Korossy v VCFC

[2002] NSWDC 20

New South Wales

District Court

CITATION:	Korossy v VCFC [2002] NSWDC 20
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Csaba Korossy Victims Compensation Fund Corporation
FILE NUMBER(S):	974 of 2001
CORAM:	Delaney DCJ
CATCHWORDS:	failure to give proper reasons
LEGISLATION CITED:	Victims Compensation Act 1996 Victims Compensation Amendment Act 1998 Workers Compensation Act 1987
CASES CITED:	Soulemezis v Dudley Holdings 10 NSWLR 247; Azzopadi v Tasman UEB Industries Ltd 4 NSWLR 139
DATES OF HEARING:	6/02/02
DATE OF JUDGMENT:	6 February 2002

JUDGMENT:

HIS HONOUR JUDGE DELANEY: The applicant seeks leave of the District Court to bring an appeal against a decision of the learned Magistrate constituted pursuant to the Victims Compensation Act (1996) as amended.

It is not necessary because the matter has been ventilated many times to re-state the fact that the jurisdiction of this Court is enlivened only if the applicant for leave can show that the Tribunal in the consideration of the issues cast upon it by the Act was guilty of making an error of law.

The determination of that issue has been considered in many previous cases. What is an error of law was referred to in detail in Azzopardi’s case. It has been the subject and comment of many judicial pronouncements.

The applicant for leave in this case seeks the order on the basis that in considering the issues before him the Magistrate failed to explain, and therefore did not give proper reasons, as to why he preferred the evidence contained in the report of Dr Wolfenden as opposed to the allegations made by the appellant.

The respondent to this application says that there was no error of law.

The Tribunal file was tendered. I also read an affidavit of Carolyn Munk of 28 August 2001 after overruling a number of objections made by the respondent and I also then allowed into evidence an affidavit of
17 December 2001 of Carolyn Munk subject to the deletion of material which appeared therein which had been accumulated after the date of the consideration of the matter by the Tribunal.

The applicant for leave is required to state what it is that was the error of law. The applicant has done that by stating in the document dated 28 August that the Tribunal erred in law in failing to give proper reasons for rejecting the Statutory Declaration of the appellant declared on 23 January 2001 and served on 24 January 2001.

Mr Baker, who appears today on behalf of the applicant, has expressed it in a slightly different way, but it is clear what the intent was.

The requirement to give reasons for a decision has been the subject of comment in the decision of Soulemezis against Dudley Holdings 10 NSWLR at page 247. It is not necessary that each and every issue be the subject of comment and determination. It is, as was recently referred to in Davies case in 40 NSWLR, necessary only to state the reasons in a form whereby the essential issues can be understood.

The issue on the application before the Tribunal was:
1. whether the applicant had sustained an injury;
2. when that injury had been sustained; and
3. whether, if the two matters were established, entitlement to compensation had been shown.



The applicant alleged that he had a right to compensation in respect of an incident which he stated occurred on 23 August 1996. This date was inserted in the application for compensation by a primary victim which was completed by the applicant and sworn on 17 July 1998.

In describing the facts in a brief fashion in paragraph 23 of that document, the applicant said:
”victim assaulted, blow right forehead and injury to lip when assaulted by inmate.”


It was common ground that the allegation was that the applicant had been assaulted at Malabar Gaol Hospital in the course of caring for an inmate. More detail about that matter was contained in a statement made by the applicant to the police on 17 September 1996 when he said, inter alia that, at about 9.20am whilst assisting an inmate from his cell to the psychiatrist for an interview an event occurred whereby the prisoner turned and punched the applicant in the mouth and then to the head causing the applicant to fall to the ground.

The applicant said that he saw Dr Tim Curlewis at the Dural Medical Centre for treatment for a cut lip and bruises to his head and right knee. He said that he could not work the rest of that shift. A claim was made for compensation pursuant to the Workers Compensation legislation. The compensation insurer was the Government Insurance Office. It is not known what the specific result of that application was, but prima facie it would appear that such a claim would be accepted.

Doctor Curlewis, in a report of 23 June 1998, referred to an incident at work on 15 July 1996. He then referred to an incident for which he treated the plaintiff on 24 August 1996 which appears to be the incident of
23 August. This evidence was, according to the court file, evidence which was before the learned member of the Tribunal. Therefore there was evidence of an assault on that date and a contemporaneous note of it.

What did the learned member of the Tribunal, the learned Magistrate, do?

In considering the appeal from the Assessor on 20 June 2001, no mention was made of the report of Dr Curlewis. The Magistrate said:
“The Assessor dismissed the claim on the basis that the appellant had been certified unfit for work for three days and had not exhibited a disability in excess of six weeks. Doctor Wolfenden, in his report of 6 December 2000, attributes the appellant’s injury to the assault he was subjected to on 17 July 1996. He is of the opinion that the appellant has an occipital neuralgia which is causing severe headaches over the left side of the head.”

He further states in his report that:

“The symptoms have now been present for four and a half years and I would believe therefore that the prognosis for recovery is poor and his symptoms are likely to be ongoing and permanent disabilities.”


It is clear from Dr Wolfenden’s report that the appellant received his injuries not from the assault on 23 August 1996 which he describes in his report as, “another smaller assault occurred on 23 August 1996” but on 17 July 1996. He found that there was no compensible injury arising out of the 23 August event. It was agreed that the quote of 23 March 1996 was clearly a typographical error.

The learned Magistrate said that he had read the file. He did not refer to Dr Curlewis. He did not refer to the Statutory Declaration of the applicant in his reasons. Does this matter?
BURCHETT: Is your Honour ..(not transcribable).. documents weren’t in the court file.

HIS HONOUR: You handed them up to me.

BURCHETT: No, no, as I explained when I handed it up the left hand side is my brief, in effect. It is the documents--

HIS HONOUR: I thought it was the other side.

BURCHETT: No, the right hand side is the court file. I don’t believe either the report of Dr Curlewis or the Stat Dec were there.

HIS HONOUR: I see. I amend what I have said. Mr Burchett has pointed out that I was looking at the wrong side of the file, for which I apologise, and it appears that the report of Dr Curlewis was not before the Tribunal.

I now turn to the report of Dr Wolfenden of 6 December 2000. This was the report that was before the Tribunal. It said, as was mentioned by the Magistrate, that another smaller assault occurred on 23 August and that Dr Wolfenden said that the most significant assault was 17 July 1996. He does not say, in his report, that it was as a result of any other assault other than the one of 17 July. That the plaintiff had the disability which was referred to in his opinion. He notes the other assault but does not give any opinion about the effect, if any, that it would have had on his judgment as to prognosis and diagnosis. In addition, the Tribunal did have the police records to which I have referred. In those records the appellant did nothing more than say at the time of the assault his lip was bleeding and he could not work the rest of the shift or the next day, however, in the documents is a statement from the applicant. He said that he was unable to continue his duties. This was the only evidence which was before the learned Magistrate. If other evidence had been adduced and the Magistrate had not considered it, then the issue may have been different.

The Statutory Declaration referred to of 23 January 2000 does not really assist the applicant in any event. In fact what he says is that he believed Dr Wolfenden misunderstood him. The report from Dr Wolfenden, in any event, was directed to Watson Stafford, the solicitors for the appellant, and it was available on 6 December 2000. It was provided to the Tribunal. This is not a case, in my opinion, where there was a failure by the Magistrate to consider or failed to give proper reasons for his decision. He acted, in dealing with the issue, on the medical material before him. He was entitled to take that course. He was entitled to assume that if this information was provided as part of the claim, and it was provided from the applicant that the applicant adopted it.

The Magistrate considered all of these issues and, in my view, did not omit to consider or give reasons for any relevant matter. Indeed, in the end, the Assessor had dismissed the claim on the basis that the appellant had been certified unfit for work for three days and had not exhibited a disability in excess of six weeks.

The attempt to deal with the matter on the basis of the Statutory Declaration, in my opinion, cannot provide a basis in this case of establishing a failure to give reasons for the decision. There has been no error of law and the application is dismissed.
BAKER: May it please your Honour.

HIS HONOUR: I return the file

BURCHETT: I seek costs.

HIS HONOUR: What’s the situation about costs.

BURCHETT: Costs normally follow--

HIS HONOUR: Well are they payable under the Act.

BURCHETT: They are payable under the Act, yes. It’s a proceeding in this Court.

HIS HONOUR: Costs don’t seem to be specifically dealt with in the Rules, and in fact there was a repeal about Part 6 Rule 60 as to costs in 1996.

BURCHETT: I’m not sure what you’re referring to there your Honour. I think it might even be in the Act as well. It’s certainly in the - I don’t know how many now I’ve done of these. There’s never been any questions ..(not transcribable).. jurisdiction and it’s dealt with in the normal fashion.

HIS HONOUR: At this stage I propose to make the follow order, I propose to reserve the costs to be re-listed on fourteen days notice to the Registrar.
BURCHETT: May it please the Court.
BAKER: May it please the Court.