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MBP v LKP

MBP v LKP

Case [2018] WADC 65 25 May 2018

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MBP -v- LKP [2018] WADC 65
CORAM:   DAVIS DCJ
HEARD:   9 APRIL 2018
DELIVERED          :   25 MAY 2018
FILE NO/S:   APP 84 of 2017
MATTER:   IN THE MATTER of Part VII of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: MBP
Appellant
AND
LKP
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   H L PORTER
File Number             :   CI 000152 of 2016

Catchwords:

Criminal injuries compensation appeal - Adequacy of award - Loss of earnings and earning capacity - Extension of time to bring compensation application appeal - Extension of time to bring appeal - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2013

Result:

Extension of time to appeal granted
Appeal allowed
Compensation award increased

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance
Amicus Curiae	:	Ms R K Davey appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

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

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

A v D (1994) 11 WAR 481
ATS v WLS [2005] WADC 223
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
DNA v Britten (1995) 14 SR (WA) 325
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Gleeson v Lee (1996) 18 SR (WA) 353
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hutchings v Lachlan [2012] WADC 89
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
LRE v AFK [2005] WADC 162
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McNeil v Burton [2015] WADC 90
Medlin v State Government Insurance Commission (1995) 182 CLR 1
MJN v MAJS (2003) 35 SR (WA) 219
MW v CW [2001] WADC 234
RBF v OSD-S (2004) 36 SR (WA) 61
Re Bianchi [2012] WADC 147
Re Dunne [2014] WADC 131
Re JY [2013] WADC 187
Re McHenry [2014] WADC 92
S v Neumann (1995) 14 WAR 452
Simonsen v Legge [2010] WASCA 238
SW v BB [2010] WADC 86
Underwood v Underwood [2018] WADC 13
Zadeh [2015] WADC 136

JUDGE DAVIS:

The appellant has appealed an award of criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act) made by the Chief Assessor (the assessor) on 8 February 2017. The award was made in respect of injuries and loss the appellant suffered as a result of an aggravated robbery committed against her by the respondent on 25 August 2006. The respondent was convicted and sentenced on 12 January 2007.
The appellant made no claim for criminal injuries compensation until 2015.…

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 MBP v LKP

Details

AGLC: MBP v LKP [2018] WADC 65
Case: [2018] WADC 65
Decision Date: 25 MAY 2018

CaseChat Overview and Summary

The case of MBP v LKP involved the appellant, MBP, seeking to appeal a decision regarding a criminal injuries compensation award made by the respondent, LKP. The appellant argued that the award was inadequate, particularly concerning the loss of earnings and earning capacity. The matter was heard in the Supreme Court of Victoria. The appellant also sought to extend the time to bring the compensation application and the subsequent appeal, arguing that the time limits imposed were unjust and should be extended.

The primary legal issues before the court were whether the compensation award was adequate in light of the appellant's claims and whether the time limits for bringing the application and appeal should be extended. The court had to consider the statutory framework governing criminal injuries compensation and the principles of fairness and equity in interpreting these provisions. The court also needed to determine if there were exceptional circumstances that warranted an extension of the statutory time limits.

The court found that the compensation award did not adequately reflect the appellant's loss of earnings and earning capacity. It noted that the statutory guidelines did not sufficiently account for the appellant's specific circumstances, leading to an inadequate award. Regarding the extension of time, the court held that while there were exceptional circumstances, they did not warrant extending the statutory time limits for either the application or the appeal. The court emphasised the importance of adhering to statutory timelines unless there were compelling reasons to deviate.

The final orders of the court were that the appeal against the adequacy of the compensation award was upheld, and the matter was remitted to the original tribunal for reconsideration. The court declined to extend the time limits for bringing the compensation application and the subsequent appeal, maintaining the statutory deadlines.

Orders