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Re Burleigh

Re Burleigh

Case [2025] WADC 11 17 March 2025

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE BURLEIGH [2025] WADC 11
CORAM:   CORMANN DCJ
HEARD:   4 FEBRUARY 2025
DELIVERED          :   17 MARCH 2025
FILE NO/S:   APP 58 of 2024
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: DOUGLAS DWAYNE BURLEIGH
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   K L HAFFORD
File Number            :   CIC 118/2024

Catchwords:

Criminal injuries compensation - Appeal of decision to refuse to award compensation - No award if applicant did not assist investigators - Compensation allowed - No further deduction for pre‑existing injury or medical condition

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 30, s 38, s 41

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr V G Kurup
Amicus Curiae	:	Ms T Wilker appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	CLP Legal Pty Ltd
Amicus Curiae	:	State Solicitor's Office

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

Atieh [2020] WADC 5
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnston v Watts [2024] WADC 62
M v J and J v J (Unreported; WASC, Library No 920598, 19 November 1992)
Martin v Martin [2015] WADC 138
Re Anderson [2022] WADC 97
Re CJR [2023] WADC 111
Re Collard [2018] WADC 1
Re Esmayili [2014] WADC 38
Re Iaria [2018] WADC 22
Re Jackamarra [2014] WADC 9
Re Richards [2022] WADC 100
Re TLJ [2016] WADC 74
Re Warrek [2019] WADC 50
S v Neumann (1995) 14 WAR 452
SW v BB [2010] WADC 86
Underwood v Underwood [2018] WADC 13

CORMANN DCJ:

Introduction and background

This is an appeal from a decision of a criminal injuries compensation assessor made on 8 August 2024, to refuse a claim for compensation brought pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).
On 12 January 2024, the appellant lodged his claim for compensation for injury and loss alleged to arise from an assault on 14 April 2023 (Claim). At the time of the alleged assault, the appellant was serving a custodial sentence at Albany Regional Prison for aggravated burglary, due for release in October 2023. The Claim was lodged under s 17 of the Act because no person was ever charged with the alleged assault.
By letter of 16 February 2024, the assessor informed the appellant that:
(a)the available material indicated that the appellant had not done any act or thing which he ought reasonably to have done to assist in the identification, apprehension, or prosecution of the person(s) who committed the offence, and
(b)she had accordingly, reached a preliminary view that she must refuse the application pursuant to s 38 of the Act.
By letter of 19 February 2024, representatives for the appellant made submissions in reply to assessor's preliminary view. Then, by letter of 8 August 2024, the assessor wrote…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Burleigh

Details

AGLC: Re Burleigh [2025] WADC 11
Case: [2025] WADC 11
Decision Date: 17 MARCH 2025

CaseChat Overview and Summary

The applicant, Burleigh, appealed the refusal of a decision by the Criminal Injuries Compensation Commission to award compensation. The applicant was a victim of a violent crime and sought compensation for injuries sustained. The Commission found the applicant had not assisted investigators in their inquiries and refused to award compensation on that basis. The applicant argued that the Commission's decision was unreasonable and should be overturned.

The central legal issue was whether the refusal of compensation on the basis of the applicant not assisting investigators was lawful and reasonable. The applicant argued that the decision to refuse compensation without considering other factors was flawed and unreasonable. The court needed to determine whether the Commission had the authority to refuse compensation solely on the basis of the applicant's failure to assist investigators and whether this was a lawful exercise of the Commission's discretion.

The court found that the Commission's decision to refuse compensation was unreasonable. The court held that the Commission had the authority to consider the applicant's failure to assist investigators, but this should not be the sole factor in deciding whether to award compensation. The court found that the Commission had failed to consider other relevant factors, such as the severity of the injuries and the applicant's ability to assist investigators. The court also held that the Commission should not have deducted compensation for a pre-existing injury or medical condition. The court found that the Commission's decision was unreasonable and remitted the matter back to the Commission for reconsideration.

The court ordered that the decision of the Commission to refuse compensation be quashed and that the matter be remitted back to the Commission for reconsideration. The court also ordered that the Commission not make any further deduction for the applicant's pre-existing injury or medical condition.

Orders