(d) remit the matter to the Magistrate who made the order to hear and determine the matter of the appeal
44 Both counsel have submitted that should the appeal be allowed the court should determine the amount, if any, to be paid by the plaintiff as restitution under the Victims Compensation Act 1987. Both submitted that the small amount involved, or likely to be involved, was such as to make the costs that would be incurred on a remitter to the local court disproportionately high and that a remitter would involve an unnecessary and wasteful use of the time of the local court (Tribunal). Furthermore, counsel for the defendant submitted that should the matter be remitted to the local court it would "give the plaintiff another chance to strap up his case". She further submitted that should the court decide to determine the matter itself it should do so on the evidence before it and that in an appeal of the kind before the Court further evidence could not, or at worst should not, be permitted. In this context the attention of the court was directed to Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA, 47; (2000) 74 ALJR 1348 in which it was said:
"It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellant court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing."
45 The appeal provided for in the instant case is restricted to a question of law. It is an appeal in the strict sense, not an appeal by way of re-hearing. The function of the Court as discussed above and its powers to interfere with the exercise of a discretion are limited. However, once the exercise of the discretion has been shown to have miscarried:
"the appellate court may exercise its own discretion …, if it has the materials for so doing" ( House v The King (1936) 55 CLR 499 at 505)
46 In this context it was submitted by both counsel that there was sufficient material before the court on which to make a determination. In cases where this is so the court on an appeal of the present kind may substitute its own decision for that of the decision maker below.
47 I am of opinion that there is much force in the submissions made by counsel for the parties. The court is seized of the matter. The evidence that was before the Tribunal is before the court too. The factors which were not taken into account are set out in the evidence and accordingly I propose to determine the matter.
48 It is clear that the jurisdiction of the Tribunal under s.49A was enlivened by the evidence adduced before it. On 7 April 2000 the Tribunal set aside the first order and was correct in so doing. Its order in that regard is not the subject of any appeal and it stands. The provisions of s.47(1) of the Act, to the extent applicable in the circumstances of the present case, have been satisfied. The fixing of the amount to be paid is to be effected having regard to the criteria set out in s.47(2). To the extent that the Tribunal had regard to those matters no challenge is made to the findings. Indeed they were findings of fact and are not, as such, amenable to the appeal process provided for in s.49.
49 In fixing the amount of compensation, if any, to be paid I have regard to the assessment of the culpability of the plaintiff as required by s.47(2)(b). There was no arrangement agreed on between the Registrar and the plaintiff in respect of payment, so the criterion specified in s.47(2)(c )has no application. However, it is necessary for the Court to have regard to the matters specified in s.47(2)(a) and (d).
50 The financial means of the plaintiff are scant. He does not have any means other than a disability pension. His expenses are approximately equal to his income. His evidence as to his means was not the subject of any cross examination or other challenge. There is no dispute in relation to his income or expenses. Furthermore, there is no suggestion that he has available to him any capital or any source of capital to which he may have resort in the future. The fact that he has a disability pension founds an inference that he is unable to work so as to supplement the $370 per fortnight which he receives as that pension. Furthermore, his medical condition would, as a matter of common knowledge, tend to militate against his working. In addition, the HIV condition from which he suffers is notoriously progressive, even in cases in which it has been present over a substantial period of time. Future possibilities include that his medical expenses could increase and that his degree of dependency could become greater. All of these factors in my opinion make the present case quite unusual and when regard is had to the factors set out in s. 47(2) of the Act I am of opinion that it would be appropriate to determine the amount of restitution to be paid by the plaintiff as nil.
51 The orders of the court are as follows: