AJA v PSS

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Whether offender can assert that the proven offence the foundation of the claim of compensation was wrongly decided

Criminal Injuries Compensation Act 2003 (WA), s 9, s 12, s 30

Mr F Cardell-Oliver appeared on behalf of the Chief Executive Officer of the Department of Justice

AJA v PSS [2002] WADC 194

ALD v NCD [2012] WADC 45

B v B [2004] WASC 6

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bennett v The State of Western Australia [2012] WASCA 70

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

Bothma v Hildebrand [2019] WADC 92

CME [2018] WADC 69

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Houlahan v Pitchen [2009] WASCA 104

KBR v ADM [2018] WADC 120

Lyle v Soc [2009] WASCA 3

M R & R C Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110

M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365

Nagel v Tahere [2020] WADC 110

Nurovic v Nurovic [2019] WADC 28

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Pym v Richardson [2018] WADC 156

RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

Robinson [2017] WADC 18

S v Neumann (1995) 14 WAR 452

Stocker v Loeper [2001] WASC 176

T v Curnuck [2004] WASC 139

Townend v McAlindon [2017] WADC 63

Underwood v Underwood [2018] WADC 13

Winiarczyk v Tsirigotis [2011] WASCA 97

1. On 11 September 2015 the Appellant was convicted in this court of one count of carnal knowledge of a girl under the age of 13 years, two counts of attempted carnal knowledge of a girl under the age of 13 years and four counts of indecent dealing with a child under the age of 14 years (Offences). The Offences were committed on various unknown dates between 23 November 1975 and 1 January 1982. The Respondent is the victim of the Offences. At the time they were committed she was the Appellant's stepdaughter. As a result of his conviction of the Offences the Appellant was sentenced to a significant term of imprisonment. The Appellant appealed both his conviction and his sentence to the Court of Appeal. Each appeal was unsuccessful.[1]
2. On 3 November 2017 the Respondent filed an application for compensation pursuant to Criminal Injuries Compensation Act 2003 (WA) (CICA) s 12(1) in relation to the Offences on the basis that they were 'proven offences' for the purposes of the CICA (Application).[2] The Application was made outside the three year time limit in CICA s 9(1).
3. On 5 February 2020 an assessor of Criminal Injuries Compensation (Assessor) determined the Application. The Assessor granted an extension of time to make the Application. Compensation was assessed at $15,000, being the then statutory maximum (Decision). The Assessor ordered that only $14,000 be recoverable from the Appellant pursuant to CICA s 45(1)(b).[3] No party requested the Assessor to provide written reasons pursuant to CICA s 27, and none were prepared.
4. By notice of appeal filed 13 March 2020 the Appellant appealed the Decision to the District Court (Appeal). The sole ground of appeal is that:

The case against me has been fabricated and I have been wrongly convicted for an offence I did not commit.

1. The central issue for determination is whether the Appellant is able to challenge the making of an award of compensation on the basis that he was wrongly convicted of the proven offences the foundation of the claim for compensation. The short answer is that he cannot.
2. At the conclusion of the hearing on 30 September 2020, I made orders confirming the Decision and dismissing the Appeal. I advised the parties that I would publish the reasons for coming to that conclusion, which are as follows.
3. Given the narrow confines of the issues which I need to determine in the appeal, it is not necessary for me to go into the facts which gave rise to the Offences in any detail.

1. The Appeal was filed out of time, the 21 day time period expiring on 26 February 2020.[4] To explain the delay, the Appellant filed an affidavit dated 5 March 2020. His explanation is that he faced certain difficulties in prison being able to draft the Appeal paperwork and lodge the Appeal. A delay of just over a fortnight for these reasons is understandable, making an extension just. I will extend the time within which the Appeal was required to be lodged to 13 March 2020 pursuant to CICA s 55(4).[5]
2. On 22 April 2020, the CEO filed a memorandum of appearance to appear as amicus curiae.
3. At a directions hearing on 26 May 2020 orders were made to anonymise the names of the parties.
4. On 25 June 2020 the Respondent filed a Notice of Respondent's Intention in which she stated that she intended to take part in the Appeal, and would argue that the Decision should be upheld on the grounds relied on by the Assessor.
5. In hearing the Appeal, the court 'must decide the application to which the Decision relates afresh, without being fettered by the Assessor's decision'.[6] The appeal is a hearing de novo.[7] I am to treat the Application as if it came before the court for the first time, save that the Appellant has the right as well as the obligation to open the appeal.[8] The Appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.[9]
6. The court must determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[10] No party has requested the court to receive further evidence, so the Appeal is to be determined on the information before the Assessor.
7. It is open to the court to confirm, vary or reverse the Decision, either in whole or in part.[11] As the Appeal is a fresh hearing, it is necessary for me to determine all matters relating to the Application. So it is open to the court to increase or decrease the award of compensation even if no cross-appeal is filed.[12]
8. As I have indicated, the central issue for determination is whether the Appellant is able to challenge the making of an award of compensation on the basis that he was wrongly convicted of the proven offences the foundation of the claim for compensation. If it is not open to the Appellant to make this argument, I then need to assess afresh the issues of whether the Respondent should have leave to bring the Application out of time and amount of compensation payable.

Is it open to the Appellant to argue against an award of criminal injuries compensation on the ground that he was wrongly convicted of the offences to which the award relates?

1. In determining the Application, an assessor (and thus the court on appeal) 'must not make a compensation award in respect of a compensation application ... unless satisfied ... that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence'.[13] 'Proved offence' means 'a crime, misdemeanour or simple offence of which a person has been convicted'.[14] 'Satisfied' means 'satisfied on the balance of probabilities'.[15]
2. I am easily satisfied on the balance of probabilities that each Offence is a 'proven offence' for the purposes of the CICA s 12.
3. I addressed the issue of the extent to which the facts giving rise to a proven offence may be challenged in an application for criminal injuries compensation in detail in Underwood v Underwood,[16] coming to the following conclusions.[17]
   1. First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
   2. Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
   3. Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
   4. Fourth, a claimant for criminal injuries compensation cannot re-litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1). The evidence of a 'proved offence' must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.
   5. Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence ... This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
   6. Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.
   7. Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
4. Although I expressed these principles in the context of a plea of guilty, in my view, they apply equally, if not with more force, to a conviction following trial.[18]
5. Applying these principles to the present Appeal, the Appellant cannot now controvert his conviction of the Offences or any of the essential facts comprising the Offences. He cannot use this Appeal as a backdoor means by which to appeal his conviction of the Offences.

Should the Respondent be given leave to make an application for compensation?

1. Where there are multiple offences, an application for compensation must be made within three years after the date on which the last of the offences to which it relates was committed.[19] An assessor, and thus the court, may extend this time if 'he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose'.[20]
2. This time limit is a substantive provision and not merely a procedural time limit imposed by the rules of court. Accordingly, the time limit ought not be treated with the same indulgence that might be given to merely procedural rules.[21] The Respondent must make out a substantial case for it being just for the court to exercise its statutory discretion to extend time.[22]
3. In KBR Gillan DCJ identified the following non-exhaustive list of factors which might be relevant to the exercise of the court's discretion (with which I respectfully agree):[23]

(a) the history and background to the proposed application;

(b) the length of the delay;

(c) the reasons for the delay;

(d) the nature of the proposed application;

(e) the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent;

(f) the prospects of the compensation application succeeding; and

(g) whether injustice will be suffered if an extension of time is refused.

1. The last date on which it is said that the Offences occurred was 1 January 1982, when the Respondent was 11 or 12. She would have been around 15 when the three year time limit expired.
2. The charges which ultimately went to trial were laid on 15 October 2015. The Appellant was convicted following a trial before a jury on 11 September 2015 and sentenced on 21 October 2015. The conviction appeal was dismissed on 24 June 2016 and the sentence appeal on 27 September 2016. The Application was commenced on 3 November 2017.
3. The submissions filed by both the Respondent and the CEO contain a helpful review of the relevant factual materials. I find that the following factors are salient to the delay between the commission of the last offence and the commencement of the Application:

(a) (initially) the Respondent's very young age and dependence on the Appellant;

(c) the personal and intimate nature of the offences;

(d) the Respondent's mental health as a consequence of the Offences;

(e) the Respondent's desire to forget the Offences or put them behind her;

(f) the circumstances of her marriage from 1991-2000;

(g) (from 2008 onwards) a focus on the prosecution of the Appellant and her role in it;

(h) the mental health consequences of the prosecution process (particularly the experience of giving evidence at the Appellant's trial); and

(i) (after the Appellant's conviction and sentencing) the need to await the findings of the Court of Appeal on the Appellant's appeals, to obtain supporting documents from the DPP, and to obtain a detailed psychologist's report in support of the application, before filing the application.

1. The Respondent could not commence an application for compensation arising out of a 'proven offence' until the offences she alleged were proven. Once that occurred, and the Appellant's appeal processes concluded, the delay in making the Application of just over a year was a reasonable one. She has very good prospects of success. There is no specific prejudice to the Appellant in the delay given that it is not open to him to re-litigate facts giving rise to his conviction of the Offences. Rather, the facts relevant to the determination of the Application are based on the impact of the offending over the period since it occurred, and do not require the Appellant to recall information from many years ago. There is no forensic disadvantage in the delay.
2. It is clearly just to extend the time within which the Respondent can make an application for compensation. I so order.

If it is open to the Respondent to claim compensation, in what amount should it be assessed?

1. As I have set out above [16], in order to award compensation I need to be satisfied that the claimed injury has occurred, and that it did so as a consequence of the commission of a proved offence.[24] The words 'as a consequence of' require a causal relationship or connection.[25] Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[26] It is sufficient that, as a matter of ordinary common sense and experience, the commission of the Offences should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible.[27]
2. The injuries claimed by the Respondent were psychological. This is primarily based on a report dated 25 August 2017 by Life Resolutions prepared for the purposes of the Application.[28]
3. In order to place the findings from the Life Resolutions report into their proper context, it is necessary to briefly consider the circumstances of the offending and its impact on the Respondent. The sexual abuse comprising the Offences included incidents in a bed, shower, swimming pool and in a car in an isolated location. The sentencing judge described the offending as a terrible breach of the trust the Respondent had in the Appellant. At the time of the offending the Respondent was young and completely under the Appellant's control, and was particularly vulnerable and unable to protect herself from his offending. The sentencing judge recognised that the offending had had a significant and ongoing adverse impact on the Respondent.
4. The sexual abuse of the Respondent took place in the context of her receiving physical abuse from the Appellant and witnessing instances of physical, emotional and verbal abuse by the Appellant against her mother and half-sisters. Her mother had serious mental health issues. The psychologist who prepared the Life Resolutions report summarised the Respondent as being raised in 'a chaotic and turbulent family system'.[29] She reports the Respondent as describing her childhood recollections 'as being fraught with abusive and fearful experiences'. The Respondent told the psychologist that she 'feels like her entire childhood was stolen' by the Appellant.[30]
5. As the Respondent grew up she experienced significant mental health issues, include substance dependence, 'as a means of coping with the memories and nightmares of the abuse perpetrated' by the Appellant.[31] Her substance dependence led to a period of hospitalisation. Her late teenage and early adult years were adversely impacted by feelings of shame and low self-esteem triggered by the offending as well as self-destructive and risky behaviour. The psychologist opined that 'the years immediately after the abuse were characterised by overt psychological distress'.[32]
6. To her credit, the Respondent has in recent years found ways to negate any ongoing impact of the past abuse. She appears to be now a place of stable and positive mental health, and is otherwise doing well in her relationships and business.
7. From the Life Resolutions report, and the other materials available to the Assessor, I am satisfied that as a consequence of the commission of the Offences:

(a) between the ages of 6 to 16 the Respondent suffered from a Generalised Anxiety Disorder and, at times, a Panic Disorder;

(b) she also suffered from Substance Dependence Disorder, including abuse of alcohol, for a period of about five years as an adolescent and young adult;

(c) during that time she engaged in substance abuse involving alcohol and illicit drugs and other risky and self-destructive behaviours (including sexually risky behaviour) and reported suicidal ideation;

(d) she continues to suffer from a Generalised Anxiety Disorder, but since around 2014 has effectively managed this condition with medication;

(e) her psychological condition was exacerbated by her attendance at trial, which caused her to re-live her trauma experiences; and

(f) she does not currently exhibit the symptoms of any diagnosed disorder, though does remain with some risk of relapse if she were to experience a significant life stressor such as a relationship breakdown.

1. Injury for the purpose of a claim for compensation relevantly means 'bodily harm [and] mental and nervous shock'.[33] The phrase 'mental and nervous shock' in CICA s 3 contemplates the impact of the offence on the mind or nervous system.[34] It refers to 'mental or emotional harm as opposed to physical injury or bodily harm'.[35] It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction.[36] For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable.[37]
2. I am satisfied on the balance of probabilities that the psychological sequelae which I have set out at [35] amount to 'mental and nervous shock' for the purposes of the definition of 'injury' in the CICA.
3. The materials before the court indicate that the Respondent was subject to other traumatic events after the offending by the Appellant of a scale that may well have given rise to some psychological sequelae. However, the 'fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause'.[38] I am satisfied that the commission of the Offences materially contributed to the Respondent's psychological sequelae. That is sufficient.
4. As to quantum, the general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered'.[39]
5. The correct approach to adopt in assessing the amount of compensation under the CICA is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CICA, and to the jurisdictional limit of the CICA.[40]
6. The jurisdictional limits in relation to an individual offence depends on the date when the offence was committed. As particularised in the indictment, most of the offences were committed between 18 October 1976 and 31 December 1982. Within this date range the maximum for each offence is $7,500.[41] One offence, charge 1 on the indictment, was alleged to have occurred between 23 November 1975 and 23 November 1976. This straddles the date range for the earlier period (22 January 1971 to 17 October 1976), where the maximum was $2,000 for an indictable offence. However, the trial judge expressly found that, on the evidence as it came out at trial, the offence occurred when the Respondent was 8 or 9 (that is, between November 1977 and November 1978).[42] This would place the offending after the increase to $7,500 on 18 October 1976. I am satisfied that the jurisdictional limit for each offence is $7,500.
7. As there are multiple Offences, it is necessary to consider CICA s 33. That section provides that where there are two or more related offences, the amount awarded must not exceed the maximum amount that may be awarded for the last one of the offences to be committed. So far as is relevant for present purposes, two or more offences are 'related to one another' if 'they were committed at approximately the same time ... or ... that they are related for any other reason'.[43]
8. It is clear from the trial judge's findings that none of the Offences were committed at the same time.[44] As to whether the Offences are 'related for any other reason' for the purpose of CICA s 33:[45]

It is now settled law in this State that a series of sexual offences committed by the same person but at different times are not 'related' for the purposes of assessment so that the maximum limits for an award of compensation is the cumulative limit based on the number of offences that are the subject of the application. It has also been accepted that the award is not constrained to the maximum amount for a single offence because there has been only one 'injury' sustained.

1. I find that the Offences are not 'related' for the purposes of CICA s 33.
2. The jurisdictional maximum for multiple unrelated offences by one offender is set out in CICA s 34. This is twice the maximum amount that may be awarded for the last offence committed. The jurisdictional maximum in the present case is thus $15,000.
3. The only relevant head of damage sought is for general damages. These are ordinarily awarded to compensate for pain and suffering and other non-pecuniary loss.[46] According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by the claimant and the disabilities caused, having regard to current general ideas of fairness and moderation.[47] The amount must be proportionate to the situation of the particular claimant.[48]
4. I am readily satisfied that the appropriate amount of general damages that is just for the injuries sustained by the Respondent as a consequence of the commission of the Offences is well in excess of $15,000. It is not necessary for me to express a view of what that amount would have otherwise been. I assess compensation at $15,000.

1. There remains the issue of whether the amount able to be recovered by the CEO from the Appellant should be reduced pursuant to CICA s 45. This power is able to be exercised if the assessor 'thinks it is just to do so'.[49] There is no material before me to suggest that it is in any way just to reduce the amount of compensation which can be recovered from the Appellant pursuant to CICA s 45. I decline to do so.
2. For these reasons, I made the following orders at the conclusion of the hearing on 30 September 2020:
   1. The time within which the Appellant may commence an appeal from the decision of the assessor be extended to 13 March 2020.
   2. The time within which the Respondent may make an application for compensation be extended to 3 November 2017.
   3. The Respondent is entitled to an award of compensation in the amount of $15,000.
   4. The Appellant pay the Respondent's costs of the appeal to be taxed if not agreed.
   5. There be no order as to costs of the CEO.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] In order to preserve the anonymity of the Respondent, I have not included the citations for the two Court of Appeal decisions. They are set out in footnote 1 of the CEO's submissions.

[4] CICA s 55(3).

[5] See generally: Underwood v Underwood [2018] WADC 13 [26] - [28] (Gething DCJ).

[6] CICA s 56(1).

[7] Underwood [19]; Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).

[8] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcom CJ).

[9] Underwood [19]; Gullelo [5].

[10] CICA s 56(1).

[11] CICA s 56(2)(b).

[12] Nagel v Tahere [2020] WADC 110 [28] (Gething DCJ); CME [2018] WADC 69 [11] (Bowden DCJ).

[13] CICA s 12(3).

[14] CICA s 3.

[15] CICA s 3.

[17] Underwood [56] - [62]; Bennett v The State of Western Australia [2012] WASCA 70; Nagel [41]; Bothma v Hildebrand [2019] WADC 92 [35] (Gething DCJ); Nurovic v Nurovic [2019] WADC 28 [23] (Bowden DCJ); Guy v Hampson [2019] WADC 19 [42] (Bowden DCJ); Pym v Richardson [2018] WADC 156 [63] - [66] (Scott DCJ).

[18] See generally: Bennett [66] (Martin CJ, with whom Mazza J agreed), [109] - [110], [126] - [133] (Buss JA); Mickelberg v The Director of the Perth Mint [1985] WASC 175; [1986] WAR 365, 372 (Burt CJ), 377 - 378 (Smith J), 383 - 385 (Kennedy J).

[19] CICA s 9(1).

[20] CICA s 9(2).

[21] KBR v ADM [2018] WADC 120 [14] (Gillan DCJ).

[24] CICA s 12(3).

[25] Underwood [87]; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ); Townend v McAlindon [2017] WADC 63 [36] (Sleight CJDC); T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J).

[26] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); Fagan (673); Underwood [87]; Townend [35]; ALD v NCD [2012] WADC 45 [47] (Commissioner Gething).

[27] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620 (Lord Reid); March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); Lyle v Soc [2009] WASCA 3 [40] (Steytler P); Underwood [87]; ALD v NCD [47].

[33] CICA s 3.

[34] Bothma [42]; Underwood [83]; Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt J).

[35] Bothma [42]; Underwood [83]; S v Neumann (1995) 14 WAR 452, 461 (Murray J).

[36] Bothma [42]; Underwood [83]; Townend [46].

[37] Bothma [42]; Underwood [83].

[38] Fagan (673); Underwood [88]; Townend [35].

[39] CICA s 30(1).

[40] Bothma [40]; Underwood [113]; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) 3 (Burt J).

[41] WCIMA s 31(1), item 2.

[42] See the transcript reference at footnote 78 of the CEO's submissions.

[43] CICA s 33(1).

[44] See the reference at footnote 80 of the CEO's submissions.

[45] AJA v PSS [2002] WADC 194 [3] (French J); Stocker v Loeper [2001] WASC 176 [11] (McKechnie J).

[46] M R & R C Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [113] (Pullin JA, with whom Newnes JA agreed & Murphy JA generally agreed).

[47] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court).

[48] Houlahan [107]; Winiarczyk [71].

[49] CICA s 45(1).