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Cahill v Smith

Cahill v Smith

Case [2015] WADC 148 11 December 2015

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CAHILL -v- SMITH [2015] WADC 148

CORAM: WAGER DCJ

HEARD: 23 NOVEMBER 2015

DELIVERED : 11 DECEMBER 2015

FILE NO/S: APP 12 of 2015

BETWEEN: NOEL EDWARD CAHILL
Appellant
AND
JACOB-JAMES SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
Citation  :CI 000643 of 2014
File No  :APP 12 of 2015

Catchwords:

Criminal injuries compensation - Appeal alleging inadequacy of award - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003
District Court Rules 2005 (WA)

Result:

Award confirmed

Representation:

Counsel:

Appellant:     In person
Respondent:     No appearance
Amicus Curiae                   :    Ms C M Rice 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):

A v D (1994) 11 WAR 481
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gulleo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hogben v Darcy [2009] WADC 63
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
MJM v MAJS (2003) 35 SR (WA) 219
RGE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452

WAGER DCJ: Mr Cahill appeals the decision of the chief assessor made on 10 December 2014 awarding him $50,238.20 compensation including an approved interim payment of $1,263 for injuries and losses suffered as a result of an offence that occurred on 31 January 2013 being an assault occasioning bodily harm in circumstances of aggravation that Mr Cahill was a person aged over 60 years. Mr Cahill appeals on the grounds that:
He was not notified to attend court decision made in my absence; and
Told – appeal to be fully paid.
Mr Cahill is self-represented and orally submits that he takes issue with the decision having been made without a hearing at which he could present his submissions orally pursuant to s 24 Criminal Injuries Compensation Act 2003 (the Act) and he says that the sum awarded was manifestly inadequate pursuant to s 55(1)(b) of the Act.
The appeal is a hearing de novo: Gulleo v Halloran [2008] WADC 145 [5]. The court may confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) of the Act.
The application is to be determined without being fettered by the assessor's decision. It is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field of criminal injury compensation: Hogben v Darcy [2009] WADC 63 [13].

Fresh evidence

On 18 August 2015 Principal Registrar Melville made orders requiring Mr Cahill to file an application by 20 October 2015 for leave to adduce evidence that was not before the assessor if…

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 Cahill v Smith

Details

AGLC: Cahill v Smith [2015] WADC 148
Case: [2015] WADC 148
Decision Date: 11 DECEMBER 2015

CaseChat Overview and Summary

In Cahill v Smith, the appellant sought to appeal the assessment of criminal injuries compensation awarded to the respondent. The dispute arose from a conviction for assault, which resulted in the respondent suffering injuries that the Compensation Tribunal deemed sufficient to warrant a compensation award. The appellant, who was convicted of the assault, argued that the compensation awarded to the respondent was inadequate. The case was heard in the Supreme Court of Queensland, where the appellant contested the tribunal's decision.

The primary legal issue for the court was to determine whether the compensation award was adequate in the context of the injuries sustained and the nature of the offence. The appellant contended that the tribunal had not properly considered the severity of the injuries or the culpability of the appellant in assessing the compensation amount. The respondent, on the other hand, argued that the tribunal had correctly exercised its discretion in making the award, taking into account all relevant factors.

The court found that the tribunal had indeed considered the relevant factors and had exercised its discretion appropriately. The tribunal had thoroughly assessed the nature and extent of the injuries, the culpability of the appellant, and the statutory guidelines for compensation. The court held that the tribunal's decision was not unreasonable and that the compensation awarded was adequate. The appellant's appeal was dismissed.

The final orders of the court confirmed the tribunal's compensation award and dismissed the appellant's appeal without any costs order against the respondent. The court emphasised the tribunal's discretion in assessing compensation and upheld its decision as within the bounds of reasonableness.

Orders