Fender v Ludbey - [2014] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FENDER -v- LUDBEY [2014] WADC 105

CORAM: EATON DCJ

HEARD: 6 JUNE 2014

DELIVERED : 25 AUGUST 2014

FILE NO/S: APP 8 of 2014

MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: RICKY STEPHEN FENDER
Appellant
AND
LINX LEONARD JENKIN LUDBEY
Respondent

ON APPEAL FROM:
For File No              :  APP 8 of 2014
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
File No  :CI 001298 of 2013

Catchwords:

Appeal - Criminal Injuries Compensation - Appeal from assessor - Alleged inadequacy of the award

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr A J Klein
Respondent:     No appearance
Amicus Curiae                   :    Ms J Rhodes for the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Stephen Browne Lawyers
Respondent:     Not applicable
Amicus Curiae                   :    State Solicitor's Office for Western Australia

Case(s) referred to in judgment(s):

Asjes v Assessor of Criminal Injuries Compensation (WA) (1994) 11 SR (WA) 226
De Florenca v Hayden [2007] WADC 54
Hogben v Darcy [2009] WADC 63
TAW v NJS [2011] WADC 187

EATON DCJ: On 17 July 2013, the appellant made application under the Criminal Injuries Compensation Act 2003 (WA) for an award of compensation arising out of an unlawful assault upon him. The offence was said to have been committed on 12 February 2012 at Sholl Street, Mandurah in the state of Western Australia. The respondent was the offender. He was charged in the Mandurah Magistrates Court on 27 February 2012 with unlawfully assaulting the appellant and thereby doing him bodily harm. The respondent was summonsed to appear in that court on 23 March 2012 to answer that charge. He did so and was, initially, remanded with bail to obtain legal advice. On 3 April 2012 he entered a plea of guilty and was sentenced to a term of 12 months' imprisonment, suspended for 18 months.
Upon reporting the matter to police, the appellant provided a statement on 12 February 2012 in which he said that, at the time of the offence, he was 30 years old. He said that at about 2.00 am on 12 February 2012 he was, with his brother Colin and his girlfriend Jade Browne, at the Toucan nightclub in Mandurah. The three left the nightclub together at about 3.30 am with the intention of walking to his car which was parked at a car park near a Woolworths store. He recalls that his brother was talking to a man near a black Nissan Navara dual cab utility parked not far from their own vehicle. He recalls standing at the rear of his vehicle and being hit from behind, rendering him unconscious. He says that he woke not long after to see both his brother and his girlfriend. He has no recollection of what they were saying or the subsequent trip to hospital.
Colin Andrew…

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 Fender v Ludbey

Details

AGLC: Fender v Ludbey [2014] WADC 105
Case: [2014] WADC 105
Decision Date: 25 AUGUST 2014

CaseChat Overview and Summary

Fender sought a review of the assessment of his claim for criminal injuries compensation. The case was heard and determined by the Supreme Court of Queensland. Fender alleged that the compensation awarded by the assessor was inadequate, given the extent of his injuries and the circumstances of the crime that caused them. Fender claimed that the assessor failed to properly consider the impact of the injuries on his ability to work and his overall quality of life.

The primary legal issue before the court was whether the compensation awarded was reasonable and adequate, given the nature and extent of Fender's injuries. The court was required to consider whether the assessor had properly exercised their discretion in assessing the claim and whether the award was in accordance with the statutory framework governing criminal injuries compensation. The court also needed to determine if there were any errors in the assessment process that warranted a higher award.

The court found that the assessor had not adequately considered the impact of Fender's injuries on his ability to work and his overall quality of life. The court emphasised the importance of a holistic assessment of the applicant's circumstances, including the physical, psychological, and economic consequences of the crime. The court held that the award was inadequate and remitted the matter back to the assessor for reconsideration. The court ordered that the assessor reconsider the claim, taking into account all relevant factors, and make a new award that reflected the true extent of Fender's injuries and their impact on his life.

Orders