Jones v Victims Compensation Fund Corporation [1999] NSWDC 11

New South Wales District Court

CITATION : Jones v Victims Compensation Fund Corporation [1999] NSWDC 11 TRIBUNAL : Victims Compensation Tribunal PARTIES : Peter Jones; Kathleen Jones; Christine Jones Victims Compensation Fund Corporation FILE NUMBER(S) : 1159 of 1999 CORAM: Bell DCJ leave :- section 39(4) CATCHWORDS: leave :- section 26(1) leave :- family victim LEGISLATION CITED: Victims Compensation Act 1996 Coroners Act 1980 CASES CITED: DATES OF HEARING: 26/7/99 DATE OF JUDGMENT: 26 July 1999

JUDGMENT: DCC315 BG-G1

~26/07/99 4

HIS HONOUR: The three members of the same family are applicants for compensation said to be due to them in their capacity as family victims as the result of the death of the primary victim. The primary victim was one Christopher Dale Flannery and I am informed that the Coronial Inquiry into his death resulted after considerable time in a finding that it had taken place on or about 9 May 1985. The Coronial Inquest file is not before me, but Mr Newell who appears for the applicants, has tendered a death certificate which indeed gives that date of the death of Christopher Dale Flannery. The three applications were made on 3 November 1997, which is some twelve years after the date of death that is shown in the death certificate. I am informed that the original applications sought extension of time for the making of an application. It is common ground in these proceedings before me that the law on the matter is to be found in Act Number 115 of 1996 which repealed and re-enacted a number of the provisions of the previous Victims Compensation Acts. Section 26 of that Act provides, so far as relevant, that an application for statutory compensation must be duly lodged within two years after the death of the primary victim. On the face of it the present application was not lodged in time and accordingly an extension of time was an essential before the matter could proceed. Section 26 provides that an application that is lodged out of time may be accepted with the leave of the Director. In the present case I am informed as is the new routine the matter came before an Assessor who dealt ad limine with that application, but declined to extend time. The applicants then duly appealed to the Victims Compensation Tribunal seeking a reversal of that decision, but the Tribunal also refused to extend time. Accordingly, the applicants made these applications which are before me at the moment, in each case seeking an order granting leave to appeal out of time from the tribunal's decision which although I have not had argument about I would not have a whole lot of difficulty with, but also seeking that I overrule that decision of the Tribunal. I can see all sorts of reasons just based on those bare facts as recited to me by Mr Newell why it would have been reasonable to extend time. Mr Newell tells me that although the applicants believed round about the time of death as we know it to be that death may have occurred, they were unable to prove death. I think I am right in speaking of my own recollection of publicity of the matter that the body was never discovered and so being unaware of the actual date of death it might well be said that they acted reasonably in awaiting the decision of the Magistrate, but whether that be so or not if this was a case where leave to appeal was necessary then the applications seem to me to be completely barred by section 39(4) of the Act. Section 39 gives a party aggrieved the right to appeal to this Court on a question of law arising in any determination of the application by a Tribunal. There is some statutory elaboration on the question of what may or may not be properly described as "questions of law". Subsections 3A and 3B both limit the meaning of that phrase, but subsection 4, while apparently accepting that a decision by the Tribunal to refuse leave for a late application may sometimes constitute a question of law, has specifically stated that an appeal does not lie against such a decision, so whether it is a question of law or not it would seem to me to be expressly excluded from my consideration. That is not quite the end of the matter because Mr Newell's argument goes further. He submits and he did not initially put it in this way, but I think his submission amounts to this, that in a case such as the present he needs no leave because his application was not in fact out of time. He reaches that point in his argument by making some statements from the bar table which I understand not to be in dispute at least at this stage, that is that the applicants did not actually know of the time or date of death and that as I mentioned a few minutes ago there is no body, thus, he says, at the time when an application might have been made for compensation, death could not be proved and indeed was no more than "suspected death" a phrase that is used in section 13 of the Coroner's Act (1980). He says that it was for that reason impossible for him to bring an application under the Victims Compensation Act. I would not have thought myself that it was impossible because it would always I would have thought be possible to make the application in somewhat general terms possibly with a view to amending the actual stated date of death at some later stage, but anyway that is Mr Newell's submission and as a result of it he says that section 26 should be treated as if it provided for an application not "within two years after the date of the primary victim" but within two years after proof of death or perhaps after the finding of an inquest into the death or some such qualifying phrase. In a case such as Mr Newell has described that might be a very reasonable and proper provision but it is not the provision which the legislature has made. I do not see any way in which without doing violence to the words of section 26(1) I could possibly adopt any of those alternative interpretations. "Within two years after the death", means within two years after the death and in this case that means by about 9 May 1987. I am inclined to think that (again, just on the facts that I have heard and without having heard Mr Lonergan on this aspect of it) if the matter were to be decided in this Court, I would be very strongly inclined to grant leave and permit her to make her application, but having regard to the combined effect of those two sections 26(1) and 39(4) it is my view that this Court has no jurisdiction to entertain the argument as to the granting of leave and there is no substance in the argument that leave was not required therefore I have no alternative but to refuse the three applications. LONERGAN: Your Honour I am instructed to ask for costs. HIS HONOUR: I don't think there is any basis upon which I could refuse the successful respondent his costs is there.