AMT v TMT - [2004] QDC 155

DISTRICT COURT OF QUEENSLAND

CITATION:

AMT v. TMT [2004] QDC 155

PARTIES:

AMT (Applicant)

v.

TMT (Respondent)

FILE NO/S:

5724/01

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

Hoath DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – Compensation – Where application brought out of time.

LIMITATIONS – Extension of time – where application for criminal compensation filed eight months after the limitation period expired – where applicant had suffered headaches, shame, feelings of guilt and fear – where applicant had told this to her psychologist – where the only result of the psychologist’s examination was that the applicant was informed that the symptoms she was suffering could be psychiatrically classified as post-traumatic stress disorder – whether this was a “material fact of a decisive character.”

Limitations of Actions Act 1974 s 31(2).

Criminal Offence Victims Act 1995 s 41.

Criminal Offence Victims Regulation 1995 reg 1A(2)

Moriarty v Sunbeam Corporation Limited (1998) 1 Qd R 325 applied.

Watson v Poynter (2003) QCA 224 applied.

COUNSEL:

Mr A. Kimmins for applicant

No appearance for respondent.

SOLICITORS:

Tony Bailey Solicitor for applicant

No appearance for respondent.

The applicant, AJT, brings this application to extend the limitation period to bring an application for compensation pursuant to the Criminal Offence Victims Act 1995 against the respondent, TMT.

On 20 March 1998 TMT was convicted in the District Court at Mt Isa of one count of rape, three counts of assault occasioning bodily harm and one count of unlawful assault on the applicant. Those offences were committed on three separate occasions in August and November 1997. The application for criminal compensation was not lodged until 30 November 2001, that is over eight months after the limitation period expired.

Section 31(2) of the Limitations of Actions Act, which by virtue of s 41 of the Criminal Offence Victims Act governs the basis on which the limitation period may be extended in respect of applications for criminal compensation, provides:

“(2) Where on application to a court by a person claiming to have a right of action to an action to which this section applies, it appears to the court –

(a) that a material fact of a decisive character relating to the right of
action was not within the means of knowledge of the deceased person or the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action, apart from a
defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the deceased or the applicant in that court, the period of limitation is extended accordingly.”

This application is made on the…

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.

Continue reading AMT v TMT

Details

AGLC: AMT v TMT [2004] QDC 155
Case: [2004] QDC 155
Decision Date: 27 May 2004

CaseChat Overview and Summary

AMT, the applicant, sought compensation from TMT, the respondent, under the Victims of Crime Assistance Act 2009 (Vic). AMT's application was filed eight months after the statutory limitation period had expired. The dispute before the court was whether the application was filed out of time and, if so, whether the application could be considered on the basis of an extension of time under the Act. AMT argued that the symptoms she experienced, which included headaches, shame, feelings of guilt and fear, and which were diagnosed by her psychologist as post-traumatic stress disorder, were material facts of a decisive character that warranted an extension of time.

The court considered whether AMT's symptoms were such that they could not have been discovered earlier by the exercise of reasonable diligence. The court found that AMT had not demonstrated that the symptoms were unknown to her prior to the expiry of the limitation period, nor had she shown that the symptoms were such that they could not have been discovered by the exercise of reasonable diligence. The court also found that the fact that the psychologist diagnosed AMT's symptoms as post-traumatic stress disorder did not alter the fact that AMT was already aware of the symptoms she was experiencing. The court held that AMT's symptoms were not a material fact of a decisive character which warranted an extension of time.

The court dismissed the application. The court found that AMT's application was filed out of time and that there were no grounds for an extension of time. The court held that AMT had not demonstrated that she was unable to file the application within the limitation period due to any disability, nor had she shown that there were any other circumstances which warranted an extension of time.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AMT v. TMT [2004] QDC 155
PARTIES:	AMT (Applicant) v. TMT (Respondent)
FILE NO/S:	5724/01
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Hoath DCJ
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – Compensation – Where application brought out of time. LIMITATIONS – Extension of time – where application for criminal compensation filed eight months after the limitation period expired – where applicant had suffered headaches, shame, feelings of guilt and fear – where applicant had told this to her psychologist – where the only result of the psychologist’s examination was that the applicant was informed that the symptoms she was suffering could be psychiatrically classified as post-traumatic stress disorder – whether this was a “material fact of a decisive character.” Limitations of Actions Act 1974 s 31(2). Criminal Offence Victims Act 1995 s 41. Criminal Offence Victims Regulation 1995 reg 1A(2) Moriarty v Sunbeam Corporation Limited (1998) 1 Qd R 325 applied. Watson v Poynter (2003) QCA 224 applied.
COUNSEL:	Mr A. Kimmins for applicant No appearance for respondent.
SOLICITORS:	Tony Bailey Solicitor for applicant No appearance for respondent.