DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On the 3^rd December 2007, the Applicant in this matter, Mr Foster, filed an application for compensation pursuant to the provisions of the Criminal Offences Victims Act 1995 (Qld) (the Act) for injuries sustained by him as a result of the commission of an indictable offence by the respondent, Mrs Carney. Mrs Carney had pleaded guilty before the Ipswich District Court on 19 June 2006 to several charges, relevantly one count of Dangerous Operation of a Motor Vehicle which was committed on 26September 2005. Mr Foster was a serving police officer employed by the Queensland Police Service at the material time.

2. [2]
   On the 11^th August 2009, Mr Foster’s solicitors filed a Notice of Discontinuance. They had sought Mrs Carney’s consent to do so but she refused. On 9 September 2009, this matter came on before me for mention only. The matter had originally been set down for three (3) days for the hearing of the application, which was to commence that day. Two applications were made at that mention. Mr Foster’s solicitor applied to the court, pursuant to r 304(2) of the Uniform Civil Procedure Rules 1999 (UCPR), for an order that Mr Foster be granted leave to discontinue his claim against Mrs Carney. Such leave was granted. He also sought that no order as to costs be made in respect of that application and in respect of the originating application which Mr Foster had made. Mrs Carney applied to the court for an order for costs which related to the legal costs which she says she has had to expend prior to this court granting leave to Mr Foster to discontinue his claim for compensation. In view of the fact that the matter was only set for mention, I invited both parties to provide to me (in addition to oral submissions made) written submissions by 4pm 11 September 2009. Those submissions have been marked for the purpose of this decision as CF 1 and MCC 1 respectively.

The Relevant Law – s 31 of the Act and r 307 of the UCPR

3. [3]
   Mr Foster’s primary submission is that s 31 of the Act operates to disentitle either party to an application for a compensation order from receiving an award of costs in respect of that application. Alternatively, Mr Foster submits that in the event that the court were to find that s 31 the Act does not operate to preclude such an order being made, then the court ought not to exercise its’ discretion pursuant to r 307(2) of the UCPR in favour of Mrs Carney in all the circumstances.

4. [4]
   Mrs Carney on the other hand submits that despite the wording of s 31 the Act, there are circumstances where some order for costs may be made in favour of either party. In support of that submission, Mrs Carney refers to the case authorities which I had raised with both parties at the last mention of this matter for their consideration.

5. [5]
   Section 31 of the Act provides:

“ No cost orders on application

A court is unable to make an order for the payment of costs of an application for a compensation or repayment order.”

6. [6]
   In Stannard v Lane [2000] QSC 086, His Honour Justice Williams (as he then was) left open the question whether despite the wording of s 31, there may be circumstances where some order for costs could be made in favour of a party. That fact has also been acknowledged subsequently by their Honours Judges Wall and Newton in Cleland v Major [2002] QDC 195 and Willesden v Bruce [2005] QDC 001.

7. [7]
   In order to try to understand what the legislative intention was in respect of s 31 of the Act, regard has been given to the Explanatory Notes of the Bill when first introduced into parliament and the 2^nd reading speech by the Hon. M J Foley, Minister for Justice and Attorney General on the 2^nd November 1995.

8. [8]
   Clause 31 of the Explanatory Notes provides that it was introduced to prevent the court making costs orders on an application to government. The 2^nd reading speech however provides that ‘The representation of victims by officers of the Director of Public Prosecutions and the prohibition on orders for legal costs are part of a serious attempt by the Government to expedite criminal compensation awards for victims and to avoid the massive legal costs incurred under similar schemes in other jurisdictions.’

9. [9]
   While it is difficult to reconcile the 2^nd reading speech with the Explanatory Note referred to, it does seem that the intention was that s 31 was introduced in order to avoid the government having to pay, in addition to any amount awarded under a compensation order to a successful applicant by the court, any costs associated with the making of that application before the relevant court. It does not follow however, in my mind at least, that where an applicant, such as in this case, discontinues his application before any substantive hearing of that application, that costs should automatically be awarded in a respondent’s favour.

10. [10]
    Whether costs might well be awarded to a respondent pursuant to s 31 the Act in certain circumstances or whether those costs might well be awarded pursuant to r 307(2) of the UCPR upon the exercise of my discretion, I have come to the same conclusion regardless, that no order ought to be made as to costs in this case.

11. [11]
    In arriving at that conclusion, I have taken into account the oral and written submissions made by both parties, the applicant’s conduct in respect of these proceedings, whether Mr Foster acted reasonably in commencing and maintaining the proceedings which he no longer wished to progress with and any reasons why he no longer wanted to continue with his application before the court: see Petavrakis v Hirst & Co & Anor [2001] QSC 224, where Her Honour Justice White has set out some helpful guidance on this issue in respect of r 307(2) of the UCPR.

Was this a vexatious application?

12. [12]
    In both oral and written submissions (CF 1), Mr Foster, through Mr Davies, his instructing solicitor, stated to the court that the primary reason why he had elected to discontinue his claim for compensation against Mrs Carney at this point was on the basis that the legal fees and costs he would have incurred in proceeding further with his application to a 3 day hearing would be likely to outweigh any amount of compensation he may have ultimately be awarded. In particular, Mr Foster referred to the various specialist medical witnesses which Mrs Carney required to be made available for cross examination at hearing. Mr Foster pointed out that significant fees and disbursements had already been incurred by Mr Foster as a result of the actions or inactions of Mrs Carney which in turn had prevented the matter from proceeding in a timely manner. Those delays, he submitted, had been occasioned as a result of Mrs Carney seeking legal representation, obtaining advices and in consequence of her failed application for an extension of time against conviction and sentence before the Court of Appeal in May 2009. In short it was submitted that it was simply not financially viable for Mr Foster to continue with his application in all the circumstances.

13. [13]
    In the document marked Exhibit MCC 1, Mrs Carney set out a series of matters for my consideration which she says supports her claim for an order for costs to be made in her favour. In particular, she has referred to what she believes to be are inconsistencies in Mr Foster’s affidavit filed 11 December 2007, primarily, if I understand her correctly, to show that Mr Foster’s discontinuance of his application for compensation was motivated by something more sinister (my choice of word) than the reasons he now puts forward to the court. Mrs Carney raises several other matters in her submissions on this issue for my consideration which I intend to deal with now.

14. [14]
    Mrs Carney raises the point that if Mr Foster believed his application still had merit, he would wish to proceed regardless, with the assistance by the appropriate government agency, even notwithstanding that he says he is unable to fund it himself. That submission however overlooks that an appropriate government agency, such as Legal Aid, would still require Mr Foster to pay a significant contribution towards any legal costs incurred, for example securing medical witnesses.

15. [15]
    She also raises the point that she believes that Mr Foster simply uses as an excuse, the costs associated of securing the attendance (my emphasis) of all relevant medical witnesses for hearing. In this regard, she says that those witnesses were not required to attend as such as it agreed that those parties could give their evidence by telephone. That submission however fails to appreciate that even attendance by telephone of medical specialists can still incur significant costs, a fact Mrs Carney herself is fully aware in her own attempts to secure certain medical specialists for hearing (see court correspondence received 29^th May 2009 from Mrs Carney, now marked for the purpose of this decision Ex 5).

16. [16]
    Mrs Carney also raises the point that Mr Foster, like Mrs Carney, could adequately represent himself at the hearing. That submission however overlooks the fact that even if that was so, certain medical specialists were still required for cross examination at her request to be available at hearing and their respective attendances (even by telephone) to give their evidence would be costs which Mr Foster would still be liable to pay.

17. [17]
    Mrs Carney has also raised the point that the reason she believes Mr Foster does not wish to proceed with his application has nothing whatsoever to do the financial expense involved but rather, that he does not wish to put himself into a position where he could be charged with perjury. In this regard, she has set out for my consideration, what she has referred to as inconsistencies in his affidavit dated 6 December 2007 when compared to other affidavit evidence available. I shall now deal with each of the points made by reference to MCC 1 in the order in which they appear so that it may more readily understood.

No 7

18. [18]
    Mrs Carney refers to several matters (speed of her car, advice from QPS Traffic Branch etc). Those matters however overlook the facts which were placed before me on sentence, namely that the car which Mrs Carney was driving struck Mr Foster and caused him injury to both legs, a fact deposed to by Mr Foster in his affidavit and supported by objective medical evidence contained in the affidavit material filed on behalf of Mr Foster under the hand of Penny Neller.

No 10

19. [19]
    Mrs Carney has referred to the 10 physiotherapy treatment sessions undertaken by Mr Foster. A careful reading of Mr Foster’s affidavit at paragraph 10 however merely says that after those initial 10 sessions, his knee injury improved but that he continued to experience problems thereafter. Mrs Carney properly acknowledges herself in her written submissions that he did in fact receive 6 months of physiotherapy.

No 11 & 15

20. [20]
    Mrs Carney has referred to the MRI scan which excluded any significant cartilaginous or ligamentous damage in Mr Foster’s right knee as a relevant factor to any subjective reporting by Mr Foster subsequently. That submission however overlooks the opinion of Orthopaedic Surgeon Dr Pentis, who opines, even after reviewing the relevant MRI and the clinical signs shown upon examination, that Mr Foster had suffered an injury to the cartilaginous, ligamentous structures of his right knee.

No 12

21. [21]
    Mrs Carney has made the suggestion that because of Mr Foster’s academic education, he would be well familiar with the psychiatric diagnosis of Post Traumatic Stress Disorder (and its’ relevant symptomology). Mrs Carney’s suggestion in this regard however ignores the collective experience of the particular medical specialists in the relevant field who had examined Mr Foster (see Penny Jane Neller’s affidavit filed 11 December 2007) who were satisfied that Mr Foster had suffered a psychiatric condition as a consequence of the index offence committed by her.

No 13

22. [22]
    Mrs Carney has referred to Mr Foster’s ‘lie’ in his affidavit regarding his daughter’s (Madeline) birth date (stated as mid December 2005). In considering this matter I have also taken into account the matters raised by Mrs Carney in her submissions filed in these proceedings 18^th November and 16^th December 2008 on this issue (set out at 3.4 and 4.3 respectively).

23. [23]
    In my mind, nothing turns on this point. The error in Mr Foster’s affidavit regarding his daughter’s birth date (stated as mid December 2005 instead of mid December 2006) may well be readily explicable as simply a typographical error. Indeed, the history provided to the relevant psychiatric specialists indicate that the child Madeline was born mid December 2006 and Mr Foster’s psychological condition started to deteriorate towards late 2006 to a point that he then sought medical intervention (See Penny Jane Neller affidavit filed 11 December 2007 and the attached medical reports).

No 17, 18, 19 and 20

24. [24]
    No determination on the various issues raised can be made at this juncture by me. The reason or reasons which eventually led to Mr Foster ceasing work at the time he did, as a result of any psychiatric condition, cannot be determined by me at present. As this matter did not proceed to hearing, none of the relevant medical specialists or Mr Foster has been cross examined on this issue. As such, I am unable to make any specific finding at this point. By way of observation only however, I do note that Mr Foster has deposed that even though he had returned to operational duties both before and after his non operational period of duties at the Yamanto Police Communications (which commenced in July 2006 for several months as I understand it), he had done so with difficulty. I also note that he had told Dr Larder (see page 4 and 15 of Ex MCC 5 of Meryl Carolyn Carney’s affidavit filed 18th November 2008) and Dr Whiteford (see PJN -3 of Penny Jane Neller’s affidavit filed 11^th December 2007) of a particular incident at the Redbank Plaza while he was working at the Police Beat alone after he had returned to operational duties, which had caused him significant distress. That incident it seems coincides around about the same time the ‘dispute’ then arose with his supervising officer Snr Sgt Ballantyne over his application for annual leave for the December/January 07 period (see MCC 15 of Meryl Carolyn Carney’s Affidavit filed 16^th December 2008, report by Snr Sgt Ballantyne attached).

Did the Applicant act reasonably in commencing and thereafter maintaining proceedings which the applicant now no longer wishes to progress?

25. [25]
    A careful consideration of the chronology of this matter (set out in this decision at Annexure 1) and the recordings of the transcripts of the relevant court appearances reveals that none of the adjournments of this matter were ever occasioned by Mr Foster’s conduct. The chronology also demonstrates that as early as 14^th April 2008 Mrs Carney had requested that at least 5 or 6 specialist medical witnesses be made available for cross examination. That position did not change. It cannot therefore be said in those circumstances that the reasons which Mr Foster has given, which I accept, with respect to why he has chosen to discontinue are not genuine. I have also taken into account that this matter was also delayed for hearing (set down initially for 18^th – 20^th March 2009) as a result of Mrs Carney filing an application for extension of time to appeal against conviction and sentence which ultimately was unsuccessful.

Conclusion

26. [26]
    After careful consideration of this matter, I have come to the conclusion that it cannot be said that in all the circumstances, that the application made by Mr Foster for a criminal compensation order against Mrs Carney was vexatious. Nor can I be satisfied that Mr Foster has been motivated to discontinue his application at this point other than for the reasons he had put forward. Nor do I consider that he has acted unreasonably in bringing his application for criminal compensation (see s 24(1)(b) of the Act and also Bushell v Ryder & Anor [2001] QDC 328. It therefore follows that I also do not consider that he was unreasonable in maintaining it.

27. [27]
    Mrs Carney has calculated her legal costs to be in the order of $8,468.80 and $8473.80 respectively. The supporting documentation in that regard have been marked Ex 1 and Ex 4 respectively. While those calculations do not, in my mind, appear to be entirely accurate when one has regard to the Trust Account Statement provided by Files Stibbe Lawyers, it is of no real consequence in light of the conclusion which I have just reached.

Order

28. [28]
    I make no order as to costs.

Annexure 1 – Chronology