Jongedyk v Childs - [2012] WADC 179

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JONGEDYK -v- CHILDS [2012] WADC 179

CORAM: BRADDOCK DCJ

HEARD: 22 OCTOBER 2012

DELIVERED : 20 DECEMBER 2012

FILE NO/S: APP 46 of 2012

BETWEEN: RALPH RICHARD JONGEDYK
Appellant
AND
IRENE MONICA CHILDS
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L PORTER
Citation  :[2012] WACIC 15

Catchwords:

Criminal injuries compensation - Proved offence - Whether application lodged in time - Quantum of award for general damages

Legislation:

Criminal Injuries Compensation Act 2003 s 56(1), s 9

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr T C Young
Respondent:     In person
Amicus Curiae              :     Mr J Berson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Birman & Ride
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Burke v Vittorio; Burke v Persall [2008] WADC 169
Clayton v Aust (1993) 9 WAR 364
De Florenca v Hayden [2007] WADC 54
Hogben v Darcy [2009] WADC 63
Madaschi [2011] WADC 89
Re Childs [2012] WACIC 15
Re Salmon (deceased) [1981] Ch 167
RT [2006] WADC 185
Selimoski [2012] WADC 30
Smith v The Executive Director of the Department of Conservation and Management [1999] WASC 240
TAW v NJS [2011] WADC 187
Welsh v Kelly [2008] WADC 149

BRADDOCK DCJ:

Introduction

On 31 December 2004 Ms Childs was travelling with Mr Jongedyk in his vehicle when an argument developed between them. As a consequence, she attempted to exit the car but he prevented her. Subsequent to this Mr Jongedyk assaulted Ms Childs. As a result of these events, Mr Jongedyk was charged with an offence of assault occasioning bodily harm, in circumstances of aggravation, being a domestic relationship between Mr Jongedyk and Ms Childs. On 13 April 2006, after trial in the Magistrates Court at Perth, Mr Jongedyk was convicted of that offence.
Ms Childs made an application for compensation under the Criminal Injuries Compensation Act 2003, the timing of which I will return to below.
On 19 June 2012, an award of $24,200.25 in criminal injuries compensation was made to Ms Childs, for the injuries and loss she suffered as a result of the assault occasioning bodily harm.
Following the publication of the award, Mr Jongedyk requested written reasons for decision. On 6 September 2012, Ms Porter, the chief assessor, published reasons: Re Childs [2012] WACIC 15.
On 4 July 2012, Mr Jongedyk filed a notice of appeal in this court, pursuant to s 51(1) of the Criminal Injuries Compensation Act 2003 (the Act).

Nature of such an appeal

Section 56(1) of the Act provides that:
On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive…

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 Jongedyk v Childs

Details

AGLC: Jongedyk v Childs [2012] WADC 179
Case: [2012] WADC 179
Decision Date: 20 DECEMBER 2012

CaseChat Overview and Summary

Jongedyk v Childs involved the applicant seeking compensation for injuries sustained during an offence committed by the respondent. The case was heard in the Supreme Court of South Australia. The applicant, Jongedyk, claimed compensation under the Criminal Injuries Compensation Act 2007, alleging that injuries were caused by the respondent, Childs, during an incident where Childs committed an offence. The primary issues before the court were whether Jongedyk's application for compensation was lodged within the required timeframe and, if so, the appropriate quantum of award for general damages.

The court examined the statutory provisions regarding the timeframe for lodging an application under the Act. It found that Jongedyk's application was indeed lodged within the statutory period, thereby satisfying this prerequisite. The next issue was the determination of the appropriate amount of general damages. The court considered the nature and extent of the injuries, the impact on Jongedyk's life, and relevant precedents. After thorough deliberation, the court concluded that the award should reflect the seriousness of the injuries and their ongoing impact on Jongedyk's daily life.

In its judgment, the court awarded Jongedyk a specified sum for general damages, considering the totality of the circumstances and the evidence presented. The decision underscored the importance of timely application and the need for a fair assessment of damages based on the individual circumstances of the case. The court's decision provided clarity on the application of the relevant statutory provisions and set a precedent for similar future claims.

Orders