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Mallard v Mallard

Mallard v Mallard

Case [2022] WADC 71 12 August 2022

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MALLARD -v- MALLARD [2022] WADC 71
CORAM:   GILLAN DCJ
HEARD:   22 JULY 2022
DELIVERED          :   12 AUGUST 2022
FILE NO/S:   APP 63 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   VERONICA MALLARD
Appellant
AND
TIMOTHY KEITH MALLARD
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION CHIEF ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 565/2019

Catchwords:

Criminal injuries compensation - Appeal - Approved offence - Mental and nervous shock - PTSD - Admission of additional evidence - Turns on its own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)
Firearms Act 1973 (WA)

Result:

Appeal allowed
Compensation increased

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Respondent	:	No Appearance
Amicus Curiae	:	Ms K E Ellson on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Patrick J Cannon Coburn & Associates
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

B v S (Unreported, WASC, Library No 950223, 10 May 1995)
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
EB v Ramljak [2021] WADC 134
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25
Harris v Sycamore [2021] WADC 4
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
Re Farmer [2015] WADC 91
Re Robinson [2017] WADC 18
Re Sunderland [2011] WADC 97
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Selimoski [2012] WADC 30
Sweetman v Lilley [2021] WADC 74
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13

GILLAN DCJ:

On 19 March 2016 the appellant was 60 years of age. She was at her home in the Barrel Well Community in Ajana.
At about 5.30 am that day the respondent was also at his home address in the Barrel Well Community. He was intoxicated.
The respondent became agitated over some community disagreement and went to his firearms cabinet and removed his Weatherby .38 bolt repeating rifle. He walked to the front of his property where he started to shout at and about other community members. He said words, inter alia, to the effect of 'I'm going to bury you all today'. I will come back later to what the respondent said. The respondent fired several shots from the rifle into the air causing community members to fear for their safety and call the police.
The respondent then left the community in his Toyota Hilux. The police attended the community and commenced an…

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 Mallard v Mallard

Details

AGLC: Mallard v Mallard [2022] WADC 71
Case: [2022] WADC 71
Decision Date

CaseChat Overview and Summary

The case of Mallard v Mallard is an appeal brought by Veronica Mallard against a decision of the Chief Assessor of Criminal Injuries Compensation. The appeal was heard by Gillian DCJ in the District Court of Western Australia. Veronica sought an increase in the amount of compensation awarded to her by the Assessor. Veronica's nephew, the respondent, had pleaded guilty to two offences under the Firearms Act 1973 (WA) for which he was sentenced by the Magistrates Court at Geraldton. The offences were in actual physical possession of a firearm while affected by alcohol and discharging a firearm in a manner to cause fear to the public. Veronica applied for compensation under the Criminal Injuries Compensation Act 2003 (WA) and the Assessor ordered that she be paid $6,458. Veronica appealed against the amount of the award and the court was assisted by an amicus curiae. The respondent did not appear or file an appearance in the appeal. The appeal raises issues concerning the legal principles governing the application for compensation, the injuries suffered by the appellant as a consequence of the approved offence, the award of compensation and what final orders are appropriate. The court found that the appeal should be heard de novo and that it was appropriate to admit additional evidence in the form of further witness statements and a supplementary psychological report. The court found that the appellant suffered mental and nervous shock in the form of post-traumatic stress disorder (PTSD) and anxiety as a consequence of the proven offences. The court awarded the appellant $30,200 in compensation and made an order barring recovery of the award from the respondent.

Orders