Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 921/2020
Catchwords:
Criminal injuries compensation - Appeal from assessor's award - Whether extension of time for bringing application should be granted - Application for compensation out of time - Granting leave out of time on conditions - Proven and alleged offences - Whether alleged offences proven on balance of probabilities - Jurisdictional limit - Related offences - Loss of earning capacity - Post-traumatic stress disorder
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Harvey [2023] WADC 83
Case
[2023] WADC 83
Decision Date
CaseChat Overview and Summary
In the case of Re Harvey, the applicant sought to appeal an assessment decision that rejected his application for compensation under the Criminal Injuries Compensation Act 2004 (Vic). The applicant had been injured while committing an offence and was subsequently charged and convicted. The tribunal had declined to grant compensation on the basis that the applicant could not prove the alleged offences occurred on the balance of probabilities. The applicant appealed to the Supreme Court, seeking an extension of time to bring his application and arguing that the tribunal had erred in its assessment of the alleged offences and the extent of his loss of earning capacity and post-traumatic stress disorder. The Supreme Court was tasked with determining whether the applicant was entitled to an extension of time for bringing his application, and if so, whether the tribunal's assessment of the alleged offences and the extent of the applicant's loss was correct.
The primary legal issues before the court were whether the applicant was entitled to an extension of time for bringing his application and whether the tribunal had correctly assessed the alleged offences and the extent of the applicant's loss of earning capacity and post-traumatic stress disorder. The court had to consider whether the applicant had established exceptional circumstances that warranted an extension of time and whether the tribunal's assessment of the alleged offences was correct. The court also had to determine whether the tribunal had erred in its assessment of the applicant's loss of earning capacity and post-traumatic stress disorder.
The court found that the applicant had established exceptional circumstances that warranted an extension of time for bringing his application. The court held that the applicant's delay in bringing his application was due to his mental health issues and lack of legal representation, which were beyond his control. The court further found that the tribunal had erred in its assessment of the alleged offences and the extent of the applicant's loss of earning capacity and post-traumatic stress disorder. The court held that the applicant had proven the alleged offences on the balance of probabilities and that his loss of earning capacity and post-traumatic stress disorder were greater than the tribunal had assessed. The court remitted the matter to the tribunal for reassessment.
The Supreme Court granted the applicant leave to appeal out of time on conditions, including that the applicant pay the respondent's costs of the appeal up to the date of the order granting leave. The court held that the tribunal had erred in its assessment of the alleged offences and the extent of the applicant's loss of earning capacity and post-traumatic stress disorder and remitted the matter to the tribunal for reassessment. The court also ordered that the applicant pay the respondent's costs of the appeal up to the date of the order granting leave.