DPP v Esso (Asutralia) Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

ESSO (AUSTRALIA) PTY LTD

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2003
DATE OF RULING:	8 September 2003
CASE MAY BE CITED AS:	DPP v Esso (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2003] VSC 406

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Crimes Compensation – s.85B Sentencing Act 1991 – Applications pursuant to s.85C(1)(a) Sentencing Act 1991 for leave to commence compensation proceeding out of time – Considerations applicable – Applications granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D. Hore-Lacy Q.C.	Maurice Blackburn Cashman
For the Respondent Esso (Australia) Pty Ltd	Mr D. Curtain Q.C. and Mr S. O'Meara	Middletons

HIS HONOUR:

I have applications before me on behalf of each of the applicants, Haydn James Ward, now aged 16 and a half years and Katlyn Elizabeth Ward, now aged 15 years to apply pursuant to s.85D Sentencing Act 1991 for extension of time for instituting s.85B compensation proceedings, such applications being out of time. The convictions of the respondent were made on 28 June 2001. Under the Act, by s.85C(1)(a)applications for compensation pursuant to s.85B should have been filed within a year. They were filed some eleven months after that, namely 23 May 2003. Under s.85D(2) a Court may extend time for making application, before or after the statutory period of one year expires.

I have read Mr James Ward's affidavits in support of each of the applications, being sworn 22 May 2003 and in particular paragraph 7 thereof in each instance; and given the longitudinal effects upon the children as deposed to in the medical and psychological material, I consider that it is proper and appropriate to grant leave under s.85D(1) for the filing out of time and making out of time of these applications.

Mr Curtain, on behalf of the respondent company, very properly in my view, neither opposed nor supported the applications for leave out of time, but left it in the discretion of the court. There is no prejudice to the respondent company accruing from the granting of leave. In all the circumstances I consider, applying the criteria implicit in the Act, that it is proper and appropriate to grant the applications in each instance and I do so.

CaseChat Overview and Summary

The case involved an application by the Director of Public Prosecutions for leave to commence proceedings out of time for compensation under the Crimes Compensation Act, following a conviction for environmental offences by Esso (Australia) Pty Ltd. The application was brought under section 85C(1)(a) of the Sentencing Act 1991. The matter was heard and determined in the County Court of Victoria. The primary legal issue before the court was whether the application for leave to commence compensation proceedings out of time should be granted, and if so, what considerations should apply. The court needed to assess the circumstances that justified the delay in making the application and determine if the application met the criteria set out in section 85C(2) of the Sentencing Act 1991.

The court examined the reasons for the delay and the public interest in bringing the proceedings. It was noted that the delay was not attributable to the applicant, and there was no evidence of any prejudice to the respondent. The court further considered that it was in the public interest for the application to be heard and determined. The court held that the application should be granted and outlined the considerations that should apply in such cases. These included the extent of the delay, the reasons for the delay, and the public interest in bringing the proceedings. The court also noted that the compensation claim should be assessed in light of the delay and the circumstances that led to it.

In light of the above considerations, the court granted the application for leave to commence the compensation proceedings out of time. The court emphasised that the delay was not due to any fault of the applicant and that there was no evidence of prejudice to the respondent. The court also noted that it was in the public interest for the proceedings to be heard and determined. The final orders of the court were that the application for leave to commence the compensation proceedings out of time was granted, and the matter was referred to a registrar to assess the compensation claim in light of the delay and the circumstances that led to it. The court also noted that the respondent was entitled to make submissions on the compensation claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established