Victims Compensation Fund Corporation v Sarah Jane Hill

COUNSEL : C. Lonergan for the claimant SOLICITORS : David Poynten & Co for the opponent CATCHWORDS : Relief in nature of certiorari sought in relation to orders made - not an appeal from decision - first opponent, a minor, victim of an assault - claim for compensation based upon concussion and shock - sought to adduce fresh evidence on hearing of appeal - "special grounds". LEGISLATION CITED : Victims Compensation Act 1996 ss 69(4), 75A(7) of the Supreme Court Act 1970 Craig v South Australia (1995) 184 CLR 163 Hockey v Yelland (1984) 157 CLR 124 O'Brien v District Court of New South Wales (1996) 89 ACrimR 439 Senica v District Court of New South Wales VC 9907830, CA 12 November 1999 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-6 CASES CITED: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308 Atkins v National Australia Bank (1994) 34 NSWLR 155 at 160 Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 Wilson v The Prothonotary [2000] NSWCA 23 at 47 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140 Hately v The Victims Compensation Fund Corporation (1 April 1999) DECISION : 1. That the record of the proceedings before his Honour Judge Garling DCJ at the District Court, Coffs Harbour, on 12 November 1999 (75/99) be removed to this Court.; 2. That the orders made by his Honour in the said proceedings be quashed.; 3. That the proceedings be remitted to the District Court for rehearing in accordance with these reasons.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40064/00

Wednesday, 5 April, 2000 VICTIMS COMPENSATION FUND CORPORATION v Sarah Jane HILL JUDGMENT 1 THE COURT: In these proceedings the claimant seeks the following substantive orders: 1. That the record of the proceedings before His Honour Judge Garling DCJ at the District Court, Coffs Harbour, on 12 November 1999 [No 75 of 1999] be removed to this Court.

2. That the orders made by His Honour in the said proceedings be quashed.

3. A declaration that the Second Opponent had no jurisdiction to find that special circumstances existed for the purposes of s.38(3) of the Victims Compensation Act 1996 in determining that the exercise of the discretion by the Victims Compensation Tribunal miscarried. 2 Relief in the nature of certiorari is sought in relation to orders made by the learned District Court judge. These proceedings are not an appeal from his decision. It is convenient to set out, by way of background, the events which have led to the making of this application. Background 3 On 12 January 1997 the first opponent was the victim of an assault in respect of which the perpetrator was subsequently convicted and sentenced by a Magistrate. The first opponent was a minor. On 7 November 1997 she made, through her mother, an application for compensation under the Provisions of the Victims Compensation Act 1996 ("the Act"). It appears that she made a claim based upon "head - skull: concussion (lasting at least one week) and also "shock". Relevant out-of-pocket expenses were also claimed. 4 In the first instance, her claim was dealt with by an Assessor appointed under the Act. He considered the material which had been provided with the application. This consisted of the application form itself, which provided details as to the act of violence, the Court proceedings which resulted from it, the outcome of those proceedings, and the claimant's out-of-pocket expenses. In addition two medical reports were provided. One of these was from Dr Delaforce which, apparently, spoke of the first opponent as suffering from a mild chronic Post-Traumatic Stress Disorder following upon the assault. 5 The Assessor made an award in respect of the physical injuries but did not give any award in respect of the claim for "shock." It may be inferred from the material before the Court that the Assessor, despite the absence of medical evidence disputing Dr Delaforce's report, declined to accept that evidence. It may also be inferred that, in so doing, he provided some reasons which were not acceptable to the first opponent or her legal advisers. 6 The first opponent appealed against the Assessor's determination to the Victims Compensation Tribunal. It was sought to adduce fresh evidence on the hearing of the appeal. The nature of this evidence appears from the following extract from the reasons of the Tribunal, given on 1 July 1999. "The applicant's solicitors seek to submit fresh evidence in this appeal by way of an Affidavit from the victim sworn on 31 March 1999. The Affidavit canvasses matters referred to by the compensation assessor in his determination and seeks to take issue with the compensation assessor's findings or conclusions." 7 The Tribunal refused to accept this evidence. He did so upon a consideration of the provisions of s 38(3) of the Act, which provides as follows: "An appeal from a determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against." 8 The Tribunal declined to find the existence of "special grounds". The Tribunal indicated that the onus was upon the first opponent to submit, with the application, all material upon which she wished to rely. She could not be allowed to submit further evidence on the appeal "simply to overcome a lack of evidence before the Compensation Assessor when that evidence could and should have been submitted to the Compensation Assessor." He relied upon the decision of Delaney DCJ in the Appeal of Hatley (Sydney District Court 1 April 1999) where his Honour had said that "special grounds" required the furnishing by the applicant of additional material which was "out of the ordinary or not connected with a failure to act." 9 The Tribunal, however, held that, on the basis of the medical evidence previously submitted, a case for "shock" had been made out and that, to this extent, the Assessor was in error. The Tribunal accordingly varied the assessor's award by adding a small amount for shock "lasting six to thirteen weeks". Again, it would appear as a matter of inference from the materials, that had the additional evidence been admitted, a more favourable award in respect of shock could reasonably have been obtained. 10 The first opponent then appealed to the District Court against the Tribunal's decision, the appeal being lodged on 30 August 1999. The appeal was brought pursuant to s 39(1) of the Act which provides as follows: "An applicant for statutory compensation may, with the leave of the District Court, appeal to the District Court on a question of law arising in any determination of the application by the Tribunal." 11 The powers of the District Court in relation to such an appeal are set out in s 39(5) of the Act which provides that: "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." 12 Leave to bring the appeal was, apparently, granted. In the notice of appeal, the grounds of appeal were stated as follows: "The appellant says that the decision of the Tribunal was incorrect on the following grounds: 1. The Tribunal erred in law in finding that special grounds did not exist pursuant to inter alia s 38(3). 2. The Tribunal erred in law in determining that further evidence sought to be tendered "could and should have been submitted to the compensation assessor" in relation to medical tests carried out on 25 March 1999." 13 It may be observed that this notice does not specify the error or errors of law said to have been committed by the Tribunal in failing to find "special grounds". 14 The appeal was, however, heard and determined by Garling DCJ on 12 November 1999. The appeal was upheld. His Honour accepted the approach of Delaney DCJ in the Appeal of Hatley. He found the existence of grounds which were "out of the ordinary". His reasons for so doing appear from his decision. After indicating that the Assessor would have the obligation to conduct his investigation fairly, he expressed the view that, where the Assessor had before him the report of a specialist setting out an opinion, that opinion should be accepted in the absence of evidence to the contrary. He said: "I do not understand how, as a matter of fairness, an Assessor can do that unless there is evidence to do it on." 15 Later, in a passage which is important for present purposes, the learned judge said: "In this case, the Assessor makes a basic but very important error. The appellant seeks to rectify that by putting into evidence an affidavit. The affidavit is important, Whilst some of that material may have been available before, it seems to me that the appellant has reacted in a correct manner, that is, by saying "First I'll submit my case to the Assessor, it will be considered on the evidence before the Assessor, and I do not need to take these further steps." But because the Assessor rejects the evidence of a specialist, the appellant then says "I now need to go further." Under those circumstances, those very unusual circumstances, I believe that is special grounds, and I believe that the Tribunal Member should have allowed, under the circumstances, that evidence in and considered it before finally formulating his opinion." 16 Garling DCJ concluded his decision as follows: "I stress that I agree with the comments made by his Honour Judge Delaney and that this in my view is a case which falls into those special grounds. Accordingly, I allow the appeal. The matter will be remitted to the Tribunal for determination according to law and the Tribunal is to pay the appellant's costs, to be agreed or assessed." 17 It is not clear whether a formal order was taken out in the Court. There is none with the Appeal papers. 18 We come then to the present application. As already indicated it does not have the character of an appeal from the decision of Garling DCJ. The relevant questions are whether the learned judge lacked jurisdiction to make the orders that he did and/or whether error of law is demonstrated "upon the face of the record." 19 This latter question is no longer beset with the difficulties of establishing what, in the circumstances, constitutes "the record." Previously, of course, the judge's reasons could not have been considered unless they were, in some identifiable way, incorporated into his orders. However, earlier authorities such as Craig v South Australia (1995) 184 CLR 163, Hockey v Yelland (1984) 157 CLR 124 and O'Brien v District Court of New South Wales (1996) 89 ACrimR 439, are no longer in point. Section 69(4) of the Supreme Court Act 1970 now provides that in considering whether error of law appears on the face of the record, "the face of the record includes the reasons expressed by the Court or Tribunal for its ultimate determination." 20 In our view, in order to determine the questions raised by this application, regard can be had to the notice of appeal, his Honour's reasons for decision and his Honour's orders. Other material to which we have made reference cannot be taken into consideration. It has been set out merely to give some context to the decision in these proceedings. (See per Mason P, Senica v District Court of New South Wales VC 9907830, Court of Appeal, 12 November 1999). 21 On the basis of these materials, can it be said that error of law has been demonstrated? We have come to the conclusion, with respect to his Honour, that the applicant's claim is established. His Honour's role was to consider the decision of the Tribunal to determine whether the Tribunal, in the exercise of its discretion, had committed an error of law. The notice of appeal, as we have already indicated, did not state the error of law claimed to have been committed. Clearly enough, however, the error related to the Tribunal's finding that "special grounds" for the commission of the additional evidence had not been established. In our view, the questions of law for his Honour's determination could only be whether the Tribunal had misdirected himself as to what could amount, in law, to "special grounds" or whether, on the evidence before the Tribunal, there was only one finding open, namely that "special grounds" had been established. His Honour could set aside the Tribunal's decision, only if he found that he had erred in principle, in which case he would remit the matter to the Tribunal to be reconsidered in accordance with correct principles as indicated by his Honour in his reasons. It was not permissible for the judge to exercise afresh the Tribunal's discretion. . 22 His Honour's reasons satisfy us that he has, in fact, decided the matter afresh. He has found, for the reasons he has given, the existence of "special grounds". He has remitted the matter to the Tribunal, on the basis that the Tribunal is bound by that finding of fact which he has made. In our respectful view, his Honour has, in so doing, committed an error of law. 23 We do not consider that his Honour has, relevantly, exceeded his jurisdiction. He clearly had jurisdiction under the Act to hear and determine the appeal. He has, however, in determining the appeal gone beyond the limits of the authority given him under s 39 of the Act. 24 Consequently his Honour's orders must be quashed and the proceedings remitted to him to be heard afresh, so that he may determine whether the Tribunal has committed an error of law in relation to his finding that no "special grounds" had been established. 25 His Honour had regard, in his reasons, only to the decision in the Appeal of Hatley. It is appropriate that the following considerations on the topic of "special grounds" also be taken into account. 26 The mischief that led to the enactment of s38(3) was described by the Attorney General in debate in Committee on the Bill which became the Victims Compensation Act 1996. He explained why the Government opposed certain amendments (which were later rejected in the Legislative Council): The Government takes the view that the amendments would undermine an essential element of the reform package. One of the difficulties in the existing scheme is the excessive litigation to which victim compensation claims give rise. There is a problem with applicants who, being legally represented before the Victims Compensation Tribunal, run a relatively perfunctory case and then, after taking advantage of the current right to an appeal de novo to the District Court, introduce a great deal more evidence and produce more extensive material. (Parliamentary Debates, Legislative Council, 15 May 1996, p6404) 27 The first sentence of s38(3) states the general rule. The second sentence states a conditional exception, namely one that permits further evidence or material to be received in the Tribunal if: • the Tribunal grants leave; and • if the Tribunal "considers that" : "special grounds exist"; or if the evidence or material concerns matters occurring after the determination appealed against.

28 The words "considers that" emphasize that it is the Tribunal's satisfaction that special grounds exist that is determinative. This does not render the consideration immune from review for error of law, but the grounds of such review are narrowed (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-6, Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303, 308). 29 The concept of "special grounds" is a familiar one in the context of an appeal by way of rehearing. Thus, the Court of Appeal is empowered to receive further evidence upon the hearing of an appeal (s75A(7) of the Supreme Court Act 1970), but pursuant to subsection (8) of that section it may not receive further evidence after a trial on the merits "except on special grounds". In Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 Clarke JA (with whom Sheller JA and Powell JA agreed on this point) said: Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) the evidence must be credible. See also Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. 30 In Wilson v The Prothonotary [2000] NSWCA 23 Heydon JA (with whom Sheller JA agreed) said (at 47): The tests [from Akins ] are general principles, or conditions applying to the generality of cases, but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140.

31 There appears no reason why those principles should not apply to s38(3), despite the fact that the appeal to the Tribunal is not an appeal from a court to a court. 32 The test of "special grounds" applied by Judge Garling, as already indicated, was one taken from the decision of Judge Delaney in Hately v The Victims Compensation Fund Corporation (1 April 1999). According to the formulation in that decision "special grounds" "requires the applicant for compensation to show to the learned Member of the Tribunal information which was in terms of the words 'special grounds, out of the ordinary or not connected with a failure to act'". It would be wrong to treat this formula as an exhaustive statement of "special grounds".

33 Accordingly the orders of the Court are as follows:-

1. That the record of the proceedings before His Honour Judge Garling DCJ at the District Court, Coffs Harbour, on 12 November 1999 [No 75 of 1999] be removed to this Court. 2. That the orders made by His Honour in the said proceedings be quashed.

3. That the proceedings be remitted to the District Court for rehearing in accordance with these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.