Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273 Hearing dates: 20 July 2012 Decision date: 04 September 2012 Before: McColl JA at [1]; Meagher JA at [2]; Gzell J at [43]. Decision: (1) The record of these proceedings before Levy DCJ of the District Court of 2 March 2012 (No. 376366 of 2011) be removed to this Court. (2) The orders made by Levy DCJ in the said proceedings be quashed. (3) The first respondent to pay the applicant's costs of the proceedings before this Court. (4) The first respondent, if qualified, have a certificate under the Suitors Fund Act 1951 in respect of the costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - claim for victims compensation - tribunal denied compensation on basis victim engaged in behaviour that contributed to injury sustained - appeal to District Court limited to questions of law - District Court set aside orders of tribunal - none of matters relied on involved error of law - Victims Support and Rehabilitation Act 1996, s 30. ADMINISTRATIVE LAW - relief in the nature of certiorari - whether Supreme Court has power when exercising supervisory jurisdiction under s 69 of the Supreme Court Act 1970 to make costs order in place of any costs order that has been quashed - decision in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110] applied. Legislation Cited: Civil Procedure Act 2005 District Court Act 1912 Minors (Property & Contracts) Act 1970 Motor Vehicles (Third Party Insurance) Act 1942 Suitors Fund Act 1951 Supreme Court Act 1970 Victims Support and Rehabilitation Act 1996 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Baker v The Queen [1975] AC 774 Cassell & Co Ltd v Broome [1972] AC 1027 Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lynch v Victims Compensation Fund Corporation [2012] NSWDC 17 Miliangos v George Frank (Textiles) Ltd [1976] AC 443 R v Aldridge (1990) 20 NSWLR 737 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; 165 CLR 107 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 Texts Cited: L Jaffe and E Henderson, "Judicial Review and the Rule of Law: Historical Origins" (1956) 72 Law Quarterly Review 345 G Sawer, "Error of Law on the Face of an Administrative Record" (1954) 3 University of Western Australia Annual Law Review 24 Category: Principal judgment Parties: Victims Compensation Fund Corporation (Applicant) Jason Brian Lynch (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr C L Lonergan (Applicant) Ms L Evans (First Respondent) Submitting appearance (Second Respondent) Solicitors: Crown Solicitor (Applicant) Friend & Co Lawyers (First Respondent) File Number(s): 2012/114781 Decision under appeal Citation: Lynch v Victims Compensation Fund Corporation [2012] NSWDC 17 Date of Decision: 2012-03-02 00:00:00 Before: Judge Levy SC DCJ File Number(s): 2011/376366 Judgment 1McCOLL JA: I agree with Meagher JA's reasons and the orders his Honour proposes. 2MEAGHER JA: On 22 October 2008 the first respondent was the victim of a home invasion. Two men forced their way into his home, ransacked it, threatened to stab him with scissors, made other threats and took $370 from his wallet as well as a small plastic bag containing two grams of cannabis. Before leaving the premises, one of the men intimated to him that he should desist from selling drugs in what he claimed was their "area". The first respondent made an application for statutory compensation under the Victims Support and Rehabilitation Act 1996. 3Applications for compensation are determined by compensation assessors who may determine the application by making an award of compensation or by dismissing the application: s 29. Section 30(1)(a) provides that in determining whether or not to make an award of compensation, and in determining the amount of compensation, the assessor must have regard to any behaviour of the victim that directly or indirectly contributed to the injury sustained by him. The first respondent's application was dismissed on the basis that the robbery and acts of violence were directly linked to the first respondent's sale of drugs from his premises. Although that claim was dismissed, the compensation assessor was satisfied that the first respondent had suffered a compensable injury, classified as a category 1 chronic psychological or psychiatric disorder, which was moderately disabling and would have entitled him to compensation in the range $7,500 to $15,000. 4The first respondent appealed from that determination to the Victims Compensation Tribunal. Section 41 provides that the applicant Corporation is the proper respondent to such an appeal. By its decision delivered on 22 August 2011, that Tribunal affirmed the determination of the assessor. The first respondent then sought leave to appeal from that determination of the Tribunal to the District Court. By s 39(1) of the Act, that appeal was limited to questions of law. By his judgment given on 2 March 2012, Levy DCJ (the primary judge) granted leave to appeal, allowed the appeal, set aside the orders of the Tribunal and remitted the matter to the Tribunal to be dealt with according to law: Lynch v Victims Compensation Fund Corporation [2012] NSWDC 17. 5The applicant invokes the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 and seeks to have the orders made by the primary judge quashed. 6The applicant contends that the primary judge made a decision in excess of the District Court's jurisdiction, when hearing appeals from the Tribunal, which was limited to questions of law, by wrongly characterising findings of fact of the Tribunal as involving questions of law. It relies upon the distinction between errors of fact and law in the fact finding process drawn by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157. In relation to fact finding, an appeal limited to questions of law does not permit the court to review a finding said to be perverse, contrary to the overwhelming weight of evidence or to ignore the probative force of contrary evidence: see, for example, Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 at [21]. Finding ultimate facts for which there is no evidence, or drawing inferences from intermediate facts for which there is no evidence, will constitute errors of law. The proceeding before the Victims Compensation Tribunal 7Although the proceeding before the Tribunal is described as an "appeal" from a determination of the compensation assessor, and is to be determined on the evidence and material provided to the compensation assessor unless the Tribunal by leave receives further evidence, the Tribunal is required to determine the matter in accordance with the provisions of Division 5 of Part 2 as if the references in that Division to a compensation assessor were to the Tribunal: s 38(4). Thus, the Tribunal is required to make its own determination as to whether an applicant is entitled to compensation and, when doing so, to address whether it is or is not satisfied as to various matters and to have regard to factors including ones which it "considers" relevant. 8In making that determination, the Tribunal is not bound by the rules of evidence and may inform itself on any relevant matter in any such manner as it thinks fit: s 38(1); cl 12, Part 3, Schedule 2. That liberty still makes it necessary for the Tribunal to base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus it may take into account material which, as a matter of reason, has some probative value in that sense. If material is capable of having any probative value, the weight to be attached to it is a matter for the Tribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493. 9The material before the Tribunal included a report or statement of Detective Senior Constable P. Biffin which stated: "The victim Jason Lynch freely admitted that the proceeds [sic] stolen during the offence was cannabis. This cannabis was later located on 'the perpetrator' and seized by police. During the investigations a witness was established that admitted he had attended Jason Lynch's place to purchase cannabis from him and had done this on prior occasions. On arresting 'the perpetrator' he stated to police on interview that the reason he committed the home invasion was to steal drugs as he knew that Jason Lynch was supplying them from his home. Neighbours of Jason Lynch were also spoken to as part of the investigation. They also stated that they believed that prior to the offence Jason was supplying drugs as there were always people coming and going from his house." 10That report, and the possible application of s 30(1)(a) of the Act, were drawn to the attention of the first respondent's solicitors at the time his application was being considered by the assessor. In response, the first respondent submitted a statutory declaration. In that declaration he denied any suggestion that he was engaged in the supply of prohibited drugs from his home. He also said "I do not sell illegal drugs and have not done so"; and that the small amount of cannabis taken at the time of the attack was for his personal use. 11The material before the assessor and the Tribunal included a police bail report which had been provided to the assessor by the police in connection with the compensation application. It was for a person with the same name and date of birth as the first respondent. That report referred to a conviction on 16 June 1997 for "supply prohibited drug" and a conviction on 13 July 2000 for "supply prohibited drug". The criminal history also included other "convictions for dishonesty and drug related (possession of drug) offences": see paragraph 15 of the Tribunal's reasons extracted in [17] of the primary judge's reasons. 12In the face of this material, the Tribunal constituted by Mr Lulham LCM, concluded as follows: "17. The police COPS entry system establishes that the perpetrator stated at the scene that the purpose of the entry into the appellant's home and the subsequent armed robbery was to warn the appellant to stop selling drugs as the perpetrator "owned" the particular area. Detective Senior Constable Biffin's report confirms the reason for committing the home invasion was to steal drugs as the perpetrators knew the appellant was supplying them from his home. Detective Senior Constable Biffin's report establishes that the police made further enquiries which satisfied them that the appellant was supplying drugs from his house. It is difficult to accept the appellant's denial in his statutory declaration that; 'I do not sell illegal drugs and have not done so' in light of the matters disclosed in his criminal record. 18. I am satisfied, on the balance of probabilities, that the appellant had used his house for the purpose of selling drugs. I am satisfied that he did so for some time prior to the act of violence. I am satisfied that the perpetrators' motive for the armed robbery was to intimidate the appellant and warn him off continuing to sell drugs. The perpetrators saw him as a rival in the selling of drugs. I am satisfied that it was the appellant's criminal activity that directly contributed to the armed robbery and to the injury sustained by the appellant. I am satisfied that the appellant's behaviour was such as to justify an award not being made in this matter pursuant to s 30(1)(a) of the Act." The errors identified by the primary judge as involving questions of law 13The bases upon which the primary judge considered that the Tribunal had erred in relation to questions of law are as follows. 14First, the Tribunal erred in treating s 30(1)(a) as not requiring a temporal connection between the earlier convictions and the home invasion and in concluding that the behaviour the subject of those convictions directly or indirectly contributed to the first respondent's injury. There was no temporal connection between the first respondent's 1997 and 2000 convictions for supplying prohibited drugs and the home invasion in October 2008: [85], [86], last sentence of [93], [95], [96], [97]. 15Secondly, the Tribunal erred in not weighing the probative value of the unverified bail report against the first respondent's sworn denial in making its finding that the first respondent was the subject of the 1997 and 2000 convictions: [87], [88]. 16Thirdly, the Tribunal erred in treating the report of the police officer as having any probative value when being satisfied to the required civil standard of proof, having regard to the seriousness of the allegations made. The primary judge described that report as "unsubstantiated opinion evidence", "unsubstantiated and anonymous hearsay", material which "did not constitute evidence in the commonly accepted sense" and material which had "no probative value": [78], [79], [90], [91], first two sentences of [93], [98], [99], [102], [104], [106], [107]. 17Finally, the Tribunal denied the first respondent procedural fairness because the material relied upon by it "ought to have been specifically drawn to his attention to enable him to specifically rebut those matters" and because he should have been given an opportunity to address whether there was a "contributory connection between his past criminal activity" and the matters raised by the police officer: [89], [105]. 18The applicant contends that none of these matters involved any error on the part of the Tribunal as to any question of law. Was there any error in respect of a question of law? 19It is convenient to deal with the "errors" identified by the primary judge in the order in which they are referred to above. 20As to the first error: I do not understand the reasoning and conclusions of the Tribunal (set out by the primary judge at [17]) as being that the fact of the convictions in 1997 and 2000 justified the finding that the first respondent had been supplying prohibited drugs from the premises he occupied in October 2008 at and shortly before that time. 21The evidence which the Tribunal relied upon to support that finding was the second-hand hearsay evidence in the report of Detective Senior Constable Biffin that an unnamed "witness" had attended the first respondent's house to purchase cannabis from him and had done this on prior occasions; that one of the two perpetrators of the home invasion had asserted that he "knew" that the first respondent was supplying drugs from his home; and that unidentified neighbours of the first respondent had seen people coming and going from the house and "believed" on that basis that the first respondent was supplying drugs. 22To be considered and weighed against that material were the first respondent's sworn declaration that he did not supply prohibited drugs from his home, that he did not sell illegal drugs and that he had not done so. The last statement, that he had not sold illegal drugs, was contradicted by the evidence of the two convictions in the bail report form. More generally, the first respondent's credibility also was called into question by the bail report which included convictions for offences involving dishonesty: R v Aldridge (1990) 20 NSWLR 737. 23When measured against the rules of evidence, there were deficiencies associated with material before the Tribunal. It was second-hand hearsay. With the exception of the "perpetrator", the sources of that hearsay were not identified. The subject matter of some of the hearsay would not have been admissible even if sought to be given by direct evidence; specifically, the statements that the perpetrator "knew" and that the neighbours "believed" that the first respondent was supplying drugs from his home. However, the Tribunal was not bound by the rules of evidence and these were matters which were to be taken into account when weighing the probative value of the evidence. They do not have the consequence that it had no probative value. 24This being the state of the evidentiary material, it was reasonably open to the Tribunal to reject the first respondent's denial that he had been supplying drugs from his home and to find that he had been doing so and that this activity directly resulted in the home invasion and contributed to his injury. The findings of the Tribunal to that effect did not involve any error of law. 25The foregoing discussion also shows that the primary judge was not correct to proceed on the basis that the Tribunal's finding of conduct in supplying drugs in October 2008 was based upon the evidence of the convictions for offences in 1997 and 2000. The Tribunal relied upon that evidence to support its conclusion that the first respondent should not be believed in his denial that he had ever sold illegal drugs. It was not necessary for that conclusion that there have been a close temporal connection between those earlier convictions and the home invasion in October 2008. The evidence supporting the finding of supplying drugs in October 2008 and of the connection between that and the home invasion was the hearsay evidence given by the police officer. 26It is necessary, nevertheless, to say something about the primary judge's conclusion that a temporal connection, presumably between the relevant behaviour and the injury, is an "essential pre-requisite" for such behaviour to fall within s 30(1)(a): [86]. In the language of s 30(1)(a) the relevant connection is that the behaviour "directly or indirectly contributed to the injury". What is required is a causal connection. The use of "contributed" indicates that the behaviour does not have to be the only or a principal cause of the injury. The requirement that the behaviour "directly or indirectly" contribute means that it does not have to operate directly to produce the injury, but may be involved at some earlier point in the chain of causation. Whether there is such a causal connection obviously depends upon the circumstances of each case. Those circumstances may include a close temporal connection between the behaviour and the happening of the injury. However, it is not necessary or essential that there be such a temporal connection for the causal relationship described in s 30(1)(a) to be established. The primary judge's suggestion that the position might be otherwise must be rejected. 27As to the second error: The Tribunal did consider and resolve the conflict between the fact of the convictions referred to in the bail report and the first respondent's denial in his statutory declaration. It did so by weighing that evidence in the light of the other material before it. It was reasonably open to the Tribunal to treat the bail report as correctly recording the fact of the first respondent's criminal history and to prefer that evidence to his sworn denial. Its doing so did not constitute or involve any error of law. 28As to the third error: The evidence of the police officer is not accurately described as opinion evidence and the Tribunal did not treat it as such. Although as hearsay evidence it suffered from the deficiencies referred to earlier in these reasons, it had probative value. The concluding statement in the police officer's report (set out in paragraph 14 of the Tribunal's reasons which is extracted in [17] of the primary judge's reasons) was expressed as an opinion as to the ultimate factual question to be addressed by the Tribunal which was entitled to have regard to the hearsay evidence. The extract from the Tribunal's reasons shows that it considered and relied upon the hearsay evidence. They do not suggest that the Tribunal gave any material significance to that opinion of the police officer. 29The Tribunal was satisfied on the balance of probabilities that the first respondent had used his house for the purpose of selling drugs. It did not misdirect itself as to the required civil standard of proof and the evidentiary material was capable of supporting that conclusion. Its reliance on that material did not involve any error of law. 30As to the final error: When the application for compensation was before the assessor, the first respondent's solicitors were invited to inspect the assessor's file and to make an application for the police report. They were provided with the statement of the police officer and the bail report and their attention was drawn to the possible application of s 30(1)(a). The first respondent addressed these matters in his statutory declaration of 21 October 2010. It is not apparent that any other matters needed to be drawn to his attention to enable him to know what material was relied upon and to understand its significance. As I have already said, the evidence of the police officer supported there being a sufficient causal connection between recent behaviour of the first respondent and the injury. For these reasons, there was no relevant denial of procedural fairness in either of the respects identified by the primary judge. 31The matters relied upon by the primary judge to justify the allowing of the appeal did not involve any questions of law. It follows, there being no discretionary reasons for not doing so, that the orders made by the primary judge should be quashed. 32There is one further matter to which reference ought be made. Order (d) as made by the primary judge provided that on remitter the proceeding was to be dealt with by the Tribunal according to law and in conformity with [113] and [114] of his reasons. The former provided: "[113] ... In my view, on the foregoing analysis and on the construction of s 30(1)(a) of the Act, the Tribunal's reliance on that provision to deny the appellant's compensation should not stand, with the result that the orders made in the Tribunal must be set aside and the matter should be remitted to the Tribunal to be reheard without regard to the opinion evidence to the effect the appellant was dealing in drugs from the premises." (emphasis added) 33Section 39(5) permits the District Court to set aside a determination and remit a matter to be considered and determined again by the Tribunal. I take the reference in s 39(5)(b) to the further consideration of the Tribunal being "either with or without the hearing of further evidence" to make clear that in accordance with s 38(3), the Tribunal may by leave receive further evidence on the remitted hearing if one of the relevant conditions is satisfied. It is also possible that an earlier decision of the Tribunal to receive or not receive further evidence may have been the subject of the appeal to the District Court with the result that the earlier decision may have to be revisited on the remitted hearing "in accordance with the decision of the District Court on the question of law concerned". 34The order of the primary judge in terms required that on the further hearing the Tribunal not have regard to opinion evidence to the effect that the first respondent was dealing in drugs from the premises. There are potential difficulties in making an order in terms which prevent regard to particular evidence on a remitted hearing. First, the order may or may not reflect the decision of the Court on the relevant question of law. If it does not, it will go beyond what s 39(5)(b) permits and empowers the Court to do. Secondly, the order may not clearly indicate what evidence is referred to. For example, in the present case it is not clear whether the reference is to all of the police officer's evidence or only that part of it which purports to record his opinion that the first respondent was supplying drugs. Thirdly, an order in this form may prevent regard to further evidence on a subject and in doing so be inconsistent with the continued availability of s 38(3) in relation to the adducing of further evidence at the remitted hearing. 35If the decision in a case like the present one is that certain material has no evidentiary value and was not reasonably capable of supporting particular findings or inferences and that is recorded in the reasons, it should not be necessary to make an order which seeks specifically to identify such material. A further determination of the Tribunal "in accordance with the decision of the District Court" would be required to treat that evidence as incapable of supporting those particular findings or inferences. Proposed orders 36The orders I propose be made are: (1)The record of these proceedings before Levy DCJ of the District Court of 2 March 2012 (No. 376366 of 2011) be removed to this Court. (2)The orders made by Levy DCJ in the said proceedings be quashed. (3)The first respondent to pay the applicant's costs of the proceedings before this Court. (4)The first respondent, if qualified, have a certificate under the Suitors Fund Act 1951 in respect of the costs in this Court. 37The applicant also sought an order that the first respondent pay its costs of the proceedings before Levy DCJ. The Court cannot make such an order. In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110] it was held that there is no legislative provision giving this Court power, when exercising its supervisory jurisdiction, to make a costs order in place of the orders that have been quashed: see also Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [4], [7], [18], [63]. 38In Edwards v Santos at [63], fn 60, Heydon J noted that the correctness of this proposition might depend on whether s 98(1)(b) of the Civil Procedure Act 2005, read with s 98(6)(c), gives this Court jurisdiction to make such an order. Whether that is so would depend on the proceedings in this Court answering the description "proceedings transferred or removed" into the Court. If that were so, the costs of the proceedings before Levy DCJ would be "costs of the proceedings before they were transferred or removed" within s 98(6)(c). 39Because the per incuriam rule does not apply to decisions of courts of appellate jurisdiction superior to that of a court in which the rule is sought to be invoked, it is not open to this Court to question the correctness of the decision in Kirk on the basis that the majority reasoning does not consider the possible application of these provisions: Cassell & Co Ltd v Broome [1972] AC 1027 at 1054; Baker v The Queen [1975] AC 774 at 788; Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 479; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; 165 CLR 107 at 129-130. 40Having said that, proceedings under s 69 of the Supreme Court Act seeking relief in the nature of certiorari to set aside orders of the District Court do not involve or require the removal of proceedings from that court into the Supreme Court. Whilst in medieval times the writ of certiorari was used to remove proceedings to the King's Bench so that those proceedings could be heard in that court, by the beginning of the eighteenth century the primary use of the writ was as an instrument for review of decisions of inferior courts and tribunals: see Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 at 175-176; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [98]-[106], [256]-[259]; Kirk at [59]; L Jaffe and E Henderson, "Judicial Review and the Rule of Law: Historical Origins" (1956) 72 Law Quarterly Review 345, 350-351, 357; G Sawer, "Error of Law on the Face of an Administrative Record" (1954) 3 University of Western Australia Annual Law Review 24, 26-33. The use of the writ of certiorari to remove and hear was recognised by provisions such as s 47 of the District Court Act 1912. However, that provision was repealed in 1973 and now the transfer or removal of proceedings between courts is regulated by statute. Writing in 1995, the High Court observed in Craig (at 175, fn 55) that the use of the writ of certiorari to remove and hear would now seem to be obsolete. 41Whilst s 69 preserved the authority of this Court to grant relief in the nature of certiorari to quash for error, it is not necessary for the grant of such relief that the "record" of the inferior court or tribunal whose decision is the subject of the application be removed into this Court: Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [4]. Relief in the nature of certiorari is granted in proceedings commenced in the original jurisdiction of the Court and assigned, in relation to specified courts and tribunals, to the Court of Appeal: s 48(2) of the Act. At the time these proceedings were commenced, UCPR r 6.12A(c) provided for a copy of the decision and reasons, if any, of the relevant court or tribunal to be annexed to the summons commencing the proceedings. 42There remains legislation which can result in the removal of proceedings to the Supreme Court so as to engage the operation of ss 98(1)(b) and (6)(c) of the Civil Procedure Act. That legislation includes s 41(2) of the Minors (Property & Contracts) Act 1970 and s 14E(2) of the Motor Vehicles (Third Party Insurance) Act 1942. 43GZELL J: I agree with Meagher JA. ********** 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. Decision last updated: 04 September 2012