Moon v Moon

[1999] QCA 400

99.400

COURT OF APPEAL

DAVIES JA
McPHERSON JA

AMBROSE J

Appeal No 4382 of 1999

ALMA MOON	Applicant
and
GUY MOON	Respondent

BRISBANE
..DATE 17/09/99
170999 D.1 T7/RW15 M/T COA 230/99
DAVIES JA: This is an application for leave to appeal,
and to extend time within which to do so, from an order
for criminal compensation under chapter 65A of the
Criminal Code. The order was made under those provisions
because the injury was suffered on 1 April 1995 before the
commencement of the Criminal Offence Victims Act of 1995.

See section 46(2) of that Act.

The order the subject of this application was made on
14 April 1999. The notice of appeal was filed on 13 May.

In view of the very short time which elapsed and the explanation which was given, I would, for my part, be prepared to extend the time within which to make the application for leave to appeal and within which to appeal if leave were granted.

The important question in the case is one as to whether
this Court should grant leave. The amount awarded was
$8,000 and for that reason it was necessary to obtain the
leave of this Court under section 118(3) of the District
Court Act which applies to this case: see Stimson v.
Webb-Myer CA No 27 of 1995, judgment delivered 18 August

1995.

In short but careful reasons the learned primary Judge
correctly stated that, subject to a maximum amount of
$76,000, compensation was required to be assessed in
accordance with the principles applicable to the
assessment of damages for personal injury: see The Queen
v. Jones; ex parte McClintock (1995) 79 ACrimR 238.
170999 D.1 T7/RW15 M/T COA 230/99

It was not submitted to this Court that His Honour erred in deciding to apply those principles. However, the applicant submits that the amount which His Honour assessed was too low. It might be doubted whether a submission merely to that effect would be sufficient to justify a grant of leave. But the applicant submits more than this, in that it is asserted in the written outline that the amount assessed should have been $70,000.

Mr Bourke, who appears for the applicant before us, does not contend for an amount as high as that, but does contend for an amount which is so much higher than the amount which His Honour awarded, that he submits it indicates an error of such magnitude in His Honour's reasoning as to justify a grant of leave.

In the course of those submissions he referred us to a
number of judgments in the District Court in applications
of this kind in which for somewhat similar injuries higher
awards were made. A perusal of those cases leads me to
the view that the awards, at least in some of those cases,
were very high indeed, but it is unnecessary to consider
those further. We are not considering any question of

appeal against those awards.

As was pointed out during the course of argument, however,
it is safer to look, in order to get some satisfactory
comparison, to awards of damages for personal injuries,
bearing in mind, of course, that the upper limit is,
170999 D.1 T7/RW15 M/T COA 230/99
nevertheless, $76,000.
But the question in the end, in my view, is not whether
the amount assessed by His Honour is low, or even too low,
but whether it is so low as to indicate some error on His
Honour's part. Unless there was some such error, in my
view leave should not be granted. Taking that approach,
and after a careful reading of the rather unsatisfactory
material which was before the learned primary Judge, I am
satisfied that there is no substance in the applicant's
contention.

His Honour was entitled to make the findings which he did, and on those findings I cannot be satisfied that the learned primary Judge erred in the respect which must be satisfied in order to grant leave to appeal. Indeed, I do not think that the award which he made was manifestly inadequate, even if that were the test. I would therefore refuse the application.

McPHERSON JA: I agree.

AMBROSE J: I agree.

DAVIES JA: The application is refused.

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