Lin v Commissioner of Victims Rights [2025] NSWCATAD 158

30. The Appeal Panel correctly concluded, contrary to Ms Lin's case, that the 2017 proceedings were not civil proceedings, but criminal proceedings. That was because they concerned Ms Lin's offence of assault occasioning actual bodily harm, which had been dealt with summarily by a Magistrate: at [26]. It followed that those proceedings thus fell within the definition of criminal proceedings, pursued as they had been against Ms Lin.

1. On 18 July 2024 Ms Lin filed a Notice of Appeal in the Court of Appeal appealing from the decision of the Supreme Court Common Law Division. After a hearing on 16 September 2024 the Court of Appeal delivered an Ex-tempore decision and provided written reasons (Lin v Commissioner of Victims Rights [2024] NSWCA 223). The Court dismissed Ms Lin's appeal as incompetent and ordered her to pay the respondent's costs. The following was observed by the Court on jurisdiction.

9. Ms Lin referred in her written submissions to r 51.22 of the UCPR, asserting that the rule indicates that "a specified amount of value in an Act cannot be a reason to hinder or dismiss a notice of appeal". That rule applies where a right to appeal is restricted by reference to a specified amount or value, as here. It requires certification that the amount in issue exceeds that amount or value. The rule builds upon provisions such as s 101(2)(r); it does not detract from them. Nor does it cut across the operation of r 51.41, which addresses appeals being dismissed as incompetent.

10. Ms Lin requires leave to appeal in this matter. The appeal she has filed is not competent and should be dismissed.

1. It appears from that decision that Ms Lin argued further interpretive provisions before the Court of Appeal in order to enliven the Court's jurisdiction to hear her appeal.
2. On 18 February 2025 Ms Lin filed a new application for administrative review with the Tribunal. Attached to the application was an email sent to her by Victims Services concerning the earlier Tribunal orders confirming the restitution order in the sum of $5,000.00 with the email being dated 20 January 2025. The email referred to the sum being required to be paid in full by 24 February 2025. The email went on to refer to enforcement action that might arise if payment was not made in the stated terms.
3. On 9 February 2025 Ms Lin replied by email to Victims Services outlining that she noted that her matter (Reference DO 92158):

Dear .... although the restitution order for DO92158 had been at NCAT, and Supreme Court. However the ground of my argument had not been including s 9 (3) of Crimes (Sentencing Procedure) Act 1999. Please notice that the good behaviour bond I received is a conditional release order s 9 (3) of Crimes (Sentencing Procedures) Act 1999 [sic] clearly states that a fine and good behaviour bond cannot be imposed on the offender for the same offence. Therefore the restitution order is in violation of the provision and is invalid.

(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if:

(b) the court does not proceed to conviction but makes an order under section 10 (1) (b).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

These factors are considered under section 10 in respect of an order under section 10 (1) (b) in connection with a conditional release order without a conviction.

(a) a fine and a conditional release order cannot be imposed in relation to the offender in respect of the same offence, and

(b) a conditional release order with a conviction may be made as an alternative to imposing a fine.

(4) This section is subject to the provisions of Part 8.

Regarding the content of the application at NCAT please consult with (legal officer) of Victims Services who was the legal representative for the Commissioner.

The ultimate purpose of law is to implement justice in community. Therefore s9(3) of the Crimes Sentencing Procedure Act 1999 must be taken in to consideration. By the, a restitution order hasn't been made for such a long time [sic] it apparently is not a mistake but a consideration of s 9 (3) of Crimes Sentencing Procedure Act 1999.

Due to above reason I request DO92158 be cancelled.

1. A subsequent email from Victims Services on 14 February 2025 noted that the Restitution Order had already been confirmed by the Tribunal and that Ms Lin's subsequent appeals were unsuccessful. A further reference was made to enforcement action if payment was not completed by 24 February 2025.
2. The Administrative Review filed 18 February 2025 as noted at [10] above, also attached a single page Grounds for Application. That document requoted the provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) and set out an argument that in essence no restitution could arise because Ms Lin did not receive a fine but a conditional release order. The argument (as the Tribunal understands it) is that s 9 of the CSP Act provides that a defendant cannot be subject to both a conditional release order and a fine, by virtue of s 9 (3) (a) of the CSP Act. Ms Lin sees restitution as enlivening what might be termed as 'fine provisions' and as such argues that she is in effect exempt from restitution because the Local Court imposed a condition release order rather than a fine on her. She does not engage on whether in her view restitution would be valid if she was issued with a fine by the Local Court instead.
3. Ms Lin also raises in her grounds the definition for the term Fine from section 4 of the Fines Act 1996. Reference is made to the section 4 definition where under s 4 (2) meaning of 'fine' (1) for the purposes of this Act, a fine is - (d) any victims support levy, .. .
4. Ms Lin then goes to the Oxford English Dictionary whereby she states the following extract concerning the definition of the term 'levy': Collect (a payment, etc) by authority or force; impose. No edition number is provided.
5. At the directions listing the Commissioner signalled their intention to file a strike out application for the matter. The Tribunal also observed that the restitution determination had already been heard by the Tribunal and all appeal rights and processes appeared to have concluded. Ms Lin submitted that background was correct however she was now running a different argument than the one that she ran in 2023 before the Tribunal, instead relying on the CSP Act.
6. A timetable was set for the Commissioner's strike out application and the filing and serving of evidence. In addition to notions of res-judicata and estoppel the Tribunal noted that there was a further jurisdiction issue being that any fresh administrative review was lodged beyond the statutory period provided under the VR & S Act and the NCAT Act.

Consideration of the application for summary dismissal

1. I observe that an applicant for summary dismissal is required to reach a very high threshold to achieve a summary dismissal of proceedings. This has been observed in the case of General Steels Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 [HCA] 69 with Barwick CJ at [8] - [10].

8. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129)

9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129)

10. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)

1. The above case has been relied upon by Courts of record to establish the general principle that the nature of considering summary judgment is a different test to be considered at a higher threshold than a substantive determination of the merits of a case. In addition the case of Sayed v Deng [2012] NSWSC 851 has some application.

19. First, it means that his Honour's decision is not to be taken as a final determination of whether or not there was an accord and satisfaction. If this application is unsuccessful it would still be open to Mr Sayed to pursue that matter at a final hearing. This means that any prejudice said to have been suffered by Mr Sayed from any error on his Honour's part in refusing the application is relatively confined. In substance that prejudice is the costs and expenses that he will incur in running the balance of proceedings. If he is ultimately successful, he can in any event expect to recover a substantial amount of those costs.

20. Second, it means that Mr Sayed's complaint of error must be assessed against the criteria that his Honour must be taken to have been applying when considering the entry of summary judgment pursuant to UCPR 13.41(b) on the basis that no reasonable cause of action is disclosed.

21. The nature of that enquiry is discussed in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, General Steel Industries Incorporated v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, and more recently in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] per Gaudron, Gummow and Hayne JJ:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes.

The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way."

1. Whilst I accept the high threshold required when determining the question as to striking out a plaintiff's or applicant's claim prior to a substantive hearing on the merits, the above cases focus on a general lack of jurisdiction to hear the case because of an absence of any disclosed cause of action. It is not a situation as in General Steels Industries where a party is being denied a chance of agitating their case before the customary Tribunal.
2. At hearing of the application Ms Lin reventilated her CSP Act argument. She maintained that she was running a different case to the earlier argument which focused on whether the Local Court proceedings were civil proceedings. She maintained that because of the need to uphold the rule of law, any argument that had merit had a right to be reagitated. In this regard she submitted that the Tribunal should dismiss the Commissioner's application, hear her argument and application favourably and set aside the Notice of Determination of Restitution.
3. At [9] of her written submissions Ms Lin advanced a further argument referring to the Civil Procedure Act 2005 (the CP Act). Reference was made to s 91 (1) of that Act as grounds for allowing her proceedings to effectively be reinstated before the Tribunal. The section provides:

91 Effect of dismissal of proceedings(cf SCR Part 40, rule 8)

(a) any proceedings, either generally or in relation to any cause of action, or

(b) the whole or any part of a claim for relief in any proceedings, does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings.

1. However, that argument was made without reference to subsection (2) which provides:

(2) Despite subsection (1), if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief in the proceedings, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court.

1. In her written submissions Ms Lin repeated in some detail the two main arguments being, that (a) s 91 of the CP Act in effect removed any impediment from having the matter previously decided by the Tribunal and Courts, and (b) that because of the operation of the CSP Act and the Fines Act the Notice of Determination of Restitution is in effect against the intention of the CSP Act as applied by the Local Court in sentencing Ms Lin, and therefore is an attempt to impose a fine on her in addition to the sentence imposed.
2. The Commissioner submitted that Ms Lin is seeking further review of the decision by the Commissioner to issue the Notice of Determination of Objection. Reference was made to Network Seven v Commissioner of Police NSW Police Force [2017] NSWCATAD 31 where the Tribunal observed at [17] - [21]:

17. No power to review decision the subject of the dismissed proceedings

In Seven's application to the Tribunal and its subsequent submissions, Seven asked the Tribunal to extend time for making its second application. It referred to its application as a "new application" to "open a file that has already been before NCAT". Seven submits that permitting an extension of time would be consistent with the objects of the NCAT Act, including ensuring that the Tribunal is accessible to users (NCAT Act, s 3(c)).

18. This raises the question as to whether the Tribunal has jurisdiction to review a decision under the GIPA Act which has already been the subject of a review by the Tribunal. For the reasons which follow, I accept the Commissioner's submission that it does not. Accordingly, the issue of an extension of time does not arise.

19. As the High Court observed in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [7], "as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances." Neither the NCAT Act, the Administrative Decisions Review Act nor the GIPA Act, expressly or by implication, permits a revisiting of the Tribunal's decision in reviews of decisions under the GIPA Act, because there has been a change of circumstances, with some very limited exceptions which do not apply: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [7] and [53]. The NCAT Act only permits the revisiting of the Tribunal's decision in accordance with s 55(2), and in some other limited circumstances (see, for example, NCAT Act, s 63 ("Power to correct errors")). If it were otherwise, reviews of the same decision could continue indefinitely and there would be no finality in decision-making (see Johnson v Veterans' Review Board (2005) 88 ALD 652; [2005] FCA 1136 at [55]). This could not have been intended by the legislature.

20. Once the Tribunal made its determination in proceedings 1510017, it was functus officio; that is, it had "used up all of its powers because it [had] been given the task of reviewing a decision and, having done that, it [had] completed its task": see Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 at [12] (concerning the powers of the Administrative Appeals Tribunal); see also Johnson v Veterans' Review Board (2005) 88 ALD 652; [2005] FCA 1136.

21. For these reasons, the Tribunal does not have jurisdiction to hear or determine Seven's application. The proceedings must therefore be dismissed pursuant to s 55(1)(b) of the NCAT Act.

1. The Commissioner submitted that Tribunal is prevented from revisiting any arguments that Ms Lin wishes to raise in respect of the Notice of Determination of Objection. The Commissioner submitted that Ms Lin is now seeking the same ultimate relief, albeit on different grounds.
2. The Commissioner also submitted that even if the matter had not previously been before the Tribunal, the arguments as to the validity of the Notice of Determination of Objection were without merit, the CSP Act argument and the CP Act arguments having no weight.
3. In the case of Ferella v Chief Commissioner of State Revenue [2020] NSWCATAD 128 (Ferella) the Tribunal examined the issue of reventilating or reagitating an issue that had previously been determined on the merits by the Tribunal. At [64] to [68] the Tribunal observed:

64. The assessment for the 2011 land tax year has already been the subject of consideration and determination by the ADT, an Appeal Panel of the ADT and the Court of Appeal, under the statutory review provisions as they existed at that time. Mr Ferella is well aware of that fact - he himself gave evidence in the ADT: Ferella v Chief Commissioner of State Revenue [2013] NSWADT 46 at [6]- [25].

65. The Chief Commissioner submits that the administrative review already conducted in the ADT in respect of the 2011 land tax year was litigation that 'dispose[d] once and for all of the matters decided so they cannot be thereafter raised or re-litigated': see [66] below. The Applicants are therefore, according to the submission, estopped from re-agitating their application in this Tribunal in respect of the 2011 land tax year.

66. The submission is based on what was said by the Appeal Panel concerning 'cause of action estoppel' in Pickering v Yi [2015] NSWCATAP 161 at [55], as follows:

Cause of action estoppel, arising from the doctrine of res judicata, is where a final decision is made by a Court or Tribunal having competent jurisdiction over the cause or matter in litigation which disposes once and for all of the matters decided so they cannot be thereafter raised or re-litigated. First, the decision precludes any party to the litigation from disputing the correctness of the earlier decision in law and fact. Secondly, the right or cause of action is extinguished, merging in the judgment which is pronounced in the earlier proceedings. At a practical level cause of action estoppel (or res judicata) is a defence to a claim made in legal proceedings and, if established, is a complete bar to subsequent proceedings.

There is no doubt that the question of exemption from land tax in respect of the 2011 land tax year was fully litigated in 2013 and determined on the merits. The substance of the Applicants' claim was that the dominant use of the Box Hill property was for primary production; that issue was decided squarely against the Applicants. It is not now open to them to contest the 2011 land tax assessment again - whether on the primary production argument or on any other.

67. The decision of the ADT, while expressed (incorrectly) as affirming the objection decision, was in fact a decision confirming the assessment itself. As s 96(1)(a) makes clear, it is not the objection that is under review in the Tribunal (or in the ADT prior to 2014), but the substantive decision that was the subject of the objection - in other words, the assessment.

68. The Chief Commissioner's cause of action estoppel submission, in respect of the land tax assessment for the 2011 land tax year, is accepted.

1. In my view the principles canvassed in the cases above have application to Ms Lin's administrative review application. Even if I was to allow her application to proceed, as noted it appears that on any consideration both of her arguments to remove the Notice of Determination for Restitution have no basis.
2. The CP Act argument fails at the first hurdle because her submission does not address the matters raised in s 91 (2) of that Act. This effectively removed any basis for reliance on the grounds claimed under s 91.
3. The CSP Act argument also fails for a number of grounds. These include that restitution is a separate process to the imposition of a fine or a penalty. Restitution under the VRS Act is concerned with recovery proceedings. Part 5 of the VRS Act is titled: Recovery of victims support payments from offenders. As such the proceedings are recovery proceedings and are not proceedings concerning the imposition of a fine or penalty.
4. The public policy rationale for restitution concerns a view that the perpetrators of crimes of violence should to the extent possible contribute to the support and rehabilitation of their victims. This concept has been applied under the various victims support schemes in NSW for approximately 40 years.
5. The reference to the Fines Act only arises in circumstances where restitution has been confirmed by the Commissioner after following the processes in Part 5 of the VRS Act, or ordered by the Tribunal as was the case with Ms Lin. It provides the mechanism for enforcement of the monetary amount. It is not a fine.
6. In issuing the Provisional Order, the Notice of Determination and the Tribunal's order, a fine is not being imposed, but a monetary amount concerning the recovery of victims support.
7. I therefore find that in reaching the high threshold on a strike out application as required by reference to the cases above, both of Ms Lin's arguments would fail and as a result the proceedings are without substance.
8. In addition in the absence of any order extending time to lodge the further administrative review application under s 41 of the NCAT Act, the Tribunal lacks jurisdiction to hear the matter in any event.
9. However, applying the matters identified in the case of Ferella as set out above, the Tribunal has already disposed of the arguments, and the Tribunal has already disposed of the application as the order of 2023 remains in force in respect of DO 92158. This also removes any jurisdiction of the Tribunal to hear the matter afresh.

1. Having regard to the evidence and material before me, I find that the applicant does not have standing to bring the application. As a result of that finding I find that the Tribunal does not have jurisdiction to determine the matter.
2. If I am wrong on that jurisdiction issue, I find that the Tribunal would (on the evidence and material before it), assuming that Ms Lin had standing, I would dismiss the arguments advanced by Ms Lin in respect of the validity of the Notice of Determination of Objection. However that matter and any other matters as to the merits are moot because of the finding that I have made at [38] above.
3. In addition even of the Tribunal had jurisdiction to hear the substantive argument, it lacks jurisdiction as the application for administrative review has been made out of time.
4. As the Tribunal does not have jurisdiction, the appropriate order will be an order dismissing the application as misconceived.
5. I therefore make the following orders.

(1) Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived as the Tribunal does not have jurisdiction to deal with the application.

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.

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.