Tidmarsh v The Assessor for Criminal Injuries Compensation

[2011] WADC 173

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   TIDMARSH -v- THE ASSESSOR FOR CRIMINAL INJURIES COMPENSATION [2011] WADC 173

CORAM:   BOWDEN DCJ

HEARD:   14 OCTOBER 2011

DELIVERED          :   24 OCTOBER 2011

FILE NO/S:   APP 42 of 2011

BETWEEN:   PATRICK TIDMARSH

Appellant

AND

THE ASSESSOR FOR CRIMINAL INJURIES COMPENSATION
Respondent

ON APPEAL FROM:

Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram  :R GUTHRIE

File No  :CI 000285 of 2011

Catchwords:

Criminal injuries compensation - Appeal from assessor's order that $5,000 be subject to recovery under pt VI of the Act

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal dismissed for lack of jurisdiction

Representation:

Counsel:

Appellant:     In Person

Respondent:     Ms M Dorn

Solicitors:

Appellant:     Not applicable

Respondent:     State Solicitor for Western Australia

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

Nil

1. BOWDEN DCJ:  On 23 May 2011 the assessor of criminal injuries compensation awarded Mr Meschiati the sum of $75,000 compensation for injuries and losses in respect of an assault occasioning bodily harm occurring on 10 March 2009 at Warwick for which the appellant was convicted in the Magistrates Court on 23 February 2010.

2. The assessor also ordered that pursuant to s 45(1)(b) of the Criminal Injuries Compensation Act 2003, $5,000 be subject to recovery from the appellant by the CEO in proceedings under pt VI of that Act.

3. The appellant seeks to appeal against the decision of the assessor seeking a ' "review" of the amount awarded against himself'. 

4. At the hearing of the appeal, on 14 October 2011, the appellant confirmed he  only sought to appeal that part of the award ordering that $5,000 be subject to recovery from him in proceedings under pt VI of the Act.

5. I hold the appeal is without jurisdiction.

6. The appellant cannot appeal an assessor's order under s 45(1)(b) of the Act .

7. Section 55(1) of the Act provides that an interested person may appeal to the District Court against an assessor's decision to make or to refuse to make a compensation award or the amount of a compensation award.

8. The order appealed is not a decision to make or refuse to make a compensation award or a decision as to the amount of a compensation award.

9. The s 45 order has determined the maximum liability that may be recovered by the chief executive officer from the appellant (the maximum liability)(s 45(1)(b)).

10. As a result of that determination if the chief executive officer  intends to actually recover money from the appellant he must apply to the assessor (the application) for an assessment of the amount to be repaid by the appellant.  The amount ordered to be repaid is referred to as the compensation reimbursement order .

11. The CEO may give the appellant a written notice requesting payment to the State as a lump sum of the whole or part of the appellant's maximum liability.

12. However the appellant is only liable to pay the CEO any money if the application is heard and the assessor makes a compensation reimbursement order. 

13. On receiving the CEO's application, the chief assessor must provide notice of the application to the appellant and the CEO, advising them of the time and place of the hearing, the s 52(2) matters to be considered at the hearing and that each party is entitled to make written submissions, appear at the hearing by a lawyer or other person, present evidence and to call, examine and re‑examine witnesses and to cross‑examine any witness not by that person (s 51).

14. The assessor must then conduct a hearing.

15. In deciding whether to make a compensation reimbursement order and the amount of that order the assessor may inquire into, but must  have regard to, the following:

    (a)the extent to which the offender is responsible for the victim's injury or death;

    (b)whether the behaviour of the victim at the time of the offence in any way precipitated or provoked the offence;

    (c)whether any behaviour, condition, attitude or disposition of the victim contributed directly or indirectly to the victim's injury or death;

    (d)the offender's means to satisfy any such order having regard to:

    (i)the offender's income, assets and liabilities

    (ii)the offender's current and prospective employment;

    (e)the extent to which the offender is likely to be able to satisfy any such order within a reasonable time(s 52(2)(a) – (e));

    (f)any other matters the assessor thinks relevant to the application (s 51(7)(b)).

16. Whether a compensation reimbursement order is made is at the discretion of the assessor.

17. If such an order is made the maximum the appellant can be ordered to pay is in this case, $5,000 as a result of the determination (s 45(1)(b)).

18. The compensation reimbursement order may specify the amount is to be paid in a lump sum or by means of instalments of such amount and at such times as are specified.

19. The CEO and the appellant have the right to appeal to the District Court within 21 days against the amount of the compensation reimbursement order or the assessor's decision to refuse to make such an order (s 55(2)).

20. The CEO and the appellant may at any time apply to the assessor for a compensation reimbursement order to be amended or cancelled (s 52(3)) and each has the right to appeal to the District Court within 21 days of the decision to cancel or amend or refuse to cancel or amend such an order (s 52(3)).

21. In this case the appellant seeks to appeal a decision by the assessor which under s 45 limits the maximum amount that can be recovered from him if a compensation reimbursement order is made.  There is no appeal against that decision.  There is only an appeal against a compensation reimbursement order once such an order is made and that has not occurred. 

22. Accordingly I dismiss the appeal.