Conway v Ketchup - [2002] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION: Conway v Ketchup [2002] QSC 284

PARTIES: MICHAEL JOHN CONWAY
(applicant)
v
BEVAN LESLIE KETCHUP
(respondent)

FILE NO/S: S524 of 2002

DIVISION: Trial

PROCEEDING: Application for Criminal Compensation
Application to Extend Time

ORIGINATING COURT: Supreme Court at Townsville

DELIVERED ON: 18 September 2002

DELIVERED AT: Townsville

HEARING DATE: 11 September 2002

JUDGES: Cullinane J

ORDER: Application dismissed.

CATCHWORDS: CRIMINAL LAW – CRIMINAL COMPENSATION – LIMITATION OF ACTIONS - where respondent convicted of grievous bodily harm with intent to do bodily harm – where application not brought within the three year period provided for by s 40 of the Criminal Offence Victims Act 1995 – where applicant has good cause of action for the purposes of s 31 (2) (b) of the Limitations of Actions Act 1974 – whether knowledge of a material fact could be regarded as being of a decisive nature

Criminal Offences Victims Act 1995 (Qld) ss 26 (1), 28, 33, 40, and 41
Limitations of Actions Act 1974 (Qld) ss 30(b),31(2) (b)

Castlemaine Perkins Ltd v. McPhee (1979) QdR 469
Ferguson v. Kazakoff (2000) QSC 156 (6 June 2000)
Jacob v. Roberts (2002) QCA 87 (21 March 2002)
Moriarty v. Sunbeam Corporation Ltd (1988) 2 QdR 325

COUNSEL: C Hampson QC, with AJ Kimmins for the applicant
No appearance for the respondent

SOLICITORS: Tony Bailey, Solicitor for the applicant
No appearance for the respondent

The Applicant applies for Criminal Compensation under the provisions of the Criminal Offence Victims Act 1995.

He was born on 6 August 1962 and the offence in respect of which the claim is made was committed on 29 April 1998. The Application was made on 2 September 2001.

The Respondent who did not appear on the Application was convicted on his own plea of grievous bodily harm with intent to do grievous bodily harm. He was sentenced on 17 February 1999 to 7 years imprisonment with a recommendation that he be eligible to be released on parole after serving 3 years.

The Application was not brought within the 3 year period provided for by section 40 of the Criminal Offence Victims Act 1995. This is a condition of the right to apply for compensation. See Jacob v. Roberts (2002) QCA 87 (21 March 2002).

The Applicant seeks an extension of time under the provisions of Section 41 of the Criminal Offence Victims Act 1995. This provides as follows:-

41 (1) The Limitation of Actions Act 1974, sections 30 and 31 apply to applications mentioned in section 40(1) and (2) with the intention that, on application –

(a) a court may order that the period of limitation under section 40(1) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2); and

(b) the Minister may order that the period of limitation under section 40(2) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2).

(2) The Limitation of Actions Act 1974,…

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 Conway v Ketchup

Details

AGLC: Conway v Ketchup [2002] QSC 284
Case: [2002] QSC 284
Decision Date: 18 September 2002

CaseChat Overview and Summary

The case of Conway v Ketchup involved a dispute concerning the entitlement of the applicant, Conway, to compensation under the Criminal Offence Victims Act 1995. The respondent, Ketchup, had been convicted of grievous bodily harm with intent to do bodily harm. Conway sought compensation, but the application was not brought within the three-year period stipulated by section 40 of the Criminal Offence Victims Act 1995. Conway argued that there was good cause for the delay under section 31(2)(b) of the Limitations of Actions Act 1974, as they had not known of a material fact which would have been decisive in bringing the application earlier.

The central legal issue before the court was whether the applicant’s lack of knowledge of a material fact could constitute good cause for the delay in bringing the compensation application. The court had to determine if Conway's ignorance of this fact was such that it could be regarded as decisive and if this justified the extension of the limitation period. The applicant argued that this unknown fact was crucial and would have significantly influenced their decision to apply for compensation sooner.

The court held that the applicant's lack of knowledge of the material fact did not amount to good cause for the delay. It was determined that the applicant's ignorance of this fact, while relevant, did not meet the threshold of being decisive. The court found that the applicant had not demonstrated that knowledge of this fact would have led to an earlier application for compensation. Consequently, the application for compensation was dismissed as it was not brought within the requisite period, and the applicant did not have good cause for the delay under the applicable legislation.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Conway v Ketchup [2002] QSC 284
PARTIES:	MICHAEL JOHN CONWAY (applicant) v BEVAN LESLIE KETCHUP (respondent)
FILE NO/S:	S524 of 2002
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation Application to Extend Time
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	18 September 2002
DELIVERED AT:	Townsville
HEARING DATE:	11 September 2002
JUDGES:	Cullinane J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – CRIMINAL COMPENSATION – LIMITATION OF ACTIONS - where respondent convicted of grievous bodily harm with intent to do bodily harm – where application not brought within the three year period provided for by s 40 of the Criminal Offence Victims Act 1995 – where applicant has good cause of action for the purposes of s 31 (2) (b) of the Limitations of Actions Act 1974 – whether knowledge of a material fact could be regarded as being of a decisive nature
Criminal Offences Victims Act 1995 (Qld) ss 26 (1), 28, 33, 40, and 41 Limitations of Actions Act 1974 (Qld) ss 30(b),31(2) (b) Castlemaine Perkins Ltd v. McPhee (1979) QdR 469 Ferguson v. Kazakoff (2000) QSC 156 (6 June 2000) Jacob v. Roberts (2002) QCA 87 (21 March 2002) Moriarty v. Sunbeam Corporation Ltd (1988) 2 QdR 325
COUNSEL:	C Hampson QC, with AJ Kimmins for the applicant No appearance for the respondent
SOLICITORS:	Tony Bailey, Solicitor for the applicant No appearance for the respondent