Lawless v Victims Compensation Fund Corporation [2001] NSWDC 31

New South Wales District Court

CITATION : Lawless v Victims Compensation Fund Corporation [2001] NSWDC 31 TRIBUNAL : Victims Compensation Tribunal PARTIES : Andrew Wilson Lawless Victims Compensation Fund Corporation FILE NUMBER(S) : 626 of 2001 CORAM: Sidis DCJ CATCHWORDS: further evidence or material - s38(3) - special grounds LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: Victims Compensation Fund Corporation v Sarah Jane Hill [2002] NSWCA 75; Aikens v National Australia Bank (1994) 34 NSWLR 155 DATES OF HEARING: 7/12/01 DATE OF JUDGMENT: 7 December 2001

JUDGMENT: HER HONOUR: In this matter the appellant asks the Court to set aside a decision of the Victim's Compensation Tribunal on appeal from an assessor in relation to his claim for compensation arising out of an incident which occurred on 2 January 1997. The appellant suffered a fracture of the right calcaneus after coming off a bar stool in the Thirroul Hotel. His claim is that he was standing on the bar stool in order to see a television screen when he was dislodged by the force of another patron of the hotel. His application for compensation was initially determined by an assessor on 11 December 2000 and was rejected on the basis that he or she was not satisfied that there had been established an act of violence. The material before the assessor comprised the appellant's claim which was accompanied by a statutory declaration of the appellant dated 11 March 1998. The declaration stated that the alleged offender, who was affected by alcohol, walked over to the stool upon which the appellant was standing and shook it, then pushed the stool again causing the appellant to fall and to strike a cross member of the stool with his right heel. The assessor also had before him or her a police entry noting the date of report of the incident as 9 January 1997, some seven days later, which also states that the offender pushed the stool causing the appellant to fall. As far as medical evidence is concerned the assessor was provided with a report from the Wollongong and Port Kembla Hospital stating that the appellant gave a history of falling from a bar stool and a report of Dr Elliott of 29 April 1998 indicating a history that the appellant stated that he was pushed from a chair. The assessor's determination was made after the appellant had been notified by letter from the Tribunal of 23 October 2000 that his claim would be assessed on or after 20 November 2000 solely upon the basis of documentation before the assessor and notifying the appellant and his solicitor that it was his responsibility to establish that he had been the victim of an act of violence as required under the Victim's Support and Rehabilitation Act 1996. The notice given required that all material and evidence to be relied upon, including reports, submissions, invoices, receipts, photographs, workers compensation details, loss of earning schedules and any other documentation felt necessary to support the claim should be submitted to the director at least seven days prior to 20 November 2000. The appellant was not satisfied with the decision of the assessor and appealed to the Victims' Compensation Tribunal. The grounds of appeal challenged the assessor's determination that independent or corroborative evidence was required or that the delay in reporting the matter to the police had any bearing on the appellant's claim. As an alternative the grounds of appeal sought leave to present further evidence, that is, a statutory declaration of Mr Gary Winchester of 9 March 2001 as to his recollection of the events of 2 January 2000 when Mr Winchester stated that he saw a gentleman named Geoff walk over to the stool upon which the appellant was standing and kick the stool at its halfway point with some force causing the appellant to fall to the ground. The Tribunal rejected the further evidence and upheld the decision of the assessor dismissing the appeal. The further evidence was rejected on the basis of s 38(3) of the Victim's Support and Rehabilitation Act which requires that further evidence should be received if the Tribunal considered that special grounds existed. The issue of the circumstances in which special grounds exist, for the purposes of this section of the Act, has been considered by the Court of Appeal in a decision of Victim's Compensation Fund Corporation v Hill (5 April 2000). In that decision the Court of Appeal looked at the similar provisions of the Supreme Court Act in determining the circumstances in which fresh evidence might be admitted by the Court of Appeal. They referred to the decision of Aikens v National Australia Bank (1994) 34 NSWLR 155 which set out three conditions that need to be met in determining whether fresh evidence will be admitted. Those conditions are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.