Foster v Carney - [2009] QDC 299

DISTRICT COURT OF QUEENSLAND

CITATION:

Foster v Carney [2009] QDC 299

PARTIES:

CAMERON JOHN FOSTER
(applicant)

V

MERYL CAROLYN CARNEY
(respondent)

FILE NO/S:

BD 3461/07

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2009

JUDGE:

Ryrie DCJ

ORDER:

No order as to costs

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – COSTS – where the applicant brought proceedings against the respondent for criminal compensation – where the respondent wished to contest the application – where the applicant sought the court’s leave to discontinue the application – where leave was granted – where the respondent claims she had incurred costs up to discontinuance – whether the applicant was vexatious and unreasonable in bringing and maintaining the application – whether the applicant is required to pay the respondent’s costs.

Criminal Offence Victims Act 1995 (Qld), ss 24(1)(b) & 31
Uniform Civil Procedure Rules 1999 (Qld), r 304(2) & 307(2)

Bushell v Ryder & Anor [2001] QDC 328, cited
Cleland v Major [2002] QDC 195, cited
Petavrakis v Hirst & Co & Anor [2001] QSC 224, cited
Stannard v Lane [2000] QSC 086, cited
Willesden v Bruce [2005] QDC 001, cited

COUNSEL:

D Davies (sol) for the applicant
Respondent appeared on his own behalf

SOLICITORS:

McInnes Wilson Lawyers for the applicant
Respondent appeared on her own behalf

Background

On the 3^rd December 2007, the Applicant in this matter, Mr Foster, filed an application for compensation pursuant to the provisions of the Criminal Offences Victims Act 1995 (Qld) (the Act) for injuries sustained by him as a result of the commission of an indictable offence by the respondent, Mrs Carney. Mrs Carney had pleaded guilty before the Ipswich District Court on 19 June 2006 to several charges, relevantly one count of Dangerous Operation of a Motor Vehicle which was committed on 26 September 2005. Mr Foster was a serving police officer employed by the Queensland Police Service at the material time.

On the 11^thAugust 2009, Mr Foster’s solicitors filed a Notice of Discontinuance. They had sought Mrs Carney’s consent to do so but she refused. On 9 September 2009, this matter came on before me for mention only. The matter had originally been set down for three (3) days for the hearing of the application, which was to commence that day. Two applications were made at that mention. Mr Foster’s solicitor applied to the court, pursuant to r 304(2) of the Uniform Civil Procedure Rules 1999 (UCPR), for an order that Mr Foster be granted leave to discontinue his claim against Mrs Carney. Such leave was granted. He also sought that no order as to costs be made in respect of that application and in respect of the originating application which Mr Foster had made. Mrs Carney applied to the court for an order for costs which related to the legal costs which she says she has had to expend prior to…

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 Foster v Carney

Details

AGLC: Foster v Carney [2009] QDC 299
Case: [2009] QDC 299
Decision Date: 18 September 2009

CaseChat Overview and Summary

Foster brought proceedings against Carney for criminal compensation. Carney contested the application but Foster subsequently sought to discontinue the proceedings. The court granted Foster leave to discontinue the application. Carney claimed she had incurred costs up to the date of discontinuance and sought an order for Foster to pay those costs. The court considered whether Foster had been vexatious and unreasonable in bringing and maintaining the application and whether Foster was required to pay Carney’s costs.

The court found that Carney had failed to establish that Foster was vexatious and unreasonable in bringing and maintaining the application. The court held that there was no basis upon which to conclude that Foster was acting vexatiously or unreasonably. The court noted that the application was not pursued in a manner that could be described as vexatious or unreasonable and that the court had granted leave to discontinue the application without finding any fault in Foster’s conduct. The court held that Carney was not entitled to an order for Foster to pay her costs.

The court found that Carney had not established that Foster was required to pay her costs. The court held that the court’s power to order costs was discretionary and that the court should not exercise its discretion in circumstances where there was no finding of vexatiousness or unreasonableness. The court held that the decision to discontinue the application did not mean that Foster was required to pay Carney’s costs.

The court made no order as to costs.

Orders

Orders of the court

No order as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Foster v Carney [2009] QDC 299
PARTIES:	CAMERON JOHN FOSTER (applicant) V MERYL CAROLYN CARNEY (respondent)
FILE NO/S:	BD 3461/07
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	18 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2009
JUDGE:	Ryrie DCJ
ORDER:	No order as to costs
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – COSTS – where the applicant brought proceedings against the respondent for criminal compensation – where the respondent wished to contest the application – where the applicant sought the court’s leave to discontinue the application – where leave was granted – where the respondent claims she had incurred costs up to discontinuance – whether the applicant was vexatious and unreasonable in bringing and maintaining the application – whether the applicant is required to pay the respondent’s costs. Criminal Offence Victims Act 1995 (Qld), ss 24(1)(b) & 31 Uniform Civil Procedure Rules 1999 (Qld), r 304(2) & 307(2) Bushell v Ryder & Anor [2001] QDC 328, cited Cleland v Major [2002] QDC 195, cited Petavrakis v Hirst & Co & Anor [2001] QSC 224, cited Stannard v Lane [2000] QSC 086, cited Willesden v Bruce [2005] QDC 001, cited
COUNSEL:	D Davies (sol) for the applicant Respondent appeared on his own behalf
SOLICITORS:	McInnes Wilson Lawyers for the applicant Respondent appeared on her own behalf