Re Goodwin

[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; (1995) 182 CLR 1

Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group) [2020] VSCA 30

Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 257 CLR 402

Mulcahy [2010] WACIC 35

North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146

Owens v Menzies [2012] QCA 170; (2012) 265 FLR 392

Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167

Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148

R v Phillips (1970) 125 CLR 93

R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354

R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361

Re AK [2016] WADC 156

Re Utting [2011] WADC 10

RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

Robertson v Baker [2014] WADC 14

Robinson [2017] WADC 18

S v Neumann (1995) 14 WAR 452

Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39; (2008) 36 WAR 324

Santos v Director of Public Prosecutions (WA) [2016] WASCA 230

SJB [2012] WACIC 17

Smith v Alone [2016] NSWDC 265

State of New South Wales v Maxwell [2007] NSWCA 53

Subramaniam v Mental Health Review Tribunal [2012] NSWSC 918

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

TAW v NJS [2011] WADC 187

Trosic [2012] WACIC 11

Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185; (2006) 66 NSWLR 77

Turnbull v NSW Medical Board [1976] 2 NSWLR 281

Underwood v Underwood [2018] WADC 13

Waterside Workers Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434

Winiarczyk v Tsirigotis [2011] WASCA 97

Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89

Table of Contents

Part I: Background

Overview of the issues raised in this appeal

General legal principles applicable to this appeal

Summary of the Yongah Hill incident

Summary of the Christmas Island incident

Part II: Jurisdiction to award compensation

Applications for an award of compensation pursuant to s 17(2) of the Act

Christmas Island Immigration Detention Centre - How does the Act apply?

The Christmas Island Act 1958

Yongah Hill Immigration Detention Centre - Does the Act apply?

The application of state laws to Commonwealth places generally

First question: Does the Act apply to a Commonwealth place by virtue of the COPAL Act (Cth)?

Second question: Does the scope of the Act cover the alleged offence that occurred at Yongah Hill Immigration Detention Centre (being a Commonwealth place)?

Third question: Does an assessor have power to exercise federal jurisdiction?

(a)      Is there a relevant gazetted arrangement made between the Commonwealth and the state of Western Australia under the COPAL Act (Cth) which empowers an assessor to exercise powers under the Act in relation to a Commonwealth place?

(b)     Is an assessor a court of a state?

(c)      Is an assessor, in determining an application for criminal injuries compensation in respect of a Commonwealth place, exercising judicial or administrative power?

What is a 'court of a State'?

Judicial power as distinct from administrative power

The appellant's submissions on the issue of jurisdiction

The submissions of the amicus on behalf of the CEO on the issue of jurisdiction

CEO's submissions as to whether an assessor exercises judicial or administrative power

CEO's submissions as to whether an assessor is a court of a state

Conclusion as to whether an assessor has jurisdiction with respect to the Yongah Hill Incident

Part III: Did the appellant suffer an injury 'as a consequence of the commission of the alleged offence'?

Yongah Hill incident (first incident) - Medical evidence

Section 38 of the Act

Medical evidence before the learned assessor relating to the Yongah Hill incident (obtained before the Christmas Island incident and before the appellant returned to the United Kingdom)

Medical evidence before the learned assessor (obtained after the Christmas Island incident and before the appellant returned to the United Kingdom) and potentially relevant to the Yongah Hill incident

Christmas Island incident - Medical evidence

Medical evidence relevant to Christmas Island incident obtained before the appellant returned to the United Kingdom

The IHMS records

Wooroloo Prison Farm records relevant to the Christmas Island incident

Medical evidence after the appellant returned to the United Kingdom

Records of out of pocket expenses

Fresh evidence - Medical evidence and evidence relating to loss of earnings

The ongoing dizziness suffered by the appellant

The depression suffered by the appellant

Loss of earning capacity

Findings with respect to the incident at Yongah Hill Immigration Detention Centre - Injuries suffered as a consequence of a the alleged offence

Findings with respect to the incident at Christmas Island Immigration Detention Centre - Injuries suffered as a consequence of a the alleged offence

Christmas Island - Assessment of non-economic loss

Christmas Island - Assessment of loss of earning capacity

Application of findings to assessment of loss of earnings

Treatment expenses, travel expenses and loss of personal items

Summary of the assessment

LEVY DCJ:

Part I: Background

1. Thomas John Goodwin (the appellant) applied for compensation pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for injuries suffered by him as a result of alleged offences committed against him during two separate incidents.[1] 

   [1] The Act s 17(1) and s 17(2) applies where an 'alleged offence is committed but no person is charged with the alleged offence'; and 'a person suffers injury as a consequence of the commission of the alleged offence'.

2. The first alleged offence occurred at Yongah Hill Immigration Detention Centre on 12 November 2015 (Yongah Hill incident). 

3. The second alleged offence occurred at North West Point Immigration Detention Centre, also known as 'Christmas Island Immigration Detention Centre', on 13 October 2016 (Christmas Island incident).

4. The appellant claimed that he was assaulted during the course of both incidents and sustained various injuries.  No person was ever charged with a criminal offence in relation to either incident.

5. On 1 November 2019, Assessor Hafford awarded the appellant criminal injuries compensation in the sum of $7,597 pursuant to s 30 of the Act in relation to the Christmas Island incident.  The amount of compensation comprised $7,500 for non-pecuniary loss and $97 for medical reports.  The learned assessor refused to make an award of compensation to the appellant in relation to the Yongah Hill incident on the basis that she did not have jurisdiction to do so.

Overview of the issues raised in this appeal

1. The appellant now appeals against the learned assessor's decision.  The appeal challenges the learned assessor's conclusions that:

   (a)there was no jurisdiction to award compensation with respect to the Yongah Hill incident and the consequential failure to award any compensation accordingly;

   (b)any reduction in the appellant's earning capacity due to the injuries suffered in the Yongah Hill incident on 12 November 2015 would not result in a loss of earnings;

   (c)although the appellant experienced dizziness immediately after the Yongah Hill incident, this resolved and no ongoing complaints of dizziness were made in relation to this incident; and

   (d)the appellant recovered well from his injuries arising from the Christmas Island incident on 13 October 2016.

2. The appellant does not contend that the amount of $7,500 awarded for non-pecuniary loss with respect to the second incident was inadequate, however for reasons that are explained below, I have found that the amount should be increased.

3. The appellant also seeks to introduce fresh evidence on the appeal relevant to the injuries he suffered and thus the total appropriate award of compensation.

General legal principles applicable to this appeal

1. An appeal under the Act is a hearing de novo.[2]  Consequently, there is no requirement for the appellant to demonstrate error on the part of the learned assessor.

   [2] The Act s 53(3). 

2. The court may confirm, vary or reverse the assessor's decision either in whole or in part.[3]

   [3] The Act s 56(2)(b). 

3. The appeal is to be determined 'without being fettered by the assessor's decision'.[4]

   [4] The Act s 56(1). 

4. Authorities conflict on whether it is appropriate to have regard to the assessor's reasons.  Earlier authorities suggest that it is.[5]  More recently however, a number of authorities suggest that the appeal is to be determined without regard to the reasons for the decision of the assessor.[6]

   [5] Hogben v Darcy [2009] WADC 63 [13].

   [6] Guy v Hampson [2019] WADC 19 [14]; Robinson [2017] WADC 18 [9].

5. The court may decide the application solely on the evidence and information that was in possession of the assessor or may receive further evidence and information.[7]

   [7] The Act s 56(1).

6. On an appeal the court has a general discretion to receive and admit further evidence without the necessity for a formal application being made seeking to adduce fresh evidence.[8]  The court will ordinarily permit fresh evidence to be admitted 'unless there is some reason why it would be unjust to do so'.[9]

   [8] Underwood v Underwood [2018] WADC 13 [36]; Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).

   [9] Underwood v Underwood; Cahill v Smith; Robinson; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ).

7. The appellant seeks to rely on fresh evidence on the appeal.  No objection has been made to the reception of such evidence.  Nor, if I conclude that there is jurisdiction to make an order, am I aware of any reason not to consider the fresh evidence.

8. On an appeal, in the exercise of my discretion I am empowered to make an award of compensation in an amount that I am satisfied is just for the injury and for any loss suffered by the appellant.[10]

   [10] The Act s 30 and s 56(2). 

9. The Act defines the term 'satisfied' to means 'on the balance of probabilities'.[11]

   [11] The Act s 3. 

10. The maximum amount of compensation payable under the Act for a single offence is $75,000.[12]  The maximum is a jurisdictional limit and is not reserved for the worst cases.[13]

    [12] The Act s 31. 

    [13] S v Neumann (1995) 14 WAR 452, 463 (Murray J); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); Underwood v Underwood [19], [30] (Gething DCJ). 

11. In assessing the amount of compensation I must have regard solely to the injury suffered by the appellant as a consequence of the commission of the alleged offence.  The amount of compensation is not to be fixed as punishment of an offender or as an expression of sympathy for the appellant.[14] 

    [14] B v W (1989) 6 SR (WA) 79, 89.

12. I am required to apply the ordinary tortious principles for assessment of damages, taking into account the jurisdictional limitations and the definitions of 'injury' and 'loss' defined by the Act.[15] 

    [15] M v JandJ v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14 [12] (Stone DCJ); Underwood [113].

13. The appellant must establish a causal relationship between the commission of the alleged offence or offences and the injury and/or loss for which the compensation is sought.[16]

    [16] S v Neumann (463) (Murray J); Re AK [2016] WADC 156 [71] (Schoombee DCJ); Martin v Martin [2015] WADC 138 [82] (Derrick DCJ).

14. It is not necessary for the alleged offence which is the subject of an application for compensation to be the sole cause of the injury.  It would be sufficient for the appellant to establish that the offence materially contributed to any injury.[17]

    [17] S v Neumann (463) - (464) (Murray J); Martin v Martin [83] (Derrick DCJ). 

15. The amount awarded by way of compensation for non-economic loss must be fair and reasonable and proportionate bearing in mind the injuries received by the victim.[18]

Summary of the Yongah Hill incident

[18] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pulling & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (judgment of the court); Underwood [17]. The amount must be proportionate to the particular situation of the respondent.

1. Yongah Hill Immigration Detention Centre is located in Northam, a town approximately 90 km north-east of Perth, in the state of Western Australia. It is a facility established under s 273 of the Migration Act 1958 (Cth) for the detention of certain 'non-citizens' including 'unlawful non-citizens' who might have overstayed a visa, or entered Australia without authority, or had their visa to be in or remain in Australia revoked.

2. The circumstances of the Yongah Hill incident are set out in the appellant's statement to the Australian Federal Police (AFP) dated 10 December 2015.  The appellant alleges that at about 11.00 pm on 12 November 2015, when he was a detainee at Yongah Hill Immigration Detention Centre, without warning or provocation he was assaulted by two people.

3. According to the appellant, that night he was sitting on a bunk in his room.  Two other detainees, Jade Arena and Barnett Ferris, both of whom were known to him, came into his room and assaulted him.  According to the appellant, he was immediately struck to the face by Mr Arena.  This caused him to be pushed backwards onto his bed.  Thereafter he was repeatedly kicked and punched to his head by both men.  He tried unsuccessfully to protect himself by putting his arms around his head.  At one stage he also tried to escape by running towards the door to his room.  That too was unsuccessful.  He was dragged backwards in a headlock but fell to the floor.  When he attempted to pull himself up by using the railing of a bunkbed, he was again kicked to the back of his head.  One of the assailants also 'stomped' on the back of his head causing him to hit his head on the railing.

4. The assault caused him excruciating pain.  One of the blows caused his head to bleed at the right eyebrow.  He was further repeatedly kicked, punched and stomped to his head.  The two assailants eventually left the appellant's room after taking his laptop.

5. From the available materials, it is apparent that the appellant informed detention centre officers of the assault.  The report of the assault was made within minutes of it occurring.  The appellant advised officers that he had been 'struck to the floor and kicked in the head about 30 times'.[19]

   [19] Department of Immigration and Border Protection Incident Detail Report as at 13 November 2015, assessor's file, CIC 3159/2018, page 304. 

6. Shortly after informing detention centre officers of the assault, he was taken by ambulance to Northam Hospital.  The appellant was noted to have:[20]

   [20] Emergency department notes, assessor's file, CIC 3159/2018, page 415. 

   •a swollen right eye and cheek;

   •a tooth missing;

   •a 3 cm laceration above the right eye;

   •mild diplopia central vision;

   •tender cheeks, especially the right cheek;

   •tender jaw across the jaw line on right and left side;

   •tender nose with minimal swelling;

   •grazes to his left and right shins;

   •swelling to left parietal area 4 cm x 4 cm.

7. A CT scan taken at Northam Hospital revealed the following:[21]

   •'Fracture of the medial wall and inferior wall of right orbit';

   •'Fracture of the right nasal bones';

   •'Mild interior displacement of the right mandibular condyle seen,? significance'.

   [21] Northam imaging report, 13 November 2015, assessor's file, CIC 3159/2018, page 411. 

8. Whilst at the hospital, the appellant told detention centre officers that he had been assaulted by two detainees, Ferris Barnett [sic] and Mitchell Berney.[22]

   [22] The appellant nominated Jade Arena and Barnett Ferris as the assailants in his statement to the AFP dated 10 December 2015.

9. The appellant was returned to Yongah Hill after being treated at hospital. 

10. Detention centre officers later took photographs of the appellant's injuries.[23]

    [23] Assessor's file, CIC 3159/2018, case note, pages 212 - 218. 

11. Although the appellant initially told detention centre officers that he wanted to speak to police about the matter, he prevaricated.  On 22 November 2015 he advised the Acting Facility Operations Manager at Yongah Hill that he wanted to formally proceed with a complaint to police.[24] 

    [24] Assessor's file, CIC 3159/2018, case note, page 48. 

12. No investigation was carried out until after 22 November 2015.

1. The appellant was interviewed by AFP officers on 10 December 2015.  The appellant gave a formal written statement to the AFP that day.

2. On the same day that the appellant gave his statement to the AFP, Mr Arena was spoken to by the AFP but refused to participate in an interview.

3. As a result of the appellant's formal complaint, further enquiries were conducted in relation to Mr Ferris.  It was determined that he was removed from the Commonwealth of Australia on 26 November 2015.

4. Despite the following factors:

   (a)the AFP considered the nature of the injuries suffered by the appellant to be serious;

   (b)that the appellant had made a full statement in writing to the AFP; and

   (c)the availability of photographic evidence of the appellant's injuries taken by detention centre officers within hours of the incident,

   the AFP determined that the matter would not be further investigated.

5. In a letter from an Acting Superintendent of the AFP dated 18 January 2016 and addressed to the Security Liaison Officer at Yongah Hill Immigration Detention Centre, the reasons given for ceasing the investigation were there was 'no evidence to corroborate the [appellant's] statement.  There is no CCTV footage to identify either [Mr] Arena or [Mr] Ferris, and no witnesses to the assault (either Serco officers or detainees)'.

Summary of the Christmas Island incident

1. By 13 October 2016 the appellant had been moved to Christmas Island Immigration Detention Centre. This detention centre, like Yongah Hill Immigration Detention Centre, is also a facility established under s 273 of the Migration Act.

2. On the afternoon of 13 October 2016 the appellant alleges that he was assaulted whilst walking near a dining area within the detention centre.  The details of the alleged assault are contained in various documents provided to the learned assessor, including a statement made by the appellant to an AFP Officer on 17 October 2016.  Various AFP records including CCTV footage and photographs of the appellant[25] corroborate the appellant's account.

   [25] See assessor's file, CIC 3160/2018, pages 56 - 74. 

3. In summary, the appellant alleges that as he was walking he was struck to the right side of his face.  The force of the blow caused him to slip over onto the floor.  As he lay face down on the ground his tracksuit top was pulled over his head.  He was unable to see.  He was then struck to the head.  He believes that the blows, being either kicks or punches, were delivered from both sides of his head.

4. As he attempted to get to his feet he was either kicked or punched to the back of the head.  One or more of the blows caused him to strike his face against a metal chair causing cuts to the bridge of his nose and the area between his eyebrows.  This caused him to fall back to the floor.  He was subjected to further blows, which he believes were punches and kicks.  Blood flowed into his eyes and he felt dizzy, almost reaching the stage of unconsciousness. 

5. The appellant immediately reported the assault to an officer at the detention centre.  He was taken to the medical facility within the detention centre and treated by a doctor.  He was found to have:[26]

   •bleeding from both nostrils;

   •left eye subconjunctival haemorrhage present;

   •two wounds (lacerations), one above the left eyebrow and the other on the nose;

   •bruising to the right temple;

   •swelling of the left side of the jaw (possible fractured mandible);

   •broken left third molar and broken right upper lateral incisor.

   [26] Medical notes, dated 13 October 2016, assessor's file, CIC 3160/2018, page 14. 

6. On 14 October 2016 the appellant's jaw was X-rayed at the request of a medical practitioner.[27]  He was also seen by a dentist on a number of occasions.

   [27] Appellant's statement, assessor's file, CIC 3160/2018, page 63; and SKG Radiology form dated 27 October 2016, assessor's file, CIC 3160/2018, page 39. 

7. The appellant was subsequently seen by medical staff at the detention centre on numerous occasions in the subsequent days.  He was complaining of pain to the jaw area and difficulty eating.  He also suffered from neck pain and pain in his teeth for more than a week after the incident.  He was provided with medication for the pain.[28]

   [28] See medical records contained in assessor's file, CIC 3160/2018, pages 14 - 43. 

8. In a formal statement made to the AFP on 17 October 2016, the appellant did not identify the alleged assailants.  AFP notes record that the appellant, when asked by a Serco officer whilst being treated 'in medical', did confirm the identity of one detainee suspected as being an assailant.[29]  However, by 14 October 2016 authorities at the detention centre (Serco) identified two detainees as possible offenders.[30]

   [29] AFP notes, assessor's file, CIC 3160/2018, page 74.

   [30] AFP documents, assessor's file, CIC 3160/2018, pages 57, 70 and 73. 

9. A post incident review completed by authorities at the detention centre on 13 October 2016 was consistent with the account given by the appellant.

10. As noted, CCTV footage from the detention centre tended to confirm both the account given by the appellant to detention centre officers (Serco officers) that day, and later to the AFP in a formal statement.  The CCTV footage taken from an area within the detention centre at 13.04 hours that day captured the appellant immediately before the incident.  He was seen walking to an area called 'C Block'.  At 13.06 hours the CCTV footage captured him 'stumbling and heading in the direction of the officer's station in a bloodied state'.[31] 

    [31] Post Incident review completed by Serco on 13 October 2016. 

11. The AFP's investigation of the matter was ceased on 17 October 2016 due to problems proving the identity of any offender.  No person was ever charged with any offence relating to the second incident.[32]

    [32] Letter from AFP, dated 17 October 2016, assessor's file, CIC 3160/2018, page 48. 

Part II: Jurisdiction to award compensation

Applications for an award of compensation pursuant to s 17(2) of the Act

1. As already noted, the appellant's application for compensation is brought pursuant to s 17 of the Act. There are essentially two separate applications, one arising from the Yongah Hill incident and the other from the later Christmas Island incident.

2. Section 17(1) applies in circumstances where 'an alleged offence is committed but no person charged with the alleged offence'.[33]  No person was charged with an offence in relation to either incident.

   [33] The Act s 17(1).

3. The Act allows an application for compensation for 'injury and any loss suffered' where a person 'suffers injury as a consequence of the commission of [an] alleged offence'.[34]

   [34] The Act s 17(2).

4. The term 'alleged offence' is defined as 'a crime, misdemeanour or simple offence of which no person has been convicted'.[35]

   [35] The Act s 3. 

5. The term 'injury' means 'bodily harm, mental and nervous shock, or pregnancy'.[36]

   [36] The Act s 3. 

6. The term 'loss' includes 'personal items', 'expenses actually and reasonably incurred' or 'likely to be incurred', 'loss of earnings' and 'damage' all of which are a direct consequence of the injury suffered by the victim.[37]

   [37] The Act s 3.

7. In Cullinan v Tomlinson,[38] Wisbey DCJ noted that the word 'offence' in the Criminal Injuries Compensation Act 1985 (WA)[39] was defined to mean 'crime, misdemeanour or simple offence'.  The same definition is provided with respect to the term 'alleged offence' in the Act.  The wording in the Act follows the definition of offence in the Criminal Code.  Consequently, Wisbey DCJ held that only conduct constituting state offences are compensable.

   [38] Cullinane v Tomlinson (1997) 18 SR (WA) 63.

   [39] This Act was subsequently replaced by the Criminal Injuries Compensation Act 2003 (WA).

8. In JMT,[40] Assessor Millar concluded that Wisbey DCJ's reasoning in Cullinane v Tomlinson meant that only offences committed in Western Australia are compensable pursuant to the Act.[41]  With respect to Assessor Millar, Cullinane v Tomlinson is not authority for that proposition.  It is authority for the proposition that only state laws are compensable.  The question of whether the offence was committed in Western Australia, or whether Western Australia law applies, are separate considerations.[42]

   [40] JMT [2005] WACIC 33. 

   [41] Trosic [2012] WACIC 11. 

   [42] Goodwin [2019] WACIC 24 [87].

9. In the circumstances of both incidents, the particular 'crime, misdemeanour or simple offence' has not been identified.

10. In relation to both the Yongah Hill incident and the Christmas Island incident, on the face of the appellant's statements,[43] the nature of the 'crime, misdemeanour or simple offence' could be one of a number of offences.  The nature of the alleged offences, in relation to both the first incident and the second incident, are such that, at the bare minimum, any one of the following provisions of the Criminal Code (WA) might apply:

    •common assault - s 313(1);

    •assault occasioning bodily harm - s 317; or

    •act or omission causing bodily harm or danger - s 304(1).

    [43] Statement made by the appellant to AFP on 10 December 2015, assessor's file, CIC 3159/2019, pages 229 - 232; Statement made by appellant to AFP on 17 October 2016, assessor's file, CIC 3160/2018, pages 61 - 64. 

11. Notably, although Wisbey DCJ held that federal offences were not compensable under the Criminal Injuries Compensation Act 1985 (WA),[44] his Honour was of the view that 'if the conduct complained of had constituted an offence under State law' then 'the appellant would have an entitlement to damages if she suffered injury or loss therefrom; as the injury or loss would have been the consequence of the commission of an alleged offence in respect of which no person had been charged'.[45]  

    [44] The Criminal Injuries Compensation Act 1985 (WA) was repealed and replaced by the Act.

    [45] Cullinane v Tomlinson (66) (Wisbey DCJ). 

12. As noted, although the AFP investigated both the first incident and the second incident, no charge was ever laid.  Since the alleged conduct in relation to each of the incidents could amount to a state offence, it matters little that it was investigated by a federal authority.  However, only state offences are compensable under the Act.[46]

    [46] Cullinane v Tomlinson; JMT. 

13. I am satisfied that the conduct set out by the appellant in [his statements] in relation to both the first and second incidents constitutes alleged offences for the purposes of s 17(2) of the Act.

    Jurisdiction – the alleged offence committed at a Commonwealth place

14. Despite the fact that both Yongah Hill Immigration Detention Centre and Christmas Island Immigration Detention Centre are Commonwealth places, separate considerations apply.

15. No issue is raised in this appeal as to the correctness of the learned assessor's decision that the Act applied to the Christmas Island incident.  Nonetheless, it is useful to understand the particular way in which jurisdiction is conferred upon an assessor where the alleged offence was committed at Christmas Island Immigration Detention Centre which is a Commonwealth place.

Christmas Island Immigration Detention Centre - How does the Act apply?

1. Christmas Island Immigration Detention Centre is located on Christmas Island, which lies about 1,550 km north-west of the Australian mainland.

2. Section 122 of Commonwealth of Australia Constitution Act (the Constitution), which gives the Australian government the power to make laws with respect to the territory of Christmas Island, reads:

   The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

The Christmas Island Act 1958

1. The Christmas Island Act 1958 (Cth) (CI Act), which specifies the laws applicable to Christmas Island, was enacted by the Commonwealth Parliament pursuant to s 122 of the Constitution. Christmas Island is declared to be a territory by and under the control of the Commonwealth.[47]

   [47] CI Act s 5.

2. Since the territory of Christmas Island does not have a separate legislature by which authority can be delegated under s 52(i)[48] of the Constitution to make specific laws to apply to Commonwealth places within the territory, the laws that apply to Christmas Island Immigration Detention Centre are the same laws that apply to the territory of Christmas Island.

   [48] See par [83] below.

3. By application of div 1 of pt III of the CI Act, to the extent they are not inconsistent with Commonwealth legislation or the Constitution, the laws of Western Australia apply to the territory of Christmas Island.[49]  Specifically, pursuant to s 7(d) and s 8A(1) of the CI Act, the laws of Western Australia apply to Christmas Island.  This includes principles of common law and equity (both procedural and substantive) and the statutes and subsidiary legislation of the Western Australian Parliament.[50]

   [49] CI Act s 7(d), s 8 and s 8A. 

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

4. The Territories Law Reform Act 1992 (Cth) conferred jurisdiction in and in relation to the territory of Christmas Island on the courts and judicial officers of Western Australia.

5. Consequently, Christmas Island is administered by the Commonwealth government as part of the Australian territories, but Western Australian law applies to it.  All powers conferred by Western Australian laws in force on Christmas Island under s 8A are vested in the Minister administering the CI Act under s 8G.  The Minister may make arrangements with the Western Australian government for the effective application and administration of the laws in force in the territory: s 8H.

6. Section 8B of the CI Act states:

   (1)The Minister must cause a list of Acts of the Western Australian Parliament (WA Acts) to be prepared and tabled in each House of the Parliament for the following periods:

   (a)the period of 3 months beginning on 1 July 1992; and

   (b)each subsequent period of 6 months.

   (2)The list must specify the names of all WA Acts that are wholly or partly in force in the Territory under section 8A on the day specified in the list, and have not been specified in a previous list under this section.  The specified day must be not more than 14 days before the day on which the list is to be tabled.

   (3)The list must include WA Acts whose operation has been suspended in accordance with subsection 8A (3).

   (4)The list must be tabled in each House of the Parliament before the end of the period to which the list relates.  However, if the House concerned does not sit during any day in the last month of the period, the list may be tabled in that House within the next 15 sitting days of that House.

7. Pursuant to s 8A of the CI Act, the Act became law in the territory of Christmas Island on the day the Act received assent, namely on 15 December 2003.  On 31 March 2004 a list, which included the Act, was tabled in both Western Australian Houses of Parliament in accordance with s 8B of the CI Act.  Accordingly the Act is law in the territory of Christmas Island.

8. With respect to the Criminal Code, a number of ordinances have been published under the Christmas Island Applied Laws Ordinance 1992 (Cth) adopting amendments to the Criminal Code. The Criminal Code applies to Christmas Island.  An offence committed upon Christmas Island is therefore an offence pursuant to the Criminal Code.

9. Section 14B of the CI Act confers jurisdiction on Western Australian courts and court officers and sets out as follows:

   (1)Subject to this Part and any law in force in the Territory, the courts and court officers of Western Australia have jurisdiction (including appellate jurisdiction) in and in relation to the Territory as if the Territory were part of Western Australia.

   (2)Subject to section 14E, a court or court officer of Western Australia may, in exercising jurisdiction under this section, sit in the Territory or Western Australia.

   (3)Subject to any law in force in the Territory, the practice and procedure applicable to a court or court officer exercising jurisdiction under this section are to be the practice and procedure as in force from time to time in relation to that court or court officer in Western Australia.

10. Under s 4(1) of the CI Act a 'court officer' includes 'any other office in respect of a court of Western Australia, being an office specified in the regulations'.

11. Relevantly, reg 6(d) of the Christmas Island (Courts) Regulations 2018 specifies that, 'for the purposes of paragraph (i) of the definition of court of Western Australia in subsection 4(1) of the Act', it includes:

    (d)the Chief Assessor of Criminal Injuries Compensation, or an Assessor of Criminal Injuries Compensation, appointed under Schedule 1 to the Criminal Injuries Compensation Act 2003 (WA).

12. Consequently, the Act applies to alleged offences, being offences against the Criminal Code committed at Christmas Island Detention Centre.

13. The Act applies with respect to injuries suffered at Christmas Island Immigration Detention Centre.

Yongah Hill Immigration Detention Centre - Does the Act apply?

1. Yongah Hill, unlike Christmas Island, is a Commonwealth place within the state of Western Australia.

The application of state laws to Commonwealth places generally

1. Section 52 of the Constitution vests the Commonwealth Parliament with exclusive legislative power in relation to places acquired by the Commonwealth from the states. Section 52 of the Constitution provides:

   The Parliament shall, subject to this Constitutions, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to -

   (i)the seat of the Commonwealth and all places acquired by the Commonwealth for public purposes.

2. The Commonwealth Places (Application of Laws) Act 1970 (Cth) (the COPAL Act (Cth)) was enacted for the purpose of making state laws, both statute and common law, applicable to Commonwealth places.[51]

   [51] The COPAL Act (Cth) was enacted following the High Court's decisions in Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89and R v Phillips (1970) 125 CLR 93. The effect of these decisions was that state law ceased to apply upon the acquisition by the Commonwealth of land for public purposes. Consequently, a person could not be charged with having committed an offence against a state law where it was alleged to have occurred on or in a Commonwealth place.

3. A Commonwealth place is defined by s 3 of the COPAL Act (Cth) as follows:

   Commonwealth place means a place (not being the seat of government) with respect to which the Parliament, by virtue of s 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth.

4. Thus, a Commonwealth place is a place acquired by the Commonwealth for public purposes, other than the seat of government. 

5. As already noted, the Yongah Hill incident occurred at a Commonwealth detention centre. A Commonwealth detention centre is established under s 273 of the Migration Act.  A detention centre which is on land acquired by the Commonwealth within a state's borders is 'a Commonwealth place' by application of the definition of s 3 of the COPAL Act (Cth).[52] 

   [52] Subramaniam v Mental Health Review Tribunal [2012] NSWSC 918 [20]; Li v Commonwealth of Australia [2002] FCA 1251 [12].

6. Since the alleged offences relevant to the Yongah Hill incident were committed at a Commonwealth place, there are three fundamental questions, all of which may need to be considered.  They are:

   1.Does the Act apply to a Commonwealth place by virtue of the COPAL Act (Cth)?

   2.Assuming that the Act applies to a Commonwealth place, does the scope of the Act cover the alleged offence that occurred at Yongah Hill Immigration Detention Centre?

   3.Does an assessor have power to exercise federal jurisdiction?

First question: Does the Act apply to a Commonwealth place by virtue of the COPAL Act (Cth)?

1. Since s 52(i) of the Constitution gives the Commonwealth Parliament exclusive legislative power to make laws with respect to 'places acquired by the Commonwealth for public purposes' (Commonwealth places), state laws are incapable of applying to Commonwealth places of their own force. Relevantly s 4(1) of the COPAL Act (Cth) provides:

   The provisions of the laws of a State as enforced at a time (whether or before or after commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.

2. Section 4 of the COPAL Act (Cth) is analogous to the application of state procedural law to courts exercising federal jurisdiction by operation of s 79 of the Judiciary Act 1903 (Cth).[53]

   [53] R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384, 388 [11] (Spigelman CJ), citing Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] HCA 62; (1953) 88 CLR 168, 170 (per curiam).

3. Pursuant to the COPAL Act (Cth), and the reciprocal enacting state legislation the Commonwealth Places (Administration of Laws) Act 1970 (WA) (COPAL Act (WA)), state laws are deemed to apply to commonwealth places as 'surrogate federal laws'.[54] 

   [54] R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354, 363 [41] (Spigelman CJ); Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 257 CLR 402, 424 [52] (Kiefel & Keane JJ); Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444, 457 [34] (McHugh & Gummow JJ); Santos v Director of Public Prosecutions (WA) [2016] WASCA 230.

4. The effect of the COPAL Act (Cth) is that it enables courts of a state and other relevant authorities to exercise their various powers and functions under the state in a federal context.

5. Section 7 of the COPAL Act (Cth) (subject to the conditions set out in s 8 of the COPAL Act (Cth)) vests courts of a state with federal jurisdiction.  Section 7(1) of the COPAL Act (Cth) relevantly provides:

   The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place.

6. Section 4(1) of the COPAL Act (Cth) provides that the laws of a state 'apply, or shall be deemed to have applied' in relation Commonwealth places in that state.

7. 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).

8. 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. 

9. 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. 

10. 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'.

11. 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.

Second question: Does the scope of the Act cover the alleged offence that occurred at Yongah Hill Immigration Detention Centre (being a Commonwealth place)?

1. 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.

Third question: Does an assessor have power to exercise federal jurisdiction?

1. There are two different pathways by which an assessor may be vested with federal jurisdiction.

2. 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.

3. 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)

4. Consequently, if such an arrangement were in place, then an assessor might be empowered to exercise his or her powers or functions with respect to a Commonwealth place provided those powers or functions do not amount to the exercise of judicial power.

5. Consequently, when considering whether an assessor in determining an application for criminal injuries compensation with respect to the Yongah Hill incident has power to exercise federal jurisdiction, three further questions arise.  They are:

   (a)Is there a relevant gazetted arrangement made between the Commonwealth and the state of Western Australia under the COPAL Act (Cth) which empowers an assessor to exercise powers under the Act in relation to a Commonwealth place?

   (b)Is an assessor a court of a state?

   (c)Is an assessor, in determining an application for criminal injuries compensation in respect of a Commonwealth place, exercising judicial or administrative power?

(a)     Is there a relevant gazetted arrangement made between the Commonwealth and the state of Western Australia under the COPAL Act (Cth) which empowers an assessor to exercise powers under the Act in relation to a Commonwealth place?

1. There is no dispute in this matter that a gazetted arrangement of the kind permitted by s 6(2) of the COPAL Act (Cth) exists between the Commonwealth and the state of Western Australia.  The relevant gazetted arrangement, which is current, was entered into by the then Governor‑General for the Commonwealth (Mr Paul Hasluck) and the Governor of Western Australia (Mr Douglas Kendrew) on 16 September 1971, in the following terms:[58]

   NOW, THEREFORE, IT IS HEREBY ARRANGED that where, under a law of the State to which a part of the applied provisions corresponds, an authority (as defined in the Act and in the State Act) of the State (not being a court) may or shall, as the case may be, exercise or perform any power, duty or function (not being a power, duty or function involving the exercise of judicial power), the corresponding power, duty or function under that part of the applied provisions may or shall, as the case may be, be exercised or performed by that authority.

   (emphasis added)

   [58] Commonwealth of Australia Gazette, No 91 (30 September 1971) 6162. 

2. The gazetted arrangement clearly limits the application of any law of a state as a surrogate federal law to circumstances where the body or authority applying it is:

   b)not a court; and

   c)the exercise or performance of any power, duty or function does not involve the exercise of judicial power.

3. Thus, the gazetted arrangement could only empower the assessor to determine the application for compensation with respect to the Yongah Hill incident if the assessor was not a 'court' and was not exercising any power, duty or function involving the exercise of judicial power.

(b)     Is an assessor a court of a state?

and

(c)     Is an assessor, in determining an application for criminal injuries compensation in respect of a Commonwealth place, exercising judicial or administrative power?

1. As far as I can determine, there are no superior court authorities deciding the issue of whether an assessor appointed under the Act (or its predecessor) is a 'court of a State', or whether an assessor, in determining an application for criminal injuries compensation in respect of a Commonwealth place, is exercising judicial or administrative power?

What is a 'court of a State'?

1. I note that the High Court has made clear that there are no clear or exhaustive factors that define what a court is.[59]  It is also well recognised that a body or authority may be characterised as a court for one purpose and not another.[60]

   [59] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, 76 [64] (Gummow, Hayne & Crennan JJ).

   [60] Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85, 139 [225] (Kenny J).

2. The words 'court of State' must be viewed in the context of s 77(iii) of the Constitution which provides that the Commonwealth Parliament may make laws investing any court of a State with federal jurisdiction.[61] 

   [61] Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's) [2006] NSWCA 185; (2006) 66 NSWLR 77, 87 [52] (Spigelman CJ, Hodgson & Bryson JJA agreeing).

3. In Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany's), Spigelman CJ (with whom Hodgson and Bryson JJ agreed), to be a 'court of a State', the body or authority must not only 'be characterised as a court, but as a court of law'.  Spigelman CJ also noted, '[o]ne aspect of a court of law is that it is comprised, probably exclusively although it is sufficient to say predominantly, of judges'.[62] 

   [62] Trust Company of Australia Ltd (t/as Stockland Property Management) (87) [21] (Spigelman CJ, Hodgson & Bryson JJA agreeing).

4. Whether the body is comprised of judges or not, 'there are elements which are fundamental, in the sense that their presence or absence will affect the institutional integrity of the relevant tribunal as a "court of a State" '.[63]  One such fundamental element is the exercise of judicial power which 'is a necessary but not a sufficient condition for the characterisation of a decision-making body as a court, even in a context where there is no constitutional overlay'.[64]

Judicial power as distinct from administrative power

[63] Trust Company of Australia Ltd (t/as Stockland Property Management) (87) [49] (Spigelman CJ, Hodgson & Bryson JJA agreeing); see also North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146 [29]).

[64] Trust Company of Australia Ltd (t/as Stockland Property Management) (82) [21] (Spigelman CJ, Hodgson & Bryson JJA agreeing).

1. Since the exercise of judicial power is a necessary feature of a decision‑making body or authority, one of the steps in considering whether an assessor is a 'State court' is to examine closely whether the assessor was exercising administrative or judicial power when considering the application for compensation.

2. Judicial power has been defined to mean:[65]

   the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.  The exercise of this power does not begin until some tribunal which has power to give a binding and authorative decision (whether subject to appeal or not) is called upon to take action. 

   [65] Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357.

3. The notion of 'judicial power' was further explained in R v Trade Practices Tribunal; Ex parte Tasmania Breweries Pty Ltd[66] as generally involving 'a decision settling for the future' an issue or question that arises between parties as to the existence of a right or obligation, 'so that an exercise of power creates a new charter by reference to which that question [or issue] is in future to be decided as between those persons or classes of person'. 

   [66] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374.

4. This involves a process by which the body or authority applies the law that exists to the facts that are found by it and reaches a decision that binds the parties and continues into the future or for some specified period decided by the body or authority. Thus, as Quinlan CJ in GS v MS[67] succinctly stated:

   The unique and essential function of judicial power is the quelling of controversies about legal rights and legal obligations through ascertainment of the facts, the application of the law and the exercise, where appropriate, of judicial discretion.

   [67] GS v MS [2019] WASC 255 [65] (Quinlan CJ).

5. Whilst the application of judicial power involves the determination and ascertainment of existing rights, the application of administrative power, in contrast to judicial power, involves the creation of new rights, rather than the determination of existing rights.

6. In GS v MS[68] Quinlan CJ also noted, with reference to the High Court's unanimous decision in Precision Data Holdings Ltd v Wills,[69] that:

   At the other end of the spectrum are powers that are concerned not with determining what persons' rights and obligations are, but what they should be in future.

   [68] GS v MS [65].

   [69] Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

7. Quinlan CJ went on to note that one of the difficulties in determining whether an authority is exercising judicial power or administrative power is that there is often an:[70]

   66… overlap between those functions which sit at the 'core' of judicial power (and which are exclusively and essentially part of it) and those functions that may be regarded as 'purely' administrative.

   67That is because, on the one hand, there will be aspects of judicial power that will commonly be found in administrative powers.  The ascertainment of facts, and the making of value judgments as to those facts, in the exercise of powers conferred by legislation, may be found in both judicial and administrative powers. …

   [70] GS v MS [66] - [67] (Quinlan CJ); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (Kitto J). 

8. If the assessor was exercising judicial power in determining the application, then that would be a factor weighing in favour of a finding that the assessor is a state court.

9. Some of the factors relevant to determining these issues have been set out in numerous decisions including Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group);[71] Salaries and Allowances Tribunal v West Australian Newspapers Ltd;[72] and GS v MS. 

The parties' submissions in relation to whether an assessor exercises judicial or administrative power and whether an assessor is a 'State court'

The appellant's submissions on the issue of jurisdiction

[71] Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group) [2020] VSCA 30 [36] - [57].

[72] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39; (2008) 36 WAR 324, [63] - [64], 338.

1. The appellant does not contend that an assessor is a 'court of the State'.[73]

   [73] Counsel for the appellant, oral submissions, 4 May 2020, ts 6. 

2. The appellant's main argument lies in the contention that an assessor exercises administrative power, not judicial power, when determining applications for compensation under the Act.

3. The appellant contends that 'a determination of whether or not to award compensation to an [a]pplicant pursuant to Part 4 of the Act, cannot be described as the resolution of a dispute, between parties, about existing rights or obligation'.[74]  Rather, the appellant submits that a determination made by an assessor under the Act 'involves the creation of a right or refusal to create a right to compensation from the Consolidated Account' and absent such a determination, an applicant's right does not exist.[75] 

   [74] Appellant's written 'Outline of Submissions in Support of his Criminal Injuries Compensation' (Appellant's Outline of Submissions), page 10, par 47. 

   [75] Appellant's Outline of Submissions, page 10, par 48. 

4. Consequently, the appellant submits that an assessor exercises administrative power, judicially, but is not a 'court of the State'.  In doing so, the appellant submits that the mere fact that an authority or body, whose primary purpose is administrative, does not become a court by virtue of the fact that it is required to act judicially.[76]

   [76] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (393) (Windeyer J). 

5. The appellant also notes the difficulty in determining whether the power being exercised by an assessor is one that is in the nature of judicial or administrative power.  In R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd, Kitto J referred to the 'grey area' being the 'borderland in which judicial and administrative functions overlap'.[77]

   [77] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (373). 

6. Counsel for the appellant points to the following factors which it is submitted supports the appellant's contentions.  They are:[78]

   [78] Appellant's Outline of Submissions, pars 47 - 57. 

   1.(Subject to relevance), there is no limit to the factors or circumstances to which an assessor may have regard in making a determination.[79]

   [79] The Act s 29. 

   2.Applications, hearings and orders made pursuant to the Act are not inter partes.  Thus, the making of an award of compensation does not amount to the 'settling of a dispute between the parties'.

   3.Although compensation may be recovered from an offender, this is a process governed by separate proceedings under Part 6 of the Act,[80] which are initiated by the Chief Executive Officer (CEO) of the Department of the Attorney General, not the applicant.

   4.Any decision made by an assessor is limited and confined by the Act.  An assessor has no authority to make any decision beyond the ambit of the Act.  Furthermore, if an assessor is of the opinion that an applicant for compensation could pursue other remedies for compensation independent of the Act,[81] or may otherwise be entitled to payment for the injury or loss suffered,[82] then an assessor may require the applicant to pursue those other avenues before considering the application.[83]

   5.An assessor has no power to:

   (a)make orders for declaratory relief; or

   (b)make an order for costs.[84]

   6.An assessor is not bound by the rules of evidence.[85]

   7.An assessor has wide 'general powers' in deciding an application for compensation.[86]  The procedures permitted to be undertaken by an assessor are not prescriptive.  The assessor is not required to conduct a hearing, but may 'seek and receive any information or evidence that the assessor thinks necessary';[87] 'make any inquiries and investigate any matters that the assessor thinks necessary';[88] 'request the applicant to provide information'[89] or 'defer the application in order to more obtain information'.[90]  The nature of these powers is discretionary.

   8.An assessor has no power to enforce their own orders[91] or to prosecute for any offence that might arise in the context of an application.[92] 

   [80] The Act s 45. 

   [81] The Act s 21(1)(a). 

   [82] The Act s 21(1)(b). 

   [83] The Act s 21(1). 

   [84] The Act s 67. 

   [85] The Act s 18(2). 

   [86] The Act s 19. 

   [87] The Act s 19(1)(c). 

   [88] The Act s 19(1)(d). 

   [89] The Act s 19(1)(e). 

   [90] The Act s 19(1)(f). 

   [91] The Act s 69; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 269 - 270 (Deane, Dawson, Gaudron & McHugh JJ). The High Court noted that ordinarily the fact that a body was incapable of enforcing its own orders was a powerful factor weighing against it being characterised as judicial. However, where the order (such as with an assessor) may be registered with a competent court and consequently becomes enforceable as an order of that court, then it weights in favour of the power being judicial.

   [92] The Act s 70. 

1. In oral submissions, counsel for the appellant further distilled the argument in support of the proposition that an assessor was exercising administrative power to the following four main propositions.[93]

   [93] Counsel for the appellant, oral submissions, 4 May 2020, ts 7. 

2. First, the nature of the power to make or refuse an award under the Act is 'highly discretionary'[94] and involves more than merely the application of existing law to existing facts to determine rights and obligations. The appellant also points to public policy considerations being relevant to an assessor's exercise of discretion, particularly in relation to applicants who are also offenders.[95] 

   [94] The Act s 30. 

   [95] Mulcahy [2010] WACIC 35 [23] (Assessor Guthrie); SJB [2012] WACIC 17 [27] (Assessor Guthrie). 

3. Second, an assessor cannot enforce their own orders.

4. Third, the 'repository of the power does not lie with the court'.

5. Fourth, the nature of the orders made by an assessor involves 'the creation of a right to compensation that does not exist antecedently or independently of the order itself'. This does not involve the settling of a controversy between parties.

6. Consequently, since the appellant submits that the assessor is neither a court of the state nor exercising judicial power, the assessor's jurisdiction must flow from the gazetted agreement made between the Commonwealth and the state of Western Australia made under the COPAL Act (Cth) and the corresponding enacting COPAL Act (WA).

The submissions of the amicus on behalf of the CEO on the issue of jurisdiction

1. The CEO submits that when properly analysed, the weight of factors supports the contentions that an assessor is exercising judicial power rather than administrative power,[96] but is not a court of a state.[97]

CEO's submissions as to whether an assessor exercises judicial or administrative power

[96] 'Outline of Submissions' filed by the CEO of the Department of Justice, dated 29 April 2020 (CEO's Outline of Submissions), page 18, par 71. 

[97] CEO's Outline of Submissions, page 21, par 78. 

1. Like the appellant, the CEO agrees that the resolution of this question is not 'straightforward'.[98]  The CEO notes that there are factors that support the conclusion that the assessor exercises administrative power, whilst other factors point to a finding that the power is a judicial one.

   [98] CEO's Outline of Submissions, page 16, par 65. 

2. The CEO notes the following factors, which are also raised by the appellant and agreed with by the CEO, that point towards a finding that the assessor exercises administrative power:

   1.applications for compensation brought under the Act, although they may be contested, do not involve resolving a dispute;[99] and

   2.an assessor cannot enforce their own orders.[100]

   [99] CEO's Outline of Submissions, page 18, par 70. 

   [100] CEO's Outline of Submissions, page 18, par 71. 

3. In relation to the appellant's submission that a determination under the Act  by the assessor involves the creation of a right or refusal to create a right to compensation, which does not exist absent a determination, the CEO points to an alternative construction of the Act.  The CEO raises the contention that the Act provides victims of offences and alleged offences 'the right to compensation subject to and in accordance with the Act'.[101]  In that way, an assessor is deciding whether to award compensation with respect to an existing right.

   [101] CEO's Outline of Submissions, page 18, par 69. 

4. The CEO also points to the following factors pointing in favour of a conclusion that an assessor exercises judicial power:[102] 

   1.Assessors are required to determine an identifiable controversy, namely whether an applicant is entitled to a compensation award or a compensation reimbursement order and are required to determine that controversy by considering questions of fact to which the law, namely the provisions of the Act, is applied.  In doing so an assessor does not apply policies in exercising that function.

   2.Whilst an assessor cannot enforce their own orders, compensation reimbursement orders are registrable and enforceable in a court of competent jurisdiction and are taken to be orders of that court.

   3.Decisions of assessors are not only binding and enforceable, but are also subject to appellate review by a court.[103]

   4.Whilst the procedures for determining applications are not prescriptive, an assessor is empowered to conduct hearings, take evidence on oath or affirmation, allow cross-examination and allow persons appearing before an assessor to be legally represented.[104]

   5.When requested to do so, assessors are obliged to provide written reasons for their decision.[105]

   6.Assessors are obliged to ensure procedural fairness with respect to applications for compensation reimbursement from offenders.[106]

   7.Compensation reimbursement orders are enforceable against an offender in a court of competent jurisdiction as though they were orders of the court.  They are deemed to be a judgment of that court.[107]

   [102] CEO's Outline of Submissions, page 17, pars 67(a) - 67(f).

   [103] The Act s 55. 

   [104] The Act s 25, s 63. 

   [105] The Act s 27. 

   [106] The Act s 51. 

   [107] The Act s 52(2).

5. In addition, during the course of oral submissions, amicus for the CEO noted that the High Court in Precision Data Holdings Ltd v Wills[108] had found that the body in that case was required to take into account public policy considerations, a factor that weighed heavily in its findings that the body was not exercising judicial power.  However, the High Court also noted that:[109] 

   …, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power … That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.

   (citations omitted)

   [108] Precision Data Holdings Ltd v Wills (190) (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

   [109] Precision Data Holdings Ltd v Wills (189) (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

6. The fact that a body in exercising its powers takes into account policy considerations, does not mean that it is not exercising judicial power.  Courts, such as in sentencing offenders for criminal offences, often take into account public policy considerations.  Policy considerations are often taken into account in the exercise of a court's discretion when applying the law to facts.[110]  In any event, the CEO submits that an assessor is 'not free to act on broad public policy considerations, or make decisions that are in the public interest; or have regard to public policy as such in making its decisions.  Rather, public policy considerations arise when the assessor is exercising certain discretions under the Act'.[111]

CEO's submissions as to whether an assessor is a court of a state

[110] See for example Sentencing Act 1995 (WA) s 9AA.

[111] CEO's oral submissions, 4 May 2020, ts 41. 

1. The CEO notes the following factors which favour a finding that an assessor is a 'court of the State' are:

   1.A finding that an assessor exercises judicial power in determining compensation applications would obviously support a contention that an assessor is a ' court of the State'.

   2.A compensation order is taken to be a judgment in the court in which it is lodged.

   3.An assessor has the same protections and immunities as a judge of the Supreme Court.[112]

   4.An assessor is required to have the same qualifications as a judge of the Supreme Court, and must take an oath of office that he or she will faithfully and impartially perform their duties.[113] 

   [112] The Act s 65(1). 

   [113] The Act sch 1, cl 1(1) and cl 4.

2. Those factors raised by the CEO as pointing away from a conclusion that the assessor is a 'court of the State' include:[114]

   1.An assessor is not designated as a court, nor is it a court of record or a court of law.

   2.An assessor is not a judicial officer.

   3.The term 'assessor' refers to someone who makes assessments of value or cost.

   4.Hearings by assessor are conducted in private until or unless an assessor decides that it should be conducted in public.[115]  Courts are ordinarily open to the public to ensure that 'justice is seen to be done'.

   5.As already noted, an assessor is not bound by the rules of evidence.[116]

   6.Assessors do not have broad powers, but are confined to those provided by the Act.

   7.An assessor has no power to award costs.[117]

   8.An assessor is appointed for a finite term (five years) although may be reappointed.  An assessor may be terminated from office by the Governor.[118]

   [114] CEO's Outline of Submissions, pages 20 and 21, pars 77(a) - 77(h). 

   [115] The Act s 35(4). 

   [116] The Act s 18(2). 

   [117] The Act s 67. 

   [118] The Act sch 1, cl 3(1) and cl 5(1).

3. The fact that the assessor is neither designated a court nor a 'court of record' is significant in considering whether it is a 'court of the State'.[119] 

Conclusion as to whether an assessor has jurisdiction with respect to the Yongah Hill Incident

[119] Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148, 164 - 165 [72] - [73]; Owens v Menzies [2012] QCA 170; (2012) 265 FLR 392 [10] (PR de Jersey CJ, Muir JA agreeing).

1. In addition to the factors raised by the appellant and the CEO, I note the following.

2. First, the language of the Act clearly creates a right to compensation for certain people (a person who suffers injury as a consequence of a proved offence or alleged offence)[120] and classes of people (a close relative of a person who dies as a result of a proved offence or alleged offence).[121]  A 'victim' or a 'close relative of a deceased victim', subject to other criteria being satisfied, has an 'entitlement' (right) to compensation.[122]  This supports a conclusion that the assessor exercises power in the context of existing rights, rather than creating future rights.  It is a factor weighing heavily in favour of a conclusion that an assessor exercises judicial power, not administrative.

   [120] A 'person who suffers injury as a consequence of the commission of a proved offence': s 12(1); or 'as a consequence of an alleged offence': s 13(2) or s 14(2) or s 15(2) or s 16(2) or s 17(2). (emphasis added)

   [121] A 'person, being a close relative of a person who dies as a consequence of a proved offence': s 12(2) or s 13(3) or s 14(4) or s 15(3) or s 16(3) or s 17(3).

   [122] The Act s 10(1) and s 10(2). 

3. Second, although an assessor may conduct a hearing, including the calling of evidence on oath, an assessor is required to determine an application pursuant to the Act 'informally'.[123]  This is generally inconsistent with the exercise of judicial power or the functions and operations of a court.

   [123] The Act s 18(1). 

4. When all factors are carefully considered and weighed, I am satisfied on balance that an assessor:

   1.exercises judicial power (not administrative power); and

   2.is not 'a court of a State'.

5. As already noted, an assessor could only be vested with federal jurisdiction if:

   1.the assessor is so empowered pursuant to s 7(1) of the COPAL Act (Cth) by virtue of  being a 'court of the State'; or

   2.a gazetted arrangement applied because an assessor was neither a 'court of the State' and was not exercising judicial power.  (emphasis added)

6. Since neither one of these pathways applies, an assessor does not have jurisdiction to determine an application for compensation with respect to the Yongah Hill incident.

   Further jurisdictional issue relating to the Yongah Hill incident: Is jurisdiction enlivened on an appeal to the District Court?

7. Following the hearing of the appeal, I invited the parties to provide further written submissions relating to the question of jurisdiction in relation to the Yongah Hill incident. Specifically, I raised for consideration whether the jurisdiction to make an award of compensation in relation to the Yongah Hill incident was enlivened on the appeal because the District Court, being a state court, was dealing with the matter as a rehearing.

8. There is no question that the District Court is a state court.  The District Court of Western Australia is a product of statute.  The District Court Act 1969 (WA) (the DCA) establishes the District Court as a court for the state.[124]  

   [124] DCA s 7.

9. The District Court is also a court of record and is constituted by a District Court judge.[125]

   [125] DCA s 8.

10. There is no question that the District Court is a court of the state for the purposes of the Constitution and s 7(1) of the COPAL Act (Cth).[126]

    [126] Appellant's Outline of Further Submissions dated 17 August 2020, par 7; CEO'S Supplementary Submissions dated 17 August 2020, par 5.

11. As already noted, appeals against an assessor's decision under the Act are to the District Court,[127] and in dealing with the appeal the District Court 'must decide the application to which the decision relates afresh'.[128]  The District Court is also generally empowered to do anything an assessor could do in determining an appeal against an assessor's decision.[129]

    [127] The Act s 55.

    [128] The Act s 56(1).

    [129] The Act s 56(2).

12. In essence, the appellant submits that in dealing with an appeal from the decision of an assessor, the District Court is operating as a court of the State and that:[130]

    (a)It is a court which federal jurisdiction can be conferred for the purpose of the COPAL Act (Cth); and

    (b)It can make an award of damages pursuant to the Act as if it were surrogate federal law with respect to the claim for compensation arising from the Yongah Hill incident.

    [130] Appellant's Outline of Further Submissions dated 17 August 2020, pars 19 and 20.

13. The appellant points to the following factors:

    (a)The appeal is by way of rehearing unfettered by the assessor's decision below.[131]

    (b)The District Court may not only effectively exercise any power an assessor has under the Act (including making an award of compensation), but has additional powers that an assessor does not.[132]

    (c)The District Court Rules provide further powers on an appeal including striking out an appeal made under the Act.[133]

    [131] The Act s 56(1).

    [132] The Act s 56(2)(d), s 56(2)(e) and s 56(2)(f).

    [133] District Court Rules r 57.

14. The appellant submits that an appeal against an assessor's decision conducted in the District Court, being a rehearing in which the District Court is required to arrive at its own findings, its jurisdiction is in part original.

15. I note that in considering the term 'appeal' Sir Frederick Jordan in Ex parte Australian Sporting Club Ltd; Re Dash said:[134]

    In an appeal to a court from an executive authority, the jurisdiction exercised by the court is not appellate but original.

    [134]Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283.

16. Later, in Calwell-Smith v Director-General Department of Finance and Services,[135] in considering Ex parte Australian Sporting Club Ltd; Re Dash, Rothman J at [9] said:

    I do not deal, in these proceedings, at length, with the various kinds of appeals that may arise and the various powers and jurisdiction that may be conferred. Ultimately, the jurisdiction of the Court depends upon the proper construction of the statute.

    [135] Calwell-Smith v Director-General Department of Finance and Services [2012] NSWSC 413.

17. The CEO submits that the 'better view'[136] is that the District Court, in dealing with an appeal from an assessor's decision cannot exercise federal jurisdiction pursuant to s 7(1) of the COPAL Act (Cth) as it is essentially stepping into the shoes of an assessor, deciding the matter afresh.[137] In so doing, the District Court stands in the place of an assessor.

    [136] CEO'S Supplementary Submissions dated 17 August 2020, par. 6.

    [137] CEO'S Supplementary Submissions dated 17 August 2020, par. 6.

18. The CEO submits that the powers on an appeal under the Act are limited to those set out under s 56(2) of the Act. Those additional powers that extend beyond of those of an assessor and are set out below, are not of such significance to change the fact that the District Court on an appeal is essentially exercising the same powers and functions of an assessor.  The additional powers are:[138]

    (a)The ability to confirm, vary reverse an assessor's decision;

    (b)Order costs;

    (c)Make necessary consequential orders; and

    (d)Refer a question of law to the Court of Appeal.

    (e)set limited limit points to the following matters in support of that contention.

    [138] The Act s 56 (2).

19. 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).

20. 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).

21. 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.

Part III: Did the appellant suffer an injury 'as a consequence of the commission of the alleged offence'?

1. 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.

Yongah Hill incident (first incident) - Medical evidence

1. 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

1. 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)'.

1. 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.

Medical evidence before the learned assessor relating to the Yongah Hill incident (obtained before the Christmas Island incident and before the appellant returned to the United Kingdom)

1. The learned assessor was provided with numerous documents, reports and medical records in support of the application.  The material included reports and documents that may be relevant to both incidents.  The evidence that is only referable to the Yongah Hill incident included the following:

   (a)photographs of the appellant's injuries which showed significant swelling and bruising to the appellant's right eye and cheek;

   (b)a medical record described in the application as 'from unknown';

   (c)emergency department notes from Northam Hospital relating to his admission on 13 November 2015;

   (d)a letter from Dr Paul Hill of Northam Hospital dated 13 November 2015;

   (e)a questionnaire from Mr Alan Grant of International Health and Medical Services (IHMS) dated 16 November 2015;

   (f)medical records from Royal Perth Hospital;

   (g)a report from Dr Hirsh of Royal Perth Hospital dated 21 September 2016,

   (h)a report from Dr Weekes of Royal Perth Hospital dated 21 September 2016;

2. I have already set out the physical injuries suffered by the appellant and noted shortly after the Yongah Hill incident (first incident) at [29] and [30] above.

3. A report from Dr Paul Hill dated 13 November 2015 notes that the appellant presented to the emergency department of Northam Hospital on 13 November 2015 and was diagnosed with a fracture of the infra orbital floor and medial wall of the right orbit and a fracture of nasal bones with some septal deviation.

4. Other records from Royal Perth Hospital relating to the treatment or examination of the appellant prior to the Christmas Island incident, which is alleged to have occurred on 13 October 2016 (the second incident), are also consistent with the above reports.  They include:

   •An IHMS referral form dated 16 November 2015 notes the appellant's attendance at the maxillo-facial clinic where examination revealed facial fractures to the right medial wall of orbit and an un-displaced right zygoma fracture; minimally displaced nasal bone, occlusion sound; multiple broken teeth and nerve injury, nil diplopia and subsequent attendances at the Maxillo-facial Outpatient Clinic at Royal Perth Hospital on 16 November 2015, 30 November 2015, 1 August 2016 and 25 August 2016.

   •The records relating to the appellant's attendance on 30 November 2015 notes that the appellant suffered right eye lateral uniocular diplopia and sensory deprivation in the distribution of the infraorbital nerve.  The appellant subsequently attended the Ophthalmology Outpatient Clinic at Royal Perth Hospital on 11 April 2016, 9 May 2016 and 30 May 2016 relating to the appellant's complaints with respect to diplopia on right lateral gaze.

   •There are two almost identical letters from Royal Perth Hospital, both dated 21 September 2016.  One is from Dr John Weekes and the other from Dr Ron Hirsch.  Strangely, one letter speaks of injuries sustained as a result of an alleged assault at Yongah Hill Immigration Detention Centre.  The other speaks of injuries sustained as a result of an alleged assault at Christmas Island.  Save for those differences, they are identical.

   •Both letters note that the appellant was transferred to Royal Perth Hospital suffering from facial injuries following an assault on 12 November 2015 (which is the date of the alleged incident at Yongah Hill Immigration Detention Centre).  The injuries were noted to consist of an orbital blow-out fracture on the right side and an undisplaced fracture of his zygoma.  The appellant was noted to have an enophthalmos on the right side, a large medial wall and floor defect in the right eye with diplopia on right lateral gaze, and some dental damage.  Thus, although Dr Hirsch speaks of Christmas Island, the remaining information relates to the Yongah Hill incident.

Medical evidence before the learned assessor (obtained after the Christmas Island incident and before the appellant returned to the United Kingdom) and potentially relevant to the Yongah Hill incident

1. The following further evidence, relevant to the Yongah Hill incident (and potentially the Christmas Island incident), is referable to the period after the Christmas Island incident.  This material was also before the learned assessor:

   (a)medical records from Wooroloo Prison Farm (covering the period between 4 November 2016 - 28 October 2017);

   (b)documentation, including medical records from Acacia Prison (covering the period between 17 November 2016 - 16 May 2017);

   (c)medical imaging reports from Fiona Stanley Hospital dated 27 April 2017;

   (d)eye test results from Specsavers dated 1 November 2016 and clinical records from IHMS.

2. I note that although the learned assessor concluded that '[t]here were no complaints in the clinical records that the [appellant] was experiencing ongoing dizziness' [as a result of the Yongah Hill incident],[144] in fact there are multiple references in the Wooroloo Prison Farm medical records to complaints made by the appellant about ongoing dizziness in the context of medical reviews and arrangements being made for opthalmology appointments, MRI scans and examinations.  These complaints of dizziness occurred in the period from December 2016 to July 2017.[145]  They are discussed in more detail below.  There is also a record from Fiona Stanley Hospital Medical Imaging with respect to an MRI of the head, noting: 'Ongoing dizziness. Previous assault and orbital fracture.  Double vision.  Pupils are reactive equally.  Headaches'.[146]  Of course, by December 2016 the alleged incident at Christmas Island had already occurred.  Consequently, an issue arises as to whether the dizziness is referable to the first incident, second incident, or both.  This is issue is discussed further below.

   [144] Goodwin [15].

   [145] Assessor's file, CIC 3159/2018, page 359. 

   [146] Assessor's file, CIC 3159/2018, page 402. 

3. The Wooroloo Prison Farm medical records for the period of July 2017 reveal that the appellant continued to have issues with his right eye and was experiencing double vision when looking to the side, but that his sight was 'OK' when he looked straight ahead.  He also noted that his left eye was not problematic.[147]

   [147] Assessor's file, CIC 3159/2018, page 358. 

4. The appellant also submits that he has suffered from ongoing residual disabilities, including depression, arising from the Yongah Hill incident.[148]  The evidence relating to the appellant's depression and whether it was causally connected to the Yongah Hill incident, the Christmas Island incident, or both, is discussed below.

Christmas Island incident - Medical evidence

[148] Appellant's outline of written submissions, par 63. 

1. I have set out briefly at [45] the injuries the appellant allegedly suffered as a result of the Christmas Island incident, including a left eye subconjunctival hemorrhage; lacerations, one above the left eyebrow and the other on the nose; bruising to the right temple; swelling of the left side of the jaw; and damage to two teeth.

Medical evidence relevant to Christmas Island incident obtained before the appellant returned to the United Kingdom

1. I have already noted some of the records that were before the learned assessor that are potentially relevant to both incidents.  This includes medical records from Wooroloo Prison Farm covering the period between 4 November 2016 - 28 October 2017; documentation including medical records from Acacia Prison covering the period between 17 November 2016 - 16 May 2017; medical imaging reports from Fiona Stanley Hospital dated 27 April 2017; and the eye test results from Specsavers dated 1 November 2016, and clinical records medical records from International Health and Medical Services, Perth Immigration Detention Centres (IHMS).[149] 

   [149] Assessor's file, CIC 3160/2018, pages 14 - 18. 

2. In addition, the further relevant material includes:[150]

   •photographs of the appellant's injuries;

   •report from Dr Justina Teo, dentist, dated 26 October 2016;

   •SKG Radiology appointment form dated 27 October 2016.

The IHMS records

[150] Assessor's file, CIC 3160/2018, pages 11 - 13. 

1. The IHMS records reveal that on 13 October 2016, about 10 minutes after the alleged assault the subject of the Christmas Island incident, the appellant attended the medical centre at the detention centre.  He initially complained of nausea and dizziness but denied any head injury, loss of consciousness or tenderness to his cervical spine.  The following injuries were noted:[151] 

   •a 2 cm laceration to his forehead;

   •a 1 cm laceration to his nose;

   •bruising to the right temple;

   •swelling of the left side of his jaw;

   •a broken left third molar and broken right upper lateral incisor.

   [151] Assessor's file, CIC 3160/2018, pages 14 and 15. 

2. The lacerations were sutured.

3. On 14 October 2016 the appellant again presented to the medical centre seeking pain relief.  He complained of ongoing discomfort to his jaw as well as a generalised headache.

4. On 17 October 2016 the medical notes record that the swelling had improved and the appellant's wounds were healing well.  The appellant reported he was able to eat and had no concerns with respect to his jaw.  The sutures were also removed from his forehead and nose.

5. At a consultation on 21 October 2016, the appellant complained of ongoing jaw and neck pain, injuries he alleged that he had suffered during the Christmas Island incident.  I note that the appellant claimed that he had incurred the neck injury when he was stepped on during the assault.  The lacerations were noted to have healed and the bruising to be resolving.

6. On 27 October 2016 there is a reference to the appellant requiring eye drops due to 'flashing lights' in his left eye since the Christmas Island incident.

7. On 26 October 2016 the appellant was reviewed by Dr Justina Teo, dentist, who wrote a report of the same date.  The appellant's presenting complaint was that teeth 12 and 38 were chipped after the second incident.  He did not report any pain but requested the veneer on tooth 12 be fixed.  Tooth 38 was noted to be carious and non-functional and removal of it was recommended if it became problematic.

8. On 27 October 2016 the appellant was referred to Specsavers with respect to episodes of 'flashing lights' in the left eye which were occurring up to four times per day.

Wooroloo Prison Farm records relevant to the Christmas Island incident

1. The Wooroloo Prison Farm medical notes record that on 14 November 2016 the appellant underwent a new admission review.  He complained that the Christmas Island assault caused facial injuries, chipped teeth, neck strain and flashing lights in in his left eye.  The appellant advised he had no history of any neurological issues but had a history of depression.

2. On 27 November 2016 the appellant attended the medical centre at Wooroloo Prison complaining of a dizzy episode with ongoing symptoms.

3. On 8 December 2016, when being reviewed by a medical officer, the appellant again complained of amongst other problems,[152] flashing in his left eye with pain, diplopia in his right eye.

   [152] Other issues complained of that were unrelated to either incident, including a right ankle injury, psoriasis of his elbows and a right foot plantar wart. 

4. On 28 December 2016 the appellant was seen by a clinical nurse and complained of a headache with dizziness.  He was noted to have nil vomiting and nil visual disturbance and assessed as having a Glasgow Coma score of 15/15.

5. On 29 December 2016 the appellant again attended upon a clinical nurse and reported dizziness which he attributed to previous head injuries including a shattered left [sic] eye socket and headaches.

6. On 7 January 2017 the appellant advised the clinical nurse he had suffered 'two serious head injury assaults' and attributed his ongoing symptoms to those assaults.  An e-consult was performed by Dr Richard Wee who noted the appellant's visual acuity tested as 6/6 left eye, 6/6 right eye, 6/6 both eyes and no peripheral vision loss in the left eye.

7. On 9 January 2017, 16 January 2017, 24 January 2017, 15 February 2017, 3 March 2017, 5 April 2017, 1 May 2017, 9 May 2017, and 24 May 2017 the appellant attended the medical centre and complained he had been suffering from dizziness.

8. By 12 April 2017 the records refer to 'dizziness getting worse post assault Oct 2016'.

9. The medical plan for the appellant include a referral for a MRI and a neurology consultation.  Neither of these apparently occurred prior to the appellant's discharge from prison.

10. On 26 April 2017 the records again note that the appellant was complaining of 'dizziness'.

11. I have already noted that the appellant attended the medical centre on 6 July 2017 and advised that he had no ongoing issues with his left eye, and only required treatment with respect to his right eye.

12. The records also note other medical issues unrelated to the appellant's claims for compensation.[153] 

Medical evidence after the appellant returned to the United Kingdom

[153] Wooroloo Prison Farm records noting unrelated injuries complained of by the appellant at various times including: lower back pain (2 June 2016); dermatitis (2 July 2016); shoulder pain (30 November 2015); toothache/dental issues (26 August 2016 and 6 October 2016); chronic ankle pain (6 October 2016); and daily methamphetamine abuse (6 October 2016). 

1. Following the appellant's return to the United Kingdom, the appellant continued to have medical treatment in relation to the injuries he allegedly suffered as a consequence of either or both incidents.  The appellant provided the learned assessor with the following additional evidence:

   (a)a referral from Dr Samantha Houlton of Birmingham Hospital to Mr Declan Costello dated 4 May 2018;[154] 

   (b)a referral from Birmingham Hospital (author unknown) addressed to Dr Sahota also dated 4 May 2018;[155]

   (c)a report from Dr K Cassam dated 21 May 2018.[156] 

   [154] Assessor's file, CIC 3159/2018, page 324. 

   [155] Assessor's file, CIC 3159/2018, page 325. 

   [156] Assessor's file, CIC 3159/2018, pages 322 - 323. 

2. Dr Houlton of University Hospitals Birmingham, in a referral letter to Mr Declan Costello dated 4 May 2018, notes that in November 2015[157] the appellant suffered a head injury causing an injury to his right orbit with subsequent dizziness.  Dr Houlton goes on to say that the 'dizziness which is spontaneous, [had] only [been] occurring since head injury.'[158]  Dr Houlton does not refer to the subsequent incident (the Christmas Island incident which is alleged to have occurred on 13 October 2016).

   [157] This can only be a reference to the Yongah Hill incident given the date. 

   [158] Assessor's file, CIC 3159/2018, page 324. 

3. In a letter to Dr Sahota dated 4 May 2018 (which omitted details of the sender) it is noted the appellant's cranial nerves V and VII appeared intact but that binocular diplopia is occurring on extreme right lateral gaze.  The letter also noted enophthalmos (posterior displacement of the eyeball) of the right eye is apparent by 2 mm.

4. The report of Dr Cassam dated 21 May 2018 addresses the injuries, both physical and mental, allegedly sustained by the appellant as a result of both incidents, without specifically distinguishing which injuries were sustained by the appellant from each incident.  As already noted, it is a report that was prepared after the appellant returned to the United Kingdom following his deportation from Australia.  Dr Cassam saw the appellant on 14 March 2018 and again on 23 March 2018.  Dr Cassam's colleague, Dr B Sahota, saw the appellant on 4 May 2018.  A locum at the practice saw the appellant on 10 May 2018.

5. Dr Cassam noted the appellant complained of the following:

   •injuries to both the left and right orbit;

   •right ankle injury (which appears to be unrelated to either incident);[159]

   •injuries to his teeth;

   •being unsteady on his feet;

   •double vision in his right lateral gaze.

   [159] Assessor's file, CIC 3159/2018, (Royal Perth Hospital triage nursing assessment records of 30 July 2013 record the injury as having been incurred 'playing football'), page 352. 

6. On examination Dr Cassam noted the appellant to have right enophthalmos and was experiencing double vision.  Dr Cassam referred the appellant to a maxillofacial surgeon for further assessment.

7. Dr Cassam also noted the appellant had depressive symptoms.  The appellant told him that that the triggers for his depression were the assault and consequential injuries, as well as having been in detention for some time.  The appellant was also finding difficulty adjusting to life after detention.

8. Dr Cassam diagnosed the appellant with depression and prescribed Sertraline (an antidepressant).

9. Dr Cassam opined that:

   •the dizziness and double vision were 'as a result of previous assault [sic], resulting in facial injuries';

   •the appellant's disability was 'moderate in nature';

   •that the appellant was 'currently unfit for work due to the effects of his maxillofacial injuries and also due to his depression'; and

   •That his condition had not stabilised as he had ongoing symptoms.

10. No prognosis was provided.

11. Dr Cassam noted the appellant had no history of alcohol or drug abuse (which is inconsistent with the appellant's criminal history).[160] 

Records of out of pocket expenses

[160] The appellant's Police Certificate for Immigration Purposes, which included a history of possession of cocaine in 2006 in the United Kingdom, a copy of his criminal record in Australia which included five offences of possessing of a prohibited drug or drug paraphernalia and 26 offences for offer to sell/supply a prohibited drug (methamphetamine).  There were also records from IHMS which note the appellant as having advised of daily methamphetamine use. 

1. The learned assessor was provided with various documents including:

   •various payment slips and payment receipts from the Department of Health, WA Government, for outpatient visits to 'RPH' (out of pocket expenses); and

   •handwritten notes form the applicant, including that he had paid $2,000 for dental work[161] and that various items had been stolen from him[162] (although no claim was made for the loss of any personal item).

   [161] Assessor's file, CIC 3159/2018, page 317 (a 'List of stolen items' also appears at page 38, but not claim is made in relation to these items). 

   [162] Assessor's file, CIC 3159/2018, 'List of stolen items', page 318. 

2. I adopt the schedule of treatment expenses produced at [34] of the learned assessor's reasons.[163]  Given that these treatment expenses relate to outpatient visits to Royal Perth Hospital in the period between November 2015 and July 2016, they can only relate to the Yongah Hill incident.

   [163] Goodwin [34].

3. No claim has been made in relation to any personal items lost by the appellant.

Fresh evidence - Medical evidence and evidence relating to loss of earnings

1. In addition to the material that was before the learned assessor, the appellant has subsequently provided further documents that were not available when the learned assessor first considered his applications.  The appellant seeks leave to rely upon this material in the appeal.  The CEO neither consents to, nor opposes, the application.  There is no reason why I should not receive this material and leave is granted.

2. The additional material is as follows:

   (a)medical report from Dr T Maimoon, Birmingham, United Kingdom, dated 10 January 2020;

   (b)letter from Moira McGarvey, Mental Health Practitioner, Birmingham, National Health Service (NHS), dated 13 January 2020;

   (c)medical appointment notice from Queen Elizabeth Hospital, Birmingham darted 27 December 2019;

   (d)reconsideration notice from Department for Work & Pensions;

   (e)Government of United Kingdom, dated 6 July 2020;

   (f)medical appointment letter from Birmingham and Solihull Mental Health, NHS, dated 21 January 2020;

   (g)letter from Dr T M Maimoon, Reservoir Road Surgery, Birmingham, dated 22 April 2020;

   (h)statement from Universal Credit, Department for Work and Pensions, UK, dated 12 December 2019;

   (i)report from Dr Uchechi Nzenwata, Mental Health, NHS dated 22 May 2020 (unsigned); and

   (j)letter from Peter Armstrong, Universal Credit Appeals (Reconsideration Notice), Department for Work and Pensions, UK, dated 6 July 2020.

1. Dr T Maimoon, in the letter dated 10 January 2020, says as follows:

   It would appear that [the appellant] has a history of depression following an alleged attack at a detention centre whilst in Australia 3 - 4 years ago.  He states he suffered a right orbital fracture and continues to suffer with dizziness and pain.  He has been referred to the appropriate hospital specialist for further assessment by a colleague here at the surgery.

   In addition he reports having nightmares and feels he is always on edge and feels anxious.  He does not like to leave the house and lacks motivation.

   I have reviewed him again today and do not think at present he is not [sic][164] fit for work due to his ongoing mental and physical issues.'

   [164] The inclusion of the word 'not' is obviously an error when the whole letter is read in context. 

2. The letter from Dr Maimoon appears to only make reference to one incident, the Yongah Hill incident.

3. Dr Uchechi Nzenwata notes in his report dated 22 May 2020 that in addition to informing him of the incidents at both Yongah Hill and Christmas Island, the appellant had also informed him of the following:[165]

   •[he] had been through a lot of traumatic events in the past that led him to be depressed.

   •he had struggled with depression for a long time.

   •he observed domestic violence as a child and his mum ran off with him and his brother.

   •he was physically abused by his father.

   •he was sexually abused by his step-sister when he was between the ages of 7 and 9.

   •his grandfather died in his arms.

   •his girlfriend had recently left him

   [165] Report from Dr Uchechi Nzenwata, Mental Health, NHS dated 22 May 2020 (unsigned). 

4. Dr Nzenwata also notes that the appellant had reported:

   •he had 'constant dizziness';

   •his 'peripheral vision [was] not good';

   •he had 'double vision';

   •was 'very anxious';

   •had 'panic attacks' with 'shortness of breath and 'dizzy spells' and a feeling that he was 'about to black out';

   •having suicidal ideation and had attempted suicide 'a long time ago';

   •was hearing 'a voice' that told him 'negative things';

   •he owed money for his rent and was fearful he was going to be evicted; and

   •he had a 15 year history of depression and had been medicated at times, including currently being medicated with fluoxetine and mirtazapine.

5. Dr Nzenwata does not provide a formal diagnosis but does recommend an initial management plan that took into account indicators of 'low mood, suicidal thoughts, anxiety, panic attacks, [and] auditory hallucinations'.

6. The letter (Reconsideration Notice) from Peter Armstrong, Universal Credit Appeals, Department for Work and Pensions, UK, dated 6 July 2020 appears to relate to the appellant's appeal against an earlier classification with respect to his entitlements under the Universal Credit system with respect to unemployment or social security benefits.  The appeal process resulted in him being re-classified as having 'Limited Capability for Work Related Activity (LCWRA) from 10 August 2019'.

7. In relation to the information contained in the Reconsideration Notice, it appears that the appellant was originally classified as having 'Limited Capability for Work (LCW)'.  In reviewing that decision, Mr Armstrong noted that:

   [The appellant] had provided extensive letters and medical documentation relating to physical restrictions. Whilst I have considered these, based on the overall evidence these would not seem to indicate a significant disability in managing work capability activities, for the majority of the time.

8. However, Mr Armstrong went on to consider further evidence provided by the appellant relating to the appellant's mental health issues.  This additional evidence appears to have included the report from Dr Uchechi Nzenwata dated 22 May 2020.  Mr Armstrong ultimately concluded that the appellant had limited capability for work related activity.  Mr Armstrong formed the view that 'the act of actively seeking work may negatively impact on [the appellant's] attempts at recovery and result in a risk to his own mental and physical health'.[166]

The ongoing dizziness suffered by the appellant

[166] Letter from Peter Armstrong, Universal Credit Appeals (Reconsideration Notice), Department for Works and Pensions, UK, dated 6 July 2020, page 2. 

1. It is clear that the appellant first experienced dizziness following the Yongah Hill incident.  He also suffered dizziness following the Christmas Island incident.  Even noting that there was a delay between the Christmas Island incident and further complaints of ongoing dizziness at Wooroloo Prison Farm, I am nonetheless satisfied on the balance of probabilities that the medical evidence supports the conclusion that the appellant does suffer from ongoing dizzziness.  An issue that arises is whether this condition is attributable to the Yongah Hill incident, the Christmas Island incident, or both.

2. In that respect, I note what Dr Houlton said with reference to the head injury that the appellant suffered in November 2015 (the Yongah Hill incident).[167]  On its face, Dr Houlton's report tends to suggest that the dizziness is a consequence of the Yongah Hill incident.  However, as the learned assessor noted, there was no further complaint of dizziness made by the appellant until after the Christmas Island incident.  That leaves open the possibility that the later incident brought on spells of dizziness that had their initial cause of origin in the Yongah Hill incident.  On the available evidence however, it is nothing more than a possibility.  The weight of evidence supports the conclusion that the ongoing dizziness is a consequence of the Christmas Island incident, rather than the Yongah Hill incident, given the dizziness following the Yongah Hill incident appears to have resolved.

The depression suffered by the appellant

[167] Assessor's file, CIC 3159/2018, page 324. 

1. I am satisfied to the requisite standard that the appellant did suffer from, and continues to suffer, depression.  Like the learned assessor, I find that the appellant's depression is multifactorial.  The contributing factors include:

   1.a long history of depression and past suicidal ideation;

   2.the impact of the Yongah Hill Immigration Detention Centre;

   3.the impact of the Christmas Island incident;

   4.his detention in immigration detention centres;

   5.the difficulties he encountered in adjusting to life outside of detention;

   6.financial pressures; and

   7.his traumatic upbringing including witnessing domestic violence as a child; being subjected to physical abuse at the hands of his father; the sexual abuse he suffered as a child; the death of his grandfather, his unstable home environment and the breakdown of his recent relationship.[168]

   [168] Report of Dr Uchechi Nzenwata dated 22 May 2020. 

2. The appellant also sought assistance from a psychologist following the assault.  According to the psychologist, he was seeking to address the negative impact of stress associated with his detention.[169] 

   [169] Assessor's file, CIC 3160/2018, letter from Daniel Bonnar, clinical psychologist, 9 May 2016, page 43.

3. It is clear from all the available evidence that the appellant suffered from depression for some time before the Yongah Hill incident.  Without ignoring the fact that the Christmas Island incident is likely in some way to have contributed to the appellant's depression, given all of the other significant factors including the Yongah Hill incident, I am not satisfied that it materially contributed to his depression.

Loss of earning capacity

1. The appellant claims a total amount of $56,052.00 as loss of earnings[170] for a period of 116 weeks, being the time after he returned to the United Kingdom in February 2018.

   [170] The Act s 7(2)(c). 

2. The amount is calculated on the basis of the difference between the minimum adult wage in Western Australia at the time ($70,065 for 116 weeks) and the welfare payments he received, further reduced by 20% for vicissitudes.  The net weekly amount claimed by the appellant is $604 per week (which includes the 20% reduction for vicissitudes).

3. The appellant provided the learned assessor with a statement dated 7 June 2016, unsigned, with respect to his economic loss.  In it he claimed that:

   (a)he had previously worked as a 'metal finisher (polisher)' on 'Jaguar, Rolls Royce and Bentley stainless steel components' as well as 'bathroom accessories';[171]

   (b)he was unable to work whilst in Australia due to his visa conditions, and therefore had not worked since 2010;

   (c)since returning to the United Kingdom he had been unable to work due to his injuries (an opinion confirmed by his general practitioner Dr Cassam who was treating him); and

   (d)he was unable to provide any record of past earnings prior to 2010.

   [171] Assessor's file, CIC 3159/2018, page 559A. 

4. The appellant also relies upon the fresh evidence detailed above, particularly the medical report from Dr T Maimoon dated 10 January 2020; the report from Dr Uchechi Nzenwata, dated 22 May 2020 (unsigned); and the letter from Peter Armstrong, Universal Credit Appeals (Reconsideration Notice), Department for Work and Pensions, UK, dated 6 July 2020.

5. The evidence satisfies me that the appellant is currently unfit for work.

Findings with respect to the incident at Yongah Hill Immigration Detention Centre - Injuries suffered as a consequence of a the alleged offence

1. Having found that an assessor does not have jurisdiction to determine an application with respect to the Yongah Hill incident, no award of compensation can be made to the appellant.

2. Subject to my finding that neither the learned assessor nor the District Court has jurisdiction to award compensation, I otherwise make the following findings in relation to the first incident at Yongah Hill Immigration Detention Centre:

   (a)An alleged offence relevant to s 17(1) of the Act was committed against the appellant.

   (b)As a consequence of the alleged offence, the appellant suffered the following injuries:

   (i)a fracture of the infra-orbital floor and medial wall of the right orbit;

   (ii)a fracture of nasal bones with some septal deviation;

   (iii)dental damage (lost a tooth);

   (iv)associated swelling and bruising; and

   (iv)dizziness immediately after the first incident.

   (c)As a result of the appellant's injuries arising from the Yongah Hill incident, he has ongoing residual disabilities which include:

   (i)right eye lateral uni-ocular diplopia;

   (ii)sensory deprivation in the distribution of the infraorbital nerve;

   (iii)enophthalmus of the right eye;

   (iv)visual defect when looking to the side;

   (v)pain; and

   (v)depression.

3. Since there is no jurisdiction to award any compensation to the appellant with respect to the Yongah Hill incident, it is not necessary to make any assessment of the injuries suffered by the appellant or determine any loss of earnings that may be referable to that injury.

4. Nonetheless, any finding about the effect of the injuries suffered by the appellant as a consequence of the Yongah Hill incident may have a bearing on my assessment of any award of compensation relating to the Christmas Island incident.  With that in mind, I note that I am satisfied on the balance of probabilities that the appellant's injuries and residual disabilities arising from the Yongah Hill incident have impacted his earning capacity.  I accept the appellant's residual disabilities listed above, specifically the diplopia and the depression, have and will continue to have an impact on his ability to carry out his employment as a metal finisher.

Findings with respect to the incident at Christmas Island Immigration Detention Centre - Injuries suffered as a consequence of a the alleged offence

1. I am satisfied of the following:

   (a)An alleged offence relevant to s 17(1) of the Act was committed against the appellant.

   (b)As a consequence of the alleged offence, the appellant suffered the following injuries:

   (i)a 2 cm laceration to his forehead;

   (ii)a 1 cm laceration to his nose;

   (iii)bruising to the right temple;

   (iv)swelling of the left side of his jaw;

   (v)a broken left third molar and broken right upper lateral incisor; and

   (vi)cervical (neck) tenderness.

   (vii)dizziness.

   (c)As a result of the appellant's injuries, he has ongoing residual disabilities which include:

   (i)depression;

   (ii)damage to the left third molar and broken right upper lateral incisor; and

   (iii)ongoing dizziness.

   (d)Apart from the depression and ongoing dizziness, the evidence satisfies me on the balance of probabilities that the appellant otherwise recovered well from his injuries.

2. As I have already noted, the appellant's injuries and residual disabilities arising from the Yongah Hill incident have impacted his earning capacity.  I accept the appellant's residual disabilities, specifically the diplopia, pain, dizziness and the depression, have and will continue to have an impact on his ability to carry out his employment as a metal finisher.

3. I am also satisfied on the balance of probabilities that the appellant's earning capacity is impacted by his depression and ongoing dizziness.  The Christmas Island incident is not the sole cause of either the depression or the ongoing dizziness.

4. In my view the primary impact on the applicant's employability is the diplopia (which relates to the first incident at Yongah Hill Immigration Detention Centre), his dizziness and depression.

5. Unlike the learned assessor however, I am persuaded to the requisite degree that the Christmas Island incident has contributed to the appellant's ongoing dizziness.

Christmas Island - Assessment of non-economic loss

1. Although the appellant does not quarrel with the learned assessor's award of $7,500 for no-economic loss relating to the Christmas Island incident, I am not bound by any findings or award made by the learned assessor.  Unlike the learned assessor, I am satisfied on the balance of probabilities that the appellant continues to suffer from ongoing dizziness and that the Christmas Island incident materially contributed to that injury.

2. I am of the view that the appropriate award for non-economic loss relating to the Christmas Island incident is $8,500.

Christmas Island - Assessment of loss of earning capacity

1. The appellant is entitled to compensation for 'loss of earnings as a direct consequence of the injuries' he suffered.[172] 

   [172] The Act s 6(2). 

2. The appellant claims for loss of earning capacity.  Loss of earnings includes loss of earning capacity.[173]

   [173] A v D (1994) 11 WAR 481, 489.

3. The appellant carries the onus of proving the loss of earning capacity and the extent to which that loss produces or might produce financial loss.[174]

   [174] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

4. In assessing the appellant's claim for loss of earnings as a consequence of the Christmas Island incident, it is relevant to note the opinion of Dr Cassam as to the factors that caused the appellant to be unfit for work.  In particular, Dr Cassam noted in his report dated 21 May 2018 that the appellant was 'currently unfit for work due to the effects of his maxillofacial injuries and also due to his depression'.[175]  The appellant's unfitness for work was confirmed by Dr Maimoon.

   [175] Assessor's file, CIC 3159/2018, page 323. 

5. I am satisfied on the evidence that there are three factors materially affecting the appellant's earning capacity.  They are:

   (a)his maxillofacial injuries including ongoing pain and double vision (Yongah Hill incident);

   (b)his depression (multifactorial causes); and

   (c)his ongoing dizziness (Christmas Island incident).

6. I have already found that I am not satisfied on the balance of probabilities that the Christmas Island incident materially contributed to the appellant's depression.

7. Since the appellant recovered well from the facial injuries suffered by him as a result of the Christmas Island incident, the ongoing residual difficulties arising from his maxillofacial injuries are only referable to the Yongah Hill incident.

8. However, in addition to the injuries noted by Dr Cassam as impacting upon his ability to work, I am satisfied that the ongoing dizziness, which is attributable to the Christmas Island incident, is a factor materially affecting the appellant's earning capacity.

9. Since the dizziness suffered by the appellant is one of three factors materially contributing to the appellant's loss of earning capacity, in my view it would be appropriate to reduce any claim for loss of earnings by 66% to reflect the other relevant contributing factors that are unrelated to the Christmas Island incident.

10. The appellant arrived in Australia in 2010.  The appellant did not work in the period between arriving in Australia and the Christmas Island.[176] 

    [176] Assessor's file, CIC 3159,2018, appellant's statement, page 559A. 

11. Whilst the appellant did not provide any evidence of any earnings prior to his arrival in Australia in 2010, he has only relied upon the minimum adult wage to ground his claim.  However, there are a number of factors that obviously affect his employability.  In addition to not working for a period of six years, by the time the appellant returned to the United Kingdom, he:

    •had sustained significant injuries in the Yongah Hill incident which impacted his earning capacity;

    •had a long history of suffering from depression;

    •had a history of methylamphetamine use; and

    •had acquired a significant criminal record.

12. The appellant's criminal record alone would impact his employability[177] as would his history of drug taking.[178]  In my view, the combination of factors outlined above warrant a reduction of 50% for vicissitudes.

    [177] State of New South Wales v Maxwell [2007] NSWCA 53 [113] - [118]; Smith v Alone [2016] NSWDC 265 [90], [200] - [201].

    [178] Kwong v Abdulwahab [2016] NSWCA 107.

Application of findings to assessment of loss of earnings

1. The amount claimed by the appellant (without reduction for vicissitudes) is $70,065.  Since I have found that the dizziness suffered by the appellant has materially affected his earning capacity by 33%, that should first be applied before further reducing it by 50% for vicissitudes.  The net result is that the amount I allow for loss of earnings is $11,560.

Treatment expenses, travel expenses and loss of personal items

1. No claim has been made by the appellant for treatment expenses, travel expenses or loss of personal items.

2. The appellant is also entitled to half of the cost of the report obtained from Dr Cassam (£104 or A$220 being at the appropriate exchange).  Like the learned assessor, I apportion 50% of the cost to each application, being $97.00.

Summary of the assessment

1. I have assessed the appellant's claim as follows:

Non-pecuniary loss	$  8,500.00
Loss of earnings	$11,560.00
Medical report	$      97.00
Total	$20,157.00

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DF
Associate to Judge Levy

24 SEPTEMBER 2020