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. CARNEY: I think he is out of time-- HIS HONOUR: He might get leave to do that. LONERGAN: Your Honour, I am instructed to seek costs of this appeal and I am also instructed to seek the costs that were reserved from a motion before Registrar Cowan on 11 June 1999. HIS HONOUR: What was that about? LONERGAN: I am instructed there was a motion before the court on that day filed on behalf of the appellant that was subsequently withdrawn on the day and costs were reserved-- HIS HONOUR: Do you want to be heard on costs-- CARNEY: It's highly unusual for a costs order to be made in these matters. I am not aware of what power the court would have to make such cost orders. An applicant who wins generally has to ask the court for an order under the Act and I am not sure if the Act gives the power for such cost orders. LONERGAN: If your Honour puts to one side the question of the motion costs, it is quite frankly wrong of my friend to say that the cost orders are not normally made. I can say to your Honour I have done a number of these now under the new Act and it has been my experience that on everyone that I have been involved in where there has been a dismissal of the motion and appeal that costs have been awarded to the tribunal. It is unfortunate but the fact of the matter is that the legislature has made plain that appeals to the court only on a question of law must identify a question of law and they don't and - put aside for one moment the motion costs, I would ask that your Honour with respect acknowledge the fact that in the event of an unsuccessful appeal the costs should follow the event. HIS HONOUR: With some regret, I order the appellant to pay the respondent's costs of the appeal. I make no order in relation to reserved costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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