In the matter of an application by Julian Knight under the Criminal Injuries Compensation Act 1983 (ACT)
[2014] ACTSC 337
•19 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application by Julian Knight under the Criminal Injuries Compensation Act 1983 (ACT) |
Citation: | [2014] ACTSC 337 |
Hearing Date(s): | 19 September 2014 (Final submissions received 10 November 2014) |
DecisionDate: | 19 December 2014 |
Before: | Mossop M |
Decision: | The proceedings are dismissed with no order as to costs. |
Category: | Interlocutory application |
Catchwords: | JURISDICTION OF COURTS – criminal injuries compensation – whether an application for compensation or an application to extend time to make such an application can only be heard in the Magistrates Court – transitional provisions in Victims of Crime (Financial Assistance) Amendment Act 1999 (ACT) - meaning of “undetermined application” – Criminal Injuries Compensation Act 1983 (ACT) - Victims of Crime (Financial Assistance) Act 1983 (ACT) CONSTITUTIONAL LAW – TERRITORIES – acquisition of property on just terms – whether entitlement to make application for criminal injuries compensation is property – Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(a) STATUTES – Operation and effect of statutes – whether the amendment of the Criminal Injuries Compensation Act 1983 (ACT) affected a right, privilege or liability acquired, accrued or incurred under that Act to make an application – whether contrary intention demonstrated |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23 Criminal Injuries Compensation Act 1983 (ACT) ss 2, 10, 11, 28 |
Cases Cited: | Abbott v Minister for Lands [1895] AC 425 Attorney-General v Chaffey (2007) 231 CLR 651 |
Texts Cited: | Starke, Assignments of Choses in Action in Australia (Butterworths, 1972) |
Parties: | Julian Knight (Applicant) Australian Capital Territory (Respondent) |
Representation: | Counsel: Self-represented (Applicant) Mr G McCarthy (Respondent) |
| Solicitors: Self-represented (Applicant) ACT Government Solicitor (Respondent) | |
File Number(s): | SC 262 of 2014 |
By application dated 10 June 2014, Julian Knight has sought compensation under the Criminal Injuries Compensation Act 1983 (ACT) in relation to injuries alleged to have been suffered when:
(a)in February 1987, he was punched twice in the stomach by a senior Staff Cadet during an exercise known as “leaps and jumps” at the Royal Military College, Duntroon and suffered bruising;
(b)on 17 March 1987, he was assaulted by a number of senior Staff Cadets at the Royal Military College, Duntroon during an instance of what is described as “bishing” and suffered damaged ligaments in his left wrist;
(c)on 31 May 1987 he was assaulted by a number of senior Staff Cadets at a venue known as the “Private Bin Nightclub” in Civic and suffered a broken nose.
Further, by application in proceeding filed 10 June 2014, Mr Knight has sought an order that he be granted an extension of time within which to lodge his criminal injuries compensation application.
The proceedings were docketed to me by the Deputy Registrar on 20 June 2014.
By application in proceeding filed 12 August 2014, the Australian Capital Territory seeks an order that the proceedings be dismissed for want of jurisdiction.
The Criminal Injuries Compensation Ordinance 1983 (ACT) came into effect on 30 June 1983. Upon self-government it became an Act: Australian Capital Territory (Self-Government) Act 1988 (Cth) (“Self-Government Act”) s 34. I will refer to it as the ‘CIC Act’. The Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) substantially amended the CIC Act and also changed its name to the Victims of Crime (Financial Assistance) Act 1983 (ACT). I will refer to the Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) as the ‘Amending Act’. I will refer to the Act post-1999 as the ‘VOC Act’.
The VOC Act gives jurisdiction to the Magistrates Court to deal with applications for compensation under the Act: s 26. The CIC Act gave jurisdiction to the Supreme Court, the Magistrates Court or the Registrar of the Supreme Court to determine applications under the Act. In the circumstances of this case, namely, where no proceedings were instituted in relation to the relevant offences, the CIC Act gave power to the Registrar of the Supreme Court to determine the application. The Territory contends that the VOC Act applies and hence only the Magistrates Court could have jurisdiction to consider an application by Mr Knight.
Facts
The affidavit read in support of the Territory’s application to have the proceedings dismissed discloses the following facts.
Mr Knight filed an application under the VOC Act in the ACT Magistrates Court seeking leave to extend the time for filing an application for assistance.
That application was made returnable on 27 May 2014.
On 27 May 2014, a solicitor employed by the ACT Government Solicitor wrote to Mr Knight referring to discussions that occurred during the Magistrates Court hearing on 27 May 2014 and attaching copies of the CIC Act and Amending Act. The letter provided:
As at 1987, when you allege the criminal acts for which you seek compensation occurred, the relevant Act under which you should bring your application was the CIC Act.
This Act was amended by the VOC Amendment Act in December 1999.
However the decision in Pinter v ACT [2002] FCAFC 186 (“Pinter”) overruled those amendments contained in the VOC Act which sought to impose the regime and entitlements which accrue under the VOC Act upon applications:
which had been commenced after 23 June 1998;
with respect to events which had occurred prior to that date.
I understand you are aware of that decision.
Section 16(1) of the VOC Amendment Act provides that the CIC Act continues to apply in relation to such applications.
The CIC Act at sub-section 11(3) provides that applications under the CIC Act are to be determined by the Registrar of the Supreme Court where, in respect of the relevant offence said to give rise to the injury for which compensation is claimed, no indictment has been presented or information laid.
It is clear that the alleged offences for which you seek compensation were never the subject of an indictment or information.
Thus the Registrar of the Supreme Court is the person with the power to determine your application.
Please let me [and] the court know at your earliest convenience whether you intend to withdraw your application and, if you so desire, reissue same out of the Supreme Court.
On 17 June 2014 the solicitor from the ACT Government Solicitor wrote again to Mr Knight referring to discussions apparently occurring on 17 June 2014 during a hearing before the ACT Magistrates Court. At that stage, the Supreme Court proceedings had been filed but not served. The letter said:
In an earlier hearing I had submitted that the proper venue for your application was in the Supreme Court having regard to the provisions of the Criminal Injuries Compensation Act 1983 as it stood in 1987.
This view is not without doubt as that Act has been significantly amended on a number of occasions.
It might be preferable, prior to you withdrawing your application to the Magistrates Court, if the Supreme Court were to rule as to what is the correct venue. That way if the Supreme Court rules it is the correct venue then your application to the Magistrates Court can be withdrawn. On the other hand if the Supreme Court were to rule that the Magistrates Court is the correct venue then you could pursue that application.
Please let me know if you agree with this approach.
By 30 July 2014 a different solicitor had taken over carriage of the matter at the ACT Government Solicitor and wrote to Mr Knight on that day including the following:
The Territory has reconsidered the effect of the amendments to the Criminal Injuries Compensation Act 1983 introduced by the Victims of Crime (Financial Assistance) Amendment Act 1983 (the Amending Act) and contrary to the view expressed in our letter dated 27 May 2014, our position is that the transitional provisions of the Amending Act mean that the Magistrates Court has exclusive original jurisdiction in relation to your application. As a consequence, it is our view that the Magistrates Court is the correct venue for the determination of your application for an extension of time.
If you agree with this approach, you can discontinue your Supreme Court proceedings by filing a notice of discontinuance (Form 2.37) in the Supreme Court (enclosed) under rule 1160 of the Court Procedures Rules 2006 (ACT). I note that your application is listed in the Magistrates Court on 26 August 2014 for mention at 10 am. On that occasion, the Territory will seek a hearing date for your application to extend time to be heard.
It is incumbent upon you, as the applicant, to decide which Court to pursue your application. For the reasons outlined above, if you press your application in the Supreme Court, the Territory will oppose your application on the basis that the Supreme Court has no jurisdiction. Please advise me of your intention in this regard.
On 7 August 2014 Mr Knight responded saying
In relation to your view that the matter of In the matter of Julian Knight (ACT Case No SC 262 of 2014) should be heard in the Magistrates Court, I believe that now that the application is listed for hearing in the Supreme Court it should remain there.
Submissions
The Territory’s position is that the VOC Act applies and that neither the relevant transitional provision in the Amending Act (s 16) nor any other provision preserves Mr Knight’s entitlement to make an application under the CIC Act. The Territory submitted that s 16 of the Amending Act provided that the CIC Act was to continue to apply to “undetermined applications” lodged after 23 June 1998.
Section 16(1) provided that the CIC Act “continues to apply in relation to an undetermined application for compensation made after 23 June 1998 as if the amendments to the [CIC Act] effected by the [Amending Act] had not been made”. That was subject to the terms of s 16(2) which precluded the award of compensation for pain and suffering in relation to an “undetermined application”.
The Territory pointed to the definition of “undetermined application” and submitted that because Mr Knight’s application was not in existence at the time that the Amending Act commenced it was not an “undetermined application” and therefore s 16 did not apply to it. As a consequence, the Territory submitted that the VOC Act as it currently stands applies to his application and, accordingly, the Magistrates Court has exclusive original jurisdiction as a result of s 26 of the VOC Act. The Territory submitted that the decision in Australian Capital Territory v Pinter (2002) 121 FCR 509 (“Pinter”) did not affect the present question.
Mr Knight submitted that his application was to be compensated for “pain or suffering” pursuant to s 6(1)(c) of the CIC Act as in effect at the relevant time. He submitted that the requirements of the CIC Act were satisfied but recognised that the Registrar had a discretion under s 20 not to make an award with respect to the two incidents that were not reported to the police: see also Australian Capital Territory v Bullock [1995] ACTSC 63.
He submitted that the reference to “undetermined application for compensation” in the Amending Act should be read as including applications not yet lodged at the time the Amending Act commenced. He noted that the heading of s 16 of the Amending Act reads, “Undetermined applications - proceedings instituted after 23 June 1998”. He further pointed to the terms of the explanatory memorandum for the Bill which became the Amending Act and quoted from the statement in the memorandum that, “the existing legislation will also apply to undetermined applications made after 23 June 1998” (page 3) and that “the Compensation Act continues to apply to undetermined applications that were made after 23 June 1998” (page 30).
As to the decision in Pinter, Mr Knight submitted that it is relevant to the question whether the applicant is still entitled to claim compensation for “pain and suffering”. He said that the Full Court of the Federal Court held that the provisions in s 16(2) of the Amending Act relating to “compensation for pain and suffering” were invalid. He said: “it is plain from that decision that given the events the subject of the applicant’s application occurred in 1987 the applicant is still entitled to claim compensation for “pain and suffering”.” He also pointed out the comments of Black CJ and Higgins J as to the inadequacy of the common law with respect to criminal injury claims and the fact that applications for criminal injuries compensation should be determined according to common law principles. In that regard he also referred to the decision of Higgins J in Bullock.
The submissions of the applicant go on to make submissions in support of his application for an extension of time but it is not necessary to detail those submissions as I am presently only dealing with the threshold question of jurisdiction.
At the hearing on 19 September 2014 I directed that the parties provide further written submissions addressing particular issues arising out of the decision in Pinter.
Consideration
Under s 10 of the CIC Act an application is lodged with the Registrar. The Act then allocates responsibility for determining the application depending upon whether or not criminal proceedings have been instituted in relation to the criminal offences in either the Supreme Court or the Magistrates Court. The Supreme Court has jurisdiction to determine an application if criminal proceedings have been instituted in that court or a person has been committed for trial or sentence in the court: s 11(1). The Magistrates Court has jurisdiction to determine an application where summary proceedings were instituted in the Court or where committal proceedings have been completed and the person was not committed for trial or sentence in the Supreme Court: s 11(2). Under s 11(3) the Registrar of the Supreme Court has power to determine an application in respect of a prescribed injury where criminal proceedings have not been instituted in respect of the relevant offence. That is the situation that applies in the present case because criminal proceedings were not instituted. Where the Registrar is required to determine an application the Registrar is obliged to hold “an inquiry in relation to the application”: s 21. In Commonwealth v Pillifieant (1990) 93 ALR 641 at [28] a Full Court of the Federal Court held, when considering the scope of the appeal provided by s 28 of the CIC Act, that the power of the Registrar under s 11(3) was a power conferred on an officer of a superior court of record as persona designata.
The power to extend time in s 10(3) is given to the “court”. The word “court” is defined in s 2 so as to pick up the same allocation of responsibilities between the Supreme Court, Magistrates Court and the Registrar of the Supreme Court as applies in relation to the substantive determination of the application. As a consequence, in a case where criminal proceedings were not commenced, the power to extend time in s 10(3) is required to be exercised by the Registrar of the Supreme Court. Thus, if the CIC Act was applicable, the question of an extension of time and any subsequent substantive determination would be required to be made by the Registrar. The decision of the Registrar would then be open to an appeal to the Supreme Court under s 28 of the CIC Act.
For these reasons, even if the CIC Act continued to apply to Mr Knight’s application, the Supreme Court constituted by either a single judge or by the Master would not have jurisdiction to determine the extension of time application or the substantive application for compensation if an extension was granted. For this reason alone the Court as such has no jurisdiction.
However, having regard to the fact that the parties did not address this issue in their submissions and put their arguments on the basis that the issue was a broader one as to the relevant legislation to be applied, I will address that issue so as to resolve whether or not the Registrar of the Supreme Court may determine Mr Knight’s application or whether any application must be determined by the Magistrates Court. That broader issue can be resolved by asking the following questions:
(a)does the VOC Act on its face cover the circumstances of Mr Knight’s application?
(b)do the transitional provisions incorporated in the Amending Act mean that the CIC Act still applies to Mr Knight’s application?
(c)do the provisions of the Interpretation Act 1967 (ACT) mean that the CIC Act still applies to Mr Knight’s application?
(d)does the decision in Pinter mean that the CIC Act continues to apply to Mr Knight’s application?
I will address each of those issues in turn below.
Does the VOC Act apply on its face?
The application for compensation was made on 10 June 2014. As at that date, the legislation in force was the VOC Act. The relevant republication was No. 40 with effect from 5 June 2012. Section 10(1) of the VOC Act provided that the Magistrates Court may, on an application by “a primary victim who has sustained criminal injury,” award financial assistance to the victim being the sum of certain amounts which are described in paragraphs (a) through to (f) of that section.
A “criminal injury” is defined in s 4(1) of the VOC Act as follows:
(1)A criminal injury is an injury—
(a)because of which the person who has sustained the injury is a primary victim; and
(b)sustained in the ACT; and
(c)sustained after 30 June 1983.
This definition requires that:
(a)there be an injury;
(b)the injury be sustained by a primary victim;
(c)the injury be sustained in the Australian Capital Territory; and
(d)the injury be sustained after 30 June 1983.
For the reasons that follow, based on the allegations set out in the application, each of these elements is satisfied.
“Injury”: Injury is defined in the Dictionary to the Act as:
injury means a physical or mental injury, and includes—
(a) mental shock or nervous shock; and
...
(c) the aggravation, acceleration or recurrence of any physical or mental injury;
...
The definition is clearly not exclusive. Bruising, damaged ligaments and a broken nose are all injuries within the ordinary meaning of that word. Therefore that element of the definition of “criminal injury” is satisfied by the allegations made.
“Primary victim”: A “primary victim” is defined, relevantly, in s 9(1):
A primary victim is a person who is injured as a direct result of—
(a) a violent crime committed against him or her; ...
A “violent crime” is defined in s 3 as including contraventions of ss 26 and 24 of the Crimes Act 1900 (ACT), namely offences of common assault and assault occasioning actual bodily harm. The assaults alleged by Mr Knight are assaults within the scope of the concept of “violent crime”, making him a primary victim for the purposes of s 4(1)(a).
Australian Capital Territory: The injuries are alleged to have been suffered in the Australian Capital Territory and hence s 4(1)(b) is satisfied.
After 30 June 1983: The injuries are alleged to have been sustained after 30 June 1983 and hence s 4(1)(c) is satisfied.
As a consequence, the claims sought to be made by Mr Knight are, on the basis of the matters that he has alleged in his application, matters within the scope of the VOC Act.
Section 26 of the VOC Act gives jurisdiction to the Magistrates Court to decide an application for financial assistance under the Act. No jurisdiction is given by the statute to the Supreme Court to deal with an application for financial assistance under the Act. The general jurisdiction of the Supreme Court under s 20(1) of the Supreme Court Act 1933 (ACT) does not extend to deciding applications that may be made pursuant to a statute where that statute gives jurisdiction to a different body to determine the application and not to the Supreme Court: cf s 20(2) .
Do the transitional provisions in the Amending Act mean that the CIC Act still applies?
I do not accept Mr Knight’s submission that the transitional provision in s 16 of the Amending Act means that his application is to be determined by reference to the CIC Act rather than the VOC Act. The definition of “undetermined application for compensation” in the Amending Act is:
“undetermined application for compensation” means an application for compensation under the Compensation Act where, immediately before the commencement day—
(a)no award had been made in relation to the application;
(b)an interim award had been made in relation to the application, but no final award had been made; or
(c)if a final award had been made—
(i) an appeal in relation to the final award had been made but not finally disposed of; or
(ii) the period for making any such appeal had not expired.
It is clear from that definition that in order to be an “undetermined application for compensation” there must in fact have been an application for compensation under the CIC Act on foot immediately before the commencement day, which was 24 December 1999. The transitional provision speaks at the time of the Amending Act and hence when the definition refers to “an application” it means one in existence “immediately before the commencement date”. For an application to exist, s 10 of the CIC Act required that it be made in writing, in accordance with the form set out in the Schedule to the CIC Act and lodged with the Registrar of the Supreme Court. Therefore, the terms of the Amending Act itself did not mean that the CIC Act continued to apply to Mr Knight’s application notwithstanding the enactment of the Amending Act.
As a consequence, s 16 of the Amending Act does not give power to the Registrar of the Supreme Court to decide an application for an extension of time or the substantive application for compensation.
Does the Interpretation Act 1967 (ACT) mean that the CIC Act still applies?
The position is not altered as a result of the operation of the Interpretation Act 1967 as in force immediately prior to the Amending Act taking effect.
As at 24 December 1999, the Interpretation Act 1967 (ACT) provided:
41Saving of operation of repealed Acts etc
(1) The repeal or amendment of an Act does not—
…
(c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or
…
(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability, penalty or forfeiture mentioned in paragraph (c) or (d).
(2) The investigation, proceeding or remedy may be begun, continued or completed, and the right, privilege, liability or forfeiture may be enforced and the penalty imposed, as if the repeal or amendment had not happened.
Section 3 of the Act also provided:
This Act applies to an Act except so far as the contrary intention appears in this Act or the Act concerned.
In circumstances where no immediate right was created upon the occurrence of an injury and no application under the statute had been made, “the mere right… existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “rights accrued” within the meaning of the enactment”: Abbott v Minister for Lands [1895] AC 425 at 431. See also Colley v Futurebrand FHA Pty Ltd & Anor (2005) 63 NSWLR 291 at [30]-[33]. Therefore s 41(1) would not preserve Mr Knight’s entitlement to make an application for compensation under the CIC Act.
In any event, the prima facie the rule in s 41 was subject to any contrary intention. In my view, the Amending Act clearly expressed a contrary intention by making clear in s 4 that the amended regime applied to injuries sustained after 30 June 1983 and by containing limited transitional provisions that:
(a)saved the operation of the CIC Act only where an application for compensation had been made before 23 June 1998 (s 15); and
(b)provided only limited saving of “undetermined applications” for compensation made after 23 June 1998 but prior to commencement of the Amending Act (s 16).
That conclusion is consistent with the remarks of Crispin J in Frank v Australian Capital Territory (2001) 146 ACTR 15 at [67] (although his Honour’s reference to s 38 of the Interpretation Act 1967 should probably have been to s 41).
As a consequence, the existence of an entitlement to make an application under the CIC Act prior to the Amending Act does not mean that Mr Knight is presently entitled to rely upon the terms of that the Act rather than the current version of the VOC Act.
Does the decision in Pinter mean that the CIC Act still applies?
Pinter related to the extinguishment of any entitlement to seek compensation for pain and suffering effected by s 16(2) of the Amending Act. A majority of a five member Full Court of the Federal Court found that s 16(2) of the Amending Act was invalid in its application to the claimants because the limitation in that section which prevented an award of damages for pain and suffering amounted to an acquisition of property contrary to s 23(1)(a) of the Self-Government Act. Black CJ, Spender and Higgins JJ were in the majority. Finn and Dowsett JJ were in the minority. The appeal was an appeal from a Full Court of the Supreme Court (Frank v Australian Capital Territory (2001) 146 ACTR 15) in which a majority (Miles CJ and Gray J) had reached the same conclusion, Crispin J had dissented.
The decision in Pinter involved a limited category of cases which were caught by the operation of s 16(2), namely, those where an application for compensation had been made after 23 June 1998. The property said to be acquired was characterised by the Full Court of the Supreme Court and by Black CJ, one of the majority judges in the Full Federal Court, as a “right to have the application for an award of compensation, including [a component for pain and suffering], heard and determined” or “a right to have a decision made on the application for such an award”: Frank at [27]; Pinter at [13]. Finn J, one of the two dissenting judges in the Federal Court, recognised that the nature of the right acquired could be characterised in the way that the majority in the ACT Supreme Court and Black CJ did or, alternatively, as “a right to be paid compensation (albeit in an amount to be fixed)”: Pinter at [245]. That is the way the compensation claimants articulated their property rights in the Full Court of the Supreme Court: [245]. Before the Federal Court the claimants submitted that “once an application for compensation was filed there was a present entitlement to compensation for pain and suffering such as to constitute a chose in action”: see Pinter at [22] (my emphasis).
The decision of the majority of the Full Federal Court was clearly limited to the circumstances where an application for compensation had been filed between 23 June 1998 and 24 December 1999. However, the reasoning of the majority, if it is correct, could apply equally to entitlements to compensation which had arisen by reason of the circumstances having occurred prior to 24 December 1999 but where no application for compensation had been made. Higgins J said (at [237]), “I appreciate that those who had a right to claim compensation but had yet to apply may, arguably, also have a right to claim by parity of reasoning but that does not fall for decision in these proceedings. I expressed no view as to that situation.”
Pinter could influence the jurisdictional question in the present case if (a) in relation to the issue identified but not addressed by Higgins J in Pinter, namely, the application of the reasoning in that case to cases where no application had been filed, the Court concluded that there was an acquisition of property other than on just terms, and (b) the whole of the Amending Act was found to be beyond power as a result and not able to be saved by the operation of s 11AA of the Interpretation Act 1967 (ACT). If that was the case then the provisions altering the forum for the determination of applications under the Act could be avoided.
I raised with the parties whether the ratio of Pinter compelled also the conclusion that there would be an acquisition of property even in Mr Knight’s circumstances where no application for compensation had been lodged at the date of the Amending Act. Both parties made written submissions on the issue.
The difference between the majority and the minority in Pinter turned upon the characterisation of the CIC Act. Was the law one which could escape the limitation in s 23(1)(a) of the Self-Government Act notwithstanding that the rights under the CIC Act could be characterised as property and the Amending Act appeared to effect an acquisition? The process was most clearly articulated in the dissenting decision of Finn J. His Honour identified two categories of law which would escape the operation of the prohibition: first, statutes which gave rights which were inherently defeasible and second, statutes which were otherwise of such a nature that the legislation effecting their modification or extinguishment could not be characterised as “a law with respect to the acquisition of property”: Pinter at [249]-[250]. His Honour recognised that these two categories overlapped significantly because the process of characterisation involved in the second category could lead to the conclusion that the statutory rights in question were inherently susceptible to variation even though the legislation creating the rights did not make this apparent on its face: [252].
Finn J characterised the Amending Act as a law falling within the second category, namely a law which could not properly be characterised as a law with respect the acquisition of property. He reached this conclusion because he characterised the criminal injuries compensation scheme as a government scheme to provide benefits of a welfare nature. The particular features which his Honour identified (at [253]-[264) were:
(a)the right was not given in substitution for a common law right;
(b)the scheme did not seek to derogate from common law rights;
(c)the rights created were subordinate to the right to pursue compensation from the offender and the capacity to make interim awards was suggestive of a welfare purpose in the scheme;
(d)the range of matters to which regard was required to be had in determining the amount of compensation and considering whether to vary the award by increasing or reducing the amount of compensation were suggestive of a scheme based not upon entitlement but upon need;
(e)the prohibition on assigning not only compensation payable but also compensation paid; and
(f)that the scheme involved gratuitous payments in the sense of payments not arising from any antecedent relationship.
The other minority judge, Justice Dowsett, agreed with the reasons of Finn J but added some additional reasons. Those reasons illustrated the point made by Finn J that the two categories that he identified which were excluded from the limitation in s 23(1)(a) overlapped. Dowsett J quoted extensively from the decision in Health Insurance Commission v Peverill (1994) 179 CLR 226. He said (at [274]) that the rationale for a payment of criminal injuries compensation was not that the government was in any way responsible for the criminal conduct in question but rather that the victim deserved assistance and that such assistance was unlikely to be otherwise forthcoming. He placed emphasis on the fact that the rights in the case were not based on any antecedent proprietary rights and were hence inherently susceptible of variation. His Honour thus reached the same conclusion as Finn J but relying upon the “inherently susceptible to variation” route rather than the “not a law with respect to the acquisition of property” route.
Black CJ said that it was not easy to see how the legislation could be said to be inherently defeasible. On the contrary, “it might be presumed that the legislation is intended to be in the nature of a permanent reform of the law and thus that the rights given under it are not inherently defeasible but that the continuing common law rights and the new rights given under the scheme are to walk hand in hand”: [62] He declined to place significance on the fact that the rights had no basis in the general law because “[the legislation’s] essence provides an effective practical remedy which the general law, operating in the same circumstances, may well be unable to provide.”
Spender J agreed with the reasons of Black CJ, making some additional observations which do not touch on the issue of characterisation with which I am now concerned.
The reasons of Higgins J (at [230]-[237]) addressed the question of defeasibility by making the following points:
(a)the nature of the right to compensation was the same in nature, subject to the some exclusionary provisions, as that which would have subsisted against the offender;
(b)the right to sue the offender arose from the common law;
(c)the CIC Act changed the identity of the person liable to pay compensation, the territory being a party of “additional resort”;
(d)the situation was not relevantly dissimilar from Jenkins v Territory Insurance Office (2001) 165 FLR 287; and
(e)the acquisition of property without just terms was not necessary for the achievement of the objective of the head of power nor a characteristic of legislation dealing with the subject matter of the scheme established by the Act.
As Finn J pointed out in his reasons (at [251]), an undertone in the characterisation cases is that the prohibition on acquisition without just terms should not to operate as an undue shackle on the legislature’s capacity to revisit and reform schemes involving the allocation of public resources for public purposes when the rights of a member of the community to participate in the allocation derived solely from the statute creating the scheme and is not itself a replacement for a common law right person would otherwise have possessed.
In my view the CIC Act was appropriately characterised as a welfare measure established by statute and inherently susceptible to variation. Notwithstanding that it gave an entitlement to bring proceedings and have them determined by the Supreme Court, the Magistrates Court or the Registrar, it was an entitlement which had no analogy at general law and did not arise out of any previous relationship between the Territory and the plaintiff. It was not given in substitution of any rights against the offender but rather as an additional social welfare measure. The fact that it was given to a court or an officer of a court rather than another entity was a matter of convenience rather than being an indicator of the nature of the entitlement which was created.
I respectfully confess that I do not find the reasoning of Black CJ or Higgins J as to the characterisation of the law to be persuasive. Notwithstanding Black CJ’s analysis of the provisions of the law, I do not consider that the nature of the reform made by the CIC Act was such that there could be any assumption about its permanency or stability or that the common law rights and the new rights created would continue “to walk hand in hand”. Similarly, in relation to the reference by Higgins J to Jenkins v Territory Insurance Office, that decision is, in my view, clearly distinguishable. In that case the law in question precluded the enforcement of a common law right to damages against the owner or driver of a motor vehicle and instead provided that the right was enforceable against the Territory Insurance Office. The issue in the case related to the subsequent statutory modification of the right that existed against the Territory Insurance Office after the cause of action had accrued. Riley J rejected the submission that the statutory modification involved the modification of an inherently defeasible statutory right. He found instead that the common law rights of the plaintiff had continued and hence that the right affected was property not inherently susceptible to variation. The CIC Act, on the other hand, did not interfere at all with any right against the offender but provided a supplementary scheme to permit awards of compensation to be made. The newly created statutory entitlement was not a surviving common law right nor a substitute for such a right. It appears to me that the decision in Jenkins is clearly distinguishable from the situation of the CIC Act and the Amending Act and does not assist in the characterisation process.
The Full Court of the Federal Court is no longer in the Territory’s appellate hierarchy. I am therefore technically not bound to follow that decision: see Laws of Australia at [25.4.160]. However, in my view I should generally follow a decision of the Full Court of the Federal Court on an appeal from the Territory. Frank v Australian Capital Territory (2001) 146 ACTR 15, which was affirmed by Pinter on appeal, was a decision of the Full Court of the Supreme Court. I consider that I should attempt to follow that decision even though the decision in Frank was most probably made in the original rather than appellate jurisdiction of the Court: Commonwealth v Pillifieant (1990) 93 ALR 641 at 653; Macteldir Pty Limited v Dimovski (2005) 226 ALR 773 at [7]; Ruhani v Director of Police (2005) 222 CLR 489, and not, in any event, strictly above the Master or a single judge in the appellate hierarchy.. Fortunately, because I have reached the conclusion that the circumstances in Pinter may appropriately be distinguished from those in the present case, I do not have to decide whether or in what circumstances I would depart from decisions of a Full Court of the Federal Court or of the Supreme Court which were not strictly binding upon me.
It is very clear that the ratio of Pinter is confined to the circumstances of persons who had made applications to the Registrar for compensation prior to the date of the Amending Act. Each of the applicants was in that position. None of the applicants was in a position analogous to the position of Mr Knight in the present case, namely, having been the subject of allegedly criminal conduct but not having made any application as at the date of the Amending Act.
As described at [49] above the judges in Pinter were dealing with the matter on the basis that property in question was a right that arose upon an application being made to enliven the statutory process and there was, at the least, an entitlement to have a determination made. It appears to me that that is the correct approach having regard to the terms of the Act. Sections 5 and 6 of the CIC Act do not, in their terms, create any right to compensation or any liability on the part of the Territory. They merely empower the making of an award by the “court” to the person in accordance with the statute. That contrasts, for example, with Attorney-General v Chaffey where the parties accepted that compensation rights accrued when the worker sustained injury: see (2007) 231 CLR 651 at [6]. Therefore, the mere existence of a statute allowing an application to be made did not create any liability in the Territory. Rather the provisions empowered the making of an application which could then lead to an award of compensation by the Supreme Court, the Registrar of the Supreme Court or the Magistrates Court. It was only upon the making of an award that any liability of the Territory arose: s 27. In the absence of an award, there was no “right to receive a payment of money”: cf Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480 at 509. There could not be even any expectancy until an application was made to the Registrar because the essential ingredient in generating that expectancy, an application to the Registrar, had not occurred: cf National Trustees Executors & Agency Co of Australasia Pty Ltd v Commissioner of Taxation (Cth) (1954) 91 CLR 540 at 557, 571. It is the making of the application that was relied upon by the majority judges in the Supreme Court to take the matter out of the category of “a power to take advantage of an enactment” and characterise it instead as a substantive right to have the application for an award of compensation heard and determined: Frank at [27]. Because of the absence of any statutory entitlement or liability existing in the absence of an application, the situation is different from the “cause of action cases” such as Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; Commonwealth v Mewett (1997) 191 CLR 471; and Smith v ANL Ltd (2000) 204 CLR 493. Further, it is different from the situation in Peverill where the claimant had already submitted claims to the Health Insurance Commission and argued that a chose in action in the nature of a specialty debt existed by reason of there being a debt owed to him under a statute: Peverill at 227, 231; Starke, Assignments of Choses in Action in Australia (Butterworths, 1972) at [112].
In those circumstances I find that the mere right to take advantage of the enactment is not a right which constitutes property for the purposes of s 23(1)(a). As a consequence, the decision in Pinter does not compel the conclusion that the provisions of the Amending Act which removed the plaintiff’s entitlement to compensation are invalid in their application to him. Therefore, there is no basis upon which the balance of the Amending Act, in particular those provisions which removed the jurisdiction of the Supreme Court and invested the jurisdiction wholly in the Magistrates Court could be found to be invalid.
Referral to a Full Court
In his written submissions Mr Knight submitted that I should refer the proceedings for determination to a Full Court of the Supreme Court. The power to refer a matter to a Full Court is stated in s 13 of the Supreme Court Act1933 to be exercisable by “a judge”. Anomalously, having regard to the jurisdiction now exercised by the Master, it is not a power available to the Master. Therefore it would be necessary to adopt the cumbersome process of referring the matter to a judge or having the matter re-docketed in order that a judge consider whether or not it was appropriate to refer the proceedings to a Full Court. By the time the submission was made I had already heard argument on the matter and in those circumstances there would have been a significant waste of time and resources involved in such a reference. For these reasons I decline to adopt the course suggested by Mr Knight.
Finally I note, parenthetically, that in future the utility of the power to refer matters to a Full Court may need to be considered. The utility of the process has been significantly eroded by the establishment of the Court of Appeal. Because the Full Court is no longer any part of the appellate hierarchy for a single judge or the Master, a determination by the Full Court does not create a rule which is, as a matter of precedent, binding upon a single judge or the Master although, obviously, it would remain of significant persuasive value.
Conclusion
In summary, I have found:
(a)the Supreme Court has no jurisdiction to determine Mr Knight’s application for compensation or his application for an extension of time; and
(b)the Registrar of the Supreme Court has no power to accept or determine Mr Knight’s application or his application for an extension of time.
Therefore, it is appropriate to dismiss the proceedings for want of jurisdiction.
In relation to costs, because of the contradictory indications given of the Territory’s position at the early stages of the proceedings, in my view it is appropriate that there be no order as to costs.
The orders of the Court are:
1. The proceedings are dismissed with no order as to costs.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 19 December 2014 |
15
6