Morina v NTA - [2008] NTSC 38

Morina v NTA [2008] NTSC 38
PARTIES:MORINA, CHARMAINE
v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:6 of 2008 (20711944) &

7 of 2008 (20711952)
DELIVERED:  15 September 2008
HEARING DATES:  8 August 2008
JUDGMENT OF:  MILDREN J
APPEAL FROM:  LOCAL COURT
CATCHWORDS:
STATUTES:
Crimes (Victims Assistance) Act, s 5, s 8(1), s 15(2), s 15(3), s 17(1), s 17(3), s 17(4), s 17(6)
Victims of Crime Assistance Act 2006, s 72, s 73
Local Court Act, s 19
CITATIONS:
Applied:
Tracy Village Sport & Social Club v Walker (1992) 111 FLR 32
Referred to:
Alice Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors (1997) 115 NTR 25
Craig v South Australia (1994-1995) 184 CLR 163
Hansen v NTA (unreported, 18 May 1994, Mildren J)
House v The King (1936) 55 CLR 499
LMP v Collins (1993) 112 FLR 289
Rigby v The Solicitor for the NT (1991) 105 FLR 48
S v Crimes Compensation Tribunal [1998] 1 VR 83
Wilson v Lowery (1994) 4 NTLR 79
REPRESENTATION:
Counsel:
Appellant:R Anderson
Respondent:  J McBride
Solicitors:
Appellant:Povey Stirk
Respondent:  John McBride
Judgment category classification:    C
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Morina v NTA [2008] NTSC 38

No. 6 of 2008 (20711944) & No. 7 of 2008 (20711952)
BETWEEN:

CHARMAINE MORINA

Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 15 September 2008)

These appeals are from decisions of the Local Court brought pursuant to s 19 of the Local Court Act. An appeal to this Court from a final order of the Local Court is limited to an appeal on a question of law only.
Background Facts
In the Local Court the appellant brought two applications pursuant to s 5 of the Crimes (Victims Assistance) Act (since repealed) first, in respect of an injury suffered as a result of an offence which occurred in the Aputula Community on 25 August 1998; and secondly, in respect of an injury suffered as a result of an offence which occurred at the Alice Springs Centrelink office on 28 June 2004.
The application in respect of the injury which occurred in 1998 was brought in proceedings 20711952. The learned Magistrate dismissed that application. The second application, which was brought in matter 20711944, was successful and the learned Magistrate made an order for an assessment certificate to be awarded pursuant to s 8(1) of the Act in the amount of $5,000.
The Legislative Background
The Crimes (Victims Assistance) Act was repealed by the Victims of Crime Assistance Act 2006, s 72.
Section 73 of the Victims of Crime Assistance Act 2006 provided that the repealed Act continued to apply in relation to an application for an assistance certificate made before the commencement date. The Victims of Crime Assistance Act 2006 commenced on 1 May 2007. The relevant applications were made to the Local Court on 27 April 2007 and are therefore governed by the former Act.
Sub-section 15(2) of the repealed Act provided that the hearing of an application under s 5 shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the former Act and a proper consideration of the application permitted. Sub-section 15(3) provided that subject to the Act, the Local Court was not bound by any rules of evidence, but may inform itself on any matter in such a manner as it thinks fit.
Sub-section 17(1) of the repealed Act provided that a fact to be proved by an application in proceedings under the Act shall be sufficiently proved where it is proved on the balance of probabilities. Sub-section 17(3) also provided that, except for medical reports or any other report relevant to a victim’s injury which may be filed in the Court, all evidence is to be given by affidavit. Sub-section 17(6) provided that a party may cross examine the deponent of an affidavit or the person who has made a report referred to in s 17(4) only with the leave of the Court.
The Evidence
The evidence in support of both claims was supported by an affidavit sworn on 8 October 2007 to which there were certain attachments and by a further affidavit sworn on 10 December 2007 to which were attached a number of psychological reports. At the hearing in the Local Court no evidence was tendered on behalf of the respondent and the respondent did not seek to cross examine the appellant or the authors of any of the reports. The evidence was therefore entirely documentary and uncontradicted.
The Claim in Relation to 20711952
In August 1998 the appellant travelled with a work colleague, Karen Wordsworth, to Finke Community in order to conduct business on behalf of her employer, Centrelink. On 25 August the appellant and Ms Wordsworth stayed overnight at the Apatula Women’s Centre. At about 11:00 pm, a person, now known as Ronnie Goodwin, knocked on the door of their accommodation. Neither woman answered the door. A couple of minutes later there was further knocking on the door and the appellant asked who was there. Goodwin replied that he had a knife. The appellant heard what sounded like a knife being run up and down the door. The women barricaded the door with a chair as Goodwin was trying to get in. He made threats that when he did so he was going to rape and kill the women. He also said that he was going to get his gun in order to kill them and threatened to wreck their vehicle. The appellant was terrified and sat in the chair that was used to barricade the door to prevent him from getting in. Eventually the women found a way to escape from the building and they ran through the Women’s Centre towards the primary school, both screaming for help. They eventually made their way to the Community Development Officer’s house, approximately one kilometre away. The appellant states that as a result of this incident she was in a state of shock and did not sleep much during the night.
The following morning the appellant reported the matter to the police at the Kulgera Police Station. Mr Goodwin was subsequently charged with aggravated assault and was found guilty and fined $290.
The appellant was unable to work for two weeks as a result of the assault. Upon returning to work she started to have difficulties with coping with her employment. She became very fearful of members of the public attending at her work place and was unable to deal with aggressive persons anymore. She dreaded any time spent on reception or doing interviews, especially with persons whose applications for Centrelink benefits were to be rejected. As a result she also suffered disturbed sleep; a sense of detachment from life; and a feeling of numbness as well as other symptoms.
In February 1999, the appellant moved to Strathalbyn in South Australia to reunite with her partner and to get away from Alice Springs. She gained an employment transfer to the Mount Barker office of Centrelink believing that the move would make her less likely to be fearful at work. However, her condition worsened because her workload was heavier and she did not believe that she had the knowledge to perform satisfactorily. As a result she began to see a counsellor through her employer. She continued at the Mount Barker office nevertheless.
In April 2000 she gave birth to a child. After giving birth, her depression deepened. She began drinking, her behaviour became erratic and she became increasingly angry. She saw a doctor in Strathalbyn and he prescribed various medications, all of which had severe side effects such as high blood pressure and disorientation.
Her condition continued to worsen and she was admitted to Helen Mayo House at Glenside Hospital on 28 January 2001 for a period of four weeks to be assessed and stabilised. During this time she says that she was diagnosed with a post traumatic stress disorder. She says she remembers not much about this time.
In 2003 she and her partner returned to Alice Springs and she returned to work at the Alice Springs Centrelink office. By mid 2004 she felt that she had almost overcome her anxiety, but was still suffering from depression.
According to the report of Mr Michael Tyrrell, clinical psychologist, dated 15 February 2007, the assault at Finke left the appellant with permanently very increased stress sensitivities. His report indicates that she had consulted Dr Cotton a clinical psychologist in the same practice as Mr Tyrell and Mr Tyrrell indicates that he has had access to Dr Cotton’s reports and notes in forming his opinions.
There was however no report from Dr Cotton available to the learned Magistrate, nor was there a report from the appellant’s general practitioner in Strathalbyn; nor was there a report from Glenside Hospital.
There were, however, two reports filed in which the authors of the reports referred to and accepted that the appellant suffered a mental injury as a result of the assault at Finke. First there was a report from Ms Tracy Quinney, a consultant psychologist, dated 22 February 2005 in which she indicated that the second incident in 2004 has “exacerbated a previously diagnosed condition of post traumatic stress disorder”. It is clear on reading the report as a whole that the author is referring to the incident at Finke as the cause of this disorder.
There was also a further report from Mr Tyrrell dated 11 February 2005 in which he reported that the appellant “presents with a complicated traumatic stress syndrome for which she was seeking EMDR from which she recalled having good response in treatment some time after the 1998 traumatic incident”. Thirdly there was a report from a psychologist, Dian Booth, dated 6 December 2007 in which she referred to the appellant’s experience as being consistent with the usual symptoms of chronic post traumatic stress disorder. On page 5 of that report the author observed that the appellant experienced “several ongoing symptoms of post traumatic stress disorder in the years following the event at the Apatula Community on 25 August 1998”.
The Evidence in Relation to Matter 20711944
On 8 June 2004, the appellant was interviewing some people at the Alice Springs Centrelink office. She became aware of a man whom she now knows to be Richard Boyd becoming quite agitated with two of her work colleagues. Mr Boyd’s behaviour escalated to screaming threats. She continued interviewing the people, her back towards Mr Boyd. She heard a loud crashing sound and immediately turned around to see that Mr Boyd had pulled a workstation from its bolts in the floor and had upended the desk over her work colleague. Another colleague ran at the man and hip and shouldered him to the ground. The appellant was terrified by the incident and quickly terminated the interview.
On 8 June 2004, Mr Boyd was convicted of unlawfully damaging property and disorderly behaviour in a public place. He was fined $250 with an $80 victim impact levy.
Shortly after the second incident, the appellant felt distressed and made appointments to see her doctor and psychologist. She felt that she had to get out of the Centrelink working environment and developed suicidal thoughts. She claims to have had little self esteem for a very long time and is unable to cope with small things that she would once have handled easily.
In her affidavit she says that she was once very sociable, but is now unable to deal with work environments which have high levels of public interaction and that she does not seek any new friendships or maintain old ones. Her love for sport has diminished because it means that she needs to be sociable. She dreads school functions for her children and does not feel part of the community any more.
She says that she does not venture out alone at night even in the car and is unable to travel to remote places. This has interfered with her employment prospects as she has had to decline lucrative contracts which involve travelling to remote areas. She also experiences elevated anxiety when travelling interstate by car, especially when she is in a remote region. She does not enjoy camping any more which makes her feel sad as she has enjoyed being outdoors and used to enjoy living in the Northern Territory.
She also has problems with excessive anger which sometimes is so intense that it takes days for her to return to some level of normalcy. Loud noises and unexpected banging trigger off feelings of elevated nervousness.
She reports also feeling unable to make “very good decisions any more as she feels she has lost the ability to think things through, analyse and come to the best solutions”.
The report of Ms Quinney of 22 February 2005 suggested that the incident in 2004 exacerbated the appellant’s previously diagnosed condition of post traumatic stress disorder. Ms Quinney recommended that she would benefit from psychological treatment and from a low dose antidepressant. She also advised that she should not remain in employment in which she has to deal with the public.
Mr Tyrrell considered that the episode in 2004 was an exacerbation of her previous chronic post traumatic stress disorder.
Some time in 2006 it appears that she entered into a plan after separating from her husband to purchase a small café/catering business. Mr Tyrrell reported that the appellant had completed the first 12 months of running this business and had shown improvement in her mental state overall. He advised that she had had to persevere and meet long hours, to negotiate and take a firm line and deal with a wide array of customers in a relatively isolated bush setting. However, after a period of 12 months Mr Tyrrell reported that the business, which was an adjunct to a local community run native flora park, was to be taken over by the committee in charge of the park.
Mr Tyrrell advised that in the future the appellant will remain vulnerable to post traumatic stress symptoms arising in the face of acutely challenging situations. In his opinion, the appellant’s reactions will include a strong urge to escape or avoid situations of stress; acute anxiety reactions to threats; acute dips in mood; and acute unsettling physical symptoms of hyper arousal such as periodic disturbed sleep. However, all of these will usually respond to brief counselling intervention using a well proven post traumatic stress treatment paradigm.
It is apparent from the reports that the appellant also suffers from Hashimoto’s thyroiditis which has a bearing on her stress resilience largely due to a tendency to make her feel fatigue and perhaps lean her to emotional overactivity and low self esteem due to associated overweight. This in turn would inhibit her readiness to exercise in public. Nevertheless Mr Tyrrell said that the Hashimoto’s syndrome and related issues have some but not a core role in her stress responses. I note too that she also suffers from diabetes.
It seems that in July 2007 the appellant, who had at some earlier time reunited with her partner, began to assist him in his concreting business. She was capable of helping with some of the physical work and had creative skills to offer in the way of suggesting designs specifically tailored to each location. She found the work very therapeutic.
Ms Booth considered that it most unlikely that the appellant would be able to completely throw off the combined effects of all of her traumatic experiences and is still prone to bouts of her symptomology. These, in her opinion, will vary in frequency of occurrence and in intensity. Ms Booth considered that it is most likely that she will need ongoing counselling for the remainder of her life – at least monthly.
The Grounds of Appeal
The learned Magistrate after reviewing the evidence in relation to matter 20711952 dismissed the appeal because he was “not satisfied beyond reasonable doubt that the applicant suffered an injury as a result of the 25 August 1998 offence”.
One of the grounds of appeal is that the learned Magistrate applied “the incorrect burden of proof” (sic) to the assessment of causation of the appellant’s injury as a result of the offence of 25 August 1998. Counsel for the appellant obviously meant the incorrect standard of proof. This point was conceded by counsel for the respondent. Notwithstanding this concession, I would hesitate to allow the appeal solely on this ground for the reason that in reasons delivered on the same day in relation to matter 20711944, the learned Magistrate refers to the correct standard as being on the balance of probabilities, and it may well be that the reference to proof beyond reasonable doubt is merely a slip.
However, I think the learned Magistrate did err in concluding that there was no evidence sufficient to support a finding that she suffered an “injury”.
The word “injury” is defined by s 4 of the former Act to mean “bodily harm, mental injury, pregnancy, mental shock or nervous shock…”
In Tracy Village Sport & Social Club v Walker[1] I discussed the relevant principles relating to what is and what is not an error of law as opposed to what is an error of fact. My judgment in that case was approved by the Court of Appeal in Wilson v Lowery[2].
However, as was pointed by Philips JA in S v Crimes Compensation Tribunal[3], that is not to say that a decision below may not involve some other question or questions of law, for example if the court asks itself the wrong question or imposes the wrong standard of proof.
In Craig v South Australia[4], Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
“… The ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involving matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the original decision of the inferior court.”
Some of the grounds of appeal in this matter relied upon by the appellant are really grounds of the kind referred to in House v The King[5], where the appeal is on law and fact and where the judgment complained of depends upon the exercise of a judicial discretion by the Court imposing it. I refer in particular to grounds such as the ground that the learned Magistrate erred as a matter of law in failing to consider relevant materials or that he took into account irrelevant considerations in coming to his decision. These grounds, it seems to me, do not raise any question of law at all, but really amount to no more than a criticism of the fact finding process made by the learned Magistrate. Ordinarily the decision of a magistrate dealing with a case of this nature is a decision involving questions of fact. As long as there is some evidence to support the ultimate conclusion arrived at, the appeal cannot succeed on such a ground. The findings of fact cannot be reviewed even if it is alleged that the Court below ignored the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made and even if the reasons were demonstrably unsound.
I do not accept that the learned Magistrate in arriving at his decision did in fact take into account irrelevant matters or fail to take into account relevant matters.
However, it is well established that a question of law will arise in any case where, the facts not being in dispute, the only question is whether the case falls within or outside the terms of the statute[6]. In this particular case, the facts are not in dispute. No witness was cross examined, none of the psychologists who offered opinions were cross examined and no contrary evidence was led. The question then is whether or not the evidence as led, which was uncontested, proved facts which showed that the appellant suffered an “injury” as defined.

In my opinion, the evidence was very clear on this point. There may have been difficulties in deciding to what extent and for how long the appellant suffered as a result of her injury, but it is clear on the evidence that the appellant did suffer a mental injury. I would therefore allow the appeal in relation to matter 20711952.
The Appeal in Respect of Matter 20711944
The grounds of appeal in relation to this matter are, in my opinion, with the exception of one of the grounds, all grounds going to questions of fact and not errors of law. It was submitted for example that the learned Magistrate erred in failing to consider relevant materials before him in coming to his decision. In my view that is not an error of law in an appeal of this type.
In Craig v South Australia[7], Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
“If… an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
However, there their Honours were referring to an administrative tribunal and not to a court.
In any event, I am not satisfied that the learned Magistrate did fail to consider all the relevant materials before him in coming to his decision. It may be that he rejected some material or gave it less weight than I might have done, but that is an error, if it is an error, of fact not of law.
The same comments apply to the next ground, namely that the learned Magistrate erred as a matter of law when he took into account irrelevant considerations.
Again that is not an error of law; but in any event I do not consider that the learned Magistrate did take into account irrelevant considerations.
Another ground relied upon was that the learned Magistrate erred in that his assessment of the amount of the assistance was inadequate and in all the circumstances was so unreasonable as to be plainly unjust. However, that ground of appeal is only appropriate where there is an appeal from a discretionary judgment and where the appeal is both on fact and law.
The final ground of appeal was that the learned Magistrate erred in applying the incorrect method of assessment. It was submitted that the learned Magistrate assessed the amount of quantum in respect of the grant of an assistance certificate to the appellant as being on a range or scale of the percentage for the total permitted under the legislation.
If that is what the learned Magistrate in fact did, I would agree that that is an error of law[8].
The question which the learned Magistrate posed for himself was:
“Is her injury of such a severity that an Assistance Certificate should be granted for an amount of between 60–100% of the total amount permitted under the legislation?”
Counsel for the respondent submitted that all his Honour was doing was commenting on that which was urged upon him by counsel for the appellant at the hearing. Be that as it may, I consider that the learned Magistrate did approach the assessment by reference to a percentage of the maximum and was in error in doing so. It is difficult to understand how his Honour could have otherwise ordered such a plainly inadequate sum.
I therefore consider that the appeal against the amount awarded in matter 20711944 must be allowed.
Assessment of the Amount Which Should Have Been Allowed in Relation to Both Matters
Both counsel invited me to make one award in relation to both matters if the appeals were successful. Having regard to the evidence which I have set out above, I consider that the appellant was entitled to a total award which reflected the pain and suffering and loss of amenities which she sustained in the sum of $50,000.
As the learned Magistrate pointed out, there were some subsequent events which either exacerbated her symptoms or perhaps operated as a complete novus actus interveniens. These included the problems associated with the appellant’s birth to her second son in April 2002 and the worsening of her condition which resulted in her being admitted to the Helen Mayo House.
There is also mention of difficulties at times with her relationship with her partner, but these difficulties according to Ms Quinney do not appear to bear on the situation to any great degree. It is not entirely clear when these difficulties with her partner arose.
The burden of proving a novus actus interveniens rested upon the respondent. The evidence does not show that the appellant ever made a complete recovery from the injury sustained as a result of the Finke incident. On the contrary, although she eventually made a good recovery from that problem, she remained suffering from the chronic remnants from and an enhanced predisposition to post traumatic stress disorder, which re-emerged as a result of the episode in 2004 and which are likely to continue for the rest of her life.
Doing the best I can on the relatively limited material available, I am satisfied that if I were awarding damages for pain and suffering and loss of amenities of life in accordance with common law principles, I would award more than the maximum of $50,000. The appellant is therefore entitled to a certificate in the sum of $50,000 in relation to both matters.
Orders
I make the following orders:
1.   The appeals are allowed in relation to both matters.
2.   Order that the appellant be granted a certificate in the sum of $50,000.
3.   The respondent is to pay the appellant’s costs of the appeals and in the Local Court to be taxed.

[1] Tracy Village Sport & Social Club v Walker (1992) 111 FLR 32 at 37-39

[2] Wilson v Lowery (1994) 4 NTLR 79 at 84-85

[3] S v Crimes Compensation Tribunal [1998] 1 VR 83 at 92

[4] Craig v South Australia (1994-1995) 184 CLR 163 at 179-180

[5] House v The King (1936) 55 CLR 499 at 504-505

[6] See Alice Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors (1997) 115 NTR 25

[7] Craig v South Australia (1994-1995) 184 CLR 163 at 179

[8] See Hansen v NTA (unreported, 18 May 1994, Mildren J) at para 5-6; Rigby v The Solicitor for the NT (1991) 105 FLR 48 at 49; LMP v Collins (1993) 112 FLR 289 at 301, 302 and 309