Daher v Victims Compensation Fund Corporation

[2001] NSWDC 25

New South Wales

District Court

CITATION:	Daher v Victims Compensation Fund Corporation [2001] NSWDC 25
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Sonia Daher Victims Compensation Fund Corporation
FILE NUMBER(S):	7895; 8732 of 2001
CORAM:
CATCHWORDS:	question of law - act of violence
LEGISLATION CITED:
CASES CITED:	Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
DATES OF HEARING:	15/11/01
DATE OF JUDGMENT:	15 November 2001

JUDGMENT:

HIS HONOUR: This is an application for leave to appeal from a decision of the Victims Compensation Tribunal dated 31 May 2001. An application was also made for leave to produce further evidence. That application was refused.
At the outset the Court notes that the difficulties thrown up by this case are inherent in desk reviews. There are a number of matters which no doubt would have been clarified if there had been an appearance before the Tribunal.
The application is supported by an affidavit of Edmond Fredericks who annexes material in conformity with part 6, rule 60C of the Court’s Rules. The essence of the argument is comprehensibly set out in the applicant’s submissions. Essentially an attack is made upon the Magistrate’s decision on the following bases:
1. Apparent inconsistency between the three statements, which I will refer to.
2 The introduction of irrelevant considerations.
3. The introduction of matters for which there was no evidence.
4. Basic misunderstanding of the primary facts.
5. Misapplication of the law.
6. Ignoring facts which are inconsistent with the decision without giving reasons to do so.
Mr Foster took up those submissions both in writing and orally. The three statements that are referred to are a COPS entry of 7 July 1998. This may be a recording of what was in the police officer’s note book but it is phrased in a summary way by the writer. It does not include direct statements by the victim. Of particular importance is recorded:
“The POI grabbed the baby bag that the victim was carrying and ran down a nearby set of fire stairs and onto a car park adjacent to Violet Street”.

However the document records that Constable Kennedy and Leith Card of Campsie Police created a document. It was updated by Sergeant Laylor, Phillip John of Campsie. So the material is hearsay, it is untested and it is not a firm basis for finding facts which is so much in issue.
There is then a statement of the victim made 17 August in which she said at paragraph 3:
“At about 3pm on 6 July 1998 I was putting shopping in the boot of my four wheel drive -

and she gives the registration number.

“I looked around and I saw a man coming towards my car”.

She then describes the man and says:

“The man reached in the back, in the back of my car. The man ran away. I chased the man through two or three levels of stairs. I chased the man down the far exit steps and onto Violet Street car park. He dropped his hat”.

There is an undated statement attached forming part of the application for compensation in which again the victim states that:
“The man reached in the back of my car, the man ran way. I chased the man through two or three levels of stairs. I was parked on blue level P8”.

Then the victim says in addition to what she had said in the statement and after she had caught up with him inside the fire exit:

“We fought for the bag. He hit me with it and pushed me over”.

The Magistrate stated in her reasons:
“In light of the contemporaneous statement and the lack of any sworn or corroborative evidence I am not satisfied in the balance of probabilities that the appellant was a victim of any assault as alleged”.

This must be understood in the context of what the Magistrate said earlier in her reasons at page 2, point 3 she refers to the application and paragraph 23 states that a statutory declaration is annexed to the claim form. She then correctly sets out what was in the statutory declaration of particular interest, that is, that the two persons fought for the bag.
The Magistrate in noting that the application does not contain a statutory declaration is quite correct. This was of significance to her. There could well be good reason for this. Again there was no testing of how the document came into existence before the Magistrate. It is possible that some other person accompanied the application with the statement. There may have been a statutory declaration in fact in existence, although it is unlikely that this would be the case.
For whatever reason the fact that the sworn document says that a statutory declaration is attached and it was not of concern to the Magistrate. So when she says there was a lack of any sworn evidence it has to be understood in the context of how she explained her concerns about that at page 2.2 of the judgment.
The Magistrate was also influenced by the circumstances that the statement was not contemporaneous. It was open for the decision maker to find this because presently the word “contemporaneous” is associated with material being fresh in the memory. The presence of this is regarded as being about 24 hours or so. The fact of the matter is the statement which the applicant now seeks to rely on was not contemporaneous.
The Magistrate was faced with a situation where there was a theft from the back of the car, a chase and the assault was disclosed at a later time. She applied her mind to that particular issue by concluding that it was inherently likely that the chase would have resulted in the appellant catching up with the man in his early twenties.
Nothing is known about the two persons involved. There is no reason why at least a 29 year old female could not catch a young man. Nevertheless in the Magistrate’s judgment it was inherently unlikely and it was open for her to reason on this basis.
The Magistrate appears to have been in error in stating as she does at the top of page 2.1:
“The assessor found that the appellant had not established that an act of violence had occurred during the robbery”.

In the context of the Magistrate’s reasoning the theft took place from the back of the car and subsequently it is alleged that there was an assault. It may be that the Magistrate was using the word compendiously to include a situation where although at the time of the taking there wasn’t violence. During the period of the taking and carrying away there was violence. As she didn’t accept that there was the assault, it is a little difficult to see what that first sentence means.
In my view nothing turns on that. It is just not a felicitous way of expressing what was intended to be communicated. As I read it what the Magistrate was intending to do was refer to the incident rather than the robbery.
There is some dispute that the applicant has to show an error of law on the part of the Tribunal. That has been described on the grounds as whether in all the circumstances a determination of Magistrate Walker should stand. It has been particularised, as I have said, and I have discussed the various arguments that Mr Foster has advanced.
It is permissible to look at the reasoning of a Tribunal to determine whether an error of law occurred. This may be so where a finding is perverse, or a finding is made where there is no evidence, or inferences could not possibly be drawn from certain facts. The question as to whether there is an error of law is itself a question of law - see generally Azzopardi v .Tasman UEB Industries Limited (1985) 4 NSWLR 139.
On my analysis of the Magistrate’s reasoning it is not dependent on the inconsistencies as the applicant contends. The particular finding at page 3.1 must be understood in the context of the other reasons that the Magistrate gives. In my opinion no error of law is demonstrated. I rule accordingly.

I will turn to the question of costs.

It seems to me that the reasoning of the Magistrate did cause the applicant some concern and there is some confusion with respect to it. In these circumstances the order of the Court with respect to costs will be that each party will bear their own costs.
The orders of the Court are:
1. The notice of motion is dismissed.
2. Each party bear their own costs.