White v Victims Assist Queensland - [2018] QCAT 287

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

White v Victims Assist Queensland [2018] QCAT 287

PARTIES:

DAVID JOHN WHITE
(applicant)

v

VICTIMS ASSIST QUEENSLAND

(respondent)

APPLICATION NO/S:

GAR241-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 August 2018

HEARING DATE:

30 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The Tribunal sets aside the decision of Victims Assist Queensland of 29 June 2017 and replaces it with a decision to grant ‘Category A’ special assistance of $8,000.00 under Schedule 2 of the Victims of Crime Assistance Act 2009 (Qld) and reasonable counselling expenses of $1,200.00.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where claim under Victims of Crime Assistance Act 2009 (Qld) – where charge of assault occasioning bodily harm – where ‘Category C’ act of violence – where victim suffered trauma to eye including retina degeneration and fractured eye socket – where permanent and significant reduction in quality of life – where victim suffered ‘very serious injury’ to elevate grant payable to ‘Category A’ act of violence – where criminal compensation legislation is beneficial – where exceptions within the legislation are to be read down narrowly to preserve the scope of the beneficial effect of the legislation – where ‘could’ not sufficient to meet the threshold of ‘would’ in exception to definition of ‘very serious injury’ – where eye integral part of bodily function and appearance – where grant payable between middle and upper end of range

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Victims of Crime Assistance Act 2009 (Qld), s 3, s 39, Schedule 2

Cole v Department of Youth and Community Services (1986) 7 NSWLR 541
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
O’Brien v Gladstone Regional Council [2015] QCATA 82
Re Applications of Foster [1982] 2 NSWLR 481
Richardson v ACT Health & Community Care Service [2000] FCA 654

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

B James, Team Leader, Victims Assist Queensland

REASONS FOR DECISION

What is the act of violence?

On 22 December 2016, David White was struck to the left side of his head during an altercation at a bar. Police charged the offender with assault occasioning bodily harm.
Victims Assist Queensland (‘VAQ’) originally granted special assistance to Mr White for a ‘Category C’ act of violence of $1,300 and $1,200 for six counselling sessions.[1] Upon internal review, special assistance was increased to $3,500 for a Category B act of violence.[2] Mr White has applied to the Tribunal to review the internal review decision.
[1]Decision dated 21 April 2017.
[2]Decision dated 29 June 2017.
What does the Tribunal do?
The Tribunal considers the matter afresh to produce the correct and preferable decision.[3] This means that Mr White need not prove that VAQ made an error – VAQ’s decision is not presumed correct.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[4]Harley…

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] QCAT 287
Decision Date: 23 August 2018

CaseChat Overview and Summary

In the case of White v Victims Assist Queensland, the dispute involved a claim under the Victims of Crime Assistance Act 2009 (Qld) concerning the level of financial assistance to be awarded to the victim following an assault occasioning bodily harm. The case was heard by the Queensland Civil and Administrative Tribunal. The victim in this case suffered significant injuries, including trauma to the eye, retina degeneration, and a fractured eye socket, resulting in a permanent and significant reduction in quality of life. The key legal issue before the Tribunal was whether these injuries qualified as a "very serious injury" under the Act, which would elevate the grant payable from "Category C" to "Category A".

The Tribunal considered the definition of "very serious injury" within the Act and examined whether the injuries sustained by the victim met the criteria for this classification. The Tribunal concluded that the injuries were indeed "very serious" as they had a profound impact on the victim's bodily function and appearance. The Tribunal noted that the language of the exceptions within the legislation should be read narrowly to preserve the beneficial effect of the legislation. The Tribunal found that the use of "could" in the exceptions was not sufficient to meet the threshold of "would" required in the definition of "very serious injury". Consequently, the Tribunal determined that the grant payable should be set at the middle to upper end of the range specified in the Act.

The Tribunal set aside the decision of Victims Assist Queensland dated 29 June 2017 and replaced it with a decision to grant "Category A" special assistance of $8,000.00 under Schedule 2 of the Victims of Crime Assistance Act 2009 (Qld), along with reasonable counselling expenses of $1,200.00. This decision ensures that the victim receives appropriate financial assistance reflective of the severity of their injuries and the impact on their quality of life.

Orders

Orders of the court

The Tribunal sets aside the decision of Victims Assist Queensland of 29 June 2017 and replaces it with a decision to grant ‘Category A’ special assistance of $8,000.00 under Schedule 2 of the Victims of Crime Assistance Act 2009 (Qld) and reasonable counselling expenses of $1,200.00.

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

No basis was provided to change the grant for counselling sessions at $1,200.[21] [21]Victims of Crime Assistance Act 2009 (Qld), s 39(a); Decision dated 21 April 2017.What is the correct and preferable decision? The correct and preferable decision is to set aside the decision of Victims Assist Queensland of 29 June 2017 and replace it with a decision to grant ‘Category A’ special assistance of $8,000.00 under Schedule 2 of the Victims of Crime Act 2009 (Qld) and reasonable counselling expenses of $1,200.[22] [22]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24. I note that VAQ has already paid financial assistance to Mr White. The parties will therefore need to adjust their positions in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	White v Victims Assist Queensland [2018] QCAT 287
PARTIES:	DAVID JOHN WHITE (applicant)
v
VICTIMS ASSIST QUEENSLAND (respondent)
APPLICATION NO/S:	GAR241-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	23 August 2018
HEARING DATE:	30 August 2018
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	The Tribunal sets aside the decision of Victims Assist Queensland of 29 June 2017 and replaces it with a decision to grant ‘Category A’ special assistance of $8,000.00 under Schedule 2 of the *Victims of Crime Assistance Act* 2009 (Qld) and reasonable counselling expenses of $1,200.00.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where claim under Victims of Crime Assistance Act 2009 (Qld) – where charge of assault occasioning bodily harm – where ‘Category C’ act of violence – where victim suffered trauma to eye including retina degeneration and fractured eye socket – where permanent and significant reduction in quality of life – where victim suffered ‘very serious injury’ to elevate grant payable to ‘Category A’ act of violence – where criminal compensation legislation is beneficial – where exceptions within the legislation are to be read down narrowly to preserve the scope of the beneficial effect of the legislation – where ‘could’ not sufficient to meet the threshold of ‘would’ in exception to definition of ‘very serious injury’ – where eye integral part of bodily function and appearance – where grant payable between middle and upper end of range Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Victims of Crime Assistance Act 2009 (Qld), s 3, s 39, Schedule 2 Cole v Department of Youth and Community Services (1986) 7 NSWLR 541 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 O’Brien v Gladstone Regional Council [2015] QCATA 82 Re Applications of Foster [1982] 2 NSWLR 481 Richardson v ACT Health & Community Care Service [2000] FCA 654
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	B James, Team Leader, Victims Assist Queensland