Murphy v Green[2002] QDC 10

DISTRICT COURT OF QUEENSLAND

[2002] QDC 010

REGISTRY:ROCKHAMPTON

NUMBER:D12 OF 2002

APPLICANT: MATTHEW LOUIS MURPHY

and

RESPONDENT: KERRY GEORGE GREEN

REASONS FOR JUDGMENT

BEFORE HIS HONOUR JUDGE BRITTON S.C.  

DELIVERED the 14^th day of February 2002

This is an application for compensation pursuant to the provisions of the Criminal Offence Victims Act 1995. 

The matter came on for hearing before me on the 22^nd January 2002.  There was no appearance by on or behalf of the respondent and the applicant was represented by Counsel (Mr Kimmins) who appeared by telephone with my consent.

In the course of hearing the application it became apparent that personal service of the application and supporting material had not been effected upon the respondent.  An affidavit by Keith Stubbins was read in which he swore that on the 5^th December 2001 he attended at premises at 281 Campbell Street, Rockhampton where he spoke with a male occupant who told him that the respondent had previously resided at that address but was no longer there.  The male occupant informed Mr Stubbins that the respondent had recently been imprisoned.  Mr Stubbins left his name and contact details with this person and also contacted the Rockhampton Prison but was told that the respondent was no longer an inmate.  Later on the same day Mr Stubbins received a telephone call from a person who identified himself as the respondent Kerry Green.  Mr Stubbins said he informed that person that he had documentation to serve upon him in relation to an application for victim compensation by the applicant.  There was some short general conversation at the conclusion of which the caller asked Mr Stubbins to post the documents to him at C/- 281 Campbell Street, Rockhampton where he would be able to take delivery.  The caller informed Mr Stubbins that he did not live there but that he would never the less get the documents.  Mr Stubbins then put the originating application and supporting material into an envelope and delivered it personally to 281 Campbell Street, Rockhampton together with a note requesting that the respondent contact the applicant’s solicitors.  He spoke to another occupant of the premises who was a different person from the one he had spoken to previously and this person told him that the respondent was not present at the house but that he knew him and he undertook to give the envelope and contents to the respondent.  He identified himself as Chris Hill. 

An affidavit by Anthony Harold Hyde Bailey filed on the 21^st January 2002 was also read.  Mr Bailey swore that he caused an advertisement (a copy of which was exhibited to the affidavit) to be placed in the Rockhampton Morning Bulletin newspaper.  He did not swear as to the date the advertisement appeared in the newspaper but at the top of the exhibit the handwritten words “Rockhampton Morning Bulletin 17^th January 2002” appear and I infer from that that it was published on the 17^th January 2002. 

Counsel for the applicant submitted that in those circumstances I could dispense with personal service of the document and proceed with the hearing of the application.  Mr Kimmins then made submissions in relation to the substantive application and I reserved my decision.

The application in this matter is originating process pursuant to the Uniform Civil Procedure Rules 1999.  Rule 105(1) requires originating process to be served personally on the person intended to be served.  Rule 106(1) provides that to serve a document personally the person serving it must give the document or a copy of the document to the person intended to be served. 

Rule 116(1) provides:

“If, for any reason it is impracticable to serve a document in a way required under this chapter, the Court may make an order substituting another way of serving the document.”

There is no express provision in the Rules permitting a Court to make an order simply dispensing with service.

Rule 117 provides:

“If –

1. (a)
   for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
2. (b)
   a Court is satisfied on evidence before it that the document came in the person’s possession on or before a particular day;

the Court may, by order, decide that the possession of the document is service for these rules on the day it came into the person’s possession or another day stated in the order.”

This rule does not apply because there is no evidence that the process ever came into the possession of the respondent.

It seems to me that the steps taken to endeavour to notify the respondent of the application are those which might well have been ordered to be taken if an application had been made for substituted service.  It therefore does not seem to be necessary to make an order for substituted service the practical result of which would be that the same steps that have already been taken would be taken again with significant cost to the applicant which of course cannot be recovered in relation to an application for criminal compensation. 

Rule 366(2) empowers the Court to give directions about the conduct of a proceeding at any time. 

Rule 367(1) provides that the Court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of the rules. 

In those circumstances, it seems to me to be appropriate that I direct that it is unnecessary for a formal application for substituted service to be made and that the steps taken by the applicant as deposed to in the affidavit of Mr Stubbins and the affidavit of Mr Bailey be deemed to be substituted service of the application and supporting documents and that the respondent be taken to have been served upon the date of publication of the advertisement in the Rockhampton Morning Bulletin namely the 17^th January 2002.

In the circumstances then I am satisfied that the substantive application should proceed.

The applicant is now 29 years of age having been born on the 23^rd July 1972.  The offence the commission of which against him is alleged to have caused him to suffer injury was assault occasioning bodily harm and this was committed on the 24^th April 1999.  The respondent pleaded guilty to the offence of assault occasioning bodily harm on the 2^nd May 2000 and was sentenced to six months imprisonment to be served by way of an intensive correction order.

The circumstances in which the offence was committed are briefly set out in the affidavit of the applicant filed on the 18^th January 2002.  A copy  the applicant’s statement to the police which he has sworn to be correct is exhibited to the affidavit of Anthony Harold Hyde Bailey filed on the 18^th January 2002.  Early on the morning of the 24^th April 1999 the applicant was at his residence at Biloela and about to go to bed when he heard a noise coming from outside the house.  He went onto his verandah and whilst there heard a male voice making loud use of obscene language.  He went to investigate and ultimately was challenged by the respondent and assaulted by him.  He was trying to calm the respondent down and the respondent was being very aggressive and agitated.  The applicant was not trying to threaten him in anyway whatsoever.  The assault consisted of a single blow to the left hand side of the applicant’s nose. 

The applicant was taken to the Biloela hospital where he was seen by a medical practitioner Dr Gaskell.  Dr Gaskell observed bruising and swelling to the left side of the applicant’s face close to the nose and dried blood over the left side of the nose.  He observed an obvious deformity of the nose and dried blood in the nostrils.  He made a provisional diagnosis of a fracture of the nose and arranged for x-ray which confirmed that there was a fracture.

Exhibited to the affidavit of Anthony Harold Hyde Bailey filed on the 18^th January 2002 is a report by Dr Ibraham Rabie a Head and Neck Surgeon.  Dr Rabie said that there was no doubt that the injury sustained to the external nasal bone was consistent with a blunt trauma which may have occurred as a result of a direct hit.  He said that despite the external deformity of the external nasal pyramid there was no significant degree of dysfunction or any permanent damage that occurred to the nose.  He said that the applicant was unlikely to suffer from a long term disfigurement as a result of the injury.  He said that the question as to whether he would require any further treatment or not would depend on his satisfaction with outcome of the reduction of the external nasal skeleton deformity after the injury. 

The applicant was seen by Dr Ian Curtis consultant psychiatrist who has sworn an affidavit to which is exhibited a copy of his report of the 11^th August 2000.  He said that the applicant had suffered from a moderately severe acute stress disorder as a result of the assault.  He said this was a nervous shock in the middle of the moderate range with some continuing mild nervous problems as a result of trauma.  He went on to say that the applicant had suffered from a displaced fracture of the nose with deforming disturbances of bone and cartilage such that his left nostril collapsed and his nose was deviating to the right.  Two photographs were attached to the report and Dr Curtis said that these photographs indicated the lack of bone and cartilaginous support of the left nostril.  He said that it needed to be appreciated that when air is sucked through the airway there would be a tendency for the left nostril to collapse and it was a function of the bone and cartilaginous supports of the nose to support the nostrils without a collapse obstructing the airway and also to support an actual flaring and opening up of the nostrils as a reflex action when more air was needed.  Dr Curtis said that therefore the functional impairment was more significant then the cosmetic deviation and the visible loss of bulk on the left side of the applicant’s nose.  I accept Dr Curtis’ opinion in relation to nervous shock and with some reservation in relation to the physical injury to the nose bearing in mind that although Dr Curtis is a duly qualified medical practitioner his speciality is in the field of psychiatry rather than as an ear nose and throat specialist.

It seems to me that the applicant’s physical injury falls for assessment under item 4 of the compensation table in schedule 1 to the Criminal Offence Victims Act 1995 where the range is from 8% to 20% of the scheme maximum.  In my view compensation should be assessed in the middle of that range at 14% of the scheme maximum or $10,500.

So far as the mental or nervous shock is concerned accepting as I do the opinion of Dr Curtis this should be assessed under item 32 “mental or nervous shock (moderate)” for which the range is 10% to 20%.  In light of Dr Curtis’ opinion the compensation should be assessed at 15% of the scheme maximum or $11,250.  The total of the compensation assessed is therefore $21,750.

Having regard to the statement of the applicant as to the circumstances in which he was assaulted there is no matter which pursuant to section 25(7) adversely impacts upon the making of an award of compensation or the amount of an award in favour of the applicant.  I specifically find that there was no behaviour on the part of the applicant which directly or indirectly contributed to the injury.  I accept that he did not in any way provoke the respondent at that at all times he was endeavouring to indicate to the respondent that he was not in any way a threat to him.

In all of the circumstances therefore I order that the respondent pay to the applicant by way of compensation the sum of $21,750.

G. T. BRITTON S.C. DCJ