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. Section 39(3) does not address the causation injury as to whether a compensable injury was a direct result of an act of violence." In that case the tribunal had mistakenly interpreted cl 5 as it then was of the schedule to mean that the act of violence must have caused shock or psychiatric disorder. Thus the issue did not involve a determination of whether an injury was an injury specified in the schedule, or whether it was a compensable injury of a particular description specified in that schedule. A similar approach was taken in Victims Compensation Fund v Brown (2002) 54 NSWLR 668 where the construction of the then cl 5 of the schedule was concerned. Mason P said: "..the matter the District Court was called upon to address was whether the threshold of cl 5(a) was passed. For reasons already stated, cl 5(a) is elliptical: it really poses the issue whether symptoms and disability as a direct result of an act of violence persisted for more than 6 weeks. This looks back to s 14 and s 15 and necessarily goes beyond the scope of s 39(3)(a). A dispute about the meaning of cl 5(b) would engage s 39(3)(a), because it would touch upon the determination of whether the injury of "shock" was "specified" in the Schedule." In the case of Sheather the tribunal found that the psychological evidence was insufficient to establish that the appellant suffered the compensable injury of either category 1, chronic psychological or psychiatric disorder that is moderately disabling, or category 2, chronic psychological disorder that is severely disabling. But for s 39(3)(a) I might have been attracted to the proposition that the tribunal's interpretation was not a factual matter but involved an issue of legal interpretation. In the case of Cox because the application was lodged after amendments to the Act in July 2000 the tribunal was precluded from finding a category 1 disorder because of an amendment confining recovery to specific serious crimes of which the subject was not one. It had not been established that the applicant was severely disabled in accordance with category 2. In each case the interpretation and application of the table in the schedule involves a consideration of the meaning of "description of injury, and the category of injury" involved. These matters directly involve the application of s 39(3)(a). Leave in each case to appeal must thus be refused. In respect of appellant counsels' additional submissions about cl 4 in the case of Cox, it seems clear that the tribunal understood the effect of cl 4 in concluding that he was not severely disabled in his day to day functioning. The decision reflects that if he had been severely disabled cl 4 would then have been enlivened. I do not understand the tribunal in that case to have made the mistake that was made in Ainsworth . In respect of submission 6 and 7 I raised the question referred to therein but concluded that it was without merit. In each case the appellants are ordered to pay the costs of the appeal, noting however that the matters were heard together. 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