Dawood v Victims Compensation Fund Corporation

[2005] NSWDC 6

CITATION:	Dawood v Victims Compensation Fund Corporation [2005] NSWDC 6
HEARING DATE(S):	1 March 2005
EX TEMPORE JUDGMENT DATE:	1 March 2005
JURISDICTION:	Civil
JUDGMENT OF:	Rein SC DCJ
DECISION:	On the motion, I grant leave to the plaintiff to appeal pursuant to s 39(1) of the Victims Support and Rehabilitation Act 1996. Appeal dismissed. By consent, no order as to costs.
CATCHWORDS:	Claim of denial of natural justice or procedural unfairness - Whether the issue of contributory conduct by victim and the level to be assessed were matters with which the Tribunal was to deal
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996, ss 30, 31, 39
CASES CITED:	Re Minister for Immigration; Ex parte Mia (2001) 206 CLR 57 Parker v DPP (1992) 28 NSWLR 282 Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264
PARTIES:	Robert Dawood (Plaintiff) Victims Compensation Fund Corporation (Defendant)
FILE NUMBER(S):	5212/04
COUNSEL:	Mr Canceri of counsel (Plaintiff) Mr McAteer, solicitor (Defendant)
SOLICITORS:	CMC Lawyers (Plaintiff) Victims Compensation Fund Corporation (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff seeks leave to appeal from a decision of the Victims Compensation Tribunal (“the Tribunal”) handed down on 12 November 2004. Leave to appeal is required pursuant to the Victims Support and Rehabilitation Act 1996 (“the Act”). The defendant, the Victims Compensation Fund Corporation, to which I shall refer as the Fund, agrees that leave should be granted and accordingly I grant leave to appeal.

2 Mr Canceri of counsel appears on behalf of the plaintiff, and Mr McAteer, solicitor, appears for the Fund. I have received helpful submissions from both Mr Canceri and Mr McAteer.

3 The background facts are that the plaintiff, whilst a Year 11 student at Fairfield High, became involved in a fracas following the completion of a soccer match, of which he was the referee. He was punched in the eye by an unidentified assailant after he had pulled or pushed students from the opposing team off students from his school. There were teachers from the school present.

4 The plaintiff sought compensation under the Fund’s scheme, and an assessor determined that he was not entitled to compensation in a determination dated 1 July 2004. The assessor accepted that the plaintiff was a victim of violence but he found that there was insufficient medical evidence to support a finding of chronic psychological or psychiatric disorder that was severely disabling or to make a finding of loss of vision in the left eye as claimed by the plaintiff.

5 The assessor in indicating that he was not prepared to make an award of compensation discussed the issue of what I shall describe as “contributory conduct” which arises by reason of the terms of s 31(a) of the Act, which is in the following terms:

“(1) In determining whether or not to make an aware of statutory compensation and in determining the amount of compensation to award from it the compensation assessor must have regard to the following:

(a) Any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim”.

6 What the assessor said was:

“Firstly, I accept Mr Dawood was the victim of violence. He was clearly involved in a brawl that got ‘out of hand’ between a large number of young men from two different schools. I have noted that weapons were used in the brawl. In spite of the applicant’s solicitor’s concession in submissions that any reduction for ‘contributory behaviour’ should be no more than fifteen per cent, I must state that on the evidence before me I can’t ascertain precisely what the applicant’s involvement was - hence I find it difficult to approximate in percentage terms what contribution his behaviour may or may not [semble] have had in his overall injuries. What I am satisfied of though is the fact that he was, prima facie, involved in the brawl”.

7 The reference to submissions is a reference to a letter sent by the plaintiff’s lawyers of 18 May 2004 (part of exhibit A) in which the plaintiff’s solicitors said:

“Heading section 30(1). The police investigations indicate that the applicant was injured in a brawl involving multiple combatants from ‘rival’ high schools. It is our submission that the applicant’s involvement in the incident should attract no more than a ten to fifteen per cent deduction by way of contribution”.

8 The plaintiff appealed from the assessor’s decision and by letter of 29 September 2004 the registrar of the Tribunal wrote to the plaintiff’s solicitors noting that:

“All material and evidence to be relied upon pursuant to s 38(3) of the Victims Support and Rehabilitation Act 1996 , including submissions, should be received by the Tribunal two working days prior to the above listing date”.

9 The grounds of appeal which had been filed by the plaintiff’s solicitors dated 27 September 2004 (and forming part of exhibit A) states:

“(1) The assessor erred in dismissing the application”.

10 Particulars are then set out beneath, which all relate to evidence in respect of the eye. Nothing was said in the grounds of appeal about the psychiatric condition and it is common ground that the assessor’s determination on that point was not challenged.

11 Presumably in anticipation of the registrar’s letter of 29 September 2004, the plaintiff’s solicitors wrote a letter of 27 September, which letter, it is agreed, constituted the submissions made on behalf of the plaintiff to the Tribunal. The letter is part of exhibit A – the Tribunal’s file in the matter - but it is also an annexure to the affidavit of Daniel Meneghello of 25 February 2005, one of two affidavits read in support of the appeal to which I shall make further reference below. The letter submits that the assessor erred in dismissing the plaintiff’s application and addresses the medical evidence relating to the eye. The letter ends with the following words:

“We leave the apportionment of contribution to the Tribunal”.

12 The Tribunal proceeded to hear the appeal and on 12 November 2004 delivered judgment. The learned magistrate Mr Charles Gilmore accepted that the plaintiff was a victim of an act of violence and that he had sustained compensable injury, that is, a partial loss of vision as a direct result of that act of violence.

13 So far as the psychological/psychiatric injury was concerned, the learned magistrate referred to the absence of any challenge in that regard, but in any event expressed his agreement with the assessor’s views.

14 The learned magistrate also dealt with the question of contributory conduct under s 30(1)(a) and was satisfied that the provisions were relevant. He noted that the only version of how the injury had been sustained was taken from the history recorded by a psychiatrist to whom the plaintiff had been referred for opinion some nine months after the incident.

15 After considering that account the learned magistrate said that he was satisfied that the plaintiff’s behaviour and involving himself in the brawl rather than leaving it to teachers who were present to deal with directly contributed to his injury, and he rejected the submission that a ten to fifteen per cent level of contribution adequately reflected this. He held that seventy-five per cent was the appropriate reduction for contributory conduct.

16 The learned magistrate then proceeded to assess the level of compensation payable and applied seventy-five per cent reduction to the figure derived from the appropriate table. The starting figure was $18,000, which produced when reduced by seventy-five per cent a level of compensation of $4,500. The learned magistrate then noted that pursuant to the Act if compensation was less than $7,000 no award could be made.

17 The appeal to the Tribunal was heard “on the papers” with the consent of both parties and no complaint is made about that.

18 By virtue of the Act an appeal to this Court only lies on a point of law. The point of law which the plaintiff seeks to ventilate is whether the plaintiff was denied natural justice or procedural fairness by reason of the failure of the Tribunal to give notice to the plaintiff, through his legal representatives, that the Tribunal was considering assessing the level of the plaintiff’s contribution at a level in excess of fifteen per cent.

19 Mr Canceri submitted that if the Tribunal was considering making a level of reduction higher than fifteen per cent it was bound, in accordance with the principles of procedural fairness and natural justice, to give notice of this so that submissions could be made on the point.

20 In support of the appeal two affidavits were read, one of Mark Capoloupo, 14 December 2004, and one of Mr Meneghello to which I have already referred.

21 Mr Capoloupo’s affidavit is of a formal nature annexing a copy of the Tribunal’s decision and indicating the basis of the appeal. Mr Meneghello states in his affidavit that before drafting the letter to the Tribunal of 27 September 2004, to which I have already referred, he formed a view that the appeal before the magistrate was “really only in respect of his finding that the applicant did not suffer a compensable injury to his left eye”. He also states in para 7:

“In view of the determination of the assessor, I did not believe that the magistrate would reduce any award by more than fifteen per cent to account for the appellant’s behaviour. In fact, I formed the view that the magistrate would not deal with the issue of contribution by reducing any award of compensation. I also formed the view that if the magistrate was minded to reduce any award by more than fifteen per cent then he would allow my client the opportunity to address the issue before making a determination”.

22 Mr McAteer did not object to the affidavit being read even though he received the affidavit yesterday morning, and he did not require Mr Meneghello for cross-examination, but in any event Mr Canceri conceded that Mr Meneghello’s subjective views were not relevant. What was relevant was what the objective circumstances revealed.

23 In support of the appeal Mr Canceri relies on Victims Compensation Fund Corporation v Nguyen & Anor [2001] NSWCA 264, a decision of the New South Wales Court of Appeal delivered by President Mason and concurred in by the other members of the Court, Handley JA and Powell JA. In that case the Court of Appeal held that the failure of the Tribunal to warn an appellant that it was thinking of depriving him of an award made by an assessor on the basis that the assessment of fifty per cent contribution did not sufficiently reflect the circumstances (because the applicant there had been a member of a gang and had said that the knife attack on him was a result of his prior involvement and then would not co-operate further with the police - see 31(a) and 31(d) of the Act).

24 The victim, it was accepted, in that case had patently been seeking a more generous assessment in his appeal than the assessment made by the assessor: see [42]. Had the victim in that case known of the prospect of reduction to zero he may well have withdrawn his appeal (and retained fifty per cent) but he was not given that opportunity. The case was seen as analogous to cases involving appeals on sentence: see Parker v DPP (1992) 28 NSWLR 282. At [36] and [37] of Nguyen, President Mason said:

“[36] Mr Nguyen is correct in submitting that Parker cannot be distinguished merely by pointing to its criminal context or the super-added factor that the District Court judge in that case considered himself bound to apply earlier sentencing precedents. On the other hand, it is reading too much into Parker to invoke it as authority for the proposition that the Tribunal must always signal a specific intention of reducing an assessor’s award, thereby allowing the appellant the opportunity to withdraw the appeal. In the present context, the content of procedural fairness depends very much on the particular circumstances.

[37] The obligation of procedural fairness is concerned with providing persons whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party’s failure to make proper use of that opportunity is not the concern of this branch of the law ( Allesch v Maunz (2000) 74 ALJR 1206 at [38] (Kirby J), Miah at [99] (Gaudron J)).”

25 In Nguyen the victim had received an award in his favour which could be lost on appeal, whereas here the Plaintiff received no award of compensation. I do not think that this is itself significant, because the principle set out in [37] of Nguyen is more broadly stated, and Re Minister for Immigration Ex parte Mia (2001) 206 CLR 57, to which the President refers, is an example of the application of the wider principle in the context of a visa hearing.

26 In this case the assessor did not express any view as to what level of contribution should be applied in reduction of the plaintiff’s claim and in a context of a submission that the contributory conduct should be no more than ten to fifteen per cent, I think he was indicating in the passage I have earlier set out that he did not agree that the contribution level was as low as ten to fifteen per cent. However, the assessor made no finding as to what the percentage should be. On the approach he took to the case he did not need to make a finding because in his view there was no compensable injury and he awarded no amount of compensation to the plaintiff.

27 Section 31 of the Act requires the compensation assessor to have regard to the matters set out in paras (a) to (e), and when the Tribunal heard the matter it was required to take into account the same matters. This is conceded by Mr Canceri; see also [38] of Nguyen.

28 Given the fact that the assessor’s determination made clear the difficulties he had in reaching a figure for contributory conduct, the fact that the submission had been made that there should be a finding of “no more than ten to fifteen per cent” before the assessor, and most significantly the content of Mr Meneghello’s letter that “we leave apportionment of contribution to the Tribunal”, I do not accept the contention that the issue of contributory conduct and the level of it was not a matter that was plainly “in the ring”, to use Mr Canceri’s words, and which would appropriately have been the subject of submissions. The plaintiff, through his legal advisers, was given the opportunity to make submissions on the topic and instead left it to the Tribunal to determine, and just as significantly the Tribunal was told that that was his position.

29 Mr Canceri argued that the plaintiff’s solicitor was, in all the objective circumstances, entitled to think that all that was possible without hearing from the Tribunal further was a percentage for contributory conduct in the ten to fifteen per cent range because that was the range that had been submitted to the assessor and the assessor had not proffered a view on precisely what percentage should be applied.

30 For the reasons I have indicated, I do not agree that such a view was justified. The Tribunal was required to make its own assessment of the level for contributory conduct and gave the plaintiff an opportunity to be heard on the topic, which his lawyers dealt with by “leaving the apportionment of contribution to the Tribunal”. I do not think it matters that the plaintiff did not articulate in his grounds of appeal the issue of contributory conduct or apportionment, because the letter of 27 September 2004 makes it clear that the Plaintiff’s legal representatives regarded that subject as one with which the Tribunal would have to deal, should the Tribunal form a view favourable to the Plaintiff on the eye injury.

31 It was submitted that one of the relevant matters necessary to be taken into consideration in this case is that the appeal to the Tribunal was being determined without legal representatives appearing, although as I have noted there is no complaint about the mode of hearing.

32 I take it into account but I do not think it adds or detracts from the argument. The proposition that an appellant should be given an opportunity to withdraw his appeal where the Court is considering increasing the sentence or penalty or that a party should be given an opportunity to make submissions on any topic that was not within the range of topics which his legal advisers on reasonable grounds had appreciated were to be adjudicated by the Tribunal is not made more or less compelling by whether or not there is a full hearing.

33 Accordingly, in my view there has been no breach of the principle of natural justice or procedural fairness and the appeal should be dismissed. The orders that should be made, firstly, are on the motion, I grant leave to the plaintiff to appeal pursuant to s 39(1) of the Act. The second order is that the appeal should be dismissed. The third issue is the question of costs.

COUNSEL ADDRESSED ON COSTS

34 By consent I make an order that there be no order as to costs. I direct that the exhibit in this matter be returned to the Tribunal on the expiry of twenty-eight days from today in the absence of an appeal.

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