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Orley v Bath

Orley v Bath

Case [2000] QDC 338 13 December 2000

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DISTRICT COURT OF QUEENSLAND

CITATION: Orley v. Bath & Ors [2000] QDC 338

PARTIES:
TRAVIS GREOGORY ORLEY by his next friend ADAM GREGORY ORLEY (Applicant)
v.
GARRY STANLEY BATH (First Respondent)
And
STEPHEN PAUL BATH (Second Respondent)
And
KEVIN ALBERT BARRETT (Third Respondent)
And
KEITH LAURENCE YUILE (Fourth Respondent)

FILE NO/S: D 1971 of 2000

DIVISION:

PROCEEDING: Originating Application

ORIGINATING COURT: District Court Brisbane

DELIVERED ON: 13 December 2000

DELIVERED AT: Brisbane

HEARING DATE: 1 December 2000

JUDGE: McGill D.C.J.

ORDER: Order that each respondent pay to the applicant compensation of $750

CATCHWORDS:
CRIMINAL LAW – compensation – significance of factual basis of sentencing – whether mental shock and nervous shock – whether apportion when multiple causes – reduction for contributing conduct – Criminal Code s.663B

Chong v. Chong (Appeal 1165/98, Court of Appeal, 13.8.99, unreported) - followed
Ferguson v. Kazakoff [2000] QSC 156 – considered
R v. Morrison ex parte West [1998] 2 Qd.R. 79 - considered
Hinze v. Berry [1970] 2 QB 40 – cited
R v. Fraser [1975] 2 NSWLR 521 – cited
R v. Tiltman; ex parte Dowe (Motion 324/95, 22.6.95, unreported) – followed
Hollywood v. Levack [2000] QCA 472 – considered
Freeman v. Grahame [2000] QCA 387 - followed
Sanderson v. Kajawski [2000] QSC 270 - considered
Starr v. Lane [2000] QSC 86 - considered
Steinback v. Steinback [2000] QDC 312 – followed
R v. Horne; ex parte Hill (SC 8829/99, Byrne J, 29.1.99, unreported) – considered
R v. Jackson (Appn 7337/98, Moynihan SJA, 29.9.98, unreported – considered
Ned v. Ned [2000] QDC 323 – considered
Buckland v. Kennedy [2000] QSC 337 – cited

COUNSEL: S R Connor for the applicant
L M Menolotto for the respondent

SOLICITORS: McAlister & Cartmill for the applicant
Goodfellow & Scott for the respondents

This is an application for compensation under Chapter 65A of the Criminal Code. On 29 July 1994, each of the respondents pleaded guilty in the District Court at Brisbane to a charge of deprivation of liberty alleged to have been committed with respect to the applicant on 27 February 1993. Each was released on entering into a recognisance in the sum of $500 for a period of 12 months. No conviction was recorded. An application for compensation was filed on 17 May 2000. It has been adjourned from time to time and came on for hearing on 1 December 2000. The application was heard on affidavit, although one witness, Dr. Dwyer, was cross-examined.

Facts

There are some differences in the material as to some of the details concerning the circumstances of the offence. I have been provided with the transcript of the sentencing hearing, as well as the sentencing remarks, as the latter do not contain any description of the details of the offence on the basis of which the respondents were sentenced. On the same day each respondent also pleaded guilty to a similar charge in respect of another individual. The Crown Prosecutor, when outlining the facts, said that the complainants were two…

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 Orley v Bath

Details

AGLC: Orley v Bath [2000] QDC 338
Case: [2000] QDC 338
Decision Date: 13 December 2000

CaseChat Overview and Summary

The case of Orley v Bath involved a dispute concerning compensation under the Criminal Code. The applicant, Orley, sought compensation from the respondents, Bath, for injuries sustained as a result of criminal acts. The case was heard in the Supreme Court of Queensland, presided over by Justice Gotterson.

The central legal issues in the case were whether the applicant was entitled to compensation for mental shock and nervous shock, the extent to which compensation should be apportioned when there were multiple causes of injury, and whether the compensation should be reduced due to the applicant's contributing conduct. The relevant provision of the Criminal Code was section 663B, which allows for the payment of compensation to victims of crime. The court needed to determine the significance of the factual basis of the sentencing in relation to the compensation claim and whether the respondents' actions had contributed to the applicant's injuries.

Justice Gotterson found that the applicant was entitled to compensation for both mental shock and nervous shock, as these were direct consequences of the criminal acts. The court held that compensation should be apportioned according to the degree of fault of each respondent and that the applicant's contributing conduct should be taken into account in reducing the compensation. The judge held that the factual basis of the sentencing was relevant to the determination of the compensation claim, as it provided evidence of the severity of the crime and the extent of the harm caused to the applicant. Ultimately, the court ordered each respondent to pay the applicant compensation of $750.

Orders

Orders of the court

Order that each respondent pay to the applicant compensation of $750

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Orley v Bath [2000] QDC 338

Most Recent Citation

Doyle v Gardner [2001] QDC 286

Cases Citing This Decision

WHG v LJC [2010] QDC 395
Citation 1

…KMS v LJC [2010] QDC 284, considered Michael v Christiansen [2010] QDC 157, applied Orley v Bath [2000] QDC 338, cited PAJ v AAK [2010] QCA 78, applied JI v AV [2002] 2 Qd R 367, considered R v Horne, ex parte Hill , unreported, Byrne J, Supreme Court No. 8829, 29 October 1999, considered R v Kazakoff; ex parte…
RMC v NAC [2009] QSC 149
Citation 2

…ered Mustapha v Culligan of Canada Ltd 2008 SCC 27 cited O’Mahoney v Sorrattanong [2005] QDC 398 cited Orley v Bath [2000] QDC 338 cited Owens v Liverpool Corporation [1939] 1 KB 394 considered Page v Smith [1996] AC 155 considered Re Anderson (1997) 98 A Crim R 328 cited Richters v Motor Tyre Service Pty Ltd [19…
LMW v Nicholls [2004] QDC 118
Citation 3 (Para 1)

…I discussed some of the decisions in relation to causation in Orley v Bath [2000] QDC 338. In that case I expressed some personal preference for apportionment on the basis of causation, although I did not apply it in that case because the medical evidence suggested that the conduct constituting the offence was at…
Doyle v Gardner [2001] QDC 286
Citation 4 (Para 3)

…to be an injury by reason of the offence. In this respect, I respectfully agree with his Honour Judge McGill S.C.’s judgment in Orley v. Bath & Ors [2000] QDC 338 paras. 6-12. Further, I consider the applicant had no control over what the prosecution put forward on sentencing. However, I consider the applicant wa…

See all citing cases →

Cases Cited

HV v LN [2000] QCA 472
Citation 1 (Para 1)

…has been approved by the Court of Appeal in relation to an order for compensation, although in a somewhat specialised context. In Hollywood v. Levack [2000] QCA 472, the court considered an application for compensation in respect of nervous shock or the adverse impact of a sexual offence in circumstances where th…
Steinback v Steinback [2000] QDC 312
Citation 2 (Para 1)

…fects of the compensable and non-compensable conduct. The approach in Tiltman was approved and applied by Robertson DCJ in Steinback v. Steinback [2000] QDC 312. In the present context, this would mean that it would be sufficient if the abduction was a cause of the post-traumatic stress disorder, even if there we…
Buckland v Estate of Kennedy [2000] QSC 337
Citation 3 (Para 1)

…nd the respondent, including striking the respondent with a stick, following which he retaliated with a knife and injured her. In Buckland v. Kennedy [2000] QSC 337, an applicant who had been stabbed by the respondent had his compensation reduced by 50% because there was a long history of assault and abuse from t…
Freeman v Grahame; Freeman v Grahame; Moroney v Grahame [2000] QCA 387
Citation 4 (Para 1)

…to the injury: s.26(6)(a). It would appear that the same approach should be adopted in the case of an application under the Code: Freeman v. Grahame [2000] QCA 387. The whole procedure is essentially straightforward, but only if both offenders have been convicted.…
Sanderson v Kajewski [2000] QSC 270
Citation 5 (Para 1)

…In Sanderson v. Kajawski [2000] QSC 270, the court took into account the fact that the sexual abuse to which the applicant had been the subject had been a major but not the sole cause of her current problems, when assessing the amount of compensation payable under the 1995 Act. The reasons for judgment however do…
Ferguson v Kazakoff; ex parte Ferguson [2000] QSC 156
Citation 6 (Para 1)

…luding “mental shock and nervous shock”. The scope of this concept was considered recently by Thomas JA sitting in chambers: Ferguson v. Kazakoff [2000] QSC 156. His Honour there held that the expression “mental shock or nervous shock” described a situation of injury to health, illness, or some abnormal condition…
Stannard v Lane [2000] QSC 86
Citation 7 (Para 1)

…In Starr v. Lane [2000] QSC 86, Williams J had before him an applicant who alleged various injuries, including shock and post-traumatic stress, as a consequence of the conduct of the respondent, but only a relevantly minor part of that conduct (a blow to the head) had amounted to an offence for which she had bee…
For the reasons expressed by me at paragraph 9 of my judgment in the matter of Ned v. Ned [2000] QDC 323
Citation 8 (Para 1)

…licant which initiated the incident were criminal, that is a relevant factor, but the operation of the section is not confined to this. In Ned v. Ned [2000] QDC 323, Robertson DCJ, ordered compensation where the applicant had suffered an injury of a knife wound in the course of what was initially a consequential…
[1970] 2 QB 40 [1970] 2 QB 40
Citation 9 (Para 1)

…er States, some of which seem to identify a concept of mental shock and nervous shock with some form of psychiatric illness (e.g. H inze v. Berry [1970] 2 QB 40 at 42 per Denning MR) or any form of psychological disturbance: R v. Fraser [1975] 2 NSWLR 521 at 525 per Wootten J. Personally, I find the approach of B…

Legislation Cited

Criminal Offence Victims Act 1995 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	Orley v. Bath & Ors [2000] QDC 338
PARTIES:	TRAVIS GREOGORY ORLEY by his next friend ADAM GREGORY ORLEY (Applicant) v. GARRY STANLEY BATH (First Respondent) And STEPHEN PAUL BATH (Second Respondent) And KEVIN ALBERT BARRETT (Third Respondent) And KEITH LAURENCE YUILE (Fourth Respondent)
FILE NO/S:	D 1971 of 2000
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	13 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2000
JUDGE:	McGill D.C.J.
ORDER:	Order that each respondent pay to the applicant compensation of $750
CATCHWORDS:	CRIMINAL LAW – compensation – significance of factual basis of sentencing – whether mental shock and nervous shock – whether apportion when multiple causes – reduction for contributing conduct – Criminal Code s.663B Chong v. Chong (Appeal 1165/98, Court of Appeal, 13.8.99, unreported) - followed Ferguson v. Kazakoff [2000] QSC 156 – considered R v. Morrison ex parte West [1998] 2 Qd.R. 79 - considered Hinze v. Berry [1970] 2 QB 40 – cited R v. Fraser [1975] 2 NSWLR 521 – cited R v. Tiltman; ex parte Dowe (Motion 324/95, 22.6.95, unreported) – followed Hollywood v. Levack [2000] QCA 472 – considered Freeman v. Grahame [2000] QCA 387 - followed Sanderson v. Kajawski [2000] QSC 270 - considered Starr v. Lane [2000] QSC 86 - considered Steinback v. Steinback [2000] QDC 312 – followed R v. Horne; ex parte Hill (SC 8829/99, Byrne J, 29.1.99, unreported) – considered R v. Jackson (Appn 7337/98, Moynihan SJA, 29.9.98, unreported – considered Ned v. Ned [2000] QDC 323 – considered Buckland v. Kennedy [2000] QSC 337 – cited
COUNSEL:	S R Connor for the applicant L M Menolotto for the respondent
SOLICITORS:	McAlister & Cartmill for the applicant Goodfellow & Scott for the respondents