Victims restitution payments

NCAT can review a decision about an order for restitution made against a defendant by the Commissioner of Victims Services.

Steps in a victims restitution case

Step by step guide to applying to NCAT for the review of a decision about victims restitution

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If Victims Services takes restitution action against you, you will firstly receive a provisional order for restitution made by the Commissioner of Victims Rights. If you want to request for the amount of restitution to be reduced or dismissed, you need to lodge a written objection with Victims Services within 28 days from the day you were given notice of the provisional order (see section 62 of the Act). The Commissioner may allow an objection to be lodged outside the 28 day time limit but cannot extend the time period to more than 90 days from the day of notice.

 

Under section 66 of the Act, you can apply to NCAT for an administrative review of the decision to make the order for restitution if:

  • the Commissioner has decided the objection and you are dissatisfied with the decision, or

the Commissioner has not decided the objection within 90 days after you lodged the objection (90 days is calculated according to section 64 of the Act). 

You can either present your own case to NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to be present to give your instructions to your lawyer or agent.

 

Your lawyer or agent needs to fill out a Notice of Representation by a Legal Practitioner or Agent and submit it to the NCAT registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is submitted. You have to send a copy of the Notice to Victims Services.

 

Unlike a lawyer, an agent needs to request permission from the Tribunal to represent you and should do so the next time the matter is listed (see section 45 and clause 9 of Schedule 3 of the Civil and Administrative Tribunal Act 2013). You should be present with the agent in case the Tribunal does not allow the agent to appear for you.

To apply to NCAT, you need to fill out an Administrative review application form

 

You will need to include the following information on your application form:

  • your contact details and the details of your representative (if you have one)
  • the date the provisional order was made and the date of the determination of the Commissioner (if a determination was made)
  • a copy of the provisional order and the determination of the Commissioner (if a determination was made)
  • a brief outline of why you think the order is wrong.

 

The respondent on the application is the Commissioner of Victims Rights, represented by Victims Services. The address of the respondent is the address of Victims Services.

 

An order for restitution cannot be enforced until the Tribunal decides the application. This means you do not need to lodge an Application for a Stay of a Reviewable Decision form with the Tribunal when you lodge your application for review.

An administrative review application form must be lodged with the Tribunal by the deadline set in the Act:

  • if you have received a determination by the Commissioner – you must lodge the application within 60 days from when you are given notice of the determination of the objection
  • if you have not received a determination within the relevant 90 day period – you can lodge the application any time after the end of that period.

If you receive a determination by the Commissioner after the 90 day period, you must still lodge the application within 60 days of receiving the determination.

 

If you want to lodge an application but the deadline has passed, you have to ask the Tribunal for an extension of time. You will need to give a good reason for not lodging the application within the time allowed. It will be up to the Tribunal to decide whether or not to accept a late application.

 

You need to post or bring the application form to NCAT registry. You cannot lodge it online or by email or fax unless instructed by the Tribunal.

 

Fees and charges

A fee applies for most applications to NCAT. Check our fees and charges to find out which fee applies to you, and how to pay the fee.

You will receive a Notice from NCAT telling you the date, time and location to attend a directions hearing.

 

You will also receive documents from Victims Services that it considers are relevant to the decision.

At the 'directions hearing', a Tribunal Member will talk to you and a representative from Victims Services about how the application will be resolved. Normally directions will be made for you to provide evidence and submissions that you wish to rely on at a hearing and for the other party to provide evidence and submissions in response.

You should look through the documents that Victims Services has provided to you and decide what further information the Tribunal will need when hearing your case.

 

At the directions hearing you may be asked to file and serve a statement, affidavit or other documentation. See more information about evidence and witnesses.

 

You must give a copy of any statements or other documents that you want to rely on to the Tribunal and to the other party by the deadline given to you at the directions hearing.

NCAT hearings are less formal than court hearings. Your application will be heard by a single Tribunal Member. At the hearing, the Tribunal Member will inform you of how the hearing will be run. You will be instructed when it is your time to present your case. In these matters, the Tribunal will ‘stand in the shoes’ of the original-decision maker and decide the outcome based on the evidence before it.

 

Find further information about what happens during a hearing.

 

In some cases, the Tribunal Member will be able to give you their decision at the end of the hearing. However, in most cases the member will need time to consider the case and will give their decision at a later date. The Tribunal aims to give their decision within approximately two months of the hearing. Complex matters may take longer.

 

In an administrative review about a restitution order, the victim of the relevant offence which gave rise to the restitution order can give evidence or produce documents but they cannot be made to do so. 

The Tribunal can make various decisions after its review including:

  • confirming the original decision the subject of review (with or without variations)
  • reversing the original decision the subject of review
  • making any other orders it thinks fit.

 

In making its decision, the Tribunal can confirm an order for restitution:

  • this can be done by the Tribunal confirming the original decision to make the order
  • the Tribunal can confirm an order if it is satisfied that the applicant has been convicted of the relevant offence
  • the Tribunal may reduce the amount to be paid under an order having regard to the financial means of the applicant and any other matters that it believes are relevant to the determination
  • the amount payable by the applicant under a confirmed order becomes a debt payable to the Commissioner (that can be enforced).

NCAT registry will inform you when a decision has been made.

 

Costs

Costs are not to be awarded for proceedings involving an administrative review decision for the purposes of the Victims Rights and Support Act 2013 (see clause 13 of Schedule 3 of Civil and Administrative Tribunal Act 2013). 

 

Appeal rights

You may have the right of appeal to the Appeal Panel of NCAT, if you can establish that the Tribunal went wrong either in the procedure it followed, or the way it applied the law to the facts of your case. Learn more about appeals.

 

In some instances there is also a right of appeal to the NSW Supreme Court. If you are not sure of your appeal rights you should seek legal advice.​

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