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 before a
    Stipendiary Magistrate sitting at Cooper Pedy, the second
    respondent was acquitted of the charge of assaulting the
    applicant.
     5. On 25th March 1993 and 8th April, 1993 the first
    respondent (the Crown), pursuant to Rule 40.01 of the
    District Court Rules, filed a notice offering to consent to
    judgment.
     6. On 16th April, 1993 the applicant filed a notice of
    acceptance of that offer.
     7. On 16th April 1993 the applicant filed a notice of
    discontinuance in respect of the second respondent.
     8. On 21st April 1993 the Crown filed a notice of
    withdrawal of the Offer to Consent to Judgment.
     9. The second respondent did not and does not consent to
    the making of any offer to the applicant.
     10. The Registrar of the District Court has refused to
    enter a consent judgment on the grounds that he has no power
    to do so in this application.
     11. On a summons for Directions herein, a declaration was
    made, on 6th May, 1993, declaring the notice of
    discontinuance void and listing the application for hearing.
     12. The application first came on for hearing before me
    on 11th May 1993 at which time the applicant submitted that
    the action had been settled pursuant to the Rules of the
    District Court by way of the filing of an offer by the Crown
    and the filing of a notice of acceptance of the offer. The
    applicant's counsel said that the applicant did not propose
    to proceed with the application against the second
    respondent, who had been released by filing a notice of
    discontinuance. He said the applicant would rely on the
    offer and acceptance by the Crown.
     13. The Crown submitted that there was no valid offer and
    acceptance in accordance with the provisions of the Act as
    the second respondent was not a consenting party thereto.
    The Crown submitted that pursuant to the provisions of
    s7(7a) of the Act all parties must consent to the making of
    an order for compensation and that the court has no power to
    make a consent order other than in accordance with the
    provisions of the Act. Further the Crown submitted that the
    notice of discontinuance was invalid as the applicant was
    required to join the second respondent as a party.
     I hereby reserve to the Full Court of the Supreme Court
under Section 44(2) of the District Court Act 1991, the
    following questions of law -
     1. Has the application for compensation been discontinued
    against -
     (a) the Crown
     (b) the second respondent
     2. In an application for compensation under the Act where
    the second respondent does not consent to the making of an
    offer does -
     (a) the Court have power to make an order for
    compensation;
     (b) the Registrar have power to enter judgment against the
    Crown; in terms of an offer by the Crown to consent to
    judgment and a notice of acceptance of the offer filed
    pursuant to the District Court Rules.
     3. Is the filed offer to consent to judgment and the
    filed notice of acceptance of the offer otherwise
    enforceable." 3. From the special case the following chronology appears.
     1. The applicant alleged he had been assaulted by the
    respondent Vogrin at Coober Pedy on 25th November 1989.
     2. He issued his application for compensation on 7th May
    1991 naming the State of South Australia as the first
    respondent and Vogrin as the second.
     3. On 18th September 1991 the second respondent disputed
    the appellant's claim on the grounds:-
     "1. That the second respondent is not liable to
    compensate the applicant.
     2. If the second respondent is liable to compensate the
    applicant (which is denied) the extent of such compensation
    is diminished by the applicant's conduct contributing to the
    offence alleged.
     3. The second respondent disputes the amount of the
    compensation claimed by the applicant."
     4. On 6th December 1991 the second respondent was
    acquitted of the charge of assaulting the applicant.
     5. On the 11th December 1992 the first respondent filed a
    defence to the applicant's claim on the following grounds:-
     "1. That there is insufficient evidence for the applicant
    to prove the commission of an offence beyond reasonable
    doubt and/or prove a causal connection between the
    commission of the offence and the alleged injury on the
    balance of probabilities.
     2. That there being no person convicted of the commission
    of the alleged offence, the plaintiff (sic) has no
    corroborative evidence to support his version of the facts
    in a material particular.
     3. The conduct of the plaintiff (sic) contributed,
    directly or indirectly to the commission of the offence or
    to the injury suffered by him.
     4. The plaintiff (sic) is not entitled to the relief
sought." 4. From that time onwards nothing happened in the proceedings until 25th March 1993 when the first respondent filed what purported to be an offer to consent to judgment for the sum of $13,000.00 plus costs. This offer was withdrawn by a further offer on 8th April which withdrew all earlier offers, (i.e. the offer of 25th March 1993) denied liability and offered $13,000.00 plus costs. 5. The applicant purported to accept this offer on 11th April 1993 and on the same day filed a notice of discontinuance against the second respondent. 6. The first respondent purported to withdraw its offer of 8th April 1993 by notice dated 20th April 1993. It is an agreed fact that the second respondent did not and never did consent to the making of any offer to the applicant. This brings into question s.7(7a) of the Act which reads:-
    "Where all the parties to proceedings upon an application
    under this section (other than a party in relation to whom
    the court has made an order dispensing with service of the
    application, or a party who, although having been served
    with the application, fails to appear at the hearing of the
    application) consent to the making of an order under this
    section, the court may, without further inquiry, make an
order on terms agreed by those parties." 7. The Registrar of the District Court refused to enter judgment in favour of the applicant in reliance on the applicant's purported acceptance of the first respondent's offer to consent and the applicant's filed acceptance thereof. He apparently acted on the grounds that as the second respondent had not been a party to the offer it did not comply with s.7(7a). 8. The next step was the first respondent's summons for directions issued on the 3rd May 1993. In that summons the first respondent sought:-
     1. General directions.
     2. That the first respondent's offer to consent to
    judgment filed on the 8th April 1993 be declared void and
    that the Court not enter judgment against the first
    respondent on the basis of the filed offer.
     3. That the Notice of Discontinuance filed by the
    applicant on the 16th April, 1993 purporting to discontinue
    the action against the second respondent be declared void.
     4. That the trial date should stand. On that summons
    according to paragraph 11 of the special case a declaration
    was made on 6th May declaring the notice of discontinuance
    void. I assume that the reference is to the notice of
    discontinuance against the second respondent. That would
    accord with paragraph 3 of the Summons for Directions. 9. The Summons for Directions eventually came on before the learned Judge who has stated the Special Case. 10. At that stage of the proceedings the purported discontinuance against the second respondent had been declared void, this despite what appears in paragraph 13 of the Special Case where the final sentence states: "Further the Crown submitted the notice of discontinuance was invalid as the applicant was required to join the second respondent as a party". 11. The first question in the Special Case is:- "1 Has the application for compensation been discontinued against:- (a) the Crown? (b) the second respondent?" 12. The answer to the first part of that question is simple. There is no suggestion that the application has ever been discontinued against the Crown unless one can regard the purported acceptance of the Crown's offer as a discontinuance. This will depend on whether the offer was capable of acceptance in the sense that the Court was empowered to act on both the offer and acceptance. I will expand on that question later but for the moment content myself with answering Question 1(a) "No". 13. As question 1(b) of the special case itself states that the purported discontinuance has been declared void the answer must be "No". 14. Question 2:-
"In an application for compensation under the Act where the second respondent does not consent to the making of an offer does (a) the Court have power to make an order for compensation (b) the Registrar have power to enter judgment against the Crown; in terms of an offer by the Crown to consent to judgment and notice of acceptance of the offer filed pursuant to the district Court Rules?" 15. In my opinion the terms of s.7(7a) (supra) are decisive and whatever may be the situation in jurisdiction other than the Criminal Injuries CompensationAct claims unless the offer comes within the terms of that subsection it is not a valid offer and cannot be accepted. The answer I would give would therefore be:- 2(a) "No". (b) "No". 16. Question 3:-
"Is the filed offer to consent to judgment and the filed notice of acceptance of the offer otherwise enforceable?" 17. In my opinion the answer to that question must be "Not in the form of an offer to consent to judgment and acceptance thereof". It may be as suggested in argument that some questions of contract and perhaps estoppel may arise but in my opinion this would be a matter for other proceedings and although of interest the problems associated with those propositions do not arise at this juncture. 18. The upshot of all of this is that the matter now stands reinstated and should proceed to trial in the normal way.

JUDGE2 KING CJ I agree with the answers proposed by Mohr J and in general his reasons therefor. 2. My only additional observation is that I would not base the answer to question 1(b) upon the declaration made on the Summons for Directions. I think that the question must be answered on its legal merits. 3. I would answer 1(b) in the negative because s.7(5) of the Act makes the offender a necessary party to the proceedings. He is made a party by force of the subsection itself. The claimant may bring the proceedings to an end by discontinuance but while the proceedings subsist both the Crown and the offender must be parties. The proceedings cannot, therefore, be discontinued against any one party. The Rules of the District Court must give way to the statute.

JUDGE3 BOLLEN J I agree with the answers proposed by Mohr J. I agree with the view of the Chief Justice about the basis for the answer "No" to question 1(b).