Re Burleigh

Case [2025] WADC 11


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

  1. 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).

  2. 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.

  3. 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.

  4. 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…

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AGLC
Re Burleigh [2025] WADC 11
Case
[2025] WADC 11
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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