ATB v LA

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal from assessor's refusal to award compensation - Whether extension of time for bringing application should be allowed

Criminal Injuries Compensation Act 2003 (WA)

Ms N T Worthy appeared on behalf of the Chief Executive Officer of the Department of Justice

ATB v LA [2021] WADC 64

Commissioner for Consumer Protection v Murphy [2013] WASCA 89

ELK v CFB [2009] WADC 90

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

Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96

Hansen v Bolton [2017] WADC 25

HT v The Queen [2019] HCA 40; (2019) 269 CLR 403

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390

Lyle v Soc [2009] WASCA 3

Martin v Martin [2015] WADC 138

Miller v Minister of Pensions [1947] 2 All ER 372

Re CJR [2023] WADC 111

Re Harvey [2023] WADC 83

S v Neumann (1995) 14 WAR 452

Tomko v Palasty (No 2) [2007] NSWCA 369

1. In July 2004, the appellant told his mother (DS) of having been sexually abused by his stepfather (AS). The appellant was aged 25 when he told his mother of multiple occasions between the ages of 6 and 16 when he was abused by AS (the Alleged Sexual Offences). Within days, the appellant made a formal complaint to police, signing a detailed witness statement on 30 July 2004.
2. Police investigated the Alleged Sexual Offences. AS was interviewed. He denied any sexual abuse of the appellant. In November 2004, police decided that there was 'insufficient evidence to charge'.[1]
3. On 5 September 2022, the appellant lodged an application for compensation under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) in relation to the Alleged Sexual Offences (the Compensation Application). He was aged 43.
4. On 12 August 2024, an assessor refused the application.[2] The assessor (correctly) observed that the application, lodged more than three years after the last of the Alleged Sexual Offences, could not proceed unless the assessor thought it was 'just to do so'.[3] The assessor considered that it was not just to allow the application to proceed out of time. It was noted that the appellant's 'significant mental health issues at various times' favoured allowing the application to proceed.[4] However, that consideration was found to be outweighed by the delay in lodging the application in combination with the lack of substantive merit in the application.[5]
5. This appeal against the decision of the assessor is on the ground that the appellant 'is dissatisfied with the assessor's decision'.[6]
6. In this appeal, the court must decide the Compensation Application afresh, including deciding whether to extend the time for making the application. This court is not fettered by the assessor's decision. The appeal is made solely on the evidence that was before the assessor.[7] This court may 'make any order that an assessor could make'.[8]
7. There is a conflict of authority in this court on whether, in determining an appeal in this court, it is appropriate to place any weight on the assessor's decision.[9] I consider that it would be an error for this court to place any weight upon the ruling of the assessor to grant or refuse the application. However, I also consider that this court would not be in error to consider, to the extent helpful, the assessor's reasons for any ruling.[10]

1. The appellant alleges that the last of the Alleged Sexual Offences was committed on an unknown date when he was aged 16. He was aged 16 until 18 September 1995.[11] The effect of the CIC Act is that, absent an order of an assessor (or the court on this appeal), an application for compensation was required to be lodged by 18 September 1998 ie within three years of the commission of the last of the Alleged Sexual Offences.[12]
2. The Compensation Application was lodged on 5 September 2022, 24 years after the expiration of the time provided by the CIC Act. However, s 9(2) provides that an out of time application for compensation may be made if 'it is just to do so'.
3. The onus is on the appellant to explain the reasons why it is just to enable the Compensation Application to be made out of time.[13]
4. The principles to be applied in deciding whether it is just to allow the making of an out of time application for compensation are not in doubt. I adopt the summary of those principles made by Palmer DCJ (as he then was) in Re CJR:
   1. There are strong policy reasons for requiring that limitation periods be complied with. The time limit is a substantive provision laid down by the Act itself and is not a mere procedural time limit. The burden on the applicant is no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
   2. The factors that the court may take into account in determining whether it is just to extend the time within which to make an application include:

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

(d) the prospects of the compensation application succeeding;

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

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

1. Merely because the refusal of the application means that the applicant can never litigate his or her claim is not however, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised.
2. Difficult personal circumstances of an applicant, which prevented or impeded him or her from seeking legal advice, are relevant to an extension of time.

1. I consider those principles, including the submissions of the appellant, under the following headings below: Delay, Prospects of success of the Compensation Application, and Disposition of the application for an extension of time.

1. Nearly 24 years elapsed between the last day for the appellant to make an application (on 15 September 1998) as provided by the CIC Act and the date of filing of the Compensation Application on 5 September 2022.[14]
2. In a statement made in July 2023 for the purpose of a different application for criminal injuries compensation, relating to an incident in Karnet prison in 1999,[15] the appellant stated he had intended to make an application for criminal injuries compensation close in time to that incident and had obtained some forms from Legal Aid.[16] I can infer that the appellant had knowledge of a system of criminal injuries compensation from 1999.
3. In a further statement made in July 2023 for the purpose of the Compensation Application, the appellant offers reasons for delay in making the application.[17] He records his preference to 'move past what happened'. He points to the impact of the Alleged Sexual Offences upon him as including 10 years of homelessness (2008 - 2018) and lengthy periods of mental impairment. Each was said to have compromised his ability to engage with legal services.
4. In my view, there is a reasonable explanation for the failure of the appellant to file an application for the whole of the period commencing when the Alleged Sexual Offences occurred and ending in November 2004, when police informed him that no charges would be proffered against AS. From his infancy, AS was the only father-figure in his life. Until the age of 23 in 2001, the appellant had lived with AS, his mother and their children, his siblings. It is reasonable to assume that the realisation of the gravamen of sexual offending was a gradual process that did not commence until after the appellant ceased to live with AS in September 2001.
5. In my view, there is also a reasonable explanation for a failure to file an application for those periods during the 18 years after November 2004 when the appellant was unable to advance a compensation application because of a mental impairment (Incapacity Periods), being incarcerated (Incarcerated Periods) or being homeless (Homeless Periods).

(a) There is evidence of the Incarcerated Periods occurring during the following years: 1999, 2000, 2002, 2005, 2007 - 2008, 2009 - 2010, 2012 - 2013, 2015 - 2016.[18] The appellant may or may not have been mentally impaired during these periods. I can infer he had access to legal advice for the purpose of advice, in connection with charges laid against him, on bail, criminal responsibility and sentencing. I would not infer that he had convenient access to legal advice for the purpose of advice on the Compensation Application.

(b) Relevant to the Incapacity Periods and the Homeless Periods, there is evidence of the appellant being admitted to the Frankland Centre in November 2015 with a diagnosis of paranoid schizophrenia, personality disorder and substance misuse.[19] On admission, there is a notation that the appellant had been homeless for the last 6 ½ years.[20] There is evidence of the appellant being admitted to Graylands in October 2018.[21] There is no evidence on the duration of time spent in the Frankland Centre and Graylands on these occasions or any other occasions.

1. It is likely that the effect of one or more of incapacity, incarceration and homelessness resulted in periods of time after November 2004 when it was unreasonable to expect the appellant to advance an application for compensation. However, there is a paucity of evidence permitting calculation of the Incapacity Periods and the Homeless Periods.
2. In Tomko v Palasty (No 2),[22] it was observed that where an explanation for delay in compliance with a proscribed time limit is less than satisfactory, it is necessary to assess the substantial merits of the case for the person seeking an indulgence by way of an extension of time.

Prospects of success of the Compensation Application

1. Findings of fact in relation to a compensation application are not subject to the rules of evidence.[23] However, the determination of the application is subject to an obligation to afford procedural fairness to the parties.[24] It follows that:[25] the court 'is able to act upon information whether or not it is embodied in evidence which would be admissible in a court of law'; the court may have regard to the fact that rules of evidence are a guide to what is best calculated to prevent error and elicit truth; those rules are excluded by the CIC Act and must not 'creep back' into the process for determination of an application; and it is not open to make findings of fact, on the information before the court, that are incompatible with a rational process.
2. On a compensation application by a person who suffers injury as a consequence of the commission of an offence (ie a victim), compensation may be awarded for the injury and for any loss also suffered.[26]
3. An applicant for compensation may be a victim of a proved offence or the victim of an alleged offence.[27] An applicant will be a victim of a proved offence if the applicant suffers injury as a consequence of the commission of an offence for which a person has been convicted.[28] An applicant will be a victim of an alleged offence if the applicant suffers injury as a consequence of the commission of an offence for which no person has been charged.[29]
4. The appellant's Compensation Application is in respect of an alleged offence.
5. In Re Harvey,[30] Egan DCJ identifies a number of principles relevant to assessing the evidence of an alleged offence. Relevant to this appeal, the appellant bears the onus of proving, on the balance of probabilities, the commission of at least one of the Alleged Sexual Offences. The evidence before the assessor and any evidence admitted on the appeal must, together, do more than give rise to conflicting inferences of equal probability as to the commission of the alleged offence. Clear and cogent evidence will be required to discharge the onus with respect to proof of criminal conduct. The court must feel an actual persuasion that the offence occurred.
6. In July 2004, DS said to police that the appellant's siblings reported that the appellant had referred to AS as a 'paedophile' and, when questioned by her, the appellant started crying and said, 'It's all true mum'.[31]
7. In the appellant's witness statement for police, signed by him on 30 July 2004, the appellant said the following about the Alleged Sexual Offences (Complainant's Witness Statement or CWS):[32]

(a) In 1980, when the appellant was aged 2, DS separated from the appellant's father.

(b) In 1984, when the appellant was aged 4, DS and appellant commenced to live with DS's new partner, the appellant's stepfather, AS, in a house in Kelmscott.

(c) Commencing when the appellant was aged 5 (1983) or 6 (1984), AS would suck the penis of the appellant at least once or twice a week.[33]

(d) When the appellant was aged 6 (1984) or 7(1985), AS parked a van in which the appellant was the passenger on Lake Road, Kelmscott and proceeded to suck the appellant's penis (Alleged Lake Road Offence).[34]

(e) In 1985, when the appellant was aged 7, DS and AS married. Their son, ABS, was born that year. Subsequently (around 1988), they had a second son together, KBS.

(f) There was an occasion, in Kelmscott, when the appellant stayed home from Year 3 at school, when AS put his penis into the anus of the appellant (Alleged Kelmscott Offence).[35]

(g) In 1988, the appellant and his family moved to Manning and then, in February 1989, they moved to Toodyay.

(h) Between 1989 and 1992, the appellant and his family lived in Toodyay.

(i) Around Christmas 1990, on an occasion when his mother was in hospital, the appellant and AS shared a room for a few nights while staying at the house of the appellant's maternal grandfather in Coolbellup.

(j) On their first night in Coolbellup, AS put his penis into the mouth of the appellant before using his penis to penetrate the anus of the appellant (Alleged Coolbellup Offences).[36]

(k) In 1992, the appellant and his family moved from Toodyay to Rockingham and then, when the appellant was aged 13 - 14, they moved to, Port Kennedy.

(l) The last of the Alleged Sexual Offences occurred when the appellant was aged 16 (1994 - 1995). The appellant awoke in his bed to find AS sitting on the bed. AS put his penis into the appellant's mouth and then put his penis into the appellant's anus (Alleged Port Kennedy Offences).[37]

(m) In September 2001, AS and DS separated. AS and ABS continued to reside at the Port Kennedy house. DS moved out of the Port Kennedy house and commenced, with the appellant and KBS, to reside in Rockingham.

1. AS was interviewed by police on 15 November 2004 (the Police Interview) and denied each of the Alleged Lake Road Offence,[38] Alleged Kelmscott Offence,[39] Alleged Coolbellup Offences,[40] and Alleged Port Kennedy Offences.[41] He asserted that the appellant 'has [an] agenda'.[42]
2. Immediately after the Police Interview, the investigating police officer made a note in a running sheet, 'insufficient evidence to charge'.[43]
3. The appellant's complaint to police of the Alleged Lake Road Offence is evidence of fellatio of the appellant by AS on one occasion when the appellant was aged 6 or 7. If his evidence is accepted, it proves the commission of the (now repealed) offence of indecent dealing of a child under 14, found in s 183 of the Criminal Code (WA) (Indecent Dealing of Child Offence).
4. There is other evidence relevant to the Alleged Lake Road Offence.
5. The Complainant's Witness Statement includes detail of some matters surrounding the alleged offence:[44] a description of the location, the time of day ('dark'), the vehicle type, some words used by AS, some ancillary conduct of AS, and some other ancillary detail (eg DS was said to be at home after the alleged incident).
6. DS made a formal statement to police, signing a detailed witness statement on 25 August 2004 (DS Witness Statement or MWS). This statement includes matters relevant to the circumstances surrounding the appellant's account of the alleged Lake Road Offence: the vehicle type used by AS at relevant times, and of occasions when the appellant and AS were alone in that vehicle.[45]
7. The appellant's complaint to police of the Alleged Kelmscott Offence is evidence of penile/anal penetration by AS when the appellant was in Year 3 at school. If the appellant's evidence is accepted, it proves the commission of an Indecent Dealing of Child Offence.
8. There is other evidence relevant to the Alleged Kelmscott Offence.
9. The Complainant's Witness Statement includes detail of some matters surrounding the alleged offence:[46] the name of his school teacher in Year 3, the fact of DS being pregnant, the name of AS's employer, a reason for AS being home (related to an insurance claim), AS offering the appellant money ($10), AS telling the appellant not to tell his mother, and being treated around this time by a named doctor for cystitis.
10. By a letter dated 22 September 2004,[47] the named doctor informed police that he had treated the appellant for 'recurrent urinary tract infections' in August and September 1986, and there are many possible causes of urinary tract infection including lack of hygiene. Sexual abuse is a possible cause, though 'there is no proof from the notes of the alleged abuse and the symptoms that [appellant] presented with'.
11. In the DS Witness Statement are matters relevant to circumstances surrounding the appellant's account of the alleged offending:[48] that there were days when the appellant would stay home from primary school, that at the relevant time she was pregnant and AS had been at home from his employment on at least one day, and she recalled taking the appellant to a named doctor and receiving a diagnosis of cystitis.
12. The appellant's complaint to police of the Alleged Coolbellup Offences is evidence of fellatio and penile/anal penetration of him by AS in the Coolbellup house of the appellant's maternal grandfather on one occasion around Christmas 1990. If his evidence is accepted, it proves the commission of two counts of an Indecent Dealing of Child Offence.
13. There is other evidence relevant to the Alleged Coolbellup Offences.
14. The Complainant's Witness Statement includes detail of some matters surrounding the alleged offences:[49] the alleged offending occurred when DS was in hospital with a broken leg, the relevant sleeping arrangements between the appellant and AS are described, and some ancillary conduct of AS is described (he 'slapped me').
15. In the DS Witness Statement are matters relevant to circumstances surrounding the appellant's account of the alleged offending:[50] that the appellant and AS stayed with her father in Coolbellup for a period after she had broken her leg.
16. The appellant's maternal grandfather[51] and grandmother[52] made formal statements to police in August 2004. Each stated that around Christmas 1990, when DS injured her leg, AS and the three children of DS, including the appellant, stayed with them. Each recalled that the appellant shared one bedroom with AS and KBS, a baby who slept in a cot. Neither had a recollection of seeing or hearing anything unusual emanating from that bedroom.
17. The appellant's complaint to police of the Alleged Port Kennedy Offences is evidence of fellatio and penile/anal penetration by AS when the appellant was aged 16. If his evidence is accepted, it proves the commission of the offence of sexual penetration of a child who the offender knows is his step-child found in s 329(2) of the Criminal Code (Sexual Penetration of Child Offence).
18. There is other evidence relevant to the Alleged Port Kennedy Offences.
19. The Complainant's Witness Statement includes detail of some matters surrounding the alleged offence:[53] that AS ceased penile/anal penetration 'because mum walked in' and his mother expressed doubts about AS's account of 'just talking' to the appellant; the appellant said that, subsequently, AS had insisted the appellant burn a stolen guitar that had been located in the appellant's bedroom and this was done to accord with AS's subsequent (false) explanation to DS about the reason for AS talking to the appellant.
20. In the DS Witness Statement on the circumstances surrounding the appellant's account of the alleged offending, DS records:[54]

... I remember waking up one night in the middle of the night ... [AS] was not in the bed ... I got up to see if I could find him ... it was quite dark ... I opened [the appellant's] door and as I did, I saw a shadow over [the appellant]. ... [AS] jumped back as I opened the door and I realised that the shadow over [the appellant] had been [AS] leaning over him. ... I'm not sure if [AS] had been on the bed or standing on the floor next to it. ... I said something like 'What's going on?' ... I though[t] [the appellant] and [AS] might have been talking about doing break-ins so I was angry. ... AS told me he had been talking to [the appellant] about a stolen guitar ...

1. In the Police Interview, AS recalled telling the appellant to 'get rid of' a guitar that had been stolen and recalled telling DS of having given that direction to the appellant.
2. The CIC Act provides, in effect, that compensation must not be awarded in favour of the appellant if his injury was suffered when he was committing a separate offence.[55] The appellant contends that the evidence of the appellant's association with a 'stolen guitar' at the time of the commission of the Alleged Port Kennedy Offences is of insufficient detail to permit a finding that he was committing any property offence at the time of AS engaging in sexual penetration that constitutes the Alleged Port Kennedy Offences. The appellant's contention should be accepted.
3. There is no satisfactory evidence from which to infer that, in connection with the guitar in his bedroom, AS had the state of mind that is an element of the offence of receiving stolen property (Criminal Code s 414) or possessing stolen or unlawfully obtained property (Criminal Code s 417). One reasonable hypothesis available on the meagre evidence is that an unknown person had left a guitar in his bedroom and, if aware of it, the appellant had no knowledge of its provenance or any intention to take control of it.
4. In assessing the credibility of the appellant's account of the Alleged Sexual Offences, the appellant places weight upon the following matters.

(a) There is consistency in the evidence of the appellant and DS concerning the chronology of significant events (places lived, relationship dates, births etc).

(b) Relevant to AS having an opportunity to commit the Alleged Sexual Offences, there is consistency between the appellant's detail of the circumstances surrounding the alleged offending and, to the extent it is offered, the detail of his mother (DS) and of his maternal grandparents of those circumstances.

(c) AS has repeatedly made complaints of the Alleged Sexual Offending in the period between 2004 and the lodging of the Compensation Application.

(d) Any mental impairment of the appellant that may bear upon the credibility of evidence included in the application, did not exist at the time of making his complaint to police in July 2004. Although there are references in the medical records of the appellant to the possibility of the appellant having delusional beliefs of being the victim of child sexual assault, of more significance is the opinion of the psychiatrist Dr Hall while treating the appellant in the period 2005 - 2015. In 2005, while noting the possibility of psychotic beliefs, Dr Hall also noted that it was possible that the appellant's beliefs about sexual abuse are based on reality and, if so, it is not unreasonable to conclude that his other psychotic symptoms are aggravated by those memories.[56]

(e) Relevant to the Alleged Port Kennedy Offences occurring in the circumstances alleged by the appellant: there is consistency between the conduct of AS described by the appellant and the movement of AS's body in the bedroom of the appellant as described by DS.

(f) The totality of the evidence reveals a tendency of AS to act on a sexual interest in the appellant by engaging, when the opportunity arose, in fellatio and penile/anal penetration.[57]

1. It is apparent, that proof of any one of the Alleged Sexual Offences involves accepting, as more probable than not, the evidence of the appellant as to that offence despite the evidence of AS's denial of any offences in the Police Interview.
2. The appellant's contentions as to the credibility of the appellant in each of the above paragraphs may be accepted: [50(a), (b), (c), (d), (e)]. Nevertheless, I have concluded that, for the following reasons, the probabilities are equal of each of the allegations and denials of offending:

(a) Accepting the appellant's contentions, unless significant weight is given to the fact that AS had the opportunity to commit the Alleged Sexual Offences and that the appellant has consistently repeated his allegations of the Alleged Sexual Offences, there is no basis to favour the appellant's assertions of offending over AS's denials of offending. 'Opportunity' and 'consistent allegations' do not, on my assessment, result in an actual persuasion that the Alleged Sexual Offences occurred.

(b) Relevant to proof of the Alleged Port Kennedy Offences, I do not give weight to DS's observations of the movement of AS's body at the time of the alleged offence. Her observations were made in a darkened room. At the time of making her observations, she accepted the explanation offered by AS ie he was having a conversation with the appellant. Six years after DS observed AS in the appellant's bedroom, she separated from AS and consensual arrangements for the care of their children included one child (ABS) continuing to reside with AS. I infer that, at that time, DS had no reason to believe AS had committed any of the Alleged Sexual Offences.

1. If the Compensation Application were permitted to be made out of time, the appellant would not be able to discharge the burden of proving, on the balance of probabilities, any of the Alleged Sexual Offences.[58]
2. The Alleged Sexual Offences, four in number, are sufficiently temporally distinct to be unrelated.[59] Accordingly, the maximum amount of compensation that may be awarded to the appellant must not exceed $150,000. The maximum amount payable under the CIC Act is merely a jurisdictional limit and is not reserved for the worst cases.[60]
3. If one of the Alleged Sexual Offences was proven, the court must not make a compensation award unless satisfied that the appellant suffered an 'injury' (Injury Issue) and that the injury was a consequence of the commission of the proven alleged offence (Causation Issue).[61]
4. As to the Injury Issue, in my view, the records containing the opinion of Dr Hall support a finding of the appellant suffering from an 'injury' in the form of 'mental or nervous shock' as defined in the CIC Act,[62] namely, psychosis from 2003 and chronic schizophrenia from 2012.[63]
5. As to the Causation Issue, an injury will be a consequence of the commission of the offence if, as a matter of ordinary common sense and experience, the offence materially contributed to the injury, in the sense that the contribution was not negligible.[64] The fact that other unconnected events may also have contributed to the injury will not sever the chain of causation if the offence was a cause, even if not the sole cause.[65]
6. For the following reasons, the evidence in this case is weak in support of a finding that the Alleged Sexual Offences made a material contribution to the psychosis and the chronic schizophrenia of the appellant.

(a) The Complainant's Witness Statement in July 2004, states that he 'had lots of problems' in his life and that he attributes 'most of those' problems to the offending by AS.[66] He notes that he had counselling in the year before July 2004 and considered it had 'helped me a lot'.[67] There is a lack of detail of: diagnosis of a mental health issue, symptoms of a mental health issue, treatment for a mental health issue, and any functional impairment.

(b) There is a gap in time between the last of the Alleged Sexual Offences (1995) and the first evidence of psychosis (2003).

(c) Dr Hall refers to a likelihood of the appellant's behaviours being 'strongly influenced' by matters that may or may not be related to the Alleged Sexual Offences and that pre-date his (2003) psychosis, namely, personality features of an antisocial type and longstanding drug addiction.[68]

(d) The appellant's submissions place emphasis upon a statement made on 1 September 2022 for the purposes of the Compensation Application. The appellant links mental impairment to the Alleged Sexual Offences:[69] from a young age he was fearful of AS, from a young age he was confused and ashamed by sexual matters, disclosure of the offending to his mother placed a strain on his relationship with her, from an unspecified date he has been unable to work, in 2010 he was diagnosed with schizophrenia and antisocial behaviour disorder, and he has self-harmed.

(e) In my view it is necessary to be circumspect in placing weight upon the appellant's statement of 1 September 2022. I note three matters. First, notwithstanding that in 2005 Dr Hall notes the possibility that the appellant has been a genuine victim of sexual abuse, in 2012, Dr Hall notes that the appellant has a delusional preoccupation with child sexual abuse. Secondly, notwithstanding the records of the Department of Justice (1999 - 2016)[70] and the Sexual Assault Resource Centre (SARC) (2005 - 2024)[71] are replete with references to occasions when the appellant repeats complaints of child sexual assault, it does not follow that the child sexual assault has contributed to impaired mental health. Thirdly, in October 2018 the appellant made a complaint of sexual assault that was investigated and found to be without foundation.[72]

(f) In the result, having regard to the three matters noted above, it is necessary to be circumspect before placing weight upon the appellant's 2022 statement as evidence of the Alleged Sexual Offences contributing to his schizophrenia.

1. If, contrary to my views just expressed, the Injury Issue and the Causation Issue concerning mental or nervous shock were resolved in favour of the appellant, compensation may be awarded for 'loss' as defined in s 6(2) of the CIC Act for: (a) expenses that arise directly from the mental impairment; (b) expenses that are likely to be incurred for treatment of the mental impairment; and (c) loss of earnings suffered as a direct consequence of the mental impairment suffered by the appellant.[73] The assessment of loss of earning capacity may be an appropriate basis for assessing the extent to which there was a chance that the appellant would in the future have used his capacity to earn (more) money and a global award for economic loss may be appropriate.[74]

Disposition of the application for an extension of time

1. The Compensation Application will fail unless the court permits the appellant to make his application out of time. The appellant will have lost the opportunity to ventilate his claim for compensation for a wrong that, if proven, is serious. I note that there is no realistic prospect of fresh evidence emerging concerning the Alleged Sexual Offences and a conviction resulting. I further note that there is no realistic prospect of the appellant pursing a (private) civil action in tort against AS, notwithstanding s 6A(2) of the Limitation Act 2005 (WA) provides that '[d]espite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action'.
2. I have reached three relevant conclusions.
3. First, of the 24-year delay in bringing the Compensation Application, there is a satisfactory explanation for delay for the first six years of that period. The state of the evidence concerning the appellant's reasons for not bringing the application within the ensuing 18 years is best characterised as 'not compelling'.
4. Secondly, my assessment of the substantive merits of the Compensation Application does not favour allowing the application to proceed out of time. The Compensation Application is not vexatious or without merit. However, the appellant has been unable to discharge the burden of proving, on the balance of probabilities, any of the Alleged Sexual Offences.
5. Thirdly, although substantial compensation might be awarded for an assessment of a loss of earning capacity from the appellant's psychosis, evidence of the contribution of the Alleged Sexual Offences to that psychosis is questionable.
6. The three conclusions just described, in combination, amount to a substantial case for it not being just and proper to extend the time for making the Compensation Application.

1. The time for making the Compensation Application is not extended to the date that the appellant filed the application.
2. The appeal must be dismissed.

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

[1] Assessor's Papers (AP), page 233. The Assessor's Papers (numbered 1 - 275) are copies of some of the documents that were before the assessor and have been supplied to the court pursuant to the District Court Rules 2005 (WA) (DCR) r 52(3). Additional documents before the assessor have been compiled into an Appeal Book (AB) (numbered 1 - 681) filed in the appeal by the amicus curiae.

[6] Notice of Appeal filed 30 August 2024.

[7] CIC Act s 56(1). No further evidence was received on the appeal.

[9] The competing views are usefully collected in Re CJR [2023] WADC 111 [48] (Palmer DCJ).

[10] Commissioner for Consumer Protection v Murphy [2013] WASCA 89 [50]; Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96 [58] (Buss P with whom Vaughan JA agreed [259] and Mitchell JA agreed [118], [193] - [198]).

[11] The appellant's date of birth is 18 September 1978: AP 6.

[13] Hansen v Bolton [2017] WADC 25 [12] (Herron DCJ).

[22] Tomko v Palasty (No 2) [2007] NSWCA 369 [14] (Hodgson JA, Ipp JA agreeing).

[24] HT v The Queen [2019] HCA 40; (2019) 269 CLR 403 [17].

[25] Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 [15] - [17].

[27] CIC Act s 12 (Proved offence), s 13 - s 17 (Alleged offence).

[30] Re Harvey [2023] WADC 83 [103] - [115].

[38] AP 273 '... don't recall it running out of petrol ... totally incorrect ... not capable of such crap'.

[39] AP 275 'I did not take day off ... whole thing fabricated'.

[48] DS Witness Statement, AP 50 - AP 52 [37] - [52].

[57] Evidence Act 1906 (WA) s 31A.

[58] Miller v Minister of Pensions [1947] 2 All ER 372, 374.

[60] S v Neumann (1995) 14 WAR 452, 452, 463.

[62] CIC Act s 3 (on the meaning of 'injury'), s 35(2) (on compensation for 'mental and nervous shock').

[64] Lyle v Soc [2009] WASCA 3 [40]; Martin v Martin [2015] WADC 138 [85] (Derrick DCJ); ATB v LA [2021] WADC 64 [11] (Lemonis DCJ).

[65] Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673.

[70] Concerning the periods when the appellant was in custody in 1999, 2000, 2002, 2005, 2007 - 2008, 2009 - 2010, 2012 - 2013, 2015 - 2016: AP 279.

[73] Loss of past and future earnings are included in this definition: S v Neumann (462).

[74] Luntz H, Assessment of Damages for Personal Injury and Death, (5th ed, 21 July 2021) 6.1.6; ELK v CFB [2009] WADC 90 [24] - [25] (Davis DCJ); Re RJA [2022] WADC 106 [154] - [157] (Commissioner Collins).