DGB v Commissioner of Victims Rights [2018] NSWCATAD 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DGB v Commissioner of Victims Rights [2018] NSWCATAD 55 Hearing dates: 19 January 2018 Date of orders: 12 March 2018 Decision date: 12 March 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. Time for lodging the application is extended to 23 October 2017.

2. The decision of the Respondent is affirmed. Catchwords: ADMINISTRATIVE LAW – merits review – victims support motor vehicle use – homicide as a result of motor vehicle use – purpose of victims support – clear intention of Parliament to exclude some claims – Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Criminal Injuries Compensation Act 1967 (repealed) Motor Accidents Act 1998 (repealed) Motor Accidents Compensation Act 1999 Victims Compensation Act 1987 (repealed) Victims Legislation Amendment Bill 2003 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Victims Support and Rehabilitation Act 1996 (repealed) Cases Cited: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 Category: Principal judgment Parties: DGB – Applicant Commissioner of Victims Rights - Respondent Representation: Applicant (self-represented) Solicitors: Respondent – S Sabesan (Victims Services Legal) File Number(s): 2017/00336686 Publication restriction: Section 64 (1) of the Civil and Administrative Tribunal Act applies to the identity of the applicant.

REASONS FOR decision

Introduction 1. The applicant's sibling died in October 2015 as a direct result of injuries sustained from the use of a motor vehicle. That motor vehicle struck the deceased and the driver was subsequently charged over the death and convicted of the offence of manslaughter in respect of the incident. 2. Under the Victims Rights and Support Act 2013 (NSW), the applicant is a 'family victim' being a member of the deceased's immediate family. Ordinarily a family victim would be entitled to victims support by way of a financial payment when such a crime was established. However the legislative scheme disentitles such claims based on crimes arising out of the use of a motor vehicle. On this basis, for the reasons that follow, the decision of the respondent is affirmed.

Background 1. On 23 October 2017 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with his Internal Review application for Victims Support. 2. The application for administrative review set out a range of grounds concerning how the matter had been dealt with by the respondent both in the initial decision and on internal review. Some of the stated grounds were: My overall concern is that your decision appears to have been based on the misunderstanding that my brother's death was the result of a mere vehicular accident; the vehicle that fatally struck my brother was being used as a weapon at the time. Prior threats to my brother's life had been made on several occasions prior to the incident... Item 12 (in the initial decisions) uses the clarification given in item 11.c that the 'accident' happened during 'a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.' None of these things relate to this incident whatsoever. ('X' the driver) used the vehicle as a weapon, in a deliberate act of violence, to take my brother's life. 1. The application before Victims Services was lodged on 17 May 2017 seeking Counselling, Financial Assistance and a Recognition Payment. The financial support and recognition payment aspects were considered in a decision dated 18 May 2017 which dismissed the application. The decision maker did so on the basis that the applicant was not eligible for either of the grants sought as the incident arose out of the use of a motor vehicle. 2. On Internal Review on 21 August 2017 a Senior Assessor reached the same conclusion on the same basis. A note explained that whilst the applicant was ineligible for financial assistance and a recognition payment, he was eligible for approved counselling.

Legislation 1. The applicant has claimed as a family victim under the Victims Rights and Support Act 2013 (the Act). Family victims are defined in the Act, essentially being claims for support based on the murder of a next of kin. 2. Section 22 of the Act defines family victims: 22 Meaning of "family victim" (1) A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act. (2) It is immaterial whether or not the person suffers an injury in connection with the act of violence or death. (3) A member of the immediate family of a primary victim is: (a) the victim's spouse, or (b) the victim's de facto partner who has cohabited with the victim for at least 2 years, or (c) a parent, guardian or step-parent of the victim, or (d) a child or step-child of the victim or some other child of whom the victim is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim. Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. 1. These types of claim have been available since the former Victims Compensation Act 1987 (NSW) (the 1987 Act), but the family claimants were referred to in that Act as 'close relatives'. Section 10 of the 1987 Act provided that: "close relative", in relation to a deceased victim of an act of violence, means a person who, at the time the act of violence occurred: (a) was the deceased victim's spouse or was a person who was living with the deceased victim as the deceased victim's spouse; (b) was a parent, guardian, step-parent or grandparent of the deceased victim; or (c) was a child, step-child or grandchild of the deceased victim or was some other child of whom the deceased victim was a guardian. 1. In 1997 the '1987 Act' was repealed and replaced by a 1996 statute initially referred to as the Victims Compensation Act 1996 (NSW) but later renamed the Victims Support and Rehabilitation Act 1996 (NSW) (the 1996 Act). The 1996 Act provided for victims of violent crime to recover compensation for injuries through eligibility based on a table of compensable injuries or table of maims. Next of kin of homicide victims were also accommodated and were now referred to as family victims. Section 9 of the 1996 Act (after various amendments) provided: 9 Who is a family victim? (1) A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act. (2) It is immaterial whether or not the person suffers a compensable injury in connection with the act of violence or death. (3) A member of the immediate family of a primary victim is: (a) the victim's spouse, or (b) the victim's de facto partner who has cohabited with the victim for at least 2 years, or (c) a parent, guardian or step-parent of the victim, or (d) a child or step-child of the victim or some other child of whom the victim is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim. Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. 1. Each of these legislative items provided for what might be referred to as a 'victims of crime scheme'. Over three decades they provided for recovery or payment of money and some related services and benefits to victims of violent crime who had suffered injury. Primary and secondary victims needed to establish some level of injury in order to gain access to the scheme. This is true of all three Acts, however with the 1996 Act and the current Act a family victim is not required to establish injury. Other matters relating to dependency on the deceased, the age of the claimant and similar matters have provided some adjustments as to how family members may share any payments. Those details do not concern the matters for consideration in these reasons. 2. Of note however is that all three Acts sought to exclude entitlement to the victims scheme when the criminality and circumstances of the offence involved the use of a motor vehicle. This 'exclusion' applied to primary, secondary, close relative and family victims. 3. Under the 1987 Act, s 15 concerned persons not eligible to receive compensation. The section provides at s 15(6): 15. Certain persons not eligible to receive compensation … (6) A person is not eligible to receive compensation under this Part in respect of: (a) an act of violence; or (b) an injury sustained in the course of law enforcement, if the person is entitled to receive damages in accordance with the Motor Accidents Act 1988 in respect of the same act or injury. 1. Under the 1996 Act a similar provision was drafted concerning primary, secondary and family victims. Section 24 relevantly provided: 24 Other persons not eligible to receive compensation (1)…. (2) Motor vehicle accidents A person is not eligible to receive statutory compensation in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Compensation Act 1999. (3) … (4) … (5) … 1. The current Act provides at s 25(2): 25 Persons not eligible for support (2) Motor vehicle accidents A person is not eligible to receive victims support in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Compensation Act 1999.

Jurisdiction 1. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal. 51 Application to Tribunal for administrative review of decision concerning recognition payment (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. 1. Initially at the hearing it became clear that the application had been lodged beyond the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997 (NSW), (the ADR Act) and Clauses 23 and 24 of the Civil and Administrative Tribunal Rules 2014. The internal review decision was dated 21 August 2017, and the applicant stated on his application that he was notified of the decision on 21 August 2017. 2. On this basis it was clear that the applicant had received the matter at some time around 21 August 2017 and was required to lodge his application for administrative review prior to 19 September 2017. As the application was lodged at least five weeks out of time, it was necessary to consider whether time should be extended. 3. At the commencement of the hearing the Tribunal inquired of the respondent as to whether they consented to an extension of time. As the respondent did not oppose an extension of time being granted, and as I considered it to be in the interests of justice after hearing from the applicant on the matter, I made an order under s 41 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) extending the time for lodging the application for administrative review until 23 October 2017. 4. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of 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.

Hearing 1. At the hearing the applicant appeared by telephone and was self-represented. The respondent was represented by an employee Solicitor. The following material was filed by the parties in support of the respective positions:

Applicant's written evidence * Application for Administrative Review dated 14 October 2017 including grounds - Exhibit 'A-1'.

Respondent's written evidence * Documents filed under s 58 of the ADR Act dated 5 December 2017 - 72 pages – Exhibit 'R-1'. In addition the respondent filed and served written submissions.

Applicant's evidence at hearing 1. The applicant gave evidence at the hearing. In evidence in chief the applicant talked about his brother's death and provided evidence about the significant impact that it had on him. The applicant also spoke of his concerns with the justice system in both how it had dealt with the perpetrator and how he had been denied victims support. 2. The Tribunal inquired of the applicant as to how he came to make an application for victims support and the applicant advised that the Director of Public Prosecutions (DPP) officer dealing with the matter had told him to fill in the application forms. 3. The applicant's evidence was that his mother 'gave up on the matter' as it was all too difficult, and that he sought assistance from Legal Aid Queensland and Law Access. Neither body was able to assist as the applicant lived in Queensland and the crimes and legislative scheme related to NSW. 4. The Tribunal inquired as to other living relatives of the deceased and the applicant advised that the deceased had a daughter who was a young adult and a teenage son, neither of whom was financially dependent on the deceased at the time of his death. 5. The respondent did not ask any questions of the applicant by way of cross examination and relied upon their written submissions.

Respondent's submissions 1. In written submissions the respondent submitted that the deceased was the victim of an act of violence as defined under the Act. In addition the respondent agreed that the applicant was a family victim (as a result of that act of violence) as defined under s 22(1) of the Act. 22 Meaning of "family victim" (1) A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act. 1. However in the submissions the respondent referred to s 25 of the Act and in particular s 25(2) as set out above at paragraph 15 citing the ineligibility of primary victims of a motor accident. 2. The respondent went on to refer to the meaning of the term 'incident' as it appears in s 3 of the Motor Accidents Compensation Act 1999 (NSW). The respondent submitted that: Section 25(2) of the act makes it very clear in its wording that in matters where an act of violence took the form of or the injury arose as a consequence of a motor accident, the applicant is not eligible for support. 1. The respondent submitted citing the Oxford Dictionary that 'incident' was defined as: "an instance of something happening; an event or occurrence." 1. The Tribunal clarified with the respondent whether the applicant would be eligible for approved counselling under the scheme, noting that this was referred to in the internal review.

Consideration 1. I note that the High Court case of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 provides a lead authority as to how courts and tribunals should approach the issue of statutory interpretation. I note the following often cited reference from Brennan CJ's judgment at [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 provisions of the statute. 1. I note that the respondent submitted that s 25 of the Act is quite clear. Prior to deciding whether the matter should be decided along the lines of the respondent's submissions I believe it is necessary to ascertain the purpose of the Motor Vehicle exemptions to the scheme. 2. In respect of the submission concerning the disentitling claims such as the applicant's in my view a clue can be gleaned from the wording of the 1987 Act, where it refers to the words in section 15: if the person is entitled to receive damages. Clearly the origins of the exemption or exclusion appear based in the notion that victims of running down cases or motor accidents could recover through civil processes involving the insured driver at fault, and in other instances through taking action to recover from the Nominal Defendant. 3. I note that the 1996 and the current Act do not refer in the relevant provision to any ability to recover through another scheme such as a motor accidents scheme. Instead the relevant section provides for an explicit ineligibility. 4. In 2003 the 1996 Act was amended to allow some benefits from the victims scheme to flow to the next of kin of people who were murdered on NSW roads. The reference to murder does not equate to deaths on the roads but the discrete examples when a charge of murder, manslaughter or some similar indictment in lieu of dangerous driving causing death or grievous bodily harm was preferred. 5. The Victims Legislation Amendment Bill 2003 provided for various additional rights to victims of crimes with a focus on the next of kin or family members of a victim who died as a result of a violent crime. One of those amendments was to provide for eligibility to counselling services under the scheme to family victims of a deceased primary victim. Schedule 3 of the Bill provided the following: Schedule 3 Amendment of Victims Support and Rehabilitation Act 1996 (Section 5) Section 21 Special payments for approved counselling services Omit "but does not include a person who is the victim of an act of violence arising in the circumstances described in section 24 (2), (3) or (4)." from the definition of victim in section 21 (1). Insert instead: but does not include a person who is the victim of an act of violence: (e) arising in the circumstances described in section 24 (2), unless the person is a family victim of the act and the act apparently occurred in the course of the commission of the offence of murder or manslaughter, or (f) arising in the circumstances described in section 24 (3) or (4). 1. The import of this amendment was to extend approved counselling to the family members of a deceased victim who had died by the deliberate act of an operator of a motor vehicle. The prohibition on crimes against the person arising from motor vehicle use was partially lifted in that all eligible family members could access free counselling services as required. 2. The explanatory note for the Bill says the following: Schedule 3 Amendment of Victims Support and Rehabilitation Act 1996 Schedule 3 amends the definition of victim in section 21 of the Victims Support and Rehabilitation Act 1996 to enable members of the immediate family of a person who is killed in a motor accident to apply for payments for approved counselling services under the Act if the person's death apparently occurred in the course of the commission of an offence of murder or manslaughter. The Act at present excludes the payment of compensation (including for counselling services) in connection with motor accidents. 1. When introducing this provision in the Parliament on 28 May 2003 in the Legislative Council the Attorney General stated the following during the second reading speech of the Bill. Under the proposed amendments, counselling would be available in relation to motor vehicle accidents leading to a charge of murder or manslaughter under s. 18 (1) of the Crimes Act 1900. At present, when a homicide occurs in NSW, members of the immediate family of the victim are eligible to apply to receive an initial period of up to 20 hours counselling from an Approved Counsellor under the Approved Counselling Scheme. After the end of the initial 20 hours of counselling further counselling is available. …. However, these benefits are not currently available in cases where the homicide was caused by the owner or driver of a motor vehicle in the use or operation of the vehicle. The proposed reform would rectify this situation. It would ensure that the immediate family members of victims of homicide involving the use of a motor vehicle would be able to access the same counselling benefits as are currently provided to the immediate families of other people who die as a result of an act of violence. 1. It is clear from the above reasoning that the legislature sought to deliberately exclude victims of motor vehicle trauma (even when the intention of the perpetrator was to kill, maim or injure), from access to any benefits under the scheme. The 2003 amendments sought to provide a therapeutic benefit to the relatives of deceased victims of deliberate road / motor vehicle trauma. This has been the only concession to motor vehicle matters as far as I am able to ascertain in the 40 year history of the formal scheme, notwithstanding the previous Criminal Injuries Compensation Act 1967. 2. The Motor Accidents Compensation Act 1999 is referred to in section 25 (2) of the Act. In that Act the term motor accident is defined as follows: 3 Definitions(cf ss 3, 3B, 3C, 68 MAA) In this Act: … motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. …

Findings 1. The evidence before the Victims Services assessors and this Tribunal clearly indicates that the deceased primary victim died as a direct result of the actions of the driver of the motor vehicle running over the primary victim, and as a result an act of violence within the meaning of the Act is established and I so find. 2. On the basis of the above analysis, the evidence filed by the parties and the material therein set out, I find that the circumstances of the injuries leading to the death of the primary victim constitute a motor accident, within the meaning of the Motor Accidents Compensation Act 1999, and I so find. 3. As a result of that finding, due to the provisions of s 25(2) of the Act, the applicant is ineligible for victims support, specifically in regard to a special grant or financial assistance, and I so find.

Eligibility for counselling 1. There remains an issue as to whether the applicant remains eligible for approved counselling under the victims of crime scheme. I note that both the Senior Assessor and the Solicitor for the Commissioner referred positively to such eligibility. 2. The legislation removes the equivalent amendments set out in paragraph 42 above. It appears that the Act no longer provides for the approval of counselling for family victims whose next of kin die due to a deliberate act involving the use of a motor vehicle. 3. This position is arrived at following an analysis of the provisions of s 26 setting out the types of 'support' available under the scheme. Counselling, Recognition Payments and Financial Assistance are all types of victims support. 4. Whilst the 1996 Act was amended in 2003 to provide for a decade of the provision of counselling services (as required) to claimants in a similar situation to the applicant, the current Act does not explicitly provide those benefits. However the provisions of Part 2 of the Victims Rights and Support Regulation 2013 (the Regulation) does provide for counselling services under the scheme to family victims of an act of violence constituting murder or manslaughter by the use if a motor vehicle. 5. The Victims Rights and Support Regulation 2013 (the Regulation) provides at Clause 4: 4 Definitions In this Part: generalist counsellor means a person who is a registered psychologist or is eligible for membership of the Australian Association of Social Workers (other than as a student member). relevant family member means a person who is a relative of a primary victim who has died as a result of an act of violence, but who is not a family victim. specialist counsellor means a person who is a psychologist, or is eligible for membership of the Australian Association of Social Workers (other than as a student member), and who: (a) holds post-graduate qualifications, consisting of a Masters degree or a higher level qualification, in social work, clinical psychology, clinical neuropsychology, counselling psychology or forensic psychology, or (b) in the opinion of the Commissioner, has specialist counselling skills due to the person's qualifications or experience. victim means: (a) a family victim, or (b) a primary victim or a secondary victim, or (c) a relevant family member, but does not include a person who is the victim of an act of violence: (d) arising in the circumstances described in section 25 (2) of the Act, unless the person is a family victim of the act and the act apparently occurred in the course of the commission of the offence of murder or manslaughter, … (Emphasis added) 1. I therefore find that the applicant is also eligible by the operation of clause 4 of the Regulation for victims support in the form of approved counselling services payable under the scheme. 2. In addition, I observe that as it appears that the applicant qualifies as a family victim of violent crime, the applicant should be afforded all available assistance under the Charter of Victims Rights consistent with the objects of the Act. 3. This is due to the objects of Part 2 of the Act (s 4), the operation of section 5 and , section 22 of the Act. 4 Object of Part The object of this Part is to recognise and promote the rights of victims of crime. 5 Meaning of "victim of crime" (1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence. (2) A person suffers harm if, as a result of such an act: (a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or (b) the person's property is deliberately taken, destroyed or damaged. (3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part. (4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights. …

Observations 1. Victims Support Schemes are predominately funded by the State and where an insurer funded alternate scheme exists, the Parliament has disentitled such claims from the victims scheme. This is consistent with the well understood concept of a scheme of last resort. The presumption being that ordinary victims of motor accidents can claim under those schemes. In my view s 24(2) was drafted with that policy objective in mind. 2. As the applicant is a family victim who is ineligible for victims support, albeit able to take up approved counselling, I refer the parties to the applicant's continuing rights under the Charter of Victims Rights under Part 2 of the Act. It was evident from the applicant's evidence at hearing that in many aspects he believed that he had not been appropriately informed during the criminal process. 3. For the reasons outlined above it follows that the applicant is not eligible for victims support in the nature of financial assistance or a recognition payment under the Victims Rights and Support Act 2013.

Orders 1. Time for lodging the application is extended to 23 October 2017. 2. The decision of the respondent is affirmed.

********** 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: 12 March 2018