Re Commonwealth of Australia v Mark Andrew Pillifeant [1990] FCA 179; 23 FCR 397 48 A Crim R 124 (4 June 1990)

FEDERAL COURT OF AUSTRALIA

Re: THE COMMONWEALTH OF AUSTRALIA
And: MARK ANDREW PILLIFEANT
No. ACT G 57 of 1989
FED No. 249
Criminal Injuries Compensation
[1990] FCA 179; 23 FCR 397
48 A Crim R 124

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Kelly(1), Neaves(1) and Lee(1) JJ.

CATCHWORDS

Criminal Injuries Compensation - Application for compensation where no criminal proceedings instituted - Award made by Registrar of Supreme Court - Appeal to Supreme Court - Appeal to be by way of re-hearing - Nature of appeal - Power to receive additional evidence - Circumstances in which Supreme Court may interfere with conclusions of Registrar.

Criminal Injuries Compensation Ordinance 1983 (A.C.T.), s.11(3), 15, 19, 20, 21, 28

HEARING

CANBERRA
4:6:1990

Counsel for the appellant : Mr P.A. Coppel Solicitor

Solicitor for the appellant : Australian Government

Counsel for the respondent : Mr F.J. Purnell

Solicitors for the respondent: Crossin Power Haslem

ORDER

1. The appeal be allowed.

2. The judgment of the Supreme Court of the Australian Capital Territory be set aside.

3. The matter be remitted to the Supreme Court of the Australian Capital Territory for further hearing.

4. There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This appeal by the Commonwealth of Australia ("the Commonwealth") concerns the nature of the appeal to the Supreme Court of the Australian Capital Territory that is provided for by s.28 of the Criminal Injuries Compensation Ordinance 1983 (A.C.T.) ("the Ordinance"). It will be necessary to refer in some detail to the provisions of the Ordinance but, before doing so, the circumstances in which the appeal comes to this Court should be stated.

2. On 15 December 1987, Mark Andrew Pillifeant ("the respondent") made an application pursuant to the Ordinance for an award of compensation in respect of injuries alleged to have been sustained by him on 18 December 1986. The Registrar of the Supreme Court held an inquiry in relation to the application as required by s.21 of the Ordinance and on 25 November 1988 awarded the applicant $19,397.46. From that award the Commonwealth, within the prescribed time, appealed to the Supreme Court. On 8 September 1989, that Court gave judgment dismissing the appeal with costs and confirming the decision of the Registrar. From that judgment the Commonwealth has appealed to this Court.

3. At all material times the Ordinance has provided in sub-s.5(1) that, where a person sustains a prescribed injury, the court may, by order, award compensation to, or for the benefit of, that person. The expression "prescribed injury" is defined in s.2 to include, in relation to a person, any physical or mental injury sustained by the person in the Australian Capital Territory as a result of the criminal conduct of another person. "Criminal conduct" is defined to mean an act or omission that constitutes, or is an element of, an offence against a law in force in the Territory. "Court" is defined to mean, in relation to an application, the court that has jurisdiction under s.11 to determine that application, those courts being the Supreme Court and the Magistrates Court.

4. By sub-s.6(1), the compensation that may be awarded to a person who has sustained a prescribed injury is an amount that is equal to the sum of -

"(a) the expense reasonably incurred by him
as a consequence of the injury;
(b) the pecuniary loss suffered by him as a
consequence of total or partial
incapacity for work due to the injury;
and
(c) an amount that will reasonably
compensate him for pain or suffering
resulting from the injury."

The maximum amount of compensation that may be awarded in respect of a prescribed injury sustained by a person is $20,000 (s.7). Where a person has incurred expense (other than by way of fees paid to a solicitor or barrister) in making his application, the court may, in addition to any compensation awarded, by order, award him an amount not exceeding the amount of that expense (sub-s.5(4)).

5. Section 8 provides that compensation is not to be awarded unless the court is satisfied, on the balance of probabilities, that the relevant injury is a prescribed injury, that is to say a physical or mental injury sustained by the person in the Australian Capital Territory as a result of an act or omission that constitutes, or is an element of, an offence against a law in force in the Territory. Conviction for such an offence is not a necessary element of a successful application for compensation under the Ordinance but, where a person has been convicted of an offence and the conviction has not been set aside, then, unless an appeal from the conviction has been instituted and not determined, the conviction is, for the purposes of an application made by any person under the Ordinance, to be conclusive evidence that the first-mentioned person did every act, and made every omission, that constituted or was an element of the offence (sub-s.3(1)).

6. An application for compensation is to be in writing, in accordance with the form in the Schedule to the Ordinance, and to be lodged with the Registrar of the Supreme Court (sub-s.10(1)). The period within which an application is to be lodged is the period of 12 months commencing on the date on which the relevant prescribed injury was sustained (sub-s.10(2)) but the time for lodging an application may be extended if the court considers it just to do so (sub-s.10(3)). The Registrar of the Supreme Court, on receiving an application, is to forward a copy thereof to the Secretary to the Attorney-General's Department of the Commonwealth and, if the Magistrates Court has jurisdiction under s.11 to determine the application, he is to transmit the application to the Clerk or a Deputy Clerk of that Court (sub-s.10(4)).

7. The prescribed form of application requires an applicant to identify the basis upon which the claim is made, to state the date on which the relevant injury was sustained, to give particulars of the injury and the circumstances in which it was sustained, to provide the names and addresses of persons able to give evidence on his behalf in support of the application and to state whether the matter has been reported to a police officer. The applicant must also indicate what steps have been taken to enforce rights or pursue remedies in respect of the injury and, if no such steps have been taken, the reason why. He must give particulars of any damages recovered or compensation paid or payable in respect of the injury and of any criminal proceedings instituted against the person whose action resulted in the injury.

8. Section 14 provides that the court may refuse to determine an application if it is satisfied that the applicant has not taken such steps to enforce rights or to pursue remedies in respect of the relevant prescribed injury as the court considers it reasonable for him to have taken.

9. Sub-section 15(1) provides that, in determining whether or not to make an order awarding compensation or in determining the amount of compensation to be awarded, the court is to have regard to any behaviour, condition, attitude or disposition of the applicant which directly or indirectly contributed to the injury. Sub-section 15(2) sets out, in lettered paragraphs, other matters to which the court is to have regard in determining the amount of compensation to be awarded. It is sufficient for present purposes to refer to pars (b), (f) and (i). Those paragraphs, so far as material, require the court to have regard to -

"(b) any damages recovered by or for the
benefit of the applicant in respect of
the relevant prescribed injury ... or
that would, in the opinion of the court,
be likely to be so recovered if
proceedings for the recovery of those
damages were instituted in a court of
competent jurisdiction;"
"(f) any amount that, in the opinion of the
court, the applicant would have received
if he had taken such steps to enforce
rights or to pursue remedies in respect
of the relevant prescribed injury ... as
the court considers it reasonable for
him to have taken;"
"(i) such other circumstances as the court
considers relevant."

10. Section 27 provides that, subject to the Ordinance, where compensation is awarded to a person, an amount equal to the amount of compensation so awarded is payable by the Commonwealth to that person.

11. Pursuant to sub-s.18(1), the court may, on application made by the Attorney-General of the Commonwealth or by a person in whose favour an award was made, by order, vary an award of compensation by increasing or reducing the amount of compensation awarded, or otherwise. Upon such an application the court is to have regard to the matters set out in sub-s.18(2). The matters there set out are -

"(a) any further evidence in relation to the
circumstances in which the relevant
prescribed injury ... was sustained or
the relevant criminal conduct occurred
that has become available since the date
on which the award was made;
(b) any amounts received by or payable to
the person in whose favour the award was
made in respect of the relevant
prescribed injury ... since the date on
which the award was made;
(c) any change in the economic circumstances
of that person that has occurred since
the date on which the award was made;
and
(d) any other matter that the court
considers relevant."

12. Section 11, in the form in which it stood between the time the application under the Ordinance was made by the respondent and 21 December 1988, provided, so far as material:

"11.(1) The Supreme Court has jurisdiction
to determine an application in respect of a
prescribed injury ... where, in respect of the
relevant offence -
(a) criminal proceedings have been
instituted in that court (whether or not
those proceedings have been completed);
or
(b) a person has been committed for trial or
sentence in that court (whether or not
proceedings consequential upon that
committal have been completed).
(2) The Magistrates Court has jurisdiction
to determine an application in respect of a
prescribed injury ... where, in respect of the
relevant offence -
(a) committal proceedings in that court have
been completed and a person was not
committed for trial or sentence in the
Supreme Court as a consequence of those
proceedings; or
(b) summary proceedings were instituted in
that court (whether or not those
proceedings have been completed).
(3) The Registrar has power to determine an
application in respect of a prescribed injury ...
where criminal proceedings have not been
instituted in respect of the relevant offence."

The reference to the Registrar in sub-s.(3) is a reference to the Registrar of the Supreme Court. The section was amended by the Criminal Injuries Compensation (Amendment) Ordinance 1988 (A.C.T.) which came into operation on 21 December 1988 but it is unnecessary for present purposes to refer to the section in its amended form.

13. The Ordinance makes no provision concerning the procedure to be followed by the Supreme Court in determining an application under the Ordinance. It provides, however, by sub-s.12(1), that the provisions of the Magistrates Court (Civil Jurisdiction) Ordinance 1982 are to apply in relation to proceedings in the Magistrates Court on such an application.
Sections 19 and 20 of the Ordinance provide:

"19. Where the Registrar has power under
sub-section 11(3) to determine an application,
this Ordinance applies in relation to that
application and in relation to any award of
compensation made in pursuance of that
application as if each reference in this
Ordinance to the court were a reference to the
Registrar.
20. Where the Registrar has power under
sub-section 11(3) to determine an application,
the Registrar may, in his discretion, refuse to
make an award of compensation to the applicant if
he is satisfied that the criminal conduct as a
result of which the prescribed injury was
sustained was not reported to a police officer."

It may be noted, in passing, that s.20 does not require the Registrar to be satisfied that the criminal conduct was reported to the police by or on behalf of the applicant for an award of compensation. It will suffice if the report was made by any person. In this connection reference may usefully be made to what was said by the High Court, albeit in a different statutory setting, in Slinn v. The Nominal Defendant [1964] HCA 72; (1964) 112 CLR 334.

14. Sections 21 and 22 provide:

"21. (1)The Registrar shall not proceed to
determine an application unless he has held an
inquiry in relation to the application.
(2)Where the Registrar proposes to hold an
inquiry, he shall -
(a) fix a date, time and place for the
holding of the inquiry;
(b) serve on the applicant notice in writing
of the date, time and place so fixed;
and
(c) forward a copy of that notice to the
Secretary.
(3)At an inquiry, the Registrar may -
(a) examine witnesses on oath and, for that
purpose, administer oaths; and
(b) proceed in the absence of the applicant
if he is satisfied that the applicant
had reasonable notice of the inquiry,
and the Registrar may adjourn an inquiry from
time to time.
22. The Registrar may, by writing signed by
him, summon a person to attend before him on a
date and at a time and place specified in the
summons to give evidence at an inquiry and to
produce at the inquiry such documents (if any) as
are referred to in the summons."

The reference to the Secretary in sub-s.21(2) is a reference to the Secretary to the Attorney-General's Department of the Commonwealth. A person attending before the Registrar to give evidence or to produce a document at an inquiry has the same protection, and is, in addition to the penalties provided by the Ordinance, subject to the same liabilities, as a witness in proceedings in the Supreme Court (s.25).

15. Section 28 provides:

"(1) Where the Registrar -
(a) makes an award of compensation; or
(b) refuses to make such an award,
the applicant or the Commonwealth may appeal to
the Supreme Court within 30 days after the date
on which the Registrar made or refused to make
the award, as the case may be.
(2) Jurisdiction to hear and determine
appeals under this section is vested in the
Supreme Court.
(3) An appeal under this section shall be by
way of a re-hearing.
(4) On an appeal under this section, the
Supreme Court may -
(a) affirm, set aside or vary the
determination of the Registrar; and
(b) make such other order as it considers
just."

The Ordinance does not deal further with the procedures to be followed on the hearing of an appeal under that section. Nor do the Rules of the Supreme Court deal specifically with that subject matter. By virtue of s.34, the Commonwealth has a right of appearance in any proceedings before a court or the Registrar on an application for compensation under the Ordinance.

16. A formal hearing took place before the Registrar at which the respondent and the Commonwealth were represented by counsel. Oral evidence on oath was given by the respondent and he was cross-examined, a transcript record of that evidence being made. No other oral evidence was adduced. The only other material before the Registrar consisted of an affidavit sworn by one Mervyn Eric Apps and certain medical reports concerning the respondent. There was agreement between the Commonwealth and the respondent as to the amount of the respondent's wage loss and out-of-pocket expenses referable to the injuries the subject of the application.

17. The respondent's evidence was the only material before the Registrar as to the circumstances in which he suffered the injuries the subject of his claim for compensation. He gave evidence that at about 7.30 p.m. on 18 December 1986, accompanied by some friends, he arrived at the Fyshwick Tavern at Fyshwick in the Australian Capital Territory after having attended a Christmas party during the afternoon. He said that during the afternoon he had consumed eight or ten schooners of beer and that he continued to drink after arriving at the tavern. According to the respondent, at approximately 9.30 p.m., he went to the bar to buy a round of drinks. Upon picking up the tray of drinks, he turned to return to the table where his friends were when he felt two blows to the back of the head and was knocked down, the blows being delivered from behind. When he got up, he saw his assailant but did not recognise him. The assailant challenged him to a fight but he did not accept the challenge and returned to his friends. Some thirty to forty minutes later he was seated at the table, after having a meal and consuming more beer, when he "was grabbed from behind and dragged out of the cubicle" where he was sitting. He was grabbed, he said, by the same person who had hit him earlier as he was leaving the bar. This person then hit him again and ran away towards the end of the bar. The respondent followed him past the bar and outside the tavern. The respondent said that his assailant threatened him. His evidence continued:

"He hit me and so I hit him back. And then he
grabbed hold of me and had me in a bear hug.
Bit a piece out of my chest and bit a piece out
of my arm. And I broke his hold and hit him a
couple of times and he hit me back. And then he
grabbed hold of my hand and he bit the top off
my thumb and I collapsed and then he and his
mates laid the boot into me; once into the head
and a few times in my back. And one of the
other guys - I do not know, I did not see what
was happening, jumped up and down on my ankle
and broke my ankle. And then I was getting
carried away by people around me. That is all I
can remember."

18. The Registrar gave written reasons for her decision. Those reasons read as follows:

"In this matter I am satisfied that the
applicant was assaulted at the Fyshwick Tavern
on 18 December 1986 by a person or persons who
remain unidentified. The applicant was at the
tavern following a Christmas party and had been
drinking since noon that day. On the
applicant's own admission he was intoxicated.
The applicant was, in fact, assaulted on two
separate occasions.
The first assault took place inside the tavern
and the second outside. As a result of the
first assault, the applicant was knocked down.
He did not occasion serious injury. As a result
of the second attack, however, he received more
serious injuries including a broken ankle, the
tip of his left thumb was bitten to the bone,
his left arm was bitten and he was kicked in the
lower part of his back. He has moderate
scarring as a result of the biting and does not
have full mobility as a result of the ankle
break. He still suffers pain in the lower part
of his back. As a result of the attack, the
applicant has also suffered loss of enjoyment of
life because he is unable to engage in sporting
activities which he previously participated in.
He feels pain on playing the guitar for long
periods of time and his relationship with a
female companion has broken up. As a result of
the injuries received in the assault, the
applicant is no longer able to perform heavy
lifting work and has a less onerous position at
work. The Commonwealth had contended that
pursuant to section 14 of the Criminal Injuries
Compensation Ordinance, I should not determine
that application because the applicant has not
taken any steps to report the matter to the
police or to identify the assailant.
I am satisfied, however, on hearing the evidence
of the application (sic) this morning, that the
effect of the assault upon him was such that he
was unable mentally to return to the Fyshwick
Tavern to make inquiries as to the identity of
his assailant soon after the incident. Further,
the applicant gave evidence that he had spoken
to police officers, though not officially, and
was advised that there was nothing to be gained
from pursuing the identity of the assailant.
The applicant reasonably, in my opinion, thought
it would be fruitless to pursue the identity of
his assailant.
The Commonwealth has also urged that I exclude
the applicant's claim in respect of injuries
that were received in the second assault, the
more serious injuries, as the applicant
contributed to these injuries by leaving the
tavern after he had already been assaulted.
Although the applicant admits that at the time
of the assault he was intoxicated, there is no
evidence available that the applicant's
behaviour, attitude or disposition contributed
directly to his injury. I am of the view,
however, that the applicant indirectly
contributed to the second assault, by going
outside with the assailant when he had already
been assaulted once and the assailant had
threatened him.
In these circumstances, I propose to reduce the
award of compensation I make by 20 per cent. I
make an award for compensation for pain and
suffering resulting from the injury for $12,000,
reduced to $9,600, pursuant to section 15 of the
ordinance. With respect to the pecuniary loss
suffered by the applicant, I make an award under
section 6B (sic) of the ordinance of $2,326.28
as reimbursement for sick leave credits, being
25 per cent of the amount claimed plus
$6,288.78, making a total award of $8,615.06.
In relation to out-of-pocket expenses, I make an
award pursuant to section 6A (sic) of the
ordinance of $1,182.40. The total amount
awarded is $19,397.46."

The references to the applicant are, of course, references to the respondent to the present appeal.

19. When the matter came before the Supreme Court, counsel for the respondent opened, apparently on the basis that the hearing was a hearing de novo. He informed the Court that he proposed to rely upon the transcript of the oral evidence given before the Registrar by the respondent, to tender the medical reports that had been before the Registrar and to supplement that material by further oral evidence from the respondent and by certain documents. The additional oral evidence from the respondent was said to concern the reasons why the respondent followed his assailant out of the tavern following the assault upon him while he was seated in the cubicle. The documents consisted of a letter dated 27 May 1987 addressed by the Australian Federal Police to the respondent's solicitor concerning the incident at the tavern and a file note dated 28 August 1987 prepared by the solicitor recording a conversation which he had with a constable of police who attended at the Fyshwick Tavern on the night in question in response to an emergency call. His Honour was not, however, informed at that stage of the nature of those documents.

20. Counsel for the Commonwealth informed the primary judge that, for the purposes of the proceeding before the Supreme Court, the Commonwealth accepted that on 18 December 1986 the respondent sustained a prescribed injury within the meaning of the Ordinance at the Fyshwick Tavern and further accepted the assessment made by the Registrar of the wage loss suffered, and the out-of-pocket expenses incurred, by the respondent as a result of that injury. The Court was informed, however, that the Commonwealth wished to raise three issues for the Court's determination -

(i) whether the respondent had engaged in
behaviour that contributed to the injury
and, if so, the degree of contribution
made by that behaviour (see
sub-s.15(1) of the Ordinance);
(ii) whether the respondent had taken
reasonable steps to enforce his rights
and pursue his remedies (s.14 and
sub-s.15(2)(f)); and
(iii) whether the criminal conduct as a result
of which the prescribed injury was
sustained was reported to a police
officer (s.20).

Counsel raised no objection to his Honour receiving into evidence the transcript of the respondent's oral evidence before the Registrar and informed the Court that the Commonwealth had no objection to the further evidence sought to be adduced on behalf of the respondent being received.

21. After hearing argument as to the nature of the appeal for which s.28 of the Ordinance provides, the primary judge declined to receive the further evidence, saying:

"Well, the point is no doubt deserving of more
consideration than I have been able to give it
in the limited time available. But I am of
opinion that section 28(3) of the Criminal
Injuries Compensation Ordinance gives no power
to the Court to receive fresh evidence on an
appeal from the Registrar. If I am wrong in
this respect, then the question of what
circumstances justify the reception of fresh
evidence would still have to be decided.
Nothing is before me to indicate what the fresh
evidence is or would be, or why it was not
called before the Registrar.
I therefore propose to proceed on the material
before the Registrar whose findings on fact and
whose decision on discretionary matters will be
given the respect required by such authorities
as Warren v. Coombes ((1979) [1979] HCA 9; 142 CLR 531) and
Gronow v. Gronow ((1979) [1979] HCA 63; 144 CLR 513)."

22. After hearing further argument, the primary judge delivered judgment in which he said:

"As this is an appeal by way of rehearing under
section 28(3) of the Act, I have to have regard
to the evidence before the Registrar and after
giving due weight to the Registrar's decision,
arrive at my own conclusions, subject to two
important factors.
One is, that where the Registrar's findings are
based wholly or in part on demeanour of
witnesses, I should not lightly interfere with
those findings.
The other is, that where the Registrar's
decision involves exercise of a discretion, then
error of fact or law must be shown or the result
must be so manifestly absurd or unjust for it to
be deemed to contain unidentifiable error.
In my view, the Registrar's findings must have
been affected, to some extent at least, on (sic)
an assessment of the demeanour of the respondent
when giving evidence and so the Registrar had a
considerable advantage over anybody reading the
transcript.
In particular, the respondent was subject to
lengthy and strong cross-examination by counsel
appearing for the Commonwealth in an apparent
attempt to test the account of the respondent
relating to what had happened and relating to
how it had affected him. The Registrar found
that, although intoxicated, the respondent's
behaviour, attitude and disposition in the
tavern did not contribute to the injury. I
accept that finding.
However, the Registrar also found that the
respondent indirectly contributed to the assault
outside the tavern by following the assailant
outside. I accept that finding also. As I say,
those findings must have been affected by the
Registrar's assessment of the demeanour of the
respondent.
The Registrar then went on to decide that, by
reason of such contributing conduct, the
compensation should be reduced and reduced by 20
per cent. That further decision, or rather,
further two decisions, clearly involved the
exercise of discretion and as it has not been
shown that the Registrar fell into error of fact
or law, or that the result is manifestly absurd
or unjust, it is inappropriate for this Court to
interfere.
The Registrar's decision was attacked on two
further grounds: first, that no award should
have been made at all, because the appellant
failed to make reasonable efforts to enforce his
rights against the assailant; and second, that
no award should have been made at all because
the respondent failed to report what happened to
the police.
The Criminal Injuries Compensation Act (sic)
gives a discretion to refuse to make orders in
either of those circumstances, according to the
provisions of sections 14 and 20 respectively.
For myself, I find the reasons given by the
respondent for his failure to take any steps to
enforce his rights against the assailant not
very convincing. He says simply that he was too
frightened to go back to the tavern or to make
any inquiries about who it was who had attacked
him.
Again, however, the Registrar saw him give
evidence and was in a superior position to
myself to decide this sort of matter. The
Registrar's conclusion that the failure to try
to identify the attacker was a reasonable one,
is one with which I would not interfere because
I am simply not satisfied that the Registrar was
wrong on that point.
Lastly, and although it is not quite clear, the
Registrar came to the view that there had been
no failure to report to the police under section
20, because the respondent, to use the
Registrar's words, had spoken to police
officers, although not officially.
I tend to the view that the evidence does not
establish that the respondent reported to the
police, but as it must be emphasised that the
failure to report to the police is not an
absolute bar to an award of compensation,
discretion still lay in the Registrar to make or
refuse an award.
I have no doubt that the Registrar's view that
the respondent acted reasonably would have
justified the Registrar in making an award, even
if there were a finding of failure to report to
the police.
It is to be emphasised that the Commonwealth
submits in this appeal that the Registrar should
have made no award at all. As it was, the
Registrar took all relevant matters into account
to reduce the amount awarded by 20 per cent for
the respondent's contributing behaviour.
In actions for damages for personal injuries for
negligence, an appeal court will interfere with
the trial court's apportionment of damages for
contributory negligence only in very rare
circumstances, and I am quite sure that sort of
principle should apply to appeals against
determinations of awards of compensation under
section 15 of the Criminal Injuries Compensation
Act (sic).
At any rate, neither the Commonwealth nor the
respondent sought to have the amount of
compensation reduced or increased. Accordingly,
the appeal is dismissed. The Registrar's award
is confirmed and unless the parties wish to be
heard, I propose to order the appellant to pay
the respondent's costs. I order the appellant
to pay the respondent's costs."

23. In Builders Licensing Board v. Sperway Constructions (Syd.) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 the High Court was concerned with the nature of an appeal to the District Court of New South Wales from a decision of a licensing board. Mason J. (as he then was), with whose judgment Barwick C.J. and Stephen J. agreed, discussed the effect of a statutory provision that an appeal from a decision of an administrative authority was to be by way of re-hearing. His Honour's discussion of the subject is apposite in the present case. His Honour said at pp 621-2:

"Where a right of appeal is given to a court
from a decision of an administrative authority,
a provision that the appeal is to be by way of
rehearing generally means that the court will
undertake a hearing de novo, although there is
no absolute rule to this effect. Despite some
suggestion in argument to the contrary, I do not
read Ex parte Australian Sporting Club Ltd; Re
Dash (1947) 47 SR (NSW) 283 as enunciating
such an absolute rule. There are, of course,
sound reasons for thinking that in many cases an
appeal to a court from an administrative
authority will necessarily entail a hearing de
novo and I exclude for present purposes the case
of an appeal to a federal court exercising the
judicial power of the Commonwealth under Ch. III
of the Commonwealth Constitution. The nature of
the proceeding before the administative
authority may be of such a character as to lead
to the conclusion that it was not intended that
the court was to be confined to the materials
before the authority. There may be no provision
for a hearing at first instance or for a record
to be made of what takes place there. The
authority may not be bound to apply the rules of
evidence or the issues which arise may be
non-justiciable. Again, the authority may not
be required to furnish reasons for its decision.
In all these cases there may be ground for
saying that an appeal calls for an exercise of
original jurisdiction or for a hearing de novo.
On the other hand the character of the function
undertaken by the administrative authority in
arriving at its decision may differ markedly
from the instances already supposed. The
authority may be required to determine
justiciable issues formulated in advance; to
conduct a hearing, at which the parties may be
represented by barristers and solicitors,
involving the giving of oral evidence on oath
which is subject to cross-examination; to keep a
transcript record; to apply the rules of
evidence; and to give reasons for its
determination. In such a case a direction that
the appeal is to be by way of rehearing may well
assume a different significance.
But in the end the answer will depend on an
examination of the legislative provisions rather
than upon an endeavour to classify the
administrative authority as one which is
entrusted with an executive or quasi-judicial
function, classifications which are too general
to be of decisive assistance. Primarily it is a
question of elucidating the legislative intent,
a question which in the circumstances of this
case is not greatly illuminated by the Delphic
utterance that the appeal is by way of rehearing."

24. The note of caution sounded by Lockhart J. in Traut v. Faustmann Bros Pty Ltd (1983) 48 ALR 313 is also apposite. Referring to the fact that appeals are frequently described as falling within three categories: appeals stricto sensu, appeals by way of re-hearing and appeals de novo, his Honour said, at p 322:

"The classification of appeals into three
categories is sometimes helpful, but it is
impermissible to treat each category as being
necessarily distinct from the others or as
having immutable characteristics or inflexible
boundaries. Ultimately the true character of an
appeal must depend on the interpretation of the
particular legislation; the jurisdiction,
powers, composition and functions of the
tribunal from whose decision the appeal lies;
and the nature of the rights and liabilities of
the persons affected by the tribunal's decision."

25. Earlier in these reasons the relevant provisions of the Ordinance have been set out or their effect stated. A consideration of those provisions supports the conclusion that the issues that arise on an application which the Registrar has power to determine are capable of judicial determination. The power of the Registrar is, of course, limited to determining applications for compensation where criminal proceedings have not been instituted in respect of the relevant offence. But the extent of the Registrar's power as to subject matter is exactly the same as the extent of the jurisdiction conferred on the Supreme Court and the Magistrates Court by the provisions contained in s.11 of the Ordinance. The issues that arise upon an application to be determined by the Registrar are identical with those that arise upon an application for compensation which is made in a case where criminal proceedings have been instituted. The issues that arise in such circumstances are to be determined by either the Supreme Court or the Magistrates Court. Nothing in s.11 of the Ordinance suggests that the Registrar's function under that section and the mode of its exercise are in any way different from the function of either of those courts and their mode of exercise of it.

26. Before making a determination, the Registrar is required to hold an inquiry. Notice of the date, time and place fixed for the holding of the inquiry is to be given to the applicant and the Commonwealth. The Commonwealth is expressly given a right of appearance in any proceedings before the Registrar. Although there is no corresponding provision conferring such a right on an applicant, such a right is, we think, to be implied from the express provisions of the Ordinance, particularly the provision that the inquiry may proceed in the applicant's absence only if the Registrar is satisfied that he has had reasonable notice of the inquiry, and even from the provision in sub-s.5(4) that an applicant may not recover fees paid to a solicitor or barrister being an expense incurred in making his application.

27. There is, however, no specific provision in the Ordinance requiring that the inquiry take the form of a formal hearing. Nor are there provisions giving the applicant a right to be represented by a barrister, solicitor or agent or to examine witnesses, the latter function being conferred only on the Registrar. The Registrar may receive evidence on oath but is not expressly required to act only on such evidence and there is no provision stating whether the Registrar is bound by the rules of evidence. The Ordinance does not require that a transcript record be made of the proceedings at the inquiry and the Registrar is not expressly required to give reasons for any determination made.

28. It is, however, significant that the power to determine an application for compensation where no criminal proceedings have been instituted has been conferred upon an officer of a superior court of record, albeit as persona designata. We are of opinion that it is proper to infer, notwithstanding the absence of express provisions concerning the various matters mentioned above, that the legislature envisaged that such an officer would, in determining an application for compensation, adopt procedures akin to those appropriate to a judicial proceeding. We are further of opinion that in the present case, where those procedures were in fact followed, the primary judge was correct in concluding that the Court was not obliged to re-hear the matter de novo. Of course, in some circumstances a re-hearing de novo will be the only satisfactory course for the Supreme Court to follow. An illustration of such circumstances, although in a different context, is to be found in McCormack v. Federal Commissioner of Taxation [1979] HCA 18; (1979) 143 CLR 284; cf. Uranerz (Aust.) Pty Ltd v. Hale (1980) 30 ALR 193.

29. We are, however, unable to agree with the view of the primary judge that on the hearing of an appeal under s.28 of the Ordinance the Supreme Court has no power to receive evidence additional to that which was before the Registrar. The requirement in sub-s.28(3) that the appeal be by way of a re-hearing obliges the Supreme Court to decide the appeal by applying the law as it exists when the matter comes before that Court to the circumstances as they then exist. The power to receive further evidence is, therefore, implicit in the very nature of the function which the Supreme Court is required to perform. It is, in our opinion, not correct to say that, to enable the Court to receive further evidence upon such an appeal, an express provision to that effect must be found in the relevant legislation. It is, however, a matter for the Supreme Court, in the exercise of a judicial discretion, to decide whether, in the circumstances of each particular case, the further evidence sought to be adduced should be received. Relevant matters for consideration will, of course, include a consideration of the nature of the further evidence sought to be adduced, the circumstances in which that evidence became available and, where appropriate, the reasons why it was not presented to the Registrar. However, having regard to the subject-matter of the Ordinance and the absence of any provision limiting or regulating the circumstances in which further evidence may be received, we are of opinion that sub-s.28(3) is to be construed as conferring a very wide discretion upon the Supreme Court, the primary consideration governing the exercise of that discretion being whether the evidence will assist the Court in determining whether it is proper to award an applicant compensation for his injuries and, if so, the amount of such compensation.

30. The circumstance that the primary judge declined to receive the further evidence proposed to be adduced on the ground that the Court had no power to receive it and did not examine the question whether, if such a power did reside in the Court, the discretion so conferred should be exercised so as to reject the tender is sufficient to warrant this Court allowing the appeal and remitting the matter to the Supreme Court for further hearing.

31. There are, however, two further aspects of the matter upon which we should express our opinion. The first of these concerns the conclusion of the primary judge that the Registrar's findings "must have been affected, to some extent at least, on (sic) an assessment of the demeanour of the respondent when giving evidence". In particular, his Honour considered that the Registrar's finding that, although the respondent was intoxicated, his behaviour, attitude and disposition in the Fyshwick Tavern did not contribute to the injury and the further finding that the respondent indirectly contributed to the assault by following the assailant outside must have been affected by that assessment. The same approach was taken by his Honour in relation to the finding of the Registrar that the failure of the respondent to try to identify his assailant and seek to enforce his rights against him was reasonable.

32. In Uranerz v. Hale (supra), Gibbs J. (as he then was), with whose judgment the other members of the Court agreed, said, at pp 197-8:

"It is of course well established that an
appellate court which hears an appeal on
documents and not on oral evidence will
generally defer to the conclusion which the
trial judge has formed upon the question which
of the witnesses, whom he has seen and heard,
are credible. The same principle applies where
a court is hearing what is called an appeal but
is in law an exercise of original
jurisdiction ... If a rehearing is conducted
solely on written material, whether that
material be technically evidence or a record,
the appellate court should generally defer to
the conclusion on a question of credibility
formed by the tribunal from whom the appeal is
brought and whose members saw and heard the witnesses."

33. Although the Registrar, in the reasons given for her decision, made no express reference to the credibility of the respondent as a witness, it sufficiently appears from those reasons that she accepted his evidence as to the events which took place at the Fyshwick Tavern on the night of 18 December 1986. No submission was made to the primary judge that he should reject any part of the respondent's evidence before the Registrar and his Honour proceeded, correctly in our view, on the basis of that evidence. His Honour was, however, in error in treating the findings to which reference has been made as depending upon the demeanour of the respondent in the witness box. Nothing in the Registrar's reasons for decision suggests that his demeanour was a factor influencing the conclusions which she reached. In our opinion, his Honour should have determined for himself whether, on the primary facts as deposed to by the respondent and accepted by the Registrar, the respondent's behaviour, condition, attitude or disposition in the tavern contributed to his injuries either directly or indirectly. That determination would have required his Honour to ascertain the scope of operation of those words as used in sub-s.15(1) and to have regard to the fact that some of the respondent's serious injuries were caused by assaults committed by persons other than the man who had assaulted the respondent in the tavern. Equally, his Honour should, in our opinion, have considered for himself whether, accepting what was said by the respondent as to why he had taken no steps to identify his assailants and seek to enforce his rights against them, the respondent's conduct was reasonable.

34. The second of the matters upon which we should express our opinion concerns the view formed by the primary judge as to the limited circumstances in which he would be justified in interfering with the conclusion reached by the Registrar that the behaviour, condition, attitude or disposition of the respondent on the night in question was not such as to warrant a refusal to make an order awarding him compensation and her further conclusion that the amount of compensation to be awarded should be reduced by 20 per cent. on account of such behaviour, condition, attitude or disposition. His Honour took the view that each of those conclusions involved the exercise of a discretion vested in the Registrar and that to justify intervention by the Supreme Court "error of fact or law must be shown or the result must be so manifestly absurd or unjust for it to be deemed to contain unidentifiable error".

35. The question is whether the Ordinance, on its proper construction, limits, in the manner suggested by the primary judge, the circumstances in which the Supreme Court may interfere with conclusions reached by the Registrar in exercising the power conferred by sub-s.11(3). For present purposes, the question is whether it was intended that the conclusions reached by the Registrar on the matters mentioned be subject to limitations similar to those which govern the exercise by an appellate court of its jurisdiction to review the exercise of a judicial discretion by a primary judge; or was it intended that the Supreme Court interfere if it finds error in the Registrar's conclusion short of the more manifest error which must exist before an appellate court will interfere with the exercise of a discretion.

36. Although the Ordinance gives little guidance as to the intention of its framers, we are of opinion that, having regard to the subject matter with which the Ordinance deals, the Supreme Court was intended to have a wide power to review decisions of the Registrar under sub-s.11(3). We, therefore, consider that his Honour took too narrow a view of the function of the Supreme Court.

37. For the reasons we have given, we are of opinion that the appeal should be allowed, the judgment of the Supreme Court set aside and the matter remitted to that Court for further hearing. In all the circumstances, we think it is appropriate to make no order as to costs.