| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RE DEL PIZZO [2014] WADC 20 CORAM : DEANE DCJ HEARD : 4 SEPTEMBER 2013 DELIVERED : 13 FEBRUARY 2014 FILE NO/S : APP 38 of 2013 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN : ENRICO SIMON DEL PIZZO
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : L V DEMPSEY File No : CI 000989 of 2012 Catchwords: Criminal injuries compensation - Application for compensation made to assessor lodged nearly eight years after expiration of time limit in which to do so - Reasons for delay - Conceded by appellant delay is substantial - Preliminary issue of delay to be determined first on appeal Legislation: Criminal Injuries Compensation Act 2003 Result: Appeal dismissed on preliminary issue
Representation: Counsel:
Appellant : Mr K S Pratt
Amicus Curiae : Mr J D Berson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : CLP Legal Pty Ltd
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Aiello v Marrickville Council [2005] NSWCA 194
Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1
DNA v Britten (1995) 14 SR (WA) 325
Dos Santos v Dos Santos [2000] WADC 256
Eggins v Vrooms Head Bowling & Recreational Club Ltd (1986) 5 NSWLR 521
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30
Hinchcliffe v Hinchcliffe [2010] WADC 78
In Re Karra (1984) 2 SR (WA) 97
McLoughlin v The Assessor of Criminal Compensation (1999) 21 SR (WA) 311
Ratnam v Cumarasamy [1964] All ER 933
S v Neumann (1995) 14 WAR 542
Shilcock [2007] WADC 168
Walker v Fares Rural Co Pty Ltd [2001] WADC 94
1 DEANE DCJ: This is an appeal by notice of appeal dated 2 May 2013 against the Criminal Injuries Compensation Assessor's refusal to grant the appellant an extension of time within which to lodge a claim for criminal injuries compensation. The appeal is brought pursuant to s 55(1)(a) of the Criminal Injuries Compensation Act 2003 (the Act) which grants a right of appeal to this court against a decision of the assessor to make or refuse to make a compensation order. Pursuant to s 56(1) of the Act the appellant's application must be dealt with afresh and this court is not fettered by the determination of the assessor: In Re Karra (1984) 2 SR (WA) 97, 101. Pursuant to s 56(2)(b) of the Act this court may confirm, vary or reverse an order of the assessor and in this case the appellant seeks a reversal of the assessor's order or decision whereby the appellant was refused an extension of time in which to lodge his application. The court may admit additional evidence or material on the hearing of an appeal pursuant to s 55 of the Act and is not confined to doing so on the basis that 'special grounds' exist: Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194. Further it is open to the court hearing the appeal to allow the appeal and to make an award of compensation: Dos Santos v Dos Santos [2000] WADC 256. Given this appeal is a hearing de novo, this court is obliged to consider afresh the issue of whether an application should be allowed because the time limitation in which to do so has expired: Hinchcliffe v Hinchcliffe [2010] WADC 78 [24].
2 At the hearing of this appeal and at the request of counsel for the appellant the argument was largely limited to whether or not this court ought to grant leave in relation to an extension of time in which to lodge a claim. This was to take into account the appellant's financial resources given that the appellant is instructing solicitors and accepts that if he is unsuccessful in obtaining an order from this court that there be an extension of time in which to lodge an application for criminal injuries compensation that would be the end of the matter. In the event that the appellant were to succeed in obtaining an extension then a further appearance and hearing would be required to hear in greater detail argument as to the merits of the appeal. Those merits were touched on in any event in the course of the application for the extension of time because in determining this issue a factor which must be considered is whether the appellant has an arguable case. 3 The threshold question to be determined however is that concerning whether or not in the circumstances the appellant should be granted an extension of time in which to lodge his application for criminal injuries compensation. There is no respondent to this appeal and the proposal made by counsel for the appellant was not objected to by counsel appearing as amicus curiae for the chief executive officer. 4 Before proceeding to consider the appeal against the assessor's refusal to grant an extension of time in which to lodge the application it is necessary to set out the background to this matter. On 15 September 2001 the appellant, Mr Del Pizzo, was driving his motor vehicle in a southerly direction on Stirling Highway in North Fremantle. Another vehicle driven by Mr Simon Hall was travelling in the same direction behind the appellant's vehicle. The appellant slowed his vehicle down and the vehicle driven by Mr Hall collided with the back of the appellant's vehicle causing extensive damage to the rear of the appellant's vehicle. According to the police report in relation to the accident there was also extensive damage caused to the front of Mr Hall's vehicle. That report further notes that at the scene there was a long set of skid marks approximately 25 m in length indicating that 'there was maybe speed involved' on behalf of the vehicle driven by Mr Hall, so it is not entirely accurate to assert there definitely was speed involved as a causative factor though clearly the damage to the vehicles supports such a proposition. The report then notes that there was some complaint from the appellant regarding a sore back resulting from the accident. At the time of the accident conditions were clear, the road surface was dry, level and straight. 5 Following the accident, Mr Hall was charged with the offence that he drove with a blood alcohol exceeding 0.08 under s 64(1) of the Road Traffic Act 1974 and he was fined $1,000. This is a simple offence. There are no other offences recorded against Mr Hall as having occurred on 15 September 2001 nor were Western Australian police able to provide information as to whether any other charges were laid. 6 The appellant later settled a motor vehicle personal injury claim with the Insurance Commission of Western Australia by way of a deed dated 17 October 2003 for the sum of $16,825.20 at a pre-trial conference held at the District Court of Western Australia. As I understand it that consisted of $12,000 by way of damages payable to the appellant and the remainder of the sum was relevant to various costs associated with the claim. It is common ground that following the accident the appellant had a period of three years (which would have expired on 14 September 2004) in which to lodge a claim for criminal injuries compensation. This did not occur for reasons which will be referred to in the course of this judgment. 7 It is said that the appellant suffered injuries on 15 September 2001 as a result of being involved in the motor vehicle accident. He attended his general practitioner, Dr Gavez, complaining of bruising, tenderness in the right shoulder as well as soreness in the neck and back. A radiological report dated 22 October 2001 indicates that the disc heights, vertebral bodies and facet joints of the lumbosacral spine were normal and there was no evidence of any spondylolisthesis or pars defect. Both SI joints were normal. A dynamic localised bone scan of the head and neck returned normal results. On 22 October 2001 the appellant attended Dr Gavez again complaining of paraspinal spasms in the lower back area but as previously stated an x-ray of the lumbar spine was normal. On 4 December 2001 the appellant attended Dr Gavez complaining of persistent pain on the right side of his neck in combination with persistent lower back pain but again spinal x-rays returned normal results. Dr Gavez noted that in some cases whiplash injuries or their symptoms can persist for a period of 18 to 24 months following an accident so in that sense it may take some time for symptoms to resolve. 8 In a report dated 4 October 2002, Dr Flahive noted that the appellant had sustained soft tissue injuries to his cervical spine, right shoulder and lower back as a result of his involvement in the motor vehicle accident on 15 September 2001. However, Dr Flahive was of the opinion that it was not a serious injury and that the symptoms were intermittent so he predicted that the appellant was likely to make a full recovery. He noted that the appellant had also been involved in a motor vehicle accident in May 2001 where he sustained a soft tissue neck injury from which he had largely recovered. In his opinion the appellant's disability from each of the two motor vehicle accidents in which he was involved had been mild and there was little impact on his ability to undertake daily living activities. He recommended some physiotherapy by way of treatment in combination with regular stretching and exercise for a time. 9 Mr Williams, an orthopaedic surgeon, prepared a report dated 22 March 2012 having reviewed the appellant for the first time on 29 February 2012. In his view the second motor vehicle accident resulted in a significant increase in neck and right shoulder symptoms as well as lumbar back pain. There was tightness in the cervical spine at the extremes of extension and restriction in rotation but there was full right and left shoulder vertical elevation with no tenderness about the acromioclavicular joint areas. The lumbosacral spinal x-ray of October 2001 showed no evidence or traumatic or degenerative abnormality and there had been a gradual resolution of the appellant's back pain. Mr Williams was of the opinion that as a result of these symptoms there was some physical restriction in the appellant's ability to partake in social, sporting and recreational activities as well as carrying out domestic duties and some employment. He recommended regular exercise to build up core muscle strength around the spine. In his view the accident of 15 September 2001 contributed 50% to the appellant's symptoms and the remaining 50% was due to degenerative changes. He considered that the appellant had been left with a low level of annoying disability being cervical restriction in extension and rotation arcs particularly. He assessed the cervical disability at a level of 15 - 20% and considered that the accident contributed 50% to that disability. The disability level would be lowered with participation for the following 12 months in fitness programmes. 10 It is to be noted that Mr Williams' report is in no way contemporaneous in the sense that he did not examine the appellant until over 10 years after the accident. It is also the case that none of the medical practitioners involved in this matter were asked to consider the question of whether or not there was any injury suffered by the appellant which caused or was likely to cause permanent injury to health as a result of the appellant being involved in the motor vehicle accident in question. Whilst it is not a criticism, rather an observation, it would seem that the main focus of the medical evidence collected in the period following the accident was with a view to the appellant pursuing his civil claim, which as has been noted was ultimately settled. 11 Counsel for the appellant asserted that there are some features relating to this matter concerning developments in the interpretation of the relevant law since the time of the alleged offending on 15 September 2001, as a consequence of which it is conceded that there has been a very considerable delay in the appellant seeking an extension of time in which to make an application for criminal injuries compensation. This aspect of the matter will be elaborated upon in the course of these reasons. 12 Section 37(3) of the Act says: An assessor must not make a compensation award in favour of — (aa) an injured victim in respect of the injury or any loss suffered by the victim; or (ab) the personal representative of a deceased victim, in respect of any loss suffered by a close relative of a deceased victim, as a consequence of the commission of an offence if satisfied that the injury or death was caused directly by, or by the driving or other use of, a motor vehicle unless — (a) the motor vehicle was used for the purpose of committing the offence; and (b) the offence is a crime. 13 In Shilcock [2007] WADC 168 [16] Groves DCJ interpreted the term 'crime' in s 37(3)(b) of the Act to exclude 'proved offences' where such offences were indictable offences that had been tried summarily. 14 In Caddy v Assessor of Criminal Injuries Compensation (1997) 18 SR (WA) 1, 3 (Caddy) Commissioner Greaves considered s 24B of the Criminal Injuries Compensation Act 1985 (WA) (the 1985 Act) which was the predecessor of s 37(3) of the Act. In that case he interpreted the phrase 'for the purpose of' as requiring that the motor vehicle was driven or otherwise used, with the intent of doing the act which constituted the offence that was said to have caused the injury or loss for which compensation was claimed. In substance, there is no material difference between the text of s 24B of the 1985 Act and that of s 37 of the Act: Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASCA 129 [70]. 15 As I understand the situation outlined by counsel for the appellant, an application for criminal injuries compensation was not made within the required three- year period following the accident because it was believed that the law as set out in Caddy's case precluded such an application being made. 16 Following the decision of the majority of the Court of Appeal in Re Judge Schoombee which was delivered on 10 June 2011 it was determined that a broader approach to the issue of interpretation should be adopted. 17 It is necessary to consider the circumstances and background of that particular case. It came before the Court of Appeal following a decision of Schoombee DCJ in relation to an appeal before her Honour concerning the interpretation of s 37(3)(a) of the Act and the issue as to whether the appellant, Mr Devos, was entitled to criminal injuries compensation in circumstances where the offender, Mr James, had used a car for the purpose of committing the offence. Mr James had reversed his car at a petrol station having failed to look behind him as a result of which his vehicle had pinned Mr Devos' leg between the rear of Mr James' vehicle and the front of Mr Devos' car. There were other issues involved but for the purpose of this appeal the focus is on that matter previously outlined. 18 Following the accident Mr Devos made an application pursuant to the Act for an award of compensation in respect of the injury sustained to his leg. At the time the assessor was advised that Mr Devos had made a claim for damages pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) in respect of that same injury and the claim had been settled. The reason for making an application for criminal injuries compensation was to try to obtain general damages which Mr Devos had not been able to recover in his insurance claim. The assessor refused to make an award of criminal injuries compensation on the basis that s 37 of the Act prohibited the making of such an award. It was this decision that grounded an appeal to the District Court which was allowed when Schoombee DCJ determined that s 37 of the Act did not preclude the assessor from making an award of criminal injuries compensation. The reason for that was that her Honour saw no reason why the court would not be entitled to refer the assessment of compensation payable back to the assessor. It was following this decision that the Attorney General applied to the Supreme Court for a writ of certiorari to quash Schoombee DCJ's decision or in the alternate for a writ of prohibition to prohibit her Honour from making an award of criminal injuries compensation under the Act or directing the assessor to do so. 19 In his judgment Buss JA considered the provisions of s 59 of the Road Traffic Act1974 and the definition in s 1 of the Criminal Code (WA) (the Code) of 'grievous bodily harm' meaning 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'. Dangerous driving causing grievous bodily harm was designated as a 'crime' in s 59(1) of the Road Traffic Act. 20 His Honour then went on to consider the provisions of s 24B of the 1985 Actwhich as has been noted was the precursor to s 37 of the Act. His Honour noted that in her reasons Schoombee DCJ arrived at the conclusion that the 'proviso' (as she described it) in s 37(3)(a) and s 37(3)(b) of the Act applied to the application for compensation by Mr Devos on the basis that 'a motor vehicle was used in the commission of the offence as a consequence of which Mr Devos suffered injury and the offence was a crime'. This was of course a departure from two previous decisions delivered in the District Court being Caddy and Shilcock. Schoombee DCJ was of the view that the phrase 'for the purpose of committing the offence' contained in s 37(3)(a) required only that the motor vehicle was used in the commission of the offence as a consequence of which the injury was caused and it was irrelevant whether or not the respondent, Mr James, intended to drive dangerously or to cause harm to another person. 21 It should be noted that when Mr James was convicted in the Magistrates Court it was in relation to a charge of unlawfully causing grievous bodily harm to Mr Devos, which is a different charge from the one of which Mr Hall was convicted. Nonetheless, at the time of Mr James' conviction, s 3(5) of the Code provided that if a person was convicted by a court of summary jurisdiction of an 'indictable offence' that conviction was regarded as being a conviction for a 'simple offence' only unless another written law provided to the contrary. An offence designated as a 'crime' was an 'indictable offence', s 67(1a) of the Interpretation Act 1984 (WA). Further, Schoombee DCJ held, contrary to Groves DCJ in Shilcock, that s 3(5) of the Code did not apply to s 37(3)(b) and as a result the fact that Mr James was summarily convicted in the Magistrates Court of a crime created by s 59(1) of the Road Traffic Act did not preclude Mr Devos' claim for criminal injuries compensation. 22 It is not necessary for the purpose of this exercise to discuss in great detail the reasoning of Buss JA in his judgment other than to note that his Honour observed that s 37(3)(a) concerns itself with the particular use that was made of a vehicle 'for the purpose of committing the offence'. It does not refer to an offender or accomplice who made use of the vehicle or the purpose of that person. He was of the opinion s 37 did not create an offence and therefore was not part of the criminal law because an application for a compensation award is only made after the offence has been committed. In his Honour's view the subjective state of mind of the offender or an accomplice or their subjective purpose in driving or using the motor vehicle was not the 'purpose' in relation to which s 37(3)(a) was concerned. He noted that s 37(3)(a) was concerned with the need for a connection in fact between the driving or other use of the vehicle on the one hand and the commission of the offence on the other. 23 In the end, Buss JA was not persuaded that Schoombee DCJ made a material error in her construction of s 37(3) of the Act. His Honour took the view that in relation to s 37(3)(a) of the Act, Mr James' vehicle was used 'for the purpose of committing the offence of dangerous driving causing grievous bodily harm, contrary to s 59(1) of the Road Traffic Act because his use of the vehicle objectively facilitated the dangerous driving and on that same basis caused grievous bodily harm to Mr Devos, both being elements of the offence in question. He did not consider the pre-condition set out in s 37(3)(a) of the Act required Mr Devos to prove or establish that Mr James' subjective state of mind was one whereby Mr James deliberately determined to use his vehicle for the purpose of driving dangerously or causing grievous bodily harm. In the context of s 37(3)(b) of the Act the offence committed against s 59(1) of the Road Traffic Act by Mr James was a 'crime' and further that s 37(3)(b) encompassed a conviction for a crime that was tried summarily. 24 Following the decision of the majority in the Court of Appeal Mr Del Pizzo was contacted by his legal advisors and instructed them to lodge an application on his behalf seeking an award of criminal injuries compensation. It would seem there was then a delay of some seven months before that application was submitted on 5 July 2012. Counsel for the appellant explained that this delay was due to the time required to obtain relevant information from various authorities and sources in order to prepare the application. In any event, the application was lodged some nine years and seven months after 14 September 2003 when the time for submitting such an application had expired. As has previously been noted, the length of the delay is therefore very considerable. 25 In that application the appellant's legal advisors set out the circumstances of the accident and referred to various medical reports regarding the injuries sustained by the appellant in that accident or as a result of that accident. Claims were made for the appellant's alleged injuries and bodily and mental harm arising out of the offence in addition to report expenses, past medical treatment, future medical treatment, travel expenses. Reference was also made to the appellant's settlement of his motor vehicle personal injury claim with ICWA and the basis for why the claim was settled rather than proceeding to trial. It was pointed out that the appellant sought an award of criminal injuries compensation to reflect the overall inadequacy of the settlement and the threshold gap amount of $17,500. Reference was made to the Court of Appeal decision in Re Judge Schoombee. 26 In correspondence from the assessor LV Dempsey dated 2 November 2012, reference was made to the assessor being supplied with information from ICWA, the police and the courts. The charge of which Mr Hall was convicted and fined was also noted. A relevant incident report number or police brief number had not been able to be located, although the contents of the attending officer's report were made available to the assessor. 27 In the circumstances the assessor advised that she did not consider that the appellant's substantive claim had any merit and it was quite clear, although there was a typographical error, that the assessor was of the view which she later confirmed that it would not be just to allow the appellant's application to be made out of time. Reference was made to the fact that a recent application refused by the chief assessor had gone on appeal to the District Court on the same issue, namely, notwithstanding that the offender had not been charged with a crime but with only a simple offence whether that precluded a compensation award being made if under the same factual circumstances of the incident an alleged offence which would have been a crime had been committed. In response the appellant's legal advisors requested that the assessor defer making a final determination of the application pending the outcome of that appeal. 28 By correspondence dated 13 March 2013, the assessor LV Dempsey advised the solicitors who was acting for the appellant that the appeal referred to in her previous correspondence had been discontinued. The assessor remained of the view expressed in her correspondence of 2 November 2012 and requested a response from the appellant's legal advisors. 29 On 5 April 2013, they wrote to the assessor noting her comments regarding s 17 of the Act not being open to the assessor because any alleged offence would arise out of the same acts said to be the basis of the 0.08 excess blood alcohol charge. They took issue with the assessor's view stating that their opinion was the offence in relation to which Mr Hall had been convicted was committed from the time he commenced driving his motor vehicle, and if he had been breathalysed prior to the crash Mr Hall would have been charged with the same offence which could have occurred without him driving in a manner that would have been considered dangerous. Further, a submission was made that a separate alleged offence of dangerous driving causing grievous bodily harm occurred out of the same specific incident and that the set of circumstances which prevailed did not bring about the charge but merely constituted the incident that caused Mr Hall to be breathalysed by police. 30 It was argued that the set of circumstances giving rise to Mr Del Pizzo's claim were distinguishable from those in McLoughlin v The Assessor of Criminal Compensation (1999) 21 SR (WA) 311 to which the assessor had made previous reference. In that case the act giving rise to the charge of manslaughter of which the offender was acquitted were found to be precisely the same act giving rise to the alleged offence of assault occasioning bodily harm. The appellant's legal advisors pointed out that in their view in their client's case there were two distinct and separate acts giving rise to firstly, the offence of driving with a blood alcohol content exceeding 0.08% and secondly, the alleged offence of dangerous driving causing grievous bodily harm. It was argued that it could be said that in McLoughlin's case an alternative charge to manslaughter was available, being a charge of assault occasioning bodily harm, whereas in the appellant's case the alleged offence of dangerous driving causing grievous bodily harm could not be said to offer any alternative to the offence of which Mr Hall was convicted. 31 The appellant's legal advisors also stated that their view was that their client's disability as referred to in the medical reports provided satisfied the definition of grievous bodily harm for the purposes of the Road Traffic Act and further, that in the circumstances described in the attending officer's report, Mr Hall was driving in a manner which, in all of the circumstances and in particular involving excessive speed, was dangerous. Further explanation was given as to the reason for the delay in the appellant submitting his application for criminal injuries compensation and the fact that until the Court of Appeal decision in Re Judge Schoombee the appellant did not have any right to claim criminal injuries compensation prior to the date of delivery of that judgment. Once the judgment had been handed down it was submitted that the appellant had acted expeditiously and therefore it would not be unjust to permit the appellant to make his application out of time given that he had no legal right to make such an application in the three-year period following the offence. 32 By correspondence dated 12 April 2013 the assessor responded to those submissions. It was pointed out that the application was made nearly eight years out of time and reference was made to the explanation for why that was so. The assessor noted the comments made regarding the argument that the appellant had no legal right to make a claim for criminal injuries compensation prior to the decision in Re Judge Schoombee. She noted the submission on the part of the appellant's legal advisors that the decision in McLoughlin may be distinguished. Assuming that was the case the assessor stated that in her view there would therefore have been no reason why the appellant could not have made an application for criminal injuries compensation within the three-year time limit imposed by s 9 of the Act. The reason for this was, according to the assessor, as she pointed out in her correspondence of 2 November 2012, the decision in Re Judge Schoombee dealt specifically with the first leg of s 37(3)(a) of the Act: namely, whether the motor vehicle was used for the purposes of committing the offence. She stated that the decision of the Court of Appeal did not deal with the second leg being s 37(3)(b) of the Act namely as to whether the offence was a crime. On her understanding the legal advisors for the appellant were arguing that the incident was an alleged crime and in her view that would have always been the case. Therefore based on the submissions made on the appellant's behalf, the assessor considered that the decision in Re Judge Schoombee would have made no difference to the appellant being able to lodge an application for criminal injuries compensation at an earlier date. 33 Further, the assessor advised that in deciding whether to permit or allow a request for a grant of extension of time it was necessary to consider a number of relevant factors. Those factors are set out in the case of Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 being: (1) the length of the delay; (2) the reasons for the delay; (3) whether there is an arguable case; and (4) the extent of any prejudice suffered by the respondent. In relation to this factor it is not suggested that if an extension of time were to be granted it would cause any prejudice to a respondent. 34 Although the assessor did not make reference to it, the principles to be applied to an application to extend time to appeal are also set out in Walker v Fares Rural Co Pty Ltd [2001] WADC 94 where Muller DCJ referred to an observation by McHugh J (459) in Gallo v Dawson [1990] HCA 30 listing the principles as being essentially: 35 The grant of an extension of time in which to appeal is not automatic and before such an application can succeed there must be material upon which the court can be satisfied that to refuse the application would lead to an injustice so the discretion is aimed very largely at enabling justice to be done between the parties. As was pointed in Ratnam v Cumarasamy [1964] All ER 933, 935: The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. 36 In the end the assessor concluded that the significant length of the delay had made inquiries concerning the circumstances of the incident difficult. It meant that no further effective investigations into the incident were viable and that in turn made it difficult for the assessor to satisfy herself to the necessary standard as to the circumstances of the incident. On the very limited evidence available to her the assessor stated she was not satisfied that the appellant was a victim of an alleged crime of dangerous driving causing grievous bodily harm and in those circumstances she considered that she would have to refuse the appellant's substantive claim. She added that she did not consider the appellant's reasons for the delay in making the claim to be valid and so therefore did not consider it would be just to permit her to allow the appellant an extension of time within which to make his application and she refused to do so. Therefore pursuant to s 9(2) of the Act the assessor was not minded to exercise his discretion to allow an application to be made after the expiration of the three-year limitation period as she did not think it just to do so. It was following that correspondence that the appellant lodged his notice of appeal in the District Court on 2 May 2013. 37 The appellant brought his application for compensation in accordance with s 12(1) of the Act which relevantly states: A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered. or alternatively, s 17 of the Act which relevantly states: 38 When assessing the amount of compensation which should be awarded the court must pay regard only to the injury actually suffered in consequence of the commission of the offence and not the gravity of the offence itself: DNA v Britten (1995) 14 SR (WA) 325. In fixing the amount of compensation which should be awarded it is appropriate to apply the ordinary principles for assessment of damages subject to the jurisdictional limit imposed by the Act which at the time was $5,500: s 31(1) of the Act. This is merely a jurisdictional minute and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 542, 563. These principles would be applied in assessing compensation if on this appeal this court were to exercise its discretion to grant an extension of time in which to allow the appellant to lodge an application for criminal injuries compensation and then if the court were to find in favour of the appellant in relation to the merits of his application. 39 Counsel for the chief executive officer notes that the following issues are raised in this matter for the court's consideration being: (1) Whether an extension of time to make the compensation application should be granted as a result of the Court of Appeal decision in Re Judge Schoombee; (2) If such an extension is granted, the court may consider the following question: does s 37 of the Act preclude the making of a compensation award in favour of the appellant? If the appellant relies on the proved offence, it is clear that s 37 of the Act would preclude such a compensation order being made as the proved defence is a simple offence. 40 The reason for this is that at the time the offence occurred s 67 of the Interpretation Act 1984 (WA) provided, relevantly: (1) Offences are of two kinds: indictable offences and simple offences. (2) An offence not otherwise designated is a simple offence. In addition, s 3 of the Criminal Code provided that there were three types of offences being crimes, misdemeanours and simple offences with crimes and misdemeanours being indictable offences. So the Act maintained a distinction between crimes, misdemeanours and simple offences in the definition of 'alleged offence', 'proved offence' and in s 14 of the Act. When s 37(3)(b) of the Act uses the term 'crime' it is part of a scheme to confine the operation of the exception, by denoting the status and seriousness of the offending conduct which would enable an injured victim to obtain a compensation award in circumstances that they would otherwise be prohibited from doing so: Re Judge Schoombee (Buss JA) [61]. At the time of the offending s 64(1) of the Road Traffic Act was not designated as a crime or a misdemeanour and consequently fell into the category of a simple offence and therefore proved offence being the offence of which Mr Hall was convicted does not satisfy s 37(3)(b) of the Act. 41 On the other hand, s 59(1) of the Road Traffic Act as it applied at the time of the proved offence, designated dangerous driving causing grievous bodily harm as an 'indictable offence'. As a result an offence of dangerous driving causing grievous bodily harm against s 59(1) of the Road Traffic Act at the time and currently would satisfy the requirement of s 37(3)(b) of the Act. 42 The question is then raised that if the appellant relies on the alleged offence, being dangerous driving causing grievous bodily harm, does the conviction of Mr Hall for the offence of driving with a blood alcohol content in excess of 0.08% contrary to s 63 of the Road Traffic Act preclude a compensation order being made in respect of the alleged offence arising out of the same incident in the sense of whether the facts in this case can be distinguished from those in McLoughlin. If the answer to that were to be in the affirmative the next issue is whether the appellant could establish on the balance of probabilities that an alleged offence being dangerous driving causing grievous bodily harm occurred. In turn if that issue was to be answered in the affirmative the court would then be required to determine the appropriate amount of compensation which should be awarded to the appellant. 43 The case of McLoughlin was considered on appeal in the District Court in the context of the 1985 Act and in the end Viol DCJ held that a person could not make an application for compensation on the basis that the offence was a 'alleged offence' in circumstances where the offender was acquitted of a different offence but one which arose from the same act or omission as the alleged offence. Pursuant to s 13(4) of the Act and s 14(3)(c) of the 1985 Act the assessor cannot make a compensation award in relation to an alleged offence where there is an acquittal unless the assessor is satisfied that the offence was committed by a person other than the person who was acquitted of the offence. The reason for this is that to permit a person to make a compensation application where the alleged offender is acquitted of that offence but is also said to have committed the alleged offence which arises from the same act or omission would undermine the limitation in s 13(4) of the Act. The case of McLoughlin counsel for the chief executive officer argues can be distinguished from the circumstances in this case because here Mr Hall was convicted of a different offence to the alleged offence and those two offences, being the proved offence and the alleged offence, are comprised of different elements albeit that they arise from the same set of factual circumstances. 44 Counsel for the appellant takes issue with this analysis arguing that s 17 of the Act is available to the appellant and the reasons for why this assertion is made have been previously referred to in this judgment. Further it is said that the set of acts causing the crash and the subsequent injuries sustained by the appellant were as a result of Mr Hall travelling at an excessive and dangerous speed and failing to slow down in order to avoid a collision. In this regard pursuant to s 56(1) of the Act the appellant relies on the report of Mr Bob Davey, motor vehicle accident consultant, dated 1 August 2013 where he estimates the speed of Mr Hall's vehicle at between 84.5 km per hour and 97.69 km per hour at the time of braking prior to the accident. They also rely on the reported 25 m long skid mark noted in the police report indicating that Mr Hall attempted to prevent the collision by applying the brakes but was unsuccessful in doing so and this is said to be due to the alleged excessive speed at which his vehicle was travelling at the time. 45 The essential submission made on behalf of the appellant as to why an extension of time should be granted to allow the appellant to make an application for a criminal injuries compensation award is that in view of the lack of evidence of any intention on the part of Mr Hall to use his vehicle in order to do the act comprising the alleged offence of dangerous driving causing grievous bodily harm pursuant to s 59(1) of the Road Traffic Act, the appellant would have been refused an award of compensation by the assessor prior to the decision of Re Judge Schoombee. It is the case however a change or even a radical shift in common law after the expiration of the limitation period in the view of the New South Wales Court of Appeal in Aiello v Marrickville Council [2005] NSWCA 194 [37] (Mason P) is insufficient in itself to justify an extension of time in which to bring an application. This was also the view adopted in Eggins v Vrooms Head Bowling & Recreational Club Ltd (1986) 5 NSWLR 521, 524. That is not to say it must be discounted as a factor for consideration but of itself it cannot be said to justify the exercise of the court's discretion to grant an extension of time in which to make an application for compensation. In my view this is particularly so when the delay in doing so is very substantial as in this case. There are sound public policy reasons why limitation periods should be imposed and adhered to, not the least of which is that there must at some point be an end to litigation or the prospects of it. 46 The general outline of the arguments with respect to the merits of the application have been set out in these reasons for the sake of completeness and I am not required to make a final determination in relation to the respective arguments at this point, as the preliminary issue to be determined is that of whether in the light of the length of the delay this court should exercise its discretion to grant an extension of time in which to permit the appellant to make his application. That is the critical issue at this stage in the appeal. 47 Although there is material in the form of various reports which was available to the assessor and is available to this court, save for the reports of Mr Davey and Mr Williams that material is relatively brief and quite historic. As previously noted none of the treating doctors at the time were asked to direct their minds to the issue of any resulting grievous bodily harm which may have resulted to the appellant in consequence of being involved in the collision. The review and report of Mr Williams is quite recent and he certainly did not have the advantage of being involved with the matter or of reviewing the appellant at a time proximate to the collision. The report of Mr Davey is understandably to an extent based on limited material contained in the report of the police attending the scene and carrying out investigations at the time. There is no reference in that report of speed definitely being involved as a factor in the collision albeit that there were some skid marks noted on the road. 48 The time limitation period available to the appellant in which to lodge an application for criminal injuries compensation in this matter expired in excess of nine years ago. That is a very substantial period of delay and notwithstanding the reasons put forward as to why the delay occurred I am not persuaded that this court should exercise its discretion to permit an application for an extension of time to enable the appellant to lodge an application for criminal injuries compensation. In my view that significant delay would make it very difficult for a court to carry out further meaningful inquiries into the circumstances of the accident, particularly given that some information is not available or cannot be located. As has been previously noted a change in the law, even a radical change, is not of itself sufficient to persuade a court to exercise its discretion to grant such an extension. 49 In the light of the answer to this preliminary question on this appeal it is not necessary to proceed to an examination and determination of the merits of the application and the arguments raised by counsel in regard to that particular issue. 50 The appeal is therefore dismissed on the threshold and preliminary point of whether this court should grant an extension of time to the appellant in which to make a claim for an award of criminal injuries compensation.
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