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Re Swinford

Re Swinford

Case [2021] WADC 82 20 August 2021

Appeal

Jurisdiction

Standing

Unconscionable Conduct

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SWINFORD [2021] WADC 82
CORAM:   RUSSELL DCJ
HEARD:   16 DECEMBER 2020 & 19 APRIL 2021
DELIVERED          :   20 AUGUST 2021
FILE NO/S:   APP 22 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: JAMES SWINFORD
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 235/2018, CIC 236/2018

Catchwords:

Criminal injuries compensation - Appeal - Admission of further evidence - Alleged offences - Two or more unrelated offences by one offender - Mental and nervous shock - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 222, s 223, s 248(4), s 313
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 6(2), s 9(1), s 17(1), s 17(2), s 30, s 31, s 33(1), s 34(2), s 41, s 55(3), s 56(1), s 56(2), s 56(2)(a), s 56(2)(b)

Result:

Appeal allowed
Compensation award varied

Representation:

Counsel:

Appellant	:	Mr B L Nugawela
Amicus Curiae	:	Ms K T Dias (16 December 2020) and Ms A Y Seen (19 April 2021) on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Leon Martin Barristers & Solicitors
Amicus Curiae	:	State Solicitor for Western Australia

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Cahill v Smith [2015] WADC 148
CKM [2008] WADC 79
CME [2018] WADC 69
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
DR v CD [2018] WADC 148
Dunne [2014] WADC 131
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Guy v Hampson [2019] WADC 19
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Houlahan v Pitchen [2009] WASCA 104
JY [2013] WADC 187
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Martin v Martin [2015] WADC 138
McDavitt v McDavitt [No 2] [2013] WADC 198
MJN v MAJS [2003] WACC 9; (2003) 143 A Crim R 375
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden (1965) 114 CLR 164
Re AK [2016] WADC 156
Re Farmer [2015] WADC 91
Re Piggott [2017] WADC 150
Re Robinson [2017] WADC 18
Re Utting [2011] WADC 10
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Robertson v Baker [2014] WADC 14
S v Neumann (1995) 14 WAR 452
Selimoski [2012] WADC 30
TAW v NJS [2011] WADC 187
Taylor v Paindelli [2016] WADC 160
Underwood v Underwood [2018] WADC 13
VPAN [2011] WADC 40
WHW v Commissioner of Police [2014] WASCA 153(S)
Winiarczyk v…

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 Swinford

Details

AGLC: Re Swinford [2021] WADC 82
Case: [2021] WADC 82
Decision Date

CaseChat Overview and Summary

James Swinford appeals against an award of criminal injuries compensation by the Assessor of Criminal Injuries Compensation of Western Australia of $12,505 made in relation to two separate assaults by another employee, RP. Mr Swinford claims compensation in the amount of $205,900.85. The District Court of Western Australia has allowed the appeal and varied the compensation award to $76,665. The court found that Mr Swinford had suffered mental and nervous shock as a consequence of the two separate offences and was entitled to compensation of $35,000 for that injury. The court found that Mr Swinford had suffered past loss of earnings of $26,000 and awarded $3,115 for report fees. The court made no award for future loss of earnings or future special loss. The court awarded $12,550 for future treatment expenses, subject to the requirements of s 48 of the Criminal Injuries Compensation Act 2003 (WA) being satisfied. The total compensation awarded was within the jurisdictional limit of $150,000 for two separate offences by one offender. The court made no order as to costs.

Orders