Dooley v Ward

[2001] QCA 484

[2001] QCA 484
COURT OF APPEAL

DAVIES JA
MACKENZIE J
CHESTERMAN J

CA No 8093 of 2000

D  Applicant

and

THOMAS DARRYL WARD  Respondent

BRISBANE

..DATE 06/11/2001

JUDGMENT

DAVIES JA: This is an application which the Court has agreed to hear on the papers. It is an application for an indemnity certificate pursuant to section 15(1) of the Appeal Costs Fund Act 1973.

The applicant was the victim of an assault occasioning her bodily harm.  Her assailant was convicted and sentenced and she then applied for compensation pursuant to the Criminal Offences Victims Act 1995. 

On 25 August 2000 a District Court Judge ordered her assailant to pay $30,000 compensation consisting of $3,750 for bruising and laceration, $7,500 for neck, back and chest injury, and $18,750 for mental or nervous shock.

The first of these amounts was assessed on the basis that it was five per cent of the maximum sum which could be awarded under the Act, the second on the basis that it was 10 per cent of that sum, and the third on the basis that it was 25 per cent of that sum.  Beyond that his Honour's reasons, which were very brief, did not explain the basis of these assessments. 

On 10 November 2000 this Court allowed an appeal against that judgment, reducing the amount of compensation to $15,750.  This was comprised of $1,500 being two per cent of the absolute maximum sum for the first of these injuries, $3,000 being four per cent of that sum for the second of them, and $11,250 being 15 per cent of that sum for the third of them.

During the course of giving its reasons, this Court stated the basis upon which compensation should be assessed pursuant to the scheme contained in the Criminal Offence Victims Act. 

There is no doubt that, in doing so, this Court stated a principle of law. But it by no means follows that the appeal to this Court was one "on a question of law" within the meaning of section 15(1) of the Appeal Costs Fund Act and which is a prerequisite to the granting of an indemnity certificate pursuant to this section. 

Indeed as this Court explained in its reasons in the appeal, on neither of the possible alternative bases upon which compensation could be assessed under the Act, could his Honour's assessment have been justified. 

It is also true that this Court said in its reasons for judgment in that appeal that leave to appeal was granted principally for the purpose of expressing a view about the meaning of section 22(4) of the Criminal Offence Victims Act 1995, and as I have mentioned already, the Court did express views about the meaning of that section. But again, in my opinion, that does not establish that the appeal to that Court for which leave was granted was on a question of law.

Indeed, in my opinion, it is as likely that the learned District Court Judge erred in applying the correct principle as that he applied an incorrect one.  Accordingly, in my opinion the applicant has failed to demonstrate that the appeal to this Court was on a question of law and is therefore not entitled to an indemnity certificate.  I would therefore refuse the application.

MACKENZIE J:  I agree.

CHESTERMAN J:  I agree.

DAVIES JA:  The application is refused.

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