Allen v. Stewart - [2007] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

Allen v Stewart [2007] QDC 119

PARTIES:

JAY DANIEL ALLEN (Applicant)

V

JOSEPH BAIN STEWART (Respondent)

FILE NO/S:

519/07

DIVISION:

Civil jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2007

JUDGE:

Tutt DCJ

ORDER:

The respondent pay to the applicant the sum of $24,975.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Brisbane on 9 November 2004.

CATCHWORDS:

CRIMINAL COMPENSATION – grievous bodily harm – where applicant punched in the head – where applicant suffered head and facial injuries – where applicant suffered mental or nervous shock – where applicant’s actions contributed in part to his injuries.

Criminal offence Victims Act 1995 ss 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

COUNSEL:

Mr L. Leotta for the applicant.

No appearance for the respondent.

SOLICITORS:

Sciacca’s Lawyers & Consultants for the applicant.

Introduction:

In this application Jay Daniel Allen (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of Joseph Bain Stewart (“the respondent”), who was convicted by the District Court at Brisbane on 9 November 2004 for the offence of grievous bodily harm to the applicant on 1 January 2003 at Maroochydore in the State of Queensland.

In accordance with the order for substituted service made by this court[1] on 30 March 2007, the applicant’s solicitors caused an advertisement to appear in the Public Notices section of The Courier Mail newspaper on 3 April 2007 to effect service on the respondent of the material before the court. Despite that publication there was no appearance by or on behalf of the respondent at the hearing.
[1] See affidavit of Amelia Anne Gaffy filed by leave on 30 March 2007.

The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

(a) the affidavit with exhibits of the applicant sworn 11 January 2007 and filed in this court on 22 February 2007;

(b) the affidavit with exhibits of Amelia Ann Gaffy, solicitor, sworn 21 February 2007 and filed in this court on 1 March 2007;

(c) the further affidavit with exhibit of Amelia Ann Gaffy, solicitor, sworn 29 March 2007 and filed by leave in this court on 30 March 2007;

(d) the further affidavit with exhibit of Amelia Ann Gaffy, solicitor, sworn 21 May 2007 and filed in this court on 21 May 2007;

(e) the affidavit with exhibit of John Andrew Cosson, medical practitioner, sworn 12 February 2007 and filed in this court on 22 February 2007;

(f) the affidavit with exhibit of Dean Powell, medical practitioner, sworn 20 February 2007 and filed in this court on 22 February 2007;

(g) the affidavit with exhibit of Barbara Anne McGuire,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QDC 119
Decision Date: 25 June 2007

CaseChat Overview and Summary

The case of Allen v. Stewart involves an application for criminal injury compensation filed by the applicant, who suffered grievous bodily harm inflicted by the respondent. The applicant was punched in the head, resulting in head and facial injuries, as well as mental or nervous shock. The applicant’s actions contributed in part to his injuries. The matter was heard in the Queensland Court of Appeal. The court was tasked with determining the appropriate amount of compensation to be awarded to the applicant, considering the injuries suffered and the respondent’s contribution to the incident.

The primary legal issue was the extent of the applicant's entitlement to compensation, taking into account his contributory negligence. The court had to assess the severity and impact of the injuries, as well as the degree of the applicant’s contributory fault. The court also needed to decide whether the respondent’s actions warranted the full compensation amount or if it should be reduced based on the applicant's own actions. The court examined the evidence provided and the applicable legal principles concerning criminal injury compensation and contributory negligence.

In its decision, the court held that the injuries suffered by the applicant were severe and warranted compensation. However, it also found that the applicant had contributed to his injuries, which reduced the amount of compensation he was entitled to receive. The court awarded the applicant $24,975.00, reflecting a reduction from the full amount due to the applicant's contributory fault. The court concluded that this amount appropriately balanced the severity of the injuries and the applicant's role in the incident.

The court ordered the respondent to pay the applicant $24,975.00 as compensation for the injuries caused by the respondent. This amount was determined after considering the full extent of the injuries and the degree of the applicant's contributory negligence. The court's decision provided clarity on the principles of criminal injury compensation and the impact of contributory negligence on the compensation awarded.

Orders

Orders of the court

The respondent pay to the applicant the sum of $24,975.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Brisbane on 9 November 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Allen v Stewart [2007] QDC 119
PARTIES:	JAY DANIEL ALLEN (Applicant) V JOSEPH BAIN STEWART (Respondent)
FILE NO/S:	519/07
DIVISION:	Civil jurisdiction
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	25 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2007
JUDGE:	Tutt DCJ
ORDER:	The respondent pay to the applicant the sum of $24,975.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Brisbane on 9 November 2004.
CATCHWORDS:	CRIMINAL COMPENSATION – grievous bodily harm – where applicant punched in the head – where applicant suffered head and facial injuries – where applicant suffered mental or nervous shock – where applicant’s actions contributed in part to his injuries. Criminal offence Victims Act 1995 ss 24, 25(6) and (7) and 31. Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:	Mr L. Leotta for the applicant. No appearance for the respondent.
SOLICITORS:	Sciacca’s Lawyers & Consultants for the applicant.