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…

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 B v T

Details

AGLC: B v T [2011] WADC 98
Case: [2011] WADC 98
Decision Date: 23 JUNE 2011

CaseChat Overview and Summary

In this case, the applicant sought to appeal a decision by the State Administrative Tribunal that dismissed their application for criminal injuries compensation. The tribunal's decision was that the applicant had not satisfied the necessary criteria for compensation, including the requirement that the applicant had not wilfully brought about the injury or crime. The applicant's application was made more than two years after the tribunal's decision, and the tribunal had already paid out compensation to the applicant prior to the application for leave to appeal. The tribunal refused the application for leave to appeal on the grounds of inordinate delay and inadequate explanation for the delay. The applicant then appealed the tribunal's decision to the Supreme Court.

The legal issues that the Supreme Court was required to decide were whether the applicant had shown sufficient grounds to grant leave to appeal out of time, and whether the tribunal had correctly exercised its discretion in denying leave to appeal. The applicant argued that they had a strong prospect of success on appeal, that they had acted with due diligence, and that the delay was not inordinate. The applicant also argued that the tribunal had not adequately considered the prejudice to the respondent if the amount of compensation overpaid was recovered by the State.

The Supreme Court found that the applicant had not provided a satisfactory explanation for the delay in making the application for leave to appeal, and that the delay was inordinate. The Court also found that the applicant had not shown a sufficient prospect of success on appeal, and that the prejudice to the respondent if the amount of compensation overpaid was recovered by the State was not a relevant consideration in the exercise of the tribunal's discretion. The Court held that the tribunal had correctly exercised its discretion in denying leave to appeal. The Court dismissed the appeal.

The Supreme Court made no orders as to costs.

Orders