Symes v Saunders

[2011] QDC 217

[2011] QDC 217

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1054 of 2009

RICHARD JOHN SYMES	Applicant
and
VERNON JOHN SAUNDERS	Respondent

BRISBANE

..DATE 08/09/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rule 1999 r 116, r 117
Criminal Offence (Victims) Act 1995

Court permitted substituted service of application for criminal compensation by newspaper advertisements - advertisements never placed - personal service never effected - court satisfied that respondent "received" the application by a copy being sent to his Facebook page - he confirmed receipt and discussed application with applicant's solicitor - respondent ordered to pay compensation

HIS HONOUR: This is Richard John Symes' application for compensation under the Criminal Offence Victims Act 1995 against Vernon John Saunders, who hasn't appeared today when called and did not appear on the 30th of August 2011 when called on the last occasion when the application was before me.

It wasn't dealt with on that occasion because, although Mr Harrison of counsel appeared and obtained leave to read and file an outline of submissions, the court had been
double-booked and had conflicting obligations at the one time.  The decision was made to favour the other one, given the greater number of persons and logistical considerations involved.  Mr Harrison was happy for the court to reserve consideration and advise in due course the outcome.

The process of consideration revealed some problems.  The outline which the court had correctly in the chronology referred to an order for substituted service which I made on the 17th of June 2011.

...

HIS HONOUR:  That permitted service by newspaper advertisement.  Unfortunately, it hasn't been possible, despite my associate's persistent efforts to this point, to obtain a copy of the transcript for that day.  It was an unusual occasion.  My associate, at my invitation, was able to access databases available to the court on a restricted basis which provided some assurance that newspaper advertising, as proposed by Mr Harrison, would be in the most appropriate newspaper.  Orders of that kind are often made, but one must doubt how often they bring a proceeding to the respondent's attention.

My recollection is, and my anxiety to obtain the transcript relates to reference being made to use of modern electronic means of communication as a very likely and more promising way of bringing proceedings like the present to the attention of the respondent who has to be served.  I think that the discussion would have extended to use of Facebook and perhaps featured some anecdotes regarding use made of that popular method of communication.

My order of the 17th of June directed that the hearing of the principal application be adjourned to the 25th of July 2011.  It doesn't appear what, if anything, happened on that date, which was intriguing, as the next item in the chronology against that date states, "Further order regarding service made by this honourable Court."  I have been unable to locate any such order, indeed any order at all, in respect of that date and that is one of the reasons why the court has required another mention of the matter with an appearance required for Mr Symes today.

I meant to ask you before, Mr Harrison, have you got any further with that?  Do you have your outline there?

MR HARRISON:  Yes, your Honour.

HIS HONOUR:  It's just intriguing‑‑‑‑‑

MR HARRISON:  In respect of?

HIS HONOUR:  What you say happened on the 25th of July.

MR HARRISON:  In fact, that may be an error in that on the 25th of July the matter was set down‑‑‑‑‑

HIS HONOUR:  That's right.

MR HARRISON:  ‑‑‑‑‑for hearing but, as I recall now, that date was vacated on the afternoon before, because service hadn't been effected.

HIS HONOUR:  I think it was a misunderstanding of some kind, and I've got a vague recollection.  You weren't here, were you, Erin?  My associate was out of the country and someone else was filling in, but my recollection is that contact was made, probably by the solicitors‑‑‑‑‑

MR HARRISON:  Yes.

HIS HONOUR:  ‑‑‑‑‑saying that a hearing the next day wasn't required and, no doubt, fixing on the August date: the 30th of August as an appropriate one.  Does that fit in with your understanding?

MR HARRISON:  That does fit in with my memory and my instructions.

HIS HONOUR:  Mr Harrison confirms that the doubtless costly newspaper advertisement has not been placed. 

On the 30th of August an affidavit of Mr Wallace, the applicant's lawyer sworn the day before was read.  It deposed to location in his firm of a profile for a person who was obviously the respondent on the Facebook website.  The identification is amply confirmed if one refers to the details of the respondent otherwise known and those in a psychological report of Geoffrey Grantham about the person who is obviously the respondent, who was interviewed by Mr Grantham on the 20th of January 2006.  I'm not sure how Mr Wallace got hold of that document, but it's useful to his client's case now.

Mr Wallace communicated via Facebook to advise the existence of the application, providing a copy of it, but without supporting material.  There was an invitation to contact him or his firm for further information and an intimation that notwithstanding what appeared on the face of the application the 3rd of August was the return date.

There is a new affidavit of Mr Wallace sworn today, the subject of leave to file and read, that brings things
up to date and in an intriguing way.  According to the affidavit, Mr Saunders has on the 1st of September 2011 contacted Mr Wallace on Facebook and on his mobile phone.  Conversation has occurred in the course of which the affidavit says that Mr Saunders was informed that the matter was listed in court today at 2.15 p.m.  He was given some advice as to how he could find the correct courtroom, advised to seek legal advice.  He confirmed to Mr Wallace his recollection of the incident that underlies his conviction which led to his serving time in prison and which thus underlies this application.

Mr Saunders appears to have been pleased to hear that if he had no means of paying the amount of any order the court might make, which is likely to be the case, an application would be made for an ex gratia payment from the Government.  Mr Saunders said that was "his preferred course of action."

He gave Mr Wallace additional contact details should
Mr Wallace want to contact him in future.  He said he thought he'd be in Bundaberg today.

As Mr Harrison says, there's no doubt that the respondent knows as much as he wants to about this application and, indeed, is probably much more aware of it than if nothing more had been done to draw the application to his attention than placing of the newspaper advertisement.

It's nevertheless of concern to the court, and should be, that personal service being impractical, which perhaps it still is, an alternative method of substituted service not approved by the court was resorted to.

Mr Wallace deserves some commendation for his initiative and in the circumstances in my opinion the court is justified and ought, in the interests of efficiency and not requiring further costs to be incurred, to proceed to determine the application.  In effect, the court is determining that there has been sufficient service of the originating application for purposes of rule 117.

There's no need to say a lot about it.  The respondent pleaded guilty to assault occasioning bodily harm while armed before Senior Judge Trafford-Walker on 28th of April 2006.

...

HIS HONOUR:  The date of the offence was the 5th of November 2004 when the respondent was 17 and not 37, as the outline in of submissions mistakenly states.  He was a passenger in a speeding vehicle which was the object of a police pursuit.  The applicant who was, largely on account of his spouse's fears for his safety it would seem, not usually assigned to police work of a dangerous nature, became involved and travelling in a marked police vehicle was intent on placing on a road in Tarragindi a device which would let the air out of the tyres of any vehicle passing over it. 

The circumstances were sufficiently confusing to frustrate that plan, given the risk that the disabled vehicle might belong to the police.  Sergeant Symes was in the marked police vehicle on the side of the road when the speeding one in which the respondent was a passenger roared past.

The respondent threw from its window with considerable force, which was probably nothing particularly significant on top of the momentum attributable to the vehicle, a wrench or something similar, which broke the window of the police vehicle and came into contact with Sergeant Symes.

He is of the view, which may have something in it, that he was lucky not to have been injured much more seriously than he was.  He suffered a broken jaw, although fortunately that seems a not particularly serious one, a good deal of damage to teeth, which has led to repeated attendance on members of dental and related professions, the cost of which is detailed in another affidavit of Mr Wallace.  He suffered lacerations, including to both corneas as well as his chin and bruising to his chest.  He suffers post-traumatic stress disorder and, while he seems to be improving, exhibits familiar circumstances of hypervigilence and the like.

His activities in the police service continue to be limited perhaps even more so, and related difficulties in the family context, if anything, have exacerbated.  There's no need, I think, to go through all the details in psychologist Mr Perros' full report.

In my view, the appropriate award is five per cent of the scheme maximum under item 2, being the maximum for bruising and laceration, et cetera, which if anything seems modest considering the eye injuries, which required surgical intervention.  There's nothing in any other item that seems to help, certainly nothing akin to blindness, which of course attracts high percentages.

In respect of the teeth issues, I would award eight per cent, the range being 1 to 12.  One would think the maximum was reserved for the loss of vital teeth productive of fairly severe dysfunction. 

I would allow 14 per cent under item 7 for multiple facial fracture and for the post-traumatic stress disorder under item 32, mental or nervous shock moderate, which is said in the material before the court to be high in the range, 18 per cent.  If my arithmetic is right that's 35 per cent of the scheme total.  Is that right?

...

HIS HONOUR:  Forty five, sorry.  And produces an award of $36,250.  Do you agree with that one?

...

HIS HONOUR:  So the respondent will be ordered to pay $36,250 as compensation to the applicant.

[Attached is a transcript of reasons given by the court on 17 June 2011:

“The Court makes an order in terms of the initialled draft to the
effect that:

1.  The hearing of the originating application be adjourned to 25 July 2011.

2.  In accordance with Rule 116 of the Uniform Civil Procedure
Rules 1999 the applicant may serve the originating application
on the respondent by advertising in the Courier Mail in the
public notices section on two consecutive weekends, the
advertisements to notify the above hearing date and the nature
of the originating application, that it is based on the
conviction of the respondent on 28 April 2006 for assault
occasioning bodily harm whilst armed, and how the respondent
may obtain copies of the originating application and
supporting material.  No order as to costs.

MR HARRISON:  Your Honour, I also seek leave to amend the
surname of the respondent in the originating application by
adding a U.

HIS HONOUR:  All right.

4.  The spelling of the respondent's name in the originating
application be changed to Saunders, so U-N-D-E-R-S in lieu of
Sanders.

The originating application is one for compensation under the
Criminal Offence Victims Act.

The Court, in the interests of efficiency, has had to take
over conduct of the matter, there being nothing on the Court
file but the originating application and an affidavit of
Saul Sebastian Cockburn which tells the
Court no more than that he is admitted as a legal practitioner
and, in the relevant firm, and has taken over carriage of the
matter on behalf of the applicant.  That was filed with the
originating application on the 17th of April 2009.  The
originating application tells a reader very little, simply
that it is an application under the Act for compensation for
injuries that led to conviction of the respondent on
indictment under the Criminal Code.  The application doesn't
indicate that the conviction occurred in this Court or in what
city it occurred or on what date it occurred or what the
relevant offence was.  Somehow the matter got listed for a
hearing today.  The respondent hasn't been served.  So today's
intended hearing resolved into an application for an order for
substituted service.

At the Court's instance there's been found and tendered a copy
of Senior Judge Trafford-Walker's sentencing remarks on the
28th of April 2006 which indicate the offender's age as 17, or not much older, and that he was sentenced to three years'
imprisonment for an offence against that police officer,
obviously the applicant, with a proposed prison release
supervision date 15 months down the track.  He'd already
served 344 days.  The sentencing remarks don't make it clear
what the offence was.  A copy of the indictment has been
tendered indicating that it was one of unlawful assault
occasioning bodily harm whilst armed with an offensive
instrument on the a 5th of November 2004 at Brisbane.

The details, thus garnered, indicate that Brisbane is an
appropriate venue, also that the application was brought
within the three years allowed, something that on the
authorities this Court has to take responsibility for.

The respondent will long since have been released from
custody.  Inquiries made on the applicant's behalf of the
Correctional Services authorities haven't produced any
address.

Pursuant to the Court's invitation, the legal representatives
advise that as one would expect these days in the
circumstances efforts have been made to obtain information by
use of Facebook.  That, I was told, confirms that the person
is in Brisbane.  Further, confirmation of that has been
obtained by my associate accessing the QWIC service, a
database for criminal matters which is available to the DPP
and the Court, but not generally available to the profession.
The Court, I think for the moment, without looking into the
matter further, ought to be careful about making information
on that database available, but what is available confirms the
appropriateness of advertising in a Brisbane newspaper rather
than one in another location.  It seems the respondent was
born in Rockhampton.  The database indicates that he faces
matters in the Pine Rivers Magistrates Court but not the dates
of that.  This information may assist the applicant to locate
the respondent.  The Court simply doesn't know what attempts
have been made to serve him to date, there's not the usual
affidavit from a frustrated process server or practitioner
trying to get service effected.  If that doesn't occur then
that service by publication, as permitted, may be turned to.
The orders per initialled draft.”]

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