DPP v Esso Australia Pty Ltd [2001] VSC 401

5. Shortly thereafter, each of those persons filed in this court, formal applications pursuant to s.85B Sentencing Act 1991 for such compensation.

8. By reason of the abolition in 1997 by s.45 Accident Compensation (Miscellaneous Amendment) Act 1997 of traditional and justified workers' rights to workplace injury compensation, partially restored from 20 October 1999 by s.18 Accident Compensation (Common Law and Benefits) Act 2000, none of the applicants had any civil remedy against Esso for damages for workplace injury. Their only recourse was under s.85B Sentencing Act 1991, which recourse was dependent upon a necessary condition precedent being fulfilled, namely that Esso be convicted of a relevant criminal offence. That condition precedent was fulfilled by the verdicts the jury returned on 28 June 2001.

12. After administrative arrangements were made for the efficient hearing of the compensation applications, and a mention held to that end on 26 September 2001, the applications were listed for hearing in this court during this week, commencing on Monday 1 October 2001. I directed that the first group of applications of 18 persons, each of whom is represented by Mr Scanlon Q.C with Mr Bracken, instructed by Messrs. Maurice Blackburn Cashman, be heard on 1 October 2001. Other groups of applications were listed for 3 and 5 October 2001. It is that first group of 18 applications which presently is before me and which is the subject of this ruling. The applications are by James Ward, Heath Brew, Valerie Brew, Brendan Brew (a minor), John Wheeler, Gregory Foster, Noella Foster, Robert Miller, Ronald Rawson, Martin Gallagher, Stephen Bennett, Jason Watson, Elizabeth Ward, Glenn Campbell, Allan Lowery, Ann Bumpstead, Kerry Walker and Bruce Lowery.

15. Late last week, my Associate was informed as a matter of courtesy by legal representatives of the parties that the claims had been settled.

18. On Monday 1 October, that is the start of this week, the applications were listed as previously scheduled. At the outset, Mr Scanlon, who appeared with Mr Bracken, announced that each of the 18 applications

".... have been settled, between the parties, on confidential terms." (T.10).

22. Mr Scanlon did not seek any order from the court, not even that the applications be struck our or dismissed. Upon inquiry by me, he maintained that his announcement was sufficient to dispose of the applications. He submitted that the applicants

".... are entitled under s.85 to bring an application for compensation; it goes without saying, they are entitled to withdraw it; and we say that the applications simply be withdrawn with no orders." (T.11).

I consider Mr Scanlon's premise and his conclusion are erroneous.

27. Generally speaking, there is a substantial public interest in open and accountable court process. As long ago as 1827 the philosopher Jeremy Bentham in his Rationale of Judicial Evidence wrote:

"Publicity is the very soul of justice .. It keeps the judge himself, while trying, under trial."

Bentham's principle did not apply in the trial of Josef K.:

"K. might care to remember that the proceedings were not public; they could be opened to the public if the Court thought that was necessary, but the Law did not insist upon publicity." (Franz Kafka, The Trial, 1925).

Lord Shaw in Scott v. Scott (1930) A.C. 417 at 478 said:

"There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of Judges themselves."

Gibbs J, as then he was, in Russell v. Russell (1976) 134 C.L.R. 495 at 520, having referred to Scott v. Scott and its open court principle said:

"This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character."

The court has inherent power to control and to supervise its own process and will always do so. I approach the question raised by Mr Scanlon with those fundamental and vital principles foremost.

38. There is a history of victim compensation in one form or another, as is set out in L. Radzinovitch and R. Hood: A History of the Criminal Law (1986) vol.5, pp.654 to 655, and the articles cited in footnotes 27 to 33 in that History. See also A. Ashworth, Sentencing and Criminal Justice (1995) pp.256 to 261. In Victoria the court has long had the power to order compensation for property loss: see s.546 Crimes Act 1958, s.92 Penalties and Sentences Act 1985, and s.86 Sentencing Act 1991. The present provisions, and indeed those which govern these applications, were instituted by the Victims of Crime Assistance (Amendment) Act 2000. By s.21 of that Act, a new Sub-division, Sub-division 1 of Division 2 of Part 4 Sentencing Act 1991 was implemented, including the present s.85B, the foundation for these proceedings.

41. A number of authorities have passed upon like legislation. Of course each authority must be considered in the light of legislation the court was there considering. Compensation is not punishment and proceeds according to common law criteria: McDonald (1979) 1 N.S.W.L.R. 451 and In Re Poore (1973) 6 S.A.S.R. 308. Further, it has long been held that very complex cases ought not be heard consequent upon a criminal sentence but should be heard in the civil list: Landholt (1992) 63 A.Crim.R. 200 and Braham [1977] VicRp 11; (1977) V.R. 104.

44. I consider that the present applications under s.85B, as it now is, before me are clearly incidents of criminal proceedings. There are ten reasons for that conclusion. One, the proceedings are under the Sentencing Act 1991, a criminal statute, Part 4 of which is headed "Orders in Addition to Sentence." Two, the proceedings are heard in the Criminal Division by the sentencing Judge. Three, a condition precedent to the institution of s.85B proceedings is the recording of a criminal conviction. Four, the respondent to an application under s.85B is a party by reason of his, her or its character of being an offender. Five, the respondent can only be a respondent if he or she or it is an offender. Six, the applicant has to be a victim of a crime. Seven, there is an intimate connection between the antecedent criminal trial and the application. The documents the application proceeds upon are criminal trial documents, including committal depositions before the trial and victim impact statements after conviction: s.85F(2). Eight, unlike ordinary civil process where the impecuniosity of the defendant is irrelevant, in s.85B applications the court may take into account the financial circumstances of the offender and the nature of the burden that the payment ordered will impose: s.85H(1). Nine, the intimate connection between the criminal trial including sentence and s.85B proceedings is further demonstrated by the reason for that section, s.85H, namely that the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order. Ten, by s.85C(1)(b)(iii) a section 85B application may be made on the victim's behalf by the Director of Public Prosecutions, an incongruous role for the Director to fulfil if such proceedings were merely civil proceedings between merely private parties.

47. A further contrast between this process and a civil trial between merely private parties is that a civil trial is not immediately preceded by, and intimately connected with, a trial or plea as are s.85B proceedings. Further, s85L preserves the applicant's right to recover civil damages separate and apart from, or in addition to, 85B proceedings. Finally and significantly by s.85E(2) is provided that proceedings on behalf of a child or incapable person must be taken to be a civil proceeding "for the purpose of" the appointment of litigation guardians and other procedures. That provision would be otiose if the proceedings under s.85B were merely civil proceedings between private parties.

50. Mr Scanlon relied, as he was fully entitled to do, upon a decision of this court, Shoebridge and Anor. v. The Pasta Master Pty Ltd, (unreported, No.6139 of 2000,

3 February 2000, Warren J). That was an appeal pursuant to Magistrates' Court Act 1989 from a decision of a magistrate dismissing applications for compensation under the then s.86 Sentencing Act 1981 by parents for pain and suffering caused by the death of their son in the workplace of the employer. The magistrate dismissed the applications because the death occurred before the Sentencing Act was amended to comprehend pain and suffering, it previously only comprehending property loss. The amending legislation was in operation at the date of the convictions (1 July 1999), but not at the date of the death (17 March 1997). The question of law formulated by the Master for the appeal was:

"Whether on a proper construction of s.86 Sentencing Act 1991, an application for compensation for pain and suffering may be made against an offender found guilty or convicted of an offence committed before 1 July 1997, being the date of commencement of operation of s.86 of the Act as amended by s.74(1) of the Victims of Crime Assistance Act 1996."

The principal matter for determination by Her Honour was that of retrospective and prospective application of amending legislation. Her Honour ultimately answered the question of law in the affirmative, allowed the appeal, and remitted the matter to the Magistrates' Court to be heard and determined into in accordance with law. In Shoebridge three preliminary submissions were made by the respondents as to the competence of the appeal. The first was that the appellants lacked standing as a s.86 application below was not a criminal or a civil proceeding for the purposes of the Magistrates' Court Act 1989 such as to give entitlement to appeal to this court on a question of law. Section 92 of that Act governed appeals on matters of law to this court in criminal proceedings, and s.109 governed such appeals in civil proceedings. In order to determine the preliminary submission it was necessary for Her Honour to determine whether a s.86 application was a proceeding (either criminal or civil) under the Magistrates' Court Act 1989. Her Honour ruled that a s.86 application was a civil proceeding for purposes of an appeal to this Court on a question of law pursuant to the Magistrates' Court Act 1989.

55. The statute before Her Honour did not contain the present s.85E(2), which was inserted by the 2000 amendments which I have recited and which is of importance in my conclusion that the proceedings before me are an incident of criminal proceedings.

58. I consider that a private and confidential agreement between the parties to a s.85B application cannot avoid the operation and scheme of Part 4 Div.2 Sentencing Act 1991. First, there is a significant public interest in the process being open and accountable for the reasons I have stated and by the authorities I have stated. Second, the court must be able to control and supervise its own process. Further, the proceedings are an incident of the criminal process. Finally, and obviously, the protections and requirements of Part 4 Div.2 are there to be fulfilled and observed.

61. It is noteworthy that in s.85B applications many applicants have a dual character. They are both trial witnesses and victim applicants. It is further noteworthy that always, necessarily, one of the parties is a convicted offender. Those considerations alone justify the court in ensuring the statute is complied with and its own processes properly fulfilled. Those considerations also are sound reasons for the Director having a very real interest in these proceedings.

64. Indeed, in Occupational Health and Safety matters a number of witnesses have not two, but three capacities. They are trial witnesses, victim applicants and employees. In some cases - not in this case, but in some cases - the courts may need to enquire when the offender first offered compensation and in what circumstances. All of those considerations tend to support the conclusion that the court must control and supervise its own process.

67. There is a further consideration - one which I am confident is not relevant in this case - and that is that s.85K provides:

"Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to the proceeding under this Subdivision must bear their own costs to the proceeding, unless the court otherwise determines."

71. In confidential agreements between parties, the court has no knowledge of what costs have been agreed despite the clear provisions of s.85K which is part of the scheme provided by the legislation.

74. It goes without saying, but I did say it on Monday, this court supports and wishes to provide proper assistance to victims of crime. It goes without saying, but I said it also on Monday, this court does not wish to add further burdens to victims of crime. But there is a procedure laid down by the legislation and it is in everyone's interests, including victims of crime, that it be followed.

77. I return to Mr Scanlon's original submission. Leave to withdraw would be appropriate to seek - and normally appropriate for a court to grant - if s.85 proceedings had been issued and a party wished to withdraw without further proceeding: for example, from concern as to the court process being a further burden upon them, unfortunate though that concern might be. However, where the matter has been resolved, that is to say, the court process has been utilised to achieve a finality of the matter, it is a misconception to say that the matter then can be withdrawn. Thus leave to withdraw is not necessary, because withdrawal is an inappropriate concept. Where the parties have finally resolved the matter between themselves, what is required is a Court step of finality: that the court strike out or dismiss the application.

80. On the civil side, the Rules provide as to such steps being taken. Rule 1.05(1) provides that the Rules apply to every civil proceeding commenced in the court. Sub-rule (2) provides that Chapter 1 of the Rules does not apply to a civil proceeding to which any other Chapter applies. Rule 1.13(1) defines "proceedings" as meaning "any matter in the court commenced by a writ or originating motion or as otherwise provided by or under any Act or these Rules". Thus, an application for compensation under the Sentencing Act 1991 is a proceeding for the purposes of Chapter 1 of the Supreme Court Rules. Rule 25.02 deals with discontinuance or withdrawal but applies only to a proceeding commenced by writ. Rule 25.03 provides that a proceeding "not commenced by writ may be discontinued or any part of the proceeding not commenced by writ may be withdrawn at any time by leave of the court or with the consent of all other parties." Rule 25.04 provides that discontinuance without leave of the court is made by filing a notice of discontinuance or withdrawal. In the absence of the filing of a notice of discontinuance the court would ordinarily require Orders to be made striking out or dismissing the proceedings to bring the proceedings to finality. Plainly, to finalise a matter in the court's list, a court step needs to be taken.

83. As is exemplified by the authorities I have cited, it is undesirable that s.85B proceedings be burdened down by substantial complex or technical rules of procedure as may properly apply on the civil side. However, for the reasons I have stated, it is essential that the court supervise and control its own process. I consider it is appropriate in s.85B applications hereafter that in this court and in courts below, if leave to withdraw is sought, that is to say, the matter is not resolved but an applicant wishes to withdraw, that leave ought to be applied for and would, of course, normally be granted. If however, the matter has been resolved, the pathway is not a confidential private resolution between purportedly private parties, for the reasons I have stated. The proper procedure is for the court to be asked to strike out or dismiss the application. The court would do so only if and when a proposed order setting out the terms of settlement is provided to the court and is placed on the file of the court. That public record is contemplated by s.85J of the Act. In that way I consider that the court's processes are followed and the principles I have previously adumbrated are satisfied.

86. I then turn to the resolution of the matters before me.

89. In these 18 cases (17 adults and the one child) Mr Scanlon has very properly informed me that the matters have been resolved. It is quite plain that the matters have been resolved in each case in good faith. Each of the applicants, and the respondent, Esso Australia, have acted in good faith. I have had the benefit of seeing a number of the applicants previously in evidence and they are each most impressive persons. Each of the applicants has already suffered grievously. Further burdening of the applicants should be avoided where possible. I consider, in those circumstances, as agreements have been reached in good faith and on the basis of confidentiality, that it would not be appropriate for me now to require that that confidentiality be lost. This is, after all, fairly new legislation and the court is still working through the corollaries of it as I have stated.

92. Accordingly I consider it is appropriate in these cases and likewise in any other of the Longford cases before me this week, where agreements have been reached or are presently being moved towards on the basis of confidentiality, that the parties be entitled to retain the confidentiality of the agreements which they have entered into in good faith.

95. The matter now having been fully looked at, the proper procedure hereafter is that any final resolution of section 85B proceedings has to be the subject of public production to the court of the terms of the agreement of resolution, including the amount to be paid, its terms, and any costs agreement. In exceptional circumstances, to alleviate particular trauma or suffering of a victim, confidentiality of some or all of the terms may be permitted, but the general rule hereafter is that public disclosure and recording is required.

98. Accordingly, in relation to these present 17 applications of the adults, no leave to withdraw is necessary because, as I have said, that is not the appropriate characterisation of the step being taken.

101. I am prepared, in each case, to strike each matter out. I do not require the revelation - as I will in the future - of the confidential terms of agreement for settlement, for the reasons I have stated.

104. In the eighteenth matter, that of young Brendan Brew, I have had the benefit of reading a memorandum of advice of Mr Scanlon and Mr Bracken of 1 October 2001 and the affidavit of Ms Greener of 1 October 2001, exhibiting to it as Exhibit 1, the victim impact statement of Mrs Valerie Brew on behalf of Brendan Brew, and numerous medical reports. I am satisfied that the compromise there sought is in the best interests of the infant, Brendan Brew and I approve it and I shall sign the Order sought on behalf of Brendan Brew.

107. For those reasons, I will strike out each of the 17 adult applications and I approve the compromise sought in the 18th matter, that is the matter of Brendan Brew.