The first issue is whether the appellant had a "cause of action", against her late husband, which was subsisting as at his death on 10 January 1997, and therefore survived against his estate because of s 66(1) of the Succession Act 1981. Only in that case could the appellant have subsequently pursued her claim, as she did by her application filed 26 October 1998.

Adopting Brett J's traditional formulation of what amounts to a 'cause of action', expressed
in Cooke v Gill (1873) LR 8 CP 107, 116, that is, as comprehending 'every fact which is
material to be proved to entitle the plaintiff to succeed', one would prima facie have

thought that establishing her late husband s conviction for having wounded her and her

having suffered substantial injury in consequence, the appellant would thereby attain an 'entitlement' to monetary compensation warranting the conclusion that she had a 'cause of action' falling within that concept. The learned district court judge was however dissuaded from that conclusion by his view that the appellant was not 'entitled' to succeed, because

whether or not compensation was ordered depended so much on an exercise of the court s

discretion.
It is true that s 663B of the Criminal Code was cast in discretionary terms: '... the court ... may ... order ... compensation ...'. But the scope of the discretion to decline to order the payment of compensation was circumscribed. That emerges from s 663B(2), which provided, as relevant, that in determining whether or not to make an order, the court 'shall' have regard to any behaviour of the person aggrieved 'which directly or indirectly contributed to the injury', and to other relevant circumstances, such as whether the applicant was a relative of the convicted person, or cohabited with him. None of those circumstances could, in the present case, have warranted the court's denying the appellant compensation on discretionary grounds. (I return in a little more detail later to the question of cohabitation.) The appellant should therefore have been seen as having a 'right' to compensation, and her claim should not have been characterised as falling into the category of 'mere hopes or contingencies' which, on Denning LJ's view in Sugden v Sugden [1957] P 120, 134, would exclude the existence of a cause of action.
I do therefore consider that the appellant had a cause of action which survived her late husband's death. The next question is whether the application was properly constituted before the court, there having been no…

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 R v Chong; ex parte Chong

Details

AGLC: R v Chong; ex parte Chong [1999] QCA 314
Case: [1999] QCA 314
Decision Date: 13/08/1999

CaseChat Overview and Summary

This case involved an appeal by Karen Chong against a decision of the District Court dismissing her application for compensation under section 663B of the Criminal Code for injuries she suffered when her husband, Bruce Chong, shot her with a shotgun in 1990. Bruce Chong was convicted of unlawful wounding and died in 1997. The District Court held that Karen Chong's claim did not survive Bruce Chong's death and dismissed her application. The Court of Appeal allowed the appeal and ordered Bruce Chong to pay Karen Chong $25,000 in compensation. The Court held that Karen Chong had a cause of action under section 663B which survived Bruce Chong's death and could be pursued against his estate. However, the application was statute-barred as it was filed more than six years after Bruce Chong's conviction, the limitation period under the Limitation of Actions Act. Nonetheless, the Court held that the limitation period did not need to be considered as it had not been relied upon. The Court also held that the claim could proceed in the absence of a representative of Bruce Chong's estate as there was no estate to protect. The Court assessed the appropriate compensation at $25,000, taking into account both the physical and psychiatric injuries suffered by Karen Chong.

Orders