Burton v Bauer - [2012] QDC 352

DISTRICT COURT OF QUEENSLAND

CITATION: Burton v Bauer [2012] QDC 352
PARTIES: MAREE LOUISE BURTON
(applicant)
AND
DERMONT CHARLES BAUER
(respondent)
FILE NO/S: 3512/2007
DIVISION: Civil
PROCEEDING: Application
ORIGINATING
COURT: District Court
DELIVERED ON: 26 November 2012
DELIVERED AT: Brisbane
JUDGE: REID DCJ
ORDER: That, in addition to the sum of $15,000 ordered to be paid to
the applicant by the respondent on 9 September 2010, the
respondent also pay to the applicant costs of and incidental to
the application for compensation fixed in the sum of
$11,535.29.
CATCHWORDS: Criminal compensation – Costs – s 663B Criminal Code
(Qld)
SOLICITORS: Given Law for the Applicant
[1] This was an application for criminal compensation pursuant to the provisions of section 663B of the Criminal Code Act.
[2]      The matter first came before O’Sullivan DCJ on the 13 March 2009. There was some confusion about what there occurred. The file contains an Order of that date in the following terms:

1.

The respondent, Dermont Charles Bauer, pay to the applicant, Maree Louise Burton the sum of $15,000 by way of criminal compensation

2.

That the respondent pay 50 per cent of the costs of the applicant, to be agreed or assessed
[3]      Despite the fact that such order had been taken out, it seems Her Honour did not make such an order. The transcript of that day showed Her Honour found the applicant “had discharged her onus of proving causation”. She then gave an “intimation” that the applicant would be entitled to the then statutory maximum compensation of $15,000. Her Honour’s “preliminary finding” was that the applicant would only be entitled to “50 per cent of her costs agreed or assessed”. Her Honour subsequently advised the parties of the true position.
[4]      The matter did not then progress speedily. It came before me on 30 August 2010.
[5]      On that day I directed the solicitors for the respondent to provide an affidavit as to details of their attempts to contact him in order to justify their being given leave to withdraw as solicitors on the record for the respondent. I ordered that unless the respondent’s solicitors were able to locate the respondent, service could be effected on him by the applicant’s solicitor placing an advertisement in a particular form in The Courier-Mail.
[6]      The matter was then adjourned to 9 September 2010.
[7] On the day the respondent’s solicitors, Delaney and Delaney filed an affidavit of Kate Louise Worsnop which deposed to attempts made to locate the respondent. I gave the solicitors leave to withdraw pursuant to r 691 of the UCPR.
[8]      An affidavit of Lauren Maree Wilkie, an employee of the applicant’s then solicitors, deposed to the placing of an advertisement in the form I had indicated in The Courier-Mail notifying the respondent of the hearing of the application on 9 September.
[9]      On that date I made orders in accordance with the intimation of O’Sullivan DCJ; that is, that the respondent pay the applicant the sum of $15,000 by…

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 Burton v Bauer

Details

AGLC: Burton v Bauer [2012] QDC 352
Case: [2012] QDC 352
Decision Date: 26 November 2012

CaseChat Overview and Summary

Burton v Bauer was a case before the Court where the applicant sought an order for additional costs and expenses related to a criminal compensation claim. The applicant, Burton, had previously been awarded a sum of $15,000 by the respondent, Bauer, in a criminal compensation matter. Burton sought additional costs and expenses of $11,535.29, which were incurred in relation to the application for compensation.

The primary legal issue for the Court was whether the costs and expenses claimed by Burton were reasonable and necessary in the circumstances. This involved an assessment of the nature and extent of the costs incurred and whether they were in line with the provisions of the Criminal Code, specifically section 663B, which allows for the recovery of costs and expenses in criminal compensation cases.

The Court considered the evidence provided by Burton regarding the costs and expenses claimed, including the nature of the services provided, the necessity of those services, and the reasonableness of the fees charged. After evaluating the submissions and evidence, the Court found that the costs and expenses claimed by Burton were reasonable and necessary. The Court was satisfied that the costs were in line with the provisions of the Criminal Code and that the applicant was entitled to recover the costs and expenses incurred in relation to the application for compensation.

As a result, the Court made an order that Bauer pay Burton an additional sum of $11,535.29 in addition to the $15,000 previously awarded. This decision ensures that Burton is compensated for the reasonable and necessary costs and expenses incurred in pursuing their criminal compensation claim.

Orders

Orders of the court

That, in addition to the sum of $15,000 ordered to be paid to

the applicant by the respondent on 9 September 2010, the

respondent also pay to the applicant costs of and incidental to

the application for compensation fixed in the sum of

$11,535.29.

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:	Burton v Bauer [2012] QDC 352
PARTIES:	MAREE LOUISE BURTON (applicant)
AND
DERMONT CHARLES BAUER (respondent)
FILE NO/S:	3512/2007
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING
COURT:	District Court
DELIVERED ON:	26 November 2012
DELIVERED AT:	Brisbane
JUDGE:	REID DCJ
ORDER:	That, in addition to the sum of $15,000 ordered to be paid to the applicant by the respondent on 9 September 2010, the respondent also pay to the applicant costs of and incidental to the application for compensation fixed in the sum of $11,535.29.
CATCHWORDS:	Criminal compensation – Costs – s 663B Criminal Code (Qld)
SOLICITORS:	Given Law for the Applicant