B v T - [2011] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: B -v- T [2011] WADC 98

CORAM: SCHOOMBEE DCJ

HEARD: 16 MAY 2011

DELIVERED : 23 JUNE 2011

FILE NO/S: APP 39 of 2010

BETWEEN: B
Appellant
AND
T
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
File No  :CI 508 of 2009, CI 206 of 402

Catchwords:

Criminal injuries compensation - Appeal - Leave to commence appeal out of time - Inordinate delay - Inadequate explanation for delay - Some prospect of success - Prejudice to respondent if amount of compensation overpaid recovered by the State

Legislation:

Criminal Injuries Compensation Act 2003, s 41, s 55(4)

Result:

Application to commence appeal out of time refused

Representation:

Counsel:

Appellant:     In person
Respondent:     In person
Amicus Curiae              :     Mr P Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

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

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

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 93 ALR 479
Gallo v Dawson (1992) 109 ALR 319
Gullelo v Halloran [2008] WADC 145
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McGowan v Colvin [2008] WADC 93
Smithies v the Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D990180, 22 June 1999)

SCHOOMBEE DCJ: This matter concerns an application by B, the appellant, for leave to extend the time for filing a notice of appeal in respect of an award made by the Assessor of Criminal Injuries Compensation. The assessor awarded $24,000 in compensation to T, the respondent, for psychological injuries sustained by her as the result of an alleged offence and proven offences committed by B. The assessor also awarded T $1,551 for a medical report.
The compensation was awarded in respect of an incident on 5 January 2002 at Hillarys where a scuffle occurred between B and T in the course of which he grabbed her around the neck and she fell to the ground. T called for the assistance of the police, but at a later stage did not proceed with laying a charge against B. The award for compensation for this incident was made pursuant to s 17(2) of the Criminal Injuries Compensation Act 2003 (the Act) which allows for compensation for the commission of an alleged offence.
The award was also made in respect of a conviction by B for aggravated burglary on 27 January 2004 and seven convictions for breaches of a violence restraining order which occurred between 1 July 2002 and 4 May 2005. The compensation in respect of these offences was awarded under s 12(1) of the Act which allows for an award of compensation where a person has suffered injury as the consequence of the commission of a proved offence.
'Injury' is defined in the Act as including mental and nervous shock. It is well established that such an injury includes injury to a person's mental health.

The background circumstances

B and T have been involved in protracted Family Court proceedings in respect of their son A who was born on 30 December 1999. The parties met early in 1999, but the relationship was terminated by T before A was born. The parties still spent time together and B had access to his son for the first two or three years of A's life. Unfortunately, the relationship between B and T was unstable, turbulent and dysfunctional.
I have read all of the numerous statements, reports and other documents on the file. I have also read the detailed judgment which his Honour Justice Thackray delivered on 2 May 2006 in the Family Court and pursuant to which he granted sole custody of A to T and reluctantly declined B any rights of access to his son. This decision was made for the emotional wellbeing of A and on the basis that if supervised access by B to A were to continue, the parties would never stop their 'legal war of attrition' and T would ensure that any access would not take place smoothly. It is clear from this judgment that instead of focussing on the emotional wellbeing of A and allowing him to enjoy normal and loving contact with both parents, the parties became obsessed with their anger and resentment towards each other.
Justice Thackray referred in his decision to a report by Mr S, the manager of the contact service at Relationships Australia. This service provided a number of supervised contact sessions between A and B. Mr S stated in his report that 'T will not stop in her endeavours to thwart A's contact with his father'. He also referred to the fact that T had secreted a device in A's pants on one occasion in order to record what was happening at a session at Relationships Australia.
Justice Thackray found that T instilled the fear that she felt for B into A with the result that he became scared of his father and did not want to see him. In January 2004, after A had not seen his father for approximately a year and a half, T went to the press and an article was published in the West Australian of T and A, who had just turned 4, under the caption: 'These eyes have seen his mother choked unconscious and a father he fears'. As I will explain later, there does not seem to be any basis for the allegation that T was choked unconscious by B.
Justice Thackray came to the conclusion that T did have some basis for being fearful of B because of his behaviour, which I will refer to in due course. But Justice Thackray also found that T's 'capacity to overstate her case appears to have no bounds' and that she had embarked on a concerted campaign to ensure life was made as difficult as possible for B.
Despite T's conduct, Justice Thackray reluctantly came to the conclusion that it was in the best interests of A if his father did not have contact with him until he reached the age of 14, because the behaviour of both parents would cause emotional harm to A if contact between A and B was to continue.
I have mentioned the background to B's appeal in respect of the award for criminal injuries compensation because I can understand how upset he must be about the fact that he has been denied contact with his child, not because he has done anything inappropriate with regard to the child, but because T's reaction to B's bad behaviour has been such that she has transferred onto A her anger and resentment against B and has gone out of her way to thwart any meaningful contact between B and A.
The circumstances that form the background to the Family Court proceedings are not directly relevant to the application for the late filing of the notice of appeal before me. However, it was apparent from B's oral submissions during the hearing of this application that he still relies on these background matters and his main concern with the criminal injuries compensation award was that, in his view, T was rewarded for her bad behaviour.
When B was asked by the assessor to make submissions as to why criminal injuries compensation should not be awarded to T, B submitted in a letter, dated 26 August 2008, that T's application for criminal injuries compensation had been made out of spite and was 'nothing more than a malicious vendetta' by her to prevent him having contact with his son. However, when these submissions were made the judgment by his Honour Justice Thackray had already been delivered a few months earlier.
In the submissions to the assessor B also referred to the fact that T had made false allegations against him, had gone to the press to publicise her alleged fear of him and had obtained a false passport for her son. In earlier submissions by B, dated 8 August 2006, he referred to a complaint made by T to the 'Barristers Board' regarding B's lawyer, a complaint made by T to the Medical Board in relation to A's paediatrician and a complaint made by her against the clinical psychologist who filed a report in respect of A. B attached the newspaper reports, the reports by A's paediatrician and clinical psychologist, the transcript of various proceedings in the Magistrates Court (in which T falsely stated that no Family Court proceedings were on foot), and the decision by his Honour Justice Thackray.
B's submissions to the assessor were largely concerned with T's bad behaviour, but did not address the primary issues that the assessor had to decide. These issues were essentially whether B had committed the alleged offence at Hillarys as well as the aggravated burglary and the breaches of the violence restraining order, whether T suffered a psychiatric injury as a result of the offending conduct by B and how much compensation she should be awarded for her psychiatric injury. The assessor had to focus on those issues and not on the background circumstances or the result of the Family Court proceedings. B does not seem to have had any legal advice in relation to T's application for criminal injuries compensation and did not address the relevant issues in his submissions to the assessor.
B still seems to be under a misapprehension with regard to the issues relevant to an application for criminal injuries compensation, because he phrased his grounds of appeal as follows:
The compensation was granted to the respondent after the respondent lied 3 times in a violence restraining order application the result (of which was that) I was denied any (opportunity to) spend time with my son until my son attains the age of 14 years of age. The date of the VRO was 11th January 2002.

Appeal out of time

The other problem that B faces is that he filed his appeal against the decision made by the assessor way out of time. The assessor's award was made on 30 September 2009. On the same date the assessor wrote to B advising him of the award made, telling him that he would be required to reimburse the State in respect of part of the monies awarded to T and advising him that he could lodge an appeal within 21 days. B was also given a telephone number to contact if he needed advice about lodging the appeal.
The 21 days period expired on 21 October 2009. B only filed a notice of appeal on 9 June 2010 which was approximately seven and a half months out of time. This was after he had sought the assistance of a community group in April 2010 with regard to the compensation award.
The only explanation offered by B for this delay is contained in his affidavit of 15 December 2010. He said the Family Court proceedings, the various charges brought against him for breaching the violence restraining orders and the false allegations by T had so affected his life that he became a different person and found it overwhelming to deal with day to day issues. He also did not understand all the 'severity of the situations' stated in the various affidavits filed by T. B stated that since 2000 he was not able to deal with all of these issues as the result of the 'continuous barrage' against himself.
B also filed a letter from his general practitioner, Dr T, in support of his application for leave to extend the time for the filing of the notice of appeal. Dr T stated that B's ability to act in a timely manner in decision making and attending to important matters had been affected as a result of his ongoing Family Court, Magistrates Court and District Court proceedings. Dr T advised that B suffered from depression and anxiety as a result of having been denied access to his son.
However, when the assessor's award was made on 30 September 2009 the judgment by His Honour Justice Thackray had already been delivered almost four years earlier, that is, on 2 May 2006, and the breaches of the violence restraining order had all occurred prior to that date. Most of the breaches had already been dealt with by a court, except for two which had occurred in March 2005 and May 2005. A charge that B had made a threat to unlawfully kill T on 24 March 2005 was discontinued by the State on 27 November 2006 and the transcript of the proceedings shows that B pleaded guilty to a different summary charge which was uttering threatening words. It therefore seems that the charge in relation to the 24 March 2005 incident was resolved in 2006 and it is unlikely that the matter regarding the May 2005 incident took much longer to be completed.
In oral submissions B also referred to an occasion when he discovered that T had taken A out of the country without his permission and had allegedly applied for a false passport. This again called for some appearances before the Family Court. However, B admitted that this incident occurred some time in July or August of 2008.
This means that by 30 September 2009, when the compensation award was made, B was no longer subjected to a 'barrage of proceedings' and was likely to have had very little or no contact with T. Further, when T had made her application for criminal injuries compensation and the assessor had asked B by letter dated 7 August 2008 whether he wished to file any submissions in answer to the application, B had managed to file submission on two occasions, that is, on 8 and 26 August 2008.

Application for leave to commence appeal out of time

Section 55(4) of the Act gives this court a discretion to allow an appeal to be commenced after the 21 days if 'it is just to do so'.
The authority which is generally referred to in Western Australia for a summary of the factors that a court should take into account in exercising its discretion to allow an extension of time for the filing of an appeal is Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198. In that case Kennedy J listed four factors, being the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent.
When Esther Investments Pty Ltd v Markalinga Pty Ltd was decided, O 63 r 4 of the Rules of the Supreme Court 1971 allowed an appeal to be filed within 21 days from the date of the judgment or 'within such extended time as the Full Court or the Judge may allow'. The rule therefore allowed for the court's discretion in general terms.
In Gallo v Dawson (1990) 93 ALR 479, 480 McHugh J listed the factors that should be taken into account by the High Court in exercising its discretion to extend the time for the filing of an appeal. This decision was based on O 60 r 6 of the High Court Rules which provides that the court or a justice may enlarge the time appointed by the Rules 'as the justice of the case may require'. McHugh J held that the discretion to extend time was given for the sole purpose of enabling the court to do justice between the parties. This meant that the discretion could only be exercised upon proof based on material submitted by the applicant that strict compliance with the Rules would work an injustice upon him. In order to determine whether the Rules would work an injustice, it was necessary to have regard to the following factors:
1.the history of the proceedings;
2.the conduct of the party;
3.the nature of the litigation;
4.the consequences for the parties of the grant or refusal of an extension of time;
5.the prospects of the appellant succeeding;
6.the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.
The decision by McHugh J was upheld on appeal in Gallo v Dawson (1992) 109 ALR 319 (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ).
Although the factors listed in Gallo v Dawson overlap to a large extent with the factors referred to in Esther Investments Pty Ltd v Markalinga Pty Ltd I propose to apply the factors listed in the former case, as the wording of the High Court rule is similar to the words used in s 55(4) of the Act.

The history of the proceedings, the conduct of the party and the nature of the litigation

When regard is had to 'the history of the proceedings', the relevant proceedings are the application for criminal injuries compensation. The 'conduct of the party' includes the length of the delay in filing a notice of appeal. In B's case there was an inordinate delay of seven and a half months. An extension of time is often granted where an appellant delays by a few days or a few weeks. It is rarely granted where an appellant delays by such a long period.
The stated reason for the delay was that B still felt overwhelmed by all the Family Court and criminal law proceedings that he had to deal with. However, this is a very thin explanation as most of these matters, apart from the passport issue, had been completed by the end of 2006.
I accept that B was diagnosed with anxiety and depression, but this did not prevent him from making timely submissions in respect of the application for criminal injuries compensation. There does not seem to be any cogent reason why he could not also file a notice of appeal within the prescribed time period of 21 days, as he was advised to do by the assessor.
B said in his affidavit of 15 December 2010 that when he was informed about the award he was 'once again devastated that the defendant with her history, she had yet again brought my world down'. This seems to indicate that B was initially so shocked about how T had once again affected his life that he was unable to do something about it. However, it is not explained why it took him so long to decide to seek some assistance in dealing with the award and the implications for him. T sought the help of a community legal centre for bringing her application. B could have done likewise.

The prospects of the appellant succeeding

The next issue to be considered is whether B has any prospect of succeeding if I were to allow him an extension of time to file the notice of appeal and if I, or another Judge, were to hear his appeal.
Pursuant to s 56(1) of the Act an appeal against an assessor's decision is to be decided afresh by the District Court. This means that the appeal is a re‑hearing: Gullelo v Halloran [2008] WADC 145 [5]. The District Court must decide the case on the evidence and information that was in the possession of the assessor and on the basis of any further evidence or information that the court agreed to accept.
As I said earlier, the issues before the assessor were whether B had committed the alleged offence at Hillarys, the aggravated burglary and the seven breaches of the violence restraining order, whether B's conduct had caused T to suffer a psychiatric injury and, if so, what a reasonable amount of compensation would be.
There is sufficient information in the various statements by T that B did assault her to some extent during the incident at Hillarys on 5 January 2002, when he briefly placed his hands around her neck. Justice Thackray who heard evidence about this incident came to the conclusion that there was 'a nasty argument and scuffle, which included B momentarily taking hold of T around her neck and upper arm, causing her soft tissue injury'. His Honour found that at no time was T unconscious, as she has repeatedly asserted. Justice Thackray referred to the fact that T gave different descriptions of this incident in her various statements to the police, a doctor, the magistrate and in the Family Court. I have also noted the inconsistencies in her description in the material before me. Nevertheless, Justice Thackray came to the conclusion that it was a very unpleasant incident and not as trivial as B endeavoured to portray it in the Family Court. T called the police on this occasion and saw her doctor about the soft tissue injury on her neck and her upper arm.
There is also no doubt that the aggravated burglary on 12 October 2002, to which B pleaded guilty, must have been very frightening for T. On that occasion B went to T's home at 10.15 pm. He was under the influence of liquor and concerned about the possibility of T being with another man. Justice Thackray stated in his judgment that after B had been refused entry, he proceeded to beat down the security door and the front door after failing to obtain entry through a security screen window. Once inside, B challenged T's male visitor to come outside. He demanded to know whether the gentleman was sleeping with T.

The assault at Hillarys and the burglary were clearly very frightening incidents for T, not only when they occurred, but also on the basis that she must have been very concerned about what B might do next. Prior to the burglary there was repeated conduct by B which would have made T very worried that he was not going to leave her in peace but would harass her on an ongoing basis. B also acted in a manner which gave rise to a legitimate concern by T that he might do something to remove A from her custody. Justice Thackray described an incident on 10 June 2002 when B turned up at A's playgroup and behaved in a way that made T fear that he was going to abduct A. Although Justice Thackray came to the conclusion that T had embellished this incident, he nevertheless found that her version of what occurred on that day was closer to the truth than B's.
Justice Thackray further found that on 12 June 2002 while speaking to A n the telephone B told him that he would take him on a 'boat trip far, far away, … just A and daddy'.
T spent the night of 14 June 2002 at her mother's home. When her parents were driving her and A back to her house on the following evening they noticed that B was following them. They kept on driving and B followed them for at least one and a half hours. T eventually went back to her home and B parked outside. B admitted in the Family Court that he had followed T around for one and a half hours. The next day T applied for a violence restraining order.
These matters which occurred after the Hillarys incident and prior to the burglary are not offences or alleged offences relied upon by T in her applications. However, they are essential background material as to why the breaches of the violence restraining order which I will describe next were frightening experiences for T.
On 1 July 2002 B approached T at the Family Court despite being prohibited to do so under the violence restraining order, accused her of being with another man and asked her who had given her the jewellery she was wearing. B was convicted of breaching the violence restraining order.
On 28 August 2002 B left a letter with money for child support at the home of T's mother with a request for it to be passed on to T. B was charged with and pleaded guilty to breaching the violence restraining order.
On 5 May 2003, after having spent some time working in the north‑west of the state, B returned to Perth and left a pink rose on T's doorstep. Justice Thackray said in his decision that he accepted that this 'gesture' caused T stress, because she had enjoyed B's long absence and was shocked when she saw his car parked near her house. B again pleaded guilty to breaching the restraining order.
On 16 October 2003 B arranged for a friend to serve Family Court documents on T. T claimed that the friend had banged aggressively on her door 'late at night'. Justice Thackray observed that 'late at night' turned out to be 7.20 pm, but he nevertheless accepted that the incident was distressing for T because she initially thought that it was B who was banging on the door. B was again charged with and pleaded guilty to breaching the violence restraining order.
The next breach of the violence restraining order was on 24 March 2005. T said in a statement dated 7 September 2005 that on that day B had acted aggressively towards her during Family Court proceedings. After the proceedings she waited for 15 or 20 minutes before leaving the building so that she would not run into B. However, as she was waiting on a park bench for her father to pick her up in his car she saw B drive out from behind a bus that was parked on the street. She took a photograph of B driving. B then swerved his vehicle towards her as she was walking across vacant car bays towards her father's car. After she had entered her father's car B pulled up alongside them and accused T of trying to 'set him up with his driving'. T alleges that B then yelled at her that he would kill her. A charge of threatening to kill was laid against B but subsequently discontinued and B pleaded guilty to uttering threatening words. He also pleaded guilty to a breach of the violence restraining order.
B's accusation that T was trying to 'set him up' regarding his driving had some merit, as there was a previous occasion or two where T had dobbed in B for driving without a licence. T also brought a private prosecution against B for breaching his violence restraining order by having looked at her 'in an intimidatory manner' at the Family Court when he walked past her several times during one of the many hearings. The police were not prepared to prosecute in relation to this incident and T's private prosecution was dismissed.
I mention these incidents to indicate that T's vindictiveness had no bounds.
Another breach of the violence restraining order occurred on 4 May 2005 when B tried to serve papers on T at the Family Court and waved them in her face. When she refused to take them he served them on her father who was present. It seems that B also pleaded guilty to this charge.
Justice Thackray who heard evidence about all these incidents came to the conclusion that T's version of events often contained significant elements of truth, but was usually so highly dramatised that it was difficult to distinguish fact from fiction. Justice Thackray said B, on the other hand, continually minimised when dealing with his own poor conduct towards T and was prepared to tell untruths in order to advance his cause. Justice Thackray came to the conclusion that neither party had much regard for the truth. He found that T's capacity to overstate her case appeared to have no bounds and that T had a tendency to milk a situation for dramatic effect. On the other hand, he found that B was quick to lose his temper when crossed and Justice Thackray was satisfied that B's behaviour had given T a genuine basis for concern about her safety.
In a victim impact statement completed by T on 22 December 2005 she reported that B's conduct and breaches of the violence restraining order had significantly affected her state of health. She described problems with sleeping, headaches, repeated viral infections and difficulties with her vision that did not have a medical explanation. She said she had become afraid of the dark and had to keep a light on all night. She also kept her telephone switched on all night and beside her bed. She no longer felt safe in her own home and always kept all doors locked and the curtains closed so that if B was standing outside he could not look in.
T said following the burglary in October 2002 she was unable to stay in her house because her son was so distressed on seeing the damage that had been caused to the doors by B. A was asleep when B forced his way into the house, but T must have told him that it was his father who caused this damage to the doors. T reported that she had to stay with friends for a period of six weeks while the repairs to the doors were completed.
T stated that as the result of the constant fear and stress that she felt in relation to B she had been unable to return to the workforce. She felt that the quality of her life had been taken from her and that she was living like a prisoner in her own home, fearing what B would do next. She said this position had been ongoing for six years in varying degrees of severity.
In a victim impact statement dated 11 July 2008 T reported that she had been diagnosed with post‑traumatic stress disorder. She said her life was still affected by B's past violent and abusive behaviour. She reported that she found it difficult to sleep at night, particularly on occasions when she had sighted B outside her home. She still reacted to noises and feared answering the door. She stated that the constant breaches of the violence restraining order had caused her to always feel on edge about what B would do next and she felt like she was living in a glass box, being watched constantly by B. T said she felt scared in her own home and always kept the lights on during the night.
T submitted to the assessor a report by Dr B, consultant psychiatrist, dated 16 July 2005. Dr B said he saw T on 29 June 2005 for a psychiatrist assessment with regard to her criminal injuries compensation claim. Dr B diagnosed T with post‑traumatic stress syndrome which related to the 'major stresses' that she had been subjected to during the years 1999 ‑ 2003 and which were aggravated by her stressful re‑encounters with B in early 2005. The major stresses that Dr B refers to are the relationship problems between T and B, the Family Court proceedings and the various breaches of the violence restraining order as well as the incident at Hillarys and the aggravated burglary. Dr B came to the conclusion that T had been severely traumatised and stressed by B's persistent, aggressive and threatening behaviour over a number of years and that this had resulted in her developing the post‑traumatic stress disorder. Dr B described T's symptoms as considerable trouble sleeping, being constantly afraid in her own home, being anxious throughout the day that she might run into B, being irritable, short‑tempered and angry and having lost her confidence and self‑esteem.
Dr B clearly relied on the information provided by T to him. However, as Justice Thackray noted in his judgment, it would be inappropriate to speculate on the extent to which T may have exaggerated her symptoms when consulting the psychiatrist who she saw in order to prove her claim for criminal injuries compensation. Dr B's report was the only information placed before the assessor with regard to T's psychiatric condition and in the light of the absence of any contradictory evidence or a request to cross-examine Dr B at a hearing before the assessor, it would be inappropriate to reject the opinion of a professional person.
There is no doubt that T was subjected to repeated abuse and harassment by B and that she had to endure a number of incidents which must have been very frightening for her. Even if she was not choked until she became unconscious, being grabbed around the neck so that soft tissue injury was caused must have been very frightening and T reacted by calling the police. The burglary incident when B broke down a security door and the front door, after having first tried to gain entry through a security screen window, must again have been extremely frightening.
It is therefore likely that B's violent conduct and repeated harassment did cause T to suffer from post‑traumatic stress disorder. It may be that other factors contributed to her psychiatric condition, but there was no evidence before the assessor that T had suffered from any mental health problems prior to the offending conduct by B occurring. Further, it is an established principle, based upon the law of tort, that as long as the alleged offence and the offences committed by B made a material contribution to her psychiatric injury, T is entitled to compensation in respect of this injury: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
On the basis of the diagnosis made by Dr B and the symptoms described by him in his report, the award of $24,000 for T's psychiatric injury is not excessive.
The assessor made an order pursuant to s 45(1)(b) of the Act that only the sum of $17,034 be the subject of proceedings under pt 6 of the Act. This means that the State is only entitled to claim reimbursement from B in respect of $17,034 of the total award made in T's favour. The assessor presumably made this order because under s 50 of the Act the State may only apply for a compensation reimbursement order against a person who has been convicted of an offence. The assessor must have come to the conclusion that approximately one third of the total award of $25,551 related to the alleged offence at Hillarys for which B was not convicted.
Pursuant to s 27(1) the parties were entitled to ask the assessor to give written reasons for making the award. It does not appear that either party asked for written reasons. Because no written reasons are available, it is not possible to determine whether the assessor took into account section 41 of the Act. Section 41 of the Act provides that in deciding whether to make a compensation award the assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly to the victim's injury and may, if the assessor thinks it just to do so, refuse to make a compensation award because of that contribution or reduce the amount that the assessor would otherwise have awarded. It may be that the assessor considered this section, but came to the conclusion that it was not just to refuse to make a compensation award or reduce the amount of that award because of T's own conduct.
I have referred to T's conduct which must have contributed to the dysfunctional relationship between the parties and fuelled B's anger and resentment. The fact that T influenced her son against his father and made the supervised contact impossible is discussed in detail in Justice Thackray's judgment. This would obviously have inflamed B's resentment against T. T also engaged in a 'concerted campaign to ensure life was made as difficult as possible for B', as Justice Thackray described it. This included her dobbing him in for driving without a licence, bringing the private prosecution which seemed to be based on very flimsy grounds and exposing the parties' history in the press, thereby allowing A to be in the full glare of the public eye when he was only about 4 years old.
If this behaviour by T occurred prior to B's offending, it would be a matter which may have contributed, if not directly, then indirectly, to B committing the alleged offence at Hillarys, the burglary and the breaches of the violence restraining order and therefore to T's injury. It is not clear from the material before me exactly when this behaviour occurred and where it fits in, in relation to the offences committed by B.
T's influencing of A against his father seems to have occurred prior to July 2005, as this is the date when the manager of contact services for Relationships Australia filed the report detailing T's efforts at undermining the success of supervised access. Justice Thackray referred to T dobbing B in for driving without a licence when he attended the first appointment with Mr C, a clinical psychologist appointed by the Family Court to assist in the resolution of the proceedings. Mr C's report is dated 2 November 2004 and the appointment with B is therefore likely to have occurred shortly before this date. The private prosecution matter which T instigated was heard in February 2005, but presumably started earlier. T approached the press in early 2004 and her story was published in the 'West Australian' on 22 January 2004 and shortly thereafter in a local newspaper.
This seems to indicate that most of T's inflammatory conduct occurred in about 2004 and continued into early 2005, which was after the two main incidents, that is, the Hillarys incident in January 2002 and the burglary in October 2002. Apart from the last two breaches of the violence restraining order in March and May 2005, all the other breaches also occurred prior to 2004. This means that T's conduct could not have contributed to these incidents and breaches.
However, the incident in March 2005 must also have been very frightening for T. This was when B swerved his vehicle at T and after that pulled up next to her car and shouted threatening words to her and her father. In May 2005 B again breached the violence restraining order by waving family court papers in T's face.
On 29 June 2005, T saw Dr B and he diagnosed her with post traumatic stress disorder. He found that this disorder was due to her frightening experiences prior to 2004, but was exacerbated by the incident in March 2005.
There is therefore some prospect that a court hearing the appeal would come to the conclusion that T's behaviour in about 2004 – 2005 made a contribution to B's further offending in 2005 which in turn contributed to her post traumatic stress disorder. It is not necessary for me to make a final finding about this at this stage or to decide to what extent the compensation award should be reduced. Procedural fairness would require that both parties be given the opportunity to make submissions on this issue if a reduction in the compensation award was to be made: Smithies v the Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D990180, 22 June 1999) 6. At this stage all I have to decide is whether B has any prospect of success if he was to be allowed to file the notice of appeal out of time and the appeal was to go ahead. I am satisfied that there is some prospect of success.

The prejudice to either party and allowance for the respondent's vested right to retain the judgment

This leaves the last factor to be considered and that is the extent of any potential prejudice to either party if the late filing of the notice of appeal was allowed. I also have to take into account T's vested right to retain the award of compensation that she has received.
If B's application to file the notice of appeal out of time was refused, he would be exposed to an application for reimbursement by the State. Such an application has already been filed and B was asked to appear before the assessor on 12 May 2010. The application was adjourned pending the outcome of B's appeal. If B is not granted leave to file the notice of appeal out of time, he would suffer prejudice, if the reimbursement order was made, as he would then have lost the opportunity of having the compensation award reduced to take account of T's contributing behaviour.
On the other hand, T would also suffer prejudice, if the late notice was allowed, the appeal was successful and her compensation award was reduced. I have found in McGowan v Colvin [2008] WADC 93 [42] ‑ [44] that although this is not spelled out in the Act, the State appears to be entitled to make an application to recover from the victim of the offences that part of the amount of compensation that is held on appeal to have been an over-payment.
Counsel for the Executive Officer who appeared amicus curiae also pointed out that the State is obliged under s 48 of the Financial Management Act 2006 read together with the Treasurers Instruction 807 not to write off any debt unless it is irrecoverable for reasons such as the whereabouts of the debtor being unknown, the medical, financial or domestic circumstances of the debtor, it being uneconomical to recover the debt or proceedings in a court being likely to be unsuccessful.
Accordingly, it is likely that the State would institute a recovery action against T if the compensation award was reduced on appeal. In any event, even if the State did not pursue a recovery action against T, the mere fact that such an action is viable and could be instituted is likely to cause considerable further stress for T.
In her oral submissions during the hearing of the application to extend the time for filing the appeal T stated that on receipt of her award she did not expect to have to repay any part of it and that she now would have to sell her house if she had to repay the money received or a substantial part of it.
T already received the amount of her award on 2 November 2009 and an interim payment at an even earlier stage. The final payment was not made until the period of 21 days after the assessor's decision had expired. At the time that T received the final payment there was no indication that she might have to repay this money in the future for any reason. She has now been in possession of this money for a year and a half.
In Gallo v Dawson McHugh J explained that one object of fixing time under court rules was to achieve finality of judicial determinations. Mc Hugh J held that when the time for an appeal had expired, the litigation was at an end and the successful party was entitled to the benefit of the judgment in his or her favour. At that stage, the successful party had a 'vested right to retain the judgment'. This stage has clearly been reached in this case and T has a vested interest in retaining the compensation payment.

Balancing of factors

Weighing up the various factors that I have to take into account in deciding whether to grant leave to commence the appeal out of time, I have come to the conclusion that even though there is some prospect of success, it would not be just to allow B to commence the appeal at this late stage where he delayed for about 7½ months before filing the notice of appeal, with very little cogent explanation for this delay, and where T has now been in possession of her award money for a year and a half. Accordingly, B's application to file the appeal out of time is refused.

Application by State for reimbursement of compensation award by B

When the State's application for reimbursement of part of the compensation award by B is revived, B is entitled to appear at the hearing in person, by a lawyer or by a person approved by the assessor, may make written or oral submissions and may present evidence. When deciding whether to make a compensation reimbursement order and the amount to be paid under that order, the assessor must, pursuant to s 52(2) of the Act, have regard to, among other things, whether any behaviour of the victim at the time of the offence in any way precipitated or provoked the offence and also whether any behaviour of the victim contributed, directly or indirectly to the victim's injury or death.
B will at that stage have the opportunity to raise any matters that indicate particular behaviour or an attitude of T which he says contributed, directly or indirectly, to his offending and therefore her own mental injury.