AKM v GJH - [2020] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AKM -v- GJH [2020] WADC 152
CORAM:   SHARP DCJ
HEARD:   2 & 8 OCTOBER 2020
DELIVERED          :   27 NOVEMBER 2020
FILE NO/S:   APP 8 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   AKM
Appellant
AND
GJH
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 569 of 2018

Catchwords:

Criminal injuries compensation - Appeal - Extension of time to bring compensation application appeal - Extension of time to bring appeal - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Extension of time to appeal granted
Extension of time to make an application for compensation granted
Decision of assessor affirmed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance
Amicus Curiae	:	Mr G J Stockton on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Bothma v Hildebrand [2019] WADC 92
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
KBR v ADM [2018] WADC 120
KMA v DFS [2010] WADC 6
Re McHenry [2014] WADC 92
Re Warrek [2019] WADC 50
S v Neumann (1995) 14 WAR 452
Underwood v Underwood [2018] WADC 13

SHARP DCJ:

Introduction

This matter comes before the court by way of a notice of appeal filed by AKM (Appellant) on 7 February 2020. The Appellant appeals to this court the decision of an Assessor of Criminal Injuries Compensation (Assessor) under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act). That decision, broadly, is to award GJH (Respondent) compensation assessed at $100,000 for injuries suffered by the Respondent as a consequence of offences committed by the Appellant of which the Appellant was convicted in 1991.
The hearing of the appeal took place on 2 October 2020 and 8 October 2020. The Appellant appeared in person. The Respondent did not appear. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by the State Solicitor.
Following the hearing, I reserved my decision and this is my decision and the reasons for it.

Facts of the Appellant's offending

Details of the Appellant's offending have been drawn from the sentencing remarks of Anderson J on 30 October 1992 (124 of 1992) after the conviction of the Appellant following his trial.
In 1991, the Appellant was charged with:
(a)on an unknown date between 12 July 1991 and 28 July 1991, unlawfully and indecently dealing with the Respondent when the Respondent was under 16 years of age; and
(b)on an unknown date between 1 November 1991 and 31 December 1991, unlawfully and indecently assaulting the Respondent when the Respondent was under 16 years of age.
The Appellant after trial was convicted on 11 September 1992 of one count of unlawful and indecent dealing with a person under the age of 16 years and one count of aggravated unlawful and indecent assault, the circumstances of aggravation being that the Respondent was under the age of 16 years (Offence or Offences).
The Respondent was aged 15 at the time of the Offences. The Appellant befriended the Respondent's family and, when the Respondent's parents went away on a trip, it was arranged that the Appellant would stay in their house and look after the Respondent. After the Respondent's parents returned from their trip, the Appellant remained in the house and the first of the two Offences occurred during that time.
The circumstances of the first Offence was that the Respondent was an exceptionally heavy sleeper and suffered from a back condition. One night after his parents had gone to bed and while the Respondent was in the Appellant's room operating his computer, the Appellant offered to rub the Respondent's back. The Respondent said that he fell asleep and knew nothing until the following morning when he awoke and realised that the Appellant had fellated the Respondent.
The Appellant maintained that the act was consensual and, in the view of Anderson J, the jury was not satisfied of the absence of consent. He sentenced the Appellant on this count on the basis that it was not proved against him that the Respondent did not consent to what the Appellant did to him on that occasion.
Some four or five months after these events, the Respondent moved out of the family home after difficulties with his parents and he went to live with the Appellant. The Respondent was still suffering from back pain and the Appellant again offered to massage his back. While the Appellant was doing so, the Respondent fell asleep and while he was asleep the Appellant fellated him. This was the second of the Offences.
Once more, the Appellant maintained that the Respondent was awake and consenting but this was, in the view of the judge, rejected by the jury who found the Appellant guilty on this account of aggravated unlawful and indecent assault. The judge's view was that the verdict was entirely justifiable on the evidence.
In his sentencing remarks, his Honour noted that the Appellant was generally of good character and that it was difficult to find an explanation for his conduct. He noted that there was no history and certainly no record of any apparent sexual behaviour. His Honour considered that the possibility of the Appellant reoffending was low and that if he were sent to prison then there would be a risk that he may regress in the area of sexual aberration and that the prospect for full rehabilitation would be jeopardised.
His Honour noted that, although the Respondent was angry and disgusted by what the Appellant did to him, he expressed doubt that any serious psychological damage had been done to him or, if it had been done, that it would be overcome in time. His Honour described the Respondent as a sensible, emotionally steady young man who would have the fortitude to put the episode behind him.
The order that his Honour made was that for a period of two years the Appellant would be under the supervision of a Community Corrections' Officer. During that period, the Appellant was expected to comply with such requirements as were stipulated by his supervising officer for psychological counselling to ensure prevention of a repetition of his offending.

The Respondent's application for compensation and the Assessor's decision

On 28 March 2018, the Respondent applied for compensation under s 12 of the CIC Act for injury and loss allegedly suffered by the Respondent as a consequence of the Offences.
The Respondent's application was made more than 23 years over the three year time limit for making compensation applications under s 9(1) of the CIC Act.
In a letter dated 16 January 2020, the Assessor wrote to the Respondent informing him that his application for criminal injuries compensation had been determined and that he was to be awarded the sum of $100,000. The Assessor also made an order under s 45(1)(b) of the CIC Act, limiting the amount of the compensation that the CEO may recover from the Appellant to $30,000. A copy of the compensation award was attached which read as follows:
[the Respondent], born on 28 April 1976, has made an application under section 12(1) of the [CIC Act] as a consequence of [the Appellant] injuring him on a dates (sic) unknown between 12 July 1991 and 31 December 1991 … for which he was convicted in the Supreme Court at Perth on 11 September 1992 of aggravated unlawful sexual assault of a person under 16 years and unlawful indecent dealing with a person under the age of 16 years and proved offences as defined in the [CIC Act] were constituted;
I, ROBERT GUTHRIE, an Assessor, being satisfied as to the relevant matters as required by section 12(3)(a) of the [CIC Act], and having allowed this application pursuant to section 9(2) of the [CIC Act], award [the Respondent] $100,000.00 compensation in respect of those proved offences and order that he be paid that sum.
Pursuant to section 45(1)(b) of the [CIC Act], I order that only $30,000.00 may be the subject of proceedings under Part 6 of the [CIC Act].
Pursuant to section 64(3)(a) of the [CIC Act] I prohibit publication of any particular of this compensation award that is likely to lead members of the public to identify [the Respondent].
DATED 16 January 2020
The Assessor did not deliver written reasons for his decision.

District Court appeal

Under s 55(1) of the CIC Act, an applicant, the CEO or a person who may be liable to pay an amount towards the compensation may appeal to the court against an assessor's decision to make a compensation award or the amount of an award.
On 7 February 2020, the Appellant filed a notice of appeal against the decision of the Assessor. The Appellant sets out in the notice his grounds of appeal as follows:
(a)the Assessor erred in granting the Respondent's application out of time;
(b)the Assessor erred in not holding a hearing;
(c)the Assessor erred in not providing reasons for his decision;
(d)the Assessor failed to take into consideration the date of the Offences when determining the award; and
(e)the Assessor should have treated the Offences as multiple related offences.

Directions hearing on 31 March 2020

At a directions hearing on 31 March 2020, orders were made to remove the full names of the parties and replace those names with the parties' initials. Leave was also given to the CEO to appear as amicus.

Materials before the court

I have proceeded on the basis of the materials which were before the Assessor, including:
(a)a 'complete Case Profile report' from Interrelate of Coffs Harbour, New South Wales. Interrelate is an agency which provided counselling services to the Respondent between 2016 and 2018; and
(b)a statement from the Respondent which he provided to the Assessor in 2019 in support of his 2018 application for compensation.
I also have before me submissions made in this appeal by, respectively, the CEO dated 29 September 2020 and the Appellant, undated and handed up on 8 October 2020, the second day of the hearing of the appeal.

Appeal commenced out of time

An appeal must be commenced within 21 days of the date of the Assessor's decision: s 55(3) of the CIC Act.
The Appellant's notice of appeal was filed on 7 February 2020, one day out of time.
The court may allow an appeal to be commenced more than 21 days after the Assessor's decision date if it is just to do so: s 55(4) of the CIC Act.
In Underwood v Underwood [2018] WADC 13 (Underwood) [25] - [35], Gething DCJ, with whom I respectfully agree, said that the major factors to be considered when deciding to exercise a discretion to extend time within which to bring an appeal under the CIC Act, although they are not necessarily exhaustive in each case, are:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the appellant succeeding in the appeal; and
(iv)the extent of any prejudice to the Respondent.
To explain the delay, the Appellant filed an affidavit affirmed on 7 February 2020. The Appellant's explanation for the delay is as follows:
… The reason for the late filing is that I was depressed by the outcome and didn't know what to do. After a couple of weeks I had settledown (sic) re-read the award letter and the [CIC Act] and then believed I had grounds for appeal.
I consider that the delay of one day is understandable. The Respondent did not take part in the appeal. Accordingly, I do not consider that the Respondent has been prejudiced by the delay. In my opinion it is just to extend the time within which the appeal was required to be lodged to 8 February 2020 and I will do so.

Hearing de novo

In hearing the appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': s 56(1) of the CIC Act.
The appeal is a hearing de novo. I am to treat the application as if it came before the court for the first time, save that the Appellant, even though the original application was not made by him, has the right as well as the obligation to open the appeal: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28. Importantly, the Appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Underwood [19].
It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part: s 56(2)(b) of the CIC Act.

Issues in the appeal

I set out below the issues which I consider arise in this appeal. In coming to my conclusion as to what those issues are, I note that one of the Appellant's grounds set out in the Appellant's notice of appeal is that the Assessor did not hold a hearing prior to making his decision. It is of course entirely open to the Assessor under s 24 of the CIC Act to not hold a hearing. In any event the Appellant was invited to and did give evidence at the hearing of the appeal. I have concluded that it is unnecessary to consider this ground further.
To the same end, I have also decided that it is unnecessary to consider further the Appellant's ground that the Assessor did not provide reasons for his decision. The Assessor is only required to give written reasons for his decision if asked to do so by any interested person: s 27 of the CIC Act. The Appellant told the court (ts 6, 8 October 2020) that he had requested written reasons from the Assessor. However, he conceded that his request to the Assessor was made in advance of the Assessor's decision by almost a year and no evidence has been provided to the court that the Assessor was asked for written reasons following the making of his decision.
It follows in my view that these are the issues for consideration in this appeal:
1.Should leave be granted for the Respondent to commence his compensation application out of time pursuant to s 9(2) of the CIC Act?
2.Has the Respondent suffered an injury or loss such that he is entitled to an award of criminal injuries compensation?
3.If the Respondent is entitled to an award of criminal injuries compensation, what is the appropriate amount?

While not included in his notice of appeal, it is apparent from the Appellant's submissions that he is also seeking a review of the Assessor's decision to make an order under s 45(1)(b) of the CIC Act, limiting the amount of the compensation that the CEO may recover from the Appellant to $30,000.
For completeness, I will add a further issue to be considered, namely, can the order made by the Assessor pursuant to s 45(1)(b) of the CIC Act be challenged on this appeal?

First issue - should leave be granted for the Respondent to commence a compensation application out of time?

Under s 9(1) of the CIC Act, where, as in this case, there are multiple offences, an application for compensation must be made within three years after the date on which the last of the offences to which it relates was committed. An assessor, and thus the court, may extend this time 'if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose': s 9(2) of the CIC Act.
The Respondent must make out a substantial case for it being just for the court to exercise its statutory discretion to extend time: KBR v ADM [2018] WADC 120 (KBR) [14].
In Re McHenry [2014] WADC 92 [34] – [56], Herron DCJ identified a set of non‑exhaustive factors which might be relevant when considering whether to exercise that discretion. I respectfully agree with what his Honour said there and I accept and adopt the summary of those factors which was set out as follows in KBR at [16 ]:
(a)the history and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
There is no doubt that the delay in commencing the Respondent's application for compensation, some 23 years out of time, is significant. However, it is not uncommon for an extension of time to be granted in compensation claims arising from historical child sexual abuse.
The Respondent was 15 when the Offences occurred and he would have been around 18 when the three year time limit expired.
The court has not been provided with any explanation from the Respondent direct about the delay. However, the Assessor needed to consider the same issue and had before him a letter dated 28 March 2018 from Survivors & Mates Support Network (or SAMSN) of Parramatta, New South Wales, who assisted the Respondent in his application for compensation. In that letter, the delay was explained to the Assessor as follows:
[The Respondent] requests an extension of time. Like many survivors, he was unable to make a formal application as a child and up until now could not face the psychological impact of completing the application process. He is now in a place where he would like to proceed with an application …
I accept that explanation as if it had been given to the court. Having considered the Respondent's history, his application, the nature of the Offences and the prospects of the compensation application succeeding, I am in no doubt that an injustice will be suffered if an extension of time is refused. There is no specific prejudice to the Appellant in the delay. I do not accept the Appellant's submission that he was being forced to recall 'depressing' events from 29 years ago. The facts relevant to the Respondent's application are based on the impact on the Respondent of the offending over the period since it occurred and there is no necessity for the Appellant to recall facts from long ago.
On this basis, I consider that an extension of time should be granted.

Second issue - has the Respondent suffered any injury or loss?

Under s 12(1) of the CIC Act, a person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
The term 'proved offence' means a crime, misdemeanour or simple offence of which a person has been convicted: s 3 of the CIC Act. The Offences are proved offences for the purposes of the CIC Act.
Compensation for a proved offence can only be awarded if the Assessor is satisfied that the Respondent has suffered the claimed injury and any loss claimed and that the injury and loss were a consequence of the commission of the Offences: s 12(3) of the CIC Act. The word 'satisfied' is defined in s 3 of the CIC Act to mean 'satisfied on the balance of probabilities'.
The word 'injury' includes mental and nervous shock: s 3 of the CIC Act. The phrase 'mental and nervous shock' contemplates the impact of the offence on the mind or nervous system: KMA v DFS [2010] WADC 6 (KMA) [24]; Bothma v Hildebrand [2019] WADC 92 (Bothma) [42]. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm': S v Neumann (1995) 14 WAR 452 (Neumann), 461; Bothma [42]. It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Neumann (461); KMA [24]. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: KMA [24]; Bothma [42].

It is not necessary for the Offences which are the subject of the compensation application to be the sole cause of the injury or loss. However, the commission of the Offences needs to have materially contributed to the injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; Neumann (463) – (464).
I note that the Case Profile report prepared by Interrelate contains an entry entitled 'event 15‑Aug‑16' which refers to reports of incidents where the Respondent claims that:
(a)when seeking counselling through the Salvation Army following the offences he was abused by the counsellor who was a prison chaplain;
(b)he was sexually abused by a male flatmate;
(c)he was in a relationship with an abusive female partner who he attempted to leave about every six to eight weeks, although it took him over six years to extract himself from this relationship; and
(d)there was an incident of bullying and harassment through his workplace.
The Appellant says that these incidents should be taken into account by the court in this appeal because they also could have had some effect on the Respondent's life.
If these events did take place, I accept that it is possible that they may have led to the Respondent suffering other mental and nervous shock which, of course, is not compensable by way of the application under review. However, I am satisfied that if I can find that the Offences materially contributed to the injury claimed by the Respondent, then it is open to me to conclude that the happening of those other events did not result in the breaking of 'the chain of causation between the commission of those offences and the [Respondent's] present condition': Neumann (464).
In order to make an appropriate award of compensation, supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence in question. The court will not generally rely on conclusions made by an unqualified person without such supporting evidence: for example ReWarrek [2019] WADC 50 [30].
However, in this case the only evidence before the court concerning the Respondent's injury comprises, in effect, the Case Profile report from Interrelate, the sentencing remarks after the Appellant's convictions and the statement from the Respondent, referred to earlier in these reasons, undated but sent to the Assessor by SAMSN on 6 December 2019.
I have already set out the substance of the sentencing remarks. With regard to the Case Profile report from Interrelate, it is important to note that Mr O'Hara of Interrelate in a letter to the Respondent dated 25 January 2018 says:
We are not a medical service and therefore are unable to supply medical evidence, diagnosis or prognosis, and we are not treating professionals as such through treating with medical procedures or clinical therapy.
Accordingly, in order to assess the existence and cause of the Respondent's injury, the only evidence of the injury available is the Respondent's statement.
In that statement, the Respondent opens by stating that 'I died a long time ago and am dragging this corpse along'.
He says that the Offences had immediate and detrimental impacts on his education and escalated once details of his abuse emerged after the Appellant's trial. The other students at his school subjected him to bullying and teasing and he was the subject of gossip. He moved to another school which in his opinion resulted in him having to repeat Year 10 in 1993. He subsequently left school after one term of Year 11.
He says his home life was unstable and his family did not and do not understand the impacts that the abuse had on him. In his view, the result of this was that he was 'kicked out of home' and he turned to alcohol and other substances.
He speaks of having suicidal thoughts and feels constantly under threat. He also refers to his 'PTSD', his unstable employment history and his difficulty in engaging in any job recruitment processes.
He states that he does not have any long term friendships and is unable to pursue intimate relationships.
He says that 'there isn't a day in which' he does not think of the abuse he suffered and he considers himself to be vulnerable and open to exploitation.
He says that he is in a constant state of uncertainty and insecurity with regard to his housing situation which he describes as transient. He also refers to 'sleeping rough'.
He concludes that it has taken him some 25 years to come forward and speak about the Offences against him. He says that abuses and infringements from employers, other people and services that were 'supposed to help' have become the norm in his life.
The injury claimed by the Respondent is psychological, not physical. This is entirely clear from the Respondent's statement.
From the sentencing remarks of Anderson J in 1992, it is apparent that the Respondent, then aged 15, started to have issues with his parents only after the occurrence of the first of the Offences. There is nothing to suggest that prior to the Offences the Respondent was anything but a normal teenager. Anderson J described him as a sensible emotionally steady young man.
I do not know and I will not speculate as to why the Respondent moved in with the Appellant after the occurrence of the first of the Offences. The second Offence then occurred and I am in no doubt that the Appellant's conduct at least the subject of the second Offence would have been seen by the Respondent, still 15, as an absolute breach of trust and would have presented as a low point in the Respondent's life.
It is apparent from the Respondent's statement that Anderson J's expectation that the Respondent would have the fortitude to put the Offences behind him has not been met. The Respondent has clearly not moved on from those incidents and Anderson J's view that no serious psychological damage would have occurred has proved sadly to be not the case.
The Respondent's statement is distressing. His school life and education following the Offences was disrupted. He states that this in turn has led to an inability to find steady employment and his suggestion that he is vulnerable and open to exploitation is unsurprising. His thoughts of self‑harm and his references to substance abuse are troubling. His reference to 'sleeping rough' suggests that his ability to find secure permanent accommodation is compromised.
The fact that he is now speaking with organisations like SAMSN and Interrelate suggests that the Respondent is at least now beginning to come to terms with his life.
I accept the statement of the Respondent as being an accurate summary of his recollection of events following the Offences and his outlook on his future. Despite the lack of supporting medical evidence before the court, and I note in particular that the court has not sighted any formal diagnosis of post‑traumatic stress disorder, I am nonetheless satisfied that, on the balance of probabilities, the traumas faced and suffered by the Respondent following the Offences did in fact occur and amount to 'mental and nervous shock' for the purpose of the definition of 'injury' in the CIC Act. They are of an enduring character so as to amount to an injury, as opposed to mere emotional reaction.
It is my further finding that the Respondent's injury was a direct consequence of the commission of the Offences and that compensation under the CIC Act should be awarded to the Respondent.

Third issue - the appropriate amount of compensation

Section 30 of the CIC Act provides that:
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
The correct approach when fixing the appropriate amount of compensation for an applicant's injury is to apply the ordinary tortious principles for the assessment of damages, subject to the limits imposed by the CIC Act.
Under s 31(1) of the CIC Act, the maximum amount that may be awarded in respect of injuries suffered by a victim as a consequence of the commission of an offence is, relevantly, set at $50,000. However, if as a consequence of two or more offences committed by one person that are not related offences within the meaning of s 33(1), another person suffers injury then the amount awarded must not in aggregate exceed $100,000.
Two or more offences will be related when either they were committed 'at approximately the same time, whether by one person or by 2 or more persons acting in concert', or they are related 'for any other reason': s 33(1) of the CIC Act.
In this case, the offences occurred approximately three to five months apart. Despite ground (e) of the Appellant's grounds, I am satisfied that the offences are not related offences for the purposes of the CIC Act and accordingly the available maximum compensation for the offences under the CIC Act is $100,000.
This is a jurisdictional limit and should not be regarded as 'the appropriate amount of compensation to be provided for the worst possible case': Neumann (463).
The Appellant submits that, because the first of the two Offences was committed during the month of July 1991, which was very soon after the maximum amount of compensation payable for offences committed after 30 June 1991 was increased from $20,000 to $50,000, some sort of transitional provisions should somehow be read into the Table in s 31 of the CIC Act. As I understand this submission, the Appellant considers that the maximum amount of compensation for the first Offence should be something less than $50,000. The submission is clearly wrong and I reject it.
I am entirely satisfied that the appropriate amount of general damages that is just for the injuries sustained by the Respondent as a consequence of the commission of the Offences is well in excess of the court's jurisdictional limit of $100,000 and I assess compensation at $100,000.

Final issue – review of limit on the amount recoverable from the Appellant

There remains the issue of whether the order made by the Assessor limiting the amount of the compensation award which can be recovered by the CEO from the Appellant is reviewable in this proceeding. I conclude that it is not.
The power under s 45 of the CIC Act to order that only part of the compensation award can be recovered from the Appellant may be exercised if the Assessor 'thinks it is just to do so'.
The relevance of an order under s 45 only arises if the CEO applies to the Chief Assessor for a compensation reimbursement order. If such an application is made and a reimbursement is ordered, then an appeal can be made under s 55(2) of the CIC Act against the Assessor's decision, including an appeal as to the amount of the reimbursement order.
While it is arguable that the setting of a limit on the amount of compensation which may be recovered from the Appellant forms part of the Assessor's decision to award compensation and is therefore reviewable in this proceeding, in my opinion the better view is that any review of the amount recoverable should form part of an appeal of a compensation reimbursement order, should one be made.
Accordingly, even if it is open to me to do so, I decline to make an order in this proceeding to reduce the amount of compensation which can be recovered from the Appellant.

Final orders

For these reasons, I make the following orders:
1.The time within which the Respondent may make an application for compensation be extended to 31 March 2018.
2.The time within which the Appellant may commence an appeal from the decision of the Assessor be extended to 8 February 2020.
3.The decision of Assessor Robert Guthrie made on 16 January 2020 is affirmed.
4.Each party do bear its own costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TH
Associate to Judge Sharp
27 NOVEMBER 2020