Brown v Loveday - [2012] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0311

ALAN PHILLIP BROWN	Applicant
	V
DARREN LOVEDAY & ORS	Respondents

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JUDGES	NEAVE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 MARCH 2012
DATE OF JUDGMENT	27 MARCH 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 57

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CRIMINAL LAW − Procedure − Application for leave to appeal against extension of time to seek compensation order under Sentencing Act 1991, s 85D − Definition of ‘sentence’ in Criminal Procedure Act 2009, s 3 − Whether leave to appeal available under Criminal Procedure Act 2009, s 278 − Extension of time constitutes an order ‘incidental or preparatory’ to substantive compensation order − No jurisdiction to grant leave to appeal under Criminal Procedure Act 2009, s 278 − Application refused.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Ms J Dixon SC, with Mr R H Stanley	Clark Toop Taylor
For the Respondents	Mr T Tobin SC, with Mr E Makowski	Arnold Thomas Becker

NEAVE JA:

Mr Alan Phillip Brown (‘Brown’) seeks leave to appeal against an order made by a County Court judge on 2 December 2011 granting Mr Darren Loveday, Ms Nicole Loveday and Ms Kim Lyons (‘the respondents’) an extension of time to apply for a compensation order under Part 4, Division 2 of the Sentencing Act 1991. The application for an extension of time was made under s 85D of the Sentencing Act 1991.

The circumstances giving rise to this application were as follows. On 6 September 2002, Brown pleaded guilty to negligently causing serious injury and culpable driving causing the death of Mrs Margaret Loveday, the mother of the respondents. He was sentenced to a total effective sentence of 14 years’ imprisonment.

On 13 September 2010, Brown received $120,000 plus costs in settlement of a negligence claim against the State of Victoria, for a neck injury which he suffered while working as a prisoner at Loddon Prison. After the deduction of legal fees, he received approximately $98,000.

Under Part 9C of the Corrections Act 2008, the award of damages was quarantined by the State for 12 months and a notice advising the award of damages was published under s 104Y of that Act. The respondents became aware of the award as a consequence of a story published in the Herald Sun. They sought legal advice shortly afterwards.

Under s 85B of the Sentencing Act 1991, where a person is convicted or found guilty of an offence, the Court may order the offender to pay compensation to a person who has suffered injury as a direct result of the offence.[1] Compensation can be awarded for, among other things, pain and suffering, and reasonable expenses incurred.[2]
[1]Sentencing Act 1991, s 85B(1).
[2]Ibid s 85B(2).

An application for a compensation order ‘must be made within 12 months after the offender is found guilty, or convicted, of the offence’.[3] However, an extension of time may be granted under s 85D(1), which provides that:

A court may, on…

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 Brown v Loveday

Details

AGLC: Brown v Loveday [2012] VSCA 57
Case: [2012] VSCA 57
Decision Date: 27 MARCH 2012

CaseChat Overview and Summary

Brown commenced proceedings against Loveday, seeking leave to appeal against a decision of a single judge of the Supreme Court. The single judge had dismissed an application to extend the time limit for making a compensation order under section 85D of the Sentencing Act 1991. The Supreme Court was required to determine whether leave to appeal could be granted against the decision to dismiss the application to extend time, under section 278 of the Criminal Procedure Act 2009. The court held that the extension of time for which Brown sought leave to appeal was an order that was incidental or preparatory to a substantive compensation order. The court found that, because the extension of time was an order incidental or preparatory to the substantive compensation order, there was no jurisdiction to grant leave to appeal. The court noted that an order incidental or preparatory to a substantive order was not an ‘order’ for the purposes of section 278 of the Criminal Procedure Act 2009. The application for leave to appeal was refused.

Orders