Victims Compensation Fund Corporation v JM - [2011] NSWCA 89

Court of Appeal

New South Wales

Case Title: Victims Compensation Fund Corporation v JM

Medium Neutral Citation: [2011] NSWCA 89

Hearing Date(s): 7 March 2011

Decision Date: 13 April 2011

Jurisdiction:

Before:
Macfarlan JA at [1]; Young JA at [8]; Sackville AJA at [52]

Decision:
Appeal upheld with costs.
Judgment of Rothman J set aside.
Decision of Tribunal restored.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
JUDICIAL REVIEW of administrative decisions- appeal from an overturned decision of the Victims Compensation Tribunal- whether the Tribunal committed error of law and its decision was wholly irrational and capricious- Tribunal found 500 sexual assaults were "related acts" within the meaning of the Victims Support and Rehabilitation Act s 6(3), (4)- whether the Tribunal failed to take into account factors of age and location or failed to give them adequate weight- Tribunal's statutory construction of "related acts" was within its mandate- the reasons given by a tribunal are not to be construed minutely and finely with a keenly attuned eye to the perception of error- appeal upheld with costs- decision of Tribunal restored.

Legislation Cited:
Victims Support and Rehabilitation Act 1996, ss 3, 5, 6, 10, 27, 36, 38, 39

Cases Cited:
Attorney General v Cohen [1937] 1 KB 478
Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Director-General of The Attorney-General's Department v District Court of NSW and Stark (1993) 32 NSWLR 409
Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Company Ltd (1974) 130 CLR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
MJW v Victims Compensation Fund Corporation (1997) 3 NSWCR 33
R v Connell; Ex parte The Hetton Bellbird Collieries [1944] HCA 42; 69 CLR 407
R v Sheffield Crown Court; Ex parte Brownlow [1980] QB 530
Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; 54 NSWLR 668
Victims Compensation Fund Corporation v Brown [2003] HCA 54; 201 ALR 260

Texts Cited:

Category: Principal judgment

Parties:
Victims Compensation Fund Corporation (Appellant)
JM (First Respondent)
Victims Compensation Tribunal (Second Respondent)

Representation

- Counsel:
Counsel:
N Hutley SC and C Spruce (Appellant)
R Beech-Jones SC and R Graycar (First Respondent)
Second Respondent submitted

- Solicitors:
Solicitors:
I V Knight, Crown Solicitor (Appellant)
Women's Legal Services NSW (First…

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: [2011] NSWCA 89
Decision Date: 13 April 2011

CaseChat Overview and Summary

The Victims Compensation Fund Corporation appealed to the Court of Appeal from an overturned decision of the Victims Compensation Tribunal. The Tribunal had found that 500 sexual assaults constituted "related acts" under section 6(3) and (4) of the *Victims Support and Rehabilitation Act*. The Corporation argued that the Tribunal had committed an error of law, rendering its decision wholly irrational and capricious, specifically by failing to adequately consider or give sufficient weight to the age and location of the assaults.

The central legal issue before the Court of Appeal was whether the Victims Compensation Tribunal erred in law in its construction and application of the "related acts" provisions of the *Victims Support and Rehabilitation Act*. This involved determining whether the Tribunal's finding that the 500 sexual assaults were "related acts" was so irrational as to constitute an error of law, and whether it had failed to properly consider relevant factors such as the age and location of the incidents.

The Court of Appeal reasoned that the Tribunal's statutory construction of "related acts" fell within its mandate and that the reasons provided by a tribunal should not be subjected to overly minute scrutiny for perceived error. The Court found that the Tribunal's decision was not wholly irrational or capricious. Consequently, the appeal was upheld, the prior overturning of the Tribunal's decision was set aside, and the original decision of the Tribunal was restored, with costs awarded to the Victims Compensation Fund Corporation.

Orders

Orders of the court

Appeal upheld with costs.

Judgment of Rothman J set aside.

Decision of Tribunal restored.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Case Title:	Victims Compensation Fund Corporation v JM
Medium Neutral Citation:	[2011] NSWCA 89
Hearing Date(s):	7 March 2011
Decision Date:	13 April 2011
Jurisdiction:
Before:	Macfarlan JA at [1]; Young JA at [8]; Sackville AJA at [52]
Decision:	Appeal upheld with costs. Judgment of Rothman J set aside. Decision of Tribunal restored. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	JUDICIAL REVIEW of administrative decisions- appeal from an overturned decision of the Victims Compensation Tribunal- whether the Tribunal committed error of law and its decision was wholly irrational and capricious- Tribunal found 500 sexual assaults were "related acts" within the meaning of the Victims Support and Rehabilitation Act s 6(3), (4)- whether the Tribunal failed to take into account factors of age and location or failed to give them adequate weight- Tribunal's statutory construction of "related acts" was within its mandate- the reasons given by a tribunal are not to be construed minutely and finely with a keenly attuned eye to the perception of error- appeal upheld with costs- decision of Tribunal restored.
Legislation Cited:	Victims Support and Rehabilitation Act 1996, ss 3, 5, 6, 10, 27, 36, 38, 39
Cases Cited:	Attorney General v Cohen [1937] 1 KB 478 Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Director-General of The Attorney-General's Department v District Court of NSW and Stark (1993) 32 NSWLR 409 Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Company Ltd (1974) 130 CLR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 MJW v Victims Compensation Fund Corporation (1997) 3 NSWCR 33 R v Connell; Ex parte The Hetton Bellbird Collieries [1944] HCA 42; 69 CLR 407 R v Sheffield Crown Court; Ex parte Brownlow [1980] QB 530 Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; 54 NSWLR 668 Victims Compensation Fund Corporation v Brown [2003] HCA 54; 201 ALR 260
Texts Cited:
Category:	Principal judgment
Parties:	Victims Compensation Fund Corporation (Appellant) JM (First Respondent) Victims Compensation Tribunal (Second Respondent)
Representation
- Counsel:	Counsel: N Hutley SC and C Spruce (Appellant) R Beech-Jones SC and R Graycar (First Respondent) Second Respondent submitted
- Solicitors:	Solicitors: I V Knight, Crown Solicitor (Appellant) Women's Legal Services NSW (First…