Marshall v Victims Compensation Fund Corporation [2000] NSWDC 8

New South Wales District Court

CITATION : Marshall v Victims Compensation Fund Corporation [2000] NSWDC 8 TRIBUNAL : Victims Compensation Tribunal PARTIES : Kathleen Marshall Victims Compensation Fund Corporation FILE NUMBER(S) : 60 of 1999 CORAM: Graham DCJ CATCHWORDS: exacerbation of pre-existing condition - Schedule 1 - s38(3) - special grounds :- Clause 4 of Schedule 1 LEGISLATION CITED: Victims Compensation Act 1996 Victims Compensation Act 1987 CASES CITED: DATES OF HEARING: 15/3/00 DATE OF JUDGMENT: 15 March 2000

JUDGMENT: DCZ818 EMM-F2

~15/03/00 3

HIS HONOUR: This is an application for leave to appeal and (if that is successful) an appeal against a determination of the Victims Compensation Tribunal. The appeal is governed by the provisions of the Victims Compensation Act 1996. So far as the leave to appeal issue is concerned, the respondent is unable to point to any prejudice which would flow from the grant of leave. The period of time is not great and, in the circumstances, it would be appropriate to grant leave to appeal. Four questions of law are posed for the consideration of the court on appeal. Those questions are amplified in the proposed Notice of Appeal but I think are more conveniently specified in paragraph two of the application for leave to appeal. Appeals to the District Court under the 1996 Act, are appeals which are available on a question of law only, that is on a question of law arising in any determination of an application by the tribunal. See s 39. This contrasts with the procedure under the previous legislation of 1987 which provided for an appeal by way of hearing de novo. The court is restricted as to the orders which may be made by subsection 5 and as to categories of questions of applications which may be the subject of appeal in subsections 3 and 4, to the extent that leave is necessary for an appeal to be brought to the court. This is an appropriate case in which leave should be granted. In a nutshell the applicant was unsuccessful when the matter was dealt with by a compensation assessor and his determination was made on 13 August 1998. An appeal was brought to the Victims Compensation Tribunal which published its reasons for appeal determination on 20 May 1999. The original application related to a single act of violence being an assault occasioning actual bodily harm which was perpetrated on the appellant by her former de facto partner on 7 March 1996. It appears from the evidence which was placed before the assessor that there had been a lengthy and abusive relationship during which it is asserted that a number of serious acts of assault took place at the hands of the appellant's partner. The evidence also indicated prior childhood problems on the part of the appellant and a significant piece of material, both in the assessor's determination and in the reasons for appeal determination, appears in a psychologist's report dated 28 July 1997. Whilst it is clear that that report generally asserts that the appellant suffers from post traumatic stress disorder, under the heading "exposure to traumatic event" (which refers to the incident on 7 March 1996) the author says: "Whilst it is impossible to apportion causality of Kathleen's PTSD response to the one event as detailed this event constituted the serious threat to her life. Kathleen believed that she could be killed. This was the final assault after a history of prolonged physical, sexual, psychological and emotional abuse by Scott."