New South Wales Court of Appeal CITATION : Victims Compensation Fund Corporation v District Court of New South Wales & Ors [2001] NSWCA 241 FILE NUMBER(S) : CA 40184/01 HEARING DATE(S) : 24 July 2001 JUDGMENT DATE : 24 July 2001 Victims Compensation Fund Corporation (Claimant) PARTIES : District Court of New South Wales (First Opponent) Natasha Rae Jenkins (Second Opponent) Crystal Jane Jenkins (Third Opponent) JUDGMENT OF : Handley JA at 1, 23; Stein JA at 27; Heydon JA at 2 LOWER COURT JURISDICTION : District Court LOWER COURT DC 34/00 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER : COUNSEL : Mr P I Lakatos (Claimant) Mr R F Driver (Second and Third Opponents) SOLICITORS : I V Knight (Claimant) Peninsula Law (Second and Third Opponents) CATCHWORDS : Administrative Law - Prerogative proceedings - Summons in the nature of certiorari quashing orders of District Court - Claim of error on the face of the record - Discretionary factors - Where seven month time delay in commencing proceedings and seeking remedy - Where claimant familiar with statute in relation to which claim made - Where amendments to relevant statute had occurred since events in issue - Where few factual findings contained within the record - Summons dismissed - Victims' Compensation - Summons in the nature of certiorari quashing orders of District Court allowing appeal from decision of Chairperson of Victims Compensation Tribunal - Summons dismissed for discretionary reasons - ND LEGISLATION CITED : Victims Support and Rehabilitation Act 1996 DECISION : Summons dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40184/01 DC 34/00 HANDLEY JA STEIN JA HEYDON JA Tuesday, 24 July 2001 VICTIMS COMPENSATION FUND CORPORATION v DISTRICT COURT OF NEW SOUTH WALES & ORS JUDGMENT 1 HANDLEY JA: The Court is in a position to give judgment immediately and I will ask Heydon JA to give the first judgment. 2 HEYDON JA: Before the Court is an application by summons dated 26 March 2001 for orders quashing orders of McGuire DCJ in the District Court made on 25 August 2000 upholding appeals of the second opponent and the third opponent against a decision of the Chairperson of the Victims Compensation Tribunal. 3 It is not necessary to go into the detail of the facts beyond saying that on 18 June 1997 the second opponent, the third opponent (her daughter) and her son were at their residence in Umina. The third opponent was then aged nearly five. It seems that the son was younger. McGuire DCJ set out the factual position as to what then happened as follows: "Briefly stated the factual position is that the appellant or the applicant was at home with her two infant children on 18 June 1997, she heard noises which clearly related to efforts being made by intruders to enter her dwelling. Upon looking outside she saw some males, thereupon she telephoned 000 and reported the matter to the police. After hanging up the phone she stood against the wall of her bedroom. She saw a male person walk into the back bedroom, another male walked into the bedroom where she was standing. She effectively terminated his attendance on her premises by commanding him to 'fuck off'. He did so, in that he ran off and two other males followed him. It is to be noted that her children were sleeping, or at least one of her children was sleeping in an adjacent bedroom." 4 The Court this morning has not heard argument directed to the merits of the points which the claimant wishes to agitate in its summons. In essence, those points turn on the construction of certain provisions in the Victims Support and Rehabilitation Act 1996. The essential question is whether persons who break and enter with an apparent intention to steal and depart without causing physical violence to victims present during that intrusion have been guilty of violent conduct "against one or more persons" within the meaning of s 5(1)(b) of the Act. 5 Rather, in the course of argument this morning in relation to certain preliminary questions, it became clear that there were discretionary reasons why arguably the summons should be dismissed without any consideration of its substantive merits. 6 Mr P I Lakatos, who appears for the claimant and whose contributions to the debate have been characteristically frank and helpful, with the agreement of Mr R F Driver, whose submissions have been equally frank and helpful, has propounded the following chronology of events. 7 When McGuire DCJ gave judgment on 25 August 2000, there was a representative of the Corporation present. It seems there was also a solicitor present and counsel, Mr R E Quickenden, was present. On 18 September 2000 a briefing note was prepared within the Corporation. That briefing note was approved on 21 September 2000. On 28 October 2000, according to exhibit A which is a letter of 30 October from Tracey Hall, Manager/Senior Advocate, Advocacy Unit, Victims Compensation Tribunal, she spoke to Mr Driver, who has appeared as counsel not only before us for the second and third opponents but also appeared before McGuire DCJ. She advised him that she had received instructions from her client to commence proceedings in the Court of Appeal. She also advised him that she was currently awaiting receipt of the written judgment. Mr Lakatos said without objection that that letter had been somewhat loosely expressed. 8 The judgment was in fact received on 2 November 2000, though the transcript record was dated 31 October 2000. A brief was then sent to the Crown Solicitor on 15 November 2000. Advice was received by the Corporation from junior counsel on 29 January 2001. Advice was then forwarded to the Director General on 20 February 2001. On 22 February 2001 instructions were received by the Director General to commence the proceedings and on 26 March they did commence. 9 The delays total approximately seven months. In my opinion that was an excessive period of time within which to commence prerogative proceedings in relation to a decision about a statute with which the claimant is unquestionably very familiar. The relief sought was in the nature of certiorari. That relief is normally sought against emanations of the Crown, and emanations of the Crown are familiar with the rules of law that surround it. One of those rules is that delay in seeking the remedy is a discretionary reason for refusing relief. 10 Aronson and Franklin, Review of Administrative Action (Law Book Co Ltd, 1987) state at pages 598-599: "Prohibition has a built in time limit, in that it will issue only if there is something left to prohibit. There has never, therefore, been a statutory limitation period for that remedy. But for a long time, an Imperial Act which probably applied in Australia imposed a six month time limit on applications for certiorari against justices of the peace. That provision was, until recently, enforced rigorously. The Imperial Act probably no longer applies in Australia; with the exception of the Australian Capital Territory and New South Wales, the Australian Supreme Courts now have a six month time limit in their Supreme Court Rules. Unlike their statutory predecessor, most of these rules are flexible. An interesting doubt has arisen as to whether delay in applying for certiorari can ever be a ground for a discretionary refusal to grant that remedy in cases where the delay is not so great as to exceed the six month limit. In R v Inner London Crown Court; Ex parte Greenwich London Borough Council the Court of Appeal indicated that the applicant council had delayed so much that as a matter of discretion, it should be refused relief. The delay was for five and a half months, during which time the proponents of the impugned decision expended a very large sum of money in reliance thereon. The case was unsuccessfully appealed to the House of Lords, where the relevance of the delay was expressly left open. Lord Simon expressed a preference for the view that the court has a discretionary power to reduce the normal six month limit, which should be exercised only in 'rare' cases. The Supreme Court of the Northern Territory has stated that it has a discretionary power to deny certiorari for a delay of less than six months. There have been cases in which it was either stated or assumed that a delay of less than six months can justify a discretionary refusal of certiorari. Of course, there are many cases which affirm the court's discretion in certiorari cases if the six month limit has elapsed. Delay is probably relevant to the exercise of the discretionary power to refuse prohibition." 11 McGuire DCJ is not a justice of the peace, but the six month time limit which the learned authors refer to in the Imperial Act (13 George II, Chapter 18, s 5) contrasts with the seven month period of delay here. 12 Other relevant periods established by enactment with which the seven month delay may be compared are the time limits laid down by Part 51 Rule 4 of the Rules of the Supreme Court for instituting appeals to this Court. The present proceeding is not an appeal to this Court but the periods deemed appropriate in the Rules are relevant. If an appeal as of right is brought, it can be brought within twenty eight days; alternatively a holding notice of appeal can be filed and an appeal can be brought within a further three months. At most, those periods total four months, in contrast to the seven months here. 13 It is not desired to expose any particular officer of the claimant or any particular legal adviser of the claimant to any criticism. The total of the seven months delay appears to be the result of a combination of quite a number of factors and the reason why the summons is to be dismissed on this ground is not in any way connected with any matter of personal blame. 14 The short point is that the Corporation would have been well aware at the time McGuire DCJ delivered his judgment of the point which it wished to agitate before this Court. 15 Another relevant matter is that a long time has passed since the incident which gave rise to the applications of the second and third opponent since the events complained of occurred on 18 June 1997. Finality is important. 16 There are two other matters that are relevant. The legislation which is now in force in relation to the compensation of victims of crime is legislation which appears in an Act entitled the Victims Support and Rehabilitation Act 1996. That is in many respects the same legislation as that which was in force on 18 June 1997 but in some respects it is different. Any opinion propounded by this Court on the construction of the legislation as it was on 18 June 1997 would be of historical interest but may not have direct application for the legislation as it now stands. 17 Accordingly, the summons has less utility than it might otherwise have had as a means of obtaining this Court's opinion on the important question of statutory construction which is raised. 18 The summons also lacks utility for this reason. Mr Lakatos probably entirely correctly submitted that the record before this Court within which the necessary error of law must be found consists of the orders of McGuire DCJ, his reasons for those orders and the initiating process in the District Court, but not the decision of the Chairperson appealed from. The decision of the Chairperson appealed from, while not itself particularly specific in the facts which were found, is more specific than the decision of McGuire DCJ. His factual conclusions are rather generally expressed. 19 Normally elucidation of the meaning of the words in a statute, here "violent conduct", is conducted after factual findings have been made by a court on the basis of evidence tendered on as full a basis as the parties desire compatibly with the rules of evidence. The tradition of our law is that questions of law, including questions of statutory construction, are best answered in the context of specific, concrete and detailed factual findings. It has been thought best not to answer legal questions in the abstract but only against a background of particularity. Our law abhors the giving of advisory opinions and the answering of hypothetical questions. The vaguer the factual material the more the question tends towards the hypothetical and the answer tends towards the advisory. That is why courts tend to resist deciding legal questions on assumed facts, save in relatively exceptional cases. 20 Here, the Tribunal considered some factual material but it was all written, being statements of the second respondent to various persons. The Assessor who constituted the Tribunal in the first instance made very few factual findings. The Chairperson made more factual findings. McGuire DCJ on the other hand made fewer factual findings and they were of a derivative and somewhat general character. 21 In view of the doubt which Mr Lakatos properly raises as to whether the Chairperson's decision can be treated as part of the record, it may be that all this Court would be left with is McGuire DCJ's findings. They do not constitute an entirely satisfactory platform from which to consider the questions of law involved. 22 For these reasons, I am of the opinion that it is appropriate on discretionary grounds to dismiss the summons and accordingly I propose the following orders: 1. That the summons be dismissed. 2. That the claimant pay the costs of the second and third opponent. 3. That the claimant pay the costs of the first opponent on a submitting basis. 23 HANDLEY JA: I agree with the reasons that have been given by Heydon JA. I would add the following supplementary remarks. 24 The offences on which the victims' compensation claims were based were breaking and entering of a dwelling house, possibly with one of the intentions specified in the Crimes Act. If one had to draw an inference, one would infer that the young men were breaking and entering the dwelling house in order to steal property in the dwelling house. Three young men were involved, itself a matter of aggravation, bearing in mind that the offences occurred in daylight and any adult male was likely to be absent at work. The commission of an offence of this character, when a woman and young children might be within the house, could involve an element of recklessness which might bring the case within the definition of an act of violence. I am expressing no view on that matter. I only mention it in order to show how the facts in a particular case might support the conclusion that offences which prima facie are only directed against property might properly be characterised as offences against a person. 25 The problems raised in this case cannot arise under the Act now in force because Schedule 1 limits the claims for psychological or psychiatric disorder to the offences of armed robbery, abduction and kidnapping. I refer to Schedule 1 clause 5 (3). Earlier, by Act number 134 of 1998, the provisions which were in force at the time of the events here in question and at the time the opponents applied for victims' compensation were amended. The provisions allowing compensation for shock were repealed and replaced by other provisions which provide compensation for psychological or psychiatric disorders. In this situation the proceedings here have not been shown to have any utility beyond the particular cases before the Court. 26 Subject to those matters, I agree with the reasons given by Heydon JA. 27 STEIN JA: I agree with Heydon JA and also with the supplementary remarks of the presiding judge. 28 HANDLEY JA: The order of the Court therefore is summons dismissed with costs. ********** 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.