Julian Knight v Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop M
• Judgment Date: 19 December 2014
• Date: 19 December 2014
• Docket Number: File Number(s): SC 262 of 2014

[2014] ACTSC 337

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop M

File Number(s): SC 262 of 2014

Julian Knight

(Applicant)

and

Australian Capital Territory

(Respondent)

Representation:

Counsel:

Self-represented (Applicant)

Mr G McCarthy (Respondent)

Cases Cited:

Abbott v Minister for Lands [1895] AC 425

Attorney-General v Chaffey (2007) 231 CLR 651

Australian Capital Territory v Pinter (2002) 121 FCR 509

Australian Capital Territory v Bullock [1995] ACTSC 63

Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480

Colley v Futurebrand FHA Pty Ltd & Anor (2005) 63 NSWLR 291

Commonwealth v Mewett (1997) 191 CLR 471

Commonwealth v Pillifieant (1990) 93 ALR 64

Frank v Australian Capital Territory (2001) 146 ACTR 15

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297

Health Insurance Commission v Peverill (1994) 179 CLR 226

Jenkins v Territory Insurance Office (2001) 165 FLR 287

Macteldir Pty Limited v Dimovski (2005) 226 ALR 773

National Trustees Executors & Agency Co of Australasia Pty Ltd v Commissioner of Taxation (Cth) (1954) 91 CLR 540

Ruhani v Director of Police (2005) 222 CLR 489

Smith v ANL Ltd (2000) 204 CLR 493

Legislation Cited:

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23

Criminal Injuries Compensation Act 1983 (ACT) ss 2, 10, 11, 28

Interpretation Act 1967 (ACT) ss 3, 41

Supreme Court Act 1933 (ACT) ss 13, 20

Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) s 16

Victims of Crime (Financial Assistance) Act 1983 (ACT) ss 4, 26

Texts Cited:

Starke, Assignments of Choses in Action in Australia (Butterworths, 1972)

JURISDICTION OF COURTS — criminal injuries compensation — whether an application for compensation or an application to extend time to make such an application can only be heard in the Magistrates Court — transitional provisions in Victims of Crime (Financial Assistance) Amendment Act 1999 (ACT) — meaning of ‘undetermined application’ — Criminal Injuries Compensation Act 1983 (ACT) — Victims of Crime (Financial Assistance) Act 1983 (ACT)

CONSTITUTIONAL LAW — TERRITORIES — acquisition of property on just terms — whether entitlement to make application for criminal injuries compensation is property — Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(a)

STATUTES — Operation and effect of statutes — whether the amendment of the Criminal Injuries Compensation Act 1983 (ACT) affected a right, privilege or liability acquired, accrued or incurred under that Act to make an application — whether contrary intention demonstrated

1 By application dated 10 June 2014, Julian Knight has sought compensation under the Criminal Injuries Compensation Act 1983 (ACT) in relation to injuries alleged to have been suffered when:

• (a) in February 1987, he was punched twice in the stomach by a senior Staff Cadet during an exercise known as ‘leaps and jumps’ at the Royal Military College, Duntroon and suffered bruising;

• (b) on 17 March 1987, he was assaulted by a number of senior Staff Cadets at the Royal Military College, Duntroon during an instance of what is described as ‘bishing’ and suffered damaged ligaments in his left wrist;

• (c) on 31 May 1987 he was assaulted by a number of senior Staff Cadets at a venue known as the ‘Private Bin Nightclub’ in Civic and suffered a broken nose.

2 Further, by application in proceeding filed 10 June 2014, Mr Knight has sought an order that he be granted an extension of time within which to lodge his criminal injuries compensation application.

3 The proceedings were docketed to me by the Deputy Registrar on 20 June 2014.

4 By application in proceeding filed 12 August 2014, the Australian Capital Territory seeks an order that the proceedings be dismissed for want of jurisdiction.

5 The Criminal Injuries Compensation Ordinance 1983 (ACT) came into effect on 30 June 1983. Upon self-government it became an Act: Australian Capital Territory (Self-Government) Act 1988 (Cth) (‘ Self-Government Act’) s 34. I will refer to it as the “ CIC Act”. The Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) substantially amended the CIC Act and also changed its name to the Victims of Crime (Financial Assistance) Act 1983 (ACT). I will refer to the Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) as the “ Amending Act”. I will refer to the Act post-1999 as the “ VOC Act”.

6 The VOC Act gives jurisdiction to the Magistrates Court to deal with applications for compensation under the Act: s 26. The CIC Act gave jurisdiction to the Supreme Court, the Magistrates Court or the Registrar of the Supreme Court to determine applications under the Act. In the circumstances of this case, namely, where no proceedings were instituted in relation to the relevant offences, the CIC Act gave power to the Registrar of the Supreme Court to determine the application. The Territory contends that the VOC Act applies and hence only the Magistrates Court could have jurisdiction to consider an application by Mr Knight.

Facts

7 The affidavit read in support of the Territory's application to have the proceedings dismissed discloses the following facts.

8 Mr Knight filed an application under the VOC Act in the ACT Magistrates Court seeking leave to extend the time for filing an application for assistance.

9 That application was made returnable on 27 May 2014.

10 On 27 May 2014, a solicitor employed by the ACT Government Solicitor wrote to Mr Knight referring to discussions that occurred during the Magistrates Court hearing on 27 May 2014 and attaching copies of the CIC Act and Amending Act. The letter provided:

As at 1987, when you allege the criminal acts for which you seek compensation occurred, the relevant Act under which you should bring your application was the CIC Act.

This Act was amended by the VOC Amendment Act in December 1999.

However the decision in Pinter v ACT [2002] FCAFC 186 (‘ Pinter’) overruled those amendments contained in the VOC Act which sought to impose the regime and entitlements which accrue under the VOC Act upon applications:

which had been commenced after 23 June 1998;

with respect to events which had occurred prior to that date.

I understand you are aware of that decision.

Section 16(1) of the VOC Amendment Act provides that the CIC Act continues to apply in relation to such applications.

The CIC Act at sub-section 11(3) provides that applications under the CIC Act are to be determined by the Registrar of the Supreme Court where, in respect of the relevant offence said to give rise to the injury for which compensation is claimed, no indictment has been presented or information laid.

It is clear that the alleged offences for which you seek compensation were never the subject of an indictment or information.

Thus the Registrar of the Supreme Court is the person with the power to determine your application.

Please let me [and] the court know at your earliest convenience whether you intend to withdraw your application and, if you so desire, reissue same out of the Supreme Court.

11 On 17 June 2014 the solicitor from the ACT Government Solicitor wrote again to Mr Knight referring to discussions apparently occurring on 17 June 2014 during a hearing before the ACT Magistrates Court. At that stage, the Supreme Court proceedings had been filed but not served. The letter said:

In an earlier hearing I had submitted that the proper venue for your application was in the Supreme Court having regard to the provisions of the Criminal Injuries Compensation Act 1983 as it stood in 1987.

This view is not without doubt as that Act has been significantly amended on a number of occasions.

It might be preferable, prior to you withdrawing your application to the Magistrates Court, if the Supreme Court were to rule as to what is the correct venue. That way if the Supreme Court rules it is the correct venue then your application to the Magistrates Court can be withdrawn. On the other hand if the Supreme Court were to rule that the Magistrates Court is the correct venue then you could pursue that application.

Please let me know if you agree with this approach.

12 By 30 July 2014 a different solicitor had taken over carriage of the matter at the ACT Government Solicitor and wrote to Mr Knight on that day including the following:

The Territory has reconsidered the effect of the amendments to the Criminal Injuries Compensation Act 1983 introduced by the Victims of Crime (Financial Assistance) Amendment Act 1983 (the Amending Act) and contrary to the view expressed in our letter dated 27 May 2014, our position is that the transitional provisions of the Amending Act mean that the Magistrates Court has exclusive original jurisdiction in relation to your application. As a consequence, it is our view that the Magistrates Court is the correct venue for the determination of your application for an extension of time.

If you agree with this approach, you can discontinue your Supreme Court proceedings by filing a notice of discontinuance (Form 2.37) in the Supreme Court ( enclosed) under rule 1160 of the Court Procedures Rules 2006 (ACT). I note that your application is listed in the Magistrates Court on 26 August 2014 for mention at 10 am. On that occasion, the Territory will seek a hearing date for your application to extend time to be heard.

It is incumbent upon you, as the applicant, to decide which Court to pursue your application. For the reasons outlined above, if you press your application in the Supreme Court, the Territory will oppose your application on the basis that the Supreme Court has no jurisdiction. Please advise me of your intention in this regard.

13 On 7 August 2014 Mr Knight responded saying

In relation to your view that the matter of In the matter of Julian Knight (ACT Case No SC 262...