O'Meley v Victims Compensation Fund Corporation [2001] NSWDC 30

New South Wales District Court

CITATION : O'Meley v Victims Compensation Fund Corporation [2001] NSWDC 30 TRIBUNAL : Victims Compensation Tribunal PARTIES : Colleen O'Meley Victims Compensation Fund Corporation FILE NUMBER(S) : 260 of 2001 CORAM: Twigg DCJ CATCHWORDS: natural justice - sufficient reasons - relevant considerations - question of law LEGISLATION CITED: Victims Compensation Act 1996 Kioa v West(1985) 159 CLR 550 ; CASES CITED: Azzopadi v Tasman UEB Industries Ltd 4 NSWLR 139; Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 ; Pickwell's Case (2001) NSWCA 462 DATES OF HEARING: 7/2/02 DATE OF JUDGMENT: 7 February 2002

JUDGMENT: HIS HONOUR JUDGE TWIGG QC: Colleen Maree O'Meley ("the appellant") brings an appeal to the District Court on a question of law pursuant to s 39(1) of the Victims Compensation Act 1996. That section, in its phraseology, permits an applicant for statutory compensation, with the leave of the Court, to bring to this Court a question of law arising on any determination of the application by the Tribunal.

The appellant lodged an application for compensation with the Victims Compensation Tribunal on 12 February 1999. She was born on 27 September 1960 and she alleged that, at 2.30pm on 8 May 1997, she suffered an injury as a result of an offender approaching her and damaging her tape recorder by jumping on it and then by picking up a glass, smashing it on a verandah railing, and striking the victim twice, cutting her seriously on the chin.

The file of the Tribunal is before me as exhibit A and the Police report is part of the file. That indicates that, on 15 January 1999, there was an entry, often referred to as a COPS entry, of a report by her saying that she was injured at a demonstration at the Southern Cross university on 7 May 1997 by a male person whom she could not identify; that he broke a glass and cut her chin with a piece of broken glass. The note of the informant, or rather the Police person is that the allegation is regarded as doubtful.

There was a determination by an Assessor Hosking, on 8 February 2001. This is done "on the papers", and the finding in the first paragraph is that "with some reservations I find that an act of violence is established." The assessor noted that the failure to report the matter to Police for such a long period of time makes prosecution of the offender virtually impossible. If a report were made at the time witnesses may well have been located and a prosecution of the offender undertaken. He finds the applicant's failure to report the matter in a reasonable time frame is a reason not to make an award.

There was a repeal from that and the appeal is by a magistrate and the appeal is dismissed on 10 August 2001.

There is note of some of the matters, including the report of Miss Oliver of 14 May 1999, that the appellant told that Miss Oliver she believed reporting the assault to the Police would have been inconsequential.

The further note in the decision of the appeal is that the determination is made rather than remit the matter to the assessor to be reconsidered with the expression of opinion that there was not an act of violence the matter was proceeded with on the basis that an act of violence did occur.

S 30 of the Victims Compensation Act , in particular sub-para (1), permits the Tribunal to take into account, underneath "(a) any behaviour including past criminal activity (condition, attitude or disposition) of the primary or secondary victim concerned, that directly or indirectly contributed to the injury or death sustained by the victim."

It further says underneath sub-para (b) "whether the act of violence was reported to a Police Officer within a reasonable time."

The decision also referred to some decisions of the District Court that had been unreported by the details of them are noted.

In the appeal lodged to this Court supporting the notice of motion and affidavit by the instructing solicitor there are set out sixteen matters of appeal upon which the question of law is determined. Of those points, 1, 2, 3 and 15 have been abandoned at this hearing.

I do not propose to deal with the rest individually but to refer, in a global fashion, to the matters raised. It is submitted that the Tribunal erred in the weight it gave to an irrelevant matter, namely the reference in the appeal decision to "in a crowded bar no-one attempted to detain the offender or come to the assistance of the appellant." That is a question of fact and, to my mind, there is no error of law in the regard that the Tribunal had to that matter.

The basis of the next series of matters is that there was a denial of natural justice. In the original written submissions, carefully prepared by Mr Mason of Counsel, reference is made to the High Court case of Kioa v West (1985) 159 CLR 550 where his Honour Brennan J, as he then was, made comments at p 629 which have been set out in the submissions, dealing with how there might be a denial of natural justice.

In determining what is an error of law I have had regard to Azzopadi v Tasman against UEB Industries Ltd 4 NSWLR 139, particularly at pp 156 to 157 as later confirmed by the New South Wales Court of Appeal in Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 and also in Pickwell's Case (2001) NSWCA 462 at 434.

In my view there is not a failure to give adequate reasons be it necessary to deal with this matter. Adequate reasons, in my view, have been given. There is no need for me to deal with any reasonable apprehension of bias as the matter is not dealt with.

In relation to the COPS entry, of which complaint is made, the complaint is that it was a matter taken into account without giving the appellant the opportunity to address the allegation. The manner in which these matters are dealt with is on the papers, as it is called, within the Tribunal. The appellant may ask for an oral hearing - that seems not to have been done in this case - and it is submitted that the COPS entry activated the Tribunal's mind to the extent that it took it into account. There was no opportunity, it is submitted, to address that.

I see no denial of natural justice. It is a matter that was part of the material that was before the Tribunal as presented and sufficient time, within the procedures adopted by the Tribunal, to deal with it were given.

The appellant submits that the delay in reporting was adequately explained by the appellant and it is an irrelevant matter that the Tribunal took into account and therefore that it was not a proper exercise of the procedures that it ought to have adopted. It was irrelevant, it is submitted, that the Tribunal said of the delay, that it prevented the Police from investigating or, indeed, the Tribunal from recovering compensation.

It is, however, a matter that the Tribunal may take into account, as I outlined, pursuant to s 31(b). Whilst it is true that the philosophy of the Act is to consider applications for compensation there must be good reason why the Parliament set forth, in s 30, the matters that the Assessor must have regard to as set out of which sub-para (b) is but one.

I do not see that that was an irrelevant matter. It is a consideration. The phraseology of it may not be agreed to by the appellant but it is a matter that is properly taken into account and I see no error of law in regard to dealing with that matter.

I make no decision as to whether or not there was a proper or an improper finding in relation to an act of violence. It seems to me that the Tribunal addressed the matter. Whether or not it accepted that there was an act of violence, upon the assumption that there was, and I see no error of law in that approach.

To my mind the Tribunal looked properly at the delay as a factor that it could take into account. The Tribunal quite properly said that the reason given by the appellant, namely that she did not know her assailant, she was distressed, were matters that were properly set out and properly taken into account. Again, I see no error in the manner in which the Tribunal looked at that matter.

I have considered how the Court should deal with this matter and that is pursuant to s 39. To my mind the appeal should be dismissed and I so order. What about costs gentlemen? MOORE: The respondent seeks an order that the appellant pay the respondent's costs your Honour.

HIS HONOUR: What's the form of costs under the Act or is it dealt with by me under the District Court Act .

MOORE: No it's just dealt with as agreed or taxed.

HIS HONOUR: But under the District Court Act power that I have.

MOORE: Yes your Honour. That's right.

HIS HONOUR: And the Legal Profession Act as to what's reasonable rather than the old party-to-party or indemnity.

MOORE: That's right your Honour.

HIS HONOUR: So you ask for the costs of the Tribunal of the appeal.

MOORE: Yes your Honour.

HIS HONOUR: In accordance with what's reasonable costs to be assessed and so forth.

MOORE: Yes your Honour.

HIS HONOUR: What do you say Mr Mason.

MASON: Your Honour my submission is that each party pay their own. It's just a citizen against the State. This is, in my submission, in light of the two clear failures of the Tribunal - sorry, I withdraw that. In light of the two omissions of the Tribunal to seek commentary about those two credit issues that they proceeded on I submit that the appeal was bona fide, that it was not without proper foundation and that, in the discretion of the Court the matter should lie where it is; that each party should pay their own.

HIS HONOUR: Thank you. The Tribunal seeks his costs of appearing before this Court on the appeal; that is, costs on a reasonable basis to be taxed or assessed and paid. The response to that from the appellant's counsel is that the bringing of the application by a citizen, for compensation against the State, as it were, or a State entity, is reasonable.

Normally costs follow the event. There is no principle that I understand that, because an appellant had a reasonable approach in bringing such an application that therefore they should not pay the costs of the other side but should simply bear their own costs.

In my view the application has failed and failed totally and the appellant should be ordered to pay the costs.

I order the appellant to pay the costs of the Victims Compensation Fund Corporation on a reasonable basis, such costs to be taxed by an assessor if not agreed upon within fourteen days of the presentation by the Fund Corporation to the appellant or her solicitors of an itemised bill of costs.

MASON: There's a step that was missing in your Honour's procedure, with respect, and that was the motion for leave.

HIS HONOUR: I assume it is not opposed so I formally grant leave to bring the appeal and dismiss the appeal. MASON: Right. Since it wasn't opposed could the respondent's costs of the lead application not be included in the costs order.

HIS HONOUR: No. It is so minimal that I do not think it matters but I make costs to be all costs included in the appeal including the lead because it facilitated the procedure of the application by not raising anything as to opposition.

The formal orders I make therefore are that I grant leave to the appellant to bring the appeal but I dismiss the appeal and order the appellant to pay the reasonable costs of the Tribunal as I indicated. MASON: Thank you your Honour. HIS HONOUR: Anything further? MASON: No your Honour.

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