Wallace v Victims Compensation Fund Corporation [2000] NSWDC 15

New South Wales District Court

CITATION : Wallace v Victims Compensation Fund Corporation [2000] NSWDC 15 TRIBUNAL : Victims Compensation Tribunal PARTIES : James Wallace Victims Compensation Fund Corporation FILE NUMBER(S) : 3868 of 2000 CORAM: Stewart A/DCJ CATCHWORDS: :- s 39 :- question of fact not law LEGISLATION CITED: Victims Support and Rehabilitation Act 1996 CASES CITED: DATES OF HEARING: 19/10/00 DATE OF JUDGMENT: 19 October 2000 LEGAL REPRESENTATIVES: Mr Jenkins Mr Moore

JUDGMENT: DCZ1294 MTN-I2 .19/10/00 3

HIS HONOUR:: This is an appeal pursuant to s 39 of the Victims Support and Rehabilitation Act (1996). The only issue that was argued before me is whether the Magistrate erred in law in coming to the decision that he did. When I say the Magistrate I speak of the person constituting the tribunal. I was referred to the facts in the matter because that was necessary before I could determine whether I am dealing with a question of fact or a question of law. Mr Jenkins who appears for the appellant submits that the tribunal appears to be applying a higher standard of proof than the standard of proof applicable, namely proof on the balance of probabilities. He submits that this is so, even though the tribunal, namely Mr Gabb, said in his judgment that he was in fact applying the civil standard. Mr Gabb said, and this appears in the document headed "Reasons for Appeal Determination", the following on p 2: "In summary the applicant was walking home highly intoxicated. He does not know what happened. The man who found him saw some men in a car who merely seemed to be acting suspiciously and the applicant's wallet was missing. The evidence in my view does not establish that it is more probable than not that the applicant was assaulted." It appears that Mr Gabb may well have misread the hospital notes because it would appear that there is nothing in the hospital notes as set out on p 1 of Mr Gabb's determination which indicates as he has mentioned in his judgment that the applicant stated he had been drinking heavily. That may be relevant, but Mr Gabb, the tribunal, did not base his decision on that alone; he based his decision on a large number of facts. I have read his reasons carefully and I have looked at the other material to which I was referred by Mr Jenkins whom I might say conducted the appeal very competently and as I said earlier, succinctly, sticking to the point, which is I might say a welcome change. I might say also, that Mr Moore for the Victims Compensation Fund Corporation likewise was succinct and to the point. Mr Moore's submission is that there is no question of law involved, there is only a question of fact. He submits that it does not amount to a question of law where the tribunal of fact arrives at a decision on the proper basis, namely, on the balance of probabilities, if somebody else such as myself in an appeal on a question of law, looks at the same facts on the same basis and comes to a different conclusion. That in my view is not a question of law, it is a question of interpretation of fact, and I am with Mr Moore. It is my view that there is no question of law here and accordingly the appeal is dismissed. As Mr Jenkins submits, this is not a frivolous appeal. There was a real and difficult question. These are always difficult areas. I am not inclined to follow the usual rule where costs follow the result. This appeal was made in good faith. It was based on proper grounds and as I say not taken frivolously. In the exercise of my discretion which I believe exists, I order that each party pay its own costs.

oOo

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