Rolfe v VCFC

[2002] NSWDC 21

New South Wales

District Court

CITATION:	Rolfe v VCFC [2002] NSWDC 21
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Andrew James Rolfe Victims Compensation Fund Corporation
FILE NUMBER(S):	412 of 2002
CORAM:	Sidis DCJ
CATCHWORDS:	further evidence or material - procedural fairness - s30(1) - s38(3) - special grounds
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996
CASES CITED:
DATES OF HEARING:	15/11/02
DATE OF JUDGMENT:	15 November 2002

JUDGMENT:

HER HONOUR JUDGE SIDIS: In this matter the appellant appeals against a determination of the Victims Compensation Tribunal dated 18 March 2002, dismissing an appeal against the determination of the assessor in respect of his claim published on 29 March 2001.

The circumstances which brought about the claim were that the appellant alleged he was assaulted by an offender on 24 May 1997, as a result of which he suffered injury. The incident was not reported to police until 12 June 1997, a period of nineteen days.

The assessor dismissed the application on the basis that the COPS report provided to the Tribunal at the Tribunal’s request indicated that the appellant’s wife had informed police, when reporting the incident, that the appellant and the offender had patched up their differences and that they did not wish police involvement. Police were provided with the name of the offender by the appellant’s wife.

There does not appear to be any dispute on the part of the assessor or the Tribunal concerning the facts and circumstances of the alleged act of violence.

The assessor took the view that the delay in reporting the matter to police and the conduct in informing police that police action was not required disqualified the appellant from an award of compensation under the provisions of sections 30(1)(b) and (d) of the Victims Support and Rehabilitation Act 1996 .

Upon receipt of the claim the Director of the Corporation had informed the appellant’s solicitors that, upon receipt of information necessary to process the claim, the matter would be listed. In the same notification the appellant’s solicitors were informed that the Tribunal had requested a report from the Police Service, and that when the report had been received the Tribunal would determine whether additional information was required in relation to the act of violence claimed in the application.

As already noted the police report was obtained prior to the matter having been referred to the assessor for determination but the appellant was not requested to provide any additional information having regard to the matters stated in that police report. The result was that the assessor accepted the information provided in the police report as the basis for the dismissal of the appellant’s claim.

An appeal was lodged to the Tribunal disputing the finding that there had been a failure by the appellant to pursue an investigation and prosecution of the matter, or to provide assistance to police in respect of the investigation, arrest or prosecution of the offender. It was also argued in the grounds of appeal that there had been no prejudice to the Fund as a result of the alleged conduct of the appellant.

The grounds of appeal were ultimately supported by a statutory declaration sworn by the appellant’s wife, to the effect that she denied having told police certain of the material contained in the police record. In particular she denied having told them that the dispute had been patched up between the appellant and the offender and that police involvement was not required.

The Tribunal determined the appeal on 18 March 2002 on two bases. Firstly it stated that it was satisfied that the assessor had correctly exercised his discretion under section 30 of the Victims Support and Rehabilitation Act 1996; and secondly, and in much greater detail, the Tribunal canvassed the question of whether the statutory declaration ought to have been admitted as additional material under section 38(3) of the Act. The Tribunal set out the legal principles to be applied and, having set those out, stated that there was no reason why those principles should not apply to section 38(3).

Leave to receive the further evidence comprised in the statutory declaration was formally refused by the assessor, who, after refusing leave, set out the principles upon which he made that decision.

If one looks at the basic issues in this appeal, the following must be noted. Firstly, when the assessor’s decision was made, there was before the assessor information of which the appellant was ostensibly unaware, and to which he had been given no opportunity to respond. Secondly, that information was relied upon by the assessor to deny the appellant any compensation in respect of what appears to be a significant injury, in circumstances where no issue was taken as to whether that injury was the result of an act of violence.

Thirdly, additional material was tendered before the Tribunal, in support of the grounds of appeal to the Tribunal, which would have addressed the shortcomings in the approach taken by the assessor in determining the claim in the absence of an opportunity on the part of the appellant to respond to the police report.

In my view, this clearly is a situation where there were special grounds to receive further evidence. Failure to receive that further evidence compounds a basic failure to deal with the appellant fairly and judicially.

It is argued on behalf of the Tribunal that it is obliged only to receive further evidence not only when special grounds are established, but also when an application for leave to submit further evidence, supported by reasons, is lodged with the Tribunal. In my view, this is not what is provided in section 38(3), and further, it is placing upon those who represent claimants, in a process which is intended to be of relative informality and simplicity, too great a requirement in terms of legal technicality.

On the issues arising under section 38 of the Act, the sole remaining issue is whether the grounds of appeal in the notice of appeal filed on 12 November 2000 adequately raise the shortcoming that I have already identified. In my view, that shortcoming is covered by ground (e) in the notice of appeal.
The notice of appeal also raises the question of whether there was an error of law by the Tribunal in failing to apply properly the provisions of section 30 of the Act, that is, the provisions that confer upon the assessors and the Tribunal a discretion as to whether compensation should be reduced or denied in circumstances where there has been a delay in reporting an act of violence to police, or where there has been a failure to provide reasonable assistance in the investigation, arrest or prosecution of the offender.

On the basis of the material that was before the assessor at the time the decision was made, and on the basis of the material to which the Tribunal limited itself at the time its decision was made, namely, the same material as was before the assessor, I cannot conclude that there has been an error of law in the determination to deny the appellant compensation. The fact that I would not necessarily have agreed in that decision does not convert it to an error of law.

In summary, therefore, the appeal is allowed on the basis that the Tribunal failed in its application of the provisions of section 38 of the Victims Support and Rehabilitation Act 1996, in that it misapplied the principles which it set out in its determination when exercising its discretion as to whether or not it should grant leave to receive further evidence. This misapplication arose out of the finding that special grounds did not exist in circumstances where there had initially been a failure on the part of the assessor to afford procedural fairness to the appellant in allowing the appellant to respond to the police report.

The matter will be remitted to the Tribunal for determination in accordance with these reasons. The respondent is to pay the appellant’s costs of the appeal. The Tribunal’s file will be returned.

oOo