Coleridge v Victims Compensation Fund

[1997] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S34 of 1997

B e t w e e n -

JANE FRANCES MINNIE COLERIDGE

Applicant

and

VICTIMS COMPENSATION FUND CORPORATION

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 AUGUST 1997, AT 10.40 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR T.F. McKENZIE, for the applicant.  (instructed by Adelsteins)

MR G.W. MOORE:   I appear for the respondent.  (instructed by State Crown Solicitor’s Office (New South Wales))

GAUDRON J:   Yes, Mr Toomey.

MR TOOMEY:   Your Honours, this is an application arising out of a victims compensation application by the applicant for special leave, a young woman who was injured after a series of incidents in a block of flats in which she lived.  She made an application to the Victims Compensation Tribunal for compensation.  She was awarded $15,000 compensation and she appealed, as she had the right to do under the Act which I will take your Honours to, on the grounds of ‑ ‑ ‑

GUMMOW J:   Has the statute been repealed?

MR TOOMEY:   It has been replaced, your Honour.  The point still runs, as I will point out to your Honours, but it has been substantially changed by the new Act.

McHUGH J:   The appeal to the District Court is maintained but the right of appeal is now circumscribed.

MR TOOMEY:   Only on a question of law.

McHUGH J:   Yes.

MR TOOMEY:   Can I say this, your Honours, the point would still arise because you could still have your point of law arising on quantum only.  For instance, there could be an appeal under the new Act on quantum only on the basis that there was no evidence on which something was taken into account, which is a point of law.

McHUGH J:   Yes, but there are other limitations as well, are there not?  The District Court can no longer make such orders as it thinks appropriate in the light of its decision.  It can only confirm the decision or set it aside and remit it.

MR TOOMEY:   Yes.  What happened in this case, your Honours, was that the ‑ ‑ ‑

McHUGH J:   The reason I raised that is that it may well be that the point that you seek to raise has now much less significance because there will be a lot fewer appeals, will there not, one would expect?

MR TOOMEY:   It is still of significance, your Honour.  I can tell your Honours that the victims compensation procedure is very widely used.  There are thousands of them every year in New South Wales.  The point also has general application to District Court appeals of all sorts.  The basis upon which the Court of Appeal upheld the application for a prerogative writ was that, although the appeal was on quantum only and so the issue raised for the District Court on the appeal was quantum only, that the learned District Court judge had to consider the whole case.

GAUDRON J:   Do you say that was wrong?

MR TOOMEY:   Yes, on construction of the statute, your Honour.

GAUDRON J:   But is that a point you took in the Court of Appeal?

MR TOOMEY:   I do not think it was taken in terms, your Honour.

GAUDRON J:   No.  In fact, there seems to be another point that was not taken in the Court of Appeal.  Is there not a standing point in your application or in your outline of argument that was not taken?

MR TOOMEY:   In the Court of Appeal?

GAUDRON J:   Yes.

MR TOOMEY:   No, I do not think it was, your Honour.

GAUDRON J:   Well, it would be most unlikely to get special leave in this Court to argue points that were not taken below.

MR TOOMEY:   Can I say this, your Honour, that it is a case against a government instrumentality.  It is a case in which the point, we say, is of general significance.

GAUDRON J:   What is the point of general significance?

MR TOOMEY:   The point of general significance is whether on an appeal to the District Court the hearing de novo means that the whole case has to be heard or the whole case only on the issue which is the subject of appeal.

McHUGH J:   That is why I raised this question about the new legislation.  These matters do not arise any more.

MR TOOMEY:   I think, with respect, they still do, your Honour.  They may not arise with quite the same frequency but it is our respectful submission that they would still arise.  What happens, your Honours, is that the Victims Compensation Act constitutes the Victims Compensation Fund Corporation which takes no part in the initial determination by the Tribunal.  Then the matter comes to the District Court and it can only come on an appeal by the applicant for compensation, because it is only the applicant who is given the right to appeal under the Act.  Being a statutory court, there is no common law right, so your right to appeal to the District Court is either given by statute or not.  It is given to the applicant; it is not given to the Corporation.  The applicant appeals to the District Court on quantum only.

The Corporation comes to the District Court and says, “We wish to challenge the matter on liability”.  They had no right of appeal and the only issue before the court was the quantum which was awarded below.  I should say that it is plain that once the material was placed before the District Court so that the Corporation was seized of the facts which had been before the Tribunal, there was nothing to stop them moving for prerogative relief in this case where they said no facts had attracted the jurisdiction, but they did not.  What they did was to ask the District Court judge to treat it as if they had a right of appeal in the whole matter, although they were there as respondent effectively to support the Tribunal’s decision.  It is a very curious occurrence, the whole thing.

Then the learned District Court judge determined that indeed there had been no act of violence, which we say he should never have done because the hearing de novo ought to have been only on the sole issue raised on the appeal, which was the issue of quantum.

GAUDRON J:   But nonetheless the matter was fully argued?

MR TOOMEY:   Yes, it was, but he found ‑ ‑ ‑

GAUDRON J:   And the point was not taken before the District Court judge?

MR TOOMEY:   It was taken as a point of estoppel, your Honour.  I would like to be able to say one can tease the standing point out, but one cannot, I do not think.

GAUDRON J:   You do not press the estoppel point now?

MR TOOMEY:   No, your Honour.  If there was a right of the Corporation to have the whole thing heard anew by the District Court despite the fact that it had no right of appeal and despite the fact that the appeal was limited to quantum, then we must lose.  Can I point out to your Honours what the result is if that be so.  It would mean that in every case before the District Court, in all the hundreds, even thousands, of cases every year where people appeal from a finding against them on negligent driving and all they appeal against is the fine or the disqualification, that the prosecution would have to be in a position on the appeal to run the whole case again because, despite the fact ‑ ‑ ‑

GAUDRON J:   I had always thought that that was the case, that, once you appealed in such a case, the prosecution could.

MR TOOMEY:   The grounds of appeal, your Honour, are sentence, liability.  They go up solely on one or the other.

GAUDRON J:   The problem perhaps does not arise in that context because you appeal against a conviction, not an acquittal.

MR TOOMEY:   Yes, that is so.  If you do not appeal against the conviction, we say the prosecution does not have to turn up with its ten eyewitnesses and run the case again.  All that the District Court judge has to do is to consider the sentence, which is the issue on the appeal, as the issue on the appeal in this case was quantum.  Can I just take your Honours to the District Court Rules which are ‑ ‑ ‑

GAUDRON J:   I do not think that is such a strong point in your favour.  Let it be assumed, because this would be the equivalent, that the District Court judge to whom the appeal was brought said, “On the evidence, the evidence does not satisfy one essential element of the offence of which you were convicted.  I propose to set aside the conviction”.  Surely that would be open on an appeal as to quantum, a fine or a sentence.

MR TOOMEY:   Your Honour, it may be open but, if the appeal was only on sentence, it would not arise.  What we say here is that it is obviously intended by the legislature, because of the way in which the statute is drawn and the rules are drawn, that the only person who has an appeal is the applicant for compensation and that what will happen is that that person’s appeal will be heard in its terms.  The District Court Rules make the Corporation a respondent to the appeal and, as his Honour Judge Wall held in this case, that is the for the purpose of supporting the Tribunal.  It is not, with respect, quite the same in any event as a criminal matter where there may be considerations of public duty and so on.

This is a matter of an administrative tribunal which does not hear evidence, which usually operates only on material of a documentary nature placed before it, no appeal given to the Corporation.  The Corporation is effectively the repository of the money that is to be used.  No doubt it could take prerogative relief if there was no jurisdiction, as, it was argued and found, there was not in this case.  To constitute it in those circumstances where it is merely a fund to respond to an appeal as having the full rights of challenge which were exercised here, in our respectful submission, is against the intendment of the statute.

If I can just deal with a point raised by your Honour Justice McHugh.  The power under the old Act was to affirm or set aside the determination and to remit the matter to be considered and determined again by the Tribunal.  That was under section 29(4).  The power under the new Act - and it is expressed with the introductory word “only” - is:

(a) an order affirming or setting aside the determination of the Tribunal; and

(b) an order remitting the application to be considered and determined again ‑ ‑ ‑

GAUDRON J:   Mr Toomey, is the object of your application ultimately to consider whether or not there was an act of violence?

MR TOOMEY:   No, your Honour.

GAUDRON J:   The object is to treat that as having been determined once and for all and totally beyond challenge?

MR TOOMEY:   I must tell your Honours that even if your Honours were to set aside the determination of the Court of Appeal, it might be open to the Corporation to seek - no, I am sorry, it would not be because the District Court - I was going to say that it might be open to them to seek prerogative relief against the Tribunal, but what would stand in their way then was that there was an intermediate determination in the District Court.  If our point is right, then the determination of the District Court ought stand, although for different reasons.  It would not involve a determination of the act of violence point, your Honours.

The new Act, as I was saying, allows the court to affirm the determination of the Tribunal or to set aside the determination and remit it to be considered and determined again by the Tribunal.  So the restriction under the new regime is that if the determination is set aside, it must be remitted, whereas under the old regime it could simply be set aside.  Your Honours, it is our respectful submission that on a proper reading of section 29 of the old Act, what that was intended to do was to meet the case where the applicant had failed before the Tribunal, it was a determination against him or her, and they applied to the District Court for the setting aside of that determination against them, remembering that the applicant must always be the appellant because only the applicant had the power to appeal.

That section was used in the Court of Appeal as giving an unfettered power to the District Court to do whatever it liked on a hearing de novo, whatever the issues before it were.  So, despite, we say, the obvious intendment of the Act, if an applicant appealed on quantum, a judge could then set aside the whole determination without remitting it to the Tribunal.  So the person could receive an award, as happened in this case, appeal on the question of quantum and, according to the Court of Appeal, the judge could then set aside the whole determination.  We say that that is wrong, that, although the matter must now be remitted to the Tribunal if the District Court sets aside the Tribunal, there would still be a powerful likelihood that if the District Court said “I set this aside because as a matter of law there was no material on which the finding could be made” and remits it to the Tribunal, the same result would follow.  So if that does not happen in the District Court, it would happen below.

We say, your Honours, that this is a matter of general importance in New South Wales.  This is perhaps the most widely used procedure on District Court appeals.  The courts are full of them and some direction is necessary.  May it please your Honours.

GAUDRON J:   Yes, Mr Moore.

MR MOORE:   Your Honours, it is clear that the hearing in the District Court was a hearing de novo.  So much has been said by the Court of Appeal in Goldsmith’s Case.  No issue was taken in the Court of Appeal that Goldsmith was wrong.

McHUGH J:   Yes, but that does not solve the problem, does it?  Under section 29 only the applicant can appeal and from a determination of the Tribunal.  If an applicant appeals against a quantum finding, how can you raise any issue concerning whether or not there has been a relevant act of violence?

MR MOORE:   Because an interpretation of sections 29(3) and 29(4) where it is clear from those sections that the District Court “may make such orders as it thinks appropriate in the light of its decision”.

McHUGH J:   That has to be read in the context of the appeal.

MR MOORE:   But if you start from the position where it is a de novo appeal, then it starts anew.

McHUGH J:   But a de novo appeal about what?

MR MOORE:   About an entitlement to compensation under the Act.

McHUGH J:   The Act does not say anything to that effect.  It says that the applicant may appeal “from any determination of the Tribunal”.  If the determination that is the subject of the appeal is in relation to quantum, how can the issue of liability be relevant?

GAUDRON J:   You say the determination is not simply that?  It is a determination of entitlement to compensation and to compensation in a particular amount?

MR MOORE:   Yes, that it is a prerequisite.  It is a jurisdictional matter; it is a prerequisite for compensation.  There first must be an act of violence and then, secondly, there must be injury within the meaning of the Act.  If you do not satisfy the first prerequisite, then that is the end of the matter.

McHUGH J:   But that seems to lead to some very curious practical consequences.  Let us take a hard‑fought case, over act of violence.  It is found in favour of the applicant.  The applicant then wants to appeal in relation to quantum.  On your theory of section 29 the applicant has to go and call all the witnesses again.

MR MOORE:   That is right, because they do so at their own risk.

GAUDRON J:   Or may be required to.

MR MOORE:   Depending on the procedure that is adopted in the District Court, that is correct.

GAUDRON J:   Or depending on the attitude adopted by the respondent or the court.

MR MOORE:   Because the District Court Rules provide for all the evidence before the Tribunal to be tendered in the District Court, including transcripts.  It does not place any requirement for admissibility.  If it was before the Tribunal, it is before the District Court pursuant to the District Court Rules.

McHUGH J:   That may raise a question as to whether the District Court Rules are in accordance with the section, but this is an important provision in the day‑to‑day administration of justice.  It does not seem to me by any means clear that the applicant’s submissions have not got a good deal of substance in them.

MR MOORE:   In relation to questions of special leave, the Act has been amended, as your Honour has pointed out.  This point really was not taken up in the Court of Appeal.

GAUDRON J:   Or in the District Court.

MR MOORE:   No.

McHUGH J:   Ordinarily in many cases that might be conclusive, but it is a pure question of construction of the section.

MR MOORE:   It is a construction of a section that is a New South Wales section that has been amended, and therefore we would say on special leave ‑ ‑ ‑

McHUGH J:   Yes, but even New South Wales is important in the general administration of justice in this country.

MR MOORE:   What Mr Toomey said in relation to criminal matters, for example, would not necessarily apply.  Justices Act appeals to the District Court from the local court are de novo appeals.  His example of the prosecution having to bring along everybody in the District Court would not apply because there you have two grounds of - there is an all grounds appeal or a severity appeal.  In the event that someone pleaded guilty in the local court, appealed and then tried to turn that into an all ground appeal, that is simply a matter that can be dealt with in the District Court by amending the appeal.  If that is granted and the prosecution is required to bring along their witnesses in the District Court for the first time, it is a hearing de novo, so be it.  Here, in my submission, because it is a de novo appeal, effectively

what the applicant did was pursued the appeal knowing that there was an issue being raised by the Corporation that may have resulted and did result ultimately in her not gaining compensation under the Act.

McHUGH J:   That seems to me a reason against your construction of the section.  It seems odd that under 29 your client has no right of appeal but if the applicant for compensation decides to appeal on quantum, then you get an open go in front of the District Court even in respect of matters that have been determined against you.

MR MOORE:   Specifically only whilst that appeal is being prosecuted in the District Court.  What the Court of Appeal said was that what the Corporation was doing was simply exercising an entitlement, that is an entitlement to raise any issue in adversarial proceedings.

McHUGH J:   I cannot see anything in the section that talks about the entitlement of the respondent.

MR MOORE:   It flows through, once Goldsmith applies, that there is a de novo hearing.  If there is a de novo hearing and there is no issue about that, then that is where this entitlement arises.  It could well be the case that on quantum appeals the appellants could receive less money.  The District Court judge may take the view that the Tribunal was generous and reduce compensation.

McHUGH J:   Yes, I know, that is a risk that you may run, but you want to send them without any money.  You want to reduce it to nil.

MR MOORE:   Theoretically a District Court judge could do that even on a quantum appeal.  A District Court judge could say there is no injury.  The reason why we say send the appellant away with no money is because she has failed on that threshold question of proving on the balance of probabilities that there is an act of violence.

McHUGH J:   I understand your point.

MR MOORE:   They are my submissions.

GAUDRON J:   Thank you.  Mr Toomey.

MR TOOMEY:   I do not have anything to add, your Honour.

GAUDRON J:   In this case special leave is refused by majority.  What I am about to say represents the view of that majority.

The issues which the applicant now wishes to argue, whether or not of public importance, were raised neither in the District Court nor in the Court of Appeal.  In those circumstances the matter is not one which should attract the grant of special leave.  Accordingly, special leave is refused.

MR MOORE:   I seek costs, your Honour.

GAUDRON J:   Can you say anything about costs?

MR TOOMEY:   Your Honours, having regard to the grounds on which leave was refused and having regard to the standing of the respondent, we would ask your Honours not to make an order for costs.  May it please your Honours.

GAUDRON J:   The order will be made with costs, Mr Toomey.

AT 11.09 AM THE MATTER WAS CONCLUDED