CD v State of Victoria - [2020] VSC 892

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S ECI 2019 05428

BETWEEN:

CD[1]	Plaintiff
v
STATE OF VICTORIA	Defendant

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, the judgment has been anonymised by the adoption of a pseudonym of the name of the applicant.

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2020; submissions filed 6 April 2020 and 21 April 2020
DATE OF RULING:	23 June 2020
CASE MAY BE CITED AS:	CD v State of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 892

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PRACTICE AND PROCEDURE — Approval of a personal injuries claim by a former prisoner of the State — Application of Part 9C of the Corrections Act 1986 – Whether Part 9C applies to claims arising from events that occurred prior to the enactment of Part 9C – Whether Part 9C applies to claims for prisoners incarcerated before Part 9C came into effect — Whether Part 9C applies to claims settled after Part 9C came into effect – Whether the award of damages in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong is within the meaning of Part 9C —Application approved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Longano, solicitor for the plaintiff	Angela Sdrinis Legal
For the Defendant	Mr G Foley, solicitor for the defendant	Victorian Government Solicitor

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 2

Plaintiff’s submissions..................................................................................................................... 4

Defendant’s submissions................................................................................................................. 5

Analyis............................................................................................... Error! Bookmark not defined.

Does Part 9C of the Act apply to claims made by former prisoners, such as the plaintiff, whose period of imprisonment was served prior to the relevant amendment coming into effect on 24 September 2008 and whose claims settled after the amendment came into effect? 7
Is the ‘award of damages’ on or after 24 September 2008?..................................................... 8
Is the ‘award of damages’ in respect of a claim made by or on behalf of the ‘prisoner’ against the ‘State’ for a ‘civil wrong’ within the meaning of Part 9C?............................................. 9
Does the ‘award of damages’ specify the amounts, if any, awarded or agreed in respect of (i) existing and future medical costs; and (ii) legal costs. If not, should the Court specify those costs?.................................................................................................................................... 11
Are the amounts specified for medical and legal costs appropriate portions of the total amount payable?.............................................................................................................................. 11
Should the compromise be approved?.................................................................................... 13

HER HONOUR:

By summons filed on 4 February 2020, the plaintiff seeks approval of a compromise pursuant to Part 9C of the Corrections Act 1986 (‘the Act’). On 17 June 2020, orders were made approving the compromise. This ruling contains the reasons.

Summary

This ruling considers the following question.

Does Part 9C of the Act apply to claims made by former prisoners, such as the plaintiff, whose period of imprisonment was served prior to the relevant amendment coming into effect on 24 September 2008 and whose claims settled after the…

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.

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Details

Case: [2020] VSC 892
Decision Date: 23 June 2020

CaseChat Overview and Summary

CD, a former prisoner of the State of Victoria, sought approval of a personal injuries claim against the State under Part 9C of the Corrections Act 1986. The dispute centred on whether the statutory requirement for the approval of claims by former prisoners applied to injuries that occurred before the enactment of Part 9C, and whether it applied to claims settled after the enactment but arising from events prior to its coming into effect. The case was heard and determined in the County Court of Victoria.

The central legal issues were whether Part 9C of the Corrections Act applied to CD's claim, which arose from events occurring before the enactment of Part 9C, and whether it applied to claims settled after the enactment but pertaining to pre-enactment events. Additionally, the court had to determine whether the award of damages for a civil wrong against the State was within the scope of Part 9C, and whether CD's claim fell under the statutory definition of a claim for damages.

The court held that Part 9C applied to CD's claim despite the events predating the enactment of the statute. The court reasoned that the legislative intent behind Part 9C was to provide a framework for claims by former prisoners, regardless of when the injuries occurred, provided they were settled after the statute's enactment. Furthermore, the court found that the award of damages for a civil wrong against the State was within the meaning of Part 9C, and thus CD's claim was subject to the approval requirements of the statute. Consequently, the court approved CD's application for claim approval.

In conclusion, the court granted approval for CD's personal injuries claim against the State, determining that Part 9C of the Corrections Act applied to claims arising from events before its enactment, provided they were settled after the statute came into effect. The court's decision clarified the scope of Part 9C and its application to claims made by former prisoners.

Orders