From 18 May 2020, Chapter 21 (Part 3) of the Uniform Civil Rules 2020 governs the civil procedure for making a claim for criminal injuries compensation in the District Court of South Australia.
For the purposes of the Rules, a criminal injuries compensation action is defined as an action instituted under:
Injury claims must normally be made within three years of the date of the offence. Extra time may be available if the victim is unable to manage his or her own legal affairs because of mental incapacity.
Death claims must be made within twelve months of the death of the victim.
Late claims can be made if the court allows them, but it is best to get legal advice well before the time limit runs out. If a victim has a claim but time has run out, they should seek legal advice about an extension.
See also Children and young people.
Legal advice – risks of unsuccessful claims
Victims seeking compensation for criminal injuries should get legal advice. The cost of a successful claim is limited by law and is generally paid by the Fund. The victim, however, bears the cost of an unsuccessful claim unless there is some other arrangement with the lawyer. A lawyer can usually tell the victim at an early stage whether their claim is likely to succeed or not.
Steps in making a claim
The first step in making a claim is to send the Crown Solicitor the information and documents required by law [see Victims of Crime (Statutory Compensation) Regulations 2019 (SA) Parts 1 and 2]. This includes:
If the claimant has a lawyer, they will collate and prepare the application.
The Crown considers this information and, if the claim is accepted, can negotiate a payment with the victim or the victim’s lawyer. Many cases are resolved without going to court and without the victim having any further contact with the offender.
If the claim is not settled
If the claim is not settled between the claimant and the Crown Solicitor within three months, an application for compensation can be issued in the Criminal Injuries Division of the District Court [s18(5)]. The State of South Australia and the offender (if known) are defendants to this action. It will proceed to trial unless the parties agree on some other result.
The Crown Solicitor may disclose to a victim any information concerning the whereabouts of an offender for the purpose of facilitating service of documents on the offender [s 34A]. However, the court may exempt the claimant from the requirement to serve a copy of the application on the defendant, in which case the defendant does not become a party to the proceedings [s 19(3)(b)].
An application to the court must be made either within the initial application period (i.e. 3 years from the date of the offence) or within 6 months immediately after the negotiation period has ended. Whichever is the later of these two dates will be the deadline by which the application must be lodged [s 18(6)]. The court may extend this limitation period “for any proper reason”.
A party dissatisfied with a decision of the Court can appeal to the Supreme Court within 21 days (or any longer period the Court allows).