Tadros v Victims Compensation Fund Corporation [1999] NSWDC 21

New South Wales District Court

CITATION : Tadros v Victims Compensation Fund Corporation [1999] NSWDC 21 TRIBUNAL : Victims Compensation Tribunal PARTIES : Tawfik Tadros Victims Compensation Fund Corporation FILE NUMBER(S) : 6984 of 1998 CORAM: Patten DCJ CATCHWORDS: procedural fairness :- whether Tribunal bound to notify applicant of adverse determination LEGISLATION CITED: Victims Compensation Act 1996 CASES CITED: DATES OF HEARING: 24/8/99 DATE OF JUDGMENT: 24 August 1999 LEGAL REPRESENTATIVES: Mr W Carney Mr C Lonergan

JUDGMENT: DCC394 RMS-F1

~24/08/99 3

HIS HONOUR: This is an appeal under s 39 of the Victims Compensation Act 1996, the right of appeal being restricted to a question of law and the legislation specifically providing that a determination as to whether or not a claim relates to a compensable injury is not a question of law. The appellant claims that he suffered mental injury when he was held up by intruders in the course of his employment at Belmore Railway Station on 8 August 1997. His application for compensation was initially dealt with, as the law requires, by an Assessor who held that the medical evidence before him did not establish a compensable disorder. As I understand it, the appellant accepts that the Assessor's decision was correct. He appealed to the Tribunal and the Tribunal dealt with the matter on 22 June 1998. It had before it further material in the form of a report dated 3 September 1997 from Psychologist Sam Borenstein who saw the appellant on 25 August 1997, that is eighteen days after the alleged act of violence. The Tribunal dismissed the claim, pointing out in its reasons that a disorder could not have been diagnosed at 25 August 1997 that fell within the compensable list of injuries because, on the face of it, it had not as at 25 August 1997 persisted for at least one month. The appellant seeks to appeal on the asserted basis that, as a matter of law, the Tribunal, in dealing with the matter as it did, did not comply with the requirements of procedural fairness in that it did not give an opportunity to the appellant to obtain further medical evidence, that it made its decision without warning that it would make a decision against the appellant upon the evidence before it, that it did not have regard to the rules of natural justice and, by amendment today, that the tribunal erred in dispensing with a hearing. None of those matters, in my opinion, despite the earnest submissions of Mr Carney, indicates that the Tribunal erred in law as it seems to me that it was entitled, and indeed probably bound, to deal with the matter on the evidence which the appellant chose to put before it and, as its letters of 21 November 1997 and 12 January 1998 make plain, it gave the appellant ample opportunity to put before the Tribunal such material as he thought would be appropriate. As I have indicated, I am of the opinion that nothing before me demonstrates an error of law and, accordingly, while I have some sympathy for the appellant, if indeed he suffered a compensable injury, I am of the opinion that the appeal must be dismissed. I order accordingly. HIS HONOUR: I suppose there is no reason why he shouldn't make another application Mr Carney.