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 award in relation to any injury or loss suffered by a victim … any amount that the victim … has received by way of compensation or damages, or under a contract of insurance, for the injury or loss'.
The hearing of the appeal was adjourned pending the determination of an appeal from the decision of Stone DCJ in Robertson v Baker [2014] WADC 14 (Robertson), relating to the correct interpretation of CICA s 42(3). The Court of Appeal dismissed the review application: Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56 (Baker). On 14 August 2015, the High Court refused special leave: Baker v His Honour Judge Stone of the District Court of Western Australia [2015] HCA Trans 194.
The effect of the decision in Baker is that the correct approach to the application of CICA s 42 is ([42]):
(a)to determine whether, and if so in what amount, a 'compensation award' may be made, that term being defined in s 3 to mean 'an award of compensation made under Part 4';
(b)to deduct any amounts from that compensation award required under CICA s 42; and
(c)to pay or award compensation under the CICA.
This was the approach taken by Stone DCJ in Robertson. In doing so, his Honour followed the decision of Schoombee DCJ in Devos v James [No. 2] [2013] WADC 36.
In her reasons for decision, the Assessor stated that she prepared her decision following notification of the appeal and a request from the solicitors for the appellant for reasons. In preparing her reasons, the Assessor noted that at the time of finalising the compensation award, she omitted to take into account the decision of Schoombee DCJ in Devos. The Assessor went on to note that, having considered the impact of the decision in Devos, had she taken that into account in the decision under review when finalising the applicant's claim, it is likely that she would have refused to have made a compensation award: Pene [1], [2], [21].
On 5 November 2015, Mr Pene filed an amended notice of respondent's intention in which he advised the court that he did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
In hearing this appeal, the court must decide the application to which the decision relates afresh without being fettered by the Assessor's decision: CICA s 56(1). It is open to the court to confirm, vary or reverse the Assessor's decision either in whole or in part: CICA s 56(2)(b). The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude). The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo [5].
The general power for an Assessor is contained in CICA s 30. It provides that 'on a compensation application in respect of an injury suffered by a victim as a consequence of the commission of an offence, an Assessor may award such compensation that the Assessor is satisfied is just for the injury and for any loss suffered'. The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary common law principles for the assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA: M v J andJ v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J); Devos [6].
As the offence occurred after 23 September 2003, the maximum compensation able to be paid to Mr Pene is $75,000: CICA s 31(1).
In a letter to the Assessor dated 6 May 2013, Mr Pene's lawyers advised that the compensation paid to Mr Pene was as follows:
Past loss of earnings  $ 75,952.34
Medical expenses  $ 39,876.92
Rehabilitation  $ 15,839.85
Settlement  $ 53,000.00
Total  $184,669.11
On the materials before me, it is not an issue that this amount of compensation was for the injury and loss suffered by Mr Pene for which he sought compensation under CICA.
The amount to be deducted by operation of s 42 is 'any amount that the victim … has received by way of compensation or damages, or under a contract of insurance, for the injury or loss'. It is to be deducted as a total sum. In Baker, the Court of Appeal makes this clear ([43]):
Further, there is no foothold in the language of s 42(3) for an argument to the effect that s 42(3) is addressing a notional compensation award which is split into different elements to which the deductions in s 42 are to be applied differentially. Under s 42(3) a (single) 'compensation award' in relation to any injury or loss is the subject of the deduction. The deduction is (relevantly) 'any amount' that the victim has received. The words 'injury or loss' cannot reasonably be interpreted as signifying that the 'compensation award' is to be disaggregated into a notional award for 'injury', and a notional award for 'loss', for the purposes of the deduction required by that subsection (see written submissions pars 30 ‑ 31). It is true that s 42(2) refers only to 'loss', but that is because it is specifically addressing a particular category of insurance contract. It provides no foundation for regarding a 'compensation award' in s 42(3) as a notional award, and for disaggregating the notional award into different notional sub-awards for injury and loss. The words 'injury or loss suffered by a victim or a close relative of a deceased victim' in s 42(3) reflect the language of s 30 (and in particular s 30(1) and (3)). The language is not tautological, but is evidently used to make it plain that s 42(3) is addressing a 'compensation award' made under s 30 (read with s 31).
Consistent with that decision, there is no basis to interpret CICA s 42(3) so as to disaggregate the compensation for 'injury' and the compensation for 'loss'. Whilst it may be said that there is a potential foothold in the language of CICA s 42(3) for this approach, it is not consistent with the reasoning otherwise adopted by the Court of Appeal.
As I have mentioned, the reasoning adopted by the Court of Appeal is to firstly determine the amount of the award of compensation under pt IV, and then deduct any amounts required by CICA s 42. As the amount of compensation received for the injury and loss suffered by Mr Pene for which he seeks compensation under the CICA is in excess of the maximum compensation which he is able to receive under that Act, there is no utility in assessing the compensation to which he would otherwise be entitled.
Accordingly, the appeal is allowed. Specifically pursuant to CICA s 56(2)(b) I reverse the Assessor's decision and order that Mr Pene receive no award of compensation under the CICA.
I will hear from counsel as to costs.