Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ARU v Victims Compensation Fund Corporation [2015] NSWCATAP 211 Hearing dates: 18 May 2015, Written submissions closed on 22 May 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Appeal Panel Before: A Britton, Principal Member M Riordan, Senior Member Decision: 1. Appeal Allowed. 2. Decision under appeal is set aside. 3. Matter is remitted to the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal for reconsideration in accordance with these reasons. Catchwords: ADMINISTRATIVE LAW — appeals from decisions of NCAT — adequacy of reasons — denial of procedural fairness — delay in making decision; PRACTICE AND PROCEDURE — requirement to hold a hearing — under Victims Support and Rehabilitation Act 1966 (NSW) and Civil and Administrative Tribunal Act 2013 (NSW); STATUTORY INTERPREATION — meaning of "receives as … a direct result" Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Rights and Support Regulation 2013 Victims Support and Rehabilitation Act 1966 (NSW) Cases Cited: Collector of Customs v Pozzolanic (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Maguire v VCFC [2002] NSWDC 7 Mastronardi v State of New South Wales [2007] NSWCA 54 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Category: Principal judgment Parties: ARU (Applicant) Victims Compensation Fund Corporation (Respondent) Representation: ARU's mother (Appellant) Solicitor: S Matulewicz (Respondent) File Number(s): AP 14/60549 Publication restriction: Name of appellant not to be disclosed or published in relation to proceedings: s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative & Equal Opportunity Division Citation: [2014] NSWCATAD 203 Date of Decision: 22 November 2014 Before: J McAteer, Senior Member File Number(s): 137028 reasons for decision 1. In 2003, while at home with his family, two and a half year old infant, ARU was the victim of a "drive-by shooting". Five years later, ARU's mother lodged an application for compensation on behalf of ARU under the now repealed Victims Support and Rehabilitation Act 1966 (NSW) (the 1996 Act). 2. ARU now appeals a decision made by the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT) on 22 November 2014 dismissing his claim for compensation (the NCAT decision). 3. ARU is entitled to appeal the NCAT decision on a question of law but must obtain leave from the Appeal Panel to appeal on other grounds (s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)). 4. ARU is a minor and he was represented in the Appeal by his mother. Statutory framework Statutory compensation 1. The 1996 Act established a statutory compensation scheme for victims of crimes of violence. 2. Section 11 of the 1996 Act provides: 11 Compensable injuries described by reference to act of violence (1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries. (2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries). (3) In the absence of an election, the person determining the application is to make the election. 1. Section 14 provides: 14 Compensation payable to primary victims other than for expenses reimbursed under section 14A (1) The statutory compensation for which a primary victim of an act of violence is eligible comprises: (a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and (b) compensation for financial loss incurred by the victim as a direct result of any such compensable injury. 1. Section 5 of the 1996 Act defines an "act of violence" to mean: Act of violence (1) In this Act, "act of violence" means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. … 1. Section 7(1) of the 1996 Act provides: (1) A "primary victim" of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act. 1. Clause 4 of Schedule 1 of the 1996 Act states: Reduction of standard amount because of existing condition If the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition of the eligible victim, the standard amount of compensation for the injury is to be reduced by the proportionate amount that the Tribunal or compensation assessor considers is attributable to the existing condition. 1. Clause 12 of Schedule 1 of the 1996 Act lists "compensable injuries" for which compensation is payable under the Act and includes: Psychological or psychiatric disorder Category 1, chronic psychological or psychiatric disorder that is moderately disabling Category 2, chronic psychological or psychiatric disorder that is severely disabling 1. Clause 5 of Schedule 1 of the 1996 Act states: 5 Psychological or psychiatric disorder (1) For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant's condition prepared by a qualified person chosen from a list of qualified persons designated by the Director. (1A) In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1). ... (3) The compensable injury of psychological or psychiatric disorder (category 1) applies only in relation to an act of violence that has apparently occurred in the course of the commission of any of the following offences: (a) armed robbery, (b) abduction, (c) kidnapping. Appeals from a determination of a compensation assessor 1. The 1996 Act requires applications for statutory compensation to be considered by a Compensation Assessor without conducting a hearing (s 27(2) of the 1996 Act). 2. Section 29 of the 1996 Act provides: Determination of applications (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. … (2) An award of statutory compensation must not be made unless the compensation assessor is satisfied, on the balance of probabilities, that the person to whom the application for that compensation relates: (a) is a primary victim, secondary victim or family victim of an act of violence, and (b) is eligible to receive the amount of compensation provided by the award. 1. An applicant for statutory compensation aggrieved by a determination of a Compensation Assessor may appeal to the Tribunal against the determination (s 36). Although described as an "appeal" from a determination of the Compensation Assessor, the Tribunal is required to make its own determination as to whether an applicant is entitled to compensation. That determination must generally be made on the evidence and material provided to the Compensation Assessor (s 38(3) of the 1996 Act). The Tribunal may, by leave, receive further evidence and material if it considers that special grounds exist or if the evidence or material concerns matters occurring after the determination appealed against (s 38(3) of the 1996 Act). In determining an appeal 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) of the 1996 Act). 2. The Tribunal is to proceed to determine a matter the appeal without a hearing unless satisfied that it cannot properly determine the matter without a hearing (ss 38(1) & 38(2) of the 1996 Act). Repeal of the 1996 Act 1. On 3 June 2013 the 1996 Act was repealed and replaced by the Victims Rights and Support Act 2013 (NSW) (the 2013 Act). Appeals bought under the 1996 Act pending as at 3 June 2013, were required to be determined under the 1996 Act (cl 16 of the Victims Rights and Support Regulation 2013) 2. The 2013 Act abolished the Victims Compensation Tribunal (VCT) and appeals to that Tribunal made under s 36 of the 1996 Act, which had not been finally determined by 3 June 2013, were taken to have been commenced before the Administrative Decisions Tribunal (ADT) (cl 14 of Schedule 2 of the 2013 Act). Upon the establishment of NCAT on 1 January 2014, the ADT was abolished (s 7 and cl 3 of Sch 1 of the NCAT Act). By the operation of cl 7 of Schedule 1 of the NCAT Act, ARU's Application was taken to be an application before NCAT. Background to NCAT decision 1. To put the submissions made by the parties in context it is necessary to sketch in some details about the background to the decision under appeal. 2. In August 2008, ARU's mother lodged an application for compensation on behalf of her son under the 1996 Act, claiming that he had been a "primary victim" of "an act of violence", namely the January 2003 drive-by shooting (the Application). 3. The 1996 Act required an application for compensation made under that Act to be lodged within two years of the subject act of violence. In a letter to the Attorney General, dated 1 August 2008, ARU's mother explained that the Application had been lodged out of time because in an earlier claim for compensation it was mistakenly asserted that ARU was a "secondary" and not a "primary" victim of the drive-by shooting. 4. In a decision made on 10 October 2008, the VCT refused ARU's application to lodge the Application out-of-time. ARU lodged an appeal against that decision. On 3 November 2009 the (then) Chairperson of the Victims Compensation Tribunal (the Chairperson) granted ARU leave to lodge the Application out-of-time. Decision by the Compensation Assessor 1. On 23 July 2010, a Compensation Assessor dismissed the Application. The Assessor accepted that ARU had been the victim of an "act of violence", namely the January 2003 drive-by shooting, but did not accept that ARU had suffered a compensable injury as "a direct result" of that act of violence. Appeal to the VCT 1. In a decision made on 30 March 2011, the Chairperson dismissed ARU's appeal against the decision made by the Compensation Assessor (the Chairperson's decision). While the Chairperson accepted that ARU had been the victim of an act of violence and suffered a "Category 2 psychological disorder" —separation anxiety and co-morbid global learning difficulties — he was not satisfied that that condition was "a direct result" of the subject act of violence. 2. The Chairperson concluded (at [32]): …being present at the time of the drive-by shooting played a very minimal role in [ARU] acquiring the psychological disorder. 1. In his reasons for decision, the Chairperson noted that two reports prepared by Mr Borenstein, dated 12 January 2008 and 11 October 2008 were before the Compensation Assessor. . Noting that no application had been made for leave to receive further evidence, the Chairperson decided not to have regard to a third report prepared by Mr Borenstein dated 5 February 2010, which was in the VCT's file. Appeal to District Court of NSW 1. ARU appealed against the Chairperson's decision to the District Court of NSW on the ground that the Chairperson had erred by failing to take into account Mr Borenstein's report of 5 February 2010. The VCT conceded that the Chairperson had mistakenly assumed that that report had not been before the Compensation Assessor and consented to orders being made allowing the appeal. In September 2011, the District Court set aside the Chairperson's decision and remitted the matter to the VCT for reconsideration having regard of Mr Borenstein's report of 5 February 2010. Appeal remitted to the VCT 1. Numerous interlocutory decisions were made in the three years between the remittal of the appeal by the District Court and its determination by NCAT. Some are relevant to the submissions made by ARU in this appeal. 2. On 5 September 2012, the Chairperson wrote to ARU's solicitors advising he had commenced determining the remitted application. He stated that he decided to refer the matter for a medical examination by psychologist, Dr John McMahon, under s 28 of the 1996 Act, because of his difficulty reconciling the opinions expressed by Mr Borenstein in his report of 12 January 2008 — "the subject act of violence was one of a number of contributing factors to ARU's condition" — with the opinion that he expressed in his subsequent report of 5 February 2010 report — "the subject act of violence contributed at least 85% to ARU's condition". 3. On 2 October 2012, the Chairperson invited ARU's solicitors to forward any additional material they considered relevant to Dr McMahon. In a letter to the Chairperson dated 25 October 2012, ARU's solicitors advised they had no objection to the proposed assessment, but requested that Dr McMahon not be provided with various medical reports relating to ARU's parents. In a letter dated 31 October 2012, the Chairperson advised that those reports had already been forwarded to Dr McMahon. 4. In a report dated 17 January 2013, Dr McMahon did not challenge Mr Borenstein's opinion that ARU suffered from Separation Anxiety Disorder and a Global Learning Disorder (Dr McMahon's first report). However, he disagreed with Mr Borenstein's opinion about the aetiology of those conditions. 5. In Dr McMahon's opinion ARU's Global Learning Disorder was most likely a consequence of ear infections suffered as a child and possibly "glue ear". He wrote that the drive-by shooting may have contributed to ARU's Separation Anxiety Disorder, but that other factors including ARU's Global Learning Disorder, poor social skills and fear of negative relationships with peers played a great role. In Dr McMahon's opinion, the drive-by shooting made a contribution of 20 per cent to the onset of ARU's Separation Anxiety Disorder. 6. In a letter dated 23 January 2013, the VCT's Registrar provided ARU's solicitor with a copy of Dr McMahon's first report and invited "further submissions or material" by 1 February 2013. The Registrar advised that the appeal had been listed for determination "on the papers" on or after the week commencing 4 February 2013. 7. In submissions dated 1 February 2013, ARU's solicitors submitted that Dr McMahon's opinion was replete with "conjecture and supposition" and that the opinion of Mr Borenstein should be preferred. The solicitors drew to the Chairperson's attention material that they asserted supported the contention that ARU had not, as assumed by Dr McMahon, suffered from childhood ear infections (see for example, the report prepared by ARU's GP dated 1 February 2013, the report prepared by otolaryngologist, Associate Professor Thomas Havas, dated 19 September 2003). 8. On 27 March 2013, the Chairperson invited ARU to make further submissions. In submissions dated 12 April 2013, Counsel for ARU challenged Dr McMahon's opinion that "glue ear" was the major cause of ARU's Global Learning Disorder. Counsel indicated that if the VCT was not minded to accept the opinion of Mr Borenstein over Dr McMahon, then a hearing at which both experts were called would not be opposed. Proceedings before NCAT 1. As noted, from January 2014 outstanding appeals against decisions made by compensation assessors under the 1996 Act were required to be determined by NCAT. 2. On 21 March 2014, a reconstituted Tribunal (SM Moloney, sitting in the Administrative and Equal Opportunity Division of NCAT) directed that Dr McMahon be provided with a complete copy of Mr Borenstein's report of 5 February 2010. (Dr McMahon had noted in his first report that he had not been provided with a complete copy of Mr Borenstein's report of 5 February 2010). 3. In a report dated 14 March 2014, after reading Mr Borenstein's report of 5 February 2010 in full, Dr McMahon wrote that his opinion remained unchanged (Dr McMahon's second report). (Apparently the date of that report is incorrect as it predates the direction for clarification made by SM Moloney.) The report is otherwise identical to Dr McMahon's first report. 4. On 17 April 2014, ARU's solicitors filed further submissions, which in effect repeated and relied upon their earlier submissions dated 1 February 2013 and 12 April 2013. On the same day, ARU's mother also filed submissions, which traversed a number of areas including purported errors and defects in Dr McMahon's report and administrative shortcomings in the management of ARU's application. She urged the Tribunal to: admit a further report prepared by Mr Borenstein dated 30 November 2013 take into account the file held by the Tribunal relating to the claim for compensation made by ARU's father under the 1996 Act. 1. On 2 September 2014, the matter was listed again before a further reconstituted Tribunal (SM McAteer). Noting that neither party had been provided with a copy of Dr McMahon's second report, SM McAteer directed the Registrar to give the parties a copy of that report and also invited the parties to make further submissions. Detailed submissions made on behalf of ARU were filed on 2 September 2014. Grounds of appeal 1. ARU's notice of appeal identified numerous grounds said to raise questions of law. In addition, ARU sought leave to appeal on "other grounds", namely that the decision was not fair and equitable and was against the weight of evidence. 2. The grounds of appeal can be summarised as follows: Grounds said to raise questions of law (a) that the Tribunal failed to afford ARU procedural fairness by (i) not holding a hearing (ii) refusing to allow him the opportunity to respond to Dr McMahon's second report (b) that the Tribunal failed to give adequate reasons for its decision (d) that the Tribunal misconstrued s 7 of the 1996 Act (e) that the Tribunal's decision was vitiated by delay (f) that the Tribunal failed to have regard to "all of the material". Grounds other than questions of law (g) that the finding made by the Tribunal that ARU's psychological disorder was not a direct result of the drive-by shooting was against the weight of evidence and/or not fair and equitable. Ground 1: denial of procedural fairness Determination of Application without holding a hearing 1. The principles of procedural fairness require that a person whose interests may be adversely affected receive a fair hearing by use of an appropriate procedure in the circumstances. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court cited with approval at 160 the following statement of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added) 1. The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at 160. 2. By the operation of ss 38(1) and 38(2) of the 1996 Act, the Tribunal was required to determine the appeal from the decision of the Compensation Assessor "without a hearing" unless it was satisfied that it could not properly determine the appeal without a hearing. 3. We understand ARU to contend that the Tribunal was bound to apply s 50 of the NCAT Act, not ss 38(1), 38(2) of the 1996 Act. In contrast to the 1996 Act, s 50 of the NCAT Act requires the Tribunal to hold a hearing unless the Tribunal otherwise decides (s 50(1) of the NCAT Act). The Tribunal may dispense with a hearing but only if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (s 50(2) of the NCAT Act). In deciding whether to dispense with a hearing, the Tribunal must give the parties an opportunity to make submissions about the proposed course and take any submissions into account (ss 50(2) and 50(3) of the NCAT Act). 4. Even if ARU's contention about the applicability of s 50 of the NCAT Act is correct, the material before us makes it plain that the Tribunal complied with of its obligations under that provision. When invited to comment upon whether the appeal to the Tribunal should be determined without a hearing, ARU's solicitors stated that they did not oppose that course. As recently as six weeks before the decision under appeal was handed down, ARU's solicitors expressly consented to the appeal being determined "on the papers" without either Dr McMahon or Mr Borenstein being called. 5. ARU was given ample opportunity to provide material and make submissions in relation to the appeal from the decision of the Compensation Assessor. In those circumstances and given that ARU had informed the Tribunal that he did not object to the decision under appeal being determined without a hearing, we are not persuaded that the failure to hold a hearing constitutes a denial of procedural fairness. Opportunity to respond to Dr McMahon's report 1. The NCAT Act requires the Tribunal to take such measures as are "reasonably practicable" to ensure that the parties had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c)). In addition, the 1996 Act requires the Tribunal to determine the appeal on the evidence and material provided to the compensation assessor unless by leave, it receives further evidence and material (s 38(3)). 2. As the history set out above reveals, ARU was provided with numerous opportunities to comment on Dr McMahon's opinion. At the invitation of the Tribunal, ARU filed detailed written submissions about Dr McMahon's first report on 1 February 2013, 12 April 2013 and 17 April 2014. When it emerged that ARU had not been provided with a copy of Dr McMahon's second report, the Tribunal arranged for him to be provided with a copy and invited him to make further written submissions, which he did. 3. We do not accept the proposition that ARU was not provided with a reasonable opportunity to respond to Dr McMahon's opinion. This ground of appeal is not made out. Ground 2: construction of s 7 of the 1996 Act 1. ARU contends that the Tribunal misconstrued the definition of primary victim in s 7 of the 1996 Act by interpreting the phrase "a direct result of" to mean "the sole or main result of". 2. To put this argument in context it is necessary to refer again to the relevant statutory provisions relating to causation. 3. Section 29(2) of the 1996 Act directs that an award of statutory compensation must not be made unless the Compensation Assessor (or Tribunal on appeal) is satisfied, on the balance of probabilities, that the person to whom the application for that compensation relates is a primary victim … of an act of violence. Section 14(1)(a) of the 1996 Act states that the statutory compensation for which a primary victim of an act of violence is eligible includes: compensation for compensable injuries received by the victim as a direct result of the act of violence. Section 7 of the 1996 Act defines a primary victim of an act of violence to mean a person who receives a compensable injury … as a direct result of that act. Clause 4 of Schedule 1 of the 1996 Act provides that if the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition of the eligible victim, the standard amount of compensation for the injury is to be reduced by the proportionate amount that the Tribunal or compensation assessor considers is attributable to the existing condition. 4. By the combined operation of these provisions the Tribunal was required to answer whether on the balance of probabilities: 1. ARU had received a "compensable injury" namely an injury listed in cl 12, sch 1 of the 1996 Act, and 2. If so, whether that injury was a direct result of the subject act of violence, namely the drive-by shooting. 1. On the first question, while not expressly stated it is implicit from its reasons that the Tribunal accepted the unchallenged opinion of Mr Borenstein that ARU suffered from Separation Anxiety Disorder and Global Learning Disorder, which in combination constituted a Category 2 "chronic psychological or psychiatric disorder that was severely disabling". 2. The definition of "primary victim" in s 7 of the 1996 Act was of central importance to the second issue that the Tribunal was required to decide. The use of the adjective "direct" indicates that the connection between the compensable injury and the subject act of violence must be unmediated, straightforward and proximate. To fall within that provision, the injury cannot be an indirect consequence of the relevant act of violence. 3. With respect to the second question, the Tribunal stated (at [39]): The compass of this appeal concerns whether ARU has sustained a compensable injury. As outlined earlier, that issue can be further summarised as whether to the Tribunal's satisfaction having regard to the provisions of the old Act, ARU was suffering a chronic psychological or psychiatric disorder that was severely disabling as a direct result of the act of violence, or due to the act of violence aggravating, accelerating, exacerbating or deteriorating an existing condition, by the act of violence. (emphasis added) 1. The Tribunal went on to state (at [55]): In my view the real issue to be considered in this case is the meaning of the statutory phrase 'as a direct result' as it appears in section 7 of the old Act. (emphasis added) 1. After considering the decision of the District Court in Maguire v VCFC [2002] NSWDC 7, the Tribunal said (at [63]): ... The valid test remains that the finder of fact needs to satisfy themselves as to whether the injury received was as a direct result of the act of violence. 1. The Tribunal concluded (at [64]): I find having examined all of the evidence that ARU's psychological injuries arose predominantly not as a direct result of the act of violence, but as an indirect result of other acts of violence for which ARU has not claimed and is in all probability, not entitled to claim. That is, the weight of cogent evidence is that previous and subsequent events (which could be termed acts of violence against other members of ARU's immediate family), has been the significant contributor to his current psychological / psychiatric state. …(emphasis added) 1. The Tribunal then went on to state (at [68]): Whilst there is some evidence that the act of violence had an impact on ARU's functioning, I am not satisfied on the evidence before me that the impact is the major or significant basis for the claimed compensable injury. (emphasis added) 1. After considering cl 4 of Schedule 1 of the 1966 the Tribunal commented (at [72]): Whilst there is evidence of an existing condition as referred to in the 2008 Report, in my view whilst the evidence indicates that the act of violence had an impact which may have aggravated exacerbated or accelerated that condition, other significant post act of violence factors (as detailed in the material above) contributed to ARU's development of his condition. Additionally, there is significant evidence that those matters were all as an indirect result, rather than as a direct result. 1. While the Tribunal correctly stated the test of causation (see [39], [55], [62]), in applying that test the Tribunal fell into error by in effect imposing a requirement that ARU's Separation Anxiety Disorder and Global Learning Disorder must be not only a direct result of the subject act of violence but also that the subject act of violence is the major or significant cause of that injury (see [64] and [68]). In reaching that conclusion, we are mindful that the reasons for the decision are not to be "construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 2. What the provision required was for the Tribunal to identify the injury, if any, that had been inflicted directly as a result of the act of violence. If the injury was an exacerbation or aggravation of a previous condition, as it appears the Tribunal thought it was (see [72]), its task was to assess the difference between the status of ARU's condition before the act of violence and its subsequent aggravated state. And the relevant difference to be assessed was the difference directly referable only to the act of violence itself -- no easy fact-finding task admittedly. 3. In attempting that task, it was no doubt necessary to consider ARU's condition as a whole, then to consider to the degree to which it could be apportioned between factors that were directly connected with the act of violence and factors that had no connection or an indirect connection. This was required to enable the Tribunal to make the ultimate assessment of what effect, if any, direct effect the act of violence had upon ARU. The Tribunal did not reject the evidence that supported a finding that the act of violence had directly impacted upon ARU. It simply could not be satisfied that its impact was of "major or significant" effect. In effect, the Tribunal reversed the test that it was required to apply. 4. For these reasons, we find that the Tribunal erred in its application of s 7 of the 1996 Act. Ground 3: adequacy of reasons 1. In his notice of appeal, ARU contends that the Tribunal failed to give adequate reasons. The basis of that contention is unclear. 2. Where, as in this case, written reasons for decision are given, s 62(3) of the NCAT Act provides the reasons must set out the following: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, 3. the reasoning processes that lead the Tribunal to the conclusions it made. 1. In Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647Finkelstein J said at 656 the following principles must be born in mind when determining whether the obligation to give reasons has been discharged: First as Shepherd J said in Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 40 ALR 233; 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: [Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500] at 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) [1987] FCA 301; (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the tribunal: Telescourt v Commonwealth [1991] FCA 205; (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through "with a fine appellate toothcomb to find error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; 136 ALR 481; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187. 1. The Tribunal was not required to give "lengthy or elaborate reasons" but it is necessary that the "essential ground or grounds upon which the decision rests should be articulated": Collins v Urban [2014] NSWCATAP 17 at [54] citing Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 at [60] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280. 2. In its reasons the Tribunal set out: its findings on material questions of fact by reference to the material on which those findings were based (see [38], [40]–[52]) its understanding of the applicable law (see [37], [67], [62], [69],[71]) the reasoning process which led to the conclusion it made [55] – [73]. 1. For the reasons discussed above, the Tribunal erred in its application of the test of causation. However, we are not persuaded by the argument that the Tribunal breached its obligation to give adequate reasons. This ground of appeal is not made out. Ground 4: failure to have regard to all evidence 1. ARU asserts that the Tribunal failed to have regard to "all of the evidence" and contends that given the state of the file held by the Registrar in relation to his Application, it is implausible that the Tribunal was able to give proper consideration to the material and submissions filed in support of his Application. 2. The parties agree that in early 2014, when they inspected the Tribunal's file relating to ARU's Application, it was in a state of disarray and, among other things, contained multiple copies of some documents and incomplete copies of others. 3. It is self-evident that the task of decision-making "on the papers" is difficult where the material that the decision-maker is required to consider is in a state of disarray. However, it does not follow that because the available material was disorderly the Tribunal failed to have regard to the filed material. While ARU disagrees with the conclusion reached by the Tribunal about the weight to be given to some of the material, in particular the opinion of Dr McMahon, he has not identified any evidence or submissions of significance that the Tribunal has failed to take into account. We do not accept the proposition on which this ground of appeal is based. Ground 5: decision vitiated by delay 1. ARU contends that the length of time taken to determine his claim for compensation amounted to a denial of procedural fairness. 2. Excessive delay in making a decision can in some circumstances constitute a denial of procedural fairness. However, as Gleeson CJ said in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at 474, "the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself". (See also Mastronardi v State of New South Wales [2007] NSWCA 54 at [63].) 3. There can no argument that there was a significant delay between the making of the decision by the Compensation Assessor and the determination of the appeal by the Tribunal. However, ARU has not identified how the delay affected the decision under appeal. This is not a case such as Mastronardi where there was a significant delay between the taking of evidence and the making of the decision. There is nothing before us that indicates that the Tribunal's ability to assess the evidence and material was compromised by the passage of time between the making of the decision by the Compensation Assessor and the determination of the appeal by the Tribunal. The delay in determining the appeal while regrettable does not demonstrate an error of law. What orders should be made under s 81 of the NCAT Act? 1. An error of law has been established in relation to the Tribunal's application of s 7 of the 1996 Act. We are unable to determine whether a different decision would have been reached if this error had not occurred. For that reason, we have decided to allow the appeal and to set aside the decision of the Tribunal. 2. Section 81 of the NCAT Act gives the Appeal Panel broad powers which include remittal, or the exercise of the powers available to the Tribunal at first instance. Given that the Tribunal has had the opportunity of considering the competing medical evidence in some detail in our view the preferable course is that the matter be returned to the Tribunal for reconsideration on the issue of causation in accordance with these Reasons. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 30 September 2015