White v Victims Compensation Fund Corporation

[1999] NSWDC 23

New South Wales

District Court

CITATION:	White v Victims Compensation Fund Corporation [1999] NSWDC 23
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Antje White Victims Compensation Fund Corporation
FILE NUMBER(S):	960 of 1999
CORAM:	Robison DCJ
CATCHWORDS:	s38(3) - special grounds
LEGISLATION CITED:	Victims Compensation Act 1996 District Court Rules Pt 6 r 60(c)(4)
CASES CITED:	Hatley v Victims Compensation Fund Corporation; Director General of the Attorney General's Department v District Court of New South Wales and Stark (1993) 32 NSWLR 409; Torrealba v District Court of New South Wales (1996) 40 NSWLR 327
DATES OF HEARING:	5/10/99
DATE OF JUDGMENT:	5 October 1999
LEGAL REPRESENTATIVES:	Mr Robinson Mr Moore

JUDGMENT:

DCV1828 1176/99 TB-D1


~05/10/99 2

HIS HONOUR: The appellant in this appeal, seeks an order that the determination be set aside, the matter be remitted to the Tribunal to be dealt with in accordance with the decision of this Court, and on the basis of the evidence as directed by this Court. It is alleged in the Notice of Appeal that the Tribunal erred in refusing to admit further evidence on appeal under s 38(3) of the Victims Compensation Act 1996.
I have noted the statement pursuant to Pt 6 r 60(c)(4) of the District Court Rules. It is alleged in the statement, amongst other things, that "[s]pecial grounds existed under which the admission of further evidence ought to have been allowed." Special grounds in this case are alleged.
In paragraph 3 of the statement it is alleged that "[t]he special grounds were at least in part made out by the dramatically greater extent and duration of the appellant's physical and psychological symptoms apparent in the additional material sought to be relied upon as opposed to that which was before the assessor." The statement alleges that "[i]t was apparent from a perusal of the material sought to be adduced that the earlier reports were so inadequate and out of date as to be misleading."

It is alleged in paragraph 4 of her statement, that there was a failure to find sufficient special grounds which constituted an error of law.
It is incumbent firstly in an appeal of this nature, to carefully consider the decision of the Tribunal itself. That decision is before me, it is contained in the Tribunal's file which has been marked Ex 1. It is clear from what has been set forth in that decision, that the Tribunal declined to consider further evidence by way of medical reports which were not before the Assessor at the time of the determination by the Assessor in August 1998.
The background to this is that the appellant is
thirty-three years of age, a married lady, she is a police officer and mother. It would appear that there was an incident on 21 January 1997 when the appellant, as a serving police officer, was attempting to arrest an offender, when she was knocked to the ground and physically assaulted. Indeed the medical evidence indicates that she sustained an ankle injury, she was head-butted, she sustained teeth and jaw damage, she was spat upon. There was an indication from the offender that he had AIDS and hepatitis, and it is reasonable to assume that that last portion of the events would have caused serious concern, anxiety and distress on the part of the appellant, and, no doubt, the appellant experienced considerable distress as she had to wait twelve months for the appropriate tests to be carried out. It would appear that she was cleared as a result of those tests.
The nature of the injuries that the appellant sustained is alleged to have included an injury to her left ankle, her jaw and a psychological reaction. There is ample medical evidence which supports those particular allegations insofar as the injuries and the disabilities are concerned. The appellant was a primary victim, and being a police officer at the time attempting to effect an arrest, the provisions of s 7(2)(c) are brought into play.
The matter was certainly considered by the Assessor. The appellant was dissatisfied with that decision, and she appealed to the Tribunal where it was heard in April 1999. It is important to reflect on the statutory provisions concerning the nature of this appeal.
It is equally important to bear in mind that there is now a new regime for dealing with appeals from the Victims Compensation Tribunal. Appeals are now limited to alleged errors of law. It is clear from the second reading speech of the Attorney General, which is, in part, reflected in the decision of his Honour Judge Delaney of this Court on
1 April 1999 in the matter of Hatley v Victims Compensation Fund Corporation, that there are now, by virtue of the Legislative intent, considerable limitations upon such appeals. In other words victims are not entitled to have a second bite at the cherry, so to speak. There are restrictions on appeals of this nature, limited to errors of law, and one needs to carefully consider the matter in the context of the provisions also of s 38 of the Victims Compensation Act. This relates to hearings and determinations by the Tribunal. It is alleged in this appeal, that the Tribunal erred and misunderstood certain remarks of his Honour Judge Delaney of this Court, in the decision of his to which I have earlier referred.
Section 38(3) says:
"An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against."

There are, effectively, two limbs to that sub-section. Firstly is the question as to whether special grounds exist, in the alternative there is the question of any evidence, or material, which may come about subsequently. It is the first limb which is pursued by the appellant in this appeal, and not the second.
His Honour Judge Delaney in the Hatley case said this:
"Special grounds is a term which is not defined in the Act. The question of whether grounds are special seems to me to require that the, and I find that it required the applicant for compensation to show to the learned member of the Tribunal, information which is in terms of the words 'special grounds' out of the ordinary or not connected with a failure to act."

I respectfully agree with his Honour's views as to the question of special grounds, and what that means. Certainly it is not defined by statute, but that also gives some weight to the submission on the part of the respondent that, at the end of the day, this is really a matter of discretion vested within the Tribunal, it being charged with the responsibility of considering that first limb, that is, whether it considers that special grounds exist.
Commensurate with the responsibility to exercise the discretion vested by statute, or indeed otherwise, a discretion of this nature clearly needs to be exercised judicially. A discretion which needs to be exercised considering all of the available facts and materials before the body exercising that discretion, be it a judicial officer or a member of the Tribunal.
It would appear from what has arisen in this appeal, that there has been a lack of medical information forwarded by the previous solicitor who acted for the appellant, and those materials came to light after the determination of the Assessor was made known. The matter was presented before the learned Tribunal, and the Tribunal declined to receive that further material, and, in this regard, I note what is set forth in paragraph 8 of the affidavit of Michael Joseph Corbett, solicitor for the appellant. This affidavit is sworn 13 September 1999.
It is alleged, as I indicated earlier, that the Tribunal effectively misdirected itself when it misinterpreted his Honour Judge Delaney's remarks. In effect it is suggested that the Tribunal considered his remarks in the context of special grounds being out of the ordinary, and connected with a failure to act.
It is important to note the factual circumstances as elicited from the decision of the Tribunal itself, because it is alleged here that this subsequent material painted a picture of a dramatic change to the nature of the claim for compensation. There was something new and dramatic. Well, did the Tribunal effectively misinterpret the views of his Honour Judge Delaney, and thereby lead itself into, effectively, appealable error?
I note the portions of the reasons for the appeal determination relied upon by the appellant. It is clear that the learned Magistrate in Tribunal, in its decision of 20 April 1999, was aware of the attempt on the part of the appellant, to introduce such material which was not previously before the Assessor. It is clear that the Tribunal was aware of the appeal of Hatley, and the decision of his Honour Judge Delaney. There is specific reference to his Honour's remarks in relation to "special grounds" in the decision of the Tribunal. I quote directly from the Tribunal's decision:
"The applicant's solicitors in this appeal did not represent her in her Application before the compensation assessor. They refer to evidence and matters which were not put before the compensation assessor and seek leave to submit much further evidence. Pursuant to s 38(3) of the Act an appeal from a determination of a compensation assessor is to be determined by this Tribunal on the evidence and material provided to the compensation assessor and it is only where 'special grounds' exist or matters occurred after the determination that the Tribunal may grant leave to submit further evidence and material."

It is clear, at that point at least, that the Tribunal

was aware of the statutory provisions concerning any rights

to appeal and, indeed, the Tribunal was aware of the two

limbs I have previously referred to in subs (3) of s 38.

The Tribunal went on:

"In the Appeal of Hatley, (Sydney District Court, 1/4/99), Delaney DC J said, 'special grounds' requires the applicant to show to the Tribunal information which was out of the ordinary or not connected with a failure to act. With respect to matters which occur after the determination, the sub section does not give an applicant or the solicitors the right to obtain leave simply because further evidence is obtained after the determination".

And certainly in this particular instance, further evidence was obtained. I would add as an observation from that evidence, that there does appear to have been an escalation of some of the symptoms claimed to have been suffered by this appellant. In this regard I refer

specifically to the manifestation of the ongoing psychological disorder.
The learned Tribunal continued:
"in my view it applies where some matter has occurred after the determination which was unexpected and reasonably unforeseen and could not have been reasonably expected to have been submitted to the compensation assessor. The onus is upon an applicant
and the solicitors to submit all necessary evidence to establish the case to the compensation assessor."

I pause to reflect upon that comment. There is, as I
understand it, no explanation at all for the failure on the part of the former solicitors, to supply that material to the Assessor. If there was any explanation for that before the Tribunal, no doubt that would have been taken into account. But, in any event, there is an absence of any affidavit material either from the appellant, or the appellant's former solicitors, in relation to those matters.
The learned Tribunal went on:
"the Tribunal will not permit further evidence to be submitted on an appeal simply to overcome a lack of evidence before the compensation assessor when that evidence could and should have been submitted to the compensation assessor. If the original reports are not sufficiently clear or unambiguous, then the applicant's solicitors should have addressed those matters with further evidence if necessary prior to the determination of the matter before the compensation assessor."

In this regard I ask myself if any application for
adjournment was made before the Assessor. There is no evidence to indicate that was attended to, or sought. The Tribunal went on:
"if the original reports are not sufficiently up-to- date, then up-to-date reports should have been submitted to the compensation assessor, if all reports were not available an adjournment should have been sought to enable them to be submitted to the compensation assessor. The appeal process in the Act is not a means whereby an applicant or the solicitors can simply have a second chance to present their case.

The fact that it is claimed that the applicant's former solicitors did not submit all evidence to the compensation assessor does not constitute 'special grounds' for now granting leave for it to be submitted in the appeal.

I do not consider that there are 'special grounds' nor is there any matter occurring since the determination to warrant leave to submit fresh evidence.
Accordingly, I refuse to grant leave for the applicant to submit further evidence and I shall determine the appeal upon the evidence which was before the compensation assessor."

And that is what the Tribunal did.
It is clear that the Tribunal was aware that the former solicitors did not submit that evidence then sought to be tendered before the Tribunal. Clearly that is a factor which was taken into account by the learned Tribunal.
The reports themselves, as I have seen them, do indicate, as I indicated earlier, a continuation of a number of the disabilities allegedly sustained by the appellant, but I do question the submission as to whether the reports have now presented a somewhat exceptional case, having regard to the reports previously relied upon by the appellant before the Assessor.
The overall tenor of the decision of the learned Tribunal gives me the impression that the Tribunal considered not only the reports, but also the question of the failure on the part of the previous solicitors to forward those reports on to the Tribunal before the assessment was made.
Clearly it is a decision which was exercised, in my view, taking into account all relevant facts and circumstances which were present before the Tribunal at that time. The onus does rest on the appellant. It is an onus which does not shift in an appeal of this nature. The onus cast upon the appellant is to satisfy me that the discretion, in fact, miscarried so as to amount to an error of law.
I accept the submission, to some extent, on the part of the appellant, that this Legislation is beneficial and remedial, after all, the Legislation is addressed in favour of victims of crime, as indeed this appellant was. But it is also important to bear in mind that the two authorities which were referred to by the appellant at the opening of this appeal, namely Director General of the Attorney General's Department v District Court of New South Wales and Stark (1993) 32 NSWLR 409 as well as Torrealba v District Court of New South Wales (1996) 40 NSWLR 327 related to the Legislation which pre-dated the introduction of the Victims Compensation Act 1996 when certainly there was a right afforded in that earlier Legislation, a specific right, for a hearing to be undertaken by the District Court on a de novo basis, adopting common law principles, and by the tenor of that earlier Legislation as recognized in the two decisions I have just referred to, the Legislation was clearly remedial and one which should be given a beneficial construction.
So to the extent that those decisions are relevant, it is important to bear in mind that the intention of the Legislature clearly reflected by the second reading speech and, indeed, the overall tenor of the Victims Compensation Act, indicates that the Act itself, whilst being beneficial, is still subject to the restraints and restrictions upon appeals after a matter is heard and determined by a Tribunal.

I am mindful of the objects of the Victims Compensation Act as set forth in s 3. To that end those objects should be given a beneficial interpretation, that is in keeping with the spirit of the Act, but the Court is also obliged to give appropriate weight to the intention of Parliament as reflected in the Legislation itself, in particular s 38(3). The discretion is certainly vested in the Tribunal.
It is clear, on that basis then, that there is no demonstrated area of error of law on the part of the Tribunal. In my view the Tribunal correctly interpreted the remarks of his Honour Judge Delaney, considered all the available material before it, and has made the decision in accordance with its discretion which, in my view, was exercised judicially and in accordance with law.
It follows, therefore, that this appeal should be dismissed. I make the following orders: I decline to make the orders sought in the Notice of Appeal. The appeal is dismissed. The exhibits may be returned.