Flanagan v Flanagan

[2001] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:

Flanagan v. Flanagan [2001] QDC 056

PARTIES:

ROBERT FLANAGAN   (Applicant)
And
DESLEY FLANAGAN   (Respondent)

FILE NO/S:

D350 of 2000

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

6 April 2001

DELIVERED AT:

District Court, Maroochydore

HEARING DATE:

26 March 2001

JUDGE:

Robertson DCJ

ORDER:

I order the respondent to pay to the applicant by way of compensation the sum of $4,500.

CATCHWORDS:

CRIMINAL LAW – Compensation – application for criminal compensation – applicant sustained head injuries when respondent struck him with an iron bar – limited evidence of injuries – quantum – contribution of applicant to injuries sustained

Cases judicially considered:

Hendry v. Llorente [2000] QCA 377
Ned v. Ned [2000] QDC 323
Chong v. Chong (Appeal No. 11658 of 1998, unreported judgment of the Court of Appeal delivered 13^th August 1999)

Statutes judicially considered:

Criminal Offence Victims Act 1995, ss.24, 30

SOLICITORS:

M Grant-Taylor, SC (for the applicant)
No appearance by respondent

1. The applicant applies for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995. Until the hearing the applicant was relying only on an affidavit filed by himself in this Court on the 13^th October 2000 to which was exhibited a copy of a report by Dr Francis Tomlinson.  Obviously having regard to the comments of the Chief Justice in Hendry v. Llorente [2000] QCA 377 at para 30, the applicant’s solicitors filed an affidavit of the Doctor annexing his report on the 8^th November 2000.  The remaining material on the file related to failed attempts by the applicant to serve the respondent.  On 11^th December 2000 His Honour Judge Dodds in this Court made an order for substituted service on the father of the respondent and service was effected on the 15^th January 2001.  There was no appearance by or on behalf of the respondent.  Prior to the hearing the material did not disclose proper proof of conviction for any offence.   Mr Grant-Taylor appeared for the applicant.  I have to say somewhat reluctantly and at my request he tendered the sentencing remarks of His Honour Judge Pratt QC dated 1^st of July 1999.  The sentencing remarks are marked Exhibit 1. The affidavit of the applicant to which I have earlier referred makes no reference to the commission of an offence.  In his affidavit he says that after what he describes as a number of conversations with his wife he went to sleep and woke up some days later in hospital.  In his affidavit there is no evidence of what injuries he actually suffered in the assault.  There is no report from the hospital where apparently he was admitted for treatment.  As I say the only medical report is the report of Dr Tomlinson dated 13^th December 1999. Section 30 of the Act states:

“(1)A proceeding on an application to a court for a compensation or repayment order is a civil proceeding.

(2)Without limiting subsection (1), issues of…