DHB by her litigation Guardian, LA, Director-General, Department of Communities (Child Safety Services) v WNG & Ors [2012] QDC 134

1-1 [2012] QDC 134 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2977 of 2009 DHB BY HER LITIGATION GUARDIAN, LA, DIRECTOR-GENERAL, DEPARTMENT OF OF COMMUNITIES (CHILD SAFETY SERVICES) Applicant and WNG & ORS Respondents BRISBANE ..DATE 16/04/2012 ORDER CATCHWORDS Uniform Civil Procedure Rules 1999, r 116, r 389(2) Application by minor acting by litigation guardian for compensation under Criminal Offence (Victims) Act 1995 - leave to proceed after delay exceeding two years - service of first respondent declared effective notwithstanding delay - substituted service on second respondent at her mother's address authorised. -- 1 of 4 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The court makes an order in terms of an initialled draft, which grants the applicant leave to proceed with her application for criminal injuries compensation under the Criminal Offence Victims Act 1995 pursuant to rule 389(2). Until a matter last week a matter of V v. Y [2012] QDC 555 I was unaware of a developing area of jurisprudence related to delay in prosecution of applications of this kind and the necessity to obtain leave where the extent of such delay reaches 2 years. Ms Fadden's helpful written submissions refer to a couple of similar matters. Judge Samios made such an order against opposition of the respondent in CE v. RO [2012] QDC R40. There's also an unreported decision of her Honour Judge Ryrie in Brisbane on 7 July 2010 of H v. E. The present circumstances are unusually sympathetic from the applicant's point of view. She is still a minor, having been born in the latter part of 1997. Indeed, the proceeding is brought by her litigation guardian in consequence of physical assaults on her by her father, the first respondent, in which the second respondent, the mother, appears to have been complicit. She has been grievously injured, sustaining, among other things, serious brain damage and loss of function on one side of her body. It's taken a very long time, as one can understand, for assessments to be made and the relevant expert reports to be obtained. -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 As in the Judge Samios matter, I am of the view that nothing about the delay would impinge on the availability of a fair hearing of the application for the respondents. The father has been served in the custodial institution where he still is on 14th March 2012. The proceeding commenced not long before the cut-off date for such applications, on 16th October 2009. There might be some concern that there had been more than 2 years "delay" since the previous step in the proceeding. I took Ms Fadden to suggest that the service did not amount to a step, that only something like a court order would suffice. I'm not sure that that's correct. However, the court is in a position to, and ought to make a declaration in the order as has occurred that service on the first respondent of the application of supporting material on 14 March 2012 is to be taken as effective, notwithstanding such delay as preceded it. The remaining aspects of the application are two. Substituted service on the second respondent is sought. She was sentenced to custody but is now at liberty. It has proved impossible to locate her but a reliable means of contact, namely her mother, who, for all that appears, is sympathetic to the applicant, has been achieved. That lady undertook to ask her daughter, the second respondent, to contact Ms Fadden. There's no reason to suspect that she wouldn't have lived up to her undertaking but the respondent has made no contact. The information Ms Fadden places before the court is that the person's mother is in regular contact with her. We can be -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 confident to a sufficient degree that the court documents will come to the second respondent's attention if they're posted to her mother. That arrangement, pursuant to rule 116, is part of the court's order. I've amended Ms Fadden's draft to add at the end of what's now paragraph 3, “by ordinary prepaid post, together with a copy of this order. Service is to be deemed effective 14 days after such posting”. The court also fixes for the hearing of the application 16th May 2012. It seems necessary to stipulate that the first respondent should be advised of the date. ... HIS HONOUR: The first respondent hasn't been advised of today's date. Should he wish to argue that the court ought not to have proceeded under rule 389, he will have the ordinary right of every litigant in whose absence orders are made to contend that the orders ought not to have been made. ----- -- 4 of 4 --