Mordaunt v Director, Victims Services and anor.

[2006] NSWSC 1222

CITATION:	Mordaunt v Director, Victims Services & anor. [2006] NSWSC 1222
HEARING DATE(S):	8 November 2006 9 November 2006`
JUDGMENT DATE :	9 November 2006
JUDGMENT OF:	Sully J at 1
EX TEMPORE JUDGMENT DATE:	11/09/2006
DECISION:	The orders of the Tribunal are set aside and the plaintiff's objection is remitted to the Tribunal to be re-determined according to law. Each party to pay its own costs of and incidental to the proceedings in this Court.
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 (NSW) Public Sector Management Act 1988 (NSW) Local Courts Act 1982 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Local Courts (Civil Claims) Act 1970 (NSW)
PARTIES:	George David Mordaunt The Director, Victims Services Victims Compensation Tribunal
FILE NUMBER(S):	SC 11217/06
COUNSEL:	In person - Plaintiff J. McAteer (solicitor) - Defendant
SOLICITORS:	In person - Plaintiff J. McAteer - Defendant

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	RT 91830
LOWER COURT JUDICIAL OFFICER :	Magistrate C. Brae
LOWER COURT DATE OF DECISION:	14 February 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

9 November 2006

11217/06 GEORGE DAVID MORDAUNT v THE DIRECTOR, VICTIMS SERVICES & ANOR

JUDGMENT

1 HIS HONOUR: I have heard to finality the submissions of both parties to the proceedings with which I am now to deal. I have decided to proceed ex tempore to give reasons for the conclusion to which I have come as to the way in which the proceedings current before me ought to be finally adjudicated.

2 It is in the nature of things that reasons thus delivered ex tempore cannot have the finally calibrated expression that might be possible in a reserved judgment. I think, however, that, for reasons which will become apparent in what follows, it is in everybody's interests, and it is certainly in the interests of public justice broadly conceived, that these proceedings be brought to finality as soon as possible.

3 By an amended summons filed on 21 April 2006, Mr George David Mordaunt, as plaintiff, claims certain relief in respect of orders made by a Local Court Magistrate sitting as a Victims Compensation Tribunal, pursuant to the statutory scheme in that behalf that is established by the Victims Support and Rehabilitation Act 1996 (NSW), ("the Victims Support Act").

4 Two defendants are cited in the amended summons. The first defendant is "The Director, Victims Services" and the second defendant is "The Victims Compensation Tribunal".

5 An appearance has been filed on behalf of both of those named defendants. Neither appearance is a submitting appearance. I should have thought that, in a case of this character, it would have been more appropriate for the second defendant to have put on a submitting appearance in the usual form, leaving the first defendant to appear as contradictor in an adversarial hearing of the plaintiff's claim. Nothing of importance, save as to costs, turns upon the fact that neither appearance is a submitting appearance. Insofar as that raises questions of substance concerning the making of appropriate costs orders, I will deal with those orders separately from the adjudication upon which I have now embarked.

6 Before examining - as it will be, of course, necessary to do - the detail of the relief claimed by the plaintiff and the detail of the bases upon which the plaintiff rests his claim, it is necessary to have some regard to the relevant factual background.

7 The plaintiff was formerly married to a lady named Nelly Seba. She made an application, pursuant to the Victims Support Act for an award of compensation pursuant to the statutory scheme established by that Act.

8 Her application and any documentary evidence put forward by her in support of it was referred in due course to a compensation assessor whose duty it was to determine in the first instance whether or not a compensation award ought to be made to the applicant at all; and, if so, in what amount. The particular compensation assessor to whom Miss Seba's application was referred made, in due course, a determination in her favour.

9 The reasons for the award are expressed in writing and are dated 3 March 2005. A copy of those reasons is annexure A to an affidavit of Tracey Marie Hall sworn in the present proceedings on 11 May 2006. The reasons are comparatively brief and because of their potential importance to the present particular proceedings in this Court, it is expedient to note them in full.

10 They read as follows:

“Ms Seba has lodged an application for victims compensation in relation to incidents of domestic violence perpetrated by her former husband in New South Wales between 1984 and April 2002.
Ms Seba sets out a long history of an abusive relationship, in which she was subjected to intimidating and controlling behaviour, stalking and threats. She demonstrated great strength and courage to leave the relationship, however the intimidating behaviour continued and culminated in a violent incident on 28 November 2001, where the offender forced his way into her home and pushed her and caused an injury to her lower back. The offender was charged and convicted of assault in relation to this incident. His appeal against his conviction was dismissed on 5 June 2003. Medical records indicate that as a result of this assault Ms Seba sustained a number of soft tissue injuries to her neck and back, and had stiffness to her neck and headaches.
I am satisfied that an act of violence is established on the balance of probabilities, pursuant to section 5 of the Victims Support and Rehabilitation Act 1996 (“the Act”). No adverse issues arise under section 30(1) of the Act from the evidence before me.
Ms Seba has received extensive counselling to help manage her symptoms. She continues to experience anxiety and depression, and has problems with her self-esteem. A clinical psychologist has diagnosed chronic Post Traumatic Stress Disorder. Her psychological injuries are attributed to the act of violence upon her.”

11 Upon the basis of those findings, the compensation assessor made in favour of the applicant a total award exclusive of costs and disbursements of $8,250. It is convenient to pause in order to consider certain aspects of that compensation award.

12 Compensation assessors are persons appointed pursuant to section 64 of the Victims Support Act. They are public servants employed for the purposes of the Victims Support Act pursuant to the provisions in that behalf of Part 2 of the Public Sector Management Act 1988 (NSW).

13 A compensation assessor is required to function conformably with certain so-called guidelines and arrangements for which provision is made in section 65 of the Victims Support Act. The details of those provisions are of no particular present concern.

14 An application for compensation which is referred for determination to a compensation assessor, must be dealt with by the assessor in accordance with a procedure which is laid out in section 29 of the Victims Support Act. It is not necessary for present purposes to venture beyond the provisions of subsection (1) of section 29. It is there provided:

“(1) After considering an application for statutory compensation, the compensation assessor must determine the application:
(a) by making an award of statutory compensation, or
(b) by dismissing the application.”

15 That consideration by the compensation assessor is to be made, by reason of the provisions of section 27(2) of the Victims Support Act, "without conducting a hearing into the matter". That is what happened in connection with Miss Seba's application for a compensation award.

16 It is understandable why a statutory scheme of the kind established by the Victims Support Act requires that, at least initially, a particular applicant's entitlement to a compensation award should be dealt with, in effect, ex parte.

17 The Act itself establishes a series of qualifications and criteria and exclusions by reference to which the compensation assessor is to make, in the particular case, a determination of the particular applicant's entitlement to a compensation award. The details of those provisions are of no particular present moment.

18 In a case in which a compensation assessor makes a determination favourable to the particular applicant, then the applicant is entitled to be paid out of a public fund established for the purpose, the amount of the compensation to which that applicant has been adjudged entitled. It then becomes necessary for consideration to be given, as part of the overall statutory scheme, to the question whether there is somebody from whom the public fund can recoup in whole or in part the amount of the compensation award which the fund has covered.

19 The Act contains elaborate provisions in that connection. They are triggered by a procedure which is established by section 46 of the Act.

20 Section 46(1) provides:

“If the Director is of the opinion that, before or after an award of statutory compensation is made, a person has been convicted of a relevant offence, the Director may make a provisional order for restitution against the person so convicted."

21 The Director is an executive official whose office, functions, powers and responsibilities are established by various provisions of the Act, including section 63(1) by which there is established an office described in that subsection as "Director, Victims Services".

22 A "relevant offence" is a concept that is defined in section 46(2). The provision now relevant of subsection (2) is that contained in paragraph (a) of the subsection and reads:

“An offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made".

23 Various of the remaining provisions of section 46 lay down matters of form and of substance respecting any provisional order for restitution made by the Director pursuant to section 46(1).

24 In a case where the Director makes a provisional order for restitution, the person against whom that order has been made is entitled, within a stipulated time period, to file in the office of the Director a notice of objection to the confirmation of the order. Once again, there are various rules governing matters of form and substance in connection with the lodging of such an objection.

25 In a case where such an objection is properly lodged, there must be a hearing by the Victims Compensation Tribunal and that hearing must conform to the provisions of, among others, section 49 of the Victims Support Act. That is what happened in connection with Mr Mordaunt's affairs.

26 The Director formed the requisite statutory opinion and made a provisional order for restitution against Mr Mordaunt. Mr Mordaunt lodged an objection and there was a Tribunal hearing in connection with that objection.

27 It will be necessary to return presently to a consideration of the course of that hearing; but before doing so it is appropriate to say something about the character of such a hearing.

28 It is convenient to begin by considering the provisions of section 49 of the Victims Support Act. They are as follows:

“ Hearing by Tribunal to confirm provisional order for restitution if defendant objects to order
(1) If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed (in this Division called recovery proceedings ).
(2) The Tribunal may confirm a provisional order made under section 46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied, it must discharge the provisional order.
(2A) The Tribunal may confirm a provisional order made under section 46A if satisfied that:
(a) a person against whom a provisional order for restitution has been made under section 46 has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and
(b) the defendant was a party to the scheme and obtained a property under the scheme without giving sufficient consideration.
If the Tribunal is not so satisfied, it must discharge the provisional order.
(3) The Tribunal may vary a provisional order for restitution that it confirms.”

29 Ancillary practical provisions are made by, in particular, sections 51 and 52 of the Victims Support Act. Those sections provide as follows:

51 Provisions relating to orders for restitution
(1) The Tribunal may, when it confirms a provisional order, reduce the amount to be paid under the provisional order having regard to:
(a) the financial means of the defendant, and
(b) such other matters as are, in the opinion of the Tribunal, relevant to the determination.
(2) The maximum amount that may be ordered to be paid under an order for restitution (whether made against one or more defendants) is the amount that has been paid to the victim under the award of statutory compensation to which the order relates.
(3) If an order for restitution is made against two or more defendants in respect of the same award of statutory compensation, each of the defendants is jointly and severally liable under the order.
(4) If the Tribunal decides under subsection (1) to reduce the amount payable by a defendant under an order made against two or more defendants, the Tribunal may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order.
52 Procedural and evidentiary provisions relating to recovery proceedings
(1) Subject to this Division and the rules, recovery proceedings must be determined:
(a) in accordance with the rules of evidence, and
(b) in accordance with the practice and procedure of Local Courts exercising civil jurisdiction,
in the same way as the determination by a Local Court of an action commenced by way of an ordinary statement of claim (within the meaning of the Local Courts (Civil Claims) Act 1970) .
(2) The victim to whom recovery proceedings relate is competent, but not compellable, to give evidence in the proceedings.
(3) Despite any rule of law to the contrary, evidence given by the victim:
(a) in any application for an award of statutory compensation, or
(b) in any hearing relating to that application, or
(c) in any other proceedings (whether civil or criminal) arising from substantially the same facts as those on which the award of statutory compensation was based,
is admissible in recovery proceedings.
(4) If evidence so given by the victim is admitted in recovery proceedings but the victim does not attend as a witness in the proceedings, that evidence must be given no greater weight than is appropriate as a consequence of there having been no opportunity for the victim to be cross-examined in relation to that evidence.
(5) The Tribunal does not have jurisdiction to order payment of costs in relation to recovery proceedings.
(6) A person (other than a public servant) who is required to attend or to give evidence at recovery proceedings is entitled to be paid such allowances and expenses as may be prescribed by the rules.”

30 Keeping in mind what is thus provided by the relevant part of the statutory framework, it is appropriate to turn to the actual claims for relief now made by Mr Mordaunt.

31 The relief actually claimed is framed as follows:

“The plaintiff is seeking:
1. The alleged finding of fact by the Tribunal overturned.
2. The Restitution order overturned.
3. The Supreme Court order the amount of Restitution to be paid by the plaintiff as NIL.
4 The Defendants are to pay the plaintiff's costs.

5. That the plaintiff be awarded damages."

32 What those claims are actually intended to convey is explained in the annexure to the summons which is said to provide "my grounds for Appeal".

33 The grounds are expressed as follows:

“ Ground 1
The Plaintiff appeals on the Ground that the Director Victims Service and the Victims Compensation Tribunal erred because the Plaintiff was not ‘convicted’ of the Criminal Offence of “Common Assault” referred to in Provisional Order for Restitution. In reference to the “Common Assault” 2/5/2002 the Magistrate made a finding of “guilt and dismissal”. On 5 June 2003 the District Court Judge upheld the Local Magistrate’s approach of regarding the s10 bond. Thus the s10 Bond was in regards to ‘continuing matters’, being alleged contravening of AVO order. These alleged contravene of AVO were all withdrawn by the DPP. In accordance with the rules the Plaintiff notified the Tribunal’s Restitution Section one month prior to the hearing of the intention to dispute the details of the ‘conviction’ as set out in the Notice of Provisional Order for Restitution. Therefore the Director of Victims Services and the Victims Compensation Tribunal erred in confirming a provisional order for restitution based on ‘conviction’ of “Common Assault”.
Ground 2
The Plaintiff appeals on the ground that the Director of Victims Service and The Victims Compensation Tribunal erred in law because the onus on the claimant to prove that it is more probable than not that the claimant suffered injury at the hands of the defendant is not met. There is failure to establish a compensable injury, and failure to establish a compensable injury above the threshold needed to claim an award of statutory compensation for ‘Domestic Violence’.
Ground 3
The Plaintiff appeals on the ground that the Director Victims Services and Tribunal Member Victim Compensation Tribunal erred in exercising discretion by simply preferring the claimant’s allegations. The principle of the civil standard of proof that requires that the claimant still bears the onus of proving the allegations were not applied thus leading to errors in fact finding. Briefly there is no evidence to support the alleged findings that the Plaintiff committed criminal offences of “Domestic Violence from 1 January 1984 to 1 April 2002” except for the alleged ‘push’ on 28 November 2001 resulting in no injury and a finding of ‘guilt and dismissal’ under s10.
Ground 4
The Plaintiff appeals on the grounds that Tribunal denied Natural Justice. The Plaintiff was not afforded procedural and evidentiary provisions pursuant to Victims Support and Rehabilitation Act 1996-Sect 52 (1); (2); (3); & (4). Thus the Plaintiff was denied the right to a just and fair hearing.”

34 Having regard to that material, my understanding of the present proceedings as originated by the amended summons is that they are intended by the plaintiff to be proceedings by way of an appeal against the orders made by the Tribunal. I shall return later in these reasons to explain what those orders were; and to discuss whether, in my view, they ought to be allowed to stand.

35 Before doing that, it is important to be clear about the nature of the present proceedings. If, as I have said, they are correctly conceptualised as an appeal against the orders of the Tribunal, then the nature of the proceedings is established by section 55 of the Victims Support Act.

36 It provides as follows:

“(1) An order for restitution that is confirmed after a hearing before the Tribunal may be appealed against in the same way as a judgment of a Local Court exercising civil jurisdiction may be appealed against.

(2) An appeal may not be lodged under this section if 1 month or more has elapsed since the date on which the order for restitution was made.”

37 The reference in section 55(1) to the taking to appeal of a judgment of the Local Court is to be understood in the context of the relevant provisions of the Local Courts Act 1982 (NSW). The relevant provisions are found in sections 73 and 75 of the Local Courts Act. Those provisions are:

“73 (1) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court against the judgment or order, but only as being erroneous in point of law.
(2) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its Small Claims Division may appeal to the Supreme Court against a judgment or order, but only on the ground of lack of jurisdiction or denial of natural justice.
75 The Supreme Court may determine an appeal made under this Division:
(a) by varying the terms of the judgment or order, or
(b) by setting aside the judgment or order, or
(c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court’s directions, or
(d) by dismissing the appeal.

38 The plaintiff's objection to the Director's provisional order for restitution was adjudicated at a hearing which took place in part on 31 January 2006 and in part on 14 February 2006. Mr Mordaunt represented himself at that hearing before the Tribunal and he has continued to represent himself at the hearing of the present proceedings in this Court.

39 The Tribunal confirmed the Director's provisional order, but reduced the amount payable under it, first, to $3,000; and immediately thereafter, and having heard further submissions from Mr Mordaunt on the matter of his financial capacity, to the amount of $2,000.

40 It is, if I may say so, not entirely easy to reconstruct what actually happened at the hearing before the Tribunal. It is clear enough from the transcript that a great deal of time was taken up, and that an unfortunately distracting amount of heat was generated, in a consideration of the question whether Mr Mordaunt had ever been "convicted of a relevant offence" in the sense contemplated by the statutory scheme.

41 What it is that constitutes a "conviction" for the purposes of the Victims Support Act is the subject of a definition in the Dictionary to the Act, which definition brings within the concept of a "conviction" an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

42 It is, and has always been beyond question, that Mr Mordaunt has been convicted in that extended statutory sense. The matter having been debated in full in this Court, Mr Mordaunt has, in the end, conceded - and, if I may say so, correctly and sensibly conceded - that so much of his claim as depends upon an assertion to the contrary cannot be sustained.

43 There was not quite so much discussion in the proceedings before the Tribunal of the question whether - assuming that Mr Mordaunt had been "convicted" of something - that “something” amounted to a "relevant offence" in the relevant statutory sense.

44 It seems to me to be beyond question that the material available to the Tribunal amply justified a conclusion that Mr Mordaunt had not only been "convicted" in the extended statutory sense; but that the offence of which he had been convicted in that sense satisfied the statutory definition of a "relevant offence".

45 The foundation of the conviction which was one for common assault was an allegation of an act of domestic violence. The foundational factual allegation before the compensation assessor was precisely that act of generic domestic violence. I perceive no basis upon which it could be found that the conviction for common assault was anything other than a conviction for a relevant offence in the sense in which the Victims Support Act employs those terms.

46 Those issues once removed, the powers of the Tribunal, and the focal points, therefore, of any hearing before the Tribunal, have necessarily to be referred back to, in particular, the provisions of section 49 earlier herein quoted. It is necessary to say something more particular about the provisions of section 49(2).

47 It seems to me that there is, on the face of the subsection, an immediate contrast between the propositions: first, that the Tribunal "may" confirm a provisional order if it is satisfied that the objector has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which statutory compensation has been awarded; and secondly, that if the Tribunal is not so satisfied then it "must" discharge the provisional order. It does not seem to me tenable as a matter of law to suggest that there is no significance attributable to the use in the one connection of the word "may" and the use in the related connection of the word "must".

48 The contrast between those provisions is, in my view, simply and clearly expressed; and is obviously intended to serve some practical purpose in the operation in any particular case of section 49.

49 If there were no other relevant provisions in the Act, it might be possible to rationalise that contrast upon the basis that what was intended was that a Tribunal should have a discretion not to confirm a provisional order in the form in which it had been made by the Director, and notwithstanding that the Tribunal itself was satisfied that the Director had correctly dealt with the two criteria prescribed for him by section 46.

50 That interpretation does not seem to me to be tenable. It could be said in such a case that what was intended was that the Tribunal should have a discretion even in those circumstances not to confirm the order as it stood when made by the Director, but to confirm it in some other terms, varied in a way favourable to the particular objector.

51 That approach to the construction of section 49(2) does not seem to me to be sound in the face of the specific provisions as to variation which are made: first, in subsection (3) of section 49 itself;and then separately in section 51.

52 It seems to me that the proper construction of subsection (2) entails that the Tribunal, in deciding whether or not it will confirm a provisional order, is not confined to the narrow question whether the Tribunal is satisfied that the Director was correct in the latter’s perception that the objector had been convicted of a relevant offence as those terms are used in the legislation.

53 That is important in the present particular case. For in the case of the present objection, and in the case of the hearing of that objection before the Tribunal, what the objector, Mr Mordaunt, was really wanting to argue out was not so much that the Director's opinion as to conviction of a relevant offence was unsound, - (although Mr Mordaunt certainly took and argued that point), - but rather that the foundational compensation award itself ought never to have been made.

54 The real point of the objection, as I have followed it and as best I can divine from the course of the hearing as recorded in the relevant transcript, was never a mere objection to the amount that the compensation assessor had provided in the award; but was the very different point that the award ought never to have been made in the first place, because the material put forward in support of the application for the award could be shown to have been either fundamentally flawed in law or fundamentally unreliable in fact

55 In advance of the actual hearing before the Tribunal Mr Mordaunt lodged with the Tribunal a submission which set out, essentially, the structure of the argument that he sought to make in support of his objection.

56 The relevant part of the opening paragraphs of that submission conveys an intention to seek an order that

"orders for restitution be set aside pursuant to Victims Support and Rehabilitation Act 1996 - sect 56 on the grounds that there is sufficient cause shown to set aside an order for restitution".

57 Section 56(1) provides in terms, and simply, that the Tribunal "on sufficient cause shown, may, by order, set aside an order for restitution".

58 The matters set out in that original submission were somewhat developed and recast in an amended notice of objection which was before the Tribunal; and the relevant contents of which can be found as part of annexure K to the affidavit earlier mentioned of Tracey Marie Hall.

59 The first particular ground of objection says this:

“My first ground of objection is procedure unfair - bias in accordance with the rules of evidence and the practice and procedure of Local Courts exercising civil jurisdiction. I refer to where it is said INFORMATION FOR THE DEFENDANT that the Tribunal will have access and 'will consider documents on the Tribunal's file and any relevant evidence presented on behalf of the defendant'. I have been denied procedural fairness and denied access to those documents that the Tribunal has on file. This is unjust and unfair."

60 There is a great deal more material, of course, contained in the submission from which I have earlier quoted and in the amended notice of objection to which I have latterly referred. It is not necessary to canvass the detail of that material.

61 What is important for present purposes is to make the point that, if there had been any remaining doubt in the mind of anybody reading the material previously quoted about Mr Mordaunt's actual objection to the Director's provisional order, then those doubts must surely have been resolved by the course of events at the actual hearing. It is necessary to look, now, at that hearing.

62 It is relevant to commence that consideration by recalling again that the conduct of this particular hearing was governed by the provisions of section 52 of the Victims Support Act. That is to say that, as a general proposition, the hearing was to be conducted in accordance with the rules of evidence and in accordance also with the practice and procedure of Local Courts exercising civil jurisdiction in a matter commenced by an ordinary statement of claim pursuant to the Local Courts (Civil Claims) Act 1970 (NSW).

63 The importance of that requirement is emphasised by comparing and contrasting what is thus required by section 52 with what is provided by clause 12 of schedule 2 to the Victims Support Act. That schedule provides relevantly for Tribunal hearings of a kind other than a hearing of an objection such as I am now discussing.

64 In hearings of those other kinds, the Tribunal is, by reason of clause 12 of schedule 2, not bound by the rules of evidence, but is entitled to inform itself on any matter in such manner as it thinks fit. Such hearings "must be conducted with as little formality and legal technicality and form as the circumstances of the case permit".

65 It could not have been other than within the contemplation of the learned Magistrate who sat as the Tribunal on the occasion with which I am now dealing, that the particular hearing could not be conducted in the free-wheeling manner for which provision is made in, for example, clause 12 of schedule 2.

66 Section 52, and in particular section 52(1), required a much more carefully structured and precise approach to the clarification of the issues for decision at the hearing; to the adducing of evidence by all interested parties in connection with those defined issues; and to the adjudication of those issues.

67 It is possible to piece together from the transcript of the hearing before the Tribunal, and from various parts of the affidavit evidence that has been led in connection with the present hearing, at least a general idea of what actually happened on the ground, so to speak, at the hearing before the Tribunal.

68 I have not had put before me by anybody what I would regard as a comprehensive survey of all of the material, whatever it was, that came to the learned Magistrate in one way or another during the course of the hearing. In the end, I do not see that there is any more reliable way of analysing what happened at the hearing before the Tribunal than to do so on the basis of the official transcript of that hearing.

69 The hearing commenced with an attempt by the then legal representative of the Director, - who has not appeared as such in the present proceedings), - to outline the broad underlying factual matters: that is to say, that an award of compensation had in fact been made in a particular amount on a particular day and upon a particular apparent basis.

70 Mr Mordaunt, appearing for himself, then made the first of a large number of very spirited objections and interruptions. He said that he was unaware of there ever having been any "domestic violence". He said that in any event he was not sure what the term actually meant. And he told the Tribunal that he was "curious" as to what actually was being put to the Tribunal in connection with alleged violence or domestic violence.

71 The representative of the Director then proceeded to explain that, at the Wyong Local Court on 2 May 2003, Mr Mordaunt had been convicted of a charge of common assault and had been given a "section 10 good behaviour bond for two years". It was explained, over objection by Mr Mordaunt, that an appeal had been taken to the Gosford District Court which had found the offence proved; had dismissed the appeal; and had confirmed the orders made by the Magistrate in Wyong.

72 This touched on what I believe may fairly be described as a prolonged and furious exchange - the fury being largely on Mr Mordaunt's part - on the topic of what did and what did not constitute a conviction for the purposes of the Victims Support Act.

73 I do not think it unfair to say that it seems to me to be clear from the transcript that the learned Magistrate became somewhat exasperated by the apparent inability of Mr Mordaunt to understand what was being put to him by the learned Magistrate on the topic of what was required for there to be a conviction for a relevant offence in the sense contemplated by the relevant provisions of the Victims Support Act. As matters proceeded, it began to emerge that what Mr Mordaunt was wanting to propound was not so much that the amount of the compensation award was appealably excessive; but that there never should have been made in the first place any such award.

74 There was a deal of very indignant observations by Mr Mordaunt of things allegedly said and done improperly by his former wife; and of the availability of material which, if accepted, would discredit her in what she had to say about the matters foundational to the making of the original compensation award.

75 During the course of these very tangled and rather excited exchanges, the learned Magistrate, in endeavouring to explain in particular the matters said to constitute, or to assist in constituting, a "relevant offence", spoke of a report by a particular clinical psychologist. This drew from Mr Mordaunt the proposition that as matters then stood he had not seen that material, notwithstanding that he had requested it. The representative then appearing for the Director, told the Magistrate that there was indeed such a request on file and that it had been tabbed in the file in a way then described. Mr Mordaunt said that he had never been provided with it. She contended then Mr Mordaunt had been informed. There was a further episode of cross-talking, and the upshot of it was that the Magistrate said this:

“I think there are certain parts of the file clearly that Mr Mordaunt should have the right to look at. For a start, he certainly should look at his former wife's statement. I think that should be clearly made available...and I also think he should certainly see the medical from...(a particular doctor, not being the clinical psychologist)...”

76 There ensued further exchanges, and they culminated in the Magistrate saying this:

“Stop. I only repeat again, two courts have found you guilty, two courts. The Local Court and the District Court on appeal have found you guilty of violence to your wife. There is medical evidence to support that, in my view, so that I am going to make a formal finding at this stage. It is a formal finding, and that is that I am satisfied that you have been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which the award of statutory compensation was made, and I therefore confirm the provisional order.”

77 The learned Magistrate then told Mr Mordaunt that he was proposing to adjourn "so that you can read the documentation and then we can proceed with the matter." .There were further attempts on the part of the learned Magistrate to explain to Mr Mordaunt the approach which the learned Magistrate was proposing to take, but those attempts, if I may speak in paraphrase, bogged down in yet further very spirited exchanges concerning whether there had been any violence at all; and if there had, over what period it might be supposed to have extended. The learned Magistrate said to Mr Mordaunt, and very importantly from the point of view of the present claim for relief, that it was possible for the Tribunal to look "at such other matters as are in the Tribunal's opinion relevant..." Mr Mordaunt asked what that actually meant, and the learned Magistrate replied to the effect that one of the matters might be that there had only been one conviction for one comparatively minor incident and that such a consideration might well go to the question whether the amount of the Director's provisional order, now confirmed as it had been by the Tribunal itself, should be varied by reducing it to some lesser amount.

78 Mr Mordaunt appears to have found all of this so provoking that he really did not engage the point that the Magistrate was trying to make with him. Mr Mordaunt spoke of going to the media. He spoke of wanting his matter dealt with "in front of a proper Court"; and he said that he wanted a jury to deal with his matter. He protested very strongly, but with complete clarity, that what was happening to him was, in his perception of things, not good sense, not fair and not right.

79 The learned Magistrate proceeded to make an adjournment order; and again he essayed to explain to Mr Mordaunt what, at least so far as the Tribunal was concerned, would be happening on the adjourned date. The learned Magistrate said:

“Now, bear in mind on that day we are going to consider your financial means and the other relevant matters and, again, I would point out to you one of the matters that you should be stressing is the fact that even though the award was made for almost a 20 year period, I've only been - the relevant conviction is in respect of one incident only. That's the matter that you should be stressing, amongst others...”

80 So matters continued until the adjourned hearing on 14 February.

81 On that day, the learned Magistrate inquired of Mr Mordaunt whether he had received the medical report and Mr Mordaunt said that he had. The learned Magistrate asked Mr Mordaunt whether he was proposing to give evidence on oath or by way of affirmation "or we can do as we did on the last occasion and you can make your submissions from the bar table, whichever suits you." Mr Mordaunt's reply to that was that he had seen his wife's statement and the medical certificate; and that he did not believe, for various reasons which he attempted then to articulate, that what he had read supported what needed to be proved in order to entitle the original compensation assessor to make the original compensation award.

82 That led, once again, and both unhappily and unhelpfully, if I may presume to say so, to a series of exchanges which really did nothing to clarify what were the actual remaining issues to be decided by the Tribunal; to clarify what were the relevant powers and discretions of the Tribunal; and to establish with a proper exactness what was to be the evidence upon the basis of which the Tribunal would proceed in due course to exercise its proper jurisdiction, powers and functions

83 Mr Mordaunt did at least manage to convey to the learned Magistrate that he could not see where there was any evidence of the psychological injury to his former wife, that being something of which he had heard repeated reference but could not in fact understand. The learned Magistrate explained that there was in existence a psychological report; and Mr Mordaunt replied that although he had been given the medical report he had not been given the psychological report.

84 This seems to have taken the learned Magistrate somewhat by surprise. Upon asking the representative of the Director, being the same representative as had appeared on the earlier occasion, whether it was the case that the psychological report had not been handed over, the learned Magistrate received the reply, "No, that wasn't allowed". The learned Magistrate asked, "It wasn't allowed?". And received the reply, "You mentioned to give the notes from …(the treating medical practitioner not being the relevant clinical psychologist)… so that was provided, and her statement." The learned Magistrate inquired whether there was any objection to Mr Mordaunt being allowed at least to read the psychological report. No objection was raised to that course; and a copy of the report was made available to Mr Mordaunt there and then during the course of the adjourned hearing.

85 Once again, the proceedings tended to get out of control because, once again, Mr Mordaunt expostulated at length and vigorously that he was in a position to show that things apparently said by or told to the clinical psychologist could be shown to be unreliable, if not indeed incredible.

86 The learned Magistrate finally dealt with the matter by taking into account what Mr Mordaunt had said to him as providing material upon the basis of which it would be proper, not to discharge the Director's provisional order, but to confirm it in a form which reduced substantially the amount payable under the order as confirmed by the Tribunal. The learned Magistrate made, accordingly, orders effecting those variations and making provision for payment by instalments. None of those details is of present moment.

87 It seems to me that a fair critique of what happened at the hearing before the Tribunal is to the following effect.

88 As soon as the Director's representative handed up the entire file which was then in her possession, the learned Magistrate, in my respectful opinion, being conscious of what was required by section 52 of the Victims Support Act, should have refused to receive the file except upon some proper basis ;and, in particular, upon the basis of the proper tender of the file and its contents. If the Director's representative had been intending to tender the file, she should have said so. If she was not intending to tender the file, then there was at the time no proper basis upon which the file could simply be handed in an undifferentiated form to the learned Magistrate.

89 Had the learned Magistrate required there and then that the Director's representative tender the file, if that is what she wished to do, then certain things must have followed. One is that the file must have been shown to Mr Mordaunt in order that he might object either in whole or in part to the tender. It seems to me to be a reasonable inference that in such a situation Mr Mordaunt would have objected upon the basis, among others no doubt, that he had things that he wanted to say about some at least of the contents of the file, especially insofar as those contents had been operative on the mind of the compensation assessor when the original compensation award was made. That would have required the learned Magistrate to come to a view as to whether or not he had, as I believe he plainly did, in terms of section 49(2) of the Act, power to go behind the original award, precisely in order to determine, not whether the Director's provisional order ought to be sustained in some varied form, but in order to determine, rather, whether it ought to be sustained at all by reason of its having been made in order to recoup a compensation award itself not properly made in terms of the statutory scheme. That would at least have given Mr Mordaunt an opportunity to say whatever it was he wanted to say, and to lead whatever evidence it was he wanted to lead, particular to that issue.

90 It seems to me that from that point on the proceedings in the Tribunal fundamentally miscarried. They miscarried because they gave disproportionate attention to two objections taken by Mr Mordaunt which could not possibly be sustained in law, namely, Mr Mordaunt's objections on the issue of "conviction" and of "relevant offence"; but did not ever really engage, either in law or in fact, the point that Mr Mordaunt, as it seems to me, was really wanting to make, namely, that there never should have been a compensation award of any kind.

91 The process of reasoning disclosed by the learned Magistrate does not seem to me to engage the foregoing questions at all; or if they were questions which did in fact occur to the learned Magistrate, then the reasons as expressed do not expose any sufficient process of reasoning in connection with those matters.

92 It seems to me, therefore, that the orders of the Tribunal ought not to be allowed to stand. I think that they are vitiated by clear error of law in that the requirements of section 52, in particular, of the Act were not complied with, with the result that there were never clarified precise issues for trial. Because of that, there was never structured properly a hearing in which both parties were pinned down carefully to the presentation in proper form of admissible evidence relevant to their respective intended cases, so that properly articulated issues for trial could be properly and fairly adjudicated upon the basis of admissible and credible evidence.

93 Out of what I conceive to be a proper respect and deference to the learned Magistrate whose orders I thus propose to set aside, I would wish to add the following brief observations.

94 The phenomenon of the self represented litigant is one of increasing frequency in this Court, and I imagine in the Local Court and in the Tribunal. That phenomenon is a fact of life, and there is no useful purpose in regretting it, or in being provoked or exasperated by it. There is no reason of principle or of practice that I can see that entails, and I am aware of no contrary authority that entails, that a self represented litigant ought not to be required in every proper way to articulate issues; to adduce in a proper form admissible evidence; and to put coherent arguments based upon that evidence and related to those issues.

95 It is always a thankless task for the Court concerned. It is always a difficult task for the Court concerned. For it is the temper of the times that more often than not a self represented litigant has a fixed idea about what he or she wishes to put, and will not be deflected from it either by persuasion or by reasoning. It is the case, however, that the Courts must do the best they can to deal with the phenomenon; and although some flexibility needs to be allowed to the self represented litigant, there must come a time when a Court before which such a self represented litigant is appearing insists that there be a properly structured approach to issues, evidence, and submissions. If in order to do that it is necessary to make orders or give directions, then that is what has to be done.

96 In a case of the present kind, if it appears from the passage of initial exchanges that things need to be taken firmly in hand, then that is what must be done; and, if necessary, procedural directions must be given, precise rulings must be made, proper formality must be observed. Otherwise, and as I am respectfully inclined to think happened at the hearing before the Tribunal, the particular proceeding simply takes on a life of its own and spirals out of anybody's effective control.

97 There are two remaining questions to which I must attend. The first is what precise orders are to be made in the light of the views which I have hitherto expressed. I propose to proceed in accordance with section 75(c) of the Local Courts Act 1982. Accordingly, I set aside the orders made by the Victims Compensation Tribunal, and I remit to the Tribunal the plaintiff's objection to the Director's provisional order for restitution in order that the objection may be redetermined in accordance with the opinions expressed in these reasons.

98 For more abundant caution, I make with all proper respect the following supplementary observations which I trust will be of assistance to the Tribunal when it comes to redetermine the plaintiff's objection.

99 In my opinion, the Tribunal should establish at the outset whether or not the plaintiff intends by his objection to invite the Tribunal to discharge the Director's provisional order upon the basis that the compensation award which the order seeks to recoup was not made either correctly according to law or fairly in fact or on both of those grounds. If, and insofar as, that is what the plaintiff proves to have in mind, then he should be required to put on affidavit evidence which deposes to facts said by him to support the attack that he wishes to make upon the propriety and the regularity of the original compensation award.

100 If the plaintiff has documents that he wishes to produce in aid of such a case, he should be required to annex or exhibit copies of them, respectively to or in conjunction with, his affidavit. If there are other particular documents that he wishes to see, he should be required to state with particularity what they are and; if there is any proper objection, either to the production of the documents or to the plaintiff's having access to them, the objection should be clearly stated and clearly ruled upon by the Tribunal. If it is desired to cross-examine the plaintiff upon any such affidavit lodged by him with the Tribunal, the appropriate notice should be given to him so that there is no room for fruitless argument about whether or not he is properly available to be cross-examined. There should be from first to last an insistence on the proper tendering of evidence in aid of crystallising distinctly articulated issues for trial; and in aid of adjudicating properly according to law any such issue.

101 What I have said is inclusive and not exclusive. I would not presume to attempt an exhaustive definition of what might be considered to be appropriate practice and procedure upon the redetermination of the objection. That is a matter for the Tribunal itself, and it is no part of my function to interfere pre-emptively in any definitive way. What I have said is said simply as a well-intentioned attempt to assist in avoiding a redetermination that unravels in the way in which the determination with which I have been dealing seems to me, with great respect to all concerned, to have unravelled.

102 I understand from things that have been said by Mr McAteer, who appears for the Director and for the Tribunal and to whom I am greatly indebted for his assistance throughout this hearing, that it is not unknown for a Court which remits a matter to the Tribunal to do so upon the basis that the remitter will be to a Magistrate other than the Magistrate who constituted the Tribunal on the particular prior occasion. I would consider it impertinent in both senses of the word to make such a recommendation, let alone an order. The assigning of a Magistrate to constitute the Tribunal for the hearing of the redetermination is entirely a matter for the proper authorities in the Tribunal itself, and I have nothing to say upon that topic.

Mr McAteer, I would be assisted what, in the light of all of that, you have to say about costs?

McATEER: We would have only one submission to say in respect of costs. That is, that I draw your Honour's attention to the item in my draft appropriate orders of the Court, if the matter was to be remitted, which it now is, on the aide-memoire on the last page that there is a rule which I assume is based on a convention that a self represented person cannot be awarded costs for their time and effort in proceedings, but that under that part 42 rule 2.25 the plaintiff in this instance is entitled to be paid or to have an order that his actual disbursements incurred in the litigation be reimbursed, effectively ordered to be paid by the defendant.

HIS HONOUR: I am concerned, of course, only with the costs of the hearing in this Court.

McATEER: Yes, your Honour.

HIS HONOUR: I will hear Mr Mordaunt, of course. My provisional view is that I should make no order as to costs. I should leave the parties to pay their own costs for this reason: Mr Mordaunt is successful in the sense that he gets the remitter to the Tribunal; but he gets it, really, on one of the four grounds that he took. To attempt to apportion the costs in a way that would be necessary were I to order, for example, that he had one-fourth of his costs, would be so complicated as to have very little practical utility.

Mr Mordaunt will perhaps think that I am criticising him unfairly, but that is not my intention. A great deal of time was taken up at this hearing, certainly on the first day, in discussion about those two points of conviction and relevant offence which, in my view, could not possibly succeed for the reasons I have given, and in what I have been saying this morning. When one takes a total view of that state of affairs, an order which left both parties to pay their own costs would not be unfair; but I will hear what Mr Mordaunt has to say about that.

PLAINTIFF: I agree, your Honour.

HIS HONOUR: In that case, I make orders in accordance with the orders proposed in the reasons. I order that each party pay its own costs of and incidental to the proceedings in this Court. The exhibits will remain in Court until further order.

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