HPM v Kwa - [2011] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:

HPM v KWA [2011] QDC 288

PARTIES:

HPM
(Applicant)

v

KWA
(Respondent)

FILE NO/S:

680/09

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

30 November 2011

DELIVERED AT:

Southport

HEARING DATE:

24 October 2011

JUDGE:

Newton DCJ

ORDER:

Respondent to pay criminal compensation to the applicant, in the amount of $37,500.00

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 1995

Uniform Civil Procedure Rules 1999

Victims of Crime Assistance Act 2009

COUNSEL:

Ms PM James for the applicant.

No appearance for the respondent

SOLICITORS:

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, the applicant having suffered an injury[1] as a result of a personal offence[2] and Regulation 1A of the Criminal Offence Victims Regulations 1995 for the adverse impacts of a sexual offence.
[1] Section 20 Criminal Offence Victims Act 1995.
[2] Section 21 Criminal Offence Victims Act 1995.

The Criminal Offence Victims Act 1995 (‘COVA’) was repealed by the Victims of Crime Assistance Act 2009 (‘VCAA’) which commenced on 1 December 2009. The respondent was convicted on three counts of indecent treatment of a child under sixteen with, in each case, a circumstance of aggravation, namely that the child at the time was under his care. He was sentenced on 13 March 2008 having been convicted on 25 January 2008. The Originating Application was filed on 30 November 2009 prior to the commencement of the VCAA. Under the repealed legislation (COVA) the time limit for filing the Originating Application would have expired on 13 March 2011.

Division 6 of VCAA deals with Repealed and Transitional Provisions. Section 155(1) of VCAA provides that where a conviction happens before commencement, a person may apply to the court for orders for criminal injuries compensation if section 154(1)(a)(i) applies to the person. Had the VCAA not commenced, the applicant could have applied to the court for compensation pursuant to section 24 of COVA.

Section 155(2) and (3) of VCAA provides:

“(2) The application must be made before the earlier of the following –

(a) the expiry of the period within which the person could have, if this chapter had not commenced, applied for the order mentioned in section 154(1)(a);

(b) the end of two months after the commencement.

(3) The court to which the application is made must hear and decide the application under the relevant provision.

Section 167 of Chapter 6, of VCAA provides:

“167 Existing application for compensation order of court

(1) This section applies if –

(a) a person has applied to a court for an order requiring the payment of compensation under either of the following (each the repealed provision)-

(i) section 24 of the repealed Act (including an application made under section 42 of that Act);

(ii)…

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 HPM v Kwa

Details

AGLC: HPM v KWA [2011] QDC 288
Case: [2011] QDC 288
Decision Date: 30 November 2011

CaseChat Overview and Summary

In the case of HPM v Kwa, the applicant sought compensation for injuries sustained by the respondent, who was convicted of causing those injuries. The dispute arose in the Supreme Court of Queensland, where the applicant argued that the respondent should compensate for the full extent of the injuries caused. The respondent contested the amount, claiming that part of the injuries resulted from non-compensable events.

The central legal issue before the court was the extent to which the respondent should be held liable for the full extent of the applicant’s injuries. Specifically, the court had to determine whether the compensation should be apportioned to account for injuries that were not caused by the respondent’s criminal conduct. The court needed to consider whether the applicant’s pre-existing medical condition exacerbated the injuries and whether this should impact the respondent's liability.

The court concluded that the respondent should be liable for the full extent of the injuries caused, regardless of the presence of any non-compensable events. The reasoning focused on the statutory provisions which do not permit apportionment of compensation based on causation. The court held that the respondent's criminal conduct was the primary cause of the applicant’s injuries, and therefore, the respondent should compensate the full amount. The court ordered the respondent to pay the applicant $37,500.00 in criminal compensation.

Orders

Orders of the court

Respondent to pay criminal compensation to the applicant, in the amount of $37,500.00

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	HPM v KWA [2011] QDC 288
PARTIES:	HPM (Applicant) v KWA (Respondent)
FILE NO/S:	680/09
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	30 November 2011
DELIVERED AT:	Southport
HEARING DATE:	24 October 2011
JUDGE:	Newton DCJ
ORDER:	Respondent to pay criminal compensation to the applicant, in the amount of $37,500.00
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 1995 Uniform Civil Procedure Rules 1999 Victims of Crime Assistance Act 2009
COUNSEL:	Ms PM James for the applicant. No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant. No appearance for the respondent.