Bourke v Victims Compensation Fund Corporation

[2001] NSWDC 33

New South Wales

District Court

CITATION:	Bourke v Victims Compensation Fund Corporation [2001] NSWDC 33
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Judy Bourke Victims Compensation Fund Corporation
FILE NUMBER(S):	4760 of 2000
CORAM:
CATCHWORDS:	act of violence - procedural fairness - shock
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 Victims Compensation Act 1996
CASES CITED:	Victims Compensation Fund v Crowley
DATES OF HEARING:	16/02/01
DATE OF JUDGMENT:	16 February 2001

JUDGMENT:

HIS HONOUR: The appellant described as plaintiff in her notice of motion seeks an order that leave be granted under s 39(1) of what the notice describes as the Victims Compensation Act , 1996 , but more correctly the application has been brought under s 39 of the Victims Support and Rehabilitation Act, 1996.

This notice of motion seeks leave to appeal against a determination of the learned Tribunal asserted to be made on 22 March 2000, however the decision of the Tribunal appears to be dated 15 March 2000, as I understand it 22 March was in fact the date of receipt of the determination.

The motion also seeks an order that the Court proceed immediately to hear and determine the appeal and to make orders sought in the notice of application. The statement in support of the application for leave to appeal has been filed, the notice of appeal to commence proceedings effectively was filed in court on 15 February this year. It appears there was some misunderstanding as to whether that had been filed earlier in time but in any event no particular issue turns on that. However a particular issue as to the timing of the lodgement of the motion certainly has arisen and it is a matter which, in my view, needs to be determined before any other matters are determined.

Provisions of s 39 of the Victims Support and Rehabilitation Act, 1996 provide that an appeal may be lodged with leave of the District Court on a question of law arising in any determination of an application by the Tribunal. Section 39 subs (2) provides a period in which an application for leave may be made. It is stated that: :[a]n appeal by a person under this section may be instituted: (a) within the period of 3 months after the day on which the relevant notice of the determination made by the Tribunal was duly served on the person, or

(b) within such further time as the District Court may in exceptional circumstances allow.”

It is clearly enunciated in s 39 that an applicant may, with leave of this Court, appeal to this Court on a question of law. There is no provision in the Act for an appeal in relation to any other errors which may be made by a Tribunal such as an error of fact. Indeed the Legislature has sought fit to clearly state pursuant to subs (3) “[f]or the purposes of this section, the following matters are not questions of law:

(a) a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description described in that schedule,

(b) a determination of whether a series of acts are related and constitute a single act of violence.”

Dealing firstly with the issue as to whether this Court should allow an extension of time it is important to firstly consider the chronology of events after the act of violence was perpetrated upon the appellant. Briefly stated the appellant sustained some injuries in the early hours of the morning of 5 January 1997 when she was apparently disturbed in her home, she was asleep, she heard a noise outside her bedroom window, she got up, she apparently called to a person standing outside to leave and she received an injury to her hand requiring eight stitches. The appellant also claims that she sustained shock and the question of shock in fact underscores the basis of the appeal which as been brought to this Court.

But returning to the chronology, the appellant firstly made an application for compensation which was dismissed by the assessor on 29 January 1998. An appeal was then brought from that determination of the assessor to the Tribunal which dismissed that appeal. The matter came to this Court before his Honour Judge McGuire. He gave the appellant leave to appeal, he upheld the appeal and remitted the matter to the Tribunal. The Tribunal made a determination on 15 March last year and awarded compensation in the sum of $3,000 in respect of scarring and minor disfigurement. The Tribunal did not find that the appellant sustained the compensable injury of shock and that is the basis of this appeal.

The reasons for the delay in the lodgement of the application for leave have not been addressed in any affidavit or oral evidence. Indeed the appellant was not present during the course of the hearing before me yesterday. Nevertheless it was common ground from submissions from the Bar table yesterday that effectively it was through no personal fault of the appellant but the fault of the appellant’s solicitors who apparently misunderstood the time in which an appeal could be brought.

It is also necessary for the Court to have regard to provisions of the District Court Rules and in particular the provisions of Pt 6 r 60C and the sub-rules which follow. This rule falls within Div 7A relating to appeals under s 39 of the Victims Compensation Act, 1996 . It is provided in Pt 6 r 60C(1) and following: “An application for leave must be made by notice of motion under Part 16.” Secondly: “An application for leave must be filed and served within 2 months of the date on which the relevant notice of the determination sought to be appealed against was served as referred to in section 39(2) of the Compensation Act.” Three: “An application to extend the time prescribed in subrule (2), or to allow further time to appeal under section 39(2) of the Compensation Act, must be made by notice of motion under Part 16.” There are further provisions concerning the requirements for statements to accompany an application for leave.

The provision of s 60C(1)(3) has as far as I can understand it, technically, not been complied with. This being an application for leave out of time really needs to be supported by its own motion with supporting affidavits and there is nothing before me to indicate that that technical requirement under the rules has been met. However, this matter has had some considerable history in the District Court after the filing of the notice of motion and it would appear that there is no issue as to the reasons for the delay, the application has effectively been made orally by Miss Healey who appeared for the appellant yesterday.

The Court also has power in appropriate circumstances to dispense with the compliance of that rule pursuant to the provisions of Pt 1 r 5(2).

In any event, returning to the question of the timing of the application for leave, I note the following emerges. Firstly, it is opposed by the respondent who does not suggest any prejudice whatsoever. I have noted the submissions prepared by Mr Quickenden, who appeared for the respondent yesterday, both written and oral. I note that he asserts that there are certain matters which are cast upon the appellant by way of an onus to indicate a number of matters as set forth in his written submissions. For the record, Mr Quickenden’s written submissions have been marked for identification 2 and will remain on the Court file. I have taken those matters into account. Returning for a moment to the chronology, it does seem to me that the documentation filed in the District Court has not involved the expiration of any prolonged period of time, the delay is relatively minor. That is one matter to take into account because of the need to consider whether the appellant has satisfied me that “exceptional circumstances” exist pursuant to s 39 subs (2) of the Victims Support and Rehabilitation Act and that is an onus which rests upon the appellant in an application of this nature.

Another matter which arises when considering the question of time is that the proceedings have travelled some considerable extent in the District Court after the notice of motion was filed on 23 June 2000 and apparently no particular issue was taken insofar as the delay was concerned, this being an issue recently taken up by the respondent. So whilst there is a delay, it is not an extraordinary delay. I am satisfied there was no personal fault on behalf of the appellant. There is no issue as to any forensic diligence that she may or may not have exercised in the instruction of solicitors, apparently back in time there was a change of solicitors.

The issue raised in the motion and other documentation, in my view, does raise an issue of law which should be considered further as to whether that issue has been made out, given the circumstances of the determination by the Tribunal. There is a prima facie issue there that should be taken into account.

It is clear there was an oversight, or misunderstanding, by the solicitor, all of these in my view, in total, constitute a basis for finding that exceptional circumstances do exist and for those reasons I consider it is appropriate to grant an extension of time as sought, particularly having regard to the lack of prejudice as far as the respondent is concerned.

I now return to the issues which have been raised in this appeal. I have briefly outlined the background facts and circumstances. The Tribunal has an important statutory role. Clearly the Tribunal must have regard to questions of procedural fairness and comply with the rules of natural justice. As I understand it, the matter was determined by the Tribunal in the absence of any hearing. It was effectively a desk determination, if I could use those words.

I had earlier referred to the provisions of s 39 subs (3) and considerable attention has been given to both counsel to the provisions of s 39 subs (3) and generally in relation to the issue as to whether this appeal is one which can fall within the provisions of the restrictions upon the limits of appeal to this Court.

I have been furnished with a number of decisions of Judges of the District Court but of particular significance is an authority heavily relied upon by the respondent, namely the decision of the Court of Appeal in Victims Compensation Fund v Crowley . I have carefully read that decision. I have also noted Mr Quickenden’s detailed written submissions prepared for the Court of Appeal, but it is essential for this Court to have regard to the decision of the Court of Appeal as distinct from written submissions which are not binding on this Court. I shall return to the decision of Crowley shortly.

In the statement in support of the application for leave to appeal the appellant has criticised various aspects of the Tribunal’s decision. Effectively it is alleged that the Tribunal made an error of law in finding that the appellant did not sustain shock, that effectively is the bottom-line submission and certainly it is to be noted that the Tribunal did not find that the plaintiff had sustained shock and I shall refer to the determination of the Tribunal in some detail shortly. In support of that issue the appellant maintains that the Tribunal misdirected itself as to the requirements and meaning of Sch 1 cl 5 of the Victims Compensation Act, 1996, further that the Tribunal erred in law in failing to give sufficient reasons for the determination that the appellant had not suffered from shock and finally that the Tribunal erred in law in failing to consider evidence contained in medical reports of a psychologist, a Miss Patsy Grew, dated 4 September 1997 and 29 February 1999 respectively.

I have noted what has been set forth in the particulars attached to that statement in support of the application for leave, but principally there is an attack upon the Tribunal insofar as its reasoning process is concerned. The further submission on the part of the appellant is that the Tribunal did not consider certain matters set forth in a report of Patsy Grew, dated either 25 or 29 February 1999, it matters little as far as the date is concerned and to that end the Tribunal is criticised for failing to take into account references to the appellant’s work situation. It is suggested that a number of statements contained in the report of Miss Grew address the issue of the effect of her position insofar as her work was concerned.

It is submitted on behalf of the appellant that the Tribunal did not make any mention of her impaired work. It is further submitted, amongst other submissions the Tribunal effectively erred in law in failing to consider the evidence of Miss Grew in this particular issue. It is submitted that certain sections of the report of Miss Grew were ignored by the Tribunal and it is submitted that the Tribunal gave no reasons for rejecting certain sections.

The submission that the Tribunal erred in law in misdirecting itself as to Sch 1 cl 5 of the Act has also received significant debate and I have noted the respondent’s submissions in relation to that and the other submissions which are clearly set forth. The decision of the Tribunal is before me and it is contained in the Tribunal’s file, being exhibit A. It is clear from the opening remarks of the Chairperson that he had noted the chronology of events which he recited within that decision and there is no challenge to his recitation of those events. The Chairperson, did refer to the reports from Miss Grew so far as the suggestion of post traumatic stress disorder is concerned and other matters. He also referred to other reports and materials in relation to the orthopaedic injuries sustained by the appellant and I note his observations about that. Those matters, of course, are not relevant to this appeal before the District Court, but what is relevant are the various findings and pronouncements by the learned Chairperson, insofar as the question of shock is concerned.

The first issue to be determined, in my view, is the submission that the Tribunal erred in law in that it misdirected itself as to the requirements and meaning of Sch 1 cl 5 of the Act and here there is an attack upon what is set forth in the determination as to the Chairperson’s pronouncement as to the provisions of that clause. He said this, and I quote:

“As to the compensable injury of “shock”, the criteria is set out in clause 5 of Schedule 1. I am satisfied that clause 5(b) and (c) are met. It is a requirement that clauses 5(a) and (e) also be met. Examples of disabilities are set out in clause 5(e). Where significant adverse effects on social relationships are claimed, it is appropriate that sufficient detail be provided in order to determine whether or not the adverse effects are significant .”

After making those pronouncements the Chairperson went on to say this:

“Having carefully considered the medical reports before the Tribunal I am not satisfied that the compensable injury of “shock” has been established in that I am not satisfied that the criteria required by clauses 5(a) and (e) are established.”

The Tribunal, I am satisfied, had the medical reports to which he referred in his decision before him, he said he “carefully considered” those reports. It should be observed that the reports which assert that the plaintiff has sustained shock are not contradicted by any other reports, they are pronouncements made by persons whose professional qualifications, as I understand it, have never been challenged. Indeed the report in particular of Miss Grew of February 1999 is a very detailed and assertive report clearly, in my view, setting out the author’s findings and opinions as to the condition of the appellant. They are unambiguous findings, they have not been contradicted by any other evidence.

Returning to the challenge to the Tribunal’s reference to the criteria in cl 5, the appellant asserts that the Tribunal misdirected itself and in that regard it is important to reflect upon the provisions to which the Tribunal referred contained in Sch 1 cl 5 of the Victims Compensation Act, 1996 which is clearly the schedule the Tribunal was referring to at that time. Cl 5 sets forth certain matters applicable “to the compensable injury of shock”. It is firstly stated that “[c]ompensation is payable only if the symptoms and disability persist for more than 6 weeks.” Further, that “[t]he injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions.” That “[t]he psychological symptoms include anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and pre-occupation with thoughts of self-harm or guilt. (d) The physical symptoms include alopecia, asthma, eczema, enuresis and psoriasis. (e) Relevant disabilities include impaired work or school or other educational performance, significant adverse effects on social relationships and sexual dysfunction.”

It is interesting to observe that the word “include” is inserted in (c), (d) and (e). In my view that is clearly an inclusive provision, not exclusive, there may be other matters that a Tribunal could take into account. The word “include” in the context of that provision as a whole leads me to form a view that that can only be construed as inclusive symptoms, or ones which could be described as examples of symptoms and disabilities. That is on a fair reading of the provision as a whole and that is precisely what the Tribunal said when the learned Chairperson referred to “[e]xamples” of disabilities set out in cl 5(e). In my view he was correct in saying that it is a requirement that cll 5(a) and (e) also be met on the basis of relevant issues which may be before him. Perhaps on its face there could be an issue as to whether he interpreted that provision correctly or not. One needs to consider that in the context of the terminology set forth in his own decision because effectively the use of the word “[e]xamples” as he has done is consistent with the use of the word “include” where appearing in that clause. I am of the view that that ground of appeal has not been made out.

I now turn to the remaining questions of law as to whether the Tribunal erred in law in failing to give sufficient reasons for his determination that the appellant had not suffered from shock and that the Tribunal erred in law in failing to consider the evidence contained in those medical reports of Miss Grew.

I indicated earlier in this judgment that the Tribunal has an important statutory role, procedural fairness and rules of natural justice all apply and that is a fundamental concept and it is a concept which applies whether or not there is a desk determination. It is the obligation of the Tribunal to deal with the issues before it. In particular it is important to recognise that the recipient of a decision of the Tribunal should not be left with a query as to any reasoning process by which that Tribunal came to a decision or pronouncement. The Tribunal is obliged to determine issues but the process leading to the determination of an issue before the Tribunal must be clearly enunciated in its decision. If it leaves the reader in some doubt as to why or how a Tribunal came to a decision then clearly that is a failure to give sufficient reasons, it is a failure to expose the process which was undertaken by the Tribunal to reach its conclusion. The Tribunal is obliged to consider all of the evidence before it, it is entitled to reject evidence if it considers it appropriate to do so. If it rejects evidence it should state why it rejects evidence.

The Tribunal determined that the appellant had not suffered from shock, the Tribunal was not satisfied that the criteria required by cll 5(a) and (e) were established, that is a pronouncement, clearly stated in the decision. Effectively the Tribunal determined an issue, the issue being whether the appellant sustained a compensable injury of shock. The Tribunal indicated that it had carefully considered the medical reports before it and the Chairperson indicated that he was not satisfied that the compensable injury of shock had been established.

Numerous sections of the report of Miss Grew of February 1999 do refer to certain aspects of the appellant’s life insofar as her working environment is concerned. No mention of this has been made in the determination of the Tribunal. The Tribunal did say that it considered the medical reports. These reports have not been contradicted by other reports as I indicated earlier.

The Tribunal having said that it considered the medical reports in my view can only mean that the Tribunal did consider the reports. There may however be a question as to the extent to which the Tribunal considered those reports. Given that the Tribunal did consider the reports I ask myself then why did the Tribunal determine that the appellant had not suffered from shock? The Tribunal has simply said that it was not satisfied that shock had been established, having regard to the criteria enunciated in cll 5(a) and (e). That is a pronouncement, that is a decision, that of itself is a determination. I ask myself what was the process of reasoning which led the Tribunal to form that view? It is simply not stated. Bluntly put, a pronouncement is one thing, reasons for a pronouncement is another.

As I said earlier the respondent relies upon the authority of the Victims Compensation Fund v Crowley .

There was an issue in that decision as to whether the Tribunal gave sufficient reasons for its decision, any question of insufficient reasons was simply not an issue as I understand the authority in that case. The Tribunal in that authority made a finding which resulted in the appeal before the Court of Appeal. The matter having earlier been dealt with by his Honour, Judge Goldring, of the District Court. It was asserted there by Mr Justice Meagher that there was no point in remitting the matter to the Tribunal because there had been a mistake of law on a matter of no relevance. He said: “What would the tribunal do if the matter were remitted to it? All it could logically do is say our previous decision is affirmed, because nothing would have upset the finding that there was no compensable injury.” Given that there was a mistake of law in that case it should be noted that that was in relation to a matter of no relevance. It should be further noted that that case can be distinguished from the matter before me, because no issue as to the reasoning process of the Tribunal arose in that decision. In the matter before me the issue as to the reasoning process is certainly before me and further it is a direct, relevant and important issue between the parties. Accordingly, this is a different case.

It is worth reflecting upon the report of Miss Grew of 25 or 29 February, whatever it might be, 1999. In this regard it is important to reflect upon these pronouncements. This the report which post-dated an earlier report of Miss Grew of 6 April 1998. She indicated that the appellant had been treated by Dr Ellacott, this related to the injury sustained by the appellant to her hand where there was a reference in this report to a fear of further invasion and there was an inability to sleep or work over the previous three weeks. There is a reference to the appellant explaining that she was an artist and that her injury could affect her livelihood.

There is an unequivocal assertion that the appellant was suffering post-traumatic stress disorder. There is an indication that the Tribunal was asked “for permission to counsel her as [she] could see that her condition could have long term effects.” There is an indication that two sessions of counselling were allowed. There was an application for further sessions and an allowance of a further ten sessions in September 1997. There is a reference to the resumption of travel “during the day in [the appellant’s] minibus for showings and workshops as she had previously.” There is a further reference to her work, namely her “work at home during the night so as not to be interrupted, but this was unsuccessful as she was fearful of intruders at night.” There is a reference to the appellant working on her computer, her hand being painful “and certainly the distress she felt was not compatible with the creativity needed for a successful artist.” A further pronouncement: “As she began to work more frequently, she could only work for short periods before her hand became too painful.”

I am mindful of the Tribunal’s decision as to the orthopaedic injury the appellant sustained but it is important, in my view, to focus again on the pronouncements of Miss Grew concerning matters which relate to any question of shock and in particular its effect upon her work environment. There is a reference to further counselling on numerous occasions. This is an indication of an attempt “to restore [the appellant’s] confidence, self esteem and feeling of control over her life.” There is a reference to some “behavioural strategies” being “used in a work context to help the process of rehabilitation.” There is a reference to her home and workplace which “needed to be normalised into confidence and comfort.” There is a reference to the appellant’s personality being “intrinsically sociable and sensitive and her work shows this.” None of those particular issues has been specifically referred to by the Tribunal in its decision.

Again this is a relevant and important issue. The Tribunal, with the greatest of respect to it, merely asserted that it was not satisfied that shock had been established.. I am unaware of the reasoning process which led to that finding. The closest one could come to ascertaining a reasoning process of a kind is the indication that the Tribunal was not satisfied that it met the criteria as required by cl 5(e). That is a pronouncement. It leads this Court to ask itself, why was the Tribunal not satisfied? That of itself leads me to conclude that the Tribunal did in fact err in law in failing to give sufficient reasons for the determination that the appellant had not suffered from shock.

It may be said that if this matter is further considered by the Tribunal then the Tribunal will arrive at the same decision. That may be the case or it may not, there may well be a question of the degree to which the Tribunal had earlier taken into account those reports. I also acknowledge that the Tribunal did indicate that the reports were carefully considered. It is important to bear in mind, however, that the appellant is entitled to know the reasoning process which forms the basis of that decision.

In this particular case, at the end of the day, there should be a matter for the decision of the Tribunal and whatever decision the Tribunal makes it should still expose its reasoning. In this particular case, which I have distinguished from the Crowley authority, it could not be said that the exercise of remitting the matter to the Tribunal is an exercise in futility. For those reasons I am of the view that the question of law stated in para (c) is one which has been made out.

The orders of the Court therefore are as follows:

Firstly, I give leave to the appellant to file the notice of motion seeking leave and a statement in support of application for leave to appeal out of time. I dispense with the need to file a motion to extend time I give leave to the appellant to appeal to the District Court pursuant to s 39(1) of the Victims Support and Rehabilitation Act, 1996 . I make an order in accordance with para 2 of the notice of motion. Time for filing the notice of appeal is extended. I set aside the determination of the Tribunal and remit the matter to be considered and determined again by the Tribunal in accordance with the decision of this Court on the question of law concerned.

I think I have covered all the necessary orders save for the question of costs. What is the position concerning costs?

HALL: In relation to costs, it would be costs follow the event, there is no schedule or scale in relation to costs in these matters, it is the usual orders agreed or assessed.

HIS HONOUR: The respondent is to pay the appellant’s costs as agreed or assessed.

Exhibit A is to be retained and returned to the respondent after the transcript of the reasons for judgment is provided.