Symons v VCFC

[2002] NSWDC 12

New South Wales

District Court

CITATION:	Symons v VCFC [2002] NSWDC 12
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Bevin Symons Victims Compensation Fund Corporation
FILE NUMBER(S):	290 of 2002
CORAM:	Twigg DCJ
CATCHWORDS:	exceptional circumstances - further evidence or material - s38(3) - special grounds
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 District Court Act 1973
CASES CITED:	Victims Compensation Fund Corporation v Sarah Jane Hill [2002] NSWCA 75
DATES OF HEARING:	5 December 2002
DATE OF JUDGMENT:	5 December 2002

JUDGMENT:

HIS HONOUR JUDGE TWIGG QC: There is before this District Court, the hearing of an appeal by the applicant, Bevin Symons, from a determination of the Victims Compensation Fund Corporation. That notice of appeal is dated 8 November 2002 and sets out the questions of law sought to be argued on the appeal. There is a notice of motion and also a notice of appeal to commence proceedings, both dated 8 November 2002, they in many respects cover the same ground, particularly the historical background.

Since the amendment of the Victims Compensation legislation, this Court is restricted in its role by way of appeal to this Court, to questions of law. S 39 of the Victims Support and Rehabilitation Act 1996 is in the following terms:
"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."

I omit (2).

(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 is an injury specified in the schedule of compensible injuries or whether it is a compensible 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 for its statutory compensation."

Sub para (4) says:

"An appeal does not lie to the District Court against the decision of the Tribunal to refuse leave for a late application."

Sub para (5) sets out what this District Court may do, that is:

"Affirm the determination or set it aside and remit the matter to the Tribunal in accordance with the decision of the law concerned."

There was a decision of the New South Wales Court of Appeal of 5 April 2000 in the matter of Sarah Jane Hill v The Victims Compensation Fund Corporation made available to me. They were proceedings that by way of certiorari and not an appeal from the decision of the learned District Court Judge, but in it there were set out some principles dealing with what his Honour, the Appeal Judge, had done. I note that I have read that and taken note of the principles set out therein.

As learned counsel for the appellant, Ms Cusack, succinctly put, the determination of law for this Court is to determine whether or not a report of psychologist James Donnelly should not have been rejected by the Tribunal in its determination.

The determination by the Assessor or assessment is dated 4 March 2002, but there is in the file which is part of exhibit A, that is the file of the Tribunal, reasons for adjournment by Assessor Hosking of 21 December 2001, and he points out:
"The most serious injury claimed is brain damage with moderate impairment of socio-intellectual functioning. Doctor Finlayson is of the opinion that this was an appropriate description of the applicant's condition in June 2000. To establish this injury, the applicant needs to provide a medico-legal report detailing the applicant's condition. It is not sufficient to provide a medical report that provides an opinion that a compensible injury is established."

My attention was drawn in the file to the report of Doctor Peter Finlayson of Tamworth Base Hospital of 21 June 2000 and reliance was put from the file on not only Doctor Donnelly's report dated 2 June 2002, a document of some detail in seventeen pages, but also the affidavit of the applicant Bevin Symons, which is of two pages and dated 28 May 2002, and particularly the affidavit of Kathleen Joyce Symons, the wife of the appellant dated 28 May 2000. My review of that affidavit which is put as seeking to explain why the material of Doctor Donnelly's report was not made available earlier, does not assist me when it says that "Being a person of simple nature with no medical training, I did not have any clear understanding of my husband's condition and the degree of his impairment."

The appellant was referred by Doctor Harradine to psychologist Donnelly in May 2002.

In addition, I must determine whether that report was credible and had a high degree of providing a different result. Certainly it is credible. I cannot be satisfied that it does provide the high degree that it would be different, but assuming that it does, I must be satisfied that it could not have been obtained without due diligence. Ample opportunity was given to the appellant and his solicitors to obtain that report but advantage was not taken of it.

The determination upon which I must look to see if there is an error of law is by Magistrate Cleary. He says at p 4, firstly in the middle of it, that the appellants seek to obtain leave for the reception of the report of Doctor James Donnelly of 6 July 2002 to which I have referred. He then goes on to say:
"In my view it has not been shown that this evidence or material could not have been obtained with reasonable diligence for presentation to and consideration by the compensation Assessor on 4 March 2002. There was in my view a glaring lack of diligence on the part of the appellant's solicitor to obtain and present the further evidence particularly the medical evidence to the Assessor prior to his determination. The appellant's solicitor had knowledge of the compensible injuries for which compensation was being claimed. The bridging form which detailed the compensible injuries was forwarded to this Tribunal by the solicitors with letter 25 October 2000. I am of the view that neither special grounds nor exceptional circumstances have been shown to exist for leave to be given for the reception of this further evidence. Some of the evidence does concern matters arising since the Assessor's determination but that evidence too I believe would have been substantially available to the Assessors, prior to the Assessor's determination."

I see no error of law in that determination, and I agree with the finding of that Assessor that there was not reasonable diligence used to get the report. I am further not satisfied that it would make the difference suggested.

I therefore reject the appeal.
HIS HONOUR: What do we do about costs of the appeal these days Ms Hall?

HALL: Your Honour there is no specific scale--

HIS HONOUR: It's under the District Court Act isn't it?

HALL: It's under the District Court Act , costs to be agreed or assessed.

HIS HONOUR: Would you oppose an order that the appellant, it being a reasonable appeal, should have costs of the appeal, on a reasonable basis? Although you have succeeded I have a discretion that is very wide don't I, which says that where it is a reasonable application I may do so. What would your attitude to that be?

HALL: Well your Honour I would say that the appropriate order in today's proceedings would be no order.

HIS HONOUR: No order. What do you say Ms Cusack?

CUSACK: I can't argue against that.

HIS HONOUR: I make no order as to the costs of this appeal.