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." On behalf of the appellant, it is submitted that the Act requires that in order to receive compensation there must be chronic psychological or psychiatric disorder that is either moderately disabling or severely disabling. It is submitted that the Chairperson's guide does not apply the provisions of the Act because the Act does not refer to, "some material impairment in an important area of day to day functioning." In schedule one to the Act there is a definition of category one, "chronic psychological or psychiatric disorder that is moderately disabling." And category two, "chronic psychological or psychiatric disorder that is severely disabling." Section 65 of the Act provides that assessors must have regard to the Chairperson's guide. There is nothing in the Act prohibiting the Tribunal on appeal from the assessor having regard to such guide. Consequently no error of law on the part of the Tribunal is demonstrated in considering the wording of the guide. Furthermore, the guide seeks to define the word "disabling." That word is not defined in the Act. As pointed out above the definitions in Schedule one are silent on the meaning of the word "disabling." In my view the guide is not contrary to the terms of the Act, does not vary from the terms of the Act and is not erroneous in law. Consequently, the Magistrate comprising the Tribunal did not fall into error of law into applying the guide. This ground is therefore rejected. I now pass to the next ground. On page four of the determination the Tribunal said: "The Appellant's solicitor relies on Dr McNamara, an Authorised Report Writer who states the appellant's symptoms and current functioning are consistent with a diagnosis of chronic psychological disorder that is moderately disabling. Whilst the Tribunal is assisted by reports from Authorised Report Writers in determining claims, it is not bound to simply rubber stamp their conclusions." I see no error of law in this. The Tribunal then quotes from a paper delivered by Dr Shea, a forensic psychiatrist, delivered to the District and County Court Judges Conference in Melbourne in June 1995. The passage quoted reads: "Unfortunately, not all psychological tests are equally valid and useful and not all of the them are entirely objective. Even the interpretation of some of them requires the use of subjective value judgments. If the results of a psychological test are being presented in court as evidence, that information has to be evaluated. It simply cannot be accepted at its face value." It is quite clear that on its terms this quote refers to psychological tests. There is no suggestion in this case that the appellant underwent any psychological tests. The quote therefore is quite irrelevant to the reasoning in the determination. However the reasoning in the determination of what Dr McNamara said in his report appearing at pages five and six indicate that this quote was not misapplied to such reasoning. Accordingly this ground would not be of such materiality to the decision as to warrant the granting of leave to appeal. The next ground appears also on page four of the determination. The Tribunal said: "In the appeal of Button v the Victim's Compensation Corporation Fund 26 February 1999, her Honour, Judge English said "There is no rule of law that states a Tribunal must believe the evidence because it is all one way. It can accept all or some or none of it."" It is submitted on behalf of the appellant that this statement of the law is so wide and without necessary qualifications as to indicate that the Tribunal misled itself as a matter of law in reaching its ultimate conclusion. In this context it should be borne in mind that the words of Judge English were quoted almost sixty years ago in the case of McPhee v S Bennett Limited (1935) 52 WN 8 at page 9. Furthermore, those words were quoted with approval by Glass JA in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at page 155. As was pointed out in Azzopardi's case there are many exceptions to the general rule quoted by Judge English. But when one looks at the reasoning of the Tribunal it must be said that the use of this broad rule as quoted did not produce any error of law. Consequently, leave to appeal on this ground would not be granted. The next ground of appeal is that of denial of procedural fairness. At the top of page five of the determination the Tribunal says: "After the incident in October 1998 the appellant sought and was granted eight hours of counselling with psychologist, Gerard Clancy. In his report to the Director dated 28 August 1999 Mr Clancy stated the Appellant would be provided with Cognitive Behaviour Therapy to address her symptoms of mood disturbance. Twenty hours of counselling may be approved at no cost to an applicant if considered necessary by an Authorised Counsellor. Mr Clancy did not recommend any further counselling on behalf of the Appellant nor was further counselling sought. I am entitled to infer that the eight hours of therapy proved successful in addressing the Appellant's symptoms of mood disturbance." It is common ground that neither party has been able to locate a report from a Gerard Clancy of 28 August 1999. There is, however, on the file of the Victim's Compensation Tribunal, exhibit A, a report of Gerard Glancy of 31 May 1999. Having regard to the terms of that report and to the absence of a report as described in the determination it is reasonable to infer that this report is erroneously described in the determination and is in fact the one of 31 May 1999. The report from Mr Glancy concludes with a case plan. In this case plan, Mr Glancy says: "I spoke with Mrs Nesbitt regarding anti depressant medication. She appeared accepting of such treatment. In my opinion she requires psychological intervention. Cognitive behaviour therapy will be employed in an attempt to address her symptoms of disturbance. I anticipate eight treatment sessions will be required to address her symptoms of disturbance." There is nothing in this report to indicate whether the anticipated eight treatment sessions were conducted. There is nothing in this report to indicate whether, if they were conducted, what effect that treatment had upon the appellant. It is quite clear that this report is a preliminary report recommending eight treatments to be held in the future. Notwithstanding this, in its determination the Tribunal made three significant findings of facts. First, that Mr Glancy did not recommend any further counselling. Secondly, that no further counselling was sought and thirdly, that the Tribunal was entitled to infer that the eight hours of therapy proved successful in addressing the appellant's symptoms of mood disturbance. There was absolutely no evidence to support these findings which were very material to the Tribunal's ultimate decision. In my view, the Tribunal here fell into a significant error of law which warrants the granting of leave to appeal and the allowing of the appeal. The Tribunal's decision on this point was not merely a decision of fact by it. It was a decision made in the absence of any supporting evidence. But the gravity of this error of law is compounded by the fact that the existence of this report and the intention of the Tribunal to rely upon it was not brought to the attention of the appellant. This is clearly a situation where the appellant has been denied procedural fairness in a most material and serious respect. As was pointed out by Justice Kirby in the High Court in the case of re Refugee Tribunal ex parte Aala , reported in 204 CLR 82 at page 31: "The reason for the stringent principle of the common law is plain enough. Departure from the fair hearing rule involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision making power. Those who enjoy such power must conform to the condition of the grant. If they do not they have not exercised the power in accordance with the law but instead in accordance with some personal predilection." This error of law interacts with yet a further serious error. The appellant sought leave to rely upon evidence on the appeal before the Tribunal not relied upon before the compensation assessor. This was a report from Mr Hudd, psychologist, of 14 August 1999. This report points out that Mr Hudd first saw the appellant on 18 November 1998, some five weeks after the act of violence. It then traces her symptomatology thereafter and expresses opinions as to the effect that the home invasion had upon her psychiatric wellbeing. In addition it annexes the dates and costs of consultations that Mr Hudd had with the appellant from 18 November 1998 to 6 August 2000. The contents of this report very clearly contain material evidence relating to the issues to be determined by the Tribunal. The appellant sought leave to rely upon this report on the appeal before the Tribunal even though it was not used in the hearing before the assessor. The use of such evidence is covered by section 38(3) of the Act which provides: "An appeal from the determination of a compensation assessor is to be determined on the evidence and material provided to the compensation assessor. However, the Tribunal may by leave receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against." The substance of Mr Hudd's report did not concern matters occurring after the determination appealed against. In order to determine whether leave should be granted by the Tribunal to receive Mr Hudd's report it had to be satisfied that special grounds existed. The Tribunal at page two correctly quotes from the decision of the Court of Appeal in Victim's Compensation Fund Corporation v Hill , a decision of 5 April 2000 and points out that in that case the three criteria referred to in Akins v National Australia Bank 34 NSWLR 155 at 160 were appropriate. Those three grounds are stated thus: "These are: One, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Two, the evidence must be such that there must be a high degree of probability that there would be a different verdict. Three, the evidence must be credible." When one looks at the reasoning of the Tribunal it is clear that the Tribunal considered the first point, namely, whether the evidence could or could not have been obtained with reasonable diligence for use of the hearing before the assessor. It came to the conclusion, which was open to it, that that report could have been obtained with reasonable diligence on the part of the appellant's solicitors for consideration by the assessor. Unfortunately, however, the Tribunal did not go on to consider the remaining two grounds. It is clear that the Tribunal considered only the first condition and not the remaining two. It appears that the Tribunal was of the view that all three conditions had to be contemporaneously satisfied for the requirements of special grounds to be held to exist. In this regard, the Tribunal was in error as was pointed out in Commonwealth Bank of Australia v Quade 178 CLR 143 at 140, a passage quoted in the Tribunal's judgment and I shall quote it here: "The tests from Akins are general principles or conditions applying to the generality of cases but the statutory discretion is capable of being exercised even if the tests are not all satisfied though such an exercise might only occur in exceptional circumstances." Because the Tribunal did not consider the remaining two criteria and because the Tribunal did not look at the totality to determine that, even though not all three criteria are satisfied, there were still exceptional circumstances, the Tribunal clearly fell into an error of law. But when one considers this error in conjunction with the denial of procedural fairness ground of appeal the failure to admit Mr Hudd's report becomes even more germane. Had notice been given to the appellant that the Tribunal intended to rely on Mr Glancy's report one would have expected the appellant's legal representatives to point out that this report was limited in time to what had occurred prior to the appellant undergoing the eight sessions of counselling, assuming that she did undergo them. In answer to this report justice would have clearly required that the appellant have the opportunity to adduce evidence in answer. The report of Mr Hudd covering as it does with the annexures the history of the appellant's psychological condition from 18 November 1988 to 6 August 2000 would have provided a very cogent answer to Mr Glancy's report and demonstrated that the findings of fact and the inference made and drawn from that report by the Tribunal were clearly wrong. On that ground alone, there were clearly exceptional circumstances which would have militated in favour of the admission of the report from Mr Hudd even though it was available to the appellant to rely upon before the assessor. For all of these grounds I am comfortably satisfied that the Tribunal committed material and indeed serious errors of law. Such errors do not fall within those excluded in subsection (3) of section 39 of the Act. Accordingly, the appeal is allowed. The determination of the Tribunal is set aside and I remit the matter to be considered to be determined again by the Tribunal either with or without the hearing of further evidence in accordance with the decision of this Court on the questions of law concerned. COUNSEL ADDRESSED ON COSTS I order the respondent to pay the appellant's costs of the appeal. 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.