Re Goodwin

Case [2020] WADC 128

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RE GOODWIN [2020] WADC 128

CORAM:   LEVY DCJ

HEARD:   4 MAY 2020

DELIVERED          :   25 SEPTEMBER 2020

FILE NO/S:   APP 87 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:   THOMAS JOHN GOODWIN

Appellant

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   K HAFFORD

File Number            :   CIC 3159 of 2018 and CIC 3160 of 2018


Catchwords:

Appeal against decision of criminal injuries assessor - The application of state laws to Commonwealth places generally - Does the Criminal Injuries Compensation Act 2003 apply to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act (Cth)? - The effect of the Christmas Island Act - Does an assessor have power to exercise federal jurisdiction - Is an assessor a court of a state? - Is an assessor, in determining an application for criminal injuries compensation in respect of a Commonwealth place, exercising judicial or administrative power? - Judicial power as distinct from administrative power - Is jurisdiction enlivened on an appeal to the District Court?

Legislation:

Christmas Island Act 1958 (Cth)
Commonwealth of Australia Constitution Act (Cth)
Commonwealth Places (Administration of Laws) Act 1970 (WA)
Commonwealth Places (Application of Laws) Act 1970 (Cth)
Criminal Code
Criminal Injuries Compensation Act 2003 (WA)
Migration Act 1958 (Cth)

Result:

Appeal allowed
Compensation reassessed and varied

Representation:

Counsel:

Appellant :

Ms V E Long-Droppert
Amicus Curiae : Mr J F Bennett on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant :

Foyle Legal
Amicus Curiae : State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481

B v W (1989) 6 SR (WA) 79

Cahill v Smith [2015] WADC 148

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Casinos Austria International (Christmas Island) Pty Ltd v Christmas Island Resort Pty Ltd (Unreported, WASC, Library No 980726, 16 December 1998)

Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] HCA 62; (1953) 88 CLR 168

Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85

Cullinane v Tomlinson (1997) 18 SR (WA) 63

Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45

Goodwin [2019] WACIC 24

GS v MS [2019] WASC 255

Guy v Hampson [2019] WADC 19

Hinchcliffe v Hinchcliffe [2010] WADC 78

Hogben v Darcy [2009] WADC 63

Houlahan v Pitchen [2009] WASCA 104

Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330

JMT [2005] WACIC 33

Kwong v Abdulwahab [2016] NSWCA 107

Li v Commonwealth of Australia [2002] FCA 1251

M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)

Martin v Martin [2015] WADC 138

Medlin v State Government Insurance Commission [1995] HCA 5

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AGLC
Re Goodwin [2020] WADC 128
Case
[2020] WADC 128
Decision Date

CaseChat Overview and Summary

In the case of Re Goodwin, the appellant contested a decision made by a criminal injuries assessor regarding compensation for injuries sustained in two separate incidents at Yongah Hill Immigration Detention Centre. The matter was brought before the District Court of Western Australia. The central legal issues revolved around the jurisdiction of the criminal injuries assessor in relation to Commonwealth places and the applicability of state laws to these areas.

The court examined whether the Criminal Injuries Compensation Act 2003 applied to Commonwealth places via the Commonwealth Places (Application of Laws) Act. The court also considered whether an assessor had the power to exercise federal jurisdiction and if, in determining an application for criminal injuries compensation, the assessor exercised judicial or administrative power. The distinction between judicial and administrative power was critical, as only a state court could be vested with federal judicial power as per the Constitution.

The court concluded that the Criminal Injuries Compensation Act 2003 did not apply to Commonwealth places like Yongah Hill Immigration Detention Centre. The court held that the assessor was not a court of the state and therefore did not possess federal judicial power unless explicitly vested with such power through an arrangement under the Commonwealth Places (Application of Laws) Act. The court found that the assessor was exercising administrative, not judicial, power in determining the compensation claim. Consequently, the District Court did not have jurisdiction to award compensation for injuries sustained in the Yongah Hill incident. However, the court found it necessary to make findings of fact concerning both incidents to assess the extent of injuries suffered in the Christmas Island incident and any impact on the appellant's earning capacity.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Furthermore, the CEO submits that on a hearing de novo, as is required by the Act, the matter is heard afresh and, save where permitted,[139] determined 'solely on the evidence and information that was in the possession of the assessor'.[140] An appellate court, in a hearing de novo, essentially exercises an original jurisdiction in place of the original decision maker.[141] Conclusion on whether jurisdiction in relation to the Yongah Hill incident is enlivened on an appeal to the District Court[139] The Act s 56(1).[140] The Act s 56 (1). [141] Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 686 (Kirby P). I accept the CEO's submission that on an appeal the District Court effectively 'stands in the shoes' of the assessor.[142] The District Court is a state court for the purposes of an appeal under the Act. Save for the limited ways set out under s 56(2), its jurisdiction cannot exceed those of an assessor.[143] [142] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 719 (Griffith CJ).[143] Turnbull v NSW Medical Board [1976] 2 NSWLR 281, 288 (Moffat P). Consequently, I find that the jurisdiction to award compensation to the appellant in relation to the Yongah Hill incident is not enlivened on an appeal to this court. Section 17(2) makes clear that compensation can only be awarded with respect to an injury suffered by a person 'as a consequence of the commission of ‘the alleged offence' (emphasis added). The learned assessor noted that some of the injuries the appellant claimed he suffered as a result of the second incident were also injuries claimed with respect to the first incident. Consequently, although I have found that an assessor does not have jurisdiction to award compensation in relation to the first incident (Yongah Hill incident), it is necessary to make findings of fact with respect to both incidents to distinguish, if possible, between the injuries suffered by the appellant in each incident. These findings may be relevant in determining:(a)the extent of any injury suffered by the appellant in relation to the Christmas Island incident, and(b)whether any reduction in the appellant's earning capacity due to the injuries suffered in the Yongah Hill incident on 12 November 2015 did not result in a loss of earnings. Before considering the injuries allegedly suffered by the appellant as a consequence of the Yongah Hill incident, I note that the learned assessor considered the question of whether the appellant did everything necessary to assist authorities in the investigation of any alleged offence. Section 38 of the Act provides that an assessor must not make a compensation award in favour of an applicant if the assessor is of the opinion that the applicant 'did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence (or alleged offence)'. I have set out the history of the appellant's complaint to authorities at [28] - [40] above. I am satisfied that s 38 has no application in this case.

Ratio Decidendi

Legal Principle Established

The application of s 7 and s 8 of the COPAL Act (Cth) has limitations in that, by virtue of the Constitution, only a court of a state can be vested with federal judicial power.[55][55] Waterside Workers Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 467 (Issacs & Rich JJ). Further, s 6(2) of the COPAL Act (Cth)[56] provides another way in which an 'authority' may exercise their various powers, duties and functions:The Governor General may make an arrangement for the Governor of a State for or in relation to the exercise or performance of the power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions having effect in or in relation to a Commonwealth place in that State and, where such an arrangement is enforced the power, duty or function may or shall as the case may be exercised or performed accordingly.[56] Section 4(1) of the COPAL Act (WA) is in similar terms. Both the COPAL Act (Cth) and the COPAL Act (WA) define the term 'authority, in relation to a State' to mean:[57](a)the governor, a minister or a member of the Executive Council of the State;(b)a court of the State;(c)a person who holds office as a member of a court of a State;(d)a body created by or under the law of the State; and(e)an officer or employee of the State or of a body referred to in the last preceding paragraph.[57] COPAL Act (Cth) s 3; COPAL Act (WA) s 3. If an assessor appointed under the Act is not a court of the state, then an assessor would clearly be 'an officer or employee of the State or of a body' being a 'body created by or under the law of the State'. Consequently, the Act applies to Yongah Hill Immigration Detention Centre as a surrogate federal law and the assessor, if exercising powers or functions under the Act in relation to Yongah Hill Immigration Detention Centre, would be exercising federal jurisdiction. For the reasons already discussed and set out at [89] - [99] above, the Act covers the alleged offences that occurred at Yongah Hill Immigration Detention Centre. There are two different pathways by which an assessor may be vested with federal jurisdiction. First, as already noted above, s 7(1) of the COPAL Act (Cth) vests state courts with federal jurisdiction in relation to Commonwealth places. Thus, an assessor might be vested with federal powers pursuant to the COPAL Act (Cth), but only if the assessor is sitting as a state court. Secondly and alternatively, a gazetted arrangement may be made between the Commonwealth and a state. Such an arrangement may be made between the Commonwealth and the state of Western Australia pursuant to s 6(2) of the COPAL Act (Cth). Section 6(2) (and s 4(1) of the COPAL Act (WA) being in similar terms), reads as follows:The Governor-General may make an arrangement with the Governor of a State for or in relation to the exercise or performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions having effect in or in relation to a Commonwealth place in that State and, where such an arrangement is in force, the power, duty or function may or shall, as the case may be, be exercised or performed accordingly. (emphasis added)