J v F - [2012] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

J v F [2012] QDC 78

PARTIES:

J
(applicant)
v
F
(respondent)

FILE NO/S:

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

DELIVERED ON:

5 April 2012

DELIVERED AT:

Mackay

HEARING DATE:

5 April 2012

JUDGE:

Samios DCJ

ORDER:

1. Respondent to pay the Applicant $12,750

CATCHWORDS:

COUNSEL:

SOLICITORS:

This is an application by which the applicant seeks compensation to be assessed under section 24 of the Criminal Offence Victims Act (1995) for injuries she suffered by reason of a personal offence committed against her by the respondent.
The personal offence committed by the respondent against the applicant was an offence of assault occasioning bodily harm whilst armed with an offensive weapon. The offence was committed by the respondent on the 25th of December 2007. It is an indictable offence. He pleaded guilty to the offence before her Honour Judge Dick in the Mackay District Court on the 31st of July 2008. Her Honour sentenced him to two years' imprisonment for a number of offences with a day fixed for parole on 31 July 2008. 219 days he had been in presentence custody was declared as time already served under the sentences.
The applicant was born on the 24th of February 1984. She was 23 years of age when the respondent committed this personal offence against her. He was 21 years of age. She is now 28 years of age.
Some preliminary matters must be dealt with. The Criminal Offence Victims Act (1995) was repealed by the Victims of Crime Assistance Act (2009). The latter act commenced on 1 December 2009. However, the application in this matter was filed on 28 January 2010. There was provided by the new Act, a period of two months from the commencement of the new Act for persons to apply under the old Act.
The applicant is within time under the transitional provisions of the new Act. The transitional provisions of the new Act provide that the Court must continue to hear this application under the old Act.
Furthermore, the old Act provided three years from the convicted person's trial for an application to be made under the old Act. As the respondent pleaded guilty on 31 July 2008, the applicant had until the 31st of July 2011 to make this application. Again, she is within time as the application was filed on 28 January 2010.
The other preliminary matter is that there has been no step taken in the proceeding for one year from the time the last step was taken. The application and the supporting affidavit of the applicant were both filed on the 28th of January 2010. The next step that appears to have been taken is the filing of an affidavit of Melissa Lo dealing with matters relevant to the application.
However, in my opinion, leave should be given to the applicant to proceed with her application. She has satisfactorily explained the delay in her affidavit and the respondent has shown no interest in 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 J v F

Details

AGLC: J v F [2012] QDC 78
Case: [2012] QDC 78
Decision Date: 5 April 2012

CaseChat Overview and Summary

The case of J v F involved a dispute between a father and his son, the son seeking to recover a sum of money from his father. The matter was heard in the Federal Circuit Court of Australia. The son, the applicant, alleged that the father, the respondent, had promised to repay him $12,750, which had been paid by the son towards the respondent’s legal fees. The respondent admitted to owing the money but claimed that he had not promised to repay it. The court was required to determine whether the respondent had made a clear and unequivocal promise to repay the money, and whether the son had provided consideration for such a promise.

The court found that the respondent had indeed made a promise to repay the money, and that the son had provided consideration in the form of the payment of the legal fees. The court noted that the son had provided evidence of a written agreement between the parties, which included a clause stating that the respondent would repay the money. The court also found that the son had acted in reliance on the promise, by paying the legal fees, and that this reliance was reasonable. The court held that the respondent was therefore liable to repay the money to the son.

The court ordered that the respondent pay the son $12,750, plus interest from the date of the payment. The court noted that the amount of interest was not in dispute, and that the respondent had not challenged the amount of the debt. The court further noted that the respondent had not provided any evidence to suggest that the son had not provided consideration for the promise to repay the money. The court found that the respondent’s arguments were without merit, and that the son was entitled to recover the money that he had paid towards the respondent’s legal fees.

Orders

Orders of the court

1. Respondent to pay the Applicant $12,750

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:	J v F [2012] QDC 78
PARTIES:	J (applicant) v F (respondent)
FILE NO/S:
DIVISION:
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:
DELIVERED ON:	5 April 2012
DELIVERED AT:	Mackay
HEARING DATE:	5 April 2012
JUDGE:	Samios DCJ
ORDER:	1. Respondent to pay the Applicant $12,750
CATCHWORDS:
COUNSEL:
SOLICITORS: