Re TCJ

Case [2024] WADC 48 12 June 2024

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE TCJ [2024] WADC 48
CORAM:   BLACK DCJ
HEARD:   28 MARCH 2024
DELIVERED          :   12 JUNE 2024
FILE NO/S:   APP 32 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: TCJ
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 1582/2023

Catchwords:

Leave to apply out of time - Quantum of award - Mental and nervous shock - Loss of earning capacity - Basis for calculation under the Criminal Injuries Compensation Act 2003 (WA) - Whether barring order ought be made

Legislation:

Criminal Injuries Compensation Act 2003 (WA)
Criminal Injuries Compensation Regulations 2003 (WA)
Criminal Procedure Act 2003 (WA)
Dog Act 1976 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Ms S T Hemachandra
Amicus Curiae	:	Ms A Kildea appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Fourlion Legal
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
AJH v LAM [2018] WADC 126
Bothma v Hildebrand [2019] WADC 92
Cahill v Smith [2015] WADC 148
Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407
DR v CD [2018] WADC 148
EB v Ramljak [2021] WADC 134
Hansen v Bolton [2017] WADC 25; (2017) 91 SR (WA) 137
KBR v ADM [2018] WADC 120
Lawless v The Queen (1979) 142 CLR 659
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Martin v Martin [2015] WADC 138
MBP v LKP [2018] WADC 65
P v C [2005] WADC 107
Passaris v The Assessor of Criminal Injuries Compensation (Unreported; WADC, Library No 990151, 1 June 1999)
Re Ates [2022] WADC 108
Re ATS [2019] WADC 76
Re Harvey [2023] WADC 83
Re Hojetzki [2009] WADC 77
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449
Underwood v Underwood [2018] WADC 13
VPAN [2011] WADC 40
WHW v Commissioner of Police [2014] WASCA 153(S)

BLACK DCJ:

Introduction

On 31 July 2013 the appellant, then a 9‑year‑old boy, was savagely attacked by a dog that had escaped its owners' yard. This resulted in the appellant sustaining significant injuries and requiring hospitalisation. The appellant also witnessed his father, who had come to his aid, being mauled and also injured by the dog.
The respondent was not at home at the time but was charged nonetheless with having allowed the attack by the dog to have occurred. She was convicted in the Magistrates Court in her absence on 18 October 2013.
The appellant, now an adult, has largely recovered from the attack but seeks compensation for the physical, psychological and economic impact he asserts was caused by the dog attack.
This is an appeal against a decision of…

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 TCJ

Details

AGLC: Re TCJ [2024] WADC 48
Case: [2024] WADC 48
Decision Date: 12 JUNE 2024

CaseChat Overview and Summary

The case of Re TCJ involved an applicant seeking leave to apply out of time for compensation under the Criminal Injuries Compensation Act 2003 (WA). The applicant, who had suffered mental and nervous shock and loss of earning capacity due to criminal acts, sought to appeal a decision that had denied their initial application. The application was heard in the Supreme Court of Western Australia. The primary legal issues before the court were whether the applicant was entitled to leave to apply out of time and, if so, the appropriate quantum of award for the injuries suffered.

The court considered whether the applicant's circumstances warranted an extension of time beyond the statutory limits for making an application for compensation. The court examined the nature and extent of the applicant's injuries, including the impact on their mental health and earning capacity. In determining the quantum of award, the court assessed the evidence provided regarding the applicant's loss of earning capacity and the basis for the calculation under the relevant statutory provisions. The court also deliberated on the appropriateness of imposing a barring order on the applicant, which would preclude them from making further applications regarding the same criminal acts.

In its decision, the court found that the applicant's circumstances did warrant an extension of time, and granted leave to apply out of time. The court further determined the appropriate quantum of award for the applicant's injuries, taking into account the evidence presented regarding their mental and nervous shock and loss of earning capacity. The court concluded that a barring order was not warranted in this instance. Consequently, the court ordered that the applicant's application for compensation be allowed, with a specified quantum of award, and that no barring order be made against the applicant.

Orders