Diamantis v VCFC

[2002] NSWDC 18

New South Wales

District Court

CITATION:	Diamantis v VCFC [2002] NSWDC 18
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Panagiotis Diamantis Victims Compensation Fund Corporation
FILE NUMBER(S):	561 of 2002
CORAM:
CATCHWORDS:	s30
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:	Australian Coal and Shale Employees Federation and Another v The Commonwealth (1956) 94 CLR 620; House v The King (1936) 55 CLR 504
DATES OF HEARING:	10 May 2002
DATE OF JUDGMENT:	10 May 2002

JUDGMENT:

HIS HONOUR JUDGE BLACK: This is an application for leave to appeal on a question of law against a determination of the Victims Compensation Tribunal given on 1 November 2001. I have already given leave for this matter to be argued out of time. The determination is set out in three pages on 1 November 2001 and the result of it was that the chairperson declined to make an award in favour of the appellant pursuant to section 30(1)(b) of the Victims Support and Rehabilitation Act 1996. Section 30(1) provides:

“In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award the compensation assessor must have regard to the following: (b) provides whether the act of violence was reported to a police officer within a reasonable time.”

It is to be noted that the chairperson was obliged by the statute to consider that matter. Subsection (2) in relation to the previous (b) provides as follows:

“In determining whether a matter relating to a victim was reported to a police officer within a reasonable time the compensation assessor may have regard to such matters as the assessor considers relevant including the following.”

There are then set out six matters some of which have been specifically referred to in the course of argument. It is to be noted that all subsection does is to say that the assessor may have regard to them. It says:

“May have regard to such matters as he or she considers relevant including the following.”

It does not necessarily follow, in my view, that if the assessor failed to have regard to them that would automatically be an error of law although it is not necessary for me to decide that in this case because the material contained in the determination shows that the chairperson did have regard to the intellectual and psychiatric disability to which the victim was subject. The chairperson expressly referred to subsection (c) of subsection (2) namely, the relationship between the victim and the person by whom the act of violence is alleged to have been committed. It is said that the chairperson did not have any regard to the fear of retaliation and, in essence, failed to have sufficient regard to the nature of the injury alleged to have been sustained and does not appear to have any regard at all to the assertion that the employers recommended against involving the police. This process that the chairperson has gone through at the end of the day involves exercising a discretion. The law about discretion is set out in House v The King (1936) 55 CLR 504 to page 505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle; if he relies extraneous or irrelevant matters to guide or effect him; if he mistakes the facts or if he does not take into account some material consideration then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order. But if upon the facts it is unreasonable or plainly unjust the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law opposes in the Court of first instance. In such a case although the nature of the error may not be discoverable the exercise of the discretion is reviewed on the ground that a substantial wrong has, in fact, occurred.

Mr Ingram, on behalf of the appellant, has referred me further to the case of Australian Coal and Shale Employees Federation and Another v The Commonwealth (1956) 94 CLR approximately 620. In particular, to a passage at page 627 where Mr Justice Kitto set out a review of the attitude to a review of the findings of a Taxation officer which amounted to a review of the decisions on exercising discretion. In particular, he quoted this part of the judgment at page 1627:

“A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts.” Again, the nature of the error may not be discoverable but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there’s been a failure properly to exercise the discretion which the law opposes in the court of first instance.”


He refers to House v The King. That really is the nub of the argument in this case. What Mr Ingram has very forcefully argued is that when you examined the factual background here we look at the medical reports. When you look at the attitude of the employer then it is unjust or totally unreasonable to base a rejection of the applicant’s claim, now the appellant, on section 30(1)(b) of the Act. In my judgment the situation does not get as far as that. It may be, and I express no concluded opinion, that others might have taken a different course. They might have ordered a partial amount in this case.

But it seems to me that what the chairperson did here was entirely within his power and indeed was a matter he was directed to take into account pursuant to the terms of section 30(1) and I do not see any error of law nor factual error amounting to an error of law in the material before me and all it amounts to, although I appreciate it is a significant result but what it does amount to is that the appellant is saying, “I just don’t like the way the Magistrate or the chairperson came to his or her decision.” I can understand that but having looked at the decision and read the terms of it I can see nothing warranting any interference by this Court and accordingly the application or the appeal is dismissed.

BURCHETT: I seek an order for costs.
HIS HONOUR: You ask for costs. Mr Ingram?
BURCHETT: I do.
INGRAM: I resist that.
HIS HONOUR: You cannot consent to it but I understand - I am afraid I see no reason why costs should not follow the event and the appeal is dismissed with costs.