Hird (a pseudonym) v Demasi
[2023] VCC 1228
•24 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APRIL HIRD (a pseudonym) | Applicant |
| v | |
| GUISEPPI DEMASI | Respondent |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2023 | |
DATE OF JUDGMENT: | 24 July 2023 | |
CASE MAY BE CITED AS: | Hird (a pseudonym) v Demasi | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1228 | |
REASONS FOR DECISION
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Subject:CRIMES COMPENSATION
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991– psychological injuries – award of costs
Legislation Cited: Sentencing Act 1991 (Vic), s85B;
Cases Cited:DPP v Demasi [2021] VCC 781; Moresco & Ors v Budimir [2015] VSC 51; RK v Mirik and Mirik [2009] VSC 14; Athian v Pang [2023] VCC 477; Marks & Ors v Bolton (a pseudonym) [2022] VCC 565; DP (a pseudonym) v Bird [2021] VSC 850; Lonergan v Trustees of the Sisters of Saint Joseph & Anor [2021] VSC 651; AA (a pseudonym) v Cooper [2015] VCC 185; Jackson (a pseudonym) v Tetley [2020] VCC 799; Peterson v Peterson (a pseudonym) [2021] VCC 434; V3 (a pseudonym) v Hewitt (a pseudonym) [2020] VCC 280; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233; Shelton v Shelton [2023] VCC 801; V1 & Ors v Xydias [2009] VSC 616
Judgment: Judgment for the applicant in the sum of $67,500 (after VOCAT deduction) pursuant to the provisions of s85B of the Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Yusur Al-Azzawi | Rubicon Compensation Lawyers |
| For the Respondent | No appearance | |
HER HONOUR:
Introduction
1April Hird,[1] makes an application for compensation from the respondent, Guiseppi Demasi, pursuant to s85B of the Sentencing Act 1991 (“the Act”) for injuries suffered as a direct result of offences for which the respondent was convicted on 11 June 2021. The application dated 10 June 2022, was listed for directions on 14 June 2022.
[1]A pseudonym.
2The application was heard on 9 June 2023. Ms Yusur Al-Azzawi of counsel appeared on behalf of the applicant. There was no appearance by the respondent. I note the respondent has not engaged in the proceeding since the service of the application.
Circumstances
3His Honour Judge Smallwood sentenced the respondent, Guiseppi Demasi, on 11 June 2021 for 14 charges of indecent act with a child under the age of 16 years.[2] The applicant is one of five victims against whom these crimes were committed. Two of the charges related to the applicant.[3] The respondent pleaded guilty to the charges.
[2] DPP v Demasi [2021] VCC 781
[3]The charges specifically relating to the applicant are Charge 13 and Charge 14.
4The respondent was sentenced to a total effective sentence of 36 months imprisonment which was wholly suspended for three years. The respondent was also placed on the Sex Offenders Register for life.
5The respondent was a neighbour and friend of the applicant’s mother. The offending occurred when the applicant was 10 years old. With minor alterations I use his Honour’s description of the circumstances in his reasons for sentence:[4]
(a) For Charge 13, on a school night in July 2005 or 2006, the respondent was at the applicant’s address. The applicant was in her bedroom having gone to bed. The respondent pulled down his pants whilst standing near her mother’s bedroom door and exposed his penis to her.
(b) For Charge 14, on another occasion, the applicant went to the respondent’s house to give him a bracelet that she made for his niece. The respondent picked her up, took her into the bedroom, threw her onto the bed, pinned her arms over her chest, he then lay on top of her, placing his hands inside her underpants and touched her on the vagina.
[4] DPP v Demasi [2021] VCC 781
Relevant legal principles
6Section 85B of the Act provides that if a court finds a person guilty or convicts a person of an offence, and on the application of a person who has suffered an injury as a direct result of an offence, it may order the offender to pay compensation of such amount as it thinks fit.
7This application is a civil proceeding and the civil standard of proof, on the balance of probabilities, applies.
8A compensation order may include an amount for pain and suffering as a direct result of the offence and for expenses incurred or reasonably likely to be incurred by the victim for reasonable counselling services as a direct result of the offence.
9As well as actual physical bodily harm, ‘Injury’ is defined to include mental illness or disorder, or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock. It also includes grief, distress or trauma or other significant adverse effects, or any combination of those matters.[5]
[5] s 85A Sentencing Act 1991 (Vic)
10In the case of Moresco & Ors v Budimir,[6] His Honour T Forrest J set out the legal principles as follows:
“A compensation order provides a convenient mechanism for the recovery of compensation by victims. An application for such an order is intended to be quick, cheap and built upon the criminal proceeding. It is designed to avoid the ‘complex or technical rules of procedure as may properly apply’ on a civil application for damages at common law.
If a court convicts or finds a person guilty of an offence it may order the offender to pay compensation to a person who has suffered injury as a direct result of that offence. It follows that on an application such as this a court must ask itself:
1) Was the offender found guilty or convicted of an offence?
2) Has the applicant suffered injury?
3) Was that injury a direct result of the offence?
[6] [2015] VSC 51
If the answer to each of these questions is, ‘Yes’, and the offender has been given a reasonable opportunity to be heard on the application, the Court may order the offender pay compensation in such amount as it sees fit. This amount may represent one or more of the heads of injury countenanced by s 85B(2) of the Act, including pain and suffering, medical expenses, expenses relating to counselling services and other, related, expenses that do not concern damage to property.”[7]
[7] Moresco & Ors v Budimir [2015] VSC 51 at paragraphs [18] – [20]
11Relevant to this application, his Honour went on to say,
“Orders for compensation are not limited to injuries that would be compensable at common law. The Act’s definition of ‘injury’ is broad and includes grief and distress.”[8]
[8] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [21]
12Further, he stated,
“The expression ‘direct result of’, which means ‘an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.”[9]
[9] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [22]
13His Honour noted,
“If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification.”[10]
[10]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
14In assessing quantum of the entitlement to compensation, His Honour stated:
“The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.”[11]
[11] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
15Section 85H of the Act provides that if a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. Justice Bell in RK v Mirik and Mirk[12] observed that the discretionary power permits a court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to a term of imprisonment.[13] Justice Bell pointed out that an adult offender’s means are a relevant, but not a controlling consideration.[14]
[12] [2009] VSC 14
[13] RK v Mirik and Mirik [2009] VSC 14 at paragraph [137]
[14] RK v Mirik and Mirik [2009] VSC 14 at paragraph [135]
16Further, if a court is unable to find out the financial circumstances of the offender, it is not prevented from making a compensation order.
17Pursuant to section 85I of the Act, if an award has been made to the victim under the Victims of Crime Assistance Act 1996, the Court must reduce the amount of compensation for the expense or other matter for which compensation is sought in the application.
Relevant materials
18The applicant filed an affidavit affirmed on 15 May 2023 in support of her application. At the hearing the applicant affirmed that the contents of her affidavit were true and correct. The affidavit included exhibits, namely her police statement dated 2 May 2018, draft victim impact statement undated, the Magnolia clinic records, the Sentence of His Honour Judge Smallwood, and a Counselling and Report Fee Invoices for seven sessions by Bernadette Hodgson from the Magnolia Clinic.
19An affidavit by Liat Blacher, solicitor at Rubicon Compensation Lawyers, dated 16 May 2023 exhibited a title search showing the respondent is the registered sole proprietor of the property at Hornsey Park, Mildura subject to a caveat by Victoria Legal Aid.
20Written submissions by the applicant’s solicitors dated 14 March 2023 and 25 May 2023 were filed on the applicant’s behalf, as was a report by Bernadette Hodgson, undated.
Evidence about injury
Applicant’s affidavit
21In her affidavit dated 13 May 2023, the applicant outlined the impact the offending has had on her. Her affidavit refers to the respondent sexually abusing her a number of times as well as flashing his penis at her.
22The applicant is 27 years old and has a son aged 9 and a daughter aged 18 months.
23The applicant has been receiving treatment from her counsellor, Bernadette Hodgson every four weeks for the past two years or so. Although she has been recommended anti-depressants, the applicant has not taken them as she does not want to become dependent.[15]
[15]Exhibit A-1
24The applicant noted she did not tell anyone about the offending until much later in life. She stated in her affidavit:
“I blocked the abuse out of my memory for a long time, but since the criminal court case in 2021, it feels like its constantly with me.”[16]
[16]Exhibit A-1
25She feels haunted by her childhood abuse. She still lives in Mildura, as does the respondent whom she sees around the area which makes her feel sick, shaky and weak. She feels as if she is looking over her shoulder and cannot escape him.
26The applicant was not supported by her mother when she told her about the abuse prior to her mother’s death. She stated, “The abuse drove a wedge between my family and me.” The respondent attempted to attend her mother’s funeral and the applicant had to contact the police to stop him.
27The applicant describes being hypervigilant and this has impacted on her parenting. For example, her son is not allowed to attend sleepovers as she cannot trust he will be safe with other adults.
28The applicant avoids being alone and leaving the house other than for work or for necessities, like grocery shopping, as she is scared she will run into the respondent. She always does the supermarket shopping with her partner and plans her day around avoiding the respondent.
29Her ability to be intimate and affectionate with her partner has been affected and she feels as if she cannot respond openly or lovingly to him.
30The applicant is qualified in aged care and since 2015 worked as a full-time personal care worker. During the respondent’s criminal case, she found her employment challenging as some of the clients are Italian and referred to her as ‘Bella’ as the respondent did.
31She is currently also working in retail, and twice in the last three or four months the respondent has come into her workplace, and she has felt sick and terrified and wanted to run and hide. She stated she feels there is no hiding, and that the respondent could be anywhere.
Applicant’s Victim Impact Statement
32The applicant’s draft victim impact statement (exhibited to her affidavit) was prepared for the criminal case.[17]
[17]Exhibit A-1
33She stated, “my childhood was taken away from me when I was 10 years old.” As the respondent was a close friend of her mother’s, the offending had a huge impact and affected the applicant’s relationship with her mother. Although she told her mother and father what happened to her, her sisters even as adults, were not aware. This was an issue when her mother died, and the applicant did not want the respondent to attend her mother’s funeral.
34The applicant finds it difficult to go out in public by herself in case she bumps into the respondent. The thought of this makes her feel physically sick, go weak at the knees and shake and, “For years I had really bad panic attacks.” This is particularly difficult given the applicant lives in Mildura, a small country town, as does the respondent. She stated, “he is literally everywhere, driving past, the supermarket, the shops. I can’t escape him.”
35The applicant is also triggered, as working in aged care she has clients who remind her of the respondent.
Counsellor’s report
36Ms Hodgson, a mental health clinician, prepared an undated report.[18]
[18]Exhibit A-5
37The applicant has attended 32 sessions of counselling since February 2019.
38The applicant had regular counselling prior to the respondent’s sentence on 11 June 2021 and re-engaged for counselling when her symptoms were exacerbated, such as when she reported the crime, when the respondent was sentenced and recently following an incident when she saw the respondent.
39As Ms Hodgson is not a psychologist, no formal diagnosis was made. She noted the applicant was diagnosed with an Adjustment Disorder on 25 January 2019 by her general practitioner.[19]
[19] See also Exhibit A-1 Notes from The Magnolia Clinic, Mental Health Care Plan prepared by Dr Junnatul
Fardaus
40She noted the applicant has symptoms consistent with Post Traumatic Stress Disorder and five current symptoms which meet those criteria, namely:
1.Recurrent, involuntary and intrusive distressing memories of the traumatic event(s);
2.Re-occurring distressing dreams in which the content of the dream is related to the assault(s);
3.Intense distress at exposure to internal and external cues that remind her of the traumatic event(s);
4.Marked alterations in arousal and reactivity associated with the traumatic events the applicant reports specifically – irritability, hypersensitivity, poor concentration and sleep problems; and,
5.Negative alterations in cognitions and mood associated with the traumatic event, including negative thoughts, loss of interest and detachment from others.
41Ms Hodgson noted the applicant reported episodes of intrusive, involuntary thoughts and memories of past incidents of sexual assault. She noted she suffers with poor concentration, memory and struggles to fulfil commitments such as maintaining appointments.
42Ms Hodgson stated the applicant completed a Depression, Anxiety and Stress Inventory to assess her current symptoms.
43She stated this clinical tool indicated the applicant has severe depression, severe anxiety and severe stress. She noted the applicant experiences symptoms consistent with anxiety, including increased heart rate, tightness in the chest, difficulty breathing, constant worry both rational and irrational, shakiness and persistent sense of fear in leaving the house. The applicant reports home and work as the only places she feels comfortable. Outside the home she is hypervigilant and constantly worried about seeing the respondent.
44The applicant struggles with guilt that her anxiety affects her children and she rarely takes the children on outings and avoids all non-compulsory school activities. She feels this negatively impacts their well-being. She rarely leaves the children with others and has a small circle of trusted people.
45The applicant reports difficulties in maintaining relationships as she has difficulties communicating how she thinks and feels.
46Ms Hodgson also reported the applicant is re-triggered by intimacy and physical touch which impacts on her relationship with her partner.
47Ms Hodgson was of the opinion the applicant’s prognosis is uncertain. Recent counselling has focused on increasing her capacity to tolerate and manage her physical symptoms post seeing the respondent.
48Ms Hodgson noted the applicant had severe symptoms namely high levels of avoidance and severe recurring declined incapacity to manage her symptoms when exposed to triggers.
49Ms Hodgson noted the applicant’s progress has been slow given she tends to attend for counselling when exposed to triggers and she recommends the applicant engage in therapeutic interventions on an ongoing basis. She recommended the applicant would also benefit from seeing a psychiatrist for a more comprehensive assessment and diagnosis and potentially medication to assist in improving her capacity to make significant progress. Ms Hodgson will continue to work with the applicant to address her trauma, symptoms of depression, anxiety and stress, and symptoms of post-traumatic stress disorder.
Financial circumstances
50The respondent did not participate in this proceeding, and I note the respondent is now aged 83 years old.
51At his age I expect his earning capacity would be negligible, however I note in the applicant’s victim impact statement she noted about the respondent, “He is so healthy and fit, driving around the community…He still works, he still has his freedom, I don’t have mine”.
52The respondent owns his own home where he lives at Hornsby Park, Mildura. A title search exhibited to the affidavit of solicitor Liat Blacher of Rubicon Compensation Lawyers dated 16 May 2023,[20] reveals the respondent to be the registered proprietor of the property, and the property to be subject to a caveat to Victoria Legal Aid. Counsel’s evidence from the bar table was to the effect a Domain Property search showed the property to be worth approximately $255,000.
[20]Exhibit A-4
53In supplementary submissions dated 25 May 2023 tendered by the applicant’s counsel,[21] it was submitted “evidence has been obtained that the respondent owns his own home, the value of which is in the vicinity of $244,000”.[22]
[21]Exhibit A-3
[22] Exhibit A-3
54The applicant has received an award of assistance from VOCAT comprising special financial assistance of $7,500, counselling costs of $3,490 and solicitor costs of $450, totalling $11,440.[23]
[23]Exhibit A-3
Assessment
55The applicant’s psychological injury has been set out in Ms Hodgson’s report and the grief, distress, trauma and other significant adverse effects have been set out in detail in the applicant’s affidavit and victim impact statement.[24]
[24] Exhibit A-1 and A-5
56Ms Hodgson reports the applicant has been formally diagnosed with an Adjustment Disorder by her general practitioner. Further, Ms Hodgson attests she experiences five symptoms (detailed above) consistent with Post-Traumatic Stress Disorder. In addition, Ms Hodgson states the applicant has symptoms consistent with severe depression, severe anxiety, and severe stress.
57Ms Hodgson reports the applicant is hypervigilant and has panic attacks and displays high levels of avoidance. The symptoms impact her ability to go outside the house on her own and she remains anxious and vigilant about seeing the respondent. The symptoms impact upon her role as a mother to her children and her relationship with her partner.
58Ms Hodgson’s recommendation for future treatment is for regular counselling and referral to a psychiatrist.
59I note the applicant was a child between the ages of 8 and 10 when she was assaulted by the respondent. The applicant feels her childhood was taken from her and her relationships, including her relationship with her mother was impacted, as the respondent was her mother’s friend. She describes being haunted by the abuse and that she felt scared during her childhood, knowing that something was wrong that she did not feel she could confide in anyone until much later in life.
60To her immense credit, the applicant has succeeded in life and is an intelligent hard-working person. She has a partner and two young children. In her victim impact statement she stated:
“I have really pushed myself so I’m not in the same situation as I went through. I work full-time, own a house, send my child to a good school. I am giving them opportunities that I never had.”[25]
[25] Exhibit A-1
61She is qualified in aged care and has worked full-time since 2015 as a personal care worker. She is currently working in retail as well as casually in the aged care industry.
62The criminal court process was traumatic for the applicant as she stated she had blocked the abuse from her memory for a long time and since the case against the respondent in 2021, she stated, “it feels like it’s constantly with me”.
63Section 85B(2) provides a compensation order may be made up of amounts for pain and suffering, expenses for reasonable counselling services, medical expenses and other expenses actually and reasonably incurred or likely to be incurred, all of which must be as a direct result of the offence.
64Counsel for the applicant submitted the applicant is eligible to receive compensation for her pain and suffering she has and continues to experience. During oral submissions, Counsel stated the medical treatment expenses are covered by VOCAT and as such the applicant does not seek to pursue her claim for medical treatment costs. Later in submissions, Counsel further stated the counselling costs are ongoing and therefore the applicant does not seek those costs.
65In counsel’s written submissions dated 14 March 2023,[26] $40,000 was suggested as appropriate amount of compensation. At the hearing, Counsel submitted the amount of $150,000, was an appropriate award of compensation, and “the claim should be assessed with reference to the applicant’s psychiatric injury, and without any discount for the Respondent’s financial position where he owns an asset to the value of approximately $244,000.” Counsel referred to the case of Marks & Ors v Bolton (a pseudonym) [2022] VCC 565 where the applicants (mother and her two daughters) were awarded $190,000, $140,000 and $115,000 respectively. I note in that case the respondent was the father and grandfather of the applicants and the offending was of incest of a penetrative nature, in one of the cases, over a number of years. I was also referred to DP (a pseudonym) v Bird [2021] VSC 850 where the plaintiff was awarded $230,000. That was a civil case whereby the plaintiff sued the Catholic Diocese of Ballarat through the current Bishop as vicariously liable for the actions of a Catholic priest, Father Bryan Coffey. An award for damages was made of $200,000 for pain and suffering and $10,000 for medical and like expenses, and $20,000 for aggravated damages. I was also referred by counsel to Lonergan v Trustees of the Sisters of Saint Joseph & Anor [2021] VSC 651, where the plaintiff was awarded $250,000 in general damages for sexual abuse by a priest.
[26] Exhibit A-3
66I have had regard to awards of compensation made in other cases including AA (a pseudonym) v Cooper,[27] Jackson (a pseudonym) v Tetley,[28] Peterson v Peterson (a pseudonym),[29] and V3 (a pseudonym) v Hewitt (a pseudonym),[30] for some guidance for compensation awarded for injury as a result of sexual offending.
[27] [2015] VCC 185 per Judge O’Neill
[28] [2020] VCC 799 per Judge Carmody
[29] [2021] VCC 434 per Judge Misso
[30] [2020] VCC 280 per Judge Carmody
67Each case must be determined on its own facts and circumstances and I take into account Her Honour Warren CJ:
“…comparisons between compensation awards under the Act and other legislation, or damages at common law, may not be useful due to the difficulty identifying with any precision the various considerations and weight attributed to them, and the differing awards and factual circumstances between cases. In addition, the number of offences is not of itself pertinent, rather it is their effect on the victim that is relevant. This reflects the principle that the compensation is not intended to reflect the respondent’s criminal liability, rather it is directed to compensating the victim for the effects of the offences.”[31]
[31] V1 & Ors v Xydias [2009] VSC 616 at paragraph [9]
68I have a discretion pursuant to section 85H of the Act if I decide to make a compensation order, to consider the financial circumstances of the respondent. I take into account the respondent’s financial circumstances to the extent possible given his non-participation in the proceeding. Information about his financial circumstances has been gleaned from the reasons for sentence and the title search. The applicant referred to the respondent as still working, but there are no details about this.
69In taking into account his financial circumstances, I also take into account the nature of the burden payment will impose. An order for the respondent to pay compensation will impose a burden on the respondent, in the absence of any other information about his financial circumstances, he may be required to sell his property.
70Although I have not been able to get a complete accurate picture of the respondent’s financial circumstances, this does not preclude me from making an award of compensation in favour of the applicant.
Conclusions
71On the balance of probabilities, I am satisfied the applicant has suffered an injury as a direct result of the respondent’s offences. I only take into account those offences detailed in charges 13 and charges 14 as described by the sentencing judge. I accept the evidence in the applicant’s affidavit and exhibits.[32] The injury is psychological and falls within the definition of injury in section 85A of the Act as a mental disorder, as well as grief, distress, trauma and significant adverse effects.
[32]Exhibits A-1 to A-5
72The applicant has been diagnosed by her general practitioner with Adjustment Disorder, and her counsellor states she has symptoms consistent with Post Traumatic Stress Disorder, and she had testing which showed symptoms consistent with severe depression, severe anxiety and severe stress.
73I accept the offending divided her family, her mother was not supportive, and the applicant is tormented by childhood memories. Now a mother herself, she is hypervigilant with her own children, has difficulties trusting people and has difficulties with intimacy with her partner. Further, because the respondent lives in Mildura, the plaintiff limits her social interactions to avoid encountering the respondent.
74Whilst the offending perpetrated by the respondent was serious and its effect on the applicant is significant, it is not at the worst end of the spectrum. However, the applicant was a young child at the time of the offending, and the respondent was in a position of trust as a family friend and his offending conduct was an egregious breach of that trust.
75I take into account the respondent’s financial circumstances to the extent I am able. I note the applicant’s compensation is for suffering an injury as a direct result of the offence and is not to be more generous than otherwise is the case simply because the respondent has assets. Common law principles apply to the assessment of damages and the object is to compensate the plaintiff for damage and not penalise the respondent. I do not reduce the amount I award to the applicant on the basis of the information about the respondent’s financial circumstances.
76In making my assessment for compensation for the applicant’s injury, I take into account all of the matters referred to in these reasons. I have taken into account that despite the offending having had considerable impact, the applicant has managed to work full time and has two young children and a partner. This work ethic and resilience does not mean she has not suffered greatly as a result of the respondent’s offending.
77In assessing quantum of the entitlement to compensation I intuitively synthesise all of the material circumstances of the case. Compensation for pain and suffering is for the applicant’s pain, suffering and loss of enjoyment of life. I make an award of compensation for pain and suffering for the applicant of $75,000. I reduce that amount by $7,500, being the special financial assistance component of the VOCAT award.
78Pursuant to section 85B(1) of the Act, I order the respondent pay compensation in the sum of $67,500.
Costs
79The applicant’s counsel made a submission for costs on the following basis:
(a) The respondent had ignored the application necessitating multiple court appearances and attempts of service;
(b) The applicant needed to be legally represented given her fear of the respondent; and
(c) Given her psychiatric injury, she required legal representation to obtain medical, legal and VOCAT material for the application.[33]
[33] Applicant’s submissions dated 14 March 2023
80Section 85K of the Act provides each party must bear their own costs unless the court otherwise determines.
81In the case of AA (a pseudonym) v Cooper (Ruling),[34] Judge O’Neill considered section 85K of the Act and canvassed the various authorities.
[34][2015] VCC 233
82In summary, Judge O’Neill identified the following factors (which Judge Magee referred to in Shelton v Shelton[35], and I adopt in this case):
“(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category.
(b) Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded.
(c)Circumstances which may justify the award of costs include the following:
(i) the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;
(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;
(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;
(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”[36]
[35] [2023] VCC 801
[36]AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233 at paragraph [17]
83In this case the respondent did not engage with the court process. He is entitled to do that. The respondent did not have an email address, which is not surprising given his age, and this made communication with him more difficult. There were five directions hearings, none of which he attended. The applicant and the Court made numerous attempts to locate and communicate with the respondent. This is reflected in the orders made by Judicial Registrar Bales at Directions Hearings on 14 July 2022, 8 September 2022, 30 September 2022, 8 December 2022 and 14 April 2023.
84On 23 May 2023, the applicant’s solicitors by email advised the Court[37] that they attempted to serve the applicant’s affidavit on the respondent via registered post, and Australia Post advised them on 18 May 2023 that the correspondence could not be delivered at Hornsey Park, Mildura as the respondent was no longer living at that address. The correspondence was returned to sender and the applicant’s solicitors sought guidance from the Court. The parties were advised on 6 June 2023 to engage a process server to serve the documents (such as the Amended Court Book).
85The respondent, on 2 June 2023 was personally served with the applicant’s affidavit affirmed on 15 May 2023, and he was personally served with the Amended Court Book and other materials to be relied upon at the final hearing on 7 June 2023. The respondent was personally served at his address at Hornsey Park, Mildura, indicating he was still residing at that address.
86This chronology supports Counsel’s submissions that the respondent ignored the application necessitating multiple court appearances and attempts at service. However, I am not satisfied the evidence is sufficient to find the respondent intentionally engaged in a manner designed to frustrate the court process. I am not of the view a departure from section 85K, that states in clear terms each party ‘must’ bear their own costs of the proceeding ‘unless the Court otherwise determines,’ is warranted. This case was not complex. There was no cross-examination of witnesses.
87I refuse the application for costs.
Orders
88In summary, I award the applicant the following:
(a) $67,500 for pain and suffering after the deduction of the VOCAT award.
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