APL v Chief Executive Officer Department of Justice
[2025] WASCA 34
•10 MARCH 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: APL -v- CHIEF EXECUTIVE OFFICER DEPARTMENT OF JUSTICE [2025] WASCA 34
CORAM: BUSS P
MITCHELL JA
HEARD: 21 FEBRUARY 2025
DELIVERED : 10 MARCH 2025
FILE NO/S: CACV 79 of 2024
BETWEEN: APL
Appellant
AND
CHIEF EXECUTIVE OFFICER DEPARTMENT OF JUSTICE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PALMER DCJ
Citation: RE APL (pseudonym initials) [2024] WADC 115
File Number : APP 10 of 2024
Catchwords:
Appeal - Practice and procedure - Whether an appeal lies from the District Court of Western Australia to the Court of Appeal from a decision on appeal under the Criminal Injuries Compensation Act 2003 (WA)
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 57
Result:
Appeal dismissed as incompetent
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | No Appearance |
Case(s) referred to in decision(s):
Attorney General (WA) v Judge Schoombee [2012] WASCA 29
Craig v The State of South Australia (1995) 184 CLR 163
Hall v Vaatuitui [2006] WASCA 195
Jackson v Chrisp [2012] WASCA 158
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1
WHW v Commissioner of Police [2014] WASCA 153
JUDGMENT OF THE COURT:
Background
On 23 April 2023, the appellant made a compensation application under pt 2 of the Criminal Injuries Compensation Act 2003 (WA) (CIC Act). On 13 February 2024, the Chief Assessor of Criminal Injuries Compensation refused the appellant's application.
Section 55(1)(a) of the CIC Act, read with associated definitions, relevantly provides for a person who makes a compensation application to appeal to the District Court of Western Australia from an assessor's decision to refuse to make a compensation award under pt 4 of the CIC Act. On 16 February 2024, the appellant exercised this right of appeal to the District Court. On 20 December 2024, the primary judge ordered that the appeal to the District Court be dismissed.
On 25 December 2024, the appellant lodged an appeal notice seeking to appeal from the primary judge's decision dismissing the appeal to the District Court from the assessor's decision to refuse to make a compensation award. The appeal notice indicated that the appeal was allowed by s 79 of the District Court of Western Australia Act 1969 (WA) (DC Act).
Section 79 of the DC Act provides for the general right of appeal by a party to an action or matter who is dissatisfied with a judgment of the District Court to appeal from that judgment to this court. However, s 57 of the CIC Act provides that the District Court's decision on an appeal made under pt 7 of the CIC Act (in which s 55 of the CIC Act is located) is 'not appealable'.
Hearing on 21 February 2025
On 14 January 2025, the Court of Appeal registrar issued a notice for the parties to attend on 21 February 2025 for the court to consider whether to strike out the appeal notice on the basis that the appeal is incompetent.
On 19 February 2025, the appellant sent an email to the Court of Appeal office indicating that she was 'currently unwell' and had 'physical and mental injuries'. The appellant asked that the hearing be postponed so that she could 'research previous decisions by the supreme court relevant to this case'. On the same day, the manager of the Court of Appeal office advised the appellant that her request could not be dealt with by correspondence, and that an application to vacate the hearing needed to be made by application in the appeal supported by an affidavit.
At 11.05 pm on 20 February 2025, the appellant sent an email to the Court of Appeal office requesting to appear at the hearing on 21 February 2025 by telephone as she was 'too unwell to appear in person'. At 9.00 am on 21 February 2021 (90 minutes before the scheduled hearing time), the appellant was advised by email that her request to attend by telephone had been granted and that a court officer would call her shortly before the commencement of the hearing.
The appellant did not appear at the hearing on 21 February 2025. Calls to the phone number which the appellant had provided, both prior to and during the hearing, went straight to the appellant's message bank.
We were satisfied that the appellant had been given a sufficient opportunity to appear and make oral submissions on the competence of the appeal. There was no medical evidence that the appellant was unable to attend the hearing either in person or by telephone, and no application for an adjournment. In these circumstances, we did not consider it to be in the interests of justice for the court's limited judicial and administrative resources to be used to give the appellant a further opportunity to make oral submissions on the question.
However, we considered it to be appropriate to give the appellant a further opportunity to file written submissions. We therefore ordered that:
1.By 4:00 pm on 28 February 2025 the appellant may file written submissions on why this court should not dismiss the appeal as incompetent because s 57 of the [CIC Act] provides that the District Court's decision on an appeal made under pt 7 of that Act is 'not appealable'.
2.The court will decide on the basis of the documents that have been filed in the appeal including any written submissions filed pursuant to order 1, and without an oral hearing, whether the appeal must be dismissed as incompetent by reason of s 57 of the [CIC Act].
The appellant filed written submissions pursuant to this order. While these submissions were largely addressed to the merits of the proposed appeal, the appellant also contended that:
All decisions by the District Court should be appealable in a higher court, which in this case is the Supreme Court. It is not conceivable that a decision by a lower court such as the District Court could be final and not appealable in a higher court in 2025.
Disposition
The availability of an appeal from the District Court under the predecessor provisions of the Criminal Injuries Compensation Act 1985 (WA) (1985 Act) was considered by McLure JA in Hall v Vaatuitui.[1] Section 43(2) of the 1985 Act provided that the decision of a District Court judge under pt VI of the 1985 Act 'shall be final'. McLure JA noted that s 57 of the CIC Act was 'to similar effect'.[2] McLure JA concluded:[3]
An appeal is entirely a creature of statute. The source of the District Court's appellate jurisdiction, being the 1985 Act, expressly provides that the District Court's decision is final. That is a clear and unequivocal indication that the legislature intended that there be no appeal from a decision of the District Court under Pt VI of the 1985 Act: The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 88; R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 at 585.
Where there is a general statutory right of appeal from decisions of a particular court to a higher court, subsequent legislation making a relevant decision of the court final will have the effect of excluding an appeal: Kydd v Liverpool Watch Committee [1908] AC 331; Kuligowski v Metrobus (2002) 26 WAR 137 at 151 - 152 per Malcolm CJ. Thus, s 43(2) of the 1985 Act (and s 57 of the [CIC] Act) prevail over the general statutory right of appeal in s 79(1)(a) of the [DC Act]. I am satisfied that the appeal is incompetent. (emphasis added)
[1] Hall v Vaatuitui [2006] WASCA 195. This decision was cited with general approval by this court in WHW v Commissioner of Police [2014] WASCA 153 [90] and Jackson v Chrisp [2012] WASCA 158 [61].
[2] Hall [5].
[3] Hall [7] - [8].
For the reasons explained by McLure JA in Hall, the present appeal must be dismissed as incompetent. The general right of appeal conferred by s 79 of the DC Act operates subject to the exclusion of an appeal from a decision of the District Court on an appeal under pt 7 of the CIC Act by s 57 of the CIC Act. As such, the primary judge's decision in this case is not subject to appeal to this court. This court must give effect to the unmistakably clear language of s 57 of the CIC Act, that the primary judge's decision in this case is 'not appealable'.
That is not to say that a decision of the District Court on an appeal from an assessor under the CIC Act can never be the subject of any legal challenge. This court has a constitutionally entrenched jurisdiction to enforce the limits on the exercise of State executive and judicial powers by persons and bodies other than this court.[4] As such, where the District Court exceeds the limits of its authority to determine the appeal to that court under the CIC Act, its decision may be quashed by writ of certiorari.[5] The privative provision in s 80 of the DC Act does not exclude judicial review for jurisdictional error.[6] The existence of this constitutionally entrenched jurisdiction answers the concern expressed by the passage of the appellant's submissions quoted at [11] above.
[4] See Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [98].
[5] As occurred in Attorney General (WA) v Judge Schoombee [2012] WASCA 29.
[6] Kirk [100].
Therefore, any challenge to the primary judge's decision in this case could only be by way of an application for judicial review for jurisdictional error. Such an application would need to be initiated in the General Division of this court,[7] although it would be open to a judge of the General Division to order that it be heard by the Court of Appeal.[8]
[7] See Rules of the Supreme Court 1971 (WA) O 56 and Supreme Court Act 1935 (WA) s 58(1).
[8] Rules of the Supreme Court O 56 r 5(4) and Supreme Court Act s 58(1)(d).
Nothing in these observations should be taken to suggest any view as to whether jurisdictional error might be established in this case if an application for certiorari were to be instituted. We note that it is established that the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.[9] Demonstration of jurisdictional error in the present case would require more than establishing that the District Court made an error in determining such a question.
[9] Craig v The State of South Australia (1995) 184 CLR 163, 179 - 180. See also the discussion in Kirk [68] - [70] and Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1 [18], [56] - [57], [161] - [166].
For the above reasons, the appeal to this court must be dismissed as incompetent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate to the Hon Justice Mitchell
10 MARCH 2025
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