Booth v An Assessor under Section 24 of the Victims of Crime Assistance Act 2006 (NT) - [2020] NTCA 5

CITATION: Booth v An Assessor under Section 24 of the Victims of Crime Assistance Act 2006 (NT) & Anor [2020] NTCA 5

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: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 2 of 2020 (21931892)

DELIVERED: 30 March 2020

HEARING DATE: On the papers

JUDGMENT OF: Graham AJ

REPRESENTATION:

Counsel:
Appellant: Self-represented
Respondents: L Peattie

Solicitors:

Appellant:Self-represented
Respondents: Solicitor for the Northern Territory

Judgment category classification:          C
Judgment ID Number:  Grah2001
Number of pages:  6

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Booth v An Assessor under Section 24 of the Victims of Crime Assistance Act 2006 (NT) & Anor [2020] NTCA 5
AP 2 of 2020 (21931892)

BETWEEN:
JAMES CONGALTON BOOTH
Appellant

AND:
AN ASSESSOR UNDER SECTION 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006 (NT)
First Respondent
AND:
DIRECTOR, CRIMES VICTIMS SERVICES UNIT
Second Respondent

CORAM: GRAHAM AJ

REASONS FOR JUDGMENT

(Delivered 30 March 2020)

The Appellant appeals from a judgment of the Supreme Court [the Court] handed down on 27 December 2019. Leave to appeal is required by s 53(1) of the Supreme Court Act and the application is determined by the Court of Appeal sitting as a single judge. It is in that capacity that I hear the application. I add the decision of the Court was an interlocutory judgment. Though there is no requirement to hand down a formal judgment, I do so noting the Appellant appears in person.
The matter came before me on 6 March 2020 but was adjourned until 25 March 2020 to enable the Appellant to file an application seeking leave. His prior material seemed to be couched on the premise that he was appealing as of right.
In order to obtain leave to appeal from a discretionary judgment it has to be shown that the judgment was either wrong or at the least, there was sufficient doubt so as to warrant the granting of leave.
The Appellant did not make a fresh application prior to the return date. Shortly prior to the return date the Appellant sent an email to the Supreme Court claiming that he was unwell and requested a long-term adjournment. My Associate sent the Appellant an email informing him that I required medical evidence supporting his assertion that he was sick. The Appellant was told that unless medical evidence was provided supporting his allegation, I would proceed to determine his application on the merits. No evidence was provided. I will therefore proceed to determine this application on the merits.
There were three grounds of appeal in the original application. These were grounds of actual appeal and not grounds seeking the exercise of the Court’s discretion to grant leave to appeal from an interlocutory judgment. Notwithstanding this shortcoming, as a matter of completeness, I will deal with them.
The first ground submitted the Court erred by failing to afford the Appellant procedural fairness. As best as I can conclude, the Appellant was arguing that NTCAT [the Tribunal] had denied him fairness and the Court should have come to this conclusion. I will deal with this ground later in this judgment when I reference the Respondents’ answer to this notice of appeal.
The second ground is set out as follows “it was reasonably apparent to the Tribunal that the appellant was unable rather than unwilling to comply with paragraph 2 of the order of 1 March 2019 most likely because of a mental health disability or impairment”. I can dispose of this ground simply. It does not raise a ground claiming an error in law by the Court.
The third ground is “by dismissing the appellant’s application for failing to comply with this order, the Tribunal failed to afford the appellant procedural fairness”. This ground discloses no submission claiming an error in law by the Court. It is therefore dismissed.
On 25 January 2015 the Appellant lodged an application for financial assistance by primary victim for the purposes of making a claim under the Victims of Crime Assistance Act. This application was decided by an assessor on 12 December 2016.
On 18 January 2019, out of time, the Appellant applied to the Tribunal for a review of the decision. On 1 August 2019 the Tribunal dismissed the proceeding for want of prosecution.
On 26 August 2019 the Appellant filed an application for leave to appeal to the Supreme Court.
On 6 December 2019 the Court heard the application and on 27 December 2019 it dismissed the application.
On 5 February 2020 the Notice of Appeal was filed.
The Respondents argued that the application for leave to appeal from the order of the Court to the Court of Appeal be dismissed on a number of grounds.
It is argued that the application had been instituted without leave. It must be borne in mind that the Appellant appears in person and may not, when instituting the application, have appreciated that there is a difference between appealing and seeking leave to appeal. He may have thought that his application could be considered as an application for leave to appeal. I am inclined to be sympathetic to this notion and I do not dismiss the application on this ground. I note this is granting him an indulgence.
The second ground is that the Application for Leave to Appeal had to be filed within 28 days after 27 December 2019 and it is out of time. On the other hand, it was only out of time by a few days and though one can understand the frustration of the Respondents, in the circumstances, I am inclined to grant the Appellant a further indulgence by extending the time for the filing of the application and concluding that the application is for leave to appeal. I note he has failed to file further material.
The third ground is essentially a reworking of the second ground that the application for leave to appeal itself would be out of time. This also can be rectified with yet another indulgence to the Appellant.
The fourth ground is that the relief being sought by the Appellant is incapable of being granted by the Court of Appeal. The claim of the Appellant for relief, his first ground, as I perceive it, only has one substantive limb and that is that the Court erred in failing to conclude that the Tribunal did not afford the Appellant procedural fairness. This leads me to examine this issue. The Court found that the Appellant had failed to identify on even a prima facie basis, any satisfactory explanation for delay in commencing proceedings. The judgment went on to say that the dismissal for want of prosecution by the Tribunal did not result in the action being statute barred as it was already two years or so out of time. Upon reading the judgment of the Court it is clear these findings were not only open but would be inevitable findings by the Court. Therefore, it cannot be said that the Court erred in its conclusion and as these are the supposed errors in law being argued by the Appellant, it must fail.
Finally, the Respondents argue that the only jurisdiction of the Court of Appeal in any event would be to determine whether the Court had committed an error in law. This is clearly correct. The Court of Appeal would have no jurisdiction to review the Tribunal’s decision or the assessor’s decision. This is an interlocutory application and must be dealt with as such.
Courts are understandably reluctant to grant applications for leave to appeal from a refusal of leave.
Most significantly no error can be shown in this case by the Court. In fact I would suggest the decision reached was the only decision open.
The Appellant has not established that the decision of the Court was wrong or attended with sufficient doubt so as to warrant the granting of leave. Leave is refused.
I note no order for costs was made by the Court. I regard this application as frivolous and, though it is a matter for the Respondents as to whether to seek an order, I would contemplate making an order for costs including indemnity costs if such an application was made, subject to hearing argument.

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