FXE v Commissioner of Victims Rights [2023] NSWCATAD 296

FXE v Commissioner of Victims Rights [2023] NSWCATAD 296

The Tribunal was satisfied that s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW) was met and, by consent, extended time. On the evidence, FXE was a primary victim of an act of violence on 28 October 2022 and suffered physical injury directly resulting from it. Although she had a pre-existing nose injury, the act of violence aggravated or exacerbated that injury such that bony rhinoplasty was recommended and performed; the Act did not require the act of violence to be the substantial or main contributing factor. No s 44(1) factors justified refusal or reduction. The correct and preferable decision was therefore to approve a Category C recognition payment of $5,000 under s...

Jurisdiction
Australia
Judgment Date
08 November 2023
Procedural Posture
Administrative Review of Victims Support Decision / Final Decision After Hearing
Outcome
The reviewable decision was set aside and a substituted decision was made approving a Category C recognition payment of $5,000.
Legal Topics
['recognition Payment' 'act of Violence' 'primary Victim' 'assault' 'grievous Bodily Harm' 'internal Review' 'extension of Time']
['administrative Law' 'victims Rights and Support'] ['recognition Payment' 'act of Violence' 'primary Victim' 'assault' 'grievous Bodily Harm' 'internal Review' 'extension of Time']

Case Brief

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Procedural Posture

Administrative Review of Victims Support Decision / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to determine the application despite FXE not applying for internal review.' 'Whether time should be extended for filing the application for administrative review.' 'Whether FXE was a primary victim of an act of violence on 28 October 2022.' 'Whether the assault resulted in grievous bodily harm so as to justify a Category C recognition payment rather than a Category D recognition payment.' 'Whether any factors under s 44(1) of the Victims Rights and Support Act 2013 (NSW) warranted refusal or reduction of victims support.']

Ratio Decidendi

The Tribunal was satisfied that s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW) was met and, by consent, extended time. On the evidence, FXE was a primary victim of an act of violence on 28 October 2022 and suffered physical injury directly resulting from it. Although she had a pre-existing nose injury, the act of violence aggravated or exacerbated that injury such that bony rhinoplasty was recommended and performed; the Act did not require the act of violence to be the substantial or main contributing factor. No s 44(1) factors justified refusal or reduction. The correct and preferable decision was therefore to approve a Category C recognition payment of $5,000 under s...

Court Disposition

The reviewable decision was set aside and a substituted decision was made approving a Category C recognition payment of $5,000.

Orders

  • ['The reviewable decision is set aside and I make the following decision in substitution for it:' 'FXE was a primary victim of an act of violence on the balance of probabilities;' 'A Category C recognition payment is approved in the sum of $5,000 pursuant to s 35(3)(c) of the Act.']