Lin v Commissioner of Victims Rights [2024] NSWSC 423

Lin v Commissioner of Victims Rights [2024] NSWSC 423

The 2017 proceedings were criminal proceedings because they were proceedings against Ms Lin for the offence of assault occasioning actual bodily harm, dealt with summarily, and resulted in conviction and sentence by way of a good behaviour bond. The definition of criminal proceedings in s 3 of the Civil Procedure Act 2005 (NSW) was not confined to the listed inclusive categories, and a sentence is not limited to imprisonment. Because those proceedings were not civil proceedings for damages commenced or maintained by or on behalf of the State, s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) did not bar the restitution order. The Appeal Panel's conclusion was correct, and Ms...

Jurisdiction
Australia
Judgment Date
22 April 2024
Procedural Posture
Application to Set Aside an NCAT Appeal Panel Order and Reverse a Restitution Order Made Under S 59(2)(b) of the Victims Rights and Support Act 2013 (nsw) / Principal Judgment Following Hearing; Proceedings Dismissed
Outcome
The orders Ms Lin sought were refused and the proceedings were dismissed.
Legal Topics
['characterisation of Proceedings as Civil or Criminal' "commissioner's Power to Make Restitution Order" 'meaning of Civil Proceedings and Criminal Proceedings in S 3 of the Civil Procedure Act 2005 (nsw)' 'meaning of Sentence and Penalty' 'victims Support Scheme Recovery From Offenders']
['statutory Interpretation' 'administrative Law' 'victims Compensation and Restitution' 'criminal Law' 'civil Procedure'] ['characterisation of Proceedings as Civil or Criminal' "commissioner's Power to Make Restitution Order" 'meaning of Civil Proceedings and Criminal Proceedings in S 3 of the Civil Procedure Act 2005 (nsw)' 'meaning of Sentence and Penalty' 'victims Support Scheme Recovery From Offenders']

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Procedural Posture

Application to Set Aside an NCAT Appeal Panel Order and Reverse a Restitution Order Made Under S 59(2)(b) of the Victims Rights and Support Act 2013 (nsw) / Principal Judgment Following Hearing; Proceedings Dismissed

Legal Issues

  1. 1 ['Whether the 2017 proceedings in which Ms Lin was convicted of assault occasioning actual bodily harm and given a good behaviour bond were civil proceedings or criminal proceedings.' 'Whether s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) prevented the Commissioner from making a restitution order against Ms Lin.' 'Whether the NCAT Appeal Panel erred by not taking account of the ALRC Report table about civil protection orders and criminal proceedings.' 'Whether a good behaviour bond imposed after conviction was a sentence or penalty for a criminal offence.']

Ratio Decidendi

The 2017 proceedings were criminal proceedings because they were proceedings against Ms Lin for the offence of assault occasioning actual bodily harm, dealt with summarily, and resulted in conviction and sentence by way of a good behaviour bond. The definition of criminal proceedings in s 3 of the Civil Procedure Act 2005 (NSW) was not confined to the listed inclusive categories, and a sentence is not limited to imprisonment. Because those proceedings were not civil proceedings for damages commenced or maintained by or on behalf of the State, s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) did not bar the restitution order. The Appeal Panel's conclusion was correct, and Ms...

Court Disposition

The orders Ms Lin sought were refused and the proceedings were dismissed.

Orders

  • ['The orders Ms Lin sought be refused and the proceedings be dismissed.' "Unless the parties approach to be heard within 14 days with short written submissions, the Court's order will be that Ms Lin bear the Commissioner's costs of the proceedings, as agreed or assessed."]