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Tuesday, 15 March 2011

'As soon as practicable'

It's a useful phrase. It doesn't mean I'll do it now and it doesn't mean I'm never going to do it. The beauty (and vice) lies in nobody knowing exactly what it means.



In Legal Services Board v Werden [2011] VSC 74 the defendant, a solicitor who had ripped off his clients, successfully resisted an application by the Legal Services Board for a compensation order under Part 4 Division 2 of the Sentencing Act 1991.



Section 86 reads,



86. Compensation order



(1) If a court finds a person guilty of, or convicts a person of, an offence
it may, on the application of a person suffering loss or destruction of, or
damage to, property as a result of the offence, order the offender to pay any
compensation for the loss, destruction or damage (not exceeding the value of
the property lost, destroyed or damaged) that the court thinks fit.




Section 86(5)(a) provides that the application may be made on an application made as soon as practicable after the offender is found guilty, or convicted, of the offence.



In Werden the Legal Services Board waited 2 1/2 years between sentencing and application. This wasn't laziness on the part of the LSB. They submitted (and the Court accepted) that it's their practice not to apply for compensation orders where their information is that the subject doesn't have the ability to pay. In this case, they only found out recently that the defendant might have some money.



The defendant argued the application had not been made as soon as practicable after the conviction on the criminal charges.



Beach J rejected the LSB's claim that the use of may meant that s 86(5) was not a limitation provision [at 60]:



60 The plaintiff submitted that s 86(5)(a) was not a limitation provision. I reject this submission. In Taylor v Vukovic [2000] VSC 29 Eames J held that s 86(5)(c) was a limitation provision. I respectfully agree with this conclusion. Whilst the version of s 86(5)(a) considered by Eames J in Taylor contained the words “(and, in the case of an application for compensation for pain and suffering, no later than six months)” after the word “practicable”, the subsequent deletion of these words did not change the character of the provision. Section 86(5)(a) has (as the explanatory memorandum relating to it also suggests) always been a provision of limitation, requiring an application to be made as soon as practicable after a finding of guilt or conviction.




Some room for wiggle exists in the word practicable. Beach J reaffirmed that each case must be considered on its own merits. But he was persuaded that there were grounds for rejecting an application brought years after the offender has been convicted and sentenced, even where the delay is capable of explanation.



The compensation proceeding was dismissed.

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