Martin v Victims Compensation Fund Corporation

[2000] NSWDC 9

New South Wales

District Court

CITATION:	Martin v Victims Compensation Fund Corporation [2000] NSWDC 9
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Heather Rose Martin Victims Compensation Fund Corporation
FILE NUMBER(S):	832 of 1999
CORAM:	Patten DCJ
CATCHWORDS:	s38(3) - special circumstances - shock
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	9/3/00
DATE OF JUDGMENT:	9 March 2000
LEGAL REPRESENTATIVES:	Skiller Burchett

JUDGMENT:

HIS HONOUR: There is before me an appeal and an application for leave to appeal against a decision of the Tribunal of 26 October 1998. There may be some argument as to whether the notice of appeal was filed in time, but it is certainly claimed that the application for leave to appeal was not filed within the time prescribed by the rules.

However, I extend the time for filing the notice of appeal up to and including the 15 September 1999 and the application for leave to appeal is therefore before me and insofar as it might be asserted that the notice of appeal is not filed within three months as required by section 39(2), I think there are exceptional circumstances and I would extend the time as necessary. The time involved being only at the most one or two days.

The matter I think does raise questions of substance and I grant the application for leave to appeal and proceed to deal with the appeal on the merits. The right of appeal to the District Court is limited by section 39 of the Victims Compensation Act 1996 to a question of law which expression is further limited by subs (3).

In this case, the application for compensation was first assessed by an assessor, S Maddison, who assessed compensation in the total sum of $10,650. The applicant through its solicitors then appealed to the Tribunal and in support of that appeal lodged with the Tribunal a report of a Doctor Matthew Cullan, consultant psychiatrist, dated 2 June 1998, which suggested the appellant was suffering continuing psychiatric symptoms.

The Tribunal is governed by the provisions of section 38 of the statute, subs (3) of which provides that,

"An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may by leave receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against."

The Tribunal constituted by Mr R Gabb dealt with the question as to whether it would receive evidence in the form of Doctor Cullan's report in these terms,

"The onus is upon an applicant and his/her solicitors to submit all necessary evidence to establish the case to the compensation assessor. The Tribunal will not permit further evidence to be submitted on an appeal simply to overcome a lack of evidence before the compensation assessor when that evidence could and should have been submitted to the compensation assessor. If the original reports are not sufficiently clear or unambiguous then the applicant's solicitors should have addressed those matters with further evidence, if necessary, prior to the determination of the matter before the compensation assessor. If the original reports are not sufficiently up to date, then up to date reports should have been submitted to the compensation assessor. The appeal process in the Act is not a means whereby an applicant or his solicitors can simply have a second bite at the cherry and submit further evidence. Accordingly, I refuse to grant leave for the applicant to submit further evidence and I shall determine the appeal upon the evidence which was before the compensation assessor."

As Mr Burchett, counsel for the respondent to this appeal points out, the issue before me is not whether I would have exercised the discretion in the same way as Mr Gabb exercised it. The question is, whether it can be said that Mr Gabb's refusal to consider the report of Doctor Cullan constituted an error of law. In my opinion, it did not, having regard to the terms of the discretion conferred upon the Tribunal by section 38(3).

In effect, for me to hold that a question of law was involved would require a finding that special circumstances existed and that Mr Gabb was bound in law to receive the report of Doctor Cullan. I do not think that I can go that far and accordingly, the appeal, not, in my opinion, raising a question of law, must fail. I order that it be dismissed and the decision of the Tribunal confirmed.

FOR PROCEEDINGS ON COSTS SEE SEPARATE TRANSCRIPT