SADDI v VICTIMS COMPENSATION FUND (Sic) and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHELLER and POWELL JJA 2 March 1997, 2 March 1997 [1997] NSWCA 270 Inferior Courts — District Court — Appeal to Supreme Court — From what decisions — "Judgment or order in an action" — Appeal to District Court from determination of Victims Compensation Tribunal not "an action" — No appeal to Supreme Court from Judgment or order of District Court on such an appeal District Court Act 1973 s4, s44, s127 Grzybowicz v Smiljanic [1980] 1 NSWLR 627 Prerogative Writs - Certiorari - Grounds for - Error on face of record - District Court - Dismissal of appeal from Victims Compensation Tribunal Director-General of Attorney-General's Department v District Court of New South Wales (1993) 32 NSWLR 409 Torrealba v District Court of New South Wales (1996) 40 NSWLR 327 Powell JA By Summons filed 22 October 1997 the Claimant, Mr Saddi, who appears in person today, seeks to have this Court "review" the judgment of Patten DCJ delivered 8 November 1996 when his Honour dealt with an appeal which had been lodged by the Claimant in respect of the dismissal by the Victims Compensation Tribunal ("the Tribunal") of applications made by him for compensation in respect of some seven incidents which he claimed involved criminal assaults upon him by various people. There is no right of appeal from the District Court to this Court in respect of a judgment given by a judge of the District Court on such an application, the right of appeal given by s127 of the District Court Act 1973 being limited to judgments or orders "in an action" and a proceeding of the type with which Patten DCJ was dealing is not "an action" (see Grzybowicz v Smiljanic [1980] 1 NSWLR 627). The only remedy available to a person in the position of the Claimant who seeks to challenge an order such as was made by Patten DCJ is an application for judicial review seeking an order which is prerogative in nature (see Director General of the Attorney General's Department v District Court of New South Wales & Stark (1993) 32 NSWLR 409, 411 per Mahoney JA (as he then was) Torrealba v District Court of New South Wales (1996) 40 NSWLR 327). The seven claims for compensation which was the subject of the Claimant's appeal to the District Court were dealt with by two differing members of the Victims Compensation Tribunal. The first group - five in number - relating to incidents alleged to have occurred in the period 1982 to 1993 were dealt with by Butler LCM. The application in respect of those five incidents having been filed on 18 April 1994 was dismissed by Butler LCM on 21 April 1995. The bases upon which Butler LCM dismissed those claims were, first, that the Tribunal having made the usual enquiries was unable to find any record of any complaint having been made to a member of the Police Force; secondly, that there was no evidence supporting the Claimant's claim as to the alleged assaults; and, thirdly, that there was no medical evidence which would tend to support the claims; those all being matters to which the Tribunal was required to have regard 2 UNREPORTED JUDGMENTS when dealing with such a claim as the Claimant had lodged (see Victims Compensation Act 1987 ("the Act") s20). The other two claims, which were dealt with by Gabb LCM, related to assaults alleged to have been committed in March and May 1993. The application in respect of those alleged assaults was lodged on 28 October 1994 and was dismissed by Mr Gabb LCM on 10 May 1995. The grounds for dismissal recorded in Gabb LCM's reasons were, first, that there was no record of any report; secondly, that there was no evidence of any offence such as was alleged by the Claimant; and thirdly, that there was no relevant evidence of any injury. After the claims had been dismissed the Claimant, on 29 May 1995, lodged a Notice of Appeal to the District Court pursuant to the provisions of s29 of the Act. It would, however, appear that, when the matter was listed in August 1995, for some purpose the Claimant did not appear and Garling DCJ, before whom the matter then came, struck the matters out of the list. A further Notice of Appeal was then filed on 7 September 1995 - well out of time - and it was pursuant to that Notice of Appeal that the makers came before Patten DCJ in November 1986. It is to be observed that, in accordance with the then usual practice the Tribunal files were all forwarded to the District Court for use on the appeal. The then applicable Rules of Court provided that any material forming part of the Tribunal record was, in the absence of objection, admissible, no further evidence being admissible unless, in the case of lay witnesses, given, in the first instance, by Affidavit or, in the case of medical witnesses, given by way of medical report, which Affidavits or reports were to be served within the times prescribed. When the matter came before Patten DCJ, the Claimant appeared in person, and Mr Scragg appeared for the Victims Compensation Fund Corporation, which is the Respondent to any such appeal. It would appear from the Transcript Record of proceedings which was made available to us, that Mr Scragg, on behalf of the Respondent, placed no obstacle in the path of the Claimant explaining his case to the learned judge and tendering such evidence as he thought to be relevant. Among the evidence which the Claimant then tendered was a statement which he made to a police officer at the Merrylands Police Station on 8 January 1996 - that is quite some months after the applications had been dismissed by Mr Butler and Mr Gabb - and in respect of some of the instances complained of, many years after that time. As requested by the Claimant at the time, Patten DCJ adjourned for a time so that he might read the whole of the material that had been forwarded by the Tribunal and the additional material which the Claimant had sought to place before him. Having done so, his Honour then delivered a Judgment in which, having recited, but briefly, the facts which gave rise to the appeal with which he was called upon to deal, he concluded: " In effect the Tribunal refused the applications because it was not satisfied that the acts of violence compensable under the Act had been established. In reaching this conclusion the Tribunal seems to have had regard to the appellant's medical history documented before it and more significantly to the fact that there seems to be no objective support whatsoever for any of the alleged acts. That is, URJ SADDI v VICTIMS COMPENSATION FUND (Sic) and ANOR (Mason P) 3 although the appellant claims that some or all of them were reported to police officers, there is no police record of any such report, nor does it appear that anyone was ever charged. Furthermore, with the possible exception of a report of Dr Sauer (7?) in relation to one of the alleged acts of violence committed on 5 February 1987, there appears to be no medical support whatsoever for the appellant's claims. Having looked at the fifes and the other material tendered in evidence here today, I have regrettably reached the same decision as the Tribunal in respect of all of the matters. That is I am not satisfied that the appellant has affirmatively proved that he was subjected to acts of violence as claimed The only remedy available to the Claimant being a remedy by way of judicial review, the onus lies upon the Claimant to demonstrate, either, that Patten DCJ acted beyond his jurisdiction, or, alternatively, had been guilty of error appearing on the face of the record. In my view, the Claimant has failed to demonstrate any such ground for judicial review, it following the proceedings ought to be dismissed with costs. Mason P IJ agree. Sheller JA I also agree. Mason P The order of the Court is the proceedings are dismissed with costs. NOTE: As from 2 April 1997 when the Victims Compensation Act 1987 was repealed, appeals to the District Court in respect of determinations of the Tribunal lie only in respect of a question of law, and only by leave granted by the District Court (Victims Compensation Act 1996 s39). Proceedings dismissed with costs. The claimant appeared in person Counsel for the opponent (Victims Compensation Fund Corporation): G L J Scragg Solicitors for the opponent (Victims Compensation Fund Corporation): Solicitor for Victims Compensation Tribunal Counsel for the opponent (Patten DCJ): Submitting Solicitors for the opponent (Patten DCJ): Submitting