New South Wales

Civil and Administrative Tribunal

• DUD v Commissioner of Victims Rights [2019] NSWCATAD 163 (15 August 2019) – New South Wales Civil and Administrative Tribunal

  

  ‘Administrative review’ – ‘Children’ – ‘Civil and administrative tribunal’ – ‘Eggshell psyche’ – ‘Physical violence and harm’ – ‘Psychological injury’

  Charges: Act of domestic/family violence

  Case type: Application for Administrative Review

  Facts: The applicant sought administrative review of a decision in respect of an application for Victims Support. In 2015, the applicant’s solicitor lodged an Application for Victims Support which alleged that she was the primary victim of an act of domestic/family violence. She also alleged to have suffered a psychological injury as a result of the violent conduct, and she sought counselling, financial assistance for immediate needs or economic loss, and a recognition payment ([2]-[3]).

  At first instance, the Assessor approved a Category D recognition payment in the sum of $1500 on the basis that the evidence indicated that the applicant was a victim of an assault that did not result in grievous bodily harm ([7]). Subsequently, the applicant’s lawyer signed an Internal Review request form, submitting that she had suffered grievous bodily harm as a result of the violence and that a Category C recognition payment should have been approved ([9]). The Senior Assessor, however, re-affirmed that the applicant was the primary victim of an act of violence, and was only eligible for a Category D recognition payment in the sum of $1500 ([12]).

  Issue: The Tribunal was required to determine an application for an administrative review. Its powers derive from s 63 of the Administrative Decisions Review Act 1997 (NSW).

  Held: The applicant’s solicitor cited Helm v Pel-Air Aviation Pty Ltd and BWQ v Commissioner of Victims Rights in the Internal Review form, both of which relate to the characterisation of psychological injury as ‘bodily harm’. The Senior Assessor determined that ‘as [the applicant] relies on a psychological injury as evidence of grievous bodily harm in order to be eligible for a Category C recognition payment’, it is necessary to consider ‘whether the evidence establishes a “really serious” psychological injury’. The Senior Assessor was not satisfied that the applicant’s functioning had been impacted solely as a ‘direct result’ of the domestic violence, or that her psychological injury was sufficiently serious to justify the approval of a Category C recognition payment ([12]).

  Ultimately, the decision of the Senior Assessor was set aside, and the Tribunal decided that the applicant was eligible for a Category C recognition payment in the sum of $5000. The Tribunal discussed CZU v Commissioner of Victims Rights and DEL v Commissioner of Victims Rights, which provide some guidance on the types of evidence which may assist in determining whether a psychological injury is sufficiently serious to be considered grievous bodily harm, in order to approve a Category C recognition payment ([11]-[13]). Although the applicant had experienced prior psychological issues, the Tribunal found that the evidence did not support a finding that she required any ongoing psychological treatment for these issues when the act of violence occurred ([32]). Further, the Tribunal was satisfied on the balance of probabilities that the applicant’s current psychological injury resulted from the act of violence ([37]), and that it could properly be considered as being ‘really serious’ ([44]). The applicant was found to have suffered grievous bodily harm, thereby satisfying the eligibility requirement for a Category C recognition payment. Even if the Tribunal had been incorrect in its finding as to the causation of her current psychological condition, it was satisfied that the ‘eggshell psyche’ principle applied and that her pre-existing ‘eggshell psyche’ was aggravated as a direct result of the violent act ([39]).