Sheather v VCFC Cox v VCFC [2002] NSWDC 23

New South Wales District Court

CITATION : Sheather v VCFC Cox v VCFC [2002] NSWDC 23 TRIBUNAL : Victims Compensation Tribunal PARTIES : Darren Sheather v Victims Compensation Fund Corporation Ronald Maurice Cox v Victims Compensation Fund Corporation FILE NUMBER(S) : 289; 334 of 2002 CORAM: Phelan DCJ CATCHWORDS: s39(3) - compensable injury LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: Victims Compensation Corporation v Ainsworth 2001 51 NSWLR 466; Victims Compensation Fund v Brown (2002) 54 NSWLR 668 DATES OF HEARING: 19 December 2002 DATE OF JUDGMENT: 19 December 2002

JUDGMENT: HIS HONOUR JUDGE J B PHELAN: These appeals were heard together as each essentially involves the same issue as to the application of s 39(3)(a) of the Victims Support and Rehabilitation Act 1996 dealing with appeals from the Victims Compensation Tribunal. Section 39(1) of that Act provides that an applicant may appeal with the leave of the District Court on a question of law arising in any determination of an application by the tribunal. By s 39(3)(a) the following matters are not questions of law: "(a) A determination of whether an injury for which compensation has been claimed is an injury specified in the schedule of compensable injuries, or whether it is a compensable injury of a particular description specified in that schedule." That is the section that is under review in these appeals.

Mason P stated in Victims Compensation Corporation v Ainsworth 2001 51 NSWLR 466 at 473 that: "...the intended effect is reasonably plain: the reasoning leading to a determination of either category referred to in s 39(3) is deemed not to involve any question of law, even if its language would otherwise suggest or involve legal as distinct from factual analysis." He qualified this by adding: "Nevertheless, subs (3) does not state that every aspect of a determination concerning a claim for statutory compensation is incapable of giving rise to a competent appeal. Paragraph (a) deals with a specific issue, namely whether an injury for which compensation has been claimed is an injury specified in Sch 1 or whether it is a compensable injury of a particular classification specified in Schedule 1. Section 39(3)(a) has plenty of work to do in dealing with disputes about which category in the table of injuries fits a particular situation.