BCV v Ly

[2012] QDC 55

[2012] QDC 55

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

BCV	Applicant
and
LY	Respondent

SOUTHPORT

..DATE 10/04/2012

ORDER

CATCHWORDS

Criminal Offence (Victims) Act 1995
Uniform Civil Procedure Rules r 389

More than 2 years elapsed with no further step taken after service of application for criminal compensation while respondent was serving his sentence - respondent now assumed to be on parole and not locatable - service of additional material on respondent by service on parole authorities authorised - whether their cooperation would be forthcoming a concern.

HIS HONOUR:  The court makes an order in terms of the initialled draft which provides:-

1. That leave be given to the applicant to dispense with the requirement of serving the application on the respondent.

1. That the applicant be granted leave pursuant to rule 116 of the Uniform Civil Procedure Rules to serve the Queensland Department of Corrective Services by way of substituted service on the respondent.

MR POPE:May I just interrupt a moment, your Honour?

HIS HONOUR:  Yes.

MR POPE:  Perhaps if your Honour said something in the reasons that the court would expect that these proceedings be brought to his attention, then I could take the transcript out and forward that along with the order.

HIS HONOUR:  Yes, and if that assumption is wrong the court would appreciate being told, so that it can consider suitable alternative arrangements.

MR POPE:  Thank you, your Honour.

1. That leave be given to the applicant to serve certain identified affidavits and all further documents, including any application for leave to proceed, on the respondent by way of post to the Department.

1. That a copy of the order and the notice of the adjourned hearing of the originating application be served with the documents authorised to be served on the Department by this order.

1. Costs reserved.

The originating application is one for compensation under the Criminal Offence (Victims) Act 1995.  It can be made by virtue of the conviction of the respondent before Judge Newton on the 29th of June 2009.  His Honour sentenced the respondent to imprisonment for four years.

While he was incarcerated, on the 9th of March 2010, as the affidavit of T E Hurlihey shows, he was served at Borallon Correctional Centre with the originating application and an explanatory letter from the applicant's solicitors.  At that stage, the applicant was not in a position to efficiently prosecute his application.  Officers of the correctional centre, in accordance with the usual procedure, accepted service.

It appears to have taken longer than the applicant and his lawyers anticipated to get into a position to run the application for compensation.  No step has been taken since that service at Borallon Correctional Centre occurred, which is now slightly more than two years ago.

In my experience, it's unusual to encounter a situation like this in which the ordinary rules relating to civil proceedings, which do of course apply to “criminal compensation” applications, are referred to, rule 389 for example.  They get overlooked.  The applicant is now doing things carefully, and the Department was approached recently with a view to getting material now available to the respondent.  The Department advised that he was no longer in custody.  His term has more than a year to run.  The reasonable assumption is made that the respondent is on parole.

It's the applicant's expectation that the Department will cooperate with the intent and spirit of the court's order by consulting records to ascertain what parole arrangements are in place for the respondent, and thereafter take appropriate action, presumably on some occasion when he attends, to hand documents on to him.

The Department is understandably not in a position to provide details of offenders' whereabouts to persons such as the applicant or his lawyers.  They may well have a difficult task in locating the respondent now to advise him what will happen in the originating application, of which he must be taken to be fully aware, in the future.  It seems a sensible and efficient way of proceeding to have the Department cooperate.  The court's expectation is that the Department would do so, but that expectation, I hasten to say, is not based on any actual experience the court has or, indeed, any experience of others that Mr Pope has been able to tell the court about.

If that expectation is wrong, then the court would expect the Department to do the court the courtesy of advising promptly what difficulties there might be in proceeding as the order the applicant seeks envisages so that before too much more time is lost consideration can be given to alternative avenues that may be pursued by the applicant and his lawyers.

The order is per initialled draft.

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