Re Commonwealth of Australia v Mark Andrew Pillifeant [1990] FCA 179; 23 FCR 397 48 A Crim R 124

Re Commonwealth of Australia v Mark Andrew Pillifeant [1990] FCA 179; 23 FCR 397 48 A Crim R 124 - FCA 1990 case summary — Zoe

[42]

"In this matter I am satisfied that the

applicant was assaulted at the Fyshwick Tavern

on 18 December 1986 by a person or persons who

remain unidentified. The applicant was at the

tavern following a Christmas party and had been

drinking since noon that day. On the

applicant's own admission he was intoxicated.

The applicant was, in fact, assaulted on two

separate occasions.

The first assault took place inside the tavern

and the second outside. As a result of the

first assault, the applicant was knocked down.

He did not occasion serious injury. As a result

of the second attack, however, he received more

serious injuries including a broken ankle, the

tip of his left thumb was bitten to the bone,

his left arm was bitten and he was kicked in the

lower part of his back. He has moderate

scarring as a result of the biting and does not

have full mobility as a result of the ankle

break. He still suffers pain in the lower part

of his back. As a result of the attack, the

applicant has also suffered loss of enjoyment of

life because he is unable to engage in sporting

activities which he previously participated in.

He feels pain on playing the guitar for long

periods of time and his relationship with a

female companion has broken up. As a result of

the injuries received in the assault, the

applicant is no longer able to perform heavy

lifting work and has a less onerous position at

work. The Commonwealth had contended that

pursuant to section 14 of the Criminal Injuries

Compensation Ordinance, I should not determine

that application because the applicant has not

taken any steps to report the matter to the

police or to identify the assailant.

I am satisfied, however, on hearing the evidence

of the application (sic) this morning, that the

effect of the assault upon him was such that he

was unable mentally to return to the Fyshwick

Tavern to make inquiries as to the identity of

his assailant soon after the incident. Further,

the applicant gave evidence that he had spoken

to police officers, though not officially, and

was advised that there was nothing to be gained

from pursuing the identity of the assailant.

The applicant reasonably, in my opinion, thought

it would be fruitless to pursue the identity of

his assailant.

The Commonwealth has also urged that I exclude

the applicant's claim in respect of injuries

that were received in the second assault, the

more serious injuries, as the applicant

contributed to these injuries by leaving the

tavern after he had already been assaulted.

Although the applicant admits that at the time

of the assault he was intoxicated, there is no

evidence available that the applicant's

behaviour, attitude or disposition contributed

directly to his injury. I am of the view,

however, that the applicant indirectly

contributed to the second assault, by going

outside with the assailant when he had already

been assaulted once and the assailant had

threatened him.

In these circumstances, I propose to reduce the

award of compensation I make by 20 per cent. I

make an award for compensation for pain and

suffering resulting from the injury for $12,000,

reduced to $9,600, pursuant to section 15 of the

ordinance. With respect to the pecuniary loss

suffered by the applicant, I make an award under

section 6B (sic) of the ordinance of $2,326.28

as reimbursement for sick leave credits, being

25 per cent of the amount claimed plus

$6,288.78, making a total award of $8,615.06.

In relation to out-of-pocket expenses, I make an

award pursuant to section 6A (sic) of the

ordinance of $1,182.40. The total amount

awarded is $19,397.46."

[51]

"As this is an appeal by way of rehearing under

section 28(3) of the Act, I have to have regard

to the evidence before the Registrar and after

giving due weight to the Registrar's decision,

arrive at my own conclusions, subject to two

important factors.

One is, that where the Registrar's findings are

based wholly or in part on demeanour of

witnesses, I should not lightly interfere with

those findings.

The other is, that where the Registrar's

decision involves exercise of a discretion, then

error of fact or law must be shown or the result

must be so manifestly absurd or unjust for it to

be deemed to contain unidentifiable error.

In my view, the Registrar's findings must have

been affected, to some extent at least, on (sic)

an assessment of the demeanour of the respondent

when giving evidence and so the Registrar had a

considerable advantage over anybody reading the

transcript.

In particular, the respondent was subject to

lengthy and strong cross-examination by counsel

appearing for the Commonwealth in an apparent

attempt to test the account of the respondent

relating to what had happened and relating to

how it had affected him. The Registrar found

that, although intoxicated, the respondent's

behaviour, attitude and disposition in the

tavern did not contribute to the injury. I

accept that finding.

However, the Registrar also found that the

respondent indirectly contributed to the assault

outside the tavern by following the assailant

outside. I accept that finding also. As I say,

those findings must have been affected by the

Registrar's assessment of the demeanour of the

respondent.

The Registrar then went on to decide that, by

reason of such contributing conduct, the

compensation should be reduced and reduced by 20

per cent. That further decision, or rather,

further two decisions, clearly involved the

exercise of discretion and as it has not been

shown that the Registrar fell into error of fact

or law, or that the result is manifestly absurd

or unjust, it is inappropriate for this Court to

interfere.

The Registrar's decision was attacked on two

further grounds: first, that no award should

have been made at all, because the appellant

failed to make reasonable efforts to enforce his

rights against the assailant; and second, that

no award should have been made at all because

the respondent failed to report what happened to

the police.

The Criminal Injuries Compensation Act (sic)

gives a discretion to refuse to make orders in

either of those circumstances, according to the

provisions of sections 14 and 20 respectively.

For myself, I find the reasons given by the

respondent for his failure to take any steps to

enforce his rights against the assailant not

very convincing. He says simply that he was too

frightened to go back to the tavern or to make

any inquiries about who it was who had attacked

him.

Again, however, the Registrar saw him give

evidence and was in a superior position to

myself to decide this sort of matter. The

Registrar's conclusion that the failure to try

to identify the attacker was a reasonable one,

is one with which I would not interfere because

I am simply not satisfied that the Registrar was

wrong on that point.

Lastly, and although it is not quite clear, the

Registrar came to the view that there had been

no failure to report to the police under section

20, because the respondent, to use the

Registrar's words, had spoken to police

officers, although not officially.

I tend to the view that the evidence does not

establish that the respondent reported to the

police, but as it must be emphasised that the

failure to report to the police is not an

absolute bar to an award of compensation,

discretion still lay in the Registrar to make or

refuse an award.

I have no doubt that the Registrar's view that

the respondent acted reasonably would have

justified the Registrar in making an award, even

if there were a finding of failure to report to

the police.

It is to be emphasised that the Commonwealth

submits in this appeal that the Registrar should

have made no award at all. As it was, the

Registrar took all relevant matters into account

to reduce the amount awarded by 20 per cent for

the respondent's contributing behaviour.

In actions for damages for personal injuries for

negligence, an appeal court will interfere with

the trial court's apportionment of damages for

contributory negligence only in very rare

circumstances, and I am quite sure that sort of

principle should apply to appeals against

determinations of awards of compensation under

section 15 of the Criminal Injuries Compensation

Act (sic).

At any rate, neither the Commonwealth nor the

respondent sought to have the amount of

compensation reduced or increased. Accordingly,

the appeal is dismissed. The Registrar's award

is confirmed and unless the parties wish to be

heard, I propose to order the appellant to pay

the respondent's costs. I order the appellant

to pay the respondent's costs."

[53]

"Where a right of appeal is given to a court

from a decision of an administrative authority,

a provision that the appeal is to be by way of

rehearing generally means that the court will

undertake a hearing de novo, although there is

no absolute rule to this effect. Despite some

suggestion in argument to the contrary, I do not

read Ex parte Australian Sporting Club Ltd; Re

Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283 as enunciating

such an absolute rule. There are, of course,

sound reasons for thinking that in many cases an

appeal to a court from an administrative

authority will necessarily entail a hearing de

novo and I exclude for present purposes the case

of an appeal to a federal court exercising the

judicial power of the Commonwealth under Ch. III

of the Commonwealth Constitution. The nature of

the proceeding before the administative

authority may be of such a character as to lead

to the conclusion that it was not intended that

the court was to be confined to the materials

before the authority. There may be no provision

for a hearing at first instance or for a record

to be made of what takes place there. The

authority may not be bound to apply the rules of

evidence or the issues which arise may be

non-justiciable. Again, the authority may not

be required to furnish reasons for its decision.

In all these cases there may be ground for

saying that an appeal calls for an exercise of

original jurisdiction or for a hearing de novo.

On the other hand the character of the function

undertaken by the administrative authority in

arriving at its decision may differ markedly

from the instances already supposed. The

authority may be required to determine

justiciable issues formulated in advance; to

conduct a hearing, at which the parties may be

represented by barristers and solicitors,

involving the giving of oral evidence on oath

which is subject to cross-examination; to keep a

transcript record; to apply the rules of

evidence; and to give reasons for its

determination. In such a case a direction that

the appeal is to be by way of rehearing may well

assume a different significance.

But in the end the answer will depend on an

examination of the legislative provisions rather

than upon an endeavour to classify the

administrative authority as one which is

entrusted with an executive or quasi-judicial

function, classifications which are too general

to be of decisive assistance. Primarily it is a

question of elucidating the legislative intent,

a question which in the circumstances of this

case is not greatly illuminated by the Delphic

utterance that the appeal is by way of rehearing."

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

Re Commonwealth of Australia v Mark Andrew Pillifeant [1990] FCA 179; 23 FCR 397 48 A Crim R 124 (4 June 1990)

Parties

Legislation Cited (12)

Cases Cited (5)