Legal Research
Cases
Re Butler

Re Butler

Case [2020] WADC 22 21 February 2020

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE BUTLER [2020] WADC 22
CORAM:   WALLACE DCJ
HEARD:   29 JANUARY 2020
DELIVERED          :   21 FEBRUARY 2020
FILE NO/S:   APP 72 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: KENDRIE LESLEY BUTLER
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   K HAFFORD
File Number            :   CIC 3455 of 2017

Catchwords:

Criminal injuries compensation - Appeal from assessor's decision - Refusal of compensation - Application of s 38 of the Criminal Injuries Compensation Act 2003 (WA) - Withdrawal of complaint to police - Whether there was a failure to do any act or thing - Whether failure reasonable in the circumstances - Assessment of compensation

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal successful

Representation:

Counsel:

Appellant	:	Ms L D Coci
Amicus Curiae	:	Ms E Negus on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Clayton Utz
Amicus Curiae	:	State Solicitor for Western Australia

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

AJC v Lewis (2003) 35 SR (WA) 94
Asjes v Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 4169, 3 September 1994)
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS [2000] WASCA 270
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Butler [2019] WACIC 22
CKM [2008] WADC 79
De Florenca v Hayden [2007] WADC 54
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
GPW [2005] WADC 48
Hatfield v Undersecretary for Law (Unreported WASC, Library No 4012; 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hinchcliffe v Hinchcliffe [2010] WADC 78
Liyanage v The State of Western Australia [2017] WASCA 112
Lloyd v Small (1996) 16 SR (WA) 111
M v J and J v J (Unreported, WASC, Library No 920598; 19 November 1992)
Martin v Martin [2015] WADC 138
Michael v Panetta (1994) 10 SR (WA) 323
MJN v MAJS (2003) 35 SR (WA) 219
Nominal Defendant v Owens (1978) 22 ALR 128
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Purkess v Crittenden (1965) 114 CLR 164
R v Forsythe [1972] 2 NSWLR 951
Re ATS [2017] WADC 92
Re CME [2018] WADC 69
Re Collard [2018] WADC 1
Re Iaria [2018] WADC 22
Re Sullivan [2017] WADC 17
Re Willington [2005] WADC 30
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
The State of Western Australia v Carlino [No 2] [2014] WASC 404
Wall v Chief Executive Officer [2000] WADC 320

WALLACE DCJ:

Introduction

This is an appeal against the decision of the Criminal Injuries Assessor (Assessor) made on 29 August 2019 whereby the learned Assessor refused to make an award of compensation under the Criminal Injuries…

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 Butler

Details

AGLC: Re Butler [2020] WADC 22
Case: [2020] WADC 22
Decision Date: 21 FEBRUARY 2020

CaseChat Overview and Summary

In the case of Re Butler, the appellant, who was a victim of a crime, sought compensation under the Criminal Injuries Compensation Act 2003 (WA). The appellant had withdrawn a complaint made to the police, leading to the assessor denying the application for compensation. The appellant appealed the decision, arguing that the assessor had applied the criteria incorrectly. The dispute was heard in the Supreme Court of Western Australia, where the court was required to determine whether the withdrawal of the complaint constituted a failure to do any act or thing, and if such a failure was reasonable in the circumstances. Additionally, the court needed to assess whether the decision to deny compensation was appropriate.

The court began by examining the statutory provisions and the criteria under section 38 of the Act. It was noted that the appellant had withdrawn the complaint to the police, which was a significant factor in the assessor's decision. The court considered whether this action constituted a failure to do any act or thing, and if it was reasonable given the circumstances. The court also evaluated the rationale behind the withdrawal and whether it was justified. The court held that the appellant's decision to withdraw the complaint could be seen as a failure to do any act or thing, but it was reasonable in the circumstances. The court concluded that the appellant had acted in a manner that was reasonable under the circumstances, taking into account the impact of the crime and the appellant's personal reasons for withdrawing the complaint.

Given the court's findings, it was determined that the appellant's actions were reasonable, and the refusal of compensation was not justified. The appeal was allowed, and the decision of the assessor was quashed. The matter was remitted back to the assessor for reconsideration in light of the court's findings. The appellant was entitled to have their application for compensation reassessed, taking into account the court's determination that the failure to pursue the complaint was reasonable in the circumstances.

Orders