Cumbamani v Commissioner of Victims Rights

NCAT Appeal Panel|2023-04-21|Before: Mr P

Introduction

On 4 January 2018, a victim signed an application for victim's support under the Victims Rights and Support Act 2013 (NSW) (the Act).
The victim alleged acts of violence which had been perpetrated by the Appellant over a period from November 2010 to 15 September 2017. In the application, the victim alleged that she suffered both physical and psychological injuries as a result of the acts of violence, and claimed victim's support in the nature of counselling, financial assistance for immediate needs and/or economic loss and a recognition payment.
In decisions dated 11 April 2018 and 14 August 2018, assessors approved payments in the sum $4,886.90 for immediate needs, $2,066 for economic loss, recognition payment in the sum of $1,500, further payments of $2,780.10 for immediate needs and finally, $1,888.90 for economic loss.
The Commissioner of Victims' Rights (the Respondent) on 3 February 2020 ordered the Appellant to pay restitution in the sum of $7,688.90, being the amount of victim's support that was approved in respect of an act of violence committed by him.
The order was made under s 64 of the Act. The Appellant made an application for administrative review of the restitution order.
The Tribunal on 9 December 2022 confirmed the Respondent's decision and order for restitution (the Decision).
This is our decision in respect of the Appellant's Notice of Appeal from the Decision.
The issues on appeal are as follows: 1. Whether or not the time for lodgement of the Notice of Appeal should be extended? 2. Whether or not the restitution order was made within the time permitted by s 59(2)(a) of the Act? 3. Whether or not the Tribunal's discretion under s 69 of the Act as to whether or not to reduce the amount of the restitution order miscarried? 4. Whether or not the Appellant was denied procedural fairness?

Whether or not the time for lodgement of the Notice of Appeal should be extended?

The Decision was published on 9 December 2022. Amendments were made to the Decision on 14 December 2022 pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to correct obvious errors.
It is accepted that this does not extend the time limit for lodging a Notice of Appeal: see Hacienda Caravan Park Pty Ltd v Mountford [2020] NSWCATAP 85 at [9] and [25].
Accordingly, the appeal was required to be lodged by 6 January 2023. As the appeal was lodged on 11 January 2023 it was lodged five days out of time.
The Appeal Panel may extend the time for the lodgement of the appeal pursuant to s 41 of the NCAT Act. The principles relevant to the extension of time are not in dispute and were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
The Appellant's explanation for the delay is that he contacted the registry in relation to the calculation of time but received conflicting information. The Appellant states that his preferred analysis was eventually confirmed by a registry employee, namely that the time runs from the day of the amendment. The Appellant did not provide any detail of the alleged communication he relies upon.
The Respondent accepts that the delay was short, and that it suffered no prejudice as a result, but relies particularly on what is asserted to be the lack of merit of the appeal to oppose an extension of time.
Although we do not consider that the explanation for the delay is acceptable or convincing, in light of the fact that the delay was short, the lack of prejudice to the Respondent, and the view we have reached of the merits of the appeal, which we set out below, we have decided to extend the time for lodging the Notice of Appeal to 11 January 2023.

Was the restitution order issued out of time?

Pursuant to s 59 of the Act, if the Respondent is of the opinion that, before or after approving financial support or recognition payment, a person has been convicted of a relevant offence, the Respondent may make an order for restitution against the person.
It is not in dispute that the victim in the proceedings was approved victims support and that the Appellant was convicted of a relevant offence as required by s 59(1) of the Act.
Relevantly, s 59(2) sets out the time limit for a restitution order as follows: A provisional 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
The Appellant relies upon s 40(6) as made applicable by s 59(2)(a)(i) of the Act.
Section 40(6) provides: Claims may continue to be made under an application that is duly made in respect of an act of violence until whichever of the following first occurs: (a) the expiration of the period of 5 years after the application is made, (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 has been given.
It is of importance to note that the Act makes a distinction between an application and a claim. The Act contemplates and permits multiple claims to be made under an existing application for a period of five years after the application is made or the total maximum amount of financial support has been received, whichever is the first to occur.
The Respondent contends that under the Act the victim is able to continue making claims for victims support until 4 January 2023, because she duly made an application for victims support on 4 January 2018 and she has not been paid the maximum amount, being $35,000, in financial support before that date.
Accordingly, the Respondent submits that the time limit for a restitution order to be made against the Appellant is two years from 4 January 2023, or two years from the date that the victim has been approved the maximum amount in financial support. Accordingly, the order was issued within time.
The Appellant for his part relied upon sections 38, 39 and 40 of the Act which are as follows: 38 Applications for victims support (1) An application for victims support may be made by the following: (a) a victim of an act of violence, (b) a parent, step-parent or guardian of a primary victim who is a child, (c) any other person, on behalf of a victim, who has a genuine interest in the welfare of that victim. (2) The application is to be made to the Commissioner in the approved form, which is to be supplied by the Commissioner free of charge. 39 Documentary evidence (1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form. (2) Without limiting subsection (1), the documentary evidence to be required: (a) for an application for financial assistance for immediate needs under section 26 - is documentary evidence (such as a medical or police report) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment - is a police report or report of a Government agency and a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. (3) An application for financial assistance under section 26 (1) (c), 27 or 29 is to give full particulars of any economic loss for which the assistance is sought. (4) The application is to include: (a) in the case of actual expenses - receipts, invoices or other approved forms of substantiation of the expenditure incurred or to be incurred, or (b) in the case of actual loss of earnings - the name and address of the employer, the period of absence from work and a statement from the employer substantiating those particulars. 40 Time for lodging, and duration of, applications (1) Except as provided by subsections (2) and (3), an application for financial support must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age. (2) An application for financial support or a recognition payment may be made by a family victim more than 2 years after the relevant act of violence that resulted in the death of the primary victim occurred if it was only established (whether or not by a court) that the primary victim died as a direct result of the relevant act of violence subsequently to the occurrence. (3) In the circumstances described in subsection (2), an application for financial support may be duly made within 2 years after it is established that the primary victim died as a direct result of the relevant act of violence. (4) Except as provided by subsection (5), an application for a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age. (5) An application for a recognition payment in respect of an act of violence involving domestic violence, child abuse or sexual assault must be duly made within 10 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 10 years after the day on which the child concerned turns 18 years of age. (6) Claims may continue to be made under an application that is duly made in respect of an act of violence until whichever of the following first occurs: (a) the expiration of the period of 5 years after the application is made, (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 has been given. (7) This section (other than subsection (6)) does not apply to an application for financial support, being for financial assistance of a kind specified in clause 8 (2) (b) or (d) of the Victims Rights and Support Regulation 2013, or a recognition payment for a person who is a primary victim of an act of violence that occurs in the course of the commission of a sexual offence against the person when the person is under 18 years of age. There is no time limit on when such an application can be made.
The Appellant placed particular significance upon the words 'duly made' in s 40(1) and (6). The Appellant contended that further claims under an application can only be made under an application that is 'duly made'.
According to the Appellant's submissions, when s 40(6)(b) refers to the total maximum amount of financial support that the victim is 'eligible to receive under this Act' regard must be had to whether or not a further claim can be made in respect of a duly made application.
The Appellant then relies upon s 39(1) which requires an application for victims support to be accompanied by such documentary evidence as may be required by the approved form.
Further attention is given by the Appellant to s 38(4) which states that an application is to include various documents or information in the case of actual expenses or actual loss of earnings.
From these provisions the Appellant sought to contend that the total maximum amount that the claimant was 'eligible to receive' under the victim's 'duly made' application had been paid more than two years before the Respondent made the order.
The submission of the Appellant was that the victim in question here was not eligible to make any further claims for financial support after 14 August 2018 because: 1. Claims made by a primary victim pursuant to s 40(6) for financial support are limited to the category of expenses referred to in the duly lodged application; 2. Further, additional claims made under an initial application are limited to the expenses nominated or foreshadowed in the original 'duly made' application; and 3. If an expense is nominated or foreshadowed but is not supported by relevant documentation, the time bar contained in s 59(2)(a) must apply.
Applying the above principles, the Appellant contends that the duly made application was exhausted and further claims could not be made, given what was nominated or foreshadowed in the expenses originally claimed and given what was supported by relevant documentation and the amounts paid.
In oral submissions the Appellant modified the last submission above to acknowledge that, provided a category of expense was sufficiently nominated or foreshadowed, it did not necessarily need to be supported by the relevant documentation for a further claim to be permitted within the nominated or foreshadowed area of expense.
The Appellant asserts that in respect of the application in question the victim was only eligible to apply for immediate needs and out-of-pocket expenses, being the categories of expenses especially referenced in the application form.
We note that the victim received less than the maximum amount for these specific categories, and accordingly, we find it difficult to understand the Appellant's ultimate submission.
As we understand it the Appellant continues to maintain that no further claims even in respect of expenses especially referenced can be made because the nature of 'immediate needs' and 'out-of-pocket expenses' should have been fully identified, if not supported by relevant documentation at the time of the application, in order to ground further claims in those categories.
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.
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].
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.
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.
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.
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.
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.
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.

Did the exercise of the discretion to reduce the restitution order miscarry?

The Tribunal's relevant reasoning was set out at [53] - [54] as follows: 53 In relation to the Applicant's asserted financial impecuniosity, I refer to and adopt the passage from the decision in Conner v R, which I cited with approval in my decision in Kabir. 54 I note that the Applicant told the Tribunal that prior to the act of violence, he was employed full-time as an Engineer and that while he remains qualified to work in that field, he is not yet ready to do so because he is studying full-time and he is currently undertaking a Master of Business Administration degree. Therefore, I consider it unlikely that his current unavailability for employment on the open labour market will continue indefinitely after the successful completion of his current course.
In Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172 (Kabir), the Tribunal referred to the following passage in the decision of Connor v R [2005] NSWCCA 431 at [41(iii)]. The asserted impecuniosity of an offender against whom a direction is sought … may not ordinarily be regarded as a reason for declining to make a direction … . An offender's impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false.
In our view, the above principle cannot be applied generally in the exercise of the discretion arising under s 69 of the Act. The provisions of the Victims' Support and Rehabilitation Act 1996 (NSW) were different from those in the Act.
Sections 77B and 77D of the Victims' Support and Rehabilitation Act 1996 provided as follows 77B Directions for compensation (1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a specified sum be paid out of the property of the offender: (a) to any aggrieved person, or (b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. (2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person. 77D Factors to be taken into consideration In determining whether or not to give a direction for compensation, and in determining the sum to be paid under such a direction, the court must have regard to: (a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person that directly or indirectly contributed to the loss sustained by the aggrieved person, and (b) any amount that has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, and (c) such other matters as it considers relevant.
In contrast, s 69 of the Act provides as follows: 69 Provisions relating to orders for restitution confirmed by Tribunal (1) The Tribunal may reduce the amount to be paid under a provisional order that it confirms having regard to: (a) the financial means of the defendant, and (b) such other matters as are, in the opinion of the Tribunal, relevant to the determination. (2) The maximum amount that may be ordered to be paid under an order for restitution (whether made against one or more defendants) is the amount that has been paid to the victim under an approval for the giving of financial support or making of a recognition payment to which the order relates. (3) If an order for restitution is made against 2 or more defendants in respect of the same approval for the giving of financial support or making of a recognition payment, each of the defendants is jointly and severally liable under the order. (4) If the Tribunal decides under subsection (1) to reduce the amount payable by a defendant under an order made against 2 or more defendants, the Tribunal may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order.
Of importance is the fact that s 69(1)(a) specifically refers to and makes it a mandatory relevant consideration to have regard to 'the financial means of the defendant' in deciding whether or not to reduce the amount to be paid under an order for restitution.
It should also be noted that in Flynn v R [2010] NSWCCA 171, at [64] - [66], the Court referred to the remarks in Connor v R as follows: 64 The question of the offender's capacity to pay the compensation sought was considered in Connor v The Queen (2005) 158 A Crim R 389. In that case, Studdert J said at [41] (McClellan CJ at CL and James J agreeing): "the asserted impecuniosity of an offender against whom a direction is sought pursuant to section 77B ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender's impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false". 65 That is not to say, however, that impecuniosity will never be a relevant consideration. Indeed, it is implicit in those remarks that the Court may have regard to that issue in some cases, on the basis identified. 66 It may be accepted that section 77D does not direct explicit attention to the circumstances of the offender. Nonetheless, the Court is required in entertaining an application under section 77B to have regard to all the circumstances of the case: Connor at [42].
This reinforces the point we made above that section 69 of the Act, unlike the position under the legislation being considered in Connor's case, does direct explicit attention to the financial circumstances of the defendant.
Accordingly, in our view, it was not appropriate for the Tribunal to have regard to and adopt the passage from Connor v R quoted in Kabir. We note that 'an error of legal principle' is a basis upon which it is appropriate for a Court of Appeal or Appeal Panel to overturn a discretionary decision such as under s 69 of the Act: see Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] (Tobias AJA).
The Respondent submitted that in any event the Tribunal's disclosed reasoning supports the result reached and hence the Decision should not be disturbed.
Having regard to the expressed reasons given by the Tribunal and its reference to Connor v R, we are not satisfied that the conclusion reached was not vitiated by the error of legal principle identified by us.
The question then arises as to whether or not we should re-exercise the discretion ourselves or remit the matter for reconsideration to the Tribunal differently constituted. We are conscious of the fact that these proceedings are administrative law proceedings. In any hearing before the Tribunal, or on a reconsideration of the matter by the Appeal Panel, the aim is to reach the 'correct and preferable' decision at the time of hearing the matter or reconsidering the matter.
This ordinarily means that the Tribunal, or Appeal Panel, is not limited to the evidence at the time of the decision by the original decision maker but is to take into account all facts and circumstances at the date of the hearing.
The Appellant has foreshadowed that he wishes to file fresh evidence as to its current financial circumstances.
In such circumstances, we are of the view that the better course is to remit the matter to the Tribunal, differently constituted, for reconsideration of the question of whether or not the amount of the restitution order should be reduced pursuant to s 69 of the Act.

Whether or not the Appellant was denied procedural fairness?

The Appellant submitted that the manner in which the Tribunal acted towards him was unreasonable and in effect overbore the Appellant and prevented him from making effective submissions on the question of his financial circumstances and whether or not the restitution order should be reduced. Detailed submissions were put forward by reference to the transcripts of the proceedings annexed to an affidavit of the Appellant.
It is clear that in light of our decision to remit the matter to be reconsidered by the Tribunal differently constituted, with the ability to lead fresh evidence, it is not necessary for us to decide this ground of appeal. In all of the circumstances, we are of the view that it is preferable that we not determine this ground of appeal.

ORDERS

The orders of the Appeal Panel are: 1. Extend the time for lodging the Notice of Appeal to 11 January 2023. 2. Allow the appeal. 3. Set aside the orders of the Tribunal of 9 December 2022. 4. Remit the application to the Administrative and Equal Opportunity Division, differently constituted, for determination in accordance with these reasons on the basis of the evidence previously filed and such further evidence as the parties wish to rely upon. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2023

Victims' Support and Rehabilitation Act 1996(NSW)

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