JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: STUMPAGEE -v- SAMPI [2022] WADC 28
CORAM: BURROWS DCJ
HEARD: 25 FEBRUARY 2022
DELIVERED : 25 MARCH 2022
FILE NO/S: APP 67 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: CLINTON STUMPAGEE
Appellant
AND
ZALEMIA JOHN SAMPI
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 1257/2021
Catchwords:
Criminal injuries compensation - Proved offence - Whether conduct of claimant contributed to his injuries - Assessment of compensation - Turns on its own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 12(1), s 12(3)(a), s 41, s 43, s¤45(1)(b), pt 6, s 60, s 52, s 55(1)(b), s 55(3), s 56(1) and s 56(2)
Result:
Appeal allowed
Compensation awarded
Representation:
Counsel:
| Appellant | : | Mr N F Morrissey |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr E A Heywood on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Patrick J Cannon Co Coburn & Associates Pty |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CJA v RJC [No 2] [2003] WADC 128
DNA v Britten (1995) 14 SR (WA) 325
Dos Santos v Dos Santos [2000] WADC 256
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Foote v Draper [2003] WADC 17; (2003) 31 SR (WA) 105
Gullelo v Halloran [2008] WADC 145
Harris v Sycamore [2022] WADC 4
Hinchcliffe v Hinchcliffe [2010] WADC 78
Lanyon v Northern Territory of Australia [2002] NTSC 6
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
P v C [2005] WADC 107
S v Neumann (1995) 14 WAR 452
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
BURROWS DCJ:
On 29 June 2021 the appellant made an application under s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) in respect of injuries and losses suffered as a result of a proved offence. In this case the proved offence is unlawfully doing grievous bodily harm in respect of which the respondent was convicted and sentenced by Vernon DCJ on 22 July 2019 in the District Court at Broome to a term of 3 years…
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- AGLC
- Stumpagee v Sampi [2022] WADC 28
- Case
- [2022] WADC 28
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to determine were whether the appellant's conduct contributed to his injuries and, if so, to what extent. Additionally, the court needed to decide whether the discount applied to the compensation award was appropriate and whether the appellant was entitled to reimbursement of costs incurred in relation to the appeal. The court also considered the broader issue of how prior conduct and mutual violence should factor into the assessment of compensation.
In delivering the judgment, the court found that the appellant's provocative and antagonistic behaviour contributed to the injuries he sustained. It was held that the appellant's actions in repeatedly calling out the respondent to fight him were significant factors in the altercation. However, the court did not agree with the 12.5% discount applied to the compensation award by the assessor. Instead, the court ordered a 10% reduction in the compensation amount, considering the specific circumstances of the case. The court also ruled that the cost of Dr Hardcastle's report, which was incurred in the preparation of the appeal, should be reimbursed to the appellant's solicitors. The court declined to award costs to the appellant for preparation of the appeal, attendance at the hearing, and preparation of the notice of appeal, as these costs were not pressed by the appellant's counsel at the hearing.
The final orders of the court included a reduction in the compensation award by 10%, reimbursement of the cost of Dr Hardcastle's report, and a refusal to award additional costs to the appellant. The CEO was not ordered to pay any costs as the CEO was not an unsuccessful party to the appeal and did not participate in the proceedings beyond assisting the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is evident from her Honour's sentencing remarks that she accepted that this was not an isolated incident between the appellant and the respondent. There was a history of violence between them. The New South Wales Supreme Court, dealing with provisions identical to s 41 of the Act, observed that it was appropriate for the tryer of fact to take into account prior occasions of 'mutual physical violence' or 'tit for tat' and in particular, any prior attack by the victim upon the offender when considering the victim's contribution to the injuries sustained. [39][39] Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148 [30]. The sentencing facts make it clear that the appellant came over to the respondent's home, knocked on his door and called him out to come and fight him. He then went across the road to the driveway of his uncle's house, still calling out for the respondent to fight him. The respondent left the house with the baseball bat in his hand hanging down against his body, hoping that it would scare the appellant away. The appellant did not leave. The respondent's action in then swinging the baseball bat and hitting the appellant on the left shin, hitting him with the bat to the side of the head and then hitting him once more to the shin, were a disproportionate response to being called out for a fight. I am of the view that the appellant's acts in attending the house of the respondent, calling him out to fight and continuing to call him out to fight from across the road, can be described as both antagonistic and provocative. Had the appellant not repeatedly expressed the desire to fight the respondent and having done so remained in the vicinity, the injuries are unlikely to have been sustained. An adjustment to the compensation award in this case should be made for the appellant's behaviour. I am not satisfied that a discount of 12.5% as made by the assessor, is appropriate. I am of the view that a reduction in the order of 10% in the particular circumstances of this case is appropriate. In the appellants written submissions costs were sought in the event the appellant was successful for preparation for the appeal, attendance at the appeal hearing and for preparation of the notice of appeal, totalling in the sum of $980. The cost of the report of Dr Hardcastle in the sum of $2,640 was also sought. The cost of Dr Hardcastle's report is a compensable loss pursuant to s 6(2) of the Act. I order this amount be reimbursed to the appellant's solicitors. At the hearing of the appeal counsel did not press the claim for costs in the sum of $980. That was an appropriate concession as in this case, as the respondent played no part in the appeal. It is not appropriate that a costs order should be made against the CEO because the CEO is not an unsuccessful party to the appeal and because counsel for the CEO appears by leave to assist the court and perform a role that would not otherwise be performed.[40][40] Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [36] (Deane DCJ); Foote v Draper [2003] WADC 17 [40] (Jackson DCJ); (2003) 31 SR (WA) 105; CJA v RJC [No 2] [2003] WADC 128 [8] (Commissioner Reynolds); Blezard v Chief Executive Officer of the Ministry of Justice (2000) 23 SR (WA) 278, 284 (Jackson DCJ); Jones v Macey [2000] WADC 101 [10] (Williams DCJ); WHW v Commissioner of Police [2014] WASCA 153(S) [11] - [18] (Martin CJ, Buss and Murphy JJA); P v C [2005] WADC 107 [71] - [72] (Commissioner Stavrianou).