Citation : VAATUITUI -v- HALL [2005] WADC 240

Appeal - Competency of appeal from a decision of District Court under Pt VI of Criminal Injuries Compensation Act 1985 (WA) - Decision characterised as final - Appeal dismissed

Criminal Injuries Compensation Act 1985 (WA), s 43(2), Pt VI

Criminal Injuries Compensation Act 2003 (WA), s 57

District Court of Western Australia Act 1969 (WA), s 79(1)(a)

Interpretation Act 1984 (WA), s 5

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Supreme Court Act 1935 (WA), s 60(1)(c)

Anderson v Littlemore [1985] WAR 157

Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137

Kydd v Liverpool Watch Committee [1908] AC 331

R v Medical Appeal Tribunal; Ex parte Gilmore [1957] EWCA Civ 1; [1957] 1 QB 574

The Commonwealth v Limerick Steamship Co Ltd and Kidman [1924] HCA 50; (1924) 35 CLR 69

1 McLURE JA: The appellant has commenced an appeal from the decision of Martino DCJ made on 9 December 2005 upholding the respondent's appeal from an award of compensation made by the Criminal Injuries Compensation Assessor under the Criminal Injuries Compensation Act 1985 (WA) ("1985 Act"). Martino DCJ reduced the compensation payable by the respondent to the appellant from $19,500 to $10,000.

2 The appellant applied for criminal injuries compensation under the 1985 Act. The award in favour of the appellant was made on 27 October 2003. The Assessor published reasons for the award in May 2004. The 1985 Act was repealed when the Criminal Injuries Compensation Act 2003 (WA) ("2003 Act") came into force. However, the respondent's appeal to the District Court was pending when the 2003 Act came into force and the appeal was required to be dealt with under the 1985 Act.

3 The Chief Executive Officer of the Department of the Attorney-General filed a notice of intention to take part in the appeal as amicus curiae. The Chief Executive Officer claimed that the appeal to this Court was incompetent by virtue of s 43(2) of the 1985 Act and applied to have that matter referred to and determined by a single judge of this Court. It was heard by me on 25 August 2006. The application was supported by the respondent. At the conclusion of the hearing I gave the appellant, who was unrepresented, liberty to file and serve further submissions in writing on the competency of the appeal within 21 days. He failed to do so. By letter dated 3 September 2006 he advised that his chronic pain condition and lack of access to legal materials prevented him from doing so. Court records show that by letter dated 4 September 2006 the Court of Appeal office informed the appellant of the requirements for filing an application for an extension of time. No such application has been received. Having regard to the technical nature of the objection to jurisdiction, I am satisfied that the appropriate course is to determine the application.

4 The appeal to the District Court was under Pt VI of the 1985 Act. Section 43(2) of that Act provides:

"The decision of the District Court Judge under this Part shall be final."

5 Section 57 of the 2003 Act is to similar effect. It provides that the District Court's decision on an appeal "is not appealable".

6 Section 60(1)(c) of the Supreme Court Act 1935 (WA) provides that no appeal shall lie to the Court of Appeal from a decision of a judge or master where it is provided by any Act that such decision is to be final. However, the word "judge" in that provision means a judge of the Supreme Court: s 5 of the Interpretation Act 1984 (WA); Anderson v Littlemore [1985] WAR 157 at 158. There is no equivalent statutory provision relating to appeals from the District Court. However, the absence of such a provision is not determinative.

7 An appeal is entirely a creature of statute. The source of the District Court's appellate jurisdiction, being the 1985 Act, expressly provides that the District Court's decision is final. That is a clear and unequivocal indication that the legislature intended that there be no appeal from a decision of the District Court under Pt VI of the 1985 Act: The Commonwealth v Limerick Steamship Co Ltd and Kidman [1924] HCA 50; (1924) 35 CLR 69 at 88; R v Medical Appeal Tribunal; Ex parte Gilmore [1957] EWCA Civ 1; [1957] 1 QB 574 at 585.

8 Where there is a general statutory right of appeal from decisions of a particular court to a higher court, subsequent legislation making a relevant decision of the court final will have the effect of excluding an appeal: Kydd v Liverpool Watch Committee [1908] AC 331; Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 151 - 152 per Malcolm CJ. Thus, s 43(2) of the 1985 Act (and s 57 of the 2003 Act) prevail over the general statutory right of appeal in s 79(1)(a) of the District Court of Western Australia Act 1969 (WA). I am satisfied that the appeal is incompetent. In those circumstances, I am satisfied that no possible ground of appeal has any reasonable prospect of succeeding. Accordingly, I hereby dismiss the appeal under r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).