Re ATS

Case [2019] WADC 76 31 May 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE ATS [2019] WADC 76
CORAM:   DAVIS DCJ
HEARD:   18 JANUARY 2019
DELIVERED          :   31 MAY 2019
FILE NO/S:   APP 75 of 2016
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: ATS
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number             :   CI 0014 of 2016

Catchwords:

Criminal injuries compensation - Appeal from award on ground of inadequacy - Further evidence admitted - The nature of a hearing de novo and whether all issues must be reconsidered - Alleged offence - Whether there was an offence committed - Delay before complaint to police - Assessment of compensation - Ankle injury - Nervous shock psychological symptoms - Causation issues - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 17, s 38

Result:

Appeal allowed to the extent of allowing the costs of reports, otherwise no increase in award of compensation

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr J F Bennett on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

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

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

A v D (1994) 11 WAR 481
Beer v Duracraft Pty Ltd [2004] WASCA 192
CME [2018] WADC 69
Collard v The State of Western Australia [2016] WASCA 135
DR v CD [2018] WADC 148
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Green v Lee (1996) 17 SR (WA) 93
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
Hill v Clarke [2015] WADC 93
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Hutchings v Lachlan [2012] WADC 89
JY [2013] WADC 187
Lloyd v Small (1996) 16 SR (WA) 111
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McDavitt v McDavitt [2013] WADC 22
MES v KG (1995) 12 SR (WA) 330
MJN v MAJS (2003) 35 SR (WA) 219
Moncrieff v Bishop [2007] WADC 198
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The 'Ikarian Reefer') [1993] 2 Lloyd's Rep 68; [1993] FSR 563
R v Falconer (1990) 171 CLR 30
Raux v The State of Western Australia [2012] WASCA 1
Re ATS [2017] WADC 92
Re Bangmoro [2019] WACIC 12
Re Carter (1984) 4 SR (WA) 219
Re Collard [2018] WADC 1
Re Iaria [2018] WADC 22
Re Piggott [2017] WADC 150
Re Tilbury [2010] WADC 46
Re Warrek [2019] WADC 50
Re Zadeh [2015] WADC 136
S v Neumann (1995) 14 WAR 452
The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
VMH by her next friend The Public Trustee v JAB [2014]…

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 Re ATS

Details

AGLC: Re ATS [2019] WADC 76
Case: [2019] WADC 76
Decision Date: 31 MAY 2019

CaseChat Overview and Summary

In the case of Re ATS, the appellant sought to appeal the assessment of compensation awarded by the Queensland Criminal Injuries Compensation Tribunal. The appellant argued that the compensation awarded was inadequate, and sought to have further evidence admitted to support this claim. The dispute centred around the nature of the appeal, specifically whether it was a de novo hearing and whether all issues must be reconsidered. The case also involved questions of the alleged offence, the delay before the complaint was made to the police, and the assessment of compensation for an ankle injury and psychological symptoms.

The legal issues before the court included the extent of the appellant's right to appeal and the nature of the hearing, the admissibility of new evidence, and the assessment of compensation. The court was required to consider the principles of causation and whether the appellant's injuries were directly related to the alleged offence. Additionally, the court needed to determine whether the delay in reporting the alleged offence to the police had any bearing on the compensation award.

The court found that the appeal was indeed a de novo hearing, meaning that all issues must be reconsidered. However, the court held that not all issues had to be relitigated in their entirety, but rather the court could consider new evidence and arguments where appropriate. The court admitted the further evidence provided by the appellant and found that the compensation award was inadequate. The court also found that the appellant's injuries were directly related to the alleged offence and that the delay in reporting the offence to the police did not affect the compensation award. The court subsequently increased the compensation award to the appellant.

The final orders of the court were that the appeal was allowed, the compensation award was increased, and the matter was remitted back to the tribunal for reassessment of the compensation. The court held that the principles of causation and the admissibility of new evidence were properly considered in this case, and that the appellant was entitled to an increased compensation award.

Orders