Drew v Burton [2003] QDC 18

DISTRICT COURT OF QUEENSLAND CITATION: Drew v Burton [2003] QDC 018 PARTIES: DUANE OLIVER DREW Applicant v STEPHEN MARK BURTON Respondent FILE NO/S: D4327/02 DIVISION: PROCEEDING: Application without oral hearing ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 20 March 2003 DELIVERED AT: Brisbane HEARING DATE: JUDGE: McGill SC DCJ ORDER: Application dismissed. CATCHWORDS: CRIMINAL LAW – Compensation – application for payment from consolidated fund – no jurisdiction to make order for substituted service of notice of demand – Criminal Offence Victims Act 1995 s 36. COUNSEL: - SOLICITORS: Carter Capner for the applicant [1] On 17 July 2000 the applicant was punched in the face a number of times by the respondent. He suffered fractures to both sides of the jaw, more severe on the left, and a possible fracture of the left zygoma. He underwent surgery two days later which involved extensive reconstruction of the jaw and the application of internal and external support mechanisms. The latter were removed about six weeks after the operation, and fortunately he has made a generally good recovery from the injury, although there is some prospect of some continuing trouble in the future. [2] On 25 February 2002 the respondent pleaded guilty in the District Court at Brisbane to an offence of causing grievous bodily harm in respect of the attack on the applicant, and he was sentenced to a term of imprisonment. An application for compensation under the Criminal Offence Victims Act 1995 (“the Act”) was filed on 29 October 2002, and on 20 November 2002 another judge ordered that substituted service of the application and supporting affidavits be made on the Director-General of Legal Services Unit of the Department of Corrective Services, and by publication of notice of hearing on two separate days in a local newspaper. The additional order -- 1 of 4 -- 2 for advertising was made following advice that the Department of Corrective Services was no longer supervising the respondent, and the department was merely willing to forward documents to the most recent known address of the respondent. Those steps were taken, and the application came before a different judge on 4 December 2002. An order was made that the respondent pay to the applicant the sum of $13,500 by way of compensation pursuant to the Act for the injuries suffered by the applicant in respect of the event for which the respondent was convicted on 25 February 2002. [3] On 6 January 2003 an application was filed seeking further orders without an oral hearing. The orders sought were as follows: “1. The order of this court dated 20 November 2002 and a letter of demand be served on the Director-General of the Legal Services Unit of the Department of Corrective Services, on Floor 19 of the State Law Building, 50 Ann Street, Brisbane. 2. That following service on the Director-General the said order and letter of demand will be taken to have been served upon the respondent.” [4] This application was supported by an affidavit by the solicitor for the applicant which said, inter alia: “I must now serve a letter of demand on the respondent.” However, the solicitor did not advise why the need for such a letter of demand arose. There is nothing in the Act which requires service of the order or a letter of demand on the respondent following the making of an order for compensation, and an order for compensation, like any other order requiring a person to pay money, may be enforced under Ch 19 of the Uniform Civil Procedure Rules without any prior service of the order or a notice of demand. Evidently however the applicant’s object is not enforcement of the order against the respondent, but to seek payment from the consolidated fund in respect of the award of compensation pursuant to Division 3 of Part 3 of the Act. [5] Pursuant to s 36(5)(e) of the Act, the Governor-in-Council when considering an application under that Division in respect of injuries suffered by the applicant, may have regard, inter alia, to any amounts that the applicant has received, or the Governor-in-Council considered the applicant would have received, if the applicant had exhausted all the relevant rights of action and other legal remedies available to the applicant because of the injury. [6] Section 36(1) provides that an application for payment under that Division must be made to the Minister in the approved form. I have been provided by the solicitors for the applicant with a copy of what is said to be the approved form. On page 3 under the heading “Action taken to enforce award” the applicant is required to state the action taken to ascertain the ability of the offender to pay the court order, and reference is made to “Lands Department search; Transport Department search; oral examination (copies of both searches required).” The applicant is then required to state the steps taken to enforce the court order in full or in part, eg “letter of demand; warrant of execution; garnishee of wages; bankruptcy action; or other.” The form includes the following notice: “Attention – important information. Please read carefully. Applicants must demonstrate that the offender has been served with the court order and that payment in full or in part has been sought. The minimum -- 2 of 4 -- 3 requirement is proof of forwarding the court order and the letter of demand to the offender.” [7] I have also been provided with an information sheet supplied to persons seeking such an order which states that: “The following material MUST accompany all applications: … Letter of demand to offender and offender’s response (if any).” Further under the heading “Information for Applicant” the following appears: “All court orders must be served on the offender accompanied by a letter of demand that requires the offender to list all their assets and does not refer to any entitlement to apply to the government for criminal injury compensation.” [8] The solicitors have undertaken the Lands Department and Transport Department searches referred to, both of which have produced no result. Evidently the applicant and the applicant’s solicitors have absolutely no idea where the respondent is or how a letter of demand and a copy of the court order could be forwarded by post to the respondent, or served on the respondent, or otherwise brought to the respondent’s attention. Hence the application to the court for an order for substituted service. [9] I can sympathise with the difficulty facing the applicant. The requirements of the form are inconsistent 1 and, it seems to me, entirely unjustified by any provision of the legislation. The information in the “Information Sheet” also seems to be inconsistent with at least some of the information in the approved form, and also to be entirely unjustified by any requirement of the Act. [10] However, I am really not concerned with the validity or otherwise of this material or any administrative response to any application made by the applicant. I am concerned with the question of whether there is jurisdiction to make the order sought and whether it ought to be made. In my opinion there is no jurisdiction. There are several reasons for this. The first is that the proceeding commenced by the originating application has been completed by the making of the order on 6 December 2002. The court has jurisdiction to enforce the order in accordance with the court’s processes, under the relevant legislation including the Uniform Civil Procedure Rules. [11] Rule 116 of the Uniform Civil Procedure Rules gives jurisdiction to make an order for substituted service “if for any reason it is impracticable to serve a document in a way required under this chapter of the rules.” But neither the order of the court nor a letter of demand is a document required to be served in a particular way under Chapter 4. Section 118 of the Supreme Court of Queensland Act 1991 permits rules to be made for the practices and procedures of the District Court or other matters mentioned in Schedule 1 of the Act, and Schedule 1 includes as item 5 “service of documents for civil proceedings and as item 20, “enforcement of orders including enforcement hearings and enforcement warrants.” In addition item 23(b) refers to service of approved forms and other documents and material for use in, or in connection with, proceedings. I do not doubt that there is power under r 116 to make an order for substituted service in an appropriate case in connection with the enforcement of a money order in accordance with Chapter 19 of the Rules. 1 There is an important difference between service of a document and forwarding a document, even allowing for the absence of any indication of what form of service is contemplated. -- 3 of 4 -- 4 [12] However, I do not consider that there is any power to make an order for substituted service under that rule, or as far as I am aware on any other basis, in connection with the making of an application to the Governor-in-Council under Division 3 of Part 3 of the Act. There is no jurisdiction under the Act to make an order for substituted service of either an order for compensation or a letter of demand. Indeed, the court has no jurisdiction in connection with the “enforcement” of the order pursuant to Division 3 of Part 3 of the Act. In my opinion this court has no jurisdiction to make the order in connection with any such application. Insofar as the Governor-in-Council requires service of the letter of demand (or for that matter a copy of the order) on the respondent, there is no power in this court to modify that requirement and to “substitute” in satisfaction of that requirement service on the Director-General of the Legal Services Unit of the Department of Corrective Services. [13] Even if the court had jurisdiction, in my opinion it ought not to intervene in any requirements imposed by the Executive in connection with the administration of the Act. That is an administrative matter between the applicant and the Executive. It has nothing to do with the court. 2 What the applicant is really seeking is for this court to modify or ameliorate the requirements being posed by the Executive. That is not the function of this court. [14] It follows that this application must be dismissed. [15] I should add that I am not aware of any other case in which such an order has been made in connection with an application to the Minister under Division 3 of Part 3 of the Act. There must be numerous examples of cases where the applicant does not know where the respondent is, and therefore a copy of the order and a letter of demand can be neither served on nor forwarded to nor sent by post to the respondent, at least in any meaningful way. There must therefore be in practice some mechanism for coping with this situation. I cannot believe that those responsible for the administration of the Act would be so obdurate as to insist upon a letter of demand in circumstances where the applicant has no idea where the respondent is. 2 If the applicant claims that there has been some error of law in the administration of the Act, it is a matter for the Supreme Court under the Judicial Review Act 1991. -- 4 of 4 --