Re CJR

Case [2023] WADC 111 29 September 2023

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE CJR [2023] WADC 111
CORAM:   PALMER DCJ
HEARD:   14 SEPTEMBER 2023
DELIVERED          :   29 SEPTEMBER 2023
FILE NO/S:   APP 5 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: CJR
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   ASSESSOR R A CAPARARO
File Number            :   CIC 1480/2022

Catchwords:

Criminal injuries compensation - Appeal from assessor's refusal to award compensation by reason of delay in making application - Whether extension of time for bringing application should be allowed

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 9(2)

Result:

Appeal dismissed
Decision confirmed

Representation:

Counsel:

Appellant	:	Mr J N Trigg
Amicus Curiae	:	Ms J G Kasbergen appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Stephen Browne Lawyers (South Perth)
Amicus Curiae	:	State Solicitor for Western Australia

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

DR v CD [2018] WADC 148
EB v Ramljak [2021] WADC 134
ELK v CFB [2009] WADC 90
EM v CL [2021] WADC 127
Goodwin v Baker [2020] WADC 43
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25
Harris v Sycamore [2022] WADC 4
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Nagel v Tahere [2020] WADC 110
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Coad [2023] WADC 9
Re HCM [2018] WADC 20
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re Richards [2022] WADC 100
Re Swinford [2021] WADC 82
Re Tilbury [2010] WADC 46
Re Warrek [2019] WADC 50
Underwood v Underwood [2018] WADC 13

PALMER DCJ:

Introduction

This is an appeal under s 55(1)(a) of the Criminal Injuries Compensation Act 2003 (WA) (the Act). By way of a Notice of Appeal dated 30 January 2023, the Appellant appeals against a decision of Assessor Capararo made on 22 December 2022 to refuse the Appellant criminal injuries compensation (Decision).
On 27 May 2022 the Appellant submitted a claim for criminal injuries compensation (Application).[1] The Application was made pursuant to s 17 of the Act in respect of injuries that the Appellant alleged she suffered as on 22 December 2011.[2]
[1] Assessor's Papers (AP), pages 4 - 7.
[2] AP, page 5.
The Application was made seven years, five months late. Pursuant to s 9(1) of the Act, the Application was required to be made within three years from the date of the alleged offence. As the Appellant alleged the offence had been committed on 22 December 2011, the Application needed to be made by 21 December 2014.
Section 9(2) of the Act provides that an assessor may allow a compensation application to be made after three years if the assessor thinks it is just to do so and may do so on…

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 CJR

Details

AGLC: Re CJR [2023] WADC 111
Case: [2023] WADC 111
Decision Date: 29 SEPTEMBER 2023

CaseChat Overview and Summary

In the case of Re CJR, the applicant sought compensation for injuries sustained in a criminal incident, and the matter was heard in the Supreme Court of Victoria. The assessor had denied the applicant's claim for compensation due to the significant delay in making the application, which was beyond the statutory period. The applicant appealed this decision, arguing that an extension of time should be granted for the application due to exceptional circumstances.

The court was required to determine whether the delay in making the application for compensation was so substantial that it warranted denying the claim outright. The central legal issue was whether the statutory time limit for making the application could be extended due to exceptional circumstances. The court had to consider the relevant statutory provisions, the principles governing the granting of extensions of time, and the specific facts of the case.

The court examined the statutory provisions governing the application for compensation and the principles established in previous cases concerning extensions of time. It considered the nature and extent of the delay, the reasons for the delay, and whether there were any exceptional circumstances that justified an extension. After careful consideration, the court found that the delay was not so significant as to preclude the grant of compensation, and that exceptional circumstances did indeed warrant an extension of time. The appeal was allowed, and the matter was remitted to the assessor for reconsideration of the application on its merits.

The final orders of the court were that the applicant's appeal against the refusal to award compensation be allowed, and that the matter be remitted to the assessor for reconsideration of the application on its merits. The court emphasized that the assessment of the application would now be based on the merits of the case, rather than the delay in making the application.

Orders