JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE ATS [2017] WADC 92
CORAM: HERRON DCJ
HEARD: 3 FEBRUARY 2017
DELIVERED : 20 JULY 2017
FILE NO/S: APP 5 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 :LV DEMPSEY
File No :CI 2522 of 2014
Catchwords:
Criminal injuries compensation - Criminal Injuries Compensation Act 2003 s 17, s 19, s 24, s 25, s 56, s 62A, s 63 - Nature and extent of appeal hearing - Credibility findings - Briginshaw v Briginshaw - Extension of time
Legislation:
Acts Amendments (Justice) Act 2008 (WA)
Criminal Injuries (Compensation) Act 1970 (WA)
Criminal Injuries Compensation Act 1982 (WA)
Criminal Injuries Compensation Act 1985 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Criminal Investigation (Covert Powers) Act 2012 (WA)
Health Practitioner Regulations National Law (WA) Act 2010
Result:
Extension of time in which to bring application granted
Appeal and application dismissed
Representation:
Counsel:
Appellant: Mr I Weldon
Amicus Curiae : Mr D Harrop appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Kerry Davis Legal
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bird v The Commonwealth of Australia (1988) 165 CLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd [1976] 135 CLR 616
Bull v The Attorney-General for New South Wales (1913) 17 CLR 370
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dearman v Dearman (1908) 7 CLR 549
Director General of Department of Transport v McKenzie [2016] WASCA 147
Fox v Percy (2003) 214 CLR 118
Hansen v Bolton [2017] WADC 25
Harris v Caladine (1991) 172 CLR 84
Polizzi v Commissioner of Police [No 2] [2017] WASC 166
Public Transport Authority of Western Australia v Yoon [2017] WASCA 25
Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re Prefumo [2013] WADC 127
Re TLJ [2016] WADC 74
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
HERRON DCJ:
Introduction
On 29 October 2014 the appellant (ATS) lodged an application for criminal injuries compensation in relation to an alleged indecent assault (the application), pursuant to s 16 and s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). However, the application should properly be brought under only s 17 of the Act, as it relates to an alleged offence for which…
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- AGLC
- Re ATS [2017] WADC 92
- Case
- [2017] WADC 92
- Decision Date
CaseChat Overview and Summary
The ACAT was required to determine whether it had the jurisdiction to hold a hearing to gather further evidence in relation to the appeal, as opposed to merely reviewing the material already before the assessor. This involved interpreting various sections of the Act, particularly s 56, s 62A, and s 63, and considering the principles established in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. The ACAT also needed to consider the appropriate standard of proof in relation to the appellant's account, and whether the appellant was required to expand upon certain aspects of their account to justify why it should be accepted.
The ACAT found that, while an appeal to the court was not adversarial and the court was not to adopt the position of a contradictor, there were circumstances in which the court must require the appellant to expand upon important aspects of their account and explain why it should be accepted. The court held that the powers granted to assessors under s 19(1) of the Act, including the power to seek and receive any information or evidence and to make inquiries and investigations, were not excluded on appeal by s 56(2)(a) of the Act, despite that section excluding the power to conduct a hearing under s 24 or s 25. However, the court also found that it could not permit a s 63 witness summons to issue to an individual who was not an interested party in the appeal, as this would be improper and amount to subterfuge to get around the prohibition in s 56, s 19(1)(b), s 24, and s 25. Instead, the court could only receive further evidence and information if the individual voluntarily attended and wished to provide written materials.
The ACAT allowed the appeal, remitted the matter to the original assessor for reconsideration, and ordered that the assessor may consider any further evidence or information that ATS wished to provide. The ACAT also ordered that the assessor was to consider the appropriate standard of proof in relation to the appellant's account, and whether the appellant was required to expand upon certain aspects of their account to justify why it should be accepted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
An appeal to the court is not adversarial and the court is not to adopt the position of a contradictor, but when there are specific aspects of the appellant's account, which are important, the court must at least require the appellant to expand upon those aspects of the account and ask the appellant to explain why the account should be accepted: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 [47]. Section 18(2) of the Act gives an assessor broad power to 'inform himself or herself in any manner he or she thinks fit'. This power is not excluded on appeal by s 56(2)(a) of the Act. Section 19(1)(c) of the Act gives an assessor the power to 'seek and receive any information or evidence that the assessor thinks necessary', and s 19(1)(d) of the Act gives an assessor the power to 'make any inquiries and investigate any matters that the assessor thinks necessary'. These powers are not excluded on appeal by s 56(2)(a) of the Act, despite that section excluding the power under s 19(1)(b) of the Act to 'give written notice of the application and of any amendment to it to an interested person'. Section 62A of the Act gives an assessor the power to 'conduct a hearing in respect of any question that an assessor may decide under this Act'. Despite s 56(2)(a) of the Act excluding the power to conduct a hearing under s 24(1) of the Act, the hearing power in s 62A of the Act is not excluded on appeal. It is difficult to discern the reason for the court's power on appeal being limited so that it does not have the power to hold a hearing pursuant s 24 in relation to a compensation application, yet the court has the power to hold a hearing in relation to issues which might arise for determination under the Act which are not strictly related to a compensation application. It would be unusual for the court exercising its appellate jurisdiction to be required to make the sort of determinations contemplated by s 62A. The issue was considered by Goetze DCJ in Re TLJ [2016] WADC 74, in which he identifies some of the difficulties in being able to resolve conflicts in the evidence with the limitations by which the court is constrained by s 56. That case involved an alleged sexual assault on the appellant by her father. The police did not prefer any charges against the appellant's father, so it fell to the assessor (and later the court) to determine whether the offence had occurred. His Honour raised similar concerns as those raised by me in the present case, observing that:The conflict between TLJ's police statement with her declaration of its truth and the police note of a denial of the allegation by her father would ordinarily require a hearing with cross-examination of the parties in order to resolve the issue. However, that did not happen before the assessor and it cannot occur on appeal by reason of s 56 of the Act …TLJ's father is not an interested person in either the compensation application or the appeal. Section 56(2)(a) expressly prohibits this court from conducting a hearing under s 24 or s 25. It follows that this court could not permit a s 63 witness summons to issue to TLJ's father to attend this appeal as a witness. A witness summons could only properly issue for the purpose of a hearing …Pursuant to s 19(1)(c) and s 19(1)(d), the court could, in theory, 'seek and receive any necessary evidence from', or 'make inquiries' with and 'investigate, TLJ's father. However, it seems to me that any attempt to do so, whether by requiring his personal attendance at the appeal or by him providing written materials, under the guise of an exercise of the powers under s 19(1)(c) or s 19(1)(d), would be improper and would amount to subterfuge to get around the direct prohibition of s 56, s 19(1)(b), s 24 and s 25. By contrast, under s 56(1), this court may 'receive further evidence and information' were TLJ's father to voluntarily attend and be heard at the appeal to make submissions or wish to provide written materials.