Wilson v Victims Compensation Fund Corporation [2001] NSWDC 29

New South Wales District Court

CITATION : Wilson v Victims Compensation Fund Corporation [2001] NSWDC 29 TRIBUNAL : Victims Compensation Tribunal PARTIES : Stephen Wilson Victims Compensation Fund Corporation FILE NUMBER(S) : 1038 of 2001 CORAM: CATCHWORDS: question of law - question of fact - s39(3) - shock LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Donnelly v VCFC DATES OF HEARING: 17/5/01 DATE OF JUDGMENT: 17 May 2001

JUDGMENT: HIS HONOUR: In this matter by notice of motion filed on 12 February 2001 the plaintiff seeks leave pursuant to s 39 of the Victims Support and Rehabilitation Act (1996) to appeal against a determination on 13 December 2000. Annexure (a) to that notice of motion sets out the wish of the applicant to appeal on questions of law and the document goes on to define in more particular circumstances to which I will return, the nature of those questions. The issue can be very shortly summarised. In its determination the Victims Compensation Tribunal found in relation to a particular aspect of the applicant's claim that the applicant had satisfied the tribunal that the compensible injury of shock had been established. The tribunal went on to say, "As to the period of shock I am not satisfied on the basis of either report that it has been established that the appellant suffers from permanent symptoms and disability." That passage is taken from p 10 of the annexures to the affidavit of David James Sweeney sworn in this matter yesterday, namely 16 May 2001. What the applicant wishes to argue is that instead of coming within the third category of shock, namely lasting over 28 weeks (but not permanent), the tribunal should have found "permanent symptoms and disability" in accordance with the terms of schedule 1 to the Act as it was then in force. Objection is taken to the competence of the notice of motion on the basis that it is not open to the applicant to launch this appeal because either it is not a question of law in the first place under the ordinary understanding of the law or on the basis that s 39(3) of the Act prohibits such an appeal as is proposed. Section 39(3) reads as follows: "For the purposes of this section 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 compensible injuries or" (and this is the relevant part) "whether it is a compensible injury of a particular description specified in the schedule." In my judgment those words, namely "a particular description", apply to what this appeal as illustrated in annexure (a) to the notice of motion is all about. On behalf of the applicant it is argued that the word "determination" in that sub section incorporates two concepts. First of all it incorporates the conclusion reached but it does not, or should not be read so as to prevent a challenge to the basis upon which the conclusion was reached. I was referred to a number of cases which are conveniently summarised in Azzopardi v Tasman UEB Industries Limited which is to be found in 1985 4 NSWLR p 139, put forward as showing that the sub stratum or the reasoning behind or the absence of any reasons for a conclusion can be regarded as a matter of law. Azzopardi itself contains a particular passage which is to be found at p 156 and is indeed taken up in another case to which I was referred, Donnelly v Victims Compensation Fund and was quoted with approval by Handley JA. It reads as follows: "Alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot since it assumes that the evidence has been accepted. The party saddled with the onus cannot assume in his favour that the evidence is or ought to be accepted since this trench is upon the liberty of the tribunal of fact to accept or reject any evidence. The determination of facts by a reasoning process marred though it be by a patent error, illogicality or perversity will never be vulnerable to attack as an error or law." It is not said nor could it be said in my view, given regard to the passage which I have read out from the findings of the tribunal, that there was no reasoning process applied to the findings. I repeat the tribunal said it was not satisfied on the basis of the material before it that it was proper to describe the appellant's condition as permanent. Returning to the meaning of s 39(3), in my judgment this Act having been passed in 1996 and recently updated, was passed in the knowledge of the various legal decisions that had taken place and in my judgment determination includes the process of determination and does not just identify the result. Accordingly I uphold the respondent's argument that determination within that section covers what has happened in the instant case and by the terms of 39(3) has been taken out of matters that can be regarded as questions of law. I should add that by 39(1) of the same Act appeals can only be pursued to the District Court on questions of law. However in deference to the argument before me I should also deal with the submission on behalf of the applicant that the law still applies in Azzopardi. Despite the passage to which I have referred, it is said that the passage at p 156 is not in any way in conflict with the submission that one can still visit the basis of the determination. It is said that there were primary facts found in this case which if looked at, would prevent the final determination being possible and accordingly either to use the words in the cases, within or without the statutory definition. With great respect to Mr Stowe I do not follow that argument. I think it has its own inherent inconsistency because there were on any footing primary facts found here. For instance it was found that the applicant had established the compensible injury of shock and it seems to me what is being sought to be done here is the very thing s 39(3) was passed to prevent which is to pursue arguments about a classification or a particular description based on the interpretation of medical reports which is and always has been, the principal duty of the tribunal at first instance although it is fair to say that the tribunal became involved on appeal from an assessor. Nevertheless the tribunal in my judgment was the Court of first instance on the fact finding exercise and what is being done here is sought to interfere with a question of fact as opposed to a question of law. For those reasons which I regret are not as elegantly expressed as the arguments which were addressed to me I dismiss the motion.