State of New South Wales v Madah and Anor [2008] NSWSC 481

State of New South Wales v Madah and Anor [2008] NSWSC 481

The eligibility period expired on 27 December 2006. Karen Madah commenced proceedings within that period and her statement of claim constituted sufficient certification under s 26M(2)(c), but she did not prove that notice in writing of those proceedings was given to the protected defendant within the eligibility period. The evidence did not establish that the 22 December 2006 letter was sent that day, and even if it was sent by prepaid post, the statutory presumptions would treat service or receipt as occurring on 2 January 2007, after the eligibility period. Her victim claim was therefore not eligible to be satisfied from the victim trust fund.

Jurisdiction
Australia
Judgment Date
21 May 2008
Procedural Posture
Equity Proceeding for Declaration Concerning Eligibility of a Victim Claim to Be Satisfied From a Victim Trust Fund Under Division 6 of Part 2 a of the Civil Liability Act 2002 / Principal Judgment
Outcome
Declaration made that Karen Madah's victim claim against Jason Fong is not eligible to be satisfied from the victim trust fund.
Legal Topics
['victim Trust Fund' 'offender Damages' 'eligibility Period' 'notice in Writing' 'postal Service Presumptions' 'certification to Court']
['trusts' 'civil Liability' 'statutory Interpretation' 'evidence and Procedure'] ['victim Trust Fund' 'offender Damages' 'eligibility Period' 'notice in Writing' 'postal Service Presumptions' 'certification to Court']

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Procedural Posture

Equity Proceeding for Declaration Concerning Eligibility of a Victim Claim to Be Satisfied From a Victim Trust Fund Under Division 6 of Part 2 a of the Civil Liability Act 2002 / Principal Judgment

Legal Issues

  1. 1 ['What was the eligibility period for the victim trust fund?' 'Did Karen Madah commence proceedings on the victim claim in a court within the eligibility period as required by s 26M(2)(a) of the Civil Liability Act 2002?' 'Did Karen Madah give the protected defendant notice in writing of those proceedings within the eligibility period as required by s 26M(2)(b) of the Civil Liability Act 2002?' 'Did Karen Madah certify to the District Court that she was making the claim as a claim eligible to be satisfied from the victim trust fund as required by s 26M(2)(c) of the Civil Liability Act 2002?']

Ratio Decidendi

The eligibility period expired on 27 December 2006. Karen Madah commenced proceedings within that period and her statement of claim constituted sufficient certification under s 26M(2)(c), but she did not prove that notice in writing of those proceedings was given to the protected defendant within the eligibility period. The evidence did not establish that the 22 December 2006 letter was sent that day, and even if it was sent by prepaid post, the statutory presumptions would treat service or receipt as occurring on 2 January 2007, after the eligibility period. Her victim claim was therefore not eligible to be satisfied from the victim trust fund.

Court Disposition

Declaration made that Karen Madah's victim claim against Jason Fong is not eligible to be satisfied from the victim trust fund.

Orders

  • ['Declare that the victim claim of Karen Madah against Jason Fong in District Court proceedings No 264 of 2006 at Parramatta is not eligible to be satisfied from the victim trust fund held on trust for Jason Fong pursuant to Division 6 of Part 2A of the Civil Liability Act.' 'The parties may address on costs.']