Victim Assist Queensland v BN
[2012] QCATA 254
•3 December 2012
CITATION: Victim Assist Queensland and Anor v BN [2012] QCATA 254
PARTIES: Victim Assist Queensland, Department of Justice and Attorney-General
(First Applicant)
Attorney-General for Queensland
(Second Applicant)v BN (Respondent)
APPLICATION NUMBER: APL237-12
MATTER TYPE: Appeals
HEARING DATE: 17 October 2012
HEARD AT: Brisbane
DECISION OF: Justice Alan Wilson, President
John Jerrard QC, Member
Nathan Jarro, Member
DELIVERED ON: 3 December 2012
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is granted.1.
The Appeal is allowed and the orders made 1 July 2012 (and modified on 5 July 2012) are set aside.2.
.for reconsideration in accordance with the matters described in these reasons, and the Tribunal is to be constituted by a different Member from the Member who made the decision appealed against or the Members who heard this appealBN’s application for review of the decision made by Victims Assist Queensland on 18 April 2012 be returned to the Tribunal 3.
CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE APPEALS TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Respondent applied for financial assistance based on ‘exceptional circumstances’ under the Victim of Crime Assistance Act 2009 – where the First Appellant refused the application – where the Respondent applied for review of the First Appellant’s decision – where the Tribunal found that the Respondent was entitled to financial assistance based on ‘exceptional circumstances’ – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009, ss 41, 42
Victims of Crime Assistance Act 2009, ss 28, 38, 39BN v Department of Justice and Attorney General (Victim Assist Queensland) [2012] QCAT 283
APPEARANCES and REPRESENTATION (if any):
APPLICANT: April Freeman for First Applicant
Dr Gerard Sammon for Second ApplicantRESPONDENT: Elizabeth Gass REASONS FOR DECISION
Justice Alan Wilson, President
[1] I have had the advantage of reading the reasons of Mr Jerrard QC in draft. I agree with them and with the conclusions he reaches and the orders he proposes.
Nathan Jarro, Member
[2] I have also had the advantage of reading the reasons of Mr Jerrard QC in draft. I also agree with them and with the conclusions he reaches and the orders he proposes.
John Jerrard QC, Member
[3] This matter is an application for leave to appeal, and an appeal, against orders made by this Tribunal on 1 July 2012, and modified on 5 July 2012, in favour of the respondent BN. The first applicant, Victims Assist Queensland (‘VAQ’), was a respondent in the proceedings brought by Ms BN in this Tribunal, in which BN sought to review a decision of VAQ made on 18 April 2012[1], refusing the Applicant’s request for financial assistance to travel to Canada with an escort to attend a rehabilitation course and receive treatment for BN’s diagnosed post traumatic stress disorder. After a hearing conducted in [ … ] on 20 June 2012, a Member of this Tribunal made orders in the respondent’s favour, and VAQ filed an application for leave to appeal or appeal and an application for a stay on 25 July 2012. The second applicant, the Attorney-General for Queensland (‘A-G’), intervened as of right[2], and on 28 September 2012 the A-G applied for leave to be joined as a party in the appeal[3] and for leave to be represented. On 2 October 2012 a Senior Member of this Tribunal made orders giving the A-G leave to be joined as an applicant in the proceedings and for all parties to be legally represented, as indeed they were on the hearing of the argument in the appeal.
[1]The original decision was made on 31 May 2011. That decision was subject to an internal review, the outcome of which was a decision dated 16 August 2011. BN then applied to the Tribunal for an external review, and on 7 February 2012 a Member of the Tribunal directed that the VAQ reconsider their decision. The outcome of this was a decision dated 18 April 2012.
[2] Pursuant to s 41 of the Queensland Civil and Administrative Tribunal Act 2009.
[3] Pursuant to s 42 of the Queensland Civil and Administrative Tribunal Act 2009.
[4] The judgment under appeal records, in [10] thereof, that the respondent had been assaulted by a named person on or about 27 June 2007; had suffered physical injuries and emotional trauma as a result of that assault; had received therapy and counselling for the emotional trauma, initially from a psychologist, Ms Denise Jeffrey, and a psychiatrist at Queensland Mental Health, and then from August 2010 from a Ms Jo Chibnall, a psychologist practising in Cairns. The Member described those as undisputed facts, and there was no challenge to those as undisputed facts on this appeal. Likewise, there was a very limited challenge to the other facts, as found by the Member, that the respondent had been diagnosed with post traumatic stress disorder after the assault, identified as an Indigenous Canadian, had not received successful treatment for BN’s post traumatic stress disorder through the clinical treatments provided to BN, and had suffered psychological trauma in the past by reason of:
(i) A motor vehicle accident;
(ii) A sexual assault in or about 2005.
[5] The respondent lodged an application with VAQ on 10 May 2010 requesting various forms of assistance under the Victims of Crime Assistance Act 2009 (‘VA Act’), describing the assault committed on BN by the named person in June 2007, and seeking various forms of assistance. One in particular, relevant to these applications, was described in the printed form as ‘Exceptional Circumstances’. The provisions in the printed form invite applicants for ‘Exceptional Circumstances’ assistance to describe, at page 8 of the pre printed form, why ‘your circumstances are exceptional’.
[6] BN completed the appropriate box in that form with the following statement:
· Need to go overseas to Canada to see family and spend time with Counselling and getting strong support and distancing myself from Australia, as reminders of assault and threats sometimes/often feel like living in nightmares. Feel scared.
· As I live in close proximity to incident I have been threatened by family and relatives. Close family Phillip Baru made threats to kill me and made a false allegation to government and police to cause me distress and harassment.
· I need legal representation.
· I want an apology from the Cape York Land Council and Phillip Baru.
[7] On 31 May 2011 the Applicant’s then solicitors, Campbell Law, were given a notice of the result, which was a decision to give BN a number of forms of assistance, but to reject BN claims for loss of employment and for travel to Canada. Various categories of financial assistance had been approved for BN, but BN’s request for financial assistance for loss of earnings, and for travel expenses to Canada, had been refused. A statement of reasons was attached, which referred to the contents of a letter to VAQ dated 29 September 2010 from Ms Chibnall in which she advised VAQ that BN had informed her that the mainstream therapy available in the Cairns and [ … ] area, and in fact in all of Australia, was not appropriate for BN and that BN was in need of a traditional healing model that was available in Canada. The statement of reasons also quoted BN’s advice to Ms Chibnall that the relevant therapy was the only one appropriate for
BN, that BN identified as an Indigenous person due to BN’s ancestry and upbringing in Canada and that BN had researched the applicability of the traditional healing model therapy to Indigenous people. Ms Chibnall had indeed written to VAQ giving that advice and further reporting that BN had told Ms Chibnall that both BN and a Mr Gordon Charlie had been accepted for treatment with the Nechi Training, Research and Health Promotions Institute in Canada.
[8] That letter from Ms Chibnall continued:
BN is adamant that this therapy is the only one appropriate for the Applicant and Mr Charlie. I have advised BN that I am willing to provide only mainstream therapy in regard to the traumatic events, and/or provide supportive therapy in regard to current stressors. I am hopeful that such therapy will at least maintain my client’s current level of functioning and possibly improve BN’s functioning in some ways, however, I am not confident that BN will make a full recovery within the paradigm of mainstream therapy. If BN does decide to continue with me, I will advise if/when the Medicare-funded sessions run out, so we can apply for further therapy from Victims Assist, unless of course, there is a time limit on such application. If so, could you please advise me.
[9] The reasons for refusal for the decision made on or about 31 May 2011 (to refuse the claim for the cost of travel to Canada) included the following statement:
I am not satisfied that Ms Chibnall nor a medical practitioner has recommended the traditional healing model located in Canada.
That advice quoted Ms Chibnall’s observations that Ms Chibnall was willing and able to provide only mainstream therapy and was hopeful that her treatment of BN would at least maintain and possibly improve BN’s functioning in some ways. The reasons then remarked that it was considered (by the decision-maker) that ‘there are more appropriate counselling services in Queensland’. The advice then observed that the decision-maker considered BN had not established (on the balance of probabilities) that BN’s circumstances were exceptional to satisfy the requirements of s 28 of the VA Act[4], and that there was insufficient medical advice that attending counselling/healing sessions at the Nechi Training, Research and Health Promotions Institute in Canada would significantly assist BN to recover from the act of violence.
[4]i.e. that the nature of the act of violence for such that it had an unusual/special rather than the ordinary effect on BN.
[10] It is appropriate at this stage to set out the relevant provisions of the VA Act. These include:
38 Amount of assistance
(1) A primary victim of an act of violence may be granted assistance of up to $75000.
(2) Also, in addition to the assistance mentioned in subsection (1), the primary victim may be granted assistance of up to $500 for legal costs incurred by the victim in applying for assistance under this Act.
39 Composition of assistance
The assistance granted under section 38(1) to a primary victim of an act of violence may consist of 1 or more of the following components—
(a)reasonable counselling expenses incurred, or reasonably likely to be incurred, by the victim as a direct result of the act of violence;
(b) reasonable medical expenses incurred, or reasonably likely to be incurred, by the victim as a direct result of the act of violence;
(c) reasonable incidental travel expenses incurred, or reasonably likely to be incurred, by the victim as a direct result of the act of violence;
(d) reasonable report expenses incurred by the victim for the victim’s application for assistance (including expenses incurred for an examination under section 73);
(e) loss of earnings of up to $20000 suffered, or reasonably likely to be suffered, by the victim, as a direct result of the act of violence, during a period of up to 2 years after the act of violence;
(f) expenses incurred by the victim for loss of or damage to clothing the victim was wearing when the act of violence happened;
(g)if exceptional circumstances exist for the victim, other expenses incurred, or reasonably likely to be incurred, by the victim to significantly help the victim recover from the act of violence;
Examples of other expenses—
• relocation expenses
• costs of securing the victim’s place of residence or business
(h)special assistance in relation to the act of violence.
[11] On 21 March 2011 Campbell Law wrote to VAQ, advising that they were acting for BN in relation to BN’s Victims Assist application, and attaching various documents. Those documents included a copy of the letter of Ms Chibnall dated 24 September 2010, which the solicitors described as:
…recommending that BN attend the Nechi Training, Research and Health Promotions Institute (1 Poundmaker Road St Alberta, Alberta) for an indigenous method of healing and training which BN considers will be a more effective manner of treatment than western counselling or other psychological treatment. We are instructed to seek that such assistance be considered as an exceptional circumstance application.
[12] The letter containing the statement of reasons, dated 31 May 2011, was addressed to the solicitor at Campbell Law handling the matter, a Ms Lani Carter. On 7 July 2011 those solicitors wrote to VAQ asking for a reconsideration of the decision to refuse a grant in relation to treatment to be undertaken at the Nechi Training, Research and Health Promotions Institute in Canada. The solicitor’s letter attached a letter from the Nechi Training, Research and Health Promotions Institute addressed ‘To whom it may concern’, which advised that
Nechi is an Indigenous Accredited Training Facility. We train our counsellors in a setting which is experiential and includes traditional teachings and ceremony. Our training is one of a kind in the world.
[13] The letter also stated:
BN and Gordon Charlie have requested to attend Community Addictions Training and Community Wellness Training. Once they have completed the application process we can provide them an acceptance letter to take to training. Application and tuition information is also listed on our website which is with the request for reconsideration was a letter from Ms Chibnall dated 6 July 2011, which said:
In summary, I strongly recommend that funding be approved for BN to attend the holistic, culturally appropriate intervention in Canada that BN has applied for.
[15] On 21 July 2011 the Team Leader responsible for conducting the internal review of BN’s application spoke with BN’s solicitor, Ms Carter, and advised they had checked the Nechi Institute website and had noticed that ‘there is no mention of treatment, only training programs for people with addictions or for helping treat people with addictions’. The Team Leader referred to an earlier conversation with Ms Chibnall in which Ms Chibnall had advised the team leader that BN had provided Ms Chibnall with ‘reams’ of material some 12 months earlier, and that Ms Chibnall had read it and thought it would be an appropriate forum for BN. The Team Leader and solicitor agreed that the solicitor obtain copies of relevant material, if possible, from BN. On 3 August 2011 the solicitors forwarded a transcript of a ‘Community Public Consultation Meeting’ held on 27 July 2010 at St Albert, Alberta, in which was recorded what happened at a public meeting held for the purposes of obtaining local council approval of a lodge being located in a residential setting. The solicitor advised that ‘I think it provides further detail of the type of counselling and activities undertaken and the fact that it is a culturally appropriate form of therapy/healing.’
[16] That transcript comprises 37 pages of carefully typed material, and records the statements made by various speakers. They described the Poundmaker lodge as ‘Canada’s first addiction treatment centre specifically for Aboriginal clients’, named after a Chief Poundmaker, who lived in Saskatchewan in the 1800s. The lodge was said to be internationally renowned for helping Indigenous people overcome addictions, and it combined best practices in addictions; ‘what that means is that it combines what the western world says is a good treatment program with traditional and cultural approaches to wellness’.
[17] That speaker was the ‘Executive Director’ for Poundmaker lodge, who said further that:
We have group therapy; we have lectures; we have assignments; and we help them with their aftercare which means we try and prepare them for when they get discharged and how to get connected to community supports.
Emotional: Group counselling. We get them to do a lot of journalling. One-on-ones with their counsellor and the staff that are working here. We have a psychologist that comes to help. This is an example of one of the client counselling rooms. You notice there’s Kleenex in the middle because they do a lot of crying. If you don’t cry by the time you leave, you didn’t do your job. And as you can see, there’s -- on the top right hand corner, some there’s arts and crafts.
So physical, leisure and recreation, healthy eating, active living, medicentre visits. We have a lot of clients that come in with various problems, so we do have – give them access to the medicentre.
This gym is an example of the foresight of the people who built this lodge. You can’t even notice that there is a gym outside because the building is built into the ground. If you’re driving all the way around, you’ll never know there was a gym. This is a full-sized gymnasium which allows us to offer the best in recreational activities to our clients. And if you might have noticed, some of the clients were playing baseball on your way in to the right.
So spirituality: You could say that this is the foundation of the program. A lot of clients come in. They don’t know – they don’t recognise their own spirit. They may not be traditional, they may not be Aboriginal, but when they leave, they leave with a sense of spirit inside of them.
Examples are daily cleansing through prayer. It’s a smudging ceremony. Weekly pipe and sweat lodge ceremonies. At the back of the building, the field, there’s a sweat lodge there. There’s two of them, one female and one co-ed.
We have culture teachings from an in-house elder as well as visiting elders. Sage and sweet grass picking in summer, so we do take clients off the grounds to do some herbal picking. And then teachings from a cultural coordinator.
When you enter the building, there’s this great big circle room. That’s our sacred room. So a lot of our ceremonies are held inside there, our morning prayer and our evening prayer.
So, Poundermaker’s [sic] is involved in the community, not just the aboriginal community but the community at large, and we try to provide a lot of activities for the clients and for the community to be involved. So these are some of the examples. We do a round dance every November right here in the gym. We have candlelight vigil. That’s to recognise all those who passed away from addictions.[5]
[5] At pages 11-13 of document 40 in the first applicant’s ‘table of contents’.
[18] Someone has noted (presumably the decision-maker), in biro, on 2 pages of the transcript of that meeting, document 40, that:
These cultural activities would obviously not be available in Australia but nothing here suggests this treatment would assist dealing [with] post traumatic stress disorder etc from an assault. Insufficient evidence of how the treatment would help re assault etc.[6]
On another page, the notation appears ‘This is not revolutionary or different of itself. The key seems to be it’s part of a program about addictions.’
[6] At pages 13-14 of document 40 in the first applicant’s ‘table of contents’.
[19] On 16 August 2011 VAQ (via the assessment team leader) wrote to BN at BN’s address in [ … ], advising of the assessor’s decision to refuse financial assistance in relation to the ‘component of Other expenses and exceptional circumstances’[7]. That statement of reasons relevantly said:
3. Ms Jo Chibnall, clinical psychologist, in a report of 6 June 2011, indicates that your condition has not responded to treatment and that there is a greater likelihood of success through a traditional healing model available at the Nechi Institute in Canada.
[7] Document 42 in the first applicant’s ‘table of contents’.
[20] The date referred to, 6 June 2011, was an error. It was 6 July 2011. Ms Chibnall’s letter of 6 July 2011 had strongly recommended funding for BN to attend the Institute in Canada and had stated that ‘mainstream treatment’ available in this country had not ‘significantly reduced’ BN’s symptoms. Accordingly the decision-maker’s statement of reasons was a reasonable conclusion to draw from what Ms Chibnall had advised, although it misstated the date.
[21] The statement of reasons went on:
4. The evidence provided by your solicitors in relation to the traditional healing model and its suitability to your circumstances, namely an abstract for a study entitled ‘Culture and Treatment; Culture as Treatment’ and a transcript of Poundmaker’s Lodge Community Public Consultation Meeting, does not provide sufficient detail about the type of treatment and how it would benefit you, particularly since that material focuses exclusively on how the traditional healing model and the courses offered by the Nechi Institute address addictions.
5. While I am prepared to make a finding that the medical evidence as a whole suggests the act of violence has had an unusual, special or out of the ordinary affect on you (on the basis that you have undergone significant treatment over several years without any apparent improvement in your condition), I am not satisfied that the expenses claimed (being the costs of flights to Canada for you and an escort) are reasonable in all the circumstances of the case. This is because the proposed treatment does not appear to be suitable to your injury and therefore the cost of travel to undergo that treatment cannot be said to be an expense that will significantly help you recover from the act of violence.
6. In any event, even if the treatment could be adapted to your needs, there is no evidence as to the likelihood of its success. I am not satisfied that it would be reasonable to fund your travel to attend what appears to be, in your circumstances, an experimental course of treatment with no known record of assisting patients suffering from PTSD.
7. In summary, I am not satisfied that the condition you suffer (PTSD) can be adequately treated by travelling to Canada to undertake addictions courses at the Nechi Institute, and consequently the cost of travelling to Canada is not an expense that will significantly help you recover from the act of violence.
[22] BN replied on 2 September 2011 to Victims Assist Queensland, criticising the decision-maker for not having sought more information from the Poundmaker Lodge about treatment for BN, and successful treatment of others, ‘in my circumstances and trauma’. BN also applied, on or about 12 September 2011, for a review of the decision of 16 August 2011, to be conducted by this Tribunal.
[23] On 26 October 2011 this Tribunal directed that the then respondent (VAQ) file in the Tribunal (and send a copy to BN) an indexed and page numbered bundle, in date or other logical order, of the documents and other material in the respondent’s possession or under its control, which were relevant to the Tribunal’s review of the decision made on 16 August 2011. That respondent helpfully produced a document headed ‘Table of Contents’, which listed documents in chronological order, beginning with those relevant to what was called a ‘General Application’, then those relevant to ‘Internal Review’, and then those in Part 3 headed ‘External Review’. That respondent also provided copies of each of those chronologically numbered documents.
[24] On 24 November 2011 BN provided an affidavit, headed ‘Affidavit of Service’. In [3] thereof BN wrote ‘QCAT please review the decision of Victims Assist decision to refuse me other expenses exceptional circumstances’. In that paragraph, BN correctly identified the basis of the decision BN wanted reviewed, namely that it was a decision made under s 39(g) of the VA Act.
[25] The essence of the argument that BN made in that affidavit was that the
…North American model of Indigenous healing is more advanced than in Australia and is recognised by mental health Canada to treat post traumatic stress disorder that is helping not only Aboriginal people, but others with PTSD.
[26] In that affidavit, BN objected to the description in [6], in the statement of reasons for the decision given on internal review (on 16 August 2011), namely that BN was asking funding to attend what appeared to be ‘an experimental course of treatment with no known record of assisting patients suffering from PSTD.’
[27] Further, in BN’s affidavit BN said in [7], inter alia, that
Our native people have for centuries healed people through these methods. This refusal is clearly ethnocentric and is breach of section 9 of the [R]acial [D]iscrimination [A]ct as a characteristic of my nationality as a [F]irst [N]ations [I]ndigenous affiliate, which is to look at the world different from mainstream limited views. I encompass the ancestoral [sic] spirits and relating factors. The ceremonies run by chiefs and community is a different approach to counselling and linear methods that do not encompass the healing circle of our ancestors. Unless you can bring the healers to Australia and spirits, I am trying to explain that the only place I get healing from the trauma experienced by the assault in 2007 is to attend to my country of birth and community centred healing with aboriginal healers working together with professionals and the community as a whole in assisting with healing.
[28] That affidavit advised, in [8], that BN would no longer seek assistance with the Nechi Institute, but instead would opt to attend the healing program at the Eyaa-Keen Centre Incorporated, in Canada. This program would be for a period of ten days with a four day follow up, running from July 6 2011-July 15 2011, in accordance with a letter received from the Eyaa-Keen Centre on November 7 2011 (marked with the letter ‘AB’) and a further letter received on November 9 2011 (marked with the letter ‘AB-1’).
[29] Those letters dated November 7 and 9 2011 from the Eyaa-Keen Healing Centre Incorporated (in Manitoba, Canada) each refer to a letter from BN to the Centre ‘dated October 30 2011’, and providing information about BN and Mr Gordon Charlie to that centre, and requesting services from the centre for those two people. The letter dated 7 November includes the following statement:
After reviewing information and speaking with you, we are recommending that you and Mr Charlie consider attendance and participation in our annual ten day session titled Highway of Life. The ten day session is the most comprehensive of the residential sessions that we offer and will provide the fullest opportunity for you to address your treatment needs. We can schedule 3 to 4 one hour phone sessions as follow-up after the ten day.
[30] It goes on:
We are internationally accredited by CARF International and are a Health Canada recognised Mental Health service provider. Our Aboriginal Traditional based behavioural health treatment programs have been successful in treating people who suffer from trauma, major loss, PTSD effects of abuse, violence including the Legacy of Indian Residential Schools (Canada’s Stolen Generations) and History Trauma.
[31] That affidavit also annexed part of an abstract by two Canadian authors, which (at page 18 thereof) criticises the term post traumatic stress disorder, preferring the description ‘post-traumatic stress response’, and contending that that term more accurately reflects ‘the diagnostic criteria of the diagnosis and is a more respectful term for use with both individuals and communities.’
[32] That affidavit filed 24 November 2011 annexed to it a copy of a referral by psychologist Jo Chibnall, dated 26 October 2011, of BN to the Eyaa-Keen Healing Centre Incorporated, at 547 Notre Dame Avenue Winnipeg, Canada. That referral advises that BN:
…has been receiving assistance from me in regard to Post Traumatic Stress Disorder since August 2010. Unfortunately, the therapeutic model I work from has not been adequate to address BN’s needs. In recent months BN has made me aware of the holistic model suitable for working with Indigenous individuals, that you provide. As I have not been able to find anything similar in this country, I am referring BN to your facility for treatment.
[33] On 29 November 2011 this Tribunal ordered, at a compulsory conference, that VAQ reconsider its decision to refuse financial assistance to BN for travel to Canada with an escort to attend a rehabilitation course and receive treatment for diagnosed post traumatic stress disorder, and further ordered that time not run in relation to that reconsideration until specified steps had been undertaken. Those steps required BN to provide VAQ with an authority to speak to or communicate with the proposed rehabilitation provider and authorise that provider to release information to the VAQ. Further, VAQ was to be authorised to obtain information from the rehabilitation provider in relation to any relevant matters including:
(i) the type of treatment proposed;
(ii) expected outcomes of the proposed treatment;
(iii) the cost of the proposed treatment;
(iv) any recommended follow up from the proposed treatment; and,
(v) an example of the typical rehabilitation program provided by the organisation.
[34] In addition, BN was to provide VAQ with details of the travel, accommodation and any other costs that BN proposed claiming in relation to the trip, as financial assistance, and BN was to provide, in relation to BN needs for an escort, evidence of the following matters:
(i)the need for an escort;
(ii)the name of the proposed escort;
(iii)evidence of the proposed escort’s consent to act in the capacity; and,
(iv)evidence of the proposed escort’s ability to act in that capacity.
[35] Those directions specified that the evidence of the proposed escort’s ability should include evidence from the escort’s general practitioner on his ability to undertake the proposed trip as carer for BN. This resulted in the Tribunal receiving (via the parties) opinions from a Dr Myhill, regarding Mr Charlie; psychologist Jo Chibnall, regarding BN; a Dr Jackman, regarding BN; and from a Dr Duffy, regarding Mr Charlie, to the effect that Mr Charlie was in sufficiently good health to accompany BN to and from Canada, and was the most appropriate person for that role. Those advices also contended that BN would benefit from at least 2 overnight stops on the journey to and from Canada (each way), and should not travel alone.
[36] Eventually, on 18 April 2012, the first applicant published its reconsidered decision and a statement of reasons for that decision. That statement of reasons declared that:
In my internal review decision of 16 August 2011, I determined that there was sufficient evidence that the act of violence has had an unusual, special or out of the ordinary affect on you (the threshold requirement indicating that exceptional circumstances exist for an applicant). That decision has now been rescinded in accordance with the QCAT Direction.
[37] The decision went on to advise that the decision-maker had
…closely reviewed the Act and determined that treatment you are seeking from Eyaa-Keen Healing Centre Inc. is properly categorised as either medical or counselling treatment and does not fall within the other expenses exceptional circumstances component.
[38] The decision-maker stated that both BN’s expectation of Eyaa-Keen, and Eyaa-Keen’s own mission, was to provide treatment in order to heal victims of trauma, and that was consistent with the concept of ‘treatment’ contemplated by the medical and/or counselling expenses components in the VA Act, as opposed to the exceptional circumstances component. As a matter of policy, VAQ considered that it was contrary to both the legislative intention and explicit provisions of the VA Act to use the exceptional circumstances component where an expense was more accurately described as a medical or counselling expense. The decision-maker advised that it was not considered necessary to determine whether the treatment that BN sought was properly categorised as ‘medical’ treatment or ‘counselling’ treatment, because in either event the decision-maker was not prepared to grant financial assistance for those expenses on the basis that they were not ‘reasonable expenses’ within the meaning of s 39 of the VA Act. The reason for that conclusion was said to be:
·The total cost quoted by Eyaa-Keen in a letter of 5 January 2012 was $12,100, which was not ‘a reasonable counselling or medical expense’ in the circumstances of BN’s case.
·The treatment cost included $5,250 for BN’s escort to participate in the program ‘so that he may understands the process and can support you upon your return to Australia.’ The decision-maker considered that that was not a reasonable cost for a taxpayer funded scheme to bear, and did not amount to expenses incurred ‘by the victim’, within the meaning of s 39 of the VA Act.
·The decision-maker was not convinced that there was no prospect for BN to obtain treatment in Australia, and information provided by the Eyaa-Keen Centre Incorporated about its program suggested that numerous aspects of the program were similar to treatment offered by Indigenous focussed organisation in Australia for example programs run by and designed for Aboriginal people.
·Any injury related to the relevant act of violence was an exacerbation of a previous injury (presumably arising from the sexual assault of 27 June 1995 and the motor vehicle accident which occurred on an unspecified earlier date), because a letter from Eyaa-Keen Centre Inc. dated 5 January 2012 stated ‘we understand BN to have PTSD as a result of being assaulted. This has been compounded by trauma BN experienced previously in BN’s life’. The decision-maker advised that Victim Assist Queensland only provided assistance in relation to treatment for injuries arising directly from the act of violence.
[39] Those reasons for the decision made on the reconsideration reveal a change of position by VAQ. It was contending that the cost of travel to Canada for treatment there was within the definition either of ‘counselling’ or medical expenses contained in s 39(a) or (b) of the VA Act, and accordingly not properly considered under s 39(g) as ‘exceptional circumstances’ and ‘other expenses incurred’.
[40] The email of 5 January 2012 from the Eyaa-Keen Centre Incorporated sent to the team leader at Victim Assist Queensland included answers to questions asked about BN, by Victims Assist Queensland. The questions and answers read as follows:
1. What do you understand to be BN’s medical condition/complaint?
From what BN has explained to us regarding the incident and how it has affected BN, we understand BN to have PTSD as a result of being assaulted.This has been compounded by trauma BN experienced previously in BN’s life.
2. Is Eyaa-Keen Centre able to provide treatment for BN’s condition?
Yes, Eyaa-Keen Healing Centre specialises in trauma treatment including PTSD. Our behavioural health program is internationally accredited by CARF (Commission on Accreditation Facilities). Additional printed material is attached for reference: Eyaa-Keen Brochures; CARF Accreditation Summary, Client Impact Assessment Summary and tables – which provides outcomes that occur as a result of healing trauma including PTSD.
3. Could you outline the program of treatment you are offering BN and the components of a typical five day treatment program (in the event of any variation between the two)?
We have recommended that BN participate in ten day intensive treatment session – not five day.All treatment includes daily assessment / self evaluation / observation; teachings to understand trauma work / healing / change / strengthening, applying the disciplines integrated in this individualised self-care / management disciplines which are applied daily.This is a daily cycle, building on previous sessions.Maintenance plan upon completion.Four follow up sessions are to be conducted by telephone (and skype if possible) after completion of the 10-day session.Outcomes vary due to complexity of trauma and ability to apply disciplines.
4. How tailored is the treatment program offered by Eyaa-Keen?
The treatment program is client led and BN will have an opportunity to provide additional information on BN’s situation and the treatment goals or outcomes that BN is striving to achieve.BN has already explained that the effects of the incident are such that BN finds it challenging to do many of the regular day to day things that were not an issue previously.We are confident that one of BN’s goals is to overcome the debilitation that the incident has caused in BN’s daily life.
5. At what point does the tailoring of Eyaa-Keen’s programs take place (e.g. do you have a personalised treatment plan for BN based on the information presently available to you or is it necessary for you to meet a client and conduct an assessment of their injuries/circumstances before you tailor their treatment program)?
The program provides treatment two-fold – first information and instruction is provided to all participants as a group.Second, during the many ‘sharing’ opportunities, treatment is tailored to each individual in a group based on the individual needs.This is on-going throughout the session.
There is a written application that will provide detailed info on BN’s situation and needs. In addition, we typically would meet with a potential participant prior to the group session for assessment and to determine their needs and severity of their condition. With BN coming to Winnipeg a few days before the session, it is our intention to meet with BN during that time period. Assessment would occur numerous times throughout the process. The first is the initial inquiry from BN. The second is the assessment and intake via phone where detailed info will be gathered and we can see how they fit. The third is done at the session via written treatment plan. Fourth is an oral expression that shows that they can express what they want and we know exactly how to help them.
6. Have you also been requested to provide treatment to Mr Gordon Charlie or only to BN?
We understand that Mr Charlie has also been a victim of violence and we are willing to provide services to him.However in this instance, we understand his role to be that of support person.
7. Does BN require an escort to attend Eyaa-Keen Centre with BN? If so, please explain the role of the escort in your treatment of BN and type of person who would be appropriate to fill this role?
We recommend that that [sic] an escort be provided to BN given the condition BN is experiencing and taking into account the distance and the length of time BN will be travelling.We understand Mr Charlie is able to fulfil this role as he is an Elder.He will be in attendance at the session and will undergo same screening and will participate in all activities that BN participates in.This is so he understands the process and can support BN upon their return to Australia.
8. Have you been provided with BN’s medical records/evidence relevant to BN’s current condition, or is the basis for your treatment offer BN’s self reporting? In the absence of medical evidence, could you please explain how you can be sure BN’s is suitable for treatment at Eyaa-Keen Centre?
BN has provided information regarding the incident by way of detailed questionnaire BN completed.Also referral from BN’s Clinical Psychologist recommends an Indigenous model.
9. Please advise the cost of the treatment program, any additional cost that BN’s should be aware of or any incidental costs that your patients routinely accrue when attending Eyaa-Keen Centre for treatment?
Cost for the session is $5,250.00 per person – this includes training fee and meals/accommodations while onsite for the group sessions.Cost for Mr Charlie is same as for BN as he will be staying onsite and involved with the group session activities.The centre provides transportation from the Centre in Winnipeg to the training centre location and back.Session fees – 2 people at $5,250 each = $10,500
Follow up phone sessions: Four sessions per person at $200 per session = $1,600
Total - $12,100
[41] On 1 May 2012 BN emailed the VAQ[8] asking the Tribunal to ‘relist this decision for another compulsory conference’, and asserting that even though BN had experienced a previous ‘issue’ and BN’s car accident was in 1984, BN was able to function up until the time of the assault in 2007. BN advised that:
I was able to assist Gordon Charlie and others at Hopevale as a community worker; I was able to go to Hopevale and compile complicated material for the lawyer that I had appointed. Since the assault, I have not been able to feel safe going to Hopevale; the lawyer has quite [sic] due to my anxiety and depression at not being able to continue my work at Hopevale in a conducive manner. I have not been able to continue with my studies and also I have not been able to work as a teacher that I had been doing before this assault. I feel that this injury of PTSD is a direct result of the assault resulting in grievous bodily harm done to me at Hopevale in 2007.
[8] Document 101 in the first applicant’s ‘table of contents’.
[42] On 2 May 2012 the Eyaa-Keen Healing Centre emailed VAQ, advising that it was withdrawing the proposal for treatment services for BN as submitted below:
We thank you for your consideration and ask that BN’s needs be looked after closer to BN’s residence. This is in order for BN to have a support system near by after. Examining the situation, we feel that the distance between our countries makes it challenging to ensure quality of care.
[43] BN has sent another email dated 1 May 2012 to VAQ[9], explaining that BN had trouble expressing BN in the first email of that date, and that BN had ‘meant to state that exacerbation of issues still designates a person suffering an injury to be deemed to be affected by the current injury’. BN also wrote that:
Before the assault I was fine: I was able to brief and act as a consultant to a lawyer, I was able to travel to Hopevale on a frequent basis and stay in the community, I was able to work part time as a teacher. It is important that you understand and comprehend that I have not done any of these activities since the assault at Hopevale in 2007…
[9] Document 106 in the first applicant’s ‘table of contents’.
[44] BN also remarked that the statement to Victims Assist made on 5 January 2012 by the Eyaa-Keen Centre, namely that ‘…we understand BN to have PTSD as a result of being assaulted. This has been compounded by trauma BN experienced previously in BN’s life…’
[was] …made by a Centre that has not treated me. Therefore, Victims Assist should not place any weight on this statement and must place full weight on what my experience is of the assault as well as my treating psychologist opinion of the assault and my current coping and anxiety.
[45] BN continued:
There is no prospect for me to obtain treatment in Australia as the meagre treatment available that is Indigenous focused lacks the Canadian First Peoples style of healing and involvement of Chiefs and tribal lore and custom. Further, the involvement of Australian aboriginal people in my healing will not be conducive to my healing as it was an aboriginal person that assaulted me as well as aboriginal people that have threatened me in the past.
[46] When the appeal came on for hearing on 20 June 2012, at [ … ], BN tended a letter dated 15 June 2012, addressed to Victims Assist Queensland from the director of the Cree Nations Treatment Haven in Canwood, Saskatchewan, Canada, which read, relevantly, in the first paragraph:
It has come to our attention that one of your clients, BN is eligible for medical assistance and psychological counselling from your organisation to assist BN in the recovery of post traumatic stress disorder that BN sustained in an assault in June 2007 in the presence of an elder while assisting him. I feel in discussions with BN that BN is affected solely by the assault to BN in June 2007 resulting in BN experiencing severe depression and anxiety affecting BN’s day to day functioning ability. Our program treats post traumatic stress disorder in a different way to Aboriginal Australia. Costs of BN and BN’s escort negotiable of $4,000 covering accommodations that we have discounted so that your organisation can afford to pay for BN and BN’s escort to travel to our treatment centre on July 25, 2012.
[47] The letter went on:
We also feel that as BN experienced the trauma through Aboriginal Australian political issues, that BN will do much better to distance BN from the politics involved within the healing circles of aboriginal methods in Australia that have links to BN’s assailants. I feel that what I have explained constitutes your consideration and treatment of this matter as a special circumstance on the following grounds;
(a) BN has cultural connections to the First Nations in Canada and identifys [sic] as such.
(b) BN will not respond well to any program run by Aboriginal Australians due to BN’s severe trauma perpetrated on BN by Aboriginal Australians who tried to prohibit BN from assisting an elder. The fact that many healing programs are not approved by the health Department in Australia as well as the fact that BN assailants are linked in with elitists controlling funding of the healing centres.
[48] The letter went on:
We wish to elaborate about the differences between the clinical model that BN has not obtained success with in Australia and how it differs to the Spiritual multidimensional level of special healing that is accredited by Health Canada. It is imperative for the mental health state of BN that you fully comprehend and accommodate BN’s travel costs and treatment costs to and [sic] at this centre.
We wish to advise you that as BN is in an initiated Canadian First Nations member, that you offer BN the respect that BN’s fragile mental health state dictates. That in order to do this that you treat BN’s circumstances as a special requirement that indicates BN is in need of special assistance separate from counselling and medical expenses on BN’s recovery process. For instance, many people with severe post traumatic stress disorder can commit suicide, and BN has stated to BN’s treating psychologist, Ms Jo Chibnall in Australia, that BN often feels like committing suicide. In discussions with BN, we feel that our program will heal BN successfully with BN’s recovery. The First Nations methods of traditional healing that we utilise at our program are similar to those practiced at other centres such as EyaKeen[sic] in Manitoba and is fully accredited by Accreditation Canada and is approved from Health Canada to help our guarantee of the recovery of BN of BN’s post traumatic Stress Disorder.
[49] It goes on:
Our thirty-five (35) day in-patient program consists of aboriginal traditional intensive multi-disciplinary treatment for adult individuals, couples and groups, by offering treatment for trauma and major loss, group work, therapeutic training and individual support, all with a view to personal and community healing, change and development. The holistic approach enables participants to recognise their natural gifts and abilities with the aim of leading a productive, healthy life.
[50] The letter further advises that the Cree Nations Treatment Haven provides elder support services to Indian Residential School survivors and support/family members through individual sessions, and provides ceremonial sweats for individuals who wish to participate to discover their identity and spirituality. It also states that ‘we’ feel that BN:
…should be considered as a special circumstance and our treatment program is one of special assistance as it covers a holistic method of healing accredited by Health Canada which differs greatly from counselling [sic] and medical model that is not assisting BN in Australia. In circumstances similar to BN, we also advise people with post traumatic stress disorder issues often become worse and we recommend the expedient treatment for BN at our treatment centre.
[51] That letter from the Cree Nations Treatment Haven reveals that the author has spoken with BN but not the number of conversations or the topics covered. It does appear that the Cree Nations Treatment Haven has been advised of the various grounds upon which VAQ has rejected BN’s application for travel costs and counselling charges in the past and has intended and attempted to respond to those.
[52] The letter from the Cree Nations Haven did not refer to a matter about which BN gave evidence, as described in the reasons for judgment under appeal. In 2005 BN had received treatment from Cree Nations following emotional trauma for a sexual assault, and that such treatment included the use of a sweat lodge and a linking back to spiritual ancestors over a period of 2 weeks. Following the treatment, BN was able to continue with BN’s university studies, obtain a degree, and pursue a career. BN’s evidence to the Member included that BN was successfully treated for trauma in the past through a program conducted by Cree Nations and believes that BN will so again.
[53] One of the difficulties in determining this appeal is that there is no transcript of the evidence given before the learned Member (although the Member did summarise the evidence given by each witness in the reasons for judgment) and there was no discussion from any party in relation to the adequacy of the summary, or its accuracy. One matter that is apparent from the reasons for judgment and the documents provided to this Appeal Tribunal is that BN has provided very little information about BN, either to VAQ or to this Tribunal. For example, there is no information before the Tribunal as to BN’s ethnicity, no information as to where BN went to school, none as to the degree or degrees for which BN has studied, or when or where any degree was awarded to BN, and the only information available about BN’s employment history is that BN had described in the past as a self employed hairdresser, and was registered at Queensland with the Department of Education, Training and the Arts as a primary special education teacher for the period from 23 January 2012 through to 14 December 2012. BN provided no information as to how BN has come to be an ‘initiated Canadian First Nations Member’, as described by the author of the Cree Nations Treatment Haven letter dated 15 June 2012 (which was produced at the hearing before the Member), nor why BN has described in BN’s ‘affidavit of service’ as a ‘Canadian Indigenous Affiliate’.
[54] Neither applicant challenged the finding that BN identifies BN as an Indigenous Canadian, but the A-G’s written submission challenges the finding that the expenses to be incurred on a trip to Canada were ‘reasonable’, submitting in a written submission received on 24 November 2012 that, inter alia, a study of a medical report from the Central Plaza Doctors dated 23 June 2011[10] showed that the only medication BN was taking was ‘viscoteras’ (eye drops). The written submission continued:
…the fact that BN was not on any anti-depressants or similar medication at that time tends to suggest that either conventional medicine had not been given the opportunity to take effect, or BN’s condition was not as serious as to require such medication.
[10] Document 35 in the first applicant’s ‘table of contents’.
[55] Similar submissions were made by Dr Sammon, appearing for the A-G on the appeal, when he suggested that conventional medication may not have been permitted to take its proper course. A supplementary written submission from the A-G, dated 1 October 2012, likewise queried the meaning of the expression ‘Canadian Indigenous Affiliate’ in the affidavit of service, referred to earlier in these reasons, while not expressly attacking or criticising the finding that BN was a person who identified as an Indigenous Canadian. If there are any further proceedings in this matter, it would be both appropriate and helpful if BN filed an affidavit providing more information about BN, as suggested in these reasons.
[56] The information about BN before the VAQ did include a copy of a document signed on 27 September 2006, and ultimately provided by BN to VAQ, which is entitled ‘Retainer Agreement’. It records an agreement made between three parties, being BN, trading as BN Community Economic Development Consultant Negotiator (‘RSCEDCN’); Drakopoulos Black, solicitors of Brisbane; and the Binthi, Thiithaarr, Nguymbaar, Dingaal, Dharrpa, Nguurruumungu, and Dhuubi clans, Hopevale. Those clans were described in the ‘Retainer Agreement’ as having successfully secured for themselves native title in and to lands within the Hopevale Dogit, and having retained the solicitors to secure freehold to titles in the said lands, and receiving compensation/mineral royalty entitlements as a consequence of those freehold and native title interests, and to pursue native title rights for the appropriate clans in respect of Lizard Island. It records that the clans were prepared to retain RSCEDCN in relation to community development work and had instructed the solicitors to retain BN as a consultant on the terms and conditions agreed below. There follows an agreement that RSCEDCN was to liaise with the clans and to provide direct instructions to Drakopoulos Black in relation to a number of matters, including ensuring that the DOGIT land transfer was carried out by the Department of Natural Resources, Mines and Water in accordance with the wishes of the clans,
…with a view to having inalienable freehold title in that land transferred to each clan separately to those areas outlined in the Hopevale Native Title Determination, and held by them as separate land trusts for and on behalf of their people.
It was agreed that BN would be paid at a rate of $300.00 per hour, calculated upon a time cost basis, with accounts being issued once the clans had received monetary compensation/royalties/good faith payments arising from separate individual land trusts for each clan ‘arising from the DOGIT free holding process and/or the native title interests held by or for them’. Those fees would be for community development, teaching services through workshops to educate and work with the clans, implementation of secretarial and word processing services and skills, researching legal materials and drafting including paralegal work, which was to be performed as a consultant for Drakopoulos Black where required.
[57] It appears from various witness statement provided by BN to the police about the circumstances of the assault upon BN that BN had been attending a meeting at Hopevale to discuss issues ‘regarding Lizard Island’, when BN was assaulted. It is apparent from the contents of that retainer agreement that in September 2006 BN felt confident that BN had the necessary skills to carry out BN’s side of that agreement (although that agreement seems to have ended on 27 June 2007). The material before the Member showed that BN has not been paid anything as a result of that agreement. Gordon Charlie signed that retainer agreement as a ‘Clan Representative or member’, and a number of other persons with the surname ‘Charlie’ also signed that agreement. Gordon Charlie’s statement to police about the assault dated 30 August 2007 advises that BN ‘has been my defacto partner for the last 14 years’.
[58] BN’s statement to police about that assault on 27 June (the statement is undated) describes BN as a ‘47 year old Community Welfare Worker’ who has been ‘representing Gordon Charlie in Hopevale as an advocate and power of attorney’.
[59] In the reasons for judgment under appeal the learned Member identified the issues in dispute. In [11]–[14] of the reasons published on 1 July 2012, those issues were identified as:
·Whether BN’s post-traumatic stress disorder results directly from the assault or whether it arises by exacerbating previous mental health traumas.
·Whether the treatment sought by BN is defined as either medical treatment or counselling, and as such, is not exceptional under the Act.
·If treatment is defined as either medical treatment or counselling, whether the travel costs associated with such treatment are defined as ‘incidental’ under the Act.
·If treatment is defined as either medical treatment or counselling, whether the costs of such treatment, including the travel costs to attend for such treatment, are reasonable in the circumstances.
[60] The learned Member summarised the evidence given by BN and BN’s witnesses (Mr Charlie and Ms Chibnall) and the documents tendered as exhibits by both BN and Victims Assist Queensland. The Member described the submissions by the respondent and applicant respectively, and then set out the Member’s findings. Those findings included that while VAQ had made submissions about the possibility of availability of other such treatment programs in Australia, it had produced no evidence to support those. As such, the Member held that no findings could be made that suitable indigenous healing programs could be found in Australia or that, if such programs were available, these would be cheaper or more accessible than the Canadian program chosen by BN.[11]
[11] In [26] of the judgment under appeal.
[61] The Member continued that:
[27] No findings can be made as to the reason for Eeya [sic] Keen to withdraw its offer of assistance but neither Eeya [sic] Keen nor Cree Nations Treatment Haven have fully assessed BN and, as such, neither is in a position to offer an opinion as to BN’s diagnosis or the appropriate treatment for BN.
[62] The reasons for judgment continue:
[28] The only medical evidence given was by Ms Jo Chibnall, psychologist, who has treated BN since August 2010. The Tribunal has no reason not to accept her diagnosis and her evidence that:
i. BN’s post-traumatic stress disorder was caused directly as a result of the violent incident; and
ii. clinical treatment methods have failed to address this disorder; and
iii. ‘there is a greater likelihood of success through a traditional healing model …’
[63] The Member provided a footnote to the internal quotation, recording it as being from a medical report by Ms Chibnall dated 6 June 2011. In fact, of course, as pointed out by both the VAQ and the A-G in their respective written submissions, the quotation is from the reasons given by the decision-maker dated 16 August 2011, which was a description of the decision-maker’s conclusions as to what Ms Chibnall had written. It was not actually an opinion expressly given by Ms Chibnall, although, since BN had recommended that the Eyaa Keen Centre take BN as a client, Ms Chibnall may reasonably be thought to have held that opinion.
[64] The attribution of that quotation to Ms Chibnall, rather than to the decision-maker from 16 August 2011, is primarily the basis of the application for leave to appeal from the decision published on 1 July 2012. If that was the only ground under which leave for appeal was sought, I would refuse it, because while it is true that the learned Member erred as to the source of the quotation, the conclusion was fairly open that Ms Chibnall held that very opinion, which was well summarised by the decision-maker.
[65] However, that is not the sole basis of the application for leave to appeal, or to appeal. Both applicants make the point that the Member did not in terms expressly decide the question the Member had identified as being in dispute, namely whether the treatment that BN sought in Canada could be defined as either ‘medical’ treatment or ‘counselling’ under the VA Act. In this appeal, the A-G contended that it was properly regarded as ‘counselling’, but I respectfully disagree. The learned Member, after quoting from the descriptions of the treatment provided by Eyaa Keen and Cree Nations, concluded as follows:
[31] The treatment provided by Cree Nations Treatment Haven is holistic and spiritually based, and is not similar to the clinical treatments made available to BN to date.
[66] The applicants contend that there was insufficient information from the Cree Nations Treatment Haven to come to either of those conclusions, and again I disagree. The description by the Cree Nations Treatment Haven of the healing method that it offers (which it describes as being ‘similar to those practiced as other centres such as Eeya Keen[sic]’), is undoubtedly different treatment to the clinical treatments made available to BN to date, and to me it appears different in nature from what is considered to be ‘counselling’ in this country. It is appropriate to describe it as ‘holistic and spiritually based’, as the learned Member did.
[67] The Member referred to the definition of exceptional circumstances provided by s 28 of the VA Act, and concluded that the assault occasioned on BN had had ‘an unusual, special or out of the ordinary affect upon BN’, as described in section 28. Those special circumstances referred to included that:
[34]… despite more than 4 years of clinical treatments from both psychologists and psychiatrists trained in dealing with trauma, BN’s condition of post-traumatic stress disorder, caused from the assault occasioned to BN, has not been able to be addressed.
[68] The Member concluded that BN therefore had an entitlement under s 39(g) of the VA Act to receipt of:
…expenses incurred or reasonably likely to be incurred … if the expense will significantly help the victim recover from the act of violence.
[69] Both applicants contend that the Member erred in law in that the learned Member omitted the word ‘other’ when paraphrasing the terms of s 39(g) of the VA Act, which necessarily identifies those ‘other’ expenses as expenses other than counselling or medical expenses, thereby erring in law in that the learned Member misdirected herself.
[70] The learned Member did err in law in omitting the word ‘other’ when reciting s 39(g) of the VA Act in [32] of the reasons for judgment under appeal, because it was necessary for the Member to determine if those expenses were ‘other’ than counselling or medical. That is, the Member needed to identify whether the treatment sought in Canada by BN could fall within the definition of either ‘counselling’ or ‘medical’ expenses as described in s 39(a) or (b) of the VA Act, or were expenses ‘other’ than those, that is, available only if ‘exceptional circumstances’ were found and if incurring those ‘other’ expenses was done to ‘significantly help the victim recover from the act of violence’.
[71] The learned Member did not make any finding as to whether the incurring of those ‘other’ expenses, on the treatment to be provided by Cree Nations Treatment Haven, satisfied the description of ‘expenses incurred to significantly help the victim recover from the act of violence’. That was a finding that had to be made before the ‘other expenses’ could be made the subject of assistance under s 39 of the VA Act.
[72] The Member found that the expenses sought in relation to the provision of that treatment were reasonable in all the circumstances, in that:
·The treatment was only available in Canada
·Medical evidence confirmed that BN was in need of an escort for travel.
·The medical evidence stated that BN, and BN’s escort, required at least 2 stopovers on each leg of the journey.
·Various quotes were provided regarding the proposed travel and the one sought was the cheapest ‘that met the medical criteria’.
[73] The applicants have disputed the finding that the treatment is only available in Canada, but no evidence was lead before the Member of any treatment available of that nature in Australia, and the evidence did describe BN needing an escort for travel and requiring at least two stopovers on each leg of the journey. It was appropriate for the Member to find whether or not the expenses sought for the provision of that treatment were reasonable, as the A-G contends, because it is appropriate to construe s 39(g) of the VA Act as authorising the grant of assistance if there are exceptional circumstances and if the expenses incurred to significantly help the victim recover from the act of violence can be regarded as reasonable in all those circumstances.
[74] The failure to find either way whether those expenses of travel and treatment were for ‘medical’ or ‘counselling’ expenses or were for expenses ‘other’ than those and would be incurred ‘to significantly help the victim recover’ (as distinct from finding they were reasonable), while ordering that that assistance be granted as requested, was an error of law. For that reason the appeal should be allowed. The matter should be remitted to a (different) Member of this Tribunal, to determine the issues in dispute.
[75] Those issues are, or appear to be, (depending on the material before the Member):
·whether the treatment sought by BN is only available in Canada;
·whether conventional medical treatment has been given a full opportunity to take effect, or whether BN’s condition is not so serious as to require medication such as anti-depressant or similar medication;
·whether the treatment sought by BN satisfies the definition of either ‘medical’ expenses or ‘counselling expenses’;
·if so, whether those expenses are ‘reasonable’;
·whether exceptional circumstances exist for BN;
·if so, whether the expenses incurred in obtaining the treatment BN seeks in Canada would ‘significantly help’ BN recover from the act of violence, and are reasonable;
·if not, whether making an order granting those expenses would constitute ‘special assistance’ in relation to the act of violence, (s 39(h)); and,
·whether such an order should be made.
[76] I therefore order that:
1.The appeal is allowed.
2.The orders made 1 July 2012, and modified on 5 July 2012, are set aside.
3.The matter of BN’s application for a review of the decision of 18 April 2012 is returned to the Tribunal for reconsideration in accordance with the matters described in these reasons, and the Tribunal is to be constituted by a different Member from the Member who made the decision appealed against or the Members who heard this appeal.
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