J v Neasey - [2021] TASSC 9

[2021] TASSC 9

COURT: SUPREME COURT OF TASMANIA

CITATION: KMF v Neasey [2021] TASSC 9

PARTIES:  KMF
  v
  NEASEY, Francis Counsel

ATTORNEY-GENERAL OF TASMANIA (Intervenor)

FILE NO:  2068/2020
DELIVERED ON:  16 March 2021
DELIVERED AT:  Hobart
HEARING DATE:  9 March 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Administrative Law – Judicial review – Procedure and evidence – Other matters – Summary dismissal of application – Frivolous application – No reasonable basis for application disclosed.

Judicial Review Act 2000 (Tas), s 28(1).
Aust Dig Administrative Law [1094]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Attorney-General:  J Rudolf
Solicitors:
             Attorney-General:  Solicitor-General

Judgment Number: [2021] TASSC 9
Number of paragraphs: 25

Serial No 9/2021
File No 2068/2020

KMF v FRANCIS COUNSEL NEASEY,
ATTORNEY-GENERAL OF TASMANIA (INTERVENOR)

REASONS FOR JUDGMENT BLOW CJ

16 March 2021

[These reasons have been redacted to remove material relevant to the identity of the applicant.]

This is an application for the summary dismissal of proceedings under the Judicial Review Act 2000. Those proceedings concern a claim for compensation under the Victims of Crime Assistance Act 1976 ("the VCA Act") by the applicant, [KMF].
The background to the proceedings is as follows;
·     On 23 December 2014 the applicant was assaulted.
· She made a claim for compensation under the VCA Act. Her claim was heard and determined by the respondent in these proceedings, Mr F C Neasey, who is a commissioner under that Act. On 15 September 2017 he awarded $9,550 by way of compensation, but only $795.54 of that amount was paid to the applicant. A sum of $2,250 was withheld to cover future medical and related expenses, and a sum of $6,504.46 was deducted and paid to the Monetary Penalties Enforcement Service ("the MPES") in respect of fines that the applicant had incurred and not paid.
·     The applicant was aggrieved by the withholding of the money that was paid to the MPES. She applied to this Court for the review of the learned commissioner's decision under the Judicial Review Act. That was the first of two applications by her under that Act. I am concerned with the second one.
·     In March 2018 Brett J dismissed that application: KMF v Criminal Injuries Compensation Commission [2018] TASSC 10.
· The applicant appealed from that decision to the Full Court, and was partly successful. The Attorney-General intervened in the Full Court proceedings pursuant to s 39 of the Judicial Review Act, and conceded that $2,589.90 of the deducted sum related to penalties that were not the subject of an enforcement order under the Monetary Penalties Enforcement Act 2005 ("the MPE Act"). It followed that the learned commissioner had had a discretion as to whether some or all of that sum was to be deducted from the amount payable to the applicant. As he had not considered whether to exercise that discretion, the appeal was allowed, the judgment of Brett J was set aside, the commissioner's decision of 15 September 2017 was set aside, and the application for compensation was remitted to him for further consideration.
·     The learned commissioner conducted another hearing and made a second decision on 19 June 2019. By then the amount owed by the applicant in respect of outstanding fines had varied because (a) she had incurred further fines, and (b) fortnightly payments had been deducted from her Centrelink benefits and paid to the MPES in accordance with a payment plan. The second decision authorised a further $2,186.10 to be paid to the applicant.
· The applicant was dissatisfied with that decision. She considered that less money should have been withheld in respect of unpaid fines. On 17 August 2020 she filed an originating application seeking judicial review of the decision of 19 June 2019. She also applied for an extension of time for the making of that application. Under s 23 of the Judicial Review Act, the application for judicial review was required to be made within 28 days after the applicant received the decision.
·     The learned commissioner filed a notice of submission, indicating that he would not take any part in these proceedings.
· The Attorney-General has intervened in these proceedings pursuant to s 39 of the Judicial Review Act.
The Attorney-General has applied pursuant to s 38 of the Judicial Review Act for the originating application to be dismissed. That application asserts, in the language of s 38, that no reasonable basis for the originating application has been disclosed, and that that application is frivolous, vexatious, and an abuse of the process of the Court.
When the word "frivolous" is used to describe a court proceeding, it means that the claim made in that proceedings is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152, 161 ALR 458 at [24]; Von Stalheim v Anti Discrimination Tribunal [2009] TASSC 6 at [9]. For the reasons set out below, I have concluded that the pending application for judicial review has no hope of success, and should therefore be dismissed on the basis that it is frivolous in that sense.
In the decision under review, the learned commissioner calculated the sum of $2,186.10 to be payable to the applicant. His calculation was as follows:
"Award             $9,550
Deductions      $3,455.56 (s117 MEPA)
$862.80 (s6B(1)(a) Act)
------------
S/T    $5,231.64
Withheld          $2,250 (future medical and related costs)
Already paid      $795.54
------------
TOTAL           $2,186.10".
There is nothing in the material filed by the applicant in relation to that decision to suggest that the award of $9,550 was inadequate, nor that any of the other figures in that calculation were inaccurate.
The power of a commissioner under the VCA Act to deduct money from a victim's award of compensation because of outstanding fines is conferred by s 6B(1)(a) of that Act. That provision reads as follows:
"(1) The Commissioner may deduct from an award to a person any one or more of the following amounts:
(a) any pecuniary penalty imposed on the person and owing to the Crown …".
Some of the applicant's outstanding fines were owing to the … City Council, not the Crown. Most of those fines, if not all of them, related to parking meter offences. The commissioner did not have any power to deduct any amount in relation to those fines. No deduction was made in relation to fines owing to councils in the commissioner's second decision.
When an outstanding fine is owing to the Crown, a commissioner under the VCA Act has a duty to deduct the amount of the fine from the victim's award if, but only if, that fine is the subject of an enforcement order under the MPE Act. That duty is imposed by s 117 of the MPE Act, which reads as follows:
"A debt owed to the Director under this Act is taken to be a pecuniary penalty imposed on a person and owing to the Crown for the purposes of section 6B(1)(a) of the Victims of Crime Assistance Act 1976 and that amount must be deducted by the Commissioner from any award of compensation to be made under that Act and must be paid to the Director." [My emphasis.]
In s 3 of the MPE Act, "debt" is defined as follows:
"debt means any amount stated in an enforcement order that remains unpaid, including any prescribed amount imposed by or under this Act, and any other costs made recoverable under this Act".
The result of that definition is that the amount of an unpaid fine is not a debt owed to the Director (the Director, Community Corrections), unless it is the subject of an enforcement order. If there is no enforcement order, then the commissioner has a discretion to make a deduction by virtue of s 6B(1)(a) of the VCA Act. If there is an enforcement order, the commissioner has no choice, and is obliged to make a deduction pursuant to s 117 of the MPE Act.
In the calculation in his second decision, the commissioner deducted $3,455.56 pursuant to s 117 of the MPE Act. He had no choice in relation to that. However he had a choice in relation to $1,862.80 that was owing to the Crown and not the subject of any enforcement order.
The sum of $3,455.56 represented the total owing to the Crown that was subject to enforcement orders as at the date of the second decision. The applicant argued that fines incurred after the first decision should not have been included in that amount, but the learned commissioner rejected that argument. He was right to do so. Because the Full Court had set aside his first decision, he was required to make a fresh decision. Section 117 applied to that fresh decision in relation to the amounts that were owing at that time, not at the time of the earlier decision.
In relation to the $1,862.80 that was not the subject of an enforcement order, the commissioner exercised his discretion by deducting $862.80.
In the reasons for his second decision, the commissioner referred to a number of factors that he took into account in deciding how to exercise his discretion. He took into account the fact that the applicant had had violent partners when some of her fines were incurred, the fact that she had been diagnosed as suffering from post-traumatic stress disorder, the relationship between her fines and her health problems, her financial position, the fact that she had arranged a payment plan with the MPES, various medical problems, and the fact that she was caring for her mother, who was elderly and ill. He took into account the moderate level of her award of compensation and the size of her debt under the MPE Act. He accepted that it was not unreasonable for her award not to be too severely depleted by the deduction of monies owing to the Crown, but also commented that the applicant "must expect to accept some responsibility for her habitual offending, which has given rise to the relevant fines in the first place".
The learned commissioner's reasoning as to the deduction of $862.80 appears to be unimpeachable. If the originating application were to proceed to a final hearing, there is no prospect of a judge concluding that he made any error as to the considerations that he took into account, or the weight he gave to them. There is no prospect of a finding that his discretionary decision was so unreasonable that no reasonable person could make such a decision.
Section 5(7)(b) of the VCA Act authorises the making of an award "subject to such conditions as the Commissioner determines as to ... the holding of any sum paid under the award on trust for a person entitled to the benefit thereof". That provision authorised the withholding of the sum of $2,250 to cover "future medical and related costs". In her originating application the applicant asked that that sum be deposited into her account so that she could use it "for therapy". She asserted that it was unfair that she could not use that money. The decision to withhold the sum of $2,250 was made by the commissioner as part of his first decision. It appears that the withholding of that sum was not challenged in the first judicial review application or the Full Court appeal. In the light of the information available to the commissioner about the applicant's financial position, I think it was open to him to conclude that it was reasonable for the sum of $2,250 to be held in trust for her so that it would be there when future expenses were incurred.
The grounds upon which judicial review may be sought are set out in s 17(2) of the Judicial Review Act. That subsection reads as follows:
"(2) The application may be made on any one or more of the following grounds:
(a)that a breach of the rules of natural justice happened relating to the making of the decision;
(b)that procedures that were required by law to be observed relating to the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorised by the enactment under which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f)that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law."
In relation to s 17(2)(e), the circumstances that will amount to an "improper exercise of power" are listed in s 20 of that Act. That section reads as follows:
"In section 17(2)(e) and section 18(2)(e), a reference to an improper exercise of a power is taken to include –
(a)taking an irrelevant consideration into account in the exercise of a power; and
(b)failing to take a relevant consideration into account in the exercise of a power; and
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(d)an exercise of a discretionary power in bad faith; and
(e)an exercise of a personal discretionary power at the direction of another person; and
(f)an exercise of a discretionary power in accordance with a rule without regard to the merits of the particular case; and
(g)an exercise of a power that is so unreasonable that no reasonable person could so exercise the power; and
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(i)any other exercise of a power in a way that is an abuse of the power."
The applicant does not have a lawyer. Her originating application and the other documents filed by her in these proceedings do not refer to any of the provisions in the relevant sections of the Judicial Review Act, and do not adopt the words of any of the relevant provisions. It is clear enough that she is aggrieved by the deductions of $3,455.56, $862.80 and $2,250. In her documentation, she referred to a number of matters, including the following:
·     A complaint that she did not get a fair hearing in the Full Court.
·     A complaint that she was "shafted" by the lawyer who represented her in the Full Court.
·     A complaint about the manner in which the commissioner spoke to her.
·     A complaint to the effect that the records of the MPES were a shambles.
·     A complaint that other victims of crime are improperly having parking ticket fine money taken from them.
·     An assertion that undue stress is intentionally being inflicted upon her.
·     A request that the legislation, policies and procedure be looked at for victims.
·     A claim for compensation for undue stress as a result of having to appeal from the commissioner's first decision and then go to the Full Court.
On an application for judicial review, the Court does not have jurisdiction to award compensation to the applicant for stress resulting from the conduct of legal proceedings.
On the hearing of this dismissal application, the applicant made oral submissions about various subjects, including subjects referred to in the documents she had filed. She mentioned the commissioner's reasoning only when I asked her about it. Her only criticism of his reasoning was to the effect that there were no enforcement orders. In his second decision the commissioner made a finding that, contrary to the applicant's assertions, there were enforcement orders under the MPE Act in relation to the amounts totalling $3,455.56 that were the subject of the s 117 deduction. From what the applicant said, I infer that she did not understand that an enforcement could be made under the MPE Act without the Director or a delegate of the Director immediately proceeding to suspend the debtor's driving licence or impose some other sanction. The issue of the existence of enforcement orders was fully explored in the Full Court proceedings. I am satisfied that there is no prospect of a finding being made that the deduction in question was not fully supported by enforcement orders.
For the reasons stated, it is clear that there is no prospect of the originating application succeeding wholly or in part in relation to any of the deductions that were made from the applicant's award of compensation. The application therefore has no chance of success. In legal terminology, it is frivolous. Further, I am satisfied that, within the meaning of s 38(1)(b) of the Judicial Review Act, no reasonable basis for the originating application has been disclosed.
If I had concluded that the originating application had any chance of success, I would probably have granted the extension of time that the applicant has sought. Because the application has no chance of success, I will not grant that application. I need not deal with the Attorney-General's contentions that the originating application is vexatious and an abuse of the process of the Court.
The originating application and the application for extension of time are both dismissed.