Crick v Victims Compensation Fund Corporation

[2001] NSWDC 28

New South Wales

District Court

CITATION:	Crick v Victims Compensation Fund Corporation [2001] NSWDC 28
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Krystyna Crick Victims Compensation Fund Corporation
FILE NUMBER(S):	9898 of 2001
CORAM:	Naughton DCJ
CATCHWORDS:	threshold - exceptional circumstances - jursdiction
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 Victims Compensation Act 1996 Victims Compensation Amendment (Compensable Injuries) Regulation 2000
CASES CITED:	NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685; Abbott v Minister for Lands (1895) AC 425; Bromley v Housing Commission for NSW {1985} 3 NSWLR 407 (NSW Court of Appeal); Bathurst City Council v Saban (1985) 55 LGRA 165; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; Commonwealth v Verwayen (1990) 170 CLR 394
DATES OF HEARING:	14/12/01
DATE OF JUDGMENT:	14 December 2001

JUDGMENT:

HIS HONOUR:: This is an application under Part 6 rule 60C of the District Court Rules to extend time in which to make an application for leave to appeal against a determination of the Victims Compensation Tribunal. That determination was made on 3 July 2001. It was served on 18 July 2001.
The time limit for making the application for leave to appeal expired on 18 September 2001. That was two months from the date of service of the determination.
The application to extend the said time was filed on 28 September 2001. It was therefore 10 days late.
The appeal itself had to be filed on or before 18 October 2001 or “within such further time a the District Court may in exceptional circumstances allow”. See s.39(2) of the Victims Support and Rehabilitation Act 1996. The notice of appeal was filed (without leave having been previously granted) on 16 November 2001. That was 29 days after the date of service of the determination (18 July 2001).
The ultimate issue in the matter is whether the applicant is entitled to an amount of compensation under the Act for a back condition to which I shall return shortly. If she were entitled to that compensation the quantum of it would be $6,000.
On 21 March 1999 the applicant sustained an injury to her back when she was assaulted at a hotel.
The applicant was born on 27 November 1947. She was therefore 51 at the date of the injury. She is now 54.
On 25 March 1999 the applicant instructed her solicitor to act for her in connection with obtaining compensation under the Victims Support and Rehabilitation Act 1996.
It was not until five months later on 26 August 1999 that her solicitor applied for hospital and ambulance notes preparatory to making the relevant application.
Ten and a half months after receiving instructions her solicitor, on 8 February 2000, made a specialist medical appointment for the applicant to see Dr Conrad (an orthopaedic specialist) on 19 April 2000. That consultation occurred on that date.
Seven days after his consultation with the applicant Dr Conrad sent his detailed report to the applicant’s solicitor. That was on 26 April 2000.
In Government Gazette number 88 of 14 July 2000 (page 6232) the statutory threshold for claiming compensation increased from $2,400 to $7,500. On that date (14 July 2000) the Victims Compensation Amendment (Compensible Injuries) Regulation 2000 was published. It provided that as from 14 July 2000 the threshold amount for the purposes of s.20 of the Victims Support and Rehabilitation Act 1996 was $7,500.
That threshold was $1,500 more than the $6,000 which the applicant was entitled to under schedule 1 to the Victims Support and Rehabilitation Act 1996 if she was entitled to any compensation at all for her back injury. That was because of what was said by Dr Conrad in his report to which I have already referred. Dr Conrad concluded:


“Under the Victims Compensation Act of 1996 the nearest description is, strained back disabling for more than 13 weeks.”

Against that specification in schedule 1 to the Act an amount of $6,000 was specified.
It is the applicant’s contention that she is entitled to the benefit of the lower ($6,400) rather than the higher ($7,500) threshold. Unless that is so she is not entitled to any compensation under the Act.
Six months after getting Dr Conrad’s report the applicant’s solicitor on 30 October 2000 lodged an application for compensation with the Victims Compensation Fund Corporation. It will be observed that this was after the proclamation to which I have referred came into force.
On 16 November 2000 an assessor of the Corporation made a determination under s.29 of the Act. The assessor dismissed the application concluding as follows:


“The compensible injury claimed clearly does not meet the required threshold. This application is therefore dismissed .”

The said determination by the assessor was received by the applicant’s solicitor on 23 November 2000.
On 20 March 2001 (four months after he had received the determination by the assessor) the applicant’s solicitor lodged an appeal from the assessor’s determination to the Victims Compensation Tribunal. That was pursuant to s.36 of the Victims Support and Rehabilitation Act 1996. The time for lodging such an appeal was three months from the service of the determination. That period expired on 27 February 2001. Accordingly the appeal was out of time.
On 3 July 2001 the Victims Compensation Tribunal purported to issue a determination pursuant to the said appeal.
The time for making the appeal to the tribunal from the assessor needed to be extended and an application for an extension of time was made at the time when the appeal was lodged. Section 36(3)(b) specified that the tribunal could not grant an extension of time except “in exceptional circumstances”.
As to that, the tribunal made a finding of fact that there were no exceptional circumstances. The actual wording of the finding was as follows:


“Whilst I do not consider the circumstances set out to be exceptional, I propose to extend time because of the importance of this issue.”

The “issue” to which the above purported determination referred was defined in para 2 of the grounds of appeal to which I have referred, as follows:


“2. In coming to the determination the compensation Assessor erred in law in determining that the threshold pursuant to s.20 of the Act for an injury sustained on 20 March 1999 was $7,500 and not $2,400.”

The tribunal purported to deal with the appeal on its merits and dismissed it, taking the view that it was the higher and not the lower threshold which was applicable, having regard to the coming into force of the proclamation to which I have referred, on 14 July 2000. The relevant paragraph of the determination was in the following terms:

“By a proclamation published in Gazette No.88 of 14 July 2000 the Governor fixed $7,500 as the relevant amount for the purposes of Section 20(1)(b). In relation to applications for compensation lodged on and after 14 July 2000 the threshold is $7,500 regardless of whether the injury was suffered prior to that time - see NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 and Abbott v Minister for Lands (1895) AC 425. This application was lodged on 30 October 2000. The threshold of $7,500 applies.”

The said purported determination of the Victims Compensation Tribunal was served on the applicant’s solicitor on 18 July 2001.
It would seem to me that it is at least very strongly arguable that the Victims Compensation Tribunal had no jurisdiction to hear the appeal from the Assessor because it was out of time and the tribunal made a finding of fact that there were no exceptional circumstances. A finding of exceptional circumstances seems to me to be a condition precedent to the exercise of jurisdiction by the Tribunal to determine an appeal from an Assessor. If I am right about that it seems to me that the purported determination by the Tribunal was a nullity and that there was therefore nothing to appeal against.
On 16 November 2001 the applicant’s solicitor filed a notice of appeal in the District Court against the purported determination of the Victims Compensation Tribunal, as already noticed by me. As I have also previously noticed that was done without any leave having first been obtained.
In support of the application under Part 6 rule 60C of the District Court Rules to extend time in which to make an application for leave to appeal against the “determination” of the Victims Compensation Tribunal dated 3 July 2000, two affidavits were filed by the solicitor for the applicant, Daren James Anderson. The first was sworn on 16 November 2001. That affidavit did not address the question of reason for delay, and justification of it, relevant to the application under Part 6 rule 60C.
When I drew that to the attention of Mr L T Brasch, counsel for the applicant, yesterday afternoon he asked for an adjournment in which to file an affidavit expressly addressing the question of that delay and its justification. The second affidavit by Mr Anderson, sworn 14 December 2001, purports to address those issues.
I have read the said affidavits and listened to detailed submissions from both counsel. Mr S J Burchett appeared for the respondent.
I have found that this application for an extension of time in which to make an application for leave to appeal against the “determination” of the Victims Compensation Tribunal should fail. My reasons are basically four. They are as follows:

1. I find that there are no reasonable grounds for the delay in the making of the application for leave to appeal against the said “determination”.

2. I find that there are no “exceptional circumstances” which would justify the appeal being lodged out of time.

3. I think it is very likely that the true position in respect of the “determination” of the Tribunal which, it will not be overlooked, I have in these reasons for judgment referred to as a “purported” determination, is a nullity for the reason which I have already indicated. If that is so, it seems to me that there is nothing for the appellant to appeal against.
Mr Brasch on behalf of the applicant submitted that any irregularity in that regard had been waived by the respondent. However, the matter goes to jurisdiction and jurisdiction cannot be created or disposed of by consent. See, eg, Bromley v Housing Commission or New South Wales {1985} 3 NSWLR 407 (NSW Court of Appeal), at pp 408, 409 and 411 (Kirby P); Bathurst City Council v Saban (1985) 55 LGRA 165 at 170 (Young J), and National Parks and Wildlife Service v Stables Perisher Pty Limited (1990) 20 NSWLR 573, at 585 (Kirby P).
Perhaps the reason for that principle of law is as follows:

“As it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party, a condition precedent to the jurisdiction of a court to grant relief cannot be waived. ( Park Gait Iron Co v Coates (1870) LR 5CP 634”, per Brennan J in the Commonwealth v Verwayen (1990) 170 CLR 394, at 425.


4. In my opinion the decisions of the Assessor and of the Victims Compensation Tribunal in respect of the relevant threshold amount are not attended with sufficient doubt to warrant leave to appeal being granted.
The notice of motion is therefore dismissed and the appeal which was filed on 16 November 2001 is struck out.
I order that the applicant pay the respondent’s costs both of the notice of motion and struck out statement of claim. I stand over the question of whether or not the solicitor for the applicant should be ordered personally to pay the respondent’s costs, and her costs, to 10am on 25 January 2002.