Burton v Bauer[2012] QDC 352

DISTRICT COURT OF QUEENSLAND

1. [1]
   This was an application for criminal compensation pursuant to the provisions of section 663B of the Criminal Code Act.

2. [2]
   The matter first came before O'Sullivan DCJ on the 13 March 2009.  There was some confusion about what there occurred.  The file contains an Order of that date in the following terms:

1. The respondent, Dermont Charles Bauer, pay to the applicant, Maree Louise Burton the sum of $15,000 by way of criminal compensation

2. That the respondent pay 50 per cent of the costs of the applicant, to be agreed or assessed

3. [3]
   Despite the fact that such order had been taken out, it seems Her Honour did not make such an order. The transcript of that day showed Her Honour found the applicant “had discharged her onus of proving causation”. She then gave an “intimation” that the applicant would be entitled to the then statutory maximum compensation of $15,000. Her Honour’s “preliminary finding” was that the applicant would only be entitled to “50 per cent of her costs agreed or assessed”. Her Honour subsequently advised the parties of the true position.

4. [4]
   The matter did not then progress speedily. It came before me on 30 August 2010.

5. [5]
   On that day I directed the solicitors for the respondent to provide an affidavit as to details of their attempts to contact him in order to justify their being given leave to withdraw as solicitors on the record for the respondent. I ordered that unless the respondent’s solicitors were able to locate the respondent, service could be effected on him by the applicant’s solicitor placing an advertisement in a particular form in The Courier-Mail.

6. [6]
   The matter was then adjourned to 9 September 2010.

7. [7]
   On the day the respondent’s solicitors, Delaney and Delaney filed an affidavit of Kate Louise Worsnop which deposed to attempts made to locate the respondent. I gave the solicitors leave to withdraw pursuant to r 691 of the UCPR.

8. [8]
   An affidavit of Lauren Maree Wilkie, an employee of the applicant’s then solicitors, deposed to the placing of an advertisement in the form I had indicated in The Courier-Mail notifying the respondent of the hearing of the application on 9 September.

9. [9]
   On that date I made orders in accordance with the intimation of O'Sullivan DCJ; that is, that the respondent pay the applicant the sum of $15,000 by way of criminal compensation. I made at that time no order as to costs but made comments about them to which I shall shortly refer.

10. [10]
    Nothing had been done in respect of costs until very recently when the applicant’s solicitors contacted my associate. The applicant’s solicitor, in emails provided to me, including details of emails between the applicant’s counsel, Mr Kissick, and the applicant’s solicitors, asserted that I had also awarded the applicant costs being 50 per cent of costs except for the appeals on 30 August 2010, for which full costs had been allowed.

11. [11]
    Because the Court record showed that no order had been made as to costs I obtained a transcript of my ruling on that day from the State Reporting Bureau.

12. [12]
    I said this in respect of costs on 9 September:

“I will receive submissions as to costs in particular as to whether or not I have power to fix costs and if so what they should be.”

13. [13]
    At that time I indicated that if I did not have such power to fix costs my intention would be to follow what O'Sullivan J had indicated namely that the applicant recover 50 per cent of the costs to be agreed or assessed together with reasonable costs associated with the appearances before me on 30 August 2010 and 9 September 2010. As I have said, despite what I said on that day I have received no subsequent submissions as to my power to fix costs.

14. [14]
    The application was an application for costs under the Code and not under the Criminal Offence Victims Act. Pursuant to that later Act, there was no power to fix costs. It is clear however that costs have been awarded in many applications for compensation under the Code. In R v Holder; ex parte Jenner [1988] 2 Qd R 580 Connolly J determined that an application for compensation for injuries suffered by the victim of a crime brought pursuant to s 663B of the Criminal Code was properly made by a motion pursuant to the then Supreme Court Rules and was accordingly a proceeding in the Court within O 90 r 1 of the then rules. Consequently His Honour held that costs were at the discretion of the Court.  That decision has subsequently been followed.  See for example V v H [2008] QDC 333 per Rackemann DCJ. 

15. [15]
    Under the circumstances I find that I have power to fix costs, an event that is common under the UCPR and was available under the old Supreme Court Rules. These proceedings were commenced after the implementation of the current UCPR.

16. [16]
    An affidavit of David John Lewis of Given Law, the applicant’s current solicitors, attaches a costs statement. That costs statement was prepared on the basis that all professional fees and disbursements incurred up to and including August 2009 had been claimed at only 50 per cent but that thereafter professional fees and disbursements incurred, which related to the finalisation of the order, had been the full costs incurred on a standard basis.

17. [17]
    On that basis the total of the costs and disbursements assessed was $11,535.29. I have perused the costs statement and it appears reasonable. Accordingly I order that, in addition to the sum of $15,000 ordered to be paid to the applicant by the respondent on 9 September 2010, the respondent also pay to the applicant costs of and incidental to the application for compensation fixed in the sum of $11,535.29.