Jacob v Roberts

[2002] QCA 87

SUPREME COURT OF QUEENSLAND

CITATION:

Jacob v Roberts [2002] QCA 87

PARTIES:

LANSTON CLARK JACOB
(applicant/applicant)
v
MELANIE BRITTANIA ROBERTS
(respondent/respondent)

FILE NO/S:

Appeal No 10194 of 2001
DC No 5080 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2002

JUDGES:

Davies, McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.  Application for leave to appeal granted
2.  Appeal dismissed

CATCHWORDS:

CRIMINAL LAW - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - where the applicant seeks compensation pursuant to Criminal Offence Victims Act 1995 - where the application was made after the expiry of the three year limitation period contained in s 40(1)(a) of the Criminal Offence Victims Act 1995 - where the respondent did not appear and did not plead the expiry of the limitation period as a defence - whether the applicant is entitled to compensation

LIMITATION OF ACTIONS - APPLICATION OF STATUTES OF LIMITATIONS - APPLICATION TO NEW RIGHT CREATED BY STATUTE - where Criminal Offence Victims Act 1995 contains within it a limitation period - whether the limitation period bars the remedy or the right - whether the limitation period is annexed by statute to a right which it creates so as to be the essence of that right

Criminal Code (Qld), s 663B
Criminal Offence Victims Act 1995 (Qld), s 40(1)(a), s 40(1)(c), s 41(1), s 41(2)
Limitation of Actions Act 1974 (Qld), s 30, s 31

Australian Iron and Steel Limited v Hoogland (1962) 108 CLR 471, applied
Byrnes v Groot Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13, considered
Maxwell v Murphy (1957) 96 CLR 261, applied

R v Chong;  ex parte Chong [2001] 2 QdR 301, distinguished

COUNSEL:

A J Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey (Samford) for the applicant
No appearance for the respondent

1. DAVIES JA:  This is an application for leave to appeal against the dismissal of an application for compensation pursuant to the Criminal Offence Victims Act 1995. That leave is necessary for this application is not in doubt.[1]

   [1]A proceeding on an application under the Act is a civil proceeding (s 30) and the amount for which judgment was given was less than the Magistrates Court's jurisdictional limit (District Court Act 1967, s 118(2)(a)(ii), (3)).

1. On 27 July 1998 the respondent was convicted of wounding the applicant on 19 September 1997.  On that latter date she stabbed him twice.

1. The principal question is issue before the learned District Court judge and the sole question involved in this application arises from the fact that it was made on 12 October 2001, more than three years after the respondent's conviction. Section 40 of the Act provides: