Re ATS - [2017] WADC 92

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):

Allesch v Maunz [2000] HCA 40
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
Walker v Wilson (1991) 172 CLR 195

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 no person was charged. Section 16 of the Act deals with alleged offences where a charge is not determined.
The application was supported by two statements made by ATS:
1.A police statement dated 14 February 2012 (police statement); and
2.A statement prepared for the purpose of the application dated 3 December 2015 (CIC statement) which was, evidently, submitted to the criminal injuries compensation assessor more than a year after the initial application.
In those statements, ATS alleges that she was indecently assaulted by her podiatrist at Swan Districts Hospital, GS. ATS alleges that on about six occasions between February 2011 and August 2011, GS felt around her upper thigh and groin region, and rubbed the outside of her pants around her vagina, whilst massaging her hamstrings on a massage table (Police Statement, [44] ‑ [45]; CIC Statement [27] - [33]).
As GS is not a party to these proceedings, and because GS has not been charged with an offence, a compensation reimbursement order pursuant to s 50 cannot be made against him. Therefore, it is appropriate that he not be identified and I will, accordingly, refer to him throughout these proceedings as GS. Also, because of the nature of the allegations made by ATS and because of the sensitive nature of matters from her medical and psychiatric history, I will not refer to the appellant by name but instead refer to her as 'ATS'.
It is further alleged that, at some time in August 2011, GS thrust his erect penis back and forth in ATS' hand for about 15 ‑ 30 minutes while she lay face down on a massage table with dry needles in her back. It is unclear the precise date on which this incident is alleged to have occurred. The application provides the date of the incident as 1 August 2011. The CIC Statement alleges the incident occurred 'at the beginning of August 2011' [37] and the Police Statement suggests 'the week before 22 August 2011, around 19 August' [51] (see generally Police Statement [51] ‑ [65]; CIC statement [34] ‑ [38]). I will return to this lack of precision later.
The application states that it is in relation to one incident that took place on 1 August 2011, however, the statements provided by ATS outline multiple incidents.
On 15 January 2016 the assessor of criminal injuries compensation (the Assessor) provided written reasons to ATS refusing an extension of time within which to make the application, (the application was made approximately three months out of time) and declining to make a compensation award. The Assessor provided in her reasons that:
Having considered the evidence available to me, in particular the interviews by the Health Authorities and police with the alleged offender and his submissions, I am of the view that his denial of any sexual impropriety towards you is credible and truthful. I am not satisfied to the necessary standard that you were sexually offended against by the alleged offender as described by you, or at all. The timing of your complaints to Health Authorities and police against the alleged offender are suspicious. However, although I am satisfied you requested him to sign loan documents and he refused, I do not make a finding that your complaints were mala fides as I have insufficient evidence to do so.
On 4 February 2016 ATS filed a notice of appeal against the decision of the Assessor on two grounds:
(a)the Assessor erred in holding it would not be just to extend the time for filing the application and in particular failed to provide ATS with procedural fairness by not seeking further details from ATS of the medical condition on which ATS sought to rely to explain the delay, which, had it been provided, would have been a reasonable explanation for the delay; and
(b)the Assessor erred in holding there was not sufficient evidence to support the claim and in particular failed to provide procedural fairness to ATS by not putting the accused's responses to ATS' claims to her for her to comment on, and made adverse findings against ATS based on the accused's responses alone, and further failed to give any weight to the findings against the accused in the case of the Podiatry Board against the accused (VR …/2013) which would tend to suggest there could be truthfulness to ATS' allegations.
The notice of appeal was filed within the time allowed by s 55(2) of the Act.

Extension of time

The alleged incidents occurred between February and August 2011. It is unclear exactly when the last incident is alleged to have occurred. However, as I have earlier noted, the date of incident on the application is 1 August 2011.
The application therefore ought to have been made on or before 1 August 2014. The application was made on 29 October 2014, approximately three months out of time.
ATS provided a handwritten letter titled 'Application for Extension' with the application which offered two reasons for the delay:
(a)she 'suffered a near fatal blood clot on July 14 2014, pulmonary embolism and was in intensive care for 5 days and in hospital for 10 days'; and
(b)she was 'very hesitant as it is quite embarrassing and shameful what occurred to me in a public hospital' and was 'reluctant to come forward and say what has happened of a sexual nature to a stranger, referring to the Assessor'.
In this appeal in further support of her application for an extension of time in which to bring her application for compensation, on 9 November 2016 ATS' solicitor filed:
(a)a discharge summary from Sir Charles Gardiner Hospital dated 18 July 2014; and
(b)a report from Dr Liang dated 4 May 2016.
The discharge summary confirms ATS was admitted to hospital for six days for a bilateral massive pulmonary embolism with a secondary diagnosis of deep venous thrombosis and respiratory failure. ATS was admitted directly to the intensive care unit and initially there was a discussion about cardiothoracic surgery. ATS was discharged with recommendations that she be followed up in the outpatient clinic including for haematology review.
Dr Liang confirms ATS was admitted to Sir Charles Gardiner Hospital on 13 July 2014 with a diagnosis of massive saddle pulmonary embolus and that she was very unwell requiring intensive care admission and was treated with thrombolysis and IVC filter placement. ATS was suffering from a significant disease at the time which was definitely life threatening. While ATS was in intensive care, her condition was able to be stabilised and since then she has been prescribed blood thinners to prevent a further blood clot.
In her letter to ATS of 15 January 2016, the Assessor highlighted that although ATS had given the reason for her delay in making her application was her admission to hospital for a blood clot and then her recovery from the condition, ATS had provided no evidence regarding her medical condition and admission to hospital in July 2014. Clearly, the discharge summary and the report of Dr Liang address that issue and confirm ATS' explanation that in part her reason for failing to make the application in time was because of her medical condition and admission to hospital and her subsequent recovery.
By s 9(1) an application for compensation must be made within three years after the date on which the offence to which it relates was committed or, if it relates to more than one offence, the date on which the last of those offences was committed. By s 9(2) an Assessor may allow a compensation application to be made after three years if it is just to do so.
In Re McHenry [2014] WADC 92, I outlined the relevant principles regarding the factors which govern the exercise of a discretion to grant an extension of time to make an application for compensation, which I applied in Hansen v Bolton [2017] WADC 25 [11] – [ 14]:
I adhere to my explanation in Re McHenry [2014] WADC 92 of the relevant principles regarding the limitation period prescribed by s 9 and what factors govern the exercise of a discretion to grant an extension of time.
An assessor may allow an application for compensation to be made after the three year period if he or she thinks it is just to do so, and may do so on any conditions that the assessor thinks it is just to impose. The onus is on Mr Hansen to explain to the satisfaction of the court the reasons for the delay in bringing the application. There are strong policy reasons for imposing limitation periods and ensuring they are complied with. The time limit set out in the Act is a substantive provision of the Act and not merely a procedural time limit imposed by the rules of court. As such, it ought not be treated with the indulgence appropriate to merely procedural rules. The burden on [the applicant] is thus no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
That refusal of the application which means that an applicant can never litigate his or her claim is not, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised. Similarly, that an applicant for compensation was unaware of his or her right to make a claim for compensation is not, by itself, a sufficient basis upon which to grant an extension of time within which to apply.
Factors that may be relevant to the exercise of the court's discretion under s 9(2) include (Re Jackamarra [2014] WADC 9 [20]; Re McHenry [16]):
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
I readily accept ATS suffered a serious life-threatening medical emergency necessitating her sudden admission to Sir Charles Gardiner Hospital ICU on 13 July 2014 and, thereafter, there was a period of recovery from that medical emergency which would have been ATS' focus and which reasonably explains why she did not make her application during that period and before the expiration of the three-year limitation period on 31 July 2014. However, no explanation is provided as to why it was left so late to bring the application and why the application was not brought earlier, for example, in 2013 or early 2014. There is, for example, no explanation that ATS was still obtaining further evidence or documents in support of her application. I note the report of Dr Proud is dated 3 April 2012 and Dr Law, 12 August 2012. I have earlier noted that ATS' detailed statement in support of her application is dated 3 December 2015 and was apparently submitted to the Assessor more than a year after the application was belatedly made. Further reports which were provided to the Assessor in support of the application are also dated in late 2015. There is a report of Mr Semmens, clinical psychologist, dated 20 October 2014 which was provided to the Assessor on 11 November 2014 (see date stamp confirming the report was received on 11 November 2014).
There is no explanation as to what, if any, steps ATS had taken to progress her application between 2012 and July 2014 when she was admitted to hospital. Such an explanation would normally be required to address the discretionary considerations I outlined in Hansen v Bolton [14] including the history and the background to the application and the reasons for the delay. There is no explanation given, and there would not appear to be any reasonable explanation, as to why ATS' 2015 statement was not prepared and provided within the three-year limitation period, or at least why it was not filed with the application.
As I have observed in Hansen v Bolton [36], applicants for compensation need to understand the importance of the statutory requirement to make an application within three years. There should not be an expectation that an extension of time will be granted as a matter of course.
Although I accept there has been a satisfactory explanation for why the application was not made in July 2014, and although I have a concern that no satisfactory explanation has been provided regarding the history and background to the application and why it was not brought before July 2014, I have been persuaded it is just to grant an extension of time in which to bring the application. In particular, I have regard to the relatively short period of the delay and the nature of ATS' serious medical condition between July and October 2014 which I accept prevented her from being able to make the application in July. I also accept that the various complex medical issues concerning ATS may have played some part in her failure to progress and make the application prior to July 2014.
Accordingly, in all of those circumstances, I grant leave to ATS to bring the application out of time, that is, to make the application on 29 October 2014.

Documents filed in support of the appeal

The medical evidence provided to the Assessor comprised:
(a)A letter from Christopher Semmens, clinical psychologist, dated 20 October 2014;
(b)A report by Ms Andrea Halse, trauma counsellor, of Incest Survivors' Association (Inc), dated 2 November 2015;
(c)A report by Dr Brendon Dellar, clinical psychologist, dated 5 October 2015.
(d)A letter from Christopher Semmens, clinical psychologist, dated 20 October 2014;
(e)A report by Ms Andrea Halse, trauma counsellor, of Incest Survivors' Association (Inc), dated 2 November 2015;
(f)A report by Dr Brendon Dellar, clinical psychologist, dated 5 October 2015;
(g)medical records provided by Dr Toni Law of Glen Forrest Medical Centre;
(h)medical notes from surgery at Bethesda Hospital 24 ‑ 26 October 2011;
(i)A letter from Dr Stephen Proud, consultant psychiatrist, to Dr Toni Law dated 3 April 2012.
By leave granted by me on 3 February 2017 an affidavit sworn by Mr Semmens on 27 February 2017 was filed in support of the appeal.
Further written supplementary submissions were filed by the amicus on 8 March 2017 and by ATS on 13 March 2017.

Issues raised by the appeal

No one has been convicted of committing an offence against ATS. The application is brought pursuant to s 17 of the Act on the basis an alleged offence was committed but no one has been charged with the alleged offence.
This appeal raises an issue as to how this court on the hearing of an appeal from a decision of the Assessor of Criminal Injuries Compensation, which is conducted as a hearing de novo, is able to make findings of fact, involving credibility findings, and resolve conflicts in the evidence where the hearing is not normally conducted as a trial with opposing parties calling evidence in support of their position and to rebut the opponent's position. In particular, this appeal raises an issue as to how the court resolves conflicting accounts as to whether an offence has been committed and how credibility findings are made in circumstances where the person alleged to have committed the offence is not a party to the proceedings and, indeed, is not involved in the proceedings and probably unaware of them. I was informed by counsel that it had been anticipated that ATS would attend the hearing and leave would be sought to call her to give viva voce evidence in support of her appeal and her application. However, ATS did not attend the hearing of the appeal and her non‑attendance was unexplained. Therefore I am asked to make findings, including credibility findings, from the written statements and documentary evidence as to whether an alleged offence occurred for the purposes of s 17 of the Act, which founds the entitlement to an award of compensation, having regard of course to the onus being on ATS to prove on the balance of probabilities an alleged offence was committed.

Onus of proof

When in a civil proceeding a question arises whether a crime has been committed, the standard of proof is on the balance of probabilities but, having regard to the principles explained in Briginshaw v Briginshaw (1938) 60 CLR 336, weight is given to the presumption of innocence and exactness of proof is required. I adopt my reasoning in Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17 [63] ‑ [70]. I concluded [70]:
In summary, the defendant must prove on the balance of probabilities the plaintiff committed an offence of unlawful use of a motor vehicle contrary to s 371A of the Criminal Code and that the plaintiff and the defendant were together engaged in a joint illegal enterprise. In deciding whether a crime has been committed I should feel an actual persuasion of its occurrence and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact: Briginshaw v Briginshaw (361 ‑ 363, 368) (Dixon J). I should not draw an inference adverse to the plaintiff unless I accept that the circumstances give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, the plaintiff committed a criminal offence.

It is doubtful, however, the extent to which Briginshaw applies in the circumstances which exist here where I am not making a finding that a party to the proceeding committed a criminal offence, where that party opposes such a finding being made, and where I am required to have regard to the remedial and beneficial purpose of the Act which is:
An Act to provide for the payment of compensation to victims of offences in some circumstances, and for related matters.
An application for criminal injuries compensation is not a civil proceeding. The proceedings are not adversarial. The assessor is not bound by rules of practice or evidence (s 18). The Briginshaw principle is a rule of evidence: cp Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 141 ALD 540 [98] – [122] (Flick & Perry JJ); Polizzi v Commissioner of Police [No 2] [2017] WASC 166 [68] – [70].

Section 17

In Re Prefumo [2013] WADC 127 [46], without deciding, I expressed doubt that, on a proper construction, s 17 of the Act:
... permits an award of compensation in the circumstances … where the alleged offender is known and able to be located but has not been charged with an alleged offence of assault because of insufficient evidence.
This appeal raises a similar issue as Re Prefumo in that ATS alleges an offence where the alleged offender is known and has been investigated by police, but where no charges were ultimately laid against the alleged offender, presumably because the police were not satisfied there was a prima facie case. The police suspended their investigation due to insufficient evidence (police incident report/running sheet). The alleged offender denies any offence was committed.
In Re Prefumo [43] – [44], I referred to the principles of statutory construction:
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [47], the plurality of the High Court said:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'
The primary object of statutory construction is to construe the relevant provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. The context and general purpose and policy of the provision are guides to the correct construction of a statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69].
In City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47], the Court of Appeal summarised the principles of the correct approach to statutory construction as follows:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
In Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] – [48], the Court of Appeal further explained the approach to statutory correct construction:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).'
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
Recently in Public Transport Authority of Western Australia v Yoon [2017] WASCA 25 [56], the Court of Appeal said:
The general principles of statutory construction were not in contest. They have been set out, relatively recently, by the Court of Appeal in, e.g. City of Kwinana v Lamont and Director General of Department of Transport v McKenzie. Ms Yoon also relied upon the principle that remedial legislation should be construed beneficially. That principle, where it applies, requires that the provision in question be construed so as to give the fullest relief which the fair meaning of its language will allow, but not that its true signification should be strained or exceeded: Bull v Attorney‑General (NSW); Khoury v Government Insurance Office (NSW). The court is not at liberty to give the provision a construction that is unreasonable or unnatural: IW v City of Perth.Further, in Victims Compensation Fund Corporation v Brown it was said that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used in the text.
The Act is remedial legislation providing a right to compensation in the prescribed circumstances. Therefore, where there is any ambiguity in the text of the legislation, or there are two possible interpretations, the legislation should be construed liberally and practically in a way which will promote the underlining legislative positive and object: Walker v Wilson (1991) 172 CLR 195, 204 (Deane, Dawson, Toohey & McHugh JJ). In Bird v The Commonwealth of Australia (1988) 165 CLR 1, 9, Deane and Gaudron JJ, in the context of workers' compensation legislation, held:
Moreover, it is well to remember that employee's compensation legislation, such as the Act and the regulations, is remedial in its character 'and, like all such Acts, should be construed beneficially': Bist v London & South Western Railway Co. The 'established principle' was correctly identified by Fullagar J. in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pry. Ltd: 'where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred.' If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case: cf. Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pp 137 ‑ 138 …
This means not that the true significance of the text should be strained or exceeded but that the text should be given the fullest relief which the fair meaning of its language will allow (Bull v The Attorney‑General for New South Wales (1913) 17 CLR 370, 384 (Isaacs J)). See also Public Transport Authority of Western Australia v Yoon [56] cited above [14].
It is therefore necessary in considering the proper construction of s 17 to first have regard to the text or wording of s 17 and the context in which the section appears in the Act. The context includes the legislative history and extrinsic material but they cannot be used to displace the plain meaning of the statutory text.

Legislative framework

Section 17 of the Act provides:
17.Alleged offence: no person charged
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
(3)If a person, being a close relative of a person who dies as a consequence of the commission of the alleged offence, suffers loss as a result of the death, the personal representative of the deceased may apply for compensation for that loss.
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied –
(a)if the application is made under subsection (2) – that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;
(b)if the application is made under subsection (3) – that the death occurred as a consequence of the commission of the alleged offence and that the claimed loss has occurred.
(5)If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.
The expression 'alleged offence' is defined in s 3 as:
... means a crime, misdemeanour or simple offence for which no person has been convicted.
The explanatory memorandum to the Criminal Injuries Compensation Bill 2003 says in relation to s 17:
Clause 17 – Alleged offence: no person charged
This clause provides for compensation where no person has been charged for an alleged offence, for instance because the police were unable to identify or locate the offender, or may have decided not to charge an alleged offender because of material indicating he was not of sound mind at the time. The clause addresses the anomaly occurring under the 1985 Act when an act or omission which caused injury was committed by a person who was apparently not criminally responsible by operation of section 27 of The Criminal Code at the time of the act or omission constituting the alleged offence, and that person was not charged with the offence. The clause creates eligibility to apply and establishes that the assessor must be satisfied that the alleged offender was not lacking criminal responsibility for a reason other than the operation of section 27 of The Criminal Code at the time of the act or omission constituting the alleged offence. The clause recreates and amends section 13 and part of section 13 of the 1985 Act.
In his second reading speech, then Attorney General, the Hon. Jim McGinty MLA, said, relevantly:
This Bill makes a change to enable claims for compensation when a person is not charged with an offence or the charge does not proceed on the grounds of unsoundness of mind. The 1985 Act allows a claim if a person is acquitted on grounds of unsoundness of mind or if a person charged with an offence has been found to be mentally unfit to stand trial. However, there is no offence under the 1985 Act if a person is found to be of unsound mind at the time of the conduct and is not charged, thus preventing an application from being made. This Bill removes that anomaly by enabling claims in cases in which a person is not charged with an offence or the charge does not proceed on the grounds of unsoundness of mind. A claim can be made subject to proof of criminal responsibility except when its absence arises as a result of unsoundness of mind. The Bill preserves the requirement of criminal responsibility except when its absence arises as a result of unsoundness of mind preventing claims; for example, if the alleged offender is under the age of criminal responsibility.
Western Australia, Parliamentary Debates, Legislative Assembly, 24 September 2003, 11682c-1165a (Jim McGinty).
Section 17 of the Act has been amended once, by the Criminal Investigation (Covert Powers) Act 2012 (Covert Powers Act). The effect of that amendment was to insert reference to the Covert Powers Act in subsection 17(5) of the Act and is of no consequence to the present discussion.

Analysis

Section 17 is a broad provision that applies 'if an alleged offence is committed but no person is charged with the alleged offence'.
Section 17 appears in pt 2 div 2 under the heading 'When and what compensation can be claimed'. Section 12 provides an entitlement to compensation for a 'proved offence' and s 13 – s 17 provides an entitlement to compensation for an 'alleged offence'. Section 13 – s 17 provide for a broad range of circumstances in which there is an entitlement to compensation even though there is not a proved offence, that is, a person has not been convicted of an offence. Section 14 and s 15 provide for the situation where a person is acquitted due to unsoundness of mind or is not mentally fit to stand trial.
Section 13 and s 16 provide for a broader range of circumstances in which there is an entitlement to compensation even though a person has not been convicted of an offence. Section 13 provides for a circumstance where a person has been acquitted of committing an offence but the applicant claims that the alleged offence was committed by some other person. Section 16 sets out various circumstances in which a person is charged with an alleged offence but the prosecution does not proceed.
It is to be noted that each of s 13 – s 16 refer to a person being charged with an alleged offence which is to be contrasted with s 17 which refers to an alleged offence being committed but no person is charged with the alleged offence.
On one view the explanatory memorandum to the Criminal Injuries Compensation Bill 2003 in relation to s 17 supports the tentative view I expressed in Re Perfumo, that s 17 does not permit an award of compensation in circumstances where an offender is known and able to be located but has not been charged with an alleged offence because of insufficient evidence. The explanatory memorandum makes it clear that s 17 applies where police are unable to identify or locate the offender. It also applies if police have decided not to charge an alleged offender because of evidence indicating he was not of sound mind at the time.
Both the explanatory memorandum and the second reading speech make it clear that proof of criminal responsibility is required before there is an entitlement to compensation. If a person is not charged by police because of insufficient evidence that would normally present a difficulty to an applicant for criminal injuries compensation to establish criminal responsibility for an alleged offence. However, I accept that because there is no express exclusion in s 17 excluding claims for compensation where police have not charged a person because of insufficient evidence, such an exclusion should not be read into the section. It is unnecessary to read such an exclusion into the statutory text to determine the proper meaning of s 17.
Section 17 is plain and unambiguous. If the legislature had intended that s 17 not apply in situations where an alleged offender is known and not charged because of insufficient evidence, it would have been a relatively simple task to draft an exclusion to that effect.
Other exclusions are explicitly stated in the Act. See, for example, s 36 (no award if compensation likely to benefit offender), s 37 (no award if injury is from motor vehicle in certain cases), s 38 (no award if applicant did not assist investigators), and s 39 (no award if victim was engaged in criminal conduct).
To give effect to the remedial purpose of the Act and to give the text the fullest relief which the fair meaning of its language will allow, a person is entitled to make an application for compensation pursuant to s 17 in any circumstances in which the person alleges an offence is committed but no person has been charged with the alleged offence, including when the reason a person has not been charged with the alleged offence is because of insufficient evidence.
In summary in my view, upon a proper construction, s 17 must be construed in the natural and ordinary meaning of the text used. No limit or exclusion should be read into s 17. The section applies very broadly and generally whenever an offence is alleged but a person has not been charged with an offence for whatever reason, whether it be because the alleged offender cannot be identified or located, or has died, or has not been charged on the grounds of legal incompetence, or has not been charged because of insufficient evidence or because of prosecutorial discretion. The tentative views I expressed in Re Prefumo regarding the proper construction of s 17 are incorrect and should be disregarded.
I now turn to consider the proper statutory construction of the District Court's powers on appeal and how the court can determine whether an alleged offence has been committed, that is, determine that there is criminal responsibility, given the constraints on the court in the way in which the hearing of an appeal under the Act is conducted.

The District Court's power on appeal

Section 56 – 2003 Act

Section 56 of the Act provides:
Dealing with appeals
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following –
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
(d)order an unsuccessful party to the appeal to pay a successful party's costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e)refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f)make any consequential order.

Section 56(1) was amended in 2008 by the Acts Amendment (Justice) Act 2008 as a result of varied decisions from the court as to whether an appeal to the District Court under the Act was by way of re‑hearing or hearing de novo.
The resulting amendment to s 56(1) of the Act made it clear that an appeal is by way of a hearing de novo, and the explanatory memorandum asserted that this was always the intention of the Act (explanatory memorandum, Acts Amendment (Justice) Bill 2007, 10):
This clause, which deals with both the nature of the appeal and the material to which the Judge may have regard in determining it, restates the provisions of s 41(3) of the repealed Criminal Injuries Compensation Act 1985. This clause makes it clear that appeals should be resolved afresh, which has always been the intention of the Act.
There have been no substantive amendments to s 56(2) since it came into force on 1 January 2004. Equivalent provisions to s 56(2) were found in both the 1985 Act and the 1982 Act, and are discussed below.
The current form of s 56(1) of the Act effectively replicates and amalgamates s 41(3) and s 43(1)(a) of the Criminal Injuries Compensation Act 1985 (1985 Act) (which, in turn, replicated s 34(3) and s 36(1)(a) of the Criminal Injuries Compensation Act 1982 (1982 Act)).
There was no equivalent to s 56 of the Act in the Criminal Injuries (Compensation) Act 1970 (1970 Act), either as passed or as amended in 1976.

Section 41(3), s 43(1)(b) - 1985 Act

Section 41(3) of the Act 1985 Act provided that:
41. Appeals to District Court
…
(3)On an appeal under this section, the District Court Judge shall determine the application to which the appeal relates afresh without being fettered by the determination of the Chief Assessor, and may —
(a)confirm, quash or vary an order or refusal of the Chief Assessor, either in whole or in part;
(b)award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed for the purposes of this paragraph; or
(c)make such other order as he thinks fit.
Section 43(1)(b) of the 1985 Act provided that:
How judge to proceed
(1)A District Court Judge who hears an appeal under section 41 or who deals with an application referred under section 42 –
(a)…
(b)shall for the purposes of section 7(3), 13, 14,(3), 15(3) and 18 to 27, Part IV (other than sections 29, 33 and 34) and Part V be deemed to be the Chief Assessor.
The Court could exercise all of the powers of the Assessor in pt IV (relating to procedure and evidence), except the powers to notify interested persons of an application, determine an application without holding a hearing, and to notify interested persons of a hearing (Criminal Injuries Compensation Act 1985, s 29 - Criminal Injuries Compensation Act 1985, s 33 - Criminal Injuries Compensation Act 1985, s 34).

Section 34(3) and s 36(1)(b) – 1982 Act

Section 34(3) of the 1982 Act provided that:
(3)On an appeal under this section, the Judge shall determine the application afresh without being fettered by the determination of the Assessor, and may
(a)confirm, quash or vary an order of the Assessor, either in whole or in part;
(b)award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed for the purposes of this paragraph; or
(c)make such other order as he thinks fit,
and any costs so awarded may be recovered as a civil debt in a court of competent jurisdiction.
Section 36(1)(b) of the 1982 Act provided that:
(1)A Judge who hears an appeal under section 34 or who deals with an application referred under section 35 –
(a)…
(b)shall for the purposes of section 10, Parts IV (other than section 12(1)) and V be deemed to be the Assessor.
(2)…
The court could exercise all powers of the Assessor in pt IV (relating to procedure and evidence) except the power to notify 'every person who may, in the opinion of the Assessor, become liable under s 32 to reimburse the Crown for that compensation' (Criminal Injuries Compensation Act 1982, s 12(1)).
There was no equivalent to s 56(2) of the Act in the 1970 Act, either as passed or as amended in 1976.

Section 24 – 2003 Act

Section 24 of the Act provides:
Hearing to be held if assessor thinks fit
(1)An assessor may conduct a hearing of a compensation application if he or she thinks fit.
(2)An assessor, without conducting a hearing of a compensation application, may make, or refuse to make, a compensation award in respect of the application.
The term 'compensation application' is defined in s 3 to mean an application for criminal injuries compensation made under Part 2'.
The explanatory memorandum to the Criminal Injuries Compensation Bill 2003, 6 says in relation to s 24 of the Act:
Hearing to be held if assessor thinks fit
This clause provides that an assessor may conduct a hearing. For claims falling under the Criminal Injuries Compensation Act 1982 a hearing had to be held. Under the 1985 Act the assessor has a discretion to determine an application without having a hearing. This clause recreates section 33 of the 1985 Act.
If the assessor decides to conduct a hearing of a compensation application s 25 sets out how the hearing is to be conducted and provides:
25. Hearings
(1)If an assessor decides to conduct a hearing of a compensation application, the assessor must cause written notice of the time and place of the hearing to be given to the applicant and to any other interested person that the assessor intends to hear.
(2)A person who is notified of a hearing is entitled —
(a)to appear at the hearing and be heard by the assessor; and
(b)to appear in person or to be represented by a legal practitioner, or by a person approved by the assessor; and
(c)to present evidence and to call, examine and re‑examine witnesses and to cross‑examine any witness not called by that person.
(3)Section 63 applies for the purposes of conducting a hearing.
(4)A hearing by an assessor must be conducted in private unless the assessor decides that it should be conducted in public.
(5)If a hearing is conducted in private, the assessor may exclude any person who the assessor does not intend to hear.
Section 63, which is referred to in s 25(3), provides:
63. Witnesses at hearings of applications
(1)In this section —
witness means a person who is given a notice under subsection (2).
(2)For the purposes of conducting a hearing under this Act, an assessor, on the application of a person who has been given notice of the hearing or on the assessor’s own initiative, may give a person a written notice that requires him or her to appear at the hearing and do one or both of the following —
(a)to give oral evidence;
(b)to produce any record that is described generally or specifically in the notice and that is in his or her possession or control.
(3)An assessor may administer an oath or affirmation to a witness.
(4)An assessor may ask a witness any question.
(5)A witness commits an offence if he or she, without a reasonable excuse, does not —
(a)appear in accordance with a notice given to the person under subsection (2); or
(b)take an oath or affirmation as required by an assessor; or
(c)give oral evidence or produce a record as required by an assessor.
Penalty: $5 000.
(6)A witness who complies with a notice given to the witness under subsection (2) is entitled to a reasonable amount, decided by an assessor, in respect of any expenses incurred or earnings lost by the witness in so complying.
(7)If an amount is paid under subsection (6) in relation to a witness at a hearing that relates to an offence of which a person is convicted, an assessor may order the offender to pay the State the whole or part of the amount.
(8)Section 53 applies to an order made under subsection (7) as if the order were a compensation reimbursement order.

Section 62A – 2003 Act

62A. Assessor may conduct hearing
(1)This section does not affect section 24.
(2)If he or she thinks fit, an assessor may conduct a hearing in respect of any question that an assessor may decide under this Act.

Section 62A was inserted into the Act by the Acts Amendment (Justice) Act 2008. The explanatory memorandum to the Acts Amendment (Justice) Act 2008 says in relation to s 62A:
Section 63 deals with the Assessor's powers when conducting the hearing of an 'application' for a compensation award or an application for a compensation reimbursement order, and enables the assessor to issue a notice for the production of records at the hearing of the application. This limitation to an application restricts an assessor as from time to time an assessor has to determine issues which arise under other sections, such as s 64 with respect to publicity, s 45 which deals with orders barring or limiting recovery and s 30(2) which provides for directions as to payment of the award. There is no power for an assessor to hold a hearing and to issue notices for the production of records to determine these issues.
This clause inserts a new s 62A which enable an assessor to hold a hearing into any issue arising for determination under the Act, and for issue of a notice or notices for that hearing.
New s 62A is additional to s 24 which provided that an assessor may conduct a hearing of a compensation application if he or she thinks fit.
Although on an initial reading it is perhaps unclear what is the difference between the assessor's hearing powers in s 24 and s 62A, the explanatory memorandum makes it clear that the hearing power provided for by s 62A is additional to the hearing power in s 24, which is only a power to conduct hearings in relation to a 'compensation application' (as defined in s 3). Section 62A provides the assessor with the power to conduct a hearing in relation to matters that do not strictly arise out of or in relation to a compensation application.

Analysis

Why is the power to conduct the type of hearing referred to in s 24(1) of the Act expressly excluded on appeal by s 56(2)(a) of the Act but the court on appeal retains the assessor's power to conduct a hearing pursuant to s 62A?
The 1985 Act excluded the court from exercising the power of the assessor to not hold a hearing contained in s 33 of the 1985 Act or from exercising the power of the assessor to conduct a hearing under s 34. The 2003 Act excludes the court from exercising the power of the assessor to hold the type of hearing contained in s 24(1) and s 25 of the Act.
It may be that the hearing power in s 24(1) of the Act was excluded on appeal on the basis that it was an equivalent provision of s 33 of the 1985 Act, but it is not, although the explanatory memorandum (set out above at [25]) states s 24 recreates s 33 of the 1985 Act.
Section 56(2)(a) also excludes the court from exercising the assessor's powers pursuant to s 19(1)(b) to give written notice of the application to an interested person, although the court retains the remaining powers of the assessor pursuant to s 19 including the powers in s 19(1)(c), s 19(1)(d) and s 19(1)(e):
19. Assessor's general powers
(1)For the purposes of deciding a compensation application, an assessor may do any or all of the following, either on the application of an interested person or on the assessor’s own initiative —
…
(b)give written notice of the application and of any amendment to it to an interested person;
(c)seek and receive any information or evidence that the assessor thinks necessary;
(d)make any inquiries and investigate any matters that the assessor thinks necessary;
(e)request the applicant to provide the assessor with information in relation to the application;
…
The term 'interested person' is defined in s 3 as:
interested person, in relation to a compensation application or to a compensation award made on such an application, means —
(a)the applicant; or
(b)a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or
(c)the CEO.
On one view, by reference to the definition of the term 'interested person', the court on an appeal is unable to give notice of the appeal to the CEO. In my view it cannot have been intended that the exclusion of the power to give written notice of the application excludes the court from being able to give notice of an appeal to the CEO. In my view, a proper construction of s 56(2)(a) excluding the power under s 19(1)(b) means the court does not have power to give notice of an appeal to a person who may become liable to pay an amount to the State. That, of course, is not a consideration in relation to an application pursuant to s 17 where if an award of compensation is made it is paid from the Consolidated Account (s 46) and there is no person who may become liable to pay an amount to the State.

Is there a difference between a hearing conducted pursuant to s 25 and the hearing of an appeal pursuant to s 56?

In my view, when s 19 and s 25 are read together, the assessor is empowered to conduct a hearing into a compensation application in much the same way as a court would conduct a trial inter partes where both the applicant and any other interested person, that is, a person who might be ordered to make payment in consequence of an award of compensation being made, is entitled to appear at the hearing before the assessor and to fully participate in the hearing, including by being represented by a legal practitioner, in much the same way as a trial in a court would be conducted. I do not intend that anything I have just said should lessen the importance of my earlier observations when discussing the significance of applying the rule in Briginshaw v Briginshaw and that an application for criminal injuries compensation is not conducted as an adversarial proceeding, although there maybe similarities to the way in which a trial is normally conducted. That is to be contrasted with the limited way in which an appeal to the court is conducted notwithstanding the appeal proceeds as a hearing de novo. The express exclusion in s 56(2)(a) of the assessor's powers to conduct a hearing similar to a trial means that the court's powers to conduct the hearing of an appeal are limited. The exclusion of the power to conduct a hearing as set out in s 25(2) means that the hearing of an appeal is not conducted as a fresh trial where both the applicant and any interested party is entitled to appear, call evidence and examine and cross-examine witnesses. That, in my view, is made clear by the text of s 56(1) which emphasises that the court on appeal is to decide the application 'solely on the evidence and information that was in the possession of the assessor' but which also provides the court with the power to 'receive further evidence and information' in the court's discretion.
In my view, upon a proper construction s 56(2)(a) of the Act, precludes the court only from exercising the power to hold the type of hearing provided for in s 25(2), which contemplates the hearing being conducted in a similar way to a trail with opposing parties appearing. It does not impose a positive prohibition on hearings generally.
Such an interpretation is supported when construing the Act as a whole. In particular, s 56(1) of the Act provides that an appeal is by way of a hearing de novo and gives the court broad power to 'receive further evidence and information'. This power ought, ordinarily, to include viva voce evidence. I will later refer to the authorities which explain the power of an appellate court on a hearing de novo.
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.
In Re Jackamarra [2014] WADC 9, Schoombee DCJ said:
Pursuant to s 56(2) of the Act a judge of the District Court may exercise the same powers that an assessor has, but the powers to give notice of an application to an 'interested person' and to conduct a hearing are not afforded to the District Court on appeal. The District Court also has no power to call witnesses on the appeal as the assessor's power under s 63 to notify a person that he or she has to appear at a hearing and give oral evidence is only for the purpose of conducting a hearing. The District Court may not conduct a hearing.

When her Honour said the District Court may not conduct a hearing, I understand her to say no more than that the court may not conduct the type of hearing an assessor is empowered to conduct under s 25, with which I respectfully agree. The type of hearing the District Court is empowered to conduct pursuant to s 56 is, as I have explained, of a more limited nature than the type of hearing contemplated by s 25.

Hearing de novo

I now turn to consider the nature and extent of the court's power on an appeal which must be conducted as a hearing de novo.
In considering the nature of an appeal from a registrar, who is exercising delegated power of the court, to a judge, Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84, 96, said:
The direction that the review is to be by way of hearing de novo plainly indicates that the jurisdiction of the Court on review is not relevantly confined and extends not only to any issue which might have arisen before the Deputy Registrar but also to any issue which might properly arise in the meantime. In the instant case Maxwell J was required to hear and determine afresh an application under s. 79(1) of the Act for such order as her Honour considered appropriate altering the property interests of the parties. The complication was that before Maxwell J the making of the consent order was contested, whereas the making of that order was not in contest before the Deputy Registrar. Maxwell J considered that the consent order could only be set aside in proceedings under s 79A, which specifically makes provision for cases in which there has been a miscarriage of justice by reason of fraud, duress or any other circumstance. With respect, we consider that this approach is too restricted. By its very nature, a review by way of hearing de novo enables the reviewing court to examine, inter alia, whether the consent order is vitiated by fraud, duress or mistake. Clearly the grounds mentioned in s. 79A are open to be raised on a review under O 36A, r 7(4). What we have said about a review under O 36A, r 7(4) has equal application to a review under s 37A(9) and (10).
Dawson J said (125):
upon the review of the Deputy Registrar's decision the Court could not have regard to the withdrawal by the wife of her consent to the making of the order and that the Court could not treat the matter as a contested application under s 79 which it was required to determine for itself.
Upon a hearing by way of review of the decision of a Registrar the court is exercising its own discretion. There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance. In that event the appeal court must, before interfering, be persuaded that the judge was in error in the exercise of the discretion, either by acting upon wrong principles, mistaking the facts, or by taking into account irrelevant considerations or failing to take into account relevant considerations: House v. The King (99) … (emphasis added)
Finally, McHugh J said (164):
That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer. Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court. (emphasis added)
In Builders Licensing Board v Sperway Constructions (SYD) Pty Ltd [1976] 135 CLR 616, Mason J said (620):
In truth the appeal to Quarter Sessions is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses. The appeal to Quarter Sessions is the outcome of historical development and its only utility for present purposes is that it provides an illustration of what is in truth a hearing de novo, although, as I have said, it is frequently described as a rehearing.
Mason J further explained (621):
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect … The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
In describing the nature of an appeal from an inquiry before the New South Wales Builder's Licensing Board to the District Court, Mason J observed (624):
… On the other hand the prescribed procedures have a number of features which indicate that the appeal to the District Court cannot be conveniently or readily undertaken if the Court is to be confined to the materials adduced at the inquiry and which also indicate that considerations of fairness to the defendant make it the more likely that the District Court appeal was to involve a hearing de novo.
Further, Mason J concluded (625):
In the result I am of opinion that the majority in the Court of Appeal were correct in holding that the District Court is bound to receive the evidence of the witnesses and that there is an onus on the appellant to present its case in that Court. I would dismiss the appeal.
What is required by way of an appeal by hearing de novo and the difference between that type of appeal and an appeal by way of re‑hearing is further explained by the High Court in Allesch v Maunz [2000] HCA 40 [23] (Gaudron, McHugh, Gummow & Haine JJ):
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (emphasis added)
In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 [11] – [14], Gleeson CJ, Gaudron & Haine JJ held:
It was pointed out in Brideson [No 2] that 'the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]'. The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.
It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. (emphasis added)
In summary, although the nature and extent of an appeal by hearing de novo must be construed by reference to the statute creating the right of appeal, generally on a hearing de novo it is unnecessary to identify error in the tribunal or the decision-maker below. The appeal court must reconsider afresh the evidence before the tribunal below together with any further evidence adduced on the appeal. On a hearing de novo the appeal court exercises its own discretion unfettered by the decision of the decision-maker below. However, the power of a court conducting a hearing de novo to make credibility findings is generally more limited than that of the initial decision‑maker.
In an appeal pursuant to s 55 and s 56 of the Act the court must reach its decision having regard to the above principles but also conscious that the court does not have the power to conduct the type of hearing of the application, which the assessor is empowered to conduct in accordance with s 25. Although, in my view, the court has the power to receive viva voce evidence the court does not have the power to conduct a hearing as though it was a trial, which the assessor is empowered to conduct pursuant to s 24 and s 25 of the Act. As I have earlier observed ([31], [83]), the appeal is not conducted as an adversarial proceeding.
In my view the limitation placed upon the court by which it does not have the power to conduct the type of hearing contemplated by s 25, i.e., a hearing similar to a contested trial, means that normally, the types of issues which arise for determination here, concerning whether an offence has been committed and involving contested accounts and credibility findings, must be determined by the assessor, if necessary by conducting a s 25 hearing and summonsing people to attend the hearing. By excluding the power to hold such a hearing in the appeal to the court, the intention is that the court which conducts a hearing, de novo, would not normally be expected to make credibility findings on appeal. Those findings are more properly made by the assessor given the assessor's wider powers to enquire into and determine such matters. Contested evidence and facts would normally be determined by the assessor, not by the court.

Appellate courts and credibility findings

The difficulties and limitations in being able to make credibility findings on appeal were referred to in Fox v Percy (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ):
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
At [25], they said:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this Court reiterated the rule that:
'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'
As this Court there said, that approach was 'not only sound in law, but beneficial in … operation'.
At [29] and [30], the majority said:
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana'):
'… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'
A further warning to judges in assessing the credibility of witnesses was explained [31]:
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
Those observations about the limitations on an appellate court hearing an appeal by way of re-hearing when reviewing credibility findings by the court at first instance underline the difficulties in being able to make credibility findings in the type of appeal before me where the alleged offender has not given evidence, indeed is not a party to the appeal and has no interest in the outcome of the appeal, and where the appellant has not given viva voce evidence. Although those observations are strictly relevant only to an appellate court hearing an appeal by way of re-hearing and not by way of a hearing de novo, they are, in my view, relevant to the nature of an appeal pursuant to s 56 of the Act.
The advantage enjoyed by trial judges in making credibility findings, and the limitations placed upon appellate courts to interfere with such findings, was also commented upon by McHugh J [68] who, in turn, referred to an earlier decision of the High Court in Dearman v Dearman (1908) 7 CLR 549:
Dearman v Dearman was one of the first cases in which this Court had to consider the powers of an appellate court to review findings of fact by a trial judge. In Dearman, the Court restored the trial judge's findings and verdict, which had been set aside by the Full Court of the Supreme Court of New South Wales. The judgment of Isaacs J contains a valuable passage that shows why appellate courts must be wary of setting aside the findings of trial judges where demeanour may have played a part in making those findings, despite the appellate court's duty to make its own findings. His Honour said:
'So that the position is clearly laid down by the very highest authority that the primary duty, and in fact the whole duty, of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance. But there are natural limitations, that is to say, in some cases, where the evidence below is solely upon written documents, if for instance it is upon affidavit as it used to be in the old Court of Chancery, the appellate Court is in as good a position as the primary Judge to say what ought to have been the decision; but where viva voce evidence is taken there is a large amount of material upon which the primary Judge acts that is altogether outside the reach of the appellate tribunal. The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before, the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below, and is necessary to a just conclusion.' (emphasis added)

The various statements made by ATS regarding the circumstances in which she says GS sexually offended against her are, except for date when the incident is alleged to have occurred, broadly consistent.
The reporting of her allegations to Dr Law on 22 August 2011 is only relevant to ATS' credibility, that is, if it is evidence of recent complaint which, if accepted, it can show consistency of conduct. If it is recent complaint evidence, it can be taken into account in considering ATS' credibility and the truthfulness of her evidence. In judging ATS' credibility and the truthfulness of her evidence it is relevant to know how she acted immediately after the events of which she complains, and to see whether she acted in a way which you might expect a person in her position to act after the events of which she has given evidence. However, what ATS told Dr Law is not evidence of its truth. It is not evidence that the conduct of which she complained occurred. I accept that the evidence of ATS reporting the allegations against GS to her on 22 August 2011 is recent complaint evidence which, to a limited extent, is consistent with ATS acting in a way you might expect her to act if the events she reported had happened.
In his report of 20 October 2014, the clinical psychologist, Mr Semmens, outlines that he has been seeing ATS since February 2008 and treating her primarily for traumatic stress she suffered as a result of being sexually abused by a family member from the age of 8. His report outlines that on 19 August 2011 ATS was sexually assaulted by GS. His report does not state when the allegation of sexual abuse by GS was made. I, accordingly, gave leave for ATS to file further evidence relevant to when she reported the allegation of sexual abuse by GS. An affidavit of Mr Semmens sworn 27 February 2017 was later filed in support of the appeal on 1 March. In his affidavit, Mr Semmens states he saw ATS on 25 July 2011, 4, 11 and 25 August 2011 and 15 September 2011 and on other days that year. Although he has looked for his clinical notes for the appointments he had with ATS in August 2011, he has not been able to locate them. He has located his clinical notes from ATS' appointments with him on 25 July and 15 September 2011 and there is no mention in those notes of the incident that ATS told him about with GS. When explaining that he has not been able to locate the notes of his appointments with ATS in August 2011, he goes on to say that 'if they exist'.
He goes on to state at pars 8 - 9:
I do however very clearly and definitely recall the occasion on which A told me about the sexual assault incident where [GS] placed his penis in her hand as he was massaging her.
I recall the details of that discussion. To the best of my recollection, that discussion took place on or around the 4^th or 11^th August 2011. When A first spoke to me about the incident I feel sure that it was only a matter of days after the incident had occurred.
I have some concerns about the reliability of what Mr Semmens says in his affidavit. While I accept he is able to recall a discussion with ATS when she informed him of her allegations against GS, I do not accept the reliability of his recollection that the discussion took place on or around 4 or 11 August 2011. In his report of 20 October 2014, he records the incident occurred on 19 August 2011. Therefore, ATS could not have made the allegation on 4 or 11 August 2011. Mr Semmens does not say he recollected the discussion having taken place on 25 August 2011, which is also a date on which he says ATS had an appointment with him. Mr Semmens also appears uncertain as to whether he made any notes of those appointments. I would not expect, indeed, would be surprised, that Mr Semmens could now independently recall when ATS first reported her allegations to him.
In summary, I do not accept ATS complained of her allegations against GS to Mr Semmens at or around the time of the alleged incident. I do not accept the evidence of Mr Semmens as recent complaint evidence. His evidence does not assist in concluding whether or not an offence was committed.
The evidence of the reporting of the allegations to Swan Hospital on 5 and 7 December 2011, some three months after the incident is alleged to have occurred, cannot, in my view, be regarded as recent complaint evidence. However, it is evidence of a delay in reporting the allegations which is also relevant to assessing the credibility of ATS. A delay in complaining does not necessarily mean that the allegation that an offence was committed was false. There may be good reasons why a victim of an offence such as that alleged by ATS may hesitate in making or may refrain from making a complaint of the offence alleged. However, a delay may be so inexplicable or so unexplained that it can be properly taken into account in concluding that the allegation of the offence cannot be accepted. I will later return to the relevance of the timing of the complaints.

GS statements denying the alleged offending

Turning then to the statements made by GS in response to ATS' allegations. In his two lengthy letters to Dr Keenan and Ms Alexander of, respectively, 13 December 2011 and 11 January 2012, GS denies the allegations of sexually inappropriate behaviour towards or offending against ATS. He denies he treated ATS for upper body issues and used trigger point therapy for her shoulders, hips and calves and says that he only treated her for plantar fasciitis and a degree of medial ankle pain and some ankle instability issues. Linked in with the plantar fasciitis was a general feeling of aching calves that ATS complained of being painful after long periods of standing. GS used dry needling for several myofascial trigger points on her calves and for some points associated with her peroneal muscles that related to her right ankle lateral instability. All of those trigger points were below the knee or behind the knee. The only massaging he did was as a follow up to the dry needling manual pressure points by using his thumb or thumbs to break up the myofascial trigger points. GS is a podiatrist and was only qualified to treat ATS in relation to issues to do with her feet.
GS had been treating ATS on and off since April 2008 after she was referred by a general practitioner. He became aware of ATS' complex medical, including psychiatric, history. He denies ATS' allegations that they became close friends and he says there was no social interaction with her whatsoever. He does however acknowledge that he had concerns that ATS had boundary issues and often used bullying, or her chronic pain condition, to make him feel guilty and to do as she wished. When he did not have a working phone at his clinic and after ATS had seen his personal phone and asked for his number he eventually agreed to provide her with his number after she assured him she would not abuse the use of the personal phone. ATS also asked him if she could work in his office and do some filing at his office.
GS stated that after he noted ATS was suffering issues to do with her hip flexors he referred her to the medical school of chiropractic medicine which he commented was inconsistent with having a sexually inappropriate relationship with ATS.
In relation to the date of the alleged incident, GS points out that the date mentioned of 13 August 2011 was a Saturday and he did not attend his rooms on a Saturday. The last appointment ATS attended was Tuesday, 2 August. The time for the appointment was 10.30 am. GS arrived at his rooms late that morning and ATS was already there. GS was advised she had arrived 45 minutes earlier than the allotted appointment time at 10.30 am and complained that GS was not able to see her when she arrived. The appointment lasted approximately 15 to 20 minutes and was chiefly to address and review some peri‑patella knee pain that ATS was experiencing due to patella tracking issues and her genu valgum and probably weight issue. GS applied some tape to her patella to slightly realign it.
ATS complained that her orthotics needed more adjusting. She also complained of chaffing and rubbing between her thighs and was concerned about her gait pattern and her orthotics which she wanted him to have a look at. As he had his back turned, she pulled down her tracksuit pants and in her underwear walked back and forth approximately four or five times insisting that he take her concerns seriously. He became a bit exacerbated with her and commented that the reason for the chaffing was due to her morbid obesity. He told her that there was nothing further he could do for her and broached the idea that he should be moving towards discharging her because there was not any further treatment he could provide her. ATS did not take to the idea of her being discharged and raised with GS the current knee issue and whether it would be necessary to order a knee brace to help her out. GS suggested a physio would be more appropriate but ATS insisted that GS follow it up. GS said that he would check with his manager as to whether they could follow that up. He then offered her a further appointment on 10 August which she failed to keep. ATS later sent a text message apologising for failing to keep that appointment and a further appointment was arranged for 12 August which ATS also failed to keep.
About three weeks later ATS left a text message asking GS to call her which he did. During that conversation ATS spoke about financial difficulties she was having and that she needed to refinance her house and asked whether GS was prepared to have her put his name on a loan application so she could use his income to help her re-finance her house. GS was taken aback by that request and said he was not prepared to allow his name to be used which he told her was a form of fraud. ATS had broached the same issue some months previously and he had given her general advice about speaking to a mortgage broker. ATS said to GS that it was a shame he was not being more helpful and that he should think about staying on her good side because he knew what happened to the males in her life if they do not do what she wanted. He asked her what she meant and ATS stated that 'you get the idea enough said'. GS responded that he did not like the sound of what she had said and the conversation ended with ATS saying that she would mail the documents to him and hoped that he would have a change of heart. That conversation occurred on 23 August. GS was shaken by the conversation and emailed his manager shortly afterwards and met with her on 26 August and explained what had happened. Thereafter nothing happened for a few weeks until he started receiving further text messages from ATS relating to the issue of her loan application. Eventually he sought legal advice about what he thought was threatening behaviour from ATS and later, on 20 October 2011, made a complaint to police.
A formal letter of discharge was sent to ATS 7 November 2011. After that letter was sent, ATS, GS states, made the allegations against him.
In the subsequent letter sent on 11 January 2012, GS essentially repeats and emphasises what he said in his letter of 13 December 2011. GS also referred to various text messages he had received from ATS about the missed appointments on 10 and 12 August. The appointment for 10 August was arranged for a 3.45 pm, 15 minutes before a paediatric patient was booked in for review at 4.00 pm and the further appointment for 12 August was for 12.15 pm. GS said he vacates his rooms at 1.00 pm on Fridays as a respiratory clinic is booked from 1.00 pm onwards.
GS denied he used trigger point needles on ATS' shoulders or that he fondled her vagina while stretching her hamstrings. He reiterates that at no stage did he ever treat or touch her upper body and never had occasion to stretch her hamstrings. He reiterates he referred ATS to the Chiropractic School of Medicine to assess her in regard to a possible leg length discrepancy.
He points out he sees patients without the door to the rooms locked to allow store deliveries to be made and for other staff to take supplies on behalf of the orthopaedic clinic with whom he shares the rooms.
On 7 December 2011 GS participated in a lengthy formal record of interview with investigators or interviewers from or on behalf of the Swan Hospital. The interview was recorded and later transcribed. The interview commenced at 14:10 and was completed at 15:27. GS was advised that he was not obliged to participate in the interview but he agreed to. I have only been provided with the transcript of the interview. Essentially, GS responded to ATS' allegations which were put to him and provided the same explanation as he outlined in his two letters.
GS also participated in a formal record of interview with police on 21 January 2012. The length of the interview was approximately 1 hour and 4 minutes. I have watched the interview and therefore have the advantage of being able to see and hear GS respond to the allegations and give his explanation regarding the nature of the relationship with ATS and what did or did not occur. Again GS essentially repeated what he said in his two letters and in the interview with the Swan Hospital investigators. He also said that after the earlier alleged offending when ATS alleges GS massaged her and touched her vagina, she presented with her niece and received ongoing treatment from GS. She also telephoned him in about May or June of 2011 and told him that she had broken into a former boyfriend's house and stolen a laptop. She said she was charged with assault and she asked GS to provide her with a character reference. He said it was inappropriate but she persisted so he did give her a character reference. ATS also asked that he provide a character reference for her sister, whom he did not know, and he agreed.
He referred to an allegation by ATS that the offending happened on Friday night in August and explained there was no appointment on that day. He reiterated that the last appointment with ATS was on 2 August.
ATS also told him that she had been charged with stalking a former boyfriend and had threatened to dob him into police for drug use, which unsettled GS.
Later, when she started texting him about helping her out with her financial difficulties, he sent her a text saying he could not help her and then turned his phone off. When he later turned his phone back on there were a number of text messages sent by ATS. He was of the view ATS sent him the text messages to scare him into helping her financially. He repeated what he had earlier stated that the allegations were only made after he sent a letter of discharge to ATS. He repeated he only treated ATS below her knees. He denied the allegations of sexual offending.

Text messages

GS sent ATS a text message on 12 August 2011 at 13.10 confirming she had missed her 12.15 appointment that day but that approval was given for a knee brace which would come over from the east the next week and suggesting a further appointment next Friday. ATS sent two messages at 14.34 apologising for failing to keep the appointment and saying she had got a new phone and lost all her text messages before then and could not remember the appointment dates. GS responded that was not a worry and 'we'll see how we go next week and I'll text you as soon as knee brace arrives'.
The next text message is on 22 August at 11.12 which appears to record a voice message advising the knee brace had come in. There was then a text message from GS to ATS saying the knee brace was in last Friday and that he would text her an appointment 'tomorrow am as I don't have a diary on Mondays'. ATS then responded 'I need to speak to u re what happened in your rooms as it is having a profound affect [sic] on me'. GS responded at 11.39 'Okay? Have to be tomorrow. Thanks.'
The next text message is on 26 September at 14.47 when GS sent a text message to ATS which reads 'Hi A sorry got so busy last friday that I forgot to text you back about knee brace. I actually did pop in post last friday pm so you should get soon'.
The next text message is on 30 September at 10.26 from GS to ATS apologising that all the phones were playing up and that he had sent some 'tape in post today marked priority' and apologising for the delay. There are then a series of text messages between ATS and GS (many of which are unable to be read because of poor photocopying but have been transcribed). On 30 September ATS complained about the knee brace not being any good and asked whether GS was able to order another one.
ATS sent a further text message to GS on 3 October asking whether he had heard anything about the knee brace. On 17 October GS responded saying he would get in contact with ATS probably tomorrow when he had his diary in front of him and that the other knee brace had only been approved this week. That message was sent at 07:32. At 11.53 ATS sent a message to GS advising that she needed to speak to him 'asap re other matter' and that she needed his help and that he had to apply and that she cannot 'on your behalf'. She re‑sent that message on 19 October at 09:21. On 20 October GS responded advising 'should be able to discuss late tomorrow'. That message was sent at 08:21. At 10:51 ATS responded 'Okay but this is urgent!' On 22 October 17:29 ATS sent a further text message '???'. On 25 October GS responded:
Hi A as much as I apprec your dilemma with house and that I would like to be able to be of assistance I am unable to help you with applying for a loan for you. Sorry.
Shortly afterwards, at 18:17, ATS responded in the following terms:
U don't care about me then only yourself? What u did have started off recurring dreams and thoughts of rape. Also u broke my trust. I can't believe u did it? U knew what ihad [sic] been through, u thought of yourself, just like my offender. I'm gonna seek advice from my gp and psychiatrist. Your not my friend, friends don't do what you've done!
On 26 October GS sent a text message to ATS which read:
Wow A I am totally shocked and appalled at the inference in your message. I do not know what you are referring to and all I can think is that you have decided to unload a lot of malice on me because you thought I would help you out with loan and applying as your de facto and because of talking about discharge! Please do not attempt to contact me again! GS
Finally, on 26 October, at 15:15, ATS sent a text message which read:
You're a liar then, cause u deny what u did, I can't trust u ever again u know what u did. I hope u sleep good at nite. How would u fee [sic] if I was your daughter who came home and said this is what happened at her apt? U would do something about it! Well what makes me have less Protection from people like u than yr daughter? U think about that one!? You've lost a good friend Cos of your selfish actions, I can't believe it still some 5 weeks or more later!

State Administrative Tribunal complaint

Following ATS' complaint concerning GS, the Corruption and Crime Commission was notified of the matter which was also apparently referred to the Podiatry Board of Australia (see letter from Corruption and Crime Commission, 19 January 2012).
The Podiatry Board thereafter took disciplinary action pursuant to the Health Practitioner Regulations National Law (WA) Act 2010 and commenced proceedings in the State Administrative Tribunal on 20 August 2013. The matters of complaint against GS concerned him:
(a)giving his personal mobile telephone number to ATS;
(b)during the period in which he treated her from 9 April 2008 to 7 November 2011, he communicated with ATS in relation to appointments and other matters using his personal mobile phone; and
(c)sent birthday cards and gave gifts to ATS for her birthday.
It was also alleged that during the period he was treating her, ATS disclosed to GS that she suffered from depression and experienced thoughts of self-harm and suicide but GS did not refer ATS to or take advice from a psychiatrist or other health practitioner in relation to ATS' mental health. Nor did GS record ATS' mental state in his records.

Further, on 8 June 2011 GS gave ATS a personal character reference for her use in criminal proceedings in which she was involved in circumstances where GS had taken no or no adequate steps to ascertain the precise nature of the charges and the circumstances surrounding the charges when providing the reference.
It was also alleged that at the same time GS gave a personal character reference for ATS' sister also for use in the criminal proceedings in circumstances where he did not know ATS' sister and had not met her.
Finally, it was also alleged that GS provided ATS' mother with treatment and referred her to a bootmaker in circumstances where the mother had not been referred to the clinic as a patient and kept no or no adequate records of his treatment of ATS' mother.
The matters proceeded to a mediation conference on 15 October 2013 at which GS admitted the allegations and agreed that by reason of those matters he failed to establish and maintain proper professional boundaries of a clear separation between professional conduct and his own personal views and feelings which were not relevant to the therapeutic relationship and thereby engaged in unprofessional conduct. GS also agreed that he failed to recognise the limits to his own skills and competence in relation to ATS' mental state and generally failed to keep adequate records in relation to the various matters. He agreed that because of the various matters he had behaved in a way that constituted professional misconduct. The tribunal also noted that GS was found by the Health Department to have committed an act of misconduct and underwent a 12‑week deployment and supervision to address various areas of concern. It was also noted that he had never previously, or since, been the subject of any complaints or disciplinary action in relation to his 28 years of practice as a podiatrist.
By consent, orders were made by the tribunal reprimanding GS, fining him and ordering him to pay costs. A written order dated 17 October 2013 was issued by the State Administrative Tribunal.
Although GS was reprimanded and disciplined because of his unprofessional relationship with ATS, it was because of matters unrelated to allegations of sexual offending. ATS' allegations of sexual offending were not the subject of the action taken by the Podiatry Board against GS. However, it is submitted that the nature of the inappropriate relationship with ATS is one of the facts or circumstances I can take into account in drawing an inference against GS, an inference that he sexually offended against ATS as alleged by her. Such an inappropriate relationship, it is submitted, points more strongly to an inference that GS sexually offended against ATS.
Counsel also submits that: the fact of ATS' complaint to police; her complaint to the Podiatry Board, which pursued the matter before the State Administration Tribunal; her interviews on 12 and 21 March 2012 with the Department of Health investigators; her continued counselling following the matter complained of and the fact of the application to the Assessor and the appeal to this court, are indications that ATS has pursued her allegations consistently and persistently, which I understand to be a submission that ATS' conduct is consistent with her allegations being truthful and support an inference that the sexual offending as alleged occurred. I will come back to that submission in a moment.
ATS' counsel accepts there is no independent evidence of the events which she alleges occurred on or about 19 August 2011, but submits that is typical of many allegations of sexual offending. It is also submitted GS organised his appointments for times towards the end of the day when other people would not be present and the evidence supports a conclusion that GS' behaviour was a pattern of planning and grooming typical of many sexual offence cases.
It is also accepted there is no scientific or medical evidence to support ATS' account of events which, it is submitted, is unsurprising.

Findings

The submission that GS organised his appointments for times towards the end of the day when other people would not be present depends for its acceptance upon an acceptance of the evidence of ATS and a rejection of GS' evidence. I do not accept there is any evidence that GS deliberately organised his appointments with ATS towards the end of the day when other people would not be present. I accept the evidence of GS that his last appointment with ATS was on Tuesday, 2 August. The time for the appointment was 10.30 am. GS arrived at his rooms late that morning and ATS was already there having arrived 45 minutes earlier. Further appointments were arranged with ATS on 10 and 12 August which ATS failed to keep. The appointment for 10 August was arranged for 3.45 pm, 15 minutes before a paediatric patient was booked in for review at 4.00 pm. The further appointment for 12 August was for 12.15 pm. I accept the evidence of GS that he vacated his rooms at 1.00 pm on Fridays as a respiratory clinic was booked from 1.00 pm onwards. Therefore GS did not have any appointments with ATS after 1.00 pm on a Friday.
I do not accept there is evidence which supports a conclusion that GS' behaviour demonstrated a pattern of planning and grooming typical of many sexual offence cases. Other than relying upon the evidence of ATS of various incidents of sexual offending against her by GS, counsel was unable to point to any other evidence from which I could be positively satisfied that GS groomed ATS or behaved towards her in such a way as to groom her so he could sexually offend against her.
I earlier observed I have the advantage of having seen and listened to the recorded interview of GS by police on 21 January 2012. I have of course not seen or heard ATS give evidence. Having seen that recorded interview with police I am satisfied GS' denials of the alleged offending are plausible. Nothing was put to him which contradicted his explanation and denials or which undermined his credibility. His account is largely corroborated by his contemporaneous handwritten notes or diary entries of his meetings with ATS. His diary entries support his account of when ATS had appointments with him and when appointments were cancelled or not kept. Focusing on August 2011, which is the month during which ATS alleges GS mainly offended against her, the contemporaneous records do not establish a pattern of grooming ATS for the purpose of sexually offending against her. The contemporaneous records do not establish a pattern of making appointments with ATS outside normal appointment times or so that GS would meet with ATS when other people were not present. To the contrary the records establish that the appointments with ATS were arranged in the same way as GS arranged appointments with other patients. There is no evidence that GS acted towards ATS in such a way that he sought to isolate or groom her for the purpose of sexually offending against her.
I do not accept that it follows from GS' unprofessional relationship with ATS, which he admitted and for which he was reprimanded and disciplined, he sexually offended against her. I am not, satisfied there is a sufficient basis for drawing an inference that from that unprofessional relationship GS sexually offended against ATS.
There is no independent corroborating evidence supporting the allegations of sexual offending made by ATS. Although that is not unusual in matters involving sexual offending it does mean, as I have earlier explained, it is necessary to careful scrutinise the evidence of ATS. I need to feel an actual persuasion that the offending occurred.
As I have earlier found, except for the evidence of ATS' reporting of her allegations to Dr Law on 22 August 2011, there is no recent complaint evidence. Also as I have earlier found there was a delay in the formal reporting of the allegations to the Swan Hospital until 5 and 7 December 2011, three months after the incident is alleged to have occurred. The formal reporting of the allegations was made after GS sent a letter to ATS on 7 November 2011 discharging ATS from the need for any further services provided by GS.
GS said he sent the letter of discharge after ATS had approached him for financial assistance which he refused to provide following which ATS threatened him. There were conversations with ATS in late August 2011. Following the conversations GS communicated with his manager about what had happened and met with her on 26 August. Later, further text messages from ATS were received relating to the issue of her loan application, following which GS sought legal advice and then on 20 October 2011 made a complaint to police.
ATS has not responded to that history as outlined by GS and so his explanation is unchallenged. I accept his explanation of the history of the exchange of text messages, the conversations and the circumstances in which he sent the letter of discharge to ATS on 7 November 2011. None of that of course means that the allegations of sexual offending by GS against ATS are not true. However, that history provides some context to the circumstances in which the allegations of sexual offending were made and causes me to have reservations about the reliability and truthfulness of ATS' allegations. I am troubled by the delay in formally reporting the allegations, particularly by the reporting being made after GS had sent ATS the letter of discharge and ceased responding to her communications. Had the events of which she complains occurred, I would have expected ATS, given the seriousness of the allegations, to have reported the allegations immediately or much earlier than she did. Essentially GS alleges ATS was motivated to make false allegations of sexual offending against him because of the nature of her dependent personality and because he refused to financially assist her. It is unnecessary for me to make any findings about whether that was ATS' motivation for making the allegations, but in my view the actions of ATS in seeking financial assistance from GS and acting in the way she did is inconsistent with her having been sexually offended against by GS as she alleges.
ATS' evidence about the date on which the main incident upon which she relies is alleged to have occurred, that is, the allegation that GS thrust his erect penis back and forth in ATS' hand for about 15 – 30 minutes while she was lying on the massage table, is also unreliable. As I have earlier outlined, her recollection of the date varies and changes. In her police statement dated 14 February 2012 she says the incident happened at around 19 August. When she initially reported her allegation to Swan Hospital on 5 and 7 December 2011 ATS said the incident happened on or around 13 August. When spoken to by the hospital investigators, she said the incident happened on 11 or 13 August. After she saw a text message from GS to her on 22 August she said she thought the incident happened about the week prior to that. She later said she saw her doctor on 12 August and it was likely the incident happened about a week before that. She did not accept her last appointment with GS was on 2 August. After she referred to text messages between her and GS she then said she thought the appointment was on Friday, 5 August and not 2 August.
I accept that the only appointments ATS had with GS were those which are recorded in GS' diary. I accept ATS last appointment with GS was on 2 August 2011 in the morning. I also accept that two further appointments were subsequently made with GS but ATS failed to keep either of those appointments.
ATS' inability to remember the precise date on which she says the incident occurred and her varying accounts of the date on which it occurred undermine her credibility and the reliability of her recollection.

Conclusion

In summary I do not feel an actual persuasion that GS sexually offended against ATS as alleged by her. I am not satisfied on the balance of probabilities that a criminal offence has been committed against ATS such that she has an entitlement to be awarded compensation pursuant to s 17 of the Act.
Accordingly, I:
(a)extend the time in which to bring the application to 29 October 2014, and;
(b)order that both the appeal and the application be dismissed.