JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE MCHENRY [2014] WADC 92
CORAM: HERRON DCJ
HEARD: 23 JUNE 2014
DELIVERED : 17 JULY 2014
FILE NO/S: APP 26 of 2014
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: WINNIE MAY MCHENRY
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :L V DEMPSEY
File No :CI 000232 of 2014
Catchwords:
Criminal injuries compensation - Application for extension of time - Application made six years out of time - Mother suffering mental and nervous shock arising from death of son - Offender acquitted of wilful murder on ground of unsoundness of mind
Legislation:
Criminal Injuries Compensation Act 2003
Criminal Law (Mentally Impaired Accused) Act 1996
Result:
Extension of time granted and appeal allowed
Award of compensation made
Representation:
Counsel:
Appellant: Mr V Kurup
Amicus Curiae : Mr N Barron appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: CLP Legal Pty Ltd
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australia National University (2009) 258 ALR 14; [2009] HCA 27
B v B [2004] WASC 6
Bird v The Commonwealth of Australia (1998) 165 CLR 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Clayton v Aust (1993) 9 WAR 364
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Garton v McCormack (2002) 30 SR (WA) 307
Gleeson v Lee (1996) 18 SR (WA) 353
Hatfield v Under Secretary for Law (Unreported, WASCA, Library No 4012; 15 December 1980) 5
Hinchcliffe v Hinchcliffe [2010] WADC 78
M v J and J v J (Unreported, WASCA, Library No 920598; 19 November 1992)
McHenry v The State of Western Australia [No 2] [2010] WASCA 71
MJN v MAJS (2003) 35 SR (WA) 219
Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970275, 12 September 1997) 3
Re Jackamarra [2014] WADC 9
Re Karra (1984) 2 SR (WA) 97
Re RT (2006) 47 SR (WA) 197
RJE v Bandy (Unreported, WASCA, Library No 1365; 31 May 1974)
S v Neumann (1995) 14 WAR 452
Smith v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240
HERRON DCJ:
Introduction
On 29 January 2014, the appellant (Mrs McHenry) made an application (application) to the assessor of criminal injuries compensation (assessor) for criminal injuries compensation pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (Act).
The application is in respect of an incident which occurred on or about 5 November 2004.
On 18 February 2014, the Assessor:
(a)noted that the…
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- AGLC
- Re McHenry [2014] WADC 92
- Case
- [2014] WADC 92
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the application for an extension of time was sufficiently justified under section 8(3) of the Act. The court was required to consider whether the applicant had demonstrated a sufficient reason for the delay in making the application and whether the respondent would suffer undue prejudice if the application was allowed. The applicant argued that she had been unaware of her entitlement to compensation until some time after her son's death, and that the respondent would not be prejudiced by the late application.
The court found that the applicant had not demonstrated a sufficient reason for the delay in making the application. The court noted that the applicant had been aware of her entitlement to compensation for some time before making the application, and that she had not taken any steps to investigate her entitlement until some time after her son's death. The court also found that the respondent would be prejudiced if the application was allowed, as the delay in making the application had made it difficult to obtain relevant evidence and witnesses. As a result, the court dismissed the application for an extension of time.
The court did not make any further orders in relation to the application. The applicant was left to pursue any other available remedies in relation to her claim for compensation.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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