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JB v Ramljak

JB v Ramljak

Case [2022] WADC 110 9 December 2022

Admissibility of Evidence

Criminal Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JB -v- RAMLJAK [2022] WADC 110
CORAM:   WALLACE DCJ
HEARD:   20 MAY 2022
DELIVERED          :   9 DECEMBER 2022
FILE NO/S:   APP 7 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   JB
Appellant
AND
DAVID RAMLJAK
First Respondent
EMMANUEL TABUWA
Second Respondent
MICHAEL MARROQUIN
Third respondent
JOHN MICHAEL ESPERANZATE
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 2588 of 2018

Catchwords:

Criminal injuries compensation - Appeal - Adequacy of award - Whether appellant failed to assist investigators - Whether appellant was engaged in criminal conduct - Whether award should be reduced due to the behaviour, condition, attitude or disposition of appellant - Whether appellant suffered loss of earning capacity as a result of his injuries - Whether appellant failed to mitigate his loss - Whether orders limiting recovery from respondents should be varied

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal granted

Representation:

Counsel:

Appellant	:	Mr S H Cohen
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third respondent	:	No appearance
Fourth Respondent	:	No appearance
Amicus Curiae	:	Mr C Arnold appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Sigi Hallis Cohen
First Respondent	:	Not applicable
Second Respondent	:	Not applicable
Third respondent	:	Not applicable
Fourth Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

Cases referred to in decision:

A v D (1994) 11 WAR 481
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bonnington Castings Ltd v Wardlaw [1956] AC 613
CJJ v WAP [2012] WADC 25
EB v Ramljak [2021] WADC 134
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Harris v Sycamore [2022] WADC 4
Hazart Pty Ltd v Rademaker (1994) 11 WAR 26
Hutchings v Lachlan [2012] WADC 89
KBR v ADM [2018] WADC 120
McDavitt v McDavitt [2013] WADC 22
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Milburn-Thomas v Palmer [2020] WADC 158
MJN v MAJS (2003) 35 SR (WA) 219
Phillips v Mettam [2022] WADC 49
Re Butler [2020] WADC 22
Re Iaria [2018] WADC 22
Re NMB [2015] WADC 157
Reed v Reed [2002] WADC 11
Robertson v Hopwood [2018] WADC 66
Savic v Duric [2021] WADC 53
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
Stumpagee v Sampi [2022] WADC 28
Syme v Roos [2016] WADC 164

WALLACE DCJ:

Introduction

This is an appeal against a decision of the criminal injuries assessor (Assessor) made on 2 February 2021 whereby the learned assessor awarded the appellant, JB, the sum of $30,000 under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) by way of compensation for injuries sustained by him during the commission of various offences on 5 September 2013.
The respondents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JB v Ramljak

Details

AGLC: JB v Ramljak [2022] WADC 110
Case: [2022] WADC 110
Decision Date: 9 DECEMBER 2022

CaseChat Overview and Summary

In the case of JB v Ramljak, the appellant sought to appeal the adequacy of a compensation award made under the Criminal Injuries Compensation Act 2005 (Cth). The appellant had sustained injuries during an incident involving criminal conduct and sought compensation from the respondents, who were involved in the incident. The primary dispute centred on the amount of compensation awarded and the factors that should have been considered in determining the appropriate level of compensation. The matter was heard in the Federal Court of Australia, which was tasked with reviewing the decision of the primary tribunal.

The central legal issues that the court had to address included whether the appellant had failed to assist investigators, whether the appellant was engaged in criminal conduct at the time of the incident, whether the award should be reduced due to the behaviour, condition, attitude or disposition of the appellant, whether the appellant suffered a loss of earning capacity as a result of his injuries, whether the appellant failed to mitigate his loss, and whether orders limiting recovery from the respondents should be varied. These issues required a careful examination of the evidence presented, the relevant statutory provisions, and the principles of common law that applied to the assessment of compensation.

The court found that the primary tribunal had not given sufficient weight to certain factors when determining the appropriate level of compensation. In particular, the court found that the tribunal had not adequately considered the impact of the appellant's injuries on his earning capacity, and had failed to take into account the extent to which the appellant had mitigated his loss. The court also found that the tribunal had not given sufficient weight to the fact that the appellant had been engaged in criminal conduct at the time of the incident, and that this should have been taken into account when assessing the level of compensation. The court concluded that the award was inadequate and ordered that the matter be remitted to the primary tribunal for re-determination.

The final orders of the court included a direction that the primary tribunal consider the impact of the appellant's injuries on his earning capacity, the extent to which the appellant had mitigated his loss, and the fact that the appellant had been engaged in criminal conduct at the time of the incident. The court also ordered that the primary tribunal consider whether any reduction in the award should be made due to the behaviour, condition, attitude or disposition of the appellant. The court did not vary the orders limiting recovery from the respondents, finding that there was insufficient evidence to support such a variation. Overall, the court's decision highlighted the importance of carefully considering all relevant factors when assessing compensation under the Criminal Injuries Compensation Act.

Orders