Spinosa v Victim Assist Queensland - [2018] QCATA 3

CITATION:

Spinosa v Victim Assist Queensland [2018] QCATA 3

PARTIES:	Donato Spinosa (Applicant)
v
Victim Assist Queensland (Respondent)

APPLICATION NUMBER:

APL346-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

15 December 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Burke

DELIVERED ON:

4 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – Where appellant denied assistance under the Victims of Crime Assistance Act 2009 (Qld) – where original decision to refuse the application for financial assistance was confirmed – where appellant claims two grounds of appeal – where the appellant claims he was denied an oral hearing – where the appellant claims that the decision was made prematurely and without waiting for the Queensland Police Service to complete its investigations – where appeal only raises questions of law – where the appeal dismissed

Criminal Code Act 1899 (Qld), s 663D
Criminal Offence Victims Act 1995 (Qld) (repealed), s 46, s 46(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 20, s 142(1),
s 142(3)(b), s 147

Victims of Crime Assistance Act 2009 (Qld),
s 3(2), s 3(1)(c), s 159(1)(a)(i), s 54(2), s 149,
s 160(1), s 160(2), s 160(3)(a)(i), s 160(6), Chapter 6

Cachia v Grech [2009] NSWCA 232
Chandra v Queensland Building and Construction Commission [2014] QCA 335
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
House v The King (1936) 55 CLR 499
Kioa v West (1985) 159 CLR 550
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
R (West) v Parol Board [2005] 1 WLR 350
Spinosa v Victims Assist Queensland [2016] QCAT 345
Thomas v Attorney-General and Minister for Justice and Minister for Training and Skills [2017] QSC 308

APPEARANCES:

APPLICANT:

The Applicant represented himself.

RESPONDENT:

Mr B James, Victim Assist Queensland.

REASONS FOR DECISION

Mr Spinosa says that in 1995 he was the victim of an attack by a co-worker in the workplace. Some 13 years later, in 2008, Mr Spinosa reported the incident to the Queensland Police Service. Mr Spinosa applied for financial assistance from Victim Assist in 2015. Mr Spinosa’s application was refused. He sought a review of that decision in the Tribunal. The review application was heard on the papers on 26 September 2016. The decision of the Tribunal was to confirm the original decision by Victim Assist.[1] Mr Spinosa has appealed the Tribunal’s decision.
[1]Spinosa v Victims Assist Queensland [2016] QCAT 345.

The incident in 1995

In January or February 1995 Mr Spinosa was working as a labourer at a site in Brisbane.[2] A co-worker, referred to only as ‘Fernando’, suddenly and without warning picked up a steel bar and chased Mr Spinosa through the workplace. Fernando threw the steel bar at Mr Spinosa striking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCATA 3
Decision Date: 4 January 2018

CaseChat Overview and Summary

The appellant, Spinosa, appealed against a decision by the respondent, Victim Assist Queensland, which had refused his application for financial assistance under the Victims of Crime Assistance Act 2009 (Qld). The appeal was dismissed by the court, with the original decision to refuse the application upheld. The appellant argued that he had been denied an oral hearing and that the decision was made prematurely, without waiting for the Queensland Police Service to complete its investigations.

The court was required to determine whether the appeal was valid and if the grounds raised by the appellant were sufficient to warrant a review of the original decision. Specifically, the court needed to assess whether the refusal of an oral hearing constituted a procedural error and whether the decision to refuse the application was made prematurely without awaiting the completion of relevant police investigations.

The court found that the appeal only raised questions of law and did not involve any new evidence or material that could have affected the original decision. The court held that the appellant had not demonstrated any error in the original decision-making process, and that the refusal of an oral hearing did not constitute a procedural defect. Furthermore, the court found that the decision to refuse the application was not premature, as all necessary information was available at the time the decision was made. The appeal was dismissed as it did not meet the legal criteria for success.

No further orders were made by the court beyond dismissing the appeal.

Orders

Orders of the court

1. Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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