Luck v Debt Recovery Program

[2014] QCAT 508

CITATION: Luck v Debt Recovery Program [2014] QCAT 508

PARTIES:	Judith Robyn Luck (Applicant)
v
Debt Recovery Program (Respondent)

APPLICATION NUMBER: GAR382-13

MATTER TYPE: General administrative review matters

HEARING DATE: 14 April 2014

HEARD AT: Brisbane

DECISION OF: Senior Member Oliver

DELIVERED ON: 15 October 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The time for filing the application for review is extend to 28 October 2013.

2. Insofar as the application to review a decision is made under s 116 of the Victims of Crime Assistance Act the decision of the respondent is confirmed.

3. Insofar as the application to review a decision is made under s 125 of the Victims of Crime Assistance Act:

(a)  the Tribunal invites the decision maker to reconsider the matter; and

(b) the time for reconsideration under section 23(2)(a) of the QCAT Act is extended until 28 days after the determination of the appeal in Richardson v Department of Justice and the Attorney-General

CATCHWORDS: VICTIMS ASSIST – where applicant pleaded guilty to assault – whether any grounds to dispute the conviction related to an act of violence – whether applicant sought review of amount of compensation awarded – whether applicant has a right to review the respondents decision on compensation – whether applicant entitled to confidential material in review application.

APPEARANCES:

APPLICANT: The applicant was self represented.

RESPONDENT: Ms McCarthy from the Department of Justice and the Attorney General.

REASONS FOR DECISION

1. The respondent has sought to recover $3,850.00 compensation paid to a victim of a crime from the applicant under the under the provisions of the Victims of Crime Assistance Act 2009 (Qld) (‘VOCA Act’).

2. The applicant has sought to review the decision to recover the compensation under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

3. The applicant has not sought to challenge Ms Luck’s right to review the decision, nor has there been any challenge to the filing of the application outside the 28 day period for the filing of the review application from when it was received by Ms Luck. I proceed on the basis that the respondent has waived any objection to the application being filed out of time, and to ensure the tribunal is clothed with jurisdiction I will extend the time for the filing of the application until 28 October 2013.

4. The obvious difficulty with reviewing the respondent’s decision to recover the money paid to the victim is that there is no material filed by the respondent, which would assist the tribunal is deciding if the compensation payable for the injury resulting from the act of violence is reasonable.

5. There are some undisputed facts that I will set out. Mrs Luck was involved in a minor altercation with the victim on the 22nd of December 2008. She was changed with an offence of entering a dwelling and assaulting the victim. She appeared before His Honour Judge Brabazon QC, on indictment, on the 4th November 2009 and pleaded guilty to the charge. She was released on a good behaviour bond with “no conviction recorded”.

6. The assault committed by Ms Luck falls within the definition of “act of violence under s 25 of the VOCA Act as it resulted in injury to the victim. Under s 27 of the Act, the meaning of injury includes not only bodily injury but also mental illness or disorder.

7. The respondent has a right to recover from Ms Luck the amount paid to a victim under s 115 of the Act. Under s 116, Ms Luck has a right to dispute that the conviction relates to an act of violence on her part however, because of her plea of guilty for the assault on the victim, the application for review under s 116 must fail.

8. It seems that under section 116 she does not have a right to review the amount of compensation payable to the victim only whether the act related to an “act of violence” on her part.

9. Ms Luck complains that she cannot properly consider the amount of compensation payable to the victim because she does not have access to the information provided to the assessor to assess the victim’s claim. Under s 140 of the Act there is a restriction placed on the prescribed person, here the person managing the claim, from disclosing ‘acquired information about someone else”, the victim, to Ms Luck. The section is clear in its terms and there does not seem to be any basis upon which the information can be released to Ms Luck. However if she is found to have a right to review under s 125 disclosure of the material may fall within s 140(3)(b) as being in connection with the performance of a function under the Act. That function being the review application.

10. Ms Luck does have a potential right of review under s 125 of the Act as she may be an “applicant” under the section entitled to review a decision about the compensation paid to the victim.[1] However, there are two things to say about an application under this section. Firstly, there is no material before me upon which I am able to produce the correct and preferable decision about the level of compensation.[2] Secondly, it remains to be seen whether Ms Luck is an applicant for the purposes of s 125. This very point was considered in Richardson v Dept. of Justice and the Attorney-General  where it was held that a person who committed an act of violence is an applicant for the purposes of the section. That decision is presently under appeal to the Appeal Tribunal.

    [1]See: Richardson v Department of Justice and Attorney-General [2014] QCAT 405.

    [2]QCAT Act, s 20.

11. Therefore, as I am not in a position to properly consider any the amount of compensation payable to the victim it would be futile to proceed further with the application whilst the appeal is on foot. I propose, insofar as the application can relate to reviewing the amount of compensation, refer the matter back to the decision maker for further consideration if the decision in Richardson is upheld. If it is not, and the primary decision is reversed, then this application must be dismissed.

12. I therefore propose to make the following orders:

    a) Insofar as the review application is under s 116 of the VOCA Act the decision of the respondent is confirmed.

    b) Insofar as the review application is under s 125 of the VOCA Act I invite the decision maker to reconsider the decision and the time for reconsideration is extended until 28 days after the determination of the appeal in Richardson v Department of Justice and the Attorney-General.