Busacker v VCFC

[2002] NSWDC 19

New South Wales

District Court

CITATION:	Busacker v VCFC [2002] NSWDC 19
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Nadine Busacker Victims Compensation Fund Corporation
FILE NUMBER(S):	6 of 2002
CORAM:	Patten DCJ
CATCHWORDS:	procedural fairness - s30
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:
DATES OF HEARING:	12/9/02
DATE OF JUDGMENT:	12 September 2002

JUDGMENT:

HIS HONOUR JUDGE PATTEN: Before the Court is an application for leave to appeal against the decision of the Tribunal constituted by the Victim’s Support and Rehabilitation Act (the Act). The application for leave also seeks orders that the appeal be dealt with, that the determination of the Tribunal of 7 December 2001 be set aside and that the matter be remitted to the Victim’s Compensation Tribunal. The application for leave and the appeal itself provided for by s 39 of the statute, may be made on grounds that are very limited, in that they are confined to questions of law. The question of law formulated in this case is that the appellant was denied procedural fairness. I do not doubt that this may constitute an error of law.

The appellant alleges that she was assaulted by her defacto marital partner on or about 11 April 1998, in Sydney, at a time when apparently both she and her alleged assailant were significantly affected by alcohol. She suffered bruising and other injuries, including a fractured nose, for which she possibly sought treatment on 13 April 1998 in Canberra.

She was certainly examined by Dr Kraus on 20 April.

However, the more significant fact is that she did not report the matter to the police until 27 August 1998, more than four months after the alleged assault, and apparently at a time when her relationship with her assailant had broken down.

In her statement to the police, presumably in answer to a question why she had not reported the assault earlier, she said,

“At the time I didn’t report the incident to the police because I was worried what they were going to do to Chris and what I would have to go through”.

She added,

“I realise now that what he did was wrong and he needs to be taught not to assault me. At no stage did I give Chris permission to assault me in any way”.



It appears from the material before me that the police interviewed her alleged assailant, Mr Chris Fleming and he denied the incident. Having regard to the lapse of time and the appellant’s failure to report the matter earlier, the police, quite understandably in my view, decided to take no further action. However the appellant proceeded to apply for compensation under the Act and her application came before an assessor who, on 7 March 2001 dismissed it, although he ordered costs in her favour.

The reason for the dismissal, as stated in the assessor’s reasons for determination, was that he was not satisfied on the balance of probabilities that she had established an act of violence in New South Wales. He pointed to discrepancies in her statement, lack of corroboration and failure to report the matter earlier, in reaching this conclusion.

The appellant appealed against the assessor’s finding, pursuant to s 36 of the Act and that appeal became the subject of a determination by the Chairperson of the Tribunal on 7 December 2001. It is not without relevance that s 38(3) of the Act provides that,
“an appeal from a determination of a Compensation Assessor is to be determined on the evidence and material provided to the Compensation Assessor. However the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against”.



So far as the file of the Tribunal reveals, the appellant did not seek leave to tender any further material to the Tribunal which, on 7 December 2001 formed the opinion that the matter could be determined without a hearing and proceeded to do so.

The Tribunal concluded on the material before it that there was, on the probabilities, an act of violence in New South Wales and having made that finding, proceeded, as it was bound to do, to consider other relevant matters, including those raised by s 30 of the Act, as to which the Tribunal noted that there had been a delay of some four months in the reporting of the incident. The Tribunal recorded:-

“In fact the incident was reported only after the appellant and her defacto had split, according to the COPS report. I note the provisions of s 30(2) paragraphs (c) and (d).”

“In my view, there is no evidence of fear of retaliation. The appellant says that she did not report the incident to the police because she was worried what they were going to do to Chris and what she would have to go through. There is no clear evidence that failure to report the incident within a reasonable time was because of a fear of retaliation.”



The Tribunal then referred to the decision of Garling DCJ in Stewart and concluded in these terms, “I decline to make an award pursuant to s 30(1). The appeal is dismissed.”

Mr Wilson who appears for the appellant submits that the appellant was denied procedural fairness by reason of the fact that the Tribunal decided her application on a basis different from the way it had been (adversely to her) decided by the Assessor. He submits that she should have been given the opportunity of making submissions and perhaps providing material to satisfy the Tribunal that notwithstanding her failure to report the matter promptly to the police her application for compensation should be granted.

The submission highlights the possibility that the appellant may for instance, have been able to establish that she did not report the matter to the police for fear of retaliation by her assailant. It is true in that connection that she said in her statement to police that her relationship with her assailant was a violent one, but on the other hand, as I have already noted, she expressly addressed the reason for her delay in her statement to the police of 27 August 1998 and did not include any reference to a fear of retaliation.

The difficulty which I see confronting the appellant in this case is that the “s 30 issues”, if I may so term them, have always and obviously been a live issue in this case. The appellant should have put what material and submissions she wished to put to the assessor in her original application. The fact is that she did not, at least not in a way which was persuasive to the Tribunal do so.

Because of the provisions of s 33(3), an opportunity to provide further material to the Tribunal, even if she were expressly put on notice that her appeal was likely to be dismissed for reasons connected with s 30, would probably have been of no assistance to her, because so far as I can see, there was no basis upon which the Tribunal could have found that special grounds existed.

In the result, I am not persuaded that the Tribunal erred in law by determining the matter on the material before it and dismissing it upon “s 30 issues”, notwithstanding its finding contrary to the Assessor that an act of violence was committed upon the appellant in New South Wales.

In all the circumstances, in my view, she was not denied procedural fairness. In my opinion it is appropriate to dispose of the matter by refusing her application for leave to appeal on the ground that she does not have a substantially arguable case.

Are there any other orders sought?
LONERGAN: I'm instructed to seek costs, your Honour.
COUNSEL ADDRESSED ON COSTS

HIS HONOUR: I order that the application for leave to appeal be dismissed. I make no order as to costs.