Re Applications By Roslyn Joyce and Elton Louise Joyce By Their Next Friend Olive Emma Joyce and Re the Criminal Injuries Compensation Ordinance 1983 Cic [1988] ACTSC 4 (11 February 1988)

SUPREME COURT OF THE ACT

IN THE MATTER OF APPLICATIONS BY ROSLYN JOYCE and ELTON LOUISE JOYCE by their
next friend OLIVE EMMA JOYCE
AND IN THE MATTER OF THE CRIMINAL INJURIES COMPENSATION ORDINANCE 1983
CIC No. 65 of 1987
CIC No. 67 of 1987
Criminal Law

COURT

IN THE SUPREME COURT OF AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - criminal injuries compensation - applicant claims on behalf of her daughter and granddaughter - daughter was defacto spouse of deceased - granddaughter was child of deceased born after death - both minors at time of application - meaning of "dependants" - comparison with Lord Campbell's Act provision - limit on aggregate amount of compensation - Criminal Injuries Compensation Ordinance 1983 ss. 2, 5, 7 and 15.

HEARING

CANBERRA
11:2:1988

ORDER

Compensation be awarded to Roslyn Joyce in the sum of $15,000.

Compensation be awarded to Elton Louise Joyce in the sum of $5,000.

DECISION

This is an application for compensation pursuant to s.5 of the Criminal Injuries Compensation Ordinance 1983. The applications are brought on behalf of Roslyn Joyce and Elton Louise Joyce. The applicant is the mother of Roslyn Joyce and the maternal grandmother of Elton Louise Joyce.

2. Roslyn Joyce was born on 21 February 1970 in Auckland, New Zealand. Elton Louise Joyce was born at Royal Canberra Hospital on 18 December 1986. The criminal conduct relied upon was the murder by a man called Alfred Charles Brown of Darryl Tony Burgess on 25 July 1986. Brown was convicted of the murder of Darryl Tony Burgess in the Supreme Court of the Australian Capital Territory on 11 February 1987, and an appeal to the Federal Court of Australia against the conviction was dismissed by that Court on 18 December 1987. I am satisfied that Darryl Tony Burgess died as a result of blows to the head which were inflicted upon him by Brown.

3. The present claims are brought under s.5(2)(b) of the Ordinance. It is alleged that the persons on behalf of whom the claims are made were "dependants" within the meaning of the section. The word dependant is defined in s.2 as follows:

"2.(a) a person who was wholly or partly dependent

for economic support upon the deceased person
at the time of the death of the deceased person,
or who would have been so dependent but for an
incapacity of the deceased person due to the
prescribed injury; or

(b) a child of the deceased person born after
the death of the deceased person who, if he had
been born before that death, would have been, or
would but for that incapacity have been, so
dependent."

4. Roslyn Joyce lived as the de facto wife of the deceased for some time prior to the date of death. There was some sort of relationship for a period of about two years before the death. The applicant described the two as "inseparable". Roslyn Joyce left school at the age of 16, which must have been at the time she commenced the relationship. When she became pregnant she asked her mother for permission to marry. A notice of intended marriage was given to an authorised celebrant on 24 July 1986 and on the same day the time for notice was shortened by a prescribed authority to allow the marriage to take place on 23 August 1986.

5. I am satisfied on the evidence that the deceased was the father of Elton Louise Joyce. In fact the birth certificate shows her name as Elton Louise Burgess Joyce. Apparently the officers in the Registry took the attitude that the surname Burgess could not be registered unless the parties had been married or there was some court order in the nature of a declaration of paternity.

6. I am satisfied that Roslyn Joyce was a dependant of the deceased in that she was partly dependent for economic support upon him at the time of the death. I am further satisfied that Elton Louise Joyce was a child of the deceased person born after his death who, if the child had been born before that death, would have been so dependent.

7. It is obvious from the definition of dependant in the Ordinance that the benefits of the Ordinance are intended to apply to a wider range of persons than those traditionally entitled to bring actions for wrongful death under the equivalent of Lord Campbell's Act. Although it has been said on occasions that an assessment of compensation under legislation elsewhere similar to the Ordinance is to be approached as if it were an action for damages, I think that the analogy breaks down in the case of an application for compensation by a dependant under the Ordinance. Not only is the category of persons to whom the benefits are available much wider, but compensation is to be assessed after taking into account the matters set out in s.15 of the Ordinance. Many of those matters are irrelevant to an assessment of loss of support under Lord Campbell's Act, and some of them indeed are matters which by law may not be taken into account in assessing the value of loss of support under that Act.

8. I deal first with the application brought on behalf of Roslyn Joyce. I am satisfied that she would probably have married the deceased if he had not been murdered. In these days, and having particular regard to the background of the relationship, it is not to be presumed, in my view, that that marriage was likely to have lasted the joint life of the two parties, assuming each of them to have lived a normal lifespan. Nor is it to be presumed that Roslyn Joyce would have lived the whole of her life without gainful employment in the usual sense. I think it likely that after the child was somewhere between five two ten years, Roslyn Joyce would have gone out to work and that she would have continued in employment which could only be assessed at this juncture as sporadic. Although the deceased and Roslyn Joyce lived together in the applicant's home, it was likely that they would have gone out and established a home of their own within a few years of the death. At the date of death the deceased was a high earner, bringing in $611 net per week from his occupation which is undefined but which had something to do with the building trade. He paid only $50 to $60 per week for rent in the applicant's home during such time as he lived there. What arrangements were made for meals and the like is not disclosed. Despite his high earnings Roslyn Joyce was apparently short of money and her mother, who does not appear to be a person of substance, helped her out "with a dollar here and a dollar there". Assuming that the couple would have purchased a home on mortgage, I think that the likely contribution by the deceased to the support of Roslyn Joyce would have been at least $200 a week in the initial stages of the marriage.

9. As far as the child is concerned, the novel feature of the case is, of course, that she was born after the date of the death. Nevertheless, I find that she was a dependant in that if she had been born before the death, she would have been dependent upon the deceased for economic support. The question arises, however, as to how long she would have been so dependent. To answer that it is, of course, not possible to look at her age as at the date of death. Application of common sense and a beneficial construction of the Ordinance, I think, leads to the conclusion that the assessment of loss of value of support should assume a commencing date of the actual birth of the child. In the normal course of events it would involve a period of sixteen years or so. The weekly loss is a matter of conjecture but I accept that $25 per week is a proper basis.

10. These two claims are separate claims and are in this respect to be distinguished from the single representative action which is a feature of Lord Campbell's Act. There is little point in attempting to be mathematically precise in assessing the compensation to be paid to the claimant, as it is clear from s.7 that the aggregate compensation which may be awarded in respect of the death of the deceased may not exceed $20,000. Assuming that the pecuniary loss suffered by the child is to be assessed at $25 per week for fifteen years, the present value of that loss on the three per cent discount tables is in excess of $13,000. The pecuniary loss suffered by Roslyn Joyce may be expected to be several times as great. Even taking into account the matters set out in s.15(2) of the Ordinance, particularly the receipt by Roslyn Joyce, on behalf of herself and the child, of a supporting parent's pension of $282.30 per fortnight, it is obvious that the pecuniary loss suffered by the two applicants must in the aggregate exceed $20,000. The aggregate award of compensation must therefore be limited to that figure. Neither Roslyn nor Elton Louise has, nor claimed, priority over the other. No authority was cited or is known to me on the question of how the aggregate sum is to be distributed in these circumstances. However, s.15(2) of the Ordinance requires the Court in determining the amount of compensation to have regard, inter alia, to "(i) such other circumstances as the Court thinks relevant." I think it is relevant that both Roslyn Joyce and Elton Louise Joyce are minors but that, as the wife of the deceased, Roslyn Joyce would have expected financial support in a greater sum and for a longer time than the baby daughter. On the other hand, the uncertainties of the marriage and the prospects of remarriage must also be taken into account. In all the circumstances, I think it appropriate to award $15,000 to Roslyn Joyce and $5,000 to Elton Louise Joyce. Unless I can be convinced that some other order is appropriate I propose to order that these sums be paid into Court to be paid out to the Public Trustee for him to deal with them on behalf of Roslyn Joyce and Elton Louise Joyce respectively in accordance with his statutory duty.