Nesbitt v Victims Compensation Fund Corporation [2001] NSWDC 27

New South Wales District Court

CITATION : Nesbitt v Victims Compensation Fund Corporation [2001] NSWDC 27 TRIBUNAL : Victims Compensation Tribunal PARTIES : Margaret Maude Nesbitt Victims Compensation Fund Corporation FILE NUMBER(S) : 11244 of 2001 CORAM: CATCHWORDS: psychological or psychiatric disorder - disability - Chairperson's guide - counselling report - procedural fairness - special grounds LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 re Refugee Tribunal ex parte Aala 204 CLR 82; CASES CITED: Akins v National Australia Bank 34 NSWLR 155; VCFC v Hill [2000] NSWCA 75; Commonwealth Bank of Australia v Quade 178 CLR 143 DATES OF HEARING: 22/2/02 DATE OF JUDGMENT: 22 February 2002

JUDGMENT:

HIS HONOUR: This is an application for leave to appeal on a question of law against a decision of the Victim's Compensation Tribunal under section 39 of the Victim's Support and Rehabilitation Act 1996. It is common ground that the appellant was a victim of an act of violence which occurred on 10 October 1998 when she was victim of a home invasion. The appellant claimed compensation for psychiatric injury under that Act. An assessor dismissed the claim. She appealed under section 38 to the Tribunal. After due notice the Tribunal proceeded to a determination without a hearing pursuant to subsection (2) of section 38 of the Act. By determination dated 5 September 2001 the appeal was dismissed. The appeal to this Court alleges that in the course of the determination the Tribunal fell into errors of law. I shall deal with the grounds upon which the appellant submits the Tribunal fell into such errors although not in the sequence as argued at the hearing. On page 6 of its determination the Tribunal says: "The fact that certain areas of a victim's life are adversely affected does not of itself mean that the victim has sustained a disability. It is difficult to discern from Dr McNamara's report that the appellant is suffering from a chronic psychological disorder let alone one that is moderately disabling." The Tribunal then quotes from the Chairperson's guide of 25 July 2000. That extracts is as follows: "What is 'disabling' and what is a disability is not defined in the Act. It would seem that a psychological or psychiatric disorder is disabling when it results in some material impairment in an important area of day to day functioning or in the Minister's words, when "it results in severe impairment of the person's ability to function in their usual day to day activities." The fact that a disorder results in adverse symptoms impacting on an applicant's life does not necessarily mean that the disorder is disabling within the meaning of the Act."