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Van Silfhout v Pathirannehelage

Van Silfhout v Pathirannehelage

Case [2023] NZCA 5 8 February 2023

Limitation Periods

Jurisdiction

Statutory Interpretation

Breach of Contract

Negligence

Unconscionable Conduct

Constitutional Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA584/2021
[2023] NZCA 5

BETWEEN	JOSHUA PERA VAN SILFHOUT Appellant
AND	UDAYA LAKSHMAN AGAS PATHIRANNEHELAGE Respondent

Hearing:	13 October 2022
Court:	Miller, Brown and Katz JJ
Counsel:	D A Ewen for Appellant V E Casey KC as counsel to assist the Court
Judgment:	8 February 2023 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

The appellant, Mr van Silfhout, appeals from a judgment of the High Court[1] dismissing his appeal from a decision of the Victims’ Special Claims Tribunal (the Tribunal),[2] in which the Tribunal awarded the respondent compensation under the Prisoners’ and Victims’ Claims Act 2005 (the PVCA).
[1]Van Silfhout v Pathirannehelage [2021] NZHC 2268 [High Court judgment].
[2]Pathirannehelage v Van Silfhout [2021] NZVSC 3.
Section 64 of the PVCA provides that the limitation period for a victim of an offence making a claim[3] (which commences on the date of the offending) ceases to run while an offender is serving a sentence of imprisonment. The sole issue on this appeal is whether time spent in pre-sentence detention by an offender who is subsequently sentenced to imprisonment for their offending counts to extend the limitation period for a victim’s claim.

Factual background

[3]Pursuant to s 4(1)(d) of the Limitation Act 1950, which applied to Mr Pathirannehelage’s claim, the relevant limitation period is six years.

On 9 July 2010 Mr van Silfhout entered a Mobil service station armed with a weapon. He threatened the respondent, who was the sole worker there, and robbed the premises of money and cigarettes. Eventually Mr van Silfhout was arrested and charged. He was remanded in custody on 30 January 2013. On 13 May 2014 he was sentenced to four years and three months’ imprisonment, by which time he had already served approximately one year and three and a half months in custody on remand. On 2 May 2017, his sentence expiry date, he was released.[4]
[4]He had been released on parole on 21 November 2016 but was recalled to prison on 1 March 2017.
On 21 January 2020, the Department of Corrections agreed to pay the appellant $12,000 (GST included) compensation for an alleged breach of privacy. On 2 April 2020 the respondent lodged with the Tribunal a claim for $10,000 compensation for emotional harm arising out of the robbery. Judge Blackie awarded the respondent $5,000 compensation.
The material chronology is depicted in the chart below.

Limitation running

Contested period

Limitation suspended

09.07.2010–29.01.2013

Offender at large

30.01.2013–12.05.2014

1 year and 3½ months
Remand in custody

13.05.2014–20.11.2016

2 years and 6 months
Imprisonment

21.11.2016–01.03.2017

On parole

02.03.2017–02.05.2017

Recall to prison

02.05.2017–02.04.2020

Time between release and filing of claim[5]

[5]During this period there was a further suspension of at most two months pursuant to s 64B of the Prisoners’ and Victims’ Claims Act 2005 (PVCA). Section 64B suspends the limitation period until the standard deadline under s 28(3)…

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 Van Silfhout v Pathirannehelage

Details

AGLC: Van Silfhout v Pathirannehelage [2023] NZCA 5
Case: [2023] NZCA 5
Decision Date: 8 February 2023 at 11.00 am

CaseChat Overview and Summary

In Van Silfhout v Pathirannehelage, the Court of Appeal of New Zealand dismissed an appeal brought by Mr van Silfhout against a decision of the Victims’ Special Claims Tribunal. The Tribunal had awarded compensation to Mr Pathirannehelage under the Prisoners’ and Victims’ Claims Act 2005 (PVCA). The central issue on appeal was whether the period of pre-sentence detention an offender serves should be included in the suspension of the limitation period for a victim's claim under s 64 of the PVCA. The Court of Appeal upheld the High Court's decision, which had ruled that the period of pre-sentence detention should indeed be included in the period of suspension. The appeal hinged on the interpretation of the phrase "serving a sentence of imprisonment" within the context of s 64(1). Mr van Silfhout's counsel argued that the ordinary meaning of "serving" should apply, implying that the limitation period only suspends once a sentence has been imposed. However, the Court found that the statutory context, including the Parole Act 2002, indicated that the technical meaning of the phrase should be applied, thus including pre-sentence detention. This interpretation was deemed consistent with the purpose of the PVCA, which aims to prevent the futility of suing prisoners in custody and to establish a nexus between the imprisonment and the offending against the victim. The Court of Appeal dismissed the appeal, affirming that the period of pre-sentence detention should be included in the suspension of the limitation period for a victim's claim under the PVCA.

Orders