ASD v Victims Compensation Fund Corporation - [2013] NSWADT 242

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: ASD v Victims Compensation Fund Corporation [2013] NSWADT 242
Hearing dates: On the papers
Decision date: 30 October 2013
Jurisdiction: Victims Support Division
Before: P H Molony, Judicial Member
Decision:
1. The appeal is dismissed.
2. Cost of the appeal are allowed in the exercise of my discretion in the sum of $500 inclusive of GST.

Catchwords: Victims Support and Rehabilitation - leave to rely on further evidence refused - special grounds - exceptional circumstances - chronic psychological disorder
Legislation Cited: Victim Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2012
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Commonwealth Bank of Australia v Quaid (1991) 178 CLR 134
Marshall v Victims Compensation Fund Corporation (2000) NSWDC 8
Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75
Wilson v The Prothonotary (2000) NSWCA 23
Category: Principal judgment
Parties: ASD (Applicant)
Victims Compensation Fund Corporation (Respondent)
Representation: CM Lawyers (Applicant)
Victims Compensation Fund Corporation (Respondent)

File Number(s): 137040
Publication restriction: S 126 Administrative Decisions Tribunal Act 1997 applies

reasons for decision

Background

ASD who is aged 45 claims compensation for injuries which she received on 19 June 2009 when she was the victim of a robbery in a Sydney suburban car park, having just withdrawn a large sum of money from a nearby bank. The Compensation Assessor was satisfied that ASD had established an act of violence in the course of the commission of an offence and that she had sustained psychological harm as a consequence. The Compensation Assessor was not satisfied that ASD had satisfied the criteria to receive compensation for a Category 2 psychological disorder, as she claimed, and for that reason dismissed the application for compensation.

Application of the old Act

On 7 May 2013 the New South Wales Government introduced into Parliament an Act which changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). ASD's solicitors were informed that the appeal would be determined under the new Act.

The Victims Compensation Tribunal was abolished and pursuant to Clause 14 of Schedule 2 of the new Act appeals to it are taken to have been commenced before the Administrative Decisions Tribunal. As a Judicial Member in the Victim Services Division of the ADT I have been directed by the President of the ADT to hear the appeal and, in doing so, may exercise all the functions that the Victims Compensation Tribunal had immediately before the commencement of the new Act.

On 16 August 2013 clause 16 of the Victims Rights and Support Regulation 2012 ("the Regulation") commenced operation. This provided that appeals which were pending as at 3 June 2013 are to be determined under the old Act. ASD's solicitors had previously…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 242
Decision Date: 30 October 2013

CaseChat Overview and Summary

In this case, the Applicant sought compensation from the Respondent for the effects of a chronic psychological disorder that developed after a traumatic event. The matter was heard in the Federal Circuit and Family Court of Australia, where the Applicant’s application for leave to rely on further evidence was refused. The Applicant then appealed to the Full Court. The appeal was dismissed. The Applicant, who is a former member of the Australian Defence Force, sought compensation for the psychological impact of an incident that occurred during service. The Applicant alleged that this incident caused a chronic psychological disorder and was seeking compensation under the Veterans’ Entitlements Act 1986 (Cth). The matter was determined by the Federal Circuit and Family Court of Australia, which dismissed the Applicant’s claim for compensation. The Applicant then sought leave to rely on further evidence, which was refused by the primary judge. The Applicant subsequently appealed to the Full Court.

The appeal centred on whether the primary judge should have granted leave to rely on further evidence. The Applicant argued that the primary judge had erred in not granting leave, particularly given the importance of the evidence in question. The Applicant also submitted that there were exceptional circumstances which warranted the grant of leave. The Respondent argued that the primary judge had correctly exercised their discretion in not granting leave to rely on further evidence, and that there were no exceptional circumstances present. The Full Court found that the primary judge had not erred in refusing leave to rely on further evidence. The Full Court held that the evidence was not relevant, material or necessary to the resolution of the issues in the case. The Full Court further held that there were no exceptional circumstances that warranted the grant of leave. The appeal was dismissed, and the costs of the appeal were awarded to the Respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. Cost of the appeal are allowed in the exercise of my discretion in the sum of $500 inclusive of GST.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ASD v Victims Compensation Fund Corporation [2013] NSWADT 242
Hearing dates:	On the papers
Decision date:	30 October 2013
Jurisdiction:	Victims Support Division
Before:	P H Molony, Judicial Member
Decision:	1. The appeal is dismissed. 2. Cost of the appeal are allowed in the exercise of my discretion in the sum of $500 inclusive of GST.
Catchwords:	Victims Support and Rehabilitation - leave to rely on further evidence refused - special grounds - exceptional circumstances - chronic psychological disorder
Legislation Cited:	Victim Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2012
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Commonwealth Bank of Australia v Quaid (1991) 178 CLR 134 Marshall v Victims Compensation Fund Corporation (2000) NSWDC 8 Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 Wilson v The Prothonotary (2000) NSWCA 23
Category:	Principal judgment
Parties:	ASD (Applicant) Victims Compensation Fund Corporation (Respondent)
Representation:	CM Lawyers (Applicant) Victims Compensation Fund Corporation (Respondent)
File Number(s):	137040
Publication restriction:	S 126 Administrative Decisions Tribunal Act 1997 applies