Mitterbauer v Department of Justice and Attorney General
[2012] QCAT 692
| CITATION: | Mitterbauer v Department of Justice and Attorney General [2012] QCAT 692 |
| PARTIES: | Helen Llonka Mitterbauer |
| v | |
| Department of Justice and Attorney General, Offender Debt Recovery Program |
| APPLICATION NUMBER: | GAR016-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 9 November 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Department of Justice and Attorney General (Offender Debt Recovery Program) of 18 April 2012 is confirmed. |
| CATCHWORDS: | Administrative review – victims of crime assistance – offender debt recovery program – whether time limits apply to recovery process Victims of Crime Assistant 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 Act
REASONS FOR DECISION
Background
Following an incident on 20 July 1996 the Applicant Ms Mitterbauer was charged with a criminal offence, namely, negligently causing grievous bodily harm.
On 6 October 1997 Ms Mitterbauer pleaded guilty to the charge and was convicted and sentenced to a term of imprisonment of three months being suspended forwith for a period of 12 months.
On 25 October 1999 the victim commenced proceedings in the civil jurisdiction of the District Court of Queensland seeking compensation for the alleged injuries suffered. An order for substituted service of those proceedings had been granted two weeks earlier.
On 3 April 2001 the District Court made an order that Ms Mitterbauer pay the victim the sum of $9,750.00 compensation.
On 26 April 2001 the victim made application to the State for payment of that money pursuant to provisions of the then Criminal Offence Victims Act 1995 (COVA).
On 24 August 2001 the State paid that sum pursuant to section 38(1) of COVA.
On 16 November 2011 the Respondent sought to recover that amount pursuant to the Victims of Crime Assistance Act 2009 (VOCAA).
Ms Mitterbauer responded advising that that notice was the first knowledge she had of the District Court proceedings and compensation order.
The Respondent deeming Ms Mitterbauer’s letter as a Notice of Dispute, as required by VOCAA, determined on 7 December 2011 that the State was entitled to recover the judgement amount from Ms Mitterbauer.
Ms Mitterbauer sought review of that decision, but by consent agreement, the Respondent withdrew its decision of 7 December 2011 to enable Ms Mitterbauer to serve a formal Notice of Dispute, which she did in April 2012.
On 18 April 2012 the Respondent determined that the State was entitled to recover the amount of the District Court order it had paid to the victim using the recovery process established under Chapter 6 of the VOCAA.
On 20 April 2012 Ms Mitterbauer gave a Notice of Intention to proceed with the review.
Ms Mitterbauer provided the Tribunal with written submissions in support of her application. The Respondent provided written submissions in response and provided the Tribunal the documents on which it relied to make its decision.
Applicant’s submissions
In summary Ms Mitterbauer submits:
The Respondent is not entitled to commence or maintain recovery proceedings as it has not complied with rule 799 of the Uniform Civil Procedure Rules 1999 (UCPR) as an application for a compensation order by the victim is a civil proceeding[1] and civil proceedings are governed by the UCPR and in particular rule 799 concerning enforcement periods.
[1] COVA, section 30(1).
Rule 799 states (1) an enforcement creditor may start enforcement proceedings without leave at any time within 6 years after the day the money order was made. (2) in addition to another law requiring a court’s leave before an order can be enforced, an enforcement creditor requires a court’s leave to start enforcement proceedings if – (a) it is more than 6 years since the money order was made or (b) there has been a change in an enforcement creditor or enforcement debtor, whether by assignment, death or otherwise.
Ms Mitterbauer submits the Respondent acquired the ‘rights and remedies’ of the victim pursuant to section 38(1) of COVA. These rights and remedies entitled the Respondent to enforce the compensation order as a judgement of the court in its civil jurisdiction as provided by section 28(3) of COVA. The Respondent therefore, as an enforcement creditor, is required to comply with rule 799(2)(a) and (b) as the enforcement of money orders is governed by the UCPR.
Ms Mitterbauer submits as there is no evidence the Respondent has sought leave the Notice of Intention to seek recovery and the determination on 18 April 2012 pursuant to section 190 of VOCAA are invalid and unenforceable.
Further, Ms Mitterbauer submits that in the event the Respondent has obtained the necessary leave, or the Tribunal deems the Respondent is not required to seek leave of the Court, the Respondent is not able to invoke the recovery process established under Chapter 6 Part 2 of VOCAA because it only acquired the rights and remedies of the victim through subrogation, which at the date of payment, did not include the power under the present recovery process – as an alternate to enforcing the order.[2]
[2] VOCAA, section 185(2).
Ms Mitterbauer notes subrogation is defined by Butterworth’s Concise Australian Legal Dictionary as the substitution of one person for another in respect of a lawful claim, demand, or right, so the person substituted succeeds to acquires the rights, remedies, or securities of the other in relation to the claim. The person who is subrogated to another stands in that person’s shoes.
Ms Mitterbauer further submits the new recovery process cannot operate retrospectively as it is against the principles of natural justice and contrary to fundamental legislative principles as provided in the Legislative Standards Act 1992 and the Queensland Legislation Handbook in particular does not adversely affect rights and liberties, or impose obligations retrospectively.
Finally, Ms Mitterbauer submits that the Respondent failed to take into account matters raised in the Notice of Dispute, in particular, Ms Mitterbauer’s complete lack of knowledge of the compensation proceedings and all that flowed from that situation.
Further that the Respondent has incorrectly taken a narrow view that her discretion in considering the dispute was limited to only the amount the State is entitled to recover.
Ms Mitterbauer submits the determination of 18 April 2012 should be set aside with directions.
Respondent’s submissions
In summary, the Respondent submits:
That the rule 799 of UCPR 1999 is irrelevant as the decision is made under VOCAA and is not a civil action to enforce the compensation order.
The Respondent submits it does not rely on the State’s subrogation rights to invoke the recovery process as established under Chapter 6 Part 2 of VOCAA.
The Respondent also submits that subrogation rights do not preclude the Parliament from introducing an alternative procedure for seeking recovery of the amount. Moreover, Parliament has the power to enact laws which adversely affect the interests, property and standing of persons, whether prospectively or with retrospective effect.[3]
[3]Respondent's submission citing McCawley v R (1918) 26 CLR 9 at 54-55; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 355- 356; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 447 at 463.
The Respondent submits that it is clear from section 185 of VOCAA that the purpose of the subdivision is to help the State recover from a person an amount paid by the State under section 32 of the repealed Act (COVA) in relation to a compensation order made under section 24 of that Act[4], and therefore that the State has a continuing right to recover the $9,750.00 it paid to the victim.
[4] VOCAA section, section 185 (1).
Moreover, the Respondent submits it is clear from section 185 that this process is an alternative to enforcing the order[5] whether the amount was paid or became payable before the commencement of the VOCAA and whether or not the order had been filed in a court for the purpose of enforcing the order[6].
[5] Ibid, section 185(2).
[6] Ibid, section 185(3).
The Respondent submits this process simply creates an optional mechanism to recover money the State has paid to the victim from the offender, but that the process does not alter existing liabilities. Rather it enables the State to choose the VOCAA recovery process over enforcing the order through the courts.
The Respondent submits therefore the recovery process is not operating retrospectively rather the process operates from the moment it came into effect on a present outstanding liability that is unchanged.
The Respondent submits that even if the provisions have retrospective operation there is nothing in legislative standards that can be construed so as to render the legislation invalid or unlawful. The Respondent submits the legislature’s intention is clear and the applicant failed to provide any basis to suggest the application of Subdivision 2 of VOCAA to ex-gratia payments made in relation to orders under the repealed COVA is unlawful.
The Respondent further submits that the dispute provisions as set out in sections 189 and 190 of VOCAA provide a narrow basis for disputing the amount the State seeks to recover.
The Respondent submits the scheme manager does not have the discretion to consider the wide range of issues Ms Mitterbauer raised in her Notice of Dispute. Whilst the Respondent acknowledges Ms Mitterbauer’s lack of knowledge of the District Court proceedings and the concerns about the sufficiency of the attempts by the victim’s solicitor to contact her, it is not appropriate for the scheme manager to step into the position of judge and vary orders as there are appropriate processes to appeal decisions and make complaints about legal practitioners.
The Respondent submits that any issue in relation to Ms Mitterbauer’s ability to pay can be considered in any payment arrangement with SPER.
Finally the Respondent submits, whilst acknowledging the age of the order (over 10 years) is a significant period, there is no limitation in VOCAA restricting recovery to matters of a certain age.
The Respondent also submits that the Limitation on Actions Act 1974 (LAA) does not apply. In particular the Respondent submits the LAA does not apply to an action by the Crown for the recovery of a fee, tax, duty or other sum of money or interest on those items.[7]
[7] Limitation of Actions Act 1974, section 6(3)(b)(i).
Furthermore the Respondent submits the LAA does not apply as recovery under Subdivision 2 of VOCAA is not an action[8] as defined in LAA and does not rely upon enforcement of a judgement to recover the relevant sum of money.
[8] Ibid, section 5 definition – includes any proceeding in a court of law.
The Respondent concedes however that the LAA would apply if the State chose to enforce the order through the courts but submits that given the compensation order was made on 3 April 2001 and the ex-gratia payment was made on 28 August 2001 it would not be barred as the period of limitation for an action on a judgement is 12 years.[9]
Tribunal jurisdiction
[9]Ibid, section 10(4) – an action shall not be brought upon a judgement after the expiration of 12 years from the date on which the judgement becomes enforceable.
This matter is an application under the Tribunal’s review jurisdiction[10] that is conferred on it by an enabling Act.[11] The Tribunal must decide the review in accordance with the QCAT Act and the VOCAA.
[10] Queensland Civil and Administrative Tribunal Act 2009, Chapter 2 Division 3.
[11]The Victims of Crime Assistance Act 2009, transitional provisions – specifically section 189(f)(ii) and section 190.
The purpose of the review is to produce the correct and preferable decision and the Tribunal, must hear and decide the matter by way of a fresh hearing on the merits.[12]
[12] QCAT Act, section 20.
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.[13]
Decision
[13] QCAT Act, section 24.
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).
Victims, who could previously apply for criminal compensation through the Courts pursuant to COVA or the Code, must now apply for assistance under VOCAA.
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.
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 scenarios are outlined in Chapter 6, Part 1 and 2.
The Tribunal is satisfied that the relevant provisions applicable in the circumstances of this case are found at Part 2, Division 9, Subdivisions 1 and 2, sections 184-194.
The Tribunal is satisfied that the recovery process under the transitional provisions of VOCAA is purely an administrative decision. It is a process requiring decision by a relevant public service officer, the scheme manager. It is the type of process and decision public servants consider and make every day.
The Tribunal is satisfied that it is clear and unambiguous that the circumstances of the current case are covered under the new law and its processes, an administrative process. It is not therefore a civil proceeding requiring leave from a court or compliance with the UCPR to initiate the process.
Ms Mitterbauer submits, if the Tribunal decides the Respondent is not required to seek leave of the court, the Respondent is not able to invoke the recovery process established under Chapter 6 Part 2 of VOCAA because it only acquired the rights and remedies of the victim through subrogation, which at the date of payment, did not include the power under the present recovery process – as an alternate to enforcing the order.[14]
[14] VOCAA, section 185(2).
Whilst the Tribunal agrees the State’s rights were acquired through subrogation, it is satisfied that the recovery process established under the new VOCAA does not rely on those rights to invoke the new process. The Tribunal is satisfied that those ‘rights’ per se merely establishes the State as an interested party, or provides standing for the Respondent, to be captured by the transitional provisions of the new law and enable it to invoke the process as provided.
Subrogation rights do not preclude the Parliament from introducing an alternative procedure for seeking recovery of a money order. The new law is clear that it is an alternate process to recovery through the courts. The respondent may choose either way, it can’t pursue both processes. And although the process may differ in formality, cost or timeframes, the fundamental right is unchanged, that is, the right to recover money that the State has already paid under a victim’s assistance scheme, no more no less.
The Tribunal does not agree the legislation has real retrospective effect, rather the process runs parallel to an already existing liability. That liability had not been extinguished despite the passage of time. The VOCAA process has no time limit for recovery. The Tribunal agrees that the LAA does not apply to the VOCAA recovery process, as it is an administrative process and not an action[15] as defined in LAA. The Respondent is not required to rely upon an action to enforce the judgement to recover the relevant sum of money.
[15] Ibid, section 5 definition – includes any proceeding in a court of law.
The Respondent submitted that, if it chose to recover the money through enforcement of the order in the courts, the LAA would apply although it would not be barred because the date of the compensation order and the payment of the ex-gratia money were both within the 12 years limitation that applies for an action on a judgement.[16]
[16]Ibid, section 10(4) – an action shall not be brought upon a judgement after the expiration of 12 years from the date on which the judgement becomes enforceable.
Although the Tribunal agrees the circumstances of the current matter are within the 12 year period, the Tribunal does not necessarily agree with the proposition the LAA would apply as it still may be open to the Respondent to argue that the LAA does not apply to an action by the Crown for the recovery of a fee, tax, duty or other sum of money or interest on those items.[17] Nonetheless that issue would be a matter for the parties and the courts and is not directly relevant to the current circumstances.
[17] Limitation of Actions Act 1974, section 6(3)(b)(i).
The Tribunal is satisfied that whilst the information raised by Ms Mitterbauer in the Notice of Dispute relating to her lack of knowledge of the compensation proceedings and all that flowed from it contextualised the circumstances of the matter, the Tribunal is satisfied that the language of the legislation is clear in its intention that the discretion available to the scheme manger is limited to ascertaining the amount of money the State is entitled to recover. That may include confirming necessary facts that assist that deliberation such as: confirming the identity of the applicant/debtor; 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 applicant/debtor to the victim. The process does not provide any avenue for the scheme manager to alter the effect of an order of the District Court. As difficult as it may be for Ms Mitterbauer the opportunity to challenge the court order has apparently passed.
Ms Mitterbauer’s ability to pay will be no doubt be subject to discussion and consideration by Ms Mitterbauer and SPER, however the Tribunal is satisfied that issue is not directly relevant to the Tribunal’s review proceeding.
In all the circumstances the Tribunal is satisfied that the decision of the Respondent of 18 April 2012 is the correct and preferable decision and the Tribunal confirms the decision accordingly.
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