Turner v VCFC (No 2)

[2006] NSWDC 134

CITATION:

TURNER v VCFC (No 2) [2006] NSWDC 134

HEARING DATE(S):

7 December 2006

EX TEMPORE JUDGMENT DATE:

12/07/2006

JURISDICTION:

Civil

JUDGMENT OF:

Sidis DCJ

DECISION:

1. Order 3 (of 19.11.03) is amended to read - It would appear to be appropriate that the appellant have the costs of the procedures before the assessor and the Tribunal member and I so order 2. Costs of this application are to be paid by the Corporation 3. The affidavit material and the letter are returned noting for the record that the request for payment of the fee of the approved report writer was abandoned.

CATCHWORDS:

POWER OF DISTRICT COURT TO ORDER COSTS OF TRIBUNAL PROCEEDINGS

LEGISLATION CITED:

Victims Support & Rehabilitation Act 1996

CASES CITED:

VCFC v Ainsworth & anor 51 NSWLR 466

PARTIES:

David William TURNER
VICTIMS COMPENSATION FUND CORPORATION

FILE NUMBER(S):

Newcastle 305/03

COUNSEL:

Appellant - C A W Hart

Respondent - solicitor agent for Corporation

SOLICITORS:

Bale Boshev

Victims Compensation Fund Corporation

JUDGMENT

HER HONOUR

1 In this matter, proceedings came before this Court by way of an appeal brought under the Victims Support and Rehabilitation Act 1996. The proceedings were heard and determined on 19 November 2003 pursuant to section 39 of the Act. In determining the appeal, I made the following orders:

1. That the determination of the Tribunal be set aside and the matter remitted to the Tribunal to be considered and determined again by the Tribunal either with or without the hearing of further evidence in accordance with my decision on the question of law.

2. That the appellant is to have the costs of the appeal to this Court.

3. It would appear appropriate that the appellant have the costs of the procedures before the assessor and the Tribunal member.

4. The Tribunal file was returned.

2 The orders were made pursuant to section 39(5) of the Act and follows the wording of section 39(5)(b). The argument between the parties which came back to this Court was whether order 3 entitled the appellant to have the costs of the determinations of the assessor and the Tribunal which had been set aside under order 1. The argument of the Tribunal was that, no formal order having been made, it was a matter for the Tribunal to determine and a determination was made contrary to the appellant.

3 The Tribunal further took the position that section 39(5)(b) did not extend to this Court power to deal with costs of proceedings leading up to an appeal even if the determination of the Tribunal had been set aside. In this respect, reliance was placed upon the decision of the Court of Appeal in Victims Compensation Fund Corporation v Ainsworth & Anor 51 NSWLR 466 at paragraph 51 where Mason P pointed out that the Judge hearing the appeal in that matter had exceeded his powers in directing that there should be further evidence and an oral hearing when the matter was remitted for further hearing by the Tribunal. He said in paragraph 51:

It is not open to the District Court to exercise afresh or in advance the discretion committed to the Tribunal by section 38 as to the manner in which an appeal to the Tribunal is to be heard and determined.

4 I do not think that this paragraph extends to the question of what happens in respect of the costs of proceedings that have already transpired and in respect of which a decision has been set aside. What is remitted to the Tribunal under section 39(5) is a direction that it determine the matter again in accordance with the decision of the District Court on the question of law. Section 39(5)(b) specifically empowers this Court to set aside the original determination.

5 Having set aside the original determination, this leaves the question of the costs of that determination in the hands, in my view, of this Court. To the extent that my earlier order was ambiguous, I apologise.

6 In the result, I find that there is power in this Court to deal with the costs of the original proceedings before the Tribunal.

7 Order 3 is amended to read as follows:

It would appear to be appropriate that the appellant have the costs of the procedures before the assessor and the Tribunal member and I so order.

8 Costs of this application are to be paid by the Corporation.

9 The affidavit material and the letter are returned. I note for the record that the request for payment of the fee of the approved report writer was abandoned.

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