MBA v Aae - [2008] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

MBA v AAE [2008] QCA 187

PARTIES:

MBA
(applicant/respondent)
v
AAE
(respondent/applicant)

FILE NO/S:

Appeal No 3440 of 2008
DC No 33 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

16 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2008

JUDGES:

de Jersey CJ, Muir JA and Fraser JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1) That the application be refused

2) That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where District Court Judge awarded the present respondent $3,375 compensation under the Criminal Offences Victims Act 1995 (Qld), a reduction by one-half of the primary amount that was $6,750 – where the applicant seeks leave to appeal against the decision of the District Court, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contends that the primary amount should be further reduced – where the applicant additionally contends that the respondent’s conduct precluded any award, because the respondent’s injury was caused by an offence to which the respondent was a party – whether the applicant should be granted leave to appeal

Criminal Code 1899 (Qld), s 213
Criminal Offence Victims Act 1995 (Qld), s 19 (2), s 25(7), s 31
District Court of Queensland Act 1967 (Qld), s 118(3)

Buckland v The Estate of Kennedy[2000] QSC 337, considered
Cleland v Major[2002] QDC 195, considered
Green v Dalton[2005] QDC 78, considered
Hohn v King [2004] 2 Qd R 508; [2004] QCA 254, considered
R v Jones; ex parte Zaicov [2002] 2 Qd R 303; [2001] QCA 442, considered

COUNSEL:

C A White for the respondent/applicant (pro bono)
S J Hamlyn-Harris for the applicant/respondent

SOLICITORS:

No appearance for the respondent/applicant
Legal Aid Queensland for the applicant/respondent

THE CHIEF JUSTICE: This proceeding concerns a judgment of the District Court, given on the 26th March 2008, awarding the present respondent, MBA, the amount of $3,375 compensation under the Criminal Offence Victims Act 1995.

On the 14th April, 2008, the present applicant, AAE, filed an application for extension of time for the filing of a notice of appeal. Because the amount of the judgment is less than $50,000, it was necessary for AAE to obtain leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). She needed to file that application within 28 days of the decision. The date of the filing of the extension application, 14th April 2008, fell within that 28 day period, so that an extension of time was not necessary.

The application specifies grounds…

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 MBA v Aae

Details

AGLC: MBA v AAE [2008] QCA 187
Case: [2008] QCA 187
Decision Date: 16 July 2008

CaseChat Overview and Summary

The applicant, MBA, sought leave to appeal against the decision of the District Court, which awarded the respondent $3,375 compensation under the Criminal Offences Victims Act 1995 (Qld). The District Court had reduced the primary amount of $6,750 by one-half. The applicant contended that the primary amount should be further reduced, arguing that the respondent's conduct precluded any award. This was based on the respondent's participation in the offence that caused the injury. The applicant sought leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

The primary legal issue was whether the applicant should be granted leave to appeal the District Court's decision. The court considered whether there was a substantial miscarriage of justice or a significant procedural error in the District Court's judgment. The court found that the District Court had properly exercised its discretion in reducing the compensation amount by one-half. The court held that the respondent's involvement in the offence did not preclude the award of compensation, as the Act allows for compensation to be awarded even when the victim was a party to the offence. The court concluded that the District Court's decision did not result in a substantial miscarriage of justice or a significant procedural error.

The court refused the application for leave to appeal. The court found that the District Court had adequately considered the relevant factors in determining the compensation amount. The court held that the District Court's decision was not unreasonable or unjust. The applicant was ordered to pay the respondent's costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1) That the application be refused

2) That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis

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:	MBA v AAE [2008] QCA 187
PARTIES:	MBA (applicant/respondent) v AAE (respondent/applicant)
FILE NO/S:	Appeal No 3440 of 2008 DC No 33 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	16 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2008
JUDGES:	de Jersey CJ, Muir JA and Fraser JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1) That the application be refused 2) That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where District Court Judge awarded the present respondent $3,375 compensation under the Criminal Offences Victims Act 1995 (Qld), a reduction by one-half of the primary amount that was $6,750 – where the applicant seeks leave to appeal against the decision of the District Court, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contends that the primary amount should be further reduced – where the applicant additionally contends that the respondent’s conduct precluded any award, because the respondent’s injury was caused by an offence to which the respondent was a party – whether the applicant should be granted leave to appeal Criminal Code 1899 (Qld), s 213 Criminal Offence Victims Act 1995 (Qld), s 19 (2), s 25(7), s 31 District Court of Queensland Act 1967 (Qld), s 118(3) Buckland v The Estate of Kennedy[2000] QSC 337, considered Cleland v Major[2002] QDC 195, considered Green v Dalton[2005] QDC 78, considered Hohn v King [2004] 2 Qd R 508; [2004] QCA 254, considered R v Jones; ex parte Zaicov [2002] 2 Qd R 303; [2001] QCA 442, considered
COUNSEL:	C A White for the respondent/applicant (pro bono) S J Hamlyn-Harris for the applicant/respondent
SOLICITORS:	No appearance for the respondent/applicant Legal Aid Queensland for the applicant/respondent