Vakauta v Victims Compensation Fund Corporation

[2000] NSWDC 17

New South Wales

District Court

CITATION:	Vakauta v Victims Compensation Fund Corporation [2000] NSWDC 17
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Falanisesi Vakauta Victims Compensation Fund Corporation
FILE NUMBER(S):	3920 of 2000
CORAM:
CATCHWORDS:	determination of Tribunal - decision of Registrar - further application upon same injury - jurisdiction to appeal
LEGISLATION CITED:	Victims Support and Rehabilitation Act 1996 Victims Compensation Act 1996
CASES CITED:
DATES OF HEARING:	1/2/01
DATE OF JUDGMENT:	1 February 2001

JUDGMENT:

HIS HONOUR JUDGE COOPER: Before going to the issues raised in this appeal, it is necessary to say something about background. In May 1997, the plaintiff sustained an injury involving the loss of an eye. He applied to the Victims Compensation Tribunal for compensation under the Victims Support and Rehabilitation Act on about 23 July 1997. The application was determined by an Assessor who dismissed the application on 22 April 1998. I am informed that it was dismissed because the Assessor, on the evidence that was before him, was not satisfied that the appellant’s injury occurred during or due to an act of violence as defined in the Act.
The appellant lodged an appeal out of time, namely on 15 March 1999, against that decision to the Tribunal. The Tribunal determined that the appeal be dismissed on 27 April 1999. On about 23 February 2000, the appellant lodged a second application for compensation under the Act in respect of the same injury in respect of which the previous application had been lodged. The only difference between this and the former application was that the present application was supported by additional evidence to that which had been provided in respect of the first application.
In response to this application, the Registrar, on 5 February 2000, wrote a letter to the plaintiff’s solicitor which, in its relevant parts, says as follows:
“It is noted that your client’s application was lodged on 23 July 1997 and, as previously advised, was determined by an Assessor who dismissed the application on 22 April 1998. On 15 March 1999, pursuant to s 36 of the Victims Compensation Act , an appeal was lodged. That matter wad dealt with in accordance with s 38 of the Act by a Magistrate on 27 April 1999 and the appeal was dismissed. The Tribunal, having performed its function, is now functus officio in relation to this matter. Accordingly, it is precluded from again considering the matter even if new arguments or evidence are presented”.

On 26 May 2000 an appeal was lodged from the determination in that letter to this Court. The grounds of the appeal are:
1. The Tribunal erred in that it did not consider a new application to the Tribunal.
2. The Tribunal considers that it is functus officio when it is not a court of record.
The grounds of appeal sought the following orders:
1. That the appellant be granted leave to proceed out of time.
2. That the appellant be given compensation for the loss of his eye arising out of criminal incident of 24 May 1997.
The respondent to the present appeal is the Victims Compensation Tribunal. At the outset, the respondent objects to the jurisdiction of this Court to entertain the appeal. S 39 of the Victims Support and Rehabilitation Act provides in subsection 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”.

The question at this stage is whether the decision communicated in the letter of 5 May 2000 is a question of law arising in any determination of the application by the Tribunal. I should mention here that the letter is on the letterhead of the Victims Compensation Tribunal and it is signed by Colin Crossland, Registrar.
The mere fact that the letter was signed by the Registrar does not, of itself, mean that it was not a determination of the Tribunal. One has to go further and look at the terms of the letter to see whether it purports to be written on behalf of the Tribunal in the sense that it is communicating the views of the Tribunal or whether, on the other hand, it is merely communicating the views of the Registrar himself.
When one looks at this letter, it can be seen that in the second paragraph it was reporting the determination of the Assessor who dismissed the application in April 1998 and of the Tribunal which dismissed an appeal from that decision in April 1999. However, when one gets to the third paragraph, it reads:
“The Tribunal, having performed its function, is now functus officio in relation to this matter. Accordingly, it is precluded from again considering the matter, even if new arguments or evidence are presented”.

That paragraph clearly does not purport to be conveying or communicating any determination of an application by the Tribunal, rather, it is a decision of the Registrar himself not to refer the matter to the Tribunal.
The Act makes a distinction between the Registrar and the Tribunal. S 63 of the Act refers to a Director, Victims Services, Registrar of the Tribunal and such other staff as are necessary for the purposes of this Act are to be employed under Part 2 of the Public Sector Management Act .
On the other hand, the Tribunal’s constitution is governed by s 59 which provides, in subsection 2, that the Tribunal is to consist of such members as the Governor may, on the recommendation of the Attorney General, appoint. Subsection 3 provides that only Magistrates are eligible to be appointed as members of the Tribunal.
When one looks at Schedule 2 of the Act, it is seen that clauses 2 and 3 provide that the members of the Tribunal hold office for such period not exceeding three years as may be specified in their instrument of appointment and a member of the Tribunal holds office on a full-time or part-time basis as may be specified in his or her instrument of appointment and also provides that the Public Sector Management Act shall not apply to members of the Tribunal.
For this reason, it is clear that there is a sharp distinction between a decision of the Registrar of the Tribunal and a decision or determination of an application by the Tribunal itself. It is only in relation to a determination of an application by the Tribunal itself that an appeal can lie under s 39 of the Act to this Court.
For these reasons, it is clear that this current appeal is not an appeal of the type envisaged in s 39 of the Act and, accordingly, this Court has no jurisdiction.
There is yet a further objection to this appeal. S 41 provides that the Compensation Fund Corporation is to be the respondent to any appeal to this Court. The appellant has, instead, named the Victims Compensation Tribunal as the respondent to this appeal. This is yet a further ground for holding that there is no jurisdiction.
Because it is open to the appellant to apply to the Supreme Court for a determination of the substantive issues raised in this appeal, it would be inappropriate for me to express any concluded views thereon in the course of this judgment. I would, however, say that it is unfortunate that the Registrar used the words “functus officio”. However, his meaning is quite clear. What he is saying is that once an application is determined by an Assessor and/or the Tribunal on appeal, a further application cannot be made based upon the same injury.
What the Registrar here did in effect was to refuse to exercise jurisdiction. To test this refusal, it is necessary to seek an order in the nature of mandamus. This Court has no jurisdiction to make such an order. That lies in the power of the Supreme Court.
Accordingly, the appeal is dismissed. I shall hear argument on the question of costs.