JM v Victims Compensation Fund Corporation

[2009] NSWSC 1300

CITATION:

JM v Victims Compensation Fund Corporation [2009] NSWSC 1300
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

19 August 2009

 
JUDGMENT DATE : 

2 December 2009

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(i) That applications 79590, 131810, 131811, 131812, 131814, 131815, 131816 before the Victims Compensation Tribunal, being applications by JM, be removed into this Court;

(ii) That the decision of the Victims Compensation Tribunal in the aforesaid matters, made on 2 October 2008, be quashed;

(iii) That the further hearing of the said proceedings be remitted to the Victims Compensation Tribunal, to be heard in accordance with law;

(iv) That the first defendant pay the plaintiff’s costs, of and incidental to these proceedings;

(v) Otherwise, the proceedings in this Court be dismissed.

CATCHWORDS:	ADMINISTRATIVE LAW – Victims Compensation Tribunal – error of law – orders in the nature of certiorari – 'related acts' for purpose of definition of 'act of violence' – irrationality – sufficiency of reasons – orders issued
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CATEGORY:	Principal judgment
CASES CITED:	Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 Director-General of the Attorney-General's Department v District Court of New South Wales & Stark (1993) 32 NSWLR 409; (1993) 69 A Crim R 324 Kruger v The Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 McErlain v Victims Compensation Fund Corporation (District Court of New South Wales, 30 August 1996, unreported) Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 MJW v Victims Compensation Fund Corporation (District Court of New South Wales, 18 November 1997, unreported) Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v C (Supreme Court of New South Wales, Hunt J, 5 March 1982, unreported) Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; (2003) 77 ALJR 1797 Victims Compensation Fund Corporation v GM [2004] NSWCA 185; (2004) 60 NSWLR 310
PARTIES:	JM (Plaintiff) Victims Compensation Fund Corporation (First Defendant) Victims Compensation Tribunal (Second Defendant)
FILE NUMBER(S):	SC 30033/2009
COUNSEL:	R Beech-Jones SC / R Graycar (Plaintiff) C Spruce (First Defendant) Submitting Appearanec (Second Defendant)
SOLICITORS:	Women's Legal Services NSW (Plaintiff) Crown Solicitor's Office (Defendants)

LOWER COURT JURISDICTION:	Victims Compensation Tribunal
LOWER COURT DATE OF DECISION:	2 October 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

2 DECEMBER 2009

30033/2009 JM v Victims Compensation Fund Corporation

JUDGMENT

1 HIS HONOUR: JM, the plaintiff, seeks judicial review of a decision of the Victims Compensation Tribunal (“the Tribunal”) on the basis that the Tribunal wrongly considered (which mistake involved an error of law on the face of the record) that she was eligible for compensation on the basis of one act of violence, as defined in the Victims Support and Rehabilitation Act 1996 (“the Act”). The Act defines related acts of violence as one act of violence for the purpose of compensation.

2 JM was placed in foster care between 1974 and 1984. She was 5 years of age in 1974 and she remained there until she was 16 years of age. During that time, she was sexually assaulted, on average, once per week. The offender, who perpetrated these rapes, was the son-in-law of her foster parents and worked at the premises in which she was placed. Mr Colin Gibson, the aforementioned perpetrator, was convicted of three counts of sexual assault and acquitted of two other charges. The Tribunal, most appropriately, submits to any order of the Court, save as to an order for costs. The Victims Compensation Fund Corporation (“the Fund”), represented by the Crown Solicitor, submits that JM should be entitled to only one amount of compensation, notwithstanding that there were approximately 500 rapes perpetrated, and, it is said, that this result arises from the proper construction of the Act. It should be pointed out that JM does not claim 500 awards of compensation. Nor does she rely on each rape for an award. JM has nominated five individual exemplar offences and two sets of offences and seeks compensation for each of the seven nominated acts. Each set of offences is, itself, said to be an act of violence that comprises a number of related acts of violence.

3 The foregoing summary of the issues is not expressed as a criticism of the Fund. Those responsible for the Fund, necessarily, must ensure that expenditures from the Fund occur only in accordance with the Act. JM submits that the Tribunal’s decision involves error of law in the interpretation of the meaning of the phrase “related acts”; that the Tribunal’s conclusion discloses illogicality and irrationality of a kind that amounts to error of law; and, that the Tribunal failed to give any or any adequate reasons for its conclusion.

Legislation and Applications by JM

4 The most relevant provision is s 5 of the Act, which defines the term “act of violence” in the following terms:

“ 5 Act of violence
(1) In this Act, ‘act of violence’ means an act or series of related acts, 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 involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
(1A) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.
(2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary).
(3) 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 or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other.
However, an act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made.
(4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.”

5 Section 6 of the Act renders, relevantly, a primary victim of an act of violence eligible for statutory compensation. Section 7 of the Act defines a primary victim of an act of violence as a person who receives a compensable injury. Section 10 of the Act sets out that there is a schedule of compensable injuries (Schedule 1), and s 11 requires an applicant for compensation to elect between a claim for damages applicable to a particular injury, or a claim for damages arising from a particular kind of offence.

6 Further, s 23 of the Act disentitles a person from receiving more than one award of statutory compensation in respect of the same act of violence. As a consequence of the provisions of the Act, an applicant for compensation is not eligible to receive more than one award of statutory compensation for the same act of violence, and may not receive more than one award of compensation from one application. The applicant for compensation may, however, be entitled to receive one award of compensation from one application, which award of compensation is the sum of amounts of compensation for a number of acts of violence: see generally Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724.

7 As a consequence of the foregoing, if all of the acts were treated as one act of violence, because it is said they are related, an applicant for compensation would be entitled only to one award of compensation for that one act of violence (which is, in fact, a number of acts that are related). On the other hand, if the Tribunal were not to hold that each of the acts was related, then a separate amount of compensation would be available for each of the acts. Of course, these alternatives do not cover all of the possibilities. If there were, for example, 10 separate acts, the Tribunal may determine that there are 4 acts of violence, by determining that 2 separate sets of 3 are related acts, and 2 separate sets of 2 acts are related, or any other combination thereof. As earlier stated, there can be any number of permutations of findings as to whether a number of separately identified acts are, or are not, related.

8 JM first applied for victim’s compensation in 2001, when represented by another firm of solicitors and, after instructing her current solicitors (Women’s Legal Services NSW), she amended her claim for compensation by making six further separate and additional claims for compensation relating to the sexual assaults. These seven claims were summarised by the assessor, in the following terms:

“ Application number 131810
Around 1974 when [JM] was five years old she was sexually assaulted by the son-in-law of her foster parent. The offender had penile sexual intercourse with the child. The assault took place at a pump house near the river on the Brewarrina Mission. [JM] claims compensation for a Category 2 Sexual Assault.

Application number 131811
About one week after the assault at the pump house it is alleged that the same person coerced [JM] to submit to penile-vaginal intercourse in a bedroom at the foster home. The offender also indecently assaulted the applicant by touching her breasts. [JM] claims compensation for a Category 3 Sexual Assault.

Application number 131812
Sometime in 1974 the offender coerced the applicant to submit to penile-vaginal intercourse. The assault took place in the laundry of the foster home. [JM] claims compensation for a Category 2 Sexual Assault.

Application number 131814
Sometime in 1975 the offender coerced the applicant to submit to penile-vaginal intercourse. He also indecently assaulted her by touching her bottom and breasts. The assault took place in a linen closet at the foster home. [JM] claims compensation for a Category 3 Sexual Assault.

Application number 131815
Sometime in 1982, the offender had penile-vaginal intercourse with [JM] in the shower at the foster home. She would have been 13 years old at the time. [JM] claims compensation for a Category 2 Sexual Assault.

Application number 79590 (the initial application covering all of the acts of violence)
By a process of elimination the application is now limited to allegations of sexual assaults taking place between 1974 and 1984 after Sunday school. [JM] claims compensation for a Category 3 Sexual Assault.

Application number 131816
Between 1981-1982 when the applicant was about 13 years old the offender penetrated her vagina with his finders. The assault took place in the swimming pool. [JM] claims compensation for a Category 2 Sexual Assault.”

9 The foregoing summary concentrates on the offences that were committed, rather than the injury that arose therefrom. Compensation under the Act is, of course, not payable unless an offence has been committed (or apparently committed), and the offence involved violent conduct. However, those two factors are insufficient, of themselves, to constitute an “act of violence”. In order for there to be an act of violence, the victim of the violent conduct must have suffered “injury or death”: see s 5(1)(c) of the Act.

10 As the Court of Appeal has pointed out, the mere fact that there has been violent conduct, and that one episode of violent conduct is related to another, does not involve the conclusion that the related incidents of violent conduct are one or more “acts of violence”, as defined in the Act: see Victims Compensation Fund Corporation v GM [2004] NSWCA 185; (2004) 60 NSWLR 310; (2004) A Crim R 301. While the provisions of s 5(2) of the Act “extend” the term of violent conduct to sexual assault and domestic violence, that deals only with the requirements of s 5(1)(b) of the Act, but not the requirement in paragraph (c) of that subsection. It is difficult to understand how one could describe either sexual assault or domestic violence as other than “violent conduct”, but the subsection clarifies the situation and puts beyond argument propositions that may arise from such examples as “consensual” sex with an underage person. Nevertheless, the occasioning of an injury is a necessary precondition to the finding of an “act of violence” and, therefore, to a grant of compensation.

11 The difficulty, and confusion, arises because of the conceptual inter-mixture that occurs in the case of domestic violence and sexual assault. The earlier-stated analysis of the Act draws the distinction in the schedule of compensation, between the amounts payable for certain injuries, and the amounts payable for certain kinds of sexual assault and/or domestic violence.

12 Section 10 of the Act refers to Schedule 1, the “schedule of compensable injuries” (“the Schedule”), and describes the Schedule as specifying “those injuries that are compensable injuries for the purposes of this Act.” The provisions of s 11 of the Act require an election, either by the claimant or the Tribunal, between different amounts that are payable and, by subsection (1), allows the Schedule to apply so that compensation is allowed either for an injury suffered, or, for a specified act of violence (if there be one). Thus, where the Schedule refers to sexual assault or domestic violence (clauses 6 and 7A respectively), it still refers to “compensable injury”. The term “compensable injuries” is not a term defined, independently, in the Act, but rather prescribed in column 1 of the Schedule. Column 1 of the schedule lists, as one would expect, a series of injuries that are, by virtue of their listing, compensable. However, Column 1 of the schedule lists “sexual assault” as a compensable injury. Yet the Dictionary to the Act defines “injury” to mean “actual physical bodily harm” or “psychological or psychiatric harm”.

13 Were I not constrained by authority, it would seem more than arguable that the provisions of s 10 of the Act extend the ordinary meaning of injury (notwithstanding the terms of the Dictionary) to include all sexual assault, because sexual assault is listed in Column 1 of the Schedule and is therefore “an injury that is a compensable injury for the purposes of this Act” (paraphrasing the terms of s 10(2) of the Act). However, I am constrained by authority.

14 The Court of Appeal has determined that, in order for sexual assault to be compensable, it must have been the cause of an “injury” as defined in the Dictionary to the Act: see GM, supra.

15 The judgment in GM is relevant for other purposes in these proceedings. Submissions on the meaning of the term “related acts of violence” involve the difference between the parties as to the purpose of the Act and the construction of its terms. The Fund relied upon the judgment in GM, dealing with the statutory framework of the Act, or its predecessor. The reasons for judgment of McColl JA, with which Mason P and Ipp JA agreed, cite, in support of the construction to be given to the Act, the Second Reading Speech, Parliamentary Debate, Legislative Assembly, 15 May 1996. The Second Reading Speech by the then Attorney General (J.W. Shaw QC MLC) contained (at p 974) the following passage:

“‘Given that victims compensation payments are largely financed from consolidated revenue, the Government has a clear responsibility to ensure that the scheme remains financially viable and that future compensation payments do not cause an unaffordable drain on public funds. The Government is equally committed to ensuring that genuine victims seriously injured by the violent criminal conduct of offenders have ready access to a fair, equitable and efficient victims compensation scheme.

The reforms proposed by the Government ... represent a major overhaul of the scheme as it currently operates. The principal aims to be achieved by the reforms are ... to ensure that awards of compensation are directed towards those victims suffering the most serious injuries; and to address the escalating costs of the scheme such that the genuine needs of victims are met at a reasonable cost to the community. ... The Government has acted ... to tighten the definition of ‘act of violence’ to make clear that the scheme applies only when injury results from a violent criminal act.’ (emphasis supplied).”

16 The Court of Appeal in GM also referred to the passage in the Second Reading Speech (at p 975-976) in the following terms:

“‘Victims of crime and the community have a right to expect that victims compensation awards be consistent and equitable. The Government considers that this can most appropriately be achieved by standardising the amounts to be awarded for similar injuries. The reform proposal provides for compensation for injury to be determined according to a comprehensive injury and award schedule. An applicant will receive an award based on the severity of the injury suffered. The schedule of awards published in the Bill lists specific categories of injuries to which are assigned specific award amounts. The injury schedule makes special provision for certain categories of sexual assault, where a range of minimum and maximum awards will apply. Categories of sexual assault have been specifically identified in the schedule, in addition to the injury categories, to recognise the particular needs of this group of victims. A victim of sexual assault claiming compensation either may choose to claim under a relevant sexual assault category or may instead elect to claim for other relevant injuries listed in the schedule. The schedule is structured to ensure that compensation is directed towards those victims suffering the most serious injuries. The award amounts proposed in the injury schedule also give greater recognition to the length of time an injury may be suffered and to those injuries where there is continuing disability ... The Government considers that the injury schedule provides a fair and consistent basis for comparing the severity of different injuries, as well as providing an equitable basis for providing for the competing needs of victims.’ (emphasis supplied).”

17 The difficulty with the reliance by the Court of Appeal on the passages in the Second Reading Speech of 15 May 1996, is that the Bill, in support of which those speeches were made, was not promulgated in the form then proposed. On 21 November 1996, a series of amendments to the Bill were proposed, and accepted by the Government, and the Government also made further amendments. One of those amendments (Hansard p 6391), moved by the then Attorney General, altered the definition of “related act” as it was originally proposed in the Bill, in respect of which the foregoing Second Reading Speeches were delivered. In moving the amendment, the Attorney General said:

“Amendment No. 1 will modify clause 5 of the bill to ensure that reforms to the victims compensation scheme take account of the situation of victims of prolonged abuse, especially women and children. The practical effect of the amendment is to restore the definition currently applying under the Victims Compensation Act 1987 in relation to related acts. With this amendment the Government maintains the status quo in that regard. As the definition for determining if acts of violence are related will be amended in regard to the award of statutory compensation under the victims compensation scheme, it is also necessary and appropriate to amend in the same way the parallel provision in part 4 of the bill, which deals with a direction for compensation ordered by a court upon the conviction of an offender.” (Hansard, 21 November 1996, p 6392.)

18 Most interestingly for the purposes of the current proceedings, it seems that the Government re-enacted the definition of “related act” in circumstances where it had expressly referred to the broad definition given by the courts to the existing provision.

“However, the existing provision has been interpreted broadly in some decisions of the District Court on matters on appeal from tribunal determinations. Such interpretation has enabled an award to be made in respect of every single act of violence occurring during a series of acts of violence. There is one case pending where 21 separate offences are claimed with a potential maximum payout of $1 million. It was never intended by the architects of the scheme that a victim in this circumstance should receive an award for each act of violence.

The new definition provides that where there is more than one act and those acts were committed against the same person and happened at approximately the same time, or, happened over a period of time and were committed by the same person or group of persons, or, share some other common factor, the victim will only be eligible to make one claim for compensation.” (Hansard, 15 May 1996, p 977-978, Second Reading Speech of the Minister, J.W. Shaw QC.)

19 It seems that, on 21 November 1996, when the Parliament reverted to the original definition of “related act”, they were mindful of the broad definition that had been given to it by the District Court of New South Wales, on appeal from the Tribunal. Moreover, it seems, on its face, that the retention of the original definition of “related act” enshrines the judgment of the Court of Appeal in Director-General of the Attorney-General's Department v District Court of New South Wales & Stark (1993) 32 NSWLR 409; (1993) 69 A Crim R 324.

20 In Stark, at 415, Mahoney JA refers to the equivalent definition in the then Act (which was s 3). His Honour said:

“The application of s 3(1) and the definition of ‘act of violence’ there contained will ordinarily involve no difficulty. The difficulty here in question arises where, there being a series of acts, it is necessary to decide whether those acts must be treated as ‘related acts’ for the purpose of the definition of ‘act of violence’. That is decided by applying s 3(3). In applying s 3(3)(b) in this regard, the court is required to form an opinion in respect of one or both of the matters there referred to. (‘In the opinion of the Tribunal’ becomes, on appeal, the opinion of the court.) If the several acts (‘both’ includes ‘several’) were not ‘committed at the same time’, it is then necessary for the court to form an opinion on the second matter, viz, whether they ‘were, for any other reason, related to each other’. Each of these matters involves the determination of a question or questions of fact. Thus, several blows, though separated by some short time, may be held to have been committed ‘at the same time’ if the circumstances warrant that conclusion. As I have said, the phrase ‘at the same time’ is to be given a broad and not a narrow operation. But his Honour was, in my respectful opinion, correct in concluding that ordinarily it would be ’impossible to say’ that acts ‘committed days, weeks and months apart’ are ‘committed at the same time’.

More difficult questions may arise in applying the second part of s 3(3)(b). The Act accepts that there may be a ‘reason’, other than a chronological reason, why, under the legislation, a series of acts are to be treated as ‘related’. The fact alone that the acts were committed against the same person would, I think, ordinarily not be a reason sufficient for this purpose: cf s 3(3)(a). But, to take an example, the purpose with which the acts were done may be sufficient to warrant that they be treated as ‘related acts’ within s 3. Thus, if three injections were given at two hourly intervals for the purpose of together producing a particular state or condition in the person injected, it could not be said that in principle it would not be open to the court to find that a sufficient reason for holding them ‘related to each other’ If the several acts were, in the relevant sense, part of a single transaction or occasion, it might, in appropriate circumstances, be possible to hold that in fact they were relevantly related. I do not mean by the examples I have taken to limit the reasons which, within s 3(3)(b), may constitute ‘any other reason’ for holding acts to be related to each other.”

21 In Stark, Clarke JA agreed with the reasons for judgment of Mahoney JA and Sheller JA. In the reasons for judgment of Sheller JA, his Honour referred to a judgment of Hunt J in R v C (Supreme Court of New South Wales, Hunt J, 5 March 1982, unreported), in which Hunt J considered sexual related acts and found that “each of the three offences of rape had some connection with the others in that each was precisely the same offence, committed by the same offender upon the same victim in similar circumstances, and that on each occasion it was the relationship between the parties which enabled the repetition of the offence in those circumstances.” His Honour, Sheller JA commented:

“I have difficulty with the wide meaning of ‘related’ which I understand Hunt J to have favoured. A dictionary definition of ‘related’ is no more than a starting point for construing the section. The meaning Hunt J gave to the word is indefinite and vague and, I think, unhelpful since it does no more than show that the relationship may be close or slight. To adapt what Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620, in a context quite different from the present, the expression predicates the existence of some kind of relationship but the plane upon which the relationship is to be sought and identified is left unspecified. The Court must endeavour to seek some precision from the legislative purpose and the context in which the expression is used. The legislation is remedial and should be construed liberally to afford the utmost relief which the fair meaning of the language will allow: Fleming v White ; Gamble v Hiles [1981] 2 NSWLR 719 at 722 and Re Applications of Foster [1982] 2 NSWLR 481 at 484; R v Newman (1985) 4 NSWLR 225 at 229. Meticulous literalism is to be avoided: McDermott v Owners of SS Tintoretto [1911] AC 35 at 46.

A person the victim of two assaults within the same day or within two weeks or within two months does not seem to me to be the victim of related acts for reason that there were common features of the acts themselves, for example, that in each case the assailant and the nature of the offence were the same. Usually such matters are no more than circumstances to be taken into account when considering whether there are other reasons which the tribunal may consider make the acts related. Further the fact that separate acts by their nature fit a description, such as ‘indecent assault’, is a surrounding circumstance but not a reason for saying the acts are related. In his Second Reading Speech the Attorney-General spoke of the relationship between acts occurring during the incident giving rise to the injury. Street CJ in R v Newman (at 229) spoke of ‘a global incident’. Mahoney JA in his judgment refers to a single transaction or occasion. These expressions, in my respectful opinion, all throw light on what is intended by the legislature. However I do not think that the concept so explained is necessarily comprehensively explained. Acts committed during the course of a single incident, such as an armed robbery, may be related. But so too may acts which occur during the course of a prolonged period of association or contact between victim and offender whether involuntary or otherwise. Thus I would not rule out the possibility that in a particular case, as was submitted to Hunt J in R v C , separate acts may be related by reason of the relationship of the parties. In none of these situations is it necessarily significant that the acts are physically different and involve the commission of different offences.” ( Stark , supra, at 421-422, per Sheller JA.)

22 It is clear from the foregoing that an evaluation of whether acts are related or, more accurately, whether acts constitute a series of related acts, is not susceptible to a simplistic approach. Plainly, by operation of subsection (3), acts are related if they were committed against the same person and were committed at approximately the same time, whether or not by one offender. Further, applying the comments of Mahoney JA and Sheller JA, they would be related if they were committed on the same person for a common purpose, or as part of a single transaction. Thus, in a kidnapping situation, a series of rapes over some days would ordinarily be a series of related acts. However, there may be exceptions.

23 The issue fell for consideration by his Honour Justice Blanch, Chief Judge of the District Court, in MJW v Victims Compensation Fund Corporation (District Court of New South Wales, 18 November 1997, unreported). In that case, his Honour was required to consider an appeal against a determination by the Victims Compensation Tribunal. The circumstances involved a sexual assault over some years, which are described by Blanch CJ. His Honour Blanch DCJ cited, with approval, the following passage from the judgment of Howie DCJ (as his Honour then was) in McErlain v Victims Compensation Fund Corporation (District Court of New South Wales, 30 August 1996, unreported):

“Although an act of violence is defined in terms of the fact that it results in an injury, it does not seem to me that one need necessarily be able to distinctly identify qualify or quantify the actual injury resulting from each individual act of violence where the total injury suffered by the applicant is a result of unrelated acts of violence. Nor need there be in my opinion proof that injury resulted from each and every one of the acts of violence. The court can draw an inference that a particular act of violence must have resulted in an injury notwithstanding that one may not be able to prove that it did by direct evidence. The court it seems to me can rely upon the knowledge of experts as to the likely effects of an instance of sexual assault upon a child of a young age. The proof of injury need only be on the balance of probabilities.”

24 After citing that passage from Howie DCJ, Blanch DCJ went on to say:

“It appears to me, in accordance with the decision of the Court of Appeal [a reference to Stark ], that each case must be looked at on its own facts and the Judge must make an assessment of those facts and determine whether the acts are related and in making that determination the only test can be whether they are related in such a way that one award of compensation should be made.

… The first three offences involved exactly the same activity between exactly the same parties within a very short space of time. The second [round] of offences involved five specified acts of violence and other unspecified acts all of exactly the same nature in what was a relationship which existed between the appellant and the offender. When I use the word relationship, I mean a relationship where the appellant was manipulated and exploited by the offender who was a much older person and where the appellant was a young boy. However, the activity during that period of time was all exactly the same and between the same parties and it was an ongoing activity. The last act was a single act of explosive violence which led the appellant to escape from the offender and terminate their association. Clearly that last act of violence was traumatic in the life of the appellant and led to the cessation of its association with the offender …

In my view, analysing the facts of this case, there are three separate incidents each of which could attract the maximum award under the Act. The first three acts of violence as nominated are, in my view, related acts. The acts which I have numbered four to eight are also related acts and the ninth act of violence is a separate act in itself quite unrelated to the others.”

25 The reference in Stark, supra, to remedial legislation and the approach thereto, notwithstanding the re-enactment of the same provisions, must be qualified by the more modern approach to legislative construction. At least since the judgment of the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the primary consideration has been the intention of the legislation construed in accordance with its purpose and less with the artificial classification of statutes or terms of statutes, such as directory and mandatory or remedial and punitive. As was remarked by Heydon J:

“To begin consideration of issues of construction by positing that a ‘liberal’, ‘broad’, or ‘narrow’ construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury.” ( Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; (2003) 77 ALJR 1797 at [33], per Heydon J.)

26 The submission of the Fund to the effect that the purpose of the Act was “to limit the amount of compensation payable” is, except in the most broad sense, not available. The purpose of the Act is to provide a fair and consistent basis for compensating different injuries. Like any statutory compensation scheme, there are necessary limits to the amount of compensation that is payable under the scheme. But absent the legislative scheme, no compensation would be payable by the State.

27 Further, the description, in the submissions of the Fund, of the function of the Tribunal under s 5(3)(b) of the Act as conferring “a broad discretion on the assessor or Tribunal to determine whether, in the opinion of the assessor or Tribunal, two or more acts are for any reason related”, is also inaccurate. The exercise performed by the assessor or Tribunal is not a discretionary exercise, but rather an evaluative determination.

28 There are some aspects of the definition of “act of violence” and “related acts” upon which there is significant clarity. As earlier stated, in order for acts to be related, both acts need to be committed against the same person. That is a necessary condition to the evaluation. Further, if, in the opinion of the Tribunal, the acts were committed at approximately the same time, then the acts would be related. But the last mentioned aspect does not mean that the time period can be specified. On some occasions, a one-hour separation may be “approximately the same time”. On other occasions, one day’s separation may be sufficient.

29 Further comment needs to be made in relation to the reference in the Fund’s submissions to a series of related acts of violence. The definition of “act of violence” defines an act of violence to mean an act or series of related acts of a particular description. As has been pointed out by the Court of Appeal, that description includes a requirement that the Act or series of related acts has resulted in injury or death to one or more of the victims. But the series of related acts does not require that each of the related acts be, itself, an act of violence. Thus, one could have a series of related acts, only one of which (or the cumulative effect of which) resulted in injury or death and that series would constitute an act of violence within the meaning of s 5(1) of the Act.

30 The converse, it seems, is also true. If an act, which occurred in the course of a commission of an offence and involved violent conduct, results in an injury, it would usually be a different act from one that results in a different injury. To take the example arising from domestic violence, if a person punched her or his child, causing injury to the mouth and teeth, and one day later hit the child over the head and caused brain damage, notwithstanding the continuing relationship, it would seem the Act would require that each act of violence be treated separately. On the other hand, if the same person punched the child in the face and the head at or about the same time, causing both injuries, the injuries would be caused by one act of violence. In the foregoing context, “injury” includes a discrete aggravation of an injury. Otherwise, the evaluation must be one that is reasonably available.

Prerogative Relief

31 It is fair to say that the grounds for the issue of prerogative relief, or orders in the nature thereof, have moved considerably in the last decade. When Gaudron J opined that it was difficult to “see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it” (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 554, [116]), her Honour was reiterating a principle espoused by Brennan J in Kruger v The Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 (per Brennan J at 36). Shortly thereafter, the High Court examined the proposition of a tribunal acting so unreasonably “that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to such a decision” (Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [121]-[147]). His Honour Justice Gummow contrasted Wednesbury unreasonableness as being concerned to act judicially and as part of that process, whereas the proposition as to a finding that is so unreasonable that no reasonable tribunal could arrive at it as jurisdictional. At [138] his Honour commented:

“[138] It is here that the crucial question arises. On the one hand, where the issue concerns an alleged error of law not going to the fulfilment of a statutory precondition to the existence of jurisdiction, it is said in this Court that there is no error of law simply in making a wrong finding of fact, although the making of findings and the drawing of inferences in the absence of evidence is an error of law. Mason CJ referred to the authorities for these propositions in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356. His Honour went on to observe that the approach taken in some English authorities that findings and inferences are reviewable for error of law on the ground that they could not reasonably be made out on the evidence or reasonably be drawn from the primary facts had not so far been accepted in this Court [1990] HCA 33; (1990) 170 CLR 321 at 356-357.

[139] On the other hand, where the question is whether a decision-maker in the position of the Minister under s 65(1) of the Act reasonably could have formed the opinion as to satisfaction of statutory criteria upon which jurisdiction depends, different considerations arise in an application under s 75(v) of the Constitution.”

32 The High Court has since developed that notion. Referring to Eshetu, Gleeson CJ remarked that “to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (“S20”) at [5]). His Honour the Chief Justice referred to the jurisdictional fact or precondition in the Migration Act 1958 (Cth) as a state of satisfaction, not dissimilar to the condition of an opinion of the Tribunal, as required in the Act subject to analysis in these proceedings. Chief Justice Gleeson referred to the well-known passage of Dixon J (as he then was), in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360, that it is for the decision maker to be satisfied as to the state of affairs, not the Court. And while it is true that the satisfaction of the decision maker is not unexaminable, it is examinable only on the basis of the identification of some error such as mistake of law, the taking into account of irrelevant factors, not taking into account relevant factors, and the like.

33 As is well known from that passage, the High Court has made clear that some decisions may be inexplicable on a full consideration of the material before the decision maker and, therefore, may manifestly give rise to explanation only on the basis of misconception, or error of law. After referring to that issue, Chief Justice Gleeson said:

“[9] To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised ‘according to law, and not humour’, and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty. Furthermore, where ‘the true and only reasonable conclusion contradicts [a] determination’ then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.” ( S20 , per Gleeson CJ at [9].)

34 One must be wary, in dealing with applications for the issue of orders in the nature of certiorari, to discriminate between the grounds upon which mandamus and prohibition will issue (as in migration cases) for jurisdictional error, and the grounds upon which certiorari will issue for error of law on the face of the record. In NSW, the face of the record includes the reasons for determination, and certiorari, or orders in the nature thereof, will issue, if an error of law were to affect the ultimate determination of a tribunal, as evidenced by the reasons for that determination (see ss 69(3) and 69(4) of the Supreme Court Act). However, a Court dealing with any of the prerogative writs, or orders in the nature thereof, especially certiorari, must take care to ensure that merit reviews, or errors of fact, are not treated as errors of law: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.

Reasons of the Tribunal

35 The Tribunal issued reasons for its determination on 2 October 2008 and notified the solicitors for JM on or about 9 October 2008. The delay is unexplained, but irrelevant. The Tribunal issued its determination after the matter had been remitted to it by the District Court of New South Wales (Quirk DCJ), following an earlier decision of the Tribunal being quashed on appeal. The District Court, in dealing with that appeal, was required to deal with errors of law that were said to have affected the determination of whether there was one or more acts of violence. The District Court said:

“It is submitted … that the reasons for the Tribunal’s decision … do not contain a proper consideration of the case put on behalf of [JM] as to why the acts were not related. The Tribunal made a passing reference to the location of the offences and referred to the fact that the offences appeared to be ongoing, but apart from … those matters, did not address the applicant’s case, which, as I’ve said, emphasised the difference in ages and therefore the perspective of the victim, the differences in the nature of the assaults, being sexual intercourse in the early years and indecent assault in the later years, that one of the offences occurred in a public place, that is a swimming pool in the town, and overall that a combination of factors which differed, namely, age, location and type of offence….

I find that those grounds have been made out and that there has been error of law by the Tribunal in not addressing the case put by the applicant, and in that sense failing to accord the claimant procedural fairness or natural justice and failed to determine the matter as it was required to do under s 38(2).”

36 Later in the judgment, the District Court said:

“The determination of what is a ‘related act of violence’ takes place at an anterior stage to any application of schedule 1, which incorporates the concept of pattern of abuse. As is submitted by Mr Beech-Jones (counsel for [JM]), there is no textural or other support for incorporating the concept of ‘pattern of abuse’, appearing in clause 6 of schedule 1, to the definition of ‘related acts’. It is submitted, and I accepted, that the reasoning of the tribunal was based on an incorrect determination of subsection 5(3) and there is thus an error of law arising in the approach to the determination.”

37 The Tribunal dealt with the matter without further hearing. The Tribunal looked at some of the judgments referred to above and then dealt with the question of its satisfaction as to whether or not the acts were related. The Tribunal referred to the judgment of Blanch CJ in MJW, supra, and to the judgment in Stark, supra. The Tribunal then dealt with the evidence and the “similarities” in the acts. I need to recite some of that discussion. The Tribunal said:

“The evidence discloses that the offences occurred over a period of time – from when the appellant was aged 5 years to when she was 15 years. At the time of the first four claims, submissions state that the appellant was aged 5-7 years. In respect of the fifth and sixth claims, that she was aged 12-13 years and the last claim covers the period of 5-15 years – an overarching claim covering a 10 year period. Those claims indicate ongoing sexual abuse over a period of some 10 years – see submissions of 26 March 2007 and assessor’s determination based on police report and statements. ‘The same offender regularly and consistently abused the child on average once a week without any significant breaks’. The ongoing abuse occurred in a situation where the appellant was an inmate of a Children’s Home and the offender was the manager of that institution, in other words there was an ongoing association/relationship between the appellant and the offender over a prolonged period of time. I use the words ‘association/relationship’ in the sense in which Blanch J used the word ‘relationship’ in MJW – a relationship ‘where the appellant was manipulated and exploited by the offender who was a much older person and where the appellant was a young boy’. In the circumstances of these appeals where the abuse was ongoing I do not consider that the age of the appellant at the time of the various acts necessarily gives rise to claims for separate acts.

In these appeals the nature of the acts was generally that of penile penetration but there are allegations of digital penetration and indecent assaults. This is not a case where the offender started fondling the appellant and then progressed to acts of a more serious nature. The first act complained of is that of penile penetration when the appellant was aged 5 years and that form of abuse continued together with other acts that appear to be infrequent. As submissions point out, ‘Stark clearly establishes that it is not necessarily important that the sexual assaults be of a different nature or involve different types of offences’. Blanch J in MJW in determining whether or not various acts were related did take into account, inter alia, the nature of the acts. I do not consider that the nature of the various acts is the sole factor in determining whether or not the acts are separate or related in light of Sheller JA’s comment but it is a matter to be considered – see the decision by Blanch J in MJW.

The offences did occur at different locations – the bedroom, linen cupboard, laundry, pump room, swimming pool but they all occurred within the confines of the Beth Carr Children’s Home. I am aware that some District Court judges in dealing with appeals under the 1987 legislation did take into account the location of the various acts. Those decisions are not binding on the Tribunal. …

It is submitted that the assessor did not give sufficient weight to the beneficial nature of the legislation. The Act is ‘a piece of beneficial legislation’ and therefore out to be interpreted liberally and beneficially and in favour of the grant of benefits to claimant’. The Act is remedial and is to be construed so as to afford such relief as its language will allow. But the language of the Act is to be considered in the light of authority (Stark – that decision explained by Blanch J in MJW) and the intention of the legislature as evidenced in section 437(2A) of the Crimes Act and subsequent legislative amendments.

…

In these appeals, the appellant was an inmate of a Children’s Home and the offender the Manager. The acts were committed by the same offender against the appellant over a prolonged period of time and it was the association, contact or ‘relationship’ between the parties that enabled the repetition of the offence in those circumstances. … The nature of the acts was generally the same although there were instances of other acts committed at the same time. All of the acts were committed at various locations within the property of Beth Carr Children’s home. I am satisfied for the purpose of section 5(3)(b) that the acts are related acts constituting a single act of violence.”

Consideration

38 The approach to be taken on appeal, or on application for prerogative relief, is not to comb over-zealously through the reasons of the tribunal looking for error or presuming error. Administrative tribunals, even when required to issue reasons, need only disclose the process by which they arrived at the result, so as to allow the parties before the tribunal the capacity to understand the basis upon which they have either succeeded or failed in their application.

39 It is difficult to discern the reasons that the Tribunal was satisfied that the acts specified were all related. Nevertheless, it came to that view. It expressed a view that a number of factors were not necessarily inconsistent with acts being related and, as set out above, seems to have come to the view that because the acts were committed against the same victim, by the same offender, and arose out of the same “relationship” (a term expressly used by the Tribunal in the same way that it was used by Blanch CJ in MJW, supra), the acts were related.

40 In that regard, the Tribunal noted that the nature of the acts was generally the same (although there were differences), noted that the acts occurred at different locations and noted that the different age of the appellant at the time of the various acts did not “necessarily” give rise to a finding of separate acts.

41 It may be that the Tribunal took the view that it was self-evident that the acts were related. It may be that the Tribunal took the view that the reason that the factors raised by JM did not give rise to separate acts of violence was intuitively that they did not. But, if intuition were to be the basis for the finding, there is nothing intuitive about the proposition that a rape (penile penetration) of a 5 year old is a related act to penile penetration of a 15 year old, just because the victim was the same, the perpetrator the same, and the location generally the same.

42 Intuitively, one would find such a conclusion illogical. It seems that the Tribunal has taken the view that a rape or sexual assault in one week is, for the factors it outlined, related to a rape or sexual assault in the second week, which in turn is related to a rape or sexual assault in the third week, and so on, for ten years. The difficulty, as a matter of logic, with such a proposition, is that it assumes event 1 is related to event 500, because event 1 is related to event 2 and event 2 is related to event 3 and so on.

43 The first ground upon which the plaintiff challenges the determination is error of law, which seems to be the submission that the Tribunal reversed the onus of proof. In that sense, JM submits that because the Tribunal took the view that the age of JM, at the time of the various acts, did not necessarily give rise to claims for separate acts, the Tribunal was imposing upon JM an onus of proof to prove separate acts. Ancillary to the submission in relation to an error of law in the construction of the statute, which addresses the reversal of the onus of proof, is the submission made by the plaintiff that the Tribunal has misconstrued the Act, by holding that the mere fact that the victim and the perpetrator were the same and they were in the same “relationship” to one another meant that the acts were related. In so doing, it seems that the Tribunal relied on MJW.

44 Onus of proof is not a matter that is overly important. The plaintiff claims compensation and must prove (and did prove) that she was a primary victim. It was for the Tribunal to determine, itself, whether there was one or more acts of violence that gave rise to the injuries. I do not consider that the Tribunal reversed the onus.

45 However, it seems that the Tribunal, while discussing each of the matters raised by JM before it, and concluding that, of themselves, they did not render the acts anything other than related acts , did not weigh in the evaluation process the factors of location, different offences and age of the victim against the factors that the Tribunal would consider rendered the acts related. The Tribunal seems to have taken the view that the mere fact that the “relationship” was the same meant that the acts were related and, in that regard, misapplied the statements of Blanch CJ in MJW.

46 I should add that the foregoing does not countenance the view that the relationship was the same. The mere fact that the perpetrator was the manager for the whole of the period and the victim was a resident at the home for the whole of the period, does not equate with the proposition that the relationship was the same. The relationship between a person in authority and a 5 year old is ordinarily very different from the relationship between a person in authority and a 15 year old. It is for that reason, amongst others, it seems, that Blanch CJ took the view in MJW that there were three different acts of violence, each of which related to different stages of the development (and age) of the victim.

47 I consider that the approach of the Tribunal discloses error in that it treats relationship as defined, simply, by the formal positions of perpetrator and victim, and treats the fact of the same relationship as mandating a finding that the acts were related, without regard to the changing circumstances of the victim, in terms of age, location and the nature of the offences.

48 JM also raises as a ground of appeal the illogicality and irrationality of the Tribunal’s reasons. In one sense, as noted by the Fund in its submissions, this is a complementary submission to the first ground. The ground of appeal relies on the comments, to which reference has already been made, of the High Court in S20, supra, in which McHugh and Gummow JJ commented that a decision which, according to the legislation, turned upon the formation of an opinion, would be affected by jurisdictional error, if it were “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”. (S20 at [34].) In turn, this relied upon the comments of Gummow J, to which reference has also been made, in Eshetu. Such a ground allows the Court to quash the decision of a body, required to act judicially, on the basis that the conclusion it reached was arbitrary, capricious or irrational.

49 In some respects, the final determination of this ground is unnecessary. Given that error of law has been found in misunderstanding the test as to that which amounts to “related acts”, it is strictly unnecessary to determine, finally, whether the result is “irrational”.

50 On one view, the error of law has brought about an irrationality in result. On another view, the result is not “irrational”, as it derives from an error of law. It is sufficient, for current purposes, to note that were error of law not to have been found, a result that concluded that a rape of a person at the age of 5 and a rape of person at the age of 15, even if perpetrated by the same person in the same place, were related acts of violence is wholly irrational and capricious. The fact that the victim has been raped weekly in the intervening period does not alter that conclusion. The result is so manifestly untenable that, without identification of an error, it must have been based upon an incorrect understanding of the tests to be applied.

51 A similar analysis dictates the outcome of the remaining ground of appeal, namely, a failure by the Tribunal to give reasons. The Court has found that the reasons of the Tribunal for the finding of related act are that, in circumstances where the same perpetrator engages in violent conduct against the same person and the perpetrator and victim have the same formal relationship, there is a related act. The Court has determined that such reasoning evidences an error of law. If that is not the reason that the Tribunal has come to the conclusion in this case, then the reasons for decision do not disclose the process by which the Tribunal arrived at the conclusion that it did. In those circumstances, but for the finding in relation to the first ground of appeal, above, there would be a failure to give adequate reasons, as is required by the Act and by the duty imposed by the common law.

52 The Court has come to the view that there has been error of law in the ultimate determination of the Tribunal, being an error of law on the face of the record, which, for present purposes, includes the reasons expressed by the Tribunal for its ultimate determination. As a consequence, the Court makes the following orders:

(i) That applications 79590, 131810, 131811, 131812, 131814, 131815, 131816 before the Victims Compensation Tribunal, being applications by JM, be removed into this Court;

(ii) That the decision of the Victims Compensation Tribunal in the aforesaid matters, made on 2 October 2008, be quashed;

(iii) That the further hearing of the said proceedings be remitted to the Victims Compensation Tribunal, to be heard in accordance with law;

(iv) That the first defendant pay the plaintiff’s costs, of and incidental to these proceedings;

(v) Otherwise, the proceedings in this Court be dismissed.

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19/05/2010 - The Court, in accordance with s 72 of the Civil Procedure Act 2005 (NSW), by order, prohibits the publication or disclosure of any information tending to reveal the identity of the plaintiff, and as such the coversheet and judgment have been amended and the plaintiff is now referred to using a pseudonym only. - Paragraph(s) Coversheet and judgment.