AMT v TMT [2004] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: AMT v. TMT [2004] QDC 155 PARTIES: AMT (Applicant) v. TMT (Respondent) FILE NO/S: 5724/01 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 27 May 2004 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Hoath DCJ ORDER: Application dismissed. CATCHWORDS: CRIMINAL LAW – Compensation – Where application brought out of time. LIMITATIONS – Extension of time – where application for criminal compensation filed eight months after the limitation period expired – where applicant had suffered headaches, shame, feelings of guilt and fear – where applicant had told this to her psychologist – where the only result of the psychologist’s examination was that the applicant was informed that the symptoms she was suffering could be psychiatrically classified as post-traumatic stress disorder – whether this was a “material fact of a decisive character.” Limitations of Actions Act 1974 s 31(2). Criminal Offence Victims Act 1995 s 41. Criminal Offence Victims Regulation 1995 reg 1A(2) Moriarty v Sunbeam Corporation Limited (1998) 1 Qd R 325 applied. -- 1 of 4 -- 2 Watson v Poynter (2003) QCA 224 applied. COUNSEL: Mr A. Kimmins for applicant No appearance for respondent. SOLICITORS: Tony Bailey Solicitor for applicant No appearance for respondent. [1] The applicant, AJT, brings this application to extend the limitation period to bring an application for compensation pursuant to the Criminal Offence Victims Act 1995 against the respondent, TMT. [2] On 20 March 1998 TMT was convicted in the District Court at Mt Isa of one count of rape, three counts of assault occasioning bodily harm and one count of unlawful assault on the applicant. Those offences were committed on three separate occasions in August and November 1997. The application for criminal compensation was not lodged until 30 November 2001, that is over eight months after the limitation period expired. [3] Section 31(2) of the Limitations of Actions Act, which by virtue of s 41 of the Criminal Offence Victims Act governs the basis on which the limitation period may be extended in respect of applications for criminal compensation, provides: “(2) Where on application to a court by a person claiming to have a right of action to an action to which this section applies, it appears to the court – (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the deceased person or the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action, apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes -- 2 of 4 -- 3 of the action brought by the deceased or the applicant in that court, the period of limitation is extended accordingly.” [4] This application is made on the basis that the applicant was unaware of a material fact of a decisive character, that fact being that she suffered nervous shock as a result of the offences committed upon her until she was diagnosed by Mr Ryan, a psychologist, on 30 November 2001. [5] In determining whether an application should succeed on the above basis, the principle to be applied was set out by Mr Justice Macrossan, as he then was, in Moriarty v. Sunbeam Corporation Limited (1988) 1 Qd R 325 at 333 where His Honour said: “In cases like the present an applicant for extension discharges his onus not simply by showing that he has learned some new facts which bear upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made on it. He must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.” [6] The issue on this application is whether, without Mr Ryan’s assessment, a reasonable person would have previously appreciated that they had a worthwhile action to pursue and should, in their own interests, have pursued it. See Davies JA in Watson v. Poynter (2003) QCA 224. [7] On 13 October 2001, when the applicant first saw Mr Ryan, she told him that she had suffered headaches every week since the assault, that she experienced shame, guilt and feelings of being dirty with respect to the sexual assault, and that she had an ongoing fear that her husband would attempt to kill her in revenge for his imprisonment as a result of the offences that he committed upon her. -- 3 of 4 -- 4 [8] Those symptoms indicate that she was already aware that she was suffering symptoms which fit the criteria of mental and nervous shock and also symptoms of the “injury” defined in Regulation 1A(2) of the Criminal Offence Victims Regulation 1995 as “the adverse impacts” of a sexual offence, and those symptoms were of sufficient degree to make it worthwhile to pursue an action she should in her own interest have pursued. [9] The consultation with Mr Ryan did not reveal any new injury. The only result of Mr Ryan’s examination was that he was able to inform her that the symptoms she was suffering could be psychiatrically classified as post-traumatic stress disorder. [10] The fact that applicant may have been legally ignorant that the symptoms she suffered gave her a cause of action enabling her to bring a claim for criminal compensation does not constitute a material fact of a decisive character. [11] Whilst the applicant has a worthwhile claim for criminal compensation, the law in the circumstances of this case does not allow me to extend the limitation period and the application must unfortunately be dismissed. -- 4 of 4 --