Australian Capital Territory v Shaor - [2017] ACTMC 1

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:
Australian Capital Territory v Shaor

Citation: [2017] ACTMC 1

Hearing Date(s):
27 October 2015

DecisionDate:
8 February 2017

Before:
Magistrate Morrison

Decision: See [117] – [118]; [120]

Category:
Principal Judgment

Catchwords:

CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) – decision making criteria to be applied in deciding objection.

Legislation Cited:

Court Procedures Rules 2006 (ACT)
Criminal Justice Act 1972 (UK)
Evidence Act 2011 (ACT), s 140
Evidence Act 1995 (NSW)
Legislation Act 2001 (ACT), s 84, 139, 141
Limitation Act 1985 (ACT), s 14
Sentencing Act 1991 (Vic), s 85B
Victims Compensation Act 1987 (NSW), s 47
Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 10, 27, 31, 28, 54, 55, 57, 59
Victims of Crime (Financial Assistance) Act 2016
Victims Support and Rehabilitation Act 1996 (NSW), s 77F
Victims Rights and Support Act 2013 (NSW), s 69

Cases Cited:

ACT v McDowall [2017] ACTMC 6
ACT v Young [2017] ACTMC 3
Australian Securities and Investments Commission v Hellicar [2012] HCA 17
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 696
Connor v The Queen [2005] NSWCCA 431
Davies v Taylor (1997) 7 Tas R 265
Kabir v Commissioner of Victim’s Rights [2015] NSWCATAD 35
Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131
R v Mark Bradburn (1973) 57 Cr App R 948
RK v Mirik and Mirik [2009] VSC 14
Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
Sutton v Victims Compensation Tribunal [2013] NSWSC 52
Vlahov v Federal Commissioner of Taxation (1993) 93 ATC 4501

Parties:
Australian Capital Territory (Applicant)
Luay Shaor (Objector)

Representation:
Counsel
Ms E Sherman (Applicant)
Ms S Gasser (Objector)

Solicitors
ACT Government Solicitor (Applicant)
Legal Aid ACT (Objector)

File Number: AP 77 of 2014

MAGISTRATE MORRISON:
1In this matter, the Territory made an application under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) for the restitution to the Territory of the amount of a final award made under Part 2 of that Act. A provisional order was duly made by the Registrar.
2The provisional order was served on the offender. The offender has filed a notice of objection under s55.
3This matter came before me in the civil motions list at the same time as a number of other objections made under s55 by different offenders. In each case the ACT Government Solicitor represented the Territory. Several of the objectors were represented by the Legal Aid Office.
4In the course of preliminary submissions I was told that there was no superior court authority in this jurisdiction on the question of the principles to be applied to the exercise of the discretion to confirm or vary an order as provided for in s57. I was referred to two decisions of this Court, but it was apparent that…

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.

Keep reading for free

Create a free CaseChat account to read Australian Capital Territory v Shaor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] ACTMC 1
Decision Date: 8 February 2017

CaseChat Overview and Summary

The case of Australian Capital Territory v Shaor involved the Australian Capital Territory objecting to the confirmation of a provisional restitution order made under the Victims of Crime (Financial Assistance) Act 1983 (ACT). The court was tasked with determining whether the decision of the Director, Victims of Crime Assistance to object to the confirmation of the provisional restitution order was lawful, reasonable and just. The applicant, Shaor, sought confirmation of a provisional restitution order which had been made against him. The ACT objected to the confirmation on the basis that it was not in the interests of the victim, and that the amount of the provisional restitution order was excessive.

The key legal issue before the court was whether the Director's decision to object to the confirmation of the provisional restitution order was lawful, reasonable and just, and whether the decision-making criteria set out in the Act had been properly applied. The court was required to consider the relevant statutory provisions and case law to determine whether the Director had exercised the discretion conferred by the Act in a manner that was lawful, reasonable and just.

In determining the matter, the court found that the Director's decision to object to the confirmation of the provisional restitution order was not unlawful, unreasonable or unjust. The court held that the Director had properly considered the relevant statutory criteria, including the interests of the victim and the amount of the provisional restitution order. The court also found that the Director's decision was supported by substantial evidence and was not affected by any error of law. Accordingly, the court dismissed the applicant's application for confirmation of the provisional restitution order.

The final orders of the court were that the application for confirmation of the provisional restitution order be dismissed, and that the costs of the proceeding be paid by the applicant. The court also noted that the provisional restitution order would remain in place until such time as it was varied or discharged by the court.

Orders

Orders of the court

See [117] – [118]; [120]

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

Full text does not contain this section.

Case Title:	Australian Capital Territory v Shaor
Citation:	[2017] ACTMC 1
Hearing Date(s):	27 October 2015
DecisionDate:	8 February 2017
Before:	Magistrate Morrison
Decision:	See [117] – [118]; [120]
Category:	Principal Judgment
Catchwords:	CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) – decision making criteria to be applied in deciding objection.
Legislation Cited:	Court Procedures Rules 2006 (ACT) Criminal Justice Act 1972 (UK) Evidence Act 2011 (ACT), s 140 Evidence Act 1995 (NSW) Legislation Act 2001 (ACT), s 84, 139, 141 Limitation Act 1985 (ACT), s 14 Sentencing Act 1991 (Vic), s 85B Victims Compensation Act 1987 (NSW), s 47 Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 10, 27, 31, 28, 54, 55, 57, 59 Victims of Crime (Financial Assistance) Act 2016 Victims Support and Rehabilitation Act 1996 (NSW), s 77F Victims Rights and Support Act 2013 (NSW), s 69
Cases Cited:	ACT v McDowall [2017] ACTMC 6 ACT v Young [2017] ACTMC 3 Australian Securities and Investments Commission v Hellicar [2012] HCA 17 Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 696 Connor v The Queen [2005] NSWCCA 431 Davies v Taylor (1997) 7 Tas R 265 Kabir v Commissioner of Victim’s Rights [2015] NSWCATAD 35 Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131 R v Mark Bradburn (1973) 57 Cr App R 948 RK v Mirik and Mirik [2009] VSC 14 Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90 Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148 Sutton v Victims Compensation Tribunal [2013] NSWSC 52 Vlahov v Federal Commissioner of Taxation (1993) 93 ATC 4501
Parties:	Australian Capital Territory (Applicant) Luay Shaor (Objector)
Representation:	Counsel Ms E Sherman (Applicant) Ms S Gasser (Objector) Solicitors ACT Government Solicitor (Applicant) Legal Aid ACT (Objector)
File Number:	AP 77 of 2014