Scott v Victims Compensation Fund Corporation

And then added: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and … for the repository alone." (supra at 35-36) 20 In Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Mason J dealt with the ground of appeal of failure to take into account a relevant consideration and having examined the cases propounded a number of propositions. He said: "The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review …"

From an examination of those cases Mason J determined that the following propositions had been established: (a) the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision …

(b) what factors a decision maker is bound to consider is determined by construction of the statute conferring the discretion …

(c) not every consideration that a decision maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision …

(d) the limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned …

(e) An appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice … So too in the context of administrative law a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. (supra at 39 - 42) 21 The principles referred to above have been reinforced and endorsed by the High Court on many occasions, a very recent example of which is Abebe v The Commonwealth (1999) 197 CLR 510 in which Gummow and Hayne JJ also adopted the statement by Brennan J in Attorney General (NSW) v Quin. (supra) 22 The principles set out above must be applied against the background of the admonitions for caution and against over zealous scrutiny of the decision which is sought to be impugned. In Minister for Immigration and Ethnic Affairs v Woo Shan Liang (1986) 185 CLR 259 the High Court referred with approval to the decision in Collector of Customs v Pozzolanic (1993) 43 FCR 380, in which, when discussing the practical restraints on judicial review, it was said that a Court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision maker. Furthermore, "(t)he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." The High Court said of these propositions that : "They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned in the way the reasons are expressed." (supra at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) 23 In addition, the caveat expressed by Deane J and oft repeated, that determining whether there has been a failure to take into account a relevant consideration does not mean : "That a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account." ( Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363 at 375). C. Decision Manifestly Unreasonable 24 As Mason J pointed out in Minister for Aboriginal Affairs v Peko Wallsend Limited (supra at 41) a Court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance. The ground on which this is done is that the decision is manifestly unreasonable. 25 In Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 Lord Green MR in formulating the function of the Court in relation to manifestly unreasonable decisions said: "What, then is the power of the Courts? They can only interfere with an act of executive authority if it is shown that the authority has contravened the law … when an executive discretion is trusted to a body … what appears to be an exercise of that discretion can only be challenged in the courts in a strictly class of case … (t)he exercise of such discretion must be a real exercise of discretion … the authority must disregard … collateral matters." (supra at 228 ) 26 He also examined the concept of a decision being unreasonable and said: "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly use in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority to arrive at such a conclusion. Warrington LJ in Short v Poole (1926) Ch 66 gave the example of a red-haired school teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might also be described as being done in bad faith: and, in fact, all these things run into one another" (supra at 229) 27 Mason J in defining "manifestly unreasonable" embraced what had been said by Lord Green MR and summarised the ultimate test as being that "the decision was so unreasonable that no reasonable person could have come to it." (Minister for Aboriginal Affairs v Peko Wallsend Limited (supra at 41)) 28 As is the case in relation to the failure to take into account relevant considerations, so too in relation to the determination of whether a decision is manifestly unreasonable, the court must bear in mind the object and limits of its jurisdiction. The mere fact that the reviewing court takes a view in relation to what it would regard as an appropriate outcome which is different from that of the body whose decision is being reviewed does not mean that the jurisdiction of the court to interfere with the decision is enlivened. There may be, frequently are, parameters within which different conclusions can be come to or outcomes determined even though the facts before the decision makers are the same. The jurisdiction of the court is not to alter the decision of the body whose decision is being reviewed because it would have reached a different decision. As was pointed out in Re W (an infant) (1971) AC 682: "Not every reasonable exercise of judgment is right and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individuals judgment with its own." (supra at 700) 29 The same principle is stated, albeit in different words, by Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 when he said: "There is … a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right … validity … does not depend upon the soundness of (the) opinion; it is sufficient if the opinion expressed is one reasonably open … Whether it is sound or not is not a question for decision by a court."

See also Bruce v Cole (1998) 45 NSWLR 163 at 183-184 per Spigelman CJ. ANALYSIS 30 In its decision the Tribunal considered the evidence which had been given in relation to the circumstances of the assault committed by the plaintiff. It first examined the relationship between the plaintiff and the victim. This was domestic in nature. It then considered the prior occasions of mutual physical violence between them, the alleged characteristics of both the victim and the plaintiff and the removal by the victim from the plaintiff's room of a piece of jewellery given by the victim to the plaintiff. Having done so it concluded that the relationship between the plaintiff and the victim, antecedent to the events which were basal to the Tribunal's decision, was "marked by domestic violence." 31 The Tribunal then proceeded to examine the circumstances of the incident of 22 May 1994 and concluded that the victim undoubtedly suffered an injury. Furthermore, it noted that the plaintiff made no statement to the police at the time of or after the offence in which he proffered any explanation for his actions and recorded that the plaintiff had not done so during the course of the hearing, except in a Statutory Declaration which had been tendered in which matters of self defence were proferred. He then examined the claim of self defence, detailed the facts immediately before and at the time of the assault and concluded that the plaintiff had in fact been attacked by the victim and it was after such attack that the plaintiff assaulted the victim. He thus found circumstances which were relevant to the culpability of the plaintiff in relation to the act of violence on which any order for restitution was to be based. This is a matter to which the Tribunal is to have regard in fixing the amount to be paid as restitution (s 47(2)(b)). 32 Having considered the above matters the magistrate (Tribunal) said: "Looking at all that evidence , had that been before the Tribunal when an award was made, I would have taken the view that an act of violence had in fact been established on the evidence and I certainly would have taken into account Section 20 issues." (bold added ) 33 This last reference is clearly a reference to the considerations set out in s. 20(1)(a) in which the Tribunal is directed to have regard, inter alia, to: "any behaviour, condition, attitude or disposition of the defendant that directly or indirectly contributed to the injury or death sustained by the victim." 34 The magistrate's judgment then continued: "Because matters that are relevant can be taken into account I propose to take that into account pursuant to Section 20(1)(a) and pursuant to Section 47 of the Act and I propose to reduce the Order. I set aside the determination for restitution and make a determination for restitution against the defendant in the sum of $12, 555." 35 These passages in the decision of the magistrate demonstrate that he determined to reduce the amount of the previous award because the Tribunal was entitled, indeed required, to have regard to: "such other matters as are in the opinion of the Tribunal, relevant to the determination."

in fixing the amount to be paid by way of restitution (s.47(2)(d). In determining the amount of $12,555 he had regard to "that evidence," namely the evidence of the domestic relationship between the plaintiff and the defendant, that the plaintiff had in fact been attacked by the victim on the day in or around the time of the assault by the plaintiff on the victim. They were, in my opinion, matters which it was appropriate for the Tribunal to take into account. 36 However, in the evidence that was referred to by the magistrate before coming to the passage in his judgment referred to in paragraph 32 above, there is no reference to the financial position, or condition of health, of the plaintiff. 37 After the decision had been arrived at and the order for $12,555 had been made, the magistrate then turned to deal with the question of whether or not the plaintiff should be permitted to pay the amount awarded by instalments. It was in this context that he said: "I have noted the affidavit of financial circumstance which is exhibit 2. I was looking at monthly instalments because it is quite apparent that no lump sum can be paid." 38 He then made an order for payment by instalments of $30 per month. 39 The sequence of the decision of the magistrate clearly demonstrates that he did not have regard to the financial means of the plaintiff when he determined the amount of restitution to be paid. The evidence to which he had regard and which is detailed in his judgment did not include any reference to those financial circumstances. He had regard to the financial means of the plaintiff only in relation to whether or not the payment should be made by instalments and the amounts of such instalments and only after he had determined the amount to be paid. 40 The failure of the magistrate to have regard to the financial means of the plaintiff in fixing the amount of restitution to be paid involved a departure from the mandate in s.47(2)(a) of the Act. Financial means are a consideration relevant to the determination of the amount to the paid by way of restitution. The financial means of the plaintiff were not merely relevant but, on the facts of the case, quite critical as a consideration. The plaintiff was a disability pensioner. His income was deposed to by him as being only $370 per fortnight. The affidavit which was referred to by the magistrate showed expenses about equal to that. These expenses included medication and dietary supplements which were necessary because of the HIV condition from which the plaintiff suffered. There was no cross-examination directed to those matters, no issue as to them. 41 The discretion of the magistrate thus clearly miscarried within the principles discussed in House v The King (1936) 55 CLR 499 at 505. Accordingly, on the above ground alone the decision of the Tribunal should be set aside. 42 However, there is another matter which was, in the circumstances of the case, one to which the magistrate was required to have regard but to which he failed to have regard, namely, the state of health of the plaintiff. That state was relevant to the capacity of the plaintiff to earn and to the likely level of expenditure to which he may be put as his HIV condition continued or progressed. The state of health of a person against whom an order for restitution is sought may be a matter relevant to the determination within the meaning of that phrase as used in s.47(2)(d) of the Act. Whether it is or not will depend upon the circumstances of the case but in the present case there can be no doubt that it was a relevant, indeed significant, consideration to which regard should have been had. Regard was not had to it and for that additional reason I am of opinion that the exercise of the magistrate miscarried and his decision should be set aside. RELIEF 43 Section 109 of the Justices Act 1902 specifies the powers of the Supreme Court in determining appeals. It empowers the court to do any one or more of the following:

(a) confirm, quash, set aside or vary the order appealed against or any part of it;

(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:

1. The decision of the Victims Compensation Tribunal of 7 April 2000 ordering the plaintiff to pay restitution of $12,555 is quashed.

2. The amount of restitution to be paid by the plaintiff is determined as nil.

3. The defendant is to pay the plaintiff's costs. **********

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