MATTER : In the matter of an application for a writ of certiorari against Her Honour Judge Schoombee of the District Court

Administrative law - Application for an order to show cause - Decision allowing criminal injuries compensation - Whether the limitation in s39(1) of the Criminal Injuries Compensation Act 2003 (WA) requires a causal or temporal connection between the injury and the commission of a separate offence - Principles applicable to an application for a show cause order

Criminal Injuries Compensation Act 2003 (WA), s 39(1), s 55, s 56

District Court of Western Australia Act 1969 (WA), s 42(1), s 50(1), s 55

Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282

Commissioner of Taxation v Anstis [2010] HCA 40

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Ex Parte Connell (1993) 10 WAR 414

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531

McKay v Commissioner of Police [2006] WASC 189

Re Ackland; Ex Parte Love (1989) 1 WAR 562

Re Anastas; Ex parte Welsby [2001] WASC 178

Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264

Re Richardson [2009] WADC 93

Re The Hon J McGinty MLA; Ex Parte Duff [2007] WASC 210

Re Western Australian Planning Commission; Ex Parte Solomon [2010] WASC 192

Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322

SW v BB [2010] WADC 86

Talbot v Lane (1994) 14 WAR 120

Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668

Woodley v Minister for Indigenous Affairs [2009] WASC 251

(This judgment was delivered extemporaneously on 18 November 2010 and edited from the transcript.)

1 I am satisfied that the Attorney General has established that there is an arguable case that Schoombee DCJ has erred and that the error is susceptible to judicial review. I consider that it is appropriate that I should give oral reasons so as to allow the show cause order to issue without further delay.

2 In August 2009, the Chief Assessor for Criminal Injuries Compensation refused an application for compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act) on the ground that she was prohibited by s 39(1) of the Act from making a compensation award. The applicant for compensation appealed that decision. On 11 June 2010, Schoombee DCJ allowed the appeal and made orders setting aside the decision of the Chief Assessor and providing for compensation under s 12 and s 48 of the Act: SW v BB [2010] WADC 86. The order made by her Honour is attachment 'SAK4' to the affidavit of Sarah Adele Kavanagh, affirmed 20 October 2010.

3 The Attorney General applies ex parte for an order that cause be shown as to why a writ of certiorari should not issue to remove into the Court of Appeal the orders made by her Honour for the purpose of quashing those orders. At issue in the Attorney General's application (and in the appeal determined by Schoombee DCJ) is the meaning and effect of s 39(1)(b) of the Act.

4 Section 39(1) of the Act provides that:

If an assessor is satisfied -

(a) that a person was injured as a consequence of the commission of an offence; and

(b) that the injury was suffered when the person was committing a separate offence,

the assessor must not make a compensation award in favour of the person.

5 The circumstances in which the application for compensation was made are set out at [4] and following in her Honour's reasons for decision. It is not necessary to restate the circumstances other than to note the following matters:

(a) The offender committed offences of sexual penetration without consent and unlawful and indecent assault against the applicant.

(b) The offender and the applicant smoked amphetamines before and after the sexual offending. It was obviously not in issue that by doing so, the applicant had committed an offence.

(c) By letter dated 28 July 2009 (attachment 'LVD4' to the affidavit of Laurene Veda Dempsey, sworn 20 October 2010), the Chief Assessor wrote to the applicant stating:

From the material available to me it is clear that you and the offender consumed amphetamines together on a number of occasions prior to and after [sexual offending] was committed. This of course constitutes an alleged offence contrary to the Misuse of Drugs Act 1981. Being satisfied that you were committing a separate offence at the time you were injured it is my provisional determination I must refuse your application for compensation. I write to give you notice of this provisional determination and to give you the opportunity to make any submissions you see fit with respect to it.

(d) The applicant made further submissions in response to the Chief Assessor's invitation. However, the Chief Assessor advised by letter dated 20 August 2009 that she was satisfied that the applicant was committing an offence at the time of the incident in which the applicant was injured and that the application was, therefore, refused: see attachment 'LVD6' to Ms Dempsey's affidavit.

6 The primary question raised in the appeal from the Chief Assessor's decision was whether the word 'when' appearing in s 39(1)(b) of the Act connoted a causal or temporal relationship between the injuries suffered by the applicant and the separate offence that she had committed. It appears that the Chief Assessor's refusal to award compensation was based on the decision of Yeats DCJ in Re Richardson [2009] WADC 93 in which her Honour held that s 39(1) did not contemplate a causal connection between the injury and the separate offence; an assessor was only required to be satisfied that there was a temporal relationship (see the reasons of Schoombee DCJ at [31]).

7 Schoombee DCJ came to the contrary view. In summary, her Honour reasoned that:

(a) The 'plain grammatical' wording of s 39(1) did not require a causal relationship between the separate offence and the injury. It would have been expected that Parliament would have used words similar to those appearing in s 39(1)(a) if a causal relationship was required; that is, an expression such as 'as a consequence of' would have been adopted in par (b) of s 39(1) if Parliament had intended that the disqualifying fact was that the applicant's injury was causally related to the commission of a separate offence (at [31]).

(b) There may, however, be unreasonable and irrational outcomes if the word 'when' was 'limited' to a temporal connection. Her Honour observed that it was not difficult to think of many situations where the commission of a separate offence would be totally unconnected with the infliction of an injury but the separate offence would have been committed at the same time as the injury was sustained. That would result in a denial of criminal injuries compensation if a temporal and not causal connection was sufficient. Her Honour gave two examples: a victim who is exceeding the speed limit or weight limit of his truck when he is injured by a missile thrown at the vehicle. and a victim who receives an injury during a random shooting at a bank and is then found to have been in possession of a quantity of cannabis at his home or in his car or on his person at that time (at [31]).

(c) One meaning of the word 'when' was, 'on the occasion that'. Interpreting the word 'when' in that way would eliminate some, but not all, of the unreasonable and irrational consequences of an interpretation that equated the word 'when' with 'at the time that' (at [32] - [35]).

(d) Section 39(1) was ambiguous so that recourse could be had to extrinsic materials to assist in resolving that ambiguity. Her Honour interpreted statements made by the then Attorney General in Parliament as suggesting that, 'the legislature had in mind that there should be some connection between the victim's separate offence and the injury'; that is, 'that the legislature had in mind that the victim's offence would have to be committed as part of the circumstances "leading to" the injury and that the injury would have to have been a consequence of the offence committed by the victim' (at [46] and [47]). Accordingly:

The purpose of s 39(1) was to ensure that a victim of a criminal injury did not benefit from his or her own offence, which requires a connection between the victim's offence and the injury which gives rise to the compensation [47].

... an absurd result and certainly not one contemplated by the then Attorney General, representing the government of the day, that a victim of a criminal injury would be denied compensation where he or she happened to commit an offence at the time of the injury although the offence was totally unconnected to the perpetrator's conduct which caused the injury.

9 Consequently, the word 'when' should be read as meaning 'on the occasion that the person was committing a separate offence' and a causal connection should be required between the injury and the separate offence [50]. That interpretation necessarily meant, as her Honour recognised, that s 39(1)(b) would be satisfied where the applicant's separate offence made a material contribution to his or her injury.

10 The Attorney General contends that her Honour misconstrued s 39(1) of the Act and in doing so made an error of law going to the court's jurisdiction. The Attorney General's arguments as to why it is said that her Honour erred are comprehensively stated in the written submissions filed in support of the application for the show cause order. In summary, it is contended that:

(a) The ordinary meaning of s 39(1)(b) is that an assessor must not make an award of compensation if the separate offence and the injury are temporally connected. On its proper construction, s 39(1)(a) requires a causal connection between the injury and the offence. The difference in the wording of pars (a) and (b) is significant and provides a clear indication of the intention of Parliament.

(b) It is not appropriate to interpret s 39(1) through the prism of the remedial character of the Act. The clause is intended to limit an applicant's entitlement to an award of compensation. Further, a review of the scheme of the Act discloses that the intention was to compensate victims of offending, subject to the limitations contained in the Act (and see in that regard the long title to the Act which states that it is 'an Act to provide for payment of compensation to victims of offences in some circumstances and for related matters').

(c) Extrinsic materials may be used to confirm the ordinary meaning of the words in a statute. However, such materials may only be used for the purpose of departing from the ordinary meaning of the text if the meaning of the provision is ambiguous or obscure or its ordinary meaning leads to a result that is manifestly absurd or unreasonable. It is necessary to distinguish between a provision that may have a perceived unfair or unjust operation when given its grammatical meaning and a provision that is ambiguous or manifestly absurd or unreasonable. Reference was made in that context to the well-known passages in the judgment of Gibbs J in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, 304. Her Honour correctly identified the ordinary meaning of the word 'when' as used in s 39(1)(b) and what she identified as being manifestly absurd or unreasonable was merely what some might think to be unfair. There was no occasion to have recourse to extrinsic materials.

(d) In any event, her Honour erred in the conclusions that she reached concerning those materials and in particular, statements that were made by the then Attorney General after the Bill had been read a second time and during its detailed consideration in the Legislative Assemb1y. Further, the statements made by the Attorney General did not clearly suggest an intention to require a causal connection, particularly when considered in the context of other statements which referred to an intention to deny a victim compensation when an injury occurred 'at the time' that the victim had committed an offence. Reference was made to that part of the explanatory memorandum concerning cl 39 and which stated, 'an assessor must not make an award if it is satisfied that the person injured or killed as a consequence of the commission of the offence was committing an offence at the time'.

11 An applicant for an order nisi must demonstrate an arguable case for the relief sought: see, for example, Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [54] (Buss JA). In Cazaly Iron, his Honour referred to a passage from the judgment of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, 642 - 644, which was cited with approval by Malcolm CJ, with whom Kennedy and Ipp JJ agreed, in Talbot v Lane (1994) 14 WAR 120, 152. In IRC v National Federation of Self-Employed, Lord Diplock said:

If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.

12 In Cazaly Iron, Buss JA also referred to the judgment of McLure J in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 where her Honour stated in respect of the arguable case test:

On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130).

13 Buss JA observed that he did not consider what was stated by McLure J in Re MacTiernan to be inconsistent with IRC v National Federation of Self-Employed and Talbot v Lane. His Honour explained:

If, however, the application raises matters of factual and legal complexity, a 'quick perusal of the material then available' may not be sufficient to determine whether an applicant has a reasonably arguable case. Some greater scrutiny may be necessary [55].

14 The application by analogy of the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, which is the long established test for determining applications under O 20 r 19(1) (a) of the Rules of the Supreme Court 1971 (WA), was first suggested by McLure J in Re Anastas; Ex parte Welsby [2001] WASC 178. In that case her Honour noted (at [17]) that the threshold test had been formulated in different ways; that the General Steel Industries v Commissioner for Railways test was a very low threshold test and it may be that in practice the difference between the various formulations in the authorities was more apparent than real.

15 In McKay v Commissioner of Police [2006] WASC 189, Martin CJ said:

... I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success [3].

16 In Re The Hon J McGinty MLA; Ex Parte Duff [2007] WASC 210, Jenkins J agreed with the formulation of the threshold test proposed by the Chief Justice in McKay, while in Woodley v Minister for Indigenous Affairs [2009] WASC 251 Martin CJ observed:

It seems to me that perhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].

17 Simmonds J recently stated that in his opinion the correct approach to the test of arguable case was that stated by Buss JA in Cazaly Iron, his Honour making that observation in Re Western Australian Planning Commission; Ex parte Solomon [2010] WASC 192 [22]. However, I note that McKay v Commissioner of Police and Woodley v The Minister for Indigenous Affairs may not have been cited to Simmonds J.

18 The short passage that I have reproduced from McKay v Commissioner of Police makes it clear that the test proposed by Martin CJ in that case was intended to be different in substance to that applied in earlier authorities as summarised by Buss JA in Cazaly Iron. That is confirmed by the observations made immediately after the passage that has been earlier cited concerning the public interest in the use of the limited resources of the judicial system. However, there are apparently subtle shifts between the formulations in McKay and Woodley and, as his Honour commented in the latter of those cases, 'the nicety of the distinction between an arguable case and an arguable case without reasonable prospects of success is perhaps a semantic issue': Woodley [37] (Martin CJ). It is not necessary to descend further into the way the test has been stated in the authorities to determine this application as I consider that the application should be granted regardless of which formulation is adopted. The expression 'arguable case' and what follows is used as a shorthand reference to the tests that I have identified, including those that have been suggested by the Chief Justice.

19 In my view, the Attorney General has established an arguable case that her Honour erred in her interpretation of s 39(1) of the Act for the reasons that he has advanced in his submissions. There is force in the argument that the textual considerations to which he has referred indicate that s 39(1)(b) applies, and was intended to apply, whenever there is a temporal relationship between the injury and the commission of an offence by the applicant. The word 'when' denotes a temporal relationship. It is not a word that would ordinarily be used to describe the interaction between two events (the commission of separate offences) to produce a particular result (the injury of a person). As I have indicated, her Honour held at [50] of her reasons:

Having regard to the purpose of s 39(1)(b) as gleaned from the extrinsic material, the word 'when' should be read as meaning 'on the occasion that the person was committing a separate offence' and a causal connection should be required between the injury and the separate offence.

20 The first limb of that interpretation attributed a meaning to the word 'when' that denotes a particular kind of temporal relationship. That meaning was expressly adopted so as to limit the application of s 39(1). It might be said that the victim was injured 'on the occasion that' he was speeding in his truck and a missile was thrown. It may be more difficult to say that the victim was injured by a stray bullet fired in a bank on the occasion that he was in possession of cannabis because it was stored in the glove box of the car that he owned and which he drove to the bank. However, it might be more readily concluded in the latter example that the victim was shot 'at the time that' he was in possession of cannabis.

21 I have some doubt over whether there is, in substance, a difference between 'at the time that' and 'on the occasion that'. I also consider that there is force in the point made by the Attorney General at par 21 of his written submissions that a limiting clause is not to be interpreted by applying the principle that beneficial legislation is to be construed liberally: see the observations of Spigelman CJ in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668.

22 However, the more fundamental point is that it was not sufficient for her Honour to interpret the word 'when' in order to attribute to s 39(1) the meaning and effect that she held that the section carried. The conclusion expressed at [50] of the reasons makes it clear that it was necessary for her Honour to superimpose on the section the requirement that there be a causal connection between the injury and the separate offence before the section applied. That requirement was not derived by construing the meaning of the word 'when'. Her Honour had held that the meaning of that word was captured by the expression 'on the occasion that', an expression denoting a temporal relationship. Consequently, it appears on her Honour's approach that the requirement that there be a causal relationship between the injury and the separate offence is not to be found in the actual wording of the section. It is simply imposed on the section to avoid what her Honour regarded as a manifest absurdity.

23 Arguably, her Honour has impermissibly done more than merely determine the meaning of the actual words used in the section - see the passage from the judgment of Gibbs J in Cooper Brookes to which I earlier referred and which is reproduced at par 30 of the Attorney General's written submissions. The point that I am endeavouring to make can be illustrated by the facts of this matter. It would not distort language to say that the applicant was sexually assaulted on the occasion that she was smoking amphetamines with the offender. Consequently, it was necessary for her Honour to add the causal requirement to avoid the operation of s 39(1). However, that was not done by construing the word 'when'. Her Honour had already construed that word; rather, it was achieved by imposing an additional requirement that does not appear in the wording of the section.

24 There are, in my opinion, other difficulties with her Honour's approach. It is not necessary to do more than briefly mention those difficulties, given the views that I have already expressed:

(a) There is force in the criticism made by the Attorney General that her Honour has failed to have regard to the scheme of the Act in interpreting s 39(1). The Act provides compensation for the victims of offending but subject to significant limitations. There is nothing that I have been able to find in the Act that suggests that its purpose would be defeated if s 39(1) was interpreted according to its ordinary meaning; that is, that it applied whenever there was a temporal relationship between an applicant's injury and her/his separate offence.

(b) Arguably, the ordinary meaning of the section does not lead to manifest absurdity or unreasonableness in the relevant sense. It must be remembered that manifest absurdity or unreasonableness is to be found in the ordinary meaning of the text. It is not to be discovered by first going to the extrinsic materials to see whether the clause produces results that are absurd or unreasonable when examined against those materials. Arguably, s 39(1) may reflect a policy that a person engaged in criminal conduct is automatically disentitled to criminal injuries compensation regardless of how their injury was caused. I have reservations about the use of statements in the course of the detailed consideration of a Bill in either House but I note that such a view might be thought to be supported by the passage reproduced from Hansard at [44] of her Honour's reasons.

(c) Care is always required in interpreting a statutory provision by reference to extrinsic materials such as the explanatory memorandum or second reading speech: see, for example, the recent comments of Heydon J in Commissioner of Taxation v Anstis [2010] HCA 40 [40]. As I have already indicated, I have significant reservations about the utility of extrapolating the intention of Parliament from what was said in the course of the detailed consideration of a Bill. First, there is a risk that seeking the legislative intention in that way may degenerate into what Gleeson CJ in Singh v Commonwealth of Australia [2004] HCA 43; (2004) 222 CLR 322 [19] described as, 'an exercise in psycho-analysis of individuals involved in the legislative process'. Second, little assistance is likely to be gained from closely examining what was said in the free exchange between members that occurs in the course of a detailed consideration of the clauses of a Bill.

(d) Causation is a complex concept. It is not clear what concept of causation is imported into the section on her Honour's interpretation. That suggests that such an interpretation is unlikely to truly represent the intention of the legislature in the absence of wording that clearly reflects a requirement that some kind of causal relationship be established.

25 The remaining issue to be considered is whether the applicant has demonstrated an arguable case that her Honour's decision is susceptible to judicial review. Two questions arise: first, the characterisation of any error that may have been made by her Honour and second, the availability of prerogative relief. As to the first of those matters, the High Court in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 described in general terms jurisdictional error by an inferior court. The description included where the court disregarded the limits of its powers. Section 39(1) is mandatory in form. There is no power to award compensation when its requirements are satisfied. Section 56(1) of the Act provides that the District Court must decide the application for compensation afresh. There is, therefore, a strong argument that an error in the construction of s 39(1) goes to the jurisdiction of the court.

26 As to the availability of prerogative relief, I accept that the submissions made at par 42 and following of the written submissions provided by the Attorney General demonstrate an arguable case that certiorari will lie in respect of an error made by the District Court about the jurisdiction conferred by s 55 and s 56 of the Act. It appears that the court is not exercising the jurisdiction granted by s 42(1), s 50(1) or s 55 of the District Court of Western Australia Act 1969 (WA) and is not therefore acting as a court with the jurisdiction and status of the Supreme Court. In Re Ackland; Ex Parte Love (1989) 1 WAR 562, Brinsden J held that certiorari would not lie against the District Court exercising criminal jurisdiction because the effect of the Act was to constitute it as a superior court of record when exercising that jurisdiction. His Honour said at 567:

The District Court, as I have pointed out is a superior court of record in its criminal jurisdiction and so long as it is acting within that jurisdiction, it is not subject to certiorari by this court except to the limited extent provided by s 81.

27 I would emphasise in that passage the words 'so long as it is acting within that jurisdiction'; that is, the jurisdiction of a superior court of record conferred by, in that instance, s 42 of the District Court Act. The qualification is significant. It is reflected in what is said by Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, 2009) [12.60] where it is observed that:

To the extent that an 'inferior' State court has been invested with the Supreme Court's jurisdiction and status, it will be immune from judicial review provided it has acted within the stipulated context.

28 Again, I would emphasise the qualification 'provided that it has acted within the stipulated context'. The authority cited for the proposition stated by Aronson and others is Re Ackland and also, Ex Parte Connell (1993) 10 WAR 414, where White J adopted and followed the reasoning of Brinsden J in Re Ackland. There are also comments in the judgment of the plurality in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [70] that might assist the Attorney General on this point.

29 Finally, there is nothing in the Act that suggests that the conferral of jurisdiction on the District Court carries with it the power to finally determine its jurisdiction in relation to matters arising under the Act or to make orders about its jurisdiction that are valid and binding until set aside. I should add that the reference to Kirk [70] is not a reference to that part of the reasons of the plurality dealing with privative clauses but obviously, there may well also be indications in what the plurality said on that issue that are favourable to the Attorney's position on this point.

30 For those reasons, I am satisfied that the Attorney has demonstrated an arguable case that first, her Honour erred in her construction of s 39(1); second, that the error may arguably be characterised as an error going to jurisdiction; and third, that prerogative relief would be available to the Attorney General to have her Honour's orders removed to the Court of Appeal or a judge sitting at first instance in this court for the purposes of having those orders quashed.

31 The Attorney's application obviously raises a question of public importance. The order to show cause should accordingly be heard by the Court of Appeal.