JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BAKER -v- HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA [2015] WASCA 56 CORAM : BUSS JA HEARD : 4 DECEMBER 2014 DELIVERED : 20 MARCH 2015 FILE NO/S : CACV 39 of 2014 BETWEEN : COLIN PATRICK BAKER Appellant
AND
HIS HONOUR JUDGE STONE OF THE DISTRICT COURT OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : STONE DCJ
Citation : ROBERTSON -v- BAKER [2014] WADC 14
File No : APP 53 of 2013
Catchwords:
Statutory construction - Whether primary judge erred in construing Criminal Injuries Compensation Act 2003 (WA) - Deductions to be made from a 'compensation award' - Receipt of worker's compensation - Worker's compensation sum exceeded statutory maximum under the Criminal Injuries Compensation Act - Whether judge erred in finding that no compensation payable under Criminal Injuries Compensation Act
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 3, s 21, s 30, s 31, s 42, s 46, s 68
Workers' Compensation and Injury Management Act 1981 (WA) Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr D I Connor
Respondent : No appearance
Amicus Curiae : Mr G T W Tannin SC & Ms M Georgiou
Solicitors:
Appellant : Connor Legal
Respondent : No appearance
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378City of Kwinana v Lamont [2014] WASCA 112Curran v Champion [2012] WADC 9Devos v James [No 2] [2013] WADC 36Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471Re Korber (1992) 9 SR (WA) 32Reed v Reed [2002] WADC 11S v Neumann (1995) 14 WAR 452Introduction 1 The appellant has applied for the issue of a writ of certiorari quashing an order made by a judge of the District Court allowing an 'appeal' from a decision of an Assessor under the Criminal Injuries Compensation Act 2003 (WA) (the Act). The Assessor had awarded the appellant the statutory maximum allowed by the Act, $75,000, after he was assaulted in the course of his employment as a senior transit officer.
2 The appellant had also been awarded workers' compensation totalling approximately $257,000 under the Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act).
3 The primary judge reversed the Assessor's decision on the basis that the workers' compensation payments were to be deducted from a compensation award under the Act, and that as those payments exceeded the statutory maximum for an award under the Act, the appellant had no entitlement to compensation under the Act. In so holding, the judge followed an earlier decision of the District Court in Devos v James [No 2] [2013] WADC 36 (Devos No 2).
4 The appellant alleges that the judge misconstrued the Act and as a result misconceived the nature of the function he was required to perform, thereby making his decision amenable to certiorari: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45] - [49].
5 The respondent has, appropriately, decided to abide by the decision of the court. The Chief Executive of the Department of the Attorney General of Western Australia, with prior leave, appears as amicus curiae.
The Act
6 The long title to the Act states that it is an Act to provide for the payment of compensation to victims of offences 'in some circumstances' and for related matters.
7 Section 12(1) of the Act enables a person who suffers injury as a result of the commission of a 'proved offence' to apply for 'compensation for the injury and any loss also suffered'.
8 Section 3 defines 'injury' as relevantly bodily harm, mental and nervous shock. The word 'loss' is defined in s 6 of the Act, in the case of a victim who is injured, to include certain medical expenses and 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'.
9 Section 7 of the Act provides:
Subject to sections 42(3) and (4) and 68, this Act must be construed as being in addition to, and not in derogation of, any other law.
Part 2 10 Part 2 is headed 'Applying for compensation' and contains s 8 - s 17.
11 Section 10(1) provides:
Any entitlement of a victim to compensation under this Act ceases on the death of the victim.
Part 3 12 Part 3 contains s 18 - s 28 and is headed 'Dealing with compensation applications'.
13 Section 21 of the Act provides:
(1) If an assessor dealing with a compensation application by or on behalf of a victim who suffered injury as a consequence of the commission of an offence is of the opinion that the victim -
(a) has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of the claimed injury and any claimed loss; or (b) may be entitled under a contract of insurance to payment for all or some of that injury or loss,
the assessor may require the victim to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.
(2) If an assessor dealing with a compensation application by the personal representative of a victim who died as a consequence of the commission of an offence is of the opinion that the personal representative -
(a) has reasonable grounds for taking proceedings independently of this Act to obtain compensation or damages for all or some of any claimed loss; or (b) may be entitled under a contract of insurance to payment for all or some of that loss,
the assessor may require the representative to take proceedings to obtain the compensation, damages or payment and may defer the application pending the determination of those proceedings.
Part 4 14 Part 4 contains s 29 - s 45 and is headed 'Matters governing compensation awards'.
15 Section 3 defines 'compensation award' (unless a contrary intention appears) as follows:
Compensation award meansan award of compensation made under Part 4.
16 Section 30 of the Act provides:
(1) On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered. (2) A compensation award made under subsection (1) may include directions that all or a specified part of the compensation be held on trust for the victim by the person, and on any terms, specified in the award.
(3) On a compensation application made by the personal representative of a victim who dies as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the loss suffered by the one or more close relatives of the deceased.
(4) A compensation award made under subsection (3) may -
(a) apportion the compensation between 2 or more close relatives; (b) include directions that all or a specified part of the compensation be held on trust for a close relative by the person, and on any terms, specified in the award.
(5) An assessor may at any time for good reason amend or cancel a direction made under subsection (2) or (4).
17 Section 31 of the Act provides relevantly:
(1) Subject to sections 32, 33 and 34, the maximum amount that may be awarded in aggregate under sections 30(1) and (3) in favour of one person for a single offence committed on a date in a period set out in the Table to this subsection is set out in the Table opposite that period.
Table
| | Period
(all dates inclusive) | |
| | On or after the day on
which this Act comes into
operation | |
(2) Subject to sections 32, 33 and 34, the maximum amount that may be awarded in aggregate on a compensation application made by the personal representative of a victim who dies as a consequence of the commission of an offence committed in a period set out in the Table to subsection (1) is set out in that Table opposite the period.
18 Section 32, s 33 and s 34 deal with, respectively, the position with respect to multiple offenders, multiple related offences and multiple unrelated offences. 19 Sections 36 - 40 set out a range of circumstances in which an assessor must not make a compensation award in favour of an applicant.
20 Section 42 of the Act provides:
(1) In this section -
registered organisation has the meaning given by the National Health Act 1953 of the Commonwealth.
(2) An assessor must deduct from a compensation award in relation to any loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative would, but for this Act, also be entitled to receive under a contract of insurance with a registered organisation in respect of any of that loss. (3) An assessor must deduct from a compensation award in relation to any injury or loss suffered by a victim, or a close relative of a deceased victim, any amount that the victim or close relative has received by way of compensation or damages, or under a contract of insurance, for the injury or loss.
(4) If an assessor is satisfied that a victim, or a close relative of a deceased victim, who has suffered injury or loss will receive an amount by way of compensation or damages, or under a contract of insurance, for the injury or loss, the assessor may deduct the amount from a compensation award in relation to that injury or loss.
(5) Despite subsections (3) and (4), in the case of an application by a personal representative of a deceased victim, the amounts described in the Fatal Accidents Act 1959 section 5(2)(b) and (c) must not be deducted. (original emphasis)
Part 5 21 Part 5 contains s 46 - s 48 and is headed 'Paying compensation awarded'.
22 Section 46 of the Act provides:
The Consolidated Account is charged with the payment of any compensation awarded under this Act and is appropriated accordingly.
Part 6 23 Part 6 of the Act provides for the Director General to seek to recover the amount payable under the award from the offender.
Part 9
24 Section 68, in pt 9 of the Act, provides:
(1) If -
(a) a compensation award is made in respect of any injury or loss suffered by a victim or a close relative of a deceased victim; and (b) the victim or close relative also receives or recovers in respect of that injury or loss an amount under a contract of insurance or by way of damages or compensation, otherwise than under this Act; and
(c) that amount is not deducted under section 42(3) or (4),
an amount equal to the lesser of -
(d) the amount awarded to the victim or close relative under the compensation award; or
(e) the amount referred to in paragraph (b),
is a debt due to the State by the victim or close relative or by any person who holds the amount referred to in paragraph (b) on behalf of the victim or close relative.
(2) In this section -
compensation award includes an award for payment of compensation made under the Criminal Injuries Compensation Act 1985.
25 The maximum amount payable under the Act is merely a jurisdictional limit, and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.Appellant's grounds of appeal and submissions
26 The essential contentions made by the appellant in the grounds of appeal are contained in grounds 2 and 3, as follows:
2. The jurisdictional error is constituted by the judge's mistaken interpretation of part 4 of the [Act] and in particular s 31(1) and s 42(3) thereof … 3. The erroneous interpretation was applying an incorrect order of operations to s 31(1) and s 42(3) by making deductions to the appellant's compensation pursuant to s 42(3) after imposing the jurisdictional amount required by s 31(1). Reversing the order of application of those provisions would have resulted in a compensation award of $75,000 to the appellant. (original emphasis)
27 In oral submissions, counsel for the appellant submitted, in effect, that the key to his argument was that the term 'compensation award' in s 42(3) does not have its defined meaning, and that, read in its context in s 42(3), it signifies an award 'notionally', or an 'assessment or award assessment', or a 'notional award' (ts 10 - 14, 17). 28 Although not entirely clear, the appellant appeared to submit, in effect, that the Act, on its proper construction, contemplates (relevantly for present purposes), the following steps:
(a) the assessor dealing with an application for compensation is to assess an amount under s 30, and without regard to s 31, which would provide a just amount of compensation to the applicant under the Act; (b) the amount so determined is a 'notional' compensation award for the purposes of s 42(3), and is the sum pursuant to which any deduction under s 42(3) is then made;
(c) the deduction required under s 42(3) operates differentially upon different elements of the notional compensation award so that, for example, a worker's compensation payment which is effectively attributable to past economic loss would be deducted from that particular element of the notional compensation award, but other elements, such as the general damages component of the notional award, would remain unaffected; and
(d) after the notional compensation award is adjusted by the appropriate deduction under s 42(3), it is necessary to return to s 30 and s 31, to determine the (real) 'compensation award' under the Act. Thus, if the notional compensation award, as adjusted under s 42(3), is in an amount in excess of the maximum sum of $75,000, then the 'compensation award' payable to the applicant under the Act is limited to, and is, $75,000.
29 The appellant submits that this construction of the Act would avoid 'anomalous' results and is consistent with the Act operating as beneficial legislation. 30 The appellant submits that the judge thereby erred in that his Honour failed to apply the Act in the correct way and instead found, in effect, that (relevantly for present purposes):
(a) the assessor is to determine the 'compensation award' for the purposes of s 30 of the Act, including having regard to the maximum amount capable of being awarded under s 31; (b) the amount of the 'compensation award' determined under s 30 read with s 31 can never exceed $75,000;
(c) pursuant to s 42(3) of the Act, 'any' amount received by way of compensation or damages or under a contract of insurance is to be deducted from the amount of the 'compensation award' determined under s 30 read with s 31; and
(d) accordingly, if the 'compensation award' is the maximum sum ($75,000), and an amount of compensation or damages or a payment under a contract of insurance which the applicant receives exceeds that maximum sum, then s 42(3) requires that the amount received be deducted from the compensation award of $75,000, leaving no amount of compensation payable under the Act.
31 The appellant submits that the judge's interpretation is not consistent with s 31(1) of the Act, which requires an assessor to 'aggregate' any awards for the injury and loss awarded under s 30(1) and s 30(3). It is submitted that there is nothing to aggregate if s 31(1) is applied to fully determined compensation awards. 32 The 'anomalous' results which, the appellant alleged, would flow from the judge's construction of the Act, included the following example provided by the appellant (written submissions, par 26):
[T]wo people suffer similar injuries when their car is struck by a stone dropped from an overpass by an offender: Victim A: is privately insured and claims for treatment costs amounting to $25,000 on her private health insurer. In addition, she receives $50,000 income protection payments for the year off work following the injury. Her general damages were assessed at $50,000.
Victim B: is uninsured, and is treated as a public patient. She suffers no economic loss and her general damages claim is also assessed at $50,000.
33 In relation to this example, the appellant submitted (written submissions par 26):
If s 31(1) is applied prior to s 42, Victim A would receive nothing and Victim B $50,000. The reverse order of application of the sections would result in the same award being given to each victim which it [is] submitted is the reasonable outcome, given the assumption they suffered similar injuries.
34 Much of the appellant's submissions savoured of the proposition that the object or purpose of the Act was to ensure that victims of crime were, generally speaking, entitled to compensation out of the public purse. The appellant submitted that the Act operated on the basis that the State stood as an insurer of the perpetrator of the crime, up to a maximum amount of $75,000 (ts 7). Counsel also submitted in effect that the only purpose of s 42(3) was to exclude 'double dipping' and that providing, and to the extent, that the alternative source of compensation or insurance payment did not cover the same heads of damage as were covered by the notional compensation award, then the Act was intended to apply to compensate the victim up to the maximum sum. 35 Counsel for the appellant also relied on certain extrinsic material to support his construction of the Act. In the second reading speech (Western Australia, Second Reading Speech, Legislative Council, 2 December 2003, 13872), the Minister said of cl 42:
This clause provides that an assessor must deduct from an award any amount that a victim would be entitled to receive from health insurance for loss, but for this Bill, or has received or will receive under a contract of insurance for the injury or loss. The clause seeks to ensure any health and insurance entitlements are not denied due to the potential for criminal injuries compensation, and it prevents double dipping. It combines section 24A and 26 of the Criminal Injuries Compensation Act 1985. The amendments to this clause seek to clarify that the compensation, which is to be taken into account, includes all types of compensation and is not limited to only compensation arising under a contract of insurance.