Australian Capital Territory v Catanzariti and Walters
[2017] ACTMC 5
•8 February 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Australian Capital Territory v Catanzariti & Walters |
| Citation: | [2017] ACTMC 5 |
| Hearing Date(s): | 24 November 2015 |
| DecisionDate: | 8 February 2017 |
| Before: | Magistrate Morrison |
| Decision: | See [20] |
| Category: | Principal Judgment |
Catchwords: | CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 54, 59 |
Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 |
| Parties: | Australian Capital Territory (Applicant) |
| Representation: | Counsel Solicitors |
| File Number: | AP 5 of 2014 |
MAGISTRATE MORRISON:
On 18 November 2014 the Deputy Registrar of this Court made a provisional order under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) (“Current Act”) requiring Anthony Catanzariti and Brian Gregory Walters to pay the Territory the sum of $30,000.00. Mr Brian Gregory Walters filed a notice of objection to that order.
No notice of objection was filed by Mr Catanzariti. At the request of the Territory the Registrar, on 6 August 2015, confirmed the provisional order made against Mr Catanzariti in the amount of $30,000.00. Section 59 of the Current Act contemplates the making of an order for restitution against two or more defendants. It provides that their liability under the order is joint and several.
Section 59(4) goes on to deal with a case where, in dealing with an objection to a provisional order, the Court decides to reduce the amount payable by one defendant. That subsection provides that “.... the court may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order.” Given that the section contemplates that outcome, it is not clear to me that, in the present circumstances, the legislation authorises the confirmation of the order insofar as it relates to Mr Catanzariti only, until such time as Mr Walters objection has been determined. Nothing turns on that insofar as Mr Walters’ objection is concerned.
Mr Walters did not have legal representation at the hearing of his objection. His notice of objection did not comply with the Court Procedures Rules 2006 (ACT) but I permitted it to be relied upon and no point was taken by the Territory.
It is worthwhile setting out the text of his notice of objection in full:
I would like to object to the order due to the following reasons, I have battled with addiction since the age of 12, which resulted in being sent to prison, I left prision [sic] and went into the Salvation Army rehab program for 1 year which I graduated and since leaving I have obtain [sic] casul [sic] work selling shoe’s [sic] at “Ecco shoes” in the city (approx) 20 hrs per week and have secure housing with ACT housing, I have not touched drugs since before entering prision [sic], I attend the gym 6 days a week I have turned my life around I struggle to make it thru [sic] the week living pay day to pay day, I also am currently paying fines off a little each week I have no way of paying this amount of money, I have been depressed since receiving this order, so due to my financial state I cannot pay this amount of money
Mr Walters gave some oral testimony at the hearing and was cross examined. He tendered documents comprising a copy of a bank statement relating to his bank account with the National Australia Bank, a letter from the Salvation Army organisation and a document headed “Job Capacity Assessment Report” which bore an Australian Government logo and described Centrelink as the “Referring organisation”. The report is dated 18 July 2013.
In my reasons for decision in the matter of Australian Capital Territory v Shaor [2017] ACTMC 1 published on 8 February 2017 I set out my conclusions on some of the decision making criteria to be applied in dealing with objections to provisional orders. I rely upon the conclusions reached on decision making criteria in those reasons without repeating them here.
The letter from the Salvation Army said that Mr Walters had graduated from the residential rehabilitation Bridge Program. The author of the letter expressed the opinion that Mr Walters was “not yet ready to work more than 20 hours per week on top of his community services work”.
The job capacity assessment report refers to a 2013 medical report diagnosing Mr Walters as suffering from post traumatic stress disorder with depression, anxiety and alcoholism, as well as and intervertebral disc disorder, and lower limb deficiencies as a result of childhood disease leading to knee reconstruction surgery at the age of 15. The report includes an opinion as to Mr Walters’ capacity for work within certain timeframes. The latest of those is expressed in these terms:
“Due to physical injuries and psychological conditions client is likely to experience significant difficulties with returning to the workforce. He is unlikely to be capable of working for more than 8-14 hours per week at present due to the severity of his symptoms. With appropriate intervention client may be capable of working 15-22 hours per week within a 2 year timeframe.”
The form goes on to include the following:
Suitable work: Light less skilled (W03)
Example: Light process work
That report does not paint a rosy picture but as I have already said it is quite old – being dated July 2013.
In his oral testimony, Mr Walters gave evidence of a history of employment as a salesman with a company called Ecco. He had a history of employment as a chef but was without formal qualifications in that area.
The National Australia Bank bank statements he produced covered the period between 25 April 2015 and 23 July 2015. The objection hearing took place on 24 November 2015. Mr Walters said that he had no other bank accounts and no assets of any substance. The bank statements show a credit balance of only some $15.00 as at 23 July 2015. They do however also shown substantial deposits with a notation of “Ecco” or “salary” which Mr Walters confirmed represented payment of wages from his employer.
As I understood Mr Walters’ testimony, it was that, at the time covered by those statements he was working longer hours than he was working at the time of the hearing of his objection. He said that his hours had been reduced because the employer had put on additional staff and had shared the work around. No evidence was put before the Court by way of material from the employer or a bank statement showing reduced wage deposits to back up Mr Walters’ assertions about his reduced hours.
The bank statements also showed significant regular cash withdrawals which Mr Walters said represented money he used for living expenses. Those withdrawals were in amounts of between $900.00 and $1,000.00.
In response to questions about his prospects of more employment in the future Mr Walters made reference to the fact that he is a recovering alcoholic and drug addict. He said that it was hard for him to actually go and work in times of stress. He went on to say – “At the moment I really don’t want to put any extra stress on having to find employment due to the fact that I’m most likely either going to do one or two things; not perform because I’m stressed out, or go and pick up because it’s just what I’ve found to be my trigger.”
Mr Walters’ testimony did not explain what was different about his circumstances between the time of the hearing and the period covered by the bank statements – that is between April and July of 2015 – when he obviously was working longer hours and earning more by way of wages. In other words there was no explanation given about why the factors identified by Mr Walters as preventing more employment in the future had not prevented him from working as he did in the April to July period. I refer to the April to July period because that is the period covered by the bank statements. The evidence does not establish for how long before April 2015 Mr Waters was employed by Ecco or what was his income in any earlier period. Mr Walters did say that he had been employed by Ecco “on and off for probably six, seven years”.
Mr Walters went on to say that he thought he could afford to make a contribution of $50.00 per fortnight towards payment of the amount of any order.
My assessment of Mr Walters’ evidence is that he was somewhat evasive and inclined to exaggerate his various reasons for not being willing or able to work longer hours. I accept that he is at a disadvantage in the employment market for various reasons including the criminal conviction which is at the heart of the objection hearing. He does however have a history of successful employment as a salesman with his employer at the time of the objection hearing, as well as experience as a chef. I think it is likely that he has the ability to, and will, obtain more employment in the near future, producing greater income for him. He has various debts which place demands on his income, but not to the extent of rendering him incapable of making payments towards satisfaction of an order.
In the circumstances I confirm the provisional order and vary it to reduce Mr Walters’ liability to an amount of $7,500.00. The Territory and Mr Walters may enter into an arrangement about time for payment of the confirmed order under s59 of the Current Act.
I certify that the preceding twenty (20) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Emma Buckland
Date: 8 February 2017
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