"S" v Victims Compensation Fund Corporation - [2009] NSWDC 109

CITATION: “S” v Victims Compensation Fund Corporation [2009] NSWDC 109
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 March 2009

JUDGMENT DATE:
30 June 2009

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Leave to appeal is granted;
2. The orders made by the Victims Compensation Tribunal on 27 August 2008 in Tribunal proceedings 134954B are set aside;
3. The proceedings are remitted to the Victims Compensation Tribunal to be dealt with according to law;
4. The respondent is ordered to pay the applicant’s costs.

CATCHWORDS: ADMINISTRATIVE LAW – review of decision of Victims Compensation Tribunal that considered the appropriateness of the award of a claims assessor – denial of procedural fairness – Tribunal determined claim on a consideration of materials that included a disputed police facts sheet that was not disclosed to applicant until after determination by the Tribunal – inherent deficiency in Tribunal’s procedures – applicant a minor – victim of multiple incidents of aggravated domestic violence including beatings, whippings, category 3 sexual assault, burns caused by scalding with boiling hot water – incorrect findings of fact amounting to question of law – illogical reasoning – INTERPRETATION – construction of s 5(3) of Victims Support and Rehabilitation Act 1996 – WORDS AND PHRASES – “at approximately the same time”

LEGISLATION CITED: Victims Compensation Act 1987
Victims Support and Rehabilitation Act 1996

CASES CITED: Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139
Bridgeman v Victims Compensation Fund Corporation [2008] NSWDC 153
Director-General of the Attorney-General’s Department v District Court of New South Wales and Stark [1993] 32 NSWLR 409
Hope v Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1
McDermott v Owners of SS Tintoretto [1911] AC 35
MJW v Victims Compensation Fund Corporation NSWDC, unreported,18 November 1997
Muilwyk v Victims Compensation Fund [2005] NSWSC 153
Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260
Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668
Victims Compensation Fund Corporation v Nguyuen & Anor [2001] NSWCA 264; (2001) 52 NSWLR 213
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

TEXTS CITED: Hansard, NSW Legislative Council 15 May 1996
The Concise Oxford Dictionary of Current English, Eighth Edition, 1990
The Macquarie Dictionary, Revised Edition, 1985
Webster’s Dictionary, 1976

PARTIES: “S” (Applicant)
Victims Compensation Fund Corporation (Defendant)

FILE NUMBER(S): 5697 of 2008

COUNSEL: Ms G Mahony (Applicant)
Mr J McAteer (Solicitor for the Respondent)

SOLICITORS: IV Knight (Applicant)
Mr J McAteer (Respondent)

JUDGMENT

Nature of the case

1. The applicant is a minor aged 7 years. She is a ward of the State. These proceedings have been brought by her Tutor, a delegate of the Minister for Community Services. By summons the applicant seeks leave to appeal in order to obtain a review of the decision of the Victims Compensation Tribunal.

2. Between the ages of 2 and 6…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWDC 109
Decision Date: 30 June 2009

CaseChat Overview and Summary

The applicant, a minor at the time of the proceedings, challenged a decision of the Victims Compensation Tribunal that denied procedural fairness in its consideration of her claim for compensation. The dispute centred on the Tribunal's use of a disputed police facts sheet in determining her claim, which was not disclosed to her until after the decision was made. The Tribunal awarded the applicant a compensation amount, but she sought judicial review on the grounds that the decision was flawed due to procedural unfairness and errors in the interpretation of relevant legislation.

The court had to determine whether the Tribunal's decision was legally sound and whether it adhered to the principles of procedural fairness. The applicant argued that the Tribunal failed to provide her with an opportunity to respond to the police facts sheet and that the Tribunal's interpretation of a specific statutory provision was incorrect. Additionally, the applicant claimed that the Tribunal's reasoning was illogical and that it had made factual errors that amounted to questions of law.

In its judgment, the court found that the Tribunal's procedures were inherently deficient because they did not allow the applicant to address the disputed police facts sheet. The court also concluded that the Tribunal's interpretation of the statutory provision was incorrect and that its reasoning was illogical. The court held that these errors constituted a denial of procedural fairness and resulted in an unjust outcome. Consequently, the court granted the applicant leave to appeal, set aside the Tribunal's orders, and remitted the proceedings for reconsideration by the Tribunal. The court further ordered the Victims Compensation Fund Corporation to pay the applicant's costs.

Orders

Orders of the court

1. Leave to appeal is granted; 2. The orders made by the Victims Compensation Tribunal on 27 August 2008 in Tribunal proceedings 134954B are set aside; 3. The proceedings are remitted to the Victims Compensation Tribunal to be dealt with according to law; 4. The respondent is ordered to pay the applicant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	“S” v Victims Compensation Fund Corporation [2009] NSWDC 109 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 March 2009
JUDGMENT DATE:	30 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Leave to appeal is granted; 2. The orders made by the Victims Compensation Tribunal on 27 August 2008 in Tribunal proceedings 134954B are set aside; 3. The proceedings are remitted to the Victims Compensation Tribunal to be dealt with according to law; 4. The respondent is ordered to pay the applicant’s costs.
CATCHWORDS:	ADMINISTRATIVE LAW – review of decision of Victims Compensation Tribunal that considered the appropriateness of the award of a claims assessor – denial of procedural fairness – Tribunal determined claim on a consideration of materials that included a disputed police facts sheet that was not disclosed to applicant until after determination by the Tribunal – inherent deficiency in Tribunal’s procedures – applicant a minor – victim of multiple incidents of aggravated domestic violence including beatings, whippings, category 3 sexual assault, burns caused by scalding with boiling hot water – incorrect findings of fact amounting to question of law – illogical reasoning – INTERPRETATION – construction of s 5(3) of Victims Support and Rehabilitation Act 1996 – WORDS AND PHRASES – “at approximately the same time”
LEGISLATION CITED:	Victims Compensation Act 1987 Victims Support and Rehabilitation Act 1996
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Bridgeman v Victims Compensation Fund Corporation [2008] NSWDC 153 Director-General of the Attorney-General’s Department v District Court of New South Wales and Stark [1993] 32 NSWLR 409 Hope v Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 McDermott v Owners of SS Tintoretto [1911] AC 35 MJW v Victims Compensation Fund Corporation NSWDC, unreported,18 November 1997 Muilwyk v Victims Compensation Fund [2005] NSWSC 153 Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260 Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Victims Compensation Fund Corporation v Nguyuen & Anor [2001] NSWCA 264; (2001) 52 NSWLR 213 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
TEXTS CITED:	Hansard, NSW Legislative Council 15 May 1996 The Concise Oxford Dictionary of Current English, Eighth Edition, 1990 The Macquarie Dictionary, Revised Edition, 1985 Webster’s Dictionary, 1976
PARTIES:	“S” (Applicant) Victims Compensation Fund Corporation (Defendant)
FILE NUMBER(S):	5697 of 2008
COUNSEL:	Ms G Mahony (Applicant) Mr J McAteer (Solicitor for the Respondent)
SOLICITORS:	IV Knight (Applicant) Mr J McAteer (Respondent)