Cumbamani v Commissioner of Victims Rights

Case •

[2022] NSWCATAD 386

•

09 December 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Cumbamani v Commissioner of Victims Rights [2022] NSWCATAD 386
Hearing dates: 18 November 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Riordan, Senior Member
Decision:

(1)   I confirm the Commissioner’s decision dated 17 November 2021 under s 67(1) of the Act; and

(2)   I confirm the order for restitution under s 67(2A) of the Act in the sum of $7,688.90, such amount being payable within 12 months from the date of this decision.

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – reasonableness of victims support – timeframe for issue of a restitution order to a convicted offender

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Victims Rights and Support Act 2013 (NSW)

Victims Rights and Support Regulation 2019 (NSW)

Cases Cited:

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49

Connor v R [2005] NSWCCA 431

Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255

Texts Cited:

World Law Dictionary

Black’s Law Dictionary

Category:Principal judgment
Parties: Thots Cumbamani (Applicant)
Commissioner of Victims Rights ()
Representation: Solicitors:
Applicant (Self Represented)
K Douch, Victims Services (Respondent)
File Number(s): 2022/00209598
Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Background

  1. The Applicant made an application for administrative review of a restitution order that the Commissioner of Victims Rights (the Respondent) made on 3 February 2022. This required him to pay restitution in the sum of $7,688.90, being the amount of victims support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).

Award of victims support to the victim

  1. On 4 January 2018, the victim signed an application for victims support under the Act, which alleged that she was the primary victim of an act of violence in the nature of assault and sexual assault, which was perpetrated by the Applicant over a period of time from November 2010 to 15 September 2017. The victim alleged that she suffered both physical and psychological injuries as a result of the act of violence and claimed victims support in the nature of counselling, financial assistance for immediate needs and/or economic loss and a recognition payment.

  2. On 11 April 2018, an Assessor (Client Claims) issued a Notice of Decision in relation to the claims for financial assistance for immediate needs and economic loss and a recognition payment. The Assessor conditionally approved financial assistance for immediate needs in the sum of $4,886.90 and financial assistance for economic loss in the sum of $2,066 and finally approved a Category D recognition payment in the sum of $1,500 on the basis that she was the victim of an assault not resulting in grievous bodily harm.

  3. In a decision dated 14 August 2018, the Assessor finally approved victims support for financial assistance for immediate needs in the sum of $2,780.10 and financial assistance for economic loss in the sum of $1,888.90. The Assessor deferred a claim for children’s bedding pending receipt of further information from the victim.

Order for restitution

  1. Part 5 of the Act is concerned with the recovery of victims support payments from offenders. The object of that Part is set out in s 57:

The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.

  1. The statutory scheme gives the Respondent a discretion to make an order for restitution against a person convicted of a relevant offence, either after a recognition payment or financial support has been paid to a victim of that offence or following approval of such a payment (s 59(1) of the Act).

  2. “Relevant offence” is defined in s 58 of the Act, as follows:

Relevant offence means the following (emphasis added):

(a)   An offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given. (Emphasis added)

(b) Any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence,

(c)   An offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.

  1. A restitution order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or if more than two (2) years have passed since the later of the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under s 40(6) of the Act.

  2. In this matter, Court documents indicate that the Applicant was initially charged with common assault and that he was convicted at Fairfield Local Court on 10 March 2017. He was directed to enter into a 12 month good behaviour bond for a period of 12 months under Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). However, he was later charged with a common assault, stalk/intimidate with the intention of causing the victim to fear physical or mental harm and contravene prohibition/restriction in AVO (domestic). On 12 March 2018, he was convicted of all of those charges at Fairfield Local Court and he was directed to enter into a good behaviour bond under s 9(1) of the CSP Act for a period of 18 months. He was subsequently imprisoned.

  3. On 17 November 2021, the Respondent made an order for restitution against the Applicant in the sum of $7,688.90, being the full amount of victims support that was approved for the victim.

  4. As the Applicant was incarcerated when the restitution order was issued, a copy of the order was posted to him care of Long Bay Correctional Complex under cover of a letter from the Respondent dated 17 November 2021. I am satisfied that the order for restitution was served on the Applicant as required by s 61 of the Act.

  5. Section 62 of the Act gives a person against whom an order for restitution is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (s 62(3) of the Act) and the objector bears the onus of proving their case (s 62(4) of the Act).

  6. On 10 December 2021, the Applicant sent a letter to the Respondent objecting to the restitution order on the following grounds:

… I wish to launch my objection on the restitution order made against me on the reasons stated as below:

•   Currently I am serving my sentence in Long Bay Correction Centre

•   The sentence is from Dec 2019 – June 2022

•   I was out of work environment from June 2019 until my sentence on Dec 2019, I have applied for Centrelink new start allowance and it is approved November 2019.

•    (The victim) has launched for the property settlement summons through family court in 2018-19 and I accept to pay 65 percentage of the value of the property and it is settled in the year 2020.

•   I have borrowed huge sum of money to defend myself in the District Court for the allegation from (the victim) and (name withheld) and sentence for the above said periods.

•   the remaining resource was split as phase and charges between the family court lawyers, Criminal Court lawyers, and the Good Samaritan who lend money for the legal costs in the long standing legal proceedings.

•   I have been poorly represented by my barrister, I have launched my complaint to Bar Association and they accepted my complaint...

•   Currently in incarceration, I am studying my master’s in business management (MBA) through Australian Catholic University, if this can be converted as WDO to suffice the payment, , place consider…

So basically I am penniless and homeless upon my release in June 2022. I appreciate the fairness of the system but unfortunately I am in a dire situation to on any constraints related to financial ground for the unforeseen future.

Please waive the rectitude payment on the above basis and help me to survive the remaining spared mortality with your utmost mercy.

  1. On 20 December 2021, an Assessor issued a Notice of Determination of Objection under s 65 of the Act and confirmed it. The Assessor stated, relevantly:

… 16.   Based on the evidence, the defendant was convicted of an offence in respective of which victims support was approved.

17.   That is, the victim was approved victims support related to an act of violence occurring between 1 November 2010 and 15 September 2017. The defendant was convicted of a relevant offence as per section 58 of the Act, in that the offence for which they were convicted gave rise to an approval for victims support. The facts underlying the conviction and the facts underlying the approval of victims support involve an offence of the same nature, against the same person, at the same time, by the same offender.

18.   It is important to point out that the restitution process carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a civil process an arise from the giving of victims support.

19.   Under the Act, if a person has been convicted of a relevant offence, restitution can be sought by victim services to recover the money from the offender. the offender may therefore be ordered to pay back all or some of the victims support payment.

20.   I have carefully considered the correspondence Mr Cumbamani has provided in support of his objection raised to the restitution order made against him. Firstly, he objects to the restitution order on financial grounds, stating that he is currently incarcerated, has no income and has exhausted his resources fighting the charges against him. He further states that he has settled with (the victim) in the family law court, agreeing to hand over the majority of the family assets.

21.   I have considered the contents of the Applicant’s objections to the restitution debt due and owing. I note at the time of completion of the notice of objection, he was incarcerated and that following his release he will face considerable social and employment challenges.

22.   Nevertheless, Mr Cumbamani was charged and convicted of a crime. The victim rightfully sought financial support as a victim of that crime. Under the Act, if a defendant has been convicted of an offence that led to the victims injury, victim services has the right to initiate restitution proceedings to recover the victims support payments from the defendant, regardless of his past or current situation. The consequence is that, irrespective of his objections, the offender must pay some form of restitution debt.

23.   I acknowledge the high cost of financing legal action and the inherent possibility of not receiving the legal outcome the defendant desired. However, Mr Cumbamani must have been aware of the high cost of legal action and considered his options and priorities before choosing to proceed.

24.   As to Mr Cumbamani’s settlement in the Family Court, his applications in that forum fall outside the scope of the restitution order and are not relevant to this process.

25. Noting the lack of documentary evidence as to his ability to repay the debt, in the absence of any further reasons as to why Mr Cumbamani cannot meet the debt due and owing, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act. Mr Cumbamani may wish to contact NSW Revenue to arrange a payment plan…

27. I have disallowed the defendant's objection. I must therefore inform the defendant of his right to have the Commissioner’s decision to issue the original order administratively reviewed under section 66 of the Act. Such a right must be exercised within 60 days of the date of this determination.

  1. I note that a copy of the Notice of Determination of Objection was posted to the Applicant care of Long Bay Correctional Complex under cover of a letter from the Respondent dated 3 February 2022. I am therefore satisfied that the notice was properly served up on the Applicant.

  2. On 21 March 2022, the Applicant wrote to the Respondent and stated:

I received your determination to my objection to the order of restitution on 3 February 2022. The letter states that I have not finished any documents supporting my claims are one of the reasons for the commissioner to decline my request. it is well defined that I am in a Correctional Facility at this point and unable to access to any of my documents.

I wish to appeal for the review but want to pursue through a legal representative, I am established my interest to Legal Aid and they have processed my request to Prisoners Legal Service (PLS) I am waiting for the invitation to discuss further.

In lieu of the situation I wish to seek for extension until 31 August 2022 to submit my application for review under section 66.

  1. On 25 March 2022, the Respondent advised the Applicant that Victim’s Services is unable to review the Respondent’s decision dated 3 February 2022 and that an application for review must be lodged with this Tribunal within 60 days of the date of the issue of the Notice of Determination of Objection. The Respondent also stated that if the Applicant required legal advice or assistance, he could contact LawAccess NSW for free legal services, and requested that he advise if an application was lodged so that enforcement action could be stayed during the review process.

  2. However, on 20 April 2022, the Applicant again wrote to the Respondent and stated, relevantly:

I received your above reference letter on 25 March 2022, it's been advised that I have to write to NSW Civil and Administration Tribunal for my review. The place and the position I am in makes it very much unlikely and impossible to communicate with the tribunal before May 2022 by phone. I am in consultation with Legal Aid lawyer to get a legal advice before submitting my review application.

I am due to get released on 9 June 2022 and I have better communication and Internet facility to talk and write to departments. I would like to get the extension of time till 31 August 2022 if your department cannot make the order for extension, will you kindly guide me with the address to NSW Civil and Administration Tribunal address so that I can write to them to seek my extension?

I totally understand that you are deemed to take decision but I am helpless and resource less at this point. Can you please help me in this regard?

  1. On 27 April 2022, the Respondent again wrote to the Applicant advising that Victim’s Services is unable to review the decision dated 3 February 2022.

Application for Administrative Review

  1. The powers of the Tribunal upon review are set out in s 67 of the Act as follows:

(1)   On an administrative review, the Tribunal may:

(a)   confirm, vary or reverse the original decision the subject of review, and

(b)   make any other orders it thinks fit.

(2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

(3) The Tribunal may confirm a provisional order made under Section 59 if satisfied that the Applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision.

(4)   The Tribunal may confirm a provisional order made under section 60 if satisfied that:

(a)   a person against whom a provisional order has been made has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and

(b)   the Applicant was a party to the scheme and obtained property under the scheme without giving sufficient consideration. If the Tribunal is not so satisfied, it must reverse the original decision.

  1. On 18 July 2022, the Applicant filed an application for administrative review under s 66 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection: (s 66(2)) and that the “Applicant has the onus of proving the Applicant’s case in an application for an administrative review”: (s 66(3)).

  2. The application set out the following grounds:

# I am incarcerated for over 2.5 years (2019-2022) and Parole until Sep 2023

# I am penniless and psychologically (illegible) with my confidence and survival

# I was misrepresented in the court of law, I launched the complaint to Bar Association

# My mental health is further deteriorating with such pressure and shock

# attached the letter sent to victim services and NCAT

  1. The Applicant also stated that his application was lodged out of time because he was “unable to correspond from gaol with limited/no resources”.

Procedural directions

  1. The matter came before Senior Member McAteer for directions on 26 August 2022. The Applicant appeared in person and Ms K Douch, Victims Services, appeared for the Respondent. The Senior Member directed the Applicant to file and serve an Affidavit of Financial Circumstances and submissions about his purported argument that the Respondent has departed from the requirement to act within the 2-year window referred to in the legislation, by 23 September 2022. He extended the time for filing the application to 18 July 2022 under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and listed the matter for further directions on 7 October 2022.

  2. On 7 October 2022, Senior Member McAteer conducted a further directions hearing. The Applicant appeared in person and Ms Douch appeared for the Respondent. He ordered the Applicant to file and serve any further evidence and submissions by 28 October 2022 and he ordered the Respondent to file and serve submissions by 11 November 2022. He listed the matter for hearing on 18 November 2022.

  3. The Applicant subsequently sought leave for a support person to appear with him at the hearing and Principal Member Simon granted him leave on 15 November 2022.

The hearing

  1. At the hearing on 18 November 2022, the Applicant appeared in person with Mr Corliss as a support person. Ms Douch appeared for the Respondent.

Applicant’s evidence and submissions

  1. The Applicant filed the following documents:

1. An “Affidavit” dated 13 September 2022.

  1. Despite its heading, this document is neither sworn nor affirmed and it appears to contain submissions only. In it, the Applicant asserted that the restitution order was made out of time by reason of the operation of ss 40(6)(a) and (b) of the Act.

  2. In relation to s 40(6)(a), the Applicant stated:

My ignorance raised the question – (restitution order is made before the time…, expecting the victim will not claim anymore, how and basis of what the conclusion is made? I received a return call from Victim rights over the phone on 10th Aug 2022, in the conversation the officer (I missed to note his name) revealed that in case if the victim claims any compensation now (after restitution order) and the commissioner issue an order to pay the victim, in that case the victim services cannot issue another restitution on my name.

(b)   the total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence or act of modern slavery has been given.

  1. In relation to s 40(6)(b), the Applicant stated:

… My concern – the term “maximum amount – that act of violence – has been given” – refer to section 58 bundle file the maximum is finalised for victim claim.

  1. Otherwise, the Applicant stated:

Summary: With my limited knowledge, I presume as per the Victim Rights and Support Act 2013 the decision is made is not complying with Annexure 2 (I, II, III, IV, V, VI). Under the present circumstances of parole period and its restrictions, I must follow the guidance by the community correction officer. To compensate the valuable time – regain my confident and recover from psychological impacts over 3 years. I have enrolled for my further studies in master’s in project management through Curtin University. Your Honours please consider my present situation and the subsequent setback for unforeseen time, kindly consider my plea for forfeiting the said amount.

2. Affidavit of Financial Circumstances dated 5 September 2022.

  1. This document was witnessed by a Solicitor, but it does not indicate whether the document was sworn or affirmed. The Applicant alleged that his total monthly income is $1,594, while his total monthly expenditure is $2,030. He declared that he has $1,000 in a bank account, but owes loans totalling $8,280 and that he makes monthly payments totalling $195. He declared that he owns a motor vehicle valued at $4,500, but has no other assets.

  2. At the hearing, the Tribunal sought to clarify the information in this affidavit, noting that monthly expenditure far exceeds monthly income. The Applicant was unable to explain the shortfall in income other than by saying that his brother helps to support him by buying him groceries and paying for his petrol (which he claimed as being $275 per month).

  3. The Applicant stated that before he was incarcerated, he was a fully qualified engineer and was employed on a full time basis. He remains eligible to work as an engineer but he “is not yet ready and able” to do this yet because he is engaged in full-time studies. His course has a duration of 1.5 years and it commenced in August 2022.

3. Written submissions dated 25 October 2022.

  1. The Applicant stated, relevantly:

13. According to s 59(1) of the Act, the Commissioner may make an order for restitution against a person who has been convicted of a relevant offence. Such an order may not be made if two or more years have elapsed since the later of two specified events: s 59(2)

The grounds of this appeal are that the Order for Restitution made by the Commissioner of Victims Services on 17 November 2020 was out of time and thus contrary to law and void.

Outline of arguments to follow

14. Structuring the submission has been quite challenging as almost all of the argument revolves around the interplay between the two operative subsections, s 59(2) and s 40(6). This factor create some difficulty in trying to separate victim and offender. As well, I could find very little relevant case law guidance to interpret the relevant provisions of the Act.

15.   I have therefore chosen to begin with the summary of the relevant issues through a rebuttal of the Commissioner’s arguments as proposed by the legal officer for Victims Services. This can be seen as a sort of Executive Summary of the case.

16.   There is then a detailed discussion of Part 4 the Act in relation to payment to the victim followed by a shorter discussion of Part 5 in relation to recovery from the offender. A very brief summary and conclusion brings an end to the report.

Rebuttal of the Commissioner’s Argument

17.   As stated in para 4 above, the Legal Officer for Victims Services, Ms Kathleen Douch, sent me an email on 25 August 2022, making the following comments:

In response to your inquiries relating to timeframe, pursuant to section 59 of the Victims Rights and Support Act, a restitution order must be made within two years from the end of the period in which a claim may be made under an application for victims support under section 40(6) of the Act.

Pursuant to section 40(6), a claim can continue to be made on an application for a period of five years. This means that a restitution order can be issued within seven years from the date of the application. As the Victim Support application was lodged on 5 January 2018, a restitution order can be issued prior to 4 January 2025.

Section 40(6)(b) does not apply in this matter as the maximum amount of financial support (being $35,000) was not approved.

18.   I submit that this interpretation is misguided. The implication that all applications for support, at least in relation to a primary victim, remain open for five years awaiting potential claims means that s 40(6) has primacy over s 40(1) in all cases. A true interpretation must be that the period of 5 years specified s 40(6) is an exception which only applies in some cases.

19.   It is patent that the s 40(6) exception unemployed to the possibly still outstanding claim of $903 in relation to bedding. If this interpretation is correct, my argument is simply that leaving a potential claim outstanding in this way is contrary to law - applications for support are required to be accompanied by documentary evidence in accordance with s 39(1).

20.   More importantly allowing claims to be made for 5 years in all cases defeats the express wording of the legislation and is therefore contrary to public policy. It is onerous indeed for the offender to be faced with an order for restitution 7 years after the initial application when that application can be made up 2 years after the act of violence viz 9 years all told.

21.   Ms Douch is also misunderstanding s 40(6)(b) by saying it does not apply in this matter as the maximum amount for financial support (being $35,000) was not approved. Examination of the wording provides a very different complexion. It says:

(b)   The total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence or active modern slavery has been given.

22.   The suggestion that “the total maximum amount of $35,000 not being approved” allows an opening for s 40(6)(b) cannot be allowed to stand. Should that below, every application for support paying less than the maximum would be deemed to satisfy that criterion.

23.   The wording refers to the total maximum amount of financial support that the victim is eligible to receive under the Act. It is most unlikely that any victim would be eligible for the maximum possible payout. In the present case, the payout was $7,668.90, an amount far less than the maximum. However, total eligibility was only for another $903 for bedding.

Part 4 Payment to the Victim

24.   In The present case, the 8-page Application was made on a form entitled “Support for Primary Victims” which states:

Primary victims can use this form to apply for counselling, financial assistance for immediate needs, and/or financial assistance for economic loss, and/or a recognition payment.

25. Reference to the Act shows that a primary victim, as defined, is eligible for support under s 23(1). The Application form does not relate to any other classic victim describes in that section. The composition of support for primary victims is set out in s 26(1) and includes (a) approved counselling services, (b) financial assistance for immediate needs, (c) financial assistance for economic loss and (d) a recognition payment (defined in s 34 of the Act).

26.   When completing this form, the Applicant applied for counselling as well as financial assistance for immediate needs and/or economic loss. Eligibility for payment was asserted in relation to an act of violence over a period of time until 15 September 2017. It has never been asserted that any act of violence occurred after the date specified in the application.

27.   in relation to this assertion of eligibility, the time for making a claim is prescribed in s 40(1) which states:

Except as provided by this section, an application for financial support or recognition payment must be duly made within two years after the relevant act of violence occurred… [emphasis added]

28.   In this regard, the application form includes the following statement:

Claims for financial assistance for immediate needs and/or financial assistance for economic loss need to be lodged no later than two years from the incident. Where the act of violence occurred whilst a child, within two years of turning 18 years of age. [emphasis removed]

29.   The only “exception” which could be regarded as in any way relevant to the present case is described in s 40(6). One of the grounds claimed by the Respondent for refusing my objection is that the subsection effectively voids the two-year limitation. That subsection states:

(6)   Claims may continue to be made under an application that is duly made in respect of an act of violence or act of modern slavery until whichever of the following first occurs – [emphasis added]

(a)   the expiration of the period of 5 years after the application is made,

(b)   the total maximum amount of financial support that the victim is eligible to receive under this act in respect of that act of violence or act of modern slavery has been given.

30.   As s 40(6) prescribes that claims may continue to be made, the legislation is clearly extending the 2-year recovery period to cover any payments made beyond the time frame for making an application for financial support or recognition payment.

31.   To avoid confusion the legislation distinguishes between “an application” for victims support, pursuant to s 38(1), and “a claim” made under an application that has been duly made, pursuant to s 40(6). The cross reference is manifest, the “application” must be made within 2 years but “claims” made under that application are permitted beyond that window.

32.   The wording of the Act is clear, claims may “continue to be made” in relation to an application that was “duly made”. The term “duly made”, which appears several times in the Act, has been defined in the World Law Dictionary as:

made in the correct way according to the expected or formal requirements.

33.   However, there is a stronger definition. According to Black's Law Dictionary, “duly” is an adverb meaning “in a proper manner; in accordance with legal requirements”. These “legal requirements” are interpreted as referring to a properly formulated application supported by appropriate documentation (s 39) and made within the specified times (s 40).

34.   As evidence of that proposition, the form itself makes no mention of claims after the statutory two-year period. Only the claims made during the two-year period can be deemed eligible.

35.   Whilst the Commissioner argues that s 40(6)(a) is relevant because the period of 5 years has not elapsed. The suggestion is that the victim “could” make further claims within a window of 5 years after the application was made. This time frame would extend eligibility to make a claim, independent from a restitution order, from 5 January 2018 until 4 January 2023.

36.   On this interpretation, it would seem that the Commissioner is arguing that, in accordance with s 40(6), there is a potential for the present applicant for support to make further claims for a period of five years under the application which was “duly made” on 5 January 2018.

37.   That proposition can be countered by arguing that the claim on the form was a complete claim - the climb was assessed and payment was completed. By suggesting that further claims can be made, the Respondent is opening the door to every past claimant. Thus, even on its own merits, the “5 years” argument is defeated. It is also contrary to public policy.

38.   It can be further argued s 40(6)(b) invalidates s 40(6)(a) as the subsection deems that claims can continue to be made “until whichever of the following first occurs”. To win this point it is only necessary to show that the total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence has been given.

39.   The fact that the total maximum support has been given can be demonstrated by the assessor’s own remarks. The definition of financial support occurs in s 18 as follows:

Financial support means the following –

(a) financial assistance for immediate needs under section 26(1)(b) or 29(1)(b),

(b) financial assistance in respective economic loss under section 26(1)(c), 27 or 29(1)(d),

(c)   funeral expenses under section 29(1)(c).

40. It is common ground that, in relation to financial support, only s 26(1)(b) and (c) applying the present case. The first of these two subsections states:

(b)   financial assistance for immediate needs up to a maximum amount in total prescribed by the regulations to cover expenses for treatment or other measures that need to be taken urgently as a direct result of that act of violence or act of modern slavery, to secure the victim’s safety, health or well-being,

41.   Both Assessor Williams and Assessor To were acting under the delegated authority of the Commissioner of Victims Rights. The report by Assessor Williams includes the following comment in his para 23:

A primary victim can be approved financial assistance for immediate needs to cover the full or partial cost for basic or necessary items, services or treatment, that are required urgently as a direct result of the act of violence, to secure his or her safety, health or well-being. A maximum amount of $5000 can be approved.

42.   Clearly, according to the wording of both the Act and the Commissioner’s delegate, claims for financial assistance relate to “immediate needs” or “measures that need to be taken urgently”. This cannot be justified for a period of five years after the relevant act of violence.

43.   In relation to the claim for financial assistance in respect of “economic loss”, Assessor Williams has reported that a primary victim can claim under a number of sub categories. As well, there is a maximum, total amount of $30,000 which can be claimed by that person.

44.   It is submitted that it claims for “economic loss” is analogous to an insurance claim - an Assessor, in this case Assessor Williams, is required to assess the value of any economic loss suffered by the applicant for financial support within the prescribed amounts payable.

45.   Further, it is clear that the term “financial support”, as defined in s 18, does not incorporate a “recognition payment”, as defined in s 34. Nevertheless, a Category D payment was approved in the amount of $1,500. This is the maximum allowable under s 36 of the Act.

46.   However, the report by Assessor To included the following statements:

20.   …The Applicant is claiming a triple bunk bed, single mattress and double mattress at a total cost of $903.

21.   After careful consideration, I am deferring this claim. I wish to obtain further information as to how these issues are related to the act of violence. Could the Applicant please provide brief written submissions which address the following …

47.   In terms of “making an application” or “making a claim”, the more informal definition of “duly made”, referred to in para 32 above, needs to be used by the bureaucracy as a guide to processing. An example of that is the following definition provided by Law Insider:

Duly made means that we have all the information we need to begin to assess your application.

48.   A fair minded reading of an assessor’s duties would not allow him or her to simply defer the claim sine die, viz no date fixed for it to continue, particularly as that would trigger the five year period described in s 40(6). That, in turn, has the egregious effect of allowing the Commissioner a full 7 years to make an order for restitution by the offender: s 59(2)(a)(i).

49.   It can also be argued that the Commissioner has failed to consider s 39(1) which requires an application for Victim Support to be accompanied by such documentary evidence as may be required by the approved form. Under s 38(4), such an application is to include:

(a)   in the case of actual expenses - receipts coming, invoices or other approved forms of substantiation of the expenditure incurred or to be incurred, or

(b)   in the case of actual loss of earnings - the name and address of the employer, the period of absence from work and a statement from the employer substantiating those particulars.

50.   Whilst it would be reasonable for an Assessor to allow some leeway for an applicant to provide supporting documentation, I cannot understand why two separate assessments were thought warranted. Normal procedure would be for the first Assessor to require submission of documentary evidence under s 39(1) and require full particulars under s 39(3).

51. Given this interpretation, Assessors should seek closure of potential claims within a reasonable time. In fact, three requests are mandated within 12 months: s 41A(1)(b). This could have been done, for example, by setting a deadline for the Applicant’s compliance.

52.   In the present case, the application for support was lodged on 5 January 2018, Assessor Williams’ conditional approval was handed down some three months later on 11 April 2018 and Assessor To’s determination was dated 14 August 2018. On its face, it appears to me that a crisis payment was not disbursed for 7 months. If so, that would be shameful.

53.   An example of fair process is the NSW Civil and Administrative Tribunal itself. Under the heading set aside or vary decision the NCAT website makes the following comment:

Applications to set aside or vary a decision are usually decided “on the papers” without a hearing. you must provide as much information and documentation supporting your application as possible.

54.   I submit that the standard of care of a reasonable bureaucrat in the role of an Assessor would be to phone the Applicant to obtain the further information required. Alternatively, a politely-worded covering letter would have been more productive of a positive outcome.

55.   I would, in fact, go further and suggest that the Assessor should simply have approved that claim and paid out the $903 instead of pussy-footing around. The victim is a mother with children; moving to a safe location requires bedding to be provided to those children. Given claims for other furniture were granted, the Assessor’s denial for bedding is enigmatic.

56. It is also important to recognise s 41A, which allows an application to lapse of evidence to support that application is not provided within 12 months: s 41A(1)(a). The wording of the section implies that an Applicant should be given a reasonable opportunity to provide the necessary evidence: s 41A(1)(b). This can occur after determination: s 41A(2).

57.   The section also provides an application will lapse within 12 months regardless of whether any claim under the application has been determined: s 41A(1)(a). Given this wording only applies to bedding in the present case, it can be interpreted as meaning that an application or any part of that application will lapse if the evidence is not provided.

58.   Whilst there is nothing to indicate that the unresolved issues have led to a lapse and no evidence that the Commissioner has notified the Applicant: s 41A(3), the procedure to do so is in the legislation. The Commissioner cannot argue that claim such as that for $903 for bedding may continue to be made when statutory procedure was not followed.

Part 5 Recovery from Offender

59. Under s 59(1) of the Act, the Commissioner is empowered to make a provisional order for restitution by the offender. It is noteworthy, but not considered significant in the present case, that such an order may be made before or after an approval for the giving of financial support or making of a recognition payment is given.

60. However, it is significant that s 59(2) imposes limitations on the power of the Commissioner to make such an order. In particular, s 59(2)(a) states that an order may not be made if:

(a)   2 years or more have elapsed since –

(i)   the end of the period in which a claim might be made under an application for Victims Support under section 40(6), or

(ii)   the date on which the person was convicted of the relevant offence,

whichever is the later.

61.   As stated in para 18 above, s 40(6) is an exception to s 40(1) which prescribes that an application for financial support or recognition payment must be duly made within 2 years after the relevant act of violence occurred. As the relevant act of violence could not have occurred any later than the last day mentioned in the application viz. 15 September 2017, s 40(1) prescribes that the last day for submission would have been 14 September 2019.

62. Interpretation of s 59(2) is clear, an order for restitution cannot be made if two or more years has elapsed since the later of two specified events (see para 29 above). It is only necessary to identify the date that these two events occurred on and add 2 years to each to calculate which is the operative date in the present case.

63. In considering s 59(2)(a)(ii) first, the date on which the person was convicted of the relevant offence is not necessarily easy to determine. There were 2 offences, one of assault on 10 March 2017 in the second of intimidation on 12 March 2018 (NB. different years).

64.   Whilst the application for support occurred in between those two dates, on 5 January 2018, support had not been given in relation to the first offence at the time of the second: s 19(6). It is conceded, therefore, that they are seen as a series of related acts as defined in s 19. As such the date of conviction may be taken to be the latter of the 2 dates viz. 12 March 2018 notwithstanding the fact that it occurred after the application was submitted.

65. In considering s 59(2)(a)(i) “the end of the period in which a claim may be made under an application for victims support under section 40(6)”, the application was made on 5 January 2018. Five years from that date, in accordance with the first limb of s 40(6), expires on 4 January 2023, it is not the material date – the second limb is the one which occurs first.

66.   The second limb of s 40(6), the total maximum amount of financial support that the victim is eligible to receive under this Act has been given, is easily determined. The notice of decision by Assessor Williams on 11 April 2018 was amended by Assessor To on 14 August 2018. that second decision included the following comment:

An applicant [for financial support] my request in writing an internal review within 28 days of being given notice of the decision.

67.   Taking both decisions together, the Applicant for support was deemed eligible for a payment of $7,668.90. This included rent of $2,219.90 and a recognition payment of $1,500 neither of which were mentioned in the report prepared by Assessor To. With no evidence that the applicant sought a review, it can be assumed that the funds were disbursed in due course.

68.   In this regard, it is clear that one objective of the Act is to encourage prompt resolution of both applications for financial support and orders for restitution by offenders. In both cases, a two-year window has been set for processing (see, for example, s 40 and ss 59 to 60).

69. The language in relation to making orders for restitution is particularly strong - it is expressed in mandatory terms saying an order “may not be made against a person if two or more years have elapsed”: s 59(2)(a). As circumstances in which claims in relation to a valid application for support, may be ongoing, an allowance was made for this purpose: s 40(6)(a).

70.   Again, with an expectation of prompt processing, the extension only applies when claims are genuinely ongoing; claims which are settled cut the time back by occurring first: s 40(6)(b).

Summary and conclusion

71. According to s 59(1) of the Act, the Commissioner may make an order for restitution against a person who has been convicted of a relevant offence. Such an order may not be made if two or more years have elapsed since the later of two specified events: s 59(2)(a), namely:

(i)   the end of the period in which a claim may be made under an application for victims support under section 40(6), or

(ii)   the date on which the person was convicted of the relevant offence.

72.   Whilst it is possible challenge the second date, I would concede that referencing the later conviction (12 March 2018) even though after the application was lodged is appropriate. However, the first of the two dates, that which relates to s 40(6), is more contentious.

73.   Reference to that subsection shows that claims can continue to be made under an application that is duly made until whichever of the following first occurs:

(a)   the expiration of the period of 5 years after the application is made,

(b)   the total maximum amount of financial support that the victim is eligible to receive under this Act … has been given.

74.   In relation to (a) the application for support that was made on 5 January 2018. Five years after that date is 4 January 2023. The order can be made up to 2 years later by 4 January 2025.

75.   However, (b) provides that the 5-year period stops when the applicant is paid out in full. The applicant does not need to have received the maximum amount of financial support it is possible to obtain just the maximum amount of financial support they are eligible to receive.

76.   As the final award of $7,668.90 was made by the Commissioner’s delegate on 14 August 2018, this would be the operative date on which the amount of support “was given”. Two years after that date is 13 August 2020. The Order for Restitution was on 17 November 2021.

77.   Reading ss 40(6) and 59(2) together on the basis that the Applicant was paid out in full, the order restitution of 17 November 2021 was more than two years after either of the two operative dates to be considered:

(1)   the date on which the offender was convicted (viz. 13 March 2018), and

(2)   the date the Applicant was given the financial support (viz. 14 August 2018).

78.   Factually, the only possible argument the commissioner can make his that an amount of $903, for bedding, remained outstanding as a result of the second decision on 14 August 2018, and this had the potential to trigger a late claim over the following 5 years.

79.   I can counter that argument in several ways, the most obvious if which is that the application for support under s 40(1) was not “duly made” according to Laura's it was not accompanied by documentary evidence as required by s 39(1) or particulars as required by s 39(3). In my view, the Commissioner cannot claim 5 years when proper procedure was not followed.

80.   It could be argued that an application for support lapses if 12 months have passed since the Applicant was first requested to provide evidence in support: s 41A(1)(a). Whilst the procedure prescribed by this section was again not followed, the legislative intent is clear.   

81.   As the second notice of decision requesting particulars about bedding, was dated 14 August 2018, it would have last 12 months later on 13 August 2019. Two years after that date viz. 13 August 2021 was still before the order for restitution was made on 17 November 2021.   

82.   The evidence shows an order for restitution made in late 2021 in relation to an application for support in early 2018 (which itself took months to process) was well overdue.

83.   In these circumstances, it is submitted that the grounds of this appeal, that the Order for Restitution made by the Commissioner of Victims Services on 17 November 2021 was out of time and thus contrary to law and void, have been established.

84.   I ask that an order be made that reflects that reality.

Respondent’s submissions

  1. The Respondent filed written submissions on 14 November 2022, and argued that the restitution order should be confirmed under s 67 of the Act because the Applicant was convicted of a relevant offence and the conditions set out in s 59 of the Act have been satisfied. I have summarised the submissions as follows:

  1. The victim lodged an application for victims support on 5 January 2018, with respect to acts of violence that occurred between November 2010 and 15 September 2017, and which named the Applicant as the offender.

  2. On 11 April 2018, an Assessor was satisfied, on the balance of probabilities, that the claimant was a primary victim of an act of violence that occurred over that period of time and approved a category D recognition payment ($1,500), financial assistance of $2,219.90 for rental payments and conditionally approved financial assistance for various household items.

  3. On 14 August 2018, an Assessor released payment to the claimant for the conditionally approved items ($3,919) and approved an additional payment of $50 for financial assistance.

  4. The Applicant was convicted of a relevant offence as defined in s 58 of the Act.

  5. The restitution order was issued within time, as this is set out in s 59(2) of the Act. Under s 59(2)(a)(ii), the must make an order for restitution within 7 years from the date of the application for victims support. As the order was made prior to 4 January 2025, the restitution order was made within time.

  6. While the Applicant argues that the restitution order was made out of time, as the claimant received the maximum amount of financial support that she was eligible to receive in decisions dated 11 April 2018 and 14 August 2018, this argument is misconceived.

  7. Financial support is defined in s 18 of the Act to include financial assistance for immediate needs and financial assistance for economic loss. Section 26 of the Act and regulation 10 of the Victims Rights and Support Regulation 2019 (NSW) provide that a primary victim is eligible for a maximum of $5,000 in financial assistance for immediate needs and $30,000 in financial assistance for economic loss.

  8. Section 40(5) permits a primary victim to continue making claims until the Applicant is approved $35,000 in financial support or 5 years from the date of the application, whichever occurs first.

  9. As the maximum amount of financial support available to a primary victim is $35,000, it is evident that the victim has not met that threshold. Accordingly, she is able to continue to make claims until 4 January 2023 unless she is approved $35,000 in financial support prior to that date. The time limit for issuing a restitution order is two years from 4 January 2023 (or two years from the date the claimant is approved the maximum financial support).

  10. The Applicant seeks a reduction under s 69 of the Act on the following grounds: (a) He was incarcerated for the period between December 2019 and June 2022; (b) He was unemployed from June 2019 until his sentence in December 2019; (c) He was ordered to pay 65% of the value of a property in Family Court proceedings; (d) He was required to borrow a large sum in order to defend himself against criminal prosecutions and his remaining resources were applied to legal costs; and (e) He was poorly represented by his barrister and has since lodged a complaint.

  11. The reference to the quality of his legal representation appears to relate to his ‘culpability’, but the Tribunal does not have power to go behind the findings of a Court.

  12. In relation to the issue of financial hardship, in Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172, the Tribunal referred to the following passage in the matter of Connor v R [2005] NSWCCA 431 at [41]:

… The asserted impecuniosity of an offender against whom a direction is sought … may not ordinarily be regarded as a reason for declining to make a direction… An offender’s impecuniosity may be temporary. His financial position might change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false.

  1. The Applicant’s affidavit of financial circumstances indicates that he receives Centrelink payments and that his expenses exceed his monthly income, but he had not provided any details as to how he meets this shortfall each month. He stated that he was unemployed for a period before his incarceration, but he did not provide details of his employment or training before that and this information is important as it is relevant to his future prospects of employment and future financial position. He indicated that he was completing an MBA degree and that he is currently enrolled in project management subjects.

  1. The respondent argued that based on the decision in Kabir, a deduction in the restitution sum is not warranted under s 69 of the Act. However, noting that the Applicant is currently on parole, having been recently released from prison and being currently enrolled in university subjects, the Respondent was prepared to extend the period for payment of the restitution debt for a period of 12 months from the date of any order by the Tribunal.

  2. The Respondent concluded that if the debt was not received by the due date, it would be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 (NSW). Following this transfer, the Applicant may request a payment plan and any such request will be considered by NSW Revenue and not the Respondent.

  3. Accordingly, the Respondent argued that the Tribunal should: (1) confirm the original decision under s 67(1) of the Act; and (2) confirm the order for restitution under s 67(2A) in the sum of $7,688.90, to be paid on all before 18 November 2023.

Consideration

  1. For the following reasons, I am satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.

  2. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”) Brennan CJ stated, relevantly:

69.   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70.   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71.   Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

  1. I have applied the principles set out in Project Blue Sky to this matter in order to interpret the meaning of ss 39, 40(6) and 41A of the Act and their operation with respect to the issue of a restitution order to an offender who has been convicted of a relevant offence.

  2. In my view, the restrictive interpretation advocated by the Applicant is not consistent with the language and purpose of all the provisions of the Act, and Part 5 of the Act in particular.

  3. There is no case law that supports the Respondent’s restrictive interpretation of the Act and, in my view, if the legislature intended to so restrict the timeframe for the issue of a restitution order to a convicted offender, this should have been expressly stated.

  4. I am not satisfied that the legislature intended to prefer the asserted rights of convicted offenders to the rights granted to victims, which would be a foreseeable outcome of the interpretation sought by the Applicant in this matter. Rather, Part 5 of the Act must be interpreted in accordance with its stated objects, which are set out in s 57 of the Act as follows:

The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.

  1. Section 59(1) of the Act provides that if the Respondent is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, they may make an order for restitution against the person.

  2. “Relevant offence” is defined in s 58 of the Act. Based on that definition and the evidence that is before me, I am satisfied that the Applicant was convicted of a relevant offence.

  3. Section 59(2) of the Act provides that a restitution order may not be made against a person if –

(a)   2 years or more have elapsed since –

(i)   the end of the period in which a claim may be made under an application for victims support under section 40(6), or

(ii)   the date on which the person was convicted of the relevant offence,

Whichever is the later.

  1. I accept the Respondent’s submissions regarding the application and operation of s 59(2) of the Act. As a result, I am satisfied that the victim is able to continue making claims for victims support until 4 January 2023, because she duly made an application for victims support on 4 January 2018, unless she is approved $35,000 in financial support before that date.

  2. Therefore, I am satisfied that the time limit for issuing a restitution order to the Applicant is two years from 4 January 2023, or two years from the date that the victim is approved the maximum in financial support, whichever first occurs.

  3. While the Applicant’s reference to his complaint to the Bar Association regarding the Barrister (who represented him in the criminal proceedings) is possibly a reference to the issue of his “culpability”, this Tribunal has no power to look behind a Court’s convictions. Accordingly, I do not consider this to be a valid basis for any reduction of the restitution debt.

  4. In relation to the Applicant’s asserted financial impecuniosity, I refer to and adopt the passage from the decision in Conner v R, which I cited with approval in my decision in Kabir.

  5. I note that the Applicant told the Tribunal that prior to the act of violence, he was employed full-time as an Engineer and that while he remains qualified to work in that field, he is not yet ready to do so because he is studying full-time and he is currently undertaking a Master of Business Administration degree. Therefore, I consider it unlikely that his current unavailability for employment on the open labour market will continue indefinitely after the successful completion of his current course.

  6. For these reasons, I am satisfied that no deduction to the restitution debt should be made under s 69 of the Act, but that it is appropriate to extend the time for payment of the debt for a period of 12 months from the date of this decision.

Conclusion

  1. Accordingly, I am satisfied that the correct and preferable decision is as follows:

  1. I confirm the Commissioner’s decision dated 17 November 2021 under s 67(1) of the Act; and

  2. I confirm the order for restitution under s 67(2A) of the Act in the sum of $7,688.90, such amount being payable within 12 months from the date of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Amendments

14 December 2022 - Amendments made throughout

Decision last updated: 14 December 2022

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Cases Citing This Decision

1

Murray v Commissioner of Victims Rights [2025] NSWCATAD 233
Cases Cited

3

Statutory Material Cited

6

Connor v R [2005] NSWCCA 431
Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54