Cooper v Department of Justice and Attorney-General, Offender Debt Recovery Program [2017] QCAT 28

CITATION: Cooper v Department of Justice and Attorney- General, Offender Debt Recovery Program [2017] QCAT 28 PARTIES: Cherie Cooper (Applicant) v Department of Justice and Attorney-General, Offender Debt Recovery Program (Respondent) APPLICATION NUMBER: GAR230-16 MATTER TYPE: General administrative review matters HEARING DATE: 19 January 2017 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 31 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the scheme manager on 29 August 2016 upon the applicant’s notice of dispute of 25 August 2016 is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Tribunal conducts review of administrative decision – where Tribunal must reach correct and preferable decision GENERAL ADMINISTRATIVE REVIEW - VICTIMS OF CRIME ASSISTANCE – CRIMINAL COMPENSATION – where ex- gratia payment by State – where determination by scheme manager of “payable amount” – where criteria for determination of payable amount – whether decision-maker can go behind original judgment – whether State enforcing a right of subrogation under repealed Act – whether Victims of Crime Assistance Act 2009 provides discretion to waive recovery of payments to victims by the -- 1 of 13 -- 2 State – whether offender’s lack of knowledge of original proceedings, victim’s contribution to occurrence of crime, offender’s capacity to pay and long delay can be taken into account to enable waiver of recovery of payment Criminal Offence Victims Act 1995 (Qld), s 32, s 38(1), s 40 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21, s 24 Victims of Crime Assistance Act 2009 (Qld), s 184, s 185, s187, s 188, s 189, s 190, s 191, s 193 Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159 APPEARANCES: APPLICANT: Ms Cherie Cooper RESPONDENT: Department of Justice and Attorney-General, Offender Debt Recovery Program REPRESENTATIVES: APPLICANT: Self- represented RESPONDENT: Ms K McCarthy, Senior Project Officer, Department of Justice and Attorney-General, Offender Debt Recovery Program REASONS FOR DECISION Background [1] Ms Cherie Cooper was informed that it was the State’s intention to recover from her $7,500 pursuant to the provisions of the Victims of Crime Assistance Act 2009 (VOCCA). The most recent recovery notice was sent to her on 25 July 20161. Ms Cooper disputed the notice seeking waiver of the recovery of the entire amount2. 1 Issued under VOCCA, s 189. 2 VOCCA, s 190. -- 2 of 13 -- 3 [2] On 29 August 2016, the Scheme Manager determined that the State was entitled to recover the full amount of $7,500 from Ms Cooper. [3] Ms Cooper applied to the Tribunal for a review of that decision. The relevant legislation and the role of the tribunal [4] The relevant legislative provisions are contained in the VOCCA and the repealed Criminal Offence Victims Act 1995 (COVA). [5] The provisions relating to the Tribunal’s review jurisdiction are set out in Division 3 of Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). The purpose of the review of a reviewable decision is to produce the correct and preferable decision and the review must be conducted by way of a fresh hearing on the merits.3 [6] In a proceeding for a review of a reviewable decision, the tribunal may: a) confirm or amend the decision; or b) set aside the decision and substitute its own decision; or c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision with directions the tribunal considers appropriate.4 Evidence considered by the Tribunal [7] In determining the review, I have considered the documents provided to the Tribunal by the respondent that are relevant to the review of the decision.5 [8] Ms Cooper did not file any material in the review but I have considered the contents of her application for review.6 I have also considered her oral evidence. [9] I have also considered the oral submission of both parties. Findings of fact [10] Certain facts are not in dispute. I make findings of fact accordingly. [11] On 4 December 2002, Ms Cooper was convicted of the offence of threatening violence on a date unknown between 31 March 2000 and 1 3 QCAT Act, s 20: Exhibit 1. 4 QCAT Act, s 24. 5 QCAT, s 21(2). 6 Exhibit 2. -- 3 of 13 -- 4 June 2000 at Brisbane. Those details as well as the name of the victim are set out in the “Certificate of Indictment Details” dated 6 April 2004.7 [12] Following an initiating application dated 31 August 2004, Judge McGill in the District Court of Queensland ordered, on 18 December 2008, that Ms Cooper pay to the victim the sum of $7,500 by way of compensation pursuant to the COVA for injuries suffered by the victim by reason of the offence for which Ms Cooper was convicted on 4 December 2002. It was further ordered that such compensation be paid to the Public Trustee of Queensland as administrator of financial matters for the victim.8 [13] On 26 February 2009, the victim applied to the State to pay her the amount of compensation Ms Cooper was ordered to pay. Such application was subsequently approved.9 [14] On 14 May 2009, the Department of Justice and Attorney-General, Offender Debt Recovery Program, paid to the victim, care of the Public Trustee of Queensland, the amount of $7,500.10 In so doing the State acquired by way of subrogation all the victims “rights and remedies” under the District Court order.11 [15] On 11 July 2013, the Delegate of the Scheme Manager, Department of Justice and Attorney-General sent Ms Cooper a recovery notice (the first recovery notice). The notice informed Ms Cooper that the State intended to recover from her $7,500 and advised her that she may dispute the amount the State was seeking to recover.12 [16] On 10 October 2013, the Delegate of the Scheme Manager issued to Ms Cooper a COVA Liability Notice which stating that Ms Cooper was liable to pay $7,500 to the State by 14 November 201313 and that if she did not pay the amount by the stated date, the scheme manager would refer the matter to the State Penalties Enforcement Registry (SPER) for collection.14 [17] The Scheme Manager subsequently gave the particulars of the unpaid amount to the SPER registrar for registration. [18] On 25 July 2016, the Senior Project Officer, Offender Debt Recovery Program issued a letter to Ms Cooper confirming that Ms Cooper had advised that she had not received the first recovery notice and that, as a 7 Exhibit 1: document 3. 8 Exhibit 1, document 4. 9 Exhibit 1, document 2. 10 Exhibit 1, document 1, copy of the cheque issued to the victim care of the Public Trustee of Queensland. 11 COVA s 38(1). 12 Exhibit 1, document 5. 13 VOCAA, s 191. 14 Exhibit 1, document 6. -- 4 of 13 -- 5 result, the Department had withdrawn the order from SPER to begin the recovery process again.15 [19] On 25 July 2016, a second recovery notice was issued to Ms Cooper.16 [20] On 25 August 2016, the Scheme Manager received Ms Cooper’s response to the second recovery notice and documents in support of that response.17 [21] The reviewable decision notice was issued to Ms Cooper on 29 August 2016.18 [22] Ms Cooper does not claim, the respondent does not assert and there is no evidence before me that the State has received any amount as subrogated victim. The second recovery notice clearly states that the entire amount of $7,500 is intended to be recovered by the State. I find that the State has not received any amount as subrogated victim. Ms Cooper’s contentions [23] Ms Cooper says that I should set aside the reviewable decision and substitute a new decision that no amount is recoverable from her by the State. She says I should do so for the following reasons: a) During the incident which led to her conviction, she was provoked by the victim; b) Her legal representation at the relevant time leading up to her conviction and subsequently was deficient; c) She was unaware that the order to pay compensation to the victim had been made at the time; d) She is in straitened financial circumstances; e) She has ongoing health concerns; f) It is now too late for the State to recover any amount from her; g) Approximately $7,000 of the money paid by the respondent to a trust account for the victim was withdrawn from the account and used to pay down the mortgage over the victim’s father’s home. [24] Ms Cooper says that the State should seek recovery of the money not from her but from the victim’s father as he has had the benefit of the money intended for the victim. 15 Exhibit 1, document 8. 16 Exhibit 1, document 7. 17 Exhibit 1, document 9. 18 Exhibit 1, document 10. -- 5 of 13 -- 6 Ms Cooper’s evidence and further findings of fact [25] Ms Cooper gave evidence that she has not paid any amount to the victim in relation to the court order made 18 December 2008. I find accordingly. I asked Ms Cooper whether there was any agreement between her and the victim in relation to the payment of any amount to the victim. Her evidence was clear that there was no such agreement. I find accordingly. There is no evidence that an agreement is in force between Ms Cooper and the State for the payment of any amount to the State. Indeed Ms Cooper made it clear in her evidence that she did not wish to pay any amount to either the victim or the State. I find there is no agreement in force between the State and Ms Cooper for the payment of any amount to the State. [26] For reasons that follow, I am of the view that it is not necessary for me to make formal findings of fact in relation to other matters raised by Ms Cooper. That is because it is my view that the legislative provisions I am bound to apply provide limited scope for reducing the amount of Ms Cooper’s liability to the State. However, I consider it important that I set out how I regarded Ms Cooper’s evidence. [27] Ms Cooper gave her evidence candidly. She described the events that occurred in 2000 involving herself and the victim. She did not deny that the events leading to her charge and conviction occurred but rather said that the victim’s provocation of her was not taken into account by the court. Further, she argues that the provocation was such that she should not have to pay any money to the victim or the State. I do not have the transcript of any court hearing. I do not know whether provocation was raised before the court. [28] Based on her evidence, I accept that Ms Cooper was not satisfied with her legal representation at the time of the conviction and subsequently. [29] I accept Ms Cooper’s oral evidence that she is having ongoing reviews at the hospital for a serious illness. Her oral evidence was to some extent, supported by documents contained in the documents before me.19 [30] I also accept Ms Cooper’s evidence that she has straitened financial circumstances. She receives income support of approximately $760 per fortnight and must pay rent of $300 per fortnight. She owns a motor vehicle which she said requires a lot of work and has the usual living expenses. I accept she would not have a significant surplus of income over expenses at the end of each fortnight. [31] Ms Cooper did not provide any supporting evidence of her claim that the victim’s father has had the benefit of the victim’s funds. However, as I have said, for reasons that follow, I do not consider that there is a need for me to make any firm finding of fact in relation to that claim. 19 Exhibit 1 document 9 Clinic appointment details. -- 6 of 13 -- 7 [32] It is recorded in the document headed “Criminal Injury Compensation Section 32 Criminal Offence Victims Act 1995” that an order for substituted service was granted on 28 July 2008. It is further recorded that ‘subsequently the offender could not be located for the purposes of sending her a letter of demand. Asset searches indicated she did not have sufficient assets to satisfy the court order against her’.20 [33] Based on that document, and given I do not consider that anything turns on this matter, I am prepared to accept for the purposes of this review that Ms Cooper was not aware of the order of Judge McGill that she pay the victim $7,500 in compensation until she received correspondence from the Department about the State’s intention to recover the amount from her. [34] I have already found that Ms Cooper did not receive the first recovery notice. I accept that the respondent relies in this review on the second recovery notice dated 25 July 2016, a notice that was issued seven and a half years after the order for compensation was made by the District Court of Queensland. Application of the law and reasons [35] In this case, the District Court order dated 18 December 2008 was a compensation order. The order was made by the court while COVA was in force. Based on the documents before me, the application to the District Court was made by the victim within the time required under COVA, three years after the end of the convicted person’s trial21. The Court Order indicates that the initiating application was made on 31 August 2004 following Ms Cooper’s conviction on 4 December 2002. [36] The victim in this case applied to the State, under s 32 of COVA, for the State to pay the amount of the compensation ordered by the court22. The application was granted, the State paying the victim $7,500. [37] Section 38 of COVA provided that the State is subrogated, to the extent of any payment made by it, to all the rights and remedies the injured person has for the injury against anyone responsible for the injury. I have already found that the State has not received any amount as a subrogated victim. [38] Division 9 of Chapter 6 of VOCCA sets out the provisions about amounts paid by the State under the repealed legislation (COVA). [39] Section 184(1) of VOCCA provides that s 38(1) of COVA continues to apply which means that the Department can, provided it complies with the relevant provisions governing the recovery process, recover from the person ordered to pay compensation, any amount paid by the Department 20 Exhibit 1: document 2. 21 COVA, s 40. 22 Exhibit 1 Document 2. -- 7 of 13 -- 8 following a court order made pursuant to COVA despite the fact that that Act was repealed before recovery. 23 [40] Sections 185 to 194 of the VOCCA provide for the recovery of a payment made by the State to a victim in relation to an order for compensation from the person who was ordered to pay compensation as an alternative to Department enforcing the order24. Section 185(1)(a) of VOCCA makes it clear that an amount paid by the State under s 32 of COVA can be recovered in this way. [41] Section 189 of VOCAA specifies the necessary contents of the notice of intended recovery that must be given to the person ordered to pay the compensation including:  The date on which the order was made  The amount the person was ordered to pay under the order; and  If the State is intending to recover an amount in relation to an order mentioned in s 185(1)(a) or (b) the person in whose favour the order was made (the victim);  The amount the State paid to the victim in relation to the order  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 victim’s rights and remedies under the order; and  The amount if any the State has received under a relevant subrogation provision in relation to the injury for which the order was made.  The amount the State will seek to recover from the person;  That by notice within 28 days the person may dispute the amount the State will seek to recover from the person  Advise the person of their rights to the Tribunal if they do not agree with the Scheme Manager’s decision and  That when the amount the State will seek to recover from the person is decided the person will be liable to pay the amount to the State under s 191. [42] I have examined the second recovery notice and I am satisfied that it complies with s 189 of VOCCA. The notice makes it clear that Ms Cooper was ordered to pay the victim $7,500 on 18 December 2008, that the 23 VOCCA, s 185 and s 191. 24 VOCAA, s 185(2). -- 8 of 13 -- 9 State made a payment to the victim based on the order, that the Department’s records indicate that $7,500 remains unpaid and that it is the State’s intention to recover the entire amount from her. It makes reference to the subrogation rights of the State, gives Ms Cooper notice that she can dispute the amount sought to be recovered from her and advises her review rights as well as informing her of the consequences if she does not lodge a dispute notice. [43] Section 187 of VOCCA provides that the State cannot recover an amount from a person if the State has entered into an agreement with the person for the payment of the amount to the State. Further, the State cannot recover from a person an amount paid by the State in relation to an order if the person in whose favour the order was made (the victim) and the person (here, Ms Cooper) have entered into an agreement for the payment of the amount to the victim by the offender and the agreement is still in force. I have already found that no such agreements have been entered into. Section 187 has no application. [44] Section 188 of VOCCA provides for limited recovery if an amount has been received by the State as subrogated victim. I have already found that the State has not received any amount as a subrogated victim. Section 188 does not apply here. [45] Section 190 of VOCAA deals with the right of the recipient to dispute the amount that the State may recover: 190 Disputing amount State may recover (1) This section applies if a person who is given a notice under section 189 disputes the amount the State will seek to recover from the person under this subdivision. (2) The person may, within 28 days after being given the notice, give notice of the dispute (the dispute notice) to the scheme manager. (3) The dispute notice must state— (a) the amount the person claims that the State is entitled to recover from the person under this subdivision; and (b) the facts relied on by the person to support the person’s claim. (4) After considering the dispute notice, the scheme manager must decide the amount the State will seek to recover from the person which may be— (a) the amount stated in the notice given under section 189; or (b) a lower amount. (5) The scheme manager must give the person notice of the scheme manager’s decision. -- 9 of 13 -- 10 (6) If the amount decided by the scheme manager under subsection (4) is higher than the amount the person claims that the State is entitled to recover from the person under this subdivision, the notice given under subsection (5) must be a QCAT information notice. (7) The person may apply, as provided under the QCAT Act, to QCAT for a review of the scheme manager’s decision under subsection (4). [46] Once an amount is determined in accordance with s 191 by the Scheme Manger (and now the Tribunal) (“the payable amount”), the person is liable to pay the State the payable amount. Section 193 of VOCAA provides for registration of an unpaid amount under the State Penalties Enforcement Act 1999. This enable collection of the payable amount by the registrar of State Penalties Enforcement Registry (SPER)25. Can the matters raised by Ms Cooper reduce the payable amount? [47] Ms Cooper has sought to dispute the amount to be recovered under s 190 of VOCCA. She has raised a number of matters which she says should result in a decision that the amount the State should seek to recover from her is nil. [48] In Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program26 the Appeal Tribunal27 considered the relevant provisions of the VOCCA in the context of Ms Mitterbauer’s claim that the Department had failed to take into account the behaviour of the victim on the evening of the incident or the fact that she had no opportunity to defend the criminal compensation proceedings following an order for substituted service. The Appeal Tribunal said28: The Act is silent about the grounds upon which a lower amount would be recoverable. The scheme manager has the duty to make a “decision” on the disputed notice, but the Act makes no mention of discretion or criteria. The only defences or limitations upon recovery that are mentioned are in s 187 (no recovery if relevant agreement in force) and s 188 (recovery limited if amount received as subrogated victim). These respectively involve a specific bar, and require specific credit to be taken into account. One would expect that if it had been intended to provide a broad discretion for the scheme manager to reduce the amount determined by the Court to be payable, which has been paid by the Department and remains unrecovered, it would specify some criteria. The only basis mentioned in the Act for limiting recovery (ss 187 and 188) are very specific and limited in scope. The Department’s submission is that only a “narrow basis” exists for disputing the amount the State seeks to recover. 25 VOCCA, s 193. 26 Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159. 27 Constituted by the Hon J B Thomas, Judicial Member. 28 [2013] QCATA 159 at [37] – [39]. -- 10 of 13 -- 11 [49] I have already found that s 187 and s 188 do not apply in the circumstances of this case. I have carefully considered the relevant legislative provisions and respectfully agree with the Appeal Tribunal’s interpretation of those provisions and how they are intended to operate. I do not consider that there is any legislative provision that gives me a broad discretion to reduce the payable amount or to waive recovery of the amount in whole or in part. [50] Turning then to a consideration of the particular matters relied on by Ms Cooper. Again, I am guided by the Appeal Tribunal’s reasoning in Mitterbauer. In considering Ms Mitterbauer’s submission that she did not know about the proceedings, that the victim contributed to the situation leading to the conviction and that she had difficulties paying the amount claimed, the Appeal Tribunal said: Orders for substituted service not infrequently lead to dissatisfaction and later attempts to set aside an order. Such attempts require judicial procedures, either in the court that made the order, or judicial review … in a superior court. I do not think that this is an area where a scheme manager is intended to intrude. Similarly, while it is understandable that Ms Mitterbauer may have made submissions about the victim’s contribution to the events if she had appeared before the District Court judge, and that she lost the opportunity to argue for a lower assessment of compensation, this is not a matter for the exercise of discretion by a scheme manager. In my opinion, any subsisting Court Order is to be taken at face value in this particular recovery process. I do not think that the Department (through the Scheme Manager) had the duty or power to go behind the District Court judgment. Ms Mitterbauer’s remedy in this area, if she has one, is the setting aside of the District Court Judgement, which at this stage seems a remote prospect. [51] I do not consider that the administrative recovery process provided for in the VOCCA permits me to go behind Ms Cooper’s conviction and make my own findings about her guilt or otherwise and/or take those matters into account in determining the amount if any the State can recover from her. For similar reasons, I do not consider that the effectiveness of Ms Cooper’s legal representation is a matter that can affect the outcome in this review. If Ms Cooper was dissatisfied with her legal representation and considers that it led to adverse consequences for her then it would be appropriate for her make a complaint to the relevant authority or take legal action against her legal representative/s. I do not consider that it makes any difference whether the legal representative was a government employee or not. [52] Similarly, I do not consider that Ms Cooper’s lack of knowledge of the proceedings that resulted in the compensation order made by Judge McGill is a matter that I can take into account. I agree with the Appeal Tribunal that I must accept at face value the order make by the court on 18 December 2008. If Ms Cooper was dissatisfied with that order, the appropriate course was for her to seek to have the order set aside. Such a process is a court process and not a process with which this Tribunal can assist. -- 11 of 13 -- 12 [53] In relation to Ms Cooper’s financial circumstances, I accept the submission of the respondent, which was favoured by the Appeal Tribunal in Mitterbauer that her ability to pay can be appropriately addressed in the SPER recovery process if Ms Cooper does not pay the payable amount29. I conclude that Ms Cooper’s financial position is not a matter that I can take into account in determining the amount to be recovered by the State or that would permit a finding of a reduced payable amount. [54] While I accept that the period from the date of the District Court Order until the date of the first and second recovery notices is lengthy, I can find no legislative provision that would enable me to take that into account in determining the amount to be recovered by the State. Nor can I find a legislative provision that would support a finding that the State’s ability to recover the amount from Ms Cooper was in some way barred. Again, I agree with the reasoning of the Appeal Tribunal in the Mitterbauer decision where the Appeal Tribunal, considering a similar argument, said30: Ten years is certainly a significant period, but there is no interest payable on the award, and in at least one sense passage of time before payment is to the advantage of the debtor. In any event, the Act does not give the scheme manager any discretion to reduce (or increase) the amount payable on the basis of delay or lapse of time. The Limitation of Actions Act 1974 was referred to. It does not assist Ms Mitterbauer, because the present process is not an action or a legal proceeding. It would apply if the State were enforcing the order through the District Court under COVA, but in that event the relevant limitation period would be 12 years. In any event the present procedure is not such an action. [55] In relation to Ms Cooper’s argument that the State should recover the money from the victim’s father, I note that Ms Cooper does not say that she paid any amount to either the victim or any other person on behalf of the victim. The State paid the victim care of the Public Trustee of Queensland consistently with the District Court order. I do not consider that how the victim used the money is a matter I can take into account to determine the amount to be recovered by the State. Ms Cooper does not dispute that the amount of $7,500 was paid by the State to the victim. It is the payment by the State that leads to the recovery provisions. What happens to the money after it is paid is irrelevant. Further, the victim’s father was never the subject of a court order to pay compensation under COVA to the victim. Therefore, the State has no right to recover any amount from the victim’s father. [56] The State paid the victim $7,500. The State has complied with s 189. There are no credits or bars under s 187, s 188, s 190 or s 191 that affect the State’s right of recovery or that would permit a determination that the 29 VOCAA, Chapter 6, part 2. 30 [2013] QCATA 159 at [44] and [45]. -- 12 of 13 -- 13 amount payable by Ms Cooper is any amount other than $7,500. There is no provision in the legislation, which provides a discretion to waive recovery of a payable amount. I can find no legislative provision that prevents the Department pursuing its rights under Subdivision 2 of Division 9 of Chapter 6 of the VOCAA in respect of the entire amount of $7,500. [57] Accordingly, I determine that the reviewable decision is confirmed. -- 13 of 13 --