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Guide 7 - Appeals to the Victims Compensation Tribunal
Section 36 of the Victims Support and Rehabilitation Act 1996 states that an applicant for statutory compensation, who is aggrieved by the decision of the compensation assessor, may appeal to the Victims Compensation Tribunal. An applicant can also appeal against a decision of the Director, Victims Services to refuse leave for a late application for statutory compensation.
In order to appeal, an applicant must lodge a notice of appeal with the Registrar of the Victims CompensationTribunal (Clause 15 of the Victims Compensation Rule 1997 No 125). The notice of appeal in the approved form must contain all grounds of appeal and full particulars of those grounds.
The appeal is to be lodged within 3 months after the day on which the relevant notice of the determination made by the compensation assessor is served or within such further time as the Tribunal in exceptional circumstances may allow.
A call-over before the Registrar follows where matters such as whether an oral hearing is sought or fresh material is to be filed, are raised.
The appeal can either be determined in chambers or via a hearing. However, if the Tribunal is satisfied that the matter can be properly determined without a hearing the matter may be dealt with in chambers.
The appeal is to be determined on the evidence and material provided to the compensation assessor. However, 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 (Section 38(3)).
"Special grounds"' is not defined in the Act. Delaney DCJ in the appeal of Hatley said:
“The question of whether grounds are special seems to me to require...and I find that it required the applicant for compensation to show to the learned member of the Tribunal information which was in terms of the words “special grounds” out of the ordinary or not connected with a failure to act”. Hatley v Victims Compensation Fund Corporation, 1 April 1999, Delaney DCJ, Sydney District Court (Unreported)
In the appeal of Christofi, Nash ADCJ said:
“There is clearly a discretion on the part of the Tribunal to admit or reject evidence pursuant to s 38(3). However, the provision is not there to effectively cut out additional evidence. It is there for the Tribunal to consider further evidence in special circumstances as set out”. Christofi v Victims Compensation Fund Corporation, 17 September 1999, Nash DCJ, Sydney District Court (Unreported)
In the appeal of White, Robison DCJ agreed with Delaney DCJ's view as to the question of special grounds as expressed in Hatley and went on to say:
“Certainly it is not defined by statute, but that also gives some weight to the submission on the part of the respondent that, at the end of the day, this is really a matter of discretion vested within the Tribunal, it being charged with the responsibility of considering that first limb, that is, whether it considers that special grounds exist”. White v Victims Compensation Fund Corporation, 5 October 1999, Robison DCJ, Parramatta District Court (Unreported)
Twigg DCJ in the appeal of Cheong 5 November 1999 was of the view that the word special must be given its ordinary meaning. His Honour said:
“The Macquarie dictionary, amongst other explanations gives the meaning to the word special, “as distinguished or different from what is ordinary or usual; or extraordinary, exceptional, or exceptional in amount or degree, or especial: special importance”." Cheong v Victims Compensation Fund Corporation, 5 November 1999, Twigg DCJ, Sydney District Court (Unreported)
In Victims Compensation Fund Corporation v Hill [2000] NSWCA 75, the Court of Appeal, Mason P, Sheller JA and Foster AJA said:
“The first sentence of s38 (3) states the general rule. The second sentence states a conditional exception, namely one that permits further evidence or material to be received in the Tribunal if:
- the Tribunal grants leave; and
- if the Tribunal “considers that”;
“special grounds exist”; or
if the evidence or material concerns matters occurring after the determination appealed against.
The words “considers that” emphasize that it is the Tribunal’s satisfaction that special grounds exist that is determinative."
The Court of Appeal held that there appears no reason why the principles set out in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 should not apply to s38(3) despite the fact that the appeal to the Tribunal is not an appeal from a court to a court.
The Court of Appeal also held that it would be wrong to treat the formula expressed by Delaney DCJ in Hatley as an exhaustive statement of “special grounds”.
There are a number of other decision on Section 38(3) none of which add to the meaning to be given to “special grounds”.
It would seem that section 38(3) has no application in an appeal against refusal to grant leave to the filing of an application out of time. Section 38(3) speaks of an appeal from a determination of a compensation assessor whereas a determination of leave is made by the Director albeit by an compenation assessor under the Director’s delegation (Sections 26 and 63).
Cec Brahe
Chairperson, Victims Compensation Tribunal
28 April 2000
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 General information about appealing to the Victims Compensation Tribunal
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