Gammon v Richardson - [2010] QDC 129

DISTRICT COURT OF QUEENSLAND

CITATION:Gammon v Richardson [2010] QDC 129

PARTIES: JOE RAYMOND GAMMON
(applicant)

And
CRAIG PAUL RICHARDSON
(respondent)

FILE NO/S: No 3652 of 2009

DIVISION: Civil

PROCEEDING: Application for criminal compensation

ORIGINATING
COURT: Brisbane

DELIVERED ON: 29 March 2010

DELIVERED AT: Brisbane

JUDGE: Rackemann DCJ

ORDER: That the respondent pay the applicant the sum of $18,000 by way of compensation pursuant to s 24 of the Criminal Offences Victims Act 1995 for injuries sustained as a result of the offence of wounding which led to conviction of the respondent in the District Court on 19 February 2007.

CATCHWORDS: Criminal Offence Victims Act 1995 – criminal compensation – where respondent deceased at time application made- whether non-compliance with section 28(1) of the Act – injuries from wounding – lacerations – facial scar – mental or nervous shock – single injury – whether applicant contributed to injury

COUNSEL: Mr Reilly for the applicant

SOLICITORS: Shane Ellis Lawyers for the applicant

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for personal injuries suffered by him as a consequence of a glassing by Craig Paul Richardson on 21 December 2000. On 19 February 2007, Mr Richardson was convicted, on his own plea of guilty, of one count of wounding.

The originating application was filed on 23 December 2009, by which time the Criminal Offence Victims Act had been repealed by section 149 of the Victims of Crime Assistance Act 2009. The applicant's entitlement to claim under section 24 of the repealed Act was, however, preserved for a time by sections 154 and 155 of the new Act. These proceedings were brought within the requisite time.

Mr Richardson, who is named as a respondent in the proceeding, had, unbeknown to the applicant at the time, died before the proceedings were commenced. That is no bar to the proceedings being instituted or continued.

The right to claim compensation is a cause of action which, upon Mr Richardson's death, became a cause of action against his estate. (See section 66(1) of the Succession Act 1981). While the proceedings name Mr Richardson, rather than his estate, as respondent, section 93N(1) of the Supreme Court of Queensland Act 1991 provides that the proceeding is taken to have been brought against Mr Richardson's estate. Further, by reason of section 93N(3), any order made by the Court binds the estate even if no grant of representation has been made at the time of the order.

It is unlikely that any grant of representation will be made in the case of Mr Richardson's estate. The material establishes that he died intestate. In the absence of an executor, the property of the deceased devolved to and vested in the Public Trustee pursuant to section 45(1) of the Succession Act.

Ordinarily, the Public Trustee would have an interest in protecting the assets of the estate from the applicant's claim. The material establishes, however, that Mr Richardson died without any substantial assets…

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 Gammon v Richardson

Details

AGLC: Gammon v Richardson [2010] QDC 129
Case: [2010] QDC 129
Decision Date: 29 March 2010

CaseChat Overview and Summary

The applicant, Joe Raymond Gammon, filed an application for compensation under section 24 of the Criminal Offence Victims Act 1995 (Qld) against Craig Paul Richardson, who had been convicted of wounding on 19 February 2007. The application was made after the repeal of the Act by the Victims of Crime Assistance Act 2009, but the applicant's entitlement to claim compensation was preserved. The court determined that despite the respondent's death prior to the proceedings, the right to claim compensation became a cause of action against his estate, which would be bound by any order made by the court. The court held that non-compliance with the notice requirement under section 28(1) of the Act did not affect the jurisdiction of the court to make an order, as it would not align with the evident purpose of the compensation provisions.

The court addressed the injuries sustained by the applicant, which included lacerations and a facial scar from the glassing incident. The applicant's injuries were deemed compensable, with the lacerations falling within the severe bruising/laceration category and the scarring falling under severe facial disfigurement or bodily scarring. The court awarded compensation for the facial injuries at 14 per cent of the scheme maximum. Furthermore, the applicant claimed compensation for mental or nervous shock, which the court assessed under the moderate category, awarding compensation at 10 per cent of the scheme maximum. The court rejected the argument that the applicant's conduct contributed to the injury, finding that the respondent's actions were grossly disproportionate.

The court ultimately assessed the total compensation at 24 per cent of the scheme maximum, equating to $18,000. The court considered the totality of the evidence, including the applicant's troubled background, and concluded that the respondent's actions were the primary cause of the applicant's injuries and subsequent mental or nervous shock. The court ordered the estate of Craig Paul Richardson to pay the applicant the sum of $18,000 by way of compensation.

Orders