Murphy v Green

[2002] QDC 10

DISTRICT COURT OF QUEENSLAND

[2002] QDC 010

REGISTRY: ROCKHAMPTON

NUMBER:  D12 OF 2002

APPLICANT:	MATTHEW LOUIS MURPHY
and
RESPONDENT:	KERRY GEORGE GREEN

REASONS FOR JUDGMENT

BEFORE HIS HONOUR JUDGE BRITTON S.C.

DELIVERED the 14th day of February 2002

This is an application for compensation pursuant to the provisions of the

Criminal Offence Victims Act 1995.

The matter came on for hearing before me on the 22nd January 2002. There

was no appearance by on or behalf of the respondent and the applicant was

represented by Counsel (Mr Kimmins) who appeared by telephone with my

consent.

In the course of hearing the application it became apparent that personal

service of the application and supporting material had not been effected upon

the respondent. An affidavit by Keith Stubbins was read in which he swore

that on the 5th December 2001 he attended at premises at 281 Campbell

Street, Rockhampton where he spoke with a male occupant who told him that

the respondent had previously resided at that address but was no longer there. The male occupant informed Mr Stubbins that the respondent had

recently been imprisoned. Mr Stubbins left his name and contact details with

this person and also contacted the Rockhampton Prison but was told that the

respondent was no longer an inmate. Later on the same day Mr Stubbins

received a telephone call from a person who identified himself as the

respondent Kerry Green. Mr Stubbins said he informed that person that he

had documentation to serve upon him in relation to an application for victim

compensation by the applicant. There was some short general conversation

at the conclusion of which the caller asked Mr Stubbins to post the documents

to him at C/- 281 Campbell Street, Rockhampton where he would be able to

take delivery. The caller informed Mr Stubbins that he did not live there but

that he would never the less get the documents. Mr Stubbins then put the

originating application and supporting material into an envelope and delivered

it personally to 281 Campbell Street, Rockhampton together with a note

requesting that the respondent contact the applicant’s solicitors. He spoke to

another occupant of the premises who was a different person from the one he

had spoken to previously and this person told him that the respondent was not

present at the house but that he knew him and he undertook to give the

envelope and contents to the respondent. He identified himself as Chris Hill.

An affidavit by Anthony Harold Hyde Bailey filed on the 21st January 2002 was

also read. Mr Bailey swore that he caused an advertisement (a copy of which

was exhibited to the affidavit) to be placed in the Rockhampton Morning

Bulletin newspaper. He did not swear as to the date the advertisement

appeared in the newspaper but at the top of the exhibit the handwritten words “Rockhampton Morning Bulletin 17th January 2002” appear and I infer from

that that it was published on the 17th January 2002.

Counsel for the applicant submitted that in those circumstances I could

dispense with personal service of the document and proceed with the hearing

of the application. Mr Kimmins then made submissions in relation to the

substantive application and I reserved my decision.

The application in this matter is originating process pursuant to the Uniform

Civil Procedure Rules 1999. Rule 105(1) requires originating process to be

served personally on the person intended to be served. Rule 106(1) provides

that to serve a document personally the person serving it must give the

document or a copy of the document to the person intended to be served.

Rule 116(1) provides:

“If, for any reason it is impracticable to serve a document in a way required under this chapter, the Court may make an order substituting another way of serving the document.”

There is no express provision in the Rules permitting a Court to make an

order simply dispensing with service.

Rule 117 provides:

“If –

(a)	for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
(b)	a Court is satisfied on evidence before it that the document came in the person’s possession on or before a particular day;

the Court may, by order, decide that the possession of the document is service for these rules on the day it came into the person’s possession or another day stated in the order.”

This rule does not apply because there is no evidence that the process ever

came into the possession of the respondent.

It seems to me that the steps taken to endeavour to notify the respondent of

the application are those which might well have been ordered to be taken if

an application had been made for substituted service. It therefore does not

seem to be necessary to make an order for substituted service the practical

result of which would be that the same steps that have already been taken

would be taken again with significant cost to the applicant which of course

cannot be recovered in relation to an application for criminal compensation.

Rule 366(2) empowers the Court to give directions about the conduct of a

proceeding at any time.

Rule 367(1) provides that the Court may make any order or direction about

the conduct of a proceeding it considers appropriate, even though the order

or direction may be inconsistent with another provision of the rules.

In those circumstances, it seems to me to be appropriate that I direct that it is

unnecessary for a formal application for substituted service to be made and

that the steps taken by the applicant as deposed to in the affidavit of Mr Stubbins and the affidavit of Mr Bailey be deemed to be substituted service of

the application and supporting documents and that the respondent be taken

to have been served upon the date of publication of the advertisement in the

Rockhampton Morning Bulletin namely the 17th January 2002.

In the circumstances then I am satisfied that the substantive application

should proceed.

The applicant is now 29 years of age having been born on the 23rd July 1972.

The offence the commission of which against him is alleged to have caused

him to suffer injury was assault occasioning bodily harm and this was

committed on the 24th April 1999. The respondent pleaded guilty to the

offence of assault occasioning bodily harm on the 2nd May 2000 and was

sentenced to six months imprisonment to be served by way of an intensive

correction order.

The circumstances in which the offence was committed are briefly set out in

the affidavit of the applicant filed on the 18th January 2002. A copy the

applicant’s statement to the police which he has sworn to be correct is

exhibited to the affidavit of Anthony Harold Hyde Bailey filed on the 18th

January 2002. Early on the morning of the 24th April 1999 the applicant was

at his residence at Biloela and about to go to bed when he heard a noise

coming from outside the house. He went onto his verandah and whilst there

heard a male voice making loud use of obscene language. He went to

investigate and ultimately was challenged by the respondent and assaulted by him. He was trying to calm the respondent down and the respondent was

being very aggressive and agitated. The applicant was not trying to threaten

him in anyway whatsoever. The assault consisted of a single blow to the left

hand side of the applicant’s nose.

The applicant was taken to the Biloela hospital where he was seen by a

medical practitioner Dr Gaskell. Dr Gaskell observed bruising and swelling to

the left side of the applicant’s face close to the nose and dried blood over the

left side of the nose. He observed an obvious deformity of the nose and

dried blood in the nostrils. He made a provisional diagnosis of a fracture of

the nose and arranged for x-ray which confirmed that there was a fracture.

Exhibited to the affidavit of Anthony Harold Hyde Bailey filed on the 18th

January 2002 is a report by Dr Ibraham Rabie a Head and Neck Surgeon. Dr

Rabie said that there was no doubt that the injury sustained to the external

nasal bone was consistent with a blunt trauma which may have occurred as a

result of a direct hit. He said that despite the external deformity of the

external nasal pyramid there was no significant degree of dysfunction or any

permanent damage that occurred to the nose. He said that the applicant was

unlikely to suffer from a long term disfigurement as a result of the injury. He

said that the question as to whether he would require any further treatment or

not would depend on his satisfaction with outcome of the reduction of the

external nasal skeleton deformity after the injury.
The applicant was seen by Dr Ian Curtis consultant psychiatrist who has

sworn an affidavit to which is exhibited a copy of his report of the 11th August

2000. He said that the applicant had suffered from a moderately severe

acute stress disorder as a result of the assault. He said this was a nervous

shock in the middle of the moderate range with some continuing mild nervous

problems as a result of trauma. He went on to say that the applicant had

suffered from a displaced fracture of the nose with deforming disturbances of

bone and cartilage such that his left nostril collapsed and his nose was

deviating to the right. Two photographs were attached to the report and Dr

Curtis said that these photographs indicated the lack of bone and

cartilaginous support of the left nostril. He said that it needed to be

appreciated that when air is sucked through the airway there would be a

tendency for the left nostril to collapse and it was a function of the bone and

cartilaginous supports of the nose to support the nostrils without a collapse

obstructing the airway and also to support an actual flaring and opening up of

the nostrils as a reflex action when more air was needed. Dr Curtis said that

therefore the functional impairment was more significant then the cosmetic

deviation and the visible loss of bulk on the left side of the applicant’s nose. I

accept Dr Curtis’ opinion in relation to nervous shock and with some

reservation in relation to the physical injury to the nose bearing in mind that

although Dr Curtis is a duly qualified medical practitioner his speciality is in

the field of psychiatry rather than as an ear nose and throat specialist.

It seems to me that the applicant’s physical injury falls for assessment under

item 4 of the compensation table in schedule 1 to the Criminal Offence Victims Act 1995 where the range is from 8% to 20% of the scheme

maximum. In my view compensation should be assessed in the middle of

that range at 14% of the scheme maximum or $10,500.

So far as the mental or nervous shock is concerned accepting as I do the

opinion of Dr Curtis this should be assessed under item 32 “mental or

nervous shock (moderate)” for which the range is 10% to 20%. In light of Dr

Curtis’ opinion the compensation should be assessed at 15% of the scheme

maximum or $11,250. The total of the compensation assessed is therefore

$21,750.

Having regard to the statement of the applicant as to the circumstances in

which he was assaulted there is no matter which pursuant to section 25(7)

adversely impacts upon the making of an award of compensation or the

amount of an award in favour of the applicant. I specifically find that there

was no behaviour on the part of the applicant which directly or indirectly

contributed to the injury. I accept that he did not in any way provoke the

respondent at that at all times he was endeavouring to indicate to the

respondent that he was not in any way a threat to him.

In all of the circumstances therefore I order that the respondent pay to the

applicant by way of compensation the sum of $21,750.

G. T. BRITTON S.C. DCJ