Franks v Franks - [2012] NSWCA 209

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Franks v Franks [2012] NSWCA 209
Hearing dates: 9 July 2012
Decision date: 09 July 2012
Before: Basten JA at 1;
Barrett JA at 26;
Hoeben JA at 27
Decision:
Summons dismissed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - procedural fairness - application for apprehended violence order before Local Court - solicitor for applicant sought but did not press adjournment - applicant alleged procedural unfairness - whether applicant was aware of time and place of hearing - whether error identified in failure to grant adjournment
PROCEDURE - apprehended violence orders - appeal from Local Court to District Court - protected person sought to appeal against ancillary property recovery order - whether ancillary property recovery order falls within expanded meaning of apprehended violence order - whether application for apprehended violence order is a criminal proceeding - whether right of appeal available - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84; Local Court Act 2007 (NSW), ss 44 and 70
Legislation Cited: Crimes Act 1900 (NSW), s 4; Pt 15A
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 37, 84, Pts 4, 5, 8
District Court Act 1973 (NSW), s 176; Pt 4
Local Court Act 2007 (NSW), ss 44, 70; Pts 3, 4
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Garde v Dowd [2011] NSWCA 115
Spanos v Lazaris [2008] NSWCA 74
Category: Principal judgment
Parties: Gregory Franks (Applicant)
Brad Franks (First Respondent)
District Court of NSW (Second Respondent)
Attorney General of NSW (Amicus Curiae)
Representation:
Counsel:

Applicant in person
Submitting appearance (First Respondent)
Ms B Baker (Amicus Curiae)
Solicitors:
Applicant self-represented
Byrnes & Cox Lawyers (First Respondent)
Crown Solicitor's Office (Amicus Curiae)

File Number(s): CA 2011/206888
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-02-16 00:00:00

Before:

Ellis DCJ

File Number(s):

DC 2010/351248

Judgment

BASTEN JA: On 25 November 2010 the Local Court at Port Macquarie made an order allowing the respondent in this Court to enter identified premises to remove his personal property. The order, known as an "ancillary property recovery order" was an ancillary to an apprehended violence order made by the same Court against the respondent, in favour of his brother, the present applicant. The applicant challenges the validity of the property recovery order.

The applicant appealed against the property recovery order made by the Local Court to the District Court. On 16 February 2011 Ellis DCJ dismissed the appeal. There is no right of appeal from the order of the District Court and the challenge to this Court is brought in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Franks v Franks

Details

AGLC: Franks v Franks [2012] NSWCA 209
Case: [2012] NSWCA 209
Decision Date: 09 July 2012

CaseChat Overview and Summary

The proceedings concerned an application for an apprehended violence order (AVO) before the Local Court. The applicant alleged procedural unfairness, claiming they were unaware of the time and place of the hearing, and that an error occurred in the failure to grant an adjournment. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Barrett and Hoeben JJA.

The primary legal issues before the Court of Appeal were whether the applicant had been afforded procedural fairness, specifically in relation to their awareness of the hearing and the refusal of an adjournment. Additionally, the Court considered whether an ancillary property recovery order made in the context of an AVO application fell within an expanded meaning of an AVO for the purposes of an appeal, and whether an application for an AVO constituted a criminal proceeding for the purposes of determining the availability of a right of appeal under the relevant legislation.

The Court reasoned that the applicant's solicitor had been aware of the hearing time and place and had sought, but not pressed, an adjournment. This indicated that the applicant, through their legal representative, had sufficient notice. Furthermore, the Court determined that an ancillary property recovery order did not constitute an AVO for the purposes of an appeal under section 84 of the *Crimes (Domestic and Personal Violence) Act 2007* (NSW). The Court also found that an application for an AVO is not a criminal proceeding in the relevant sense for the purposes of an appeal under sections 44 and 70 of the *Local Court Act 2007* (NSW).

The summons was dismissed.

Orders

Orders of the court

Summons dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Franks v Franks [2012] NSWCA 209
Hearing dates:	9 July 2012
Decision date:	09 July 2012
Before:	Basten JA at 1; Barrett JA at 26; Hoeben JA at 27
Decision:	Summons dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - procedural fairness - application for apprehended violence order before Local Court - solicitor for applicant sought but did not press adjournment - applicant alleged procedural unfairness - whether applicant was aware of time and place of hearing - whether error identified in failure to grant adjournment PROCEDURE - apprehended violence orders - appeal from Local Court to District Court - protected person sought to appeal against ancillary property recovery order - whether ancillary property recovery order falls within expanded meaning of apprehended violence order - whether application for apprehended violence order is a criminal proceeding - whether right of appeal available - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84; Local Court Act 2007 (NSW), ss 44 and 70
Legislation Cited:	Crimes Act 1900 (NSW), s 4; Pt 15A Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 37, 84, Pts 4, 5, 8 District Court Act 1973 (NSW), s 176; Pt 4 Local Court Act 2007 (NSW), ss 44, 70; Pts 3, 4 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Garde v Dowd [2011] NSWCA 115 Spanos v Lazaris [2008] NSWCA 74
Category:	Principal judgment
Parties:	Gregory Franks (Applicant) Brad Franks (First Respondent) District Court of NSW (Second Respondent) Attorney General of NSW (Amicus Curiae)
Representation:	Counsel: Applicant in person Submitting appearance (First Respondent) Ms B Baker (Amicus Curiae) Solicitors: Applicant self-represented Byrnes & Cox Lawyers (First Respondent) Crown Solicitor's Office (Amicus Curiae)
File Number(s):	CA 2011/206888
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-02-16 00:00:00 Before: Ellis DCJ File Number(s): DC 2010/351248