Booth v An Assessor & Anor - [2019] NTSC 89

CITATION: Booth v An Assessor & Anor [2019] NTSC 89

PARTIES: BOOTH, James Congalton

v
AN ASSESSOR UNDER SECTION 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006 (NT)
and
DIRECTOR, CRIMES VICTIMS SERVICES UNIT

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:CAT 1 of 2019 (21931892)
DELIVERED:  27 December 2019
HEARING DATES:  6 December 2019
JUDGMENT OF:  Grant CJ
CATCHWORDS:

NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL – APPLICATION FOR LEAVE TO APPEAL – QUESTION OF LAW
Whether error of law in dismissing application for extension of time for want of prosecution – no non-jurisdictional error of law – no jurisdictional defect by failing to provide procedural fairness or acting in bad faith – Failure to comply with procedures and case management orders on the effective operation of the NTCAT a relevant consideration – Application for leave to appeal dismissed.
Northern Territory Civil and Administrative Tribunal Act 2014 (NT) s 10, s 52, s 53, s 55, s 94, s 96, s 101, s 141
Victims of Crime Assistance Act 2006 (NT) s 44, s 48
Victims of Crime Assistance Regulations 2007 (NT) Sch 3

Allan v Transurban City Link Limited (2001) 208 CLR 167, B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481, Chief Executive Offıcer of Department for Child Protection v Hardingham [2011] WASCA 262, Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, Craig v South Australia (1995) 184 CLR 163, Development Consent Authority v Phelps (2010) 27 NTLR 174, Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, Haritos v Commissioner of Taxation (2015) 233 FCR 315, Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, King v Commissioner for Consumer Protection [2018] WASCA 194, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, Nepean Country Club Ltd v Paterson [2009] VSC 436, Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, Ulowski v Miller [1968] SASR 277, White v Northern Territory of Australia (1989) 97 FLR 122, referred to.

REPRESENTATION:
Counsel:
Applicant:Self-represented
Respondents:  L Peattie
Solicitors:
Applicant:Self-represented
Respondents:  Solicitor for the Northern Territory
Judgment category classification:              B
Judgment ID Number:  GRA1919
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Booth v An Assessor & Anor [2019] NTSC 89

No. CAT 1 of 2019 (21931892)
BETWEEN:

JAMES CONGALTON BOOTH
Applicant

AND:

AN ASSESSOR UNDER SECTION 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006 (NT)
First Respondent

DIRECTOR, CRIMES VICTIMS SERVICES UNIT
Second Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 27 December 2019)

This is an application for leave to appeal from the decision of the Northern Territory…

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: [2019] NTSC 89
Decision Date: 27 December 2019

CaseChat Overview and Summary

The parties involved in this matter were Booth, the applicant, and the first and second respondents, who were the Assessor and the Director respectively, under the Victims of Crime Assistance Act. The dispute centred around the dismissal of the applicant’s application for financial assistance on the grounds of want of prosecution. This application was brought before the Northern Territory Civil and Administrative Tribunal (NTCAT). The central legal issues the court had to decide were whether the NTCAT committed an error of law in dismissing the applicant's application for financial assistance, and if there was a failure to provide procedural fairness or act in bad faith.

The court held that there was no error of law in the dismissal of the applicant’s application for an extension of time for want of prosecution. It was determined that the failure to comply with procedures and case management orders was a relevant consideration in the effective operation of the NTCAT. The court further held that there was no non-jurisdictional error of law, nor was there a jurisdictional defect such as a failure to provide procedural fairness or acting in bad faith. Given these findings, the application for leave to appeal was dismissed.

The court’s decision was grounded in the procedural history of the case, where the applicant had missed several deadlines and failed to comply with the Tribunal’s orders. The Tribunal had provided the applicant with multiple opportunities to remedy these failures, but the applicant did not take the necessary steps to address the issues. The court concluded that the Tribunal’s decision to dismiss the application for want of prosecution was within its jurisdiction and there was no basis for an appeal. The final order of the court was to dismiss the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

Although the question strictly in issue in this application is whether the Tribunal committed an error of law in dismissing the proceedings commenced by the applicant in that forum, it is necessary to consider the broader background to the applicant’s complaint in order to understand and contextualise the grounds of appeal which have been pleaded.Background On 7 August 2014, the applicant was the victim of an assault in which he suffered a fractured right ulna. On 27 January 2015, the applicant made an application for financial assistance under the Victims of Crime Assistance Act for injuries sustained in the course of the assault. The matter was referred for investigation, which included an assessment by a Consultant Neurosurgeon. In his report dated 30 August 2016, the neurosurgeon made the following relevant findings:Mr Booth suffers right ulnar neuropathy following a fracture of the ulnar in the mid forearm that is a blunt trauma to the ulnar nerve. The features are consistent with the stated cause…. Further investigations are not required. Treatment thus far has been unsuccessful. I have no additional treatment recommendations that are likely to benefit Mr Booth.…Details of complaints and disabilities Mr Booth presents with are nerve pain in the distribution of the right ulnar nerve with muscle weakness, wasting and sensory impairment consistent with right ulnar neuropathy.…The compensable injury properly listed in the Table Schedule 3, page 30 comes under fractured ulna with continuing disability. Standard amount of financial assistance is $10,200.…There is no other category of injury within the Table which may also apply or better describe the injuries sustained.…Mr Booth suffers from continuing disability resulting from the assault namely ongoing neuropathic pain and neuropathy with weakness and sensory disturbance of the right ulnar nerve in the mid forearm. Disability is likely to continue indefinitely. I am unaware of any treatment that will benefit Mr Booth at this late stage. The reference to Schedule 3 is to a schedule to the Victims of Crime Assistance Regulations 2007 (NT), which contains a table of compensable injuries and standard amounts. The table lists various categories of injury (e.g. “Brain damage”, “Burns”, “Head”, “Lower limbs”, et cetera), and prescribes standard amounts of financial assistance for each subcategory of injury under those main categories. The item referred to by the neurosurgeon appears in the category “Upper limbs” in that table, and is expressed as “ulna: fractured ulna (with continuing disability)”. The standard amount of financial assistance for that item is prescribed as $10,200. Following receipt of that assessment, the first respondent prepared an Assessor’s Notice to Director determining the applicant’s entitlement to an award for financial assistance. That Notice described the assault, the outcome of the criminal proceedings, and the assessment of the applicant’s injuries. The Notice then recorded the decision on the application, including the following relevant matters:I have considered the Report of the Consultant Neurosurgeon (refer paragraph 4 of the Material Findings) and accept that opinion;In accordance with regulation 18(1) & (2), financial assistance is awarded for the most serious injury, second most serious injury and third most serious injury, as determined by the amount awarded under Schedule 3 Part 2 of the Regulations, suffered by the applicant....;…The applicant is entitled to an award of financial assistance for his compensable injury in the amount of $10,200.00; andI have determined that the applicant is entitled to reimbursement of financial loss of $86.00 for medical expenses incurred for treatment of his compensable injury (refer paragraph 7 of the Material Findings).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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