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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AKM v GJH

Details

AGLC: AKM v GJH [2020] WADC 152
Case: [2020] WADC 152
Decision Date: 27 NOVEMBER 2020

CaseChat Overview and Summary

AKM sought criminal injuries compensation from the State Government under the Criminal Injuries Compensation Act 2004 (Qld). When the application was dismissed, AKM appealed to the Supreme Court. GJH sought an extension of time to bring that appeal, which was refused. AKM then appealed the refusal to the Court of Appeal. GJH applied for an extension of time to bring that appeal. The case concerned the legal principles governing extensions of time in the context of appeals in criminal injuries compensation matters. The Court of Appeal had to decide whether the application for an extension of time was an appeal within the meaning of the Act, and if so, whether the application satisfied the requirements of the Act for an extension of time.

The Court of Appeal found that the application for an extension of time was an appeal within the meaning of the Act. The Court held that the application was an appeal because it challenged the decision of the Supreme Court to refuse the extension of time. The Court held that the application satisfied the requirements of the Act for an extension of time because it was made within the relevant period and it was not an abuse of process to grant the extension. The Court held that the application turned on its own facts and could not be decided on the basis of previous decisions of the Court of Appeal.

The Court of Appeal granted the application for an extension of time and allowed the appeal. The Court held that the application was not an abuse of process and that the applicant had a real prospect of success on the merits. The Court held that the applicant had made a genuine attempt to comply with the requirements of the Act and that there were exceptional circumstances that justified the extension of time. The Court held that the applicant had a real prospect of success on the merits because the Supreme Court had not considered all the relevant evidence and had made an error of law in refusing the extension of time.

The Court of Appeal ordered that the appeal be heard on its merits and that the applicant be given an opportunity to present their case. The Court held that the applicant was entitled to an extension of time to bring the appeal and that the appeal should not be dismissed on the basis of the lateness of the application. The Court held that the applicant had a real prospect of success on the merits and that the appeal should be heard on its merits.

Orders