Francis by Muller v McGlone

[2004] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Francis by Muller v McGlone [2004] QDC 226

PARTIES:

MICHAEL VAUGHAN FRANCIS

by his litigation guardian

MARGRETHE JEAN MULLER

Applicant

and

OWEN VINCENT McGLONE

Respondent  

FILE NO:

514/2002

PROCEEDING:

Originating application  

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

8 July 2004

DELIVERED AT:

Southport

HEARING DATE:

6 July 2004

JUDGE:

Robin QC DCJ

ORDER:

Applicant’s application filed on 19 June 2002 be struck out for failure to comply with s 40(1)(a) of the Criminal Offence Victims Act  1995

CATCHWORDS:

CRIMINAL COMPENSATION – application out of time – applicant fails to show he became aware of material fact of a decisive character until after 2 years had elapsed from respondent’s conviction and sentence – evidence showed applicant had engaged lawyers to pursue the matter within that time – applicant claimed ignorance of 3 year time limit – whether s 29 of Limitation of Actions Act applied to applicants under Criminal Offence Victims Act – if so, applicant failed to demonstrate being under “disability” –  appropriateness of use of litigation guardian doubted – applicant ran concurrent proceedings in another court personally

Criminal Offence Victims Act 1995 ss 40, 41
Limitation of Actions Act 1974 ss29, 30, 31
Supreme Court of Queensland Act 1991
Uniform Civil Procedure Rules s 93, r 171
Cases cited:

Flemming v Gibson [2000] QCA 244
Jacob v Roberts [2002] QCA 87
King v Coupland (1981) QdR 121

Watson v Poynter [2002] QSC 283

COUNSEL:

Self-represented – applicant    
Mr D Hawes – respondent  

SOLICITORS:

Self-represented – applicant    

Allansons – respondent  

1. These are the Court’s reasons for confirming, after hearing the applicant, Mr Francis, on 6 July 2004, orders made the day before in his absence striking out the application filed on 17 June 2002 for failure to comply with s 40(1)(a) of the Criminal Offence Victims Act 1995 (“COVA”).    The decision refusing to grant the respondent (who filed his own application for such a striking out on                 3 September 2002) his costs (which were sought on an indemnity basis) was also confirmed.

1. The respondent pleaded guilty to offences against the applicant committed on      6 January 1997 before Judge Hanger on 20 August 1998 and was sentenced to actual imprisonment.  The most serious offence was grievous bodily harm, inflicted by the throwing of a large tin of baked beans into the back of Mr Francis’ head without warning, supposedly because he had parked (without any entitlement to do so) in a space reserved for disabled people – Mr McGlone was no more entitled to use the space than Mr Francis.  The unusual medical outcome appears to have been a stroke or serious of strokes over days and weeks leaving             Mr Francis with brain injury; he has, it is said, lost most of his vision, his sense of taste, etc.   There is evidence to support psychological/psychiatric injury and loss of function in his left arm and leg, among other things.  Indeed, the application was made by a litigation guardian on the basis that Mr…