| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BASTOW [2011] WADC 110 CORAM : WISBEY DCJ HEARD : 11 JULY 2011 DELIVERED : 15 JULY 2011 FILE NO/S : APP 16 of 2011 MATTER : IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER OF an Appeal by
BETWEEN : PETER DEAN BASTOW Catchwords: Criminal injuries compensation - Appeal - Leave to appeal out of time - Turns on own facts Legislation: Criminal Injuries Compensation Act 2003 Result: Leave to extend time refused
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Representation: Counsel:
Appellant : In person
Amicus Curiae : Mr J F Bennett appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bastow [2011] WACIC 12
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
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1 WISBEY DCJ: The appellant suffered injury as the consequence of the commission of an alleged offence on 28April 2010 when assaulted by an unknown male. By application dated 19 May 2010 and filed at the registry of the Office of Criminal Injuries Compensation on 18 June 2010 pursuant to s 17 of the Criminal Injuries Compensation Act 2003 the appellant applied for compensation. He has at all times been unrepresented.
2 The papers disclose that the appellant sustained a head injury which exacerbated a pre-existing psychological condition, and significant dental injuries. On 28 July 2010 the Chief Assessor of Criminal Injuries Compensation authorised an interim payment of $2,250 for past dental treatment. That was the maximum permitted pursuant to s 23 of the said Act. In the event it does not appear that the appellant put it to the purpose for which it was advanced. 3 Having assessed all the relevant material supplied by the appellant, and much obtained independently by the Office of Criminal Injuries Compensation, the chief assessor determined the application and awarded the appellant the sum of $55,461.90 which included $17,500 by way of general damages; $1,020 for future psychotherapy treatment; and $33,510 for future dental treatment. In accordance with the requirements of s 48 of the said Act the amount allowed for future treatment is not payable unless and until the prospective expenses have been reasonably incurred. 4 A copy of the compensation award dated 30 November 2010 and a covering letter dated 30 November 2010 setting out the components of the award was forwarded to the appellant. The letter relevantly advised the appellant that if he was dissatisfied with the award he had a period of 21 days in which to lodge an appeal, and that if an appeal was lodged the payment of any compensation award may be held until the appeal was finalised. The appellant asserts that he did not receive that material until 8 December 2010. 5 On 21 February 2011 the appellant filed a notice of appeal asserting that he was dissatisfied with the award because 'unworkable with dentist. The chief assessor didn't include full cost of dental work for the next 10 years and did not pay to compensate my private insurance … I need to receive my award once reviewed and explained to me to be paid in full'. The notice of appeal is 62 days out of time, and the appellant needs and seeks an order for leave to appeal. (Page 4)
6 As a result of the filing of the notice of appeal the chief assessor delivered reasons for decision on 17 March 2011: Bastow [2011] WACIC 12. The reasons are comprehensive and the chief assessor relevantly stated in par 16: It was difficult for me to determine exactly what physical consequences the incident had caused as the medical information was limited and diagnosis and treatment had been limited by difficulties in engaging with the applicant and having him attend appointments. In addition, the distinction between the applicant's pre-existing chronic pain and psychiatric condition and the separate impact of the incident was very difficult to establish. The applicant's histrionic mode of communication and tendency to make extreme statements about his intentions and his circumstances created a further difficulty in determining the application. 7 Having reviewed the papers I consider that view is well founded. 8 It seems from the material on file, and from the applicant's submissions, that he is not only dissatisfied because he has not received that part of the award which relates to future treatment, but that he considers the chief assessor was biased, and that her assessment generally does not reflect the extent of his losses. 9 I will now address the application for an extension of time to appeal. 10 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 his Honour Kennedy J stated (198): In relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors. 11 It is necessary that I address each of those factors: (Page 5)
he experienced difficulty in and was unsuccessful in obtaining legal assistance, and that there were personal factors which distracted him from his obligation. The file discloses, however, that during the period referred to he was active in corresponding with various parties including the Federal member for Curtin, the shadow attorney general and the WA newspapers, protesting the injustice that he had allegedly suffered. In the result the reason for delay is not satisfactorily explained. (iii) Whether there is an arguable case. The appellant's fundamental problem with the award is that he has not received immediate payment for prospective treatment expenses, and the simple answer to that is that there is a statutory preclusion. In respect to the balance of his complaints, having carefully perused all the material, I am satisfied that there is no substance in the assertion that the chief assessor demonstrated bias in her handling of the application. To the contrary, I am satisfied that she conducted an entirely appropriate and exhaustive examination and consideration of all relevant material, and that the award is soundly based. If leave was granted it is my view that the appeal has no prospect of success. (iv) Prejudice to the respondent. It is a fundamental principle of the law that parties are entitled to finality, and a breach of procedural requirements related to that end is necessarily prejudicial, although in this case the extent of prejudice is not significant. 12 Having regard to all factors, and particularly the view that I have formed as to the prospects of success of an appeal, leave to extend time is refused.
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