Aldridge v Victims Compensation Fund Corporation

Supreme Court of NSW|2008-03-04|Before: Rothman J

The application will be determined solely upon the documentation before the Assessor on the date of determination." (Emphasis in original.) 27 On 8 March 2004, an Assessor with the Victims Compensation Tribunal dismissed Ms Aldridge's application for compensation. The reasons for dismissal are short (Tender Bundle, Exhibit A, p 43). The Assessor's Determination 28 The Assessor's reasons for dismissal refer to domestic violence incidents that were said to have taken place between 1972 and 1990 by three alleged offenders, each of whom was, at the time, the applicant's de facto partner. It notes that none of the matters seem to have been reported to police and that police have no record of any incident during that period. It then recites that the onus is on the applicant to establish, on the balance of probabilities, that she has been the victim of an act of violence. The reasons recite the provisions of s 5(1) of the VSR Act and the definition therein of "act of violence" and notes: "I have read the statutory declaration and statement of the applicant. I also note solicitor's submissions. There are no specific details provided in respect of particular incidents. Police have no record of any matter ever being reported, no statement was ever provided to police and hence there was never any investigation of any offence and the applicant's allegations were never put to the alleged offenders. I further note that there is no medical or any other corroborative evidence from the period in question.

Ms Aldridge became a victim in early childhood and was an easy prey for aggressive males. Her mental illness would have contributed to the ease with which she could be victimised. Over the years she had suffered considerable emotional and physical pain from abuse; however it was masked by mental illness and alcohol abuse. As she has gained more control over her mental illness, she is reflecting on her life and has developed a depressive illness as a consequence….

Ms Aldridge continues at risk of abuse and exploitation. This may be an issue if she is to receive compensation…." 32 The appeal was dealt with on the papers and without hearing. The Magistrate member of the Victims Compensation Tribunal recited the Assessor's determination as one in which the Assessor "was not satisfied the Appellant has established she was the victim of an act of violence". 33 The Magistrate, correctly in my respectful opinion, noted that the fact that the police had no record of any report would not be decisive in determining the veracity of Ms Aldridge's claim. However, he remarked that the injuries claim to have been suffered would have required medical attention (and on Ms Aldridge's statement did have medical attention) and yet no medical report was provided corroborating the injuries or their timing. 34 The learned Magistrate recites the terms of s 5 and the definition of "act of violence" and notes that it extends to domestic violence. The Magistrate also notes that the appellant had been legally represented throughout the matter. 35 The Magistrate carefully examined the nature of the injuries that were alleged and noted that, in a number of cases, those injuries were said to have been treated in hospitals. His Honour then says: "I would not [have] thought it too difficult to obtain hospital records in relation to that injury. A contemporaneous complaint that her partner had assaulted her causing the arm fracture would have been of significant assistance to the Appellant establishing her claim." (Tender Bundle, Exhibit A, p 51.) 36 The learned Magistrate then notes that, despite the Assessor's comment that no medical evidence had been made available to corroborate the claims made, leave had not been sought to file additional material for the appeal. Similar comments are made in relation to other incidents that were said to have resulted in hospital attendance. The Magistrate then notes: "It seems that the Appellant's claim of being subjected to domestic violence between 1973 and 1990 surfaced recently when her Mental Health Case Manager at the Sutherland Community Health Team became involved in the matter. The Appellant had been diagnosed with schizophrenia.

The Mental Health Case Worker told Ms Birch that the Appellant's

' psychiatric history is chaotic, compounded by alcohol and frequent moves. If she does not take her medication she becomes ill and with extreme paranoia, auditory hallucinations and aggression .'

If her allegations of domestic violence are in fact true, this is a very sad case. Had there been one piece of contemporaneous corroborative evidence to support her claims, I would have had no difficulty in finding an act of violence established.

The reports of Ms Evans and Ms Birch are persuasive; however, they did not see the Appellant until 2003 and in my view little probative weight can be given to their opinions on the question of fact in issue.

Whilst it is possible the Appellant was the victim of domestic violence during her relationships with her three partners, extending over a period of 17 years, I am not satisfied the evidence is sufficient to establish as a question of fact that her claims are more probably than not, true." 37 The Magistrate accordingly dismissed the appeal. 38 I agree with the comment of the learned Magistrate. If the allegations Ms Aldridge makes of domestic violence were true, this is an extremely sad case. Is There an Error of Law? 39 Fundamentally, Ms Aldridge, through her counsel, alleges the same error of law in both the determination of the Assessor and in the determination of the Appeal. That error of law is said to be the failure to consider a fundamental precondition to the exercise of jurisdiction of the Assessor (and on Appeal, the learned Magistrate). 40 The fundamental precondition is that it was necessary for each of the Assessor and Magistrate to determine whether, in accordance with the provisions of s 5(3) of the VSR Act, the series of acts which were alleged to be acts of domestic violence were "related acts". 41 As I understand the submission put by counsel on behalf of Ms Aldridge, it is to the following effect:

(a) The application that was made related to a number of acts of domestic violence.

(b) The Assessor would only be empowered to determine whether there was an "act of violence" if the acts of violence were "a series of acts" and "related acts" within the meaning of s 5(3) of the VSR Act.

(c) Since no specific reference is made to s 5(3) of the VSR Act, the Assessor (and the Tribunal) must have dealt with the matter as an allegation of a single act of violence.

(d) There is a requirement under s 5(3) of the VSR Act that the Assessor and/or Tribunal must form an opinion in circumstances where more than one act is the subject of application that there are multiple acts which are related acts for the purpose of determining the existence of an "act of violence". 42 The submission is misconceived. It is misconceived both as to the construction of the VSR Act and as to the understanding of the determination of the Assessor and of the Tribunal. 43 It is necessary to set out the provisions of s 5 of the VSR Act. It is in the following terms: " 5 Act of violence (1) In this Act, "act of violence" means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary). (3) An act is related to another act if: (a) both of the acts were committed against the same person, and (b) in the opinion of the Tribunal or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other. However, an act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made. (4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence." 44 Section 6 of the VSR Act renders, relevantly, a primary victim of an act of violence to be eligible for statutory compensation. Section 7 of the VSR Act defines a primary victim of an act of violence as a person who receives a compensable injury. Section 10 sets out that there is a schedule of compensable injuries in Schedule 1 and s 11, as has already been noted, requires an election by an applicant for compensation, as to whether the applicant seeks the damages applicable to the particular injury or damages in the range arising from injuries caused by a particular kind of offence mentioned in the Schedule. It is unnecessary to set out the other detailed sections of the VSR Act dealing with the kind of compensation that is payable and exceptions thereto. 45 It is however necessary to examine the provisions of ss 23 and 25 of the VSR Act, they are: " 23 Eligibility to receive compensation in respect of same act of violence (1) A person is not eligible to receive more than one award of statutory compensation in respect of the same act of violence (except as provided by subsection (1A)). (1A) This section does not prevent a person from receiving an award of statutory compensation to which section 14 applies in addition to an award of statutory compensation for prescribed expenses in respect of the same act of violence. Note: However, section 14 (3) prevents a person from being granted compensation for financial loss to the extent that statutory compensation for prescribed expenses has been awarded for that loss. Further, under section 14A (6), statutory compensation for prescribed expenses is not payable to a person to the extent that the person has been awarded statutory compensation to which section 14 applies in respect of the same act of violence. (2) No more than one award of compensation may be made with respect to any one application for statutory compensation. (3) A person is eligible to receive statutory compensation in respect of the same act of violence in only one of the capacities of primary victim, secondary victim or family victim."

" 25 Lodging of applications (1) An application for statutory compensation may be made: (a) by a primary victim, secondary victim or family victim of an act of violence, or (b) by any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim. (2) An application: (a) must be in the form required by the rules, and (b) must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form, and (c) must be lodged with the Director. (3) An application may also be lodged with the registrar of a Local Court. In that case, the registrar is to forward the application to the Director as soon as practicable after it is so lodged." 46 From the above provisions, it can be seen that the statute requires that a person seeking compensation make an application for that compensation in the form required by the rules, accompanied by documentary evidence (as may be required by that form) and lodging the form with the Director. 47 A person is not eligible to receive more than one award of statutory compensation for the same act of violence. Nor may an applicant receive more than one award of compensation from one application. 48 Nothing in the Act prohibits an application being for more than one act of violence from which application one award of compensation could be made, being the total of the compensation payable for each such act of violence. However, pursuant to the terms of s 5, and in particular s 5(3) of the VSR Act, a series of related acts is treated as "an act of violence" and would not give rise to more than one amount of compensation under the Schedule. 49 Where, as is alleged to be the case in this matter, there is more than one act of violence, it is necessary for the Assessor or Tribunal to assess whether any acts of violence are part of a series of related acts, pursuant to the terms of s 5(3) of the VSR Act. If there are a series of related acts, then they will count as only one act of violence and entitle the applicant to only one amount of compensation. 50 It is accurate, as counsel for Ms Aldridge submits, that neither the Assessor nor the Tribunal dealt with whether the acts of violence were a series of related acts. This is because, before determining whether one or more acts of violence amount to a "series of related acts", the Assessor and/or Tribunal would have to be satisfied that the acts occurred. 51 The substance of the determination of the Assessor, and of the Tribunal, was that they were not satisfied that any of the acts (whether they were a series or otherwise) occurred. It was a consequence of the failure to be satisfied of the occurrence of the acts that the determinations were made against Ms Aldridge. 52 Having received an application for compensation, the only requirement on the Assessor, or the Tribunal, was to determine the application either by dismissing it or by making an award of compensation (see s 29(1) of the VSR Act). If the Assessor or Tribunal comes to a view that the applicant, relevantly, is a primary victim of an act of violence and is eligible to receive one or more amounts of compensation listed in Schedule 1, the Assessor and/or Tribunal is required to make an award of compensation. 53 The provisions of s 5(3) of the VSR Act arise only at the point in time that the Assessor and/or Tribunal is calculating the amount of compensation, having been satisfied, on the balance of probabilities, that the applicant for compensation is, relevantly, a primary victim who has suffered compensable injury. 54 If the application seeks compensation for a number of acts of violence, which the Assessor or Tribunal was satisfied to the requisite standard had occurred, then the calculation of compensation for the award to be made would either be for more than one act of violence (i.e. for all of the acts of violence of which the Assessor or Tribunal is satisfied) or, if all of the acts of violence were held by the Assessor or Tribunal to be a series of related acts, for one act of violence. There may be combinations of those two findings. 55 However, in the present circumstances, neither the Assessor nor the Tribunal were satisfied that any act of violence had occurred. The occasion for the determination of whether one or more acts of violence were a series of related acts had never arisen. Conclusion 56 For the reasons above, the summons and proceedings must be dismissed and judgment given for the defendant. 57 Two matters should be noted. First, notwithstanding the infelicitous expression by the Assessor that he "cannot' be satisfied of the act of violence, counsel for Ms Aldridge does not suggest that the Assessor, by that comment, was suggesting that it was impossible to be satisfied. Rather, counsel suggests that the term, infelicitous though it may be, was a statement of fact, namely, that the Assessor "was not satisfied" of the requisite matters. I think that is correct. 58 Secondly, there seems to be some level of injustice associated with any tribunal making findings which, in effect, are findings against the credit of the applicant in circumstances where the applicant has not been heard or cross-examined; and in circumstances where there is no evidence that contradicts the evidence of the applicant. Nevertheless, the mere fact that evidence is adduced before a tribunal, and not contradicted, does not require the tribunal to be satisfied that the evidence is true or accurate. In the current proceedings, the Victims Compensation Tribunal, in its correspondence, made it clear to the solicitors acting for Ms Aldridge that it was necessary to corroborate, to the extent possible, by police reports or medical reports, the events in question. Further, counsel for Ms Aldridge does not rely upon an error of law associated with the findings of fact to vitiate or invalidate the findings. Nor is there a reliance on any denial of natural justice. 59 It is also necessary to note that the claim on behalf of Ms Aldridge in this Court does not rely upon a misuse of the inference in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 60 The only other matter to which I would refer relates to the tragic circumstances of this matter, if the allegations were true. If these allegations were true, and I suspect that they may be, then the medical records, as to the birth, the broken arm, etc., would still be available. Given the relatively recent treatment of Ms Aldridge for her psychiatric condition and the fact that the lack of corroborative material seems to be a result of her then (not current) legal practitioners' inaction, there seems to be good reason (even in the case of a second application) to grant leave for a further application out of time. There is no prohibition on subsequent applications under the Act and, if corroborative material were available, it would seem to further the purpose of the Act. 61 For the above reasons, the Court makes the following orders:

(i) Judgment for the first defendant on the summons;

(iii) Liberty for any party to apply within 7 days for any order for costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724

CASES CITED : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

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