Yuke v Victims Compensation Fund Corporation [1999] NSWDC 24

New South Wales District Court

CITATION : Yuke v Victims Compensation Fund Corporation [1999] NSWDC 24 TRIBUNAL : Victims Compensation Tribunal PARTIES : Nahrina Yuke Victims Compensation Fund Corporation FILE NUMBER(S) : 104 of 1999 CORAM: Blanch DCJ CATCHWORDS: s38(3) - special grounds LEGISLATION CITED: CASES CITED: DATES OF HEARING: 25/11/99 DATE OF JUDGMENT: 25 November 1999 LEGAL REPRESENTATIVES: Mr P Mason Mr C Lonergan

JUDGMENT: DCIS077 5667/99 SG-B

~25/11/99 1

HIS HONOUR: Well this is an appeal against a determination of the Victims Compensation Tribunal on 18 February 1999. There had initially been a determination by an Assessor on 2 September 1998 when the Assessor refused to make an award. The appeal was then lodged to the Tribunal and it was sought at that hearing to have considered a psychologist's report of Mr Somerville. The appellant is an Aboriginal woman who had suffered an attack and an injury and had been invited by the Tribunal to submit medical reports including any reports as to her psychological state. The Somerville report indicates a psychological condition, but that was not before the Assessor. When the matter came before the Tribunal the Tribunal pointed out that it was bound to consider the case on the material which was before the Assessor and that it was only where special grounds existed that the Tribunal would under s 38 "By leave receive further evidence and material." The appeal to the Tribunal was on the basis of the failure to make an award and the appeal specified that the appellant had problems in going to non-Aboriginal counsellors in order to have the report done.

The question here is whether there is an error by the Tribunal in that it failed to consider the issues that were put to it on the basis that there were special grounds to adduce fresh evidence. The grounds being advanced in the appeal were, the Aboriginality of the appellant and the material that was sought to be tendered was the psychologist's report indicating a psychological disorder in the appellant. What the Tribunal said was that the report should have been obtained by the solicitors well ahead of the assessment hearing and went on to say "I do not consider there are any special grounds here - the applicant had the advice of her solicitors and declined to submit a psychological report to the Compensation Assessor." In the context of speaking about special grounds no mention is made of the psychologist's report. It is true that mention was made of it in the determination of the Tribunal but it was only mentioned in the context of the fact that it should have been obtained earlier. In other words, a reading of the Tribunal's reasons would indicate that the Tribunal did not read or consider the psychologist's report in looking at the question of special grounds. I make no comment about the grounds which are put forward as special grounds but the argument that is advanced is that because of the Aboriginality of the appellant and because of the material contained in the psychologist's report there were special grounds and that submission should have been considered by the Tribunal. The Tribunal, on the other hand, refused to consider it because it regarded it as new material in a re-determination. That would be correct however, only after the Tribunal had determined that there were no special grounds for any new material to be tendered. In my view then, there has been an error of Law because the discretion has not been exercised judicially in accordance with the principles enunciated in R v House. It is a matter which in my view should go back to the Tribunal for them to consider the question as to whether special grounds exist on the basis of the material that was tendered and the argument that was put. Accordingly I allow the appeal and I remit the matter to the Tribunal for a determination in accordance with my judgment. LONERGAN: Did your Honour rule, if I can just inquire so that I understand clearly, did your Honour rule on the tender of the affidavit material to which I objected?

HIS HONOUR: No, and I haven't considered it.

LONERGAN: Thank you, your Honour.

MASON: Could I press your Honour to rule on that your Honour because--

HIS HONOUR: On the admissibility of the affidavit? Why?

MASON: Yes, your Honour, on the basis that that is material that again, for the same reasons that your Honour has outlined, your Honour had to read that in order to decide whether there was an error.

HIS HONOUR: No I didn't. I think the reasons for the other thing are discreet and separate.

MASON: As your Honour pleases. Thank you. Costs your Honour?

HIS HONOUR: Yes. And I make an order for costs in favour

of the appellant.

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