Re Esmayili - [2014] WADC 38

RE ESMAYILI [2014] WADC 38

Last Update: 29/04/2014

RE ESMAYILI [2014] WADC 38
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 38
Case No:	APP:69/2013	Heard:	14 FEBRUARY 2014
Coram:	BRADDOCK DCJ	Delivered:	31/03/2014
Location:	PERTH	Supplementary Decision:
No of Pages:	16	Judgment Part:	1 of 1
Result:	Appeal allowed Compensation order of assessor varied
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram: L V DEMPSEY Citation: [2013] WACIC 22
Parties:	HADI ESMAYILI
Catchwords:	Criminal injuries compensation Alleged offence Extension of time for appeal Quantum of award of damages Further evidence on appeal
Legislation:	Criminal Injuries Compensation Act 2003, s 17, s 18(2), s 55(3), s 55(4), s 31(1)
Case References:	A v D (1994) 11 WAR 481 Bedetti v Chief Executive Officer [2003] WADC 37 Esmayili [2013] WACIC 22 Fagen v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666 Gallo v Dawson (1990) 93 ALR 479 Hogben v Darcy [2009] WADC 63 Medlin v State Government Insurance Commission (1995) 182 CLR 1 RBF v OSD-S [2004] WADC 97 S v Neumann (1995) 14 WAR 452

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : RE ESMAYILI [2014] WADC 38 CORAM : BRADDOCK DCJ HEARD : 14 FEBRUARY 2014 DELIVERED : 31 MARCH 2014 FILE NO/S : APP 69 of 2013 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

AND

IN THE MATTER of an application by

HADI ESMAYILI

Appellant

ON APPEAL FROM:

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram : L V DEMPSEY

Citation : [2013] WACIC 22

Catchwords:

Criminal injuries compensation - Alleged offence - Extension of time for appeal - Quantum of award of damages - Further evidence on appeal

Legislation:

Criminal Injuries Compensation Act 2003, s 17, s 18(2), s 55(3), s 55(4), s 31(1)

Result:

Appeal allowed
Compensation order of assessor varied

Representation:

Counsel:

Appellant : Mr McCabe

Amicus Curiae

: Mr Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant : Slater & Gordon

Amicus Curiae

: State Solicitor of Western Australia

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

A v D (1994) 11 WAR 481
Bedetti v Chief Executive Officer [2003] WADC 37
Esmayili [2013] WACIC 22
Fagen v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Hogben v Darcy [2009] WADC 63
Medlin v State Government Insurance Commission (1995) 182 CLR 1
RBF v OSD-S [2004] WADC 97
S v Neumann (1995) 14 WAR 452

BRADDOCK DCJ:

Introduction

1 This is an appeal from a decision of an assessor of criminal injuries compensation made on 31 July 2013: Esmayili [2013] WACIC 22 (CIC decision).

2 On 15 January 2012, Hadi Esmayili was in Northbridge, Perth at the corner of Aberdeen and Beaufort Streets, with a friend and his brother. It was…

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.

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Details

AGLC: Re Esmayili [2014] WADC 38
Case: [2014] WADC 38
Decision Date

CaseChat Overview and Summary

The appellant, Hadi Esmayili, sought to appeal an assessment of criminal injuries compensation made on 31 July 2013 by the Criminal Injuries Compensation Assessor of Western Australia. The appeal was heard by the District Court of Western Australia, presided over by His Honour Judge Braddock, on 14 February 2014. Esmayili was assaulted on 15 January 2012 in Northbridge, Perth, suffering a comminuted fracture of his jaw and damage to his teeth, requiring surgery. The police were unable to apprehend the assailant and no charges were laid. Esmayili applied for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (the Act). The assessor awarded $37,426.90. Esmayili appealed the amount of the award on the basis that the assessor failed to give sufficient weight to his psychological trauma. The appeal was out of time by 16 days. The court found it was just to allow the appeal to proceed. The court heard further evidence from a forensic psychologist, David Sullivan, and considered photographs of Esmayili before and after the assault. The court concluded that the assessor had not taken full account of Esmayili's psychological injury due to a lack of proper evidence. The court found that the award of general damages of $30,000 was inadequate and substituted an award of $60,000. The court also found Esmayili entitled to compensation for economic loss of $50,000. The total award was $128,605.90, which exceeded the jurisdictional limit of $75,000. The court reduced the award to $75,000 in compliance with the Act. The appeal was allowed, the compensation order of the assessor was set aside, and a new award of $75,000 was made to Esmayili.

Orders