Bennett and Anor v Department of Justice and Attorney General [2012] QCAT 602

CITATION: Bennett and Anor v Department of Justice and Attorney General [2012] QCAT 602 PARTIES: Lindsay Bennett George Bennett v Department of Justice and Attorney General, Offender Debt Recovery Program APPLICATION NUMBER: GAR116-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R M Clifford, Member DELIVERED ON: 26 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Department of Justice and Attorney (Offender Debt Recovery Program) on 10 February 2012 is confirmed. 2. Each party bears their own costs. CATCHWORDS: ADMINISTRATIVE REVIEW – victims of crime – offender debt recovery program – transitional arrangements – whether any time limits apply to recovery process Victims of Crime Assistance Act 2009 Criminal Offence Victims Act 1995 Limitations of Actions Act 1974 Queensland Civil and Administrative Act 2009 APPEARANCES and REPRESENTATION (if any): The matter was dealt with on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 8 -- 2 REASONS FOR DECISION Background [1] On 26 June 2012 the Tribunal directed that this matter is to proceed on the basis that the matters listed below [2]-[13] are agreed between the parties. [2] On 26 June 1997 an incident occurred involving Lindsay Bennett and George Bennett which was the subject of subsequent legal proceedings. [3] On 4 June 1998 Lindsay Bennett and George Bennett were convicted of criminal offences which resulted in injury to Barry Facer. [4] On 24 November 1998 the Court of Appeal, the Supreme Court of Queensland, dismissed an appeal against the convictions. [5] On 5 March 2001 Lindsay Bennett and George Bennett were ordered to pay compensation of $18,750 to Mr Facer in the District Court. [6] On 24 July 2001 leave to appeal the compensation order was refused by the Supreme Court of Queensland. [7] On 14 March 2003 leave to appeal the compensation order was refused by the High Court of Australia. [8] On 20 February 2002 the State of Queensland paid Mr Facer the sum of $18,750. [9] By Recovery Notice dated 30 November 2011, the respondent advised Lindsay Bennett that it intended to recover the amount of $9,375 from him. [10] By Recovery Notice dated 29 November 2011, the respondent advised George Bennett that it intended to recover the amount of $9,375 from him. [11] By letter from their solicitor dated 11 January 2012 Lindsay Bennett and George Bennett disputed the Recovery Notice and sought an internal review of the decision to recover the funds from them. [12] On 10 February 2012 the respondent advised that an internal review had been conducted on the dispute of the Recovery Notice and a determination had been made that the State was entitled to recover $18,750 from the applicants. [13] On 30 March 2012 QCAT received an application containing: (a) An application for extension of time to lodge this application. An extension of time was granted by QCAT to allow this matter to proceed. (b) An application to review the decision and (c) An application for leave to be legally represented. Leave has been granted for Lindsay Bennett and George Bennett to be legally represented in this proceeding. Agreed issues to be determined [14] Furthermore, the Tribunal directed that this matter proceed on the basis that the issues, as agreed to by the parties and listed below, [15]-[21] are to be determined by the Tribunal. -- 2 of 8 -- 3 [15] Whether the Limitations of Actions Act 1974 (LAA) applies to claims made by the State under the Criminal Offences Victims Act 1995 (COVA) or the Victims of Crimes Assistance Act 2009 (VOCAA) and in particular the effect of sections 6, 10 or 11 of the LAA on these proceedings. [16] The effect of section 185(2) of VOCAA on these proceedings. [17] Whether there is any other bar to the recovery of the funds sought in these proceedings. [18] Whether it is relevant to the Tribunal’s consideration that if the applicants had received proper legal advice they may not have been ordered to pay criminal compensation. [19] Whether the protested innocence of the applicants is relevant to the Tribunal’s consideration. [20] Outside of section 188 and 192 of VOCAA, whether the Tribunal has power to reduce the amount claimed by the respondent where the notice requirements contained in the legislation have been complied with, and if so, the relevant matters that should be taken into account in this matter (eg passage of time, financial hardship). [21] The correct and preferable decision in this case. [22] The Applicants filed extensive submissions in support of their application, the Respondent filed submissions in response along with the relevant documents pertaining to the decisions and the applicants also provided submissions in reply. Tribunal jurisdiction [23] This matter is part of the Tribunal’s review jurisdiction1 that is conferred on the Tribunal by an enabling Act.2 The Tribunal must decide the review in accordance with the QCAT Act and the VOCAA. The purpose of the review is to produce the correct and preferable decision and must hear and decide the matter by way of a fresh hearing on the merits.3 [24] On reviewing a decision the Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for decision with any directions the Tribunal considers appropriate.4 Decision [25] VOCAA establishes Victim Assist Queensland. This is a scheme that on 30 November 2009 replaced the previous criminal injury compensation schemes under the Criminal Offence Victims Act 1995 (COVA) and the Criminal Code Act 1899 (the Code). [26] Victims, who could previously apply for criminal compensation through the Courts pursuant to COVA or the Code, must now apply for assistance under VOCAA. 1 Queensland Civil and Administrative Tribunal Act 2009, Chapter 2 Division 3. 2 Victims of Crime Assistance Act 2009. 3 QCAT Act, section 20. 4 QCAT Act, section 24. -- 3 of 8 -- 4 [27] Under the old system if the offender did not make payment the victim could apply to the State for assistance. If the State made payment to the victim it acquired the rights and remedies of the victim and thus the ability to seek recovery of the compensation money order through the Courts. [28] Unsurprisingly when such a change of schemes is introduced applications or cases under the old scheme may be at various points along the way to final outcome. VOCAA repeal and transitional provisions covering the various circumstances are outlined in Chapter 6 Part 1 and 2. [29] In the current case the Applicants were convicted of a criminal offence on 4 June 1998 and a compensation order was made against them on 5 March 2001 to which they made no payment to the victim towards fulfilment of that order. [30] On 20 February 2002 the Respondent, in its former guise and pursuant to COVA, granted assistance to the victim equivalent to the sum of the compensation order through an ex-gratia payment. In doing so the Respondent acquired the rights of the victim through subrogation. [31] Nearly eight years later on 30 November 2009 VOCAA came into effect. [32] By that time the Respondent had not exercised any right that had accrued to it earlier to enforce the compensation order. However, two years later it issued separate Recovery Notices to each of the Applicants on 29 and 30 November 2011. [33] The Tribunal is satisfied that the relevant VOCAA provisions applicable in this case are found at Part 2, Division 9, Subdivisions 1 and 2, sections 184-194. [34] The Applicants provided extensive written submissions relating to the ‘Agreed Issues’ to be determined by the Tribunal and the Respondent also provided written submissions and the documents on which it based its decision. The Tribunal has considered all of this material. Whether the Limitations of Actions Act 1974 (LAA) applies to claims made by the State under the Criminal Offences Victims Act 1995 (COVA) or the Victims of Crimes Assistance Act 2009 (VOCAA) and in particular the effect of sections 6, 10 or 11 of the LAA on these proceedings [35] As previously noted, under the old system, if the State wished to seek recovery of money made pursuant to a compensation order in which it had acquired rights it needed to initiate proceedings through the Courts. Whether the LAA applies or not depends on any relevant limitations in COVA itself or the application of the LAA to the particular circumstances of the matter. As previously decided5, the Tribunal is satisfied that this issue is not one the Tribunal needs to determine as the path to recovery of money in this case proceeded along the new alternative ‘administrative’ recovery process and not the old ‘court proceeding’ path. If the State proceeded down the court proceeding path the issue of the applicability of 5 Mitterbauer v Department of Justice and Attorney General (Offender Debt Recovery Program) 2012 [QCAT] unpublished to date. -- 4 of 8 -- 5 the LAA, including sections 6, 10, and 11, would be a matter for the relevant Court to determine and not this Tribunal. [36] The Tribunal recovery process under VOCAA is a purely administrative decision. It is the type of process and decision public servants make every day. In this case the relevant administrative decision-maker is the scheme manager. The Tribunal is satisfied that the LAA, which applies to proceedings in a court, does not apply to the VOCAA recovery process and decision of the scheme manager. VOCAA does not provide for any limitation period on the recovery process. The effect of section 185(2) of VOCAA on these proceedings [37] Section 185(2) of VOCAA provides a recovery process as an alternate to enforcing the order. This alternate process is an administrative process that enables the State to recover an amount of money that arose from a compensation order and over which the State acquired rights. The Applicants submit this is a new right of the State and that as it did not exist at the time it acquired its rights through subrogation it is not entitled to proceed along this recovery path, and thus has to seek to recovery of any money through proceedings in a court. The Respondent submits it is plain from the wording of VOCAA the Legislature created an additional option for recovery of ex-gratia payments as an alternative to enforcing compensation orders through the courts. The Respondent claims this alternate process is not a new liability against the offender, as described in the Explanatory Note to VOCAA at p 97, but rather another mechanism to recover from the offender without altering existing liabilities. [38] The Applicants argument is not without some merit. Whilst there is certainly a recovery process available to the State that wasn’t available to it under COVA, the Tribunal is not persuaded that the underlying and fundamental rights of the State and the liability of the offender have changed. Rather the Legislature has provided a new alternate vehicle to obtaining or upholding those rights and/or liabilities and the State exercised its option as it was entitled. The effect of section 185(2) on these proceedings is therefore apparent. As the Respondents chose not to seek enforceability of the compensation order through the court it overcame potential associated costs, limitation or restriction that may have applied to it. However, having chosen the administrative recovery process instead, the decision of the scheme manager is now, as provided for in VOCAA on application by Lindsay and George Bennett, the subject to review by this Tribunal and any requirements or associated costs that may bring. Whether there is any other bar to the recovery of the funds sought in these proceedings [39] If the Respondent had chosen to enforce the compensation order through proceedings in a court, rather than initiate the VOCAA administrative recovery process, the LAA may apply depending on whether any relevant time limits had or had not expired and/or whether the State sought to rely on any applicable exemption. Again the Tribunal is satisfied that that decision is a matter properly dealt with by the relevant court when that -- 5 of 8 -- 6 issue is before it and therefore not a matter that the Tribunal needs to specifically answer. [40] If the State does not recover any of the amount owing to it by the Applicants towards the end of the administrative recovery process VOCAA provides for the scheme manager to give the particulars of the unpaid amount to the SPER registrar for registration, and the SPER registrar must register the particulars under the SPE Act.6 Whether there would be any bar to recovery of the funds through any consequential court proceedings following that process would be a matter for argument by the parties at the time and a decision for the relevant court. Whether it is relevant to the Tribunal’s consideration that if the applicants had received proper legal advice they may not have been ordered to pay criminal compensation [41] Whilst the Tribunal acknowledges the Applicants’ concern about the level of quality of legal advice, the Tribunal is satisfied that the legal advice the Applicants received prior to the compensation order is not relevant to the Respondent’s decision nor to the Tribunal’s review other than for the purpose of background information. The relevant court proceedings had been finalised and the Applicants exercised and exhausted relevant appeal rights. There were court processes and judicial decisions. The scheme manager’s role arose from the face of the compensation order and the rights the State acquired after making an ex-gratia payment to the victim. The scheme manager’s role is as an administrative decision- maker and the decision at hand was to confirm the Applicants owed money to the State and follow the statutory process to recover it. That framework does not provide for the scheme manager to look at the circumstances behind the compensation order. Whether the protested innocence of the applicants is relevant to the Tribunal’s consideration [42] The Tribunal acknowledges the Applicants strongly protest their innocence. It is clear through all their appeals and this review the Applicants feel highly aggrieved by the original incident and subsequent proceedings, however as strongly as they feel about this issue, the Tribunal is satisfied that is not a matter relevant to the scheme manager’s decision to seek recovery of money owed to the State or the Tribunal’s review of that decision. Outside of section 188 and 192 of VOCAA, whether the Tribunal has power to reduce the amount claimed by the respondent where the notice requirements contained in the legislation have been complied with, and if so, the relevant matters that should be taken into account in this matter (e.g. passage of time, financial hardship) [43] The Tribunal is satisfied that the circumstances of this case are clearly captured by the transitional provisions of VOCAA and therefore it is only from those provisions any power to reduce the amount claimed can be sought. 6 VOCAA, s 193(1) and (2). State Penalties Enforcement Act 1999. -- 6 of 8 -- 7 [44] Section 188 essentially outlines the circumstances the scheme manager must consider to ascertain the amount of money the offender owes, or is to be refunded, subject to whether the offender has made any payments in part, in full or over paid. [45] The Tribunal is satisfied that the language used in that section is clear in its intention, that is, that the discretion available to the scheme manger is limited to ascertaining the amount of money the State is entitled to recover. [46] And whilst the Tribunal is satisfied that may include confirming necessary facts to assist in that deliberation, such as: confirming the identity of the applicants/debtors; whether any appeal is pending or filed in relation to the compensation order; whether and when any amount of money has been paid by the applicants/debtors to the victim, it does not extend a broad discretion to the scheme manager to reduce the amount of money the State is owed, or to alter the effect (my emphasis) of an order of the District Court. The Applicants have already exercised an opportunity to challenge the court order through seeking special leave to appeal to the High Court of Australia. That application was ultimately unsuccessful as outlined by the Court’s decision in March 2003. [47] Although the Tribunal acknowledges a significant period of time has elapsed between the date of the compensation order and/or date of the ex-gratia payment and the Respondent initiating its new recovery process, and as unfair or unreasonable that may appear on the face of it particularly to the Applicants, the liability of the debt owed to the State by the Applicants has not to date been extinguished. Even under the old regime it appears it would be still open to the State to pursue the debt as the LAA provides an action shall not be brought upon a judgement after the expiration of 12 years from the date the judgement becomes enforceable.7 Given this the Tribunal is not persuaded, as submitted by the Applicants, that the Respondents action in pursuing the debt is unconscionable. [48] The Tribunal is also satisfied that, as submitted by the Respondent, any issue concerning ability to pay can be discussed with SPER at the relevant time. [49] Section 192 concerns circumstances whereby the offender has also been paid a grant of assistance and the assessment process relating to any necessary reduction or offset. The Tribunal is satisfied that section 192 is not applicable in the current case. The correct and preferable decision in this case [50] Considering all of the above circumstances the Tribunal is satisfied that the Respondent’s recovery notice decision of 10 February 2012, in response to the Recovery Notices dated 29 and 30 November 2011 concerning George and Lindsay Bennet respectively, is the correct and preferable decision and the Tribunal orders accordingly. Costs 7 Limitation of Actions Act 1974, section 10(4). -- 7 of 8 -- 8 [51] In summary the Applicants state that although the legislative starting point under the QCAT Act is that each party bears their own costs8 they submit that it is in the interests of justice that starting point be displaced9 given legal representation was granted, the strength of the Applicants’ case and the complexity of the legal argument in the matter. Furthermore the Applicants submit they made an offer of compromise that was rejected by the Respondent.10 [52] The Respondents submit the Applicants have failed to point to any matters warranting a departure from the presumption that each party bears their own costs. [53] Whilst it open to the Tribunal to displace the very clear intention of the legislation, that each party bear their own cost, the Tribunal is not persuaded it is in the interests of justice to do so. The Applicants have not been successful in this review and apart from the length and density of the Applicants’ own submissions the legal argument is not overly complex. The Tribunal is also satisfied as this is a administrative review matter the Applicants have been given opportunity to respond to the Recovery Notices and their response has been considered within the statutory framework and authority of the scheme manager and reflected in the recover notice decision subject to this review. [54] Furthermore the Tribunal is satisfied given the Applicants have not been successful in the review the offer of compromise is not applicable as the outcome for the Respondent is clearly more favourable to them than the offer.11 Furthermore the Tribunal notes given the statutory framework of VOCAA the ability of the Respondent to enter into meaningful negotiation of compromise appears limited. [55] The Tribunal accordingly orders that each party bears their own cost. 8 QCAT Act, section 100. 9 Ibid, section 102 10 Ibid, section 105 and QCAT Rules, rule 86. 11 QCAT Rules, rule 86(1)(c). -- 8 of 8 --