If a claimant has been sentenced to a term of imprisonment greater than three years, Part 7 of the Public Trustee Act 1978 will likely apply to the claimant.  

This means that automatically as a result of the claimant’s sentencing, the Public Trustee is the manager of the claimant’s estate.  It is an automatic application due to the length of the claimant’s imprisonment sentence, and it applies whether or not the claimant was to bring a claim. 

Power of the Public Trustee

If a claim is being made, it is important for the claimant to be aware of the powers that the Public Trustee has in managing the claimant’s estate.  

Upon reaching a resolution of the claimant’s claim, any monies paid in settlement of the claimant’s claim by the defendant will be paid directly to the Public Trustee.  The Public Trustee can then do any of the following:-

  • Make payment of any debt or liability the claimant has; 
  • Pay compensation for any loss or injury alleged to have been suffered by any person through any alleged criminal or fraudulent act by the claimant (such as Victims of Crime (see further below)); and 
  • Pay spousal or child maintenance they see fit, or pay any person wholly or partially dependent on the claimant as determined by the Public Trustee. 
The Public Trustee has other powers, however, these are their main powers. This may have a significant effect on the amount of damages that a claimant may receive themselves, and it is important that a claimant is aware that of this.  If there is money left with the Public Trustee after the payment of expenses such as the above list, a claimant would then be able to apply periodically for release of monies for their own maintenance.  

When does the power cease

Although the Public Trustee does have some discretionary power to discontinue management of an estate, the power does not officially cease until one of the following occurs:- 

  • The claimant receives a pardon; 
  • The claimant has undergone the full term or terms of their imprisonment; 
  • If the claimant is the subject of an indefinite sentence and is released to a reintegration program under section 1784 of the Penalties and Sentences Act 1992 and the program has ended or been discharged; 
  • The claimant dies; or 
  • As a result of an appeal or otherwise, the claimant lawfully ceases to be a prisoner. 

As set out above, it is likely that the Public Trustee will have the power to manage the claimant’s estate until the completion of their full time (note this is not a claimant’s release on parole, it is when their full imprisonment sentence has been served).  Even if the Public Trustee exercise their discretionary power to discontinue management of the claimant’s estate, they can resume management at any time. 

Corrective Services Act 2006

At this stage it is also important to note Part 12B of the Corrective Services Act 2006 which can also apply to a claimant’s claim.

This section means that any money that a claimant is awarded could also go to a Victim Trust Fund which is held by the Public Trustee to pay any awards on eligible victims claims against the claimant or any amounts of eligible entity claims (e.g. Victims of Crime claims, SPER debts, child support debts) against the claimant. This means that a victim can then make a claim against the fund for any injury caused to them by the claimant’s conduct that, on the balance of probabilities, constitutes an offence. Whether or not the claimant has been prosecuted for, or convicted of, an offence is irrelevant. 

The Public Trustee will notify any potential victims that they may have a victim claim and that they must bring such a claim within 6 months after they receive the notice.  The Public Trustee must then determine whether or not the claim is eligible and if so, pay the claim. 

Essentially, the effect of the Corrective Services Act 2006 and the Public Trustee Act 1978 are very similar.  The Public Trustee will determine the claimant’s debts, and any claims against the claimant, and then the claimant will receive the balance of the funds. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim, please reach out to the author and Littles Lawyers today.