Majumdar v Director of Public Prosecutions (NSW)

[2024] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Majumdar v Director of Public Prosecutions (NSW) [2024] NSWCA 117

Hearing dates:

6 May 2024

Date of orders:

20 May 2024

Decision date:

20 May 2024

Before:

Gleeson JA at [1]
Mitchelmore JA at [64]
Adamson JA at [65]

Decision:

(1)   Dismiss the summons filed 16 February 2024.

(2)   Order the applicant to pay the first respondent’s costs.

Catchwords:

CRIME — Apprehended violence orders — Variation or revocation — Where application to revoke AVO filed prior to expiry of order but heard in Local Court after order had expired — Whether Local Court had jurisdiction to vary or revoke AVO once order had expired

STATUTORY INTERPRETATION — Meaning of word “revoke” — Application to revoke final AVO made under Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73

CIVIL PROCEDURE — Jurisdiction — Judicial review — Where applicant has no right of appeal from District Court decision — Application to invoke Court of Appeal’s supervisory jurisdiction — Whether jurisdictional error established — Whether District Court misconstrued the relevant statute thereby misconceiving the extent of its powers on appeal in a criminal matter

APPEALS — Procedural fairness — Whether District Court failed to consider revocation application — Whether District Court prevented applicant from tendering evidence — Whether “legitimate expectations” doctrine applies

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 18

Civil Procedure Regulation 2017 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW), ss 8, 11, 20, 84, 85, 93

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 7, 8, 19, 20, 22, 24, 32, 72, 72A, 73, 79, 84, 85

Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW), Sch 1

District Court Act 1973 (NSW), s 176

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.4(c)

Cases Cited:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Dyason v Butterworths [2015] NSWCA 52

Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274

McNab v Director of Public Prosecutions (2021) 106 NSWLR 430; [2021] NSWCA 298

Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105

Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213

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

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Texts Cited:

Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (2015)

Category:

Principal judgment

Parties:

Budhaditya Majumdar (Self-represented) (Applicant)
Office of the Director of Public Prosecutions (NSW) (First respondent)
District Court of New South Wales (Second respondent)
Local Court of New South Wales (Third respondent)

Representation:

Counsel:
J Davidson (First respondent)

Solicitors:
Budhaditya Majumdar (Self-represented) (Applicant)
Office of the Director of Public Prosecutions (NSW) (First Respondent)
Crown Solicitor’s Office (Second and Third respondents – submitting appearances)

File Number(s):

2024/61867

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

11 December 2023

Before:

Kumar DCJ

File Number(s):

2021/121842

HEADNOTE

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

In May 2021, police applied for and obtained a provisional AVO against Mr Majumdar. The protected person was a female university student who lived in an adjacent building in the same residential complex as Mr Majumdar. On 15 June 2021, a final AVO was made against Mr Majumdar by consent on a without-admissions basis, for a period of two years. The expiry date of the AVO was 14 June 2023.

In 2023, Mr Majumdar was offered a position in the Australian Army conditional on an unrestricted service requirement that he was not subject to any civil or criminal restrictions. On 7 February 2023, he filed an application to revoke the AVO under s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act). After a number of adjournments, the revocation application was heard in the Local Court on 21 July 2023, by which time the AVO had expired. The Magistrate dismissed the revocation application on the basis that the Local Court had no jurisdiction to revoke or vary an AVO under s 73 once it had expired, applying Wass v Director of Public Prosecutions (NSW) (2023) 111 NSWLR 210; [2023] NSWCA 71, which held that the s 73 power to vary or revoke an AVO is confined to an unexpired order.

Mr Majumdar’s appeal to the District Court under s 84(2)(d) of the Act was dismissed. He then sought to invoke the supervisory jurisdiction of the Supreme Court pursuant to s 69 of the Supreme Court Act 1970 (NSW), since he had no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. To obtain this relief (which is discretionary), it is necessary to demonstrate jurisdictional error on the part of the District Court. Mr Majumdar relied on two categories of jurisdictional error: misconstruction of the relevant statute (ground 1), and a failure to afford procedural fairness (ground 2).

Under ground 1, Mr Majumdar made several complaints, including:

1. The Magistrate intentionally set the hearing date of the application after the expiry date of the AVO, and should have extended the AVO until the application was dealt with by the Local Court;

2. The District Court misconstrued the provisions of the Act and took into account an irrelevant matter by relying on Wass; and

3. The AVO should be deemed to have been extended until the revocation application had been dealt with by the Local Court.

Under ground 2, Mr Majumdar contended that Kumar DCJ had denied him procedural fairness in not finding the AVO to be “in a state of deemed extension”.

Gleeson JA (Mitchelmore and Adamson JJA agreeing) held, dismissing the appeal:

1. The District Court did not misconstrue the provisions of the Act. There was no error in finding that the Local Court had no power to revoke the AVO which had expired at the time of the hearing.

2. As to (a): The complaint about the fixing of the hearing date in the Local Court did not involve a jurisdictional error. In any event, (i) the Magistrate informed Mr Majumdar’s solicitor on two occasions that, if the revocation application was contested (which it was), the first available hearing date would be after the AVO expired, and (ii) it was open to Mr Majumdar to make an application under s 73(2)(a) of the Act to vary the AVO by extending its operation until the Local Court dealt with the revocation application. Mr Majumdar did not do so, and there was no reason for the Magistrate to extend the order on his own accord.

3. As to (b): While the facts in Wass are distinguishable from the present case in one respect, the reasoning in Wass concerning the meaning of the word “revoke” in s 73(1) applies to this case and should be followed. The s 73 power to vary or revoke an AVO is confined to unexpired orders.

4. As to (c): The characterisation of a revocation application as involving an implicit or “deemed” extension of an AVO until the application is dealt with by the Local Court is artificial and inconsistent with the text, context, and purpose of the Act.

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

5. There was no procedural unfairness in the District Court. The primary judge did not deny Mr Majumdar the opportunity to present his case or tender evidence. Mr Majumdar’s real complaint concerns the outcome of the appeal, not the manner in which it was presented. The notion of “legitimate expectations” has no application in Australian law.

6. Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, followed.

7. R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213, distinguished.

Judgment

1. GLEESON JA: The essential question in these proceedings is whether the Local Court has power under s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act) to “vary or revoke” a final apprehended personal violence order (AVO) where the variation or revocation application is made before the AVO expired, however the AVO had expired by the time the application was heard by the court. A similar issue arose in Wass v Director of Public Prosecutions (NSW) (2023) 111 NSWLR 210; [2023] NSWCA 71, although in that case the application to revoke the AVO was made after the AVO had expired. In Wass this Court held that the power to vary or revoke an AVO was confined to an unexpired order. In the present matter, the Local Court concluded that it had no power under s 73 of the Act to revoke an expired AVO, notwithstanding that the revocation application was made before the AVO had expired. An appeal to the District Court against the refusal to revoke the AVO was dismissed. In my view, the District Court correctly construed the power of the Local Court under s 73 of the Act.

The nature of the case

2. The matter comes to this Court in the following way. Mr Budhaditya Majumdar (the applicant) seeks judicial review of a decision of Judge Kumar in the District Court dismissing the applicant’s appeal from a decision of Magistrate Milovanovich refusing to revoke a final AVO against him which had expired when the revocation application was heard in the Local Court. The applicant has no right of appeal from the decision of the District Court on appeal from the Local Court in a criminal matter (District Court Act 1973 (NSW), s 176) and therefore seeks to invoke the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW).

3. The relief sought in the summons includes (1) an order setting aside the order made in the District Court on 11 December 2023 dismissing the appeal, and (2) an order in the nature of mandamus “compelling the lower court to exercise jurisdiction to rehear the revoke application considering [the AVO is] deemed to be extended”. To obtain such relief, it is necessary for the applicant to demonstrate jurisdictional error on the part of the District Court: Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [10].

4. The applicant relies upon two recognised “jurisdictional error” categories. First, as said in Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274 at [4] (Meagher JA, Basten JA and Sackville AJA agreeing), “… there will be jurisdictional error if the District Court in exercising criminal appellate jurisdiction ‘[misconstrues] the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case’: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]”. Second, a failure to accord procedural fairness is susceptible to correction as jurisdictional error: Kirk at [60]; Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

The principal statutory provisions

5. The power to make an apprehended personal violence order is conferred on a court by s 19 of the Act where the court has the requisite satisfaction, on the balance of probabilities, that a person has reasonable grounds to fear, and in fact fears:

(a)   the commission by the other person of a personal violence offence against the person, or

(b)   the engagement of the other person in conduct in which the other person—

(i) intimidates the person, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

6. The reference to a “court” in s 19 includes the Local Court: see definitions in s 3 of the Act. It is not necessary to refer to the meaning of “intimidation” and “stalking” which are contained in ss 7 and 8 of the Act respectively. In deciding whether or not to make an apprehended personal violence order, the court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order: subs 20(1). Without limiting that directive, the court is to consider the matters specified in subs 20(2).

7. A court may also make an interim apprehended personal violence order (s 22) and an authorised officer may make a provisional order with respect to an interim apprehended personal violence order (s 28). Sections 24 and 32 deal with the duration of an interim court order and provisional orders.

8. Part 10, Div 5 of the Act concerns the variation or revocation of final apprehended violence orders and interim court orders. Sections 72A and 73 provide:

72A Making of application—general

(1)   An application may be made to a court at any time.

(2)   An application may be made only by a police officer or by an interested party in relation to the order.

(3)   An application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court.

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.

(4)   A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates.

(5)   A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant.

(6)   Notice of an application must be served personally or in such other manner as the court hearing the application directs.

(7)   Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire.

(8)   If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court.

(9)   Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect.

9. Section 79 deals with the duration of a final apprehended violence order. It provides:

79 Duration of apprehended personal violence orders

(1)   An apprehended personal violence order remains in force for such period as is specified in the order by the court.

(2)   The period specified in the order by the court is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person.

(3)   If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made.

(4) This section is subject to section 73 (Variation or revocation of final apprehended violence orders and interim court orders).

10. Part 10, Div 7 deals with appeals against apprehended violence orders. A defendant may make application to the Local Court under s 84(1) for an annulment of an AVO. Such an application is made under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), with any relevant modifications, in the same way as an application may be made by a defendant under that Act for annulment of a conviction: s 84(1). The Appeal and Review Act, s 8(2), lists the circumstances in which the Local Court must grant an application for an annulment made by a defendant, namely, if it is satisfied:

(a)   that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or

(b)   that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or

(c)   that, having regard to the circumstances of the case, it is in the interests of justice to do so.

11. A defendant may also appeal to the District Court under s 84(2)(a) against the making of an AVO by the Local Court. Such an appeal is made under s 11 of Pt 3 of the Appeal and Review Act. The effect of s 84(3)(a) of the Act is that an appeal against the making of an AVO is to be treated “in the same way as application … by a defendant against a conviction”. Thus, an appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings (Appeal and Review Act, s 18) and requires demonstration of factual, legal, or discretionary error to succeed: McNab v Director of Public Prosecutions (2021) 106 NSWLR 430; [2021] NSWCA 298 at [24] (Bell P), [83]-[90] (Basten and McCallum JJA). With respect to the disposition of such an appeal, the Appeal and Review Act, s 20 provides:

(1)   The District Court may determine an appeal against conviction—

(a)   by setting aside the conviction, or

(b)   by dismissing the appeal, or

…

12. Accordingly, upon a successful appeal under s 84(3)(a) of the Act, the District Court would set aside the AVO: see, for example, Dyason v Butterworths [2015] NSWCA 52 at [25]-[30], [35].

13. Section 85(1) provides that the lodging of a notice of appeal under s 84 does not have the effect of staying the operation of the order concerned.

14. Section 93 provides that the jurisdiction conferred on the District Court by the Act is conferred on it in its criminal jurisdiction.

Background

15. In May 2021, police applied for and obtained a provisional AVO against the applicant. The protected person was a female student at Macquarie University who attended the Macquarie University gym regularly and lived in an adjacent building in the same residential complex as the applicant. It is not necessary to identify the protected person by name or describe the conduct complained of. No criminal charges were laid.

16. On 15 June 2021, the applicant was present in court when a final order was made imposing a two-year AVO against him. The order was made by consent and without admission. The order required the applicant not to, inter alia, “stalk, harass or intimidate [the protected person]”, and “not [to] approach the [protected person] or contact her in any way, unless the contact is through a lawyer”. The applicant did not seek to appeal against that order to the District Court under s 84(2) of the Act.

15. The applicant was subsequently offered a position in the Australian Army conditional on meeting certain entry standards, including an unrestricted service condition meaning the applicant cannot have any civil or criminal restrictions placed on him that would limit his ability to provide unrestricted service.

Proceedings in Local Court

18. On 7 February 2023, the applicant filed an application in the Local Court to revoke the AVO. The protected person was described in that application as the PINOP, that is, person in need of protection. The application stated that the “[o]rder will expire on 16 June 2023” (however, strictly the order expired on 14 June 2023). The stated grounds of the application included:

• “I was not advised that the ‘no contact condition’ meant I was not to be in contact whatsoever with the PINOP”,

• the applicant had changed his employment and residence since the granting of the AVO,

• the PINOP no longer attended Macquarie University gym,

• the applicant had an offer from the Australian Army to join as an officer, for which “unrestricted service” is a condition that must be achieved and “any sort of AVO … are treated as a restriction”, and

• the applicant was moving to a different state(s) for training and postings.

19. The applicant was represented by a solicitor, Mr Spence, when the revocation application was mentioned before Magistrate Mijovich in the Hornsby Local Court on:

1. 7 March 2023: the application was adjourned to allow for service on the protected person, with the Magistrate observing that if the revocation was opposed, “it’s not going to get a hearing until November”, and “the whole thing can be over by the time we get to a hearing if its opposed”;

2. 4 April 2023: the Magistrate set a timetable for evidence after the protected person and the police indicated that the application was opposed. The matter was adjourned to 9 May 2023 “for compliance” and to fix a hearing date. The Magistrate stated that he “noted the papers that your client’s aware it expires in June and that the hearing will be sometime in January”; and

3. 9 May 2023: the Magistrate informed the applicant’s solicitor that given the solicitor’s indication that only his client would be called to give evidence, he could list the matter “a lot earlier”. After a discussion about suitable dates, a hearing date was fixed for 21 July 2023.

20. On 21 July 2023, the application was heard by Magistrate Milovanovich. The applicant was unrepresented at this hearing. In his ex tempore judgment, the Magistrate noted that (i) the AVO had expired, (ii) Mijovich LCM did not extend the AVO on 9 May 2023, and there was “no application for the order to be extended of the Court’s own volition or by the prosecution”. Milovanovich LCM dismissed the application giving two reasons:

… sadly, or unfortunately, because it was adjourned after 21 June the order has now expired and there are two reasons why the Court would not proceed with the application today: firstly, I believe that it is expired and the Court has no jurisdiction, secondly, after reading your grounds, it seems to me your grounds are more an appeal against the determination rather than valid grounds for variation or revocation on changed circumstances. Your application is dismissed.

Appeal to District Court

21. The applicant appealed to the District Court from the decision of the Local Court refusing to revoke the AVO and he was self-represented in the District Court. That appeal was made under s 84(2)(d) of the Act. At the hearing of the appeal, he made oral submissions and was invited to hand up a document containing written submissions which was marked as Exhibit 1. The Crown submitted that in the absence of an application to extend the AVO up to the date of the hearing of the application, the AVO expired on 14 June 2023, and by the time the application was heard there was no order in place and therefore no order to revoke.

22. In an ex tempore judgment delivered on 11 December 2023, Judge Kumar noted the Crown’s reliance on Wass at [59], and the applicant’s submission that there had been, or should be, a “deemed extension” of the AVO until the determination of the revocation application. Her Honour considered that she was bound by Wass, which she described as establishing “that once an order has expired then a person cannot apply to the Local Court for its revocation”.

23. After observing that when the matter was heard in the Local Court on 21 July 2023 the AVO had expired on 14 June 2023, her Honour held that the Local Court correctly found there was no jurisdiction to hear the application. Her Honour dismissed the appeal stating that “this appeal is incompetent, because I have no jurisdiction, because the AVO expired at a time which predated the hearing of this application”.

The applicant’s complaints

24. The applicant is self-represented in this Court. He relied on two grounds in his summons, which were expanded upon in his written submissions. Ground 1 is expressed in unconventional terms and does not identify with specificity the grounds on which the relief is sought, as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.4(c). Rather, it asserts that five questions arise:

1. did the Magistrate intentionally set the hearing date after the scheduled expiry date of the order, without explicitly extending it, only to have the matter dismissed without a proper hearing;

2. are the applicant’s facts similar to those in Wass v DPP;

3. did Judge Kumar make a jurisdictional error by relying on irrelevant material (Wass v DPP) and also incorrectly interpreting the provisions of the Crimes (Domestic and Personal Violence) Act 2007;

4. does the contemporary legislation in other states and territories extend, revoke or vary applications (sic); and

5. is the concept of “deemed” extension common in the matters of legislature and law?

25. Ground 2 contends that the applicant was denied natural justice because Judge Kumar did not consider “my application [which should be understood as referring to the AVO] to be in a state of deemed extension”, even though the revocation application was filed four months and seven days before the AVO expired.

26. If the complaint of procedural unfairness is made out, there would not have been a hearing of the appeal to the District Court in accordance with law, and a rehearing of the appeal will be necessary. It has been said that the issue of procedural unfairness should be addressed first, by extension of the need to first deal with any issue of apprehended bias: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA); Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51].

27. However, in a case like the present, which only concerns jurisdictional error, it is convenient to first address ground 1 as it provides the context of the “deemed extension” submission the subject of the complaint of procedural unfairness in ground 2.

Ground 1

The hearing date fixed by the Local Court

28. The first question in ground 1(a) is directed to the setting of a hearing date by the Local Court, presumably the order made on 9 May 2023, fixing the hearing date of the application on 21 July 2023, which was after the AVO had expired. As the respondent correctly submits, this question does not give rise to any potential jurisdictional error on the part of the District Court and is not the subject of any of the relief sought.

29. In any event, the premise of the first question – whether the Magistrate “intentionally” fixed the hearing date of the revocation application after the AVO was to expire, “without explicitly extending it” – cannot be accepted for two reasons.

30. One is that the Magistrate informed the applicant’s solicitor on two occasions (7 March and 4 April 2023) that if the revocation application was contested the first available hearing date would be after the date the AVO expired, and the applicant’s solicitor acknowledged that the applicant knew that a contested application would not be given a hearing date before the expiry of the order in June 2023. There is no substance in the complaint that the Magistrate “intentionally” fixed the hearing after the AVO had expired.

31. The other is 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. The applicant did not do so. In the absence of such an application by the applicant, there was no reason for the Magistrate to extend the AVO until the court dealt with the revocation application.

The jurisdictional issue

32. The second and third questions raised by grounds 1(b) and (c) concern the jurisdictional issue: if an application to “vary or revoke” an AVO is made before an AVO has expired, does the Local Court have power under s 73 of the Act to vary or revoke an AVO which has expired at the time the application is heard by the court?

33. In support of an affirmative answer to the jurisdictional issue, the applicant relies on the following essential propositions:

1. that Wass is distinguishable on the facts;

2. there is no explicit indication in the Act that s 73(8) is “only meant for extensions but not for the revocations” and “if the Parliament … did not intend to [authorise] abuses”, then it must not have explicitly addressed the extension of the revoke-application [in s 73(8)] because they found it not of importance”;

3. “it must have taken for granted” that “a revoke application would be subjected to a deemed extension, because it is either revoked or expired after the court-ordered end date”; and

4. the only possible reason the Legislature did not explicitly mention “revocation” in s 73(8) “is that they did not think it would be necessary”.

34. As will appear, the short answer to these submissions is twofold. First, whilst the facts in Wass are distinguishable from the present case in one respect, the reasoning in Wass concerning the meaning of “revoke” in s 73(1) applies to the circumstances of this case. Second, the characterisation of a revocation application as involving a “deemed extension” of an AVO is artificial, and is inconsistent with the text, context, and purpose of the Act.

Wass

35. Wass involved a final apprehended violence order made against Mr Wass in the Local Court on 30 November 2018 for a duration of 12 months. There were no breaches of that order. Around two years later, by application dated 9 October 2020, Mr Wass applied to the Local Court to revoke the order. The revocation application in the Local Court was dismissed on 14 July 2021 on the ground that the Court did not have power to revoke expired orders. An appeal to the District Court was dismissed.

36. On an application for judicial review of the decision of the District Court, Leeming JA (Bell CJ and Kirk JA agreeing) referred to (i) the legislative history of the amendments to Pt 10, Div 5 of the Act by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW) (the 2016 Amendments), following a 2015 review entitled Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (2015) at [36]-[39], (ii) the Attorney-General’s speech introducing the 2016 Amendments and the explanatory memorandum accompanying the Bill at [40]-[41], (iii) several textual and contextual considerations at [48]-[58], which support the construction that it was only possible to “revoke” an order while it remained in force, and concluded at [59] adopting a purposive construction of s 73 of the Act:

… I conclude that this is a case where the power to “vary or revoke” an order is to be construed as confined to a power to vary or revoke an unexpired order. That accords with natural meanings of “vary” and “revoke”. It is consistent with the use of “revoked” in s 24 and s 32 in circumstances where the order must necessarily be in force immediately before it is revoked. It avoids the awkwardness of former s 72(5) being otiose or enacted for the avoidance of doubt. It accords with the explicitly enunciated purpose in the statutory review and the extrinsic materials in 2016, and it also accords with the explicitly enunciated purpose of the amendments in 2008.

37. The respondent correctly accepts that the facts of the applicant’s case differ from those in Wass insofar as the applicant filed his application for revocation of the AVO prior to the expiry of the order, whereas in Wass the application to revoke the AVO was filed after the expiry of the order. Nevertheless, the respondent says that this factual distinction does not render this Court’s construction of the relevant provisions of the Act any less applicable to the applicant’s case. That should be accepted.

38. The legislative history of Pt 10 Div 5 of the Act is referred to in Wass at [26]-[30] where it is noted that between 2008 and 2016, Pt 10 Div 5 of the Act differed from the form it took after the 2016 Amendments. Prior to the 2016 Amendments, s 72 expressly provided in subss 72(5)-(8):

…

(5)   An application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired. Subsection (3) does not apply to such an application.

Note—

Certain consequences result from an apprehended violence order being made against a person if it is not revoked. For example, section 11 of the Firearms Act 1996 provides that a firearms licence must not be issued to a person who is subject to a final apprehended violence order or who at any time in the previous 10 years has been subject to such an order (other than an order that has been revoked).

(6)   A court may make an order under this Division revoking a final apprehended violence order even though that final order has expired if the court is satisfied that, were that final order still in force, it should be revoked.

(7)   In applying the provisions of this Division to an application for revocation of a final apprehended violence order that has expired, a reference to a protected person includes a reference to a person for whom the expired order was sought or made.

(8)   If an application is made by the defendant for revocation of a final apprehended violence order that has expired:

(a)   the Commissioner of Police is to be notified of the application, and

(b)   the court hearing the application must take into account (in addition to any other matters that it is required to take into account) the effect that revocation of the expired order may now have on the protected person, having regard to the grounds on which the expired order was made, and

(c)   the court may order that a further application for revocation of the expired order may not be made by the defendant except with the leave of the court.

39. As Leeming JA observed in Wass at [28]:

It will be seen that four subsections, namely, subss (5)–(8) of s 72, addressed applications for revocation even though the order had expired in terms. In particular, s 72(6) prescribed a necessary test (if the court is satisfied that, “were [the] final order still in force, it should be revoked”) when application was made for the revocation of a final apprehended violence order that had expired.

40. The form of ss 72A and 73 after the 2016 Amendments is set out at [8] above. Following the 2016 Amendments, s 72A deals with the making of an application and the reference in s 72A to making an application “at any time” must be read together with s 73, which deals with the court’s power to vary or revoke a final AVO or interim court order.

41. Subsections 73(1)-(3) are in essentially the same terms as the former subss 73(1)-(3). Subsections 73(4)-(9) are new. Subsections 73(4) and (5) deal with notice requirements; subs (4) concerns an application of the defendant, whilst subs (5) concerns an application of the applicant for the original order or protected person. Subsection 73(6) deals with the manner of service of such applications.

42. Subsection 73(7) commences “[d]espite subsection (5)” and says that the court may make an order extending the period during which the final AVO or interim court order is to remain in force without notice of the relevant application having been served on the defendant provided the application is lodged before the day on which the AVO or interim court order is due to expire. A discretionary order under subs (7) extending the period during which a final AVO or interim court order is to remain in force without notice of the relevant application having been served on the defendant, is subject to a temporal limitation of 21 days after the date of the extension order, unless the extension order is earlier revoked.

43. Subsection 73(8) deals with an extension application made before the final AVO or interim court order expires. It provides that the order is taken to continue in force until the application is dealt with by the court. As the applicant correctly concedes, there is no similar provision if a revocation application is made under subs 73(1) before the final AVO or interim court order expires, that a final AVO or interim court order continues until a revocation application is dealt with by the court.

Application of Wass in the present case

44. No attempt was made in the applicant’s submissions to confront the textual and contextual considerations referred to in Wass at [48]-[58], which support the conclusion that the s 73 power is confined to the revocation of orders which remain in force.

45. Importantly, as observed in Wass at [52], that construction of the s 73 power is consistent with the duration of an AVO specified in s 79(1), and the operation of s 79(4) that the duration of an AVO is subject to s 73. When ss 73 and 79 are read together, it is plain that an AVO remains in force for such period as is specified in the order, subject to a revocation order under s 73 which brings the order to an end. Thus, if the duration of the AVO has expired and the order no longer remains in force (s 79(1)) at the time a revocation application is heard by the court, there is no order that the court can revoke under s 73(1). Hence, the conclusion in Wass at [59] that the s 73 power to “vary or revoke” is confined to a power to vary or revoke an unexpired order.

46. The textual and contextual considerations referred to in Wass with respect to the power in s 73 to “vary or revoke” are compelling and apply equally where a revocation application is made before the AVO had expired, but the AVO had expired at the time the application is heard by the court.

The “deemed” extension fallacy

47. The fallacy of the “deemed” extension submission is the assumption that it is implicit in s 73 that the making of a revocation application has the effect that the AVO is taken to continue in force until the application is dealt with by the Local Court. The asserted bases for this assumption are unconvincing.

48. First, contrary to the applicant’s submission, confining the s 73 power to a power to “vary or revoke” an unexpired order does not involve any “abuse” of the s 73 power. Accepting that the construction in Wass of the s 73 power renders an unheard revocation application futile once the AVO has expired, it does not follow that it must be taken for granted or is implicit in s 73, as the applicant submits, that an AVO is taken to be extended until a revocation application is dealt with by the court. As indicated, notwithstanding that the applicant was on notice that his revocation application could not be heard until after the AVO had expired, the applicant did not seek before the order had expired, an extension of the AVO until the revocation application was dealt with by the court.

49. Second, given that the subject matter of subs 73(8) is expressly limited to an application for the extension of a final AVO or interim court order made before the order expires, there is good reason to think that the Parliament intended by subs 73(8) to distinguish between an extension application and a revocation application. By s 72A(2), an application for an extension of a final AVO or interim court order may be made only by a police officer or by an “interested party” in relation to the order, which expression is defined in s 72 as meaning: (a) each protected person under the order, (b) each guardian of such a protected person, (c) where the protected person is a child, each parent of a protected person and the Secretary of the Department of Family and Community Services, and (d) the defendant. The evident purpose of subs 73(8) is to maintain the safety and protection of the protected person where an extension application is made before the relevant order expired, by continuing a final AVO or interim court order until the application for an extension is dealt with by the Court. That accords with the objects of the Act, stated in subs 10(1), “to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship”.

47. Third, unlike the limited circumstances of the extension provided for by subs 73(8) of the Act, there is no basis for imputing to Parliament a similar intention until a revocation application is dealt with by the court. To impute such an intention in circumstances other than those provided for by subs 73(8), would have the unintended consequence of extending an AVO potentially beyond its specified duration, and contrary to the purpose of the revocation application being to bring the AVO to an earlier end.

48. Fourth, the deemed extension construction is inconsistent with the ordinary meaning of the word “revoke” discussed in Wass at [56], namely that “the act of revocation will have immediate legal consequences upon the right or entitlement enjoyed immediately beforehand”. Once an AVO has expired, there is nothing to revoke. Nor do the objects of the Act in s 10(1) of ensuring “the safety and protection of all persons who experience personal violence outside a domestic relationship” support an implication that the s 73 power to vary or revoke an AVO is to be read as containing a deemed extension of an AVO until a revocation application is dealt with by the Court.

49. One further matter should be mentioned. The applicant’s deemed extension construction seems to assume that the effect of an order under s 73(1) revoking an AVO is retrospective. Whilst that may be the effect of an annulment order under s 84(1) of the Act or an order on appeal under s 84(2) of the Act setting aside an AVO (see [10] and [11] above), my preliminary view is that an order revoking an AVO is prospective only. The contrary view is inconsistent with the distinction drawn between an application under s 73 to “vary or revoke” a final AVO or interim court order and an appeal under s 84(2), as is evident in subs 73(3) which says that the court may decline to hear an application if it is satisfied that “there has been no change in circumstances on which the making of the order was based” and that the application “is in the nature of an appeal against the order”. The reference to “change in circumstances” is consistent with revocation being prospective only; it suggests that revocation of an AVO may be appropriate where previously an AVO was necessary but that is no longer the case given a change in circumstances.

50. However, it is not necessary to decide this issue to dispose of the applicant’s argument. It is sufficient to say that the submission that the s 73 power contains an “implicit” or deemed extension of the AVO until a revocation application made before the AVO had expired is dealt with by the court, finds no support in the text, context or purpose of s 73 of the Act.

Other legislation

54. The fourth and fifth questions raised by ground 1(d) and (e) concerning “contemporary legislation in other states and territories” and whether the concept of “deemed extension” is “common” in other “statutes”, do not give rise to jurisdictional error on the part of the District Court. As the respondent correctly submitted, it is not suggested that s 73 of the Act was modelled on some relevant interstate provision regarding domestic and family violence, nor a provision of any other New South Wales statute addressing “deemed extensions”.

55. Ground 1 is rejected.

Ground 2: Procedural fairness

56. It is said that the applicant was denied natural justice because the District Court “did not consider my application to be in the state of ‘deemed extension’ in circumstances where the application was filed before the AVO expired”, did not allow the applicant to “put evidence”, and the applicant’s “‘legitimate expectations’ were voided”. There is no merit in this ground.

57. The primary judge expressly recorded in her judgment the applicant’s written submissions at par [7] concerning the “deemed extension” of an AVO, before noting that when asked the applicant was not able to point to a specific legislative power in respect of a deemed extension, whilst the Crown’s position was that there is nothing in the legislation which allows for an extension of the AVO once it has expired. Her Honour rejected the applicant’s submission, finding that Wass was a case which squarely addresses this issue.

58. Insofar as the applicant made reference to “legitimate expectations” he correctly accepted in his reply submissions that the High Court has not accepted the English view of “legitimate expectations” in R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213: see Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [28] (Gleeson CJ), [67], [73] (McHugh and Gummow JJ).

59. It is apparent from a review of the transcript of the District Court appeal that the primary judge correctly directed the applicant’s attention to the jurisdictional issue and Wass, the applicant replied that he “would like to say a few points with respect to that”, and proceeded to make his submissions in chief. After the Crown responded, the applicant made submissions in reply. The Crown then answered several questions raised by the primary judge and the applicant made further submissions in response. That her Honour initially directed the applicant to the jurisdictional issue, does not mean that the applicant was denied an opportunity to present his appeal or to “put [on] evidence”. The only document which the applicant sought to tender on his appeal was a two-page document in the form of a submission which was marked Ex 1. The applicant was afforded ample opportunity in the District Court to present his case.

60. As the respondent correctly submitted, procedural fairness is concerned with fairness of process, not with substantive acceptance of any particular argument. The applicant’s real complaint in ground 2 concerns the outcome of his appeal, not the manner in which it was presented. That the primary judge did not accept the applicant’s argument that his application to revoke the AVO was in “a state of ‘deemed extension’” does not mean he was denied procedural fairness. Ground 2 is rejected.

Other matters – remission of fees

61. In his summons, the applicant seeks an order for “waiver of court fees”. The applicant says that he has paid $1,297 in filing fees and $2,088 for the hearing allocation fee and seeks an order that these amounts be re-paid. Any application for remission of fees should be made to the Registrar as provided by the Civil Procedure Regulation 2017 (NSW), made pursuant to s 18 of the Civil Procedure Act 2005 (NSW).

Conclusion

62. The applicant has failed to demonstrate that the District Court’s decision was affected by jurisdictional error. There is no reason why costs should not follow the event: UCPR, r 42.1.

63. I propose the following orders:

1. Dismiss the summons filed 16 February 2024.

2. Order the applicant to pay the first respondent’s costs.

64. MITCHELMORE JA: I agree with Gleeson JA.

65. ADAMSON JA: I agree with Gleeson JA.

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Amendments

11 June 2024 - [1], line 5 - the word "expired" to follow the first reference to "AVO" - "AVO expired".

Decision last updated: 11 June 2024