Re An Application Under the Criminal Injuries Compensation Act 1983 and Mt [1996] ACTSC 34 (26 April 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and MT
No. CIC76 of 1996
Number of pages - 3
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Practice and Procedure - Application for Extension of Time - Criminal Injuries Compensation Application.

Criminal Injuries Compensation Act 1983 (ACT), s.10(2), s.10(3)
Limitation Act 1985 (ACT), s.36

A v D (unreported, Supreme Court of the ACT, Miles CJ, 20 September 1995)
Gibbs v Commonwealth (unreported, Supreme Court of the ACT, Higgins J, 8

December 1995)
Ives v ACT and Anor (unreported, Supreme Court of the ACT, Higgins J, 8 December 1995)
S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

HEARING

CANBERRA, 12 April 1996
26:4:1996

Counsel for the Applicant: Mr Z Gabriel

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr R Bayliss

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The time for lodgment of an application for criminal injuries
compensation by the applicant be extended to 10 May 1996.
2. The publication of any particulars likely to lead to the
identification of the applicant or the assailant is prohibited.

DECISION

MASTER T CONNOLLY This is an application to extend the time available for the applicant to lodge an application for criminal injuries compensation. The matter came before me by way of a Notice of Motion.

2. The applicant was the victim of a criminal assault on 4 May 1990. The alleged assailant was charged and has been committed for trial in this Court in February 1992, but the matter has not been determined because the alleged assailant faced a charge of murder. The alleged assailant has subsequently been convicted of murder on an unrelated incident. The applicant, in her affidavit, claims that due to her fears of the assailant she changed her name from her name at the time of the incident to her present name. She says that she was under the impression that a conviction was necessary before an application for compensation could be made.

3. The applicant further states in her affidavit that she did not take the matter of criminal injuries compensation further because she knew that the assailant was at large on bail in relation to the matter for which he was eventually convicted of murder, and

"...as such I was fearful of him and did not make a claim for
compensation for fear of my life."

4. The applicant spoke with her solicitor in December 1995 and received the correct advice that an application for compensation could be brought without a conviction having been recorded.

5. The assault occurred on 4 May 1990. The Criminal Injuries Compensation Act 1983 (s.10(2)) requires that an application

"...shall be lodged within the period of 12 months commencing on the
date on which the relevant prescribed injury or damage was sustained"

unless an order under s.10(3) has been made. Section 10(3) of the Act provides:

"The court may, on application made at any time (whether before or
after the expiration of the period referred to in subsection (2))
extend the time for the lodging of an application if the court
considers it just to do so."

6. In the hearing before me on the Notice of Motion Counsel for the applicant laid particular stress on the applicant's fear of the assailant. Counsel for the Australian Capital Territory did not take issue with this, although he did submit that some caution needs to be exercised in extending time where the only issue is alleged incorrect advice as to an applicant's eligibility under the Act.

7. Unlike the Limitation Act 1985 the Criminal Injuries Compensation Act does not lay down specific criteria to be taken into account by a court in deciding whether to extend the time available for making an application. Nevertheless Counsel suggested that assistance could be found in the general principles applied by courts in applications to extend the period for bringing civil proceedings under the Limitations Act.

8. In considering this application I have had regard to a number of unreported decisions of this Court (A v D, Miles CJ, 20 September 1995, Gibbs v Commonwealth, Higgins J, 8 December 1995, Ives v ACT and Anor, Higgins J, 8 December 1995) together with the decision of the Full Federal Court in S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380.

9. In that case Gallop J noted that the "just and reasonable" test under s.36 of the Limitation Act means "fair and reasonable".

10. It is clear that this is a discretionary judgment, but that the applicant bears the onus of showing that it is just, that is fair and reasonable in all the circumstances, to extend time. The factors set out in the Limitation Act (s.36), while not expressly relevant to s.10(3), are nonetheless appropriate touchstones for determining the fairness of an application for an extension of time in the criminal injuries context.

11. The first factor is length of time and reason for delay. The plaintiff has waited for some 5 1/2 years after the assault to commence a claim, for which two reasons are provided - a genuine fear of the assailant, and a misconception as to her entitlements.

12. I would be most hesitant to grant an extension if the only basis for the application was a misconception as to entitlement, but on the basis of the affidavit I accept the applicant has been in very genuine fear of the assailant, and that this provides an appropriate reason for delay.

13. Prejudice to the defendant, which is the second criteria, in this context must relate to the ability of the Territory to seek properly to involve itself in any hearing. No such prejudice was suggested in this case, nor can it be said that the defendant (in the guise of the Territory) has contributed to any delay.

14. The "duration of the disability" criteria seems neutral in this case; as the applicant gives a fairly precise picture of the extent of her injuries.

15. The applicant is able to show that she has acted promptly to seek an extension of time once she has become aware of her entitlement.

16. This application must turn on the facts of the applicant's fear of the assailant as a legitimate explanation for her failure to bring a claim within time, and as a sound reason why, as a matter of justice, she should be granted an extension. There is no prejudice claimed by the Territory. I would however like to make it clear that, had the applicant's only ground been the claim that at some earlier time she had been misinformed about her entitlement to bring an application, I would be more reluctant to grant an extension of time to allow a claim to be brought 5 1/2 years after the incident when the Act requires a 12 month limitation period, particularly is any prejudice was able to be shown in the ability of the Territory to properly involve itself in the proceedings.