State of New South Wales v Madah and Anor
[2008] NSWSC 481
•21 May 2008
CITATION: State of New South Wales v Madah and Anor [2008] NSWSC 481
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 16 May 2008
JUDGMENT DATE :
21 May 2008JURISDICTION: Equity JUDGMENT OF: Jagot AJ DECISION: Declare that the victim claim of Karen Madah against Jason Fong in District Court proceedings No 264 of 2006 at Parramatta is not eligible to be satisfied from the victim trust fund held on trust for Jason Fong pursuant to Division 6 of Part 2A of the Civil Liability Act. CATCHWORDS: TRUSTS - victim trust fund - whether first defendant's victim claim eligible to be satisfied from victim trust fund held by plaintiff on behalf of second defendant - whether first defendant gave protected defendant notice of proceedings on victim claim within eligibility period - determining eligibility period - whether notice sent - if sent, when notice taken to be received LEGISLATION CITED: Civil Liability Act 2002
Civil Liability Amendment (Offender Damages Trust Fund) Act 2005
Civil Liability Amendment (Offender Damages) Act 2007
District Court Act 1973
Evidence Act 1995
Interpretation Act 1987
Supreme Court Act 1970
Supreme Court Rules 1970CATEGORY: Principal judgment CASES CITED: Deputy Commissioner of Taxation v Meredith (2007) ATC 5353
Fancourt v Mercantile Credits Limited (1982) 154 CLR 87
Kapitany v Comonwealth (2006) 149 FCR 512
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149PARTIES: PLAINTIFF
State of New South WalesFIRST DEFENDANT
SECOND DEFENDANT
Karen Madah
Jason FongFILE NUMBER(S): SC 5628 of 2007 COUNSEL: Mr Michael Cashion SC with Mr Stephen C Finnane - plaintiff
Mr Richard B Page - first defendant
Mr C A Evett - second defendantSOLICITORS: Crown Solicitor - plaintiff
Watson Stafford - first defendant
Friend and Co Lawyers - second defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Jagot AJ
21 May 2008
5628 of 2007 STATE OF NEW SOUTH WALES v KAREN MADAH AND JASON FONG
JUDGMENT
1 HER HONOUR: This matter concerns whether the first defendant’s claim is eligible to be satisfied from a “victim trust fund” under Div 6 of Pt 2A of the Civil Liability Act 2002 in respect of damages awarded to the second defendant.
2 In accordance with Div 6 of Pt 2A: - (i) the plaintiff is the “protected defendant” (on behalf of the Department of Corrective Services), being the person liable to pay “offender damages” to the second defendant, (ii) the first defendant is a person who made a “victim claim” against the second defendant, and (iii) the second defendant is the “offender” (being a person to whom an award of offender damages was made).
3 The issues that must be determined are:
(1) What was the “eligibility period” for the victim trust fund?
(2) Did the first defendant commence proceedings on the victim claim in a court within the eligibility period as required by s 26M(2)(a) of the Civil Liability Act?
(3) Did the first defendant give the protected defendant notice in writing of those proceedings within the eligibility period as required by s 26M(2)(b) of the Civil Liability Act?
(4) Did the first defendant certify to the court before which the proceedings were taken that she was making the claim as a claim eligible to be satisfied from the victim trust fund as required by s 26M(2)(c) of the Civil Liability Act?
Statutory scheme
4 The Civil Liability Amendment (Offender Damages Trust Fund) Act 2005 commenced on 26 October 2005. This inserted provisions into the Civil Liability Act to allow for the satisfaction of personal injury damages claims by victims of crime from certain damages awarded to offenders. The provisions of Div 6 of Pt 2A are central to the present dispute. Those provisions were amended by the Civil Liability Amendment (Offender Damages) Act 2007, commencing on 7 December 2007. None of the parties suggested that the amendments affected the determination of the issues.
5 By cll 20 and 21 of Sch 1 to the Civil Liability Act, Div 6 of Pt 2A extends to (amongst other things): - (i) an award of personal injury damages in proceedings commenced before the commencement of Pt 2A, (ii) an award of offender damages made after the commencement of Div 6 in respect of a claim for damages that arose before the commencement, and (iii) a victim claim made in respect of a cause of action that arose before the commencement of Div 6.
6 Section 26K(1) defines certain relevant terms, including:
award of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).
offender means a person to whom an award of offender damages is made.
victim claim means a claim for personal injury damages in respect of:offender damages means personal injury damages awarded pursuant to an award to which this Part applies.
victim trust fund means offender damages awarded to an offender that are held on trust under this Division.(a) an injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence, or
(b) the death of a person caused by or resulting from an injury to the person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence.
7 Under s 26L(1) the amount of any offender damages awarded to an offender is to be held in trust for the offender by the protected defendant liable to pay those damages and may be paid out only as authorised by Div 6 of Pt 2A.
8 Section 26M is the provision of primary importance for this dispute. It currently provides as follows:
(1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is eligible to be satisfied from the victim trust fund as provided by this section.
(2) A victim claim is eligible to be satisfied from a victim trust fund only if within the eligibility period for the victim trust fund:(3) The eligibility period for a victim trust fund comprising offender damages awarded to an offender is the period of 6 months following the date (the award date for those damages) on which the claim for those damages is finally determined by a court award of those damages.
(a) the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and
(b) the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected defendant may request, and
(c) the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.
(4) A claim is not finally determined if:(5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.
(a) any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or
(b) any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).
9 Before 7 December 2007 s 26M(4) was in different terms as follows:
A claim is not finally determined by a court until the time for appealing against the award of damages expires with no appeal having been made or when all appeals against the award have been withdrawn or finally determined.
10 Section 26N requires the protected defendant to give notice to each person who appears (from any official records reasonably available to the protected defendant) to have a victim claim against the offender within 28 days after the award date for the damages concerned, (a) naming the offender and stating that there is a victim trust fund for victims of the offender, (b) specifying the eligibility period for that victim trust fund, and (c) stating that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund. Under s 26N(2), the notice is to be sent to a person at the address of the person last known to the protected defendant or as shown in official records reasonably available to the protected defendant.
11 Section 26O provides for the provision of information by the protected defendant to any person who appears to the protected defendant to be entitled to make a victim claim against the offender both during and within one month after the eligibility period concerning (a) the award of damages to the offender and the amount of the victim trust fund, and (b) any other victim claim against the offender that may be eligible to be satisfied from the victim trust fund and of which the protected defendant has been given notice under Div 6 of Pt 2A.
12 Section 26P enables victim claims to be made against a victim trust fund despite the expiry of the limitation period if proceedings on the cause of action are commenced during the eligibility period for the victim trust fund. These provisions only have effect for the purpose of enabling an order to be made under Div 6 of Pt 2A and not otherwise (s 26P(3)).
13 Section 26Q deals with awards of damages out of a victim’s trust fund. Under s 26Q(1):
A court that awards damages to a person on a victim claim against an offender may, if satisfied that the claim is eligible to be satisfied from a victim trust fund for victims of the offender, order that the whole or a specified part of those damages is to be paid out of money held in the victim trust fund.
14 Section 26R is in these terms:
(1) When the protected defendant responsible for a victim trust fund is satisfied that all claims eligible to be satisfied from the fund have been finally determined, the protected defendant is to make a determination of the surplus (if any) in the fund.
…
(3) If a protected defendant responsible for a victim trust fund determines that there is a surplus in the fund, the protected defendant must pay that surplus to or at the direction of the offender concerned.
15 Under s 26S the Public Trustee holds money held in trust under Div 6 of Pt 2A on behalf of the protected defendant.
Facts
16 On 14 December 2000 the second defendant was injured while in custody. He claimed damages from the plaintiff for his injuries by filing a statement of claim in the District Court on 12 December 2003.
17 On 29 May 2006 the District Court, by consent, entered judgment for the second defendant in the amount of $70,000.
18 On 26 June 2006, and as provided for by s 26N(1) of the Civil Liability Act, the plaintiff (on behalf of the Department of Corrective Services) sent a letter to the first defendant (along with 26 other people) notifying her of the matters set out in s 26N (the name of the offender, the existence of a victim trust fund for victims of the offender, the eligibility period for the victim trust fund, and a statement that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund). This letter identified that the District Court made an award of damages on 29 May 2006. It specified the eligibility period for the victim trust fund as between 29 May 2006 and 29 November 2006. The first defendant received this letter while she was on holiday in June 2006.
19 On 22 December 2006 the first defendant filed in the District Court a statement of claim against the second defendant. Paragraph 1 of the pleading records that the proceedings are brought subject to the provisions of Div 6 of Pt 2A of the Civil Liability Act. The first defendant verified the allegations of fact contained in the statement of claim, as true.
20 Also on 22 December 2006 the first defendant’s solicitor, Mr Michael Taylor, said he signed and “forwarded” a letter bearing that date to the Department of Corrective Services notifying the Department of the commencement of the proceedings as required by s 26M(2)(b) of the Civil Liability Act. Mr Taylor said in his affidavit that, after signing the letter, he had no precise recollection of the course of events. In the normal course of events, the letter would be placed in a tray for collection by mail staff. It then would have been placed in an envelope and taken to the post office. 22 December 2006 was the Friday before the Christmas holiday period. Mr Taylor’s office closed at about lunchtime. The usual system was for the mail tray to be cleared each day. Mr Taylor had not seen anything to suggest the Department did not receive the letter. The letter was not returned to sender.
21 Officers of the Department (Mr Peter Dolan and Ms Minerva De Leon Fontanilla) explained the Department’s mail processing system. Mr Dolan works in the Department’s general mailroom. All mail delivered to the Department comes through the mailroom. The mail is scanned, taken to the mailroom, and then opened. If no recipient is identified then the item is reviewed and forwarded to the relevant section. A document referring to litigation would be forwarded to the in-tray of the Legal Branch located on level 3 of the same building. Ms De Leon Fontanilla works in the Legal Branch and is responsible for collecting the mail delivered to the in-tray. She registers the receipt of each item on a computer program. She has searched the Department’s records and says the letter from the first defendant’s solicitor does not appear to have been received by the Legal Branch.
22 The first defendant’s solicitor forwarded a copy of the statement of claim to the Department (via the Crown Solicitor’s Office) by letter dated 11 January 2007. The Crown Solicitor’s Office received this letter on 18 January 2007. Correspondence followed about the eligibility of the first defendant’s claim.
23 On 2 March 2007 the first defendant signed a certificate under s 26M(2)(c) of the Civil Liability Act.
24 On 5 March 2007 the first defendant’s solicitor wrote to the Crown Solicitor’s Office stating, amongst other things, that the first defendant gave notice of the proceedings against the second defendant under s 26M of the Civil Liability Act and enclosed a copy of the statement of claim and certificate under s 26M(2)(c).
25 On 12 March 2007 the first defendant filed a notice of motion in the District Court proceedings seeking an order that the first defendant had complied with the provisions of s 26M(2)(a) to (c) of the Civil Liability Act and that her claim was a victim claim eligible to be satisfied from the victim trust fund held by the Department. Apparently, it was decided that this order was the equivalent of a declaration and thus could not be made by the District Court.
26 The plaintiff commenced proceedings in this Court by summons filed on 21 November 2007. The summons seeks a declaration as to whether, in the events that have occurred, the first defendant’s claim is eligible to be satisfied within the meaning of s 26M of the Civil Liability Act.
27 The District Court proceedings between the first and second defendants are listed for hearing in about a fortnight.
28 The plaintiff assisted the Court by providing the affidavits from officers of the Department and a bundle of documents, but otherwise took no active role in the proceedings.
Submissions
29 The first defendant submitted that: - (i) the eligibility period ended on either 1 March 2007 or 26 December 2006, (ii) the date 1 March 2007 recognised the capacity for a holding appeal to be lodged within 28 days of 29 May 2006 and maintained for a period of three months, (iii) the date 26 December 2006 recognised the capacity for an appeal to be lodged within 28 days of 29 May 2006, (iv) the fact that the second defendant’s award of damages was by way of consent orders cannot affect the first defendant’s rights, (v) this was supported by s 26P, referring to proceedings commenced during the eligibility period and not to notice or certification within the eligibility period, (vi) Div 6 of Pt 2A was beneficial to victims of offenders and should be so construed, so that the preferable date for the expiry of the eligibility period was 1 March 2007, and (vii) either way the first defendant complied with the requirements of s 26M because the proceedings were commenced on 22 December 2007, notice was given on the same day, and the statement of claim contained sufficient certification within the meaning of s 26M(3).
30 The second defendant submitted that: - (i) the task of construction required the words of s 26M to be given their ordinary meaning, (ii) as the award of damages was made by consent there could be no appeal so the additional 28 days did not apply, (iii) this was consistent with the notice the first defendant (and 26 others) received in June 2006 advising that the eligibility period expired on 29 November 2006, (iv) the additional three months by reference to a possible holding appeal had no foundation, as there was no such appeal, (v) the sending of the letter of 22 December 2006 had not been proved, and (vi) even if sent the letter could not have been received before 26 December 2006, and was not in fact received at any time.
Discussion
31 There is a difference between the unamended and amended versions of s 26M(4). The amended version (commencing on 7 December 2007) identifies the relevant appeal in s 26M(4)(a) as an appeal as of right (but allowance must be made for the operation of s 26M(4)(b) that extends the eligibility period where an appeal is pending whether or not it is an appeal brought as of right). The unamended version of s 26M(4) simply refers to “the time for appealing against the award of damages…”.
32 The second defendant’s award of damages was entered on 29 May 2006, before the amendment to s 26M(4). Accordingly, the section before its amendment on 7 December 2007 is relevant (s 30(1)(c) of the Interpretation Act 1987).
33 The meaning of s 26M(3) and (4) (before 7 December 2007) is reasonably clear.
(1) If there is no right of appeal in any form (whether by leave or otherwise) then the claim is finally determined on the award date (being the date on which a court makes a damages award, including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).
(3) If there is a capacity to appeal, and an appeal is filed within the time for filing an appeal, then the claim is finally determined when the appeal is withdrawn or finally determined.(2) If there is a capacity to appeal, and no appeal is filed within the time for filing an appeal, then the claim is finally determined when the period for appeal expires.
34 Under s 127(2) of the District Court Act 1973 appeals lie to the Supreme Court with leave from an order made with the consent of the parties and if the amount in issue is less than $100,000. Section 48(1)(a)(iv) of the Supreme Court Act 1970 provides that appeals from the District Court lie to the Court of Appeal. Part 51 r 4 of the Supreme Court Rules 1970 (as in force at 29 May 2006) provided that application for leave to appeal to the Court of Appeal was to be made by filing and serving on each necessary party within 28 days after the material date an ordinary or holding summons for leave to appeal. The “material date” was defined in Pt 51 r 2(1) and, in this case, was 29 May 2006.
35 These provisions disclose that the first defendant’s primary submission (that the eligibility period expired on 1 March 2007) is unsustainable. The criterion of reference in s 26M(4) (in its unamended form) is the “time for appealing against the award of damages”. The time for appealing against the award of damages was 28 days. Because no form of appeal was filed, the second defendant’s claim was finally determined 28 days after 29 May 2006 (that is, 26 June 2006). The eligibility period expired 6 months after 26 June 2006 (which must mean 6 calendar months after that date). The period of 6 months following that date ended on 25 December 2006. Under s 36(2)(b) of the Interpretation Act, if the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls on a day that is a public holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following that is not a public holiday in that place. The first day that was not a public holiday after 25 December 2006 was Wednesday, 27 December 2006. Accordingly, the eligibility period in this case expired on 27 December 2006.
36 The first defendant satisfied s 26M(2)(a) within the eligibility period. She commenced proceedings on the claim in a court before 27 December 2006.
37 I also accept the first defendant’s submissions about the statement of claim constituting certification for the purpose of s 26M(2)(c). That section requires that the person certify to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund. The Civil Liability Act does not prescribe any particular form the certification must take or any specific form of words that must be used. In this case the first defendant affirmed an affidavit verifying her statement of claim. The statement of claim, in terms, asserted that: - (i) the proceedings were brought subject to Div 6 of Pt 2A of the Civil Liability Act, (ii) the second defendant is an offender as defined in s 26K of that Act, (iii) the second defendant was awarded offender damages on 29 May 2006, and (iv) the first defendant claimed damages in connection with an injury caused by conduct of the second defendant. Read as a whole the pleadings in the statement of claim certify that the first defendant was making a claim eligible to be satisfied from the offender damages (which is defined in s 26K(1) to mean the victim trust fund). The first defendant, accordingly, satisfied s 26M(2)(c) within the eligibility period. By her statement of claim she certified to the District Court that she was making the claim as a claim eligible to be satisfied from the victim trust fund.
38 Section 26M(2)(b) involves more difficult considerations.
39 There are only a few provisions in the Civil Liability Act dealing with the giving of notice. Section 26M(2)(b) refers to the victim giving to the protected defendant responsible for the victim trust fund notice in writing of the proceedings together with such details of those proceedings as the protected defendant may request. Section 26M(5) refers to the protected defendant giving to the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under s 26M. Section 26N(1) requires the protected defendant to send notice in writing to persons who appear to be victims of the offender within 28 days after the award date for the damages concerned. Under s 26N(2) the notice is to be sent to a person at the address of the person last known to the protected defendant or as shown in official records reasonably available to the protected defendant.
40 In this case the evidence supporting the inference that the letter from the first defendant’s solicitor was sent on 22 December 2006 is weak. Mr Taylor signed the letter and I infer he placed it, not in an envelope, in the mail tray. Beyond that there is nothing more than Mr Taylor’s reference to the usual practice being for mail to be collected from the trays each day (although he did not say when or how often this was done), placed in an envelope, and posted. 22 December 2006, however, was the last working day before the Christmas holidays. His office closed at about lunchtime. There is no evidence about when the last mail run occurred or would have occurred in the usual course of events on such a day. There is no evidence about whether the office’s usual practice was to forward mail by pre-paid envelopes or otherwise. There is no evidence about when the office re-opened after Christmas. There is no evidence of any form of mail log identifying letters sent out of the office and their addressee. It is true that the letter was not returned to sender. The second defendant, however, was correct in submitting that the evidence about the letter having left the solicitor’s office at all on 22 December 2006 was vague and unsatisfactory. Under s 26Q(1) a court may only make an order if satisfied that the claim is eligible to be satisfied from a victim trust fund. The burden of proving eligibility falls on the person asserting eligibility. The first defendant has not discharged that burden with respect to s 26M(2)(b).
41 If, contrary to this conclusion, the evidence is sufficient to support an inference that the letter was sent by the solicitor’s office on 22 December 2006 then other considerations arise. There is evidence sufficient to establish that the Department did not receive the letter (which, of course, is not the same as a conclusion that the letter was not delivered to the Department).
42 Two statutory provisions are potentially relevant.
43 First, s 76 of the Interpretation Act (subject to contrary intention (s 5(2)) provides as follows:
(1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:
(2) In this section:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.
working day means a day that is not:
(a) a Saturday or Sunday, or
(b) a public holiday or a bank holiday in the place to which the letter was addressed.
44 Secondly, s 160 of the Evidence Act 1995 is in these terms:
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
…(3) In this section:
working day means a day that is not:
(a) a Saturday or a Sunday, or
(b) a public holiday or a bank holiday in the place to which the postal article was addressed.
45 There are many decisions relating to the giving, sending, or serving of notice. They show different results depending on the statutory context.
46 Fancourt v Mercantile Credits Limited (1982) 154 CLR 87 involved a statutory provision (s 42(1)(c) of the Hire Purchase Act 1959 (Qld)) that permitted service by post to a person’s last known place of abode or business. Section 39(1) of the Acts Interpretation Act 1956 (Qld) was similar to s 76 of the Interpretation Act. The notices were sent but not received. The High Court held that the Acts Interpretation Act operated. It was not ousted by contrary intention. Service was deemed to have been effected when the article would have been delivered in the ordinary course of the post. Non-receipt was a risk the legislature had accepted. The High Court also discussed the difference between non-receipt and non-delivery. Proof of non-delivery is proof of non-service. Proof of non-receipt is not.
47 Kapitany v Commonwealth (2006) 149 FCR 512 concerned a scheme for forfeiture of cultural objects within a period after service of a notice. The notice was received and the issue was whether service by post was available. Sundberg J found no intention to the contrary in the statutory provisions. He distinguished Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 noting that Gummow J’s observations in that matter distinguished between a provision fixing a time period for action after a “notice was given” and other provisions of the same legislation that spoke of service by post or personally.
48 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361 involved a statutory provision (s 710 of the Local Government Act 1993) that evinced a contrary intention for the purposes of s 76 of the Interpretation Act. Section 710 (providing in 710(1) that a “notice required by or under this Act to be served on a person may be served as provided by this section” and in 710(8) that “(p)roof by affidavit or orally that a notice has been posted in accordance with this section is conclusive evidence of service”) was thus a code and exclusively identified both the methods and time of service. Properly construed, s 710 meant that “the legislature has not made it a requirement of the service of council notices that they actually be received by the person to be served” (at [45]). Hence, the act of posting the notice by pre-paid letter constituted effective service under s 710.
49 Deputy Commissioner of Taxation v Meredith (2007) ATC 5353 concerned a scheme for recovery of penalties. The appellant could not recover the penalty until the end of 14 days after there had been given to the respondent a notice setting out details of the penalty amount and other matters. The statute contained a provision that, in specified circumstances, such notice could be given by “leaving it at, or sending it by post to, an address that appears from …[ASIC] documents to be, or to have been within the last 7 days, the person’s place of residence or business”. The trial judge was satisfied as to non-delivery based on the unchallenged evidence on behalf of the respondent. The majority in the Court of Appeal (Basten JA with whom Ipp JA agreed) held that “s 222AOF reveals a clear intention that the Commissioner will satisfy the precondition to the entitlement to recover the penalty if a notice is sent by post to the director’s address as found in ASIC records. The risk of the notice going astray in the post has been treated as tolerable, in order to effect the policy underlying the scheme” (at [75]). Hence, both non-receipt and non-delivery were immaterial.
50 The Civil Liability Act does not contain a scheme for service equivalent to that considered in Kyogle and Meredith. The only provision that expressly deals with a method by which service is to be effected is s 26N(2). It is at least arguable that s 26M(2)(b) (when contrasted with s 26N(2)) in fact requires the protected defendant to receive the notice within the eligibility period. This would be consistent with the scheme. But for actual receipt of the notice a protected defendant will not know that there is a victim claim and thus would be obliged to pay the surplus in the victim trust fund to the offender (s 26R(3)). However, none of the submissions addressed the relationship between s 26M(2)(b) and s 76 of the Interpretation Act in any detail. Section 160 of the Evidence Act, moreover, was not mentioned.
51 Assuming that ss 76 and 160 operate does not resolve the first defendant’s difficulty. Neither section deems the act of posting to effect the giving or service of the notice (in contrast to the provisions in Kyogle and Meredith). The eligibility period expired on 27 December 2006. Under ss 76 and 160 the letter (if in fact sent by pre-paid mail in an envelope addressed to the Department of Corrective services on 22 December 2006) would be taken to have been received the fourth working day after 22 December 2006, namely, 2 January 2007. This date was outside the eligibility period.
52 Section 26M(2) prescribes that a victim claim is eligible to be satisfied only if within the eligibility period for the victim trust fund the matters prescribed by s 26M(2)(a) to (c) occur. The first defendant did not give the protected defendant notice of the proceedings within the eligibility period. First, as a matter of fact, I am not satisfied that the letter of 22 December 2006 was in fact sent to the Department of Corrective Services on that day. Secondly, and in any event, s 26M(2)(b) does not deem the posting of a letter to be the giving of notice. Thirdly, if the letter was sent and non-receipt does not determine the matter conclusively against the first defendant (the assumptions most beneficial to the first defendant) then the first defendant must rely on the presumptions in s 76 of the Interpretation Act (and s 160 of the Evidence Act). Under those presumptions the letter is taken to have been served on the fourth working day after the letter was posted, being 2 January 2007 (outside the eligibility period). No notice was given to the protected defendant within the eligibility period as required.
53 Section 26P, called in aid by the first defendant, is no answer. The section does not undermine the clear words of s 26M. Section 26P has its own sphere of operation. It is concerned with the capacity for a victim claim to be made against an offender despite the claim being otherwise statute barred by the Limitation Act 1969. In this context, the reference in s 26P(1) to a victim claim being maintainable by proceedings on the cause of action commenced during the eligibility period does not remove the requirement for notice and certification within the meaning of s 26M(2)(b) and (c) respectively. Section 26P is directed to a different issue. Generalised notions of Div 6 of Pt 2A being beneficial to victims of crime (which undoubtedly it is) also do not assist in the face of the statutory provisions.
54 One other matter requires comment. The proceedings between the first and second defendant are fixed for hearing in the District Court within the next fortnight. Given that the court in which a victim claim is commenced can only make a damages award if satisfied that the claim is eligible to be satisfied from the victim trust fund (s 26Q(1)) it is not clear why the plaintiff felt it necessary to commence these proceedings. The District Court could have made factual findings as to the eligibility of the claim to be satisfied from the victim trust fund.
55 Nevertheless, the matter has been fully argued. I have determined that the first defendant’s victim claim is not eligible to be satisfied from the victim trust fund. Accordingly, it is appropriate to so declare.
Orders
56 For these reasons I:
Declare that the victim claim of Karen Madah against Jason Fong in District Court proceedings No 264 of 2006 at Parramatta is not eligible to be satisfied from the victim trust fund held on trust for Jason Fong pursuant to Division 6 of Part 2A of the Civil Liability Act.
57 The parties may address on costs.
22/05/2008 - Unnecessary word deleted - Paragraph(s) 39
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