Murray v Commissioner of Victims Rights

[2025] NSWCATAD 233

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Murray v Commissioner of Victims Rights [2025] NSWCATAD 233

Hearing dates:

15 August 2025

Date of orders:

22 September 2025

Decision date:

22 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The restitution order is confirmed.

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – whether the order for restitution under s 67(2A) of the Victims Rights and Support Act 2013 (NSW) was made within time

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)

Cases Cited:

Cumbamani v Commissioner of Victims Rights [2022] NSWCATAD 386

Cumbamani v Commissioner of Victims Rights [2023] NSWCATAP 118

Delaney v Commissioner of Victims Rights [2022] NSWCATAD 229

FVK v Chief Commissioner of State Revenue [2023] NSWCATAD 118

Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44

Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797

Texts Cited:

None

Category:

Principal judgment

Parties:

Kane Murray (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Applicant (Self Represented)
K Douch, Victims Services (Respondent):

File Number(s):

2025/00176415

Publication restriction:

Not applicable

REASONS FOR DECISION

Background

1. The applicant applied to this Tribunal for administrative review of a Determination of Objection in relation to a restitution order that was made on 17 April 2025 by the Commissioner of Victims Rights (the respondent) under the terms of the Victims Rights and Support Act 2013 (NSW) (the Act).

Victims support approved for the victim

2. On 2 September 2022, an Assessor approved victims support for the victim in the sum of $6,500, which represented a category D recognition payment and financial assistance for immediate needs in the amount of $5,000, arising from an assault that occurred in NSW between 1 April 2019 and 20 November 2019.

The defendant was convicted of a relevant offence

3. Court records indicate that the applicant was arrested and charged with Stalk/intimidate intend fear physical etc harm (domestic) against the victim and that he was convicted in the Local Court of NSW on 12 August 2020.

Order for restitution

4. On 8 October 2024, the respondent issued an Order for restitution to the applicant pursuant to Part 5 of the Act, which required him to pay restitution in the amount of $6,500. This represented the full amount of victims support that was approved for the victim.

Grounds of objection and evidence in support

5. On 17 November 2024, the applicant lodged an Objection to the restitution order. He filed submissions in support of the objection, which include the following: (1) The restitution order was issued out of time; (2) He was convicted under section 10 of the Crimes (Sentencing Procedure) Act; (3) The actions and behaviour of the victim; and (4) Financial difficulties.

Determination of Objection

6. On 7 April 2025, an Assessor issued a Notice of Determination of Objection pursuant to s 65 of the Act and confirmed the restitution sum as $6,500.

7. The Assessor determined that the applicant had been convicted of a relevant offence as the offence for which he was convicted gave rise to an approval for victims support and the facts underlying the conviction and the facts underlying the approval involve an offence of the same nature against the same person etc. The Assessor also stated that restitution is a civil process that arises from the giving of victims support and is not connected to the criminal proceedings. The Assessor stated, relevantly:

Objection A: Restitution Order was issued out of time

20. An order for restitution can be issued either within a timeframe of 2 years of the victims support claim expiring or within a 2-year period of the criminal proceedings being finalised. A victims support claim can remain open for a period of 5 years. The claim for victims support was made by the victim on 20 November 2019, the 5-year expiry/closure date for this claim would be 20 November 2024. Tere would still be a further period of two years after that time to issue the order for restitution, taking the date to 20 November 2026.

21. The criminal conviction against the defendant was made on 12 August 2020.

22. the later date of the two options mentioned in the above paragraphs would be the expiry of the application for victims support.

23. Given that this date has not yet been reached, I can confirm that the Order for Restitution was lodged within the relevant timeframe.

Objection B: The defendant was convicted under Section 10 of the Crimes (Sentencing Procedure) Act

24. Where a defendant is found guilty without proceeding to a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, that outcome is considered a conviction under section 3 of the Victims Rights and Support Act 2013 for the purpose of seeking restitution.

25. The defendant therefore remains liable, and it is not a sufficient reason to reduce or waive the restitution order,

Objection C: Actions and behaviour of the victim was not taken into account

26. While I have considered the issues raised regarding the victim’s alleged behaviour, that would undoubtedly have been addressed in the criminal proceedings pursued against the defendant.

27. The Court would have taken that into account in determining the guilt/innocence of the defendant and made any appropriate findings accordingly.

28. In spite of these issues, the defendant has been convicted of a relevant offence for which the victim received victims support, it follows that he is liable for the restitution debt due and owing.

Objection D: Financial difficulties

29. The defendant has not provided any documentary evidenced to support the claims raised in the objection, including his current legal, health or financial situation. Therefore, I have no objective information or corroboration on which to base any potential reductions in the amount of restitution the defendant should pay. It is the responsibility of the defendant to provide relevant information to support the objection reasons.

30. Overall, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act.

8. The Assessor noted that if payment in full was not received by the due date, the debt would be referred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 without further notice to the applicant.

Application for administrative review

9. 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.

10. On 8 May 2025, the Applicant filed the current application for administrative review, in which he asserted:

11. Legislation was not applied correctly – Div 6, 40(6)(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.

12. This legislation was omitted from the decision with no reason or explanation, even though it is clear that by enacting this clause the decision would clearly be in my favour.

13. Also no conviction of assault as the payments were prescribed upon – victim of crime is someone who suffers harm from actual physical bodily harm or stolen property.

14. The applicant filed a copy of his submissions on the objection with the application.

The hearing

15. The matter came before me for hearing on 15 August 2025. The applicant was self-represented and MS K Douch, Victims Services, appeared for the respondent.

16. When the matter commenced, the Tribunal ascertained that the only issue that required determination was whether the restitution order was issued within time.

Applicant’s case

17. The applicant filed written submissions, which included the following arguments:

1. Section 59(2)(a)(i) of the Act prohibits a restitution order being made if more than two years have passed since the end of the period in which a claim may be made under s 40(6)

2. Under s 40(6) a claim may continue to be made until “the total maximum amount of financial support that the victim is eligible to receive under this Act … has been given.”

3. In this matter, the victim applied for victims support on 6 April 2020, she was awarded $5,000 for financial assistance for immediate needs and $1,500 for a recognition payment, no claim for economic loss was made and there is no evidence of economic loss. Therefore, the victim received the full extent of financial support they were factually eligible to receive and under s 40(6)(b), the claim period concluded in or around September 2022.

4. The restitution order was made in October 2024, and it therefore falls outside the two-year timeframe, which renders it invalid.

5. The Respondent’s interpretation, that the claim period remained open based on hypothetical eligibility for economic loss – is legally flawed and inconsistent with authorities.

18. The applicant cited the decisions of this Tribunal in Cumbamani v Commissioner of Victims Rights [2022] NSWCATAD 386 (Cumbamani 1), Cumbamani v Commissioner of Victims Rights [2023] NSWCATAP 118 (Cumbamani 2) and Delaney v Commissioner of Victims Rights [2022] NSWCATAD 229, as authority for his argument that the 5-year period only applies if the applicant continues to meet eligibility criteria. He maintained that it does not justify extending a claim period based on theoretical entitlements unaccompanied by evidence.

19. The applicant maintained his argument that he was not convicted of a relevant offence under the Act, as the charge of stalk/intimidate etc against him was finalised by way of a s 10 dismissal on 12 August 2020. The related common assault charge was withdrawn and dismissed and the Court made bi finding of actual or threatened violence causing injury and neither a physical nor psychological injury was proven. Under ss 5 and 19 of the Act, an act of violence must involve actual or threatened injury and a relevant offence under s 58 must be one in which such an act of violence occurred.

20. The applicant relied upon the Tribunal’s decision in Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44, which held, relevantly:

The nature and consequence of the offence must be assessed. The offence name alone is not determinative.

21. The applicant argued that on the facts of this matter, there was no act of violence, and the offence relied on is not a relevant offence for the purposes of the Act. The Police Facts were not those ultimately accepted by the Court and the Court accepted that no harm occurred.

22. The applicant stated that under s 67(3) of the Act, the Tribunal may only confirm the restitution order if it is satisfied that he was convicted of a relevant offence and it cannot simply defer to the Respondent’s classification. While he does not seek to review the victims support that was approved, he asserts that the requirements for restitution under Pt 5 of the Act are not satisfied.

23. The applicant also argued that he is suffering financial hardship and seeks a substantial reduction under s 69 of the Act, as he lost his career as a Correctional Officer as a result of the criminal proceedings, he had to begin again with minimal personal assets, he suffers ongoing financial and mental strain and he faces cost of living pressures whilst supporting dependants.

Respondent’s case

24. The respondent filed written submissions which argued to the effect that the restitution order was issued within time and that s 40(6) of the Act means that the victim can continue to make claims for victims support for a period of 5 years or until a maximum of $35,000 support is approved.

25. The respondent relied upon the decision in Cumbamani 2, in which the appellant raised the same argument as the applicant in this matter regarding the timeframes for issuing a restitution order. The Appeal Panel preferred their interpretation of the legislative timeframes to that which was proffered by the appellant, and it expressly stated that the restrictive interpretation proffered by the appellant should not be accepted.

26. The respondent argued that the restitution order should be confirmed.

Relevant legislative provisions

27. Section 59 of the Act provides:

Commissioner's discretion to make provisional order for restitution by offender

(1) If the Commissioner 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, the Commissioner may make an order for restitution against the person.

(2) An 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, or

(b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.

28. Section 61 of the Act provides:

Notification of decision

(1) The Commissioner must serve notice of an order for restitution personally or by post on the person against whom it was made.

(2) The notice must-

(a) set out the terms of the order, and

(b) include a statement of the grounds on which the order was made, and

(c) set out the effect of sections 63 and 64, and

(d) set out an explanation of-

(i) the right to object, within 28 days after the notice is served to the order and the procedure for objecting, and

(ii) the effect of objecting or failing to object.

29. Section 62 of the Act provides:

Objection to order

(1) A person served with notice of an order for restitution may lodge a written objection to the order with the Commissioner.

(2) The objection must be lodged within 28 days (or such longer period, not exceeding 90 days, as the Commissioner may allow) after the notice was served.

(3) The grounds for the objection must be stated fully and in detail in the objection.

(4) On an objection, the defendant has the onus of proving the defendant's case.

30. Section 64 of the Act provides:

Powers of Commissioner on objection

(1) After considering an objection, the Commissioner may-

(a) allow the objection in whole or in part or disallow the objection, and

(b) confirm the decision to which the objection was made (with or without variations) or reverse that decision.

(2) The Commissioner may confirm the order for restitution if the Commissioner confirms the decision to which the objection was made (with or without variations).

(2A) Before confirming the order, the Commissioner may vary the order by reducing the amount payable under it.

(3) The Commissioner must revoke the order for restitution if the Commissioner reverses the original decision.

(4) For the purpose of enabling a defendant to apply to the Tribunal for an administrative review, the Commissioner is taken to have failed to determine an objection if 90 days have passed since the objection was lodged with the Commissioner.

(5) The Commissioner's failure to determine an objection within the period referred to in subsection (4) does not prevent the Commissioner from continuing to deal with the objection after that period has expired.

(6) In calculating a period referred to in subsection (4), the period between the date on which the Commissioner requests further information or supporting evidence from the defendant in relation to the objection and the date on which that further information or supporting evidence is furnished is excluded.

31. Section 66 of the Act provides:

Administrative reviews by Tribunal

(1) The defendant may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which an objection was made if-

(a) the defendant is dissatisfied with the Commissioner's determination of the objection, or

(b) 90 days have passed as referred to in section 64 since the objection was lodged with the Commissioner and the Commissioner has not determined the objection.

(2) The applicant's and respondent's cases on an application for an administrative review are not limited to the grounds of the objection.

(3) The applicant has the onus of proving the applicant's case in an application for an administrative review.

(4) An application for an administrative review-

(a) following a determination by the Commissioner of an objection-must be made not later than 60 days after the date of issue of the notice of the Commissioner's determination of the objection, or

(b) following a failure of the Commissioner to determine an objection within the relevant 90-day period-may be made at any time after the end of that period (but must be made as required by paragraph (a) following a subsequent determination of the objection by the Commissioner).

(5) The Tribunal may extend the time for making an application for an administrative review.

(6) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application made under this section-

(a) Part 2 of Chapter 3,

(b) section 55 (3)-(6),

(c) Division 2 of Part 3 of Chapter 3.

(7) For the purposes of section 58(1)(a) of the Administrative Decisions Review Act 1997-

(a) the obligation of the Commissioner under that paragraph to lodge a statement of reasons with the Tribunal in respect of an application is limited to providing the Tribunal with a statement of reasons only in respect of the matters arising from the grounds specified in the application, and

(b) if one of the grounds specified in the application relates to a matter raised in an objection determined by the Commissioner-the Commissioner may rely on reasons previously given to the defendant by the Commissioner under this Act for the determination of the objection in explanation of that part of the original decision.

(8) In any review proceedings, a person who is a victim of the relevant offence to which the proceedings relate is competent, but not compellable, to give evidence or produce documents.

Note-

See also section 113 which provides that an application for victims support and any documents supporting the application are, subject to that section, not admissible as evidence in any legal proceedings.

32. Section 67 of the Act provides:

Powers of Tribunal on administrative review

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

(a) confirm the original decision the subject of review (with or without variations) or reverse that decision, 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.

(2A) The Tribunal may confirm the order for restitution the subject of the review proceedings if the Tribunal confirms the decision to make the order (with or without variations).

(3) The Tribunal may confirm an order for restitution 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 an order for restitution 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.

Consideration

33. Based on a consideration of all of the available evidence, I am satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence with respect to which the applicant was convicted.

34. In Cumbamani 2, the Appeal Panel expressly stated:

36 In our view, the Act and in particular s 40(6) of the Act should not be given the restrictive interpretation urged upon us by the Appellant.

37 We note that the Act is beneficial legislation that is intended to support victims of crime: see Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797, at [33].

38 The ability to make further claims under an existing application is an important part of the Act and a beneficial provision supporting victims’ rights. In other words, the scheme of victims’ compensation does not take a ‘once and for all’ approach to a claim for compensation.

39 Within the eligible five-year period after an application is lodged, a victim can come back with further or different evidence in respect of a claim. For example, if a victim suffers an exacerbation of a medical condition, he or she can make a further claim for further compensation.

40 In our view, this beneficial approach is supported by the second reading speech for the Victims Rights and Support Amendment (Statutory Review) Bill 2018 where the Attorney-General stated:

‘key features of the victims’ support scheme is that applications for victim support remain open for five years. Therefore, claims for financial assistance can continue to be made until the total amount of available financial support has been exhausted during that five-year period.

41 In our view, there is no warrant for limiting further claims to the categories of expenses nominated in the initial application or to claims or expenses that have been sufficiently ‘foreshadowed’ in that application.

42 For example, a victim who applies for immediate financial assistance and out-of-pocket expenses is not required to indicate or foreshadow that there may be a subsequent claim for medical expenses.

43 There was no error in the Decision of the Tribunal that the order for restitution was made within time. Accordingly, we reject this ground of appeal.

35. Based on this decision, I am satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.

36. In this matter, the evidence before the Assessor supported the respondent's decision to approve victims support totalling $6,500. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the victim.

37. I note that there is no affidavit or statutory declaration verifying the applicant’s alleged financial difficulties and I have no evidence before me that warrants the exercise of my discretion to reduce the amount of restitution that is required to be paid.

38. For these reasons, I am satisfied that the correct and preferable decision is to confirm the restitution order under s 67 (1) of the Act.

Conclusion and orders

39. I make the following order:

1. The restitution order is confirmed.

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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

Decision last updated: 22 September 2025