Peterson v Victims Compensation Fund Corporation [2002] NSWDC 16

New South Wales District Court

CITATION : Peterson v Victims Compensation Fund Corporation [2002] NSWDC 16 TRIBUNAL : Victims Compensation Tribunal PARTIES : Janelle Peterson Victims Compensation Fund Corporation FILE NUMBER(S) : 1492 of 2002 CORAM: CATCHWORDS: further evidence or material - s38(3) - procedural fairness LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: Atkins v National Australia Bank (1994) 34 NSWLR 155; Nesbitt v VCFC DATES OF HEARING: 15/7/02 DATE OF JUDGMENT: 15 July 2002

JUDGMENT: HIS HONOUR ACTING JUDGE ANDREW: This is an application that time be extended for the filing of a motion for leave to appeal, and that leave to appeal be granted against a determination of the Victims Compensation Tribunal made on 30 November 2001. The grounds of appeal are: 1. The Tribunal erred in its consideration of the appellant's application to adduce further evidence under section 38 (3) of the Victims Support and Rehabilitation Act 1996 in that it failed to consider the nature of the further evidence sought to be adduced. 2. The Tribunal denied the appellant procedural fairness by taking into account two medical reports dated 25 November 1999 and 8 June 1999 from Tanya Davis, clinical psychologist, without providing a copy to the appellant and requesting whether she wished to make further submissions. The appellant also sought to add two additional grounds, namely: (i) That the Tribunal erred in holding that there was no evidence to support a finding that the appellant had sustained a compensable injury. (ii) That the Tribunal erred in failing to give any or any adequate reasons as to why the two reports of Ms Davis did not support a finding that the appellant had sustained a compensable injury. The background of this matter is that the appellant, Janelle Peterson, sought compensation as a primary victim following an incident on 8 September 1996. There was and is no dispute that she was placing coins in a parking meter when she was confronted by an unknown man who ran off with her handbag after a brief struggle. The application was dismissed by the Assessor on the ground that "in the absence of any medical evidence showing a compensable injury the application is dismissed. No costs are awarded". The appellant appealed to the Victims Compensation Tribunal primarily on the ground that the Assessor had failed to consider medical evidence relating to the appellant's psychological state and was thereby denied natural justice. The appellant indicated it would rely on medical evidence, that is a medical report of Tanya Davis, clinical psychologist. By determination dated 30 November 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. Pursuant to section 39 of the Victims Support and Rehabilitation Act the District Court on appeal may only: (a) affirm the determination of the Tribunal or (b) set aside the determination and remit the matter to be considered and determined again by the Tribunal, either with or without the hearing of further evidence in accordance with the decision of the District Court on the question of law concerned. Under section 39 of the Act an appellant has three months within which to institute an appeal. That appeal is lodged within the three month period as provided by the Act but outside the two months period provided by the District Court Rules. The Act also provides such further time as the District Court may in exceptional circumstances allow. As the appeal was lodged within time under the Act although not under the rules, I give leave to extend time for the filing of the motion for leave to appeal, and leave is granted to appeal against the Determination of the Victims Compensation Tribunal of 30 November 2001. In relation to the two further grounds of appeal, I am satisfied that the respondent is not prejudiced by the addition of those grounds even though they have only had notice shortly before the hearing of this appeal, and in the circumstances I give leave to add those two further grounds. Ground 1 - that the Tribunal failed to consider the nature of further evidence sought to be adduced. Section 38 (3) of the Act provides that the appeal to the Tribunal is to be determined on the evidence and material available to the Assessor, but 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 appellant sought leave to admit the evidence of the psychologist, Ms Davis. The Tribunal found that the appellant had not established special grounds, or that the material referred to matters occurring after the Determination appealed against and leave to permit that evidence was declined. The appellant would have to show that the Tribunal failed to exercise its discretion properly within the meaning of section 38 of the Act and thereby committed an error of law. In Atkins v National Australia Bank (1994) 34 NSWLR 155 at 160 Clarke JA (with whom Sheller JA and Powell JA agreed on this point) said: "Although it is not possible to formulate a test which should be applied in every case to determine whether special grounds exist, there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions must be met before fresh evidence can be admitted. These are: