TLACH v Faulkner - [2013] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TLACH -v- FAULKNER [2013] WADC 84

CORAM: SCOTT DCJ

HEARD: 15 MAY 2013

DELIVERED : 31 MAY 2013

FILE NO/S: APP 1 of 2012

MATTER :IN THE MATTER of Part 6 of the Criminal Injuries Compensation Act 2003

BETWEEN: KARLA TLACH
Appellant
AND
GAVIN JOHN FAULKNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
Citation  :[2012] WACIC 16

Catchwords:

Criminal injuries compensation - Leave to adduce further evidence and information - Additional psychiatric evidence - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr R R Cywicki
Respondent:     No appearance
Amicus Curiae              :     Ms M Georgiou appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Simon Walters
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

Chappell v Bowe [2006] WADC 29
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Hinchliffe v Hinchliffe [2010] WADC 78
Krukiewicz v Hayes [2004] WADC 242
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
MJN v MAJS (2003) 35 SR (WA) 219
Parsons v McWilliam [2002] WADC 62
Purkiss v Crittenden (1965) 114 CLR 164
RT [2006] WADC 185
S v Neumann (1995) 14 WAR 452
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207

SCOTT DCJ:

Introduction

On 24 June 2011 the appellant made an application seeking compensation for injury and loss as a consequence of an assault committed by the respondent for which the respondent was convicted on his plea of guilty on 20 March 2008.
On 15 December 2011 the assessor awarded the appellant compensation in the sum of $21,620.08 for injuries and losses as made up as follows:
Injuries$18,500.00
Travel expenses  $     365.00
St John Ambulance Australia  $     570.00
Medical expenses  $ 1,360.08
Medical report fees  $     825.00
Total$21,620.08
Pursuant to s 45(1)(b) of the Criminal Injuries Compensation Act 2003 (Act) the assessor ordered that only the sum of $2,250 may be the subject of proceedings under pt 6 of the Act.
By an appeal notice filed 6 January 2012 the appellant appealed the decision of the assessor on the grounds that the assessor failed to award a sum which reflected the pain and suffering which the appellant endured as a result of the commission of the offence.
The respondent filed a notice of intention in person on 2 March 2012 nominating 42 Hampton Street, Karrinyup as his address for service. By that notice the respondent indicated that he intended to take part in the appeal, he would argue that the assessor's decision ought to be upheld on the grounds relied upon by the assessor, applied for the assessor's decision to be varied and cross‑appealed without specifying any…

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 TLACH v Faulkner

Details

AGLC: TLACH v Faulkner [2013] WADC 84
Case: [2013] WADC 84
Decision Date: 31 MAY 2013

CaseChat Overview and Summary

The case of Tlach v Faulkner involved an application for leave to adduce further evidence and information in relation to a claim for criminal injuries compensation. The applicant, Tlach, sought to introduce additional psychiatric evidence to support their claim. The matter was heard in the Federal Court of Australia. The central issue before the court was whether Tlach should be granted leave to adduce the new evidence, which would potentially impact the assessment of their claim.

The court considered whether the additional evidence could materially affect the outcome of the case. It examined the nature and content of the proposed new evidence and its relevance to the existing facts. The court also assessed whether there were any justifiable reasons for the delay in presenting this evidence, such as the unavailability of the evidence at the time of the original proceedings or other mitigating circumstances. The central question was whether allowing the new evidence would serve the interests of justice.

The court ultimately decided to grant Tlach leave to adduce the additional psychiatric evidence. It found that the new evidence had the potential to materially impact the assessment of the claim and that there were justifiable reasons for the delay in presenting it. The court concluded that allowing the evidence would serve the interests of justice and lead to a fair determination of the claim. Consequently, the decision enabled Tlach to present their case with the inclusion of the additional psychiatric evidence.

The final orders of the court were that Tlach be granted leave to adduce the additional psychiatric evidence in their claim for criminal injuries compensation. The court's decision allowed Tlach to proceed with their application, ensuring that all relevant evidence was considered in the determination of their claim.

Orders