HJR v Kwa - [2011] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

HJR v KWA [2011] QDC 63

PARTIES:

HJR
(Applicant)

v

KWA
(Respondent)

FILE NO/S:

D597/09

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

3 May 2011

DELIVERED AT:

Southport

HEARING DATE:

27 April 2011

JUDGE:

Newton DCJ

ORDER:

Respondent to pay criminal compensation to the applicant in the amount of $37,500.

CATCHWORDS:

CRIMINAL LAW – compensation – causation – injury caused by compensable and non-compensable events – compensation not apportioned.

Criminal Offence Victims Act 1995.

Criminal Offence Victims Regulations 1997.

Victims of Crime Assistance Act 2009.

SAY v AZ, Ex parte Attorney-General of Queensland [2006] QCA 462.

COUNSEL:

Mr P Hofstee, solicitor, for the applicant.

No appearance for the respondent.

SOLICITORS:

Hofstee Lawyers as town agent for Legal Aid Queensland for the applicant.

No appearance for the respondent.

This is an application for criminal compensation pursuant to Section 24 of the Criminal Offence Victims Act 1995 and also pursuant to Regulation 1A of the Criminal Offence Victims Regulations for the adverse impacts of a sexual offence. The applicant’s date of birth is 28 February 1983. At the time of the relevant offences, she was aged approximately 13 years and is now aged 28 years. The respondent to this application was aged approximately 39 years at the date of the offences. He was the applicant’s stepfather.

The affidavit of Wayne Colin Heydt, commercial agent, filed 7 March 2011 establishes to my satisfaction that the respondent was served on 14 February 2011 with the following documents:

(a) Letter from Legal Aid Queensland dated 8 February 2011 advising new date for hearing;

(b) Originating application (Filed on 10 November 2009);

(c) Affidavit of the applicant;

(d) Affidavit of Dr Barbara McGuire; and

(e) Affidavit of Debbie Richardson, paralegal with Legal Aid Queensland.

There was no appearance by or on behalf of the respondent at the hearing of this application.

The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. Section 155(1) of the Victims of Crime Assistance Act 2009 provides that where a conviction happens before commencement, a person may apply to the Court for an order for criminal injuries compensation if Section 145(1)(a)(i) applies to the person. It may be accepted that, had the Victims of Crime Assistance Act 2009 not commenced, the applicant could have applied to the Court for compensation under the Criminal Offence Victims Act 1995. Section 167(2) provides that if a person has applied to the Court for an order for compensation under the old scheme, then the Court must hear and determine the application under the repealed provision.

This application (number 497/09) was filed on 10 November 2009, prior to the commencement of the Victims of Crimes Assistance Act 2009. Section 40(1) of the Criminal Offence Victims Act 1995 provides that an application to a Court for a compensation order against a convicted person must be made:

“(a) within three years after the…

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 HJR v Kwa

Details

AGLC: HJR v Kwa [2011] QDC 63
Case: [2011] QDC 63
Decision Date: 3 May 2011

CaseChat Overview and Summary

The case of HJR v Kwa involves the applicant, HJR, seeking compensation from the respondent, Kwa, for injuries sustained during a criminal act. The dispute was heard in the relevant Australian court, which was tasked with determining the quantum of compensation, if any, that should be awarded to HJR. The injuries in question were caused by both compensable and non-compensable events, necessitating a detailed analysis of causation and the respective contributions of each event to the injury.

The court was required to decide whether compensation should be apportioned based on the respective contributions of the compensable and non-compensable events, or if the applicant was entitled to full compensation regardless of the non-compensable nature of some of the events. The primary legal issue was the extent to which the respondent should be held liable for the injuries caused by events that were not compensable under the applicable legislation. The court also needed to consider whether there was a duty of care owed by the respondent to the applicant, and if so, whether that duty was breached, leading to the compensable injuries.

In its reasoning, the court found that the injuries caused by both compensable and non-compensable events were the direct result of the respondent's actions. Despite the mixed nature of the events, the court held that the respondent was liable for the full extent of the injuries sustained by the applicant. The court emphasised that the legislation did not require apportionment of compensation based on the nature of the events that caused the injury. Consequently, the respondent was ordered to pay criminal compensation to the applicant in the amount of $37,500, without any reduction due to the non-compensable events.

Orders

Orders of the court

Respondent to pay criminal compensation to the applicant in the amount of $37,500.

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:	HJR v KWA [2011] QDC 63
PARTIES:	HJR (Applicant) v KWA (Respondent)
FILE NO/S:	D597/09
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	3 May 2011
DELIVERED AT:	Southport
HEARING DATE:	27 April 2011
JUDGE:	Newton DCJ
ORDER:	Respondent to pay criminal compensation to the applicant in the amount of $37,500.
CATCHWORDS:	CRIMINAL LAW – compensation – causation – injury caused by compensable and non-compensable events – compensation not apportioned. Criminal Offence Victims Act 1995. Criminal Offence Victims Regulations 1997. Victims of Crime Assistance Act 2009. SAY v AZ, Ex parte Attorney-General of Queensland [2006] QCA 462.
COUNSEL:	Mr P Hofstee, solicitor, for the applicant. No appearance for the respondent.
SOLICITORS:	Hofstee Lawyers as town agent for Legal Aid Queensland for the applicant. No appearance for the respondent.