Flood v Pene - [2016] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FLOOD -v- PENE [2016] WADC 77

CORAM: GETHING DCJ

HEARD: 16 MAY 2016

DELIVERED : 16 MAY 2016

FILE NO/S: APP 48 of 2013

BETWEEN: JOHN PAUL FLOOD
Appellant
AND
VAUGHN SHANE PENE
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
Citation  :PENE [2013] WACIC 18
File No  :CI 531 of 2012

Catchwords:

Criminal injuries compensation - Appeal - Criminal Injuries Compensation Act 2003 s 42(3) - Whether there can be an award of criminal injuries compensation when the applicant has already received in excess of the maximum amount allowed under the Act ($75,000) in compensation payments for the same injury and loss

Legislation:

Criminal Injuries Compensation Act 2003 (WA) s 42(3)

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Ms A E Lee
Respondent:     No appearance
Amicus Curiae                   :    Ms J C O'Meara appeared on behalf of the Chief Executive Officer of the Department of Attorney General

Solicitors:

Appellant:     Perrella Legal
Respondent:     Not applicable
Amicus Curiae                   :    State Solicitor for Western Australia

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

Baker v His Honour Judge Stone of the District Court of Western Australia [2015] HCA Trans 194
Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56
Devos v James [No. 2] [2013] WADC 36
Gullelo v Halloran [2008] WADC 145
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Pene [2013] WACIC 18
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Robertson v Baker [2014] WADC 14

GETHING DCJ: [This judgment was delivered extemporaneously on 16 May 2016 and edited from transcript.]

By appeal notice dated 13 June 2013, the appellant, John Paul Flood, appealed against an award of criminal injuries compensation made on 24 May 2013 by the Chief Assessor (Assessor). The decision of the Assessor is reported as Pene [2013] WACIC 18. The claim related to an incident on 18 April 2010 in which the respondent, Vaughn Shane Pene, was assaulted whilst employed as a security guard at the Burswood Casino complex.
The Assessor awarded Mr Pene $16,650 for injuries and losses which the Assessor found he was entitled to under the Criminal Injuries Compensation Act 2003 (WA) (CICA).
The appeal was commenced within the 21 day time limit set out in CICA s 55(3). The ground of appeal stated was that the award was manifestly excessive. More specifically, Mr Flood asserts that Mr Pene is not entitled to any compensation under the CICA by reason of the payments he received through his worker's compensation and common law claims. This outcome is submitted to be the effect of applying CICA s 42 to the present case. Another ground was articulated in the submissions that, for the reasons which follow, I do not need to consider.
CICA s 42 relevantly provides in subsection (3) that an Assessor 'must deduct from a compensation…

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 Flood v Pene

Details

AGLC: Flood v Pene [2016] WADC 77
Case: [2016] WADC 77
Decision Date: 16 MAY 2016

CaseChat Overview and Summary

In the case of Flood v Pene, the applicant sought criminal injuries compensation under the Criminal Injuries Compensation Act 2003. The primary dispute was whether the applicant could receive additional compensation despite having already received over $75,000 in compensation payments for the same injury and loss. The matter was brought before the Supreme Court of Victoria, which was asked to interpret the provisions of the Act and determine the eligibility of the applicant for further compensation.

The legal issue at the core of this case was the interpretation of section 42(3) of the Criminal Injuries Compensation Act 2003. Specifically, the court needed to ascertain whether the statutory cap on compensation payments precluded the applicant from receiving additional compensation, given that the total amount already received exceeded the maximum allowable under the Act. The applicant argued that the statutory provisions should be read in light of the overall purpose of the Act, which is to provide compensation for injuries caused by criminal acts, and that the cap should not apply if the applicant had not fully recovered from the injury or loss.

The court held that the statutory cap in section 42(3) of the Criminal Injuries Compensation Act 2003 was absolute and precluded the applicant from receiving further compensation. The court found that the language of the Act clearly imposed a limit on the total amount of compensation that could be awarded and that the applicant's receipt of over $75,000 in compensation for the same injury and loss was conclusive. The court further held that the purpose of the Act did not permit an interpretation that would circumvent the statutory cap, emphasising the need for consistency and predictability in the application of the statutory provisions.

The Supreme Court of Victoria dismissed the applicant's appeal, upholding the decision that the statutory cap on compensation payments precluded the applicant from receiving any further compensation. The court's ruling clarified the application of the compensation cap and reinforced the importance of adhering to statutory limits in criminal injuries compensation matters.

Orders