Deanna Senica v District Court of NSW

[1999] NSWCA 428

CITATION:	DEANNA SENICA v DISTRICT COURT OF NSW & ANOR [1999] NSWCA 428
FILE NUMBER(S):	CA 40597/99
HEARING DATE(S):	12 November 1999
JUDGMENT DATE:	12 November 1999
PARTIES :	DEANNA SENICA v DISTRICT COURT OF NEW SOUTH WALES & ANOR
JUDGMENT OF:	Mason P at 1; Handley JA at 26; Giles JA at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6905/98
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

COUNSEL:	Claimant: G C Jones 1st Opponent: Submitting 2nd Opponent: C L Lonergan
SOLICITORS:	Claimant: Deanna Senica Opponent: I V Knight - Crown Solicitor
CATCHWORDS:	VICTIM’S COMPENSATION - Application for victim’s compensation - Claim of sexual abuse leading to post traumatic stress disorder ; ADMINISTRATIVE LAW - Whether errors of law on the face of the record - Whether failure to apply s3(3)(b) of the Victim’s Compensation Act 1987 - Whether failure to determine all questions of law pursuant to s77(1) of the District Court Act 1973
ACTS CITED:	Victim’s Compensation Act 1987 Victim’s Compensation Act 1996
DECISION:	Summons dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40597/99

MASON P
HANDLEY JA
GILES JA

Friday 12 November 1999

DEANNA SENICA

v DISTRICT COURT OF NEW SOUTH WALES & ANOR
JUDGMENT

1    MASON P: For about six months in 1989-1990 the claimant was subjected to repeated acts of sexual abuse by her mother and her mother's then partner Michael Carney. The claimant was thirteen at the time. The abuse and betrayal have left lasting and serious psychiatric scars which continue to impact upon the claimant's health, psyche, employability and general economic circumstances. 2    The claimant confided in her boyfriend in 1991 and through him became aware of the wrongness of conduct which her mother had effectively represented as normal. She reported the matter to the police but no action was taken at that stage. Following further physical abuse she left home. 3    On 23 November 1992 she attended Burwood police station and provided a detailed statement. Mr Carney was arrested soon after. He confessed and was charged with indecently assaulting a child under the age of sixteen years by a person in company. In February 1993 he was committed for sentence on his plea of guilty and he was later sentenced to twelve months imprisonment. The claimant's mother was arrested in Perth in August 1993. She certainly did not plead guilty. It was only after a fourth trial that she was convicted in April 1998 on a charge of indecent assault upon a child under 16 years by a person in authority. She was sentenced to a fixed term of fifteen months imprisonment. 4    On about 28 July 1993 the claimant filed two applications for compensation under the Victims' Compensation Act 1987 (the 1987 Act). The 1987 Act has now been repealed by the Victims' Compensation Act 1996 but the claimant’s rights continue to be governed by the 1987 Act (see schedule 3 clause 3 of the Victims Compensation Act 1996). The applications filed in the Tribunal are almost identical in form. Each describes the "act of violence" as occurring at Bankstown between January and July 1989 and describes it in the following terms:

"I was indecently assaulted by my mother and her boyfriend, Michael Carney when I was thirteen years old, for a period of approximately six months".

5    Each application describes the injuries and continuing disabilities as “psychological sequelae major depression post-traumatic stress disorder". 6    In each application the only expenses claimed are $820 for psychologists' fees. 7    The difference between the two applications lies in section 7 (court proceedings). In one application the information provided is:

"Name(s) of accused: Michael Carney
Court/location: Liverpool District
Date: 26/8/93
Offence(s): Indecent assault on a child under 16
Current position/result: Sentenced to a fixed term of imprisonment for 12 months".

In the other the corresponding information is:
"Name(s) of accused: Elizabeth Fowler
Court/location: Bankstown Local Court
Date 17/1/94
Offence(s): Indecent assault on child under 16 by person in authority
Judge/magistrate: Yet to be heard
Current position/result: Accused has been charged".

8    The application involving Mr Carney was numbered 94/0811A. That involving the claimant's mother was numbered 94/0811B. On 8 March 1994 the Victims' Compensation Tribunal gave leave to file the applications out of time. They were considered and determined apparently as a "desk determination" (cf Director-General of the Attorney General's Department v District Court of New South Wales & Stark (Stark's Case) (1993) 32 NSWLR 409 at 411). 9 The magistrate that determined the applications on 11 September 1995 determined that the offences committed on the claimant by both offenders were "related acts" within s3(3) of the Act. The application concerning the claimant's mother was dismissed. In the application concerning Mr Carney there was an award of compensation of $26,930 with costs of $605. 10 On 22 September 1998 the claimant filed in the District Court notices of appeal and applications for extension of time to appeal in relation to the disposal of both applications before the Tribunal. The right of appeal under the 1987 Act involves a hearing de novo in which the District Court exercises afresh the powers conferred under the 1987 Act upon the Tribunal (see Stark's Case). 11    The proceedings were heard by Judge Delaney on 10 March 1999. There was no oral evidence. Various affidavits were read and documents tendered. A key issue was whether or not there was an "act of violence". Section 3(1) of the 1987 Act defines "act of violence" to mean

"an act or series of related acts (as referred to in subsection 3), whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence; and
(b) that has resulted in injury or death to one or more persons.”


Subsection (3) provides:
"An act is related to another act if:
(a) both of the acts were committed against the same person; and
(b) in the opinion of the Tribunal both of the acts were committed at the same time or were for any other reason related to each other."

12    The meaning of these provisions is expounded by this Court in Stark's Case. 13    His Honour reserved judgment and it was given on 18 March 1999. Delaney DCJ referred to "a quite horrific incident involving the appellant's mother and a friend when the appellant was thirteen years old" and stated that "the incidents went on for six months". His Honour recorded that Mr Jones, who represented the claimant in the District Court and in this Court, had submitted to him that this was a case in which he should allow compensation on the basis of a number of related acts. His Honour stated at the outset that: "Having reviewed the statements which were made to the police in this case, and the medical evidence, I have come to the view that this was a series of related acts and does not warrant any allowance other than one act of violence." 14 The reasons which follow do not go into detail about the sexual assaults. The evidence before us shows that the recalling of the events in question conjures up very searing memories capable of producing fresh psychiatric harm and this may well have been the background against which his Honour spoke in rather compendious terms. Nevertheless, the judgment makes it plain that the learned judge had regard to Mr Carney's record of interview, the claimant's statement to the police of 23 November 1992, and the medical evidence placed before him, especially that of Dr Quadrio to whose reports specific reference is made in the judgment. 15 Towards the latter part of the judgment his Honour made findings based upon acceptance of Dr Quadrio's evidence that the claimant, as a result of the events referred to, suffers from a chronic post traumatic stress disorder. His Honour referred to the substantial and very sad impact of that disorder upon the claimant. He noted that the Tribunal had not awarded the maximum sum, but he indicated that he was prepared, in the light of the evidence, to award the maximum sum. He did so by allowing $40,000 for compensation for injury and a further $10,000 for expenses and loss of wages both past and future. 16 In her amended summons the claimant seeks an order in the nature of certiorari quashing the order of the District Court on the ground of errors of law on the face of the record. In this context the record includes the reasons expressed by the District Court for its ultimate determination (see the Supreme Court Act s69(4)). It is also legitimate to refer to the originating process in the District Court and the orders made by that court (see Craig v State of South Australia (1995) 184 CLR 163). It is unnecessary to determine whether the record in a case such as the present would extend to the originating process before the Victims' Compensation Tribunal. I have referred to that in order to give context and understanding to the reasons for judgment, without determining that issue. 17 According to the amended summons, the errors of law were in effect twofold:

1. Failure to apply s3(3)(b) of the 1987 Act; and
2 . failure to determine all questions of law pursuant to s77(1) of the District Court Act .
The particulars given in relation to 2 make it clear that the alleged error of law is that asserted in relation to 1.

18    The claimant tendered a lot of material that is quite irrelevant to the issues before us. The second opponent took formal objection but the hearing proceeded subject to this objection. 19    It was not part of the claimant's case that there had been a denial of procedural fairness in the District Court. In recording that matter I am not suggesting that there was any material to suggest that such a case had any prospect of success. 20    Addressing the issue raised in the amended summons I am of the clear view that the claimant fails. The portions of the judgment to which I have made reference indicate that his Honour addressed the very issue of section 3(3)(b) of the 1987 Act. His Honour expressed himself in terms which in substance represented the statement that he was of the opinion that the acts were related to each other. Indeed the reasons given at pages 1 and 2 and probably also 2 and 3 of the reasons for judgment contain an explanation of why his Honour was of that opinion. Nothing on the face of the reasons or otherwise in the material relevant to the issue before us indicates that his Honour failed to apply section 3(3)(b) or erred in law in the manner in which his Honour applied that section. 21    In his oral submissions today, counsel for the claimant tended to concentrate on a different issue than that raised in the amended summons and the written submissions. He argued that the judgment portrayed an error of law on its face because it did not expose to the requisite standard the reasoning process which moved his Honour to the ultimate conclusion on the critical, and indeed really the only, issue that was apparently fought before him. We were referred to the well known case of SoulemezisvDudley Holdings Pty Limited (1987) 10 NSWLR 247. 22 Notwithstanding the form of the amended summons I think it is appropriate that the Court should address this alternative challenge to the orders below. However, I understand that the challenge was pressed on the basis that it is an alternative particular to the submission that there was an error of law on the face of the record. Once again, I think that this is the correct way in which to address the alternative argument and the only way in which it is open on the face of the summons before the Court. In other words the task of the Court is to examine the record, which in this case includes the reasons of his Honour, to see whether that record itself portrays the error of law of the type discussed in Soulemezis and other cases. In my view the alternative basis of the challenge also fails. 23    His Honour referred, albeit in general terms, to the particular criminal conduct involved. It is clear that he was seized of the fact that there were two offenders. This has not been suggested in itself to preclude there being finding of a (single) act of violence. 24    His Honour indicated that the opinion which he expressed was based upon a review of the statements made to the police, being that of Mr Carney and of the claimant, and based upon the medical evidence. As I have indicated, the judgment then in pages 1-3 refers to key aspects of that medical evidence and in particular on page 2 of the judgment there is a reference to the claimant's statement to the police of 23 November 1992 and specific mention of three paragraphs in that statement. In that context his Honour concluded that portion of his judgment by saying that "the other events occurred over a period of time in connection with this particular relationship which was obviously being conducted by her mother with Mr Carney". 25    In my view, that is an adequate identification of the substantive reasoning which went to the ultimately critical opinion that his Honour expressed. I do not think it necessary to expound in any detail the principle in Soulemezis and similar cases. They are very well known. The principle itself is not in issue. The question is whether it was breached in this case and whether that breach manifests itself on the face of the reasons for judgment. In my view it was not breached nor is any evidence of such breach manifest in the reasons. Accordingly I would dismiss the summons with costs. 26    HANDLEY JA: I agree.
27    GILES JA: I also agree.
28    MASON P: Summons dismissed with costs.

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