KEEN v VICTIMS COMPENSATION FUND CORPORATION [1997] NSWCA 172

KEEN v VICTIMS COMPENSATION FUND CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA, BROWNIE and GROVE AJJA 30 April 1997

[1997] NSWCA 172

Grove AJA Before the Court is a claim for prerogative relief arising out of a judgment of Twigg DCJ exercising jurisdiction in relation to the Victims Compensation Act 1987.

The claimant had originally been refused compensation by the Tribunal exercising its power pursuant to s39 of the Victims Compensation Act. That is a power to dismiss proceedings for any reason which leads it to the conclusion that the proceedings should not be entertained. The particular circumstance was that certain requisitions had not been answered. An appeal was lodged and came before Twigg DCJ.

The ground upon which the preceding application was refused ceased to be relevant and, as his Honour correctly recognized, he embarked upon a hearing de novo. In accordance with the procedures for hearing of such appeals the file of the Victims Compensation Tribunal was before the District Court. Ultimately his Honour found that he was not satisfied that injury to the claimant had occurred as a result of an act of violence. His final observation was "all I can say is I'm not satisfied on the whole of the evidence on the required standard that there has been an act of violence."

It was never in issue that the claimant's skin had been penetrated by a sharp instrument such as a knife. The context of his Honour's remarks made it abundantly clear that in his finding that he was unsatisfied that there had been an act of violence, he was incorporating the definition in s3 of the Victims Compensation Act which requires that an injury to a claimant be sustained in circumstances so that it can be said to have apparently occurred in the course of the commission of an offence.