Commissioner of NSW Police v Murphy

[2024] NSWCA 311

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of NSW Police v Murphy [2024] NSWCA 311

Hearing dates:

8 November 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Before:

Payne JA at [1];
McHugh JA at [2];
Basten AJA at [138]

Decision:

(1)   Grant leave to appeal and direct the appellant to file a notice of appeal within seven days.

(2)   Appeal allowed.

(3)   Orders 1 and 2 made by Hamill J on 23 May 2024 be set aside.

(4)   In lieu thereof:

(a)   set aside the order of Olischlager LCM made on 22 August 2023 in matter number 2021/00306721;

(b)   declare that the apprehended domestic violence order made against the first respondent on 12 July 2022 expired on 11 January 2023;

(c)   make no order as to costs of the proceedings in the Common Law Division.

(5) Grant a certificate under the Suitors’ Fund Act 1951 (NSW) to the first respondent.

(6)   There otherwise be no order as to the costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW — judicial review — application to Local Court to revoke apprehended domestic violence order (ADVO) — where application brought before order expired — where extension of ADVO sought to enable it to be revoked — where Local Court allowed both applications — where Supreme Court dismissed summons seeking judicial review.

STATUTORY INTERPRETATION — improper purpose — whether purported extension of ADVO for improper purpose where not for purpose of protecting a person — whether purported revocation of order for improper purpose where for purpose of disengaging prohibition in s 11(5)(c) of the Firearms Act 1996 (NSW) — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73.

COSTS — appeals — whether proceeding seeking judicial review a “proceeding in the nature of an appeal” — Suitors’ Fund Act 1951(NSW), s 6.

Legislation Cited:

Crimes Act 1900 (NSW), Part 15A, ss 61, 562F

Crimes (Appeal and Review) Act 2001 (NSW), s 56

Criminal Appeal Act 1912 (NSW), s 5B

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 9, 10, 13, 14, 16, 17, 18, 19, 20, 36, 48, 72, 73, 78, 79A, 79B, 84, 104

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Firearms Act 1996 (NSW), ss 4, 11, 39

Firearms Act 1989 (NSW) ss 25

Suitors’ Fund Act 1952 (NSW), s 6

Supreme Court Act 1970 (NSW), ss 69, 75

Firearms Regulation 2017 (NSW), reg (5)(1)

Firearms Regulation 1990 (NSW), reg 21(1)

Cases Cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9

Attorney General v Sillem (1864) 10 HL Cas 704 at 724

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305

Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24

Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337

Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Ex parte Neville; Re Suitors’ Fund Act 1951-1960 [1965] 2 NSWR 481; (1966) 85 WN(Pt 1)(NSW) 372

Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN(NSW) 380

Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Majumdar v Director of Public Prosecutions [2024] NSWCA 117

Mills v Mills (1938) 60 CLR 150 at 186; [1938] HCA 4

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Mir Brothers Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491

New South Wales Land and Housing Corporation v Quinn (No 2) [2017] NSWCA 34

Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644

Re Oscar [2002] NSWSC 887

Robinson v Zhang [2005] NSWCA 439

Thompson v Randwick Municipal Council (1950) 81 CLR 87; [1950] HCA 33

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Wass v Director of Public Prosecutions (2023) 111 NSWLR 210; [2023] NSWCA 71

Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 294; [1987] HCA 11

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1992

Category:

Principal judgment

Parties:

Commissioner of NSW Police (Applicant)
Peter Michael Murphy (First Respondent)
Local Court of New South Wales (Second Respondent)

Representation:

Counsel:
P Herzfeld SC and D Reynolds (Applicant)
N Simpson (First Respondent)

Solicitors:
Karen Smith, Crown Solicitor (Applicant)
Hartmann & Associates (First Respondent)

File Number(s):

2024/00227865

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 617

Date of Decision:

23 May 2024

Before:

Hamill J

File Number(s):

2023/356386

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 12 July 2022, a Local Court Magistrate at Belmont made a final apprehended domestic violence order (ADVO) against the first respondent for a period of six months expiring on 11 January 2023. The person in need of protection (PINOP) was the first respondent’s son. The making of the ADVO engaged the 10-year prohibition on the issuing of a licence under s 11(5)(c) of the Firearms Act 1996 (NSW). On 8 December 2022, the first respondent filed an application to revoke the ADVO. On 19 December 2022, a Local Court Magistrate purported to extend the ADVO pursuant to s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) until the revocation application was finalised. On 22 August 2023 a Local Court Magistrate purported to revoke the ADVO pursuant to s 73.

By summons filed in the Supreme Court, the appellant sought judicial review of the 22 August 2023 decision purporting to revoke the ADVO and a declaration that the ADVO expired in January 2023. The primary judge dismissed the summons. The appellant sought leave to appeal to the Court of Appeal.

The Court held (McHugh JA, Payne JA and Basten AJA agreeing) granting leave to appeal and allowing the appeal:

A statutory power may be exercised only for the purpose for which it is conferred. An order purporting to extend an ADVO pursuant to s 73 of the CDPV Act that is not made for the purpose of protecting people from domestic violence, intimidation (including harassment) and stalking is not made for a proper purpose. No part of the purpose of the decision purporting to extend the ADVO was to protect the PINOP or anyone else from the risk of domestic violence: [1] (Payne JA), [12]-[18], [42]-[48], [95]-[106] (McHugh JA), [138], [142] (Basten AJA).

Thompson v Randwick Municipal Council (1950) 81 CLR 87; [1950] HCA 33; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 followed. Majumdar v Director of Public Prosecutions [2024] NSWCA 117; Wass v Director of Public Prosecutions (2023) 111 NSWLR 210; [2023] NSWCA 71 discussed.

Observations by Basten AJA, Payne JA agreeing, as to actuating purposes: [145]-[148].

The purpose of revoking an ADVO in order to disengage the prohibition in s 11(5)(c) of the Firearms Act is alien to the purposes for which Parliament conferred the power to revoke in s 73. At least a substantial purpose (in the sense that the decision would not have been made but for that purpose) of the decision purporting to revoke the ADVO was to disengage the Firearms Act prohibition: [1] (Payne JA), [58]-[63], [107]-[121] (McHugh JA), [138] (Basten AJA).

A proceeding seeking judicial review is a “proceeding in the nature of an appeal” for the purposes of ss 2(1) and 6(1) of the Suitors’ Fund Act 1951 (NSW). The certificate granted to the first respondent with respect to the costs of the appeal will also cover the prescribed portion of his legal costs of the proceedings in the Common Law Division, pursuant to s 6(2)(b)(ii), as an appeal “in a sequence that preceded the appeal in respect of which the certificate was granted”: [1] (Payne JA), [133] – [136] (McHugh JA), [149]-[157] (Basten AJA).

Ex parte Parsons; Re Suitors’ Fund Act (1952) 69 WN(NSW) 380-38 followed; Ex parte Neville; Re Suitors’ Fund Act 1951-1960 [1965] 2 NSWR 481; (1966) 85 WN(Pt 1) (NSW) 372 discussed.

JUDGMENT

1. PAYNE JA: I agree with the orders proposed by McHugh JA and with his Honour’s reasons. I also agree with the additional reasons of Basten AJA.

2. McHUGH JA: This application for leave to appeal concerns the proper purposes of two distinct powers conferred on the Local Court of New South Wales by s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). In particular:

1. Was the purported exercise of the s 73 power to vary a final apprehended violence order by extending it, on the application of a defendant, for the purpose of keeping the order on foot so that it could be revoked rather than expire, an exercise of the power for a proper purpose?

2. Was the purported exercise of the s 73 power to revoke a final apprehended violence order rather than letting it expire, for the purpose of disengaging the 10-year prohibition on the grant of a firearms licence pursuant to section 11(5)(c) of the Firearms Act 1996 (NSW) (Firearms Act), an exercise of the power for a proper purpose?

3. The answer to both questions is no.

4. The application arises out of two decisions of the Local Court at Belmont. The first purported to extend, and the second purported to revoke, a final apprehended domestic violence order (ADVO) made against the first respondent. The Commissioner sought judicial review of the second decision. The primary judge, Hamill J, dismissed the summons.

5. Before turning to the facts and the proceedings in the Local Court, it is convenient to identify first the two central statutory provisions, and then what is meant by a proper purpose.

The two central provisions

6. Section 11(5)(c) of the Firearms Act provides that a licence must not be issued to a person who “is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked)”.

7. Section 11(5)(c) has made substantially similar provision since the Firearms Act was enacted in 1996, including the words, “(other than an order that has been revoked)”.

8. Section 4(1) of the Firearms Act defines an “apprehended violence order” as, relevantly, a final apprehended violence order under the CDPV Act. Predecessor definitions since the Firearms Act was enacted in 1996 have referred to the corresponding provisions of the apprehended violence order regime from time to time, which in 1996 were contained in Part 15A of the Crimes Act 1900 (NSW).

9. The power to extend or revoke such an order is found in s 73 of the CDPV Act, which, in the period with which these proceedings are concerned, relevantly provided:

73    Variation or revocation of final apprehended violence orders and interim court orders

(1)    The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order.

(2)    In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways—

(a)    by extending or reducing the period during which the order is to remain in force,

(b)    by amending or deleting any prohibitions or restrictions specified in the order,

(c)    by specifying additional prohibitions or restrictions in the order.

(3)   The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.

…

10. Powers to extend or revoke an apprehended violence order were contained in s 562F(3) and (4) of the Crimes Act as at 1996, and corresponding powers have been part of the apprehended violence order regimes since that time.

11. Thus, since the Firearms Act was enacted in 1996, the 10-year prohibition on the issuing of a licence in s 11(5)(c) has been:

1. engaged only by the making of an apprehended violence order under a separate legislative regime; and

2. disengaged only by the making of an order revoking an apprehended violence order, again under the separate legislative regime.

Proper purposes

12. A statutory power may be exercised only for the purposes for which it is conferred: see, e.g., The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186 per Gibbs CJ; [1981] HCA 74. Those are the proper purposes of the power. The purported exercise of a power for a purpose alien to those for which it is conferred is not a proper exercise of the power. An alien purpose is in that sense an improper one.

13. What constitutes an alien (or “extraneous” or “foreign”) purpose is a question of statutory construction. Where a power is not granted for a particular specified purpose, the nature, extent and purposes of the power are matters of construction of the Act as a whole. The purposes for which the s 73 powers are conferred are addressed at [95]-[122] below.

14. The concept of alien purpose is familiar in the context of challenges to the purported exercise of administrative power. A related concept is also familiar in the curial context as a basis of the doctrine of abuse of court process. However, in the former case, “the focus is upon the purpose of the repository of the power, rather than upon the purpose of the moving party”: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [2] per Gleeson CJ, Gummow, Hayne and Crennan JJ, approving a distinction explained by Brennan J in his dissenting judgment in Walton v Gardiner (1993) 177 CLR 378 at 410; [1993] HCA 77.

15. In the context of power conferred on a court, it is relatively rare to ask whether the repository of the power, that is, the magistrate or judge, exercised the power for an alien purpose. No doubt that is explained in large part by the existence of the doctrine of abuse of process, which focusses on the anterior question of the purpose of the moving party, and which intervenes to protect the court’s processes by remedies, such as a stay, which generally operate before the court comes to exercise the substantive power sought to be invoked.

16. However, it was not suggested that the conferral of power on an inferior court such as the Local Court should be distinguished from the conferral of administrative power in this respect: in each case, the repository of the power may exercise it only for the purposes for which it is conferred. The first respondent did not dispute that this principle applies to the power conferred on the Local Court by s 73. In particular, the first respondent did not dispute the Commissioner’s submission that, if the decision to extend the period of the ADVO was made for an improper purpose, it was void ab initio.

17. Determining the purpose or purposes for which the repository of a power purported to exercise it is generally a matter of inference. It is often said that the inference of an improper purpose is not lightly to be drawn. The force of that proposition will vary depending on the nature of the purpose alleged. Merely to describe a purpose as improper in the sense of alien to the purposes for which the power is conferred is not to impute anything like conscious wrongdoing to a decision-maker. It is instead to identify one of the boundaries of the repository’s authority to exercise the power. The questions remain, what inference should be drawn as to the purpose or purposes for which the repository of the power purported to exercise it, and whether such purposes were alien to those for which the power was conferred.

18. The argument in this Court proceeded, by reference to decisions about administrative powers, on the footing that where the inference is to be drawn that an alien purpose was present it need not have been the decision maker’s sole, or even predominant, purpose. Instead, it is enough that the alien purpose be a substantial purpose, in the sense that the decision would not have been made but for that purpose: Thompson v Randwick Municipal Council (1950) 81 CLR 87; [1950] HCA 33 at 105-107; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [30] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

19. By contrast, where the question is whether proceedings should be stayed for abuse of process, the criterion is whether the alien purpose is the predominant purpose of the moving party: Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.

20. Although the Commissioner made limited submissions in oral argument to the effect that the purpose of the first respondent as the moving party engaged the doctrine of abuse of process, that issue was not raised by the Commissioner’s draft notice of appeal. Instead, consistently with the way the case was advanced at first instance, the focus of the parties’ written and oral submissions was the purpose of the magistrates as the repositories of s 73 power. It is unnecessary, and given that the point was not properly raised or argued it is undesirable, to address the doctrine of abuse of process and how it might operate in the circumstances of this case, where no stay was sought in the Local Court.

The charges and the final ADVO

21. As the parties are at issue about the purposes for which the two decisions were made, it is necessary to give close attention to the circumstances.

22. The first respondent had a firearms licence and owned seven guns.

23. On 29 October 2021, the first respondent was charged with three offences: common assault, contrary to the Crimes Act 1900 (NSW), s 61; intimidation, contrary to the CDPV Act 2007, s 13(1); and failing to keep a firearm safely, contrary to the Firearms Act, s 39(1)(a). It was alleged that the previous day, the first respondent had argued with his then 16-year-old son, pushed him and made threats against him.

24. That same day:

1. The police took out a provisional ADVO under the CDPV Act, which was made “until it is revoked or a further order made by the Court”. The person in need of protection (PINOP) was the first respondent’s son. The provisional ADVO included an application for a final ADVO for a period of two years.

2. The first respondent’s firearms licence was suspended pursuant to ss 22 and 23 of the Firearms Act.

25. On 12 July 2022, the criminal charges were finalised in the Local Court at Belmont before Magistrate Morahan. The assault and intimidation offences were dismissed. The firearms offence was established but dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

26. The Magistrate also made a final ADVO commencing on 12 July 2022. The order was made by consent and without any admission on the part of the first respondent, and was for a period of six months rather than the two years sought in the application. The PINOP was the first respondent’s son. The final ADVO stated that the first respondent “must follow these Order(s) until 11 January 2023.”

The 19 December 2022 order purporting to extend the period of the ADVO

27. On 8 December 2022, the first respondent filed an application to the Belmont Local Court for an order revoking the final ADVO (to which he had consented on 12 July). This was a little over one month before the final ADVO was due to expire by its own terms on 11 January 2023. The application identified two grounds on which the first respondent (as applicant for revocation) relied:

The PINOP has now moved away from the applicant’s premises, now residing with his mother.

The PINOP and applicant have reconciled and the PINOP has no fear of the applicant.

28. The application made no reference to firearms or a firearms licence.

28. The application to revoke the final ADVO was listed on 19 December 2022 at Belmont Local Court. The application came before Magistrate Crews that day. The first respondent’s solicitor, Mr Kable, was not initially present. The Magistrate referred to the two grounds in the application. The police prosecutor informed the Court, “my instructions [are] just to leave it as is until January when it expires.”

29. When Mr Kable appeared by telephone a few minutes later, the following exchange took place (emphasis supplied).

HER HONOUR: The sergeant tells me the order expires early next year.

KABLE: That’s correct.

HER HONOUR: Their instructions, he can confirm it, if you like, I just asked him, is to just let the order run. I do not know whether the prosecution has confirmed that the boy has moved away from the home.

KABLE: Yes, the boy has moved away from the home. The issue, your Honour, is that the applicant seeks to get a firearms licence, so he is automatically precluded for 10 years unless it’s revoked.

HER HONOUR: I wouldn’t be prepared—

KABLE: So we need to revoke it before it expires.

HER HONOUR: Myself, I wouldn’t be prepared to revoke it today. I’d possibly, subject to further discussion, be prepared to vary it to end today if there is no other issue but to seek—

KABLE: Yeah, no, I—

HER HONOUR: To seek a revocation, I think will require more attention than just a simple mention.

KABLE: No, absolutely, your Honour. I wasn’t seeking to have it done today. I was seeking though to get it listed before it expired in order to extend the order so that the end date will be when this matter is dealt with and the application finalises.

(Emphasis supplied.)

31. Her Honour invited the prosecutor to speak to the police domestic violence liaison officer, in circumstances where the PINOP was then a 17-year old boy. After an adjournment, the prosecutor informed the court that the domestic violence liaison officer had “indicated we don’t support a revocation”, i.e., as opposed to letting the ADVO expire. It is important to note, however, that the prosecutor said nothing to indicate that the grounds set out in the application were in dispute, or that there was any ongoing need to protect the PINOP from a risk of domestic violence at the hands of the first respondent. At that point, the Magistrate said, “So we’ll have to make orders for statements and adjourn it” (i.e., the application for revocation). Her Honour proceeded to set a timetable in which the matter was next listed on 30 January for mention.

32. Mr Kable had been frank in identifying “[t]he issue”, that is, that the purpose of any order revoking the ADVO rather than leaving it to expire on 11 January 2023 was to disengage the prohibition in s 11(5) of the Firearms Act. As he said, the first respondent would be “automatically precluded for 10 years unless it’s revoked”, “So we need to revoke it before it expires.”

33. Mr Kable had been equally frank that the purpose of his oral application to vary the ADVO by extending the period during which it was to remain in force was in order keep the ADVO on foot so that it could be revoked rather than expire on 11 January. As will be seen, Mr Kable was correct: there is no power to revoke an expired ADVO. That was the significance of seeking that the “end date” of the ADVO be the date on which the application for revocation was determined. Mr Kable returned to this subject after the Magistrate indicated that she would list the matter on 30 January 2023 for mention:

KABLE: As indicated prior, please note that the order is extended until it’s finalised, if that’s possible.

HER HONOUR: So it’s on oral application of defendant applicant. Current order extended on interim basis. What date does it expire again, Mr Kable?

KABLE: The 11^th of January, your Honour.

HER HONOUR: Okay, thank you very much.

34. The period of the order her Honour purported to make extending the ADVO was not clear. Her Honour expressed it, as recorded in the transcript, as “Current order extended on interim basis.” The bench sheet similarly records that “on application of def/applicant current order extended on interim basis (11/1/2023 expiry date)”. Neither the transcript nor the bench sheet records a date, or an event by reference to which, the order was extended. It is notable that by s 79B(1) of the CDPV Act, the power to make an ADVO that remains “in force for an indefinite period” is engaged where the court is satisfied that “there are circumstances giving rise to a significant and ongoing risk of death or serious physical or psychological harm to the protected person or any dependents of the protected person” and “that risk cannot be adequately mitigated by an order of limited duration.” There was no suggestion nor any consideration of any such risk in this case.

35. The JusticeLink entry records: “The Apprehended Domestic Violence Order made on 12 July 2022 is varied on an interim basis. The interim conditions for the Apprehended Domestic Violence Order are as follows: For the protection of [the first respondent’s son] prohibiting or restricting the behaviour of the [first respondent] until the next court appearance.” The next court appearance was 30 January 2023, when the matter was listed for mention and was in fact mentioned. If the JusticeLink entry is taken to record the order made on 19 December 2022, that order extended the ADVO only until 30 January 2023.

36. No further order was made purporting to extend the ADVO.

37. The primary judge, Hamill J, took the view that the “JusticeLink entry does not reflect what, it seems, the parties and the Court thought was happening, namely – as it was put by Mr Kable – that the ADVO be extended ‘until it’s [i.e., the revocation application] finalised’”: J[27]. His Honour regarded this as “an instance of the JusticeLink record apparently erroneously recording the orders that were made in court”: J[28]. His Honour’s findings on this issue were at J[115] and J[116]: “I am comfortably satisfied that the objective intention of Magistrate Crews was to vary the order so that it was extended until the Court was able to dispose of the defendant’s (validly brought) application for revocation of the ADVO. … It follows that I am not satisfied that the ADVO had expired when the application for revocation finally came before Magistrate Olischlager on 22 August 2023.”

38. The correctness of this reasoning is to be doubted. The need for certainty in the period of operation of any order, and especially an order operating directly upon a person, is fundamental. The final ADVO declared on its face that failure to follow the orders was a criminal offence carrying a prison sentence of up to 2 years; see s 14 of the CDPV Act. If the first respondent had been charged with doing an act on 31 January 2023 which constituted a breach of the ADVO, he would have been in a position to argue that the ADVO had expired the day before, given the terms of the JusticeLink entry and the fact that neither the transcript nor the bench sheet recorded any later date to which the order had been extended.

39. Nevertheless, the Commissioner does not challenge the primary judge’s finding on appeal. Instead, the Commissioner seeks to have the Court resolve the issues of proper purpose as a matter of principle.

40. That being so, ground 3 of the first respondent’s notice of contention, which is as follows, does not arise:

In the event that the Court finds that Hamill J erred at [86] of the decision with respect to extending the ADVO, the Court below should have held that the legal effect of an application under subsection 73(2)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was that the ADVO continued in force until the application was dealt with by the court by virtue of subsection 73(8) the Act.

41. There were in any event problems with that contention. First, s 73(8) provides: “If an application for the extension of a final apprehended violence order … is made before the order expires, the order is taken to continue in force until the application is dealt with by the court.” The words, “the application” must mean the application for extension. In this case, although there is scope to debate the terms of the order in fact made on 19 December 2022, the court dealt with the application for extension that day. Secondly, where subs (8) refers to “an application”, that must mean a valid application. In light of the first respondent’s purpose in bringing the application for extension, the validity of the application was contestable.

The purpose of the 19 December order purporting to extend the period of the ADVO

42. Two related inferences are to be drawn about the purpose for which the Magistrate purported to make the decision to extend the period of the ADVO on 19 December 2022.

1. No part of the purpose of the Magistrate’s decision purporting to extend the ADVO was to protect the first respondent’s son, or anyone else, from the risk of domestic violence.

2. At least a substantial purpose (in the sense that the decision would not have been made but for that purpose) of the Magistrate’s decision purporting to extend the ADVO was to keep it on foot so that it could be revoked, thus disengaging the prohibition in s 11(5)(c) of the Firearms Act.

43. So much is clear from the following matters.

44. First, as to the circumstances relating to the PINOP on 19 December 2022, there was no suggestion, still less any submission or any evidence before the Magistrate, that it was necessary or appropriate to extend the ADVO in order to ensure the PINOP’s safety or protection from the risk of domestic violence. To the contrary, the grounds identified in the first respondent’s application to revoke the ADVO were that the PINOP had moved away from his father’s premises, that the PINOP had reconciled with his father and that the PINOP had no fear of his father. The prosecutor did not suggest otherwise. In the absence of any suggestion that there was an ongoing need to protect the PINOP from the risk of domestic violence, there is no reason to think that her Honour was actuated by that purpose in purporting to extend the ADVO.

45. Secondly, on the assumption that, as the primary judge found at J[115], the period for which the ADVO was extended was until the Court was able to dispose of the defendant’s application to revoke it, that strongly supports the conclusion that that was the purpose for which the ADVO was extended. Again, there was no suggestion that the period of the extension bore any relation to any need to protect the PINOP.

46. Thirdly, the application for extension was made by the first respondent, for his own benefit, rather than by the police prosecutor whose instructions were to allow the order to expire on 11 January 2023. The benefit to the first respondent was that extension would preserve the possibility of disengaging the Firearms Act prohibition; otherwise, the court would have no power to revoke the ADVO after it expired on 11 January. That was the reason why the first respondent was seeking “to extend the order so that the end date will be when this matter is dealt with and the application finalises”. There was no suggestion that any part of the purpose for which the first respondent was seeking to extend an ADVO that operated against himself was to protect his son from the risk of domestic violence at his own hand. It is true that the Magistrate’s purpose is not to be automatically equated with that of the first respondent. However, in the circumstances of this case, the fact that the Magistrate purported to grant the application to extend when (a) there was no suggestion of any concern about protecting the PINOP and (b) the application was advanced on the express basis that “The issue” was “that the applicant seeks to get a firearms licence”, “So we need to revoke it before it expires”, is a strong indication that that was the Magistrate’s purpose.

47. The conclusion reached above as to the Magistrate’s purpose in purporting to extend the ADVO differs in some respects from that of the primary judge at J[86]. His Honour said that the Magistrate “was attempting to facilitate the hearing of a legitimate application for revocation made by the defendant which was made before the order expired and which the Court was unable to determine to finality due to the pressure of time.” Save for the description of the application for revocation as “legitimate”, that statement is accurate; but it is no answer to the conclusions reached above. Indeed, it is consistent with the proposition that the Magistrate’s purpose was to keep the ADVO on foot so that it could be revoked thus disengaging the Firearms Act prohibition.

48. The primary judge also said that the “order maintained the status quo”. It is true that the purported order (on his Honour’s view of the period of the extension) preserved the subject matter of the application to revoke the ADVO in order to disengage the Firearms Act prohibition. However, as will be seen, preserving the subject matter of an application made for that purpose was not a proper purpose for the exercise of the s 73 power to vary by extending the ADVO. The primary judge also said that the purported order “continued the ADVO which was directed to the safety of the PINOP”. Although it is correct to say that the terms of the ADVO were directed to the safety of the PINOP, that was not the purpose of the order extending the ADVO.

The 22 August 2023 order purporting to revoke the ADVO

49. The application for revocation was determined by Magistrate Olischlager at Belmont Local Court on 22 August 2023. His Honour proceeded on the footing that the final ADVO had been extended on 19 December 2022 until the hearing of the revocation application.

50. The evidence in support of the application consisted of two statements made on 2 and 5 January 2023, one by the first respondent and the other by his son. Neither statement was more than half a page in length. The son’s statement gave a brief account of the heated argument he had had with his father in October 2021 and concluded, “I don’t fear dad or feel threatened in any way, I love my dad and wish this mess didn’t happen”. Neither statement made any mention of firearms, or of any legitimate need the first respondent might have for using a firearm, or of anything in the nature of hardship arising out of the prohibition in s 11(5)(c) of the Firearms Act on issuing a licence to the first respondent.

51. Mr Kable, appearing for the first respondent, was again frank about the purpose of the order for revocation. He described the application as follows: “it’s in relation to firearms. My client is a firearms licence holder. If you can’t revoke the order, he can’t reapply for 10 years, mandatory.” He later submitted, “this is in relation to ultimately revoking an order in order to obtain a firearms licence.” (Emphasis supplied.).

52. The prosecutor opposed the application. He submitted that this was “a simple application in order to avoid the legislative requirements” under the Firearms Act; that the final ADVO had been put in place by consent based on admissions the first respondent had made (apparently a reference to an admission by the first respondent in the course of a recorded interview that he had threatened to “belt” his son); that the court had lacked power to extend the ADVO (i.e. on 19 December) which had therefore expired (i.e., on 11 January); and that the Court lacked power to revoke an apprehended violence order in the circumstances. Mr Kable’s submission in response was that s 73 allowed an application “in order that someone can apply for a firearms licence and that’s simply what we’re doing”. (Emphasis supplied.)

53. In the course of argument, Magistrate Olischlager said that it seemed “the real issue is and the only possible aspect that this matter could have is the impact on a person in terms of firearms.” That observation was correct.

54. In giving his reasons ex tempore for granting the application to revoke, the Magistrate did not depart from that understanding of the purpose of the order. His Honour said, “It is clear from the application that the intent on the part of the [first respondent] is to revoke the order to avoid the consequences of the restriction in respect to the firearms licence and under the Firearms Act.”

55. The Magistrate referred to amendments made to the CDPV Act in 2016. His Honour said that the decision of this Court in Wass v Director of Public Prosecutions (2023) 111 NSWLR 210; [2023] NSWCA 71 held that the effect of the 2016 amendments was that an application to revoke an apprehended violence order must be made prior to its expiry. His Honour said that the amendments had been made “mindful of the potential for applications for revocation simply for the purposes of overcoming concerns regarding the effect on a firearms licence”, but considered that the legislative intention was not to remove the capacity to make such an application while the ADVO was still on foot. His conclusion as to the s 73 power was as follows:

“I do consider then that it is not, of itself, contrary to any intention of legislation that the Court cannot consider an application that is made prior to the expiration of the order for the revocation, even when that revocation seeks to overcome the consequences of the making of the final order in relation to firearms licenses.”

56. Magistrate Olischlager did not otherwise refer to any reason that the first respondent had for wanting or needing a firearms licence, nor to any hardship that would be occasioned to the first respondent by not having one. Nor did his Honour address any matter specific to the first respondent bearing upon the appropriateness of permitting him to be issued with a firearms licence. There does not appear to have been any evidence before his Honour or any submission made about those subjects. That was so notwithstanding that on 12 July 2022 the offence of failing to keep a firearm safely had been established (although the charge was dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act).

57. Magistrate Olischlager said that the terms in which the ADVO had originally been made and its six-month period suggested “that perhaps the degrees of concern that were held in the mind of the Court regarding the type of order which would satisfy the objectives of ensuring safety and protection of persons from domestic violence were not as significant as the Court might see in many other instances.” His Honour also referred to the absence of evidence of any breaches, or of any need for the police to apply to extend the order, or of any fresh application for the protection of any person with whom the first respondent had a domestic relationship. His Honour concluded that “revocation of the AVO is not likely to impact in terms of policy objectives in relation to the safety and protection of all persons, particularly in relation to domestic relationships”, and said that he was satisfied on those grounds that it was appropriate to grant the application.

The purpose of the 22 August order purporting to revoke the ADVO

58. It should be inferred that at least a substantial purpose of the 22 August 2023 decision purporting to revoke the ADVO was to disengage the Firearms Act prohibition.

59. Magistrate Olischlager proceeded on the footing, as he said, that on 19 December 2022 “on an interim basis, the Court extended the operation of the final order up until the current hearing of the matter today.” His Honour plainly understood that if he refused the application to revoke the ADVO, it would expire that day. Instead, his Honour purported to make an order revoking the ADVO. The decision to do so is only explicable, in the circumstances of this case, on the basis that the Magistrate’s purpose in making the order was the same as the first respondent’s express purpose in bringing the application, namely to disengage the Firearms Act prohibition.

60. Mr Kable had described the purpose of the application as “ultimately revoking an order in order to obtain a firearms licence”. As noted above, the Magistrate acknowledged that the first respondent’s intention was to avoid the consequences of the restriction on being issued a licence under the Firearms Act. His Honour fully understood that “the real issue” and “the only possible aspect” was “the impact on a person in terms of firearms.”

58. It is true, as the primary judge pointed out at J[132], that the Magistrate also referred to the objectives in s 9(1)(a) of the CDPV Act, and said that the court should have regard to ensuring “the safety and protection of all persons, including children, who may experience or witness domestic violence, and also to reduc[ing] and prevent[ing] violence by a person against another person where a domestic relationship exists between those persons.” The primary judge referred to the passage where the Magistrate appears to have accepted, based on the absence of any breaches of the order or of any application to extend it, that there was no ongoing risk to the safety and protection of the PINOP requiring continuation of the ADVO: see J[133]. But that circumstance was neutral, given that the choice the Magistrate had to make was between letting the ADVO expire that day and revoking it. That there was no ongoing risk to safety or protection would also be true, at least prima facie, of any case in which an ADVO was about to expire where there had been no breaches or application to extend it.

59. The primary judge referred at J[134] to the Magistrate’s conclusion that “revocation of the AVO is not likely to impact in terms of policy objectives in relation to the safety and protection of all persons, particularly in relation to domestic relationships.” This statement by the Magistrate followed immediately after what he had said about the absence of any breaches or any application to extend the ADVO. It should not be read as directed to Parliament’s policy in enacting the 10 year prohibition under the Firearms Act, to which the statement did not refer in terms, and for which there would be no basis. Still less was this a finding, specific to the first respondent, about the appropriateness of permitting him to have a Firearms Licence.

60. The primary judge said at J[135] that the Magistrate came to his conclusion for a variety of reasons. But the fact that the Magistrate had regard to matters beyond the first respondent’s motivation of obtaining a firearms licence, including the risks to the safety or protection of the PINOP, is not to the point. The question is whether at least a substantial purpose of the 22 August 2023 decision purporting to revoke the ADVO was to disengage the Firearms Act prohibition. It plainly was.

Wass v Director of Public Prosecutions

64. The question whether the purposes of the decisions identified above were proper purposes for the exercise of the powers in s 73 is a question of statutory construction. However, before considering the CDPV Act regime in detail, it is convenient to consider the recent history of s 73 as explained in Wass.

65. As set out at [6]-[11] above, the 10 year prohibition in s 11(5)(c) has been in place since the Firearms Act was enacted in 1996. At all times the prohibition has been subject to an exception where the apprehended violence order has been revoked. But the power to revoke has always been conferred by a different Act (currently s 73 of the CDPV Act).

66. That is the context in which this Court came to construe the current version of the s 73 power to vary or revoke an order in Wass. Mr Wass had been subject to a final apprehended violence order, consequent upon his guilty plea to a charge of common assault contrary to s 61 of the Crimes Act in the Local Court at Warren: Wass at 213-214 [6]-[7]. The period of the order was 12 months. Some 10 months after that period expired, Mr Wass applied to the Local Court to have the order revoked. Among the grounds for his application was that he had previously held a licence under the Firearms Act for the destruction of vermin on his farming and grazing property and the management of livestock, and he had an ongoing need to manage the property. As Leeming JA (Bell CJ and Kirk JA agreeing) said at 214 [10], “The point of the application was to engage the exception in the closing words of s 29(3)(c) of the Firearms Act”. Section 29(3)(c) contains a 10-year prohibition on issuing permits which corresponds with the licence prohibition in s 11(5)(c), including the exception where the apprehended violence order “has been revoked”.

67. It was held that s 73 is confined to a power to vary or revoke an unexpired order: Wass at 226 [59]. That was so notwithstanding that s 72A(1) provided (as it still does): “An application may be made to a court at any time.” In reaching that conclusion, Leeming JA referred to a number of matters of text and statutory context. His Honour also considered that the construction he favoured promoted the purpose of the amendments: at 225 [58]. In that regard, his Honour paid close attention to the following matters which show the central role of the Firearms Act in the legislative history of the power.

1. In 2008, amendments propounded by what was then known as the Shooters Party were inserted into the CDPV Act as s 72(5)-(8). The new subss (5) and (6) expressly permitted the making of an application to revoke, and an order doing so, even though the apprehended violence order had expired: at 218-291 [27], 220 [31]-[33]. The Note to the then s 72(5) referred to certain consequences of an order that was not revoked, including the 10-year licence prohibition in s 11 of the Firearms Act.

2. Following the 2008 amendments, s 104 of the CDPV Act required that there be a review (the Review) to determine whether the policy objectives of the Act remained valid and whether the terms of the Act remained appropriate for securing them: at 221 [35]. Recommendation 12 of the Review proposed removing the power to revoke an expired order. Paragraph 5.41 of the Review expressly referred to the 10-year prohibition on a firearms licence: at 221 [38].

3. When the bill to repeal the 2008 amendments was introduced into the Legislative Assembly in 2016, the Attorney General referred to the 10 year prohibition on holding a firearms licence, and to the Review’s conclusion that “the ability to revoke an expired ADVO in order to avoid the consequences flowing from the record of that order’s existence is anomalous, unique and undesirable”: 222 [40]. The Explanatory Memorandum also referred to giving effect to Recommendation 12: at 222 [41].

68. As the Commissioner acknowledged in argument on the appeal, although Wass may give rise to implications about the proper purposes for which the power to revoke an ADVO may be exercised, the decision does not deal expressly with that question.

The CDPV Act regime with respect to final apprehended violence orders

69. The Commissioner submitted (a) that the power to make or extend an ADVO may be exercised only “for the single and exclusive purpose of protecting people from domestic violence, intimidation (including harassment) and stalking”; and (b) that “the power to extend or revoke an ADVO cannot be used for the purpose of disengaging the restriction imposed by s 11(5)(c)” of the Firearms Act.

70. Section 73(1) confers power in general language which gives little indication of purpose: “the court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order”. The proper purpose of the exercise of those powers is a question of statutory construction. Since s 73 operates, relevantly, on final apprehended violence orders, that requires particular consideration of the text, context and objects of the CDPV Act regime with respect to those orders.

71. By s 3(1), “a final apprehended violence order” means “an apprehended domestic violence order or an apprehended personal violence order.” The Act deals with both types of order in parallel provisions which, although not identical, to some extent correspond.

72. Section 9(1) of the CDPV Act identifies four objects of the Act in relation to domestic violence. The object in s 9(1)(a) is “to ensure the safety and protection of all persons, including children, who experience or witness domestic violence”. The other three objects are (b) to reduce and prevent violence within domestic relationships; (c) to enact provisions consistent with the Declaration on the Elimination of Violence against Women; and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. All four objects thus concern protecting people from violence.

73. Section 9(2)(a) provides that the Act aims to achieve those objects by “empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking”. That is an express statement of a purpose (the Commissioner submits the sole purpose) for which an ADVO can be made.

74. Section 9(3) identifies nine matters which “Parliament recognises”. These concern the circumstances in which domestic violence occurs, those by whom and against whom it is perpetrated, and its effects. As the Commissioner submits, this provision reinforces the proposition that with respect to the making of ADVOs, the purpose of the Act is to protect people from domestic violence.

75. Section 9(4) provides: “A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section.” The Commissioner submits that this provision confirms that the objects referred to in section 9 were intended to constrain the exercise of the powers conferred by or under the Act. It is not necessary to determine the limits of the guidance for which subs (4) provides. It suffices for present purposes to observe that it would not ordinarily be consistent with the guidance in s 9(4) to exercise the s 73 power to revoke an ADVO if to do so would diminish, contrary to the object in s 9(1)(a), “the safety and protection of … persons, including children, who experience or witness domestic violence”.

76. Section 10 addresses the objects of the Act in relation to other forms of personal violence. Section 10(1), which corresponds to s 9(1), provides: “The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship.” Section 10(2)(a), which corresponds to s 9(2)(a), provides that the Act aims to achieve that object by “empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking”.

77. By s 15(1), an application may be made for an ADVO “for the protection of” a person or persons in certain relationships with the person against whom the order is made. This concept is picked up in the definition in s 3(1) of a “protected person”. There is no scope to apply for an ADVO that is not for the protection of a protected person.

78. The power to make an ADVO is conferred by s 16(1), which provides: “A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears” domestic violence, intimidation or stalking. The Commissioner submits that s 16(1) “imposes a condition that must be satisfied in all cases in which an ADVO is to be made.”

79. That statement requires some qualification. By s 16(2), in certain circumstances, including where the PINOP is a child, it is not necessary for the court to be satisfied that the person “in fact fears” those matters. More importantly for present purposes, by s 78(1) and (2), a court may make a final apprehended violence order “without being satisfied as to the matters that are prerequisites” to the making of the order, if the protected person and the defendant consent to the making of the order, and whether or not the defendant admits to any of the particulars in the application. However, the fact that s 78 permits the making of an ADVO where the defendant chooses not to contest the application and makes no admissions is at most neutral on the purpose for which such an order may properly be made. Section 78 says only that the court need not be affirmatively satisfied of the statutory preconditions, not that the court may make an ADVO for a purpose foreign to ensuring the safety and protection of a person. The section serves at least two obvious purposes directed to ensuring the safety and protection of persons exposed to domestic violence. By permitting a defendant to consent without admissions, it avoids the conflict involved in a contested application, and by avoiding a contest, it facilitates the making of final ADVOs as quickly as possible.

80. The Commissioner is thus right to emphasise the significance of the condition on the power in s 16(1). It is a strong indication that the purpose for which an ADVO may be made is that identified in s 9(2)(a).

81. Section 17(1) provides: “In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.” That this is the primary consideration is again consistent with the purpose identified in s 9(2).

82. However, the effect of an order on the defendant to the ADVO application is not irrelevant. As to whether an ADVO should be made at all, s 17(2) provides that the court is to consider “(b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children”, and “(c) the accommodation needs of all relevant parties, in particular the protected person and any children”. The Commissioner accepted that those provisions would require the court to consider any hardship to, and the accommodation needs of, the person the subject of the ADVO; but only, it was said, in an incidental way not unconnected to the protection of a person. The Commissioner did not dispute that hardship in s 17(2)(b) could include, as a relevant consideration, the effect of the ADVO under the Firearms Act.

83. As to the scope of any ADVO that is made, s 17(3) provides:

When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property.

84. The s 17(3) limitation on the power is required because of the potential width of an ADVO. Section 34(1) provides: “When making an apprehended violence order, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence.” The reference to ensuring the safety and protection of the person again reinforces the purpose of the power. Section 34(2) then provides an inclusive list of prohibitions and restrictions that an ADVO may impose. These extend not only to restrictions on the defendant’s conduct but also to prohibitions on the defendant’s access to particular places, even if the defendant has a legal interest in the place.

85. Section 18(1) corresponds to s 15(1). An application may be made for an apprehended personal violence order “for the protection of” one or more persons against another person. Again, there is no scope to apply for an order that is not for the protection of a protected person.

86. Section 19(1) confers power on a court to make an apprehended personal violence order. The power is subject to a condition which corresponds to that in s 16(1).

87. Section 20 makes provision in relation to apprehended personal violence orders that corresponds to that in s 17.

88. Section 36 provides for certain mandatory content of an ADVO. Every apprehended violence order is taken to specify that the defendant is prohibited from doing a number of things, such as stalking, harassing or intimidating the protected person.

89. Section 48(2) limits the persons who may apply for an ADVO. Unsurprisingly, the defendant to an application is not among those who may apply.

90. By s 79A(1), an ADVO remains in force for the period specified in the order or, if no period is specified in the order, a default period. In respect of defendants aged 18 or older, the default period is two years. Subsection (2) then provides: “The period specified is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person.” It is implicit in subs (2) that an ADVO will be made only where there is a need to ensure the safety or protection of a protected person; otherwise, the period of the order would be nil. That is consistent with the condition in s 16(1).

91. There is no reason to read the word “order” in s 79A(1) as excluding an order as extended pursuant to s 73. Save in the extreme case of ADVOs made for an indefinite period (for which s 79B provides), an order that is so extended will necessarily specify the period for which it is to remain in force. And by subs (2), that period may not be longer than is necessary to ensure the safety and protection of the protected person.

92. Section 79A(5) provides that the section is subject to s 73. That is a reference to the power in s 73(2) to vary an ADVO “by extending or reducing the period” of the order, that is, the default period or the period specified under s 79A: Wass at (2023) 111 NSWLR 224 [52]. However, that s 79A is subject to s 73 in that respect does not mean that s 79A has no bearing on what it is “proper” to order pursuant to s 73.

93. Again, the effect of the order on the defendant to the ADVO application is not irrelevant. Thus, by s 79A(3)(b) and (c), in forming the opinion as to the necessary period, the court is to consider “the circumstances of the defendant” and “any material that the court relied on under sections 16 and 17 in deciding to make an” ADVO.

94. Section 79, which corresponds with s 79A, makes provision for the duration of apprehended personal violence orders. Again, subs (2) provides that the period specified in the order is to be as long as is necessary in the opinion of the court to ensure the safety and protection of the protected person.

The purpose of the s 73 power to vary by extending an ADVO

95. The 73(1) power to vary an ADVO by extending the period of the order is distinct from the power to revoke an order.

96. It is convenient to begin with the s 16(1) power to make an apprehended domestic violence order. That power is conferred for the s 9(2)(a) purpose of protecting people from domestic violence, intimidation (including harassment) and stalking. That follows from, at least, the objects and purpose identified in s 9; the nature of the order that may be sought under s 15(1); the condition in s 16(1); the mandatory matters to be considered in s 17(1); and the limitations on the scope of an ADVO in ss 17(3) and 79A(2). The same is true, by reason of the corresponding sections, of the purpose of the power to make apprehended personal violence orders.

97. It follows that to purport to make a final apprehended violence order for a purpose unconnected with the protection of a protected person would be to exercise the s 16(1) power for a purpose other than that for which the power is conferred.

98. As noted above, the Commissioner submits that the purpose in s 9(2)(a) is the sole purpose for which an ADVO may be made. To the extent that this is a submission that the s 9(2)(a) purpose must be at least a substantial purpose of the exercise of the s 16(1) power (in the but-for sense discussed above), it should be accepted. To the extent that this is a submission that the presence of any additional substantial purpose would vitiate the exercise of the power, it is not necessary to reach that conclusion in order to determine the issues that arise in the present case. It is enough for present purposes to say that at least a substantial purpose of the exercise of the s 16(1) power to make an ADVO order must be the protective purpose in s 9(2)(a).

95. The question is then whether the power to extend an ADVO, which is expressed in the general language of s 73, is exercisable only for the same purpose as the power to make an ADVO. The Commissioner submits that extending an ADVO is “qualitatively indistinguishable” from making a new ADVO. She invokes the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

100. The principle as so expressed operates where a power conferred by general words might otherwise have given “the same power” as one conferred by a more restrictive provision. A power to extend is not strictly the same as a power to make a new ADVO. Indeed, central to the issues in the present case is the qualitative distinction between extending an extant order (which can then be revoked) and making a fresh order (leaving the extant order to expire).

101. However, the Commissioner is correct in submitting that the exercise of both powers puts an order into effect for a period when it would not otherwise be in effect. In that essential respect, the two powers perform the same function. As noted above, s 79A(2), which provides that the period specified in the order is to be as long as is necessary to ensure the safety and protection of the protected person, applies equally to orders extended pursuant to s 73. That is a strong indication of the purpose for which the power to extend may be exercised. More generally, the power to extend an ADVO, like the power to make one, is conferred for the purpose of achieving the objects in s 9(1). The s 73 powers, like the power in s 16(1), are subject to the command in s 9(4) that a court that exercises any power conferred by the Act in relation to domestic violence “must be guided in the exercise of that power by the objects referred to in this section” — in particular, ensuring the safety and protection of persons from domestic violence. The connection between the circumstances relevant to making an order and those relevant to extending an order (and hence the purpose of that power) is drawn in s 73(3), which authorises the court to decline to hear an application if “there has been no change in the circumstances on which the making of the order was based” and the application is in the nature of an appeal.

102. In light of those matters, the s 73(1) power to extend the period of an ADVO overlaps so substantially with the s 16(1) power to make a new order that the power to extend should be read as subject to the same conditions and restrictions, and to be exercisable for the same purpose, as the power to make a new order. The same is true with respect to apprehended personal violence orders. Otherwise, the conditions and restrictions which must be observed when making a new order could be circumvented in any case in which an order was on foot, including where the initial order had been made by consent and without admissions pursuant to s 78. Put another way, “in all the circumstances it [would not be] proper” to exercise the s 73 power to vary an order unless those same conditions and restrictions were met.

103. The primary judge at J[95] considered that a statement made in Majumdar v Director of Public Prosecutions [2024] NSWCA 117 suggested that an application to extend an ADVO “for the singular purpose of keeping alive a party’s statutory right to have the ADVO revoked does not amount to an improper purpose”. That case followed Wass. Mr Majumdar sought to have an apprehended violence order revoked so that he could accept an offer to join the Australian Army as an officer: at [18]. Gleeson JA (Mitchelmore and Adamson JJA agreeing) held that there is no power to revoke an apprehended violence order where the order has expired at the time the application is heard by the court, even if the application was made before the order expired: [46]. One of the matters to which his Honour referred was that “it was open to the applicant to make a variation application under s 73(2)(a) of the Act, before the AVO had expired, to extend the period of the AVO until the court dealt with the revocation application”: [31]. That statement was made in passing, as one of two reasons for rejecting the proposition that the Magistrate had intentionally fixed the hearing date for the revocation application after the AVO was to expire without explicitly extending it. Gleeson JA had already held that that issue did not give rise to any potential jurisdictional error on the part of the District Court and was not the subject of any of the relief sought: at [27]-[28]. His Honour’s statement was, as the primary judge in the present case correctly recognised, obiter. The proper purpose of exercising the s 73 power to extend was not in issue in Majumdar; no such application had been made. Majumdar does not assist the first respondent.

104. In the result, an order purporting to extend an ADVO that is not made for a substantial purpose of protecting people from domestic violence, intimidation (including harassment) and stalking is not made for a proper purpose.

105. Consistently with s 78, the court may exercise the s 73 power to extend an ADVO by consent and without admissions. But the court may do so only for the substantial purpose of ensuring the safety and protection of a protected person and, by ss 17(3) and 79A(2), only for a period and only in such respects as are necessary to achieve that object.

106. The Commissioner made a further argument about the power to extend, based not on the absence of a proper purpose but rather on the presence of a specific impermissible purpose. The Commissioner submitted that in light of the 2016 amendments, it was impermissible for the court to “fashion for itself a power of the very kind held in Wass and Majumdar to have been legislatively denied to the court” by extending an ADVO so that it would remain extant at the time of revocation. It was submitted that this “circumvented the deliberate legislative choice to make it impossible to revoke an expired apprehended violence order, and that, in itself, is improper”: (App Tcpt p 8(29)) Although this argument is attractive, especially where the purpose of the revocation is to disengage the Firearms Act prohibition, the language of “a power of the very kind” begs the question of the nature of a power to extend compared to a power to revoke an expired order. In light of the conclusions reached above, it is not necessary to decide the issue.

The purpose of the s 73 power to revoke an ADVO

107. While the effect of an order for revocation which it is otherwise “in all the circumstances … proper” to make is to disengage the 10-year prohibition in s 11(5)(c) of the Firearms Act, it does not follow that it is proper to make an order for the purpose, without more, of disengaging that prohibition.

108. The legislative history of the CDPV Act discussed in Wass demonstrates that Parliament enacted and amended the CDPV Act, and in particular the provisions governing the power to revoke an ADVO, with an eye to s 11(5)(c) of the Firearms Act. Given the relationship between making or revoking an ADVO under the CDPV Act on the one hand, and engaging or disengaging the Firearms Act prohibition on the other, s 11(5)(c) of the Firearms Act and ss 16 and 73 of the CDPV Act should be seen as forming part of an integrated legislative scheme to secure the objects in s 9(1). That being so, ss 16 and 73 of the CDPV Act should be construed having regard to the operation of s 11(5)(c).

109. In particular, Parliament should be understood to have intended that the making of an ADVO pursuant to s 16(1) would engage the prohibition in s 11(5)(c) of the Firearms Act not only for the duration of the ADVO but also for the period of 10 years following its expiry.

110. The 10-year prohibition in s 11(5)(c) is not merely a default position. That might have been the case if the court had been given a discretionary power not to impose the prohibition as part of the making of a final ADVO. But the court is given no power at the time it makes an ADVO to fashion the order in such a way that the ADVO does not engage the prohibition in s 11(5)(c). Nor is the court given any power, during the period of an ADVO, to make an order that disengages the s 11(5)(c) prohibition while leaving the ADVO on foot. Only an order revoking the ADVO in its entirety has that effect, and such an order may only be made pursuant to s 73 if the court is otherwise “satisfied that in all the circumstances it is proper to do so”. It is also notable that Parliament chose to impose the 10-year prohibition without requiring any defendant-specific assessment that the defendant poses a continuing risk to the safety or protection of any person after expiry of the ADVO. Indeed, the 10-year period commences only upon expiry of the ADVO, which would ordinarily involve the proposition that there was not thought to be an ongoing risk to the safety or protection of, at least, the PINOP.

111. That Parliament intended the 10-year prohibition in s 11(5)(c) to be a continuing consequence of the original making of the ADVO is confirmed by the strong parallel between the prohibition in s 11(5)(c) and that in s 11(5)(b), and by the legislative history of the two prohibitions.

112. Section 11(5)(b) provides that a licence must not be issued to a person who “has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law”. Regulation 5(1) of the Firearms Regulation 2017 (NSW) prescribes a wide range of offences for the purposes of s 11(5)(b), including offences relating to firearms, drugs, and violence.

113. As noted above, the prohibition in s 11(5)(c) has been part of the Firearms Act since its enactment in 1996. However, the substance of s 11(5)(c) was carried over from a provision that was first introduced into the predecessor Firearms Act 1989 (NSW) in 1992 as s 25(1)(b1). After the 1992 amendment, s 25(1) of the 1989 Act relevantly provided:

(1)   A licence must not be issued to a person who it appears to the Commissioner of Police after making such inquires as are reasonably practicable:

…

(b)    has at any time or, if the regulations so provide, within a specified period before the application for the licence was made, been convicted in New South Wales or elsewhere of a prescribed offence, whether the offence was committed before or after the commencement of this section and whether or not the offence is an offence under New South Wales law; or

(b1)    is subject to an apprehended violence order or who has at any time within 10 years before the application for the licence was made been subject to such an order (other than an order which has been revoked);

…

114. Regulation 21(1) of the Firearms Regulation 1990 (NSW) prescribed a range of offences for the purposes of section 25(1)(b) of the 1989 Act, including offences relating to narcotics, violence and firearms, and specified a period of 10 years.

115. In the second reading speech in the Legislative Assembly, the Attorney General said of the 1992 amendments that introduced the new s 25(1)(b1):

The legislation particularly reinforces the Government's absolute commitment to protect women and children who can be at risk from the misuse of firearms in situations of domestic violence.

…

Once a final apprehended violence order is issued there will be no right of appeal against revocation of the shooter licence. Persons who have been subject to an apprehended violence order made against them at any time within 10 years before they apply for a firearms licence or permit will be prohibited from obtaining any licence or permit unless the apprehended violence order has been specifically revoked. Thus an apprehended violence order will have the same effect as a conviction for any of the proscribed [sic] offences currently included in the firearms legislation.

(New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 March 1992 at 2156; emphasis supplied.)

116. The two prohibitions are now found in s 11(5)(b) and (c) of the 1996 Act. The 10-year prohibition in s 11(5)(c) is a continuing consequence of the making of a final ADVO in the same way that the 10 year prohibition in s 11(5)(c) is a continuing consequence of a conviction. Parliament’s clear intention is that once a final ADVO is made, the s 11(5)(c) prohibition is to remain in place for 10 years. The only exception is where a court is otherwise “satisfied that in all the circumstances it is proper to” revoke the ADVO pursuant to s 73 of the CDPV Act.

117. That being so, the purpose of revoking an ADVO in order to disengage the prohibition in s 11(5)(c) of the Firearms Act is a purpose that would defeat Parliament’s intention and the operation of its legislative scheme. Such a purpose is alien to the purposes for which Parliament conferred the power to revoke in s 73.

118. The first respondent submitted that the intention of the Review and the 2016 amendments which followed it was only to cure the mischief of revoking expired orders. The submission was to the effect that since neither the Review nor the Explanatory Memorandum addressed the revocation of orders that had not expired, it followed that an order revoking an extant ADVO for the purpose of disengaging the Firearms Act prohibition should be regarded as made for a proper purpose. That conclusion does not follow. There may be many proper purposes for revoking an extant ADVO; hence the power to revoke. That does not mean that every purpose is proper. As the Attorney General made clear in the Legislative Assembly, the mischief to which the 2016 amendments were directed was revoking an expired ADVO “in order to avoid the consequences” flowing from the order’s existence. If anything, the policy of anti-avoidance which informed the 2016 amendments is consistent with the analysis of purpose above.

119. Grounds 1 and 2 in the first respondent’s notice of contention, although expressed in terms of the motivation and purpose behind the first respondent’s application to extend the ADVO and thereafter to have it revoked, were ultimately directed to establishing that the Magistrates’ decisions were made for a proper purpose, namely, “the purpose of avoiding the statutory prohibition within section 11(5)(c)”. The first respondent pointed (a) to the fact that a defendant is permitted to apply for revocation (ss 72(d) and 72A(2)); and (b) to ss 17(2)(b), 20 and 79A(3), which require the court to have regard to the interests of the defendant. The first respondent submitted that in light of those matters, in considering all the circumstances for the purposes of s 73, the court must balance the interests of the defendant and the PINOP. That submission suggests that the CDPV Act approaches the interests of those persons on an equal footing, which is a proposition its terms cannot support. Be that as it may, the fact that in making an order the court must take into account its effect on the defendant does not make it proper to make an order for the purpose of defeating the legislative scheme.

120. The s 73 power to revoke is engaged only if the court is “satisfied that in all the circumstances it is proper to do so”. Given that s 9(4) requires that the exercise of the power to revoke be guided by the object in s 9(1)(a), that consideration must be central to any decision to revoke an ADVO. As noted above, it would not ordinarily be consistent with the guidance in s 9(4) to exercise the s 73 power to revoke an ADVO if to do so would diminish “the safety and protection of … persons, including children, who experience or witness domestic violence”.

121. That is the context in which one further submission made in oral argument should be noted. The Commissioner submitted that to “exercise the power, even of revocation, for a purpose unconnected with the protection of a protected person is extraneous to the purposes of this Act, and so it follows here that to revoke for the purpose of disengaging the firearms prohibition was not something that this Act permitted.” (App Tcpt p 10(5)) The difficulty with the premise is the scope of the words, “for a purpose unconnected with the protection of a protected person”. If they mean only that the power to revoke an ADVO must be exercised consistently with the object in s 9(1)(a), the statement is not objectionable. But if the submission is that the power to revoke cannot be exercised except for the purpose of protecting a protected person, that would appear to deny the power to revoke an ADVO not only where there was no longer any risk to the PINOP, but even in cases of mistaken identity. If that is the submission, it should not be accepted.

Disposition

122. Leave to appeal should be granted and the appeal should be allowed. The issues are of wide potential relevance given that, as was said in Wass, many applications are made under the CDPV Act every day in New South Wales, and the decision below is affected by error.

The 19 December 2022 purported extension

123. The 19 December 2022 order purporting to extend the ADVO was not a proper exercise of the s 73 power to extend the period of an ADVO for two independent reasons, either of which suffices to vitiate the exercise of power.

124. First, an order purporting to extend an ADVO that is not made for a substantial purpose of protecting people from domestic violence, intimidation (including harassment) and stalking is not made for a proper purpose. Here, it was no part of the purpose of the Magistrate’s decision purporting to extend the ADVO to protect the first respondent’s son, or anyone else, from the risk of domestic violence. On 19 December 2022 no one — not the prosecutor, not the first respondent, not the PINOP and not the Magistrate — was suggesting that the first respondent presented any continuing risk to the safety or protection of the PINOP or that the period of the ADVO should be extended for that purpose. Contrary to s 79A(2), the period for which the ADVO was purportedly extended (until the revocation application was determined) had nothing to do with what was necessary to ensure the safety and protection of a protected person. That was not the purpose of the order.

125. Secondly, the purpose of revoking an ADVO in order to disengage the prohibition in s 11(5)(c) of the Firearms Act is not a proper one. Here, at least a substantial purpose of the Magistrate’s decision purporting to extend the ADVO was to keep it on foot so that it could be revoked in order to disengage the prohibition in s 11(5)(c) of the Firearms Act. That was not a proper purpose for the exercise of the power to extend.

126. Since the purported exercise of the power to extend the ADVO on 19 December 2022 was actuated by an alien purpose, that decision was void. The ADVO expired on its own terms on 11 January 2023. There was no ADVO on foot to be revoked on 22 August 2023 and, in light of Wass, no power to revoke an expired order. On that basis, the 22 August 2023 decision should be quashed.

The 22 August 2023 purported revocation

127. Even if that were not so, and the ADVO had remained on foot on 22 August 2023, at least a substantial purpose of the Magistrate’s decision that day purporting to revoke the ADVO was to disengage the Firearms Act prohibition.

128. For the reasons given above that was an alien purpose.

129. The primary judge, Hamill J, rightly acknowledged at J[123] that the first respondent’s purpose (i.e., “to avoid the consequences of the ADVO on his capacity to restore his firearms licence”) “was extraneous to the objects of the Act”. That implies an acceptance of the proposition that if the Magistrate’s decision was actuated by that alien purpose, it would have been an improper one. Where his Honour erred was in failing to infer at J[131]-[136] that, in the circumstances of this case, that was at least a substantial purpose of the Magistrate’s decision.

127. For this reason, too, the 22 August 2023 decision should be quashed.

Costs

131. The first respondent submitted that in the event the appeal succeeded, there should be no order as to the costs of the appeal or the proceedings before the primary judge. The Commissioner consented to there being no order as to costs.

132. The costs order in favour of the first respondent made below should be set aside; there should be no order as to costs below; and there should be no order as to costs in this Court.

133. The first respondent also sought an indemnity certificate pursuant to s 6 of the Suitors’ Fund Act 1952 (NSW). The Commissioner did not oppose the first respondent’s application for a certificate. There was some ambiguity about whether the first respondent ultimately sought one certificate or two.

134. The power in 6(1) to grant the first respondent a certificate is engaged “If an appeal against the decision of a court … to the Supreme Court on a question of law or fact … succeeds.” By s 2(1), “Appeal” includes “any motion for a new trial and any proceeding in the nature of an appeal.” The proceeding in the Common Law Division was for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), and for a declaration. I agree, for the reasons given by Basten AJA, that that the words “any proceeding in the nature of an appeal” are apt to include proceedings by way of judicial review, and that what was said in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [57] should not be taken to cast doubt on Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN(NSW) 380. The successful appeal to this Court against the primary judge’s decision also engages the power in s 6(1): Mir Brothers Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491.

135. As no order for costs should be made against the first respondent, if a certificate were to be granted no entitlement would arise under s 6(2)(a) (which concerns indemnity against adverse costs orders): see New South Wales Land and Housing Corporation v Quinn (No 2) [2017] NSWCA 34 at [5]. Nevertheless, as was held in Robinson v Zhang [2005] NSWCA 439 (Basten JA, Barr and Hall JJ agreeing) at [38], and followed in Quinn, s 6(2)(b) envisages that part at least of the first respondent’s own costs may be recovered from the Fund, including in circumstances where no amount is payable to another party. Section 6(2)(b) extends the entitlement to costs of “any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted”.

136. The power in s 6 is discretionary. The purpose of the Suitors Fund Act was described in Mir Bros at 493 as “the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction”. In this case the issues were not easy, and there are no particular considerations which would warrant withholding a certificate in the exercise of the Court’s discretion. The first respondent should be granted a certificate.

Orders

137. The orders I propose are as follows.

1. Grant leave to appeal and direct the appellant to file a notice of appeal within seven days.

2. Appeal allowed.

3. Orders 1 and 2 made by Hamill J on 23 May 2024 be set aside.

4. In lieu thereof:

1. set aside the order of Olischlager LCM made on 22 August 2023 in matter number 2021/00306721;

2. declare that the apprehended domestic violence order made against the first respondent on 12 July 2022 expired on 11 January 2023;

3. make no order as to costs of the proceedings in the Common Law Division.

5. Grant a certificate under the Suitors’ Fund Act 1951 (NSW) to the first respondent.

6. There otherwise be no order as to the costs of the proceedings in this Court.

138. BASTEN AJA: I agree with McHugh JA that the appeal in this matter should be allowed and the orders he proposes should be made. The primary judge was in error in not making the orders sought by the Commissioner in the Common Law Division. ^[1] Subject to the following, I also agree with the reasons given by McHugh JA.

     1. Commissioner of Police v Murphy [2024] NSWSC 617 (Hamill J).

Nature of proceedings

139. The proceedings from which the appeal was brought involved an application by the Commissioner of Police for orders by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), together with a declaration as to the date on which an apprehended domestic violence order (ADVO) made against Peter Michael Murphy (the first respondent) had expired. Extensions of the ADVO, on the application of the first respondent, the defendant in the Local Court, to a time after it would have expired according to its terms, were, on the Commissioner’s argument, also invalid, although no relief was sought with respect to them.

140. Although the submissions of both parties were couched in the language of improper purpose, arguably there is an antecedent issue. Satisfaction as to the engagement of the statutory purpose is a precondition to the making of a valid order. Thus, s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Domestic Violence Act) confers power on a court to make an ADVO only if satisfied on the balance of probabilities that a person holds, on reasonable grounds, the relevant fear. Absent a validly formed state of satisfaction as to that matter, the power to make the order is not engaged. A purported state of satisfaction is reviewable on the grounds identified by Gibbs J in Buck v Bavone. ^[2]

     2. (1976) 135 CLR 110 at 118-119; [1976] HCA 24; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[136], [145] (Gummow J).

141. If that state of satisfaction were not articulated, as it was not in the present case, there is no need to look further for the purposes for which the magistrate purported to act. That issue did not arise unless the statutory precondition to the exercise of the power was engaged. In the present case, where neither party suggested to the magistrates that the ADVO should be extended or continued on a basis conforming with the terms of s 16, and there was no reason for the magistrate to make a finding in those terms, that was sufficient to dispose of the proceedings.

Nature of improper purpose

142. As McHugh JA rightly observes, the term “improper purpose”, as used in the context of statutory powers, means no more than a purpose which is foreign to the purpose for which the power is conferred. It does not imply any moral culpability on the part of the officer who exercises the power for such a purpose. The exercise of judicial review in the present case did not require determination of whether there had been abuse of public power, duty or authority in circumstances where the officer knew or was recklessly indifferent to the limits or restraints on public power, being issues which might arise if the Court were considering a claim for misfeasance in public office. By way of contrast, tortious liability of the government, whether for misfeasance or in negligence, does not depend on the invalidity of the conduct of its officer.

143. Two points flow from this consideration. First, the exercise in the present case involves an objective analysis of the orders made by reference to the circumstances in which they were made. It does not involve an analysis of the subjective intentions, motives or purposes of the magistrate.

144. There was no discussion as to whether the basis of judicial review in the present case was jurisdictional error or error of law on the face of the record. Either would be satisfied if the orders were made for an improper purpose. A magistrate who made an order for an improper purpose would exceed the statutory power, a circumstance which may be characterised as jurisdictional error. The error may also be identified as on error of law on the face of the record, the record including the application before the magistrate, the orders in fact made and the reasons given for making the orders. ^[3]

     3. Supreme Court Act, s 69(4).

145. Secondly, had the magistrates had mixed purposes, the Commissioner submitted that the Court would be satisfied that the improper purpose was “a substantial purpose”. However, the term “substantial” has been used in rejecting a submission that the improper purpose must be the sole purpose of the officer or body exercising the power. Thus, in Thompson v Council of the Municipality of Randwick ^[4] the High Court stated, rejecting the need to find a sole improper purpose, “it is still an abuse of the Council’s powers if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale”. That language was adopted in Corporation of the City of Enfield v Development Assessment Commission, ^[5] as engaging one of a number of bases upon which the South Australian Supreme Court could review the validity of an opinion formed by the Commission.

     4. (1950) 81 CLR 87 at 106 (Williams, Webb and Kitto JJ); [1950] HCA 33.

     5. (2000) 199 CLR 135; [2000] HCA 5 at [30] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

146. Different language is used in different contexts, but the intention may be clarified by reference to an “actuating purpose” or a purpose which was causative. For example, in Whitehouse v Carlton Hotel Pty Ltd,^[6] Mason, Deane and Dawson JJ, in dealing with an allotment of shares made for an impermissible purpose, stated:

“As a matter of logic and principle, the preferable view would seem to be that, regardless of whether the impermissible purpose was the dominant one or but one of a number of significantly contributing causes, the allotment will be invalidated if the impermissible purpose was causative in the sense that, but for its presence, ‘the power would not have been exercised’.”

(The internal quote was a reference to the judgment of Dixon J in Mills v Mills. ^[7] )

6. (1987) 162 CLR 285 at 294; [1987] HCA 11.

7. (1938) 60 CLR 150 at 186; [1938] HCA 4.

147. Labels are apt to be misleading and no particular formulation is necessarily better than another, as the joint reasons in Whitehouse noted after making the observations set out above. Further, context is often important and should be taken into account when seeking coherence within legal principles. For example, in preserving the institutional reputation of courts exercising judicial power, a relatively high standard of conduct is required to avoid a reasonable apprehension of bias: certainly the established test does not require a finding of possible prejudgment to be an actuating cause of a particular outcome. ^[8] There is a relationship between disqualifying factors and the identification of an impermissible purpose.

     8. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

148. In the present case, the existence of an actuating impermissible purpose is not in doubt. These observations are intended only to resist the adoption of a particular test of causal connection where that course is not necessary.

Suitors’ Fund Act certificate

149. There is no doubt that a Suitors’ Fund Act certificate may appropriately be granted to the unsuccessful first respondent with respect to the costs of the appeal. In my view, the certificate will also cover the prescribed portion of the first respondent’s legal costs of the trial, pursuant to s 6(2)(b)(ii) of the Suitors’ Fund Act 1951 (NSW), as an appeal “in a sequence that preceded the appeal in respect of which the certificate was granted”.

150. It is true that the proceedings in the Common Law Division were by way of judicial review pursuant to s 69 of the Supreme Court Act, although the application for a declaration did not invoke that section, and, if statutory authority were necessary, may have relied upon s 75 of the Supreme Court Act. However, pursuant to s 2(1) of the Suitors’ Fund Act, the term “appeal” includes “any proceeding in the nature of an appeal”. That language is apt to include proceedings by way of a stated case. It is also apt to include proceedings by way of judicial review, the purpose of which is to challenge the validity of an order made by a lower court. Authority supports this conclusion. (The appeal must be against the decision of a “court”, but is not necessary to consider the scope of that term as the Local Court self-evidently qualifies.)

151. Prior to the enactment of the Supreme Court Act, the supervisory jurisdiction of the Supreme Court was part of its inherent jurisdiction as a superior court of record. In Ex parte Parsons; Re Suitors’ Fund Act ^[9] the Full Court held that an application for a common law writ of prohibition and for a writ of certiorari fell within the general meaning of the word “appeal” in the Suitors’ Fund Act. Street CJ noted the statement of Westbury LC in Attorney General v Sillem ^[10] that:

“An appeal is a right of entering a superior court and invoking its aid and interposition to address the error of the court below.”

Street CJ concluded:

“On every view of the language of the Act, I think it is clear that this is a ‘proceeding in the nature of an appeal,’ and therefore is included in the word ‘appeal’ as it is used in the Act.”

9. (1952) 69 WN(NSW) 380-381 (Street CJ, Owen and Herron JJ concurring).

10. (1864) 10 HL Cas 704 at 724.

152. In Ex parte Neville; Re Suitors’ Fund Act 1951-1960,^[11] Maguire J held that a successful challenge to a decision of the Chairman of Quarter Sessions pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) was “at least” a proceeding in the nature of an appeal. ^[12]

     11. [1965] 2 NSWR 481;(1966) 85 WN(Pt 1)(NSW) 372.

     12. Ex parte Neville at 374.

153. No doubt is cast upon the correctness of either of those judgments (and in particular the judgment of the Full Court in Ex parte Parsons) by a dictum of Beazley P in Henderson v QBE Insurance (Australia) Ltd ^[13] stating that “the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69”.

     13. [2013] NSWCA 480 at [57] (Tobias AJA agreeing).

154. First, the comment was arguably obiter, identifying a “further problem with the application of s 6”, the President having concluded that a review of the decision of a proper officer did not constitute a review of a decision of a “court”: at [56]. Secondly, there was no reference to the definition of “appeal” in s 2(1). Thirdly, there was no reference to contrary authority in this Court. ^[14] The observation should be disregarded.

     14. In addition to Ex parte Parsons, see Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644, 658B (Priestley and Handley JJA, Mahoney JA agreeing); Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337 at [9] (Giles JA, Sheller and Ipp JJA agreeing); Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 at [110] (in my reasons); see also Re Oscar [2002] NSWSC 887 at [8],[9] (Hamilton J) and other cases referred to therein at [9].

155. Not only does the definition of “appeal” reflect the meaning adopted in Attorney General v Sillem, but principle supports the approach adopted in Ex parte Parsons. The rights of appeal conferred on both parties under the Domestic Violence Act, s 84, appear not to cover the circumstances which arose in the present case in which the prosecutor sought review. Appeals by prosecutors from decisions of the Local Court may also be made in criminal matters pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 (NSW). Whether that section applied to the orders under review in the present case need not be addressed. It is sufficient to note that there were statutory rights of appeal covering many similar orders but arguably not those made in the present case.

156. The consequences for an individual who has been brought to Court and had been successful in the Local Court where that decision was later set aside would be highly arbitrary if he or she were unable to recover costs under the Suitors’ Fund Act because the prosecutor had adopted a procedure by way of judicial review, rather than appeal, whether that was necessary or not. Neither the statutory language, nor the context, require such an outcome.

157. In my view, the first respondent’s certificate under the Suitors’ Fund Act will extend to his costs of the proceedings in the Common Law Division.

**********

Endnotes

Amendments

30 January 2025 - In [129] “an proper” amended to “an improper”.

Decision last updated: 30 January 2025