Hajeid v Commissioner of Victims Rights

[2018] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hajeid v Commissioner of Victims Rights [2018] NSWCATAD 23

Hearing dates:

27 October 2017

Date of orders:

30 January 2018

Decision date:

30 January 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The decision of the Commissioner’s delegate dated 1 June 2017 is confirmed:

 

a) In relation to Debt no. D061938 - in the sum of $3,000 by way of instalments of $40 per month.

 b) In relation to Debt no. D061939 - in the sum of $3,000 by way of instalments of $40 per month.

Catchwords:

Victims’ Rights and Support – administrative review - restitution order against person convicted of relevant offence – Bankruptcy Order made after the date of Provisional Order but before determination of Objection – Whether the Restitution Order is a provable debt that is extinguished by a Bankruptcy Order

Legislation Cited:

Administrative Decisions Review Act 1997
Bankruptcy Act 1966 (Cth)
Civil and Administrative Tribunal Act 2013 (No. 2)
Victims Rights and Support Act 2013
Victims Support and Rehabilitation Act 1996

Cases Cited:

Southern Cross Mines Management PL v Ensham Resources and Ors [2006] QCA 531

Category:

Principal judgment

Parties:

Bellal Hajeid - Applicant
Commissioner of Victims Rights – Respondent

Representation:

Solicitors:
B Hajeid – Applicant in person
Victims Services Legal Branch - Respondent

File Number(s):

2017/00228656

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.

REASON FOR DECISION

Background

1. In this matter, Mr Bellal Hajeid (“the Applicant”) has made an Application for Administrative Review of a Restitution Order made on 1 June 2017, by the Delegate of the Commissioner of Victims Rights (“the Commissioner”) in relation to an Objection lodged by the Applicant. That decision varied the amounts that were payable under two separate Provisional Orders for Restitution that were made in respect of the following applications:

Matter no. RT77680

2. On 25 September 2001, the victim claimed statutory compensation under Victims Support and Rehabilitation Act 1996 (“the Old Act”) as a primary victim of an act of violence that occurred on 10 August 2000. She claimed compensation for the compensable injuries of “Category 3 sexual assault” and “Psychological or Psychiatric Disorder - Moderately Disabling”.

3. On 28 December 2001, the applicant was convicted in the District Court of New South Wales of the offences of “Detain for advantage and cause injury to victim” and “Aggravated sexual assault – offender in company with other persons”.

4. On 31 October 2002, the Victims Compensation Tribunal awarded the victim statutory compensation in the sum of $50,000 for the compensable injury of Sexual Assault – Category 3.

Matter no. RT81354

5. On 12 August 2002, the victim lodged a further application for compensation, as a primary victim under the Old Act, with the Victims Compensation Tribunal in respect of the acts of violence that occurred on 10 August 2000. She claimed compensation for the compensable injury of “Category 3 sexual assault”.

6. On 28 December 2001, the applicant was convicted in the District Court of New South Wales of the offences of “Detain for advantage and cause injury to victim” and “Aggravated sexual assault – offender in company with other persons”.

7. On 25 February 2003, the Victims Compensation Tribunal awarded the victim statutory compensation in the sum of $50,000 for the compensable injury of Sexual Assault – Category 3.

Provisional Orders for Restitution

8. One of the objects of the old Act is “to enable the compensation paid under the statutory compensation scheme to be recovered from persons found guilty of the crimes giving rise to the award of compensation” (see: s 3 (b)).

9. Division 8 of the Old Act is concerned with the recovery of compensation from offenders. S 46 (1) gives the Director a discretion to make a provisional order against a person convicted of a relevant offence after an award of statutory compensation has been made to the victim.

10. Relevant offence is defined in s 46 (2) of the Old Act as:

(a) an offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made, or

(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.

11. S 46 (5) of the Old Act provides that a provisional order for restitution cannot be made against a person if 2 years or more have elapsed since the later of the date on which the relevant award of statutory compensation was made, or the date on which the person was convicted of the relevant offence; or civil proceedings by or on behalf of the State to recover damages are on foot.

Both Matters

12. On 28 September 2004, the Victims Compensation Tribunal issued a Provisional Order for Restitution in the sum of $50,000, in respect of each of the awards of statutory compensation, under s 46 of the Old Act.

13. Copies of the Provisional Orders was posted to the Applicant on 30 September 2004 under cover of a letter from the Director dated 28 September 2004. I am satisfied that the Provisional Orders were served on the Applicant as required by s 46 (3) of the Old Act.

14. S 47 of the Old Act gives a person upon whom a Provisional Order is served a period of 28 days in which to make a written objection. I note that the Director’s letter to the applicant also stated (relevantly):

…As you are currently imprisoned in above Correctional Centre, if you file a Notice of Objection to a Provisional order within 28 days of the date of this letter, further restitution proceedings will be postponed until such time as you are released from prison.

Upon your release, you will be required to write to the Director to advise of your new postal address. The file will then be re-activated and suitable arrangements may be made to either pay the amount in full, to make an arrangement to pay the amount by instalments or to contest the payment of the amount provisionally ordered at a full hearing before a Tribunal Member…

15. On 26 October 2004, the applicant lodged a Notice of Objection to the Provisional Orders, in which he stated that he had an appeal pending before the High Court of Australia and that he was currently in prison.

16. S 49 of the Old Act provides:

Hearing by Tribunal to confirm provisional order for restitution if defendant objects to order

(1) If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed (in this Division called recovery proceedings).

(2) The Tribunal may confirm a provisional order made under section 46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied, it must discharge the provisional order.

(2A) The Tribunal may confirm a provisional order made under section 46A if satisfied that:

(a) a person against whom a provisional order for restitution has been made under section 46 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 defendant 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 discharge the provisional order.

(3) The Tribunal may vary a provisional order for restitution that it confirms.

17. However, the Victims Compensation Tribunal had not determined either of the Notices of Objection under s 49 (1) of the Old Act before 3 June 2013.

18. The Old Act was then repealed and was replaced by the Victims Rights and Support Act 2013 (“the Act”). Cl 16 (3) of Sch 2, Savings, Transitional and Other Provisions of the Act, provides (relevantly):

16 Recovery proceedings against offender for amount payable under statutory award of compensation

(3) A provisional order for restitution made in respect of a statutory award of compensation under Division 8 of Part 2 of the repealed Act before its repeal in relation to which a notice of objection has been filed but in respect of which no hearing under section 49 of the repealed Act has commenced is taken on that repeal to have been a provisional order in respect of which an objection has been lodged under section 62 of this Act and is to be dealt with accordingly.

19. It is therefore appropriate to treat the applicant’s objections as if they were lodged under s 62 of the Act.

20. Section 64 of the Act gives the respondent the discretion to allow an objection in whole or in part, and reverse, vary or confirm the decision to which the objection was made. However, it does not prescribe any matters that the respondent must consider in doing so.

21. The amount payable under the Provisional Order may be recovered by the respondent upon the confirmation of the decision under s 64 (1) of the Act (see: s 64 (2)).

22. On 11 April 2017, that the Respondent wrote to the applicant’s solicitors, advising them that the Objections were listed for hearing on 30 March 2017, and that determination was deferred under s 65 of the Act. The Notice of Deferral of Objection stated (relevantly):

Introduction

1. On 28 September 2004, the Commissioner of Victims Rights (the Commissioner) made a provisional order for the payment of restitution of $50,000 by Bellal Hajeid, the defendant in these proceedings.

2. On 26 October 2004, the defendant lodged a notice of objection to the provisional order, stating that he was then in prison but that he had an appeal pending to the High Court.

3. The defendant was advised of and served with a copy of the provisional order on the 22 November 2016, after his discharge from prison. The defendant lodged further objections to the provisional order on the 9 December 2016. These reasons deal with the defendant’s objection.

4. I have considered the defendant’s objection and I am prepared to defer the consideration of this matter for a period of six weeks, to allow the defendant time to provide any further financial information or other submissions he wishes to make in this matter, prior to making a final decision.

5. So that the defendant can understand their rights and obligations, I am required to set out my understanding of the applicable law, the information that I have relied on in making my decision and my reasons for my decision.

Applicable Law

6. This determination is conducted in accordance with part 5 of the Victims Rights and Support Act 2013 (the VRS Act). The purpose of Part 5 of the VRS Act is to allow victims support that has been paid by the State to be recovered from persons found guilty of the crimes giving rise to those payments.

7. The VRS Act enables the Commissioner to make a provisional order against a person for payment of restitution if the Commissioner is of the opinion that a person has been convicted of a “relevant offence”. A relevant offence includes 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.

8. If I am of the opinion that the defendant has been convicted of a relevant offence, then I may confirm the provisional order. I may also reduce the amount of restitution that the defendant is required to pay having regard to any objections raised. If I am not of the opinion that the defendant has been convicted of a relevant offence, then I must reverse and discharge the provisional order, meaning that the defendant is not required to pay restitution.

Facts

…

10. On 20 December 2001, the defendant was convicted of detain to advantage and cause injury to victim and aggravated sexual assault in company with other persons in the Sydney District Court and received a custodial sentence.

11. The defendant appealed against the severity of his sentence only and new sentences were given on the 16 September 2005 but the original conviction stood.

12. The facts giving rise to the conviction are stated in the police reports and court documents in the application, together with the decision of the Court of Criminal Appeal of the 16 September 2005.

13. The facts giving rise to the award of victims support are stated in the Assessor’s determination of 31 October 2002. The Victim was given a compensation payment of $50,000.00 for a sexual assault, category 3.

Grounds of Objection, Submissions and Evidence in Support

14. The defendant originally stated that he had intended to appeal to the High Court, and Victims Services requested Mr Hajeid’s solicitors inform them of any such appeal if it proceeded.

15. No such information has been provided to Victims Services at this time.

16. The defendant says in his objections that as one of 5 other co-offenders, he considers that any restitution should be divided by the co-offenders equally.

17. Mr Hajeid also advised that he had been made bankrupt on the 13 May 2016 and on that basis, he is not liable for any restitution debt.

18. The defendant provides no further information on his present financial situation, such as an Affidavit of Financial Circumstances and any other documents that set out his current financial situation.

Consideration

Should the provisional order be confirmed or varied?

19. The defendant was convicted of offences arising from substantially the same facts as those constituting the act of violence in respect of which the award of victims support was made.

20. I have considered the one-page document from the Australian Financial Security Authority of the 19 May 2016, stating that Mr Hajeid became bankrupt on the 13 May 2016.

21. I have considered whether the Provisional Order issued on the 28 September 2004 is a ‘provable debt’ for the purposes of a defendant becoming bankrupt at a later point in time, thus releasing the defendant from that debt.

22. I am of the opinion that a Provisional Order under the Act does not amount to such a debt, and therefore the fact that a defendant becomes bankrupt, prior to a Restitution Order being made, does not exclude the defendant from being responsible for that debt.

23. For that reason, I am not prepared to waive the provisional order on the basis if this objection. However, it may be a relevant consideration if it is reflected in Mr Hajeid’s actual financial situation at this time.

24. On that basis, I intend to defer this matter for a period of six weeks, to allow Mr Hajeid time to provide actual information on his actual financial situation, in the form of an Affidavit of Financial Circumstances and any other financial documents he may wish to provide.

23. The Objections were finally determined on 1 June 2017, by which time the applicant had lodged an Affidavit of Financial Circumstances and other evidence in support of the objections. The Respondent’s Delegate described the applicant’s evidence as follows:

29. The defendant also provides a copy of a Statutory Declaration from one of the other victims that says she did not positively identify the defendant and therefore was prepared to say that unlike the other co-offenders, she considered that the defendant should not have been found guilty of the charges…

32. I note the contents of the Statutory Declaration, provided by one of the victims in the course of the criminal proceedings, but I note that this document was considered by the High Court to express an opinion but was not accepted by them as sufficient to lead them to granting leave to appeal the matter.

33. It is the case that these proceedings are by way of debt collection proceedings in relation to victims’ compensation and it is not possible to review the decision made by any criminal court or to go behind the findings of the court,

24. The Respondent’s Delegate noted that the applicant had lodged pay slips that evidenced current employment, but that his alleged expenses exceeded his income and he had not provided any explanation as to how he met the shortfall. However, the Delegate was satisfied that the applicant and his partner appeared to have very little disposable monthly income. Based largely upon the applicant’s submission that he was one of five co-offenders, the Delegate determined that it was appropriate to significantly reduce the amount of restitution payable in each matter to $6,000, which the applicant was required to pay by instalments of $40 per month.

25. The Delegate confirmed the opinion expressed in the Notice of Deferral, to the effect that the Provisional Orders for restitution are not ‘provable debts’ in the applicant’s bankruptcy and that the amounts payable under the Restitution Orders are not extinguished by the bankruptcy.

Service of Determinations of Both Objections

26. Copies of the Notices of Determinations of both Objections and Restitution Orders were served upon the applicant by post under cover of the respondent’s letter dated 5 June 2017. I am therefore satisfied that these documents were properly served upon him.

Application for Administrative Review

27. The powers of the Tribunal upon administrative review are set out in s 67 of the Act, relevantly, 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.

…

(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…

28. On 27 July 2017, the Tribunal received an Application for Administrative Review dated 20 July 2017, which sought review of the decisions made by the Commissioner in relation to both Objections.

29. Annexed to the application was a document dated 20 July 2017, signed by the applicant, which was described as “an appeal against the respondent’s findings”. It set out the following grounds of review (relevantly):

…Despite my objections to the Commissioner of Victims Rights with regard to two restitution orders being debtor number D061938 and D061939 the Commissioner made a determination dated 1 June 2017 where the original restitution orders were varied, however, despite the situation the Commissioner found I was liable to pay $6,000 for each restitution order.

I raise the following arguments against the finding of the Commissioner of Victims Rights:

1. On 13 May 2016 I became bankrupt, please see the attached letter dated 27 June 2017 from Australian Financial Security Authority, which also contains:

i. Statement of creditors of which NSW Victims Services is noted as a known creditor;

ii. Notification of Bankruptcy.

2. The proceedings commenced by NSW Victims Services was initially commenced on 28 September 2004 which is before the date of Bankruptcy being 13 May 2016 and any orders arising from the proceedings are captured by the Notification of Bankruptcy and that is why the Trustee Australian Financial Security Authority have noted correctly as a known creditor the NSW Victims Services.

3. I would like to highlight that the restitution orders are being made to recover payments made to the victims and they are not final penalties, so they fall within the ambit of the Notification of Bankruptcy.

4. The restitution orders are not Court imposed orders such as where the Court has made an order:

i. The fine is imposed on the offender;

ii. at the offender paper victim.

Hence as they are not Court imposed orders they fall within the ambit of the Notification of Bankruptcy.

5. As stated I am a bankrupt and as such have limited income, to impose these restitution orders were placed undue financial pressure upon me and my wife. I have stated previously in my objections that I cannot afford to pay the restitution orders which means I will be in default. If I am in default how will the Victims Services of NSW be able to enforce payment through the NSW Courts when:

i. Victims Services NSW are noted as known creditors;

ii. that I am a declared Bankrupt.

I only raise this point as there is the possibility that unnecessary action may be taken against me which I am trying to avoid.

30. I am satisfied that the current application it was lodged within 60 days of the date upon which the applicant received the Determinations of the Objections and Restitution Orders from the respondent.

31. On 28 September 2017, the respondent lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”). These were comprehensive and complete and were served upon the applicant.

32. The current application came before me for Directions on 29 September 2017. The Applicant appeared in person and Mr Singh appeared for the Respondent. Neither party wished to file any further evidence and the matter was listed for hearing on 27 October 2017.

33. At the hearing of the matter on 27 October 2017, the applicant again appeared in person and Mr Singh appeared for the respondent. Mr Singh sought to rely upon written submissions. Leave to file the submissions was granted as the applicant confirmed that a copy had been served upon him.

34. The Tribunal expressed the preliminary view that the only issue that required determination was that of whether the Restitution Orders belonged to a class of debts that were ‘Provable and Extinguished’ in the applicant’s bankruptcy. If they were provable and extinguished debts, the respondent has a right to lodge a claim in the applicant’s bankrupt estate but cannot otherwise continue to demand (and/or recover) payment from the applicant. If they were not provable and extinguished debts, the Restitution Orders remain payable by the applicant despite his bankruptcy.

Applicant’s Submissions

35. The applicant relied upon the submissions that he lodged with his application (set out previously in this decision) and he maintained that he should not have to pay any money by way of restitution because “the debt is captured by the bankruptcy”.

Respondent’s Submissions

36. The relevant parts of the respondent’s submissions are as follows:

Effect of Bankruptcy

8. Section 82 of the Bankruptcy Act1966 (Cth) sets out the debts and liabilities that are provable in a bankruptcy. Section 82 (1) relevantly provides:

(1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

9. At the time Mr Hajeid was made a bankrupt, Provisional Orders had been issued against Mr Hajeid under section 46 of the 1996 Act. The issue which must be considered is whether the Provisional Orders amount to:

a. Debt/liability, present or future, certain or contingent to which a bankrupt is subject at the date of the bankruptcy

b. To which Mr Hajeid may become subject before the discharge by reason of an obligation incurred before the date of the bankruptcy.

Effect of Provisional Order under the 1996 Act

10. Under the 1996 Act, the provisional order may be confirmed under the following sections:

a. Section 48 (without hearing where there is no notice of objection filed within the 28 days) or

b. Section 49 (where a notice of objection is filed, following a hearing before the Tribunal). The Tribunal could discharge reduce a restitution order for various reasons set out in sections 49 and 51 of the 1996 Act.

11. Pursuant to section 51 of the 1996 Act, a provisional order becomes an order for restitution following a determination by the Tribunal. Finalised order for restitution was enforceable under section 54 of the 1996 Act.

12. In Mr Hajeid’s circumstances, whilst an objection had been lodged, the Provisional Order was not confirmed under section 49 of the Act.

13. Pursuant to section 50 of the 1996 Act, the Director (now the Commissioner) and a defendant had the ability to come to an arrangement with respect to payment under a Provisional Order. If a defendant did not comply with such an arrangement, recovery proceedings could be taken for the purposes of confirming the Provisional Order.

14. Having regard to the above, there was no provision for the enforcement of a Provisional Order. Whilst the parties could come to some arrangement regarding payment of a Provisional Order, enforcement action referred to in section 54 of the 1996 Act could only be taken once the Provisional Order was confirmed. It is submitted that for this reason a Provisional Order cannot be considered a “present” liability for the purposes of section 82 of the Bankruptcy Act 1996 (Cth).

15. A Provisional Order under the 1996 act only became a restitution order following recovery proceedings (a hearing). The matters which the Director could take into account included the financial means of a defendant and such other matters as are, in the opinion of the Tribunal, relevant to the determination (see section 51 of the 1996 Act). The wide ambit of matters that the Tribunal could consider before a Provisional Order was confirmed evidences the discretion available to the Tribunal with respect to the confirmation of a Provisional Order.

Effect of Provisional Order under the Victims Rights and Support Act 2013 (“the 2013 Act”)

16. Clause 16 (3) of Schedule 2 of the 2013 Act relevantly provides:

A provisional order for restitution made in respect of a statutory award of compensation under Division 8 of Part 2 of the repealed Act before its repeal in relation to which a notice of objection has been filed but in respect of which no hearing under section 49 of the repealed Act has commenced is taken on that repeal to have been a provisional order in respect of which an objection has been lodged under section 62 of this Act and is to be dealt with accordingly.

17. Section 64 of the 2013 Act gives the Commissioner discretion to allow an objection in whole or in part, and reverse, vary or confirm the decision to which the objection was made. The section does not specify any specific matters which the Commissioner is required to take into account in confirming a Provisional Order or in reversing, or varying it.

18. The amount payable under the provisional order may be recovered by the Commissioner upon confirmation of the decision under section 64 (1) of the 2013 Act (see s 64 (2) of the 2013 Act).

19. Section 68 of the 2013 Act provides some insight into a defendant’s liability under a Provisional Order. The Commissioner and the defendant may enter into an arrangement with respect to payment under a provisional order however of the defendant does not comply with the arrangement, the Commissioner may take review proceedings of the purposes of confirming the provisional order (see: s 68 (4)). In the respondent’s view, this evidence is that until a Provisional Order is confirmed, enforcement action is not available with respect to a Provisional Order. The Provisional Order does not create a liability that the defendant is required to satisfy until and, if and only if, it is confirmed.

Analysis

20. Neither the 1996 Act nor the 2013 Act allow for recovery under the Provisional Order until it is confirmed.

21. As noted in paragraphs 14 and 16 above, the Tribunal (under the 1996 Act) had a wide discretion in confirming a Provisional Order following an objection. Whilst upon the satisfaction of certain factors (the making of the payment and a conviction for the relevant offence), the Commissioner may issue a Provisional Order, there are no rules/guidelines that require or suggest:

a. That the issuance of a Provisional Order creates an immediate liability or debt owing by a defendant; or

b. Creates a presumption in favour of confirming a Provisional Order and converting it into an order for restitution.

22. The liability (one which is enforceable under the 1996 Act or the 2013 Act) is created upon the confirmation of the Provisional Order.

23. In considering whether the Provisional Order is a contingent liability (as referred to in section 82 of the Bankruptcy Act 1966), the respondent relies on the decision in Southern Cross Mines Management PL v Ensham Resources and Ors [2006] QCA 531. This matter concerned whether a costs order made against a bankrupt after the date of bankruptcy was provable in the bankruptcy given that the costs order was made in proceedings commenced before the act of bankruptcy and one in which a judgement had been obtained in the substantive proceedings against the bankrupt.

24. It was held by the QLD Court of Appeal that the costs orders were not provable in the bankruptcy. The judgement of Jerrard J referred to the case law and changes in the position as to whether costs orders made to bankruptcy were provable in bankruptcy (the present position being that such costs orders are not provable):

Those, and other text references were advanced in support of Mr Dunning’s argument that the decision under appeal reverses long settled principles applied in bankruptcy law. If it did, it was because in the twentieth and twenty first centuries the courts have repeatedly emphasised the discretionary nature of an order for costs, as the reason the prospect of such an order was not a contingent liability.

25. In applying the principles in Southern Cross Mines Management, the respondent submits that the issue of a Provisional Order was not a contingent debt given the wide discretion available to the Commissioner at the time the order was confirmed on 1 June 2017.

26 The respondent submits that the Restitution Orders D061938 and D061939 are not captured by Mr Hajeid’s bankruptcy and remain payable by Mr Hajeid.

27. The provisional orders have been significantly reduced (from $50,000 each to $6000 each) and no further reduction of the debt should be allowed.

Consideration

37. Based upon a consideration of all of the available evidence in the matter I am satisfied that the applicant was convicted of a relevant offence in respect to each matter in which statutory compensation was awarded to the primary victim under the old Act.

38. I am also satisfied that the Provisional Orders for restitution were properly issued and served upon the applicant as required by the Old Act and that while he lodged Objections under the Old Act, the Victims Compensation Tribunal deferred the determination of the objections pending the applicant’s release from prison. The Objections were not finally determined before the repeal of the Old Act and they were properly determined by the respondent on 1 June 2017, pursuant to Schedule 2 of the Act. As a result, both the determination of the objections and issue of the Restitution Orders post-dated the date upon which the applicant became bankrupt.

39. The applicant submits to the effect that the Trustee in Bankruptcy noted the Provisional Orders (which totalled $100,000) as provable debts in his Bankruptcy and that this means that “debts” were captured by the bankruptcy and he should not be liable for amounts payable under the Restitution Orders dated 1 June 2017.

40. However, the fact that the applicant disclosed the existence of the Provisional Orders to his Trustee in Bankruptcy is evidence only of the fact that he believed that he owed “debts” under the Provisional Orders (totalling $100,000) when he became bankrupt.

41. However, this does not of itself establish that the amounts sought under the Provisional Orders are “debts” that are provable and extinguished by the bankruptcy and this is particularly the case where the amounts payable by way of restitution were significantly varied by the respondent’s determinations on 1 June 2017.

42. I accept the respondent’s submissions that no final restitution order was made against the applicant until the Objections were finally determined on 1 June 2017, as a result of which Restitution Orders were issued that required the applicant to pay a total of $12,000.

43. I am satisfied that the applicant did not owe any debt to the respondent by way of restitution when he became bankrupt in 2016. Although he had been on notice of a claim for restitution since 2004, when the Provisional Orders were initially issued under the Old Act, his liability to pay restitution arose on 1 June 2017 when the Restitution Orders were issued. These orders post-date the bankruptcy and the applicant’s liability under those orders is neither captured nor extinguished by the bankruptcy.

44. Pursuant to Section 67 (1) (a) of the Act, I confirm the order made by the Respondent on 1 June 2017, which requires the Applicant to make restitution as follows:

1. The decision of the Commissioner’s delegate dated 1 June 2017 is confirmed:

1. In relation to Debt no. D061938 - in the sum of $3,000 by way of instalments of $40 per month;

2. In relation to Debt no. D061939 - in the sum of $3,000 by way of instalments of $40 per month.

********

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

Decision last updated: 30 January 2018