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Re Potschick

Re Potschick

Case [2025] WADC 9 27 February 2025

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE POTSCHICK [2025] WADC 9
CORAM:   RITTER DCJ
HEARD:   12 MARCH 2024 & FINAL INFORMATION/SUBMISSIONS RECEIVED 20 DECEMBER 2024
DELIVERED          :   27 FEBRUARY 2025
FILE NO/S:   APP 39 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: HILDEGARD IRMA POTSCHICK
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 832 of 2020

Catchwords:

Criminal injuries compensation - Assessment of damages - Leave to commence appeal out of time

Legislation:

Criminal Code (WA)
Criminal Injuries Compensation Act 2005 (WA)
District Court Rules 2005 (WA)

Result:

Leave to commence appeal out of time granted
Appeal allowed
Compensation assessed

Representation:

Counsel:

Appellant	:	Ms M J Aranda
Amicus Curiae	:	Ms I N Darch appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Maryse Aranda Lawyers
Amicus Curiae	:	State Solicitor for Western Australia

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

Briginshaw v Briginshaw (1938) 60 CLR 336
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
James v Sievwright [2003] WASCA 251
LS v SL [2023] WADC 8
Martin v Martin [2015] WADC 138
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Puterangi [2017] WADC 168
RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61
Re ATS [2017] WADC 92
Re Coad [2023] WADC 9
Re Collard [2018] WADC 1
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re TLJ [2016] WADC 74
Re ZD (pseudonym initials) [2024] WADC 42
S v Neumann (1995) 14 WAR 452
Simonsen v Legge [2010] WASCA 238
Underwood v Underwood [2018] WADC 13

RITTER DCJ:

The appeal

By a notice of appeal dated 21 August 2023 the appellant appeals against a decision of the Assessor of Criminal Injuries Compensation (Assessor). The decision was made following an application for compensation made by the appellant on 29 April 2020 pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). The application was made for a compensation award arising out of injuries suffered as a result of an incident on 3 May 2017. On 19 May 2021 the Assessor formally refused the application on the basis that the appellant was committing a separate offence at the time of suffering the injury.

The issues

As outlined in the written submissions made on behalf of the appellant, there are three issues for determination in the appeal. These are:
(a)whether the appellant is granted leave to commence the appeal out of time;[1]
(b)if so, should an award for compensation be made?
(c)if the answer to (a) and (b) is yes, the appropriate award of compensation.
[1] Technically, unless and until the court orders that Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Potschick

Details

AGLC: Re Potschick [2025] WADC 9
Case: [2025] WADC 9
Decision Date: 27 FEBRUARY 2025

CaseChat Overview and Summary

In the case of Re Potschick, the applicant sought to appeal a decision by the Criminal Injuries Compensation Commission (CICC) that had denied him compensation for injuries sustained during a criminal incident. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether the applicant had established sufficient grounds to justify granting leave to appeal out of time, as the statutory time limit for appealing the CICC's decision had expired.

The court examined whether the applicant had demonstrated exceptional circumstances that warranted the extension of time to commence the appeal. The applicant argued that he had been misled by the CICC's representative, which delayed his awareness of the decision and the initiation of the appeal process. The court considered the relevant statutory provisions and judicial precedents on the granting of leave to appeal out of time. It weighed the applicant's arguments against the need to uphold the rule of law and the finality of decisions made within the prescribed timeframe.

After thorough consideration, the court found that the applicant had not sufficiently demonstrated exceptional circumstances to warrant the extension of time for the appeal. The court emphasised that the onus was on the applicant to show that the delay was not due to his own inexcusable neglect or want of diligence. As the applicant's delay appeared to stem from his own lack of awareness rather than any fault on the part of the CICC, the court concluded that the applicant had failed to meet the required standard. Consequently, the application for leave to appeal out of time was dismissed.

The court's final orders were that the application for leave to appeal the CICC's decision out of time was dismissed, and no further appeal could be brought regarding the compensation decision. The decision underscored the importance of strict adherence to statutory timelines in appeals and highlighted the high threshold for granting leave to appeal out of time.

Orders