New South Wales Court of Appeal CITATION : Victims Compensation Fund Corporation v Nosowski & Anor [2001] NSWCA 255 revised - 10/08/2001 FILE NUMBER(S) : CA 40083/01 HEARING DATE(S) : 1 August 2001 JUDGMENT DATE : 1 August 2001 PARTIES : Victims Compensation Fund Corporation v Katryna Nosowski and The District Court of New South Wales JUDGMENT OF : Priestley JA at 1; Beazley JA at 11; Stein JA at 12 LOWER COURT JURISDICTION : District Court LOWER COURT DC 4/00 FILE NUMBER(S) : LOWER COURT His Honour Judge McGuire JUDICIAL OFFICER : COUNSEL : Appellant - C. Lonergan Respondent - Ms N. Adams SOLICITORS : Appellant - I.V. Knight, State Crown Solicitor Respondent - Strain Kernan Cameron Solicitors CATCHWORDS : Summons for judicial review - whether statement made to police by first opponent was not a matter which ought to be taken into account for the purposes of s 30(1)(d) of the Act LEGISLATION CITED : Victims Support and Rehabilitation Act CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DECISION : Summons dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40083/01 DC 4/00 PRIESTLEY JA BEAZLEY JA STEIN JA Wednesday, 1 August 2001 VICTIMS COMPENSATION FUND CORPORATION v NOSOWSKI & ANOR 1 PRIESTLEY JA: This proceeding before the Court is an application by summons to quash orders made by his Honour McGuire DCJ in the District Court on 25 August last year. An ancillary order is sought for a declaration that the judge had no jurisdiction to make the order which he did. 2 Both the application to quash and the application for a declaration depend upon the view advanced on behalf of the claimant that McGuire DCJ was wrong in saying in the course of his reasons that a particular item of evidence that had been before the Victims Compensation Tribunal, from whose decision there was an appeal before him, was not relevant in determining in accordance with s 30(1)(d) of the Victims Support and Rehabilitation Act whether the victim, whose application had been first before an Assessor and later before the Tribunal, had failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence of which she complained, or in the arrest or prosecution of any person by whom that act of violence was committed or alleged to have been committed. 3 I have come straight to the central point of the claimant's applications without previously reciting the facts which brought the case before McGuire DCJ. Those facts are set out in his reasons for his judgment of 25 August 2000 and I adopt in my own reasons today his statement of the facts. 4 Perhaps I need to go this far in a very brief re-statement by saying that the course of the proceedings that led to his court had begun with an application under the Victims Support and Rehabilitation Act by the victim of an assault which had been committed against her by her son. The Assessor who first considered the application took the view that, because the victim had told the police she did not want her son charged with the assault upon her, the consideration in s 30(1)(d) was brought into play, which led the Assessor to hold that the victim had failed to provide reasonable assistance to the police. An appeal from the Assessor to the Tribunal under the Act resulted in the Tribunal affirming the Assessor's decision on the same ground. From that decision the matter went to McGuire DCJ pursuant to s 39 of the Act, which enabled appeals from determinations by the Tribunal on a question of law. 5 McGuire DCJ took the view that it was an error of law for the Assessor and the Tribunal, and for his purposes it was really only the Tribunal he needed to look to, to have paid any regard to the victim's statement to the police that she did not want her son charged in considering whether she had failed to provide reasonable assistance to the police. He gave various reasons for that view with which I agree. Because the matter seems to me to be within such a small compass and to be quite clear, I will simply adopt McGuire DCJ's reasons without further elaboration of them. 6 When the matter came on for hearing today, the claimant relied upon an affidavit which was read as the evidence upon which the claimant was relying in the application. There are a number of annexures to the affidavit. Two of these were the grounds of appeal by the victim to the Tribunal and the reasons of McGuire DCJ, at the conclusion of which his orders were stated. His orders were that he set aside the determination of the Tribunal and remitted the matter to the Tribunal in accordance with his decision on the question of law. That was the procedure authorised by s 39(5) of the Act. 7 There was some discussion about whether the other annexures to the affidavit were admissible in the proceedings before this Court. The discussion resulted in the view being taken that if the Court needed to consider the argument of the claimant that because of the claimed error of law by McGuire DCJ he had had no jurisdiction to make the orders that he did, then all the annexures to the affidavit would be relevant for the Court's consideration. On the other hand, if the point being considered by the Court was whether the judge had made an error of law on the face of the record, only the judge's reasons and his orders would certainly be admissible and possibly also annexure C. 8 In the event, it is unnecessary to trouble about the strict position concerning evidence, because what I have so far said, and the opinion I have formed, are based entirely on the judge's reasons and orders and there is no possibility of argument as to their admissibility. Nothing in the other materials assists the claimant in the sense that all the claimant's arguments are based upon what appears in the judge's reasons and orders. No material in the other annexures additional to what appears in the reasons and orders is of any relevance to the point that is made by the claimant as the foundation of the claimant's argument. 9 In short therefore, my opinion is that McGuire DCJ was right in the reasons that he gave. There was an error of law made by the Tribunal. Putting it in my own words, that error of law was that the Tribunal made a factual finding that what the victim had done in saying to the police that she did not want her son charged fell within the meaning of the words in s 30(1)(d). In my view, what the victim said provided no evidence at all of any failure that is spoken of in paragraph (d). To find against the victim on the basis that what she said to the police provided some evidence that she had done something which came within the meaning of paragraph (d) was in my opinion an error of law of the kind described in many cases but perhaps most pertinently for present purposes in the judgment of Glass JA in Azzopardi's case, (1985) 4 NSWLR 139. 10 Either way of putting the legal point into final terms, that is the jurisdictional way or the error on the face of the record way, in my opinion fails and in my opinion the summons should be dismissed with costs. 11 BEAZLEY JA: I agree. 12 STEIN JA: I also agree. ********** 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. 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