Francis v McGlone[2004] QDC 226

DISTRICT COURT OF QUEENSLAND

1. [1]
   These are the Court’s reasons for confirming, after hearing the applicant,            Mr Francis, on 6 July 2004, orders made the day before in his absence striking out the application filed on 17 June 2002 for failure to comply with s 40(1)(a) of the Criminal Offence Victims Act 1995 (“COVA”).    The decision refusing to grant the respondent (who filed his own application for such a striking out on 3 September 2002) his costs (which were sought on an indemnity basis) was also confirmed.

2. [2]
   The respondent pleaded guilty to offences against the applicant committed on 6 January 1997 before Judge Hanger on 20 August 1998 and was sentenced to actual imprisonment.  The most serious offence was grievous bodily harm, inflicted by the throwing of a large tin of baked beans into the back of Mr Francis’ head without warning, supposedly because he had parked (without any entitlement to do so) in a space reserved for disabled people – Mr McGlone was no more entitled to use the space than Mr Francis.  The unusual medical outcome appears to have been a stroke or serious of strokes over days and weeks leaving Mr Francis with brain injury; he has, it is said, lost most of his vision, his sense of taste, etc.   There is evidence to support psychological/psychiatric injury and loss of function in his left arm and leg, among other things.  Indeed, the application was made by a litigation guardian on the basis that Mr Francis is a person under a legal incapacity.  It must be accepted that in the ordinary run of things Mr Francis would be entitled to an award under the COVA, possibly one close to the scheme maximum, if his condition is as he claims.

3. [3]
   Mr Francis was born in 1951.  The legal incapacity asserted appears to be “unsoundness of mind” (see the notation on Exhibit 3).  It cannot be accepted that it is constituted by the blindness asserted by Mr Francis.  In my opinion, for present purposes, including any possible application of the provisions of s 29 of the Limitation of Actions Act 1974 regarding “disability”, what matters is whether Mr Francis is “a person who is not capable of making the decisions required of a litigant for conducting proceedings” (cf the definition of ‘a person under a legal incapacity’ in schedule 2 of the Supreme Court of Queensland Act 1991). Mr Francis’ performance in lengthy oral submissions before me did not suggest he suffered any such difficulty.  He was, however, passionate at times, articulate and rational, and revealed a good recall of events which he wanted to recall.

4. [4]
   The compensation application was not filed until 17 June 2002, too late for purposes of s 40 of the COVA.  The Court of Appeal in Jacob v Roberts [2002] QCA 87 concluded that “the limitation contained in s 40 is a condition of the right to apply for compensation granted by s 24” (paragraph [16]).  S 40 provides for extension of the three-year period, which here runs from 20 August 1998, in cases of infancy, or where an applicant can satisfy the requirements of ss 30 and 31 of the Limitation of Actions Act 1974: see s 41 of the COVA.  Written submissions supplied by Mr Hawes, solicitor for the respondent, cited Watson v Poynter [2002] QSC 283, where an extension was refused to an aboriginal woman living on Palm Island who “was not aware of her right to claim compensation until she saw her present solicitor”.  The Judge said:

“The authorities which bind me stand in the way of a finding that her lack of knowledge that she had a right to seek compensation for the injuries inflicted on her or that there is a limitation period constitute material facts of a decisive nature for the purposes of the Limitation of Actions Act”.

That statement of principle is not affected by a difficulty I have with this case in which the application is said to have been filed on 1 September 2000, following a sentence on 21 November 1997 in respect of offending on 25 January 1997; it is not clear to me why the application was out of time from paras [3] and [4].   The statement of principle appears in para [23] where the same authorities are referred to as Ambrose J discusses in Wood v Glaxo Australia Pty Ltd (1994) 2 QdR 431, 454 in a passage on which Mr Hawes placed reliance.

5. [5]
   Requested by the court to nominate the “material fact of a decisive character” of which he became aware for the first time after 20 August 2000, Mr Francis suggested ignorance of provisions to do with criminal compensation, and regarding any time limit in particular.  Whether or not Mr Francis knew of the time limit, it is clear that he knew of the availability of the compensation scheme, indeed that he had engaged lawyers to pursue his rights under it.  Most of the documents supporting the application are exhibited to three affidavits of Scott Alexander Kerrigan, a solicitor of Adamsons, the firm who filed the application.  That filed on 24 June 2002 exhibits a report of Alan D Chittenden, a registered psychologist dated 19 June 2002 and based on a consultation two days before.  In a passage which obviously refers to other solicitors, and to events in 1997-1998, Mr Chittenden says:

“To complicate matters for him, he instructed a Solicitor and paid him to look after the matter and take whatever action was necessary with regard to the assault.  He was told that nothing could be done until the man had presented himself in court, and because he understood the man appealed, then the matter was delayed even further.  When he appreciated that nothing was happening and nobody seemed to be acting on his behalf, he went in search of the Solicitor and found that the firm had in fact ceased to exist.  The Solicitor had resigned and ceased to act in that capacity and had moved south, and he had absolutely nothing to show for the money that he had paid.”

6. [6]
   In proceeding BZ264/2002 in the Federal Magistrates Court of Australia, instituted by Mr Francis without any participation by a litigation guardian,         Mr Francis applied to have his passport restored to him to permit him to continue a current pattern of regular overseas travel for business purposes.  He filed his application and initial affidavit on 31 May 2002, and further affidavits on 21 June and 9 July 2002, in each of which he refers to himself as “the applicant”, after identifying himself as such.  Paragraph 16 of the second affidavit is:

“On or about 4^th December 2000 – the applicant telephoned Mr Daryl Hickey of the respondent’s office to request the return of the applicant’s passport, advising Mr Daryl Hickey that the applicant required the passport to secure employment.  Mr Daryl Hickey refused to return the passport, saying that until some monies were paid to him, it would be unlikely that the applicant would receive his passport – ‘We have costs you know’.  The applicant advised Mr Daryl Hickey that he had no money, although the applicant was seeking financial compensation through the victims of crime compensation.  Mr Daryl Hickey stated that the applicant had committed a crime by not paying their firm.  The applicant disagreed with this statement and       Mr Daryl Hickey became very agitated in his speaking pattern.  Mr Daryl Hickey then advised the applicant that he (as trustee) could take any compensation monies that may be received by the applicant.  A verbal disagreement took place between the applicant and Mr Daryl Hickey.”

7. [7]
   In the circumstances, even if Mr Francis were ignorant of a time limit, he would show no case for an extension of time under s 41 of the COVA.  He suggested to this court that he had a total inability to read, and ought not to be held responsible for the contents of affidavits sworn by him.  Even if I were prepared to accept that outrageous proposition, Mr Francis is still embarrassed by Mr Chittenden’s report, his assertion that the solicitors referred to must be Adamsons being plainly incorrect.

8. [8]
   Mr Hawes recognised Exhibit 3 as part of written submissions exchanged between him and Mr Frigo, who represented Mr Francis in 2002 when the application was first filed.  The submission, which I took Mr Francis to adopt, was that it was unnecessary for the Court to order any extension of time under s 41 of the COVA, as s 29 of the Limitation of Actions Act 1974 meant “time has never commenced to run against the Applicant…he…at all times relevant being a person ‘under a disability’ within the meaning of that provision.”  The relevant disability was said to be ‘unsoundness of mind’.  The evidence relied on was presumably less medical reports exhibited to Mr Kerrigan’s affidavits than the contents of the litigation guardian’s affidavit filed with the application; she later filed a further affidavit responding to the contents of Mr McGlone’s affidavit filed on 19 August 2002.  Mr Frigo’s and Mr Hawes’ submissions are in agreement that the test of “disability” is as indicated in King v Coupland (1981) QdR 121, 123 and Flemming v Gibson [2000] QCA 244 at [15].

9. [9]
   I think Mr Hawes is correct that ss 40 and 41 of the COVA leave no room for the operation of s 29 in COVA applications, given the specific picking up of ss 30 and 31 and the limitation in s 29 itself to a period of limitation “prescribed by this Act”: the relevant limitation here is prescribed by the COVA.

10. [10]
    Should Mr Hawes and I be in error in this respect, the applicant has nevertheless failed to establish “disability”.  The fact is that, while allowing himself to be presented in this application as an impaired applicant, incapable even of subscribing his signature to an affidavit, at the same time he was actively engaged in the Federal Magistrates Court proceeding.  Whatever assistance he may have had in it (he suggests he did no more than scribble his signature or initials where he was told to do it) he must have been making some positive contribution.  If he was not, the whole exercise reeks of fraud.  He is presented by his own affidavits and exhibited material (in large measure lengthy business letters signed and apparently composed by him) as an active and highly effective businessman, capable of earning a six-figure annual income, if only his passport were restored to him to permit him to travel.  In the application in this court, it is the injuries inflicted by Mr McGlone that are blamed for things that have gone wrong in      Mr Francis’ affairs.  Mr Francis did acknowledge the injuries he suffered in paragraph 3 of the affidavit quoted from above as follows:

“The applicant suffered severe injuries leaving the applicant permanently partially disabled on January 6^th 1997.  The applicant was hospitalised for twenty-nine days at the Gold Coast Hospital, Southport, Queensland, as a result of an assault from behind by a mental health patient with a lengthy criminal record.  The applicant’s assailant was sentenced to a six month jail sentence in 1998 for assault causing grievous bodily harm etc.  Please refer to Annexure ‘1’ attached to this affidavit.  The applicant’s income base was greatly diminished as a result of this callous attack.”

(Mr Francis swore no affidavit in this application.)

Apart from those two paragraphs out of 144, extending over more than 50 pages (exclusive of exhibits), there is no other reference that I have noticed to the supposedly debilitating injuries.  They are presented, it seems to me, as something more than five years in the past, over which Mr Francis has triumphed, in the sense of being able to still pursue a highly successful business career.  For present purposes, the question is (to quote Exhibit 3 and Flemming v Gibson at 123) whether the applicant shows “a mental illness causing an incapacity to manage affairs in relation to the accident…in the manner that a reasonable man would achieve,” (Mr Francis has not done this).

11. [11]
    In the circumstances, whatever sympathy his situation might produce is beside the point.  He cannot show a case under s 29, 30 or 31 of the Limitation of Actions Act.  The court endeavoured to make clear to him that he may have a claim against the solicitors mentioned by Mr Chittenden, in respect of which it may be necessary to move quickly, as the limitation period may expire in the next month or so.

12. [12]
    It is not necessary to repeat here matters covered in the extempore reasons I gave on 5 July 2004.  Mr McGlone grievously injured Mr Francis, and would have been liable to a substantial award of compensation had he been proceeded against in time.  As things have developed, the proceeding has been oppressive to him, involving five days in court represented by Mr Hawes, following a day when he appeared alone.  The limitation point was raised early by Mr Hawes.  His application for costs, and on the indemnity basis, is understandable.  S 31 of the COVA (“A court is unable to make an order for the payment of costs of an application for a compensation or repayment order”) will usually work to preclude the awarding of costs to an applicant.  In my view it probably applies to preclude the awarding of costs to a respondent who may be successful in the principal application or in some interlocutory aspect of it.  Mr Hawes argued that the application should be regarded as an ordinary civil proceeding under the UCPR (as s 30(1) effectively declares it to be) and that, although the application might not be a claim, the court could act by analogy with r 171.  He drew attention to irregularities in the application in light of r 93.  The effect of it is that, if Mr Francis is truly under a legal incapacity, he was incapable of doing anything in it, being displaced by his litigation guardian, whose only role appears to have been signing affidavits, a consent to act and a notice of intention to oppose Mr McGlone’s application.  In particular, Mr Hawes referred to the prohibition in subrule (3) of a litigation guardian’s acting except by a solicitor.  Mr Hawes did not raise these points in an attempt to prevent Mr Francis from being heard – and the practicalities were that he had to be given his say.  His original legal representatives were no longer willing to act, nor was legal aid made available, notwithstanding Judge Healy’s having adjourned the matter in the hope that Legal Aid would become involved.  I took the introduction of r 93 to be in support of the application for indemnity costs, which are referred to in r 171 expressly.  If I thought I had jurisdiction to order costs against Mr Francis (it may be the order should be against Ms Muller, the litigation guardian) I would be disinclined to do it.  As Mr Francis said, Mr McGlone was the original wrongdoer.  He ought to count himself fortunate that he did not have to face an application brought in time.

13. [13]
    The purpose of the hearing on 6 July 2004 was to allow Mr Francis the opportunity which he should have had on the previous day to make submissions.  I am satisfied that genuine misunderstandings, for which Mr Francis cannot be blamed, led to his not appearing on the day fixed (of which he had given notice to Mr Hawes).  The court’s attempt to contact Mr Francis on his mobile phone had been unsuccessful, but contact was made later in the day with an invitation (which Mr Francis took up) to attend on 6 July.  Rather than go through a pointless exercise of vacating the original orders and making them again, I have preferred to leave the original orders standing.