Chisari v Department of Justice and Attorney General, Offender Debt Recovery Program [2019] QCAT 288

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chisari v Department of Justice and Attorney General, Offender Debt Recovery Program [2019] QCAT 288 PARTIES: ALEXANDER PER CHISARI (applicant) v DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL, OFFENDER DEBT RECOVERY PROGRAM (respondent) APPLICATION NO/S: GAR023-18 MATTER TYPE: General administrative review matters DELIVERED ON: 19 September 2019 HEARING DATE: 10 September 2018 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: The decision of the Department of Justice and Attorney-General, Offender Debt Recovery Program is confirmed CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review matter – where the applicant was convicted of offences – where order of compensation made by the District Court in 2004 – where payment made to the victim by the State in satisfaction of the order under the Criminal Offence Victims Act 1995 (Qld) in 2005 where action taken by the State to recover the amount from the offender under the Victims of Crime Assistance Act 2009 (Qld) in 2017 – whether the Limitations of Act applied – where the grounds for disputing the recovery are available to the offender Criminal Offence Victims Act 1995 (Qld) (repealed) Limitation of Actions Act 1974 (Qld), s 5, s 6, s 10 Victims of Crime Assistance Act 2009 (Qld), s 185, s 186, s 187, s 188, s 189, s 190, s 191 Mitterbauer v Department of Justice and Attorney- General, Offender Debt Recovery [2013] QCATA 159 -- 1 of 4 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: K McCarthy, in-house lawyer REASONS FOR DECISION Mr Chisari has made application to review a decision that he is liable to pay the State of Queensland the amount of $11,250.00 pursuant to s 191 of the Victims of Crime Assistance Act 2009 (Qld) (‘VOCA Act’) in accordance with a Liability Notice dated 16 January 2018. He had been sent a recovery notice under s 189 of the VOCA Act on 13 September 2017 which he disputed following which on 21 November 2017 the Scheme Manager determined that the State of Queensland was entitled to recover $11,250 in relation to an order. It was noted that no application had been made to QCAT to dispute the decision made by the Scheme Manager and that as a result Mr Chisari was liable to pay the amount. I note that there was no advice to Mr Chisari accompanying the Liability Notice advising him that he had a right to seek a review of the decision made on 16 January 2018. The amount of $11,250 relates to an order of the District Court made on 30 August 2004 which ordered Mr Chisari to pay compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) (‘COV Act’) (now repealed) in the amount of $11,250 to the victim of a crime for which Mr Chisari had been sentenced on 6 December 2001. Mr Chisari was provided with a copy of the relevant orders, a departmental extract confirming an application had been made and granted under s 32 of the COV Act as a well a cheque in the amount of $11,250 date 6 May 2005 payable to the victim of the crime, with the recovery notice of 13 September 2017. It was made clear in the notice that the Scheme Manager is only able to consider disputes about any payments made by him in relation to the order which have not been taken into account in this notice. Mr Chisari advised in an email sent on 25 September 2017 that he had been a victim of assault in 2004 for which he obtained a compensation entitlement of $12,500 and at the time that amount was awarded to him he had signed a document that acknowledged that he had a debt to the State and he had obtained compensation that he had never laid his eyes on as a result. Mr Chisari was advised by letter of 28 September 2017 that the Department had not been able to identify any orders for compensation in his favour for the amount of $12,500 and he was asked to provide evidence to support his claim that he had made full payment of the compensation monies. Mr Chisari sent an email ton 28 September 2017 which advised the name of the lawyers who had acted for him in respect of the assault and he confirmed that he had not received payment from that assault. He also advised that he spent a year in the prison system and he had called in all fines and did extra time, and this issue was nowhere in sight. He noted that he had adverse dealings with the Department of Child Safety in regard to his partner and children. That he had not been questioned by the police or seen a judge in regard to the upgrade of his conviction. -- 2 of 4 -- 3 The Recovery Notice of 21 November 2017 noted the age of the court order and that it had taken the Department a long time to commence recovery action against him. It was stated that the State is able to recover the amount under ss 185 to 194 of the VOCA Act. These sections provide an alternative to enforcing the order through the courts. The Limitation of Actions Act 1974 (Qld) provides periods of limitation for different classes of actions in a court of law. There is no limitation period provided in s 185 explicitly limiting the application of subdivision 2 to orders of a particular age. On that basis it was concluded that the State is able to recover the amount under VOCA Act despite the age of the order. The scheme manager having considered Mr Chisari’s grounds found that the State was entitled to recover the amount of $11,250. Mr Chisari was advised that he may dispute the decision about the amount owed by applying to QCAT for a review of the decision within 28 days. He was also advised that if he did not seek a review of the decision he would be sent a liability notice confirming the payable amount and that if he was not able to pay the amount within the time specified in the liability notice, an order would be created for the outstanding balance and referred to SPER. Mr Chisari responded to the recovery notice with an email on 22 November 2017 amplifying the matters he had already outlined in his emails and noting that he had not been able to find any records of the compensation payable in respect of his 2004 assault through DPP, or legal aid or the District Court and he said he felt he should now be able to apply for compensation in respect of the 2004 assault. He was advised in reply that could request a review by the Tribunal. Mr Chisari sent an email in reply on 23 November 2017 which seemed to indicate that he be could be placed in prison or a professional job should be done to investigate what happened to the 2004 compensation. Mr Chisari then received the Liability Notice dated 16 January 2018 mentioned above. At the hearing of this application the Tribunal raised the issue about the effect the Limitation of Actions Act 1974 (Qld) may have on the recovery of an amount paid more than 12 years before the steps taken by the Department to recover the amount. I note that the original court order was made on 30 August 2004 and the payment to the victim was made on 6 May 2005 and these dates are more than 12 years before the recovery action taken by the Department. The parties were directed to file submissions in regard to the question of whether s 10(1)(d) of the Limitation of Actions Act 1974 (Qld) applies to the Department’s recovery under Chapter 6, Part 1, Division 9 of the VOCA Act of the amount. The Department submitted that the decision of Thomas J in Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery deals with the question.1 That decision concerned a recovery of an amount after a delay of ten years and the grounds raised by Mrs Mitterbauer included the limitation period and grounds in relation to the behaviour of the victim and that she had no opportunity to defend the criminal compensation proceeding. Thomas J found that the limitation periods do not apply to the recovery of the amount paid under the VOCA Act as they are not enforcement in a court and are an alternative to a court by way of registering the amount with SPER.2 He also found that the other grounds raised by Mrs Mitterbauer 1 [2013] QCATA 159. 2 Ibid [45]. -- 3 of 4 -- 4 are not matters which can be considered as the matters which can be considered are set out in s 187 of the VOCA Act (no recovery if relevant agreement in force) and s 188 of the VOCA Act (recovery limited if amount received as subrogated victim).3 I note that s 189(f)(i) of the VOCA Act, which deals with the right of a person to dispute the amount claimed in the notice of intended recovery, provides that the person may dispute the amount the part of the amount ordered to be paid under the order that the State claims the person has not paid to the victim, or to the State as subrogated to the victims’ rights and remedies under the order in accordance with s 189(c)(iii) of the VOCA Act. This in effect the ground that Mr Chisari has raised in regard to him becoming entitled to an amount of compensation for assault which he alleged had been signed over to the State in satisfaction of the amount paid under the order of the District Court made on 30 August 2004. The other grounds raised by Mr Chisari mentioned above are therefore not available for consideration as the discretion under the VOCA Act is limited to consideration of the grounds set out in that Act. Mr Chisari was not able to produce any proof of the entitlement that he had to compensation in regard to the assault and the Department which would have held such records if they existed could find no record of any such entitlement. The Tribunal stands in the shoes of the decision-maker when it is reviewing a decision such as this one and has all of the powers of the decision-maker and must apply the QCAT Act and the legislation under which the decision was made. I am satisfied that: (a) an amount of $11,250 in compensation was ordered to be paid by Mr Chisari under s 24 of the COV Act on 30 August 2004; (b) payment was made to the victim of that amount under s 32 of the COV Act; (c) the State of Queensland was entitled to use the provisions of Chapter 6, Division 9, Subdivision 3 of the VOCA Act in accordance with s 185(1) of that Act in regard to the payment under s 32 of the repealed Act; and (d) a notice of intended recovery had been given to Mr Chisari under s 189 of the VOCA Act in regard to the recovery of the amount of $11,250 and Mr Chisari had disputed that amount in accordance with s 190 of the VOCA Act. Mr Chisari’s grounds of dispute have not been substantiated and therefore the State of Queensland is entitled to recover the amount of $11,250 from Mr Chisari under s 191 of the VOCA Act. The decision of the Department is confirmed. 3 Ibid [38]. -- 4 of 4 --