Victim Assist Queensland v La - [2019] QCATA 142

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Victim Assist Queensland v LA [2019] QCATA 142

PARTIES:

VICTIM ASSIST QUEENSLAND
(appellant)

v

LA

(respondent)

APPLICATION NO/S:

APL235-18

ORIGINATING APPLICATION NO/S:

GAR297-16

MATTER TYPE:

Appeals

DELIVERED ON:

27 September 2019

HEARING DATE:

14 June 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Kanowski

ORDERS

1.   The appeal is allowed.

2.   The decision of the Tribunal made on 16 August 2018 is amended as follows:

(i)         by vacating Orders numbered 2 and 3;

(ii)        re-numbering Orders numbered 4 and 5 as 2 and 3.

3.   Publication of any information about these proceedings (APL235-18) that may identify the respondent or her children or may allow them to be located is prohibited.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the Tribunal below did not refer to or apply part of a statutory definition – whether Tribunal below applied wrong legislative test – whether Tribunal below failed to give adequate reasons – whether a non-publication order should be made

Guardianship and Administration Act 2000 (Qld) sch 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2), s 146, s 146(a), s 147
Victims of Crime Assistance Act 2009 (Qld), sch 2, sch 3, s 1(3), s 26(1), s 39(h), s 219

John Urquhart t/as Hart Renovations v Partington [2016] QCA 199
SS v Public Guardian [2015] QCATA 142

APPEARANCES & REPRESENTATION:

Applicant:

B Corbiere, Senior Legal Officer of Victim Assist Queensland

Respondent:

No appearance

REASONS FOR DECISION

Introduction

Victim Assist Queensland (‘Victim Assist’) is part of the Department of Justice and Attorney-General. It administers the Victims’ Financial Assistance Scheme (‘the Scheme’) established by the Victims of Crime Assistance Act 2009 (Qld) (‘Victims of Crime Assistance Act’).[1]
[1]Schedule 2 which provides for the amount that may be paid to a victim pursuant to the Victims of Crime Assistance Act has been amended since Victim Assist decided the application. However, the amendments are not relevant in this proceeding: see s 219; sch 2. We refer in these reasons for decision to Schedule 2 at the time the application for assistance was decided.
LA claimed financial assistance under the Scheme. She was a victim of violence in 2015 during an incident in which the perpetrator also murdered LA’s partner. Victim Assist decided the application. LA sought review in QCAT of Victim Assist’s decision about her claim. The review was decided.
The Tribunal’s decision on the review was as follows:
1. The Tribunal confirms the decision of Victim Assist Queensland that the act of violence is category C under Schedule 2 of the Victims of Crime Assistance Act.
2. The Tribunal finds that there were category B circumstances for the act of violence, in that the applicant suffered a serious injury.
3. The amount of special assistance payable in relation to the act of violence and circumstance is $2,400.
4. The Tribunal does not have…

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: [2019] QCATA 142
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case involves Victim Assist Queensland, which appeals a decision of the Tribunal that awarded LA $2,400 in special assistance under the Victims of Crime Assistance Act 2009 (Qld). LA did not attend the hearing but provided written submissions which did not adequately address the grounds of appeal. The Tribunal found that LA was entitled to special assistance because she suffered a serious injury as a direct result of the act of violence inflicted on her, and that she met the criteria for category B circumstances under the Act.

The primary legal issue before the court was whether the Tribunal erred in identifying the relevant test in deciding that there were category B circumstances. The court had to determine whether the Tribunal applied the correct legislative test and whether it gave adequate reasons for its decision. The court also had to consider whether a non-publication order should be made to protect the identity of the respondent and her children.

The court found that the Tribunal did not refer to or apply part of the statutory definition of category B circumstances. The court held that the Tribunal applied the wrong legislative test and that it failed to give adequate reasons for its decision. The court also found that a non-publication order was necessary to protect the identity of the respondent and her children.

The appeal is allowed and the decision of the Tribunal is amended accordingly. Publication of any information about these proceedings that may identify the respondent or her children or may allow them to be located is prohibited.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal made on 16 August 2018 is amended as follows:

(i) by vacating Orders numbered 2 and 3;

(ii) re-numbering Orders numbered 4 and 5 as 2 and 3.

3. Publication of any information about these proceedings (APL235-18) that may identify the respondent or her children or may allow them to be located is prohibited.

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

LA provided written submissions on the appeal, but did not attend the hearing. The Appeal Tribunal is satisfied that LA had notice of the hearing and decided that it was appropriate to proceed with the hearing in her absence. We have read LA’s written submissions. However, it must be said that they do little to address the grounds of appeal.The Tribunal’s decision In the review proceeding, the Tribunal decided that there were category B circumstances, and that therefore, LA was entitled to $2,400 in special assistance. This was more than would have been payable had the Tribunal concluded that category B circumstances did not apply. ‘Category B circumstances’ are defined as follows:[2][2]Victims of Crime Assistance Act 2009 (Qld) sch 2, s 1(3) (‘Victims of Crime Assistance Act’). Category B circumstances, for a primary victim of a category C or D act of violence, means—(a) the victim has, as a direct result of the act—(i) suffered a serious injury; or(ii) been a victim of a series of related crimes; or(iii) suffered a deprivation of liberty; and(b) when the act of violence was committed or, if the act of violence involved a series of related crimes, when 1 or more of the acts were committed, the victim was—(i) a child under 16 years; or(ii) a person over 60 years; or(iii) a person with impaired capacity. In the review proceeding, the Tribunal found that LA had suffered a serious injury as a direct result of the act of violence inflicted on her. On this basis, the Tribunal made Order 2, which was to the effect that category B circumstances applied, and Order 3, which awarded special assistance on that basis. Ground of appeal 1: Did the Tribunal err in identifying the relevant test in deciding that there were Category B circumstances? The review proceeding related to LA’s entitlements as a ‘primary victim’,[3] and so the nature of the violence committed against her, as distinct from that committed against her partner, was relevant. The financial assistance granted to a primary victim may include ‘special assistance’.[4] The amount of special assistance which a person may be given is provided for and determined using Schedule 2 (as it then was),[5] to the Victims of Crime Assistance Act. [3]See ibid s 26(1).[4]Ibid s 39(h).[5]Refer footnote 1. The Schedule to the Victims of Crime Assistance Act is somewhat complex. It sets ranges of permissible payments depending on whether the act of violence is categorised as a category A, B, C or D act of violence. However, after that first process of categorisation has been completed, it is then necessary to determine whether certain categories of circumstances apply. There are category A, B and C circumstances. This second process of categorisation can serve to ‘uplift’ the amount of assistance available to a higher payment range. The police did not charge the perpetrator with any offence in relation to the perpetrator’s actions against LA during the relevant incident. The police focussed, instead, on charging the perpetrator with the murder of her partner.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Victim Assist Queensland v LA [2019] QCATA 142
PARTIES:	VICTIM ASSIST QUEENSLAND (appellant)
v
LA (respondent)
APPLICATION NO/S:	APL235-18
ORIGINATING APPLICATION NO/S:	GAR297-16
MATTER TYPE:	Appeals
DELIVERED ON:	27 September 2019
HEARING DATE:	14 June 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard, Presiding Member Kanowski
ORDERS	1. The appeal is allowed. 2. The decision of the Tribunal made on 16 August 2018 is amended as follows: (i) by vacating Orders numbered 2 and 3; (ii) re-numbering Orders numbered 4 and 5 as 2 and 3. 3. Publication of any information about these proceedings (APL235-18) that may identify the respondent or her children or may allow them to be located is prohibited.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the Tribunal below did not refer to or apply part of a statutory definition – whether Tribunal below applied wrong legislative test – whether Tribunal below failed to give adequate reasons – whether a non-publication order should be made Guardianship and Administration Act 2000 (Qld) sch 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2), s 146, s 146(a), s 147 Victims of Crime Assistance Act 2009 (Qld), sch 2, sch 3, s 1(3), s 26(1), s 39(h), s 219 John Urquhart t/as Hart Renovations v Partington [2016] QCA 199 SS v Public Guardian [2015] QCATA 142
APPEARANCES & REPRESENTATION:
Applicant:	B Corbiere, Senior Legal Officer of Victim Assist Queensland
Respondent:	No appearance