Michael John Perry v State of South Australia No. SCGRG 96/1457 Judgment No. 6016 Number of Pages 6 Statutes

[1997] SASC 6016

IN THE SUPREME COURT OF SOUTH AUSTRALIA

BOLLEN J

Statutes - Acts of Parliament - operation and effect of statutes - worker compensation - criminal injuries compensation - recovery by the plaintiff of worker's compensation - order by consent for payment to the plaintiff of compensation under the Criminal Injuries Compensation Act - balance of $12,000 due to plaintiff - exercise of discretion by the Attorney-General pursuant to s11(2) of the Criminal Injuries Compensation Act - reduction of "balance" to $10,000 - soundness of the exercise of discretion. Supreme Court Act 1935s31; Workers Rehabilitation and Compensation Act 1986; Criminal Injuries Compensation Act 1978s11, referred to. Hoare v R, Easton v R 1989 86 ALR 361; Public Service Board of NSW v Osmond 1986 159 CLR 656, applied.

ADELAIDE, 22 January 1997 (hearing), 21 February 1997(decision)

#DATE 21:2:1997

Counsel for plaintiff : Mr A Collett

Solicitors for plaintiff : Johnston Withers

Counsel for defendant : Mr M Walter

Solicitors for defendant : Crown Solicitor (SA)

Summons dismissed.

BOLLEN J

1. On 12th February 1992 the plaintiff was injured. He was caused disability and incapacity on his way home from work. He was assaulted in a shopping centre. He suffered spinal fracture in the left fibula. Medical reports establish that it was a serious injury. He had much treatment, including surgery. In the end Mr Brian Cohen, a surgeon, thought that the plaintiff had suffered a 5% loss of function of the left leg.

2. The plaintiff made a claim for compensation under the WorkersRehabilitation and Compensation Act (the WRC Act) as it then was.

3. The plaintiff recovered compensation under the Act. It was:- (i) Income maintenance payments $9,568.50 (ii) Medical expenses $2,762.00 (iii) Lump sum for 5% loss of function of the left leg $4,153.50

$16,484.00

4. The plaintiff suffered exacerbation of mental problems. No allowance was made for that in the assessment of compensation. Nor for pain and suffering. Neither is compensable under the Act.

5. But the plaintiff did recover $16,484.00. Some costs and disbursements were allowed too. Nothing turns on them.

6. The plaintiff was correctly advised that he might be entitled to an award under the Criminal Injuries Compensation Act (CIC Act). The solicitors acting for the plaintiff filed a claim in September 1994. They "formulated" the claim on the 15th December 1994. In the meantime the employment of the plaintiff had been terminated in July 1994. Every dollar to which he was entitled was, and is, important to the plaintiff. I do not lose sight of that importance. After comings and goings between the solicitors for the plaintiff and for the State of South Australia an agreement was reached.

7. The agreement was translated into an order made by consent by District Court Master Kelly on 20th September 1995. The order and the endorsement on it is: "BEFORE DISTRICT COURT MASTER KELLY WEDNESDAY, THE 20TH DAY OF SEPTEMBER, 1995

UPON THE APPLICATION of the abovementioned Plaintiff by summons dated the 15th day of September, 1994 and UPON READING the affidavits filed herein and exhibits thereto, AND UPON HEARING Ms. Walsh of counsel for the Plaintiff, Mr Murray of counsel for the first Defendant, AND BY CONSENT, IT IS ORDERED:

1. That the Crown in the right of the State of South Australia pay to the Plaintiff the sum of $28,484.00 by way of compensation for the injury suffered by him.

2. That the Crown pay to the Plaintiff the further sums of $825.00 for his costs and $841.50 for disbursements.

AND the following statement is endorsed hereon pursuant to Section 7(11) of the abovementioned Act:-

a. The Plaintiff has received the sum of $16,484.00 pursuant to the Worker's Rehabilitation and Compensation Act, 1986, in respect of which the Attorney-General may exercise his discretion, and the sum of $1,000.00 by way of an interim payment."

8. I have thus introduced the discretion of the Attorney-General into these reasons. The right to exercise a discretion given to the Attorney-General in relation to compensation for criminal injuries is in s11(2) of the CIC Act. It is, and was at the time of the sustaining of the injuries by the plaintiff:- "(2) The Attorney-General may decline to satisfy an order, or may reduce the payment to be made, if it appears just to do so in view of payments (referred to below as the 'other compensation') that the claimant has received or would, if he or she were to exhaust all available remedies, be likely to receive apart from this Act in respect of the injury or loss." 9. But Parliament gives the Attorney-General some directions about the exercise of his discretion. Section 11(2a) is:- "(2a) In the exercise of the discretion conferred by subsection (2) the Attorney-General -

(a) should have regard to the extent to which the other compensation represents an adequate compensation for the injury or loss; and

(b) should (in appropriate cases) have regard to the extent to which the other compensation compensates the claimant for pain, suffering and other non-economic loss; and

(c) if the other compensation does not, in the Attorney-General's opinion, represent an adequate compensation for pain, suffering and other non-economic loss - should not reduce the amount to be paid under this Act below the lesser of the following two amounts:

(i) the amount that represents the extent of the deficiency.

(ii) $10 000." 10. The papers were sent to the Attorney-General. The plaintiff had the benefit of the consent order which ordered the defendant to pay the sum of $28,484.00 plus costs and disbursement. But he had received "other compensation". That was the payment under the WRC Act of $16,484.00 (plus an interim payment).

11. It is clear that the plaintiff could not receive the aggregate of $28,484.00 and $16,484.00. Nor did he expect or seek that payment. He expected to receive a cheque from the defendant for $12,000, the difference between the consent order and the "other compensation".

12. As I have said the papers were sent to the Attorney-General. He was offered advice. Ms Assunta Fuda, a solicitor in the Crown Solicitor's Office offered that advice. Miss Fuda had been acting for the defendant in relation to the claim under the CIC Act. In paragraph 7, 8, 9 and 10 of her affidavit of 25th September 1996 Miss Fuda swears:- "7. I advised the Honourable the Attorney General that in exercising his discretion pursuant to section 11(2) of the Act, he must consider those matters set out in section 11(2a) of the Act, he must consider those matters set out in section 11(2a) of the Act. I had previously advised the Honourable the Attorney General that his discretion pursuant to section 11(2) of the Act is absolute.

8. I advised the Honourable the Attorney General that in exercising his discretion pursuant to section 11(2) of the Act:-

(a) he must consider the extent to which the payment received by the plaintiff pursuant to the WRC Act represented adequate compensation for the injury which he suffered on 12 February 1992;

(b) he must have regard to the extent to which the sum of $4,153.50, received by the plaintiff pursuant to section 43 of the WRC Act compensated him for pain, suffering and other non-economic loss arising out of his injury on 12 February 1992;

(c) if he formed the opinion that the other compensation received by the plaintiff did not represent adequate compensation for pain, suffering and other non-economic loss, he must consider the extent of the deficiency.

9. I advised the Honourable the Attorney General that I considered the extent of the deficiency to be greater than $10,000.00. Accordingly, I advised the Honourable the Attorney General that if he considered the extent of the deficiency was greater than $10,000.00, he had a discretion to reduce the amount to be paid under the Act to the extent of the deficiency or to $10,000.00.

10. On 1 December 1995, I was informed that the Honourable the Attorney General had exercised his discretion pursuant to section 11(2) of the Act and reduced the payment to be made to the plaintiff to $10,000.00." 13. If I may so the advice given by Miss Fuda was sound.

14. The Crown Solicitor wrote to the solicitors for the plaintiff on the 4th December 1995. That letter is:- "I note the Consent Order made on 20th August 1995.

Payment of the monies the subject of the Order will not be made until after receipt of a sealed copy of the Order.

Please forward direct to Ms C White of the Attorney-General's Department the sealed copy of the Order and quote reference AGD(CIC)5881-93.

Please note, this matter has been referred to the Attorney General who pursuant to Section 11(2) of the Act has exercised his discretion and reduced your client[']s award. Therefore, upon receipt of the Court Order the Crown will pay the sum of $10,000.00 by way of compensation and $1,666.50 for costs and disbursements."

15. $10,000 not $12,000! That is the result of the exercise of discretion by the Attorney-General.

16. The solicitors for the plaintiff protested and sought reasons. They asked for a "re-exercise" of the discretion in his favour. On 20th February 1996 the Crown Solicitor replied thus:- "I refer to your letter of 9 February 1996 and draw your attention to the fact that the discretion pursuant to section 11 of the Criminal Injuries Compensation Act, 1978 is absolute. On that basis the Attorney-General does not provide reasons for the exercise of his discretion."

17. The exercise of the discretion by the Attorney-General is not absolute. It is fettered. It is fettered by the obligations imposed on the Attorney-General by s11(2a).

18. The assertion by the Crown Solicitor that the discretion was absolute was wrong on the face of it. It is probable in my opinion that the Crown Solicitor meant that if the Attorney-General had complied with all requirements imposed on him by s11(2a) then the exercise of the discretion was absolute. There could not be any appeal against the decision reached in the exercise of discretion. In fact, we know from Ms Fuda that the Attorney-General was correctly advised. The assumption of regularity enables the Court to be satisfied that the Attorney-General complied with the obligations imposed on him.

19. I mention that the words "should have regard to" are not mandatory. (Hoare v R, Easton v R (1989) 86 ALR 361).

20. I do not think that that affects the case. The presumption of regularity enables, as I have said but repeat, the Court to believe that the things to which the Attorney-General is directed to have regard and words requiring him to "consider" were had regard to and considered.

21. The Attorney-General gave no reasons for exercising his discretion as he did. The Attorney-General was exercising an administrative matter. There is no general rule that requires the giving of reasons for administrative decisions. (Public Service Board of NSW v Osmond (1986) 159 CLR 656.

22. The plaintiff has issued a summons pursuant to s31 of the Supreme CourtAct. By it he seeks:- "1. A declaration that the purported exercise by the Attorney-General of his discretion pursuant to Section 11(2) of the CriminalInjuries Compensation Act 1978 to reduce the award of compensation to the plaintiff from $12,000 to $10,000 (in addition to payments of compensation previously made) was wrong in law.

2. A declaration that the assertion made on behalf of the Attorney-General on 20th February 1996 that the Attorney-General's discretion pursuant to Section 11 of the Act is absolute is wrong in law.

3. A declaration that the refusal of the Attorney-General to provide reasons for the said purported exercise of his discretion was wrong in law.

4. An order quashing the decision of the Attorney-General purportedly made pursuant to Section 11(2) of the Criminal Injuries Compensation Act to reduce the amount of compensation awarded to the plaintiff from $12,000 to $10,000 (in addition to payments of compensation previously made).

5. An order that the defendant pay the plaintiff compensation in the sum of $12,000 (in addition to payments of compensation previously made) together with $1,666.50 for costs and disbursements.

6. Such further orders as the Court deems just and expedient.

7. The costs of and incidental to this application." 23. The defendant denies that the plaintiff is entitled to any relief.

24. The Crown Solicitor wrote in his Outline (and spoke to these things):- "16. Whilst the policy considerations would seem to favour the requirement that most administrative bodies give reasons for their decisions, and whilst there has been a general movement in favour of reasons being provided for administrative decisions (both at common law where the major steps forward have been taken in England and in legislation, particularly the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) and the Administrative Law Act 1978 (Victoria), the High Court decision in Osmond stands as clear and binding authority for the proposition that administrators do not need to give reasons for their decisions: Coope v Iuliano (1996) 65 SASR 405.

17. It is accepted that a judicial officer exercising judicial functions will generally have a duty to give reasons for his/her decisions, and this is particularly so where to do so will facilitate any right of appeal which exists: T v Medical Board (1992) 58 SASR 382.

18. In this case, there is no specific requirement in the Act that the Honourable the Attorney-General is to give reasons for the exercise of his discretion. The Attorney-General's duties have the character of an administrative act, not the duties of a judicial officer. That distinction is clearly drawn by the High Court in Osmond.

19. There is no specific requirement within the legislative framework for the Honourable the Attorney-General to give reasons. Parallels cannot be drawn between a judicial officer exercising judicial functions and the Honourable the Attorney-General exercising his discretion.

20. The Criminal Injuries Compensation Act has been amended seven times since the High Court decision of Osmond and there was every opportunity for Parliament to require the giving of reasons if it so desired.

21. Fairness has been seen as a ground for a court to insist on reasons being provided where the plaintiff's interest was sufficiently important, for example, deprivation of liberty (as in the case of Doody; (b) where in the absence of reasons the decision seemed on its face aberrant: Sedley, J in R v Universities Funding Council [1984] 1 All ER 651.

22. In summary, there is no obligation on the defendant to give reasons, and there is no basis upon which this Honourable Court can distinguish the decision of the High Court in Osmond." 25. I think that these submissions are sound. Counsel for the plaintiff, in effect, sought to counter these propositions in his Outline. He wrote: "6. Notwithstanding that there may be no general obligation to give reasons for an administrative decision, the circumstances make this a special case in which natural justice required reasons to be given (Public Service Board of NSW v Osmond 159 CLR 656 at pp 670, 676).

7. These are special circumstances where contemporary standards of natural justice or procedural fair play demand that the Attorney-General provide reasons for his decision to the plaintiff. (Haoucher v Minister for Immigration (1989) 93 ALR 51 at 52-3, 57 Breen v AEU (1971) 2 QB 175 at 191.

8. The special circumstances of this case include:

- the plaintiff's statutory right to compensation was likely to be affected;

- the plaintiff had a legitimate expectation that he would be paid the amount which was negotiated ('MJP2' and 'MJP14') and which was reflected in the judgment of the District Court ('MJP15');

- the amount determined by the District Court had been agreed by consent between the plaintiff and the defendant;

- the plaintiff's agreed amount of compensation had been arrived at pursuant to the statutory principles set out in Section 7 of the Act;

- the plaintiff had not been given an opportunity to address the Attorney General on the above questions relevant to the exercise of his discretion;

- the questions to be considered by the Attorney General pursuant to S11(2) and (2a) are significant and complex. His failure to give reasons deprives the Court of the opportunity of considering whether the Attorney General has exercised his discretion according to law." 26. Counsel for the plaintiff argued these and other propositions admirably. But I cannot accept them. There is nothing to make this a special case. Of course, any situation in which a Minister of the Crown can say that a plaintiff should not get his full verdict as specified in an order is serious. But the administrative scheme to save the State money is clear. Parliament has gone so far as to say that the Attorney-General may "decline to satisfy an order". Parliament has, as I have said, imposed fetters and directions on the exercise of the discretion by the Attorney-General. The general fairness or wisdom of the scheme is not for this Court. It is a political decision. Nor do I think that any question of natural justice arises. I do not think that it is consistent with the scheme, the legislation and the fetters fixed by Parliament that the Attorney-General should hear or receive more information from the plaintiff.

27. I dismiss the summons.