Atkinson v Bardon & Ors

Case [2018] NTSC 9

CITATION:Atkinson v Bardon & Ors [2018] NTSC 9

PARTIES:BETWEEN:

ATKINSON, Niall Martin

Plaintiff

AND:

BARDON, Jane

Second Defendant

AND:

WOODCOCK, His Honour Judge Alan

Third Defendant

AND:

ATTORNEY-GENERAL (NT)

Intervenor

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction

FILE NO:72 of 2017 (21737163)

DELIVERED ON:  16 February 2018

DELIVERED AT:  Darwin

HEARING DATE:  23 January 2017

JUDGMENT OF:  Mildren AJ

CATCHWORDS:

ADMINISTRATIVE LAW – failure to accord natural justice – whether order void ab initio – Local Court exercising civil jurisdiction – Personal Violence Restraining Act s 13

STATUTORY INTERPRETATION – power to proceed in absence of defendant - failure to serve defendant – whether order made null and void - Personal Violence Restraining Orders Act (NT) s 3, s 4, s 5,s 6,s 7,s 9(1),s 10,s 11,s 12,s 13,ss 14(1), (2) and (3), ss 15, 15(3), s 16,ss 16(1), 16(2), 16(2)(a) and 16(2)(b), s 17, s 17(1), s 18, s 19, ss 19(1) and (2), s 20, s 21(2), s 22, ss 22(1), (2) and (3), s 23, Form 1, Form 7G

WORDS AND PHRASES – must – whether mandatory – need to consider Act as a whole

JURISDICTION OF COURTS – local court exercising civil jurisdiction – order made beyond jurisdiction – whether order enforceable unless set aside

DECLARATORY ORDERS – power of the court to make – discretion to grant declaratory relief in criminal proceedings

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) HCA 41; 239 CLR 27; Attorney-General for New South Wales v Mayas PtyLtd (1988) 14 NSWLR 342; Cameron v Cole (1944) 68 CLR 571; Craig v Kanseen [1943] 1 KB 256; Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655; Hoskins v Van Den-Braak (1998) 43 NSWLR 290; Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 343; Pelechowski v Registrar of the Court of Appeal (1998) 198 CLR 435; Re Marsh; ex parte Marsh v Paramount Leisure Products Pty Ltd (1991) 32 FCR 482; Re Pritchard [1963], Followed

Annetts v McCann (1990) 170 CLR 596; Craig v South Australia (1994-1995) 184 CLR 163; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry (1975) AC 295; Momcilovic v The Queen (2011) 245 CLR 1; Pelechowski v Registrar of the Court of Appeal  (1999) 198 CLR 435;  Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; Re Refugee Review Tribunal and another; ex parte Aala (2000) HCA 57; Saeed v Minister for Immigration and Citizenship (2010) HCA 23; 241 CLR 252; Sankey v Whitlam and Others (1978) 142 CLR 1; 21 ALR 505; Tooth & Company Ltd v The Council of the City of Parramatta (1955) 97 CLR 492; Wall v The King: Ex parte King Won and Wah On (No.1) (1927) 39 CLR…

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AGLC
Atkinson v Bardon [2018] NTSC 9
Case
[2018] NTSC 9
Decision Date

CaseChat Overview and Summary

Atkinson v Bardon & Ors was a case heard in the Local Court of the Northern Territory, where the plaintiff, Atkinson, sought a declaration that a Personal Violence Restraining Order (PVRO) made against him was invalid. The defendants, Bardon and others, argued that the PVRO was validly made and enforceable. The case raised issues concerning the court's jurisdiction, the application of natural justice, and the interpretation of the Personal Violence Restraining Orders Act (NT). The court had to decide whether the Local Court had the jurisdiction to make the PVRO, whether the failure to serve the defendant constituted a breach of natural justice, and whether the order was void ab initio.

The central legal issue was whether the Local Court, exercising its civil jurisdiction, had the power to make a PVRO when it failed to serve the defendant, thereby breaching the principles of natural justice. The court had to interpret various sections of the Personal Violence Restraining Orders Act (NT), including sections 3, 4, 5, 6, 7, 9(1), 10, 11, 12, 13, 14(1), (2) and (3), 15, 15(3), 16, 16(1), 16(2), 16(2)(a) and 16(2)(b), 17, 17(1), 18, 19, 19(1) and (2), 20, 21(2), 22, 22(1), (2) and (3), 23, Form 1, and Form 7G. The court also had to consider whether certain phrases in the Act were mandatory or directory.

The court reasoned that the Local Court, while exercising its civil jurisdiction, did not have the power to make a PVRO in the absence of the defendant, thereby breaching natural justice. The court concluded that the order was beyond the court's jurisdiction and therefore void ab initio. The court found that the failure to serve the defendant was a fundamental procedural error that rendered the order null and void. The court accepted the reasoning of the majority in Director of Public Prosecutions v Edwards and found Pelechowski to be directly on point. The court further noted that the Local Court's exercise of civil jurisdiction meant that a breach of an order made beyond its powers could not result in the commission of a criminal offence.

The court ordered that a declaration be made that there was no Personal Violence Restraining Order in force against the plaintiff for the benefit of Jane Bardon on 2 March 2017. The court also directed that the parties be heard as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept the force of the reasoning of the majority in Director of Public Prosecutions v Edwards but it seems to me that in the circumstances of this case Pelechowski is directly on point. I can see no reason to distinguish it on the basis that it applied only to proceedings for contempt. The mechanism for enforcement of Court orders is different procedurally from the method adopted by the Act, but that does not point to any difference in substance. The difference between civil proceedings for contempt and criminal proceedings for breaches of orders has largely evaporated since it has been recognised that proceedings for contempt are in reality criminal in nature and the burden of proof is beyond reasonable doubt.[29] There is nothing in the statutory context which suggests otherwise. The order was made by the Local Court, which is an inferior Court, exercising its civil jurisdiction.[30] It would be surprising if the breach of an order made beyond its powers by an inferior court in its civil jurisdiction could result in the commission of a criminal offence. A sentencing order made by the Local Court in its criminal jurisdiction beyond its powers would give rise to different considerations. Conclusion There will be a declaration as follows:Declare that on 2 March 2017 there was no Personal Violence Restraining Order in force against the plaintiff for the benefit of Jane Bardon. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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