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. (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict. (3) The evidence must be credible. As to the first of these conditions, it is put to me on behalf of the appellant that it was not reasonable that he should have obtained the evidence of an independent witness for the purpose of presenting his claim to the assessor since he did not know until the assessor's determination that corroboration was required. In response to this suggestion it has been put to me on behalf of the Tribunal that the report of the Wollongong Hospital itself should have raised warning bells on the part of the appellant's representatives indicating that there was a different history given on the day of the injury to that which the appellant placed before the Tribunal and before the police seven days later. As to the second of the conditions, that is that the evidence must be such that there must be a high degree of probability that there would be a different verdict, it has been pointed out that Mr Winchester gives a different version of the activity of Geoff, the person who allegedly caused Mr Lawless to fall from the stool. As to the third condition, that the evidence be credible, I make no comment since neither the appellant nor Mr Winchester has appeared before me for cross-examination on their statements. Looking at the first and second of those conditions, it does seem to me that it has not been satisfactorily explained why the appellant did not obtain supporting corroborative evidence to present to the assessor. It is a basic principle that in bringing any claim to the Court the party who asserts must prove and if the documentation provided has internal inconsistency, then some attempt must be made to overcome that internal inconsistency. It has been argued, although it is not pleaded in the appeal, that the assessor ought to have alerted the appellant to the deficiencies in his application so as to have allowed him to present further evidence to the assessor. Firstly, I do not think that that is the role of the assessor. If the appellant wishes to put a claim then it is for the appellant to provide a fully supported claim. Secondly, it does appear to me that notice that the assessor would determine the application on the basis of all of the materials placed before the assessor was given by the Tribunal to the appellant through his representatives on 23 October 2000. Accordingly the appeal fails and costs, Mr Moore? MOORE: The respondent seeks costs, your Honour. HER HONOUR: Are you asking for costs? MOORE: Yes, sorry, your Honour, yes, your Honour. WILSON: We're opposed. Under the circumstances of what's happened with the history of the matter I think that each party could bear their own costs. MOORE: There's the second point of the appeal as to whether the magistrate has applied the wrong test. HER HONOUR: Before we get to the question of costs the appeal also raised the question of whether the Tribunal, in determining the appeal from the assessor, applied an incorrect test in suggesting that it was necessary to establish the claim to the point where the Tribunal could be comfortably satisfied on the balance of probabilities of the assertions made by the appellant. It is clear that that is the incorrect test to apply in determining applications such as these. The Act itself specifically provides that the Tribunal and its assessor are to be satisfied on the balance of probabilities. The consideration of comfortable satisfaction applies to cases where fraud is alleged or to situations before administrative tribunals such as the Medical Tribunal where the outcome of the inquiry will have far reaching effects as far as the medical practitioner's ongoing capacity for practise is concerned. It certainly does not apply to decisions such as those which are to be made under the Victim's Support and Rehabilitation Act 1996. I should also comment that the speculation of the Tribunal in the final paragraph on page 5 of its determination as to the motivation of the appellant in bringing his claim is unwarranted and unjudicial. The simple fact is that the claim is not made out on the evidence and has failed on that basis. The question of whether the incorrect standard of proof has been applied does not alter the conclusion that I have come to, namely that there had not been established special grounds for the admission of further evidence. In addition even on the balance of probabilities it appears to me that the claim has not been made out and that the conclusion of the Tribunal on that basis could not be set aside for any reason of law which is argued before me. Now, what were you saying about costs, Mr Moore? MOORE: The respondent seeks costs, your Honour. WILSON: And I oppose that, your Honour. HER HONOUR: The appeal is dismissed. The determination of the Tribunal is confirmed. The appellant is to pay the respondents costs of the appeal. The exhibits will be returned. 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.