SWINFORD [2021] WADC 82 (20 August 2021)

1. Mr Swinford's application for criminal injuries compensation for the Second Incident relates to a further assault alleged to have been committed by RP on 23 February 2015. That application was allocated CIC number 236/2018.
2. In his statement made to police in relation to the Second Incident dated 28 February 2015 and filed in support of his application, Mr Swinford described the Second Incident as follows.
3. Whilst at work on 22 February 2015, he was checking the patrol vehicle in a carpark at the Wilson Security office and was approached by RP. RP said to him 'Haven't you learnt from the last time you parked your car there.' Mr Swinford and RP exchanged words.
4. At approximately 12.35 am on 23 February 2015, Mr Swinford returned to the office to submit paperwork and finish his shift. When he arrived, he saw RP sitting in his private vehicle in the carpark. He went into the office to the paper room to submit his end of shift paperwork. As Mr Swinford left the paper room, RP entered the corridor and shut the door behind him, blocking Mr Swinford's exit. RP said 'we have something to talk about' to which Mr Swinford responded 'please move out of my way'. Mr Swinford attempted to get past but RP continued to block his exit.
5. RP then grabbed Mr Swinford by the shirt, causing him to drop the papers he had been holding. They then both went through the door that RP had been blocking. Mr Swinford attempted to break free of his grip and said his hand or arm may have struck RP while he was doing this. A work colleague then separated the two men.
6. The entire incident from when RP blocked Mr Swinford's exit until they were separated lasted no more than 15 seconds. Mr Swinford sustained a 5 cm scratch on his upper left arm.
7. Mr Swinford attended his general practitioner later on 23 February 2015. This general practitioner prepared a note dated 23 February 2015, which includes a summary of Mr Swinford's report of the incident and records 'very minor superficial abrasion 5 cm long on left upper arm - fits description of a minor scratch from a fingernail'.
8. The police incident report and running sheet record, in summary, that:
   1. Mr Swinford reported the Second Incident to police on 24 February 2015;
   2. RP made a counter complaint against Mr Swinford when he was spoken to by police about the incident on 28 February 2015 alleging he was punched by Mr Swinford during the altercation on 23 February 2015 and suffered a cut above his left eye; and
   3. in late March 2015, the investigation was discontinued, and no charges were brought against RP or Mr Swinford due to insufficient evidence.
9. A Wilson Security incident report was completed by another Wilson Security employee in respect of the Second Incident dated 23 February 2015 numbered 83853. However, the copy of the report is illegible and a clearer copy was unable to be provided.
10. That employee also made a statement to police. It is clear from that statement that the other employee did not witness the Second Incident. He came into the building afterwards and refers only to what he was told by RP and Mr Swinford after the event. That is that RP told him that Mr Swinford had punched him to the head and Mr Swinford complained that RP had refused to move out of his way in the corridor.

1. The term 'offence' is defined in s 3 of the CICA to mean 'an alleged offence or a proved offence'.
2. The term 'alleged offence' is defined in s 3 of the CICA as meaning 'a crime, misdemeanour or simple offence of which no person has been convicted'.
3. Mr Swinford must satisfy the court, on the balance of probabilities, that an alleged offence occurred.[25] The court must also be satisfied that there were no defences reasonably open to the offender.[26]

1. Section 313(1) of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) provides that:

Any person who unlawfully assaults another is guilty of a simple offence ...

1. The term 'assault' is defined in s 222 of the Criminal Code and, relevantly, includes:

A person who strikes, touches or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent ... or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

1. Section 223 of the Criminal Code provides, relevantly, that:

An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

1. An assault will be not be unlawful if the person alleged to have assaulted the other did so in self-defence. That is, if that person believed an act was necessary to defend themselves from an unlawful harmful act by the person assaulted and their response was reasonable in the circumstances as they believed them to be and they had reasonable grounds for those beliefs.[27]
2. In relation to the First Incident (the first alleged offence) there is no suggestion, nor any evidence to support, that RP was acting in self-defence or was provoked by Mr Swinford or of any other defences being available to him.
3. In relation to the Second Incident (the second alleged offence), though there is reference in the police incident report and running sheet to RP sustaining a cut during the altercation, there is insufficient evidence before me to be satisfied that RP was acting in self-defence, was provoked or of any other defences being available to him.
4. As such, I am satisfied on the evidence and information before me that each of the First Incident and the Second Incident constituted an alleged offence as defined in the CICA.

What injury, if any, did Mr Swinford suffer as a consequence of the alleged offences?

1. Mr Swinford does not claim to have suffered any physical injury as a result of the First Incident. As noted above, Mr Swinford's general practitioner reported that Mr Swinford suffered a very minor superficial abrasion 5 cm long on his left upper arm during the Second Incident. Mr Swinford does not make any claim in relation to that physical injury.
2. Mr Swinford's claim in relation to the First Incident and the Second Incident is in respect of mental or nervous shock alleged to have been suffered as a consequence of the offence alleged to have been committed in each incident. Before considering the evidence relied upon in support of Mr Swinford's claim, I set out the general principles that apply and what Mr Swinford must establish for any injury suffered to be compensable under the CICA.

1. The term 'injury' is defined in s 3 of the CICA to mean, relevantly, 'bodily harm, mental and nervous shock ...'.
2. Mental and nervous shock must be more than a mere emotional reaction and be something of a more enduring character which may be described as an injury in both the legal sense and in common language.[28] This includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish.[29]
3. A causal connection between the injury and the commission of the offence is required, which is primarily a question of fact. It is not, however, necessary for the offence to be the sole cause of the injury in order for that causal connection to be established.[30]
4. Section 41(a) of the CICA provides that an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. Section 41(b)(i) and s 41(b)(ii) provide respectively that the assessor:

(b) may, if he or she thinks it is just to do so -

(i) refuse to make a compensation award because of that contribution; or

(ii) reduce the amount the assessor would otherwise have awarded.

1. There are two lines of authority in this court about the meaning of s 41 of the CICA. The first line of authority holds that the reference in s 41 to the victim's behaviour, condition, attitude or disposition is limited to the extent to which those factors contribute to the commission of the offence against the victim which is causally connected to the injury. The alternative view is that there is no basis for imposing that limitation on the apparently clear meaning of the words in s 41, and that section requires an assessor to take into account the contribution to the injury made by any pre-existing or subsequent condition, attitude or disposition which has contributed to the injury being assessed, and to carry the effect of that into the assessment of compensation if the assessor considers it is just to do so.
2. Her Honour Judge Davis provided an extensive analysis of the two lines of authority in McDavitt v McDavitt [No 2].[31] I respectfully agree with her Honour's conclusion that the latter is the correct approach. As her Honour states, the extent to which such conditions are taken into account is subject to the court's determination of what is just in the circumstances of the case.
3. However, as his Honour Judge Gething said in Underwood v Underwood,[32] the first line of authority provides a framework to deal with a situation in which the injuries the subject of the CICA claim have multiple causes, including pre-existing physical or mental illnesses or disabilities. This is necessarily part of the analysis required under s 30 of the CICA as to whether the injuries were suffered as a consequence of the commission of the offence and in determining whether the compensation to be awarded is in an amount the assessor (or this court on appeal) thinks is just.
4. Accordingly, if an assessor (or this court on appeal) is satisfied on the evidence that a non-compensable condition has causally contributed to the injury, the appellant will not necessarily be entitled to full compensation and the award of compensation may be reduced to take into account that contribution, provided it is just to do so.

1. Mr Swinford relies on medical reports provided by Consultant Psychiatrist, Dr Jon Laugharne dated 28 November 2017 and Registered Clinical Psychologist, Mr Adam Ates dated 1 August 2018 and 24 February 2021. A number of other reports from Mr Ates to Mr Swinford's general practitioner have also been produced. These are identified and referred to later in these reasons.

1. Mr Swinford's solicitors obtained the report from Dr Laugharne for the purpose of his compensation applications. Dr Laugharne assessed Mr Swinford on 10 October 2017. Dr Laugharne stated, amongst other things, that Mr Swinford:
   1. explained that he had had difficulties at his workplace since 2014, in particular with RP bullying and intimidating him;
   2. had been promoted to the position of senior security officer on the day of the Second Incident;
   3. had an interview with management the day after the Second Incident and was told he should resign or would be sacked;
   4. felt he had no choice and resigned and ceased his employment with Wilson Security on 25 February 2015;
   5. developed insomnia, vomiting and diarrhoea, high levels of anxiety and depressed mood, he stopped functioning in any useful way and could not think clearly, he was not leaving the house or eating properly, he struggled to cope and did not work for five months; and
   6. returned to work in July 2015, initially as a security officer with MSS Security, and in December 2015 returned to work at Wilson Security. He did not go back to his promoted position. He worked initially as a security officer working nightshifts in a warehouse. He returned to his previous position as a transit officer in July 2016.
2. At the date of his assessment, 10 October 2017, Mr Swinford described ongoing symptoms of anxiety, his sleep remained quite poor with anxious ruminations and his mood remained moderately depressed, he was seeing a psychologist on a regular basis and was not prescribed any medication.
3. Dr Laugharne reported that Mr Swinford did not have any past psychiatric history and no past medical history of note. There was no evidence of any pre-existing condition.
4. In Dr Laugharne's opinion, Mr Swinford had sustained a psychiatric injury, which he diagnosed as an acute adjustment disorder with depressed mood and anxiety, in partial remission but with residual symptoms. He observed that there were post-traumatic symptoms but on assessment Mr Swinford did not meet the full criteria for a post-traumatic stress disorder diagnosis.
5. Dr Laugharne stated that, in his opinion, the incidents (the alleged offences) were significant in the development of Mr Swinford's symptoms but most notably the decision by management to give Mr Swinford an ultimatum that he either resign or be sacked consequent to the Second Incident seems to have been the key trigger in the development of his acute psychological symptoms in February 2015.
6. In terms of apportionment, in Dr Laugharne's opinion, the First Incident was of greater significance out of the two incidents in terms of the psychological consequences. Though, I note Mr Swinford continued to work between the First Incident and the Second Incident. Dr Laugharne stated that Mr Swinford was unfit for work for psychiatric reasons between the cessation of his employment with Wilson Security on 25 February 2015 and the commencement of his employment with MSS Security on 20 June 2015.
7. Dr Laugharne stated that he considered the two incidents contributed to Mr Swinford's unfitness for work for psychiatric reasons. He also stated that him being put in a position where he felt he had no choice but to resign from his position consequent to the Second Incident also played a very significant part in the development of his symptoms.

1. A number of reports prepared by Mr Ates have been produced, including further reports that were not before the assessor that form part of the clinical notes of Mr Swinford's general practitioner.
2. In an undated letter that attaches a completed Depression Anxiety and Stress Scale questionnaire dated 23 April 2016 from Mr Ates to Mr Swinford's general practitioner, Mr Ates stated that during their last session, Mr Swinford reported concentration, attention and some cognitive functioning problems 'since his workplace problems started on 15.01.15' and to having started his cognitive behavioural and interpersonal therapy.
3. In Mr Ates' report dated 7 August 2016, the diagnosis stated is Major Depressive Disorder and Generalised Anxiety Disorder. Mr Ates reports that Mr Swinford presented with symptoms of those disorders and that the symptoms started after experiencing work related problems. There is no specific reference to either the First Incident or the Second Incident in the report.
4. In each of his reports dated 9 September 2017, 12 January 2018, 1 August 2018, 19 June 2019 and 24 February 2021, Mr Ates reported that Mr Swinford presented with symptoms of depression and post-traumatic stress disorder upon his referral. The reports refer to those symptoms having started after Mr Swinford experienced work related problems in 2015 and to him being attacked at work on 15 January 2015 and 23 February 2015 and to him having stopped working for five months after the Second Incident. He returned to full-time work in about July 2015.
5. He also reported in those reports that Mr Swinford reported suffering from symptoms of insomnia, incident related nightmares, flashbacks, difficulty with attention and memory and effects on his psychological health and finding it difficult to work up initiative to do things in his daily life since the last incident. Mr Ates recommended that Mr Swinford continue his cognitive behavioural and interpersonal therapy to address those concerns, to maintain his gains and prevent relapse.
6. In his most recent report dated 24 February 2021, Mr Ates stated that Mr Swinford is no longer suffering symptoms of post-traumatic stress disorder but his major depressive disorder is active and Mr Swinford would benefit from continuing his cognitive behavioural and interpersonal therapy to prevent clinical relapse. Mr Ates also confirmed that he had seen Mr Swinford 14 times since his report dated 1 August 2018, being four times in 2018, four times in 2019 and six times in 2021.
7. Mr Ates also reported in his February 2021 report that he considers the assaults of 15 January 2015 and 23 February 2015 are a material cause of Mr Swinford's current psychological symptoms. He recommended that Mr Swinford continue with his therapy sessions 10 - 12 times per year for the next five years to maintain his current gains and prevent relapse. He states that the Australian Psychology Society suggested fee for a session is $251.
8. In response to a question asking Mr Ates to comment on the effects and restrictions of ongoing psychological symptoms on Mr Swinford's employment, Mr Ates stated that:

Mr Swinford was back at work in July 2015 after the assault dates. Therefore nil restrictions of the ongoing psychological symptoms on Mr Swinford's employment is suggested.

1. Mr Ates also stated it was not clinically foreseeable that Mr Swinford will suffer periods of unfitness for work in the future given his ongoing psychological symptomatology. He also said nor was it clinically measurable or foreseeable that his working life or perimeter of employment was likely to be shortened or diminished as a consequence of the psychological injuries suffered in the assaults.
2. Mr Ates stated that the major depressive order was and had been affecting Mr Swinford's family, social, sporting, recreational and domestic activities.

Did Mr Swinford suffer injury as a consequence of the alleged offences?

1. I am satisfied and from the opinions expressed by Dr Laugharne and Mr Ates and the evidence of Mr Swinford that Mr Swinford has suffered injury as a consequence of the commission of the alleged offences. The injury suffered is the psychological disorders, being an acute adjustment disorder with depressed mood and anxiety and, as at February 2021, residual symptoms of major depressive order.
2. The amicus submitted that the predominant, if not sole cause, of Mr Swinford's injury were the earlier workplace issues rather than the assaults on Mr Swinford in January and February 2015. The amicus referred to Mr Swinford's statements in his affidavit and to Dr Laugharne about having suffered bullying and harassment in the workplace at the hands of RP and others before the incidents in which he was assaulted by RP.
3. However, though this may have contributed to his depression and anxiety, Dr Laugharne expressly stated in his report that Mr Swinford had no past psychiatric history and there is no evidence of any pre-existing condition. As already stated, the assaults need not be the sole cause of Mr Swinford's injury. It is sufficient that the offence, in each case, materially contributed to any injury.
4. I find that the assaults were not the sole cause of Mr Swinford's injury though they did materially contribute to it.
5. I find that Mr Swinford's resignation from his position with Wilson Security was also a material cause of his injury. However this, in my view, though apparently related to the Second Incident, is a non-compensable event.
6. There is no evidence from Mr Swinford or anyone from Wilson Security as to the circumstances in which Mr Swinford came to resign. There are only general statements by Mr Swinford to the effect that he was told to resign or he would be sacked and that he felt he had no option but to resign from his position. There is nothing to support a finding that Mr Swinford's resignation and any loss claimed to result from it occurred as a direct consequence of the injury suffered as a consequence of the assaults.
7. It is not, in my view, possible to disentangle the consequences of that non-compensable event from the consequences of the alleged offences insofar as Mr Swinford's injury itself is concerned. In those circumstances, Mr Swinford is entitled to compensation for the full injury. This is subject to the statutory maximum for multiple unrelated offences as provided in s 34(2) of the CICA. However, even though there were two separate assaults, Mr Swinford cannot be compensated twice for the injuries suffered, being the same psychological injuries as diagnosed by Dr Laugharne and referred to in his report and the reports of Mr Ates.
8. I am satisfied that the two assaults were unrelated being separate and distinct acts at different times weeks apart. As such the maximum amount of compensation that may be awarded is $150,000 as provided by s 34(2) of the CICA.
9. I consider the questions of the appropriate compensation for the injury suffered by Mr Swinford, whether he has suffered any additional compensable loss and, if so, what the appropriate compensation for any such additional loss is separately below.

1. The amicus raised an issue as to whether s 38 of the CICA operates such that the power to make an award of compensation is excluded, though in relation to both the First Incident and the Second Incident observed that it is open to the court to find that s 38 is not triggered.
2. Section 38 of the CICA relevantly provides that:

An assessor must not make a compensation award in favour of a victim ... if the assessor is of the opinion that the victim ... did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.

1. No report was made to police by Mr Swinford in relation to the First Incident. He did, however, lodge an incident report with his employer in relation to the First Incident and sought to have the matter addressed within the workplace.
2. Mr Swinford reported the Second Incident to police and it is evident from the running sheet relating to the investigation and his provision of a witness statement to police that Mr Swinford assisted police with their investigation. Charges were not laid against RP due to the investigator's assessment that there was insufficient evidence.
3. Having regard to the steps taken by Mr Swinford, I do not consider that s 38 operates to exclude the making of a compensation award because Mr Swinford failed to do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of RP.
4. Nor do I consider the fact that Mr Swinford failed to make a claim for workers' compensation precludes an award of compensation for loss being made under s 6 of the CICA, as submitted by the amicus.
5. What is the appropriate compensation for the injury suffered?
6. As I have stated, I find that Mr Swinford has suffered injury in the form of mental and nervous shock as a consequence of the assaults on him in the First Incident and the Second Incident.
7. Mr Swinford described the symptoms and effects of his psychological injury, which he still suffers, in the materials that were before the assessor and in his affidavit sworn on 3 March 2021. These include the toll on his career, family, marriage and child, difficulty sleeping, frustration, anxiety, panic and occasional nightmares and flashbacks. Any award of compensation under the CICA cannot take account of any effects Mr Swinford's injury have had on his family. It is only Mr Swinford who may be compensated for any injury or loss.
8. In my view, the appropriate compensation for the mental and nervous shock Mr Swinford has suffered, his ongoing symptoms and his corresponding loss of enjoyment of life, as described by Dr Laugharne, Mr Ates and Mr Swinford himself, is $35,000.

What additional loss, if any, has Mr Swinford suffered as a result of any compensable injury?

1. The term 'loss' is defined in s 6(2) of the CICA, in the case of a victim who is injured, as meaning, relevantly:

(a) expenses actually and reasonably incurred by or on behalf of the victim -

(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,

(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment the victim is likely to need as a direct consequence of the injury suffered by the victim; or

(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim ...

1. Mr Swinford claims the following additional loss:
   1. Past earnings lost (including interest

1. Report fees $ 3,115.00
2. Future treatment expenses $ 16,260.00
3. Past special loss $ 1,797.85

1. Mr Swinford claims $99,728 for past loss of earnings. In summary, of the $99,728 claimed:
   1. $47,835 represents the difference between Mr Swinford's average earnings for financial years 2012 - 2013 and 2013 - 2014, and his average earnings following the two assaults up to 2016;
   2. $15,769 represents estimated losses of income between 25 January 2018 and 25 January 2021, on the basis it is claimed that Mr Swinford should have been earning the salary of a senior officer rank;
   3. $9,540 interest is claimed calculated at 4% on $63,604, being the sum of (1) and (2) above;
   4. $6,583 represents superannuation contributions at 9% of $73,145, being the sum of (1), (2) and (3) above; and
   5. $20,000 represents a global claim for the loss of the opportunity for a more rapid progression to supervisor, which it is claimed would have yielded a higher income.
2. As stated above, I am not satisfied on the evidence that Mr Swinford's resignation from his position as senior security officer with Wilson Security on 25 February 2015, or all of the past loss of earnings claimed by Mr Swinford were lost as a direct consequence of the injury he suffered as a consequence of the assaults.
3. On the evidence of Dr Laugharne and Mr Ates, Mr Swinford was unfit for work because of his psychological injury between 25 February 2015 and 20 June 2015. He returned to work, albeit for a different employer and in a different capacity on 20 June 2015. I am not satisfied on the evidence before me that he was unable to work in a more senior and more highly paid position because of the injury he suffered. There is no evidence to support that.
4. As such, I find that any award of compensation for past loss of earnings in favour of Mr Swinford should be limited to the loss of earnings for the period he was unfit for work because of the injury suffered, being the period between 25 February 2015 to 20 June 2015.
5. Having regard to the evidence provided as to Mr Swinford's income before he resigned from his position of senior officer with Wilson Security on 25 February 2021 and the calculations provided to the assessor on Mr Swinford's behalf I award $26,000 for past loss of earnings.
6. The award is based on 16.3 weeks loss of net earnings of $1,463.45 per week together with an allowance for superannuation at the rate of 9%.
7. I have not included an amount for interest as there is no applicable statutory provision for interest.

1. Mr Swinford claims a global amount of $25,000 in relation to future loss of earnings.
2. This claim is not supported by the evidence. In Mr Ates' report dated 24 February 2021, he states it is not clinically foreseeable that Mr Swinford is likely to suffer periods of unfitness for work in the future or that his working life or perimeter of employment will be shortened or diminished in the future.
3. I therefore make no award for future loss of earnings.

1. Evidence has been produced in the form of invoices for each of the reports of Dr Laugharne and Mr Ates for which report fees are claimed.
2. I am satisfied that fees totalling $3,115 have been incurred in relation to obtaining those reports and award compensation in that amount.

1. Mr Swinford claims $16,260 for future treatment costs. This is made up of:
   1. $1,200 for the cost of a trial of anti-depressant medication recommended by Dr Laugharne in his 2017 report at a cost of $50 per month for two years; and
   2. $15,060 in respect of future psychology sessions 12 times a year for the next five years at a cost of $251 per session recommended by Mr Ates in his February 2021 report.
2. There is no evidence that the recommendation made by Dr Laugharne in 2017 is still extant or that any such medication is likely to be required or as to the cost of it. As such, I make no award in respect of this.
3. Based on Mr Ates' February 2021 report as to Mr Swinford's future treatment needs, I award an amount of $12,550 for future psychology sessions. This is based on Mr Swinford attending 10 sessions per year for five years. Payment of the amount awarded in relation to such future treatment expenses will be subject to the requirements in s 48 of the CICA being satisfied.

1. Mr Swinford claims a total of $1,797.85 for past special loss of $717.85 for general practitioner treatment and $1,080 by way of reimbursement to Medicare for Mr Ates' treatment of $1,080.
2. There is no evidence that Mr Swinford has incurred any expenses himself for which he is entitled to compensation under s 6 of the CICA.
3. I therefore make no award in respect of this head of claim.

1. For the reasons stated, I allow the appeal, and vary the award of the assessor increasing the compensation award in favour of Mr Swinford from $12,505 to $76,665, made up as follows:
   1. Compensation for Mr Swinford's injury $ 35,000.00
   2. Past loss of earnings $ 26,000.00
   3. Report fees $ 3,115.00
   4. Future treatment expenses $ 12,550.00

Criminal Injuries Compensation Act 2003)

1. The award of $76,665 is the total amount awarded in respect of both alleged offences and both compensation applications.
2. In relation to costs, submissions were made on behalf of Mr Swinford to the effect that the amicus curiae, the Chief Executive Officer of the Department of Justice, has constituted himself as a party to the appeal or at least an intervenor and should be treated as such on the question of costs.
3. Subject to hearing from counsel in relation to costs:
   1. I am not satisfied there is any reason to depart from the usual order for costs in relation to an appeal of this kind - that there be no order as to costs;
4. the amicus curiae is not an unsuccessful party to the appeal and performs a role that would not otherwise be performed;[33] and
5. I am not satisfied there is any basis for making any costs against the amicus curiae.
6. I will hear from the parties in relation to the final form of the orders and in relation to costs.

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

[1] CICA s 17(1).

[2] CICA s 17(2).

[3] CICA s 34(2).

[4] CICA s 55(3).

[5] CICA s 53(3).

[6] CICA s 56(2)(b).

[7] CICA s 56(1).

[8] See for example, Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13]; Selimoski [2012] WADC 30 [17]; JY [2013] WADC 187 [5]; Dunne [2014] WADC 131 [34]; Re Farmer [2015] WADC 91 [13].

[9]See for example, Re Piggott [2017] WADC 150 [10]; CME [2018] WADC 69 [10]; DR v CD [2018] WADC 148 [10] - [16]; Guy v Hampson [2019] WADC 19 [14].

[10] CICA s 56(1).

[11] Underwood v Underwood [2018] WADC 13 [36] (Gething DCJ); Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).

[12] Underwood v Underwood [37]; Taylor v Paindelli [2016] WADC 160 [7] (McCann DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ).

[13] CICA s 30 and s 56(2).

[14] CICA s 3.

[15] CICA s 31.

[16] S v Neumann (1995) 14 WAR 452, 463 (Murray J); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); Underwood [19], [30] (Gething DCJ).

[17] B v W (1989) 6 SR (WA) 79, 89.

[18] CICA, s 3 and s 6; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974) [3] (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14 [12] (Stone DCJ); Underwood [113].

[19] Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann (463) (Murray J); Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [21]; Re AK [2016] WADC 156 [71] (Schoombee DCJ); Martin v Martin [2015] WADC 138 [82] (Derrick DCJ).

[20] S v Neumann (463) - (464) (Murray J); Martin v Martin [83] (Derrick DCJ). See also VPAN [2011] WADC 40 [83].

[21] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; MJN v MAJS [2003] WACC 9; (2003) 143 A Crim R 375 [52]; TAW v NJS [2011] WADC 187 [83] (Sweeney DCJ).

[22] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613; Fagan v Crimes Compensation Tribunal; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; MJN v MAJS [51]; CKM [2008] WADC 79 [136] - [145]; TAW v NJS [84].

[23] Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pulling & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71]; Underwood [117].

[24] CICA s 56(2)(a).

[25] Dos Santos v Dos Santos [2000] WADC 256 [13].

[26] Re Robinson [2017] WADC 18 [22].

[28] S v Neumann (461) (Murray J).

[29] M v J and J v J (11) (Scott J).

[30] Fagan (673) (Mason & Wilson JJ).

[31] McDavitt v McDavitt [No 2] [2013] WADC 198 [24] - [54].

[33] See WHW v Commissioner of Police [2014] WASCA 153(S) [13].