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Beardsley v Loogatha

Beardsley v Loogatha

Case [2001] QCA 438 26 October 2001

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SUPREME COURT OF QUEENSLAND

CITATION:

Beardsley v Loogatha [2001] QCA 438

PARTIES:

SERRENA FAYE BEARDSLEY
(plaintiff/appellant)
v
ANNETTE TRACEY LOOGATHA
(defendant/respondent)

FILE NO/S:

Appeal No 5823 of 2001
DC No 2230 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2001

JUDGES:

McMurdo P, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1.   Appeal allowed.

2.   Set aside the order made 21 June 2001 and substitute an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by the applicant because of the offence of grievous bodily harm committed upon her by the respondent.

3.   The respondent to pay the appellant’s costs of the appeal to be assessed.

4. Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND –whether necessary that nervous shock suffered by “over and above” the ordinary reaction to the injury –whether injury to the eye and mental and nervous shock were sufficient distinct injuries to warrant assessment under separate relevant items under the compensation table

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – APPEAL AND NEW TRIAL – APPEAL TO SUPREME COURT – PRACTICE – LEAVE TO APPEAL – whether leave to appeal required under s 118(2) District Court Act 1967 where the amount claimed is equal to or more than the Magistrates Court jurisdictional limit of $50,000

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – whether s 31 Criminal Offence Victims Act 1973 (Qld) precludes the court from granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

Appeal Costs Fund Act 1973 (Qld), s 15
Court Reform Amendment Act 1997 (Qld)
Criminal Offence Victims’ Act 1995 (Qld), s 31
District Court Act 1967 (Qld), s 118.

HW v LO [2001] 2 Qd R 415; [2000] QCA 377, cited
R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320, followed
MR v Webb [2001] QCA 113; Apeal No 4166 of 2000, 6 March 2001, cited
R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330, considered

COUNSEL:

A J Kimmins for the appellant
M D Hinson SC as amicus curiae for the Attorney-General
No appearance for the respondent

SOLICITORS:

Price & Roobottom (Southport) for the appellant
No appearance for the respondent

cMURDO P:M I agree with the reasons for judgment of Holmes J and with the additional comments of Williams JA.

The appellant succeeded on a question of law. The issue arises as to whether costs of…

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 Beardsley v Loogatha

Details

AGLC: Beardsley v Loogatha [2001] QCA 438
Case: [2001] QCA 438
Decision Date: 26 October 2001

CaseChat Overview and Summary

In the matter of Beardsley v Loogatha, the appellant sought compensation for injuries sustained due to grievous bodily harm inflicted by the respondent. The case was initially heard and determined in the District Court of Queensland, where the court ordered the respondent to pay $67,500 in compensation to the appellant. The respondent appealed this decision to the Supreme Court of Queensland. The appeal raised questions about the nature and extent of the compensation owed, including whether the nervous shock experienced by the appellant was an injury distinct from the physical injury to her eye, and thus warranting separate compensation under the relevant statutory compensation table. Additionally, the appeal questioned the legal requirements for the respondent to obtain leave to appeal from the District Court and the applicability of the Appeal Costs Fund Act 1973 (Qld) in granting an indemnity certificate to the respondent.

The Supreme Court addressed the issues by first clarifying that the nervous shock experienced by the appellant, while exacerbated by the injury to her eye, constituted a separate injury that could be compensated under the compensation table. The court determined that the injury to the eye and the mental and nervous shock were sufficiently distinct to warrant separate assessment. Regarding the procedural matters, the court found that leave to appeal was not necessary under section 118(2) of the District Court Act 1967 (Qld) as the amount claimed did not exceed the Magistrates Court's jurisdictional limit. Furthermore, the court ruled that section 31 of the Criminal Offence Victims Act 1973 (Qld) did not preclude the granting of an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld).

The Supreme Court allowed the appeal, set aside the earlier order, and substituted it with an order for the respondent to pay the appellant $67,500 in compensation. The respondent was also ordered to pay the appellant's costs of the appeal. Additionally, the court granted the respondent an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld).

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order made 21 June 2001 and substitute an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by the applicant because of the offence of grievous bodily harm committed upon her by the respondent.

3. The respondent to pay the appellant’s costs of the appeal to be assessed.

4. Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

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.

Citations

AGLC Citation

Beardsley v Loogatha [2001] QCA 438

Most Recent Citation

Say v AZ; ex parte [2006] QCA 524

Cases citing this decision · 9 of 9 shown

Rose v Tomkins
[2017] QCA 157 Para 24

…to the certificate below; and 2.the respondents be granted a certificate under s 15 of the Appeal Costs Fund Act 1973. [31]See Beardsley v Loogatha [2001] QCA 438 and SAY v AZ; ex parte A-G (Qld) [2006] QCA 524. Orders…
WHG v LJC
[2010] QDC 395

…ct 2009 (Qld), s 149, s 155(1)(a), s 155(2)(b) AT v FG [2004] QCA 295, cited Beardsley v Loogatha [2001] QCA 438, considered Daley v Daley , unreported, Robertson DCJ, No. 2501 of 2009, 7 December 2009, considered Farragher v Daly [2005] QSC 277, cited Hill v Dizo [2010] QDC 71, applied JMR obo SRR v Hornsby [200…
JM obo PN v JBM
[2010] QDC 540

…09 (Qld) JMR obo SRR v Hornsby [2009] QDC 147 R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 RMC v NAC [2009] QSC 149 Beardsley v Loogatha [2001] QCA 438 JI v AV [2001] QCA 510 [2002]2 Qd R 367 Wallace and Wallace v Graveur Unreported, Files D 1315/2007 and D 1314/2007, Rackemann DCJ, District Court, 8 June 20…
RMC v NAC
[2009] QSC 149 Para 1

…en applied since;[15] but not where its correctness has been raised for decision; nor without reservations.[16] [15]As examples, Beardsley v Loogatha [2001] QCA 438, [11]-[12]; R v Atwell at 382, [59]. [16]See McGill DCJ’s reasoned criticism in Orley v Bath at [13]-[15] and O’Mahoney v Sorrattanong [2005] QDC 398…
Allam v. Vale
[2008] QDC 131 Para 1

…s, I conclude that Ms Vallianos’ report leaves open, at the least, a modest award under this item. [24]See Holmes J in Beardsley v Loogatha [2001] QCA 438, para 12 and Byrne J in Hicks v The Minister for Justice and Attorney‑General [2005] QSC 44, para 20.…
Say v AZ; ex parte
[2006] QCA 524 Para 1

…ondent an Indemnity Certificate under s 15 of the Appeals Costs Fund Act 1973 (Qld), pointing out that such an order was made in Beardsley v Loogatha [2001] QCA 438.…
Hicks v The Minister for Justice & A-G
[2005] QSC 44

…s 22, s33, s 36, s 39, Schedule 1 Judicial Review Act 1991 (Qld), s 20, s 23 B v B [2004] WASC 6, considered Beardsley v Loogatha [2001] QCA 438, considered Fletcher v Commissioners of Public Works in Ireland [2003] IESC 13, considered Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33; (2003) 214 CLR…
Kaz v Murray
[2003] QDC 306 Para 1

…Thomas J (as His Honour then was) in R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 followed by the Court of Appeal in Beardsley v Loogatha [2001] QCA 438. This is despite the fact that far some curious reason that seems to defy logic, the drafter of Regulation 1A of the Criminal Offence Victims Regulation 19…
T v Oliver
[2002] QDC 351 Para 1

…The judge hearing the application should not take a narrow view of the interpretation of “mental or nervous shock”: Beardsley v Loogatha [2001] QCA 438 paras 11 to 15 per Holmes J. with whom McMurdo P. agreed. Holmes J. quoted with approval the reasons of Thomas JA in R v Kazakoff ex parte Ferguson (2001) 2 Qd R…

View all 9 citing cases →

Cases cited in this decision · 3 of 3 shown

MR v Webb
[2001] QCA 113

…415; [2000] QCA 377 , cited R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320, followed MR v Webb [2001] QCA 113; Apeal No 4166 of 2000, 6 March 2001, cited R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330, considered COUNSEL: A J Kimmins for the appellant M D Hinson SC as amicus curiae for the Attorney-General No…
HW v LO
[2000] QCA 377

…ce Victims’ Act 1995 (Qld), s 31 District Court Act 1967 (Qld), s 118. HW v LO [2001] 2 Qd R 415; [2000] QCA 377 , cited R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320, followed MR v Webb [2001] QCA 113; Apeal No 4166 of 2000, 6 March 2001, cited R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330, considered COUNSE…
Mallet v Chief Executive, Dept of Corrective Services
[2001] QCA 114 Para 1

…on table in respect of loss of vision and mental or nervous shock. It is not a matter of double compensation for the same component.[5] [5] MR v Webb [2001] QCA 114; Appeal No 4166 of 2000, 6 March 2001.…

Legislation cited in this decision · 3

Appeal Costs Fund Act 1973 (Qld)
15 2 mentions (from Para 1)
District Court Act 1967 (Qld)
118 2 mentions (from Para 1)
Courts Reform Amendment Act 1997 (Qld)
1 mention (from Para 1)

CITATION:	Beardsley v Loogatha [2001] QCA 438
PARTIES:	SERRENA FAYE BEARDSLEY (plaintiff/appellant) v ANNETTE TRACEY LOOGATHA (defendant/respondent)
FILE NO/S:	Appeal No 5823 of 2001 DC No 2230 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2001
JUDGES:	McMurdo P, Williams JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. Appeal allowed. 2. Set aside the order made 21 June 2001 and substitute an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by the applicant because of the offence of grievous bodily harm committed upon her by the respondent. 3. The respondent to pay the appellant’s costs of the appeal to be assessed. *4. Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act* 1973 (Qld).**
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND –whether necessary that nervous shock suffered by “over and above” the ordinary reaction to the injury –whether injury to the eye and mental and nervous shock were sufficient distinct injuries to warrant assessment under separate relevant items under the compensation table PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – APPEAL AND NEW TRIAL – APPEAL TO SUPREME COURT – PRACTICE – LEAVE TO APPEAL – whether leave to appeal required under s 118(2) District Court Act 1967 where the amount claimed is equal to or more than the Magistrates Court jurisdictional limit of $50,000 APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – whether s 31 Criminal Offence Victims Act 1973 (Qld) precludes the court from granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) Appeal Costs Fund Act 1973 (Qld), s 15 Court Reform Amendment Act 1997 (Qld) Criminal Offence Victims’ Act 1995 (Qld), s 31 District Court Act 1967 (Qld), s 118. HW v LO [2001] 2 Qd R 415; [2000] QCA 377, cited R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320, followed MR v Webb [2001] QCA 113; Apeal No 4166 of 2000, 6 March 2001, cited R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330, considered
COUNSEL:	A J Kimmins for the appellant M D Hinson SC as amicus curiae for the Attorney-General No appearance for the respondent
SOLICITORS:	Price & Roobottom (Southport) for the appellant No appearance for the respondent