Hatzipanagiotidis v Victims Compensation Fund Corporation

[1999] NSWDC 9

New South Wales

District Court

CITATION:	Hatzipanagiotidis v Victims Compensation Fund Corporation [1999] NSWDC 9
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Harry Hatzipanagiotidis Victims Compensation Fund Corporation
FILE NUMBER(S):	839 of 1999
CORAM:	Robison DCJ
CATCHWORDS:	oral hearing - procedural fairness :- section 39 oral hearing - procedural fairness :- section 38(2) oral hearing - procedural fairness :- section 39(1) oral hearing - procedural fairness :- denial of natural justice oral hearing - procedural fairness :- lack of evidence oral hearing - procedural fairness :- Schedule 2, Part 3
LEGISLATION CITED:	Victims Compensation Act 1996 Victims Compensation Rule 1997
CASES CITED:	Hatley v Victims Compensation Fund Corporation (1 April 1999); Tadros v Victims Compensation Fund Corporation; Torrealba v District Court of NSW and Victims Compensation Corporation Fund
DATES OF HEARING:	12/11/1999
DATE OF JUDGMENT:	12 November 1999

JUDGMENT:

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HIS HONOUR: In this matter the appellant seeks an order that leave be granted to him to institute an appeal under s.39 of the Victims Compensation Act against a decision of the respondent dated 14 May 1999 following the appellant's appeal dated 11 February 1999.
It seems to be common ground that the appellant sustained quite serious injuries in an unprovoked assault upon him constituted by the infliction of gunshot wounds at close range on 28 December 1997.
I would say at the outset the Court can only have considerable sympathy for the appellant for the predicament that he found himself in at that time, and there is no doubt that the appellant did sustain the considerable degree of injury having regard to the circumstances of that event.
Not surprisingly the appellant lodged a claim for compensation pursuant to the provisions of the Victims Compensation Act (1996). He was represented at the early stage by a solicitor who no longer acts for the appellant. I note Mr Pasternacki who appears for the appellant acted for him in the latter stages of the proceedings before the Tribunal, and, indeed, as I understand the position he conducted the appeal on behalf of the appellant when the matter was brought up to the Tribunal stage. He, of course, appears for the appellant on this appeal to this Court.
The matter was determined by an assessor on 12 November 1998 and after the appeal was lodged the Tribunal determined the matter on 10 May 1999.
I have had the benefit of considering the decision of the learned Tribunal. I copy of that decision is before me. It is annexed to the affidavit of Mr Pasternacki, sworn 13 July 1999. That affidavit, in essence, sets forth the grounds of the appeal, not only to the leave application, but also in relation to the substantive application.
I have read the reasons for the determination enunciated by the learned magistrate and tribunal member. Indeed it is a requirement of the legislation that only magistrates be appointed to that position in the Tribunal. Magistrates, being judicial officers, as they are, are required, as all judicial officers, to consider every application before them in a fair and proper way, impartially, and having in mind the well settled principles of law as to procedural fairness.
I have also considered the respondent's submissions, both written and oral. The respondent relies on a decision of his Honour Judge Delaney of this Court in the appeal of Hatley v Victims Compensation Fund Corporation (1 April 1999). The respondent also relies on another decision of this Court of his Honour Judge Patten of 24 August 1999 in the appeal of Tadros v Victims Compensation Fund Corporation. Those appeals were brought under the provisions of the current legislation.
I refer to the legislation as "the current legislation" because under the earlier legislation, matters of this nature were determined on common law principles, effectively, the District Court was required to hear matters of appeal on a de novo basis and apply the principles of common law in the exercise of its deliberations.
That regime has, to a large extent, been replaced by the new Act, that is, the current legislation. There is now a new procedure, by which victims of acts of violence can claim and pursue their rights to compensation, but it is quite clear from the overall tenor of the Act, as well as the second reading speech by the Attorney General, that such claims are now severely restricted. Indeed, matters of compensation are now classified and placed in various categories as set forth in the legislation.
So, the discretion and the principles of common law, previously found in the earlier legislation, are now severely restricted by this legislation. That is in accordance with the legislative intent, and that is, in any event, clearly indicated by virtue of the provisions of s.39 of the Victims Compensation Act. Under s.39 subs (1) "[a]n applicant for statutory compensation may, with the leave of the District Court, appeal to [this] Court on a question of law arising in any determination of the application by the Tribunal". So appeals are now limited to matters of law, not fact.
I am aware of the judicial pronouncements as to what is meant by an error of law, and, of course, in that context, the Court needs to consider the material relied upon by the appellant in this application for leave, and it is material that I have considered very carefully, having regard to the submissions capably made on behalf of this appellant by Mr Pasternacki who has, I must say, gone into some considerable detail in his affidavit and he relies on a number of grounds, but in particular it would appear that in so far as the leave application is concerned, they are confined to three important issues.
It is asserted at the outset that Mr Hatzipanagiotidis has been denied natural justice when the determination was made by the learned magistrate without calling for a hearing, in the sense that it is asserted that certain findings were made which are adverse to the appellant. That is a serious submission and one in which I have given careful consideration, as with the others.
Secondly, as a follow on from that submission it is further asserted that in making such findings adverse to the appellant there was a denial of natural justice.
There is a further ground in that the Tribunal erred in law in finding that it was a requirement that the appellant submit evidence when the rule only requires a comprehensive description of the injuries and other matters claimed.
In so far as that last submission is concerned I do note the provisions of the rule, which have been set forth in the affidavit of Mr Pasternacki. He refers to the provisions of the rule on the second page of his affidavit. He recites the rule as follows, that "[a]n application for statutory compensation is to include a description of the compensable injuries for which compensation is sought". He also refers to "[t]he description of an injury is to be given in a manner that identifies the relevant item to which the injury relates in the schedule of compensable injuries in the Act".
He submits "that there is no mandate contained in the Rules or the Act to dismiss an appeal for lack of evidence, nor to assess an Application without requisite evidence". He submits "that the Tribunal is inquisitorial in jurisdiction (as opposed to adversarial)". He refers to the Act in support of that, in particular he refers to the provisions of s.28 of the Act.
That is a provision whereby "[a] compensation assessor may require an applicant for statutory compensation to undergo an examination..." That provision on its own is a permissive provision. There is no direct requirement upon an assessor and, in the case of a Tribunal, when it considers an appeal, to make such a requirement. It is, if anything, a provision which aids the appropriate procedures for the determination by the Tribunal of an application before it. It is a very broad discretion vested in the assessor and the Tribunal, and indeed it is one of the many broad discretions vested in this statutory body.
So, taken on its own that, of itself, in my view, does not make the Tribunal, nor the assessor, an inquisitorial body. For example, Courts themselves may require certain things to be undertaken upon its own motion, or on the application of others. These are designed in order to assist the Court, and in this case the Tribunal or assessor, in forming an appropriate view on the available evidence.
I refer to the question of "available evidence" because I do note the reliance upon the provisions of the rule to that end. In my view, that is a position which is somewhat untenable. It is quite clear that a Tribunal would be in error if it simply confined its consideration to matters which do not amount to evidence, that is, submissions do not amount to evidence per se. Submissions are usually made on the basis of evidence, properly admissible, already received. They can address matters of evidence which have been relied upon and considered.
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So it would be wrong in any event for the Tribunal simply to confine its consideration to matters of submission and description.
The provisions of the rule provide, in effect, an extension of the requirement of the Tribunal to consider not only the evidence, but also the description of the injuries. All of these things should form part of the Tribunal's consideration. It is not an exclusive rule, it is an inclusive rule as the rule itself states.
It is there to facilitate the reception and consideration of appropriate evidence. I appreciate the Tribunal also has powers to dispense with the formal rules of evidence, and, indeed, it is a body which has very broad reaching powers and discretions vested in it pursuant to the terms of the legislation.
There is a clear indication that the Tribunal, if it wishes, may conduct a hearing and, as set forth in Sch 2 of the provisions of the Act, the Tribunal, if it conducts a hearing, is to conduct it in the way set forth in Pt 3 of Sch 2. For example "the Tribunal is not bound by the rules of evidence", as I indicated earlier, "but may inform itself on any matter in such manner as it things fit". This is virtually carte blanche to the Tribunal. This is what the legislature has said. It has been clearly said.
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Further, "[h]earings under this Part must be conducted with as little formality and legal technicality and form as the circumstances of the case permit". I note further that the hearings are to be open to the public with the exceptions as set forth in Provision 13.
But, in this case, the Tribunal took the view, on the evidence before it, the appellant having been given every opportunity to provide such evidence and to make any applications as he saw fit, determined the material on the information before it.
Should the appellant have been notified by the Tribunal that it intended to determine the matter without proceeding to a hearing? That is an interesting point. It is, effectively, one of the points raised by Mr Pasternacki on behalf of the appellant. True it is, it appears that there is no provision in the Act requiring the Tribunal to request from an applicant for compensation an indication as to whether a hearing is required or not required, but what is clear, and this is something which emerges from the chronology which forms part of the documents I have marked MFI 1, is that prior to the determination made by the Tribunal on 10 May 1999, there was a letter to the "applicant's solicitors advising of [a] callover and the need to lodge any further evidence or material, upon which leave might be sought to rely and any special grounds therefore". In this regard I am quoting directly from the chronology. This is back in March 1999.
Further, there was a letter from the Tribunal to the appellant's solicitors advising of the listing of the appeal for the week of 10 May 1999. That was sent in the month preceding, and that there was "no need to attend".
Although there may not be any particular procedure whereby an appellant can formally request a hearing, there is absolutely nothing in the legislation which prevents an appellant from seeking a hearing. If there is a real issue which would be of concern to the appellant, and warranting a public hearing, then one would have thought, adopting the rules of commonsense, that that would have been something clearly placed before the Tribunal before the determination was made.
The appellant would have been well aware of the intention to list the appeal before the Tribunal. There is nothing in the Tribunal's decision which appears to address any matters of an extraneous nature. It would appear from the Tribunal's decision that the Tribunal considered everything that it had at that time.
So, at the end of the day, in my view, there was no requirement by the Tribunal, per se, to formally indicate to the appellant that it intended to proceed without a hearing, but at the end of the day the chronology really speaks for itself in so far as the events which have transpired are concerned.
There is also a clear indication from the documents which have been marked exhibit 1 that the former solicitors for the appellant were notified of various things from the Tribunal. This relates to the application before it was considered by the assessor and every opportunity again was given to the appellant to provide all of the material upon which he relied at that time, but, indeed, a further opportunity was provided to the appellant after the matter was assessed and prior to the determination by the Tribunal.
As far as procedural fairness is concerned, procedural fairness should, in any event, be adopted whether a matter is heard in chambers or by virtue of a desk determination, or in open Court. Indeed, it follows from the very nature of the role that the Tribunal has that the principles of procedural fairness should be carefully followed, but here, in my view, the principles of procedural fairness, and I am mindful of what fell from the Court of Appeal in Torrealba v District Court of NSW & Victims Compensation Corporation Fund,, have been adhered to by virtue of the appellant being given an opportunity to provide anything that the appellant wished to rely on before the matter was determined, and that includes a request on behalf of the appellant for the matter to be heard by way of a hearing pursuant to the provisions of the Act.
It was an opportunity provided to the appellant had the appellant sought to avail himself of that opportunity. At the end of the day the appellant, effectively, left it to the Tribunal to decide the matter on the evidence that the Tribunal had.
Accordingly, there is no denial of natural justice in not calling a hearing, having regard to the findings that were ultimately made about the appellant, the appellant having been given every opportunity beforehand.
I also note in finally disposing of the other ground of the appeal, that is, that the Tribunal erred in law in finding that it was a requirement that the appellant submit evidence when the rule only requires comprehensive description, that clearly is not a ground which has been made out.
I note that the Tribunal asserted: "In determining this appeal, while I will consider the Particulars given, any determination must be upon the evidence submitted not merely assertions made in the Particulars or otherwise. Awards are based upon evidence submitted, not mere assertions. The facts of the act of the violence do not establish compensable injuries of themselves". There is no error of law in that pronouncement.
I have taken the view, therefore, that the grounds of appeal relied upon by the appellant have not been made out. I accept, with respect, the submissions made on behalf of the respondent to that end.
Accordingly, it follows that the relief sought in the motion should be refused. I make the following orders: I decline to give leave as sought in the motion; the motion is dismissed.
I said earlier that I have some sympathy for this appellant, he having received the injuries that he did, but of course it was the appellant's appeal. He brought it, and it was vigorously pursued and I must say quite capably pursued on his behalf.
However, one would need to consider very special circumstances to depart from the position of costs normally following the event of a disposal of an action such as this. But in the circumstances it would seem to me that there in nothing which would warrant a departure from the rule. Accordingly costs should follow the event.
The appellant is to pay the respondent's costs of the motion as agreed or assessed. I assume the respondent, notwithstanding that order, will take into account the particular circumstances confronting this appellant. I would hope - I am not making this an order - I would hope that some sympathy will be extended to him in the circumstances.

oOo