Everson v Victims Compensation Fund Corporation [2000] NSWDC 3

New South Wales District Court

CITATION : Everson v Victims Compensation Fund Corporation [2000] NSWDC 3 TRIBUNAL : Victims Compensation Tribunal PARTIES : Kerry Everson Victims Compensation Fund Corporation FILE NUMBER(S) : 6381 of 2000 CORAM: CATCHWORDS: leave - s29(2) :- balance of probabilities leave - s29(2) :- standard of proof LEGISLATION CITED: Victims Compensation Act 1996 Workers Compensation Act Donnelly v Victims Compensation Fund Corporation and Anor 82 ACR; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR ; Fleming v White; CASES CITED: Gamble v Hines 1982 ACR 448; Rejfek v McElroy 112 CLR 517; Briginshaw v Briginshaw 60 CLR ; Regina v PAK DATES OF HEARING: 19/10/00 EX TEMPORE 19 October 2000 JUDGMENT DATE :

JUDGMENT: DCZ1294 SLB-K1 .19/10/00 8 HIS HONOUR: This is an application for leave to appeal against the decision of Mr Gabb sitting as a member of the Victim's Compensation Tribunal. It comes to this court by way of notice of motion. I grant an extension of time to appeal this court pursuant to order 1. sought in the notice of motion dated 16 August 2000. I grant leave to appeal and I uphold the appeal. I will now give my reasons.

While it is true that the policy of the Victim's Compensation Act is one of restricting the granting of leave to appeal and hearing of appeals, to clear cases of error of law, this seems to me to be such a case.

The reason I say that with such conviction is that it is clear to me from a reading of the judgment of the learned magistrate, Mr Gabb, who sat as a member of the tribunal, that he mistook his task in the following way. He was required to decide the issues before him according to a certain standard of proof. That standard of proof is proof on the balance of probabilities. It seems to me that he did not abide by the requirement imposed upon him to do that. I was referred by Mr Burchett, who appears for the respondent, to two cases in particular. The first is Donnelly v Victim's Compensation Fund Corporation and Anor (82 ACR p 55). In that case the majority, Handley and Sheller JJA (Kirby ACJ dissenting), found that it had no jurisdiction to review the decision of Luland DCJ for error of fact finding, or for non-legal error in the exercise of judicial discretion. The claimant did not contend that on their face the Judge's reasons contained an error of law. The court held that the claimants' submissions did not raise a question of law, and of course I am bound by that decision. That decision echoes in some ways what was said in the well known case of Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR p 139. This was a decision in relation to the Worker's Compensation Act . As Glass J.A. explained at p 156. "...alleged insufficiency of evidence to prove a fact always raises a question of law, but alleged insufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted...