Scott Cottrell v Commissioner of Victims Rights

[2021] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Scott Cottrell v Commissioner of Victims Rights [2021] NSWCATAD 61

Hearing dates:

12 March 2021 (on the papers)

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The application for administrative review is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Victims Rights and Support – restitution order against person convicted of relevant offence – lack of jurisdiction where the applicant failed to object to the provisional order for restitution

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing and Procedure) Act 1999

Victims Rights and Support Act 2013

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Scott Cottrell (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
West Tamworth Legal (Applicant)
Victims Services (Respondent)

File Number(s):

2020/00307021

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

1. The applicant has made an application for administrative review of a decision confirming a restitution order, which was made by a delegate of the Commissioner of Victims Rights (the respondent) on 4 September 2020. This required the applicant to pay restitution of $8,219, being the victims support that was approved for the victim in respect of an act of violence committed by him. The provisional order was made pursuant to s 59 of the Victims Rights and Support Act 2013 (the Act) and it was confirmed under ss 63 (1) (a) and 70 (b) of the Act in circumstances where the applicant did not lodge an objection to the provisional order.

2. The applicant has also sought an order that enforcement of the restitution order be stayed pending determination of his application for administrative review. He argues to the effect that he was unable to respond to the provisional order, by lodging an objection, due to “extraordinary circumstances at play when the orders were made”.

3. However, the respondent objects to the Tribunal’s jurisdiction to determine the application and argues that s 66 of the Act confers administrative review power upon the Tribunal in respect of decisions to which an objection was made.

4. Section 66 of the Act provides:

66 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.

   5. 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.

6. Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) provides:

9 When administrative review jurisdiction is conferred

1. The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

   (a)   in the exercise of functions conferred or imposed by or under the legislation, or

   (b)   in the exercise of any other functions of the administrator identified by the legislation.

2. If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

3. A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

   (a)   a decision made by a person to whom the function of making the decision has been delegated,

   (b)   if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

   (c)   a decision made by any other person authorised to exercise the function of making the decision.

4. If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:

   (a)   the person for the time being holding or performing the duties of that office or appointment, or

   (b)   if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies.

5. Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

   7. It is necessary to determine the jurisdictional issue before considering the grounds of the applications for administrative review and for a stay of execution of the restitution order.

Victims support approved for the victim

8. On 15 December 2014, the victim lodged an application for victims support under the Act. It alleged that the victim was a primary victim of domestic/family violence that was perpetrated by the applicant over a period of time “of and on from 2003” until November 2014. The victim alleged that she suffered both physical and psychological injuries as a result of the act of violence and she sought victims support in the form of counselling, financial assistance for immediate needs and economic loss and a recognition payment.

9. On 13 December 2016, the applicant was found guilty of a number of charges including assault occasioning actual bodily harm against the victim in Penrith Local Court. The Court records produced by the respondent indicate that the applicant pleaded guilty and he was ordered to enter into a good behaviour bond for a period of 12 months under the provisions of the Crimes (Sentencing Procedure) Act 1999.

10. Assessors (Client Claims) made decisions in favour of the victim as follows.

11. On 31 March 2015, an Assessor determined that an act of violence was established and approved a category D recognition payment in the sum of $1,500.

12. On 1 October 2015, an Assessor determined that the victim was a primary victim of an act of violence and conditionally approved both financial assistance for immediate needs in the sum of $5,000 and financial assistance for economic loss (out of pocket expenses) in the amount of $1,219.

13. The Assessors found that there were no relevant factors under s 44 of the Act to either decline victims support to the victim or to reduce the amount payable.

Provisional order for restitution

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

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.

15. The statutory scheme gives the Commissioner of Victims Rights a discretion to make a restitution order 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 (see s 59 (1) of the Act).

16. “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.

17. An order for restitution 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.

18. On 19 November 2018, the respondent made a provisional order for restitution against the applicant in the sum of $8,219, being the full amount of victims support approved for the victim.

19. A copy of the Order for restitution was posted to the Applicant under cover of a letter from the respondent dated 18 November 2018, although the date upon which it was posted is not in evidence before me. I am satisfied that the restitution order was served on the applicant as required by s 61 of the Act.

20. Section 62 of the Act gives a person upon 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 (see s 62 (3) of the Act) and the objector bears the onus of proving their case (see s 62 (4) of the Act).

21. The applicant did not lodge an objection to the provisional order for restitution and on 4 September 2020, the Commissioner confirmed the provisional order and advised the applicant that the full amount was due for payment on 8 October 2020.

Determination without conducting a hearing

22. Section 50 of the Civil and Administrative Tribunal Act 2013 (No 2) (the CAT Act) relevantly provides:

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

   (a)    afforded the parties an opportunity to make submissions about the

   proposed order, and

   (b)    taken any such submissions into account.

3. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

   23. On 18 December 2020, Senior Member Perrignon conducted a directions hearing, in which he noted, relevantly:

6. Note the parties’ agreement as follows:

(a)   The matter is suitable for determination on the papers after 26 February 2021.

(b)   the sole issue for determination is whether the applicant should pay restitution in respect of economic loss and, if so, in what amount.

24. I am satisfied that the provisions of s 50 of the CAT Act have been satisfied and that the matter can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

Submissions

25. In a letter to the Tribunal dated 1 March 2021, the applicant’s solicitor stated, relevantly:

The Commissioner states that there has been no objection and that because of this the Tribunal has no jurisdiction.

My client instructed me in this matter by providing me with an image showing the confirmation of order for restitution by SMS on Friday 11 September 2020.

I wrote to the Victims Services 14 September 2020 seeking a stay in enforcement until we could look at the matter further and seeking further documentation that my client was unable to provide to me.

I received an email from Victims Services 22 September extending the enforcement to 31 October 2020.

I sought was provided copies of the documents being:

•   Provisional order 19/11/2018,

•   Provisional order for restitution dated 19 November 2018 and

•   Conformation of restitution dated 4 September 2020.

An application to NCAT for administrative review, 23 October 2020 on the basis that my client had extraordinary circumstances at play when the orders were made. It is not conceded that my client had simply ignored the documents.

My client’s view is that he had never seen the documents…

26. The applicant’s solicitor also stated:

My client has never been provided with proof that the goods outlined in the application by (the victim) have ever been purchased.

My client was charged with the originating offence in November 2014.

My client was convicted with the offence 17 March 2015.

The provisional order for restitution was made on 14 October 2015.

The order for confirmation of the order for restitution was made 1757 days after the provisional order for restitution.

My client concedes that the recognition payment is required to be paid. He was convicted 17 March 2015.

My client contends that he should not be required to pay the financial assistance for immediate needs and economic loss because the evidence demonstrates that the application was made and confirmed when (the victim) was in a refuge and any immediate needs were being met by that service.

The Commissioner’s own psychological report confirms that the immediate needs payment was confirmed when the Commissioner was aware that (the victim) was in a refuge and did not have responsibility for the care of (their child).

There is no evidence before the Tribunal that the goods were claimed as immediate needs were ever obtained by (the victim).

Orders

That the orders for restitution are reduced by $6,719.00 being the amounts claimed for immediate needs and economic loss and confirm an order for restitution for $1,500 being recognition payment.

27. On 1 March 2021, the applicant filed an Affidavit sworn on 16 February 2021, in which he deposed to various matters that are generally considered relevant to the issue of the reasonableness of financial support that was approved for the victim. However, I note that the applicant he did not depose to the circumstances surrounding the issue of the provisional order for restitution or outline any “extraordinary circumstances at play” that prevented him from objecting to the provisional order.

28. The respondent filed written submissions dated 11 February 2021, which provide, relevantly:

6. The applicant was served with the Provisional Order on 19 November 2018.

7. In his application to the Tribunal, the applicant states that:

…during the time in which the application was made there were active proceedings in the Federal Circuit Court, aspects of which relate to the order sought to be reviewed. Dealing with these proceedings prevented the applicant from adequately objecting to the decision or seeking review.

8. It is not in issue that the Provisional Order was received, nor that the time to object has passed. There are time limits expressed in s 66 for making an application to the Tribunal, which may be extended by the Tribunal (s 66 (5)), however this does not extend to a power to accept an objection after the 28 day period (or 90 day period) outlined in s 62 (2). That the time to make an objection bas passed is not in contention.

Orders sought

As no objection was made, nor is an objection possible at this time, and no issue of notice being received arises, the Tribunal should dismiss the proceedings under s 55 (1) (b), the proceedings being frivolous or misconceived in the sense that the Tribunal lacks jurisdiction to hear the matter.

Consideration

29. I am satisfied that s 66 (1) of the Act confers jurisdiction upon this Tribunal to conduct an administrative review of a restitution order made by the respondent in circumstances where the applicant has objected to the provisional order and is dissatisfied with that determination (s 66 (a) (a)) or 90 days have passed since the objection was lodged with the respondent and the respondent has not determined the objection (s 66 (1) (b)).

30. In this matter, the applicant did not lodge an objection to the provisional order and he now seeks administrative review by this Tribunal on the basis that exceptional circumstances effectively allegedly prevented him from doing so.

31. However, there is no evidence before me regarding the nature of the alleged exceptional circumstances that the applicant seeks to rely upon. In any event, the Act does not empower the Tribunal to either excuse an applicant for their failure to lodge an objection within time or to extend the time for lodging an objection.

32. While the applicant’s solicitor stated that the applicant’s position is that “he had never seen the documents”, I note that the provisional order and confirmation were served upon the applicant under cover of letters from the respondent that were addressed to his address as indicated in the application for administrative review. In my view, this particular submission is inconsistent with the grounds set out in the application for administrative review, which include, relevantly:

…Inability to properly respond to, and object to the decisions being made due to extenuating personal circumstances.

Decision was made amidst ongoing family law litigation to which the decision in part relates…

33. On the basis of the evidence before me, I am satisfied that the provisional order for restitution and confirmation of that order were properly served upon the applicant.

34. I am also satisfied that the applicant failed to lodge an objection to the provisional order for restitution as required by s 66 of the Act.

35. Accordingly, pursuant to s 9 (2) of the ADR Act, the Tribunal does not have jurisdiction to determine the current application and the application must be dismissed.

Order

36. I order that the application for administrative review is dismissed.

**********

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

Registrar

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: 16 March 2021