Walton v Victims Compensation Fund Corporation [2002] NSWDC 17

New South Wales District Court

CITATION : Walton v Victims Compensation Fund Corporation [2002] NSWDC 17 TRIBUNAL : Victims Compensation Tribunal PARTIES : Dean Kenneth Walton Victims Compensation Fund Corporation FILE NUMBER(S) : 163 of 2002 CORAM: CATCHWORDS: shock - disability - exacerbation of pre-existing condition - Schedule 1(5) LEGISLATION CITED: Victims Compensation Act 1996 District Court Rules 1973 CASES CITED: Victims Compensation Fund Corporation v Ainsworth 51 NSWLR 466 DATES OF HEARING: 10 May 2002 DATE OF JUDGMENT: 10 May 2002

JUDGMENT: HIS HONOUR JUDGE WILLIAMS: This is an application for leave to appeal against the refusal of the Victims Compensation Tribunal to award compensation to the appellant.

S 39(3) of the Victims Compensation Act 1996, which was the relevantly applying Statute at the time, provides for an appeal process to the District Court. Subsection 1 requires an appellant to seek the leave of the District Court to appeal. Division 7 of the District Court Rules applies to appeals under the victims compensation legislation. Part 6 Rule 60C said that "Applications for leave to appeal must be made by way of notice of motion under Part 16". Subrule 2 requires such notice of motion be made within two months of the relevant date. In s 39(2)(a) of the Victims Compensation Act, subrule 3 requires a similar notice of motion if it is sought to extend the date in subrule 2 for the making of or seeking leave to appeal. S 39 of the Victims Compensation Act allows an appeal to be brought within three months of the relevant date, which is the date that the Tribunal's decision was notified to the person concerned. In this matter, the appeal was lodged within three months of the relevant date but the notice of motion for leave was not. Nor is there before me a notice of motion to extend the time under subrule 2 of Part 6 Rule 60C. However, I am satisfied that no prejudice has been sustained to the Victims Compensation Tribunal by virtue of the delay which occurred because the appellant's solicitor was unaware of the provisions in the District Court Rules in regard to Victims Compensation Act appeals. No great opposition was put by Mr Burchett, who appeared for the Victims Compensation Tribunal, and in all the circumstances I extend the time for filing the notice of motion required by Part 6 Rule 60C and I treat the application made by Mr Timmins of counsel for the appellant as an oral notice of motion under Part 6 Rule 60C(3) and grant that application for an extension of time in order that the application for leave to appeal can proceed. As I said leave to appeal is sought against the Tribunal's refusal to award compensation to the appellant Mr Walton under the Act. The Tribunal gave its decision on 3 October 2001. It found that an act of violence had been established. The appellant, prior to the act of violence alleged, which occurred on 6 July 1997, suffered from Tourette's syndrome. This is described as a neurologically-based disorder involving involuntary jerky movements and crying out, sometimes repetitive calling out of obscene words. For the purpose of the application for leave to appeal, I have had regard to the only medical evidence tendered before the Tribunal, namely a report from Dr Wendy Louise Walker, a consultant clinical psychologist, dated 24 April 1998. The compensable injury the appellant sought to make out before the Tribunal was shock as set out in clause 5 of Schedule 1 of the Act. As such the appellant, in order to be awarded compensation, needed to establish that the symptoms and the disability of that injury persisted for more than six weeks. Clause 5(b) sets out the injury, that is: