Van Roosmalen v State of Sa

[1997] SADC 3648

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour the Chief Judge

Hearing

20/07/97.

Catchwords

COMPENSATION FOR INJURIES SETTING ASIDE JUDGMENT - RULE 84.12 Plaintiff sought compensation, pursuant to the Criminal Injuries Compensation Act 1978 for serious injuries received in a shooting incident - after formally noting non-appearance by second defendant judgment was entered by consent on 19 January 1996 that the first defendant pay to the plaintiff the sum of $20,000 by way of compensation plus costs and disbursements. Application by plaintiff to set aside that judgment - application relies on provisions of Rule 84.12 of the Supreme Court Rules which by virtue of Rule V-1 of the DCR applies to actions commenced in the Criminal Injuries Division of the District Court - plaintiff's solicitors had sought to claim the maximum amount of compensation which they had mistakenly believed to be $20,000 - maximum amount was, and is, $50,000. Two issues arise - whether Rule 84.12 may be invoked to set aside a judgment, or the judgment, entered by consent;if so whether the justice of the case requires that the power to set aside the judgment be invoked.

Materials Considered

• Criminal Injuries Compensation Act 1978section 7;
• Supreme Court Rules 84.01 - 84.11, 84.12, referred to.
• Commonwealth Bank v Forshaw (1990) 55 SASR 247;
• Mohtar v Mohtar and Seputis (1988) 146 LSJS 377;
• Harvey v Phillps (1956) 95 CLR 235;
• Berriman v Pipeline Engineering Pty Ltd (1989) 52 SASR 324;
• Hutchinson v Myer Stores Ltd (1995-96) 184 LSJS 398, applied.

Representation

Plaintiff JOHN VAN ROOSMALEN:
Counsel: MR R MUEKE - Solicitors: XENOPHON &; ASSOCIATES

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MR W LINES - Solicitors: CROWN SOLICITOR

Defendant JOHN BLACK:
No Attendance

Defendant GEORGE WILLIAMS:
No Attendance

CICD-94-586

Judgment No. D3648

30 July 1997

(Criminal Injuries Compensation Division)

The plaintiff commenced these proceedings by a summons which was issued on 3 August 1994.That summons and the affidavit which accompanied it disclosed that the plaintiff sought compensation pursuant to the Criminal InjuriesCompensation Act 1978 ("the Act") for injuries which he received in a shooting incident which occurred at Goondooloo on 20 April 1991.The plaintiff alleged that the second and third defendants committed offences which resulted in his suffering serious injuries.

The summons was duly served on the first and second defendants.At the time of its service upon him, the second defendant was an inmate of the Mobilong Prison.He has at all relevant times been in lawful custody.The summons was never served upon the third defendant.He has taken no part in the proceedings.On 27 February 1995 an order was made pursuant to subsection 7(6) of the Act dispensing with service on him.