Hatzipanagiotidis v Victims Compensation Fund Corporation [1999] NSWDC 9

New South Wales District Court

CITATION : Hatzipanagiotidis v Victims Compensation Fund Corporation [1999] NSWDC 9 TRIBUNAL : Victims Compensation Tribunal PARTIES : Harry Hatzipanagiotidis Victims Compensation Fund Corporation FILE NUMBER(S) : 839 of 1999 CORAM: Robison DCJ oral hearing - procedural fairness :- section 39 oral hearing - procedural fairness :- section 38(2) CATCHWORDS: oral hearing - procedural fairness :- section 39(1) oral hearing - procedural fairness :- denial of natural justice oral hearing - procedural fairness :- lack of evidence oral hearing - procedural fairness :- Schedule 2, Part 3 LEGISLATION CITED: Victims Compensation Act 1996 Victims Compensation Rule 1997 Hatley v Victims Compensation Fund Corporation (1 April 1999); CASES CITED: Tadros v Victims Compensation Fund Corporation; Torrealba v District Court of NSW and Victims Compensation Corporation Fund DATES OF HEARING: 12/11/1999 DATE OF JUDGMENT: 12 November 1999

JUDGMENT: DCV1865 8/00 BAH-C1

~12/11/99 6

HIS HONOUR: In this matter the appellant seeks an order that leave be granted to him to institute an appeal under s.39 of the Victims Compensation Act against a decision of the respondent dated 14 May 1999 following the appellant's appeal dated 11 February 1999. It seems to be common ground that the appellant sustained quite serious injuries in an unprovoked assault upon him constituted by the infliction of gunshot wounds at close range on 28 December 1997. I would say at the outset the Court can only have considerable sympathy for the appellant for the predicament that he found himself in at that time, and there is no doubt that the appellant did sustain the considerable degree of injury having regard to the circumstances of that event. Not surprisingly the appellant lodged a claim for compensation pursuant to the provisions of the Victims Compensation Act (1996). He was represented at the early stage by a solicitor who no longer acts for the appellant. I note Mr Pasternacki who appears for the appellant acted for him in the latter stages of the proceedings before the Tribunal, and, indeed, as I understand the position he conducted the appeal on behalf of the appellant when the matter was brought up to the Tribunal stage. He, of course, appears for the appellant on this appeal to this Court. The matter was determined by an assessor on 12 November 1998 and after the appeal was lodged the Tribunal determined the matter on 10 May 1999. I have had the benefit of considering the decision of the learned Tribunal. I copy of that decision is before me. It is annexed to the affidavit of Mr Pasternacki, sworn 13 July 1999. That affidavit, in essence, sets forth the grounds of the appeal, not only to the leave application, but also in relation to the substantive application. I have read the reasons for the determination enunciated by the learned magistrate and tribunal member. Indeed it is a requirement of the legislation that only magistrates be appointed to that position in the Tribunal. Magistrates, being judicial officers, as they are, are required, as all judicial officers, to consider every application before them in a fair and proper way, impartially, and having in mind the well settled principles of law as to procedural fairness. I have also considered the respondent's submissions, both written and oral. The respondent relies on a decision of his Honour Judge Delaney of this Court in the appeal of Hatley v Victims Compensation Fund Corporation (1 April 1999). The respondent also relies on another decision of this Court of his Honour Judge Patten of 24 August 1999 in the appeal of Tadros v Victims Compensation Fund Corporation. Those appeals were brought under the provisions of the current legislation. I refer to the legislation as "the current legislation" because under the earlier legislation, matters of this nature were determined on common law principles, effectively, the District Court was required to hear matters of appeal on a de novo basis and apply the principles of common law in the exercise of its deliberations. That regime has, to a large extent, been replaced by the new Act, that is, the current legislation. There is now a new procedure, by which victims of acts of violence can claim and pursue their rights to compensation, but it is quite clear from the overall tenor of the Act, as well as the second reading speech by the Attorney General, that such claims are now severely restricted. Indeed, matters of compensation are now classified and placed in various categories as set forth in the legislation. So, the discretion and the principles of common law, previously found in the earlier legislation, are now severely restricted by this legislation. That is in accordance with the legislative intent, and that is, in any event, clearly indicated by virtue of the provisions of s.39 of the Victims Compensation Act. Under s.39 subs (1) "[a]n applicant for statutory compensation may, with the leave of the District Court, appeal to [this] Court on a question of law arising in any determination of the application by the Tribunal". So appeals are now limited to matters of law, not fact. I am aware of the judicial pronouncements as to what is meant by an error of law, and, of course, in that context, the Court needs to consider the material relied upon by the appellant in this application for leave, and it is material that I have considered very carefully, having regard to the submissions capably made on behalf of this appellant by Mr Pasternacki who has, I must say, gone into some considerable detail in his affidavit and he relies on a number of grounds, but in particular it would appear that in so far as the leave application is concerned, they are confined to three important issues. It is asserted at the outset that Mr Hatzipanagiotidis has been denied natural justice when the determination was made by the learned magistrate without calling for a hearing, in the sense that it is asserted that certain findings were made which are adverse to the appellant. That is a serious submission and one in which I have given careful consideration, as with the others. Secondly, as a follow on from that submission it is further asserted that in making such findings adverse to the appellant there was a denial of natural justice. There is a further ground in that the Tribunal erred in law in finding that it was a requirement that the appellant submit evidence when the rule only requires a comprehensive description of the injuries and other matters claimed. In so far as that last submission is concerned I do note the provisions of the rule, which have been set forth in the affidavit of Mr Pasternacki. He refers to the provisions of the rule on the second page of his affidavit. He recites the rule as follows, that "[a]n application for statutory compensation is to include a description of the compensable injuries for which compensation is sought". He also refers to "[t]he description of an injury is to be given in a manner that identifies the relevant item to which the injury relates in the schedule of compensable injuries in the Act". He submits "that there is no mandate contained in the Rules or the Act to dismiss an appeal for lack of evidence, nor to assess an Application without requisite evidence". He submits "that the Tribunal is inquisitorial in jurisdiction (as opposed to adversarial)". He refers to the Act in support of that, in particular he refers to the provisions of s.28 of the Act. That is a provision whereby "[a] compensation assessor may require an applicant for statutory compensation to undergo an examination..." That provision on its own is a permissive provision. There is no direct requirement upon an assessor and, in the case of a Tribunal, when it considers an appeal, to make such a requirement. It is, if anything, a provision which aids the appropriate procedures for the determination by the Tribunal of an application before it. It is a very broad discretion vested in the assessor and the Tribunal, and indeed it is one of the many broad discretions vested in this statutory body. So, taken on its own that, of itself, in my view, does not make the Tribunal, nor the assessor, an inquisitorial body. For example, Courts themselves may require certain things to be undertaken upon its own motion, or on the application of others. These are designed in order to assist the Court, and in this case the Tribunal or assessor, in forming an appropriate view on the available evidence. I refer to the question of "available evidence" because I do note the reliance upon the provisions of the rule to that end. In my view, that is a position which is somewhat untenable. It is quite clear that a Tribunal would be in error if it simply confined its consideration to matters which do not amount to evidence, that is, submissions do not amount to evidence per se. Submissions are usually made on the basis of evidence, properly admissible, already received. They can address matters of evidence which have been relied upon and considered. DCV1865 8/00 BAH-C1-D1