VICTIMS COMPENSATION FUND CORP v NGUYEN & ANOR

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40879/00 MASON P HANDLEY JA POWELL JA

Thursday 16 August 2001 VICTIMS COMPENSATION FUND CORPORATION v PHUC HUU NGUYEN & Anor

The Victims Compensation Fund Corporation (claimant) seeks orders in the nature of certiorari quashing orders made in the District Court.

On 26 January 1997 the first opponent (Mr Nguyen) was stabbed at Cabramatta during an affray. On reporting to the police, Mr Nguyen said that the attack had been a reprisal for an incident that occurred while he had been a member of an Asian gang. When questioned further by the police, Mr Nguyen declined to provide a written statement or any further assistance to the police.

In June 1997 Mr Nguyen filed an application for compensation by a primary victim pursuant to the Victims Compensation Act 1996 (the Act). The standard amount for Mr Nguyen's injuries under the Act was $7,800. On 10 March 1999 the Director of the Victims Compensation Tribunal issued a notice of determination awarding Mr Nguyen $4,230 compensation. The Director noted that the award had been "reduced by 50% for contributory behaviour". Section 30(1) of the Act provides that the compensation assessor must have regard to: (d) whether the victim has failed to provide reasonable assistance to any person…engaged in an investigation of the act of violence…(e) such other matters as the compensation assessor considers relevant.

Mr Nguyen appealed to the Victims Compensation Tribunal. On 5 Aug 1999 the Tribunal set aside the assessor's determination, and determined that only costs and disbursements should be awarded in the matter, and no award of compensation.

Mr Nguyen appealed to the District Court under s39(1) of the Act. Mr Nguyen asserted that the Tribunal erred in law by denying him procedural fairness by not indicating its intention to award no compensation to him thereby depriving Mr Nguyen of an ability to withdraw his appeal. It was in respect of this ground that Judge Mahoney QC granted leave to appeal and upheld the appeal to the District Court, setting aside the determination of the Victims Compensation Tribunal.

The claimant submits that the District Court erred in law. It submits that the Tribunal was not obliged to notify Mr Nguyen of any intention to determine that no compensation should be awarded, and that the Tribunal was bound to determine for itself whether an award should be made and the amount of the award.

1. The particular scheme involved here imports an obligation of procedural fairness as it involves a statutory right to compensation administered in a regime bearing many of the trappings of due procedure.

2. The communicated decision of the Tribunal to proceed on the papers and Mr Nguyen's acquiescence mean that Mr Nguyen cannot complain if the Tribunal proceeded to perform its statutory function in accordance with its terms. However, Mr Nguyen's grounds of appeal challenged the 50% reduction of the original award, pursuant to s30(1)(d). In these particular circumstances it was not open to the Tribunal to set aside the assessor's determination and award less without someone first adverting to the possibility that this might happen.

Annetts v McCann (1990) 170 CLR 596; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889; Kioa v West (1985) 159 CLR 550 (cited). Telstra Corporation Ltd v Kendall (1995) 55 FCR 221; Chiropractors Association of Australia (South Australia Ltd) & Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 (compared). Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (considered).

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40879/00 MASON P HANDLEY JA POWELL JA

Thursday 16 August 2001 VICTIMS COMPENSATION FUND CORPORATION v PHUC HUU NGUYEN & Anor JUDGMENT

1 MASON P: The claimant seeks relief in the nature of certiorari quashing orders made in the District Court. That Court is the second opponent and it submits save as to costs. 2 This is not an appeal. The Court's "jurisdiction to quash the ultimate determination" of the District Court is based of error of law that appears on the face of the proceedings (including the reasons expressed by the District Court for its ultimate determination) (Supreme Court Act 1970, s69(3), (4)). 3 The first opponent (Mr Nguyen) is a student of Vietnamese birth who was born in 1971. On 26 January 1997 he was stabbed at Cabramatta during an affray. Two of his friends were also hurt. 4 The matter was reported promptly to the police. Mr Nguyen told Senior Constable Webber that the attack was a reprisal for an incident that had occurred when he was a member of an Asian gang. He was asked if he knew his attackers and the officer mentioned that it was members of the Five T Asian crime gang. The officer asked "if it was Co Phong Le" (who was one of the assailants). Mr Nguyen and his fellow victims "became vague and requested time to think about the matter". They declined to provide a written statement or to give any further assistance to the police. 5 In June 1997 Mr Nguyen filed an application for compensation by a primary victim pursuant to the Victims Compensation Act 1996 (now known as the Victims Support and Rehabilitation Act 1996) (the Act). The substantive amendments made in 1998-2000 do not affect the issues in these proceedings. 6 The effect of cl 3 of Schedule 1 of the Act was that the standard amount of compensation for multiple injuries of a punctured lung and a scarred torso suffered by Mr Nguyen was $7,800. 7 The matter was determined by an assessor on the papers (cf s29). On 10 March 1999 the Director of the Victims Compensation Tribunal issued a Notice of Determination awarding $4,230 compensation comprised as follows: (a) compensation for injury: $3,900.00 (b) compensation for expenses: $3,300.00 Total: $4,230.00

8 The assessor's Notice indicated that the award of compensation for injury had been "reduced by 50% for contributory behaviour". Section 30(1) relevantly provides that: (1) In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following: … (d) whether that victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed, (e) such other matters as the compensation assessor considers relevant.

9 Evidence in this Court includes a two page statement of reasons by the assessor. It is unnecessary to determine whether this document constitutes part of the record of the District Court (cf District Court Rules, Pt 6 rr54, 60D; Victims Compensation Fund Corporation v Ainsworth & Anor (2001) NSWCA 92 at [2]). 10 Mr Nguyen appealed to the Victims Compensation Tribunal against the determination (cf s36(1)). (No right of appeal is conferred on the Corporation.) The Grounds and Particulars of Appeal and a document entitled Particulars of Appeal and Appellant's Submissions are also included in the materials tendered without objection in this Court. Once again the question whether they form part of the record of proceedings in the District Court may be noted. 11 Clause 15 of the Victims Compensation Rule 1997 states that such appeal is to be instituted by the lodgment of a notice of appeal with the Register of the Tribunal. The Rule is silent as to service. Since however the Victims Compensation Fund Corporation, the present claimant, was the effective respondent to the appeal, procedural fairness would have required service to have been effected upon it. Be that as it may, counsel for the claimant informed this Court that in practice the Corporation is not notified and does not participate in an appeal to the Tribunal unless the Tribunal decides to conduct a hearing. The power to decide whether or not to conduct such a hearing is found in s38(1) and (2). The implicit decision to conduct no hearing in the particular case is not the subject of complaint by either side. 12 The Act requires the Tribunal to determine the appeal on the evidence and material provided to the compensation assessor, with a limited power to receive further evidence and material (s38(3)). 13 On 5 August 1999 the Tribunal (constituted by Magistrate R Gabb) set aside the assessor's determination. Pursuant to s30(1)(d) (made applicable to an appeal to the Tribunal by s38(4)), the Tribunal determined that no award of compensation should be made in the matter. The Tribunal awarded the costs of $750 and disbursements of $330 previously awarded by the compensation assessor. It declined to award costs of the appeal. 14 Magistrate Gabb gave reasons for his decision and the full text of those reasons has been tendered, without objection, in the present application. Once again, I observe that it is not self-evident that the magistrate's reasons form part of the record of the District Court. Fortunately, the issue may be passed over because the key parts of the magistrate's reasons were set out in the reasons of Judge Mahoney QC in the District Court. The latter reasons themselves constitute part of the record of that Court's "ultimate determination" (Supreme Court Act, s69(4)). I shall return to them after referring to the subsequent procedural history. 15 Section 39(1) of the Act confers upon an applicant for statutory compensation a further right of appeal - to the District Court. The right is subject to the leave by the District Court and is a right to appeal "on a … question of law arising in any determination of the application by the Tribunal". 16 Section 39(3)-(5) further limit and qualify the District Court's jurisdiction and powers. Those sub-sections provide: (3) For the purposes of this section, the following matters are not questions of law: (a) a determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries or whether it is a compensable injury of a particular description specified in that schedule, (b) a determination of whether a series of acts are related and constitute a single act of violence. (4) An appeal does not lie to the District Court against a decision of the Tribunal to refuse leave for a late application for statutory compensation. (5) On an appeal, the District Court may only: (a) affirm the determination of the Tribunal, or (b) set aside the determination and remit the matter to be considered and determined again by the Tribunal (either with or without the hearing of further evidence) in accordance with the decision of the District Court on the question of law concerned.

17 The scope of these sub-sections is discussed in Victims Compensation Fund Corporation v Ainsworth [2001] NSWCA 92. 18 Some of the documents filed by Mr Nguyen in the District Court in support of his appeal have been placed before us. These include a Statement pursuant to Pt 6 r60C of the District Court Rules which asserts that the Tribunal "erred in law" in particular ways. On the face of the document some of the complaints do not appear to raise any "question of law" (cf s39(1)). But this reservation does not apply to the presently relevant paragraph: 7. The Tribunal erred in law by denying the Appellant procedural fairness by not indicating its intention to award no compensation to the Appellant thereby depriving the Appellant of an ability to withdraw its appeal.

19 As indicated, Judge Mahoney QC heard and determined the matter. His ex tempore reasons were given on 27 March 2000. His Honour addressed four significant grounds that were pressed in the hearing of the appeal to the District Court. Three of those grounds were determined adversely to Mr Nguyen. 20 It was the second ground in respect of which Judge Mahoney gave leave to appeal and upheld the appeal to the District Court. That ground was based on par 7 of the appellant's Statement which is set out above. The point raised was that, if the Tribunal was contemplating reducing further a deduction pursuant to s30(1)(d) beyond the reduction already made by the assessor, then the Tribunal was obliged by the principles of procedural fairness to notify the appellant, thereby giving him a chance of withdrawing his appeal to the District Court and keeping what he had already got from the assessor. The submission was based upon the analogy of Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. Parker deals with a different statutory regime, but it had been applied to the present situation by Sidis DCJ in Mawer v Victims Compensation Tribunal, District Court, unreported 10 September 1999. 21 Judge Mahoney recorded the Corporation's arguments as to why Mawer had been wrongly decided. (Those arguments were in effect repeated in this Court.) He held that judicial comity dictated that he should apply the reasoning in Mawer and therefore upheld the appeal on this ground. He concluded that error of law had been demonstrated on the part of the Tribunal because, in circumstances in which the Tribunal was "contemplating reducing further a deduction pursuant to section 30(1)(d) beyond one already made by the Assessor", the Tribunal failed "to notify the appellant and give him a chance of withdrawing his appeal and keeping what he had already got and not running the risk of losing all or part thereof". 22 Judge Mahoney then turned to s39(5) to determine what relief should be given. He recognised that s39(5)(b) limited his powers. Accordingly, he made the following orders: (1) leave to appeal granted; (2) determination of the Victims Compensation Fund Corporation set aside; (3) matter remitted to be considered again by the Victims Compensation Tribunal; (4) Victims Compensation Fund Corporation to pay the appellant's costs of the hearing on 27 March 2000.

Issues in the present application 23 The claimant submits that the District Court erred in law. It is contended that the Tribunal was not obliged to notify Mr Nguyen of any intention to determine that no compensation should be awarded, thereby enabling him to withdraw his appeal to the Tribunal if he wished. 24 In support of this challenge it was submitted that s38(4) of the Act obliged the Tribunal to "determine the matter in accordance with the relevant provisions of Division 5" (of Pt 2) including, relevantly, s30(1)(d) (set out at par 8 above). 25 It was further submitted that the task assigned to the Tribunal in conducting a hearing into "a matter the subject of an appeal" (s38(1)) was to determine the appropriate award of compensation. In other words, the Tribunal was bound to determine for itself whether an award should be made and the amount of the award. In effect there was to be a hearing de novo. 26 It was emphasised that the Tribunal had determined the matter without an oral hearing (cf s38(2)), after notice had been given to Mr Nguyen that the Tribunal was proceeding on the papers. Judge Mahoney so held, setting out his factual reasons (Judgment pp7-8). In his Honour's words: … full opportunity had been granted to the applicant to place whatever material he wanted to place before the Tribunal and not only was that full opportunity granted but it was taken (ibid). 27 The claimant challenged the reasoning of Mahoney DCJ which had concluded that the Tribunal was obliged to have signalled its intentions. It was submitted that neither the statute nor the common law imposed an obligation of procedural fairness in the circumstances where Mr Nguyen knew the matter was proceeding on the papers. 28 The claimant argued that Parker is distinguishable. That decision held that a District Court judge had been procedurally unfair when, in determining an appeal by an accused person from the conviction and sentence in a criminal case in the Local Court, he failed to signal to the accused that he was contemplating imposing a custodial sentence in place of the non-custodial sentence imposed by the Local Court. Parker was said to be distinguishable because: (i) the seriousness of the possible imposition of a custodial sentence is qualitatively different from (and greater than) the possible reduction of the award of an amount of statutory compensation; (ii) there was a practice or convention of District Court judges giving the warning that was omitted in Parker (see Parker at 290, 295A; Relic v Director of Public Prosecutions (NSW) [2000] NSWCA 84 at [10]-[11]); (iii) in Parker the District Court judge also failed to alert counsel for the accused of two decisions of the Court of Criminal Appeal that he regarded himself bound to follow on sentence (see 28 NSWLR at 293-4); (iv) Kirby P described Parker as a "borderline case" (at 291); (v) the consideration of the matter arising under s30(1)(d) was "fairly and squarely in issue" in the appeal from the assessor to the Tribunal (according to Magistrate Gabb's reasons). 29 Mr Nguyen submitted that the absence of an express statutory requirement of notice in the particular circumstances is not conclusive. Like many other cases, Parker involved a common law implication. The factual distinctions between Parker and the present case do not preclude application of its core reasoning and that reasoning does not turn essentially upon the established practice in all grounds criminal appeals to the District Court. 30 Addressing the particular statutory scheme, Mr Nguyen emphasised the fact that only the "aggrieved" applicant for compensation is given a right of appeal to the Tribunal "against the determination" (s36(1)). In the circumstances, such an appeal can only be for the purpose of providing the applicant with the opportunity of obtaining a more favourable result. He also submitted that there is no respondent to the appeal and no interest adverse to the applicant seeking to obtain a less favourable result. (I cannot accept the latter proposition, given that one is dealing with public money and rights claimed according to statutory entitlement.) 31 Mr Nguyen also pointed to the fact that his appeal to the Tribunal had proceeded on the basis of notice of appeal containing all the grounds of appeal and full particulars of those grounds of appeal (Victims Compensation Rule 1997, cl 15(3)). In other words, the aggrieved applicant had the right and duty to specify the issues raised for determination in the appeal. The scope of those issues was relevant to the content of the Tribunal's duty to afford procedural fairness in the particular case.

Analysis 32 There is a continuing debate about the jurisprudential source of the obligation to afford procedural fairness (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238; (2001) 75 ALJR 889 at [89]-[90] per Gaudron J). But even if the obligation stems implicitly from a statutory implication (as Brennan J considered in Kioa v West (1985) 159 CLR 550 at 614-5), the scheme involved here imports such an obligation involving as it does a statutory right to compensation administered in a regime bearing many trappings of due procedure. 33 Accordingly, I do not accept so much of the claimant's submissions as state or imply that one looks to see if the statute or the common law "imposes" an obligation of procedural fairness, if the suggested search is for positive indication of such obligation. Such obligation can be excluded or qualified by words of "plain words of necessary intendment" (Annetts v McCann (1990) 170 CLR 596 at 598, Miah at [126]). However, nothing in the present legislative scheme does so and the claimant did not suggest otherwise. 34 The real issue is what was required in the circumstances. As Mason J pointed out in Kioa (at 584-5): What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting. 35 This case involves the content of procedural fairness in a particular statutory context in its application to a particular appeal decided on the papers with the acquiescence of the appellant. 36 Mr Nguyen is correct in submitting that Parker cannot be distinguished merely by pointing to its criminal context or the super-added factor that the District Court judge in that case considered himself bound to apply earlier sentencing precedents. On the other hand, it is reading too much into Parker to invoke it as authority for the proposition that the Tribunal must always signal a specific intention of reducing an assessor's award, thereby allowing the appellant the opportunity to withdraw the appeal. In the present context, the content of procedural fairness depends very much on the particular circumstances. 37 The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party's failure to make proper use of that opportunity is not the concern of this branch of the law (Allesch v Maunz (2000) 74 ALJR 1206 at [38] (Kirby J), Miah at [99] (Gaudron J)). 38 Mr Nguyen was not able to place an anchor in the ground and limit the issue in the appeal to the improvement of his position somewhere between the range of 50%-100% of the statutory cap of $7,800. Nothing in the material before us suggests that the Tribunal had a practice of confining itself in this manner. The true "matter the subject of [the] appeal" was the amount of compensation to which Mr Nguyen was in all the circumstances entitled. This conclusion that I draw as to the scope of s38(2) and (4) is reinforced by considering s30(1) as a whole. The presently critical aspects of s30(1) are the opening words ("In determining whether or not to make an award of compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following …." (emphasis added). The Tribunal had the identical task, by virtue of s38(4). 39 Nevertheless, the Tribunal was bound to deal with the particular appeal with procedural fairness. 40 Procedural fairness does not normally require the decision-maker to disclose his or her thinking processes or proposed conclusions (see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 and other authorities cited in Aronson and Dyer, Judicial Review of Administrative Action 2nd ed pp420-1). However, "it may be that an adverse conclusion of a type that could not reasonably be expected by an applicant might have to be brought to an applicant's attention, as a matter of fairness (per Doyle CJ in Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 at [87], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1). 41 I would accept the claimant's submission that the communicated decision of the Tribunal to proceed on the papers, and Mr Nguyen's acquiescence in such procedure, meant that Mr Nguyen cannot complain if the Tribunal proceeded to perform its statutory function in accordance with its terms, absent anything specific to make that exercise an unfair one in the circumstances. The proviso is necessary to recognise the qualification adverted to by Doyle CJ and stemming from the general statement of principle in Mason J's dictum in Kioa set out above. 42 In the circumstances of this case, Mr Nguyen was aggrieved by the determination of the compensation assessor on the specific issue of the application of s30(1)(d). The Tribunal was being invited to determine the appeal to it on the same evidence and material that had been placed before the assessor, with the appellant seeking a different application of the statutory calculus that included s30(1)(d). Mr Nguyen was patently seeking a more generous assessment in his appeal "against the determination". 43 Mahoney DCJ held that Mr Nguyen knew that the matter was being considered by the Tribunal on the paper. The judge concluded that: … full opportunity had been granted to the applicant to place whatever material he wanted to place before the Tribunal and not only was that full opportunity granted but it was taken (ibid). 44 This finding does not, however, foreclose the issue in the claimant's favour. The dictum of Doyle CJ quoted above reminds that the scope of an opportunity to make submissions may depend on the issues reasonably perceived as being "in the ring". Parker illustrates this: in Parker, notwithstanding the options available to a judge hearing an all grounds criminal appeal in the District Court, when it came to procedural fairness, the possibility of a new custodial sentence was not in contemplation until someone raised it (either judge or prosecutor). 45 Mr Nguyen appealed to the Tribunal as "an applicant for statutory compensation who [was] aggrieved by the determination of a compensation assessor" (s36(1)). He set out his grounds of appeal (Victims Compensation Rules, cl 15(3)). Those grounds asserted reasons why the assessor's Determination was flawed. Without looking at the document one can infer from the material in the District Court judgment that the grounds challenged the 50% reduction effected pursuant to s30(1)(d) (and possibly (e)) (See also Tr pp12-13, 31-32 of the proceedings in this Court). 46 In these particular circumstances it was not open to the Tribunal to set aside the assessor's determination and to award less without someone first adverting to the possibility that this might happen. 47 I do not read s38(4) as relevantly modifying the content of procedural fairness. And for that reason, I cannot accept the claimant's submission that the Tribunal's determination can be characterised as a determination de novo, as if that foreclosed the difficult and debatable matter on which this summons turns. There are too many indications pointing in the opposite direction ("applicant… who is aggrieved" and "appeal" in s36; cl 15(3) of the Rule; and the reference to "set aside" in s38(5); and s40, which merely "suspends" the Corporation's obligation to pay the compensation determined by the assessor pending the determination of the appeal to the Tribunal). 48 To describe the appeal to the Tribunal as involving a hearing or determination de novo is a conclusion rather than a useful analytical tool. Not everything involved in the original assessment was part of the "matter the subject of [the] appeal" which the Tribunal had to proceed to determine (albeit without a hearing) (cf s38(1),(2)). 49 The summons should be dismissed with costs. 50 HANDLEY JA: I agree with Mason P. 51 POWELL JA: I agree with Mason P. ***************

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