Victims Compensation Fund Corp v Brown & Ors

[2003] HCATrans 666

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S232 of 2002

B e t w e e n -

VICTIMS COMPENSATION FUND CORPORATION

Applicant

and

SCOTT BROWN

First Respondent

SHARON LEWIS

Second Respondent

DISTRICT COURT OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 2.18 PM

Copyright in the High Court of Australia

__________________

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR C.L. LONERGAN, for the applicant.  (instructed by Crown Solicitor for the State of New South Wales)

MR A.J. BELLANTO, QC:   May it please the Court, I appear with MR G.C. HALSALL for the respondent.  (instructed by Hilton King Solicitors)

CALLINAN J:   Yes.  Mr Bellanto, we think we might be assisted by hearing you first.

MR BELLANTO:   If your Honours please.  Can I address the special leave reasons first?

CALLINAN J:   Yes.

MR BELLANTO:   There are six reasons why we submit that the Court should not grant special leave.  Firstly, legislation put in place the Corporation to compensate victims of violent crime and the complaint of the applicant is that there are insufficient funds to meet the claims.  In our submission, that is not an argument that could be advanced in support of the application.  Secondly, there is no question of statutory interpretation here.  The real issue is which process of reasoning one would be inclined to adopt that was advanced in the court below.  Thirdly, there is no resolution of conflicting decisions that require clarification.  Fourthly, there is no significant question of law that needs to be resolved by this Court.  Fifthly, in any event, as was observed in the lower court, most victims have symptoms that evince disabilities and vice versa.  So the argument that victims need to be compensated in the way that the applicant has addressed the arguments is somewhat academic, in our submission. 

Finally, the argument that the Fund will suffer financially can be addressed this way.  From the affidavit lodged in support of the applicant’s argument it is not suggested that the Fund would be depleted.  I think the highest the argument can be advanced is that there will be a significant financial burden.

CALLINAN J:   I must say I read that affidavit upon the basis that it was simply to show that there was a lot of money and that there are a lot of cases which might depend upon the outcome of this.

MR BELLANTO:   Yes.  Well, your Honour Justice Callinan, it is difficult to meet that argument without figures and ‑ ‑ ‑

CALLINAN J:   It is unlikely one would think though that this respondent would be stating other than the facts and ‑ ‑ ‑

MR BELLANTO:   Yes, we do not argue against that.  However, it seems an unusual proposition to set a fund up to compensate people as victims of violent crime and then say, “Well, we can’t afford to pay, so therefore we will ask the High Court to intervene and grant relief”.  That seems to be the nub of what the applicant is advancing here.  I mean, one can ask rhetorically, “Well, why set the Fund up in the first place?”  Significantly, of course, the legislation has been changed, but that occurred after the matter giving rise to ‑ ‑ ‑

CALLINAN J:   I thought that is really what the affidavit was designed to show, that even though the legislation has changed, there is a still a lot of money involved in this point.

MR BELLANTO:   Yes.  Well, that is a fact, but it is our submission that that is a matter that has to be accepted as a consequence of introducing legislation, remedial legislation, compensatory legislation, to meet the needs of people who have been subjected to this sort of violence either as a primary or as a secondary victim.  So they are in point form – and I do not think I need to elaborate on each of them – why we submit that special leave should be refused.

As to the second broad question, we do not intend to go a great deal beyond the points raised in our outline of argument, but can I raise this for your Honours’ consideration?  It makes no sense, in our submission, to treat the relevant phrase as conjunctive because if you had all the symptoms in clauses 5(c) and (d), in other words, if you had following a serious violent assault – say, for example, husband and wife at home, elderly couple, intruders, home invasion, the husband stabbed, the wife witnesses this violent assault.  Flowing from that, there are symptoms of, say, for example, agoraphobia, preoccupation with self‑harm, insomnia, irritability, anxiety, tension, coupled with loss of hair, asthma, uncontrollable bladder, eczema, cirrhosis, how could it be suggested, if either victim under the shock heading had those symptoms, they were not disabled?

However, if the victim happened to be a retiree reclusive who no longer partook in sexual activities, they would not come within the definition of disability and therefore would not have a claim.  Now, in our submission, that flows from the interpretation the applicants advance in support of their argument consequent the other ‑ ‑ ‑

CALLINAN J:   That might be the policy that they not have a claim or that they have a much reduced claim because they are not affected to the same extent.

MR BELLANTO:   Well, it is hard to conceive that they would not be a class of people who would be considered not worthy of being compensated as victims of crime simply because they did not fall into the categories of disability referred to in clause 5(e).  I mean, there are a lot of people who do not work; there are a lot of people who do not go to school; there are a lot of people who do not socialise and there are a lot of people who do not partake in sexual activity.

Now, for that group who do not come within clause 5(b), they are disadvantaged.  Now, we say that that could not be the purport of the legislation.  The only way to make sense of the legislation is to treat it disjunctively and to allow for people to make a claim who have the symptoms that I have briefly referred to or, alternatively, in the appropriate case, those people who have the disabilities that I have outlined.  But the definition of disabilities, or the reference to the categories of disabilities, are so restrictive that, in our submission, it could not be contemplated that they were the only groups of people that the legislature had in mind to be compensated following a vicious assault of the type that I have briefly outlined.

So in terms of what we understand to be the main point of the applicant’s argument, that would be a consequence, we say, and an unintended consequence of the legislation if one interprets the phrase “symptoms and disability” as the applicant contends.

The other arguments that the applicant advances, in our submission, are addressed in the reasoning of the learned President in the court below and briefly outlined in our written submissions.  In fact, I think I need to make one correction in the submissions, if the Court pleases.  On page 70 of the application book, line 6, the phrase “symptoms or disability”, that

should be “and disability” I think because we are referring to the clause 5(a) as it appears in that clause.

If the Court pleases, they are our main points, unless the Court wishes to hear anything further.

CALLINAN J:   Thank you, Mr Bellanto.  There is no need for us to trouble you, Mr Solicitor, but could I ask you this – and perhaps I could ask both of you – this should not be any more than a half day case, should it?

MR SEXTON:   It seems to be a short point, your Honours, that is so.

CALLINAN J:   Could I suggest then that you make an arrangement to divide three hours between yourselves, including time for a reply?

MR SEXTON:   Yes.  It certainly should be possible in this case, your Honour.

CALLINAN J:   All right, thank you.  Yes, there will be a grant of special leave in this case.

AT 2.29 PM THE MATTER WAS CONCLUDED