Mountford v Department of Justice and Attorney-General
[2013] QCAT 538
| CITATION: | Mountford v Department of Justice and Attorney-General [2013] QCAT 538 |
| PARTIES: | Ms Jennifer Mountford (Applicant) |
| v | |
| Department of Justice and Attorney-General (Respondent) |
| APPLICATION NUMBER: | GAR291-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 2 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the scheme manager made on 21 July 2011 is confirmed. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – where criminal compensation had been paid by the State – where State seeking to recover amount paid from an offender – where significant delay by State in seeking recovery – where claims made by offender of ignorance of compensation order having been made – where financial hardship Criminal Offence Victims Act 1995 s 38(1) Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159 |
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 (QCAT Act).
REASONS FOR DECISION
Ms Mountford was ordered by Judge Hall of the District Court at Southport on 3 February 2004 to pay Heath McPherson $70,500 by way of compensation for injuries suffered by him as a result of the commission of an offence for which Ms Mountford had been convicted on 19 January 2004.
Ms Mountford did not pay to Mr McPherson the money ordered by way of compensation. On 10 March 2004 the State of Queensland paid Mr McPherson $70,500 by way of his ordered compensation. The State now seeks to recover that amount from Ms Mountford.
The original order had been made by the District Court under the Criminal Offence Victims Act 1995. The payment of the compensation moneys by the State to Mr McPherson was also made under that Act. Under section 38(1) of that Act, the State acquired by way of subrogation all the rights and remedies of Mr McPherson against Ms Mountford. It was not until 2010 that the State sought to enforce those rights by seeking to recover from Ms Mountford the amount of $70,500.
By that time, the Criminal Offence Victims Act 1995 had been repealed and a new Act, the Victims of Crime Assistance Act 2009 had come into effect. However the new Act specifically provided that section 38 of the repealed Act continued to apply in relation to an amount of compensation paid by the State under the repealed Act.[1] The new Act set out an alternative method of recovery of the amount paid as compensation to the standard way to enforce a money order made by a court.
[1] Victims of Crime Assistance Act 2009 s 184(1).
Under that statutory method, the State is required to give a notice to the offender of its intention to recover the amount paid by the State by way of compensation to the victim of the offence. In this case the State gave notice to Ms Mountford on 29 September 2010 that it intended to recover the amount of $70,500 from her. The notice informed Ms Mountford of her right to dispute the amount sought to be recovered.
It later transpired that the recovery notice did not reach Ms Mountford and the State agreed to recall the September notice and issued another recovery notice on 22 March 2011. Information was provided on behalf of Ms Mountford that she was unable to pay $70,500, she had few assets, she owned no real estate and she was unemployed due to the imminent birth of her second child. It was submitted on behalf of Ms Mountford that recovery of the amount claimed would cause extreme hardship to her.
After considering that information, the decision maker on behalf of the State determined that there had been no dispute by Ms Mountford that any payment of the ordered amount of compensation had been paid by her to either the victim, Mr McPherson or to the State and that Ms Mountford had not disputed the amount that the State claimed it was entitled to recover from her.
The decision maker determined on 21 July 2011 that the State was accordingly entitled to recover the amount of $70,500 from Ms Mountford. An application has been made to QCAT to review that decision. Under the QCAT Act the tribunal has all the functions of the decision maker for the reviewable decision being reviewed and must produce the correct and preferable decision.[2] A compulsory conference was held at QCAT but the parties were unable to resolve their dispute over the reviewable decision.
[2] QCAT Act ss 19(c) and 20(1).
Written submissions were filed by the parties as to how the review should be conducted. Ms Mountford had asked for an oral hearing so that someone could explain to her why she cannot contest the recovery by the State of the compensation payment so long after the event. The original decision maker argued that a hearing should take place on the papers given the history of the review through the tribunal (including the holding of a compulsory conference and several directions hearings as well as the adjournment requested by Ms Mountford of an oral hearing in May 2013) and given that Ms Mountford had already filed all the evidence and submissions that she wanted to rely on in the review.
The tribunal decided that the hearing of the review would be conducted on the papers without an oral hearing. Ms Mountford had already had adequate opportunities to have explained to her the recovery process provided by the Victims of Crime Assistance Act 2009 during the various oral directions hearings and compulsory conference attended by her. An oral hearing had been vacated at her request and there was no argument put by her that it was reasonably likely that she could obtain useful and reliable evidence if there were to be some further delay in resolution of the review. All the likely evidence had been filed as well as her full submissions about the review.
The tribunal has conducted on the papers hearings of other reviewable decisions under that Act and in doing so was able to comply with the objects of the QCAT Act and the obligations in sections 28 and 29 of the QCAT Act. The tribunal would provide and publish comprehensive written reasons for the decision reached in the review and that would be an adequate way of providing some final explanation to Ms Mountford about the recovery process under the Victims of Crime Assistance Act 2009.
Ms Mountford has submitted that the decision to recover $70,500 from her was wrong and should be set aside. She submitted that she had been ill advised by her lawyers to plead guilty to the offence in 2004. She stated that she had been advised by her lawyers that she would not have to pay criminal compensation as the State would pay what was ordered. She submitted that she was later deprived of an opportunity to appeal the compensation order due to notification of the order being sent to an incorrect address so she did not receive that notification. Ms Mountford submitted that it was arguable that the compensation order was not legally made due to her ignorance of the compensation application having been made and then having been decided by the court until 2011.
Ms Mountford also submitted that Mr McPherson owed her $31,000. She stated that she had been prevented due to ignorance of the compensation order being considered and made in early 2004 from arguing a set off against the compensation order for the amount of the debt owed to her.
Further submissions were made by Ms Mountford that she had paid regular amounts of money to Mr McPherson amounting to $5,000 during 2004 and 2005 due to his threats that he would sue her if she did not pay moneys that he had demanded. Ms Mountford submitted that there were witnesses who saw her make these payments but she was no longer aware of their contact details and could not obtain statements from them.
Ms Mountford submitted that the delay of seven years in the State taking action to recover the paid compensation from her has deprived her of an opportunity to repay during years when she had been working and did not have children to support. She submitted that the amount of compensation awarded to Mr McPherson was excessive. She is unable to pay and would be subjected to financial hardship if required to pay $70,500 to the State.
Ms Mountford also submitted that she had not committed the offence for which she had been convicted but that she had pleaded guilty to save costs. She submitted that she is now deprived of an opportunity to appeal the conviction in order to have grounds to set aside the compensation order.
The decision maker is required to help the tribunal so it can make its decision on the review.[3] The decision maker has made submissions to the tribunal that the preconditions for recovery under the Victims of Crime Assistance Act 2009 have been satisfied. A notice under section 189 of that Act was given to Ms Mountford and she responded to that notice. The decision maker submitted that the dispute provisions in section 189 and 190 of that Act provide a narrow basis for disputing the amount that the State seeks to recover.
[3] QCAT Act s 21(1).
I have considered the provisions in that Act that would need to be established in order for the recovery to proceed. In essence, I must be satisfied that an amount of $70,500 was paid to Mr McPherson by the State on account of the compensation order made against Ms Mountford and I must be satisfied that no amount of money has already been received by the State in part payment of the money sought to be recovered.
I find that Ms Mountford does not dispute that $70,500 was paid to Mr McPherson by the State in 2004 under section the Criminal Offence Victims Act 1995. I find that the State has provided satisfactory documentary evidence for me to conclude that the payment of $70,500 had been made on 10 March 2004 to Mr McPherson.
I find that Ms Mountford does not claim that she has paid any of that amount to the State in part payment of the compensation award. She claims she had paid some moneys amounting to $5,000 to Mr McPherson but she does not claim those payments constitute part payment of the compensation award as she has given evidence that she was ignorant of the making of that award until 2011. I find that no part of the compensation paid by the State has already been received by the State and that the State is entitled to recover $70,500 from Ms Mountford.
The submissions made by Ms Mountford did not dissuade me against reaching these conclusions as her submissions were frankly not relevant to the issues to be decided. The tribunal cannot go behind or set aside the order made in the District Court in 2004 regardless of whether or not Ms Mountford had been properly informed of the compensation application at that time. There is no factual or legal basis open to the tribunal to permit any payments allegedly made to Mr McPherson by Ms Mountford in 2004 and 2005 to be off set against the subrogated entitlements of the State to recover the amount of compensation paid by the State to Mr McPherson. The State paid out $70,500 and can recover $70,500.
The delay by the State between 2004 and 2010 or even 2011 in taking steps to recover moneys from Ms Mountford is regrettable but does not provides any basis to disentitle the State from recovering the amount sought by it. It is in the public interest for the State to recover moneys to which it is entitled by law. The tribunal has previously determined that the significant delays do not give rise to a loss of the entitlement of the State to recover compensation paid under the Victims of Crime Assistance Act 2009.[4]
[4]Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159.
The factors entitling recovery as set out in the relevant legislation have been established to my satisfaction and I am satisfied that the recovery decision is the correct and preferable decision. The decision made by the scheme manager on 21 July 2011 is confirmed.
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