R v Southee; Ex Parte

[1990] TASSC 62

Serial No 60/1990
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            R v Southee; ex parte Dalco [1990] TASSC 62; A60/1990

PARTIES:  R
  v
  SOUTHEE, Richard Carter
  DALCO, Garry Winston; ex parte

FILE NO/S:  M2/1990
DELIVERED ON:  9 October 1990
JUDGMENT OF:  Green CJ

Judgment Number:  A60/1990
Number of paragraphs:  13

Serial No 60/1990
List "A"
File No M2/1990

THE QUEEN v RICHARD CARTER SOUTHEE
EX PARTE GARRY WINSTON DALCO

REASONS FOR JUDGMENT  GREEN CJ

9 October 1990

1. Pursuant to the Criminal Injuries Compensation Act 1976 Henry George Garcie made an application to the respondent sitting as the Master for compensation for injuries he claimed to have suffered as the result of an assault upon him by the applicant. After a hearing the Master made an order pursuant to s5 and s7A of that Act "that the Crown recover from the offender, Garry Winston Dalco, $6,300 being the amount of compensation and costs awarded to the applicant pursuant to s5 of the Act."

1. The applicant was not given any notice of the hearing and was not given any opportunity to participate in it.

1. A judge made the following order:

"IT IS ORDERED that Richard Carter Southee show cause why relief in the nature of Certiorari or further or other relief should not be granted upon the following grounds:

1THAT before making the said award of compensation (and the addition thereto of any expenses) the said Richard Carter Southee was bound by the rules of natural justice to have given to the Applicant an opportunity to be heard on the questions whether the said award of compensation should have been made and the quantum thereof.

2THAT before making the said order on the 10th day of November 1989 the said Richard Carter Southee was bound by the rules of natural justice to have given to the Applicant an opportunity to be heard on the questions whether the proposed order should have been made and the terms thereof.

3THAT the said Richard Carter Southee failed to comply with the rules of natural justice in that he did not give the Applicant an opportunity to be heard before making the said award of compensation (and the addition thereto of any expenses), nor before making the said order."

1. This is the return of that order.

1. Section 4 and s5 of the Criminal Injuries Compensation Act 1976 provide that the Master may award compensation to inter alia persons who have suffered injury as the result of an act or omission that constitutes an offence. Section 11 provides that any sum required to be paid under an award shall be paid by the Treasurer out of moneys provided by Parliament. In 1984 the Act was amended by the addition of s7A which provides that where an offender is convicted of an offence in respect of the criminal conduct which led to an application for an award of compensation being made the Master shall direct the offender to pay to the Crown the whole of any compensation awarded pursuant to s5.

1. It is well established that "there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interest and legitimate expectations subject only to the clear manifestation of a contrary statutory intention". Per Mason J in Kioa v West (1985) 159 CLR at p584. That right to procedural fairness "is the product of the common law and not the construction of a statute, although a statute may exclude the right if the intention to do so appears sufficiently clearly". Per Dawson J in Attorney General (NSW) v Quin (1990) 93 ALR 1 at p 41. The nature of the duty to accord procedural fairness will depend upon the circumstances of the particular case but the essential requirement when a statutory power is being exercised is that "the statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interest and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations". Per Mason J in Kioa v West (1985) 159 CLR at p585.

1. The making of the award in this case involved the making of findings of fact and the exercise of discretions which obviously affected the rights and interests of the applicant. It follows that the Master had a duty to accord procedural fairness to the applicant unless it can be said that the Act manifests an intention to the contrary. I turn to consider whether the terms of the Act are such as to displace that common law duty.

1. Counsel for the respondent properly conceded that the Act contains no express manifestation of an intention that an offender was not to be accorded procedural fairness in proceedings under the Act but he submitted that such an intention should be implied from the breadth of the Master‘s discretion, the wide power given to the Master to regulate the proceedings and inform himself as he sees fit and the general intent of the legislation.

1. It is no doubt correct to say that before the enactment of the 1984 amendments the primary purpose of the Act was to see that persons who suffered personal injury as a result of the commission of a crime were compensated out of public funds. But the 1984 amendments were enacted for the entirely different purpose of creating an enforceable liability in an offender to pay to the Crown the amount of any compensation awarded. That extension of the purpose of the Act militates against the drawing of any implication that the legislature intended that the offender should not have the right to be heard.

1. The provisions which confer a wide discretion upon the Master as to whether he should make an award and if so the amount of the award and which empower him to regulate the proceedings before him cannot be construed as manifesting an intention that procedural fairness should not be observed.

1. It was submitted that giving offenders the right to be heard would convert the proceedings into adversary proceedings and could create practical difficulties in relation to matters such as security and would thus frustrate the purpose of the Act. The importation of a requirement that an offender must be given notice of the proceedings and the opportunity of being heard might change the nature of the proceedings to some extent and might result in some inconvenience but it could not possibly be said that it would frustrate the intention of the Act.

1. I hold that there is nothing in the Act which manifests an intention that an offender should not be accorded procedural fairness in proceedings which result in the making of an order under s7A.

1. In the circumstances of this case procedural fairness required at the very least that the applicant be given an opportunity of being heard. The applicant was not given an opportunity of being heard and I am therefore satisfied that the award and the order against the applicant should be removed into this court and quashed. I shall hear counsel further before pronouncing final orders.