SAS Trustee Corporation v Budd - [2005] NSWCA 366

CITATION:
SAS TRUSTEE CORPORATION v BUDD [2005] NSWCA 366

HEARING DATE(S):
6 July 2005

JUDGMENT DATE:

28 October 2005

JUDGMENT OF:
Mason P at 1; Handley JA at 55; McColl JA at 56

DECISION:
Appeal upheld.

CATCHWORDS:
VICTIMS COMPENSATION - injury in the course of duty as a police officer - Victims Compensation Act 1987 - appeal to the District Court - global award - absence of transcript of judge's reasons - evidentiary void - s12D, s12E Police Regulation (Superannuation) Act 1906 - gratuity - construction of s12E - permanent impairment compensation - compensation for pain and suffering - rule against double compensation - evidentiary onus - where shown that money was paid it is for the recipient to show that the money was not received in compensation for the loss. (D)

LEGISLATION CITED:
Police Regulation (Superannuation) Act 1906
Victims Compensation Act 1987
Workers Compensation Act 1987
Victims Compensation Act 1996 (later renamed the Victims Support and Rehabilitation Act 1996)

CASES CITED:
BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288
Boncristiano v Lohmann [1998] 4 VR 82
Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249
Re Application of Foster [1982] 2 NSWLR 481
SAS Trustee Corporation v Rayment (2000) 49 NSWLR 175
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Townsend v Stone Toms & Partners (1984) 27 BLR 26
Waugh v Kippen (1986) 160 CLR 156 at 164

PARTIES:
SAS TRUSTEE CORPORATION v Esca BUDD

FILE NUMBER(S):
CA 40744/2004

COUNSEL:
Appellant: G Watson SC/ T Ower
Respondent: R de Meyrick

SOLICITORS:
Appellant: Shaw McDonald Pty Ltd
Respondent: Taylor & Scott

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
RJ 00442/2003

LOWER COURT JUDICIAL OFFICER:
Walker DCJ

CA 40744/2004

MASON P
HANDLEY JA
McCOLL JA
Friday 28 October 2005

SAS TRUSTEE CORPORATION v Esca BUDD

JUDGMENT

1 MASON P: The Court heard full argument that disclosed that there should be leave to appeal.

2 On 6 November 1995 the respondent was injured in the course of duty as a police officer. While making an arrest he was set upon by a group of people, punched, knocked to the ground and kicked.

3 On 17 February 1997 he applied for compensation under the Victims Compensation Act 1987. He claimed as a “primary victim of an act of violence”. Although the 1987 Act was repealed on 2 April 1997 upon the commencement of the Victims Compensation Act 1996 (later renamed the Victims Support and Rehabilitation Act 1996), the 1996 Act provided that pending applications were to continue to be dealt with in accordance with the repealed Act (see Schedule 3, cl 3).

4 On 16 February 1999 the Victims Compensation Tribunal made a global award in the sum of $15,000. The reasons for determination show that the Tribunal was aware that the applicant had what it termed “a workers compensation entitlement”. The Tribunal noted that it seemed clear that the applicant had permanent impairment(s), but added that nowhere was there “any report which puts any impairment…

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: [2005] NSWCA 366
Decision Date: 28 October 2005

CaseChat Overview and Summary

The SAS Trustee Corporation appealed to the Court of Appeal of New South Wales against a decision of the District Court which had awarded compensation to Mr Budd, a former police officer, under the *Victims Compensation Act 1987*. The dispute concerned the extent to which Mr Budd was entitled to compensation for injuries sustained in the course of his duty as a police officer, given that he had also received a gratuity under the *Police Regulation (Superannuation) Act 1906*.

The primary legal issues before the Court of Appeal were whether the District Court judge had erred in making a global award of compensation without sufficient regard to the statutory provisions preventing double compensation, and whether the onus of proof had been incorrectly placed regarding the nature of the gratuity payment. Specifically, the court had to consider the construction and application of sections 12D and 12E of the *Police Regulation (Superannuation) Act 1906* in relation to permanent impairment and compensation for pain and suffering.

The Court of Appeal found that there was an evidentiary void due to the absence of a transcript of the District Court judge's reasons, which made it difficult to ascertain the basis of the global award. The court applied the principle that where a payment has been made, it is for the recipient to demonstrate that such payment was not received in compensation for the loss for which they are claiming. The court held that the SAS Trustee Corporation had discharged its onus by showing that a payment (the gratuity) had been made, and it was for Mr Budd to prove that this payment was not in compensation for the injuries sustained. The court concluded that the District Court had failed to properly consider the rule against double compensation.

The appeal was upheld.

Orders

Orders of the court

Appeal upheld.

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:	SAS TRUSTEE CORPORATION v BUDD [2005] NSWCA 366
HEARING DATE(S):	6 July 2005
JUDGMENT DATE:	28 October 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 55; McColl JA at 56
DECISION:	Appeal upheld.

CATCHWORDS:	VICTIMS COMPENSATION - injury in the course of duty as a police officer - Victims Compensation Act 1987 - appeal to the District Court - global award - absence of transcript of judge's reasons - evidentiary void - s12D, s12E Police Regulation (Superannuation) Act 1906 - gratuity - construction of s12E - permanent impairment compensation - compensation for pain and suffering - rule against double compensation - evidentiary onus - where shown that money was paid it is for the recipient to show that the money was not received in compensation for the loss. (D)
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 Victims Compensation Act 1987 Workers Compensation Act 1987 Victims Compensation Act 1996 (later renamed the Victims Support and Rehabilitation Act 1996)
CASES CITED:	BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288 Boncristiano v Lohmann [1998] 4 VR 82 Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 Re Application of Foster [1982] 2 NSWLR 481 SAS Trustee Corporation v Rayment (2000) 49 NSWLR 175 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Townsend v Stone Toms & Partners (1984) 27 BLR 26 Waugh v Kippen (1986) 160 CLR 156 at 164
PARTIES:	SAS TRUSTEE CORPORATION v Esca BUDD
FILE NUMBER(S):	CA 40744/2004
COUNSEL:	Appellant: G Watson SC/ T Ower Respondent: R de Meyrick
SOLICITORS:	Appellant: Shaw McDonald Pty Ltd Respondent: Taylor & Scott

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	RJ 00442/2003
LOWER COURT JUDICIAL OFFICER:	Walker DCJ