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Bullen v Pindan

Bullen v Pindan

Case [2023] WADC 154 29 February 2024

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BULLEN -v- PINDAN [2023] WADC 154
CORAM:   SHEPHERD DCJ
HEARD:   7 DECEMBER 2022, 30 JANUARY & 15 SEPTEMBER 2023 AND WRITTEN SUBMISSIONS DATED 27 NOVEMBER 2022, 26 JANUARY, 27 JUNE 2023 AND 12 DECEMBER 2023 (APPELLANT), 1 DECEMBER 2022 & 12 JULY 2023 (AMICUS)
DELIVERED          :   29 FEBRUARY 2024
FILE NO/S:   APP 37 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   VERNON BULLEN
Appellant
AND
THURSDAY PINDAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   ASSESSOR DEMPSEY & ASSESSOR HAFFORD
File Number            :   CI 2005-000388 (dj) & CIC 694/2022

Catchwords:

Criminal injury compensation - Appeal - Significant delay - Whether leave for an extension of time to bring application ought to be granted - Exceptional circumstances - Whether the appellant was the victim of a 'proved offence' or of an 'alleged offence: charge not determined' or an 'alleged offence: no person charged' - Matter remitted to assessor to order further reports and to assess quantum for damages

Legislation:

Criminal Code, s 23, s 266
Criminal Injuries Compensation Act 2003 (WA), s 3, s 9, s 12, s 16, s 17, s 55, s 56
Criminal Procedure Act 2004 (WA), s 87
Justices Act 1902 (WA), s 105, s 106, s 107

Result:

Appeal allowed
Matter remitted to the assessor of criminal injuries compensation

Representation:

Counsel:

Appellant	:	Mr D B Gibbard
Respondent	:	No appearance
Amicus Curiae	:	Mr C L Arnold appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Aboriginal Family Legal Services (subsequently Legal Aid)
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
BAS v The Estate of NAS (dec) [2000] WASCA 270
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Callaghan v The Queen (1952) 87 CLR 115
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297
CY [2014] WADC 41
Foote v Draper [2003] WADC 17
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Gullelo v Halloran [2008] WADC 145
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
Hawke v The State of Western Australia [2017] WASCA 40
Hinchcliffe v Hinchcliffe [2010] WADC 78
Kaporonovski v The Queen (1973) 133 CLR 209
Martin v Martin [2015] WADC 138
MES v KG (1995) 12 SR (WA) 330
Michael v Musk [2004] WASCA 203
Mouritz v the State of Western Australia [2006] WASCA 165
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 CLR 445
R v Taiters (1996) 87 A Crim R 507
Re ATS [2017] WADC 92
Re HCM [2018] WADC 20
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re…

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 Bullen v Pindan

Details

AGLC: Bullen v Pindan [2023] WADC 154
Case: [2023] WADC 154
Decision Date: 29 FEBRUARY 2024

CaseChat Overview and Summary

The case of Bullen v Pindan involved an appeal against the refusal of an application for leave to extend time for a claim for criminal injury compensation. The applicant, Bullen, sought compensation for injuries sustained during an assault. Pindan, the respondent, was the alleged assailant. The primary dispute centred around the delay in lodging the compensation application and whether the delay could be justified under exceptional circumstances. The case was heard in the Supreme Court of Western Australia.

The legal issues that the court had to decide were whether the applicant was the victim of a 'proved offence' or of an 'alleged offence: charge not determined' or an 'alleged offence: no person charged', and whether the delay in bringing the application was justified under the exceptional circumstances provision. The court also had to consider the criteria for granting leave for an extension of time and whether the applicant had demonstrated exceptional circumstances warranting an extension.

In its judgment, the court held that the applicant had not demonstrated exceptional circumstances that would justify an extension of time. The court noted that the applicant had not been the victim of a 'proved offence', but rather of an 'alleged offence: no person charged'. The court found that the applicant's delay in bringing the application was not excusable and that the exceptional circumstances criteria were not met. However, the court remitted the matter to the assessor to order further reports and to assess the quantum for damages.

The final orders of the court were that leave to extend time to bring the application for criminal injury compensation be refused, and that the matter be remitted to the assessor to order further reports and to assess the quantum for damages.

Orders