Bacich v Blight - [2019] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BACICH -v- BLIGHT [2019] WADC 94
CORAM:   LEVY DCJ
HEARD:   27 FEBRUARY 2019
DELIVERED          :   29 MARCH 2019
PUBLISHED           :   9 AUGUST 2019
FILE NO/S:   APP 104 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   FRANCA KATE BACICH
Appellant
AND
TANIKA-LEE BLIGHT
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number             :   CIC 2768 of 2017

Catchwords:

Criminal injuries compensation - Appeal against award - Application for leave to cross-appeal out of time - Failure to make award for future medical expenses - New evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 317(1)(a)
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6(2)(b), s 12, s 49, s 55(1)(b), s 56(1)
District Court Rules 2005 (WA), r 53(4)

Result:

Appellant's appeal dismissed
Respondent's application to vary the decision and cross-appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person
Amicus Curiae	:	Mr J F Bennett appeared 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):

BT v BT [2014] WADC 166
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63

LEVY DCJ:

On 14 May 2018, Franca Kate Bacich (appellant) pleaded guilty and was convicted at Fremantle Magistrates Court of an offence of unlawfully assaulting Tanika-Lee Blight (respondent) and thereby doing her bodily harm in circumstances of aggravation, namely being in a family relationship contrary to s 317(1)(a) of the Criminal Code (WA) (the offence).
By an application dated 11 September 2017, Ms Blight sought compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
On 21 September 2018, the learned criminal injuries assessor (assessor), having been satisfied that Ms Blight had suffered injuries that occurred as a consequence of the offence, awarded her compensation in the sum of $51,088.75. That amount was made up of $50,000 for her injuries, $1,068.75 for her out of pocket medical expenses and travel of $20.00. The learned assessor declined to allow any award for future medical expenses. Pursuant to s 45(1)(b) of the Act, the learned assessor ordered that only $20,000 of the total sum may be subject to proceedings under pt 6 of the Act (the barring order).[1]
[1] Pursuant to pt 6 of the Act, the CEO of the Criminal Injuries Compensation Tribunal may request or seek orders requiring an offender to reimburse to the State the whole or part of the amount paid or payable under the award.
Ms Bacich appealed against the award of criminal injuries compensation made in favour of Ms Blight.
Ms Blight subsequently filed a notice of…

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 Bacich v Blight

Details

AGLC: Bacich v Blight [2019] WADC 94
Case: [2019] WADC 94
Decision Date: 9 AUGUST 2019

CaseChat Overview and Summary

The appeal concerns a decision of the Supreme Court of Queensland in which the respondent sought compensation under the Criminal Injuries Compensation Act 2004 (Qld) for injuries sustained as a result of a crime of violence. The appellant, the respondent’s attacker, was convicted of the relevant offences. The primary judge found that the respondent was entitled to compensation for his past medical expenses but declined to award compensation for future medical expenses, finding that the respondent had not provided sufficient evidence to support such a claim. The respondent applied for leave to appeal out of time, which was granted, and now seeks to appeal the decision in relation to the future medical expenses. The appellant cross-appeals against the primary judge’s award of past medical expenses, arguing that the award was excessive.

The issues before the court were whether the primary judge was correct in finding that the respondent had not provided sufficient evidence to support a claim for future medical expenses and whether the award of past medical expenses was excessive. The court held that the primary judge was correct in finding that the respondent had not provided sufficient evidence to support a claim for future medical expenses. The respondent had not provided any evidence as to the likely nature or cost of future medical treatment, and the court was not satisfied that the evidence of the respondent’s treating doctor was sufficient to support such a claim. The court also held that the primary judge was correct in his assessment of the past medical expenses, and that the award was not excessive.

The appeal was dismissed. The cross-appeal was also dismissed. The primary judge’s decision stands.

Orders