Protected defendant & ownerless property?

Kanters v State of Queensland [2010] QSC 107


Her Honour Mullins J considered a number of arguments on behalf of the plaintiff in respect of payment of the sanctioned settlement of $1.4 m following an assault in custody by unidentified assailants resulting in a severe head injury.

Following the commencement of Part 12B to the Corrective Services Act 2006 (Qld) on 7 November 2008, damages payable to offenders in custody by the State of Queensland (protected defendant) are first payable to the Public Trustee, subject to the clearance of a number of statutory charges, including potential claims of victims of the offender.

The plaintiff’s counsel argued that the effect of this amendment was to render the damages of the offender’s claim ‘ownerless property’ (bona vacantia), however, this was rejected:

[28] Although s 319L(2) acknowledges that an offender may bring a proceeding in a

court in relation to the civil wrong committed by a protected defendant against a

person while the person is an offender, s 319L(3) expressly states that the person

has no property or interest in a cause of action for the civil wrong or any relevant

money awarded in a proceeding in favour of the person. The counterpart provision

where the offender has settled the claim for damages in relation to a civil wrong

committed by a protected defendant is found in s 319M(2). The compromise

agreement is subject to a statutorily implied term that the offender has no property

or interest in the damages. The court is bound under s 319L(4) to order that the

damages that the protected defendant is ordered to pay in respect of the offender’s

claim for damages for a civil wrong are dealt with under part 12B. Under s

319M(2), there is a statutorily implied term that any compromise agreement in

relation to the damages that must be paid by the protected defendant must be dealt

with under part 12B.

[29] The offender’s immediate right to claim the fruits of the proceeding against a

protected defendant are displaced by part 12B, but there is no windfall to the

protected defendant, as such, as the damages must still be paid to the Public Trustee

and set aside in a victim trust fund under s 319N from which moneys may be paid

out only in accordance with part 12B and in respect of which the offender may be

the contingent beneficiary under s 319ZE or s 319ZF. Even if the victim trust fund

is exhausted in meeting the offender’s obligations in respect of eligible victim

claims and eligible entity claims, the victim trust fund has been spent on account of

the offender in the manner that is statutorily mandated.

[30] Although part 12B imposes a statutory regime for the disposal of the damages that

are ordered to be paid by the court or are the subject of a compromise agreement, it

is not accurate to describe the chose in action that the offender pursues against the

protected defendant in order to obtain those damages as ownerless property. The

regime preserves the right of the offender to pursue a court proceeding in relation to

the civil wrong alleged to have been committed by a protected defendant, but the

creation of the victim trust fund in respect of those damages also facilitates the

payment from those damages of the offender’s debts which the Parliament has

decided should have priority and quarantines those damages from the offender and

other creditors of the offender, until those priorities for payment under part 12B are

satisfied. The plaintiff’s suggestion that the damages should be classed as bona

vacantia is based on the deeming provisions in s 319L and s 319M, without

allowing for the operation of the balance of part 12B.

[31] The vice which the plaintiff identified in respect of the exercise of judicial power in

relation to adjudicating on the offender’s proceeding for a civil wrong against the

protected defendant was that the court was required to determine whether judgment should be given for the offender or the protected defendant in respect of a cause of

action that was ownerless property. That argument does not give effect to the

detailed provisions within part 12B that apply to the treatment of any damages to

which the offender has shown that he or she is entitled to receive from the protected

defendant for the civil wrong.

Brisbane Barrister – David Cormack

Related Posts

Recent Comments



    Discover more from David Cormack, Barrister

    Subscribe now to keep reading and get access to the full archive.

    Continue reading