Conway v Ketchup

SUPREME COURT OF QUEENSLAND

CITATION:

Conway v Ketchup [2003] QCA 228

PARTIES:

MICHAEL JOHN CONWAY
(applicant/appellant)
BEVAN LESLIE KETCHUP
(respondent)
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE FOR THE STATE OF QUEENSLAND
(intervenor)

FILE NO/S:

Appeal No 9290 of 2002
SC No 524 of 2002

DIVISION:

Court of Appeal - Cairns Circuit

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEM PORE ON:

26 May 2003

DELIVERED AT:

Cairns

HEARING DATE:

26 May 2003

JUDGES:

McMurdo P, Davies JA and Jones J
Judgment of the Court

ORDER:

Appeal dismissed

CATCHWORDS:

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT - where respondent convicted of doing grievous bodily harm - where application for compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) filed outside limitation period - where appellant living in remote community - whether appellant's unawareness of ability to seek compensation was a "material factor of a decisive character" for the purposes of extending the limitation period

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT - where appellant suffered serious injuries as a result of the attack - where appellant unaware of nervous shock suffered as a result of attack until after expiration of the limitation period - whether diagnosis of nervous shock was a "material factor of a decisive character"

COUNSEL:

M Grant-Taylor SC, with A J Kimmins, for the appellant
No appearance for the respondent
M D Hinson SC, with S A McLeod, for intervenor amicus
curiae

SOLICITORS:

Tony Bailey (Samford) for the appellant
No appearance for the respondent
C W Lohe, Crown Solicitor, for the intervenor amicus curiae

THE PRESIDENT: For the reasons given in Watson v Poynter [2003] QCA 224, Appeal No CA 9291 of 2002, in each of Lenoy v Seaton [2003] QCA 226, Appeal No CA 10847 of 2002, Lenoy v Smith [2003] QCA 225, Appeal No CA 10846 of 2002, and Conway v Ketchup [2003] QCA 228, Appeal No CA 9290 of 2002, the appeal is dismissed and applications for leave to appeal are refused.

‑‑‑‑‑

CaseChat Overview and Summary

In the case of Conway v Ketchup, the Court was asked to consider whether the appellant's unawareness of her ability to seek compensation for grievous bodily harm inflicted by the respondent was sufficient to extend the limitation period for such claims. The appellant, who suffered serious injuries and nervous shock from the attack, lived in a remote community and did not become aware of her right to compensation until after the statutory limitation period had expired. The appellant applied for an extension of time, arguing that her unawareness of her entitlement to compensation was a material factor of decisive character.

The court was tasked with determining whether the appellant's unawareness constituted a material factor of decisive character under the Criminal Offence Victims Act 1995 (Qld). The court also needed to assess whether the appellant's diagnosis of nervous shock, which occurred after the limitation period had lapsed, was a material factor that warranted an extension. The court considered the statutory criteria for extending the limitation period, which required that the factor be of decisive character and not merely contributory.

The court found that the appellant's unawareness of her entitlement to compensation was not a material factor of decisive character, as the appellant had not demonstrated that this unawareness prevented her from instituting proceedings within the statutory period. The court also concluded that the diagnosis of nervous shock, while a material factor, did not meet the threshold of decisive character. The court held that the statutory criteria for extending the limitation period were not satisfied and dismissed the appeal.

Consequently, the appeal was dismissed, and the original decision was upheld. The court found that the appellant's unawareness and the subsequent diagnosis of nervous shock did not justify an extension of the limitation period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Conway v Ketchup [2003] QCA 228
PARTIES:	MICHAEL JOHN CONWAY (applicant/appellant) BEVAN LESLIE KETCHUP (respondent) ATTORNEY-GENERAL AND MINISTER FOR JUSTICE FOR THE STATE OF QUEENSLAND (intervenor)
FILE NO/S:	Appeal No 9290 of 2002 SC No 524 of 2002
DIVISION:	Court of Appeal - Cairns Circuit
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEM PORE ON:	26 May 2003
DELIVERED AT:	Cairns
HEARING DATE:	26 May 2003
JUDGES:	McMurdo P, Davies JA and Jones J Judgment of the Court
ORDER:	Appeal dismissed
CATCHWORDS:	LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT - where respondent convicted of doing grievous bodily harm - where application for compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) filed outside limitation period - where appellant living in remote community - whether appellant's unawareness of ability to seek compensation was a "material factor of a decisive character" for the purposes of extending the limitation period LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT - where appellant suffered serious injuries as a result of the attack - where appellant unaware of nervous shock suffered as a result of attack until after expiration of the limitation period - whether diagnosis of nervous shock was a "material factor of a decisive character"
COUNSEL:	M Grant-Taylor SC, with A J Kimmins, for the appellant No appearance for the respondent M D Hinson SC, with S A McLeod, for intervenor amicus curiae
SOLICITORS:	Tony Bailey (Samford) for the appellant No appearance for the respondent C W Lohe, Crown Solicitor, for the intervenor amicus curiae