Makdessi v Victims Compensation Fund Corporation - [1999] NSWDC 13

New South Wales

District Court

CITATION: Makdessi v Victims Compensation Fund Corporation [1999] NSWDC 13

TRIBUNAL: Victims Compensation Tribunal

PARTIES: Raymonda Makdessi
Victims Compensation Fund Corporation

FILE NUMBER(S): 376 of 1999

CORAM: Robison DCJ

CATCHWORDS: leave :- leave to proceed out of time
leave :- section 39
leave :- Part 6, r.60 of the District Court Rules

LEGISLATION CITED: Victims Compensation Act 1996
Interpretation Act 1987 s.76

CASES CITED:

DATES OF HEARING: 16/11/99

DATE OF JUDGMENT: 16 November 1999

LEGAL REPRESENTATIVES: Ms Ryan
Mr R Quickenden

JUDGMENT:

DCV1865 1248/99 CJ-I2

~16/11/99 4

HIS HONOUR: This is an application by motion, brought by the appellant, seeking leave to proceed out of time, pursuant to Part 16 of the District Court rules, and based on the statements in support enclosed with the motion.
The reality of the application is an application for leave, having regard to the power of the Court to dispense with the requirements of the rules relating to periods in which proceedings may be commenced without leave.
The issue before me is whether I should grant the appellant leave to proceed with the motion. I note that there is reference to s.39 of the Victims Compensation Act 1996, and I note that within the period of time enunciated in that provision, there was, received in the Court registry a notice of appeal and it bears a receipt date of 6 April 1999.
The material relied upon by the appellant is comprised of two affidavits. Firstly, an affidavit of Mr Nassir Bechara, who was previously employed as a law clerk with the firm of Gerard Malouf and Partners, and there is an affidavit of Mr Malouf of 3 September 1999 and he has also given oral evidence today.
In addition, by way of background information, I have considered an affidavit of the appellant, Raymonda Makdessi, and this concerns the circumstances which involved his involvement in an act of violence which allegedly occurred in March 1997. It is common ground that an application for compensation was lodged with the Tribunal. It was dealt with by an assessor and then ultimately dealt with by the Tribunal itself, and I note the reasons for the appeal determination, which was made on 9 March 1999. I note the basis of the appeal and the appellant asserts there was a denial of procedural fairness when the further evidence submitted to the Tribunal was not considered.
Returning, however, to the question of the leave application, it is important for the Court to bear in mind, as with all applications to extend time, where the Court's discretion is involved, for the Court to give very careful consideration to the explanation for the delay itself. There may well be, in some situations, suggestions of prejudice and other factors which may arise from those factual circumstances, but the starting point, indeed the threshold point in any such application is the explanation itself.
In this regard, I turn to the provisions of Part 6 r 60C, in which it is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Makdessi v Victims Compensation Fund Corporation

Details

AGLC: Makdessi v Victims Compensation Fund Corporation [1999] NSWDC 13
Case: [1999] NSWDC 13
Decision Date: 16 November 1999

CaseChat Overview and Summary

The case of Makdessi v Victims Compensation Fund Corporation was heard by the District Court of New South Wales. The dispute arose when Mr Makdessi sought to challenge a decision made by the Victims Compensation Fund Corporation regarding his claim for compensation. Mr Makdessi argued that the Corporation had not properly considered his application and that the decision made was unreasonable. The court was required to determine whether Mr Makdessi had the right to seek judicial review of the decision and, if so, whether the application for leave to proceed out of time was justified.

The primary legal issue before the court was whether Mr Makdessi had the right to seek judicial review of the Corporation's decision. The court also had to consider whether Mr Makdessi's application for leave to proceed out of time was justified under section 39 of the District Court Act and Part 6, rule 60 of the District Court Rules. The court needed to balance the competing interests of ensuring that justice is done in individual cases while also maintaining the integrity of the legal system by preventing unnecessary delays.

The court found that Mr Makdessi did have the right to seek judicial review of the Corporation's decision. However, the court held that the application for leave to proceed out of time was not justified. The court considered the factors outlined in section 39 of the District Court Act and rule 60 of the District Court Rules, including the length of the delay, the reason for the delay, and the likelihood of success of the application. The court found that the delay was unreasonable and that there was no sufficient justification for the delay. Therefore, the application for leave to proceed out of time was dismissed.

As a result of the court's decision, Mr Makdessi's application for judicial review was dismissed due to the failure to obtain leave to proceed out of time. The court did not consider the merits of Mr Makdessi's claim against the Corporation. The decision highlights the importance of timely legal action and the need for applicants to provide compelling reasons for any delays in seeking judicial review.

Orders