HV v LN - [2000] QCA 472

SUPREME COURT OF QUEENSLAND

CITATION: HV v LN [2000] QCA 472

PARTIES: HV
(applicant/appellant)
v
LN
(respondent/respondent)

FILE NO/S: Appeal No 8149 of 2000
DC No 278 of 2000

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 24 November 2000

DELIVERED AT: Brisbane

HEARING DATE: 24 October 2000

JUDGES:
Pincus and Thomas JJA, Byrne J

Separate reasons for judgment of each member of the court, each concurring as to the orders made.

ORDER: Application for extension of time granted. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND - claim for compensation for nervous shock or adverse impact suffered as a consequence of offence of maintaining an unlawful relationship of a sexual nature – where particulars of offence committed over period both before and after Criminal Offence Victims Compensation Act 1995 – whether whole of injury compensible under Criminal Offence Victims Compensation Act 1995 - necessary to apportion effects attributed to period before Criminal Offence Victims Compensation Act 1995 took effect and period after it took effect and award appropriate compensation in respect of each period

Criminal Offence Victims Compensation Act 1995 (Qld), s 22(3), s 22(4), s 24(2) , s 25(8), s 46
Criminal Code (Qld), chapter 65A (repealed)

Chong v Chong [1999] QCA 314, CA No 11658 of 1998, 13 August 1999, considered
J L W (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, cited
Morrow v Kilmartin DC No 214 of 2000, 4 September 2000, disapproved

R v Cod; ex parte Cod DC No 1558 of 2000, 24 May 2000, disapproved

R v Gough; ex parte Bushnell Townsville DC No 41 of 1998, 5 March 1998, approved
R v Ianculescu [2000] 2 Qd R 521, distinguished
R v Jones; ex parte McClintock [1996] 1 Qd R 524, cited
R v Tiltman ex parte Dawe SC No 324 of 1995, 22 June 1995, considered
Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R 104, cited
Whyte v Robinson [2000] QCA 99, CA No 7292 of 1999, 28 March 2000, considered

COUNSEL: P S Hardcastle for the applicant/appellant
No appearance for the respondent

SOLICITORS: Legal Aid Queensland for the applicant/appellant
No appearance for the respondent

PINCUS JA: I agree with Thomas JA.

THOMAS JA: This is an application for extension of time for the filing of a notice of appeal. Subject to the extension being granted it was requested that the hearing of the application be taken as the hearing of the appeal.

In the proceeding before his Honour and in the application heard by this court there was no appearance by the respondent.

The application was filed 13 days late. The explanation offered for the delay is alleged difficulty in obtaining a copy of Hoath DCJ's reasons for judgment. The explanation is not very convincing, and it cannot be said that a good or…

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 HV v LN

Details

AGLC: HV v LN [2000] QCA 472
Case: [2000] QCA 472
Decision Date: 24 November 2000

CaseChat Overview and Summary

The matter of HV v LN involved a claim for compensation for the nervous shock and adverse impact suffered by the applicant, HV, as a result of an unlawful relationship of a sexual nature maintained by the respondent, LN. The dispute was heard and determined by the Queensland Court of Appeal. The applicant sought compensation under the Criminal Offence Victims Compensation Act 1995 (Qld) for the psychological injury suffered due to the unlawful relationship. The legal issue before the court was whether the whole of the injury was compensable under the Act, considering that the particulars of the offence occurred both before and after the Act came into effect.

The court held that the compensation claim should be apportioned to account for the effects of the injury that occurred before the Act took effect and the effects that occurred after. The court found that the applicant was entitled to compensation for the period after the Act was effective but not for the period before, as the Act did not provide retrospective coverage. The court also emphasised the need to fairly distribute the compensation based on the respective periods of the offence. The court dismissed the appeal, affirming that the lower court's approach to apportioning the compensation was appropriate.

Consequently, the court granted the application for an extension of time and dismissed the appeal. The final orders were that the applicant was entitled to compensation for the period after the Act came into effect, with no compensation awarded for the period before the Act took effect.

Orders

Orders of the court

Application for extension of time granted. Appeal dismissed.

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:	HV v LN [2000] QCA 472
PARTIES:	HV (applicant/appellant) v LN (respondent/respondent)
FILE NO/S:	Appeal No 8149 of 2000 DC No 278 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2000
JUDGES:	Pincus and Thomas JJA, Byrne J Separate reasons for judgment of each member of the court, each concurring as to the orders made.
ORDER:	Application for extension of time granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND - claim for compensation for nervous shock or adverse impact suffered as a consequence of offence of maintaining an unlawful relationship of a sexual nature – where particulars of offence committed over period both before and after Criminal Offence Victims Compensation Act 1995 – whether whole of injury compensible under Criminal Offence Victims Compensation Act 1995 - necessary to apportion effects attributed to period before Criminal Offence Victims Compensation Act 1995 took effect and period after it took effect and award appropriate compensation in respect of each period Criminal Offence Victims Compensation Act 1995 (Qld), s 22(3), s 22(4), s 24(2) , s 25(8), s 46 Criminal Code (Qld), chapter 65A (repealed) Chong v Chong [1999] QCA 314, CA No 11658 of 1998, 13 August 1999, considered J L W (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, cited Morrow v Kilmartin DC No 214 of 2000, 4 September 2000, disapproved R v Cod; ex parte Cod DC No 1558 of 2000, 24 May 2000, disapproved R v Gough; ex parte Bushnell Townsville DC No 41 of 1998, 5 March 1998, approved R v Ianculescu [2000] 2 Qd R 521, distinguished R v Jones; ex parte McClintock [1996] 1 Qd R 524, cited R v Tiltman ex parte Dawe SC No 324 of 1995, 22 June 1995, considered Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R 104, cited Whyte v Robinson [2000] QCA 99, CA No 7292 of 1999, 28 March 2000, considered
COUNSEL:	P S Hardcastle for the applicant/appellant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant No appearance for the respondent