Couley v Victims Compensation Fund Corporation [1999] NSWDC 6

New South Wales District Court

CITATION : Couley v Victims Compensation Fund Corporation [1999] NSWDC 6 TRIBUNAL : Victims Compensation Tribunal PARTIES : Tracey Cherie Couley Victims Compensation Fund Corporation FILE NUMBER(S) : 409 of 1999 CORAM: Puckeridge DCJ CATCHWORDS: disability - Schedule 1(5) - shock LEGISLATION CITED: Victims Compensation Act 1996 CASES CITED: DATES OF HEARING: 29/11/99 DATE OF JUDGMENT: 29 November 1999

JUDGMENT: HIS HONOUR: The appellant, Tracey Cherie Couley seeks leave to appeal in relation to a determination of the Victims Compensation Tribunal made on 27 July 1999. According to s 39(1) leave may be granted to appeal the District Court on a question of law arising in any determination of the application by the Tribunal. The question of law has been referred to in the notice of motion. That question as referred to in the notice of motion is the proper construction of "disability" in cl 5 of Sch 1 of the Victims Compensation Act and the proper construction of "impaired work or school or other educational performance" in cl 5 of Sch 1 of the Victims Compensation Act . The determination of 27 July 1999 has been annexed to the affidavit of Margaret Philomena Curran of 27 September 1999. Ms Curran is the solicitor appearing on behalf of the appellant in the matter. In that determination the learned Tribunal states that in his view "disability" as referred to in cl 5 must mean some significant impairment or significant adverse effects in an important area of functioning. The Tribunal also states that any impairment in work, school or educational performance must be significant just as the "adverse effects" referred to in the same clause must be significant. Any perusal of cl 5 of Sch 1 shows that the clause does not have the word "significant" at any relevant part in the clause. The word "significant" has been interpolated by the Tribunal and interpolated by the Tribunal in its determination. Subparagraph (e) of cl 5 states that "relevant disabilities include impaired work or school or other educational performance" but makes no reference to that impairment to mean significant impairment. The word "significant" does appear in cl (e) in the concluding part where after the words "relevant disabilities include impaired work or school or other educational performance", there appears the words "significant adverse effects on social relationships and sexual dysfunction". I read the words "significant adverse effects on social relationships and sexual dysfunction" to refer specifically to social relationships and sexual dysfunction and not to refer to impaired work or school or other educational performance. Under s 39(5) of the Act, subpara (4) indicates that: "The Court may set aside the determination and remit the matter to be considered and determined by the Tribunal in accordance with the decision of the District Court on the question of law concerned".