MAV v ABA - [2007] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

MAV v ABA [2007] QCA 124

PARTIES:

MAV
(plaintiff/appellant)
v
ABA
(defendant/respondent)
ATTORNEY-GENERAL OF QUEENSLAND
(intervenor)

FILE NO/S:

Appeal No 10078 of 2006
DC No 457 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time / General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2007

JUDGES:

Jerrard JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal be granted
2. Appeal allowed with costs to be assessed
3. The order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – QUEENSLAND – where the appellant fell pregnant after being raped by the respondent – where compensation was awarded – whether the learned judge made inadequate assessment under the Criminal Offence Victims Act1995 (Qld)

Criminal Offence Victims Act1995 (Qld), s 24
Criminal Offence Victims Regulation1995 (Qld), reg 1A

HV v LN [2000] QCA 472, Appeal No 8149 of 200, 24 November 2000, applied
HW v LO [2000] QCA 377, Appeal No 3016 of 2000, 15 September 2000, applied
R v Atwell ex parte Jullie [2002] 2 Qd R 367, applied
R v Bridge and Madams ex parte Larkin [1989] 1 Qd R 554, applied
R v Tiltman; ex parte Dawe, unreported, Lee J SC No 324 of 1995, 22 June 1995
SAY v AZ ex parte Attorney-General (Qld) [2006] QCA 462, Appeal No 583 0f 2006, 10 November 2006, applied

COUNSEL:

D Honchin for the appellant
S Hinson SC for the intervenor

SOLICITORS:

Purcell Taylor Lawyers for the appellant
Crown Solicitor for the intervenor

JERRARD JA: I have read the reasons of Jones J in this matter and I respectfully agree with His Honour’s reasons and the orders that His Honour proposes.

CULLINANE J: I have had the opportunity to read the reasons of Jones J in this matter. I agree with his reasons and the orders he proposes.

JONES J: By these proceedings the applicant seeks an extension of time within which to seek leave to appeal and then to appeal against the order of the District Court at Townsville whereby she was awarded compensation in the sum of $55,500 against the respondent. The extension of time is necessary because the order sought to be varied was pronounced in the District Court on 20 October 2006 but the application and Notice of Appeal were not in fact filed until 21 November 2006. This short delay was caused by the late delivery of the documents in the ordinary course of post. The respondent did not appear to argue the appeal and…

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 MAV v ABA

Details

AGLC: MAV v ABA [2007] QCA 124
Case: [2007] QCA 124
Decision Date: 13 April 2007

CaseChat Overview and Summary

In the case of MAV v ABA, the appellant, MAV, appealed against a judgment made by the District Court of Queensland, following an incident where she was raped by the respondent, ABA. MAV fell pregnant as a result of the rape and sought compensation for the pregnancy and associated damages under the Criminal Offence Victims Act 1995 (Qld). The District Court awarded MAV $55,500 in damages, which she appealed, arguing that the assessment was inadequate.

The legal issue at hand was whether the learned judge had made an inadequate assessment of the damages awarded under the Act. The court needed to determine if the District Court judge had correctly exercised their discretion in awarding compensation and whether the amount awarded was reasonable in the circumstances. The court also had to consider if the assessment was consistent with the principles set out in the Act.

The appeal was allowed, and the application for leave to appeal was granted. The court found that the District Court judge had erred in making the assessment of damages. The amount awarded was considered inadequate in light of the nature and impact of the crime on the victim. The court varied the amount of damages awarded to $65,500, which reflected a more appropriate assessment of the compensation MAV was entitled to receive. The appeal was allowed with costs to be assessed.

Orders

Orders of the court

1. Application for leave to appeal be granted

2. Appeal allowed with costs to be assessed

3. The order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500

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:	MAV v ABA [2007] QCA 124
PARTIES:	MAV (plaintiff/appellant) v ABA (defendant/respondent) ATTORNEY-GENERAL OF QUEENSLAND (intervenor)
FILE NO/S:	Appeal No 10078 of 2006 DC No 457 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time / General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	13 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2007
JUDGES:	Jerrard JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal be granted 2. Appeal allowed with costs to be assessed 3. The order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – QUEENSLAND – where the appellant fell pregnant after being raped by the respondent – where compensation was awarded – whether the learned judge made inadequate assessment under the Criminal Offence Victims Act1995 (Qld) Criminal Offence Victims Act1995 (Qld), s 24 Criminal Offence Victims Regulation1995 (Qld), reg 1A HV v LN [2000] QCA 472, Appeal No 8149 of 200, 24 November 2000, applied HW v LO [2000] QCA 377, Appeal No 3016 of 2000, 15 September 2000, applied R v Atwell ex parte Jullie [2002] 2 Qd R 367, applied R v Bridge and Madams ex parte Larkin [1989] 1 Qd R 554, applied R v Tiltman; ex parte Dawe, unreported, Lee J SC No 324 of 1995, 22 June 1995 SAY v AZ ex parte Attorney-General (Qld) [2006] QCA 462, Appeal No 583 0f 2006, 10 November 2006, applied
COUNSEL:	D Honchin for the appellant S Hinson SC for the intervenor
SOLICITORS:	Purcell Taylor Lawyers for the appellant Crown Solicitor for the intervenor