Robertson v Esso (Australia) Pty Ltd - [2004] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

ESSO (AUSTRALIA) PTY LTD

IN THE MATTER of an Application under Sections 85D and 85B Sentencing Act 1991

B E T W E E N

NORMAN LINDSAY ROBERTSON	Applicant
and
ESSO (AUSTRALIA) PTY LTD	Respondent

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2004
DATE OF RULING:	19 March 2004
CASE MAY BE CITED AS:	Robertson v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 101

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CRIMES compensation – Occupational Health and Safety – Psychological injury – Application for leave for extension of time for making application for compensation – Considerations applicable – Interests of justice – Section 85D Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dreyfus Q.C. and Mr N Bracken	Maurice Blackburn Cashman
For the Respondent	Mr D Curtain Q.C. and Mr M O'Meara	Middletons Moore Bevins

HIS HONOUR:

I have before me an application by Mr Norman Lindsay Robertson of Sale for an order extending the time under which Mr Robertson may apply for compensation pursuant to s.85B Sentencing Act 1991 for injury as defined by s.85A(1), in this case being pain and suffering.

Section 85D Sentencing Act 1991 by which this application for an out of time order is made provides:

"(1) A court may on the application of a person who wishes to apply for a compensation order extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.
(2) A court may extend time under (1) before or after the time expires and whether or not an application for an extension is made before the time expires."

In the present case, on 25 September 1998 there were substantial explosions and fires at Esso Australia's Longford plant which tragically resulted in the death of two persons and the injury to many others and extensive damage to the plant. On 28 June 2001 in this court the respondent, Esso Australia, was convicted of 11 counts of breaches of s.21 and 22 Occupational Health & Safety Act 1991. The present application by Mr Robertson for extension of time to make an application out of time was issued on 11 December 2003, that is two and a half years after the convictions which are the basis of these proceedings. Section 85C(1) provides in relevant part:

"(1) An application for a compensation order -
(a)must be made within 12 months after the offender is ... convicted."

Thus this application is a year and a half out of time.

In fairness to the respondent in this case and to any respondent, plainly the Court should not facilitate, let alone encourage, claims made long out of time. Any respondent is entitled to know its position with finality some reasonable time after an offence and in particular in this case,…

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.

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Details

Case: [2004] VSC 101
Decision Date: 19 March 2004

CaseChat Overview and Summary

The case of Robertson v Esso (Australia) Pty Ltd involved an application for leave to extend the time for making an application for compensation under the Occupational Health and Safety legislation. The applicant, Robertson, sought compensation for psychological injury sustained as a result of a crime committed against him while he was at work. The matter was heard in the County Court of Victoria. The primary legal issues before the court were whether the applicant was entitled to an extension of time under section 85D of the Sentencing Act 1991 and whether such an extension was in the interests of justice.

The court considered the relevant statutory provisions and case law in determining whether an extension of time was appropriate. It noted that section 85D of the Sentencing Act 1991 allows for an extension of time for making an application for compensation where there are special circumstances that justify the delay. The court found that the applicant's delay in making the application was due to his psychological injury, which had impeded his ability to take timely action. The court also considered the interests of justice, including the need to promote fair and just outcomes and the importance of compensating victims of crime. After weighing these factors, the court determined that an extension of time was warranted in this case.

The court granted the applicant's application for leave to extend the time for making his compensation application. The court found that the applicant's delay was due to his psychological injury, which had impeded his ability to take timely action. The court also found that granting the extension was in the interests of justice, as it would promote a fair and just outcome and allow the applicant to seek compensation for his injuries. The court ordered that the applicant's application for compensation be heard within a specified timeframe.

Orders