New South Wales District Court CITATION : Pires v VCFC [2002] NSWDC 14 TRIBUNAL : Victims Compensation Tribunal PARTIES : Vanessa Pires Victims Compensation Fund Corporation FILE NUMBER(S) : 7003; 7004 of 2002 CORAM: CATCHWORDS: assisting police - procedural fairness - s30(1) LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: DATES OF HEARING: 18 November 2002 DATE OF JUDGMENT: 18 November 2002 JUDGMENT: HIS HONOUR JUDGE NICHOLSON S.C.: 1. The Applicant seeks by Notice of Motion that she be granted an extension of time to file an application for leave to appeal in relation to a Victims' Compensation Tribunal Assessor's decision dated 17 May 2002 in relation to the appeal of Vanessa Pires and the original decision of Victims' Compensation Tribunal dated 30 August 2002. 2. She also seeks an order that leave be granted to pursue an appeal pursuant to section 39 of the Victims' Compensation Act 1996 against a determination made by the Victims' Compensation Tribunal assessor on 17 May to it and seeks an order that the respondent pay the appellant's costs and such other orders as the court thinks fit. 3. The appeal that she seeks to launch in the matter of Pires v The Victims' Compensation Tribunal puts forward three grounds: · The Appellant was denied procedural fairness in the hearing of the primary application by the Victims' Compensation Tribunal; · That the appellant was denied procedural fairness in the hearing of the appeal application by the Victims' PVTCO:CAT:2 · Compensation Tribunal; · That the appellant was denied natural justice in the PVTCO:CAT:2 18 .18/11/02 hearing of the primary and appeal applications by the Victims' Compensation Tribunal and · such other grounds as the Court in its discretion may allow. 4. The Respondent opposes the making of the orders. 5. The Applicant filed the appeal to the court within the three month period required by section 39(2)(a) of the Victims' Support and Rehabilitation Act of 1996 herein after "the Act". There is some suggestion the Rules of Court permit only two months for the filing of an appeal. That matter has not been investigated in oral submissions before me. 6. Bearing in mind, however, the provisions of the Act and the Respondent's neutral attitude at the hearing I would exercise my discretion pursuant to section 39(2)(b) if it be necessary to extend time. 7. It may be, as sometimes happens, that the Rules of Court have not been updated to take account of the Act's provisions. I shall be referring the matter to the Court's Rules Committee for its consideration. 8. The Applicant moved on the affidavits of Michael Vitgeliani of 3 September 2002 and 14 November 2002. The Respondent did not seek to tender any evidence in these proceedings, nor did the respondent seek to cross-examine Mr Vitgeliani. As I understand it the evidence is uncontested. 9. The history of this matter started with an assault upon the daughter of the Applicant, a school girl aged 14, on 4 March 1999. She was assaulted by another school girl who attended the same school, a school in the inner western suburbs. The victim was allegedly punched in the mouth by the alleged offender. 10. The matter was reported to Constable P Kazzi at the Newtown police station on 5 March 2002, that is the following day. There was no delay in reporting the matter. The victim made a statement to the police. This evidence assumes some importance in this matter. The matter did not go to court. 11. The injuries for which compensation was sought were slackening of teeth requiring dental treatment. Reports of the injuries were attached to the claim. Medical expenses in the amount of $750 were sought. Future anticipated medical expenses of $5,000 were sought and, of course, noneconomic loss was sought. 12. Solicitors for the Applicant, who are her current solicitors, filed the application for compensation with the Respondent on 20 December 1999. The application to the Respondent was made by the Applicant who, as I understand it, is the victim's mother, as tutor for the victim. 13. On 19 March 2001 the Applicant's solicitors were advised the matter would be listed for determination by an assessor at the first available opportunity on or after 23 April 2001. 14. The notice of listing also required the matter and evidence to be relied upon, including reports, submissions, invoices et cetera to be submitted seven days prior to 23 April. The solicitors were advised the determination would be solely upon documentation before the assessor on the date of the determination. 15. On 22 March the Applicant forwarded an account in the sum of $1,200 from one of the treating doctors (I suspect a dentist or orthodontist). On 7 June 2001 the Applicant's solicitors received a notice; the assessor had adjourned the determination and reasons for that adjournment were forwarded. 16. Those reasons are as follows: "The applicant claims, as a primary victim, regarding an incident that occurred on 4/3/1999 in which she was punched in the mouth by a fellow student outside Dulwich Hill High School. The Police COPS Event Report indicates the applicant was uncertain as to whether she wanted formal police action and that on 15/3/99 she attended Newtown police station and gave a retraction statement in relation to the assault stating; (to quote the report narrative) 'that the matter has since been dealt with by other means and did not want police to involve themselves in the matter'. Section 30(1)(d) of the Act provides that in determining whether or not to make an award of compensation and in determining the amount of compensation to award, a compensation assessor must have regard to whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of an offender. There are provisions in the Act which allow the compensation fund, which is a public fund, to attempt to recover moneys from convicted offenders after acts of violence have been duly investigated and prosecuted. In this regard the matter is adjourned and submissions from the applicant's solicitors invited, in addition to details of any possible civil proceedings on foot or contemplated in regard to this matter. The Registry is requested to obtain a copy of the retraction statement from Newtown police." 17. The determination before the assessor was adjourned for two months. However, it was not until 4 September 2001 that the Applicant's solicitors sought to respond to the assessor's concern. The applicant's solicitor states in his affidavit: "6. On 4 September 2001 I forwarded submissions to the Victims' Compensation Tribunal regarding the matters raised in their letter dated 5 June 2001 and adjournment notice. Attached and marked with the letter 'E' is a copy of our submissions dated 4 September 2001, the facsimile cover sheet dated 4 September 2001, and the confirmation of facsimile transmission dated 4 September 2001." 18. However that account may need some further explanation. In the appeal determination by the Tribunal the following appears: "The Particulars in support of the Grounds of Appeal claim that submissions were faxed to the Tribunal on 4 September 2001. No such fax is within the file, nor is there a hard copy. The appellant has not even attached a copy of those submissions to the Ground of Appeal. I find it exceedingly strange and hard to accept that solicitors, being aware their client's matter has been adjourned for two months to allow submissions to be filed, would take more than three months to do so, or if there were difficulties involved in framing those submissions not seek an adjournment of the determination to allow that to happen". 19. There appears in annexure E a TX Report which indicates that the fax transmission of the Solicitor's submissions was okay and as best I can work out that the transmission was sent to a number 093743120, which I have inferred was the fax number of the Respondent, or at very least to the Victims' Compensation Tribunal, or at least to the attention of the Assessor. 20. On 5 September 2001 the Applicant's solicitors received the determination of Assessor PD Soulter dismissing the application on behalf of the victim. The determination had been made on 30th August 2001. The reasons for dismissal are succinct and I set them out below: "I had previously adjourned this matter on 30 May 2001, three months ago, allowing an adjournment period of two months and inviting submissions from the applicant's solicitors pursuant to section 30(1)(d) of the Act. No advice or communication has apparently been received in regard to this. The Police COPS Event Report indicated the applicant was uncertain as to whether she wanted formal police action and that on 15/3/99 she attended Newtown Police Station and gave a retraction statement in relation to the assault stating (to quote the report narrative) 'that the matter has since been dealt with by other means and did not want the police to involve themselves in the matter' (sic). As pointed out in adjournment notice 30(1)(d) of the Act provides, in determining whether or not to make an award of compensation and in determination the amount of compensation to award, the compensation assessor must have regard to whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of an offender. There are provisions in the Act which allow the compensation fund, which is a public fund, to attempt to recover moneys from convicted offenders after acts of violence have been duly investigated and prosecuted. The apparent failure by the applicant to require an investigation of the offence has, in my view, resulted in prejudice to the fund which may have otherwise been able to recover moneys from the offender had they been successfully prosecuted. For these reasons I do not consider it appropriate for compensation to be awarded. The application is dismissed ". 21. It is clear, on that chronology, the determination had been made five days before the evidence/submissions on behalf of the applicant had been dispatched to the Assessor. Why there should be a delay of six days between the determination being made and the applicant's solicitors receiving it has not been explained. However, that delay is put into perspective by the delay of three months by the applicant's solicitors in replying to the reasonable inquiries of the assessor. 22. In the absence of explanation such delay would appear to be not only gross discourtesy to the assessor but a reckless dereliction of the solicitor's duty to his young client. 23. It is appropriate that I set out now the submissions that were made on 4 September by the applicant's solicitors. They submitted: "The day following the assault the principal [of the school] Mr Peter Dooley organised a meeting with the victim, the victim's mother and the offender. At the meeting the offender said she had mood problems and apologised for her actions. After the offender had left the meeting the principal explained to the victim and the victim's mother that the offender had problems at home and was under the care of the Department of Community Services (DoCS). The principal also indicated that he would convene a meeting between the victim and the mother with the appropriate DoCS carer to discuss the matter and offender's actions. Following the meeting with the principal the victim and the mother had a conversation with the police. The police informed the victim that the offender had no prior offences and therefore would be treated leniently by the court and that the most likely result would be a slap on the wrist and maybe a good behaviour bond. The victim and her mother were also concerned that the offender would harass the victim and possibly assault her again if she was to pursue further legal action. This was of great concern to the victim as the offender attended the same school and caught the same bus as the victim. The concern was heightened for the victim by the fact that the principal at the school had indicated that the offender did not have a stable home life and was under the care of DoCS. As a result of the attitude of the police the great concern that the victim had of being assaulted further and the belief that the principal would convene a meeting with DoCS, the victim and her mother decided not to proceed with criminal action. Despite numerous requests the principal subsequently failed to convene the meeting. The victim has not commenced any civil action and does not propose to commence any action. This being due to the concern indicated above that the victim may be assaulted further by the offender if any such action was commenced and because of the fact the offender is under the care of DoCS". 24. The Applicant appealed to the Tribunal against the determination of the compensation assessor. It was filed at the Victims' Compensation Tribunal registry on 28 September 2001. It claimed error by the compensation assessor in his/her determination to dismiss the application under 30(1)(d) of the Act. 25. Magistrate Gilmore determined the appeal on 17 May 2002. His Worship observed the appeal had been lodged in time. That he had read the file and was satisfied the appeal could be determined without a hearing. His Worship observed that the assessor had dismissed the claim pursuant to section 30(1)(D) of the act on the basis that the appellant, in retracting her complaint to the police and informing them that she did not want any police action, had failed to provide reasonable assistance in the investigation, arrest or prosecution of the person whom she said committed an act of violence upon her. 26. His Worship referred to the adjournment and failure to lodge submissions. His Worship then continued: "As no submissions were lodged by the relist date, the Assessor proceeded to determine the matter on 30 August 2001. The Particulars in support of the Grounds of Appeal claim that submissions were faxed to the Tribunal on 4 September 2001. No such fax is within the file, nor is there a hard copy. The Appellant has not even attached a copy of those submissions to the Grounds of Appeal. I find it exceedingly strange, and hard to accept, that solicitors, being aware their client's matter has been adjourned for two months, to allow submissions to be filed, would take more than three months to do so, or if there were difficulties involved in framing those submissions not seek a postponement of the determination to allow that to happen. Finally, the Appellant contends the Assessor failed to have regard to the Appellant's explanation 'as to why the matter was not pursued with police'. This is a somewhat novel assertion. The Appellant does not explain how the Assessor was supposed to have regard to an explanation within a document that was not sent [if it in fact was ever sent] until after the Determination. In my view there has been no error in the way in which the assessor determined this matter and the appeal fails". 27. It seems clear from his Worship's remarks that his Worship, notwithstanding an awareness of a claim by a solicitor of the Supreme Court of New South Wales that submissions were faxed to the Assessor, determined the submissions were not worthy of consideration. 28. His reasons for coming to the view were: (a) that no faxed copy of the submissions were to be found in the file; (b) there was no hard copy of the submissions; (c) there was no copy of the submissions attached to the grounds of appeal. He also considered the apparent dereliction of duty by the solicitor in failing to file the submissions within time, or to seek a postponement to enable the submissions to be filed. 29. None of the reasons advanced by his Worship go to the worth of the submissions. In one sense it is inaccurate to describe them as submissions. They would qualify as "material" and were capable of being considered by the Assessor had they been filed in time. The real problem here is that his Worship, aware of the claim by a solicitor of the Supreme Court of the existence of the submissions, which may have had a significant bearing on the issue which caused the assessor to dismiss the application for compensation, proceeded to dismiss the appeal without considering whether the submissions should have been admitted pursuant to section 38(3). Indeed, his Worship made no attempt to call for or obtain a copy of the submissions. His Worship's failure to take steps to obtain a copy of the submission, for the purpose of assessing whether it was evidence or material which may have qualified as being admissible because special grounds existed, amounted to a significant procedural unfairness in that the applicant was denied natural justice. 30. I regard the procedural unfairness as amounting to an error of law on the part of the tribunal. 31. Moreover, in adopting such an approach it appears to me his Worship may have lost sight of the first object of the Act spelt out in section 3(a). I recognise that to lose sight of the object of the Act does not necessarily constitute an error of law. 32. Although I take a different view from both the learned Magistrate and the Assessor as will be seen below, I have had regard to the submissions and the circumstances in which they were belatedly filed with the Assessor. It is not for me to determine their ultimate worth other than to be satisfied they are capable of providing an explanation that could be acceptable to an assessor (or in this case the Tribunal) who took a proper view of section 30(1)(d) and was properly exercising his or her discretion in determining the matter. 33. In those circumstances I am of the view the Applicant succeeds in her appeal from the Tribunal. 34. However, as I have just hinted, there are other substantial errors of law made by the Tribunal and I turn to them now. 35. The decision of the Tribunal centres upon whether the Assessor had made an error. There were three matters his Worship considered all arose in the Particulars supplied by the Applicant's solicitors in expansion of the Grounds of Appeal. It should be noted there is nothing in the Act requiring the provisions of Grounds of Appeal or full Particulars, although the practice of the Tribunal may be to require them. There can be little doubt Grounds of Appeal and Particulars of those grounds may assist the Tribunal in focusing upon the issues raised by a section 36(3) appeal. 36. The provision of Grounds of Appeal and full Particulars, however, does not absolve the Tribunal from performing fully the functions required of it by section 38 of the Act. The determination of a matter, even a matter to which section 38(2) applies, must be in accordance with section 38(4) which relevantly provides: "The Tribunal is to determine the matter in accordance with the relevant provisions of Division 5 and for that purpose a reference in that division to a compensation assessor, or the Director, is taken to be a reference to the Tribunal". 37. Division 5 is headed "Applications for Statutory Compensation", and deals with the method of determining applications by the assessor, reasons for not making an award or reducing the amount of compensation payable by an assessor, and other duties of the assessor. 38. Section 38(4) clearly required the Tribunal to form its own views of the "matter in accordance with the relevant provisions of Division 5" and for that purpose a reference in Division 5 to "a compensation assessor" is to be taken as a reference to the Tribunal. The importance of the word "a" in the phrase " a compensation assessor" should not be lost on the Tribunal. It is not a reference back to "the" particular compensation assessor who made the original determination. That makes it clear the Tribunal is not reviewing the original jurisdiction to confirm findings of fact or law, but (subject to section 39(3)) while limited by the evidence and material before the original assessor, the Tribunal is to exercise its own discretion afresh subject to the identical criteria contained in Division 5 that bound the original assessor. 39. It is well recognised in law that tribunal's viewing the same evidence and material may exercise their discretion in the same way or differently to other tribunals and consequently may arrive at the same or a different, although legally proper, result. The important factor, of course, is that the discretion, however else exercised, must be exercised according to proper principles. It is clear that the legislature intended that the above two propositions would be the mechanism by which appeals would be determined from the original assessor. 40. It is apparent from the decision of the Tribunal that it has not done this. Consequently it has failed to exercise its jurisdiction in accordance with the provisions of section 38(4). I am satisfied in so doing it has fallen in to error on a matter of law. 41. The Tribunal held that there had been no error in the way in which the Assessor determined the matter. In the light of such a finding I am required to review the Assessor's decision to ascertain whether the decision was one that was error free as found by his Worship. What I am concerned with here, of course, is error of law rather than an error in his or her fact finding task. 42. The Assessor, having found that the victim had failed to provide reasonable assistance to any person or body duly engaged in the investigation of an act of violence or in the arrest or prosecution of an offender went on to say: "There are provisions in the Act which allow the compensation fund, which is a public fund, to attempt to recover moneys from convicted offenders after acts of violence have been duly investigated and prosecuted. The apparent failure by the applicant to require an investigation of the offence has, in my view, resul ted in prejudice to the fund which may have otherwise been able to recover moneys from the offender had they been successfully prosecuted". (emphasis supplied) 43. The Assessor's finding that "the apparent failure by the applicant" et cetera, was not one open on the evidence. The finding was expressed in the past tense as a definite and accomplished prejudice. There was no reference to any evidence establishing such prejudice to the fund. 44. There was evidence the victim was a 14 year old school girl. The alleged offender was also a school girl. Issues as to whether the alleged school girl offender, if taken to court by police, would have been convicted were not considered. Indeed, even assuming the prosecution were successful the very real likelihood is that there would have been no "conviction" although there may have been a finding of guilt. It must be remembered that the alleged victim would, all things being equal, have been tried in the Children's Court pursuant to the jurisdiction exercised there. 45. Even assuming a finding of guilt the question of whether the Compensation Fund could recover against a school girl offender was not considered. In my view the finding made by the Assessor was not open to him or her on the evidence. As such an error of law was made. That error of that error of law was not recognised by the Tribunal. 46. More importantly, however, is whether such a matter is an appropriate matter upon which the exercise of discretion should have hinged in this case. There are sound policy reasons why "prejudice to the fund" should not be regarded as a relevant matter to an application such as this. The objects of the Act make it clear that the purpose of the Act is to provide support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme. Any compensation coming from the fund will be a prejudice to the fund. While it may be desirable that the victim cooperate with authorities, such cooperation is not necessarily any guarantee the fund will succeed in recouping payments from an alleged offender. 47. "Prejudice to the fund" does not appear as any matter raised in section 30(1) the statutory provisions for not make an award or reducing an amount of compensation payable. 48. Unaided by authority my own view is section 30 does not provide a closed category code for refusal but rather lists a number of matters which one must have regard to when exercising his or her discretion. That being so there may be cases where "prejudice to the fund" may be a factor requiring consideration in the exercise of discretion. However, if the legislature was concerned about awards being made which prejudiced the fund one would have expected such a matter to have been specified in section 30(1)(b). In those circumstances I would imagine that "prejudice to the fund", while it may be a matter requiring consideration in the exercise of discretion, would be a rare matter. 49. In any event, "prejudice to the fund" should not be determined without at least weighing up the nature of the injuries received by the victim; the subjective features of the victim, including his or her age; and assessing the true merits of the cause of the prejudice to the fund. In my view the Assessor's exercise of discretion centring upon a perceived (rather than factual) prejudice to the fund amounted to error. 50. As I said earlier no prejudice to the fund was established. 51. The final matter I turn to concerns the Assessor's application of section 30(1)(d). It will be recalled the assessor found: "The Police COPS Event Report indicated the applicant was uncertain as to whether she wanted formal police action and that on 13/3/99 she attended Newtown police station and gave a retraction statement in relation to the assault stating... 'that the matter has since been dealt with by other means and did not want police to involve themselves in the matter'. As pointed out in my adjournment notice, section 30(1)(d) of the Act, in determining whether or not to make an award of compensation, and in determining the amount of compensation to award a compensation assessor must have regard to whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of an act of violence or in the arrest or prosecution of an offender. There are provisions in the Act which allow the compensation fund, which is a public fund, to attempt to recover moneys from convicted offenders after acts of violence have been duly investigated and prosecuted. The apparent failure by the applicant to require an investigation of the offence has, in my view, resulted in prejudice to the fund...". 52. It is clear from the Assessor's remarks he or she has found the victim attended the Newtown Police Station and told the police the matter has since been dealt with by other means and she did not want police to involve themselves in the matter. The Assessor has found an "apparent" failure by the victim to "require" an investigation of the offence. That action by the victim, it would seem from the reasoning of the Assessor, resulted in prejudice to the fund. 53. Section 30(1)(d) provides that in determining an award and in determining the amount of compensation to award a assessor must have regard to whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of an act of violence or in the arrest or prosecution of an offender. 54. There can be no failure to provide reasonable assistance unless there is a request to do so. There was no evidence of any request by any person or body duly engaged in an investigation. Before an assessor refuses to make an award or reduce the amount of compensation the assessor must be satisfied on the balance of probabilities: · That there was a person or body duly engaged in the investigation of the act of violence, or in the arrest of, or in the prosecution of the offender. · That at least a request was made or an opportunity was given by that person or body to the applicant for compensation to provide assistance. · That the assistance sought from the victim was reasonable assistance. · That the victim when so requested or offered the opportunity failed to provide assistance and thereafter maintained that failure. 55. In the present case there was no evidence of any person or body duly engaged in an investigation of the act of violence by the alleged offender. There was evidence the matter had been reported and a statement taken. 56. There was no evidence of any request for any assistance and therefore it follows no evidence of a request for reasonable assistance. 57. There was no evidence the victim or the applicant, when so requested, and thereafter, had failed to provide and maintained that failure to provide the reasonable assistance sought. 58. Further, an "apparent" failure to would not amount to proof of the failure required by the section. The Assessor spoke of an "apparent failure" by the applicant to require an investigation of the offence. 59. With respect, assuming it was open to the victim not to "require" an investigation by police of the matter such a situation would not constitute "a failure to provide reasonable assistance to any person duly engaged in the investigation of the act of violence" nor, for that matter, in the arrest of or prosecution of that person. What is first needed is the existence of an investigation or an attempt to arrest, or a prosecution by a person or body duly engaged in it. 60. The Assessor has erred in applying section 30(1)(d). The matter was raised in the Grounds of Appeal before the Tribunal and in the Particulars. The Tribunal has also erred in holding that the assessor made no error. His Worship's finding that no error had been made by the Assessor was a finding of fact upon which his Worship exercised his discretion to dismiss the appeal. I am satisfied that as a matter of law such a finding was not open to his Worship on the material before him. Indeed, I am satisfied that his Worship repeated the same errors of law as the assessor in coming to the finding of no errors. In doing so his Worship made an error of law. 61. Pursuant to section 39(5)(b) I set aside the Determination of the Tribunal 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 my decision on the questions of law concerned. 62. I order that the respondent pay its own costs. 63. I am of the view that the conduct of the then instructing solicitor, who still maintains an appearance, has contributed substantially to this matter going off the rails. For that reason I order McMahons Solicitors, to pay the Applicant's costs. 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.