Cutrale v Dickason[2012] QDC 344

[2012] QDC 344

DISTRICT COURT

CIVIL JURISDICTION

JUDGE LONG SC

No 17 of 2010

MAROOCHYDORE

DATE 02/11/2012

DAY 1

JUDGMENT

HIS HONOUR: On 21 January 2010 this application for criminal compensation was filed. That occurred consequently to the respondent being convicted on 8 October 2009 in the District Court at Maroochydore, of an offence of doing grievous bodily harm to the applicant on 25 September 2008. The respondent was sentenced for this offence to a period of four years and six months imprisonment, with parole eligibility fixed at 8 April 2011.

At the time of the commission of the offence against the applicant, he was aged 38 years. His date of birth is 5 June 1970 and he is now aged 42 years. On 31 October 2009 he was arrested in New South Wales for offences for which he was subsequently sentenced to nine years imprisonment. He is currently in custody in New South Wales serving that sentence.

Although the respondent is still subject to the sentence imposed on him on 8 October 2009, he was released from prison and was, on 13 October 2012, served with the application and most of the materials relied upon by the applicant. However, he did not appear at the hearing of the application on 26 October 2012, or today.

The respondent therefore remains a prisoner for whom the Public Trustee has responsibility pursuant to section 91 of the Public Trustee Act 1978 Queensland. More particularly, and pursuant to section 95(1)(b) of that Act, he is precluded from defending an application like this without the consent in writing of the Public Trustee. The Public Trustee has been notified of the application and has not appeared in this Court today or sought to raise any objection to the determination of this application and the application, in fact, remains as one which is undefended by the respondent. Accordingly, there is no impediment, on that account, to the Court determining it.

There is then the further potential complication of the applicant's status as a prisoner in New South Wales. Because he is not a prisoner, pursuant to Queensland law, Part 7 of the Public Trustee Act 1978 (Qld) does not apply to him. However, and pursuant to New South Wales law, and in particular section 4 of the Felons (Civil Proceedings) Act 1981, he is impeded from instituting any civil proceedings in any Court except with leave of that Court. This is because section 4 of that Act provides:

"A person who is in custody as a result of having been convicted of, or found to have committed a serious indictable offence may not institute any civil proceedings in any Court except by the leave of that Court granted on application.”

As I have noted, it is clear that the applicant is in custody in New South Wales, as a result of having been convicted of, or having been found to have committed a serious indictable offence. That is, within the meaning of the definition of the term, serious indictable offence, in section 21 of the Interpretation Act 1987 (NSW).

It is at least questionable as to whether this legislative restriction has effect extra-territorially and therefore to this application, which is brought in Queensland and under a Queensland statute and, moreover, which may only have been brought to this Queensland Court. If so (as I am inclined), then there is nothing to restrict or prevent the bringing and determination of this application. However, and if that is not correct and section 4 of the New South Wales act is applicable to the bringing of this application, then it would necessarily follow that it must apply to allow this Court to grant leave where appropriate to do so.

In that respect, and having regard to the test to be applied under section 5 of that Act, and as discussed in Ford v Symes [2009] NSWCA 351, it is clear that the application is not an abuse of process and has prima facie substance. Accordingly, and whilst I am not satisfied that it is actually necessary to make a formal order pursuant to section 4 of the New South Wales Act, if that were necessary I would do so for those reasons.

This application is made pursuant to Part 3 of the Criminal Offence Victims Act 1995 (“COVA”), which provisions continue to apply to this application despite the repeal of COVA on 1 December 2009. This is because sections 154 and 155 of the Victims of Crimes Assistance Act 2009 provide for the continued availability of these provisions, because of the making of this application before the end of two months after the commencement of that Act.

The purpose of Part 3 of COVA is to provide for a compensation scheme for injury suffered by an applicant that is caused by a personal offence committed against that applicant, which entitlement is intended to help an applicant rather than reflect the compensation entitlement that the applicant may have under common law or otherwise.

The maximum amount that may be awarded is fixed in the amount of $75,000, and assessment under the scheme is required to be by reference to the relative seriousness of an injury and the scaling of the injury against the schedule of injuries provided in schedule 1 of COVA and the range of percentage or proportion of the scheme maximum that may be attributable to such an injury. It is necessary to follow the statutory methodology and to assess each of an applicant's injuries. Where it is practicable to do so, regard must be had to the statutory provisions for each comparable item and, where it is necessary to have regard to more than one item of injury, it may be necessary to make adjustments to avoid duplication and to cater for the differences in ranges and maxima for separate items: see Wren v Gaulai [2008] QCA 148 at [22]-[29].

Here there has been a long delay in bringing this application to a hearing in this Court and the application itself indicates postponement or adjournment of the hearing date on eight occasions between 19 February 2010 and 26 October 2012. Primarily and apart from one postponement at the behest of the Court, those adjournments have occurred at the request of the applicant's solicitor and, as explained in the affidavit of Mr Stegeman, filed on 25 October 2012, because of the difficulties in initially locating the applicant and then in correspondence with him, as he was moved between correctional centres in New South Wales, and therefore in obtaining instructions and authorities for and the relevant medical information in respect of his injuries.

An effect of this effluxion of time is that there is now some urgency attending the finalisation of this matter, as the effect of section 183(2) of the Victims of Crime Assistance Act 2009 is that if an order is not made and the applicant does not provide to the State, before 1 December 2012, all of "the necessary information, documents or other assistance" to enable an application for ex gratia payment to be decided, any such application will lapse.

As the expectation here is that the respondent will not have the means to satisfy any order that is made and the ultimate aim is and has always been, to seek payment from the State under the COVA scheme, the applicant must, before 1 December 2012, obtain an order from this Court, attempt to execute it on the respondent and lodge an application providing all the necessary information about this, with the State.

In these circumstances, and as properly raised by the applicant, there are issues as to the application of UCPR 389. In my view, there are two arguably separate considerations arising, respectively, under UCPR 389(1) and (2). Each consideration depends upon a conclusion as to whether there has been any step taken in these proceedings after the filing of the application on 21 January 2010, and before the filing of material on 16 September 2012 for the hearing of this application on 26 October 2012.

Another relevant event of course was the serving of the application on the respondent, on 13 September 2012. The hearing date for 26 October 2012 had been set by the Registrar as a postponement or adjournment of the hearing of the application, prior to the service of that application on 13 September 2012. In this regard it can be noted that, pursuant to section 28(1) of COVA, the convicted person against whom a compensation order is sought must be notified of the application before it is decided by the Court. Typically, when an application is filed it is given a hearing date, which is endorsed on it, and to the extent that they may apply, UCPR 27 and 28 respectively require service of the application and any affidavit material to be relied upon at the hearing of the application, at least three business days before the date set for the hearing. In addition, UCPR 105 requires personal service of originating process.

In the first instance, the applicant contends that his lawyers requests for re-listing of the hearing of the application (which he contends amount to a request for and securing of administrative adjournments of the application pursuant to UCPR 464) constitute steps taken in this proceeding within the meaning of that concept, as discussed by Justice Applegarth in Artahs Pty Ltd v Gall Stanfield and Smith [2011] QSC 273 at [13], as "a step that is required by the rules to progress the action towards a conclusion".

It can be observed that some action was necessary in order to postpone or adjourn the hearing dates variously set for this application and in order to keep it before the Court and therefore to allow for the prospect of it being ultimately decided, and therefore such action may be regarded as a formal step required by the rules.

However, there is an obvious difficulty in regarding such action being so required as to progress the proceedings to a conclusion and particularly so where it is action that is taken in circumstances where, not only had there been no service of the applications or materials relied upon on the respondent, but such materials were not then even collected, or at least in a form where they could be, or were, filed and I am not prepared to so find.

Accordingly and alternatively, the applicant applies for leave to proceed, pursuant to UCPR 389(2). As also discussed by Justice Applegarth in Artahs, at [22], the discretion allowed under that sub-rule is not fettered by rigid rules, and the typical criteria to be considered are those discussed in Tyler v Custom Credit Corp Limited [2000] QCA 178.

Having regard to those considerations and the circumstances of this case (as I have already outlined) such leave should be granted and is granted. In particular, and noting also that the respondent was served with the originating application on 13 September 2012 and has demonstrated no interest in the matter by not attending at the hearing on 26 October 2012 or today, there is no relevant resultant prejudice to the respondent.

In the circumstances it is also apparent that UCPR 389(1) has also not been complied with. Whilst it is not clear as to whether a grant of leave under UCPR 389(2) automatically cures that problem, in the sense that the failure to give a month's notice may also be a factor taken into account. In the circumstances and if necessary to do so, I would also determine it appropriate to allow the proceeding to continue to determination, pursuant to UCPR 371, notwithstanding any such non-compliance with the rules.

There is, however, a further technical hitch in that it has been drawn to my attention that the reports of Drs Whitley and Mansour and which comprise exhibit KJS1A to the affidavit of Mr Stegeman, filed 25 October 2012, were not actually included in the material served on the respondent, in an unsworn form.

An explanation for that appears to be that the primary reliance is upon various medical records, and these statements are in sort compass and merely in the form of summarising the contents of some of the medical files which are otherwise before the Court, and appear to have been obtained from the prosecution brief in relation to the offence committed by the respondent.

In those circumstances and notwithstanding that the Court's primary attention is to the source medical records and to the extent that it is necessary to do so, I also direct that those two reports may be considered as part of the material upon which this application is based. Again, there is nothing about these circumstances that indicates any identifiable prejudice to the respondent's position in doing so.

The materials that are before the Court provide somewhat scant details as to the commission of the offence. The applicant, in his statement to police, dated 1 October 2008, describes a lack of recollection of the circumstances of the assault committed upon him, but does describe some background of tension between he and the respondent leading up to the night when he was injured.

However and when the respondent was sentenced in this Court on 8 October 2009, it was specifically observed by Judge Griffin SC that the offence "was committed against someone who, in the circumstances - whatever background dispute there was … about other issues, on this occasion … was … entirely blameless."  His Honour also observed that "the offence demonstrated extreme violence" and a "prolonged attack, which was only ended when others came" to the aid of the unfortunate victim.

Accordingly, this is not a case where it appears that it is necessary to have regard to any contributory behaviour by the applicant, pursuant to section 25(7) of COVA.

As a consequence of the offence committed by the respondent, the applicant was admitted to the Nambour General Hospital and then discharged for follow-up treatment at the Royal Brisbane Hospital and Women's Hospital (RBH), including for facial surgery. Since his incarceration in New South Wales he is noted as having received treatment from prison medical services since late 2009.

Otherwise, having regard to the circumstances that have been outlined, the materials that have been obtained to support the application are largely in the form of hospital records, in respect of the applicant's assessment and treatment after the commission of the offence. Those records disclose that:

1. (a)
   The Nambour Hospital notes show:

1. (i)
   On admission he reported being kicked and punched, his eye was swollen shut, he had multiple abrasions and a large haematoma in the left-frontal temporal region and he was given a neck collar;
2. (ii)
   The applicant was noted to be suffering from post- concussion symptoms on the day after the assault;
3. (iii)
   Reports of the x-rays and scans taken at the Nambour Hospital on 25 and 26 September 2008 confirmed the fractures of the right cheek bone, or right maxilla zygomatic complex and of nasal bones and a fractured rib; and
4. (iv)
   The applicant was discharged on the basis that he would attend the RBH for treatment of his facial fractures. The applicant was noted on discharge to require pain relief, including Augmentin Duo Forte and Panadeine Forte.

2. (b)
   At the RBH, the applicant was noted to have numbness and pain in the right side of his face. He had headaches, nausea and vertigo. His right eye was sore and he had diplopia (double vision).
3. (c)
   The applicant had surgery at the RBH on 6 October 2008, consisting of an open reduction of the right zygoma complex, including the insertion of a five-hole short 1.5mm microplay (a small metal plate) secured by five screws. The nasal bone fracture was also manipulated.
4. (d)
   X-rays revealed the fracture to have been united with the plate and screws.
5. (e)
   Post-surgery on 13 October 2008, the applicant complained of headaches, he was complaining that his eyes were not in alignment and that colours were "faded/less distinct" in the right eye. He attended the eye clinic which noted some irregularities. The applicant did not re-attend despite an appointment being made.

It is then contended that the applicant's ongoing injuries and symptoms are:

1. (a)
   headaches;

2. (b)
   numbness in the right side of his face, and

3. (c)
   pain in the right side of his face, for which he requires medication.

The medical notes relating to the applicant's incarceration in New South Wales provide some confirmation that in February 2011 ongoing numbness in the applicant's face and mouth, as a consequence of the subject incident, was identified. However, those records do not support such a relationship of ongoing headaches to this incident, as opposed to some unrelated neck and shoulder injuries.

It is also contended that there is reference in those New South Wales records to the applicant being in a depressed state following this assault, and which led to him being assessed as a possible suicide risk in November 2011. However there is no evidence of any diagnosed mental illness or disorder, let alone any evidence to ascribe any cause for any such condition, particularly given the obvious life situation of the applicant, as at November 2011 and other obvious factors which may have caused his then reported symptoms.

It is not appropriate to bring this into account as a consideration, even in a general sense. Also and having regard to the lack of separation of the description of any significant contusions and/or bruising from the significant underlying injuries in the nature of bone fractures, I do not propose to allow separately, under item 2, in the schedule to COVA.

Accordingly, and having regard to the effects of the injuries noted in the materials and as a result of the respondent's personal offence, I will allow the following awards by reference to the schedule:

• for facial fracture (including any eye issues) under item 8, 25 per cent, an amount of $18,750.
• for the fractured nose, under item 3 in the schedule, at 8 per cent, an amount of $6,000.
• for rib fracture, under item 21, an amount of 4 per cent, or $3,000.

That is a total of $27,750.

Accordingly then, I formally order:

1. that the name of the applicant in the Court file be corrected to read Salvatore Vincenzo Cutrale; and
2. that the respondent, Jason Leonard Dickason, pay the applicant, Salvatore Vincenzo Cutrale the sum of $27,750 as compensation pursuant to section 24 of the Criminal Offence Victims Act 1995, for injuries sustained as a result of the personal offence committed on the applicant and in respect of which the respondent was convicted and sentenced on 8 October 2009.