Applicant v Respondent

2 Section 85B of the Sentencing Act 1991 ('the Act') permits a person who has suffered any injury as a direct result of an offence to apply for a compensation order as described therein. Section 85C provides that an application for a compensation order must be made within 12 months after the offender is found guilty or convicted of the offence. Section 85D provides that a court may extend the time within which an application for a compensation order may be made 'if it is of the opinion that it is in the interests of justice to do so'.

3 The applicant is the adult daughter of the respondent's deceased victim. Since 1997, the applicant has been living permanently in Greece. On 29 April 2016, the applicant filed an application under s 85D of the Act for an extension of time within which to apply for a compensation order against the respondent.

4 In support of her application, the applicant has sworn an affidavit setting out relevant background material and explaining the reason for her delay in making an application for compensation against the respondent.

5 By way of background, the applicant has deposed that since 1997 she has been living permanently in Greece. She is married with two children, and currently employed as a technology services manager.

6 As to the effects of her father's murder, the applicant deposed:

Since the murder of my father in 2004, I have had to deal with my grief whilst trying to maintain and nurture my family, keep my job in an environment compounded by the difficulties caused by the Greek financial crises. The issue of compensation had been the furthest from my mind.

Following the murder of my father I have been suffering from depression, anxiety and emotional ordeal. My grief has periodically overtaken my life and has affected my relationship with my husband and children. My father's murder had overwhelmed me and affected my ability to cope with life and my professional responsibilities. It has been a struggle to deal with my depression and to keep up with my work responsibilities. It has been hard to face the future. I constantly find myself dwelling on the past and the present is so painful, knowing that I will never see my father again.

7 In addition to having deposed that the issue of compensation had been the 'furthest from [her] mind', the applicant has deposed to receiving correspondence through email from the Office of Public Prosecutions in February 2016 in relation to an amount of approximately $21,000 currently under the control of Asset Confiscation Operations, Department of Justice. As to this, and the applicant's reason for not applying for a compensation order until now, the applicant has deposed:

I have never received written legal advice from my family's Australian lawyers concerning the time allowed by the Sentencing Act to make a compensation application. It was not until I received correspondence through email in February 2016, from the Office of Public Prosecutions, that I was made fully aware of the compensation issue, and instructed lawyers to make the necessary application under the Sentencing Act.

I crave leave of this honourable court to extend the time for me to apply for compensation. Even though considerable time has passed, it is only now that I have the emotional stability to give this matter my fullest attention.

8 While the respondent disputes the applicant's explanation and has asserted this morning that the applicant must have known, for a long time, of the time limit, there is, in my view, no reason not to accept the applicant's evidence as to her state of knowledge and state of mind.

9 An application for compensation must be made within 12 months after the offender is found guilty or convicted of the relevant offence. The present application is more than seven years out of time.

10 Section 85D of the Act provides for extensions of time on a discretionary basis. The Court may extend the time for making the application if it is of the opinion that it is in the interests of justice to do so.[5] Further, an extension of time may be granted whether or not the application for an extension is made before the time expires.[6] However, a court must not extend time without first giving the offender a reasonable opportunity to be heard on the matter.[7]

11 The discretion to extend a time limit contained in a statute of limitations must be exercised in the context of the rationale for the existence of the limitation period.[8] As was said by McHugh J in Brisbane South Regional Health Authority v Taylor,[9] the enactment of time limitations has been driven by the general perception that where there is delay the whole quality of justice deteriorates. While sometimes the deterioration in the quality of justice is palpable, on other occasions prejudice may exist without the parties or anybody else realising that it exists.[10]

12 Finality of disputes and litigation is also a relevant factor. As was said by T Forrest J in Moresco v Budimir:[11]

Finality of litigation for defendants is a purpose of most limitation of actions provisions. Here, however, I am mindful of the fact that compensation orders are made under a criminal statute and for the purpose of compensating the victims of criminal offending. Mr Budimir has been convicted of a criminal offence and it is in the interests of justice that the applicants, who are victims of that offence, have the opportunity to draw a line under that offending. Finality, in that sense, cuts both ways.[12]

13 An instructive example of the proper operation of s 85D of the Act can be found in the Court of Appeal decision of Brown v Loveday.[13] In that case, the 12 month time limit for making an application for a compensation order expired in September 2003. Some eight years later, the victims of the offending sought an extension of the 12 month time limit within which to make an application for a compensation order. A judge of the County Court granted the application, and the offender sought leave to appeal from that order. The Court (Neave JA) held that there was no jurisdiction to grant leave to appeal against an order extending the time limit for a victim of crime to seek a compensation order. However, her Honour went on to consider whether she would have granted leave if she had found that the Court of Appeal possessed the relevant jurisdiction. In determining whether she would have granted leave, Neave JA referred to the balance struck by the County Court judge between competing considerations, including the forensic difficulty that the offender might suffer in contesting the victims' claim to injury, and the effects that an award of compensation might have on the offender's prospects of rehabilitation if an extension was to be granted. In the result, her Honour held that there was no error in the exercise of the County Court judge's discretion, when balancing all of the relevant factors, in granting an extension of time of eight years from the expiration of the statutory time limit.

14 The present case has many similarities with Brown, and a number of similarities with Moresco. Having considered all of the facts of the offending with which the respondent was found guilty,[14] the applicant's explanation for her failure to bring an application for compensation within time, the need for finality, the issue of prejudice and all of the surrounding circumstances of the case, I am satisfied that it is in the interests of justice to extend the time within which an application for a compensation order may be made.

15 Specifically, while there is obviously presumptive prejudice caused by the applicant's delay, the respondent was not able to point to any specific prejudice. Further, I am satisfied that the hearing of an application for a compensation order at the present time would not be materially different from any such hearing that might have been conducted shortly following the respondent's conviction. As was said in Werden, the relevant provisions of the Act should be construed generously in favour of a claimant.[15]

16 Additionally, the material suggests that the respondent has no assets other than those currently held by the Asset Confiscation Operations Department of the Department of Justice. Resolving the present dispute between the applicant and the respondent in an application under s 85B of the Act is likely to avoid the prospect of a civil proceeding being taken between the parties.[16] A relevant consideration in this case is the avoidance of a multiplicity of proceedings.[17] That said, even if one puts these matters entirely to one side, a proper consideration of the entirety of the material in this case discloses (absent all case management, or efficient and economical conduct of litigation, type considerations) that it is in the interests of justice that the extension of time sought by the applicant should be granted.

17 There will be an order extending the time within which the applicant is permitted to make an application for a compensation order against the respondent.

[1] R v Efandis [2008] VSC 508.

[2] Initially, the application was refused by the Deputy Registrar of the Court of Appeal. However, the respondent subsequently renewed her application before a bench of two judges of appeal.

[3] Efandis v The Queen (2014) 41 VR 456.

[4] Efandis v The Queen [2014] HCA Trans 182.

[5] Section 85D(1) of the Act.

[6] Section 85D(2) of the Act.

[7] Section 85D(3) of the Act.

[8] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551 (McHugh J).

[10] Ibid. 'What has been forgotten can rarely be shown': Barker v Wingo [1972] USSC 146; (1972) 407 US 514, 532.

[11] [2015] VSC 51 ('Moresco').

[12] Ibid [14] (citation omitted). See also Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637.

[13] [2012] VSCA 57 ('Brown').

[14] Which facts are set out in the sentencing judge's reasons for sentence (R v Efanidis [2008] VSC 508), and do not need to be repeated here.

[15] Werden [2012] VSCA 278; (2012) 36 VR 637, 647 [39].

[16] Albeit that such a proceeding may itself be statute barred.

[17] Although, note that s 29 of The Supreme Court Act 1986 is, on its terms, limited to courts exercising jurisdiction in 'any civil proceeding' (as to which, cf s 85E(2) of the Sentencing Act 1991). See further, ss 85K and 85L of the Sentencing Act 1991.