In the Matter of Section 44 of the District Court Act 1991: Dragoljub Ubiparip v the State of South Australia and Willeym Vogrin No. 4233 Judgment No. SCGRG 93/950 Number of Pages 6 Criminal Law and Procedure - [1993] SASC 4233

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(2), MOHR(1) AND BOLLEN(3) JJ

CWDS
Criminal law and procedure - Special case referred to Full Court from District Court by section 44(2) of the District Court Act 1991 - Application for compensation pursuant to the Criminal Injuries Compensation Act 1978 - Second respondent offers notice disputing claim whereas first respondent files notice offering to consent to judgment - Applicant files notice of discontinuance against second respondent and notice of acceptance against first respondent - First respondent files withdrawal of its notice to consent due to there not being a valid offer and acceptance in accordance with provisions of section 7(7a) of the Criminal Injuries Compensation Act - Submission that all parties must consent to the making of an order for compensation, and that the notice of discontinuance by the applicant against the second respondent was invalid as the applicant was required to join the second respondent as a party.
Held: Application not discontinued against the first respondent or second respondent - the Court does not have the power to make an order for compensation nor does the Registrar have power to enter judgment against one respondent if the other respondent does not consent to the making of the offer - the filed offer to consent to judgment and filed notice of acceptance is not enforceable in the form of an offer to consent to judgment and acceptance thereof.

HRNG ADELAIDE, 11-12 August 1993 #DATE 28:10:1993
Counsel for appellant:             Mr T M McRae
Solicitors for appellant:         Reilly Basheer Downs
   and Humphries
Counsel for respondent SA:         Mr W P White
Solicitors for respondent SA:     Crown Solicitor
Counsel for respondent Vogrin:     Mr S J Kenny
Solicitors for respondent Vogrin: Camatta Lenpens Pty Ltd

ORDER
Questions answered.

JUDGE1 MOHR J On the 7th May 1990 the appellant issued an application for compensation in the District Criminal Court pursuant to the Criminal InjuriesCompensation Act 1978. 2. In the events which happened the learned Judge who finally dealt with the matter in the District Criminal Court stated a special case and referred it to this Court. The special case sets out the matter to be considered and reads:-
     "This matter arises out of an application for
    compensation under the Criminal Injuries Compensation Act,
    1978, (the Act) and the Rules of the District Court made
    thereunder. No evidence has been taken, however, the
    relevant facts, which are not disputed by the parties are as
    follows -
     1. The applicant alleges that he was the victim of an
    offence, namely an assault, committed by the second
    respondent at Cooper Pedy on 25th November, 1989 and that he
    suffered injuries as a consequence thereof.
     2. The applicant lodged an Application for Compensation
    date 7th May, 1991 in the District Court.
     3. The second respondent lodged a notice, dated 18th
    September, 1991 disputing the applicant's claim for
    compensation.
     4. On the 6th December, 1991 at a hearing…

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.

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Details

AGLC: In the Matter of Section 44 of the District Court Act 1991: Dragoljub Ubiparip v the State of South Australia and Willeym Vogrin No. 4233 Judgment No. SCGRG 93/950 Number of Pages 6 Criminal Law and Procedure [1993] SASC 4233
Case: [1993] SASC 4233
Decision Date: 28 October 1993

CaseChat Overview and Summary

In this case, Dragoljub Ubiparip, the applicant, filed an application for compensation in the District Criminal Court under the Criminal Injuries Compensation Act 1978. He claimed to be the victim of an assault by Willeym Vogrin and sought compensation for the injuries sustained. The State of South Australia was named as the first respondent, and Vogrin as the second respondent. The legal issues before the Full Court of the Supreme Court of South Australia concerned the validity of the applicant's purported discontinuance of proceedings against Vogrin, the enforceability of the Crown's offer to consent to judgment, and whether the Court had the power to make an order for compensation without the consent of all parties.

The Court held that the applicant's notice of discontinuance against Vogrin was invalid as it did not comply with the provisions of the Criminal Injuries Compensation Act 1978. Section 7(7a) of the Act stipulates that all parties to the proceedings must consent to the making of an order for compensation. The Court also found that the offer to consent to judgment and the applicant's acceptance of the offer were not enforceable, as Vogrin did not consent to the making of the offer. Consequently, the Court could not make an order for compensation, nor could the Registrar enter a consent judgment against the Crown. The Full Court agreed with the reasons provided by Mohr J and determined that the matter should proceed to trial in the normal way.

This decision highlights the importance of strict compliance with the statutory requirements for compensation claims under the Criminal Injuries Compensation Act 1978. It also emphasises the necessity of obtaining consent from all parties involved in the proceedings before a Court can make an order for compensation.

Orders