Part 2A

(1)   In this Division:

“award” of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).

“offender” means a person to whom an award of offender damages is made.

“offender damages” means personal injury damages awarded pursuant to an award to which this Part applies. For the purposes of this Division, this Part has an extended application.

See Part 7 of Schedule 1.

“victim claim” means a claim for personal injury damages in respect of:

(a)  an injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence, or

(b)  the death of a person caused by or resulting from an injury to the person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence.

“victim trust fund” means offender damages awarded to an offender that are held on trust under this Division.

(2)   The definition of “victim claim” in this section:

(a)  operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned, and

(b)    extends to conduct of a person that would have constituted an offence if the person had not at the time of the conduct had—

(i)    a mental health impairment, or

(ii)    a cognitive impairment, or

(iii)    both, and

(c)    applies whether or not—

(i)    a special verdict of act proven but not criminally responsible is entered concerning that conduct, or

(ii)    the person was found by a court to be unfit to be tried for an offence.

(1)   The protected defendant liable to pay offender damages awarded to an offender is to pay those damages to the NSW Trustee and Guardian to be held in trust for the offender and paid out only as authorised by this Division.

(2)   Offender damages held in trust for an offender under this Division comprise a “victim trust fund” for victims of the offender. The protected defendant liable to pay those damages is “responsible” for the fund.

(3)   This section does not affect (and is subject to) any obligation imposed on the protected defendant by or under an enactment of the State or the Commonwealth to pay to some other person money owed or due to or held on account of the offender. Section 26T also provides an exception to this section for legal costs.

(4)   An amount deducted or withheld from offender damages under Division 5 (Victims support payments owed by offender) is not required to be held in trust under this section.

(5)   An amount held in a victim trust fund for victims of an offender is:

(a)  not available for the payment of a creditor of the offender, and

(b)  not liable to be attached or taken in execution at the instance of a creditor of the offender.

(6)   While offender damages are held in a victim trust fund, the liability of a protected defendant to pay those damages is suspended.

(1)   A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is “eligible” to be satisfied from the victim trust fund as provided by this section.

(2)   A victim claim is “eligible” to be satisfied from a victim trust fund only if within the “eligibility period” for the victim trust fund:

(a)  the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and

(b)  the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected defendant may request, and

(c)  the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.

(3)   The “eligibility period” for a victim trust fund comprising offender damages awarded to an offender is the period of 12 months following the date (the “award date” for those damages) on which the claim for those damages is finally determined by a court award of those damages.

(4)   A claim is not finally determined if:

(a)  any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b)  any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).

(5)   The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.

(1)   The protected defendant responsible for a victim trust fund must send to each person who appears (from any information reasonably available to the protected defendant) to have a victim claim against the offender a notice in writing:

(a)  naming the offender and stating that there is a victim trust fund for victims of the offender, and

(b)  specifying the eligibility period for that victim trust fund, and

(c)  stating that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund.

(1A) The notice must be sent as far as practicable within 28 days after the award date for the damages concerned (but this subsection does not prevent the notice from being sent more than 28 days after the award).

(2)   The notice is to be sent to a person at the address of the person last known to the protected defendant or as disclosed by any information reasonably available to the protected defendant.

(3)   The protected defendant may also publish such a notice in the Gazette.

(4)   To remove doubt, “victim claim” in this section includes a victim claim that can be made as a result of section 26P (Commencement of victim claims proceedings despite expiry of limitation period).

(5)   The Commissioner of Police is authorised to provide a protected defendant with any information in the Commissioner’s possession that the protected defendant may reasonably require for:

(a)  identifying and contacting persons who may have a victim claim against the offender, or

(b)  determining whether a person appears to have a victim claim against the offender.

(1)   A protected defendant must, in response to a request made during or within 1 month after the eligibility period for a victim trust fund by or on behalf of a person who appears to the protected defendant to be entitled to make a victim claim against the offender, provide such information as the protected defendant is reasonably able to provide concerning:

(a)  the award of damages to the offender and the amount of the victim trust fund, and

(b)  any other victim claim against the offender that may be eligible to be satisfied from the victim trust fund and of which the protected defendant has been given notice under this Division.

(2)   The provision of information by a protected defendant under this section:

(a)  is authorised despite any agreement to which the protected defendant is a party that would otherwise prohibit or restrict the disclosure of information concerning an award of offender damages, and

(b)  does not constitute a contravention of any such agreement.

(3)   A person to whom information is provided under this section must not disclose that information to any other person except for the purposes of or in connection with the taking and determination of proceedings on a victim claim against the offender concerned. Maximum penalty: 50 penalty units.

(4)   Proceedings for an offence under this section may be dealt with summarily before the Local Court.

(1)   If there is a victim trust fund for victims of an offender, an action on a cause of action to recover damages pursuant to a victim claim against the offender is (despite any provision of the Limitation Act 1969) maintainable by proceedings on the cause of action commenced during the eligibility period for the victim trust fund.

(2)   The right and title to damages of a person formerly having such a cause of action that has been extinguished by the expiration of a limitation period fixed by or under the Limitation Act 1969 is reinstated for the purposes of proceedings on the cause of action that are commenced during the eligibility period for the victim trust fund.

(3)   However, an award of damages in proceedings commenced under this section (that could not otherwise be commenced):

(a)  has effect only for the purpose of enabling an order to be made under this Division for the payment of the whole or a specified part of those damages out of money held in the victim trust fund concerned, and

(b)  cannot otherwise be enforced against the offender concerned or any property of the offender.

(1)   A court that awards damages to a person on a victim claim against an offender may, if satisfied that the claim is eligible to be satisfied from a victim trust fund for victims of the offender, order that the whole or a specified part of those damages is to be paid out of money held in the victim trust fund.

(2)   Before the court orders the payment of damages out of money held in the victim trust fund, the court must consider:

(a)  whether there are or are likely to be other victim claims eligible to be satisfied from the victim trust fund that may be ordered to be wholly or partly satisfied by payment from the victim trust fund, and

(b)  the amount of the damages likely to be awarded in respect of those claims.

(3)   In determining the amount of any damages to be ordered to be paid out of a victim trust fund, a court must ensure that the amount ordered to be paid:

(a)  is fair and reasonable having regard to the existence of other claims that are eligible to be satisfied from the fund and that may be ordered to be wholly or partly satisfied by payment from the fund, and the amounts likely to be awarded in respect of those claims, and

(b)  does not, as a proportion of the amount of the victim trust fund, exceed the proportion that the damages awarded represents as a proportion of the total damages likely to be awarded in respect of all claims eligible to be satisfied from the fund.

(4)   A court may defer making an order for the payment of damages out of a victim trust fund until the court is satisfied that it is able to make a reasonable assessment of the extent of claims eligible to be satisfied from the fund.

(5)   The payment of an amount out of a victim trust fund in accordance with an order of a court under this section is taken to be a payment made at the direction of the offender and operates as a discharge, to the extent of the payment, of:

(a)  the liability of the protected defendant to pay the amount to the offender concerned as offender damages, and

(b)  the obligation of the NSW Trustee and Guardian to hold the amount in trust for the offender concerned.

(6)   An order of a court under this section is not subject to appeal except on a question of law.

A court is to determine a victim claim made to it without conducting a hearing unless it is satisfied that the interests of justice require that a hearing be held in the presence of the parties.

(1)   When the protected defendant responsible for a victim trust fund is satisfied that all claims eligible to be satisfied from the fund have been finally determined, the protected defendant is to make a determination of the surplus (if any) in the fund.

(1A) A claim is not finally determined if:

(a)  any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b)  any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).

(2)   A court that awards damages to a person on a victim claim against an offender may give directions to the protected defendant concerned in respect of the determination by the protected defendant of the surplus (if any) in the victim trust fund concerned.

(3)   If a protected defendant responsible for a victim trust fund determines and certifies to the NSW Trustee and Guardian that there is a surplus in the fund, the NSW Trustee and Guardian must pay the certified surplus to or at the direction of the offender concerned.

(4)   The “surplus” in a victim trust fund is the amount that will remain in the fund after payment out of the fund of the following amounts:

(a)  the amount of all claims eligible to be satisfied from the fund that are ordered by a court under this Division to be paid out of the fund,

(b)  all amounts payable to the NSW Trustee and Guardian out of the fund.

(1)   (Repealed)

(2)   Interest received by the NSW Trustee and Guardian in respect of the investment of an amount held by the NSW Trustee and Guardian under this Division is payable to and forms part of the victim trust fund of which the amount forms part.

(3) , (4) (Repealed)

(5)   The fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division are payable out of the victim trust fund in connection with which those functions are exercised.

(6)   The certificate of the NSW Trustee and Guardian as to the fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division is sufficient authority for the payment of the relevant amounts out of the victim trust fund concerned.

(1)   This Division does not require any amount to be held in trust that is payable by the protected defendant as legal costs under an order for costs made against the protected defendant or (in the case of an award of damages that is inclusive of costs) that is reasonably attributable to the offender’s legal costs.

(2)   The amount reasonably attributable to the offender’s legal costs in the case of an award of damages that is inclusive of costs is the amount determined by the protected defendant on the basis of a bill for those costs provided to the protected defendant by the legal practitioner concerned.

(3)   If the amount determined by the protected defendant as the amount reasonably attributable to the offender’s legal costs is disputed, the protected defendant is to apply for the assessment of those costs under the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (as if the protected defendant were liable to pay those costs as a result of an order for the payment of an unspecified amount of costs made by a court).

(4)   The costs of a costs assessment for the purposes of this section are payable:

(a)  by the offender (by deduction from the offender damages concerned), unless paragraph (b) applies, or

(b)  by the protected defendant if the amount of the costs as determined by the costs assessor is at least 10% more than the amount determined by the protected defendant.

(1) The maximum costs for legal services provided to the plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund are fixed as follows:

(a) if the amount recovered on the claim does not exceed $100,000–maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,

(b) if the amount recovered on the claim exceeds $100,000 but does not exceed

$250,000–maximum costs are fixed at 18% of the amount recovered or $20,000, whichever is greater,

(c) if the amount recovered on the claim exceeds $250,000 but does not exceed $500,000–maximum costs are fixed at 16% of the amount recovered or $45,000, whichever is greater,

(d) if the amount recovered on the claim exceeds $500,000–maximum costs are fixed at 15% of the amount recovered or $80,000, whichever is greater.

(2) The regulations may prescribe an amount or percentage to replace any amount or percentage in subsection (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.

(3) Schedule 1 (Maximum costs in personal injury damages matters) to the Legal Profession Uniform Law Application Act 2014 applies in respect of the maximum costs for legal services provided to a plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund as if subsections (1) and (2) of this section were substituted for subclauses (1) and

(2) of clause 2 of that Schedule.

(4) (Repealed)

(5) The “amount recovered” on a claim is the full amount of the damages awarded (not just the amount ordered to be paid from a victim trust fund).

(1) An act or omission by a person as a public official does not subject the person personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Division.

(2) In this section:

“public official” means:

(a) a member of staff of or agent of a protected defendant, or

(b) the NSW Trustee and Guardian, or a member of staff or agent of the NSW Trustee and Guardian, when the NSW Trustee and Guardian is acting under this Division.

Division 2 of Part 7 does not apply to damages required to be held in trust under this Division.