New South Wales Supreme Court CITATION : Mordaunt v The Assessor, Victims Services & Anor [2007] NSWSC 1131 HEARING DATE(S) : 08/10/2007 JUDGMENT DATE : 15 October 2007 JUDGMENT OF : Hoeben J at 1 DECISION : The plaintiff's summons is dismissed; The plaintiff is to pay the defendant's costs of the proceedings. CATCHWORDS : Appeal from Local Court sitting as the Victims Compensation Tribunal - whether error in assessment by compensation assessor - whether error in point of law on the part of the Tribunal - whether denial of natural justice by Tribunal. LEGISLATION CITED : Local Courts Act 1982 Victims Support and Rehabilitation Act 1996 George David Mordaunt - Plaintiff PARTIES : The Assessor, Victims Services - First Defendant The Victims Compensation Tribunal - Second Defendant FILE NUMBER(S) : SC 13752/2007 SOLICITORS : Plaintiff in Person Mr J McAteer - Defendants LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : RT91830 LOWER COURT JUDICIAL OFFICER : Mr Cleary LCM LOWER COURT DATE OF DECISION : 27/06/2007 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Monday 15 October 2007 13752/2007 - George David MORDAUNT v THE ASSESSOR, VICTIMS SERVICES & Anor JUDGMENT 1 HIS HONOUR: Nature of proceedings The plaintiff who is representing himself has appealed to this Court pursuant to s55 of the Victims Support and Rehabilitation Act 1996 (the Act) from orders made by his Honour, Mr Cleary LCM sitting as the Victims Compensation Tribunal. That section relevantly provides: "55(1) An order for restitution that is confirmed after a hearing before the tribunal may be appealed against in the same way as a judgment of a Local Court exercising civil jurisdiction may be appealed against." 2 The proceedings before the Tribunal took place on 2 May and 27 June 2007. The plaintiff represented himself in those proceedings. His Honour made a Restitution Order requiring the plaintiff to pay $1000 by way of instalments of $20 per fortnight, such amount to be free of interest unless there was default in the payment of instalments. 3 The reference in s55(1) of the Act to the taking to appeal of a judgment of the Local Court is a reference to ss73 and 75 of the Local Courts Act 1982. Those sections relevantly provide: "73(1) A party to proceedings under this Part who is dissatisfied with the judgment or order of the Court sitting in its General Division may appeal to the Supreme Court against the judgment or order, but only as being erroneous in point of law. (2) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its Small Claims Division may appeal to the Supreme Court against a judgment or order, but only on the ground of lack of jurisdiction or denial of natural justice. 75 The Supreme Court may determine an appeal made under this Division: (a) by varying the terms of the judgment or order or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal." 4 The grounds of appeal on which the plaintiff relies in his summons are as follows: (1) The assessor erred in law pursuant to Victims Support and Rehabilitation Act 1996 section 29, section 30 and section 65 guideline. The assessor erred in law because he made a determination after he mistook the facts before him and also made a determination based on no facts. (2) The tribunal member erred in law because his discretion miscarried, he mistook the facts and he said "The simple fact is the award made by the assessor was proper at law and there was nothing irrational or unreasonable about it". (3) The claimant was denied natural justice because according to the Magistrate's comments the claimant was served with the Director's Application for Confirmation of Provisional Restitution Order stating incorrect facts upon which the Director intended to rely. Plus the claimant believed the document headed "Reasons for Award" and signed by the assessor were indeed the assessor's reasons for making the award of $9,000. (4) Abuse of process. (5) Manifestly unreasonable because the Tribunal should have set aside the order pursuant to s56(1) "sufficient cause shown". Factual background 5 The plaintiff was formerly married to Nelly Seba. Ms Seba made an application for an award of compensation pursuant to the statutory scheme established by the Act. 6 Under the Act an application for compensation, which is referred for determination to a compensation assessor, must be dealt with by the assessor in accordance with the procedure which is laid out in s29. Section 29 relevantly provides: "29(1) After considering an application for statutory compensation, the compensation assessor must determine the application: (a) by making an award of statutory compensation, or (b) by dismissing the application." 7 The consideration by the compensation assessor is made under s27(2) of the Act "without conducting a hearing into the matter", ie ex parte. That is what happened in relation to Ms Seba's application for a compensation award under the Act. 8 The Act establishes a series of qualifications, criteria and exclusions by reference to which the compensation assessor is to make a determination of the particular applicant's entitlement to a compensation award. In Ms Seba's case the compensation assessor made a determination in her favour. The reasons for the award were dated 3 March 2005. The reasons are brief and because of their potential importance in the present proceedings, it is useful to set them out in full. 9 They read as follows: "Ms Seba has lodged an application for victim's compensation in relation to incidents of domestic violence perpetrated by her former husband in New South Wales between 1984 and April 2002. Ms Seba sets out a long history of an abusive relationship, in which she was subjected to intimidating and controlling behaviour, stalking and threats. She demonstrated great strength and courage to leave the relationship, however the intimidating behaviour continued and culminated in a violent incident on 28 November 2001, where the offender forced his way into her home and pushed her and caused her an injury to her lower back. The offender was charged and convicted of assault in relation to this incident. His appeal against his conviction was dismissed on 5 June 2003. Medical records indicate that as a result of this assault Ms Seba sustained a number of soft tissue injuries to her neck and back and had stiffness to her neck and headaches. I am satisfied that an act of violence is established on the balance of probabilities, pursuant to s5 of the Victims Support and Rehabilitation Act 1996 (the Act). No adverse issues arise under s30(1) of the Act from the evidence before me. Ms Seba has received extensive counselling to help manage her symptoms. She continues to experience anxiety and depression, and has problems with her self-esteem. A clinical psychologist has diagnosed chronic post-traumatic stress disorder. Her psychological injuries are attributed to the act of violence upon her." 10 Upon the basis of those findings, the compensation assessor made an award in favour of Ms Seba of $9,000. After deduction of $750 pursuant to s19A of the Act the final award in her favour was $8,250. 11 Where a compensation assessor makes a determination favourable to an applicant, the applicant is entitled to be paid the compensation out of a public fund established for the purpose. It is then necessary to consider as part of the overall statutory scheme whether there is somebody from whom the public fund can recoup in whole or in part the amount of the compensation award which the fund has paid out. 12 Section 46 makes provision in that regard. It relevantly provides: "46(1) If the Director is of the opinion that, before or after an award of statutory compensation is made, a person has been convicted of a relevant offence, the Director may make a provisional order for restitution against the person so convicted." 13 A "relevant offence" is a concept that is defined in s46(2). "(2) A relevant offence is: (a) An offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made …" 14 In a case where the Director makes a provisional order for restitution, the person against whom that order has been made is entitled, within a stipulated time period, to file in the office of the Director a notice of objection to the confirmation of the order. In a case where such an objection is properly lodged, there must be a hearing by the Victims Compensation Tribunal and that hearing must conform to the provisions of, amongst others, ss 49 and 52 of the Act. 15 In the case of the plaintiff the Director formed the requisite statutory opinion and made a provisional order for restitution against him. That order was made on 22 September 2005. The plaintiff objected to the provisional order. The hearing before the Tribunal took place on 31 January and 14 February 2006. The plaintiff represented himself at the hearing. The Tribunal was constituted by his Honour Mr Brahe LCM. As a result of that hearing, the provisional order of the Director was confirmed and a restitution order in the amount of $2000 was made against the plaintiff. 16 The plaintiff appealed to this Court pursuant to s55 of the Act. That appeal was heard by Sully J on 8 November 2006 and his Honour handed down judgment on 9 November 2006. The plaintiff was successful and the matter was remitted to the Tribunal to be dealt with according to law. 17 It is important to understand the basis upon which Sully J upheld the plaintiff's appeal. His Honour's decision turned on ss49, 51 and 52 of the Act. Those sections relevantly provide: "49(1) If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed (in this Division called recovery proceedings). (2) The Tribunal may confirm a provisional order made under s46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied, it must discharge the provisional order. … (3) The Tribunal may vary a provisional order for restitution that it confirms." "51(1) The Tribunal may, when it confirms a provisional order, reduce the amount to be paid under the provisional order having regard to: (a) the financial means of the defendant, and (b) such other matters as are, in the opinion of the Tribunal, relevant to the determination. …" "52(1) Subject to this Division and the rules, recovery proceedings must be determined: (a) in accordance with the rules of evidence, and (b) in accordance with the practice and procedure of Local Courts exercising civil jurisdiction, in the same way as the determination by a Local Court of an action commenced by way of an ordinary statement of claim (within the meaning of the Local Courts (Civil Claims) Act 1970). (2) The victim to whom recovery proceedings relate is competent, but not compellable to give evidence in the proceedings. … (5) The Tribunal does not have jurisdiction to order payment of costs in relation to recovery proceedings." 18 Sully J concluded that the hearing before the Tribunal had not proceeded in accordance with s52 in that the rules of evidence had not been followed. His Honour was also of the opinion that in reaching his conclusion the learned magistrate had misunderstood the submissions of the plaintiff and had therefore failed to have regard to them. 19 Following the remitter of the matter to the Tribunal, it came on for hearing before his Honour Mr Cleary LCM sitting as the Tribunal. The hearing took place on 2 May and 27 June 2007. I have carefully read the transcript of the proceedings and it is clear that the proceedings were conducted in accordance with the provisions of s52. It is also clear that his Honour carefully noted the submissions put by the plaintiff and in reaching his conclusion took them into account. It was not submitted by the plaintiff that there had been any failure to comply with s52. 20 To understand the plaintiff's submissions it is necessary to set out his Honour's decision. In doing so I have left out the exchanges between his Honour and the plaintiff which occurred whilst his Honour was delivering judgment. Regrettably, the sound recorded transcript contains a number of errors but the effect of the Tribunal's reasons is clear. "HIS HONOUR: Thank you. Section 49 of the Victims Support and Rehabilitation Act of 1996 provides that the Tribunal may confirm a provisional order made under s46 if satisfied the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied it must discharge the provisional order. That section also provides that the Tribunal may vary a provisional order for restitution that it confirms. Now the provisional order was made by the Director because a relevant offence had been recorded against this defendant. Now even though the offence itself resulted in a s10 bond which means a conviction at law was not recorded but the provisions of this Act provide that that amounts – is tantamount to a conviction and as a consequence the Director proceeded on the basis that the relevant offence had been recorded. Now the offence itself arose when it was established that this defendant actually pushed his former wife and as a consequence she fell over a table. She suffered according to the medical evidence – and there is no evidence to the contrary – some injury that could probably be described as minor, because there doesn't seem to be any reference to any other subsequent medical treatment by her as a consequence. The doctor recorded in his notes that she was pushed over, landed on a coffee table and as a consequence suffered tenderness around the neck. She's complained of headache and neck stiffness and there was tenderness to the right paraspinal muscles. And for that it would seem that some form of medication for a headache. Perhaps for the other injury. There is no other medical evidence apart from that in relation to the injury sustained. The assessor based the determination to award compensation for the compensable injury of domestic violence on the basis of the incident which occurred on 28 November 2001 and which resulted in the victim suffering some soft tissue injuries to the neck and back and a headache. For the compensable injury of domestic violence there is a range of compensation available, that is from $7500 to $10000 and the end result being that the assessor awarded a sum of $9000 for that compensable injury of domestic violence. There was a deduction of the s19A of the Act in the amount of $750. The end result being that the sum of $8,250 was paid to the victim. I can see no reason at all why I should not confirm the provisional order made by the Director under s46 because I am satisfied that this defendant has been convicted, in a special meaning of an offence, arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. Now I acknowledge that the defendant has difficulty in accepting that compensation of this amount in the range of $7500 to $10000 should be considered as compensation for such an offence where he merely pushed his wife, former wife I should say, over a coffee table. And I would think that many would probably regard it as being extravagant also. But nevertheless the legislation has seen fit to allow an award in that range, $7500 to $10000, where an act of violence is established and a determination results in respect of the compensable injury of domestic violence. So I am satisfied that the legal aspects of s49 have been established. There is a reference in the determination made by the assessor to the domestic violence apparently extending over a period of time. Of course the end result was in respect of that determination that the event or incident of 28 November 2001 was the only incident on which the determination was based and the award made for the compensable injury of domestic violence. Even though that reference does appear in his determination and it also appears in the Director's notes in relation to these recovery proceedings. Now that being so I move then to the provisions of s51 of the Act. Having confirmed the provisional order I may now in terms of s51(1) reduce the amount to be paid under the provisional order having regard to the financial means of the defendant and to such other matters as are in the opinion of the Tribunal relevant to the determination. … Reference has been made to the psychological report. It's quite evident that from the material here and in the terms of the report itself that the victim in the proceedings had suffered several past traumas, many past traumas which had impacted on her mental state including a natural disaster, a life threatening stroke and I think a motor vehicle accident and some other events have also given rise to impact on her mental health. I notice in the report itself that the psychologist formed the view that it was the act of violence of 28 November 2001, was the main significant factor in the victim's current psychological problem. That opinion took into account the likelihood that the violent incident of 28 November 2001 was the culmination of years of emotional abuse. That's what the psychologist's report - the simple fact here is that I am concerned only with the event of 28 November 2001 and it would seem to me that I should have little regard to that expression of opinion, if any. It can be said that in terms of an assault the incident that did occur, did occur on 28 November 2001 between the defendant and his former wife, was minor in nature because a push which resulted in some physical injury to her – and it would seem that the incident – the injury to her neck and back was obviously of a minor nature because there is no such evidence of any treatment other than the medical report that I have from the doctor when she attended two days after the event on 28 November 2001. I should also make reference to s20(1) of the Act. Mr Mordaunt relies on that particular subsection as a basis for this Tribunal not to make any adverse determination against him. But s20(1) has no relevance to recovery proceedings. Section 20(1) which provides that statutory compensation is not payable to a single person unless the total amount of compensation payable to that person as compensation for compensable injuries is at least $2400 but that amount has been increased by way of proclamation to $7500. So it can be seen that any person reading that subsection could not reasonably conclude that it has any relevance to recovery proceedings which is a separate provision and which specifically provides for this Tribunal to reduce the amount to be paid under the provisional order, having regard to the financial means of the defendant and any other relevant matter. Section 20(1) has no relevance at all to these proceedings. It is evident that the defendant is a person of limited means in receipt of a Newstart allowance from Centrelink and his expenses it would seem equate with the amount he receives by way of social security payments. He has made a reference to having $44 cash but it would seem has no other means or assets. It is a case where there should be a significant reduction in my view from the amount of $9000 which was reduced by way of s19A deduction to $8250.00 So that in the end, Mr Mordaunt, it is my intention to reduce the amount of the order which I have now varied to $8250, having regard to the comparatively minor nature of the incident of assault which occurred on 28 November 2001 which resulted in minor injuries. I have regard to the limited means by reason of the fact that you receive a Centrelink payment. And I have regard to your state of health and you obviously have medical problems. So in the end my determination is I confirm the provisional order as varied in the sum of $8250 and I reduce the liability of the defendant under the order to the amount of $1000. I order that the amount of $1000 be paid by fortnightly instalments of $20 to commence on 15 August 2007 and then fortnightly thereafter. These instalments are subject to review from 12 months from this date. On failure to pay any instalment the whole balance shall become payable forthwith. Interest is not payable on the amount payable under the order for restitution unless there is default in payment of instalments whereupon interest shall become payable." Submissions and consideration 21 Ground of Appeal number 1 probably represents the main complaint which the plaintiff has in relation to the proceedings. This ground challenges the finding of the assessor that the victim was entitled to compensation of $8250. 22 It was explained to the plaintiff that these proceedings related to the hearing before the Tribunal and did not relate, nor could they in any way affect, the finding in favour of the victim by the compensation assessor. What the plaintiff had to establish was error in point of law or a denial of natural justice on the part of the Tribunal. 23 While I am not entirely sure that the plaintiff understood the distinction, he refined his submissions so that his challenge to the findings of the compensation assessor was made in the context of the second ground of appeal. This ground challenged the finding by the Tribunal that the decision of the compensation assessor to award compensation was open to him. 24 So far as I can ascertain from the plaintiff's oral and written submissions, the argument he was seeking to mount in respect of grounds 1 and 2 was as follows. The finding by the compensation assessor was fundamentally flawed because the incident on which the award of compensation was based was merely "transient and trifling" and the evidence did not justify such a finding. That being so, the Director should not have made his provisional order for restitution. The error of the Tribunal was in failing to make those findings, ie that there was no evidence upon which the compensation assessor could base his award and that as a result, it was not open to the Director to make a provisional order for restitution. 25 As the Tribunal pointed out in its reasons there was sufficient evidence before the compensation assessor in the reports of Dr Hyland and the psychologist, Ms Tiffen, to justify the award of compensation. It was also clear that the plaintiff had been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which the award of compensation was made, ie pushing his former wife over the table on 28 November 2001. As the Tribunal appreciated even though that was a relatively minor incident, it did constitute domestic violence as defined by the Act and the incident was given special significance because of the opinion of the psychologist that "the act of violence is the main significant factor in Ms Seba's current psychological problem". Since the range of compensation prescribed by the Act was between $7500 and $10000 for domestic violence offences the award made by the compensation assessor was in accordance with the Act. 26 In those circumstances the Tribunal had no option but to uphold the provisional order for restitution made by the Director. It was not a question of whether the Tribunal would have reached the same conclusion as the compensation assessor. To the extent that the issue arose at all, it was simply a question of whether the compensation assessor had acted in accordance with the Act and whether the decision which he reached was open to him. Since the evidence was all one way, the answer was clearly "yes" as the Tribunal found. 27 It follows that there was no error in point of law in what the Tribunal did. As a result the plaintiff fails in relation to grounds 1 and 2 of his appeal. 28 Ground 3 asserts a denial of natural justice. This ground was not really pursued in either oral or written submissions. Even if it had been it was doomed to failure. The transcript reveals that the Tribunal was punctilious in following the rules of procedural fairness when dealing with the plaintiff. This extended to allowing to the plaintiff an adjournment when the plaintiff complained in the course of the hearing on the first day that because of some confusion his mind had "gone blank". This ground of appeal fails. 29 Ground 4 asserts abuse of process. This ground was not pursued orally. To the extent that the written submissions deal with it, it seems to raise the same argument as grounds 1 and 2, ie that it was not open to the Director to make a provisional order for restitution because of errors in what the compensation assessor had done. I have already dealt with this submission. This ground fails. 30 Ground 5 seems to raise the same matters as were raised in grounds 1 and 2. In that regard there seems to have been confusion in the mind of the plaintiff as to what the Tribunal was doing when it heard his objections. 31 The Tribunal followed a two-stage process. At the first stage his Honour considered the material before him and concluded that the provisional order for restitution by the Director should be confirmed. At the second stage his Honour had regard to the provisions of s51(1) of the Act and considered whether he should reduce the amount to be paid under the provisional order having regard to the financial means of the plaintiff and such other matters as his Honour considered relevant to the determination. 32 One of the matters which his Honour regarded as relevant to his determination was that the incident of domestic violence on 28 November 2001 was of itself relatively minor. The plaintiff in his submissions seems to have taken that observation by the Tribunal as impacting on the decision at the first stage. There was clearly no overlap. The functions which the Tribunal had to perform at each stage were quite separate. For those reasons and for the reasons which I indicated in relation to grounds 1 and 2, ground 5 also fails. Conclusion 33 The plaintiff has failed to establish any of his grounds of appeal and has failed to establish any error in point of law, denial of natural justice or lack of jurisdiction on the part of the Tribunal. Accordingly the plaintiff's summons should be dismissed. 34 I have not heard submissions from the parties as to costs. Accordingly I reserve that question and will allow the parties leave to address the Court on that question when they have had a chance to read the judgment. 35 The orders which I make are as follows: (1) The plaintiff's summons is dismissed. (2) The plaintiff is to pay the defendant's costs of the proceedings. ********** 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.