46 While s21 in terms addressed the role of the Tribunal, it applied by implication to the District Court when exercising its then unrestricted appellate function conferred by s29 of the Victims Compensation Act 1987.
47 Each party correctly accepts that the presumption of regularity should be applied to Judge Hosking's undisclosed reasoning process. From this it would follow that Judge Hosking would (subject to the evidence and submissions before him) have had regard to the matters required to be taken into account by s21 in reaching his decision to increase the award of victims compensation to the statutory maximum of $40,000.
48 The respondent explains Judge Walker's terse reference to s21 in this manner. Pursuant to s21(b), Judge Hosking was required to have regard, in determining the amount of compensation, to "any… amount… which (in the opinion of the [District Court] is likely to be received by [the respondent] in respect of the act of violence … to which the application for compensation relates". It is possible that his Honour may have considered that the right arm and right leg injuries might later attract the right to a s12D gratuity under the PRSA and, when assessing the victims compensation referable to those injuries, had regard to that likely gratuity, reducing the victims compensation referable to those injuries presumably to nil. The remaining injuries might nevertheless have justified an award of $40,000 victims compensation.
49 This strikes me as a highly unlikely scenario, but that in itself may not be enough to answer the point. There is, however, an answer in principle, in my opinion. There is a line of cases dealing with the rule against double compensation, holding that where the person invoking the rule (usually the defendant) establishes that money was paid to the other party in circumstances capable of attracting the rule (eg with respect to a concurrent claim), it is for the recipient to show that the money was not received by way of compensation for the loss (Townsend v Stone Toms & Partners (1984) 27 BLR 26 at 41, 51, 56 (Eng CA), Boncristiano at 89-90).
50 I incline to the view that these cases involve an evidentiary onus being cast upon the party having access to the relevant information rather than a free-standing principle forming part of the rule against double compensation. Be that as it may, the respondent was party to the proceedings before Judge Hosking, unlike the present appellant. The respondent called no evidence (and did not explain his inability to do so) with reference to identifying the issues raised for determination before Judge Hosking and/or addressed in his reasons for judgment.
51 I have not overlooked the attempt to tender the document purporting to record the reasons for judgment of Hosking DCJ (par 5 above). That document was objected to for want of proof of its derivation (Green 85-6). Its admissibility was not pressed, nor was there any other attempt by the present respondent to cast necessary light upon the subject matter and basis for the award of $40,000 compensation.
52 With respect to Judge Walker QC, the issue is not assisted by reference to Purkess v Crittenden. That case deals with the disentanglement of causes impacting upon the liability of a tortfeasor (see Shorey at [43]-[47]; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [93[-[112], BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288 at [35]-[36]).
53 The respondent submits that the court never gets to this point, because the very matter at issue is whether there was an overlap of claims with respect to the same injury. However, this point is reached because, as I show above, we know that the right leg and right arm injuries remained the subject of the claim for victims compensation. On the construction of s12E(2) that I favour that was sufficient to engage that subsection and the rule against double compensation.
54 I propose the following orders: