IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 11658 of 1998
Brisbane
Before
de Jersey CJ McMurdo P Demack J
[Chong v Chong]
BETWEEN:
KAREN LEIGH CHONG
(Applicant) Appellant
AND:
BRUCE ADRIAN CHONG
(Respondent) Respondent
REASONS FOR JUDGMENT - de JERSEY CJ
Judgment delivered 13 August 1999
I have had the advantage of reading the reasons for judgment prepared by Demack J, with
which I substantially agree. I wish to add some brief observations of my own.
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.
2
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 ismaterial 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…
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- AGLC
- R v Chong; ex parte Chong [1999] QCA 314
- Case
- [1999] QCA 314
- Decision Date
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