Herbert v An Assessor (Victims of Crime Assistance Act) - [2022] NTSC 76

CITATION:Herbert v An Assessor (Victims of Crime Assistance Act) & Anor [2022] NTSC 76
PARTIES:HERBERT, Keandra

v

AN ASSESSOR UNDER s 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006

And

DIRECTOR, CRIME VICTIMS SERVICES UNIT

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-01512-SC
DELIVERED:  29 September 2022
HEARING DATE:  14 September 2022
JUDGMENT OF:  Brownhill J
CATCHWORDS:

CIVIL PROCEDURE – Application for leave to appeal final order of Northern Territory Civil and Administrative Tribunal – Appeal grounds made out – Tribunal made errors of law which resulted in loss to applicant of potential for significantly higher financial award – Need for judicial determination of proper construction of the Victims of Crime Assistance Regulations 2007 (NT) – Leave granted.
CIVIL PROCEDURE - Appeal of Tribunal decision on five grounds – Tribunal failed to apply correct construction of the term ‘with continuing disability’ – Tribunal did not consider whether the relevant injury was one ‘with continuing disability’ – Tribunal wrongly considered issue of contributory negligence – Tribunal failed to consider a statutory declaration from the applicant – Alternatively, the Tribunal failed to give adequate reasons for its decision – Grounds 1-4 made out – Whether Court should substitute its own decision or remit matter back to Tribunal – Court can conveniently and should substitute its decision rather than remit the matter to the Tribunal – Decision of the Tribunal set aside and Court’s decision substituted.

Booth v Assessor under s 24 of the Victims of Crime Assistance Act [2019] NTSC 89; Cheedy on behalf of the Yindjibarndi People v Western Australia [2010] FCA 690; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Decleah Investments Pty Ltd v Commissioner of Taxation [2018] FCA 717; Hill v Zuda (2022) 96 ALJR 540; Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; Nelson v Comcare [2009] FCA 1149; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527; Osland v Secretary, Department of Justice (2010) 241 CLR 320; Panegyres v Medical Board of Australia [2020] WASCA 58; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436T (No 2) [2021] VSCA 122; Victims Compensation Fund Corp v Brown (2003) 77 ALJR 1797; Young v Legal Profession Complaints Committee [2022] WASCA 52, referred to.

Northern Territory Civil and Administrative Tribunal Act 2014 (NT), ss 46, 105, 141
Victims of Crime Assistance Act 2006 (NT) ss 7, 10, 41
Victims of Crime Assistance Regulations 2007 (NT) rr 16, 18, Sch 3
REPRESENTATION:
Counsel:
Applicant/Appellant:                  J Wherrett
First Respondent:  No appearance
Second Respondent:                   T Cramp
Solicitors:
Applicant/Appellant:                  North Australian Aboriginal Justice Agency
Second Respondent:                   Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  Bro2210
Number of pages:  30

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Herbert v An Assessor (Victims of Crime Assistance Act) & Anor [2022]

NTSC 76

No. 2022-01512-SC

BETWEEN:

KEANDRA HERBERT

AND:
AN ASSESSOR UNDER s 24 OF THE VICTIMS OF CRIME ASSISTANCE ACT 2006

AND:

DIRECTOR, CRIME VICTIMS SERVICES UNIT

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 29 September 2022)

This application for leave to appeal and the appeal concern an entitlement to financial assistance under the Victims of Crime Assistance Act 2006 (NT) (‘Act’) for a compensable injury suffered by the applicant/appellant as the result of a criminal act. The principal issues are as to the proper construction of the term ‘with continuing disability’ in relation to an injury for which financial assistance is prescribed by the Victims of Crime Assistance Regulations 2007 (NT) (‘Regulations’) and whether this Court can and should substitute its own decision as to the entitlement of the applicant/appellant to compensation for that made by the Northern Territory Civil and Administrative Tribunal (‘Tribunal’), particularly as to whether the injury to the applicant/appellant fell within the term ‘with continuing disability’ and whether the applicant/appellant failed to take reasonable steps to mitigate the extent of that injury within the meaning of s 41(1)(c) of the Act.
Background
Given that I have determined to grant leave to appeal (see paragraph [24] below), I will refer to the applicant/appellant as the appellant.
The following matters are not in dispute.
On or about 9 June 2016, the appellant was the victim of a criminal act, namely an assault causing serious harm, at the hands of her husband. She sustained injuries as a result of that criminal act and was thereby eligible to apply for financial assistance pursuant to s 10 of the Act. The Act prescribes the standard amount of financial assistance as the award for a compensable injury in Part 2 of Schedule 3 of the Regulations (s 7; r 16). An injury described in Part 2 is a compensable injury (r 16(1)). The standard amount for a compensable injury is: (a) for an injury described in Part 2, the amount or an amount within the range specified opposite the injury; or (b) for another injury, the standard amount that may be awarded for the most similar compensable injury (r 16(3)).
The violent act comprised being hit by a large rock thrown by her husband to her left foot. The injury comprised Lisfranc fractures of the first three metatarsal bones in her foot. On 22 June 2016, the appellant underwent open reduction and internal fixation of the first and second metatarsal bones. She was discharged from hospital on 24 June 2016 and given an outpatient clinic appointment for a week’s time. Removal of the screws and plate in her foot was planned for three months after they were inserted.
The appellant did not attend at the outpatient clinic for that appointment. She did attend at her local health clinic and the Emergency Department at various times (see below), but did not attend for orthopaedic review at the times when appointments were made, and did not have the screws and plate removed three months after they were inserted, as was originally planned.
On 10 October 2017, an application for financial assistance under the Act was made on her behalf. The application sought financial assistance for (relevantly) ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ and ‘scarring (foot): serious disfigurement’. These are compensable injuries described in Part 2, Schedule 3 of the Regulations.
On 14 December 2017, the appellant attended the Emergency Department of the hospital and it was noted that the screws and plate were still in place in her foot. An x-ray report noted lucency around the screws and plate with retraction of one of the screws with soft tissue swelling.
On 20 August 2018, the appellant attended the Emergency Department of the hospital and it was noted that there was ‘chronic inflammation secondary to screws’.
On 26 March 2019, the appellant attended the Emergency Department of the hospital with pain in her left foot. An x-ray report noted that some of the screws were displacing.
On 11 April 2019, the appellant had surgery to remove the plate and some screws from her left foot. At least two screws were left in place due to bone overgrowth.
On 1 September 2021, the appellant was assessed by an occupational physician for the purposes of the application for financial assistance. After examination of the appellant and her medical records, the occupational physician reported that:
(a)The appellant reported pain in her left foot with walking and standing, which was constant and moderate. She reported that the pain disturbs her sleep. She reported intermittent swelling of the foot. She reported that she limps most of the time. She reported intermittent numbness of the left foot. Her walking tolerance was reported to be 1.5km.
(b)There was a 9cm surgical scar on the medial aspect of the dorsum of her left foot.
(c)There was some reduction in the left ankle range of movement, with differences between left and right ankles of 24 degrees in inversion, 2 degrees in eversion and 4 degrees in dorsiflexion.
(d)There was mild tenderness upon stressing the first three metatarsal bones.
(e)There was no evidence of failure to access adequate initial treatment impeding recovery.
(f)There was no minor disfigurement, so scarring did not apply.
(g)The appellant has ‘largely restored function’ and the occupational physician was ‘unable to establish continuing disability’ from his examination. Consequently, he considered the appropriate award was for ‘metatarsal bones: fracture of 1 foot (full recovery)’.
On 21 January 2022, on the basis of the occupational physician’s findings and opinions, the assessor determined that the appellant was entitled to the sum of $5,100 for ‘metatarsal bones: fracture of 1 foot (full recovery)’ and the sum of $780, being 30% of $2,600,[1] for ‘lower limbs: scarring: minor disfigurement’, yielding a total of $5,880.
The appellant applied to the Tribunal for a review of the assessor’s decision. The sole ground of the application was that the appellant’s foot injury should have been characterised as metatarsal bones: fracture of 1 foot ‘with continuing disability’ rather than ‘full recovery’. If characterised as the former, the amount of financial assistance would be $15,300.
The parties[2] made written submissions to the Tribunal. In response to the submissions of the appellant, and in addition to the submission that the appellant’s injury fell within ‘full recovery’ rather than ‘with continuing disability’, the second respondent submitted that any award at the higher level should be reduced pursuant to s 41(1)(c) of the Act, which provides (relevantly) that the assessor may reduce an award after taking into account whether the applicant failed to take reasonable steps to mitigate the extent of the injury, such as seeking appropriate medical advice or treatment, as soon as practicable after the violent act occurred. This submission was founded on the appellant weight bearing on her left foot, contrary to the post-surgery discharge instructions, and the appellant’s failure to attend appointments for orthopaedic review of the injury.
In response to that submission, the appellant provided a statutory declaration in which she stated that: (a) she did not walk on her foot while she had her cast on and used crutches all the time; (b) the reason she did not attend one of her appointments was because her husband threatened to break her other leg if she did; (c) the reason she did not go to other appointments was that her husband would break her phone and would not let her talk to anyone on her phone; and (d) she escaped from that relationship in 2019 and was able to go to her medical appointments to have the screws removed from her foot, but by then it was too late and she was told she had permanent nerve damage and all the screws could not be removed. The appellant’s written submissions in reply relied on this evidence in submitting that the Tribunal should not exercise the power to reduce the award in s 41(1)(c) of the Act.
On 7 June 2022, the Tribunal confirmed the assessor’s decision.
The Tribunal’s decision included the following:
The [second respondent] submits that as an occupational physician, [the occupational physician] is suitably qualified to provide an assessment of the [appellant’s] injury and ongoing disability, if any. The submission goes on to say the expert report is clear in its findings – ‘thorough and responsive’ and should be afforded the appropriate weight in coming to a conclusion on this matter.
I agree with the [second respondent]. The [appellant] has not sought to introduce her own evidence to counter the expert report and has made a mere ‘broad brush’ submission as to why it should not be accepted. I reject that submission.
Having reviewed all of the evidence that was before [the assessor] and taking into account the submissions of the [appellant] and the [second respondent], I am satisfied that the assessment was properly arrived at and I so order.
If I am wrong in my findings on review, I also note the aggravating circumstances in this matter that have not been addressed by the [appellant] – that being her failure to follow the post-operation instructions to not weight-bear on her left foot for 6 weeks and to reattend to have the screws in her foot removed 3 months after the operation. The applicant failed to follow either of those instructions.
There is evidence of on-going complaints of pain in the applicant’s foot as early as only a few days after the operation and then a number of further occasions where the applicant has admitted to aggravating the injury by her own actions. There is no evidence the injury was aggravated by further unlawful assault upon her.
Whilst there is no direct evidence filed by either party on this point, in my view it is reasonable to conclude on the balance of probabilities that any aggravation to the injury that may be considered to render it a ‘continuing disability’ lies with the applicant’s own actions (or inaction as the case may be).
Whilst there was significant submissions as to how the terms ‘continuing disability’ and ‘fully recovered’ should be interpreted in this matter as to a finding of fact, in my view the question becomes problematical as any higher amount of compensation I would have awarded should I have determined the injury was to be defined as ‘continuing disability’ would be reduced to at least the same amount awarded by the assessor on the basis of contributory negligence on the part of the applicant.
The appellant applied for leave to appeal to this Court from the Tribunal’s decision pursuant to s 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (‘NTCAT Act’). There were five grounds of appeal, all asserting the Tribunal erred in law, as follows:
(a)by failing to apply the correct construction of the term ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ in Part 2 of Schedule 3 of the Regulations (ground 1);
(b)by not applying itself to the question which the law prescribes, being whether the appellant’s injury is properly characterised as ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ within the meaning of Part 2 of Schedule 3 of the Regulations (ground 2);
(c)by asking the wrong question in purporting to reduce the amount of compensation available to the appellant by a test of ‘contributory negligence’, which does not appear in the Act, instead of considering whether or not to exercise the discretionary power to reduce any award of compensation pursuant to s 41(1)(c) of the Act by reference to the terms of the statutory test and the evidence before the Tribunal (ground 3);
(d)by failing to consider the appellant’s statutory declaration filed on 18 May 2022, and in doing so it failed to perform its statutory task, failed to afford procedural fairness to the appellant, failed to consider a material relevant consideration, and made a decision that is unreasonable or seriously irrational (ground 4); and
(e)by failing to discharge its duty to provide adequate reasons for its decision, in that the reasons do not include findings on material questions of fact and there is no consideration of the relevant legal tests (ground 5).

Relief sought

The relief sought by the appellant was that the Tribunal’s decision of 7 June 2022 be set aside, with the following consequential relief. The primary consequential relief sought was that this Court substitute its own decision for the decision of the Tribunal and award the appellant the sum of $16,080 by way of award under the Act. Alternatively, the consequential relief sought was that this Court substitute its own decision as to the entitlement of the appellant to the sum of $15,300 for ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ and remit to the Tribunal for determination the question of whether the award should be reduced pursuant to s 41(1)(c) of the Act. Alternatively, the consequential relief sought was that the matter be remitted to the Tribunal for reconsideration in accordance with recommendations.
Dispute on the appeal
At the hearing of the appeal, it was conceded by the second respondent[3] that leave to appeal should be granted and each of the five grounds of appeal was made out. However, despite embracing the appellant’s construction of the term ‘with continuing disability’, the second respondent did not concede that, as a matter of fact, the appellant’s injury fell within that term so construed. Nor did the second respondent concede that the appellant had not failed to take reasonable steps to mitigate the extent of her injury within s 41(1)(c) of the Act.
Given those matters in dispute, what was principally in issue was whether this Court should allow the appeal and simply remit those outstanding issues back to the Tribunal for determination, or whether this Court should allow the appeal and determine those outstanding issues itself, determine the amount of compensation to which the appellant is entitled, and substitute its decision for the Tribunal’s decision.
Grant of leave to appeal and determination of each ground of appeal
Before turning to that issue, I will record the Court’s determinations on the grant of leave to appeal and each of the grounds of appeal.
Leave to appeal is granted
Leave to appeal is granted because four of the five grounds of appeal are made out and it is in the interests of justice to grant leave. If the errors are not corrected, the appellant may suffer substantial injustice because she would potentially lose $10,200 in compensation. The parties also pressed a need for judicial determination of the proper construction of the term ‘with continuing disability’ in Part 2, Schedule 3 of the Regulations. There are no authorities that deal with the proper construction of this phrase in the Regulations.
Ground 1 – Failure to exercise its jurisdiction
In the performance of its review function under s 46 of the NTCAT Act, the Tribunal was to ‘stand in the shoes’ of the assessor and determine for itself, on the material before it, the decision which can and which it considers should be made in the exercise of the powers conferred on the assessor for the purpose of making the assessor’s decision.[4]
Consequently, the question for the Tribunal was whether the appellant’s injury to her foot fell within one or the other of ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ or ‘metatarsal bones: fracture of 1 foot (full recovery)’.
As the passages from the Tribunal’s reasons set out in paragraph [18] above make clear, the Tribunal simply relied on the opinion of the occupational physician, and expressly declined to consider how the terms ‘with continuing disability’ and ‘full recovery’ were to be construed. In doing so, the Tribunal failed to apply itself to the question to be decided and the statutory task it was required to perform, thereby erring in law.[5]
This ground of appeal is made out.
Ground 2 – Proper construction of ‘metatarsal bones: fracture of 1 foot (with continuing disability)’
The appellant argued that the term ‘with continuing disability’ in the Regulations is properly construed such that an injury will fall within that term if the victim suffers from some lack of physical ability, incapacity or restriction of their mobility as a result of their injury, and that exists at the time the assessment is made.

The appellant emphasised that the Regulations require an assessor to allocate a fracture of the metatarsal bones of one foot to one of the two categories, namely ‘full recovery’ or ‘with continuing disability’, and submitted that the term ‘with continuing disability’ contemplates any lack of physical ability, incapacity or restriction of mobility resulting from the injury existing at the time of the assessment because:
(a)it must be contrasted with the term ‘full recovery’, which in its ordinary meaning requires a complete, entire or maximum return to the physical ability, capacity and mobility the victim had before the injury;
(b)it must be contrasted with other injuries which specify the degree of impairment or disability existing at the time of the assessment; and
(c)it must be contrasted with other injuries which specify the period for which the impairment or disability must have existed at the time of the assessment.
The second respondent accepted this to be the proper construction of the term ‘with continuing disability’.
In its ordinary meaning, the word ‘disability’ means a lack of competent power, strength or physical or mental ability; incapacity; a condition which restricts a person’s mental or sensory processes, or their mobility.[6] Hence, a ‘continuing disability’ is a disability that is ongoing, existing, enduring or persisting at a particular point in time.
Generally speaking, in Part 2 of Schedule 3 of the Regulations, most bone fractures and all dislocations are divided into ‘full recovery’ or ‘with continuing disability’. Some bone fractures are not so divided (e.g. big toe/s, collarbone/s, tail bone, hip, pelvis, rib/s, shoulder blade/s and breastbone). Damage to tendons is also divided in this way, but these are also divided into ‘minor damage’, ‘moderate damage’ and ‘severe damage’. Sprains and strains are divided into ‘disabling’, and in some cases also ‘seriously disabling’, for specified periods of time. Similarly, diseases or medical illnesses causing disability (other than of the mind), temporary partial deafness, blurred or double vision, and temporary facial numbness or loss of feeling are divided into specified periods of time. Burns are divided into ‘minor’, ‘moderate’ or ‘severe’, and scarring is divided into ‘minor disfigurement’, ‘significant disfigurement’ and ‘serious disfigurement’. Some injuries are also divided by reference to whether the condition is ‘permanent’ (e.g. brain damage, tinnitus, and ‘tongue: loss of speech’).
These varying ways of categorising injuries, with the failures to specify any degree or period of disability, and the expressed contrast to a fracture with ‘full recovery’, do support the construction of ‘with continuing disability’ pressed by the appellant and accepted by the second respondent.
The appellant’s construction does have the consequence that the timing of an application for compensation under the Act could affect whether the injury is categorised as one of ‘full recovery’ or one ‘with continuing disability’ because recovery from some injuries may take longer than others and an applicant may have a lack of physical ability, incapacity or restriction of mobility resulting from the injury at the time the assessment is made, but may achieve full recovery at some time later. Arguably, the reverse might be said because the effects of some injuries may deteriorate over time and an applicant may have no disability at the time the assessment is made, but may suffer a deterioration at some time later.
There is no express requirement in the Act or the Regulations for an injury to have stabilised or resolved before an application or an assessment is made. That kind of issue does not arise in this case.
Leaving that aside, on the basis of the contextual matters referred to in paragraphs [32] to [34] above, there is no warrant for implying into the term ‘with continuing disability’ any minimum level of disability or any minimum period across which that disability is to have continued. To do so would be to construe the Regulations restrictively.[7]
I accept, therefore, that the proper construction of the term ‘with continuing disability’ in the Regulations is that an injury will fall within that term if the victim suffers from some lack of physical ability, incapacity or restriction of their mobility as a result of their injury, and that exists at the time the assessment is made. Such physical inability, incapacity or restriction of mobility would include limitations or restrictions on the physical abilities and capacities of the affected body part or the person’s mobility generally, and pain associated with the physical abilities and capacities of the affected body part or the person’s mobility generally.
As set out above in relation to ground 1, the Tribunal did not apply the proper construction of the term ‘with continuing disability’ to the appellant’s application and thereby erred in law.
This ground of appeal is made out.
Ground 3 – Application of a test of contributory negligence
As appears from the passages from the Tribunal’s reasons set out in paragraph [18] above, the Tribunal found that the appellant failed to follow the post-operative instructions not to weight bear on her left foot and to re-attend to have the screws removed, describing these as ‘aggravating circumstances’, found there were a number of occasions where the appellant ‘admitted to aggravating the injury by her own actions’, found that ‘any aggravation to the injury’ that might render it a ‘continuing disability’ lies with the appellant’s own actions or inaction, and concluded that any award for the injury characterised as ‘with continuing disability’ would be reduced to at least the amount awarded by the assessor ‘on the basis of contributory negligence’ on the part of the appellant.
The appellant argued that the Tribunal applied a test of contributory negligence to the application and thereby asked itself the wrong question, which saw the Tribunal exercise a power it did not have and make a decision it did not have the statutory authority to make.[8] The second respondent effectively accepted that characterisation of the Tribunal’s decision making.
Section 41(1)(c) of the Act provides that an assessor may reduce an award after taking into account whether the applicant failed to take reasonable steps to mitigate the extent of the injury, such as seeking appropriate medical advice or treatment, as soon as practicable after the violent act occurred. Section 41(2) of the Act provides that any reduction must be of an amount the assessor considers reasonable in the circumstances. The Tribunal’s reasons do not refer to s 41. Nor do they refer to the language of that section, specifically to the appellant’s failure to take reasonable steps to mitigate the extent of the injury. They refer to the appellant ‘aggravating’ the injury by her actions or inaction. They refer to a reduction to the award ‘on the basis of contributory negligence’ on the part of the appellant. There is no reference in the Act or the Regulations to contributory negligence.
Generally speaking, ‘contributory negligence’ refers to a failure by a plaintiff to take reasonable care for his or her own safety that contributes to his or her injury.[9] In claims for ‘wrongs’ (such as a claim for damages in the tort of negligence), the damages recoverable in respect of the wrong are to be reduced to the extent the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage, where a person suffers damage as the result partly of the person’s failure to take reasonable care and partly of the wrong of another person.[10]
While there may be some similarities, an application under the Act is not a claim for damages, in tort or otherwise, and s 41 of the Act does not raise the question of contributory negligence. The Tribunal asked itself the wrong question and exceeded its powers under the Act.
This ground of appeal is made out.
Ground 4 – Failure to consider appellant’s statutory declaration
As is clear from the passages from the Tribunal’s reasons set out in paragraph [18] above, the Tribunal made no reference to the appellant’s statutory declaration referred to in paragraph [15] above and expressly stated the appellant did not introduce her own evidence to counter the report of the occupational physician. The Tribunal clearly did not consider or take the statutory declaration into account, or the appellant’s submissions in reply making reference to it. The statutory declaration was clearly relevant and an important response to the second respondent’s submission that, if the appellant’s injury was found to be ‘with continuing disability’, the award should be reduced pursuant to s 41 of the Act.
The appellant argued that the Tribunal’s failure to take the statutory declaration into account was an error of law.[11] The second respondent conceded that it was. I agree. While the admission of the statutory declaration was a matter for the Tribunal’s discretion pursuant to s 46(2)(b) of the NTCAT Act, there was no objection to its admission by the second respondent and there is no suggestion that the Tribunal considered whether to admit the statutory declaration or not. It appears simply to have been overlooked.
This ground of appeal is made out.
Ground 5 – Failure to provide adequate reasons
By s 105(2) of the NTCAT Act, the Tribunal must provide reasons for its decisions and any relevant findings of fact in writing. Section 105(3) provides that the validity of the Tribunal’s decision is not affected merely because of a failure to comply with s 105(2).
It was not disputed by the second respondent that a failure to comply with s 105(2) can constitute an error of law which enlivens this Court’s review jurisdiction. Nor was it disputed that the Tribunal’s reasons were inadequate.
This ground was pressed in the alternative to the four other grounds of appeal to the extent there was any doubt about the existence of any of the errors asserted under those other grounds. Given that each of the four other grounds of appeal have been made out, it is unnecessary to address this ground of appeal further.
Determination of factual issues on an appeal on a question of law
Having found that four of the five grounds of appeal have been made out, it is now necessary to determine whether this Court should substitute its decision (whether in whole or in part) for the Tribunal’s decision, or should remit the matter (whether in whole or in part) to the Tribunal for determination.
The second respondent relied on the decision of Grant CJ in Booth v Assessor under s 24 of the Victims of Crime Assistance Act [2019] NTSC 89, where his Honour held (at [34]) that, in an appeal under s 141 of the NTCAT Act, before any intervention is made, this Court must be satisfied that there has been an error of law such as to vitiate the decision below. Further:
While this Court may substitute its own decision in that event, that does not require or authorise this Court to make findings of fact or to determine questions of mixed fact and law. The Court will only substitute its own decision in circumstances where the correct answer to the question of law is of itself determinative of the matter.
The appellant relied on the decision of the High Court in Osland v Secretary, Department of Justice (2010) 241 CLR 320, where French CJ, Gummow and Bell JJ were considering the jurisdiction and powers of the Victorian Court of Appeal[12] in an appeal from an order of the Victorian Civil and Administrative Tribunal. The order related to the provision of documents under freedom of information legislation. The statutory provision about appeals from the Tribunal was relevantly in the same terms as s 141 of the NTCAT Act. French CJ, Gummow and Bell JJ held (at [19]), applicable to the Victorian legislation, the observation that, wide as the power to make substitutive orders may be, the Court should not usurp the fact-finding function of the Tribunal. Their Honours held (at [20]) that the Court ‘may’ make substitutive orders where ‘only one conclusion is open on the correct application of the law to the facts found by the Tribunal’, which case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. Their Honours also held that the language of the provision was wide enough to allow the Court to make substitutive orders in other circumstances, but its powers must be exercised having regard to the limited nature of the appeal, otherwise a question of law would open the door to an appeal by way of rehearing. Their Honours then said:
Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.
Thus, the plurality of the High Court observed that, on an appeal on a question of law, and assuming an error of law is found, the Court may (that is, in its discretion) make a substitutive order where: (i) only one conclusion is open and no other conclusion could reasonably be entertained on the correct application of the law to the facts found by the Tribunal; or (ii) there is a factual matter to be determined and it can be conveniently determined upon uncontested evidence or primary facts already found by the Tribunal. On the other hand, where the outstanding issue involves the formation of an opinion which is essentially a factual, evaluative and ministerial judgement, the matter should ordinarily be remitted to the Tribunal.
In Young v Legal Profession Complaints Committee [2022] WASCA 52 at [313] per Buss P (Quinlan CJ and Beech JA agreeing), these observations were said by the Court to permit findings of fact and the exercise of discretion based on primary findings of fact already found by a Tribunal or upon undisputed evidence (so that a further hearing to find facts is unnecessary), where the Court is in as good a position as the Tribunal (including having regard to its status as a specialist tribunal) to making the findings and exercising the discretion, and doing those things would achieve a convenient disposition of the matter and avoid the expense and inconvenience of remitting the matter back to the Tribunal.[13]
I note that the Chief Justice in Booth did not refer to the decision in Osland. To the extent that his Honour’s observation about the Court not being authorised to make findings of fact or determine mixed questions of fact and law is inconsistent with those made in Osland, I consider that I must follow the observations of the plurality of the High Court in Osland, which are, if not seriously considered dicta,[14] at least highly persuasive.
The appellant argued that both the determination of whether the appellant’s injury fell within the term ‘with continuing disability’ and the determination of whether the appellant had failed to take reasonable steps to mitigate the extent of her injury were matters that could conveniently be determined upon uncontested evidence.
Categorisation of the appellant’s left foot injury
The appellant argued that this Court can conveniently determine, on uncontested evidence, that the appellant’s injury to her left foot falls within the injury ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ in Part 2 of Schedule 3 of the Regulations.
The observations set out in the occupational physician’s report referred to in paragraphs [12](a) and (c) above indicate that, on 1 September 2021, the appellant reported pain in her left foot with walking and standing, which was constant and moderate and which disturbed her sleep, intermittent swelling and numbness of the foot, that she limps most of the time and her walking tolerance was 1.5km, and that the occupational physician observed reduced range of movement in the ankle and mild tenderness upon stressing the metatarsal bones. The occupational physician observed that she had ‘largely restored function’.
The second respondent argued that these matters did not permit a finding that the appellant’s left foot injury was one ‘with continuing disability’ because the occupational physician had concluded it was not.
I reject that submission. The occupational physician’s opinion on this point is not determinative. It is obvious from the reference to ‘largely restored function’ that the occupational physician was not applying the proper construction of the term ‘with continuing disability’ as set out in paragraph [38] above.
The occupational physician’s observations (as distinct from his opinion on this point) in his report are uncontested. Consequently, this Court can conveniently find, on that uncontested evidence, the facts set out in paragraph [61] above. I so find. Further, on the basis of those facts and the proper construction of the phrase set out above, this Court can conveniently determine that the appellant’s injury to her left foot falls within the injury ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ in Part 2 of Schedule 3 of the Regulations.
Reduction of the award under s 41(1)(c) of the Act
The appellant argued that this Court can conveniently determine, on uncontested evidence, that the appellant did not fail to take reasonable steps to mitigate the extent of the injury to her left foot within the meaning of s 41(1)(c) of the Act. The appellant argued that the appellant’s statutory declaration was ‘uncontested evidence’ as contemplated by the decision in Osland as set out in paragraph [55] above.
The second respondent argued that the appellant’s statutory declaration did not comprise ‘uncontested evidence’ as there were matters within it that were inconsistent with other evidence before the Tribunal. The second respondent submitted that the Tribunal should make the necessary factual findings and determine this matter, including by way of an oral hearing if necessary, given the inconsistencies between the statutory declaration and the other evidence.
One of the matters relied on by the second respondent before the Tribunal was the appellant’s failure to follow the post-surgery discharge instructions not to weight bear on her left foot for six weeks. In the statutory declaration, the appellant said that, after her injury, she was using crutches all the time, she could not walk without crutches and she did not walk on her injured foot while she had her cast on. However, a record of the appellant’s presentation to the Yuendumu Community Health Centre on 6 July 2016 (two weeks after the surgery) noted that the appellant was not using crutches because they hurt her underarms, so she had been weight bearing. After a consultation with a medical officer, the appellant was advised by a nurse to ‘use crutches when able’.
One of the matters relied upon by the second respondent before the Tribunal was the appellant’s failure to attend appointments for orthopaedic review of her injury, including on 29 June 2016 in Alice Springs and on 21 December 2017 in Darwin. Reference was made to the appellant attending the Alice Springs Hospital on 26 June 2016 and being reminded about her appointment on 29 June 2016. In the statutory declaration, the appellant referred to appointments in 2018 and 2021. By reference to the dates shown in the medical records, it was accepted by the parties that the references to 2021 should have been references to 2017. The appellant said that, in December 2017 and 2018, she was still with her husband. At times, including 2018, he was jealous of her talking to anyone or going to appointments, and he would break her phone if she talked to anyone. In 2017, he told her that if she stayed in Darwin to go to an appointment on 21 December 2017, he would break her other leg. The appellant said that she escaped from that relationship in 2019 and was able to go to an appointment then to have the screws removed. However, in October 2017, the appellant’s solicitor stated their instructions were that the appellant was no longer in a relationship with her husband and, in September 2021, the appellant told the occupational physician that she broke up with her husband in 2018. Further, the medical records show that the appellant attended the Emergency Department at the Alice Springs Hospital on 26 June 2016 (to check if the plaster on her foot was affected after it had gotten wet), 2 July 2016 (after her cousin had stood on her left foot), 14 December 2017 (after she had a fight with her cousin and fell on or twisted her left foot), at the Royal Darwin Hospital on 20 August 2018 (for pain in her left foot) and at the Alice Springs Hospital on 26 March 2019 (for pain in her left foot after it was caught on the ground whilst walking down a hill). She had surgery to remove the plate and some screws from her left foot on 11 April 2019, with two screws left in place due to bone overgrowth.

The appellant argued that the statutory declaration was ‘uncontested evidence’ because there was no request to the Tribunal for an oral hearing to cross-examine the appellant about inconsistencies between her statutory declaration and other evidence, and no submissions were made, or sought to be made, to the Tribunal after the statutory declaration was provided addressing those inconsistencies. In response to the statutory declaration, the second respondent simply informed the Tribunal by letter that it did not object to the admission of the statutory declaration save that: (a) the medical records showed the appointment referred to was in 2017 not 2021; (b) there was no reference in the medical records to permanent nerve damage; and (c) she told the occupational physician that her walking tolerance was 1.5km, not 1km.
By the second respondent’s submissions, the appellant’s statutory declaration is contested in this appeal. However, save in the three limited respects set out in paragraph [69] above, it was uncontested evidence in the Tribunal. Those three limited respects do not bear on this Court’s capacity to make the necessary factual findings about this issue. Further, the appellant’s injury was sustained on 10 June 2016 (over six years ago) and her application for compensation under the Act was made on 3 October 2017 (almost five years ago). This Court is in as good a position as the Tribunal (which is not a specialist tribunal) to make the findings and determine this issue, and doing those things would achieve a convenient disposition of the matter and avoid the expense and inconvenience of remitting the matter back to the Tribunal. I consider that, on the basis of the uncontested evidence before the Tribunal, including the statutory declaration and the medical records referred to by the second respondent in its submissions in this Court, this Court can and should do so, in order to ensure that a further hearing to find facts is unnecessary.
As to the submission that the appellant failed to follow medical advice not to weight bear in the first six weeks following surgery, I find that the appellant did weight bear in the first two weeks after her surgery, but did so because using crutches hurt her arms. I find that, in the face of her difficulty with crutches, she was given medical advice to use the crutches when she was able. That medical advice indicates that weight bearing would not have had any significant impact on the extent of her injury. There is no evidence as to how often or to what degree she did weight bear and there is no evidence that weight bearing had any impact on the extent of her injury or, if it did, what impact. On the basis of those findings, I conclude that the appellant’s failure to weight bear was not a failure to take reasonable steps to mitigate the extent of the injury.
As to the submission that the appellant failed to attend appointments for orthopaedic review, I find that the appellant did fail to attend the appointments on 29 June 2016 and 21 December 2017. However, I find that, on those occasions she was in a relationship with a controlling, abusive and violent husband who, from time to time, did not want the appellant to attend hospital, made it extremely difficult for her to do so and, at least on one occasion, threatened her with physical harm if she went. I also find that, during the latter part of 2017 and subsequently until some time in 2019, she was in a relationship which might be characterised as ‘on-again, off-again’, in which her husband’s attitudes and actions continued to impact on her ability to attend the hospital at pre-appointed times. While she was able to attend at the Emergency Department on five occasions across the course of three years, that does not, to my mind, preclude the finding, on the balance of probabilities, that she faced substantial difficulties in attending appointments, including the threat of physical harm if she did so. On the basis of those findings, I conclude that the appellant’s failure to attend appointments for orthopaedic review was not a failure to take reasonable steps to mitigate the extent of the injury.
Disposition
Leave to appeal is granted.
The appeal is allowed.
The decision of the Tribunal of 7 June 2022 is set aside.
In substitution for the Tribunal’s decision, this Court finds that the appellant is entitled to financial assistance of $15,300 for the injury of ‘metatarsal bones: fracture of 1 foot (with continuing disability)’ and of $780 for the injury of ‘lower limbs: scarring: minor disfigurement’, giving a total of $16,080.
I will hear the parties as to costs.
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[1] By r 18(1) of the Regulations, where a victim has suffered more than one injury as a result of the same violent act, they are entitled to the full amount for the most serious injury and 30% of the full amount for the second most serious injury.

[2] In the Tribunal, the first respondent took no active role and the second respondent was joined as an intervenor.

[3] In these appeal proceedings, the first respondent took no active role.

[4] See Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 at [50] per the Court regarding the functions of the Commonwealth Administrative Appeals Tribunal, which performs similar functions to the NTCAT.

[5] See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] per Gaudron J (citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31]), applied in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 at [169] per Bromberg, Katzmann and O’Callaghan JJ and cited with approval in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [41] per Callinan and Heydon JJ.

[6] Macquarie Dictionary (online).

[7] See Victims Compensation Fund Corp v Brown (2003) 77 ALJR 1797 at [33] per Heydon J (McHugh ACJ, Gummow, Kirby and Hayne JJ agreeing).

[8] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ.

[9] See Sappideen C and Vines P (eds), Fleming’s The Law of Torts (10^th ed, Lawbook Co, 2011) at [12.30].

[10] See Law Reform (Miscellaneous Provisions) Act 1956 (NT), ss 15 and 16.

[11] Citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Decleah Investments Pty Ltd v Commissioner of Taxation [2018] FCA 717 at [29] per Steward J; Cheedy on behalf of the Yindjibarndi People v Western Australia [2010] FCA 690 at [24] per McKerracher J; Nelson v Comcare [2009] FCA 1149 at [50] per Foster J; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [31] per Kenny, Griffiths and Mortimer JJ.

[12] The appeal was to the Victorian Court of Appeal rather than the Victorian Supreme Court because the Tribunal had been constituted by the President and the statute provided that, in such a case, the appeal was to be to the Court of Appeal.

[13] See also, for example, Panegyres v Medical Board of Australia [2020] WASCA 58 at [85]-[88] per Buss P and Murphy JA; Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436T (No 2) [2021] VSCA 122 at [6] per Beach and Osborn JJA, Stynes AJA.

[14] See Hill v Zuda (2022) 96 ALJR 540 at [25] per the Court.