BUCKLEY v. VICTIMS COMPENSATION FUND CORPORATION [2004] NSWSC 513

Category 2, chronic psychological or 30,000-50,000 Psychiatric disorder that is severely Disabling" 14 The magistrate had regard to the written assessment of the applicant's condition prepared by a qualified person, when he had regard to the report of psychologist, Jerry Wenzel, who assessed the applicant on 6 June 2002. The magistrate said, in respect of that assessment, the following:- "Symptoms reported to the psychologist by the appellant included a mixture of feeling confused and being severely distressed following the attack. He developed persistent flashbacks (which were current) and nightmares. He had current distressing dreams. He remained constantly hypervigilant and prone to exaggerated startle response. He developed symptoms indicative of a reactive depression. He felt constantly on edge and tense. He has experienced chronic insomnia, and frequently had difficulty in functioning the following day and often had problems coping with his work. It is reported that he worked for the Wollongong City Council as a machine and plant operator whenever he is able to obtain work. On testing, the appellant's (sic) exhibited symptoms consistent with a diagnosis of post-traumatic stress disorder, which was chronic as the condition had persisted for 14 months, and also rated as severe. It was also reported that the appellant's level of impairment in functioning remained severe, in that his psychological symptoms had interfered with his ability to work effectively, his household chores and duties, his relationships with friends, fun and leisure activities, relationships with his family, his sex life, his general satisfaction with life and it had a negative impact on his overall level of functioning in all areas of his life in the past month. It is reported that his responses indicated that he continued to suffer from severe symptoms of anxiety at the time of assessment. His responses also indicated that he continued to be severely depressed. His depressive ruminations included sadness, pessimism, feelings of guilt, loss of pleasure, punishment feelings, self dislike, self criticism, suicidal ideation, crying, agitation, loss of interest, indecisiveness, insomnia, irritability, reduced appetite, concentration problems, tiredness and fatigue and diminished libido. The psychologist reported that at the time of the assessment the appellant's occupation functioning remained moderately to severely impaired, on the basis that the appellant pushed himself to undertake casual work when it was available to him. He is frequently too depressed and demotivated (sic) to seek work other than the casual work as he had done in the past. The appellant perceived that because of his feelings of fatigue and impaired concentration and memory, he had not been working as effectively as he had done prior to the incident. He had missed out on securing a job on a permanent job with Council due to his poor concentration at interview level. It is also reported that the appellant's social functioning had remained severely impaired. He avoided social functions due to lack of enjoyment, depression and anxiety, as well as fears. He no longer enjoys fishing, which he had in the past. His main source of social functioning is being a loner and engaging in drinking beer. It is reported that his current interpersonal functioning remained severely impaired. The appellant had been in a long term relationship and had three children aged from three to nine years. At the time of the 'act of violence' he was in fact separated but was visiting his children and had been invited to stay that night as he and his spouse were attempting to reconcile their relationship. Due to stresses they had not been in a position to reconcile their differences and to resume their relationship. He had a tendency to displace his feelings of anger and aggression. It was the opinion of psychologist Wenzel that the appellant still had a severe level of impairment, and that he was suffering from a severe chronic post-traumatic stress disorder with an associated severe level of anxiety. He also qualified for a diagnosis of a severe major depressive episode (without psychotic features), and for a diagnosis of a chronic pain disorder with both general medical condition and psychological factors being present. It was the view of the psychologist that the appellant was likely to make further positive adjustments and improvements in relation to his recovery although it may be a protracted period before he stabilised at a reasonable level of functioning. From the guidelines of the Global Assessment of Functioning Scale, the psychologist Wenzel rated the appellant with a score of 50. This score would mean that there was serious impairment in the appellant' social and occupational functioning (for example, with no friends and unable to keep a job)." 15 The magistrate noted that as the application for compensation was lodged after 31 May 2000, the applicant could only succeed in the event that the applicant suffered from a condition that was "severely disabling", that is, category two, not category one ("moderately disabling"). 16 He held that it was necessary for the appellant to establish on the balance of probabilities that the applicant's psychological or psychiatric disorder was chronic and "severely disabling". 17 He held that he was satisfied that the applicant "suffered a chronic post traumatic stress disorder, that was severe, with an associated severe level anxiety, and in addition, a severe major depressive episode (without psychotic features) and a chronic pain disorder with both general medical condition and psychological factors present". He said:- "It is evident that the psychological or psychiatric disorder suffered by the appellant are chronic, in the sense they are of long term duration." 18 The magistrate held that it was also necessary for the applicant to establish that such disorder "is severely disabling". The magistrate referred to some edition of Gould's Medical Dictionary (not specified) for that dictionary's definition of "disability", viz:- "a persistent physical or mental defect, weakness or handicap which prevents a person from engaging in ordinary activities or normal life, or from performing a specific job." 19 He also referred to the Minister's Second Reading Speech. The magistrate quoted the following from that speech:- "The new injury category will require diagnosis of a long-term psychological injury which results in severe impairment of the person's ability to function in their usual day to day activities. To claim for this injury an applicant will be required to undergo an independent assessment." 20 The magistrate then said this:- "To be compensable the appellant's disorders must have resulted in severe impairment in his ability to function in his usual day-to-day activities. That is, his condition must be severely disabling." 21 On that question, the magistrate made the following findings as to the effect of the severe disorder he had already found:- "Whilst it is evident that the 'act of violence' of the 7 April 2001, has adversely affected the appellant in his social relationships, his occupational functioning and in his sexual relationship, the issue is whether the impact on him from his disorder is severely disabling. From an occupational viewpoint, he has been able to maintain his casual employment with the Council, without his previous enthusiasm or concentration and has missed out on full time employment because of poor presentation at interview. His social functioning has been adversely affected in that he essentially avoids going to social functions. His main source of social functioning, it would seem is drinking beer alone. As for his sexual relationship, at the time of the event he had been separated from his partner and his children. They were trying to effect reconciliation but it is reported that due to the stresses on him and his family unit he had not been in a position to reconcile his differences with his partner and resume living with her and his children. It is reported that he had a diminished libido and that his sex life had been affected. However, as he was in fact separated from his partner, and it would seem that they did not resume cohabitation it is difficult to assess the real impact on his sexual relationship, on the evidence contained in the report. The psychologist rated the appellant's score on the GAF to be 50, which would mean that there was serious impairment in the appellant's social and occupational functioning. An example of such impairment being that he had no friends and that he was unable to keep a job. The appellant was described as being a loner, and essentially avoided social functions. But he has been able to remain in his casual employment even though his disorders have impacted adversely on him. It would seem that there has been some adverse impact on the appellant's sexual functioning, by way of diminishment, but it is difficult to assess the degree of impact having regard to the fact that the appellant was separated from his partner at the time of the 'act of violence'. In many areas in his report the psychologist has used the word 'severe', but in the area of 'Current Functional Status and Disability' he referred to the appellant's occupational functioning as remaining moderately to severely impaired." 22 In summary, the magistrate found an adverse effect on the plaintiff's occupational, social and sex life. 23 He concluded that, in his view, the evidence was not sufficient to establish that the appellant was severely disabled by his condition "but is moderately disabled in his ability to perform his occupation" and further held that the psychologist's report did not provide sufficient detail to enable him to assess the impact of the appellant's psychological symptoms on his relationship with his friends and family. 24 He concluded:- "Having considered the report of psychologist Wenzel, I find I am unable to conclude, on the balance of probabilities that the appellant's chronic psychological or psychiatric disorders are severely disabling. There has obviously been an adverse impact on the appellant as a result of the disorders but my view is that the evidence establishes that such disorders are moderately disabling. I am not satisfied, on the balance of probabilities, that the appellant has established, that as a result of the 'act of violence' on the 7 April 2001, he suffered a 'Category 2 chronic psychological or psychiatric disorder that is severely disabling'." 25 In consequence, he dismissed the appeal to the Tribunal and affirmed the assessor's determination. 26 Critical to the magistrate's decision was the meaning he attributed to "severely disabling". 27 It is again common ground that as these are ordinary English words, the meaning of them and the application of them to the facts involve questions of fact. (See Collector of Customs v. Agfa-Gevaert Limited (1995-96) 186 CLR 38; Hope v. The Council of the City of Bathurst (1980) 144 CLR 1 at 17; Brutus v. Cozens [1973] AC 854 at 861, 863, 865.) 28 In recognition of the magistrate's fact finding role, the submission put by the plaintiff was that the magistrate had erred in the sense referred to by the court in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223. As the submission was put to me, it was that the magistrate in finding the facts had acted unreasonably or irrationally. Such a submission is akin to the exception to the conclusiveness of the finding of facts by magistrates adverted to by Lord Reid in Brutus (supra) at 861:- "It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision." 29 And at 862:- "So the question of law in this case must be whether it was unreasonable to hold [that the appellant's behaviour was not insulting]." 30 When considering how wide the ambit might be of what course might be reasonable in the circumstances, I should have regard to the purpose and intent of the Act; to its objects as expressed in s.3; that it affords to aggrieved applicants a right of appeal for error of law to the District Court and that the Act specifically exempts from challenge on that appeal the question of whether the categorisation of the injury was correct. I should further have regard to the fact that the Act has confided the initial appeal from the assessor to a legally qualified person, a magistrate, sitting on appeal on both fact and law. 31 In Craig (supra) at 176, the High Court had particular regard to the distinction between Tribunals staffed by legally unqualified persons and courts constituted by persons with either formal legal qualifications or practical legal training. The High Court contrasted the ordinary jurisdiction of a court of law so staffed as encompassing authority to decide questions of law as well as questions of fact with, at least in the absence of a contrary intent in the statute, that of an administrative authority which lacked authority to determine questions of law or to make an order or decision otherwise than in accordance with the law. 32 The matters to which the High Court adverted in Craig (supra) in order to contrast the conferral of statutory authority upon an administrative body with that upon a body acting judicially and staffed by a trained lawyer, are apposite here to the extent that they enable me to consider within what bounds the Act confided fact-deciding functions on the magistrate and hence whether it might be said the magistrate constituting the Tribunal acted reasonably. So far as he acted within those bounds, the finding of the facts, even the mistaking of them, was entirely for him as was the categorisation of them or the determination of how the facts should be appropriately described, that is, whether the statutory description, as he defined its meaning to be, applied to them. 33 Applying the views of Lord Reid in Brutus (supra) as exemplifying the general approach and in accordance with the submissions put to me by both counsel, I would only be of the view that the summons should be upheld were I satisfied that the magistrate's decision, having regard to the primary facts he found, was unreasonable or irrational. Whether I might have formed the view the magistrate did, for myself, is not in point. 34 In my view, the magistrate's findings of fact clearly amounted to findings that the applicant was seriously affected by the psychological or psychiatric disorder the magistrate found to exist and was incapacitated to a substantial degree in his social, occupational and sexual life. But that does not conclude the matter. It remained for the magistrate to determine whether that serious affectation and substantial incapacitation amounted to a condition that was, overall, within the meaning, as he found it to be, of the statutory compound phrase "severely disabling". 35 It is not to the point that I might disagree with his conclusion, nor is it for me to redefine the statutory terms by making myself a finding of fact as to their meaning. Provided those findings are not unreasonable in the sense referred to by Lord Reid in Brutus (supra) and as is referred to in Associated Provincial Pictures Houses (supra), they must be accepted. 36 In Re Minister for Immigration and Multicultural Affairs ex parte Cohen [2001] HCA 10, McHugh, J. at paragraph 35 to 37 (albeit in connection with the identifying of jurisdictional error rather than error of law) said the following:- "The applicant submits that the Tribunal 'misunderstood the nature of the opinion which [it] is to form'. He submits that the Tribunal did not understand the true meaning of 'disability' and 'other serious circumstance' in the definition of 'special need relative' in reg. 1.30. But, assuming that the Tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of 'disability' and 'other serious circumstance', it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant tribunal has applied an erroneous precedent rather than adopting its own erroneous interpretation. The Tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions 'disability' and 'other serious circumstances' were used in reg. 1.30 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact. Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error. If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty." 37 There have been many cases considering the application of the principle in Associated Provincial Picture Houses (supra). It was expressed by Lord Greene, MR. in the following way:- "The task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction could have decided to impose. The question is whether although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could every have come to it." 38 In Minister for Immigration and Multicultural Affairs v. Rajamanikkam & Anor [2002] HCA 32 at paragraphs 25 to 28 in the judgment of Gleeson, CJ. appears the following:- "In 1964, in Regina v. Deputy Industrial Injuries Commissioner; ex parte Moore, Diplock, LJ. Said that the rules of natural justice to be observed by an administrative decision-maker could be reduced to two: 'First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing'. Referring to the position at common law, where the requirements of fairness were often expressed as part of a duty to act judicially, Deane, J. said, in Australian Broadcasting Tribunal v. Bond :- 'If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably … When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.' As that case showed, identification of the 'decision' ay constitute an important step in deciding whether there has been an error of law in the form of a breach of a duty to act in accordance with the requirements of procedural fairness. The requirement is to 'base [a] decision on evidence'; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts. Secretary of State for education and Science v. Tameside Metropolitan Borough Council , in 1977, was a case where the statute empowered a decision-maker to give a direction based upon a matter of judgment. Lord Wilberforce said:- 'If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must enquire whether those facts exist, and have been taken into account, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.' The House of Lords held that there was no factual ground upon which the Secretary of State could have found that a local authority was acting unreasonably and, on that basis, formed a judgment which was a pre-condition to the exercise of a statutory power." 39 The issue is always, when such a submission as is here advanced is put forward, where should the line be drawn to set the outer bounds to the ambit of the Tribunal's proper fact finding function. In this regard, it is important to consider such matters as I have referred to: whether the Tribunal is constituted by legally qualified and trained persons; whether it has a specialist jurisdiction in which those constituting the Tribunal are expert; whether the Act evinces a general beneficial intent or objects such as are referred to in s.3 and particularly whether, as in my view the Act does here, a specific intention that the particular subject matter on which the Tribunal's decision is challenged is a matter peculiarly confided in that Tribunal. 40 It is only by having regard to such matters that one can give content to the concept of unreasonableness as has been referred to in the cases to which I have referred and such as to give meaning to the terms "arbitrarily", "irrationally" or "unreasonably" as referred to by Deane, J. in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321. 41 I have considered anxiously whether this matter passes over that line, but am unable to conclude that it does. I therefore conclude that I must dismiss the summons. I will invite the parties to provide short written submissions within seven days as to the course which should be taken on costs. **********

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