Rebrick v Victims Compensation Fund Corporation

[1999] NSWDC 17

New South Wales

District Court

CITATION:	Rebrick v Victims Compensation Fund Corporation [1999] NSWDC 17
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Julie Rebrick Victims Compensation Fund Corporation
FILE NUMBER(S):	830 of 1998
CORAM:	English DCJ
CATCHWORDS:	Schedule 1(5) - shock :- beneficial legislation Schedule 1(5) - shock :- s 39
LEGISLATION CITED:	Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	24/9/99
DATE OF JUDGMENT:	24 September 1999
LEGAL REPRESENTATIVES:	Saddington Foggo

JUDGMENT:

HER HONOUR: Pursuant to the provisions of s 39 of the Victim's Compensation Act the applicant seeks leave to appeal against the decision of the Victim's Compensation Tribunal made on 19 October 1998. A document entitled "Statement of Determination Appealed Against", purports to set out grounds upon which the appeal is brought, that is that:

(i) That the Tribunal erred in its interpretation of clause 5 of schedule 1 of the Victim's Compensation Act and it's interpretation of the psychologist report.

(ii) That the Tribunal erred in its interpretation of McLoughlin and O'Brien when determining shock under the Victim's Compensation Act .

(iii) That the Tribunal erred in its interpretation of

Queen and Babic when determining shock before the tribunal erred in not interpreting the Victim's Compensation Act as a beneficial act of the people who had suffered injury as a result of a crime committed against them.

Written submissions were handed up by both counsel. The relevant provisions of the Victim's Compensation Act 1996 provide as follows:

Section 39 Appeals to the District Court on questions of law

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

Subsection (iii) For the purpose of this section the following matters are not questions of law.

a. In 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 particular description specified in that schedule.

The brief facts upon which the appellant's claim for compensation is based are that on Friday night 9 May 1997 the victim drove her motor vehicle to the car park at the Weston Workers Club. As she alighted from the vehicle she had her handbag in her left hand. Just as she got out of her car a person came up behind her, grabbed the handbag and pushed her back into the vehicle. The assailant ran off to the corner of First Street, jumped on a bicycle and was last seen as he sped along Cessnock Road towards Kurri Kurri. No police action was taken.

The victim consulted Marjorie Carpenter a clinical psychologist for three one hour interviews, she had been referred by her general practitioner Dr Heather Stephenson. Ms Carpenter's report is before the tribunal.

The assessor found that no compensable injury had been sustained. An appeal was lodged to the Tribunal from the assessor's determination, the tribunal dismissed the appeal, affirmed the determination of the assessor and declined to award costs.

The appellant now seeks to challenge the Tribunal's determination not to categorise the claimed injury as "shock" within the meaning of the Act.

The respondent says that the appeal must fail because the issue which the appellant seeks to ventilate on appeal is expressly prohibited by section 39, I agree.

In any event I am not satisfied that the question raised by the appellant is a question of law. On that issue the assessor came to a determination unfavourable to the appellant, the decision was confirmed by the Tribunal. The findings made by the assessor and confirmed by the Tribunal are findings of fact determined upon the material contained in the appellant's claim for compensation. Such findings of fact clearly fall within the definition of determination of the Tribunal from which no appeal lies to this Court.

The further ground relied upon by the appellant is that the Tribunal erred in not interpreting the Victim's Compensation Act as a beneficial act for people who have suffered injury as a result of a crime committed against them. I reject the submission.

In doing so I refer to the reading speech of the Attorney General and the Minister for Industrial Relations when the Victim's Compensation Bill as it then was was presented, that there was a need in so far as the Parliament was concerned to address the issues of compensation and no doubt the cost of it in matters of this nature. There was obviously some concern about the number of matters being heard by the District Court under the previous legislation on a de novo basis. There is reference, I note, in the Attorney General's speech to the District Court Appeals, at that time having a very high success rate. The regime concerning applications for compensation arising from injuries sustained in acts of violence is now set forth in the new Act and a new structure has been imposed as a result of that legislation.

The assessor and Tribunal have determined the matter in accordance with the Act and no appeal lies on the basis that they failed to deal with the matter otherwise than in accordance with the legislation and with the intention of the legislation.

The application has been misconceived and accordingly the application for leave to appeal is dismissed. I order the appellant to pay the respondent's costs.

SADDINGTON: Your Honour might I just argue a point in relation to costs?

HER HONOUR: Yes.

SADDINGTON: Your Honour just in relation to s 39 subs (5) that section says there are two things that the District Court can do, one is to uphold the appeal and the other one is - and refer the matter back to the tribunal, the other one is to dismiss the appeal and the section reads "On appeal the District Court may only" and uses the word "only" do those two things. There is no question there about awarding costs in relation to an appeal or anything of that nature. I see nothing in - I mean I stand to be corrected your Honour, but I see nothing in the Act that gives the Court the power to award costs in relation to an appeal.

HER HONOUR: Do you wish to be heard Mr Foggo?

FOGGO: Yes your Honour I think part 6 rule 6 of the District Rules--

HER HONOUR: Yes are specific rules which order - it's dealt with under the District Court Rules Mr Saddington and those rules provide the costs follow the event.

SADDINGTON: Yes your Honour but I still press the point, there's nothing in the--

HER HONOUR: No it's not in the Act it's contained within the District Court rules, it's been a point which has been argued frequently and it is contained within the District Court rules.

SADDINGTON: Yes your Honour.

HER HONOUR: My costs order remain.