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: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict. (3) the evidence must be credible." The appellant contends that the Tribunal failed to consider the second and third legs of those principles. The Tribunal took into account the factors surrounding the failure of the appellant's solicitor over a two year period to obtain a psychological report, the frequent warnings and opportunity which have been given to adduce additional evidence, and came to the conclusion that there had been a failure of due diligence. The Tribunal concluded that the appellant had failed to establish special grounds or that the material referred to matters occurring after the Determination appealed against. It found that there was no evidence to support a finding that the appellant had sustained a compensable injury. In my view the Tribunal was exercising a discretion conferred upon the Tribunal in rejecting the further medical evidence and in finding that the appellant had failed to establish any special ground for its admission. The tribunal specifically took into account the principles outlined in Atkins case (supra). I am unable to find any error of law or miscarriage of justice in that finding which, in my view, was open to the Tribunal to make. In my opinion that finding was open to the Tribunal, and I am unable to find any error of law or miscarriage of justice in so doing. Ground 2 - that the appellant was denied procedural fairness by taking into account further medical reports which were not made available to the appellant. These are reports which are referable to the appellant having received counselling. They are reports dated 25 November 1999 and 8 June 2000. The Tribunal said as follows: "On 12 April 1999 the appellant applied for two hours counselling. This application, which is dealt with independently from the claim for compensation, was approved and Ms Davis was appointed to provide counselling. In her treatment report to the Director dated 25 November 1999 Ms Davis stated: "She benefitted from the opportunity to have the effects of the assault normalised and to evaluate her on-going protective strategies. She was dealt arousal reduction techniques. Ms Peterson was given the opportunity to return to counselling but made no contact. No further hours are requested. On 8 June 2000 Ms Davis reported the appellant had contacted her seeking further counselling because the appellant had experienced hypervigilance when she holidayed overseas. Ms Davis suggested `a further four hours of counselling would be of benefit in order to continue a cognitive behavioural treatment of her over-estimation of the risks to her safety when in public'. This application was approved". The Tribunal, prior to citing these two reports, outlined the intention of Parliament in introducing the 1996 Act that, namely, that the Government considered that there was a need for the Victims Compensation scheme to provide a greater focus on the rehabilitation of crime victims: "Accordingly the reform proposal provides access to counselling to victims eligible for an award of compensation to help address the trauma and psychological impacts often experienced by victims of serious violent crime". In my view the citation of these two reports was a recitation of the history of the appellant's application relevant to whether the leave should have been granted to admit further medical evidence. The Tribunal made no findings in relation to those reports. I think this is distinguishable from the similar case of In The Matter Of The Appeal of Margaret Maude Nesbitt, District Court, unreported Friday 22 February 2002 per Judge Cooper, where it was found that the Tribunal was in error when it made findings of fact based upon further medical evidence which was not made available to the appellant. Neither of these two reports here gave any psychological assessment or of any attempt to link the appellant's symptoms to the compensable injury of shock. They were of no assistance to the appellant. They were, as I have said, a recitation of the background to the matter and did not form the basis of any finding by the Tribunal. They were a recitation of the facts relevant to an application for counselling which was dealt with separately from the claim for compensation. The appellant's solicitor was advised after the preparation of these reports to lodge all the relevant material intended to be relied upon but failed to do so. I can find no error of law under this ground. Amended Ground 1 - That the Tribunal erred in holding that there was no evidence to support a finding that the appellant had sustained a compensable injury. Because the Tribunal refused leave to admit the further psychological evidence, the Tribunal concluded that: "There being no challenge to the Assessor's Determination that there was no evidence to support a finding that the appellant had sustained a compensable injury, the appeal must fail". I agree that determining whether there is any evidence upon which to make a finding involves a question of law. But the finding is only that there was no challenge to the Assessor's Determination that there was no evidence to support a finding that the appellant had sustained a compensable injury. As the finding is that there was no challenge to the Assessor's Determination, I am unable to see that that amounts to an error of law. Amended Ground 2 - Failure to give adequate reasons why the two reports of Ms Davis did not support a finding that the appellant had sustained a compensable injury. The two reports were referable to a separate application for counselling. They were referred to by the Tribunal as part of the history of the matter. In the context of allowing further medical evidence they were not referable to any finding of the Tribunal. Neither of the reports related to the appellant's symptoms referable to compensable injury of shock. Those reports are not germane to Ground 1 of the appeal that: "There is additional evidence and material which gives rise to special grounds to allow evidence which concerns matters occurring after the determination was made by the Compensation Assessor". I cannot see any error of law in failing to give reasons why these two reports did not support a finding that the appellant had sustained a compensable injury. For all of these reasons the appeal is dismissed. I affirm the decision of the Tribunal in this matter. I award costs to the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.