1
I have had the advantage of reading the reasons for judgment prepared by Demack J, with which I substantially agree. I wish to add some brief observations of my own.
2
The first issue is whether the appellant had a "cause of action", against her late husband, which was subsisting as at his death on 10 January 1997, and therefore survived against his estate because of s 66(1) of the Succession Act 1981. Only in that case could the appellant have subsequently pursued her claim, as she did by her application filed 26 October 1998.
3
Adopting Brett J's traditional formulation of what amounts to a "cause of action", expressed in Cooke v Gill (1873) LR 8 CP 107, 116, that is, as comprehending "every fact which is material to be proved to entitle the plaintiff to succeed", one would prima facie have thought that establishing her late husband's conviction for having wounded her and her having suffered substantial injury in consequence, the appellant would thereby attain an "entitlement" to monetary compensation warranting the conclusion that she had a "cause of action" falling within that concept. The learned district court judge was however dissuaded from that conclusion by his view that the appellant was not "entitled" to succeed, because whether or not compensation was ordered depended so much on an exercise of the court's discretion.
4
It is true that s 663B of the Criminal Code was cast in discretionary terms: "... the court ... may ... order ... compensation ...". But the scope of the discretion to decline to order the payment of compensation was circumscribed. That emerges from s 663B(2), which provided, as relevant, that in determining whether or not to make an order, the court "shall" have regard to any behaviour of the person aggrieved "which directly or indirectly contributed to the injury", and to other relevant circumstances, such as whether the applicant was a relative of the convicted person, or cohabited with him. None of those circumstances could, in the present case, have warranted the court's denying the appellant compensation on discretionary grounds. (I return in a little more detail later to the question of cohabitation.) The appellant should therefore have been seen as having a "right" to compensation, and her claim should not have been characterised as falling into the category of "mere hopes or contingencies" which, on Denning LJ's view in Sugden v Sugden [1957] P 120, 134, would exclude the existence of a cause of action.
5
I do therefore consider that the appellant had a cause of action which survived her late husband's death. The next question is whether the application was properly constituted before the court, there having been no joinder of any person to represent the deceased's estate. The learned judge was referred to O 3 r 34 of the Rules of the Supreme Court, which applied to these District Court proceedings because of r 4 of the District Court Rules. Order 3 r 34 provides, as applicable, that "[i]f in any cause or matter it appears to the Court or a Judge that any deceased person who was interested in the matter in question has no legal personal representative, the Court or Judge may proceed in the absence of any person representing the estate of the deceased person ...". The judge held that the deceased was not "interested in the matter in question" because he had died before the proceedings were commenced.
6
In my opinion, however, because the cause of action survived against his estate, he must be taken to have had an interest which survived his death, rendering O 3 r 34 applicable. After his death, that cause of action could be pursued against his estate.
7
But it appears that the deceased left neither a will nor any estate of any substantial value. The purpose of joining a personal representative is to ensure that the estate's material interest is protected. Here there was none. The obvious purpose of this application was to secure an ex gratia payment from the State of Queensland.
8
It was a case where proceeding in the absence of a personal representative was warranted, and the judge should, as necessary, have received the evidence establishing the lack of a will and the lack of any substantial estate which was ultimately placed before this court on appeal.
9
I agree with Demack J that the cause of action based on s 663B arose upon the conviction of the deceased, that is on 14 February 1991; and that because of s 10(1)(d) of the Limitation of Actions Act 1974, a limitation period of six years was applicable. It follows that the application was time barred.
10
The curious feature of the case, of course, was that there was no one to take that point, there being no representative for the deceased estate; and as I have said, there being no need for representation because there was no estate to protect. As pointed out in Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398, 404, time limitation provisions operate to "bar the remedy and not the right", and operate only if distinctly relied upon. (See also Leicester Wholesale Fruit Market Ltd v Grundy [1990] 1 WLR 107, 114.) The learned judge should not have been dissuaded by this possibility - had he adverted to it - from ordering the payment of compensation.
11
If the Minister for Justice reports to the Governor in Council under the repealed s 663C(2), as part of the process leading to the making of an ex gratia payment to the appellant, he may or may not consider it appropriate to refer to this issue as a relevant "other matter" (s 663C(2)(e)). That is a matter entirely for the Minister, and I do not consider that this court need or should advert to that possibility in its order.
12
I agree with the reasons of Demack J leading to his proposed order for the payment of $25,000 compensation.
13
I also agree that a resumption of cohabitation, following the offence, by an applicant with the convicted person, could not ipso facto deny the applicant a right to compensation otherwise arising under s 663B. The object of the provision is to compensate victims of crime in respect of their injuries. It would be illogical, indeed arguably punitive, to exclude compensation for injuries simply because of a subsequent resumption of cohabitation.
14
I would grant leave to appeal, direct that the matter proceed in the absence of any person representing the estate of Bruce Adrian Chong deceased, allow the appeal and set aside the order refusing the appellant's application, and order Bruce Adrian Chong to pay the appellant $25,000 by way of compensation for injuries suffered by the appellant by reason of the offence of unlawful wounding of which Bruce Adrian Chong was convicted on 14 February 1991.