CY
[2014] WADC 41
•2 APRIL 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CY [2014] WADC 41
CORAM: SLEIGHT DCJ
HEARD: 13 NOVEMBER 2013
DELIVERED : 2 APRIL 2014
FILE NO/S: APP 46 of 2013
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN: CY
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :CHIEF ASSESSOR OF CRIMINAL INJURIES
File No :CI 1254 of 2012
Catchwords:
Criminal injuries compensation award - Alleged offences - Application made on behalf of infant son by mother - Appeal lodged in name of infant but signed by mother - Order for heading to be amended to show mother as next friend - Appeal heard without next friend being represented by a solicitor - Whether hearing to stand - New evidence on hearing of appeal - Assessment
Legislation:
Criminal Injuries Compensation Acts 17, s 33, s 41
Result:
Appeal allowed
Representation:
Counsel:
Appellant: In person
Amicus Curiae : Ms C Brandster 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):
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Clarey v Permanent Trustee Co Ltd [2005] VSCA 128
DNA v Britten (1995) 14 SR (WA) 325
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gore-Booth v Gore-Booth [1953] 2 All ER 1000
Jones v Macey [2000] WADC 101
Murphy v Doman (2003) 58 NSWLR 51
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335
R v Forsythe (1972) 2 NSWLR 951
S v Neumann (1995) 14 WAR 452
SLEIGHT DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act). I will refer to the relevant parties by an initial.
On 2 April 2011, Ms Y was viciously attacked by a Mr A with a carving fork, in what could be described as an attempted murder. Ms Y was stabbed 13 times. Ms Y's son, who I will refer to as C, witnessed this attack and bravely tried to intervene to rescue his mother. On two occasions he was flung aside by Mr A. Eventually Mr A ceased his attack and left. The next day Mr A committed suicide.
C was born on 27 March 1996 and therefore turned 18 on 27 March 2014. An application for compensation under the Act was made by C as a juvenile but signed by his mother Ms Y. Section 11 of the Act provides that an application can be made in the case of a person under the age of 18 on his or her behalf by a parent.
On 16 May 2013 the chief assessor awarded $5,000.
On 7 June 2013 an Appeal Notice was filed by C signed by his mother. The appeal was heard by me on 13 November 2013 and the decision reserved.
The sole ground of appeal contained in the Appeal Notice is that documentary evidence is with a lawyer in Broome and was not seen by the chief assessor. However, it became clear during the hearing of the appeal that this ground was abandoned and the ground of appeal that C wished to pursue was that the amount awarded was inadequate. I proceeded with the hearing of the appeal on this basis.
Extension of time to appeal
An appeal against an order of an assessor under the Act must be commenced within 21 days after the date of the order. If it is just to do so, the court may grant leave to commence an appeal after the expiry of that period: s 55(3) and s 55(4) of the Act. In this case the last day for commencing the appeal was 6 June 2013 and an Appeal Notice was filed on 7 June 2013. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. Given the fact that the appeal was lodged only a day late and taking into account the fact that C was unrepresented, I am satisfied that it would be just to allow the appeal to be commenced after the 21day appeal period.
Unrepresented next friend
Ms Y appeared on behalf of C on the hearing of this appeal on 13 November 2013 and without legal representation. The issue of lack of legal representation was not raised and the hearing of the appeal proceeded. Subsequent to the hearing of the appeal I invited written submissions on the issue of whether C required to be represented by a solicitor under O 70 of the Rules of the Supreme Court 1971 (RSC). The issue arises because on 9 July 2013 a directions order was made in this court that an Appeal Notice 'be amended to include [Ms Y] as the Next Friend of the Appellant in the heading of the Notice of Appeal'. Notwithstanding the order of 9 July 2013, documents subsequently filed in these proceedings contained no amendment to the heading of the appeal proceedings by adding Ms Y as the next friend.
Order 70(2) relevantly provides as follows:
(1)Subject to subrule (4) a person under disability may not bring, or make a claim in, any proceedings except by his next friend …except by his guardian ad litem.
(2)Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend -
(3)A next friend ---a person under disability must act by a solicitor.
(4)A judge may by order permit an infant to … take part in any proceedings to which the order relates, without a next friend … on being satisfied that in the circumstances of the case it is proper to do so.
The question that arises is whether an appeal can be lodged and heard under the Act on behalf of an infant without a next friend being represented by a solicitor. To answer this question a close examination has to be made of the relevant provisions. The issue is an important issue because a judgment entered for or against a person under a disability who has not been properly heard and for whom no next friend has been appointed is irregular and would usually be set aside: Gore-Booth v GoreBooth [1953] 2 All ER 1000; Murphy v Doman (2003) 58 NSWLR 51, 54,59,61. However, where it is demonstrated that the person under a disability has not suffered prejudice by the absence of a next friend, the decision need not necessarily be set aside: Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 [61].
Section 16 of the Act contains provisions which give an entitlement to a person to claim criminal injuries compensation for an alleged offence (which means a crime, misdemeanour or simple offence for which no person has been convicted). The application in this matter for compensation is pursuant to s 17.
Section 17(2) provides as follows:
A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for the injury and any loss also suffered.
Section 11(2) provides as follows:
If a person entitled to make a compensation application is –
(a)under 18 years of age – the application may be may on his or her behalf by a parent, or a person acting in place of the parent, of the person.
An applicant is defined in s 3 of the Act as meaning 'a person who makes a compensation application'.
The right of appeal under the Act is contained in s 55 which provides that an 'interested person' may appeal to the District Court against an assessor's decision as to the amount of the compensation award. The term an 'interested person' is defined to include 'an applicant'.
Section 55(5) of the Act provides that the appeal must be conducted in accordance with the rules of court made by the District Court.
Section 87 of the District Court of Western Australia Act 1969 provides as follows:
(1)Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court.
(2)A reference in any other provision of this Act to rules of court shall, unless the context otherwise requires, be read as including a reference to the rules of the Supreme Court as applied by this section.
Submissions filed on 2 December 2013 by the amicus curiae contend that the effect of these provisions is that Ms Y is the applicant in the application for criminal injuries compensation and that she has a right of appeal as an interested party. Accordingly, it is submitted Ms Y need not act in a capacity as a next friend of C as she has locus standi in her own right under the Act. No submissions were filed by Ms Y on behalf of C in relation to this issue.
The issue essentially raises a question of statutory interpretation. The meaning of the provisions of a statute must be determined by reference to the language of the instrument as a whole, taking into account its context, general purpose and policy: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335 [69]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which is the subordinate provision, and which must give way to the other: Project Blue Sky[70] (McHugh, Gummow, Kirby & Hayne JJ).
Having considered the wording of the relevant provisions of the Act, I conclude that the applicant before the assessor was C, although the application was made on his behalf by his mother, Ms Y. This is consistent with the form lodged for criminal injuries compensation by Ms Y on behalf of her son C. The form describes the applicant as C and requires such information on the application form as his date of birth and his occupation. The form has a separate section of particulars of the person who is acting on behalf of the infant.
It follows that having concluded that C is the applicant (albeit that the application was lodged by Ms Y on his behalf), that the right of appeal vests in C and not Ms Y in her own right. As C is an infant he must, as recognised by the order made on 9 July 2013, conduct the proceedings through a next friend who, in turn, must be represented by a solicitor. There is nothing incongruous between a requirement that on appeal the infant applicant be represented by a next friend (and represented by a solicitor) and the procedure before the assessor under the Act. This is because the proceedings before the assessor are clearly designed to be less formal and less expensive than the appeal procedure before the District Court. Pursuant to the provisions of the Act an assessor hearing an application must determine compensation applications expeditiously and informally having regard to the requirements of justice and the Act (s 18(1) of the Act). Further in deciding a compensation application an assessor is not bound by rules of practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit (s 18(2) of the Act). The assessor is not required to have a hearing (s 24(1) of the Act). An infant applicant is not required to be represented by a solicitor. The assessor is not required to give reasons except where an interested party requests reasons. On the other hand, although a judge of the District Court on hearing an appeal has the same general powers as an assessor (s 56(2)(a) of the Act), the appeal is to be conducted in accordance with the rules of the District Court (s 55(5) of the Act). The rules of the District Court make no provision for any special informality in relation to appeals under the Act. Further, the practice of the court is that the appeals are conducted in accordance with the usual procedures of hearings of appeals in the District Court which involves elements of formality not observed by the process before the assessor. For example, there is a right for a hearing to be conducted and the judge is required to give reasons for the decision. It is also significant that, whereas before the assessor no order can be made as to costs, before the District Court on appeal the court has power to award costs against the unsuccessful party (albeit under the Criminal Injuries Compensation Regulations 2003 the costs are limited to $180 per day of hearing). Further, it seems to me that the greater formality on appeals is justified to ensure that justice is done on the appeal as the decision of the District Court is final. Because there is no further right of appeal beyond the District Court it is generally important that persons under a disability are represented by an independent next friend represented by a solicitor to ensure that the person under a disability adequately presents this final appeal.
Discretionary powers
Order 70 r 2(4) RSC gives a judge the discretion to dispense with the requirement that an infant act through a next friend. This discretion is to be considered in the context of O 2 r 1 RSC which provides relevantly as follows:
[A]t any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings or any document, a judgement or order therein.
At the hearing of the appeal I gave Ms Y and C an opportunity to adjourn the hearing of an appeal but after discussing the matter between themselves they elected to proceed. C, although technically an infant, was 17 years of age at the date of the hearing of the appeal and I believe his decision was as well-informed as any 18-year-olds'. Of course, an 18year-old would be able to participate in the proceedings without a next friend.
In the circumstances I propose to make an order dispensing with the requirement that C be represented by a next friend. Without deciding the point, I will work on the assumption that this order cannot be made retrospective. However under O 2 r 1 RSC I will treat the noncompliance with O 70 r 2(3) as an irregularity and as such shall not nullify the hearing of the appeal which has taken place. Accordingly, I propose to proceed to make a decision on the appeal on its merits.
Relevant principles as to method of assessment
Before dealing with the merits of the appeal some general principles need to be taken into account. The starting point is that compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence (s 17 of the Act). An alleged offence means a crime, misdemeanour or simple offence for which no person has been charged. Pursuant to s 17 the claimant must establish three things:
1.An alleged offence has been committed;
2.That the claimant has suffered the injury and loss claimed; and
3The injury and loss were a consequence of the commission of the alleged offence.
The onus of proof in criminal injuries compensation cases that the alleged offence has occurred and that the claimant has suffered injuries and loss as a consequence of the commission of the alleged offence is on the claimant and is to be the civil standard of on the balance of probabilities: BAS v The Estate of NAS(Dec) [2000] WASCA 270 [11].
Bodily harm and mental and nervous shock are included in the definition of 'injury' [s 23]. The notion of 'mental and nervous shock' is borrowed from the law of torts to refer to mental or emotional harm as opposed to physical injury or bodily harm. It must be more than a mere emotional reaction. Something of a more enduring character is required which may, in both the legal sense and in common parlance, be described as an injury (see S v Neumann (1995) 14 WAR 452, 461 (Murray J)).
A compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence causing injury to another person cannot be made unless the assessor is satisfied that a person other than the victim suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed (s 35(2) of the Act).
In assessing the amount of compensation which should be awarded the court must have regard solely to the injury actually suffered by the claimant in consequence of the commission of the offence and not the seriousness of the offence. The amount is not to be fixed as punishment of the offender or expression of sympathy for the injury but as compensation for the injury or loss: DNA v Britten (1995) 14 SR (WA) 325; R v Forsythe (1972) 2 NSWLR 951, 953; Jones v Macey [2000] WADC 101. However this does not mean that the actual facts of the offence are of no consequence. It is from the facts of the offence that one can make judgments about the likelihood of the claimant suffering injury and the extent of those injuries and the extent to which disabilities are likely to persist: DNA v Britten (327).
The maximum compensation payable under the Act, which in this case is $75,000, is merely a jurisdictional limit and is not reserved for the worst cases (see S v Neumann (463) (Murray J)). The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary principles for assessment of damages in the law of torts, subject to the limitations imposed by the definition of 'injury' in the Act and subject also to the jurisdictional limit imposed by the Act.
Material before the chief assessor
There are only two relevant medical reports produced before the chief assessor in support of the application. The first is a letter from Dr Kay H Johnston (paediatrician) to Mr Neal Beck dated 21 June 2011. This letter states as follows:
As you are no doubt aware there have been horrific incidents in [C]'s life with him observing a brutal attack on his mother by her ex-boyfriend who subsequently suicided. He has been receiving counselling 3 times a week though naturally is still greatly affected by this. He finds he can manage to stay at school while the medication lasts but often this wears off by midday and he has to return home to check on his mother.
[C] has continued on Dexamphetamine 15 mgs in the morning and 20 mgs at lunch.
On examination today [C] was able to talk about the events and the effect it had upon him. Whilst he is receiving significant benefit from his counsellor I think it would be helpful for him to see a psychiatrist (his mother was against any referral to a government agency such as CAMHS). She will consider this further.
On examination height 172.5 cm shows an increase of 3 cm, weight 46.8 kg is stable. BP 110/60.
To try and overcome some of the anxiety I have commenced [C] on Strattera increasing to a dose of 60 mgs a day and for the moment have continued him on a reduced dose of Dexamphetamine 15 mgs in the morning. I would like to review his progress in 3 months time.
There is a second letter which was lodged with the chief assessor in support of the application for compensation. The letter is from Dr Kay H Johnston to Dr Ian Barrett of the Broome Medical Clinic dated 6 September 2012. This letter states as follows
I saw [C] alone as his mother was unable to accompany him today. He tells me that he left school earlier in the year to commence an apprenticeship in mechanics through TAFE.
He continues to benefit from medication and is currently on Dexamphetamine 25 mgs in the morning and 5 – 10 mgs in the afternoon.
I had previously tried adding Strattera to try and overcome problems of anxiety but he was unable to tolerate this because of persistent nausea.
On discussion today [C] is obviously having difficulty coping with his mother's situation and general lifestyle. However he does display a maturity and insight into the situation and hopefully things will improve in the coming years.
On examination height 174.8 cm and weight 51.5 kgs show pleasing increases. BP 120/65.
I have continued [C] on his current dose of medication and would like to review his progress in six months time.
Further evidence given on the appeal
Under s 56 (1) of the Act the District Court must decide an appeal solely on the evidence and information in the possession of the assessor or may receive further evidence and information. On the hearing of the appeal I allowed C to give oral evidence and also tender a number of documents, including his school reports for Semester 2 in 2011 and Semester 1 in 2012.
In his oral evidence C stated he had not suffered any physical injuries that he was aware of such as bruising, soreness or abrasions.
C claimed that he had suffered the following mental consequences as result of the incident on 2 April 2011:
(a)he described having a 'twisted' attitude to other people in the sense that he was less trusting. He said that he had trusted Mr A and did not expect him to attack his mother with a weapon.
(b)he said his sleep was disturbed. This lasted for about five months after the incident. His mother has observed to him that he continues to call out in his sleep.
(c)he stated that he had experienced flashbacks of the incident about once every three days but these ceased in or about June 2012. However, he said he still thinks about the incident.
(d)he stated he believes that the trauma of the incident has aggravated a pre-existing diagnosed Attention Deficit Disorder in that he has more random thoughts and found it difficult to concentrate.
(e)he said he feared for his mother's safety and this affected his attendance at school in 2011 and 2012. His Semester 2 school report of 2011, tendered into evidence, states that C had the equivalent of 44 half days absent from school. The Semester 1 report 2012 states C had the equivalent of 148 half days absent from school. C stated in his evidence that he believed 50% of this absenteeism was because he was not coping at school as he had difficulty focusing. C said he worried about his mother who was at home alone and he would frequently go home in the afternoon rather than attend school to make sure that his mother was safe.
(f)he stated he attended a school counsellor about the incident on 2 April 2011 and the problems he was experiencing. He said the counselling was twice per week and he attended two to three weeks. He also confirmed that a recommendation had been made by Dr Kay Johnston that he make an appointment to see a psychiatrist. His mother made contact with a psychiatrist who was treating her, Dr Manders, but he declined to see C.
(g)he acknowledged there had been some positive responses from the incident in that he believed it made him a more resilient person.
(h)he stated that he has few friends. At the present time he says that his only friend is aged 30. He says he has trouble with socialising.
(i)he stated that he left school halfway through Year 11. It was about this time his mother returned with him to Perth from Broome. He said he intends seeking an apprenticeship and going to TAFE but has not taken any steps towards this as yet as he is waiting on the outcome of the criminal injuries compensation application and appeal. He says that he remains concerned about leaving the house because he fears for the safety of his mother.
Conclusions
(a) Has an alleged offence been committed?
The application for criminal injuries compensation filed by C was grounded on an alleged offence of attempted murder.
Evidence of the alleged offence is contained in written statements from Ms Y and her son C on the day of the alleged offence. A convenient summary is contained in a police incident report which states as follows:
The accused [Mr A] attended the house of his ex-partner and victim [Ms Y]. At the time [Ms Y] wasn't home.
The accused gained access by climbing through an open rear computer room window and walked into the lounge room area where [Ms Y's] son [C] was seated playing his Xbox.
[C] knows that the accused can get violent and also knew that he wasn't suppose [sic] to be at the house. As a result [C] had a conversation with the accused [Mr A] for about 20 minutes before the accused [Mr A] stated that he had to leave to catch a bus.
The accused [Mr A] left the lounge room area and made it appear to [C] that he had left the house. Approximately 10 minutes later the victim [Ms Y] arrived back home with a friend only known as [M].
Once arriving home, [Ms Y] was confronted by the accused who was still at the house. An altercation took place which caused [M] to leave the house via a rear door whilst the accused continued to argue with the victim [Ms Y].
The accused [Mr A] pushed the victim [Ms Y] onto the floor of the kitchen and proceeded to yell at her. Whilst on the floor the accused [Mr A] produced a carving fork and began to stab the victim [Ms Y] numerous times to her chest and arm areas.
The victim's son [C] made numerous attempts to defend his mother by trying to restrain the accused [Mr A]. On each attempt he was pushed to the ground and also forced back into a glass sliding door.
The victim [Ms Y] received numerous stab wounds to her chest and arms before the accused was disarmed by [C]. Once disarmed the accused [Mr A] decamped the area and it appears that he took the carving fork with him.
Police were contacted and attended the address. Also in attendance was the SJA [St John's Ambulance] due to the injuries sustained by the victim [Ms Y]. A search of the surrounding area and house failed to locate the accused [Mr A] and the weapon used.
Ms Y in her written statement said that Mr A, just before he started stabbing her, said 'You are going to fucking die cunt'.
The police incident report indicates that the police contemplated charging Mr A with the following offences:
(a)Burglary contrary to s 401(2) of the Criminal Code;
(b)Breach of a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997;
(c)Wounding contrary to s 301 of the Criminal Code;
(d)Acts and omissions causing bodily harm, s 304(1)(a) of the Criminal Code.
I am satisfied on the evidence before me that an alleged offence was committed in the circumstances described above. In fact multiple offences were committed which included the offences listed in the police incident report and also the offence of attempted murder of Ms Y and an assault on C. Where multiple offences are committed at the one time the amount of compensation awarded must be treated as one offence (s 33 of the Act).
(b) Award
I am satisfied that C has suffered a mental and nervous shock injury as a consequence of an alleged offence. This mental injury arose as result of the injuries suffered by C's mother Ms Y in his presence. At the time he lived with his mother. The shock was heightened by C's participation in the incident bravely trying to rescue his mother who was facing a lifethreatening attack with a knife.
In addition to the reports before the assessor, I have had the advantage of seeing and hearing C give evidence. I was most impressed by his evidence. I conclude he is a quiet, sensitive young man, who has a close and caring relationship with his mother. I am satisfied that as a result of the incident he experienced nightmares and flashbacks for a period of time. I am further satisfied that the trauma has caused significant disruption to his schooling and had an impact upon his trust in others. The long term consequences of the disruption to his schooling is difficult to assess. I conclude it is unlikely to cause any loss of earning capacity in the future as the loss of schooling can be remedied by C undertaking the study is he proposes to take at TAFE and the apprenticeship he proposes to seek. There may be a period of delay in him entering the workforce as result of the lost time at school.
There is no evidence before me which enables me to predict whether there will be a need for further medical treatment or the likely expense of any such treatment.
I consider that in light of the significant trauma suffered by C that the award made by the assessor is inadequate. I will allow the appeal and increase the award to $12,500.
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