Ellis v Crimes Compensation Tribunal
[2000] VSC 383
•30 August 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 5977 of 2000
| JASON ELLIS | Applicant |
| v. | |
| CRIMES COMPENSATION TRIBUNAL AND ANOTHER | Respondents |
---
JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 AUGUST 2000 | |
DATE OF JUDGMENT: | 30 AUGUST 2000 | |
CASE MAY BE CITED AS: | ELLIS v. CRIMES COMPENSATION TRIBUNAL & ANOR. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 383 | |
---
CATCHWORDS: Application for leave to appeal out of time against decision of Victorian Administrative Tribunal – No satisfactory explanation for delay – No arguable error of law on part of Tribunal.
---
APPEARANCES: | Counsel | Solicitors |
For the Applicant | Jacques Ellis (Grandfather to Applicant) | |
| For the Defendant | No Appearance |
HIS HONOUR:
This is an application for leave to appeal out of time from the decision of the Victorian Civil and Administrative Tribunal given on 24 April 1998 whereby the tribunal dismissed the applicant, Jason Ellis's, application for compensation brought pursuant to the provisions of the Crimes Compensation Act 1983.
The background to the application for leave to appeal may be summarised as follows:
On 22 July 1994 the applicant was injured when he fell from platforms 11 and 12 at Spencer Street Railway Station on to the train line at about 7.30 p.m. That evening. The applicant's case is that he fell to the rails as a consequence of being assaulted by a person or persons unknown. The applicant was taken to the Alfred Hospital by police where he remained for a period of some four days.
It was not until 4 July 1995 that the applicant made a formal complaint to the police in relation to the matter. He made the complaint at that time because he had been informed that if he intended to make a claim for compensation pursuant to the provisions of the Crimes Compensation Act, a prerequisite to making such a claim would be that he report the assault which he alleged had been committed on him to the police.
On 21 September 1995 the applicant did make a claim for compensation to the Crimes Compensation Tribunal.
On 24 February 1997 the tribunal dismissed the applicant's claim, finding that he had failed to satisfy it that he was injured as a result of being assaulted rather than having injured himself when he fell on to the line whilst in a severely drunken state.
The applicant then applied for a review of that decision to the Victorian Civil and Administrative Tribunal. The hearing of the review commenced on 23 April 1998 and concluded on 24 April 1998. The tribunal dismissed the application on the ground that it was not satisfied that the applicant had suffered injury as a consequence of being assaulted rather than as a consequence of falling on to the track from the platform in question whilst intoxicated.
Its finding in that regard appears at paragraph 9(a) of the affidavit sworn by the applicant's grandfather, Jacques Ellis, who is making this application on behalf of the applicant. The paragraph reads:
"Having considered the evidence, the tribunal was unable to determine with sufficient certainty the circumstances surrounding the alleged incident and was unable to determine whether or not the applicant was in fact a victim of an alleged assault."
The tribunal did also go on and say if that that finding was erroneous, the application of s.20(1) of the Criminal Injuries Compensation Act would be such as to reduce any award of compensation to be made to the applicant to nil. That sub-section reads:
"20. (1) In determining whether to make an award of compensation, or the amount of an award, the Tribunal shall have regard to any behaviour, condition, attitude or disposition of the victim which directly or indirectly contributed to the victim's injury or death and to all other circumstances it considers relevant."
It is convenient at this stage to say something concerning the incident which occurred on 22 July 1994 leading to the applicant being found on the train line. The applicant has no recollection of what occurred immediately preceding his fall to the line, no eyewitnesses to his actual fall have ever been found and therefore there is simply no eyewitness account of what occurred in those seconds or even minutes prior to his fall. Two police officers did give evidence to the tribunal in relation to the matter, one who had seen the applicant before he fell and at a later time saw him lying on the line, another who came along after the applicant fell and helped to take the applicant from the line back to the platform.
The first of those police witnesses was Senior Sergeant Alexander Caughey. He has made a statement, the relevant passages of which read:
"About 7.20 p.m. On 22nd July 1994 I was off duty and intending to catch a V-Line country train from platform 8, Spencer Street Railway Station. As I walked along the subway from Spencer Street entrance towards platforms 7 and 8 I observed two males in front of me who were obviously very drunk and using extremely loud offensive and indecent language towards other people. I cannot recall their exact conversation but some of the language used included 'fuck off' and 'what are you fuckin' looking at'. The person who I now know as Jason Ellis was calling the other male a 'fuckin' dobbing cunt'. Both were very unsteady on their feet and staggering. As they staggered towards the Met platforms ticket barrier calling each other 'fuckin' cunts' and using other offensive language, I saw Ellis shove the other person on the left shoulder area which caused this other person to lose his balance and stagger sideways and forward for about 10 metres and fall face forward.
I then went over to the male on the ground and said, 'Are you all right?' He said, 'Fuck off.' I produced my Police ID and said, 'What's all this about?' Ellis said, 'We're mates. Nothing to fuckin' do with you.' I said, 'All right but cut out the language and leave before you get arrested.' As I walked away up the ramp to platform 7 and 8 Ellis said, 'What are you going to fuckin' do about it you cunt? You're on your own fuckin' cunt. Come back here you fuckin' yellow chicken cunt.' Ellis and the other person continued to scream out for me to come back using offensive language and threatening to 'kick my fucking head in' until I was out of sight on platforms 7 and 8.
I immediately went to the station staff office on platform 7 and 8 and used the phone to call police.
About 730 p.m. I went back down the ramp to the subway and the two had gone. I then had a conversation with the PTC employee who was checking the tickets of people entering and leaving the Met platforms (platforms 9 - 14). He indicated that the two had gone to platform 9 and 10.
I then walked back up the ramp to platform 8. As I entered the platform I saw a Met electric train stopped short of platform 9. This train was coming out of the underground loop travelling towards Flinders Street Station. In the headlight of the train I saw Ellis lying on the tracks in front of the train at the North Melbourne end of the platform at least 35-40 metres away from any other people."
Senior Sergeant Caughey then tells of what occurred thereafter.
In a statement that he made, Senior Constable Peter Richard Dyer has said:
"On the 22nd July 1994, I was working a covert plain clothes operation in the company of Constable Kennedy at the Spencer Street Railway Station.
At about 7.32 p.m. we received information there was a fight or disturbance in progress on platform 11 and 12 involving two males. I attended there a short time later with Constable Kennedy and observed a male person lying on the tracks in front of a train. I then got down on the tracks and observed that the male person appeared extremely intoxicated and smelt strongly of alcohol. He was unable to stand up on his own so I assisted him into getting back onto the platform. I then placed him on the ground and lent him up against a rubbish bin. I observed that he had a cut above one of his eyes."
Later in his statement he said:
"At that stage I believe that Ellis had fallen on the train tracks due to his severe stage of intoxication and that this is where he sustained his injury which to me appeared to be a minor laceration to the head.
There were no witnesses to the incident other than Senior Sergeant Caughey."
I should have added that in Senior Sergeant Caughey's statement he concludes with this paragraph:
"Throughout this incident Ellis was very aggressive and in my opinion if pushed from the platform by an unknown person it would have been in self-defence. However I believe that Ellis fell from the platform in his very drunk condition."
It was the applicant's behaviour as instanced in those statements which probably caused the tribunal to make the finding it did in relation to s.21 of the Criminal Injuries Compensation Act. At all events, the tribunal dismissed the applicant's application.
The applicant now seeks leave to appeal to this court pursuant to the provisions of s.148 of the Victorian Civil and Administrative Tribunal Act, the relevant sub-sections of which read:
"148 (1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -
(a)to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or
(b)to the Trial Division of the Supreme Court in any other case -
if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.
(2) An application for leave to appeal must be made -
(a)no later than 28 days after the day of the order of the Tribunal; and
(b) in accordance with the rules of the Supreme Court.
...
(5)The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under this section."
It can be seen that the applicant's application is well out of time, indeed more than two years out of time. I shall return to that aspect shortly.
The point of law relied upon by the applicant is that in dealing with the matter on 23 and 24 April 1998, the tribunal denied the applicant natural justice. There are three matters relied upon by the applicant in that regard. In the first place, it was said that the behaviour of the tribunal during the course of the hearing was such as to demonstrate that the tribunal was hostile to the applicant's application and in that situation did not give it the consideration it warranted; in the second place, it is said that the tribunal refused the applicant's application for an adjournment to enable him to call a doctor who had seen the applicant on the night of 22 July 1994, that is a doctor at the Alfred Hospital, who had been subpoenaed to attend before the tribunal on 23 April but who had failed to appear and, in the third place, the applicant complains that he was not permitted to properly question Senior Sergeant Caughey and Senior Constable Dyer before the tribunal in relation to the matter.
The solicitor who appeared on behalf of the Victims of Crime Assistance Tribunal before the Victorian Civil and Administrative Tribunal has sworn an affidavit in which he has dealt with the complaints made on the applicant's behalf by his grandfather. The paragraphs in his affidavit which deal with the complaints are the following: (I shall set them out in the order in which I listed the complaints made by the applicant through his grandfather.)
"18.I recall no hostility or opposition expressed by the Tribunal to Mr Ellis.
14.Dr MacDonald was not in attendance to be called as a witness by Mr Ellis. I recall no requests to the Tribunal regarding compelling Dr MacDonald to attend. As regards the evidentiary weight of Dr MacDonald's report, I submitted that the account of injury would do no more than prove that he was injured, not demonstrate how he was injured, certainly not that he was a victim in terms of the Criminal Injuries Compensation Act.
13.Mr Ellis was not stopped from examining the police witnesses. As he was calling the witnesses he would not usually be able to cross-examine them, but to allow him every opportunity it was agreed between him, the member and me that I would call the witnesses so that he would have the opportunity to cross-examine. This took place and he did indeed cross-examine the police witnesses, he was not prevented from doing so by the Tribunal."
That evidence has been challenged by the applicant's grandfather, who has stated that it is totally inaccurate. That, of course, is a matter I am in no position to resolve. All I say is if that evidence is correct, then clearly the tribunal was not guilty of a denial of natural justice. One other observation I make is that the hearing of the application to the tribunal extended throughout one day and then for approximately an hour on the second day. That it did could again be pointed to as demonstrating the fact that the applicant was given a proper hearing and was not denied natural justice. However, as I said a moment ago, it is not for me to make a determination in respect of the matter. What I am required to determine in this case is whether it is arguable that the tribunal made an error of law in the matter and, if so, whether in the exercise of my discretion I should extend the time for the making of the application for leave to appeal.
The applicant's reason for his failure to make application within time is set out in his affidavit sworn in June of this year, the relevant paragraph of which reads:
"4.That I did not appeal within the time prescribed because I did not have access to the necessary legal advice and have only now been advised that I can take this course."
In the circumstances of this case I do not consider that that is sufficient explanation for excusing the delay. A simple inquiry of the tribunal following dismissal of the applicant's application on 24 April 1998 would have elicited the fact that it was necessary for the applicant to make any application to this court within 28 days of that date.
But there is another reason why I would refuse the application. Even if the applicant was entitled to a rehearing of his review by a differently constituted tribunal, in my opinion such a review would probably fail, either because the applicant would again fail to establish that his injuries were caused as a consequence of an assault, or because any award of damages would probably be reduced to nil by virtue of the applicant's own conduct on the night of 22 July 1994.
In that situation the applicant's application for leave to appeal out of time must be refused.
---
0
0
0