Bui v Victims Compensation Fund Corporation

[2000] NSWDC 4

New South Wales

District Court

CITATION:	Bui v Victims Compensation Fund Corporation [2000] NSWDC 4
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Jimmy Martin Bui Victims Compensation Fund Corporation
FILE NUMBER(S):	7205 of 1999
CORAM:	Mahoney DCJ
CATCHWORDS:	procedural fairness - s30 :- notice of intention to withdraw award
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:	House v The King; Mawer v VCT; Parker v Director of Public Prosecutions; Fitzgerald v Lane
DATES OF HEARING:	24/03/00
DATE OF JUDGMENT:	24 March 2000

JUDGMENT:

HIS HONOUR: At 1.40 pm or thereabouts on Sunday 26 January 1997 Mr Jimmy Martin Bui and two of his friends were set upon by a group of men believed by the police to be members of the 5T Asian crime gang. There is no evidence before this court that Jimmy Bui, either then or subsequently, was independently aware of the gang members being 5T members.

Mr Bui and one of the men ran away after their companion had been dragged into a side alley. The police attended the Fairfield Hospital and spoke to apparently all three men, Jimmy Bui and his two friends. I am dealing with the Bui appeal matter only at this stage. Jimmy Bui refused to provide a statement to the police. In a subsequent statutory declaration filed before the Tribunal dated 18 January 1999, he sought to explain why he did not provide a statement to the police. That was that, by word of mouth, he understood that from time to time the police told the alleged perpetrators of crimes the name and address of informants and he did not want to be visited at some later stage by the people who had hurt his friend. The reliability of that belief is left up in the air.

The matter was dealt with by an assessor who found that the refusal to provide any assistance to the police officers in tracking down the perpetrators should result in a 50 percent reduction of Mr Bui's claim. The matter then went on appeal to Mr Gabb, the magistrate, and he disagreed with the assessor. He took the view that there should be a total refusal of Mr Bui's claim because of the failure to provide the requisite assistance to the police.

The matter comes before this court on appeal from the determination by Mr Gabb, magistrate and tribunal member. In the first instance, leave to appeal has to be obtained from this court. Miss Christie, on behalf of the appellant, urged a total of four grounds. First, she said the tribunal misdirected itself pursuant to section 38 of the Victims Compensation Act inasmuch as Mr Gabb had failed to have regard to all those sorts of matters in the exercise of a judicial discretion such as are clearly contained in House v The King , which I think is in 53CLR or thereabouts. She based this submission upon the proposition that section 30(1)(d) refers to the necessity for the rendering of all reasonable assistance but that Mr Gabb SM had said this:

"Any applicant who expects the taxpayers of this State to compensate him or her has a responsibility to render all assistance to the police."

Secondly, she urged that in Mawer v VCT her Honour Judge Sidis on 10 September 1999 equated the need for magistrates, such as Mr Gabb in this case, to notify appellants of any approach they have to a matter which is likely to result in the appellant being worse off than if they had not appealed at all. In other words, the application of Parker v Director of Public Prosecutions , 28NSWLR, 282, although that related to appeals from magistrates about sentences. But apparently Judge Sidis said the same rationale should apply in cases such as this.

The third ground for leave to appeal was that the procedure adopted by the learned magistrate, Mr Gabb, was wrong. He should have first of all found out how much the damages would have been and then worked his way through, step by step. I assume Miss Christie was suggesting that it should have been a process of exhaustion such as was laid down by the House of Lords for single judges without juries trying common law actions where contributory negligence has been pleaded as a defence, such procedure being set out in the case of Fitzgerald v Lane which I think is found in 1989 1 Appeal Cases. I forget who it was, but one of the Law Lords there said that there was a three step process which had to be followed, the second last of which was to find out how much had to be deducted from the lump sum that would have been awarded if there had been no contributory negligence.

The fourth proposition on which leave is sought to be granted is that Mr Gabb SM failed to provide any reasons for following the procedure that he did in fact follow and that he failed to provide any reasons for not ordering an oral hearing.

Mr Burchett, learned counsel for the tribunal, opposes the granting of leave in relation to the fourth ground argued by Miss Christie. He draws attention to the proposition that an oral hearing is not a right and that section 38(2) of the Act envisages a paper appeal if the magistrate is satisfied that an oral hearing is not necessary and in which case the magistrate, such as Mr Gabb SM in this case, was to proceed accordingly. Mr Burchett submits that that disposes of the fourth ground in support of the application for leave to appeal. I agree with Mr Burchett's submissions. The fourth ground therefore does not hold water.

In relation to what I will call the Fitzgerald v Lane ground, the third ground, it seems to me that that is not the type of approach which is necessary for Mr Gabb to have followed in order properly to have carried out his function. That ground is denied.

In relation to the House v The King point, namely that Mr Gabb said that "all assistance" has to be rendered and, once he said "all", the greater does not include lesser, so to speak, and that therefore he fell into error by requiring that "all assistance" had to be given.

The untenable nature of that proposition can be seen when one considers the situation of a victim, who did give all the assistance that they could reasonably give under the circumstances and in which the person apprehended is ultimately charged and convicted of the offence. I am dealing with a hypothetical case now. If the victim had only been able to give certain lead-up information but the rest of the information was provided by an independent eye-witness or a bystander who was able to tell the police what the man was wearing and what car he drove when he got away and whether or not he had one gun in his hand or two guns - matters of that nature, clearly the appellant under the VCFC in that case would not have given "all assistance" because quite a lot of the assistance would have been given by the bystander. Furthermore, as Mr Burchett put to me, when you read the whole of the one page of reasons for determination by Mr Gabb of 5 August, fastening on the one phrase "all assistance" takes it out of context and that the reading of the whole paragraph in which it appears makes it clear that Mr Gabb was not requiring anyone to provide literally "all assistance" but all the assistance that he could reasonably provide. That is the way I read it.

That leaves only the second ground of appeal. Interests of judicial comity would have, in other circumstances, demanded that I apply Judge Sidis' decision in Mawer and grant leave to appeal on the Parker v DPP principle. However, in this particular case, it is not as if Mr Bui has been deprived of the opportunity of keeping what the assessor awarded in his favour by virtue of what Mr Gabb did. The reality of the matter is that, even at the assessment level, Mr Bui did not reach the threshold level required by the Act before he could get anything. So although technically the Parker v DPP point might be open, it would be a pyrrhic victory for the applicant, who is presently applying for leave, to be sent back, because he would be being sent back to an assessment which did not give him anything anyway.

Accordingly, the Mawer decision seems to me not to be applicable to the present case and leave to appeal is refused. The other two matters are to be stood over till 10 o'clock on Monday morning. The applicant is to pay VCFC's costs with liberty to apply.