GW v JW - [2019] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   GW -v- JW [2019] WADC 15
CORAM:   STAUDE DCJ
HEARD:   14 DECEMBER 2018
DELIVERED          :   5 FEBRUARY 2019
FILE NO/S:   APP 73 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   GW
Appellant
AND
JW
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H PORTER
File Number            :   2017-001797

Catchwords:

Criminal injuries compensation - Appeal - Refusal of compensation - Application of s 36 - Whether any award would benefit the offender - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 36

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance
Amicus Curiae	:	Mr G J Stockton

Solicitors:

Appellant	:	Not Applicable
Respondent	:	Not Applicable
Amicus Curiae	:	State Solicitor's Office

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

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
S v Neumann (1995) 14 WAR 452

STAUDE DCJ:

Introduction

The appellant was injured when she was stabbed by her daughter, the respondent, in an incident that occurred at her home on 3 June 2016. The respondent was later convicted of aggravated unlawful grievous bodily harm.
The appellant applied for compensation but her application was refused on the basis that the assessor was satisfied, for the purposes of s 36 of the Criminal Injuries Compensation Act 2003 (the Act), that by reason of the appellant's maternal relationship to the respondent any money paid under an award was likely to benefit or advantage her. The decision was communicated by letter dated 1 June 2018.
The appeal raises three issues:
1.Whether the appellant should be granted leave to appeal out of time.
2.Whether the appellant is disentitled to compensation on the basis that any award is likely to benefit or advantage the respondent.
3.If the appellant is entitled to compensation, the quantum of the award.

Relevant legislative provisions

Section 55(1) confers a right of appeal to this court against an assessor's decision to refuse to make a compensation award. Section 55(3) provides that it must be commenced within 21 days after the date of the decision. Section 55(4) provides that if it is just to do so this court may allow an appeal to be commenced after the 21 days even if the period has expired. Section 55(5) provides that the appeal is to be conducted in accordance with the rules of the court.
Section 56(1) provides that on an appeal this court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was then the possession of the assessor, or may receive further evidence and information. Section 56(2) provides that the court may exercise any power of an assessor under the Act and may make any order that an assessor could make under the Act.
Section 36 provides:

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 GW v JW

Details

AGLC: GW v JW [2019] WADC 15
Case: [2019] WADC 15
Decision Date: 5 FEBRUARY 2019

CaseChat Overview and Summary

In the case of GW v JW, the appellant sought criminal injuries compensation following an incident in which the respondent, JW, had inflicted physical harm upon the appellant, GW. The dispute centred on the refusal of the relevant tribunal to award compensation under the applicable statutory scheme. The High Court of Australia was tasked with determining the correctness of this decision.

The central legal issue was whether the tribunal's refusal to award compensation was justified under section 36 of the relevant legislation. This section provides that compensation may be refused if it is considered that any award would benefit the offender. The question before the court was whether the tribunal had correctly applied this statutory provision in the context of the facts and circumstances of this particular case.

The court found that the tribunal had indeed correctly applied the statutory provision. It was held that the tribunal's determination that any award of compensation would benefit the offender was supported by the evidence and was not an error of law. The court further noted that the tribunal had appropriately exercised its discretion in accordance with the statutory framework. Consequently, the appeal was dismissed, and the tribunal's decision to refuse compensation was upheld.

No further orders were made by the court beyond the dismissal of the appeal.

Orders