PITTAS v DISTRICT COURT OF NEW SOUTH WALES & ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and BEAZLEY JJA, and DUNFORD AJA 19 February 1997, 25 March 1997 [1997] NSWCA 248 Judicial review — s20(1) Victims Compensation Act, 1988. FACTS The claimant applied for relief by way of certiorari from a decision of Downes DCJ in respect of the claimant's application under the Victims Compensation Act, 1988. The claimant alleged procedural unfairness, jurisdictional error and error on the face of the record. HELD 1) The claimant knew what case he had to make out and meet and in these circumstances, there was no requirement for the applicant to be cross-examined, and it follows that no procedural unfairness could have occurred. 2) The application of the principle of jurisdictional error to the lack of regard by his Honour for s20(1) of the Victims Compensation Act, 1988 cannot arise until the claimant is found a victim of violence within this Act. His Honour found that the claimant was not a victim of violence, which finding was open to his Honour and cannot be disturbed in this case. 3) The record for the purpose of these proceedings consists of the notice of appeal and the ultimate Court order, upon neither is any error apparent. ORDERS Summons dismissed with costs. Meagher JA This is an application for relief in the nature of certiorari in respect of a decision by Downs DCJ dealing with an application by Mr Pittas under the Victims Compensation Act. On 31 October 1981 Mr Pittas, being then a prisoner detained at Maitland Gaol. was involved in a brawl with other inmates. Nearly five years later, on 18 September 1996, he swore a statutory declaration about the incident. His version of what happened is quite clear. He alleges that at about 7.30am on that day he was standing near the entrance to his cell, No 2, which he occupied with two other prisoners, Messrs Tarlington and Kolovos. He was preparing coffee, when some person threw boiling water over him from behind. When he turned to see what happened, he was struck across the face by someone wielding a substantial piece of timber. He was rendered unconscious. He did not know the identity of his assailant. On 29 October 1987 he made a claim for criminal injuries compensation, which in due course was prosecuted under the Victims Compensation Act 1988 (an Act which has retrospective effect). His application was heard by the second respondent, the Victims Compensation Tribunal. The Tribunal dismissed the application. In particular, the Tribunal was impressed by the evidence (provided by what seems to be no more than a written statement) of Prison Officer GC Robertson, who witnessed the brawl and gave an account of it differing widely from that of Mr Pittas. In particular, according to him, Mr Pittas was the person who threw the boiling water, not the unhappy recipient of it. The Tribunal also 2 UNREPORTED JUDGMENTS took into account that Mr Pittas had taken his time in making a complaint, that he had never charged anyone, and that there was no corroborative evidence called from any of the numerous other prisoners who were present at the time. The Tribunal found that Mr Pittas had not proved that he was a victim of violence within the meaning of the Act. Learned counsel for Mr Pittas made many criticisms of the Tribunal's decision, both in the substance of its reasoning and in the manner of its procedure. To my mind, the most damaging criticism concerned the non-disclosure to Mr Pittas of the evidence against him. The prison authorities were supposed, as one would expect, to let Mr Pittas know exactly what evidence was being adduced in opposition to his application. To some extent, this was done. For example, his representatives had been supplied with the statement of PO Robertson. However, there was an omission to supply him with copies of certain other evidence: the Tribunal had regard, for example, to three or four statements by other prison officers. (If it were of any relevance, which it is not, I would point out that each statement was inconsistent with both Mr Pittas's account and PO Robertson's and also with every other statement). The omission to provide Mr Pittas with copies of these documents was purely accidental, and the contrary was not suggested by counsel for Mr Pittas. However, none of this matters. That is because Mr Pittas prosecuted an appeal to the District Court. S29 of the Act allows for such an appeal. On the appeal the District Court exercises an original jurisdiction, involving a hearing de novo: see Goldsmith v Victims Compensation Tribunal (1993) 30 NSWLR 410. By the time the appeal came on for hearing, copies of all documents, both those previously produced and those not previously produced, were in the hands of Mr Pittas or his advisers. Thus the considerable quantity of paper and hours of argument about the deficiencies of the Tribunal's procedures turn out to have less in them than meets the eye. When the appeal came on for hearing, his Honour dismissed the appeal. His Honour agreed with the Tribunal that Mr Pittas was not a victim of violence. Learned counsel for Mr Pittas sought relief on three main grounds: first, procedural unfairness; secondly, jurisdictional error; and thirdly, error on the face of the record. No reasonable case had been made out to support any of these grounds. As to lack of procedural fairness, there is no reason to suppose that such a defect occurred in the District Court (as opposed to the Tribunal). Indeed, this ground ultimately shrank into a complaint that the District Court did not require Mr Pittas to be cross-examined on his statement. There are two answers to this. One is that he had informed the Court that he would not be available. The other is that there is no possible reason why the Court should have required him to be cross-examined. He knew what case he had made out. and he knew what case he had to meet. If he wished to supplement his case, nothing stopped him from doing so. The same argument was argued as a submission that his Honour's decision was "manifestly unreasonable" in a sense in which that term is used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. Clearly there was much evidence in favour of the decision at which his Honour arrived. As to jurisdictional error, it was alleged that his Honour was required by statute to have regard to the various matters set out in s20(1) of the Act. That sub-section reads as follows: URJ PITTAS v DISTRICT COURT OF NEW SOUTH WALES & ANOR (Dunford AJA) 3 "20. (1) In determining whether or not to make an award of compensation to or in relation to a victim of an act of violence and in determining the amount of compensation to award, the Tribunal shall have regard to: "(a) any behaviour, condition, attitude or disposition of the victim that directly or indirectly contributed to the injury or death sustained by the victim; "(b) whether the act of violence was reported to a member of the police force within a reasonable time; "(c) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed; "(d) whether the 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, and "(e) such other matter as the Tribunal considers relevant." His Honour did not have regard to these matters; and rightly so, because they only arise once one has decided that the applicant is a victim of violence. His Honour held that he was not a victim of violence. As far as error on the face of the record is concerned, I am of the view that the decision of Craig v South Australia (1995) 184 CLR 163 requires us to hold that "the record" in the present case consists of the notice of appeal and the ultimate Court order. Restricting argument to these two bland documents, there is no error apparent. The summons should be dismissed with costs. Beazley JA I agree with Meagher JA. Dunford AJA I agree with Meagher JA. Summons dismissed with costs. Counsel for the claimant: S Winters Solicitors for the claimant: TA Murphy Counsel for the first opponent: submitting Counsel for the second opponent: D Buchanan Solicitors for the first/second opponent: Crown Solicitor