Couley v Victims Compensation Fund Corporation

[1999] NSWDC 6

New South Wales

District Court

CITATION:	Couley v Victims Compensation Fund Corporation [1999] NSWDC 6
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Tracey Cherie Couley Victims Compensation Fund Corporation
FILE NUMBER(S):	409 of 1999
CORAM:	Puckeridge DCJ
CATCHWORDS:	disability - Schedule 1(5) - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	29/11/99
DATE OF JUDGMENT:	29 November 1999

JUDGMENT:

HIS HONOUR: The appellant, Tracey Cherie Couley seeks leave to appeal in relation to a determination of the Victims Compensation Tribunal made on 27 July 1999.

According to s 39(1) leave may be granted to appeal the District Court on a question of law arising in any determination of the application by the Tribunal. The question of law has been referred to in the notice of motion. That question as referred to in the notice of motion is the proper construction of "disability" in cl 5 of Sch 1 of the Victims Compensation Act and the proper construction of "impaired work or school or other educational performance" in cl 5 of Sch 1 of the

Victims Compensation Act .

The determination of 27 July 1999 has been annexed to the affidavit of Margaret Philomena Curran of 27 September 1999. Ms Curran is the solicitor appearing on behalf of the appellant in the matter. In that determination the learned Tribunal states that in his view "disability" as referred to in cl 5 must mean some significant impairment or significant adverse effects in an important area of functioning. The Tribunal also states that any impairment in work, school or educational performance must be significant just as the "adverse effects" referred to in the same clause must be significant.

Any perusal of cl 5 of Sch 1 shows that the clause does not have the word "significant" at any relevant part in the clause. The word "significant" has been interpolated by the Tribunal and interpolated by the Tribunal in its determination. Subparagraph (e) of cl 5 states that "relevant disabilities include impaired work or school or other educational performance" but makes no reference to that impairment to mean significant impairment. The word "significant" does appear in cl (e) in the concluding part where after the words "relevant disabilities include impaired work or school or other educational performance", there appears the words "significant adverse effects on social relationships and sexual dysfunction". I read the words "significant adverse effects on social relationships and sexual dysfunction" to refer specifically to social relationships and sexual dysfunction and not to refer to impaired work or school or other educational performance.

Under s 39(5) of the Act, subpara (4) indicates that: "The Court may set aside the determination and remit the matter to be considered and determined by the Tribunal in accordance with the decision of the District Court on the question of law concerned".

I would hope that I have indicated the question of law concerned and I remit the matter to the Tribunal to determine the matter in accordance with the wording of Sch 5, and to determine the relevant disabilities to include impaired work or school or other educational performance without determining whether or not such impairment is significant.

The parties have agreed that the matter is to be remitted to the Tribunal or at least the Tribunal puts nothing by way of opposition to remitting the matter to the Tribunal, but has indicated that all that requires to be done is simply to remit the matter to the Tribunal to be dealt with according to the law. However, as I read

s 39(5) the Court must remit the matter on the question of law concerned. The parties also agree that the respondent is to pay the appellant's cost of the motion and appeal as agreed or assessed.