FPD v Commissioner of Victims Rights (No 2) [2023] NSWCATAD 74

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FPD v Commissioner of Victims Rights (No 2) [2023] NSWCATAD 74 Hearing dates: On the papers Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. I dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for costs is dismissed. Catchwords: ADMINISTRATIVE LAW – administrative review – Victims rights and support – application for costs – no power to make an order for costs where the Tribunal makes an administrative review decision for the purposes of the Victims Rights and Support Act 2013. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW) Cases Cited: FPD v Commissioner of Victims' Rights [2023] NSWCATAD 54 Texts Cited: None Category: Costs Parties: FPD (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: Applicant (Self-represented) Victims Services (Respondent) File Number(s): 2022/00333516 Publication restriction: None

REASONS FOR DECISION

Background 1. On 13 March 2023, the Tribunal published its decision in the matter of FPD v Commissioner of Victims Rights [2023] NSWCATAD 54. The decision was made in relation to FPD's application for administrative review of the respondent's decision dated 7 October 2022, that he was not a primary victim of an act of violence, and that he was therefore not eligible for a recognition payment under the Victims Rights and Support Act 2013 (NSW) (the Act). 2. The Tribunal determined that the correct and preferable decision was to set aside the respondent's decision dated 7 October 2022 and to make the following decision by way of substitution: 1. FPD was the primary victim of an act of violence as defined by ss 19 and 20 of the Act on the balance of probabilities; and 2. FPD is eligible for a category D recognition payment in the sum of $1,500. 1. On 14 March 2023, FPD sent an email to the Tribunal in which he applied for an order for payment of disbursements totalling $849, comprising: 1. NCAT filing fee - $28 2. Costs relating to the issue of Summons to Give Evidence to three witnesses - $441 3. Commercial agent's fees for service of Summons on one witness - $130 4. Conduct money to NSW Police - $104 5. Wages paid to the third witness - $280 6. Thumb drive to copy short video and pictures of the location of the assault - $15 7. Feed paid for IT to copy short video and pictures of the location of the assault to the thumb drive - $25 8. Urgent printing and scanning of documents done by "a local legal practitioner - $100 still owing. 1. However, FPD did not identify any provisions of the Act or of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that entitle him to the payment of costs in relation to the application for administrative review. 2. The respondent disputed the application for costs. In an email dated 20 March 2023, the respondent stated, relevantly: …The Tribunal may not award costs in administrative review proceedings for the purpose of the Victims Rights and Support Act 2013 – see Schedule 3, clause 13 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). Further the definition of costs in section 60 of the NCAT act includes the costs of, or incidental to, proceedings in the Tribunal. As the above matter was an administrative review pursuant to section 51 of the Victims Rights and Support Act 2013, costs/disbursements cannot be awarded.