Van Silfhout v Pathirannehelage - [2021] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-195

[2021] NZHC 2268

UNDER the Prisoners’ and Victims’ Claims Act 2005

BETWEEN

JOSHUA PERA VAN SILFHOUT

Appellant

AND

UDAYA LAKSHMAN AGAS PATHIRANNEHELAGE

Respondent

Hearing: 19 July 2021

Appearances:

D A Ewen and A Hill for the Appellant V Casey QC as Amicus

Judgment:

31 August 2021

JUDGMENT OF COOKE J

Table of Contents

Background facts[4]

The legislative scheme[11]

Tribunal’s approach to limitation[15]

Does limitation need to be raised?[16]

Approach of the Tribunal here[24]

Is pre-sentence detention included?[28]

What is the statutory purpose?[30]

Ordinary meaning[41]

Inappropriate adoption of defined meaning from another Act?[47]

Conflict with defined term[55]

No room for implied reference to Sentencing and Parole Acts[59]

Is this a sensible interpretation?[70]

Conclusion[74]

VAN SILFHOUT v PATHIRANNEHELAGE [2021] NZHC 2268 [31 August 2021]

[1] Mr Van Silfhout appeals against the decision of the Victims’ Special Claims Tribunal (the Tribunal) which awarded the respondent $5,000 under the Prisoners’ and Victims’ Claims Act 2005 (the Act).

[2] The respondent abides by the decision of the Court. He attended earlier telephone conferences, and participated in the proceedings before the Tribunal, but he did not attend the substantive hearing of the appeal. At the earlier suggestion of counsel for the appellant amicus was appointed to act as a contradictor, and Ms Casey QC appeared on the appeal exercising that role.

[3] The key issue on appeal is whether the claim made by the respondent before the Tribunal was time barred under the Limitation Act 1950.1 As will be explained in fuller detail below, the running of the limitation period is suspended under the Act during the period when the offender is serving the sentence of imprisonment for the offending that gives rise to the claim. In the present case the ultimate issue is whether a period of pre-sentence detention, which is treated as time served under the sentence, is included in the period of suspension. If it is, then Mr Pathirannehelage’s claim was not time barred. If it is not, then Mr Pathirannehelage’s claim would have been time barred.

Background facts

[4]The background facts are set out by the Judge in the decision of the Tribunal.2

[5] On 9 July 2010 Mr Van Silfhout entered a Mobil Service Station at which Mr Pathirannehelage was the sole worker. Mr Van Silfhout had a weapon and he threatened Mr Pathirannehelage, and robbed the premises of money and cigarettes. He was subsequently arrested and charged.

[6] On 30 January 2013 Mr Van Silfhout was remanded in custody. On 13 May 2014 he was sentenced to four years three months’ imprisonment. At that stage he had served approximately one year and three and a half months in custody on remand. In accordance with s 90 of the Parole Act 2002 this period is counted as part of the time

1 Limitation Act 2010, s 59; the 1950 Act applies to this claim.
2 Pathirannehelage v Van Silfhout [2021] NZVSC 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.

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Details

Case: [2021] NZHC 2268
Decision Date: 31 August 2021

CaseChat Overview and Summary

The appeal concerns the interpretation of the Prisoners’ and Victims’ Claims Act 2005, specifically whether the claim made by the respondent was time-barred under the Limitation Act 1950. The respondent's claim was for damages resulting from an armed robbery committed by the appellant. The primary issue was whether the pre-sentence detention period should be included in the suspension of the limitation period, as outlined in s 64 of the Act. If pre-sentence detention was included, the respondent's claim was not time-barred; if excluded, it would have been. The Victims' Special Claims Tribunal found the claim was not time-barred and awarded the respondent $5,000. The appellant appealed this decision.

The court examined the statutory purpose of the limitation provisions, concluding that the purpose was to extend the period during which victims could pursue claims against offenders who are in prison. This extension was intended to prevent victims from being disadvantaged by the usual six-year limitation period, especially when the offender has no assets. The court also considered the ordinary meaning of the words used in s 64, which suggested that pre-sentence detention should be included in the period when the limitation period is suspended. The court rejected arguments that this interpretation improperly adopted definitions from other acts, noting that the Act was intended to operate against the background of the sentencing regime. The court concluded that pre-sentence detention should indeed be included in the suspension of the limitation period, finding that the Tribunal had erred in law but correctly determined that the respondent's claim was not time-barred.

The appeal was dismissed, and the question of costs was reserved.

Orders