New South Wales District Court CITATION: Scurr v Compensation Fund Corporation [2005] NSWDC 18 HEARING DATE(S): 18/7/2005 EX TEMPORE JUDGMENT DATE : 18 July 2005 JURISDICTION: Civil JUDGMENT OF: Rein SC DCJ DECISION: At [14]-[15] CATCHWORDS: Appeal from Victim's Compensation Tribunal - Scope of s.39 - need for error of law - Failure of Tribunal to deal with application for consideration of additional material LEGISLATION CITED: Victims Support and Rehabilitation Act 1996, ss 38,39 PARTIES: Gordon Theodore Scurr (Applicant) Compensation Fund Corporation (Respondent) FILE NUMBER(S): 37/04 COUNSEL: Mr Torpey (Applicant) Mr McAteer (Respondent) JUDGMENT 1 HIS HONOUR: Before me today is a Notice of Motion by the applicant against the Compensation Fund Corporation. Mr Torpey of counsel appears for the applicant and Mr McAteer appears on behalf of the Fund. The application is made pursuant to s 39 of the Victims Support and Rehabilitation Act 1996, the Act. 2 There is no dispute between the parties that an appeal brought under s 39 is of restricted scope and can only be concerned with a question of law. Some specific matters are said to be matters that are not questions of law (see s 39(3) of the Act). 3 The background to the matter I shall state briefly. It is that the applicant had been the subject of intimidation, including threatening calls, but also a shotgun blast fired into his window. As a result of those incidents there followed subsequently acts of violence committed by Mr Scurr himself upon two persons. He was subsequently found guilty of manslaughter in the Supreme Court. The persons whom he killed were, in all likelihood, connected with the incidents that occurred two weeks before and over a period of time. There is no dispute as to those circumstances. 4 A claim was made before an assessor appointed by the Tribunal. The assessor accepted that an act of violence had been committed but found against the applicant on the basis that although he had suffered from psychological effects of the intimidation they were not sufficiently disabling or of sufficient duration to fall within the terms of the legislation. The assessor therefore rejected the claim. 5 An appeal was brought to the Tribunal in accordance with the applicant's right to do so. There were various grounds of appeal which were set out in the Notice of Appeal filed in the registry of the Victims Compensation Tribunal by Mr Scurr, and these were: (1) Misunderstanding as to the facts relating to the act of violence. (2) Misapplication of the test relating to the act of violence. (3) Conclusions not supported by evidence. (4) Inconsistency between statements of the assessor. 6 There were also submissions made in a document which is before me on this appeal. Although it is not formally marked as exhibit 1 it is part of exhibit 1 to the affidavit of Mr Scurr, and it is a bundle of documents headed 'Appeal'. It is accepted by Mr McAteer, on behalf of the Tribunal, that that bundle of documents was received by the Tribunal. That bundle of documents sets out, relevantly for this application, in paragraph 6.2 the following: "The greater balance of evidence from the appellant's criminal proceedings is directly relevant to the appellant's application to the VCT for statutory compensation. It is estimated that this material referred to in paragraph 2 of annexure D runs to over 5,000 pages. This material is stored at the appellant's family home." 7 Secondly, the document contains at page 19 of the bundle the following: "Notwithstanding the provisions of clause 5 of schedule 1 the appellant submits that the Tribunal consider additional supporting evidence having regard to the integrity and relevance of that material. These documents include: - The report of Dr William Lucas ("C2") - Appellant's statement to the New South Wales Police dated 25 May 1999 ("C1") - Transcripts of proceedings against the appellant ("T1") - Oral evidence (subject to leave)" 8 The Notice of Motion submits that there are a number of questions of law for determination by the Tribunal and therefore relevant to the appeal under s 39. These are set out in the Notice of Motion as: "(1) Whether the Victims Compensation Tribunal erred by failing to determine the application for leave under s 38(3) of the Victims Support and Rehabilitation Act 1996 to adduce further (documentary) evidence and material. (2) Whether the Tribunal erred in refusing the applicant's request for an oral hearing. (3) Whether the Tribunal erred by not allowing nor requiring the applicant to obtain a written assessment from an authorised report writer (ARW) for the purpose of establishing the asserted compensable injury." 9 At the hearing before me today Mr Torpey accepted that issue number 3 is not really a matter of law that could be the subject of appeal to this Court. So far as the second heading is concerned, namely the refusal of request for an oral hearing, in my view that is a matter which could not be a matter of law. There is nothing to indicate that it was not properly considered and nothing was suggested in that regard to point to any failure to properly consider that. It is a matter for the Tribunal whether or not there should be an oral hearing. 10 The problem, however, and this is relevant to the first issue, is that there is nothing in the decision of the Tribunal to indicate that the transcript material relied on by Mr Scurr, and the subject of, in effect, an application to consider additional evidence dealt with at page 19 of his submissions, was actually considered and made the subject of a determination by the Tribunal as to whether or not leave should be given. Nor is there anything in the determination of the Tribunal to indicate that regard was had to such additional material. 11 It was agreed by the parties today that I do not need to have regard to the material itself in the circumstances, the question really being whether or not the Tribunal should have firstly made it clear in some form that it had considered the application for further evidence and determined it adversely or favourably to the applicant, and secondly, if it did determine it favourably to the applicant that it had had regard to that material in coming to the view to which it did come. It is conceded that there is nothing in the Tribunal's very detailed and otherwise comprehensive determination that it had either rejected the application for that further material to be considered or had allowed it and had considered it. 12 In the circumstances, in my view, there is an error of law on the face of the Tribunal's determination in the absence of any conclusion in relation to whether leave should or should not be granted pursuant to 38 that requires the matter to be considered afresh. 13 I do note that Mr McAteer drew to my attention a document within the file, which is exhibit 1 of the Tribunal, which indicates that consideration was given as to whether the hearing should be oral or not and in which reference is made to the bundle of documents, pointing to the Tribunal being aware of the bundle. Its presence only strengthens the significance of the absence of any such note of the decision in regard to the admission of the material. It may well be, as Mr McAteer suggested, that the Tribunal was, in determining the matter, focusing on the written notice of grounds of appeal, to which I had earlier referred and which is also found in exhibit 1, which does not itself make reference to further evidence. However, the submissions do make reference to it, and although there may be an explanation for the failure of the Tribunal to address the s 38(3) issue, it is conceded that that was put before them by Mr Scurr and it is clear that it was not considered by the Tribunal. 14 In the circumstances, I think that the Tribunal must reconsider its decision in two stages. First, it needs to consider whether or not it will grant leave pursuant to s 38(3) to receive further evidence, that is the evidence put before it through the submissions. And if it considers that that leave should be given, it should then to consider its determination on the basis of the other material that was already before it together with that further material or such parts of it as is allowed by the Tribunal. 15 I order the respondent to pay the costs of the applicant of the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.