Cutrale v Dickason - [2012] QDC 344

[2012] QDC 344

DISTRICT COURT

CIVIL JURISDICTION

JUDGE LONG SC

No 17 of 2010

SALVATORE VINCENZO CUTRALE	Applicant
and
JASON LEONARD DICKASON	Respondent

MAROOCHYDORE

..DATE 02/11/2012

..DAY 1

JUDGMENT

HIS HONOUR: On 21 January 2010 this application for criminal compensation was filed. That occurred consequently to the respondent being convicted on 8 October 2009 in the District Court at Maroochydore, of an offence of doing grievous bodily harm to the applicant on 25 September 2008. The respondent was sentenced for this offence to a period of four years and six months imprisonment, with parole eligibility fixed at 8 April 2011.

At the time of the commission of the offence against the applicant, he was aged 38 years. His date of birth is 5 June 1970 and he is now aged 42 years. On 31 October 2009 he was arrested in New South Wales for offences for which he was subsequently sentenced to nine years imprisonment. He is currently in custody in New South Wales serving that sentence.

Although the respondent is still subject to the sentence imposed on him on 8 October 2009, he was released from prison and was, on 13 October 2012, served with the application and most of the materials relied upon by the applicant. However, he did not appear at the hearing of the application on 26 October 2012, or today.

The respondent therefore remains a prisoner for whom the Public Trustee has responsibility pursuant to section 91 of the Public Trustee Act 1978 Queensland. More particularly, and pursuant to section 95(1)(b) of that Act, he is precluded from defending an application like this without the consent in writing of the Public Trustee. The Public Trustee has been notified of the application and has not appeared in this Court today or sought to raise any objection to the determination of this application and the application, in fact, remains as one which is undefended by the respondent. Accordingly, there is no impediment, on that account, to the Court determining it.

There is then the further potential complication of the applicant's status as a prisoner in New South Wales. Because he is not a prisoner, pursuant to Queensland law, Part 7 of the Public Trustee Act 1978 (Qld) does not apply to him. However, and pursuant to New South Wales law, and in particular section 4 of the Felons (Civil Proceedings) Act 1981, he is impeded from instituting any civil proceedings in any Court except with leave of that Court. This is because section 4 of that Act provides:

"A person who is in custody as a result of having been convicted of, or found to have committed a serious indictable offence may not institute any civil proceedings in any Court except by the leave of that Court granted on application.”

As I have noted, it is clear that the applicant is in custody in New South Wales, as a result of having been convicted of, or having been found to have committed a serious indictable offence. That…

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 Cutrale v Dickason

Details

AGLC: Cutrale v Dickason [2012] QDC 344
Case: [2012] QDC 344
Decision Date: 02/11/2012

CaseChat Overview and Summary

In Cutrale v Dickason, the applicant, Salvatore Vincenzo Cutrale, sought compensation from the respondent, Jason Leonard Dickason, for injuries sustained in a grievous bodily harm offence committed on 25 September 2008. The application was brought under the Criminal Offence Victims Act 1995, now continued by the Victims of Crime Assistance Act 2009. The respondent had been convicted and sentenced to four years and six months imprisonment with parole eligibility on 8 October 2009. The applicant, now in custody in New South Wales, sought compensation for injuries including facial fractures, a fractured nose, and a fractured rib. The respondent, also a prisoner, did not appear in court, and the application was considered undefended.

The court addressed several legal issues, including whether the application could proceed extraterritorially given the applicant's status under New South Wales law. It was determined that the New South Wales restriction on instituting civil proceedings did not apply to this Queensland court application. Additionally, the court considered whether the application should be dismissed for non-compliance with the Uniform Civil Procedure Rules 1999 (Qld). The applicant argued for leave to proceed under UCPR 389(2), which was granted given the respondent's lack of interest and absence of prejudice.

The court assessed the applicant's injuries based on the schedule in the Criminal Offence Victims Act 1995, awarding $27,750 for facial fractures, $6,000 for a fractured nose, and $3,000 for a rib fracture, totaling $36,750. The court formally ordered the respondent to pay the applicant $27,750 for injuries sustained from the personal offence, correcting the applicant's name in the court file.

Orders