Harb v Stapleton

[2003] NSWSC 650

CITATION:	Harb v Stapleton and Ors [2003] NSWSC 650 revised - 28/07/2003
HEARING DATE(S):	08/07/03
JUDGMENT DATE:	23 July 2003
JUDGMENT OF:	Shaw J at 1
DECISION:	(1) That Carmel Forbes be joined as a party to these procedings; (2) That the summons be dismissed; (3) That the plaintiff pay the costs of the defendants.
CATCHWORDS:	Judicial Review - whether Apprehended Violence Orders validly issued - whether order for detention valid - whether Magistrates should be restrained from issuing orders
LEGISLATION CITED:	Crimes Act 1900 (NSW) Part 15A; Mental Health (Criminal Procedure) Act 1990 (NSW);
PARTIES :	Raymond George Harb - Plaintiff Lisa Veronica Stapleton - First defendant Attorney General for the State of New South Wales - Second defendant
FILE NUMBER(S):	SC 11065/03
COUNSEL:	In Person - Plaintiff A Johnson - Second defendant
SOLICITORS:	In Person - Plaintiff Crown Solicitors - Second defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

23 July 2003

11065 of 2003


Raymond George Harb (Plaintiff)

v

Lisa George Stapleton (First defendant);

Attorney General for the State of New South Wales (Second defendant)
JUDGMENT

1 Shaw J: By summons filed on 5 May 2003 the plaintiff claims an order that the first defendant ‘breached her duty as a Magistrate in the making of a fraudulent Apprehended Violence Order’. The plaintiff seeks further orders that:

2. The same Magistrate made an illegal order to detain me in hospital.
3. To stop the issuing of illegal AVO by the above Magistrate.

2 On 23 June 2003 Greg James J allowed the second defendant to be joined to the proceedings to act as a contradictor on the hearing of the summons.

3 It should be noted that while the plaintiff’s summons names the first defendant, his challenge seems to be to a decision of the Local Court differently constituted. Investigations by the Attorney General have revealed that the decision challenged by the plaintiff seems to have been made by Magistrate Carmel Forbes. By letter dated 9 July 2003, Ms Johnson, who appeared for the second defendant, informed the Court that Magistrate Forbes would consent to be joined in the proceedings, submitting to an order made except for costs. In light of those developments, I propose to order that Magistrate Forbes be joined as a defendant to these proceedings.

4 At the commencement of the hearing the plaintiff indicated that he was unhappy with the incomplete state of the evidence he proposed to tender. He said that he required the complete file from the Manly Local Court relating to his appearances in that Court including all transcripts, documents and exhibits kept by that Court. He sought an adjournment of the proceedings to subpoena that Court and also several police officers who he asserted had arrested him illegally. He also sought to subpoena evidence from the protected persons specified in the Apprehended Violence Orders mentioned in the summons to provide this Court with evidence that they have never sought protection from the plaintiff.

5 On that application, the Attorney submitted that I should not grant the plaintiff an adjournment for two reasons:

1. the adjudication of the appellant’s summons for prerogative relief relating to a particular order does not require the full record of the Manly Local Court to be before the Court; and
2. that an adjournment would be conditional upon the plaintiff providing an amended summons that more accurately particularises his claim but that such an order would be futile because the proceedings are inherently flawed and should be dismissed.

6 Given that these submissions had some force, I received evidence and heard submissions from the plaintiff on the summons without deciding whether to grant an adjournment.

7 There are some fundamental problems with the summons and since the evidence sought by the plaintiff could not reasonably affect the adjudication of the issues he has canvassed, I am not persuaded that the adjournment should be granted. Further, I am satisfied that the plaintiff’s summons must be dismissed with costs and my reasons for this conclusion are as follows.

8 The essence of the plaintiff’s claim is that the Apprehended Violence Orders issued or confirmed by Magistrates in the Local Court were invalid or illegal. He submits that since he had no intention to intimidate one of the protected persons named in the Apprehended Violence Order -but rather, intended to ‘intimidate’ (a word used by the plaintiff in his submissions to the Court) her mother- the initial Interim Apprehended Violence Order issued in her name, and not in the name of her mother, was invalid.

Apprehended Violence Orders

9 The Apprehended Violence Order was a response to the inability of the Courts to protect persons, but particularly women and children, against future acts of violence. Despite some views to the contrary, such reform was intended to be beneficial (see N. Gouda, ‘The AVO Backlash’ (2000) 38 Law Society Journal 63; and my own article at page 64 of that journal; both reacting to M. McMillan, ‘Should we be more apprehensive about Apprehended Violence Orders?’ (1999) 37 LSJ 48 and T Nyman, ‘Apprehended Violence: Industry or Disease’ (1999) 37 LSJ 52).

10 An initial purpose, expressed by the government introducing the reforms, was to ‘eliminate the scourge of domestic violence in New South Wales’ (Mr N.K. Wran, QC MP, Hansard, 9 November 1982 at 2366). It was soon recognised by Parliament that the availability of the order should not be limited to domestic relationships.

11 Accordingly, pursuant to Part 15A of the Crimes Act 1900 (NSW) orders made by made on behalf of any person seeking protection from a reasonable apprehension of violence. Such orders may be in the context of a domestic relationship (Division 1A of Part 15A of the Act) and is known as an ‘apprehended domestic violence order’ or such order may be in the context of a personal relationship (Division 1B of Part 15A of the Act) and is an ‘apprehended personal violence order’.

12 Importantly, s 562X(3) of the Act provides that an order is not invalid if made pursuant to one division when it should have been made in another. To the extent, therefore, that the plaintiff submits that an order was invalid since he was wrongly subject to an apprehended domestic violence order rather than an apprehended personal violence order, that submission must be rejected.

Facts

13 On 22 May 2002 an apprehended personal violence order was made ex parte against the plaintiff to protect a particular person. Magistrate Moore refused an application to extend the order to the protected person’s family since he was not satisfied that such application had been served on the plaintiff. Magistrate Moore put a limit on the plaintiff approaching the protected persons home since the parents were also residing there as a way of overcoming this difficulty.

14 However, it would seem that by administrative oversight, the plaintiff was later served with an order that included the protected person’s parents. This was an error but it did not invalidate the order. The Act provides mechanisms for review of such errors and the plaintiff availed himself of these procedures.

15 On 28 February 2003 on the application of the plaintiff, that initial order was revoked by the Wyong Local Court.

16 In these circumstances I am not satisfied that the order was invalid because it was issued in the name of the protected person rather than her mother. The Act contains no limitation on how a person may feel intimidated. I am satisfied that if the protected person felt that her mother was in danger, then she might also fear for her safety sufficiently to warrant an order being granted.

17 On 3 March 2003, before the first defendant, the protected persons complained of conduct that, if true, might appear to the court to be offences of stalking or intimidation against s 562AB of the Act.

18 Pursuant to s 562BF(1) of the Act an interim apprehended violence order must be made when a person:

…stands charged before a court with an offence that appears to the court to be an offence against s 562AB or a domestic violence offence…

19 Accordingly, an interim apprehended personal violence order was issued by the first defendant, this time for each protected person.

20 Breaches of the first order were also the subject of complaint. When the hearing into these allegations was brought on before Magistrate Forbes the plaintiff was convicted only of the offence against s 562AB of the Act and the alleged breaches of the initial order were dismissed.

21 However, a further apprehended personal violence order was issued to protect the same persons for a period of five years.

22 Magistrate Forbes then considered options for sentencing the plaintiff on the stalking and intimidation offence. Magistrate Forbes said:

Now I’ve got two options as far as I’m concerned today. Both of them include you being assessed. Firstly I could refuse you bail and ask for the gaol psychiatrist to prepare an assessment for court…The second option is that I adjourn the matter and ask for the Probation and Parole to arrange for you to be psychologically assessed.

23 Magistrate Forbes was provided with a report that expressed the following opinion:

Mr Harb’s most likely diagnosis is chronic paranoid schizophrenia. The evidence of this is his history of auditory hallucinations, paranoid ideation, grandiose thinking and ideas outside his control.

24 The report also stated that:

Mr Harb presents as floridly unwell.

25 It was the opinion of Dr Luke Murphy that the plaintiff was mentally ill within the meaning of the Mental Health Act 1990. The plaintiff suggested to Magistrate Forbes that the doctor may have been drunk when he wrote the report. He submitted to me that the report was a fraud designed to remove him from prison, where he was held pending hearing of the charges.

26 Magistrate Forbes relied upon the report, as well as observations made of the plaintiff at that hearing, to find that the plaintiff was mentally ill pursuant to the Mental Health Act and ordered that the plaintiff be taken to a hospital to be assessed in accordance with s 3 of the Mental Health (Criminal Procedure) Act 1990.

27 It is this order that is the subject of complaint in the plaintiff’s summons. I am not persuaded, on the evidence before me, that this complaint is made out and I am not satisfied that evidence of police officers, further transcripts of the Manly Local Court or evidence from the protected persons would add to the plaintiff’s case. In my opinion, the order sought, alleging an illegal detention in hospital has no prospects of success and must be dismissed.

28 Similarly, I am not persuaded by the plaintiff that the apprehended violence orders to which he was subject, were invalid or improperly granted. I am satisfied that each of the orders was issued according to law –although, it must be accepted that one of the orders contained a formal defect, incorrectly naming the protected person’s parents. However, the particular order complained of in the summons –that issued by the first defendant- arises out of an automatic operation of the Crimes Act. That complaint must be formally dismissed.

29 On the question of whether the plaintiff should be granted leave to amend his summons, I am not persuaded that this is appropriate or that there is an arguable case. Given that the plaintiff has some difficulty identifying the proper defendants, and the essence of his complaints, I am not satisfied that prerogative relief in the nature he seeks in the first or third claim in the summons is warranted or that such relief would ever be granted taking the plaintiff’s claims at their highest. Hence, the proposed amendment would be futile.

30 The plaintiff asserts that the protected persons do not, and have never intended that he be subject to the apprehended violence orders. I am not satisfied that the plaintiff could persuade this Court that is so. Indeed, the Attorney has adduced evidence from at least one of the protected persons that is contradictory to the plaintiff’s assertions. The presumption of regularity is also applicable. Nothing before this Court indicates that the police acted other than in a bona fide way in seeking the orders they did. A fortiori, the Magistrate determined the issues on the evidence placed before her in accordance with the law.

31 In these circumstances I order that the summons be dismissed. Given that there seems to be no circumstances warranting a departure from the ordinary rule, I order that the plaintiff pay the costs of the defendant.

Orders

32 The Court orders:

(1) That Carmel Forbes be joined as a party to these proceedings pursuant to Part 8 r 8 of the Supreme Court Rules 1970;
(2) That the summons be dismissed;
(3) That the plaintiff pay the costs of the defendants.

*****

Last Modified: 07/29/2003