Aldridge v Victims Compensation Fund Corporation (No 2)

[2008] NSWSC 1040

CITATION:	Aldridge v Victims Compensation Fund Corporation (No 2) [2008] NSWSC 1040
HEARING DATE(S):	Written submissions
JUDGMENT DATE :	7 October 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	Each party bear her or its own costs.
CATCHWORDS:	COSTS – ordinary rule that costs follow the event – impecuniosity insufficient of itself to overcome general rule – public funds – combination of factors overcome ordinary rule – each party bear their own costs
CATEGORY:	Consequential orders
CASES CITED:	Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724
PARTIES:	Dawn Aldridge (Plaintiff) Victims Compensation Fund Corporation (First Defendant) Victims Compensation Tribunal (Second Defendant)
FILE NUMBER(S):	SC 13847/2007
COUNSEL:	J Raine (Plaintiff) S Free (First Defendant) Submitting appearance (Second Defendant)
SOLICITORS:	Fosters Lawyers (Plaintiff) Crown Solicitor's Office (Defendants)
LOWER COURT JURISDICTION:	Victims Compensation Tribunal
LOWER COURT FILE NUMBER(S):	86384
LOWER COURT JUDICIAL OFFICER :	Magistrate Gilmore

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

7 OCTOBER 2008

13847/2007 Aldridge v Victims Compensation Fund Corporation & Anor (No 2)

JUDGMENT

1 HIS HONOUR: On 17 July 2008, the Court, as presently constituted, delivered judgment on the substantive issue in the proceedings: Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 (“the substantive proceedings”). The Court dismissed the proceedings and the defendant seeks its costs.

2 The plaintiff alleged before the Victims Compensation Tribunal that she had been the victim of a series of domestic violence attacks, the details of which are more fully recited in the substantive proceedings. The Tribunal refused the application on the basis of the lack of corroborating material. During the course of the judgment on the substantive proceedings, I reiterated the sentiment of the Tribunal to the effect that, if the allegations of the plaintiff were true, this would be a most sad case.

3 I also commented that there was nothing stopping a further application, supported by corroborating material. While such an application would require an extension of time to proceed, the policy of the statute under which such discretion is exercised would seem to be in favour of an extension. However, there was no error of law in the decision of the Tribunal that would have allowed orders to issue.

4 Unbeknownst to me, at that time, the plaintiff had made further application (six in all) and had been informally advised that the fresh application would not be accepted. It is not clear whether such refusal occurred before or after the judgment in the substantive proceedings and, therefore, whether the Tribunal had regard to the reasons of the Court. Nor is it clear whether either party has taken any steps subsequent to the substantive judgment.

5 If the Tribunal were not to have had regard to the policy of the statute and its obviously intended benevolent effect, other proceedings may be available. But, for present purposes, the correctness or otherwise of any subsequent decision of the Tribunal cannot be relevant to the issue of costs in these proceedings.

6 However, the subsequent applications, it is said, corroborate, in part, the original allegation before the Tribunal.

7 In those circumstances, the Court is being asked to order an impoverished indigenous Australian women, who has, on material subsequently available to the Tribunal, more probably than not been the victim of significant domestic violence, to pay the costs of a Tribunal established with public moneys for the purpose of compensating victims of crime.

8 Ordinarily, costs follow the event. Impecuniosity is not a sufficient reason to overcome that general rule. Nor is the fact that a person is of aboriginal descent or a member of the aboriginal community. But the combination of factors (impecuniosity; aboriginality; likelihood of having (on subsequent information) the qualifying factors for compensation from the Tribunal; the public nature of the Fund and the Tribunal; and the futility of the orders) are sufficient, in this case, to overcome the general rule.

9 I order that each party bear her or its own costs.

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