Mangan v Victims Compensation Fund Corporation

[1999] NSWDC 14

New South Wales

District Court

CITATION:	Mangan v Victims Compensation Fund Corporation [1999] NSWDC 14
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Margaret Mangan Victims Compensation Fund Corporation
FILE NUMBER(S):	128 of 1999
CORAM:	Twigg DCJ
CATCHWORDS:	s36 - exceptional circumstances - leave :- appeal out of time
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:	Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
DATES OF HEARING:	18/10/99
DATE OF JUDGMENT:	18 October 1999
LEGAL REPRESENTATIVES:	Williams Quickenden

JUDGMENT:

JUDGMENT

HIS HONOUR: This is an appeal to the District Court of New South Wales as to a matter of law pursuant to section 39 of the 1996 Victims Compensation Act . Section 39 allows an applicant/appellant to appeal with the leave of the District Court to the District Court on a question of law arising "in any determination of the application by the Tribunal."

Sub-paragraph 5 of that section gives a discretion to the District Court because of the use of the word may:

"2(b) Set aside the determination and remit the matter to be considered and determined by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned."

The decision of the Tribunal through Mr Gabb, Magistrate, is dated 19 May 1999. The genesis of that decision relates to section 36(3)(b) which is in the following terms:

"36. Appeal to Tribunal by Applicant.

(3) An appeal may be made:

(a) Within the period of three months after the date on which the relevant notice of determination made by the compensation assessor or director was duly served on the person; or

(b) Within such further time as the Tribunal may in exceptional circumstances allow."

The Tribunal put its decision in writing and pointed out firstly that the notice of appeal to the Tribunal was only lodged with the Tribunal by letter dated 10 March 1999 and received on 12 March 1999. It goes on to say that section 36(3)(a) provides that it must be lodged within three months and an appeal is allowed only in exceptional circumstances.

The next paragraph sets out that the solicitors seek leave under 36(3)(b) to lodge the appeal upon the ground that they sought advice from counsel and lodged an appeal in error to the District Court instead of to this Tribunal.

"I do not consider that this error constitutes 'exceptional circumstances' to allow the appeal to be lodged out of time."

He goes on in the next paragraph to say it is not a question as submitted that there is no prejudice suffered by the Tribunal, rather a question of considering whether there are exceptional circumstances.

The decision then sets out in the next paragraph that the Tribunal does not consider that a failure by solicitors to lodge an appeal within time constitutes exceptional circumstances. The Magistrate, that is the Tribunal, referred to the test pursuant to section 26(3)(c) which deals with lodging applications outside the two year limit unless there is good reason.

Then the decision is given that is out of time.

Mr Williams, learned counsel for the applicant/appellant, firstly submits that there is an error of law and therefore this Court can deal with the matter, that proposition is opposed by learned counsel for the respondent Tribunal, Mr Quickenden.

Each counsel seems to say that the threshold question is whether the Magistrate was in error in determining that the solicitors error as to which forum constitutes exceptional circumstances. Mr Williams sought to indicate that the error must be seen from the Magistrate's confusing the respective tests because the test he applies inapplicable, but Mr Quickenden retorts to that there is no error by the Magistrate because he clearly made a decision as to what is exceptional circumstances.

There were helpful written submissions by Mr Quickenden and both counsel assisted me ably with their oral submissions.

It is further submitted that I should be comfortably satisfied in exercising my discretion under this Act, that is not merely on the balance of probabilities. This comes from various cases including Azzapardi v Tasman UEB Industries Limited (1985) 4NSWLR 139 and other cases referred to in the written submissions.

I find that it is the exercise of my discretion not capriciously, but in accordance with law. That is the test I must consider the decision of the Magistrate and see whether there is clearly an error of law.

My base finding is that it is an unusual circumstance for an applicant to be prevented from pursuing her legal remedies because her solicitor made an error of procedure in lodging forms to the right Court, perhaps because of that choice she may have some common law action for negligence, but that is irrelevant in this proceedings. I am comfortably satisfied and in the exercise of my discretion find that there was an error of law.

I am entitled to look at the decision of the Magistrate and in my view he was clearly ruling the opposite way and that was an error of law. I am entitled to consider the overall circumstances of the case. In my view the applicant/appellant has suffered relevant shock within that definition in Schedule 1 and there is no prejudice were that necessary to show to the Tribunal by allowing this application to proceed. There is substantial evidence pointed out to me of shock or trauma or injury suffered by the presentation of material that is in the file showing over a period of time her panic attacks, tension headaches, feelings of loss of control and light headedness and inability to make use of meditation techniques. Furthermore, the Tribunal itself allowed two hours of counselling and that at a period well into the period when the applicant/appellant was affected. I say there is no prejudice eventhough I emphasise that that is not the test here because it is one of the circumstances perhaps that I should look at in considering my overall exercise of discretion in order to show that I do not act capriciously and ignore matters, but within the tests laid down by Justice McHugh in the High Court there is no prejudice. I must take into account as his Honour pointed out that public interest the others concerned and the Tribunal as well as the applicant and consider whether there is any detriment suffered by delay or other factors. There is none of that in this case.

Thus I find that the Tribunal has misdirected itself, I need not give further examples, but merely say there is in my view a clear misdirection and error of law thus meaning that a question of law has arisen and it is a demonstrable error of law by the Magistrate that is demonstrable on its face. I therefore in the circumstances allow the appeal. I direct the Tribunal to make an award for compensation in accordance with law and in accordance with my opinion that the circumstances are exceptional and the time for lodging the appeal should be extended to 12 March 1999. I add that I have also had reference to the Australian Edition of Macquarie Dictionary which defines exceptional as "forming an exception or unusual instance; unusual; extraordinary."

I grant the applicant/appellant costs to be agreed within two months of the presentation by the applicant/appellant solicitors of an itemised bill of costs to the Tribunal and if not agreed within that time to be assessed by an Assessor in accordance with the appropriate Act.

QUICKENDEN: Would your Honour hear me on the form of the orders?

HIS HONOUR: Yes, certainly.

QUICKENDEN: The first order is leave granted to appeal because it is an application.

HIS HONOUR: I change that leave granted to appeal.

QUICKENDEN: Appeal upheld.

HIS HONOUR: Two, appeal upheld. Three.

QUICKENDEN: I set aside the determination and remit the matter--

HIS HONOUR: I set aside the determination of the Tribunal and remit the matter to the Tribunal with my opinion--

QUICKENDEN: All that needs to be said is remit the matter to be considered and determined again by the Tribunal in accordance with this decision.

HIS HONOUR: I order costs as I have done.

QUICKENDEN: Would you Honour be good enough to order an urgent transcription of your Honour's judgment for two reasons, one is that the Tribunal has to consider the matter in accordance with your Honour's decision. We would need a copy of the transcript of the judgment.

HIS HONOUR: Why?

QUICKENDEN: Because the Tribunal needs to know that the solicitor error is an exceptional circumstance.

HIS HONOUR: I order that the transcript of this judgment be taken out urgently by the transcription service and after checking by me a copy be made respectively to the solicitors for the applicant/appellant and the Tribunal at no cost.