisdiction by reference to s 9 of the Administrative Decisions Review Act 1997 ("the ADR Act"). Section 9 is in the following terms: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. 11. The issue is therefore whether the applicable enabling legislation confers jurisdiction on the Tribunal to review internal reviews of financial support claims. 12. The applicable enabling legislation is the Victims Rights and Support Act 2013 (NSW) ('the Act'). Chapter 3 governs the process for administrative review under the Act. Section 49 governs internal review of victims support decisions and is relevantly as follows: An applicant for victims support may apply to the Commissioner for an internal review of the decision made by a person to whom the Commissioner has delegated the Commissioner's functions with respect to an application for victims support (in this Division called the decision maker). 13. It is useful to consider the scope of the reviewable decisions specified by the statute, and to further examine what is meant by the terms 'victims support', 'recognition payment' and 'financial assistance payment'. Section 18 of the Act defines "Victims Support" as "support in the form of approved counselling services, financial support or a recognition payment under the Scheme." Section 3 of the Act contains definitions, including: 'The Scheme" is in reference to the Victims Support Scheme established by this Act, here, the "decision maker" is the Delegate. 14. Sections 42 and 43 refer to determinations of "an application for victims support" and do not distinguish between the various payments available, with the exception of section 43(5). If approval is given, the notice must include a statement of the amount (if any) payable by way of financial support (including whether for immediate needs or economic loss, or both) or by way of recognition payment, together with a statement of the reasons for approving the giving of those amounts. 15. This is the exception that proves the rule as a reference to an 'amount' confirms a total package of victims support, however broken down into discrete payments. 16. The Act contemplates that the one notice can set out payments for financial assistance and recognition payment – in this instance the chronology of events and claims ended with the recognition payment and financial assistance decisions being made on separate dates by way of separate notice. 17. Section 49(4) provides that an internal review "is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made". There is no dispute between the parties that the Delegate had jurisdiction to conduct an internal review of the financial support claim. Section 49 refers to neither "recognition payment" claims nor "financial assistance claims". It is accepted that both types of claims fall within the rubric of "applications for victims support". 18. By contrast, s 50(1) provides that the procedure for internal review of a decision provided for by this Part applies to the specific exclusion of section 53 (internal reviews) of the Administrative Decisions Review Act 1997 in the case of a decision with respect to a recognition payment: see also s 50(2). 19. Section 51 concerns applications to the Tribunal for administrative review, and is as follows: (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner. 20. Section 51(1) and 51(2) specifically refer to applicants for recognition payments. Those references designate the class of persons eligible to apply to the Tribunal for administrative review. This requires some consideration as to what is meant by "applicant for recognition payment". 21. Section 18, of Part 4, titled "Victims Support Scheme", defines "recognition payment" by reference to section 34 under the same Part as "a payment made in recognition of the trauma suffered by a victim of an act of violence". The definition of an "act of violence" is in turn defined in s 18 by reference to s 19, which provides that: (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. 22. Further, according to section 18: financial support means the following: (a) financial assistance for immediate needs [ up to a maximum amount in total subscribed by the regulations to cover expenses for treatment or other measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim's safety, health or well-being] under section 26 (1) (b) or [up to a maximum amount in total prescribed by the regulations to cover expenses that measures that need to be taken urgently, as a direct result of that act of violence, to secure the victim's safety, health or wellbeing (less any amount payable under section 47)] s 29 (1) (b), (b) financial assistance in respect of economic loss [up to a maximum amount in total prescribed by the regulations for the economic loss suffered by the primary victim as a direct result of the act of violence of a kind described in the regulations] under section 26 (1) (c), 27 or [up to a maximum amount in total prescribed by the regulations for the economic loss suffered by the primary victim as a direct result of the act of violence of a kind described in the regulations] 29 (1) (d), (c) funeral expenses under section 29 (1) (c). 23. Section 33 of Interpretation Act 1987 (NSW) provides that when interpreting a statute regard must be had to the object and purposes of the Act. Section 17 of the act provides that the object of Part 4 is "to establish a scheme for the provision of support for victims of acts of violence". 24. Section 51 is within Part 4 of the Act and the Applicant submits that the correct purposive statutory construction of the section supports a finding that financial assistance payments form an integral part of a package if victims support. Part 3 of the Victims Rights and Support Regulation sets out the manner in which financial assistance will be paid. Part 3 is headed Financial Assistance and includes the calculation of financial assistance payments and "actual loss of earnings" (clause 7). "Primary victims" encapsulates payments under section 26 for financial assistance for immediate needs and economic loss "for the following economic loss suffered by the primary victim as a direct result of the act of violence concerned…" Crucially, "recognition payments" are included under the heading of "Part 3" and prescribe the payments available for the various acts of violence. 25. In the absence of any specific exclusion of financial assistance payments from review by NCAT, the Applicant submits that all aspects of victims support, including financial assistance payments fall within the scope of jurisdiction conferred on NCAT by section 51 of the Act. 26. With respect to the Respondent, were s 51 to be interpreted in the manner proposed by the Respondent in their submissions of 1 June 2016, the object of the Act with respect to administrative reviews of applications for financial support would be defeated. Any applicant who was dissatisfied with a determination of the Commissioner and/or an internal review regarding that aspect of victims support would be without any further recourse. 27. Two practical factors, underscore the manifest unreasonableness of a statutory construction that would tend to exclude financial assistance payments from the consideration of the Tribunal. 28. Firstly, findings regarding an Applicant's eligibility for financial assistance may be intrinsically linked to findings of fact regarding an act of violence. The Victims Rights and Support Regulation sets out the evidentiary basis for payments of immediate needs and economic loss, requiring a determination of what constitutes "a direct result of the injury" as required by clause 8 of the Regulation. 29. Were the Respondent's submissions to be maintained, a mischief would arise in that the Tribunal would be restrained from making decisions arising out of its determination of questions of fact regarding an act of violence. For example, were the Tribunal to find that an act of violence occurred on a particular date, and had before it appropriate substantiating evidence of expenses arising out of that act of violence for which the financial assistance had been declined at internal review, it would be fettered from making a decision regarding an expense arising out of that act of violence, and the victim would have exhausted avenues of review based on that claim for financial assistance. Short of a victim seeking Supreme Court review and without specific powers set out for remitting claims to Victims Services, a victim would be denied justice. 30. In a scheme designed to minimise the use of lawyers, it would result in further 'red tape", delay and injustice for victims of violence (sic) crime delaying their rehabilitation. All of which are the mischief, this Act was designed to redress. The Second Reading Speech relevantly states "Victims will be able to seek a review of a decision related to an application for recognition payment" and refers more generally to the new payment being a "package of practical and financial support […] related to the nature of the violent act." 31. Secondly, the relatively high value of financial support of up to $30,000, compared to the highest available category of recognition payment of $10,000, in a pecuniary fund that is administered by the Commissioner of Victims Rights, underscores the importance of external review in all financial assistance decisions. 32. Reference to the term "the application" is used throughout the parent Act and its Regulation to denote an application for any or all of the aspects of victims support package: counselling, recognition payment and financial assistance. Indeed, from a practical perspective there is only one application form available through Victims Services to seek payment under the Scheme. 33. The Applicant submits that the correct and preferable statutory construction is to understand the work of s 51(1) in its reference to "an application for recognition payment" to designate the general class of persons eligible to apply for administrative review by the Tribunal of a decision made pursuant to the Act. The ordinary meaning of the text of s 51 is not consistent with an exclusion of financial assistance payments from review by NCAT. 34. Section 51(1) confers and entitlement to administrative review of a decision regarding a (sic) "financial support" provided that the following conditions are met: (1) the applicant is applying or has applied for a review of a "recognition payment" and (2) the application from which the review for "financial support" arises is also an application for "recognition payments". 35. Such an approach is consistent with the language of s 51(1) and accords with the object and purpose of the Act and the Applicant submits that this interpretation should be accepted in the present Application. Determination regarding Jurisdiction Jurisdiction in relation to the recognition payment 1. In my view, the Respondent's submissions contained in paras 11 and 12 of its submissions received on 2 June 2016 are misconceived. The Application for Administrative Review clearly seeks administrative review of decisions made by the Respondent with respect to both the recognition payment and the claims for financial assistance for immediate needs and economic loss. 2. I note that The Respondent did not, at any time prior to 1 June 2016, object to the Tribunal's jurisdiction with respect to "the recognition payment" and that submission is expressly contrary to its written submissions in relation to the interpretation of s 51 of the Act. I therefore dismiss the objection to jurisdiction in relation to the administrative review of the decision with respect to the recognition payment. Jurisdiction with respect to financial assistance claims 1. I note that in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 ("Project Blue Sky") Brennan CJ held: 69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 1. I further refer to Statutory Interpretation Australia (8th Edition Pearce and Geddes) (at page 28), which provides: Remedial or Beneficial Acts The Courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. 1. Applying these principles to the current matter, I accept the submission made by BMF's solicitors to the effect that financial support for immediate assistance and economic loss form an integral part of the package of victims' support that is potentially available to a primary victim of an act of violence under the Scheme established by the Act. 2. However, s 51 of the Act expressly refers to an "applicant for a recognition payment" and "a decision with respect to a recognition payment" and I am not persuaded that Parliament intended that these references should also extend to provide a right of external administrative review to "an applicant for financial assistance". It was open to Parliament to expressly confer this right with respect to such decisions, but it instead chose to distinguish between the various types of victims support provided for under the Victims Support Scheme and to restrict the right to seek external administrative review to decisions made with respect to a recognition payment. 3. I therefore reject the expansive interpretation of s 51 of the Act that has been proffered by BMF's solicitors and find that his Tribunal does not have jurisdiction to conduct an administrative review the decisions made by the Respondent with respect to the applications for financial assistance under s 51 of the Act. 4. In making this finding, I note that the available evidence suggests that BMF has access to civil law remedies with respect to her claims for financial assistance that are based upon the contracts/agreements that she entered into with the alleged offender with respect to the provision of services and the tenancy of their rented premises. This is contrary to her solicitors' submission to the effect that she will be "denied justice" unless s 51 of the Act is interpreted expansively to enable the administrative review of the decisions in relation to the "financial assistance" claims by this Tribunal. Determination regarding recognition payment 1. In support of the recognition payment, BMF's solicitors submitted: …7. The Applicant also confirms her reliance on injury, as established by previous Victims Support claims before NCAT, and detailed in submissions on her behalf at the hearing of 27 May 2016, to establish her pre-existing level of psychological injury and the 'eggshell psyche' as applied in a finding of grievous bodily harm pursuant to the Act in the matter of BWL v Commissioner of Victims Rights [2015] NSWCATAD 235. 8. While it is not advanced that (BMF's) pregnancy to the perpetrator is (?) to the act of violence – it is a compounding circumstance arising out of their intimate relationship and domestic violence and separation that has further aggravated her existing distress at the abuse and that has had an impact on matters including her homelessness following the end of the relationship and of the perpetrators… 9. The Applicant submits that there is sufficient evidence on which the Tribunal can be satisfied to the requisite standard of proof in such administrative decisions that she can establish the 'really serious' level of injury required to establish that she is a victim of an act of violence and eligible for a Category C payment of $5000. Further submissions and evidence submitted by BMF 1. On 23 June 2016, BMF sent an email to the Registrar, in which she complained that her matter had been ongoing since January 2016 and that the Respondent had delayed it. She stated that she has had no place to live for the last seven months and that she had been in and out of hospital. She concluded: …I have been very patient but can't be waiting any longer under my circumstances I need a date when the decision will be made I can't wait any longer can the registrar email a date when matter will be finalised… 1. On 29 June 2016, BMF wrote to the Tribunal in the following terms: My name is (BMF) and I have endured pain and suffering through this court proceeding. The long process and duration period has put a big toll to my health and this pregnancy. The domestic violence has impacted my life significantly and I am quite traumatised by this. I have made a lot of sacrifices to have this baby, especially due to my medical conditions. My ex-partner wanted me to abort this pregnancy and I believe he now wants custody (of) the baby. The hospital is doing everything to protect me and the child. My ex-partner's father nearly pushed me over recently. This claim has been ongoing since January 2016. I have been through reviews with Victims Services and NCAT for a lengthy time. I first had a listing and then a hearing on 27 May 2016 where I ended up having an anxiety attack and ended up in hospital. It was adjourned then got postponed to 10th June 2016. My solicitor went away on holidays and then it was adjourned and submissions were given to the Tribunal. I rang to follow through the matter on 23rd June and was advised to write a letter or email. On Monday I rang and my calls were terminated by David and Mary. Then I attended the Tribunal as receptionist wouldn't allow me to talk to the manager. On 28th June I spoke to Lilly and told her my situation and she wrote down and signed that I will be given a date when the matter will be finalised. I waited all day and called but no outcome was given. I have been in and out of hospital with complications and stress during this court matter. I am asking for a positive outcome and to finalise the matter because of my financial losses. I need financial backing to make preparations for my baby which I have been so far unable to make. Due to these circumstances please provide me with a date when the matter will be made with a decision. I need to be induced very soon as I am needing answers with a positive result… 1. BMF submitted a letter from her Social Worker dated 2 June 2016, who stated, relevantly: …She is 32 weeks pregnant. She has explained that the stress of the case has caused an exacerbation of her asthma. She has also been admitted twice to hospital since learning of the most recent adjournment, presenting with abdominal pain and breathing difficulties. This may be in relation to a stress response about the current court matter. She has explained to me her concerns that the longer her case continues the more impact it could have on her health and the pregnancy. Act of Violence 1. Section 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 BMF to prove her allegations of assault/domestic violence on the balance of probabilities. Based on the available evidence, I am satisfied that BMF has discharged her onus of proving that she was the primary victim of an act of violence that occurred in November 2015 on the balance of probabilities. Injury 1. 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." 2. The Respondent determined that BMF was the victim of an assault that caused actual bodily harm as a result of the act of violence, based upon the decision in R v Donovan [1934] 2 KB 498 at 509. That is authority for the proposition that actual bodily harm means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." 3. In determining the current Application, I take notice of the fact that in previous proceedings before this Tribunal (reported as BMF v Commissioner of Victims Rights [2016] NSWCATAD 54) this Tribunal found that she had suffered both physical and psychological injuries as a result of an act of violence that occurred on 8 December 2014. 4. However, it appears that in determining the Application for Victims Support in relation to the act of violence in November 2015, the Respondent failed to consider the Tribunal's previous finding to the effect that BMF suffered from a pre-existing psychological injury. Instead, the Respondent determined that there was no medical evidence of any reportable or diagnosable psychological injury, despite BMF's evidence and the references in the hospital records regarding the psychological impact of the act of violence upon her pre-existing psychological condition. 5. I note that there is no evidence in this matter that supports a finding that BMF had recovered from her previous psychological injury before the act of violence occurred in November 2015. I am therefore of the view that the Respondent erred by failing to consider whether the act of violence in November 2015 caused an aggravation, exacerbation or deterioration of BMF's pre-existing psychological injury. 6. In the matter of BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, in which there was also evidence of a pre-existing psychological or psychiatric injury, this Tribunal determined that the applicant's psychological condition was that such that the "eggshell psyche" principle espoused by Spiegelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40] applied. 7. In the current matter, I am satisfied that the "eggshell psyche" principle applies and that BMF's pre-existing "eggshell psyche" was aggravated, exacerbated or deteriorated as a direct result of the act of violence in November 2015. I note that the Act does not require the act of violence to be either the main contributing factor or a significant contributing factor to the injury. 8. It is therefore necessary to determine whether BMF suffered "grievous bodily harm" or "actual bodily harm" as a result of the act of violence. 9. 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. 10. In Haoui the Court considered its meaning in the context of the Crimes Act 1900 and Beazley JA 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 the decision in Haoui, 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. I am not satisfied that BMF suffered any injury to her back as a result of the act of violence in November 2015. She did not report this injury to Police in December 2015 and there is no medical evidence that supports a finding of such an injury. In any event, I note that she suffered a back injury as a result of the act of violence that occurred on 8 December 2014 and that a recognition payment was approved with respect to that injury. 2. I also note that BMF's allegation of "bruising", which she raised in relation to the application for internal review, is inconsistent with the Police report. I am not satisfied that she suffered "bruising" as a result of the act of violence in November 2015. 3. While BMF also lodged a medical certificate from Dr A Khan, General Practitioner, dated 19 May 2016, this relates to an incident that occurred recently and which is not the subject of the current application. 4. A final report from an Obstetric Ultrasound dated 2 June 2016, which BMF submitted on 29 June 2016, does not address any injury that directly resulted from the act of violence in November 2015. 5. Based upon a consideration of all of the available evidence that is relevant to the act of violence in November 2015, I am prepared to accept that BMF was the primary victim of an assault that resulted in a "really serious" psychological injury, such that she suffered "grievous bodily harm" and not "actual bodily harm" as the Senior Assessor determined. 6. As a result, I am satisfied that BMF is eligible for a Category C recognition payment pursuant to s 35 (3) (c) of the Act. Alleged delay in determining the application 1. In relation to BMF's recent complaints regarding the alleged delay in the determination of the current Application, I note that she did not lodge this until 26 February 2016. It was then listed for directions on 8 April 2016, at which time the Respondent had not determined her claims for financial assistance and the Tribunal made directions that included a direction that enabled BMF to file and serve any further evidence and submissions of delay before the matter was to be heard on 20 May 2016. However, on 20 May 2016 the matter was adjourned on a part-heard basis following an application made by her solicitors. A further hearing date on 10 June 2016 was later vacated following an application made by her solicitors and she was afforded a further opportunity to file and serve evidence and written submissions in support of her Application by 10 June 2016. Her solicitors then applied for an extension of time until 18 June 2016, which was granted, and the evidence and submissions were lodged on 16 June 2016. 2. For these reasons, while I accept that BMF feels frustrated that the Application has not been determined at any earlier time, I reject her suggestion/allegation of unreasonable delayed the determination of the matter. Section 44 of the Act 1. I am required by the Act to consider whether there are any factors under s 44 of the Act that would result in me declining to approve victims support to BMF or to reduce the amount of victims support that is payable to her. Based upon the available evidence, I am satisfied that there are no such issues in this matter. Findings 1. I am satisfied that this Tribunal has jurisdiction under s 51 (1) of the Act to determine an Application for Administrative Review in relation to a decision with respect to a recognition payment. 2. However, I am not satisfied that this Tribunal has jurisdiction to determine an Application for Administrative Review in relation to the decisions made by the Respondent with respect to the applications for financial support for immediate needs and economic loss. 3. As a result, the Application for Administrative Review in relation to the decisions with respect to financial support for immediate needs and economic loss are dismissed for want of jurisdiction. 4. I am satisfied that the evidence establishes that BMF was the primary victim of an act of violence, pursuant to s 19 and s 20 of the Act. BMF suffered grievous bodily harm as a result of the act of violence. BMF is eligible for a category C recognition payment pursuant to s 35 (3) (c) of the Act. Order 1. The application for administrative review with respect to financial support is dismissed. 2. The decision of the Senior Assessor dated 15 April 2016 is set aside. In substitution for that decision the following decision is made: "The applicant is eligible for a Category C 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: 06 July 2016