Carol Jean Haines v Victims Compensation Fund
[2007] NSWDC 151
•14 June 2007
CITATION: Carol Jean Haines v Victims Compensation Fund [2007] NSWDC 151 HEARING DATE(S): 14 June 2007 EX TEMPORE JUDGMENT DATE: 14 June 2007 JURISDICTION: Civil JUDGMENT OF: Rolfe DCJ DECISION: Appeal Allowed CATCHWORDS: Appeal from Victims' Compensation Tribunal - Consideration of the provisions of S 38 of the Victims' Support and Rehabilitation Act 1996 - Principles to be applied in determining whether or not special circumstances existed to allow for the reception of further evidence before the Tribunal - Consideration of whether exceptional circumstances existed for the reception of such evidence - Appeal allowed LEGISLATION CITED: Victims' Support and Rehabilitation Act 1996 CASES CITED: Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75
Wilson v The Prothonotary (20000) NSW CA 23
Commonwealth Bank of Australia v Quaid (1991 178 CLR 134 at 140.PARTIES: Carol Jean Haines (Appellant)
Victims Compensation Fund (Respondent)FILE NUMBER(S): 1102/07 COUNSEL: J Raine (Appellant)
J McAteer (Respondent)
JUDGMENT
1 This is an application for leave to appeal by Carol Jean Haines from a decision of the Victims’ Compensation Tribunal made on 24 January 2007. The appeal is by way of summons which was filed on 20 March 2007. The grounds of appeal include that the learned magistrate constituting the Victims’ Compensation Tribunal erred in law in not admitting into evidence the report of Gillian Marcoolyn.
2 The matter comes before the court under s 39 (1) of the Victims’ Support and Rehabilitation Act 1996 which provides relevantly that an applicant for statutory compensation may, with the leave of this court, appeal to this court on a question of law arising in any determination of the application by the Tribunal. Section 3 (3) provides that certain matters are not questions of law, including whether an injury is one which is specified in the schedule of compensable injuries and whether a series of acts are related and constitute a single act of violence. Under S 39 (5) this Court can only do one of two things. First, it can affirm the determination of the Tribunal or, secondly, set it aside and remit the matter to be considered and determined again by the Tribunal.
3 I have the Victims’ Compensation Tribunal file in front of me but, subject to some other matters that appear in Mr McAteer’s submissions which I will go to later, the parties have only taken me to the following documents. First, the appellant’s application for compensation, secondly, the report of Peter Briggs, clinical psychologist, dated 30 September 2005, thirdly, a letter from the Director of Victims’ Services to Kamilaroi Aboriginal Legal Service dated 12 July 2005 granting the appellant’s request for leave to apply out of time to make her claim. Next, the court was taken to a letter from Thiyama-Li Family Violence Service Inc to the Director of Victims’ Services dated 11 April 2006, a notice of appeal to the Tribunal dated 24 August 2006, the assessor’s notice of determination dated 23 May 2006, a report provided by Gillian Marcoolyn, a clinical psychologist, dated 7 November 2006 and the Tribunal’s determination handed down by his Honour Magistrate Cleary on 24 January 2007.
4 The learned magistrate set out the five grounds of appeal and relevantly for the purpose of what I am dealing with his Honour refused leave for the appellant to have admitted into evidence the report of Ms Marcoolyn. In that respect s 38(3) of the Act which deals with a hearing and determination of the Tribunal provides that the appeal from an assessor is to be determined on the evidence and material provided to the assessor. But there is a proviso in subs 3 namely, that 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. As is apparent from his decision, the learned Magistrate was well aware of the operative provisions of s 38(3) and the case law that has guided the courts in the courts’ determination of such matters.
5 His Honour referred to the Court of Appeal’s decision in Victims Compensation Fund Corporation v Sarah Jane Hill (2000) NSWCA 75 which was a case in which the court considered when special circumstances as contemplated by s 38(3) might exist. The Court of Appeal in that case determined that three things ought ordinarily be established to the satisfaction of the decision-maker in determining that there were such special circumstances. First of all, the material must be credible; secondly, the receipt of the material must likely result in a different outcome and, thirdly, the material could not have been obtained for the hearing before the assessor with reasonable diligence.
6 The learned magistrate was also aware of the Court of Appeals’ decision in Wilson v The Prothonotary (2000) NSW CA 23, where Haydon JA, as he then was, and with whom Sheller JA agreed, said with reference to the test in cases such as these, including the test in Hill’s case, that although such tests are general principles or conditions applying to the cases in general, nevertheless a Court’s statutory discretion is capable of being exercised even if the general test is not satisfied, where there are exceptional circumstances. (Emphasis added) Hayden JA referred specifically to Commonwealth Bank of Australia v Quaid [1991] 178 CLR 134 at 140.
7 In the instant case, the learned magistrate, in applying the test laid down in Hill’s case, was satisfied that the material was credible and it was likely to result in a different outcome. He was not, however, satisfied that special circumstances existed because it had not been shown that, with reasonable diligence, the Marcoolyn report could not have been provided to the assessor when he made his determination on 23 May 2006.
8 The learned magistrate went on to say that he was not satisfied that exceptional circumstances had been shown to exist. However, he did not extrapolate from that statement the basis upon which he had reached that conclusion and, in my opinion, he was in error in not doing so. In this respect, it was important to consider the material contained in the Marcoolyn report and contrast it to the material contained in the earlier Briggs report which was before the assessor and before the learned magistrate. First of all, in the Briggs report it is clear that, without any criticism whatsoever intended of Mr Briggs, that he was unable to obtain a lot of the information from the appellant that Ms Marcoolyn was able to obtain. For example, Mr Briggs could not get any details from the appellant of the previous counselling she had received. As well, Mr Briggs did not think it appropriate to question the appellant in any detail about the sexual abuse that had been perpetrated on her “given the sensitive nature of the incidents”. However, notwithstanding that that was the view of Mr Briggs, it seems to me that that was a highly relevant matter for him to inquire into, given the purpose for which the report was being obtained.
9 Mr Briggs also said he was unable to obtain detailed reasons from the appellant for significant problems that she faced during her upbringing as a child and as a young teenager. He noted that the appellant was not overly articulate and he honestly stated that he found it difficult to obtain from the appellant a detailed history, and suggested that that was perhaps a reason why her presentation was not suggestive of depression.
10 When one looks at the Briggs report one can see that the facts relating to the childhood abuse suffered by the appellant were dealt with by Mr Briggs in three short sentences. Moreover, it appears that from his point of view the appellant was the only source of information that he obtained. He states quite clearly that no documents were provided to him, and there are no references made in the report to anyone else, other than a counsellor and he was unsuccessful in obtaining further information from that person.
Mr Briggs concluded:
“Unless it is determined that the abuse was the main contributing factor to her alcohol problems, then otherwise there was no reason to believe that the abuse has caused any disability with regard to relationships.”
11 With all respect to Mr Briggs, this was a very wide-sweeping conclusion for him to reach, having regard to the fact that he noted that the abuse had begun at a reasonably early age and, taking into account his concession that he had found it very difficult to elicit details from the appellant of the problems that she had experienced from early on in her life, whilst Mr Briggs noted that siblings might assist, he did not take the matter any further beyond what he was told about the appellant’s siblings by her. She was unable to identify for him any major dysfunction to her lifestyle attributable to the abuse, although he noted she appeared to block it out.
12 Based on all of these matters, Mr Briggs concluded there was no post-traumatic stress disorder and that there was no evidence provided by the appellant which suggested the abuse that she had suffered at the hands of the offender in this instance had caused her alcohol problem. That led Mr Briggs to conclude, on p 5 of his report:
“All of this leads me to the opinion that there is no evidence to suggest that the abuse has caused a classifiable mental disorder.”
13 As I read it, Mr Briggs appears to have put the appellant’s problems down to alcohol abuse, and he dismisses the suggestion that the abuse was connected with the alcohol problem. He also appears to be critical of the appellant’s failure to seek counselling, and he seems to criticise her lack of motivation in this respect, and the problems she had with alcohol dependence.
14 The Marcoolyn report is an entirely different document from the Briggs’ report. It is a very comprehensive report and deals with the appellant’s problems and difficulties in a careful, considered and professional way. First of all, Ms Marcoolyn met with the appellant for a period of two hours and forty minutes. She administered two tests to the appellant. The first was known as the Beck Depression Inventory-II, and the second was known as the Dass 21. They were administered on 15 September 2006. Unlike Mr Briggs, Ms Marcoolyn had access to a statutory declaration made by the appellant as well as a police statement, and she appeared to have made positive attempts to obtain documentation in relation to an earlier Victims Compensation Tribunal claim made by the appellant arising out of a gang-rape of her. Notwithstanding the difficulties that Ms Marcoolyn experienced and which she identified as having occurred early in the interview, what is clear from her report is that, unlike Mr Briggs - and I do not mean this disrespectfully - Ms Marcoolyn was able to engage with the appellant in a meaningful way and get her to focus on relevant issues.
15 The impression one gains from Mr Briggs’ report is that the appellant is a no-hoper and he had no hope for her. This is not the impression one gets from the Marcoolyn report, which appears to me, anyway, to have been written from a much more objective point of view. Ms Marcoolyn said she was able to make a reasonable assessment of the appellant’s condition. The personal information she obtained from the appellant was much more detailed than what Mr Briggs was able to obtain. The details of the specific trauma suffered by the appellant and recorded in Ms Marcoolyn’s report are far more detailed than what appears in Mr Brigg’s report. Similarly, the most unfortunate sexual history details relating to the appellant which Ms Marcoolyn obtained are much more detailed than those obtained by Mr Briggs. Importantly, post trauma functioning evidence was obtained from the appellant. This does not appear in Mr Brigg’s report. The appellant had a significant bed-wetting problem immediately after the offences against her commenced to be perpetrated when she was aged six years. The bed-wetting continued intermittently until she was ten years of age. The appellant also confirmed to Ms Marcoolyn that, in terms of flashbacks, she had “wiped it all out with grog”. At the same time the appellant told Ms Marcoolyn she did not know whom she could talk to. Ms Marcoolyn recorded reports of suicidal thoughts as well as avoidance on the part of the appellant in going to Toomelah where the perpetrator of the sexual assault and a cousin of the appellant live. The appellant told Ms Marcoolyn that when she sees the cousin she feels dirty and wants to stab him, and she had trouble letting out all of the information for the report, and only did so because she got a prod from her mother.
16 Importantly, Ms Marcoolyn’s report records the fact that the appellant’s de facto husband has asked the appellant if she is having an affair with another man because her sex drive has reduced significantly. In fact, when her de facto husband wants to have intercourse with her in the middle of the night, the appellant reacts negatively because she said it reminds her of the times when her cousin abused her as a child.
17 The test results obtained by Ms Marcoolyn show that the appellant was severely depressed and, in that context, there was a possibility she might commit suicide. Ms Marcoolyn referred in this respect to the Beck Depression Inventory-II. The BDI-II results showed that the appellant was significantly depressed, that she had feelings of lack of self worth, and Ms Marcoolyn said that these matters could be attributed to the sexual assault. Although the appellant did not meet the diagnosis of post traumatic stress disorder, if she stopped drinking, delayed PTSD symptoms might then come to the fore. In any event, Ms Marcoolyn said that the appellant’s depressive symptoms were consistent with a dysthymic disorder. Ms Marcoolyn noted:
“The sexual abuse by Errol was the first in a series of sexual assaults that became part of a cycle of sexual assault. The bed-wetting and compulsive washing were the first signs of the impact of this abuse. Later, she used alcohol and marijuana to self-medicate and erase the feelings associated with the assaults.”
18 The evidence was significant, in Ms Marcoolyn’s view, because the appellant had developed a substance abuse as a maladaptive coping mechanism to deal with the very significant emotional pain she had been forced to deal with, as a result of, inter alia, the sexual abuse perpetrated on the appellant by her cousin.
19 On the global assessment of functioning scale, the appellant rated twenty out of a hundred, which meant there was some danger of the appellant hurting herself or others, and the appellant had some serious symptoms that impacted on both her occupation and interpersonal functioning. The conclusion was “Overall, she is considered to have severe impairment in her functioning.”
20 In terms of schedule 1 of the Act, Ms Marcoolyn was of the opinion that the appellant was suffering from a psychological disorder.
21 Finally, I note that Ms Marcoolyn said in her report with reference to the appellant as follows:
“Thus memories of the incident still arouse intense feelings such that she attempts to avoid the experience of them. It is the author’s view that Ms Haines was significantly impacted by the sexual assault she experienced as a young child. Subsequent assaults, of course, are likely to have further eroded her self-esteem and her ability to function. In terms of separating out the impact of the various sexual assaults, the author finds this impossible to do. However, each of the sexual assaults appears to have impacted significantly on her.”
22 The analysis that I have just done of the two reports is of importance because, in my opinion, the learned magistrate, in reaching the conclusion that there were not exceptional circumstances, did not have regard to any of those matters. The matters in the Marcoolyn report establish overwhelmingly that the appellant has a psychological disorder. What is clear from the report is that the materials necessary to be gathered to allow Ms Marcoolyn to come to that conclusion were not gathered when the matter came before the assessor. They are matters which could only be gathered after the sort of detailed extensive investigation carried out by Ms Marcoolyn, the administration of the tests, and the obtaining by her of the confidence in her of the appellant, none of which was evident in Mr Briggs’ report. Those matters, in my opinion, amount to exceptional circumstances which the learned magistrate ought to have taken into account in determining whether or not the Marcoolyn report ought to have been admitted into evidence, and, in failing to take those matters into account and satisfy himself as to whether or not there were exceptional circumstances, the learned magistrate fell into error.
23 At the beginning of my judgment, before identifying the documents that I had been taken to, I said there was some additional material that has been put before the court, and what I was referring to is the summary contained in paragraph 20 of the very useful submissions that the court has received from Mr McAteer, who appears for the respondent on the appeal. Paragraph 20 sets out the background history to the appeal, and Mr Raine, who appears for the appellant, concedes that the summary contained in paragraph 20 is accurate, and it was for that reason that Mr Raine conceded that he was not able to establish special circumstances of the sort adverted to in Hill’s case, and that he needed to rely on the decision in Wilson v The Prothonotary, following The Commonwealth Bank of Australia v Quaid, to establish exceptional circumstances.
HIS HONOUR: Is there anything I haven’t dealt with in the judgment I have just given, gentlemen?
MCATEER: Your Honour’s finding is that there is exceptional circumstances. That finding being made--
HIS HONOUR: I just simply need to make orders one and two in the summons?
MCATEER: You need to grant leave to appeal. You need to allow the appeal. You need to remit the matter to the tribunal for re-determination and to deal with costs.
HIS HONOUR: I will make the following orders:
1. I grant leave to appeal against the decision of the Victims Compensation Tribunal made on 24 January 2007;
3. I remit the matter to the Victims Compensation Tribunal to be dealt with in accordance with the law.2. I allow the appeal;
HIS HONOUR: Mr MacAteer, from what you were telling me the other day, costs follow the event in these cases, is that right?
MCATEER: Yes, your Honour.
HIS HONOUR: I order the respondent to pay the appellant’s costs of the appeal, such costs to be agreed or assessed on the ordinary basis.
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