Arnott v Beams
[2022] NTSC 34
•4 April 2022
CITATION:Arnott v Beams & Anor [2022] NTSC 25
PARTIES:ARNOTT, Rhys
v
BEAMS, Carlie
and
OPIE, Thomasin Sarah
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:2021-03005-SC
DELIVERED: 4 April 2022
HEARING DATE: 18 February 2022
JUDGMENT OF: Kelly J
CATCHWORDS:
Domestic and Family Violence Act2007 (NT) s 41, s 43(1), s 43(2), s 44, s 45, s 46(1), s 48, s 48(1), s 48(3), s 48(4), s 48(5), s 71, s 72, s 80, s 81(1), s 81(2), s 82, s 82(1), s 82(2), Part 2.8, Part 2.9, Part 2.10
Local Court (Civil Procedure) Act 1989 (NT) s 19, s 19(2)
Local Court (Criminal Procedure) Act 1928 (NT) s 171 and s 172
Local Court (Civil Jurisdiction) Rules 1998 (NT) r 37.04, r 37.05
Magistrates’ Court Act 1989 (Vic) s 109(5)
Supreme Court Rules1987 (NT) r 83.23(1), r 83.23(2)AB v Hayes & Anor [2019] NTSC 13; Coulston v State Coroner of Victoria [2018] VSC 103; Eccles v Nikki Beach 1 Pty Ltd & Anor [2019] NTSC 39; Mako’ochieng v Kirk [2017] VSC 459; Northern Territory of Australia & Anor v Shannon [2018] NTSC 88; Weber v Nguyen Thi Phuong [2001] NTSC 116
REPRESENTATION:
Counsel:
Appellant:V Farmer
First Respondent: J Ingrames
Second Respondent: K Norrington
Solicitors:
Appellant:Withnalls Lawyers
First Respondent: Hunt & Hunt
Second Respondent: Darwin Family Law
Judgment category classification: C
Judgment ID Number: Kel2212
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINArnott v Beams & Anor [2022] NTSC 25
No. 2021-03005-SC
BETWEEN:
RHYS ARNOTT
Appellant
AND:
CARLIE BEAMS
First Respondent
AND:
THOMASIN SARAH OPIE
Second Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 4 April 2022)
The applicant is the former husband of the second respondent. The second respondent had custody of their son. On 19 November 2020, unbeknown to the second respondent, the applicant signed their son out of school for the day and took him to his property at Edith Farms. When the second respondent drove there to collect the son, the applicant, who was intoxicated, became aggressive. He deliberately drove his vehicle at the second respondent’s vehicle, and nudged it backwards down the driveway of the property; told her she was trespassing and threatened to shoot her; followed the second respondent and their son out of the house to the car with a loaded rifle which he raised to his shoulder; fired three shots into the air as they drove away, and then followed them.
The second respondent called 000 and on that same day, 19 November 2020, Police issued a Police Domestic Violence Order against the applicant under s 41 of the Domestic and Family Violence Act 2007 (NT) (“the Police DVO”) naming the second respondent and the two children of the marriage as the protected persons. The Police DVO contained, at the bottom, a section headed “SUMMONS TO DEFENDANT” which stated:
You (the Defendant) are summonsed to appear at the Local Court at Katherine in the Northern Territory on 23/11/20 at 10.00 am to show cause why the attached order should not be confirmed.
Note – if you do not appear at the nominated court on the above date and time a Domestic Violence Order may be confirmed in your absence.
The applicant was arrested and charged with two counts of assault, one count of property damage and some firearms offences. He pleaded guilty in the Local Court on 16 August 2021 and on 20 August 2021 he was sentenced to a total effective term of imprisonment for 12 months from 16 August 2021 suspended forthwith for 12 months on conditions of supervision, and issued with a fine for the firearms offences.
The Police DVO was not confirmed in the meantime. That matter had been adjourned from time to time to travel with the criminal file. After sentencing the appellant, the sentencing judge said:
So the other matter I need to attend to today is the Domestic Violence Order application. It is noted that – in the overall circumstances – that there are ongoing Family Court proceedings, and this Court will ultimately defer to the Family Court in terms of how contact is to be structured with the children. And so the s 41 orders that have been in place have been a full non-contact order. I – arising out of my powers under s 45 of the Domestic and Family Violence Act – I will confirm those orders today, subject to one variation, and that is to include a Family Law exception. And I’ll go through that in detail. [underlining added]
Her Honour outlined the conditions of the order and then said:
The term of the order that I impose is a 9 year term, and that is to continue until the children have both reached adulthood.
(This order is referred to in these reasons as “the 9 year DVO”.)
Her Honour then warned the applicant of the consequences of breaching the order and the following exchange occurred.
HER HONOUR: Is there anything arising?
PROSECUTOR: No, your Honour.
DEFENCE COUNSEL: No, your Honour.
Defence counsel did not seek to be heard on the Domestic Violence Order application before the judge embarked on pronouncing the terms of the order and did not protest at the length of the order or seek to be heard on the length of the order either before or after the judge announced it was to be a 9 year order.
The applicant now purports to appeal against that part of the order made by the judge on 20 August 2021 that consists of the length of the term of the Domestic Violence Order made by the judge, contending that an order of 9 years duration was excessive.
The Amended Notice of Appeal states:
The appellant appeals from the decision of the Court in ordering under section 45 of the Domestic and Family Violence Act 2007 a Domestic Violence Order against the Applicant for a nine (9) year duration.
GROUNDS:
Take notice that the grounds of such appeal are that the Local Court:
1. erred in the exercise of its discretion under s45 to make such an order of excessive duration:
a.by erroneously and unreasonably concluding and proceeding on the basis that such duration would not have a detrimental effect on the Appellant;
b.by erroneously and unreasonably concluding and proceeding on the basis there were reasonable grounds to make an order of such duration pursuant to section 18 of the Act;
c.by failing to properly take into account matters stated in section 19 of the Act, that would have appropriately led to the conclusion that, although a DVO may be warranted, such duration was excessive;
d.by erroneously failing to place sufficient weight on the impact of the DVO and it’s (sic) conditions on the Appellant for such duration.
2. erred in denying the Appellant the right to procedural fairness:
oby making a DVO against the interests of the Appellant without giving the Appellant prior notice and the ability to respond and/or call evidence, including:
§in relation intended duration (sic) of 9 years; and
§in relation to the conditions as varied.
ORDER SOUGHT:
- That the Domestic Violence Order made on 20 August 2021 be cancelled and/or set aside and in lieu an order made of appropriate duration.
Competence of the Appeal
Pursuant to s 19 of the Local Court (Civil Procedure) Act 1989 (NT) an appeal lies to the Supreme Court on a question of law from a final order of the Local Court exercising civil jurisdiction. That includes orders made under the Domestic and Family Violence Act. Section 19 provides:
Appeal to Supreme Court
(1) A party to proceedings may:
(a)within 28 days; or
(b)with the leave of the Supreme Court, after the expiration of 28 days,
after the day on which the order complained of was made, appeal to the Supreme Court, on a question of law, from a final order of the Court in the proceedings.
(2) The Supreme Court may grant leave under subsection (1)(b) and the appellant may proceed with the appeal if the Supreme Court:
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (1)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
…
(5) An appeal under this section shall be brought in accordance with the Rules of the Supreme Court.
(6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks fit, including an order remitting the case for re-hearing to the Court with or without directions on the law.
(7) An order made by the Supreme Court on the appeal, other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.
The applicant filed the notice of appeal in the Supreme Court on 21 September 2021, more than 28 days after the making of the order complained of was made. Accordingly, the leave of this Court is required for the applicant to appeal against the making of the 9 year DVO.
The applicant did not file and serve an application for leave to appeal under Rule 83.23(1) of the Supreme Court Rules1987 (NT) accompanied by an affidavit setting out the matters required by Rule 83.22(2). Accordingly, on 5 November 2021 the Registrar made the following directions:
1. The Appellant is to file and serve an Application for Leave to Appeal by close of business 4 November 2021.
2. The Appellant is to file and serve an Amended Notice of Appeal by close of business 4 November 2021.
3. Hearing of the application for leave to appeal and the appeal proper is listed for a half day at 2.00pm on 8 February 2022 before Justice Kelly.
4. The Appellant is to file and serve the Appeal book on or by 4.00pm on 14 January 2022.
5. The Appellant is to file and serve their List of Authorities and Summary of Submissions on or by 4.00pm on 3 February 2022.
6. The Respondent is to file and serve their List of Authorities and Summary of Submissions on or by 4.00pm on 5 February 2022.[1]
The applicant did not file and serve an application for leave to appeal or an affidavit in accordance with those directions, or within a reasonable time thereafter, or indeed at all. However, the applicant had filed an affidavit of Mary Gibson affirmed on 11 October 2021 which stated that the original notice of appeal was filed with the Local Court via email ([email protected]) on 17 September 2021. On 21 September 2021 Mary Gibson realised she had emailed the Local Court and not the Supreme Court, she then filed the Notice of Appeal with the Supreme Court via email ([email protected]).
The Notice of Appeal stated that the appeal was being brought under the “Local Court (Criminal Procedure) Act 1928 - sections 171 and 172”. This was incorrect. The making (or purported making) of the 9 year DVO was done under the Local Court’s civil jurisdiction. Accordingly, an appeal to the Supreme Court against the making of the 9 year DVO is governed by s 19 of the Local Court (Civil Procedure) Act 1989 (NT).[2]
The Notice of Appeal that was eventually filed in the Supreme Court four days after the 28 days had expired still stated that the appeal was being brought under the Local Court (Criminal Procedure) Act 1928 (NT). On the same day as the Registrar ordered that the Appellant file and serve an application for leave to appeal and an Amended Notice of Appeal (ie on 5 November 2021), the applicant filed an Amended Notice of Appeal only. That Amended Notice of Appeal recited the legislative basis of the appeal as the “Local Court (Civil Jurisdiction) Rules 1998, R37.04 and 37.05”. That was also the wrong legislative basis for the appeal against the 9 year DVO. Rules 37.04 and 37.05 of the Local Court (Civil Jurisdiction) Rules 1998 (NT) relate to appeals to the Local Court and not from the Local Court. The applicant required leave under s 19(2) of the Local Court (Criminal Procedure) Act to appeal under s 19(1) of that Act. The rules relating the appeal (should leave be granted) are contained in Part 2 of Chapter 2 of the Supreme Court Rules; the rules relating to the application for leave to appeal are contained in Part 3 of Chapter 2 of the Supreme Court Rules.
The applicant has never filed an application for leave to appeal. When that necessity was pointed out on the hearing of the application for leave to appeal (which the applicant’s solicitor mistakenly assumed was simply the hearing of the appeal), the applicant’s solicitor made oral application for leave to appeal without objection by the respondents.
Section 19(2) of the Local Court (Civil Procedure) Act provides that the Supreme Court may grant leave under subsection (1)(b) (set out at [10] above) and the appellant may proceed with the appeal if the Supreme Court:
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (1)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
Neither the first nor the second respondents have contended that they suffer any prejudice as a result of the late filing of the Notice of Appeal (or other procedural irregularities). However, the Court must still be satisfied that the failure to institute the appeal within time was due to exceptional circumstances before leave to appeal out of time can be given. As Grant CJ said in Eccles v Nikki Beach 1 Pty Ltd & Anor:[3]
Section 19(2) of the Local Court (Civil Procedure) Act provides that this Court may grant leave if it is of the opinion that the failure to institute the appeal within time was due to “exceptional circumstances”, and is satisfied that the case of the other parties to the appeal would not be materially prejudiced because of the delay. The term “exceptional” in this context is to be construed as an ordinary and familiar adjective. It describes a circumstance which forms an exception which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In considering this question, the Court does not look to the general or surrounding circumstances to determine whether they are exceptional, but must consider only whether the failure to institute the appeal within time was due to exceptional circumstances.
In Coulston v State Coroner of Victoria,[4] McDonald J said:
The expression ‘exceptional circumstances’ like the analogous expression ‘special circumstances’ is frequently used in legislation, and must be considered in the context in which it appears. There are two categories commonly encountered. The first is where the requirement for ‘exceptional circumstances’ relates to the failure to institute the proceeding or appeal in time. In cases that fall into this category, the scope of the inquiry as to whether ‘exceptional circumstances’ exist, is confined to the reason for late commencement. The second is where the legislation permits the ‘exceptional circumstances’ to be shown from any of the circumstances of the case. In the second category, the scope of the inquiry is wider and will include the general context; whether the party seeking an extension of time has a real prospect of success, and the public interest in the finality of litigation.
[citations omitted][5]
In Mako’ochieng v Kirk[6] McDonald J set out the following summary of the principles to be applied in determining an application for leave to appeal under this type of provision.
8. In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal within the prescribed 30 day period was due to exceptional circumstances. However, even where exceptional circumstances are established the Court has an unfettered residual discretion as to whether leave to appeal should be granted.
9. The principles governing the exceptional circumstances threshold under s 109(5) of the Act are well-established:
(a)The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;
(b)The onus lies on the applicant to satisfy the test of exceptional circumstances;
(c)Although ‘exceptional’ is defined as meaning ‘unusual, special, out of the ordinary course’ in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to ‘rarely occur’ and ‘perhaps be outside reasonable anticipation or expectation’;
(d)The inquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;
(e)As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;
(f)The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;
(g)That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;
(h)The exceptional circumstances must relate solely to the explanation for the delay;
(i)By use of the expression ‘exceptional circumstances’, the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a ‘significant hurdle’, which requires a ‘persuasive explanation’, to be demonstrated by ‘clear and cogent proofs’.
[citations omitted]
In Weber v Nguyen Thi Phuong[7] Angel J said of the equivalent of s 19(2):[8]
It is well settled that even if a magistrate’s decision is demonstrably wrong that is not of itself a special or exceptional circumstance such as to justify an extension of time within which to appeal. It is also well settled that the failure of a solicitor to institute an appeal within time through ignorance or negligence rather than fortuitous circumstances such as accident or illness does not constitute such a special or exceptional circumstance. However the present case has features which – fortunately – are atypical of normal or the ordinary course of events.
The learned Magistrate’s mode of incompletely dealing with the matter in December 1999 and failing altogether to address the applicant’s set–off defence caused the applicant’s solicitor not unreasonably to think that the rights of the parties were yet to be concluded. … As I have said, the learned Magistrate did not address the defence of set–off or the applicant’s counter–claim at all in his reasons.
These I consider are circumstances sufficiently out of the ordinary such as to justify the applicant having his day in court by way of procedural indulgence.[9] [underlining added]
The applicant has characterised the delay in this case as “a clerk error by filing the Notice of Appeal within the required 28 days but in the wrong jurisdiction and subsequently at the correct address for electronic filing after the expiry of the 28 days” and contended that “the error of law contended in the Further Amended Notice of Appeal filed 16 February 2022 in combination with the administrative error is exceptional”.
First, it is well established, as set out in the above authorities, that in determining whether to grant leave to appeal under s 19(2), the court is limited to a consideration of the reasons for the failure to commence the appeal within time and cannot consider the merits of the proposed appeal, even if the decision sought to be appealed is demonstrably wrong.
Second, it is generous indeed to describe the error in this case as “a clerk error” or “an administrative error”. It is more accurately described in the terms used by Angel J in Weber v Nguyen Thi Phuong as “the failure of a solicitor to institute an appeal within time through ignorance or negligence”. This failure has been compounded by continuing failures to properly describe the jurisdictional basis of the proposed appeal in the Amended Notice of Appeal and failures to comply with directions as to the filing and service of the proper application and supporting affidavit. Confining consideration to the reason for the initial failure to institute the appeal within time, I am not satisfied that the solicitor’s negligent failure to file the correct notice in the right court constitutes exceptional circumstances such that I can be of the opinion that the failure to institute the appeal with 28 days from the date the 9 year DVO was made was due to exceptional circumstances.
Leave to appeal is refused.
Observations
It is unfortunate in some respects that leave cannot be given to the applicant to appeal. The Amended Notice of Appeal had little or no prospects of success. An appeal under s 19(1) is limited to an appeal on a question of law and Ground 1 in the Amended Notice of Appeal is a thinly disguised attempt to seek a merits review of the decision of the judge at first instance and does not, on its face disclose an error of law. So far as Ground 2 is concerned, the judge at first instance did not give notice to the parties that she was about to impose a 9 year term on the DVO and invite submissions on the proposed term of the order. However, the applicant was legally represented throughout and had notice from the time the criminal proceedings were commenced that the DVO application would be dealt with at the same time as the criminal proceedings. Further, the applicant’s counsel did not seek to be heard on the DVO application and did not protest or seek to be heard on the length of the DVO after the 9 year DVO order was pronounced. It is almost inconceivable that, if she had done so, the judge would not have afforded her an opportunity to be heard on the subject.
However, at the hearing of the appeal, counsel for the first respondent drew the Court’s attention to a jurisdictional defect in the 9 year DVO: the judge at first instance did not have the jurisdiction to make the order. Following that, the applicant filed a Further Amended Notice of Appeal seeking to add as a further ground of appeal:
3. The Court lacked power to confirm and vary the s 41 Domestic Violence Order made 20 August 2021.
Section 45 of the Domestic and Family Violence Act2007 (NT) provides:
Power of court if person guilty of related offence
(1) A court before which a person pleads guilty to, or is found guilty of, an offence that involves domestic violence may make a domestic violence order under this Part against the person if it is satisfied a Local Court DVO could be made against the person.
(2) The court may make the order on its own initiative or on application by the prosecutor.
(3) If a DVO is already in force against the person, the court:
(a)must consider the DVO and whether, in the circumstances, the DVO needs to be varied, including, for example, by varying the date the DVO ends; and
(b)may vary the DVO if the court considers it needs to be varied.
(4) This section applies whether or not the court makes another order in relation to the person.
Under that section, the court sentencing a person for a domestic violence offence (as here) may make a DVO against the person (if satisfied that a Local Court DVO could be made) or, if a DVO is in force, may vary that DVO if necessary. Section 45 does not empower the Court sentencing a person for a domestic violence offence to confirm a Police DVO. That is provided for under a different section of the Act.
The normal procedure after the making of a Police DVO under s 41 of the Act is that, as soon as practicable after the order is made, a police officer must:
(a)give a copy of it to the parties to the DVO; and
(b)send the original of it to the Court.[10]
The police officer must also give certain explanations to the defendant including informing the defendant that he or she has a right to apply for a review of the DVO under Part 2.9.[11]
Section 44 of the Act provides that the copy of the police DVO given to the defendant is taken to be a summons to the defendant to appear before the court, at the time and place shown on it for its return, to show cause why the DVO should not be confirmed by the court: hence the notation on the bottom of the Police DVO served on the applicant referred to in [2] above.
Confirmation of DVOs is dealt with in Part 2.10 of the Act. Section 80, in Part 2.10 provides that Part 2.10 applies if the defendant is summoned to appear before the Court to show cause why a DVO should not be confirmed – as the applicant was in this case.
Section 81(1) provides that, subject to applicable procedural directions, a protected person may appear at the hearing of the proceeding. Section 81(2) provides that if (as here) the defendant has been summoned under s 44 (or s 71), the Commissioner of Police is a party to the proceeding.
Section 82(1) provides that at the hearing where the defendant is called upon to show cause why the DVO should not be confirmed, the Court may, by order:
(a) confirm the DVO (with or without variations); or
(b) revoke the DVO.
Importantly, s 82(2) provides that the Court must not confirm the DVO unless:
(a) it is satisfied the defendant has been given a copy of the DVO; and
(b) it has considered any evidence before it and submissions from the parties to the DVO.
Thus, at the hearing at which the Court considers whether to confirm a Police DVO issued under s 41, a protected person has a right to be heard, the Commissioner of Police is a party and the Court must consider (inter alia) submissions from parties to the DVO. None of that occurs when the Court is exercising the power under s 45 to make a DVO or to vary an existing DVO, and none of that occurred in the proceeding before the judge at first instance. In sentencing proceedings at which an order under s 45 is made, the only parties before the Court are the Crown and the defendant. The protected person is not notified and given an opportunity to be heard, the Commissioner of Police is not made a party, and the Court does not necessarily invite submissions from the parties to the DVO.
It follows that the judge at first instance in this case had the power under s 45 to vary the Police DVO – including by extending its duration to 9 years if the judge thought fit. However, the Court did not have the power under that section to confirm the Police DVO and it would still have been necessary, even if the DVO was varied by extending its duration to 9 years, for a hearing to be held under s 82, at which the Commissioner of Police and the protected person had an opportunity to appear and at which the defendant had the opportunity to show cause why the DVO as varied should not be confirmed or to make submissions about the appropriate conditions and duration of the DVO.
If leave to appeal had been given, the appropriate orders would have been to declare that the order confirming the Police DVO be set aside and the matter be remitted to the Local Court for a hearing pursuant to s 82 at which the defendant should show cause why the DVO, as varied by the judge at first instance, should not be confirmed.
As it has not been possible to grant leave to appeal out of time, it is a matter for the parties how they deal with this excess of jurisdiction. It should be noted that, if the confirmation of the Police DVO order is treated as valid, there is an opportunity for the parties to apply to the Local Court for an order revoking or varying the 9 year DVO under Part 2.8 of the Act. Section 48(1) (in Part 2.8) provides:
Any of the following persons may apply to the Court for an order varying or revoking a DVO:
(a) a protected person if the person is an adult or young person;
(b) a police officer or adult acting for a protected person;
(c) the defendant;
(d) a person granted leave by the Court to make the application.[12]
If the 9 year DVO is treated as invalid, the original Police DVO remains in force and there is an opportunity for the parties to apply for a review of that DVO under Part 2.9 of the Act. Section 72 (in Part 2.9) provides:
A party to a police DVO may apply to a Judge for a review of the DVO.
Alternatively, the parties may consider it appropriate to seek to have the matter listed for a confirmation hearing under s 82 of the Act on the basis that the purported confirmation of the Police DVO was invalid. It is a matter for the parties whether they take advantage of any of these provisions or all of them in the alternative.
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[1] There is no explanation on the Court file as to why the Registrar ordered matters to be done the day before the order was made. Perhaps there was a misprint in the order. The applicant filed an amended notice of appeal on 5 November (the day the directions were made) but no application for leave to appeal and no supporting affidavit.
[2] See AB v Hayes & Anor [2019] NTSC 13 at 7.
[3] [2019] NTSC 39 at [5]
[4] [2018] VSC 103
[5]At the relevant time, s 109(5) of the Magistrates’ Court Act 1989 (Vic) was in identical terms to s 19(2) of the Local Court (Civil Procedure) Act.
[6] [2017] VSC 459 at [8] and [9]
[7] [2001] NTSC 116 per Angel J at [8] to [10]
[8] Section 19 of the Local Court Act in force at the date of that decision was in the same terms as s 19 of the Local Court (Civil Procedure) Act.
[9] For similar reasons, in Northern Territory of Australia & Anor v Shannon [2018] NTSC 88 at [19] and [20] the circumstances which led to the notice of appeal being lodged out of time were found to be exceptional and leave to appeal was given where the costs order made was one which the trial judge had no power to make, an application had been made to the trial judge to correct the error, and the trial judge had indicated his intention to do so. Given the trial judge’s indication, the applicants had a reasonable expectation that the error would be corrected without the need for an appeal.
[10] Domestic and Family Violence Act s 43(1)
[11] Domestic and Family Violence Act s 43(2)
[12] There are limitations under s 48(3) and (4) on the defendant’s right to seek revocation or review of a Court DVO under s 48 [ameliorated by the provisions of s 48(5)] but none on the right of any of the other classes of people mentioned in s 46(1).
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