Purkis v VCFC

[2002] NSWDC 15

New South Wales

District Court

CITATION:	Purkis v VCFC [2002] NSWDC 15
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	John Barry Purkis Victims Compensation Fund Corporation
FILE NUMBER(S):	515 of 2002
CORAM:	Delaney DCJ
CATCHWORDS:	s38(3) - s39(3) - special grounds
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:	Victims Compensation Fund Corporation v Sarah Jane Hill [2002] NSWCA ; Minister for Immigration and Ethnic Affairs v Woo Shang Liang (1996) 185 CLR 259 ; Australian Heritage Commission v Mt Isa Mines Limited (1997) 187 CLR 297
DATES OF HEARING:	3 October 2002
DATE OF JUDGMENT:	3 October 2002

JUDGMENT:

HIS HONOUR JUDGE DELANEY: The appellant filed a notice of motion in the District Court Parramatta, seeking orders that the appellant be given leave to appeal against a determination of the Victims Compensation Tribunal made on 18 February 2002.

There was no real issue advanced about giving permission to the appellant to proceed with the appeal out of time, and I grant that application. I now proceed to the application.

The appellant submits that the Tribunal erred in failing to take into account relevant evidence to prove, on the balance of probabilities, the extent of the appellant’s compensable injuries. In support of this application the appellant relied on the affidavit of Phillip Arthur Kotsikos, dated 5 September 2002. The jurisdiction of the Court to hear this appeal is limited by s.39 of the Victim’s Support and Rehabilitation Act (1996) which provides:
(1) an applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal.
(2) An appeal by a person under this section may be instituted (a) within the period of three months after the day on which the relevant notice of the determination made by the Tribunal was duly served on the person, or be within such further time as the District Court may, in exceptional circumstances allow.
(3) For the purposes of this section the following matters are not questions of law: (a) a determination of whether an injury for which compensation has been claimed as an injury specified in the schedule of compensable injuries, or whether it is a compensable injury of a particular description specified in that schedule; (b) a determination of whether a series of acts are related and constitute a single act of violence.
(4) An appeal does not lie to the District Court against a decision of the Tribunal to refuse leave for late application for statutory compensation.
(5) On an appeal the District Court may only (a) affirm the determination of the Tribunal, or (b) set aside the determination and remit the matter to be considered an determined again 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 notice of appeal pleads is the only ground of appeal that the Tribunal erred in law in refusing to admit additional evidence
“In that the learned magistrate misdirected himself as to what could amount, in law, to special grounds and/or in the alternative that on the evidence before the Tribunal there was only one finding open, namely that special grounds had been established.”

This clearly falls outside the limitation on 39(3) above and I find that I have jurisdiction to hear this appeal. Section 38(3) provides:
“An appeal from a determination of a compensation assessor is to be determined on the evidence of 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.”


In Victims Compensation Fund v Hill (2000) NSW CCA 75, the Court of Appeal considered this section. The Court noted that in relation to an appeal to the District Court:
“The questions of law for his Honour’s determination could only be whether the Tribunal had misdirected himself as to what could amount in law to special grounds, or whether on the evidence before the Tribunal there was only one finding open, namely that special grounds had been established.”


Their Honours noted that the judge at first instance in that case had only reference to a decision in Hatley , which I made, and they provided the following principles to be taken into account in determining a question of whether an error of law had occurred in relation to s.38(3). In paragraph 26 their Honours said:
“The mischief that led to the enactment of s.38(3) as described by the Attorney General in debate in committee on the bill which became the Victims Compensation Act (1996) he explained why the government opposed certain amendments (which were later rejected in the Legislative Council). The government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim’s compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then after taking advantage of the current right to appeal de novo to the District Court introduce a great deal more evidence and produce more extensive material.

Paragraph 27:
The first sentence of s.38(3) states the general rule. The second sentence states a conditional exception, namely that one permits further evidence or material to be received in the Tribunal if (1) the Tribunal grants leave and (2) if the Tribunal considers that special grounds exist, or if evidence of material concerns matters occurring after the determination appealed against.

Paragraph 28:
The words ‘considers that’, emphasise that it is the Tribunal’s satisfaction that special grounds exist, that is determinative. This does not render the consideration immune from review for error of law, but the grounds of such review are narrowed, see (f) Minister for Immigration and Ethnic Affairs v Woo Shang Liang (1996) 185 CLR 259 pp 274-276, Australian Heritage Commission v Mt Isa Mines Limited (1997) 187 CLR 297 at pp 303 and 308.

Paragraph 29:
The concept of special grounds is a familiar one in the context of an appeal by way of re-hearing. Thus the Court of Appeal is empowered to receive further evidence upon the hearing of an appeal...”

The Court considered that there was no reason why the principles advanced in para 30 should not apply to s.38(3) despite the fact that the appeal to the Tribunal was not an appeal from a Court to a Court.

There has been no specific decision on special grounds, although the Court has referred to it. In my view the principles from Atkins are to be applied, although evidence may still be admitted even though these pre-conditions are not met. However, this will only occur in exceptional cases. In the facts of this case the Tribunal considered that the main grievance in the appeal was that the appellant was suffering from an injury on a psychological basis. The Tribunal’s reasons for judgment refer to the following matters: (a) A factual inference that the appellant had disclaimed any symptom of a psychological nature; (b) it was inferred that it was not until the assessor’s determination that the appellant did not reach the s.20(1)(a) threshold, that the appellant’s supposed psychological disorder surfaced; (c) the Tribunal found that the alleged psychological injury is designed simply to overcome a threshold effect on the injury originally nominated; (d) the Tribunal thought that if the appellant had suffered the symptoms of psychological injury, these would have been evidence prior to giving instructions to his solicitors twelve months after the act of violence; (e) if the appellant’s solicitors thought it likely that the appellant had sustained a psychological injury he should have waited until the injury was professionally assessed, taking into account the two year time limit for making an application to the Tribunal; (f) the Tribunal also noted the efforts by the VCFC to inform practitioners of the changes in the Act; (g) The report of Dr Papmichos, the Tribunal found, was clear evidence that the appellant sustained the injury nominated in his application form and no other.

The Tribunal referred to the passage in Hill and reached the following conclusion:
“S.38(3) is not designed to allow appellants to gather additional material with the benefit of the assessor’s determination in hand. I am of the view that had the appellant been awarded $7,200 for injury nominated in his claim form and not been caught by the threshold provisions, he would not be seeking to appeal so as to introduce additional injuries to get him over the threshold. Therefore I am not of the view that special grounds exist or that the material concerns matters occurring after the assessor’s determination.”


The Tribunal refused leave to admit the additional medical reports of Doctors Robertson and Mahoney.

It is clear from the matters that the Tribunal considered, and its conclusion that it failed its discretion under s.38(3) it did not make any findings as to the availability of the evidence at the time of the assessor’s determination, nor as to the probability of there being a different verdict, or in relation to the credibility of the evidence. It seems more that the Tribunal was concerned with the appellant’s motive for seeking to tender the evidence rather than considering whether or not that evidence provided material upon which it should properly exercise its discretion under s.38(3).

Accordingly, the order I make is that the determination of the Tribunal is set aside and the matter is remitted to the Tribunal to be considered and determined again with the hearing of further evidence in accordance with law.