Bandana v Director of Public Prosecutions

[2016] NSWCA 140

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bandara v Director of Public Prosecutions [2016] NSWCA 140
Hearing dates:	7 June 2016
Decision date:	21 June 2016
Before:	Leeming JA at [1]; Simpson JA at [62]; Sackville AJA at [63]
Decision:	1. Amend the proceedings such that Director of Public Prosecutions is the first respondent.  2. Dismiss the summons dated 8 December 2014 and amended summons dated 22 July 2015.
Catchwords:	ADMINISTRATIVE LAW – judicial review – Local Court makes interim and final apprehended personal violence orders – applicant convicted of breach of interim order – unsuccessful appeal to District from making of final order and from conviction – judicial review of District Court decision – decision unaffected by jurisdictional error – futility of challenge to making of interim order in light of the dismissal of the appeal against conviction – separate appeal to District Court from making of interim order – appeal dismissed summarily because interim order ceased to be in force – judicial review of District Court decision – jurisdictional error established, but no relief given, because appeal would inevitably have been dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 22, 28; Pts 2, 3 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 22, 24, 32, 35, 36, 79, 84, 93; Pt 6 District Court Act 1973 (NSW), ss 127, 176 Supreme Court Act 1970 (NSW), ss 69, 75A Uniform Civil Procedure Rules 2005 (NSW), r 59.3
Cases Cited:	Bandara v District Court of NSW [2016] NSWCA 14 Craig v South Australia (1995) 184 CLR 163 Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282 Dyason v Butterworth [2015] NSWCA 52 Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Wishart v Fraser (1941) 64 CLR 470
Category:	Principal judgment
Parties:	Mr Manula Bandara (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Local Court of New South Wales (Third Respondent) Ms Ayesha Liyanapatirana (Sixth Respondent)
Representation:	Applicant in person F Veltro (First Respondent) Submitting appearance (Second Respondent) Submitting appearance (Third Respondent) D Bainbridge (Sixth Respondent) M J Heath, D Harris (Amicus Curiae)
File Number(s):	2014/360661
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 December 2014; 17 July 2015 Before: Colefax DCJ; Sides DCJ File Number(s): 2013/325505; 2013/344585

Judgment

1. LEEMING JA: By summons filed on 8 December 2014 and amended on 22 July 2015, Mr Manula Bandara has sought orders relating to decisions by the Local Court concerning apprehended personal violence orders, and appeals to the District Court from some of those orders. As will be seen below, the imprecision in the previous sentence is deliberate and necessary.

2. Mr Bandara’s summons appears to have been drafted without the assistance of a lawyer, and at all stages he has appeared in person. The Queen and the New South Wales Police Force were joined as the first and fifth defendants. Those parties were removed by orders made on 29 February 2016. The active defendants are the Director of Public Prosecutions and Ms Ayesha Liyanapatirana, who were the fourth and sixth defendants respectively in the summons as filed. At the commencement of the hearing, the Court indicated that, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 59.3(4), the Director of Public Prosecutions would be made the first defendant.

3. Earlier this year, Gleeson JA made directions vacating an earlier hearing and appointing amicus curiae: Bandara v District Court of NSW [2016] NSWCA 14. His Honour’s reasons also address the not inconsiderable delay which has elapsed since the proceedings were commenced: at [5]-[6].

4. This Court has the considerable benefit of detailed submissions in chief and in reply from Messrs Heath and Harris appearing pro bono as amicus, as well as from the Director of Public Prosecutions and brief submissions from Ms Liyanapatirana. Those submissions adopt, constructively, an approach which grapples with the substance of Mr Bandara’s complaints, rather than the formal defects in his originating process. The Court also received written submissions from Mr Bandara and heard from him in chief and in reply. It was clear from his oral submissions that Mr Bandara (who is presently serving a sentence of imprisonment) had had a sufficient opportunity to review the written submissions of the respondents and the amicus.

5. At every step in the litigation since late 2013, Mr Bandara has exercised rights of appeal and review. Those rights appear now to be entirely exhausted. Hence the present proceedings in this Court’s supervisory jurisdiction.

6. I have concluded that the most recent decision of the District Court (that of Sides DCJ made on 17 July 2015) is unattended by any error, let alone any jurisdictional error which is the precondition of intervention. Once that is established, it has not been shown that there is any utility in any aspect of these proceedings, and for that reason alone I would dismiss them. However, I go further, in light of the submissions the Court has received, although it is unnecessary to do so. I have concluded that one of the decisions challenged by Mr Bandara (the dismissal of an appeal from a decision to make an interim order which has long since expired) was attended by jurisdictional error. However, that makes no difference to the ultimate result, because it is clear that the inevitable outcome of that interlocutory appeal to the District Court, had it been determined regularly, would have been to dismiss the appeal.

Applicable legislative regime

7. Part 6 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) authorises the making of interim apprehended violence orders, which have the same effect as a final order while they remain in force (s 22(6)) and which cease to have effect when, relevantly, a final order is made (s 24(2)). Part 7 of the Act authorises the making of provisional orders, which may be made ex parte but which only remain in force for a maximum of 28 days (s 32). A final apprehended violence order can have a longer duration: “as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person” (s 79(2)).

8. Every interim or final apprehended violence order is to contain the “standard orders” specified by s 36, requiring (speaking generally) the defendant not to assault, molest, harass, threaten or otherwise interfere with or intimidate or stalk the “protected person”. They may also contain other orders as appear necessary or desirable to the Court (s 35). The protected person, relevantly for the proceedings in this Court, was Ms Liyanapatirana.

9. Section 99 empowers a court to award costs to the applicant in certain circumstances.

10. The essential aspects of the regime governing appeals are as follows.

1. An appeal lies to the District Court, in the exercise of that court’s criminal jurisdiction, from the making of, or refusal to make, an apprehended violence order: s 84(2)(a). An appeal also lies to the District Court in respect of the making of a costs order: s 84(2)(b).

2. The appeal is treated, speaking generally, as if made under Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW), which statute applies subject to any necessary adjustments: see s 84(4) and Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [8] (it will not be necessary for present purposes to address the details of this).

3. The appeal to the District Court is not a hearing de novo, but is analogous to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW), insofar as it is an appeal by way of rehearing, and the judge is to form his or her own judgment on the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: see Crimes (Appeal and Review) Act 2001 (NSW), s 18 and Dyason v Butterworth [2015] NSWCA 52 at [26]-[28] and the cases there referred to.

4. The appeal is heard and determined by the District Court in the exercise of its criminal jurisdiction: s 93.

5. No further appeal lies from the District Court in the exercise of its appellate jurisdiction (the appeal under s 127 of the District Court Act 1973 (NSW) is confined to actions in that court’s civil jurisdiction, and the appeal to the District Court is neither an action (see Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 at [8]) nor is it in the exercise of that court’s civil jurisdiction).

6. Section 176 of the District Court Act 1973 provides, “No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”. Its effect is to exclude judicial review of decisions on appeal save where there is jurisdictional error: Garde v Dowd at [10]; Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282 at [18]; Dyason v Butterworth at [31].

Overview of procedural history

11. The following (considerably simplified and abbreviated) procedural history will suffice to resolve most aspects of this proceeding.

Applications in the Local Court

12. There were originally three applications for apprehended violence orders made in the Local Court in October and November 2013 under the Crimes (Domestic and Personal Violence) Act 2007. One application was made by Ms Liyanapatirana against Mr Bandara, another was made by the police against Mr Bandara, and a third was made by Mr Bandara against Ms Liyanapatirana. Ultimately, a provisional order was made on 14 November 2013, directed to Mr Bandara (it seems likely that an interim order was thereafter made but this is not clearly established on the evidence, nor does anything turn on this). Mr Bandara applied to have that order revoked, but failed to appear on 11 February 2014 when his application, and the application for a final order against him, were listed for hearing. He sent a letter attaching a medical certificate saying that he was unable to work from 10 until 11 February 2014. In his absence, Mr Bandara’s application was dismissed, and a final order and a costs order were made against him.

13. On 14 February 2014, Mr Bandara applied to annul the orders made on 11 February 2014, pursuant to Part 2 of the Crimes (Appeal and Review) Act 2001. There is some ambiguity in the materials as to what happened in the following four months. It appears that at some stage (quite possibly on 25 February 2014 or 8 April 2014), Mr Bandara’s annulment application was granted.

14. When the matter was mentioned on 6 June 2014 before Baptie LCM, there was some confusion about whether an interim order was in place. At the conclusion of the hearing, the following exchange occurred:

“HER HONOUR: What’s the position with any interim orders?

SPEAKER: Your Honour, the interim order to continue, condition 1, 4, 7 and 11.”

Mr Bandara and Mr Bainbridge (who appeared for Ms Liyananpatirana) were named in the transcript, and it is plain that the unnamed speaker was appearing on behalf of the complainant.

15. The benchsheet for that day records “IOTC”, which, it may be inferred, reflected “interim order to continue”. However, it was put by the amicus that no order was in place at that time, because the final orders made on 11 February 2014 had been annulled, and the annulment did not reinstate any interim regime.

16. On the next occasion, 9 July 2014, this issue was discussed before Baptie LCM. Sergeant Ferguson appeared for the complainant. She said by reference to what had previously happened:

“The prosecutor on that date was Sergeant Jabour. He certainly was of the understanding that the order would revert to its previous interim status, conditions 1, 4, 7 and 11. However, it’s conceded there’s no handwritten notation to that effect on that particular entry.

I came into it on 6 June and you will see your Honour has made the handwritten entry of interim order to continue. If it is in fact your Honour’s view that there is no interim order in place at this [stage], I can indicate we would be making an urgent application for a provisional order this afternoon.”

17. Thereafter, Mr Bandara expressed the view that the interim order had not been reinstated. Baptie LCM requested urgent production of the court recording tapes.

18. On 5 August 2014, Murphy LCM made an interim order pursuant to Part 6 of the Act, over the objection of Mr Bandara. The transcript records Mr Bandara being present in court when his Honour stated the following:

“I MAKE THE INTERIM ORDER IN THE SAME TERMS AS WAS MADE ON 6 JUNE AND HAS BEEN PREVIOUSLY MADE AS THE TERMS OF A PROVISIONAL ORDER.”

19. The formal order of the Local Court directed Mr Bandara to attend the Local Court on 23 September 2014, and stated that:

“The Local Court of NSW has made an Apprehended Violence Order against you in the following terms:

This order remains in force until it is revoked or a further order made by the Court becomes effective.

[There followed “Standard orders” 1(a), (b) and (c) requiring the defendant not to assault, molest, harass, threaten or otherwise interfere with or intimidate or stalk Ms Liyanapatirana (the “protected person”) or her family, and “Additional Orders” 4, 7 and 11 of which only order 7 is relevant]

7. The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative.

...

The defendant was present in court when the order was made.

Notice to the Defendant

You must obey this order for the period stated in it, unless a Court revokes the order or makes another order.”

20. Those orders were continued on 23 September 2014 and in October and November, while the application for a final order was being determined. On 17 November 2014, Baptie LCM made final orders, following a five day hearing, for a period of five years. Her Honour also made an order for costs, being satisfied that Mr Bandara was a frivolous and vexatious litigant. The costs order in favour of Ms Liyanapatirana was in the amount of $41,648.90.

Mr Bandara’s appeals to the District Court

21. In August and September 2014, Mr Bandara appears to have filed two appeals to the District Court. First, on 26 August 2014, Mr Bandara filed a document styled “Notice of Appeal to the District Court”. The validity of that appeal is put in issue by the Director of Public Prosecutions. The amicus contends that it was an appeal from the interim order made by Murphy LCM. The document states that it is an appeal from an order made on 11 February 2014. However, it also states that “I CONTEST THE INTERIM APPREHENDED VIOLENCE ORDER MADE IN THESE PROCEEDINGS”.

22. The second document filed by Mr Bandara is dated 3 September 2014, and is an application for leave to appeal out of time against the costs order made on 11 February 2014. The document, which is handwritten, stated that the “section 9 was granted on 25 February 2014” (by which it may be inferred is meant Mr Bandara’s application for annulment) but that Mr Bandara had been advised that “the local court cannot annull cost orders [sic]”. A separate notice of appeal was attached to the application for leave to appeal.

23. The first appeal contains a file number ending in 585. The second document has handwritten on it a file number ending in 505.

24. Both appeals came before Colefax DCJ on 4 December 2014. They were number 40 in the list on that day. The transcript records both file numbers (that ending in 585 and that ending in 505). His Honour was told that the appeal from the interim order could be dealt with on that day, on the basis that:

“final orders were made on 17 November and pursuant to the Act when a final order is made any interim order is revoked. So it would appear that there is no order to be appealed against in relation to that matter.”

25. Mr Bandara disputed this contention. He maintained that an appeal against an interim order could be commenced and proceeded with even if the interim order had expired or been revoked. Mr Bandara was asked by the judge whether an appeal had been brought against the final order, and was told that it had not, although he intended to do so. The primary judge thereupon dismissed the appeal in relation to the interim order, but advised Mr Bandara that “if you wish to you can file your appeal in relation to your permanent order”.

26. His Honour gave reasons at the conclusion of the mention, which included:

“3. I note that interim orders were made against Mr Bandara on 5 August 2014.

4. I note that final orders were made against Mr Bandara on 17 November 2014 after a five day hearing.

...

7. I order that the appeal against the interim order be dismissed because of the making of final orders in the Local Court.”

27. Mr Bandara filed an appeal against the final orders made by Baptie LCM on 17 November 2014. He did so on either 4 or 5 December 2014 (nothing turns on the precise date). A separate appeal was filed on the same day by Mr Bandara, which need not be summarised. No objection was made to the validity of either of those appeals.

28. Separately, Mr Bandara had been charged with contravening the interim order made by Murphy LCM. The contravening conduct was said to have occurred between 9 and 12 August 2014, and was based on a letter sent to Ms Liyanapatirana in contravention of order 7 made a few days previously. Mr Bandara pleaded not guilty. He appeared for himself when the matter was heard, before Tsavdaridis LCM. He had previously admitted writing, signing and sending the letter. He disputed that the police had established that an interim order was in place. He gave evidence and was cross-examined. The magistrate formed an unfavourable view of Mr Bandara. His reasons included a statement that Mr Bandara’s evidence “was so distorted that it defied any common sense view of reality” (that in part was a reference to a cross-examination directed to establishing that the transcript of 5 August had been fabricated by Ms Liyanapatirana so as to put in issue whether he was present in court when the order was made). Mr Bandara was convicted and fined $600 on 11 May 2015. Mr Bandara filed an appeal against his conviction on the same day, 11 May 2015.

29. All three appeals (including the appeal against the making of the final order and the appeal against contravening the interim order) were listed for hearing on 25 June 2015. On the afternoon of the previous day, Mr Bandara sent an email to the court stating that he would not be able to attend due to illness, and that a medical certificate would be provided as soon as possible. The appeals were dismissed by Sides DCJ on 25 June 2015 without an appearance from Mr Bandara.

30. The transcript records that his Honour stood the matter in the list and had it called again later in the day. On both occasions, Mr Bandara’s name was called, but he did not appear. Shortly after 3.15pm, Sides DCJ dismissed the appeals for want of prosecution. The file was then sent to another judge, who ordered, pursuant to s 28 of the Crimes (Appeal and Review) Act 2001 (NSW) that Mr Bandara was to pay Ms Liyanapatirana’s costs in the amount of $3,850 inclusive of GST.

31. On 1 July 2015, Mr Bandara applied, under s 22 of the Crimes (Appeal and Review) Act 2001 (NSW), to revoke the dismissal of his appeals. His application, made by email, attached a medical certificate from a general practitioner in Campsie, dated 1 July 2015, which stated in its entirety:

“MEDICAL CERTIFICATE

This is to certify that Mast Manula Bandara told me that he was sick on the 25 june 2015 with abdomen pain therefore he was unable to work for 1 day.” [sic]

32. Sides DCJ heard the application on 17 July 2015. Mr Bandara gave evidence and was cross-examined. Sides DCJ refused Mr Bandara’s application. In his reasons, his Honour referred to the email sent by Mr Bandara to the effect that a medical certificate would be provided as soon as possible; to inconsistencies in his testimony as to when his illness began and ceased; to his failure to take steps to obtain a medical certificate until some days after he had recovered and to the fact that, contrary to the contents of the medical certificate, Mr Bandara was not in paid employment (he was a university student). His Honour concluded:

“The Court is not convinced on the evidence before it that the applicant was in fact sick or suffered from abdominal pains and it is certainly not satisfied on the balance of probabilities that any illness that he had prevented him from attending court. The Court is of the view that his evidence lacked credibility because of the inconsistency between his account and not getting a certificate having said he would get a medical certificate and his attempts to explain the delay in obtaining one.

...

The Court is satisfied on the material before it that the delay in seeing a doctor was a deliberate delay so that he would be in a position well away from the date that was relevant such that an examination could not occur.

...

In these circumstances the Court is not satisfied that the applicant has made out the ground that there was sufficient cause for his failure to appear on 25 June 2015 and his application [under] s22 is dismissed.”

The proceedings in this Court

33. Mr Bandara’s proceedings in this Court invoked its jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). As noted above, it was necessary to do so, because no further appeal lies from the decisions of the District Court hearing an appeal from the Local Court. It was accepted by the parties and the amicus that no attack can be made on the interim order made by Murphy LCM until and unless the judgment of Colefax DCJ is set aside. Similarly, it was accepted that no attack can be made on the final order made by Baptie LCM until and unless the judgment of Sides DCJ is set aside: Wishart v Fraser (1941) 64 CLR 470 at 478; Garde v Dowd at [11]-[13]; Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [38].

34. The summons filed by Mr Bandara refers to the decisions of Colefax DCJ and Murphy LCM. The amended summons referred to decisions of Murphy LCM and Baptie LCM. The amicus and the parties proceeded on the basis that the challenge by Mr Bandara extended to all aspects of the decisions referred to above.

No jurisdictional error in the decision of Sides DCJ

35. The convenient starting point is the decision of Sides DCJ on 17 July 2015. The detailed submissions of the amicus, which contained a series of submissions directed to errors by the other judicial officers, stated in relation to that decision that “it is not immediately apparent that there is a jurisdictional error”. That was a responsible and entirely appropriate position to adopt as there is no basis for contending that his Honour’s decision was affected by jurisdictional error.

36. The issue before the District Court on 17 July 2015 was whether Mr Bandara’s application under s 22 should be granted. Subsection 22(3) provides:

“(3) After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied:

(a) that the appellant has shown sufficient cause for the failure to appear, and

(b) that it is in the interests of justice that the appeal or application be heard.”

37. His Honour applied that test and concluded that Mr Bandara had not shown sufficient cause for his failure to appear, in a way which is unattended by any error.

38. Mr Bandara’s written submissions made no complaint about the decision of Sides DCJ. However, in his oral submissions, Mr Bandara contended that there were two bases on which that decision could be attacked. The first was that there would be a denial of procedural fairness if the decision of Sides DCJ were not set aside. That submission misunderstands the nature of a right to procedural fairness. A person is ordinarily entitled to a reasonable opportunity to be heard before an order is made affecting him or her. Mr Bandara had that opportunity on 25 June 2015, a date proposed by him, being a date after the conclusion of his university examinations. Procedural fairness does not entail that a person must in fact be heard before an order is made. Mr Bandara chose not to take up the opportunity afforded to him.

39. Mr Bandara’s second submission was that there was a denial of procedural fairness or something amounting to pre-judgment, because it had been the same judicial officer who had dismissed the appeals a few weeks earlier for non-attendance. I disagree. The same judge will regularly hear and determine a s 22 application, just as the same judge will regularly hear and determine a contested hearing for, say, an Anton Piller or Mareva order which had been made ex parte on an interim basis. In such cases, the order will only issue if the judge is satisfied that a strong prima facie case has been made out. In the present case, the only matter as to which Sides DCJ was satisfied was that, by the afternoon of 25 June 2015, Mr Bandara had neither appeared, nor provided a medical certificate. His Honour simply inferred that Mr Bandara did not wish to prosecute his appeals.

The consequences of rejecting any challenge to the decision of Sides DCJ

40. The failure of Mr Bandara’s challenge to the decision of Sides DCJ has important consequences for the utility of the litigation in this Court. While that decision stands, it is not possible to challenge the conviction of Mr Bandara for breach of the interim order, nor is it possible to challenge the decision to make a final order. Any such challenge would be inconsistent with the dismissal of the appeals filed by Mr Bandara challenging the making of the final order and his conviction for breach of the interim order.

41. When asked about the utility of the surviving issues, the amicus placed emphasis on the making of the interim order on 5 August 2014. It was put by the amicus that there might be some way of reversing Mr Bandara’s conviction for contravention of that order in the event that it was shown that the interim order should never have been made (although counsel made it clear that he had no particular application in mind). I do not agree. It is impossible to see how any application could ask a court to make a determination inconsistent with the dismissal of Mr Bandara’s appeal against conviction.

42. Accordingly, it follows that the failure to identify jurisdictional error in the decision of Sides DCJ refusing to revoke the dismissal of all three of Mr Bandara’s appeals when Mr Bandara failed to appear means that there is no utility in any aspect of this proceeding. For that reason alone, I would dismiss the summons and amended summons.

The challenge to the orders made by Colefax DCJ

43. Although nothing now turns on the amicus’ challenge to the orders made by Colefax DCJ, in deference to the helpful submissions made by the amicus, it is appropriate to address that challenge.

44. On a fair reading of the short hearing before his Honour and the reasons given by him, Colefax DCJ dismissed Mr Bandara’s appeal from the making of the interim order on the basis that that order was no longer in force, following the making of a final order. As much was put to him, without opposition, by the lawyer appearing for Ms Liyanapatirana.

45. True it is that on (or shortly after) a final order was made, the interim order ceased to have effect, in accordance with s 24 of the Crimes (Domestic and Personal Violence) Act. But merely because the time during which an order must be complied with has expired does not mean that an appeal does not lie from it. No submission was made in this Court to the contrary. Indeed, Mr Bainbridge candidly acknowledged that he had probably been incorrect to make the submission he had made to Colefax DCJ.

46. It was accordingly correct for the amicus to submit that, in summarily dismissing the appeal, the District Court had failed to attend to its obligation to decide the appeal by way of rehearing on the basis of the evidence given in the original Local Court proceedings, in accordance with s 18 of the Crimes (Appeal and Review) Act 2001. This misconception of the District Court’s jurisdiction amounted to jurisdictional error. It readily answers the description of misconstruing the empowering statute “and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case”: Craig v South Australia (1995) 184 CLR 163 at 178.

47. Further, in Dyason v Butterworth, McColl JA said at [32], with the agreement of Barrett and Gleeson JJA, that:

“An inferior court commits jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [72]). Where there is ‘the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law ... such a failure will generally involve jurisdictional error ... [as] the process of decision-making ... has miscarried’: Boele v Rinbac Pty Ltd [2014] NSWCA 451 (at [54]) per Basten JA (although his Honour was in dissent as to the outcome, Sackville AJA (at [100]) approved Basten JA’s statements of principle); see also Goodwin v Commissioner of Police [2012] NSWCA 379 (at [19] – [25]) per Basten JA (Allsop P and Young AJA agreeing). Such error will also be established if the primary judge misunderstood the scope of her jurisdiction, so as not to conduct a rehearing, but, rather, undertook some more limited form of appeal: McKellar (at [10]).”

48. It should be said immediately, in fairness to the primary judge, that this was not pointed out to his Honour, that the matter was number 40 in the list (the total number of matters in the list is not disclosed by the evidence), and, especially, that there was no indication from Mr Bandara that there could be any utility in an appeal from the interim order, as distinct from the appeal from the final order which he intended to file.

49. As a fall back submission, the Director of Public Prosecutions contended, somewhat faintly, that there was in fact no appeal before the Court from the making of the interim order. He pointed to the fact that the notice of appeal identified a different magistrate, and a different date, notwithstanding the prominent statement “I CONTEST THE INTERIM APPREHENDED VIOLENCE ORDER MADE IN THESE PROCEEDINGS”.

50. The submission by the Director of Public Prosecutions should not be accepted. The notice of appeal was plainly defective. That said, its timing (shortly after the interim order was made, within the period provided for an appeal) and language plainly contained an invocation of the District Court’s appellate jurisdiction conferred by s 84 of the Crimes (Domestic and Personal Violence) Act 2007. The essence of an originating process is that it makes a claim to some remedy. The better view is that there was merely an error in the identification of the date and magistrate who made the order on the document filed with the court. Plainly enough, the court’s listing officer (who listed as separate matters the 505 and 585 proceedings), the parties and the primary judge all regarded Mr Bandara as having commenced an appeal; hence the submission made by Mr Bainbridge and the order that was made and the reasons given for it. Ultimately, the appeal might be vulnerable to an application for dismissal because of its non-compliance with the rules, but that is entirely different from the proposition that there was no appeal at all.

51. However, that is not the end of the matter. Accepting that the order made by the District Court disclosed error, could there have been any different outcome had the appeal been determined by way of rehearing? What was said in support of error by Murphy LCM on 5 August 2014 was that his Honour had regard to the fact that an interim order was in place on 6 June 2014. It was put that that was wrong in fact, and that accordingly his Honour had acted on a mistaken assumption.

52. Those submissions should be rejected for two reasons. The first is that, upon a reading of the whole of the transcript of 5 August 2014, it is plain that his Honour was apprised of the dispute as to whether there was an order in place on 6 June 2014, notwithstanding the entry on the benchsheet. In particular, Sergeant Ferguson stated:

“[On 9 July] I advised the Court that due to the element of doubt that the PINOP [person in need of protection] was not protected by an interim order the police would apply for a new provisional order. That application was made and rejected by the online magistrate on the basis that there was an interim order in place. So you see the police are in something of a catch 22 at the moment, on the one hand we don’t know if the interim order is in place, on the other hand, having applied for a new order we’re told we can’t have one because the interim order is in place.

That’s the background to the whole matter.”

53. Later, it was said:

“HIS HONOUR: What are the terms that you’re seeking for the interim order?

FERGUSON: 1 4 7 and 11, your Honour.

HIS HONOUR: This is a police application for an interim order?

FERGUSON: That’s correct.”

54. Mr Bandara protested that a brief had not been served, and that there was no application for an interim order before the Court. The following exchange took place:

“COMPLAINANT: This is not a hearing for an interim order, you are just making an interim order based on a provisional application made back in November of last year.

HIS HONOUR: The uncertainty about whether the interim order –

COMPLAINANT: There was never an interim order made by any presiding magistrate prior to this case.”

55. After being told of the hearing on 6 June, the annotation “interim order to continue”, and the uncertainty on 9 July, his Honour is then recorded as saying, “Well it certainly seems to me that the normal procedure of the Court would be that the interim order would continue until an application for a final order was determined.”

56. Accepting that the interim order was made by Murphy LCM for reasons which stated that there was an interim order in place on 6 June 2014, it is plain from a reading of the reasons as a whole that at the forefront of the submissions of all parties was the uncertainty as to whether there was such an order. The point of making an order on 5 August 2014 was to remove any uncertainty.

57. Those reasons suffice to demonstrate why there was no error in the interim orders made on 5 August 2014. However, there is a second reason why the appeal would inevitably have been dismissed, entirely independent of the foregoing.

58. If there were to be a hearing of Mr Bandara’s appeal from the interim order made on 5 August 2014, that appeal would be by way of rehearing. It is plain that it would be relevant to have regard to the unchallenged final order put in place for five years in identical terms with effect from 17 November 2014. It is not possible to see how there could realistically be any different result in relation to an interim order made three months earlier on the same terms and involving the same parties.

59. What is more, there would be a strong basis for permitting fresh evidence, relating to Mr Bandara’s contraventions of both the interim and final orders, to be adduced, in accordance with s 18(2) of the Crimes (Appeal and Review) Act 2001 (the former would be necessary to demonstrate the utility of the appeal). That material would provide an even stronger basis to support the correctness of the order made on 5 August 2014.

60. Accordingly, for each of those reasons, and putting to one side the fact that Mr Bandara’s appeal against conviction of a contravention of the interim order has been dismissed in a manner which cannot be challenged, there would be no utility in remitting the appeal from the making of the interim order to the District Court. The appeal would inevitably be dismissed.

Orders

61. For those reasons, the litigation in this Court is misconceived and must be dismissed. The orders below reflect the procedural requirements of UCPR r 59.3(4), the fact that the litigation has been conducted on the basis that the summons and amended summons should be considered cumulatively, and the fact that none of the respondents sought costs. The Court’s orders will be:

1. Amend the proceedings such that Director of Public Prosecutions is the first respondent.

2. Dismiss the summons dated 8 December 2014 and amended summons dated 22 July 2015.

62. SIMPSON JA: I agree with Leeming JA.

63. SACKVILLE AJA: I agree with Leeming JA.

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Decision last updated: 21 June 2016