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. The claim before this Court is brought on two bases, first that his Honour made a jurisdictional error in posing for himself an incorrect question for the determination of the issues before him and second, that there has been a denial of natural justice. The first contention is said to arise from observations in his Honour's reasons for judgment immediately preceding those which I have recited. His Honour said "my difficulty is I cannot be satisfied on the standard required that he was the victim of an offence, all I can say with some certainty is that he was injured and apparently by stabbing, I cannot say how the incident occurred, I cannot say in any way what the cause of it was." I am unpersuaded that those remarks show that his Honour has failed to ask himself the correct question or to apply a proper test. The submissions on behalf of the claimant centred upon the use of the word "apparently" in the legislation but that word would seem to me to be placed there in order to relieve a claimant from the obligation of proving the guilt of a particular offender. There is nothing in Twigg DCJ's remarks to suggest that he misapplied any requirement that he have regard to the terms of the statute. As is pointed out in written submissions on behalf of the opponent corporation, at the conclusion of the evidence his 2 UNREPORTED JUDGMENTS Honour was unable to exclude a variety of possibilities of circumstances in which the claimant might have been stabbed but which were not apparently associated with the commission of an offence. Accident and self defence are not fanciful in the circumstances described. The assertion of jurisdictional error is not made out. The second proposition of denial of natural justice is premised upon the assertion that the evidence of the claimant was uncontradicted and that therefore there was an obligation on the part of his Honour to accept that the act of violence had occurred apparently in connection with the commission of an offence. In that regard our attention was drawn to remarks of Powell JA in Torrealba v District Court of New South Wales, CA unreported 6 September 1996. That was a case arising under the Victims Compensation Act. The particular remarks were qualified by reference to appropriate circumstances and insofar as Powell JA said that evidence in chief not incredible, not contradicted and not cross-examined should be accepted, I do not understand him to have laid down some rule of law that such evidence must be acted upon. In fact the trial judge in this case indicated to counsel that he had specified difficulties as a result of which the claimant gave oral evidence and that evidence seemed only further to confuse the factual issues. Eventually his Honour observed "I really have severe doubts about this, do you want an adjournment to get further evidence, or what do you want to do?" It appears to me that his Honour's conduct of the trial was considerably distanced from denying the claimant natural justice, in fact he gave him every opportunity to put any material before the Court in order to enable a favourable decision to be reached. I regard the second argument as unsustainable, it follows therefore the summons should be dismissed. Handley JA I agree. Brownie AJA I also agree. HANDLEY JA: The summons should be dismissed with costs. I realise it is probably academic but is there any argument about that Ms Winters? WINTERS: No your Honour. HANDLEY JA: Just before the Court adjourns I was curious Ms Norton about the orders that the judge made about costs is that the normal in the District Court on an unsuccessful appeal from the Tribunal. NORTON: It happens from time to time yes, that even if an appeal is dismissed costs are ordered. HANDLEY JA: In favour of the appellant? NORTON: In favour of the appellant and in the tribunal itself if an application is unsuccessful, cost are often ordered. GROVE AJA: There was a hundred and eighty odd dollars there which I must say provoked my curiosity. HANDLEY JA: Two thousand dollars in the District court. NORTON: Two thousand, six hundred is the scale