Commissioner of Victims Rights v Mercer [2025] NSWCATAD 316;

1. Since the VR & S Act commenced in 2013, the scheme provides what is known as Victims Support. Victims Support can take multiple forms but essentially concerns provision of funds and services under the VR & S Act and paid from the Victims Support Fund under Part 3 Division 2 of the VR & S Act. Sections 15 and 16 of the VR & S Act make provision for payments from the Fund and Payments into the Fund. Those sections provide:

15 Payments into Fund

The following are to be paid into the Fund -

(a) all proceeds confiscated under the Confiscation of Proceeds of Crime Act 1989,

(b) all money required by the Criminal Assets Recovery Act 1990 to be credited to the Fund,

(c) all money payable under Part 5 that is recovered under this Act or under the Fines Act 1996,

(c1) all money recovered under Part 7,

(d) all money advanced to the Fund by the Treasurer, or appropriated by Parliament, for the purposes of this Act,

(e) all other money required by or under this or any other Act to be paid into the Fund,

(f) all fines paid for offences under section 89 (Avoidance of liabilities).

16 Payments from Fund

The following are to be paid from the Fund -

(a) all payments with respect to victims support under this Act,

(b) all expenses incurred by the Commissioner and other staff in the exercise of their functions under this Act,

(c) all expenses incurred by the Commissioner and the Victims Advisory Board under this Act and any other expenses incurred in the provision of victims support services (including Tribunal and other administration expenses) approved by the Minister,

(c1) any funding provided to victims groups approved by the Commissioner,

(d) all fees to which the NSW Trustee and Guardian is entitled under section 53 of the Confiscation of Proceeds of Crime Act 1989,

(d1) all expenses incurred by the Commissioner of Fines Administration that are payable to the Commissioner of Fines Administration under an arrangement referred to in section 16A,

(d2) all set-off amounts that are payable to the Commissioner of Fines Administration under section 45,

(e) all expenses incurred in the administration or management of the Fund,

(f) all other payments required by or under this Act to be paid from the Fund.

(Emphasis added)

1. Section 26 of the VR& S Act sets out what are the types of Victims Support payable to a Primary Victim who applies for Victims Support. The section provides:

26 Composition of support - primary victims

(1) The support under the Scheme for which a primary victim of an act of violence or act of modern slavery is eligible comprises the following -

(a) approved counselling services with respect to that act of violence or act of modern slavery,

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

(c) financial assistance of up to a maximum amount in total prescribed by the regulations for the economic loss suffered by the primary victim as a direct result of that act of violence or act of modern slavery of a kind described in the regulations,

(d) if a recognition payment is payable under this Part in respect of the act of violence or act of modern slavery - that recognition payment.

(2) Financial assistance for which a primary victim of an act of violence or act of modern slavery is eligible is reduced by the total amount paid or approved for payment to the victim's parent, step-parent or guardian under section 27 in respect of that act of violence or act of modern slavery.

(Emphasis added)

1. Section 30 of the VR & S Act set out further particulars in respect of Financial Assistance applied for (and paid) arising from s 26 (1) (b) and (c) of the VR & S Act. That section provides:

30 Financial assistance

(1) Financial assistance under this Part may take the form of a grant, allowance, refund of expenditure, direct payment of an invoice, or any other form of financial assistance that the Commissioner may approve generally, or in a particular case or class of cases.

(2) Financial assistance is not payable to a victim of an act of violence or act of modern slavery or the parent, step-parent or guardian of a victim, to the extent that the victim, parent, step-parent or guardian has received, or is entitled to receive, payment for that loss arising from that act of violence or act of modern slavery under any insurance or agreement or arrangement under any other Act or law.

(3) The regulations may make provision for or with respect to any of the following -

(a) the particular kinds of expenses for immediate needs or economic loss for which a person may or may not be given financial assistance under this Part,

(b) the maximum amount that a person may be given under this Part in respect of a particular kind of expense for immediate needs or for economic loss,

(c) the circumstances in which a person may be given financial assistance,

(d) the maximum amount that a person may be given under this Part in respect of a particular kind of economic loss.

1. Section 56 of the VR & S Act sets out discrete provisions whereby the Commissioner may seek to recover victims support from fraudulent claimants. The section provides:

56 Recovery from fraudulent claimants

(1) The Tribunal may, on application by the Commissioner, make an order for restitution for such amount as has been paid to a person as victims support if the person is convicted of -

(a) an offence of obtaining approval for the giving of victims support by means of fraud or false pretence or by means of a wilfully false or wilfully misleading statement, or

(b) an offence, in relation to the obtaining of such approval, of a kind prescribed by the regulations.

(2) An order for restitution may not be made if 2 years or more have elapsed since the date on which the person was convicted of the relevant offence.

(3) The provisions of Part 5 relating to the recovery of money under an order for restitution and Part 7A of the Fines Act 1996 apply to an order for restitution under this section (with any modifications prescribed by the regulations).

1. As noted at [1] above, the Commissioner has applied to the Tribunal under s 56 (1) of the VR & S Act. That application was made on 9 September 2025. An application under s 56 is a General Application whereby the Tribunal is not conducting an administrative review of a decision, but exercising a statutory power to consider an application for an Order, in this case an Order for Restitution. As the application arises under the VR & S Act the matter is assigned to the Administrative and Equal Opportunity Division in accordance with Schedule 3 Part 3 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
2. The enabling legislation being the VR & S Act 2013 does not specify any time limit on the Commissioner making an application under s 56 of that Act. As the matter is not an administrative review the time limits in the Administrative Decisions Review Act 1997 do not apply. Therefore the provisions of Rule 23 of the Civil and Administrative Tribunal Rules 2014 (the Rule) apply.
3. The respondent pleaded guilty to the offence set out at [5] above on 25 August 2025. As a result from that date the Commissioner became entitled to make an application to the Tribunal under s 56 of the VR & S Act. On this basis the provisions of Rule 23 (3) (b) of the Rule applies. As the Commissioner became entitled to make the application upon the acceptance of the plea of guilty by the respondent on 25 August 2025, under Rule 23 (3) (b) the default period of 28 days to make the application expired on 22 September 2025.
4. As the application was received on 9 September 2025 the application has clearly been received within time and the Tribunal has jurisdiction to determine the application.

1. It appears that an application was made or the Tribunal determined at an interlocutory stage, that it may be appropriate to determine the matter under s 50 of the NCAT without a hearing. Section 50 of the NCAT Act provides:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except -

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) 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.

(3) 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.

(4) 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.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

1. It appears that between 9 September 2025 and 5 November 2025 the parties' views were sought as to dispensing with a hearing under s 50 (1) (c ) of the NCAT Act.
2. On 10 October 2025 the Tribunal at a directions hearing when fixing the matter for hearing gave the parties liberty to apply under s 50 to dispense with a hearing.
3. The parties subsequently expressed a view consenting to the dispensing with an 'oral hearing' recorded in the orders arising from the directions hearing.
4. On 6 November the Tribunal differently constituted determined that the provisions of s 50 (3) had been met and was satisfied that under s 50 (2) of the NCAT Act that a Hearing could be dispensed with and issued an order to that effect on 7 November 2025.
5. Having reviewed the material I am also satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or others documents and material lodged with the Tribunal.

1. In written submissions the Commissioner sets out the background to the matter. The background has been summarised above.
2. The material lodged with the Tribunal includes the assessor's determination on the Financial Assistance for immediate needs application. The respondent (as applicant for victims support) declared that they were at home when a person entered their building intoxicated and choked the respondent to the point of becoming unconscious and then threatening to kill the respondent. Additionally they claimed to be the victim of domestic violence from this perpetrator from 3 June 2015 to 7 May 2021.
3. The Notice of Decision dated 15 June 2021 approves three immediate needs 'packages' paid from the Victims Support Fund. The following packages were approved:
   • Package F2 Security Cameras $2,300.00 Approved
   • Package F3 Security windows / doors $2,000.00 Approved
   • Package F4 Alarm System $900.00 ($700.00 Approved)
4. The total approval was $5,000.00 and subject to the conditions prescribed n the VR & S Act including s 48 (1) (c ) that the funds (paid as funds not on Tax Invoices) were to be used for the purpose indicated in the form and accepted in the decision.
5. Section 48 of the VR & S Act provides:

48 Victims support may be approved subject to conditions

(1) Approval for the giving of financial support or making of a recognition payment may be given by the Commissioner subject to any of the following conditions -

(a) notification to the Commissioner of such matters (including matters relating to the financial circumstances of the person to or for whose benefit the approval is given) as may be specified in the notice of determination relating to the approval,

(b) assignment by the person to or for whose benefit the approval is given of that person's right to any entitlement that the person has by way of damages awarded in civil proceedings,

(c) repayment of the whole or any part of the amount of the financial support or recognition payment under such circumstances as may be specified in the notice of determination relating to the approval,

(d) in the case of victims support that is payable to a person for the benefit of some other person -

(i) as to the payment of the money received under the approval to or for the benefit of that other person, or

(ii) as to the holding of the whole or any part of that money on trust for that other person.

**(2) An approval of victims support is subject to the following conditions - **

(a) the person to or for whose benefit the approval is given (other than a family victim) must notify the Commissioner of any money received in the future from other sources in connection with the injuries, expenses and losses taken into account in giving the approval,

(b) the person to or for whose benefit the approval is given (other than a family victim) must repay from the amount approved any such future amounts referred to in paragraph (a) on demand by the Commissioner,

(c) the person to or for whose benefit the approval is given must repay to the Commissioner the amount approved if it is subsequently ascertained that the approval was obtained by fraud or collusion,

(d) the person to or for whose benefit the approval is given (if a primary victim of an act of violence or act of modern slavery) is to provide reasonable assistance to any person or body engaged in the official investigation of the act of violence or act of modern slavery.

(2A) An approval of victims support is also subject to the condition that the person to or for whose benefit the approval is given must notify the Commissioner of any amount that the person has already received from other sources in connection with the act of violence to which the victims support relates.

(2B) Payment under section 54 of the whole or any part of victims support may be withheld by the Commissioner if the person to or for whose benefit the approval is given fails to comply with subsection (2A).

(3) The regulations may prescribe other conditions to which an approval of victims support is subject.

(4) An amount that is required to be repaid in accordance with the conditions to which an approval of victims support is subject and that is not repaid may be recovered by the Commissioner as if it were a debt due to the Commissioner.

(Emphasis added)

1. On the basis of the material provided by the Commissioner, it appears that s 48 (2) (c ) of the VR & S Act has been enlivened. The Commissioner submits that the relevant criminal proceedings concerning the respondent arise from the giving of victims support in the circumstances set out above in Victims Services claim number: 380934.
2. The Commissioner submits that Local Court proceedings 2025/000586459-2 concern the charge relating to the Police Investigation as set out in Event No: E87222746.
3. I have read the Police Facts Sheets relating to Court Attendance Notice H 82759725. I am satisfied form that material, the offence details, and the Guilty plea records from the Justicelink record, in addition to the Commissioner's submissions, that the Local Court proceedings relate to a prosecution arising from Victims Services Claim 380934.
4. I am also satisfied that the guilty plea entered on 25 August 2025 at Tamworth Local Court equates to a conviction entered summarily in accordance with the Criminal Records Act 1991. I note that s 5 of the Criminal Records Act provides that a finding that a person is guilty off an offence equates to a conviction being entered.
5. The Commissioner submits that the respondent was convicted of an offence when her guilty plea was entered as a finding of the Court on 25 August 2025. I agree.
6. Sentencing which was set down for 8 October 2025 is a separate matter, the results of which the Tribunal is unaware.
7. Whilst a premeditated and planned fraud involving the creation of false records would appear unlikely to attract any order under s 10 of the Crimes (Sentencing Procedure) Act 1999, such a matter does not concern these proceedings. That is because in the VR & S Act conviction includes a finding of offence proven. With the guilty plea of the respondent the offence is clearly proven.
8. I note that the respondent has not provided any material in respect of the application other than consenting to the matter being determined without a hearing.

1. Based on a consideration of all of the material, I find that the respondent has been convicted of an offence of obtaining approval for the giving of victims support by means of fraud.
2. As a result of this finding, it seems appropriate to make an Order for Restitution against the respondent pursuant to s 56 (1) of the VR & S Act.
3. I note that it would have been open to the Commissioner to proceed against the respondent in accordance with s 48 (4) of the VR & S Act based on the enlivening of s 48 (2) (b). However that would have necessitated civil proceedings to obtain a judgment debt and enforce the judgment.
4. In addition I note however that the restitution route enables the Commissioner to proceed with having the debt dealt with under the Fines Act 1996.
5. The Commissioner's delegate also approved victims support for the respondent in the nature of approved counselling. The Tribunal is unaware of whether this counselling has been taken up or discontinued. Consistent with the Commissioner's own application to the Tribunal and the evidence and material in these proceedings, the Commissioner should consider rescinding that approval if it remains valid.
6. I note that it is open to make an Order for Restitution pursuant to s 56 (1) of the VR & S Act noting that in the current circumstances s 56 (2) does not affect the making of an order.
7. I also find that in resect of the payment / provision of victims support in claim 380934, it is appropriate to make an Order for Restitution pursuant to s 56 (1) of the VR & S Act.

1. As it is open to the Tribunal to make an order pursuant to s 56 (1) of the VR & S Act, I therefore make the following orders.

(1) An Order for Restitution in favour of the Commissioner is made against the Respondent, in the sum of $5,000.00 pursuant to s 56 (1) of the Victims Rights and Support Act 2013.

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.