PARTIES: PUBLIC TRUSTEE OF THE NORTHERN TERRITORY
v
THE NORTHERN TERRITORY OF AUSTRALIA
V
NIGEL JABALTJARI ANDY
TITLE OF COURT: Magistrates Court
JURISDICTION: Crimes Compensation
FILE NO(s): 9710750
#DATE 15:12:2000
DELIVERED ON: 15 December 2000
DELIVERED AT: Alice Springs
HEARING DATE(s):
JUDGMENT OF: Mr Michael Ward SM
Crimes (Victims Assistance) Act - deceased applicant
s11 and s12 Chong v Chong [1999] QCA314, applied.
Prus-Grzybowski v Everingham [1982] 45ALR468 - referred to.
Counsel:
Applicant: Povey Stirk
First Respondent Collier & Deane
Second Respondent
Solicitors:
Applicant: John Stirk
First Respondent Nardine Collier
Second Respondent:
Judgment category classification: C
Judgment ID number: NTMC200113
Number of paragraphs: 20
IN THE LOCAL COURT AT ALICE
SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 9710750
BETWEEN:
PUBLIC TRUSTEE OF THE NORTHERN TERRITORY
Applicant
AND:
THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent
AND:
NIGEL JABALTJARI ANDY
Second Respondent
(Delivered 15 December 2000)
Mr MICHAEL WARD SM
1. Michael Jambajimba Marshall was seriously injured on 26 February 1995 when
he was stabbed in the head with a knife or possibly a screwdriver. He suffered
brain damage. If he were now alive to collect it, the injuries would be worth
an award of damages at common law well in excess of $25,000 for pain and
suffering alone, let alone loss of amenities of life.
2. He commenced an application under the Crimes (Victims Assistance) Act
(hereafter the CVA Act).
3. The applicant however died on 26 June 1998 from causes not associated with
the attack upon him with the screwdriver. He died before the application could
be determined.
4. The question is whether the application for assistance under the CVA
Act survives his death.
5. If this application succeeds and the action survives for the benefit of the
estate what is to prevent a similar application from succeeding in the
following circumstances?
6. A husband injures his wife. This is not an uncommon circumstance. Our
lists are full of serious domestic violence applications. For example this
morning (this was written on 13 December 2000) there were 25 domestic violence
applications in my list. The majority of these applications were for extremely
serious assaults. In one case, the applicant claimed her husband poured petrol
over head and set light to it. She survived by dousing the fire under a tap.
Suppose she brings a claim under the CVA Act. Before the application
can be determined she dies as a result of the injuries. (Such delays between
injury and death are not uncommon. The old murder rule used to allow for death
occurring up to a year and a day after the event). Is it suggested that her
claim survives for the benefit of her next of kin, the person who set her
alight?
7. Suppose that in the present case the deceased's wife inflicted the injury.
Is she to get the benefit of her act?
8. Assume the second respondent is the next of kin of the deceased. Is he to
get the benefit of the certificate and get away with the $25,000?
9. The instances I have given above are by no means far fetched. For the sake
of convenience, I shall call them the `boomerang effect' of a certificate in
favour of the person responsible, because the award could rebound in favour of
that person in the circumstances outlined above. Of course, the Territory has
a right of recovery under Section 21 against the offender in any such case, but
in many cases the money may be dissipated before the action for recovery gets
under way. The Territory may be ignorant of the fact that it is the offender
who is the likely beneficiary in some cases.
10. The only way in which the application can survive is by virtue of the
Law Reform (Miscellaneous provisions) Act (hereafter the LRMP Act).
At common law personal actions die with the person. The LRMP Act
modified the common law provision.
11. The relevant part of the LRMP Act provides as follows:
5. (1) Subject to this Part, on the death of a person...all causes of
action...vested in him survive...for the benefit of his estate.
(2) This section does not apply to causes of action for defamation or seduction
or for inducing one spouse to leave or remain apart from the other or to claims
for damages on the ground of adultery.
12. In the normal course one would think that to the list in subsection (2)
would be added: "or claims for a certificate under the CVA Act". Such
an addition would obviate the need for this exercise. However the first
respondent the Northern Territory argues that this is unnecessary because an
application under the CVA Act is not a "cause of action".
13. Is an Application under the CVA Act a `cause of
action'?
13.1 `Cause of action' is not defined in the LRMP Act. A cause of
action is to be distinguished from the action itself. A cause of action is an
inchoate action, possibly a chose in action (but see Grzybowski v
Everingham (1982) 45 ALR 468 per Toohey and Fisher JJ at 478, to the
contrary). The precise nature of a cause of action is not important.
13.2 The Northern Territory's submissions in reply to the applicant's
submissions cite a case of Chong v Chong [1999] QCA 314. This case held
that an action under the Queensland equivalent of the (NT) CVA Act
is a `cause of action'.
13.3 The case of Chong was a case where the respondent (the offender)
died before the determination of the application for criminal injuries
compensation. The trial judge may have held that the action was not a `cause
of action' which survived the offender's death pursuant to the Queensland
Law Reform (Miscellaneous Provisions) Act. (There appears to be some
disagreement about precisely what the trial judge held). If he did find that
the claim did not survive the offender's death, the Full Court disagreed, and
held that it was a cause of action and did survive the death. It seems to me
that there is no difference in principle where the death is that of the
applicant rather than the respondent.
13.4 In Chong, the Chief Justice said:
The learned district court judge was however dissuaded from that conclusion
[that an application for compensation under the then existing Queensland
legislation was a cause of action] by his view that the appellant was not
"entitled" to succeed, because whether or not compensation was ordered depended
so much on an exercise of the court's discretion.
It is true the section 663B of the Criminal Code was cast in discretionary
terms: `...the court...may order...compensation...' But the scope of
the discretion to decline to order the payment of compensation was
circumscribed. That emerges from section 663B(2), which provided, as relevant,
that in determining whether or not to make an order, the court `shall' have
regard to any behaviour of the person aggrieved `which directly or indirectly
contributed to the injury', and to other relevant circumstances, such as
whether the applicant was a relative of the convicted person, or cohabited with
him. None of those circumstances could, in the present case, have warranted
the court's denying the appellant compensation on discretionary grounds... The
appellant should therefore have been seen as having a `right' to
compensation...
His honour equated her action with a `cause of action'.
13.5 So did his honour McMurdo J.
14. The Northern Territory legislation, couched in the same discretionary terms
as the Queensland legislation, leaves no room for the exercise of discretion
unless sections 11 or 12 are to be invoked. Section 11 merely effects the
discretion on quantum. Here there is no suggestion that sections 11 or 12 are
applicable.
15. The scheme of the Act is to provide assistance to victims of crime by the
award of moneys, in much the same was as victims of torts are compensated by an
award of damages. The Northern Territory does this in a more roundabout way by
the issue of a certificate for the moneys payable. However, once a certificate
is issued, there is no government discretion to decline to pay. This is to be
contrasted with the old legislation, where payment, if any, was ex gratia.
16. If the applicant's contention is correct, it means that the victim will
have got no recompense at all, and the next of kin will get a windfall of
$25,000. I doubt the legislators envisaged this situation.
17. Notwithstanding the absurdity of the situation, I am satisfied that an
application, and indeed the right to bring an application, is a `cause of
action', and survives the death of the applicant for the benefit of his estate.
Contrary to the submission of the first respondent in reply to the applicant's
submissions, paragraph 4, the right invested in an injured person is a right to
bring an application for a certificate, and it invests immediately on
injury.
18. Section 6(c) of the LRMP Act does not apply, because the act or
omission which gives rise to the cause of action did not cause the death of the
applicant. This is conceded in the first respondent's submissions in reply to
the applicant's submissions. The effect of this is that the claim in so far as
it relates to pain and suffering is not extinguished or excepted by Section
6(c).
19. The principles in this case are indistinguishable from the principles
enunciated in Chong.
20. I order a certificate to issue in favour of the applicant for $25,000.