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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Scott Cottrell v Commissioner of Victims Rights [2021] NSWCATAD 61 Hearing dates: 12 March 2021 (on the papers) Date of orders: 16 March 2021 Decision date: 16 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The application for administrative review is dismissed. Catchwords: ADMINISTRATIVE LAW – Victims Rights and Support – restitution order against person convicted of relevant offence – lack of jurisdiction where the applicant failed to object to the provisional order for restitution Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing and Procedure) Act 1999 Victims Rights and Support Act 2013 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Scott Cottrell (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: West Tamworth Legal (Applicant) Victims Services (Respondent) File Number(s): 2020/00307021 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons

REASONS FOR DECISION 1. The applicant has made an application for administrative review of a decision confirming a restitution order, which was made by a delegate of the Commissioner of Victims Rights (the respondent) on 4 September 2020. This required the applicant to pay restitution of $8,219, being the victims support that was approved for the victim in respect of an act of violence committed by him. The provisional order was made pursuant to s 59 of the Victims Rights and Support Act 2013 (the Act) and it was confirmed under ss 63 (1) (a) and 70 (b) of the Act in circumstances where the applicant did not lodge an objection to the provisional order. 2. The applicant has also sought an order that enforcement of the restitution order be stayed pending determination of his application for administrative review. He argues to the effect that he was unable to respond to the provisional order, by lodging an objection, due to "extraordinary circumstances at play when the orders were made". 3. However, the respondent objects to the Tribunal's jurisdiction to determine the application and argues that s 66 of the Act confers administrative review power upon the Tribunal in respect of decisions to which an objection was made. 4. Section 66 of the Act provides: 66 Administrative reviews by Tribunal (1) The defendant may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which an objection was made if – (a) the defendant is dissatisfied with the Commissioner's determination of the objection, or (b) 90 days have passed as referred to in section 64 since the objection was lodged with the Commissioner and the Commissioner has not determined the objection. 1. Part 5 of the Act is concerned with the recovery of victims support payments from offenders. The object of that Part is set out in s 57: The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments. 1. Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. (3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by: (a) the person for the time being holding or performing the duties of that office or appointment, or (b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies. (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. It is necessary to determine the jurisdictional issue before considering the grounds of the applications for administrative review and for a stay of execution of the restitution order.