25 September 2020: Prison Abuse and the Quarantine of Compensation

Angela Sdrinis Legal represents people who have suffered an injury in prison, whether as a result of abuse, assaults or accident caused by negligence.

If the plaintiff (a prisoner or former prisoner)1 is awarded damages of greater than $10,000, the defendant institution must seek Court approval2 to hold the compensation in the Prisoner Quarantine Fund for a period of 12 months following the publication in the Government Gazette regarding the payment. The purpose of the Quarantine Fund is to provide access to justice for any victim and/or creditor of the plaintiff to make a claim and recover damages from the Quarantine held compensation.

PART 9C of the Corrections Act 1986 (Vic)  

The Court may order that compensation be quarantined per Part 9C of Corrections Act (“the Act”).  Part 9C was subject to a legislative amendment that came into effect on 24 September 2008.

The Court will consider the following factors when granting approval:

  1. Whether the plaintiff is a prisoner or former prisoner at the relevant time
  2. Section 104T of the Act is complied with;3 and
  3. The Court may only approve the agreement if the amounts specified for medical costs and legal costs are appropriate,4 having regard to:
    1. The claim;
    2. The loss or damage suffered by the prisoner;
    3. The need to ensure as far as possible that victims are not deprived of an opportunity to enforce a successful claim for damages against the prisoner.

Does PART 9C apply to historical abuse cases?

Angela Sdrinis Legal recently brought two cases before Ierodiaconou AsJ in the Supreme Court of Victoria, on the issue whether Part 9C of the Act applies to claims made by former prisoners, whose period of incarceration was served prior to the 24 September 2008 amendment, and whose claim settled after the amendment came into effect.

Ierodiaconou AsJ ruled that Part 9C applies to claims made by a former prisoner whose period of incarceration was served prior to the relevant amendment coming into effect. Therefore, Part 9C applies to historical abuse cases. Her Honour stated that the operative date is that of the “award of damages” (the signing of the Deed of Release) or the date in which proceedings have been issued and not the date of imprisonment. 

Is “remand” a loophole to Part 9C?

Section 9C applies to prisoners and former prisoners, that is, there must be an order of imprisonment by way of a warrant or ministerial order. It is an argument for the plaintiff that if only held in remand, and not formally made a prisoner, Part 9C of the Act does not apply, and compensation does not become subject to the Quarantine Fund.

Are quarantine funds automatically paid out to the Plaintiff’s victim or creditor?

No. Although registered victims may be notified, the onus falls on the victim or creditor to make an application to withdraw Quarantine held funds.

Although the Quarantine Fund is an interest-bearing account, Keogh J voiced concern that “Part 9C operates to cause very significant interference with the common law rights of a prisoner”.5 Plaintiff lawyers must turn their minds to an apportionment of compensation if the claim includes a combination of prison and other institutional abuse, noting that damages awarded for abuse suffered during incarceration may be drawn from by the plaintiff’s creditors, VOCAT claim, or other claim brought by the plaintiff’s victim(s). Additionally, the plaintiff will suffer the delays associated with obtaining court approval and feeling as if sentenced to a further 12-month term, before due compensation is released unfettered by further conditions and orders.

By Zoe Papageorgiou and David Longano
Solicitors at Angela Sdrinis Legal

 


[1] Corrections Act 1986 (Vic), s 104O.

[2] Corrections Act 1986 (Vic), 104S.

[3] An award of damages must include a break down of existing and future medical costs and legal costs.

[4] Corrections Act 1986 (Vic), s 104U.

[5] Goodenough v State of Victoria (2017) 53 VR 670, 672-673.

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