New South Wales District Court CITATION: "S" v Victims Compensation Fund Corporation [2009] NSWDC 109 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26 March 2009 JUDGMENT DATE: 30 June 2009 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Leave to appeal is granted; DECISION: 2. The orders made by the Victims Compensation Tribunal on 27 August 2008 in Tribunal proceedings 134954B are set aside; 3. The proceedings are remitted to the Victims Compensation Tribunal to be dealt with according to law; 4. The respondent is ordered to pay the applicant's costs. CATCHWORDS: ADMINISTRATIVE LAW – review of decision of Victims Compensation Tribunal that considered the appropriateness of the award of a claims assessor – denial of procedural fairness – Tribunal determined claim on a consideration of materials that included a disputed police facts sheet that was not disclosed to applicant until after determination by the Tribunal – inherent deficiency in Tribunal's procedures – applicant a minor – victim of multiple incidents of aggravated domestic violence including beatings, whippings, category 3 sexual assault, burns caused by scalding with boiling hot water – incorrect findings of fact amounting to question of law – illogical reasoning – INTERPRETATION – construction of s 5(3) of Victims Support and Rehabilitation Act 1996 – WORDS AND PHRASES – "at approximately the same time" LEGISLATION CITED: Victims Compensation Act 1987 Victims Support and Rehabilitation Act 1996 Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Bridgeman v Victims Compensation Fund Corporation [2008] NSWDC 153 Director-General of the Attorney-General's Department v District Court of New South Wales and Stark [1993] 32 NSWLR 409 Hope v Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 McDermott v Owners of SS Tintoretto [1911] AC 35 CASES CITED: MJW v Victims Compensation Fund Corporation NSWDC, unreported,18 November 1997 Muilwyk v Victims Compensation Fund [2005] NSWSC 153 Victims Compensation Fund v Brown [2003] HCA 54; (2003) 201 ALR 260 Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668 Victims Compensation Fund Corporation v Nguyuen & Anor [2001] NSWCA 264; (2001) 52 NSWLR 213 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 Hansard, NSW Legislative Council 15 May 1996 TEXTS CITED: The Concise Oxford Dictionary of Current English, Eighth Edition, 1990 The Macquarie Dictionary, Revised Edition, 1985 Webster's Dictionary, 1976 PARTIES: "S" (Applicant) Victims Compensation Fund Corporation (Defendant) FILE NUMBER(S): 5697 of 2008 COUNSEL: Ms G Mahony (Applicant) Mr J McAteer (Solicitor for the Respondent) SOLICITORS: IV Knight (Applicant) Mr J McAteer (Respondent) JUDGMENT Nature of the case 1. The applicant is a minor aged 7 years. She is a ward of the State. These proceedings have been brought by her Tutor, a delegate of the Minister for Community Services. By summons the applicant seeks leave to appeal in order to obtain a review of the decision of the Victims Compensation Tribunal. 2. Between the ages of 2 and 6 years the applicant was the innocent victim of numerous instances of domestic violence, psychological abuse, assaults occasioning actual and grievous bodily harm as well as sexual assaults which have included sexual intercourse. The sexual assaults were perpetrated by the applicant's stepfather. The other assaults, domestic violence and abuses were perpetrated variously by both the applicant's natural mother and the stepfather. 3. The principal ground for relief claimed is that the applicant was denied procedural fairness in the process of determining an appeal from a claims assessor regarding the applicant's claims for compensation as a victim of crime. The claim is that such denial of procedural fairness by the Tribunal influenced the interpretation of the statutory provision by which compensation was assessed and therefore adversely affected the outcome of the applicant's appeal to the Tribunal. Non-publication order 4. The nature of the facts giving rise to the proceedings requires restriction in the reporting of the case. I have formed the view that the proper administration of justice requires that I make an order pursuant to s 72 of the Civil Procedure Act 2005 prohibiting the publication or disclosure of any information which would identify or tend to identify the applicant. I therefore make an order to that effect. For the purpose of these proceedings I allocate to the applicant the litigation pseudonym "S". Orders sought 5. The summons seeks the following orders: (a) That leave be granted to appeal from the whole of the decision below; (b) That the appeal be allowed; (c) The determination of the Tribunal in proceedings in the Tribunal numbered 134954B be set aside and the matter be remitted to the Victims Compensation Tribunal to be determined in accordance with law; (d) The respondent pay the applicant's costs. 6. The jurisdiction to hear the summons is conferred by s 39(1) of the Victims Support and Rehabilitation Act 1996. An appeal to the District Court pursuant to that section is by leave and is limited to questions of law. Appeal grounds 7. The grounds relied upon in support of the orders sought are: (a) The Tribunal erred in that the applicant was denied procedural fairness; (b) The Tribunal erred in its construction of s 5 (3) of the Victims Support and Rehabilitation Act 1996; (c) The Tribunal made an incorrect finding of fact when that finding was based on an absence of evidence; (d) Further or in the alternative to (c), the Tribunal erred in that its reasoning was illogical in that it was based on an absence of evidence and not based on facts or inferences of fact supported by logical grounds. Facts The applicant 8. The applicant was born in 2002. She was made a ward of the State on 7 April 2006 by order of the Children's Court pursuant to s 79 of the Children and Young Person (Care and Protection) Act 1998 by which parental care and responsibility of the applicant was allocated to the Minister. This occurred because, whilst she was in the care of her natural mother and her natural mother's partner, her stepfather, she became the innocent victim of a number of instances of aggravated parental abuse, assaults, batteries, sexual assaults and egregious domestic violence. The abuses 9. The details of the abuses inflicted on the applicant are set out in the material within the file of the Victims Compensation Tribunal. These abuses included Category 3 sexual assault, repeated beatings, whippings with an electrical appliance flex cord, being forced to eat dog faeces and a deliberate subjection of the applicant to scalding with boiling hot water in the shower to discipline her following urinary incontinence. It is not necessary to recount the entire detail of the chronology of these appalling events. Nor is it relevant to here recount the manner in which the perpetrators of this abuse have been dealt with by the criminal justice system. The effects of the abuse 10. The repeated physical maltreatment of the applicant has resulted in permanent and disfiguring scarring. In addition to the scarring, in the aftermath of this abuse the applicant is likely to continue to experience psychological difficulties. These matters clearly call for compensation to be assessed under the statutory scheme. Hopefully the burden of these difficulties for the applicant will lessen over time with the provision of appropriate care, treatment and support. Notice of the abuse and the present circumstances of the applicant 11. The circumstances of the abuse came to notice when the applicant was eventually admitted to a hospital on 22 June 2005. Her mother took her to the hospital for the treatment of infected wounds caused by earlier beatings and whipping with electrical flex cord. The Department of Community Services intervened after it was notified of the applicant's condition following the suspicions of vigilant hospital staff. After receiving medical treatment the applicant was discharged from hospital on 30 June 2005. She was then taken into foster care. 12. The applicant is currently being well cared for and appropriately supported in her foster care situation. From time to time, as she grows older, she is likely to have continuing treatment needs associated with the earlier maltreatment she has received at the hands of those who were otherwise responsible for ensuring her nurture, care and wellbeing and who have so miserably failed her in that regard. Evidence tendered on the application for review 13. The evidence in the proceedings comprised first, the affidavit of Mr Christopher Butler, the solicitor for the applicant, sworn on 26 March 2009, secondly, the affidavit of Mr John McAteer, the Registrar of the Tribunal, sworn on 27 February 2009 and thirdly, the relevant file kept by the Victims Compensation Tribunal. Mr Butler's affidavit attached the relevant applications for compensation, the findings of both the claims assessor and the Tribunal on appeal from the claims assessor as well as the correspondence with the Tribunal that gave rise to the appeal. Procedural chronology of events relating to the appeal 14. The evidence was not controversial and disclosed the following procedural chronology of events: (a) Variously, on 21 February 2007, 28 February 2007 and 14 August 2007 applications for compensation were lodged on the applicant's behalf pursuant to the Victims Support and Rehabilitation Act 1996. These claims were allocated the claims numbers as follows: (i) 130490B – the sexual assault claim. (ii) 131477B – the burns claim. This claim was for multiple third degree burns to the head, torso and upper limbs which resulted in significant scarring. (iii) 134951B – a domestic violence claim not explored in the evidence and not relevant to this appeal. (iv) 134954B – a domestic violence claim which resulted in facial injuries, including to the right eye which was swollen shut by bruising, welts, scabs, bruises and scarring to the front and back torso and the back of the legs. This scarring was due to repeated beatings and whippings with electrical flex cord. (b) On 3 April 2008 claims Assessor J Wong assessed the applications for compensation as follows: (i) 130490B – $40,000 for sexual assault; (ii) 131477B – $27,300 for burns and resultant disfigurement; (iii) 134951B – not explored in the evidence and not relevant to this appeal; (iv) 134954B – no award was made. The claim was dismissed because the series of acts or events giving rise to this claim was considered, together, to constitute a single act of violence that was also the subject matter of claim number 131477B and which was already assessed. (c) In making these determinations Assessor Wong took into account matters contained in a police facts sheet that had been acquired by a claims officer who had incorporated the police facts sheet into the material provided to the assessor. The assessor's reasons included the following statement: "Having had regard to the facts of this matter, and despite the fact that there is variation in the specific nature of the separate incidents for which compensation is sought, the acts still come under the umbrella of domestic violence assaults, all of which were perpetrated by the same offender over a single (protracted) period of time, and thus, to my mind, are related to each other, forming a single act of violence (in terms of section 5(4)) for which compensation may be awarded." (d) On 9 July 2008 an appeal was lodged in respect of the assessments made in respect of claim numbered 131477B which resulted in the dismissal of that claim. That appeal raised the following grounds:- (i) the compensation assessor erred in finding that the acts of violence grounding the application were related to the act of violence which was the basis for application numbered 131477B; and (ii) The compensation assessor erred in dismissing the claim for compensation in application numbered 134954B. (e) On 27 August 2008 Tribunal Magistrate TG Cleary dismissed the appeal from the decision of the claims assessor. In arriving at his decision the Tribunal Magistrate determined that the criminal acts carried out on the applicant comprised, within the meaning of the statute, two incidents. I will refer to the reasoning for that determination shortly when outlining the Tribunal's reasoning. (f) On 2 September 2008 the Tribunal advised the applicant's solicitor of the result of the appeal process and enclosed a copy of the reasons for the decision of the Tribunal. When the solicitor for the applicant examined those reasons it was apparent that the reasons referred to, and had taken into account, a narrative of facts contained in a police facts sheet which the applicant's representatives had not previously been shown. The circumstances in which this had occurred were that it was the disclosed practice of the Tribunal to routinely seek out such facts sheets from the police. That practice did not however extend to disclosing to an applicant or to an appellant, material of this kind which had been requested and received from the police; (g) On 15 September 2008 the applicant's solicitor wrote to the Registrar of the Tribunal seeking a copy of the police facts sheet so that the contents could be considered on behalf of the applicant; (h) On 2 October 2008 the Tribunal provided the applicant's solicitor with a copy of the police facts sheet. A review of the facts sheet disclosed that it simply related to bail issues concerning the applicant's stepfather and did not constitute a comprehensive police factual report on the subject matter or the detail of the crimes committed against the person of the applicant; (i) On 20 January 2009 a summons was filed in this court seeking judicial review of the determination of the appeals by the Victims Compensation Tribunal. 15. The appeal was heard in this court on 26 March 2009. 16. The respondent did not file a submitting appearance. It took an adversarial role in the proceedings and sought to uphold the decision of the Tribunal. The Tribunal's reasons 17. It is relevant to set out relevant extracts of the Tribunal's reasons for dismissing the applicant's appeal. In doing so I have allocated the pseudonym "X" to the person named as the perpetrator in those reasons: "… In a police fact sheet, it is reported that on the 21 June 2005 the Department of Community Services received a call from Wollongong Hospital in relation to the Appellant presenting to the emergency department. It is reported that the Appellant was admitted with multiple injuries including head injuries, swollen eyes, numerous deep burns and partial thickness burns on her right shoulder, right upper arm and right chest and multiple linear bruising over her back, buttocks and legs. The bruising was consistent with being sustained after being struck with an object. The Appellant explained that ["X"- her stepfather] had put hot water on her in the shower and that when she turned the shower off she fell, hitting her head. As for the other injuries, the Appellant's mother blamed those injuries on her cousins, who played with the Appellant on the 17 June 2005, when she was whipped with sticks, whilst on the ground. Her mother did not seek medical attention. In relation to the swollen eye, her mother stated that she returned home on the 20 June 2005, with her eye swollen, and thought that it may have been an allergic reaction. When questioned, the Appellant's mother acknowledged that the red marks on the Appellant's back were sustained when she and ["X"- her stepfather] hit her with a kettle cord after the Appellant had urinated in her pants. It was also reported that in relation to the whip marks on the back of her body, there was some bruising and some were fresh. There was also redness to her right neck area and behind her right ear and down towards her collarbone. There were injuries to her back and to the back of her legs. She had whip linear contusions and abrasions to her back, buttocks and legs, and a large bruise on the upper aspect of her left thigh and left side of her pubic area. … I am satisfied that the Appellant had been subjected to two incidents, during which she was assaulted. It would seem that the first incident, which is the subject of this appeal, occurred shortly prior to the 22 June 2005, during which the Appellant was assaulted, by her mother and her mother's partner, who used a kettle cord and other forceful conduct, causing actual bodily harm to her; and the second incident occurred on the 22 June 2005, when her mother's partner placed her under a hot shower, causing actual bodily harm to her from the boiling water and as a consequence of striking her head when she feel in the shower. I am satisfied that the evidence is sufficient to establish, on the balance of probabilities that the Appellant was the victim of an 'act of violence' in terms of Section 5(1) of the Act, in that shortly prior to the 22 June 2005, at Berkeley, she had been assaulted by her mother and step-father, who had whipped her and subjected her to forceful conduct, and as a result she suffered actual bodily harm. … On the issue of whether, in terms of Section 5(3) of the Act, the occasions on which the Appellant was subjected to violent conduct involved related acts and amounted to a series of related acts, there were at least two occasions on which the Appellant was subjected to violence. On the first occasion both her mother and step-father resorted to violence, including whipping. On the second occasion, which occurred shortly after, her step-father violently assaulted her by placing her under a hot shower. It is evident that there was a short period of time (a couple of days) between each of the violent incidents. It would seem that both the Appellant's mother and her step-father resorted to this extreme violence because of the fact that the Appellant urinated in her pants. In each instance the acts of both the Appellant's mother and her step-father involved a severe physical assault on the Appellant. It is also evident that the series of assaults on the Appellant arose as a result of a global incident, arising as a consequence of her urinating in her pants. It is my opinion, in terms of Section 5(3) of the Act, that both of the acts were committed at approximately the same time, albeit within a couple of days, and for the reasons that I have referred to in my previous paragraph, were for those reasons related to each other, and formed a series of related acts. For the purposes of Section 5(4) of the Act, a series of related acts, whether committed by one or more persons, constituted a single act of violence. In application 131477 the Appellant received an award of statutory compensation for compensable injuries arising out of the 'act of violence' that occurred on about the 21 June 2005. The present appeal relates to a series of related acts, which occurred at approximately the same time, and for the reasons given, constituted a single act of violence. There is no entitlement for a further award of statutory compensation, where an ward has been made for the same 'act of violence'. The appeal will be dismissed and the assessor's determination will be affirmed." Applicable legal principles 18. There is no controversy that the nature of the assessment and appeal process requires that the parties be afforded procedural fairness in the operation of the statutory processes employed to determine the applicant's entitlement to compensation as a victim of crimes : Victims Compensation Fund Corporation v Nguyen & Anor [2001] NSW CA 264 per Mason P at [32]; (2001) 52 NSWLR 213. 19. The Victims Support and Rehabilitation Act 1996 provides the relevant legislative framework for the assessment of compensation for victims of crimes. 20. In the operation of this scheme and its predecessor the well settled view is that each claim for compensation is to be assessed on the basis of its own intrinsic facts : MJW v Victims Compensation Fund Corporation, NSWDC, unreported, 18 November 1997. 21. When considering an appeal under the legislative scheme, although the Tribunal is not bound by the laws of evidence that bind a court, nevertheless the rules of fairness require that conclusions reached by the Tribunal be based on some factual evidence to justify the conclusions reached : Muilwyk v Victims Compensation Fund [2005] NSWDC 153 per Howie J at [45]. 22. In determining the application of the statutory provisions of the scheme to the facts of a particular case a beneficial or liberal interpretation of the statute is required because of its compensatory or remedial nature. This requires that the utmost relief be afforded as allowed by the fair meaning of the language employed in the statute : Director-General of the Attorney General's Department v District Court of NSW and Stark [1993] 32 NSWLR 409 per Sheller JA at 421 [F] even though the clear aim of the legislation is to limit awards of compensation : Second Reading Speech, Hansard, NSW Legislative Council, 15 May 1996. Issues for determination 23. The following issues arise for determination: (a) Should leave to appeal be granted – The preliminary ground; (b) When the Tribunal gave consideration to the content of the police fact sheet for the purpose of determining the applicant's rights and entitlements was the applicant denied procedural fairness – Ground 1; (c) The proper construction of s 5(3) of the Victims Support and Rehabilitation Act 1996 – Ground 2; (d) Did the Tribunal arrive at an incorrect finding of fact – Ground 3; (e) Did the Tribunal adopt an illogical reasoning process – Ground 4. Consideration of the grounds of appeal Preliminary Ground – Should leave to appeal be granted 24. In my view the summons raises questions of law. The first such question is whether the applicant was denied procedural fairness. The second question is whether, if denial of procedural fairness is established, did such denial in this instance influence the construction adopted in relation to s 5(3) of the Victims Support and Rehabilitation Act 1996. Such construction obviously affects the applicant's rights as an individual to compensation under the legislative scheme provided by the Victims Support and Rehabilitation Act 1996. 25. In my view these are threshold questions of law that have been identified by the applicant. I am satisfied that the evidence calls for a consideration of these questions of law and I therefore grant the applicant leave to appeal. Ground 1 – Procedural fairness 26. There is no dispute that following the lodgement of the application for compensation, the claims staff responsible for the processing of the claim undertook an investigation which resulted in a police facts sheet being obtained and placed before the claims assessor. The focus of that police facts sheet concerned an apparent breach by "X", the applicant's stepfather, of certain bail conditions to which he was subject. Although the facts sheet contained some factual detail, it is apparent from the face of the document in question that it did not constitute a full and comprehensive police factual report concerning the details of the crimes that incorporated the abuses and maltreatment inflicted on the applicant by each of the perpetrators. 27. There is no dispute that the claims assessor was entitled to have regard to the content of the police facts sheet that was included within the claims file. Instead, the dispute centres around the fact that the claims assessor exercised her discretion to have regard to and rely upon the police facts sheet in making her assessment of the claims for compensation without first informing the applicant that such material had been obtained and would be considered. 28. As a consequence, the claims assessor proceeded to make her assessment without the representatives of the applicant being afforded an opportunity to consider the material that was before the assessor. As a result, the applicant's solicitor was denied the opportunity of considering the relevance and accuracy of the content of the police facts sheet to the claim itself. The applicant was thereby also denied the opportunity of making appropriate submissions concerning the factual content of such material. This included the denial of an opportunity to marshal and present further evidence to address and expand upon the simplistic brevity of the content of the police facts sheet which was clearly brought into existence for the purpose of bail issues and not for the purposes of detailing the criminal behaviour of the perpetrator that called for compensation. 29. In my view these circumstances have operated to the significant detriment of the rights of the applicant as the assessor was thereby misled into receiving an overly simplistic view of the breadth and character of the actions of the perpetrators. In my view this has led the assessor to apply a particularly narrow and in my view non-beneficial construction of s 5(3) of the Act. In turn, this has operated to the detriment of the applicant's rights and entitlements to compensation as a victim of the multiple crimes that have been perpetrated against her. I will return to the interpretation question shortly. 30. Initially, when the assessor's award was made known to the applicant's legal advisors, the fact that the assessor had regard to the police facts sheet was not immediately apparent. This was so because the written reasons of the assessor did not expose the fact that the police facts sheet had been relied upon in determining the claims for compensation. The fact that the assessment took into account the brief content of the police facts sheet only came to light when the applicant's appeal from the decisions of the assessor was dismissed by the Tribunal and the reasons for the dismissal were made available. In the course of stating his reasons for dismissing the appeals the Tribunal Magistrate made reference to the existence of the police facts sheet. In this way it became apparent to the applicant's legal advisers that at the time of the initial assessments, and on the appeal, the relevant decision-makers had each relied upon material of significance that had not previously been disclosed to the applicant. 31. The applicant claims that these circumstances amount to a denial of procedural fairness in the assessment and appeal process. 32. It was argued on behalf of the respondent that neither the circumstances of the assessment nor the appeal to the Tribunal disclosed a denial of procedural fairness because the information sheet that formed part of the claim form relevantly stated: "… Once we have received your completed application form we will register your claim and send you an acknowledgement letter. We will obtain police reports/court papers in relation to the act of violence claimed. It is your responsibility to provide us with the medical and other relevant evidence substantiating the injuries nominated. Once all the necessary information has been obtained, we will send you a letter advising you of the date upon which your claim will be finalised. …" 33. The respondent argued that since the applicant's representatives were on notice that "… police reports …" would be obtained in the course of assessing the claims for compensation the applicant's representatives knew or ought to have known that material of that character was likely to be obtained and relied upon for the purposes of making the assessment. The respondent further argued that a request could have been made at any time to view the obtained material so in the circumstances, it was submitted, there was no denial of procedural fairness. 34. The respondent's argument as outlined above is in my view flawed as it fails to give due recognition to the obligation to ensure transparency in the decision-making process. In my view there was a duty to disclose to the representatives of the applicant the fact that such material had been obtained and would be relied upon for the purposes of assessing the claim. Further, in my view there was also a duty to afford the applicant's representatives a reasonable opportunity to consider the material so obtained and make such submissions as they thought appropriate concerning the contents of the material. In my view the inevitable consequence of the failure to do so has resulted in the applicant being denied procedural fairness. The practice adopted in the assessment process necessarily set the scene for procedural error to occur. 35. The respondent made submissions in defence of the practice adopted whereby police reports were not routinely provided to applicants. Those submissions centred upon restrictions on making copies of confidential and at times sensitive material within such reports. In my view these arguments, whilst valid in connection with public access generally, have no application where a consideration of an applicant's rights to compensation is concerned, especially where the applicant is legally represented. The critical point is that the applicant was the victim of the reported conduct and had a right to consider the content of such reports in connection with her claim for compensation. 36. At the very least the applicant's solicitor ought to have been given an opportunity to inspect the documents so obtained. In litigation generally, especially when sensitive police documents are produced on subpoena, it is not uncommon to see names and personal details blacked out in the copying of such documents when they are produced in answer to a subpoena. I see no significant difference in the applicability of such an approach to the circumstances of this type of claim, the point being that it is for the police and not the administrative staff of the Tribunal to make the relevant assessment of the sensitivity of the material. 37. The respondent also argued that although the information sheet to claimants disclosed that a police report may be obtained this fact did not give rise to administrative obligation to inform the applicant that such material had in fact been obtained. It was further argued that at all times the obligation rested with the applicant's solicitor to seek out the opportunity to inspect the material that would form the factual matrix of the assessment. 38. Whilst it is undoubtedly correct that an applicant's solicitor is entitled to view the material to be provided to a claims assessor, in my view an antecedent obligation initially rested with the body receiving the claim to inform the applicant's solicitor that such material had been obtained and could be inspected. It would appear that any administrative burden involved in fulfilling this step would have been negligible. I came to this view because it is plain from a perusal of the Victims Compensation Tribunal file that it is replete with routine advisory correspondence. 39. The loose corollary in civil litigation is the obligation on a party to inform an opposing party of the fact that a subpoena had been issued for the production of documents so that an opportunity for inspection would thereby arise. During submissions, in response to discussion relating to this example it was suggested that the Tribunal's facilities for inspection were limited. Whilst that may well be so, where rights to compensation are concerned, an administrative solution ought to be found for any such difficulty so that procedural unfairness does not arise to afflict and undermine the workings of the statutory compensation scheme. 40. The procedural fairness issue is a matter of substantive and causative relevance in this case. This is so because the police facts sheet is a document that is relevant to bail conditions applicable to a perpetrator. It does not provide a full account of the multiple criminal acts perpetrated against the person of the applicant. Reliance on the police facts sheet appears to have inadequately informed the claim assessment process and appeals process. This is especially so in circumstances where, surprisingly, for a case of this character, a decision had been made to proceed without some kind of hearing : Muilwyk v Victims Compensation Fund [2005] NSWDC 153 per Howie J at [39]. 41. This has resulted in the significance of the conduct of the perpetrators to be materially downscaled to a lesser characterisation of the conduct to domestic violence rather than as constituting a number of separate and serious criminal acts. 42. In my view, this has resulted in an unduly narrow construction rather than a required beneficial and purposive construction of s 5(3) of the Act in this instance. This in turn resulted in the rejection of one of the claims for compensation and a dismissal of the appeal from that rejection. In my view the rejection of that claim was erroneous as was the dismissal of the appeal from that rejection. 43. For the foregoing reasons I uphold that claim and find that the applicant has been denied procedural fairness in the manner claimed on her behalf. Ground 2 – Construction of s 5(3) of the Victims Support and Rehabilitation Act 1996 Error of law in contention concerning construction of s 5(3) of the Act 44. The applicant contends that the Tribunal erred in its construction of what constituted a single act of violence within the meaning of s 5(3) of the Victims Support and Rehabilitation Act 1996. The applicant argued that this led the Tribunal to misapply the legislation to the circumstances of the case in arriving at the determination under challenge. 45. In making that argument the applicant does not seek a determination on appeal of whether a series of acts are related and constitute a single act of violence. Instead the applicant seeks a declaration that there has been a misapplication of the legislation to the circumstances of the case. 46. The respondent made a contrary submission to the effect that there was no relevant error of law in the manner in which the Tribunal construed s 5(3) of the Act given that the section should be given a broad interpretation. Section 5(3) of the Act 47. Central to the administration of the scheme for the compensation of victims of crime under the Victims Support and Rehabilitation Act 1996 is the way in which an act of violence is defined in the statute. Relevantly, s 5 of the Act provides: " 5 Act of violence (1) In this Act, "act of violence" means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (1A) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary). (3) An act is related to another act if: (a) both of the acts were committed against the same person, and (b) in the opinion of the Tribunal or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other. However, an act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made. (4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence." 48. It is apparent from Hansard that in general it was intended by this section, that there would be limits placed on amounts to be paid for claims for compensation by the victims of crime. That stated intention is the background to the issue for construction. 49. In this case, for s 5(3) of the Act to be invoked it is necessary for the requirements of 5(3)(a) and (b) to be met. Section 5(3)(a) is non-controversial in that there is no dispute that the acts in question were committed against the same person, the applicant. In this case the controversy centres around the construction of s 5(3)(b) in that the Tribunal determined that the two "acts of violence" in question arose "at approximately the same time". Beneficial and purposive construction is required 50. It is beyond doubt that the objectives of this legislation are both remedial and beneficial. The legislation must therefore be read accordingly : Victims Compensation Fund v Brown [2003] HCA 54 at [31]; (2003) 201 ALR 260 at [31]. In this regard Heydon J stated at [33]: "To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning of the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury." [Internal citation references omitted] 51. In Brown, Heydon JA approved an earlier qualification to beneficial construction as was stated in Victims Compensation Fund v Brown [2002] NSWCA 155 : (2002) 54 NSWLR 668 per Spigleman CJ at 672 [11] namely: "… [t]he Court is not required to give the most expansive possible interpretation of [the] circumstances." 52. It is therefore necessary to review the subject matter of the relevant claims. Consideration of the required approach 53. In the case of Application 134954B the relevant conduct involved the perpetrators inflicting injury to the applicant's eye and causing welts and bruises across the front and back of the torso and the back of the legs due to whipping with a kettle cord intended as punishment of the applicant because she had urinated in her pants. 54. In contrast the relevant conduct complained of in the case of Application 131477B involved burn injuries when the applicant's stepfather "X" sought to discipline her by forcing her under scalding hot water in the shower which was also intended as punishment of the applicant for having urinated in her pants. This incident was in respect of a different occasion to the circumstances which are the subject of Application 134954B. 55. The applicant argues that the inherent fallacy of an argued connection between these incidents is at once apparent, namely that "the series of assaults on the Appellant arose as a result of a global incident, arising as a consequence of her urinating in her pants." 56. Section 39(3)(b) of the Act declares that a question of law is not "a determination of whether a series of acts are related and constitute a single act of violence". The applicant submits that this appeal does not relate to that question but is instead an appeal on whether there has been an error of law in the application of the law leading to the determination. The applicant argues that such an approach to identify an error of law by judicial review does not seek to redetermine the subject matter of the application but merely seeks a judicial review to identify an error of law, a course which does not offend s 39(3)(b). 57. Such an approach has been followed in Muilwyk v Victims Compensation Fund [2005] NSWSC 153 and Bridgeman v Victims Compensation Fund Corporation [2008] NSWDC 153. In the latter case at [22] Johnstone DCJ held: "It is not for this court to redetermine whether the appellant's condition is severely disabling. Indeed to do so would be to fall foul of s.39(3). It is only necessary to determine whether the decision of the Tribunal is contrary to the evidence when considered in its totality." 58. In considering this ground of appeal I propose to take a similar approach. The construction issue 59. There is no issue that the requirements of s 5(3)(a) have been met. The construction issue is whether, on a consideration of the totality of the evidence, it could be reasonably said that the requirements of s 5(3)(b) have been met with the findings that : + "both of the acts were committed at approximately the same time, albeit within an couple of days"; and + the two assaults committed by differing people constituted a "global incident, arising as a consequence of (the applicant) urinating in her pants". 60. The guiding principles for the application of s 5(3) of the Act is to be found in Director General of Attorney General's Department v District Court of NSW and Stark [1993] 32 NSWLR 409. In that case Sheller JA considered the application of s 3(3) of the Victims Compensation Act 1987 which was in similar terms to the current s 5(3) of the Victims Support and Rehabilitation Act 1996 and stated: "A person the victim of two assaults within the same day or within two weeks or within two months does not seem to me to be the victim of related acts for reason that there were common features of the acts themselves, for example, that in each case the assailant and the nature of the offence were the same. Usually such matters are no more than circumstances to be taken into account when considering whether there are other reasons which the tribunal may consider make the acts related. Further the fact that separate acts by their nature fit a description, such as "indecent assault", is a surrounding circumstance but not a reason for saying the acts are related. … For these reasons I am not persuaded that separate acts of sexual assault by the same assailant on the same victim at different times, if no more is shown, can be regarded as related within the meaning of s 3(3) of the Act. I think the limitation is directed to acts occurring during an incident which may involved the commission of one or several offences. I do not rule out that separate acts not part of such an incident may be related. However I do not think that it is demonstrated that they are, simply by showing that the victim and assailant were the same and the acts were of a similar nature. …" 61. In considering this construction ground I am mindful of the fact that the relevant difference between s 3(3) of the Victims Compensation Act 1987 and s 5(3) of the Victims Support and Rehabilitation Act 1996 is the insertion in s 5(3)(b) the phrase "… at approximately the same time …". 62. The question was whether the acts of violence which based the claims for compensation were committed "at approximately the same time". 63. The consideration of this question requires a consideration of the purpose and function of the Act as a whole. Previously, in this court, the approach taken in looking at the Act itself and in applying the guiding principles has been to follow the guidance offered in Stark's case: see MJW v Victims Compensation Fund Corporation, unreported, 18 November 1997. I see no good reason to depart from that well settled course. 64. In the Tribunal the applicant referred to and relied upon Stark's case. In this court the applicant submits that the guiding principles of that case were not applied by the Tribunal. 65. In considering that submission I am guided by the previously cited remarks of Sheller JA in Stark. In addition I am also guided by the remarks of Mahoney JA in that case at 415[D]-[F]. There, it was concluded that ordinarily it was impossible to say that acts committed days, weeks and months apart were acts committed at the same time. The material difference in this case is that in accordance with the requirements of s 5(3)(b) of the Act, giving the section a broad, beneficial and purposive interpretation, I am required to consider the relative rather than absolute proximity of the events. 66. Of critical importance in this case is the fact that the acts under consideration were not part of a single transaction or occasion. 67. In its application of Stark's case the Tribunal was required to primarily consider whether there was a single incident that involved the commission of one or more offences. The secondary considerations were whether the offender or offenders were consistent or were varied in these events and whether the nature of the acts were similar, in addition to other relevant factors. 68. Considering these matters in the factual matrix of the case it was clear that there was a series of whipping assaults perpetrated by both the mother and the stepfather, each of which constituted a single act of violence, being "domestic violence". It was also clear that there was also a distinctly separate and explosive act perpetrated by the stepfather in burning the applicant by scalding. This in my view identifies a materially different proximity of relevant events that renders the characterisation that these events occurred at "approximately the same time" to be inappropriate in this case. 69. That conclusion is reinforced and emphasised by the evidence that the whipping assaults were committed by both the mother and the stepfather whereas the burning incident was committed only by the stepfather. 70. Accordingly, in my view, the acts in question in this case were not similar. Merely because the acts were capable of being characterised as acts of domestic violence does not render them to be similar acts. Further, the acts did not necessarily occur within days of each other. Other evidence filed in the Tribunal supported a finding that the injuries from the kettle cord occurred over various periods of time and did not occur within 3 days of each other. This much is apparent from the obvious and differing stages of bruising and scarring to the applicant's body. 71. The fact that these injuries had their origins in similar triggering events albeit necessarily separated in time was an irrelevant consideration. This did not constitute a proper basis for concluding, in the circumstances of this case, that the acts of violence were related acts and occurred at approximately the same time. The only true characteristic of relatedness was that the acts were inflicted on the applicant as the victim who was common to all occasions. The acts themselves were in my view so disparate in their proximity of occurrence that on the evidence they could not be reasonably be said to have occurred "at approximately the same time". 72. At best, the similar triggering events that gave rise to the separate injuries under consideration here merely provided an explanation of the motivation of the perpetrators when committing the crimes in question. In this case the triggering events do not provide relevant evidence of relatedness of the acts of violence and do not reasonably permit the conclusion that the events occurred at approximately the same time. 73. In my view the Tribunal Magistrate's construction of s 5(3)(b) was erroneous because the emphasis of the interpretation of "approximately the same time" to mean "within a couple of days" in isolation of a consideration of all of the matters leading to the claims for compensation is inconsistent with the applicable authorities. 74. I therefore uphold this ground of appeal and find that the Tribunal erred in its application of s 5(3) of the Act to the circumstances of the applicant's injuries. Ground 3 – Incorrect finding of fact 75. The Tribunal Magistrate made the following finding of fact: "I am satisfied that the Appellant has been subjected to two incidents, during which she was assaulted. It would seem that the first incident, which is the subject of this appeal, occurred shortly prior to 22 June 2005, during which the Appellant was assaulted by her mother and her mother's partner, who used a kettle cord and other forceful conduct causing actual bodily harm to her; and the second incident occurred on the 22 June 2005, when her mother's partner placed her under a hot shower, causing her actual bodily harm to her from the boiling water and as a consequence of striking her head when she fell in the shower." (Paragraph 3 of page 2 of the written reasons of Tribunal Magistrate Cleary)" 76. It is clear that the Tribunal's categorisation of the course of conduct by the accused as comprising "two incidents" was for the purpose of applying s 5(3) and (4) of the Act. It is beyond doubt that the assessor or the Tribunal was required to form an opinion on whether the conduct in question constituted related acts. This included a consideration of the approximate timing of the acts : s 5(3) of the Act. The relevant inquiry concerning whether or not there were related acts involved acts of violence within the extra-ordinary and special meaning invested in that phrase as conferred by the statute. 77. A question arises as to whether the categorisation adopted by the Tribunal, in which it found that the "two incidents" were related, represented a reasonable characterisation of the events giving rise to this applicant's claims for compensation. The relevant inquiry is not into whether "two incidents" were related acts which founds the jurisdiction to grant compensation. Rather, the Tribunal was concerned with whether, in this case, the acts of violence relied upon by the applicant were related acts. 78. The applicant submits that the Tribunal Magistrate erred by making an incorrect finding of fact in concluding that the applicant had been subjected to "two incidents". The applicant submits that such a finding was based on an inference drawn in the absence of evidence to support such an inference. 79. In support of that submission the applicant points out there was no evidence to support the following two findings: (a) The whipping of "S" with the kettle cord occurred " shortly " prior to the 22 June 2005. (b) The burns to "S" occurred " on " 22 June 2005. [Emphasis added] 80. The Tribunal Magistrate's findings equated the "two incidents" that he found to have occurred, were "acts of violence" as defined by s 5(1)(a), namely, an act or series of related acts, whether committed by one or more persons. This is of some importance as a series of related acts is defined in the statute as constituting a single act of violence : s 5(4) of the Act. 81. The occurrence of an incident plainly refers to and means the occurrence of an event. In my view that meaning is entirely different to an act of violence as defined by the statute, which, by legal definition rather than by plain language definition, conflates the occurrence of a series of incidents or events to constitute an act of violence within the meaning and operation of the Act. 82. Whilst it must be acknowledged that when applying a liberal or beneficial interpretation of the statutory provision to achieve its intended purpose, meticulous literalism is to be avoided : Director-General of the Attorney General's Department v District Court of NSW & Stark [1993] 32 NSWLR 409 per Sheller JA at 421 [F] following McDermott v Owners of SS Tintoretto [1911] AC 35 at 46, in my view the same principle does not necessarily apply to the decision of the Tribunal in connection with its use of the word "incidents" which is not a term that is defined by the statute. 83. It is instructive to survey some dictionary definitions of the noun "incident". The Concise Oxford Dictionary The Concise Oxford Dictionary, Eighth Edition, 1990, page 597 defines "incident" to include a minor or detached event attracting general attention or noteworthy in some way. The Macquarie Dictionary The Macquarie Dictionary, Revised Edition, 1985, page 881 similarly refers to an occurrence or event, a distinct piece of action, or an episode, especially one of a serious nature, about which precise information is lacking and Webster's Seventh New Collegiate Dictionary Webster's Seventh New Collegiate Dictionary, 1976, page 423 refers to something that happens, a happening or an occurrence that may have serious results. 84. The tenor and thread of these definitions does not suggest that an incident is a course of related conduct as is contemplated by s 5(3) of the Act. By characterising the events as "incidents" the Tribunal was clearly importing a meaning that conveyed the notion of the occurrence of events that had serious consequences. In my view the use of the word "incidents" by the Tribunal takes the description of the events giving rise to the claims for compensation outside the characterisation of "related acts" that constitute the non-ordinary and statutory definition of "an act of violence" within the meaning of s 5(3). In my view, in taking that approach, the Tribunal Magistrate made an erroneous finding of fact : Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 150C and 157A. 85. The respondent submits that it was open to the Tribunal Magistrate to make the findings that were made. The respondent further submits that the general principle is that simply making a wrong finding of fact does not necessarily amount to an error of law : Waterford v Commonwealth [1987] HCA 25 at [14]; (1987) 163 CLR 54 at 77 per Brennan J. 86. Whilst that may be so, however, an error of law is shown to have occurred if an inference of fact is drawn from a complete absence of evidence. This can occur where the provisions of a statute apply to give words which have a common understanding a special meaning in which case a mixed question of fact and law arises as to whether the facts as found fall within those words : Hope v Council of the City of Bathurst [1980] HCA 16 per Mason J at [11]; (1980) 144 CLR 1 at 7. 87. In my view the applicant has demonstrated that the Tribunal Magistrate's decision by which he found there were "two incidents" was made without evidence to support such a finding and this has resulted in an error of mixed fact and law. 88. In this case, the significance of errors of this character is that they undermine and demonstrate the absence of support for the Tribunal's stated basis for finding that the "two incidents" were "related acts". There has been a mismatch of language which has resulted in a misapplication of the statutory provision. There is no evidence to support the Tribunal Magistrate's finding of fact that the incidents occurred "at approximately the same time" to enable them to be characterised as "related acts". In my view this has resulted in an oversimplification of the facts beyond the extent permitted by the terms of s 5 of the Act. Consequently, an error of law has occurred. 89. In my view the applicant has identified relevant errors of law that were grounded on an incorrect finding of fact as outlined above. Accordingly, I therefore uphold Ground 3. Ground 4 – Illogical reasoning 90. An exception to the general prohibition on the review of a decision-maker's finding of fact arises where the decision under consideration is shown to be irrational or illogical in the sense that it was not based upon findings or inferences of fact supported by logical grounds. When such circumstances are shown to have arisen this enables a court to review the fact-finding process undertaken to reach the decision in question : in Re Minister for Immigration and Multicultural Affairs; Ex Parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59. 91. The applicant submits that the reasoning of the Tribunal Magistrate was illogical in the sense that it was not based upon findings or inferences of fact supported by logical grounds. 92. In order to examine that submission, recourse must be had to the facts before the Tribunal. The evidence discloses that these facts relevantly comprised the hearsay medical opinion as reported in the police facts sheet. 93. As to the injuries caused by whipping with the kettle cord the opinion expressed by the medical practitioner as reported in the police facts sheet suggests that there had been ongoing physical assaults by whipping as evidenced by the differing stages of bruising on "S", with the only conclusion open to the Magistrate being that whipping with the kettle cord occurred prior to the 22 June 2005. The evidence consisting of the photographs showed welts and scabs, bruising and scars, supporting the proposition that the whipping assaults were ongoing and occurred over a significant period of time. The different stages of healing, including unhealed skin and existing scars is indicative of a systematic pattern of abuse that could not have occurred within a few days of the other. The police facts sheet, when read in conjunction with the medical evidence filed by the applicant, does not reasonably support a finding that the injuries from the whipping incident occurred during one incident on or about 21 June 2005. 94. When the applicant presented to the hospital on 21 June 2005 there was evidence of significant burns which had been dressed with a dirty old crepe bandage that was found to be adherent to the weeping tissues that had been burnt earlier. As a matter of logical analysis within the context of the factual chronology, this injury could not have occurred on 22 June 2005 as was found by the Tribunal Magistrate. 95. The applicant has therefore submitted that irrationality or illogicality relevantly arose in the Tribunal's reasons because there was no evidence to support the findings that: (a) the burns which led to the hospital admission occurred after admission to the hospital; and (b) that the entirety of the bruising from the kettle cord occurred within a couple of days of a single event. 96. As a matter of logic, proposition (a) above must clearly be correct. Proposition (b) necessarily involves unwarranted speculation in the absence of evidence to support such a conclusion. Although point (b) involves the formation of an opinion as permitted by s 5(3)(b), such an opinion must be based on facts emerging from within the available evidence and must be based on reasonable inferences arising from such facts. 97. In this regard, the applicant submits that the uncontroverted facts within the evidence suggests that the true and only conclusion to be drawn from those facts is contradictory of the determination of the Tribunal with regard to propositions (a) and (b) such as to amount to a legal error involving illogicality or irrationality : Re Minister for Immigration and Multicultural Affairs; Ex Parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per Gleeson CJ at [25] and [450]. 98. In my view the applicant has demonstrated that the impugned findings are not supported by the evidence that was either before the assessor or before the Tribunal and therefore those findings are not rational or logical. In context, illogical findings means that the findings are not supported by reference to the evidence. According to that formulation, in my view the factual finding by the Tribunal Magistrate demonstrates the decision to be erroneous because it was not based upon findings or inferences of fact supported by logical grounds. 99. I have come to this view because on the evidence, I consider that it could not reasonably be said that the applicant's injuries occurred on the day after her admission to hospital and there was no evidence before the Tribunal to support the opinion that the entirety of the injuries were inflicted on the applicant within a couple of days of a single event. Disposition 100. Having granted leave to appeal I have concluded that the applicant was not afforded procedural fairness in the assessment process. I have also concluded that the assessments were based on an incorrect interpretation and application of s 5(3) of the Act. I have also concluded that the decision of the Tribunal has been shown to have been based on illogical reasoning. It follows that the appeal should be allowed. Orders 101. I make the following orders:- (a) I grant the applicant leave to appeal; (b) I allow the appeal and set aside the orders made by the Victims Compensation Tribunal on 27 August 2008 in Tribunal proceedings numbered 134954B; (c) I remit the proceedings to the Victims Compensation Tribunal to be dealt with according to law; (d) I order the respondent to pay the applicant's costs; (e) I order that the file of the Victims Compensation Tribunal be returned to the custody of the Tribunal; (f) Liberty to apply on 7 days' notice if further orders are required. 02/07/2009 - Typographical error in case citation details - Paragraph(s) Coversheet - "CASES CITED" - Citation particulars replaced in second case of Victims Compensation Fund v Brown i.e. [2002] NSWCA 155; (2002) 54 NSWLR 668. 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