Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program
[2013] QCATA 159
•27 May 2013
| CITATION: | Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159 |
| PARTIES: | Helen Llonka Mitterbauer (Applicant) |
| V | |
| Department of Justice and Attorney-General, Offender Debt Recovery Program (Respondent) |
| APPLICATION NUMBER: | APL423-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member |
| DELIVERED ON: | 27 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The determination of the scheme manager of 18 April 2012 upon the applicant's notice of dispute of 2 April 2012 is confirmed. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – VICTIMS OF CRIME ASSISTANCE – CRIMINAL COMPENSATION – where ex-gratia payment by State – where determination by scheme manager of “payable amount” and entitlement of State to register amount payable with the State Penalties Enforcement Registry – where criteria for determination of payable amount – whether decision-maker can go behind original judgment – whether State enforcing a right of subrogation under repealed act – whether Victims of Crime Assistance Act 2009 confers additional alternative means for State to recover such payments to victims – whether decision-maker should take into account offender's lack of knowledge of original proceedings, victim's contribution to occurrence of crime, offender's capacity to pay, and long delay – whether legislation may confer a remedy with retrospective effect Criminal Offence Victims Act 1995 (Qld), s 38(1) Uniform Civil Procedure Rules 1999 (Qld), r 799 HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 447, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
This is a review under Division 3 of Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
The enabling Act is the Victims of Crime Assistance Act 2009 (“VOCAA”).[1]
[1] VOCAA s 190(7).
The applicant will be referred to as “Ms Mitterbauer”, and the respondent as “the Department”.
The review is to be by way of fresh hearing on the merits.[2] The decision under review (dated 18 April 2012) was a decision by the scheme manager of the respondent Department determining that the State is entitled to recover from Ms Mitterbauer the full amount ($9,750) claimed in a notice of intended recovery[3] issued by the Department and disputed by Ms Mitterbauer in a dispute notice.[4]
[2] QCAT Act s 20.
[3] Issued under VOCAA s 189.
[4] Issued under VOCAA s 190.
The Department's recovery notice was a step in the process of intended recovery of monies paid by it to a victim of crime in satisfaction of a District Court award of criminal compensation.
The relevant VOCAA recovery process relied on by the Department is the registration with the State Penalties Enforcement Registry (SPER)[5] of an amount that the Department's scheme manager, after following certain procedures, decided was the “payable amount”. This process will be referred to as “the SPER recovery process”. It was introduced by Chapter 6 Part 2 of VOCAA.
[5] Established under the State Penalties Enforcement Act 1999 (“SPER Act”).
Issues for Review
Ms Mitterbauer's three basic contentions are:
(a)That the Department is not entitled to commence or maintain recovery proceedings as it has not complied with r 799 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
(b)That as a matter of law the Department is not able to invoke the recovery process established by Chapter 6 part 2 of the Victims of Crime Assistance Act 2009 (i.e. the SPER recovery process).
(c)That the Department failed to take into account or give any weight to various matters raised in Ms Mitterbauer’s notice of dispute which should have led to a reduction in the payable amount.
Relevant facts
The relevant facts are helpfully stated in Ms Mitterbauer’s submissions, and the following account is largely taken from them.
On 20 July 1996 Ms Mitterbauer caused grievous bodily harm to another female. Ms Mitterbauer was charged with the criminal offence of negligently causing grievous bodily harm.
On 6 October 1997 Ms Mitterbauer pleaded guilty to the charge and was convicted and sentenced to imprisonment for three months, suspended forthwith for a period of 12 months.
On 25 October 1999 the victim commenced proceedings in the civil jurisdiction of the District Court, seeking compensation for her injuries.
On 4 December 2000 the victim sought an order for substituted service of those proceedings by placing one advertisement in The Courier Mail. An order to that effect was made by the Court on 18 December 2000.
The matter was set down in the District Court, and on 3 April 2001 an order was made that Ms Mitterbauer pay the victim the sum of $9,750.00 by way of compensation.
On 26 April 2001 the victim applied to the State for payment of the District Court judgment pursuant to provisions of the then Criminal Offence Victims Act 1995 (“COVA”).
On 24 August 2001 the State paid the victim $9,750.00. In consequence of so doing the State acquired by way of subrogation all the victims “rights and remedies” under the District Court order.[6]
[6] COVA s 38(1).
The State took no action to enforce its right of subrogation against Ms Mitterbauer prior to its initiation of the SPER recovery process in November 2011. (Whether that process amounts to an enforcement of the state's right of subrogation is a question of law that that will need to be considered in due course.)
On 16 November 2011 the State gave notice of intention to recover the amount of the District Court order under Chapter 6 Part 2 of VOCAA.
On 25 November 2011 Ms Mitterbauer acknowledged receipt of the notice and advised that it was her first knowledge of the proceedings. Inter alia, she advised the Department that she had never been served with any previous documentation.
Preliminary procedures ensued, and on 2 April 2012 Ms Mitterbauer served a formal notice of dispute. On 18 April 2012 the Department responded with its determination that the state is entitled to recover the full amount by means of the recovery process established by Chapter 6 Part 2 of the VOCAA.
On 20 April 2012 Ms Mitterbauer sought review of that decision.
Discussion
It will be convenient to deal with the three grounds raised by Ms Mitterbauer in the sequence in which she has presented them.
Failure to comply with the UCPR
The UCPR applies to civil proceedings in the Supreme, District and Magistrates Courts unless the rules otherwise expressly provide.[7] Rule 799 applies to the enforcement of money orders. It would apply if the Department's attempt to recover its payment were characterised as a curial enforcement of its rights of subrogation under the COVA regime. If applicable, Rule 799 would require the Department to obtain the Court’s leave before proceeding any further with its enforcement proceedings, in view of the fact that more than six years have elapsed since the “money order” (or order for payment) was made.
[7] UCPR r 3.
The remedy which the State is seeking to enforce is the recovery process established by Chapter 6 Part 2 of VOCAA. For reasons which are further developed in discussion hereunder I consider that the SPER recovery process is a genuine alternative to pursuit or continuation of the enforcement of the rights created by COVA. It is not the enforcement of a right of subrogation; it is the enforcement of an alternative right which may be effected administratively.
If the Department has paid compensation to a victim it is entitled to recover that payment from the offender. If it carries out the procedure prescribed by VOCAA it has a statutory right to register its claim with SPER. The procedure does not involve any court process. It is purely administrative.
Accordingly, the recovery activity in which the Department is engaging to recover its payout is not a civil action or a civil proceeding in a Court, or the enforcement of court process and is not subject to the requirements of the UCPR.
The first point therefore fails.
Whether SPER recovery process available to the State in this instance
It is said that the Department (as a State agency) only acquired the rights and remedies of the victim. That was true while COVA was the sole source of recovery by the Department. However the enactment of VOCAA created further options for the Department.
The new alternative method of recovery, specified in ss 185-194 of VOCAA specifically provides for the recovery of an ex gratia payment made by the State in relation to an order for compensation as an alternative to enforcing the order. Section 185(2) of that Act provides:
This subdivision provides a way for the state to recover an amount payable under an order mentioned in subsection 1 as an alternative to enforcing the order.
This procedure is not an enforcement of the original order by the subrogator. The focus is on the amount paid by the State.[8] If such payment has been made by the State in satisfaction of a COVA-based court order, the State is given the right to recover its outlay by this alternative means. It is true, as Ms Mitterbauer submits, that s 184(1) of VOCAA provides that s 38 of COVA continues to apply as if the new chapter had not commenced. This preserves existing remedies, and means that the old option of recovery remains as well as the new option of registration.
[8] VOCAA ss 185(1), 186, 187, 188, 189.
One can understand Ms Mitterbauer’s complaint that the State has changed the rules or “moved the goal posts”, but the question is whether the State has the power to do so. It seems clear that it does.[9]
[9]McCawley v R (1918) 26 CLR 9, 54-55; Kartinyeri v The Commonwealth (1998) 195 CLR 337, 355; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 447, 463.
Reference was made to the Legislative Standards Act 1992 and its disapproval of retrospective legislation. There is however nothing in that Act which can be construed to render ss 185-194 of VOCAA invalid or unlawful. Moreover, the Department submits that VOCAA does not operate retrospectively in that it provides an alternative method of recovering an existing liability and does not create a new liability or impose a new obligation. It is true that the new remedy creates disadvantages for Ms Mitterbauer that were not present in the earlier scheme, such as SPER’s power to suspend her driver's licence or issue a warrant of arrest until the judgment debt is paid. These are however procedural disadvantages in respect of the enforcement of a monetary liability that already existed when VOCAA was enacted.
The Department further submits that in any event, whether the new remedy is to be characterised as having a retrospective operation or not, the State has the power to pass such a law. Apart from the strong rule of interpretation that Courts and Tribunals will lean against interpreting legislation as having a retrospective effect, and leaving aside issues such as expropriation of property contrary to the Constitution, the remedy for inappropriate retrospective legislation is electoral rather than judicial.
Accordingly ground two fails. In my view the new remedy established by Chapter 6 Part 2 of VOCAA (ss 150-195) provides an additional choice in favour of the State for recovery of money paid by the Department to a victim in the prescribed circumstances.
The facts necessary to be shown by the Department in order to pursue this remedy are:
(a)A subsisting judgment under COVA.
(b)The fact that the state has paid money to the victim in satisfaction (full or partial) of that judgment.
(c)That the process required by ss 187 – 191 of VOCAA has been duly followed and taken into account.
Failure by Department to take into account matters raised in Ms Mitterbauer’s notice of dispute
Ms Mitterbauer submitted that the Department failed to take into account the behaviour of the victim on the evening of the incident, and of the fact that she had no opportunity to defend the criminal compensation proceedings following the order for substituted service.
Consideration of matters of those kinds is not mentioned in the relevant sections of VOCAA. Section 189 specifies the necessary contents of the notice of intended recovery that must be given. This consists essentially of economic data relative to the situation of the particular case, and includes “the amount the person was ordered to pay under the order”. The section which deals with the right of the recipient to dispute the amount that the State may recover (s 190) relevantly includes –
(3) The dispute notice must state—
(a) the amount the person claims that the State is entitled to recover from the person under this subdivision; and
(b) the facts relied on by the person to support the person’s claim.
(4) After considering the dispute notice, the scheme manager must decide the amount the State will seek to recover from the person which may be—
(a) the amount stated in the notice given under section 189; or
(b) a lower amount.
The Act is silent about the grounds upon which a lower amount would be recoverable. The scheme manager has the duty to make a “decision” on the dispute notice, but the Act makes no mention of discretion or criteria.
The only defences or limitations upon recovery that are mentioned are in s 187 (no recovery if relevant agreement in force) and s 188 (recovery limited if amount received as subrogated victim). These respectively involve a specific bar, and require a specific credit to be taken into account.
One would expect that if it had been intended to provide a broad discretion for the scheme manager to reduce the amount determined by the Court to be payable, which has been paid by the Department and remains unrecovered, it would specify some criteria. The only basis mentioned in the Act for limiting recovery (ss 187 and 188) are very specific and limited in scope. The Department’s submission is that only a “narrow basis” exists for disputing the amount the State seeks to recover.
Matters of potential concern to Ms Mitterbauer are essentially her assertion that she did not in fact know about the proceedings (notwithstanding the service of them by newspaper advertisement), the contribution of the victim to the situation (a factor that was required to be taken into account in the original assessment), and issues in relation to her ability to pay the amount claimed.
Orders for substituted service not infrequently lead to dissatisfaction and later attempts to set aside an order. Such attempts require judicial procedures, either in the court that made the order, or judicial review (including prerogative remedies) in a superior court. I do not think that this is an area where a scheme manager is intended to intrude. Similarly, while it is understandable that Ms Mitterbauer may have made submissions about the victim's contribution to the events if she had appeared before the District Court Judge, and that she lost the opportunity to argue for a lower assessment of compensation, this is not a matter for the exercise of discretion by a scheme manager. In my opinion, any subsisting Court Order is to be taken at face value in this particular recovery process. I do not think that the Department (through the Scheme Manager) had the duty or power to go behind the District Court judgment. Ms Mitterbauer’s remedy in this area, if she has one, is the setting aside of the District Court Judgment, which at this stage seems a remote prospect.
The respondent Department has also pointed out that the applicant's ability to pay is a factor that can be appropriately addressed in payment arrangements with SPER.
Finally there is the question whether the long delay is a matter that can or should have been taken into account in determining the amount to be recovered.
Ten years is certainly a significant period, but there is no interest payable on the award, and in at least one sense passage of time before payment is to the advantage of the debtor. In any event, the Act does not give the scheme manager any discretion to reduce (or increase) the amount payable on the basis of delay or lapse of time.
The Limitation of Actions Act 1974 was referred to. It does not assist Ms Mitterbauer, because the present process is not an action or a legal proceeding. It would apply if the State were enforcing the order through the District Court under COVA, but in that event the relevant limitation period would be 12 years. In any event the present procedure is not such an action.
In summary, the matters that the Department is said to have failed to take into account in reduction of its payable amount are not matters relevant to the decision it was required to make under s 190(4).
It does not appear to be contested that the Department has provided all the information it is required to provide by s 189, and that there are no bars or credits under ss 187, 188, 190 or 191 that affect its right of recovery. While Ms Mitterbauer’s concerns are understandable, and I am grateful for the clear exposition and fair presentation of her case, I consider that the Department is entitled to pursue its rights under Subdivision 2 of Division 9 of Chapter 6 of VOCAA, and that Ms Mitterbauer is liable to pay the “payable amount”[10] as determined.
[10] VOCAA s 191(4).
Order
The determination of the scheme manager of 18 April 2012 upon the applicant’s notice of dispute of 2 April 2012 is confirmed.
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