Marino v The Commissioner of Police, NSW Police Force

[2021] NSWSC 468

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Marino v The Commissioner of Police, NSW Police Force [2021] NSWSC 468

Hearing dates:

26 April 2021

Date of orders:

4 May 2021

Decision date:

04 May 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. Leave to file the appeal out of time and to appeal an interlocutory order is granted.

2. The appeal is dismissed.

Catchwords:

APPEALS – Procedure – Time limits – Appeal brought out of time – Where appeal filed in wrong court – Where appeal against interlocutory order of the Local Court – s 53(3)(b) Crimes (Appeal and Review) Act 2001 – Leave granted

APPEALS – Leave to Appeal – Principles governing – Whether appeal an abuse of process – Whether Uniform Civil Procedure Rules governed the impugned decision in the Local Court – Adequacy of reasons given – Proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act 2007 – Appeal dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 3, 4, 9, 61, 67, Sch 1, Pts 3-9

Civil Procedure Regulation 2017 (NSW) reg 16

Crimes Act 1900 (NSW) Pt 15A

Crimes (Appeal and Review) Act 2001 (NSW) ss 52, 53, Pt 5

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 3, 11, 13, 15, 25, 26, 27, 28A, 29, 30, 31, 32, 33, 33A, 40, 48, 49, 60, 62, 65, 68, 73, 84, 85, 91, 92, 93, Pt 10

Criminal Code (Cth) s 474.17

Criminal Procedure Act 1986 (NSW) Ch 4 Pt 2

Local Court Act 2007 (NSW) ss 70(1)(c), 71, Pts 3, 4

Local Court Rules 2009 (NSW) r 4.1, Pt 4

Uniform Civil Procedure Rules 2005 (NSW) rr 1.5, 13.4, 18.1, 18.3, 50.16A, Sch 1

Cases Cited:

Brimson v Rocla Concrete Pipes [1982] 2 NSWLR 937

Cunningham v Cunningham [2012] NSWSC 849

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

Henskens v Rudd [2020] NSWSC 533

John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors A Crim R 527; 62 NSWLR 512; [2005] NSWCA 101

Marino v Bello [2021] NSWDC 52

Medich v Local Court of NSW (No 2) [2013] NSWSC 1390

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Tilse v NSW [2013] NSWDC 265

Texts Cited:

Macquarie Online Dictionary

Category:

Principal judgment

Parties:

Mr Marino (Plaintiff)
The Commissioner of Police, NSW Police Force (Defendant)

Representation:

Counsel:
Mr R Coffey (Defendant)

Mr Marino (Self-Represented) (Plaintiff)

Solicitors:
Sparke Helmore Lawyers (Defendant)

File Number(s):

2021/7958

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Special

Date of Decision:

22 June 2020

Before:

Barnett LCM

Judgment

1. Mr Marino, a former legal practitioner, appeals an ex-tempore decision made by Barnett LCM on 22 June 2020, refusing his application to summarily dismiss an application for final orders, following the making of provisional apprehended domestic violence orders against him under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He brings his appeal under s 52(1) or s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) and s 70(1)(c) of the Local Court Act 2007 (NSW).

2. Mr Marino also sought an extension of time to bring his appeal, which was brought out of time, having in July 2020 filed an appeal in the District Court against Barnett LCM’s decision. He also sought leave to appeal, given that he sought to appeal an interlocutory, rather than a final order: s 53(3)(b) Crimes (Appeal and Review) Act.

3. The leave sought was initially opposed by the Commissioner, given Mr Marino’s repeated pursuit of his summary dismissal applications in the Local Court, the most recent of which was to be heard on 11 May and the absence of an explanation for his delay in commencing these proceedings, only in December 2020.

4. By a motion filed in February 2021, supported by an affidavit sworn by the Commissioner’s solicitor Mr Westhoff, the Commissioner sought orders dismissing the proceedings under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) as an abuse of process, given Mr Marino’s ongoing pursuit of a strike out in the Local Court.

5. The Commissioner contended that Mr Marino’s pursuit of concurrent proceedings in different courts involved an abuse of process and an attempt to frustrate the hearing of the substantive application for apprehended violence orders in the Local Court. At the least, he ought to be required to elect between his pursuit of those applications, or this appeal.

6. For reasons which appear below, Mr Marino was given the leave which he sought at the hearing.

7. Mr Marino had also brought proceedings in this Court, which were transferred to the District Court, against Mr and Mrs Bello, their solicitors and the State, which he claimed was vicariously liable for the conduct of the police officers who had applied for and granted the provisional domestic violence order. There he alleged defamation, collateral abuse of process and malicious prosecution. Those proceedings were dismissed by Gibson J in March 2021, her Honour having made pseudonym orders: Marino v Bello [2021] NSWDC 52.

8. That was because Mr Marino and Mrs Bello are also involved in other proceedings in the Federal Circuit Court and the Family Court of Australia, involving applications for access to Mrs Bello’s children: at [5].

9. In the result, by consent, I have also made pseudonym orders in these proceedings.

Issues

10. There is no issue that:

1. In April 2020 a member of the NSW police force, Leading Senior Constable Gregg, made a written application for a provisional order against Mr Marino, after receiving complaint from Mrs Bello, his sister, when she attended Woy Woy police station and made a written statement about Mr Marino’s conduct.

2. Mrs Bello’s statement concerned written communications she understood Mr Marino had sent her; contact he had made with health professionals, purportedly from her; his conduct towards her in court proceedings and otherwise; and the fears caused by his contact and conduct towards her and their escalation.

3. LSC Gregg’s application identified the persons in need of protection to be Mrs Bello and her husband

4. LSC Gregg’s application was dealt with ex-parte on 10 April by Sergeant Lincoln, who made the provisional order against Mr Marino on specified terms. An application for final orders was then made to the Local Court, which was listed for hearing before the Gosford Local Court on 14 July.

5. The course which the proceedings then took in the Local Court, following various applications made by Mr Marino, were affected at various times by administrative arrangements which had been made by the Chief Magistrate to deal with the impact of the Covid-19 pandemic on the Court.

6. On 20 April 2020 Mr Marino filed an application in the Fairfield Local Court to have the provisional order revoked. That was considered in chambers by Tsavdaridis LCM on 20 April. His Honour was not satisfied that s 33 of the Crimes (Domestic and Personal Violence) Act had been satisfied. The application was thus refused, and the 14 July listing confirmed.

7. On 7 May Mrs Bello made a second statement at the police station, having received further email communications from Mr Marino.

8. The proceedings were listed for mention in the Local Court on 12 June, when orders for provision of evidence and other orders were made.

9. On 30 May LSC Gregg made a statement, which was later served on Mr Marino as part of the police brief, together with Mrs Bello’s statements.

10. The proceedings next came before the Local Court on 16 June when Mr Marino was unwell, and they were adjourned.

11. They then came before Barnett LCM on 22 June when Mr Marino, who had filed a motion, sought to have the provisional order summarily dismissed under provisions of the Uniform Civil Procedure Rules 2005. His motion was dismissed for reasons then given ex-tempore.

12. Mr Marino later filed and withdrew his District Court appeal against Barnett LCM’s decision.

13. On 14 October Mr Marino made a second application for summary dismissal, which Mijovich LCM refused.

14. Mr Marino made a third oral application on 11 November, which was later pressed by a second motion which was listed for hearing before Price LCM, on 11 May 2021.

11. At the hearing of this appeal Mr Marino undertook to withdraw his second motion if granted an extension of time to lodge his appeal and leave to appeal Barnett LCM’s decision. After I granted the leave sought Mr Marino was bound to withdraw his motion, which he advised that he had done, during the course of the hearing.

12. In issue remained whether:

1. the appeal should be dismissed under Rule 50.16A of the Uniform Civil Procedure Rules, or as an abuse of process under Rule 13.4;

2. the Uniform Civil Procedure Rules applied to the proceedings in the Local Court;

3. the reasons Barnett LCM gave were adequate;

4. his Honour had properly construed the applicable provisions of the Crimes (Domestic and Personal Violence) Act.

Why the leave sought was granted

13. Mr Marino’s case was that the leave sought should be granted, given that he had initially incorrectly filed his appeal in the District Court within time; the challenged provisional domestic violence orders were illegal, having contravened s 26 of the Crimes (Domestic and Personal Violence) Act and involved an abuse of process, pursued as they were in order to defeat his family law proceedings.

14. Mr Marino claimed that he had vigorously pursued his appeal in the District Court, where he was denied procedural fairness and was finally left with no choice but to discontinue his appeal. He also complained about delay, witness tampering, a defective brief and harsh injustice being visited upon him in the Local Court, inconsistent with what the interests of justice required.

15. Given the matters raised on the appeal, I was satisfied that the leave sought should be granted raising, as it appeared to, for the first time this Court’s consideration of the proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act and the Local Court’s powers to summarily dismiss provisional domestic violence orders made under that Act.

16. As was accepted for the Commissioner, the fact that Mr Marino had brought an appeal within time, albeit initially to the District Court, also supported the grant of leave, as did his undertaking to withdraw his remaining motion in the Local Court.

Abuse of process

17. I am satisfied that this development also removed any basis for the application that the appeal be dismissed as an abuse of process.

Was the appeal incompetent?

18. Section 91 of the Crimes (Domestic and Personal Violence) Act gives the Local Court and the Children’s Court jurisdiction to make orders and determine applications brought under that Act, including after provisional orders are made by a senior police officer under s 28A, defined in s 3 to mean a police officer of or above the rank of sergeant.

19. Section 15 of the Crimes (Domestic and Personal Violence) Act provides for an application for the making of apprehended domestic violence orders to the Local Court under Part 10 of the Act. Section 48(2)(c) provides for applications for final orders to be made to that Court by a police officer. Section 49 requires police officers to make applications in the circumstances specified in s 49(1), which include when the officer suspects or believes that a “domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made”.

20. A police application is before the Local Court in respect of Mr Marino. Until the provisional order which currently binds him is revoked, ceases to have effect on making of an interim or final order, or is withdrawn, the provisional order remains in force: s 32.

21. Section 92 and 93 of the Crimes (Domestic and Personal Violence) Act provide that the jurisdiction conferred on the District and Supreme Courts by the Act is conferred on those courts in their criminal jurisdiction. In the case of the Supreme Court that jurisdiction arises under s 40, which defines “court” to include the Supreme Court: s 40(4A). It empowers the Supreme Court to make an interim court order, in the circumstances there specified: s 40.

22. These provisions do not govern this appeal, Mr Marino not having been charged with any serious offence, as defined in s 40(5).

23. While the Crimes (Domestic and Personal Violence) Act provides for an appeal to the District Court under s 84, it makes no reference to any appeal to this Court.

24. Section 84(2) provides for an appeal to the District Court, both against the making of a final or interim apprehended violence order by the Local Court and against a refusal by the Local Court to vary or revoke such an order: s 3(1) definition of “apprehended violence order”. No such order has yet been made and thus Mr Marino had no right of appeal to the District Court against the refusal of his application to summarily dismiss the provisional order or the application for final orders.

25. Section 52(1) of the Crimes (Appeal and Review) Act of Pt 5 Appeals from Local Court to Supreme Court, provides for an appeal as of right to this Court on questions of law, to persons convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence. Section 53(3) provides persons against whom a Magistrate has made an order in committal proceedings, or when an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, with the right to seek leave to appeal from this Court, on questions of fact or questions of mixed law and fact.

26. Barnett LCM’s refusal to summarily dismiss the provisional order and application for a final domestic violence order, clearly did not involve either a conviction or sentence by the Local Court. It was an interlocutory order, satisfying the requirement that the order be “made in relation to a person in summary proceedings”.

27. Section 70(1)(c) of Pt 4 Special jurisdiction of the Local Court Act also provides for appeals to this Court “in relation to any order arising from an application notice”, in the same way as an appeal may be made “in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW).”

28. Such appeals arise under Part 5 of the Crimes (Appeal and Review) Act 2001 in ss 52 and 53.

29. It follows that Mr Marino has the right to appeal Barnett’s refusal of his application on a question of law and with leave, on a combined question of fact or law.

30. In the result Mr Marino‘s appeal is not incompetent.

Were the reasons given by Barnett LCM adequate?

31. Mr Marino’s case was that the reasons Barnett LCM gave were deficient, even approached in the way discussed by RA Hulme J in Medich v Local Court of NSW (No 2) [2013] NSWSC 1390, on which the Commissioner relied. There his Honour observed:

“68 The first point to note is that it is not the expectation that judgments will be given by magistrates on procedural matters in the Local Court with all of the formality and detail of judgments delivered in this Court. The notoriously heavy workload of magistrates simply does not permit such a luxury. In Director of Public Prosecutions v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at 407; [15], Johnson J bore in mind that he was dealing with an “unedited and unpunctuated record of ex tempore remarks in a busy Magistrate’s Court.” He added:

“Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which magistrates are placed by the volume of cases coming before them.”

“69 But that does not mean that there are no standards as to the adequacy of reasons given in such an environment. Providing sufficient reasons is an important judicial task, even in the Local Court, as Johnson J went on to point out (at 408; [18]-[19]).”

32. I am satisfied that Mr Marino’s submissions may not be accepted.

The proceedings before Barnett LCM

33. In the Local Court on 22 June Barnett LCM advised Mr Marino that the Court had the powers granted by the Crimes (Domestic and Personal Violence) Act, in relation to the application which he sought to challenge by the motion he had filed and that the Uniform Civil Procedure Rules, on which he relied, did not apply to the proceedings. There Mr Marino had sought summary dismissal of the proceedings.

34. Mr Marino disagreed, also pressing his application to have the proceedings dismissed as an abuse of process.

35. Mr Marino’s case was that s 26 of the Crimes (Domestic and Personal Violence) Act required there to be an “incident”, in order for the power to apply for a provisional order to be exercised by a police officer. He contended that there had been none and further, that there was no basis for the required conclusion that a provisional order needed to be made immediately, to ensure the safety and protection of the person who would be protected by the provisional order.

36. Mr Marino contended that in the result, the police had abused their powers, exceeded their authority and made an illegal provisional order. He thus pressed his application to have the proceedings summarily dismissed.

37. That the Local Court had such a power was in issue.

38. The hearing proceeded with some difficulty, Mr Marino challenging his Honour’s views about the nature and extent of the Local Court’s powers to make the orders sought under the Uniform Civil Procedure Rules and repeatedly interrupting, when Barnett LCM and the officer appearing for the police, attempted to speak.

39. The police case was that by his application Mr Marino was attempting to circumvent the need for a defended hearing on the application for final domestic violence orders. It was submitted that nothing that he relied on established that the police had invoked the s 26 power for an improper purpose and that there was no basis for any stay of the ultimate hearing, when witnesses would be available for cross examination in relation to matters which he sought to raise by his application.

40. Barnett LCM took Mr Marino to s 26 and asked him questions about the case which he sought to advance, which was supported by an affidavit he had sworn. Amongst other things Mr Marino referred to affidavits which were sealed in the Federal Circuit Court, in relation to the family law proceedings which are on foot.

41. Mr Marino initially pressed for his summary dismissal application under the Uniform Civil Procedure Rules to be listed for hearing. The earliest date then available for a civil application was after the hearing of the application for final domestic violence orders and so he pressed for a decision to be made on his motion that day, on the material he had filed.

42. Barnett LCM took the view that all that Mr Marino wished to advance on his summary dismissal application would be available to him to rely on at the hearing of the application for final domestic violence orders, when the onus would fall on the police, to establish the case pressed. Nevertheless, he finally adjourned in order to read the material on which Mr Marino relied, accepting that his application should be heard.

43. On resumption Mr Marino pressed his application under Rules 18.1 and 18.3 of the Uniform Civil Procedure Rules and he said, the general law and inherent jurisdiction of the Court, relying on Brimson v Rocla Concrete Pipes [1982] 2 NSWLR 937 at 940-944. He also relied on Rule 13.4.

44. Barnett LCM drew Mr Marino’s attention to provisions of the Civil Procedure Act and the Uniform Civil Procedure Rules, which had the effect that the Rules did not apply to proceedings under the Crimes (Domestic and Personal Violence) Act. Mr Marino finally insisted that the orders could be made under the Court’s inherent jurisdiction.

45. Barnett considered and finally dismissed his application, for reasons then given.

The reasons given

46. Barnett LCM’s decision appears unedited, in transcript. After further interruption during the course of delivering his reasons, what his Honour concluded included that:

1. The provisional order had been made on 10 April 2020 by Sergeant Lincoln on application of LSC Gregg, for the protection of Mr and Mrs Bello;

2. On 22 April Mr Marino brought an application to vary or revoke that order on grounds that it was vexatious, frivolous and an abuse of process, which Tsavdaridis LCM refused that day, for reasons given;

3. On 12 May Olischlager LCM made orders for service of the police brief and for Mr Marino to serve his evidence and the fixing of a hearing date;

4. On 16 June the matter was before Railton LCM when Mr Marino did not appear, and the matter was adjourned;

5. Then before the Court was Mr Marino’s 11 June motion and supporting affidavit;

6. The Uniform Civil Procedure Rules did not apply to the police application, the proceedings being governed by the provisions of the Crimes (Domestic and Personal Violence) Act, which provided for revocation and variation of provisional orders, orders which Mr Marino had earlier unsuccessfully sought;

7. His Honour then turned to the requirements of ss 28A, 27 and 26, concluding that on the evidence, on 9 April the person in need of protection, Mrs Bello, had attended and provided details to LSC Gregg. What she had provided police included many communications made by electronic devices, which spanned a period of months, received in circumstances which caused LSC Gregg to believe they had been sent to Mrs Bello by Mr Marino;

8. The application for provisional orders made within 24 hours of Mrs Bello’s complaint about this harassment, ongoing from 23 March, had been made in writing, given her increasing concern for her safety and the nature of the messages and contacts she had received, which made her afraid that Mr Marino might turn up at her premises;

9. His Honour accepted that the Court had inherent power, albeit limited, to protect the validity of its own processes;

10. On the material his Honour refused to exercise that power, being satisfied that there did “not appear to have been any misuse of the power of the police officer in seeking the order indeed in the terms in which it is expressed one might understand that the police officer may well have formed a conclusion which made it mandatory that they made the application”;

11. Even if not mandatory, the police officer still had a discretion to apply for a provisional order;

12. His Honour concluded that nothing in the materials led to the conclusion that the sergeant had acted outside s 28A in granting LSC Gregg’s application and making the order; or that she or LSC Gregg had intended to abuse the processes of the Court; or that the provisional order which had been made was frivolous or vexatious.

47. Mr Marino’s motion was thus dismissed.

48. Mr Marino then sought to challenge the reasons Barnett LCM had given, in a rather unseemly way.

49. This led his Honour to again observe that the matters which Mr Marino had raised were the very matters which would have to be decided on the hearing of the application for final orders, when the onus fell on the police.

Barnett LCM’s reasons were adequate

50. I am satisfied that given what had arisen for determination on Mr Marino’s application, the reasons which Barnett LCM gave in his unedited and unpunctuated record of ex-tempore remarks were adequate.

51. His Honour explained why Mr Marino’s case could not succeed, relying as he did on the Uniform Civil Procedure Rules and the Court’s inherent jurisdiction, given the proper construction of the legislative scheme. His Honour also explained why the case he advanced in relation to the exercise of the powers granted police to make provisional orders under the applicable requirements of the Crimes (Domestic and Personal Violence) Act, could not be accepted. No error has been shown in the conclusions reached about the proper construction of that Act, as I will explain.

52. That the reasons given were adequate is underscored by the fact that they were given at a time when the effects of the pandemic were having an adverse effect on the Local Court’s operations. His Honour acquiesced to Mr Marino’s insistent pursuit of his misguided application being heard and determined before the hearing of the application for final orders. His Honour’s reasons were entirely adequate, given what arose to be resolved and what justice required in the circumstances which had arisen to be considered.

53. The conclusions which his Honour reached about the statutory schemes were correct and the reasons given, albeit short, were sufficient to explain why the orders sought could not be made.

Did the Uniform Civil Procedure Rules apply in the Local Court?

54. In John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors 152 A Crim R 527; 62 NSWLR 512; [2005] NSWCA 101 it was held in proceedings concerning apprehended domestic violence orders then provided for by Part 15A of the Crimes Act 1900 (NSW), that the legislative scheme for such orders served a range of purposes distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. That Part of the legislative scheme was directed to the protection of the community in a direct and immediate sense, with individuals being able to obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. It was concluded that such orders provided the means of asserting the fundamental right to freedom from fear and the objects which they served were “quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.”: at [20].

55. Such orders are now provided for in the Crimes (Domestic and Personal Violence) Act, which makes express provision for how applications for apprehended domestic violence orders are to be heard and determined, including in urgent cases on application to police officers, as well as how they may be challenged.

56. In Cunningham v Cunningham [2012] NSWSC 849 Button J took the view that the Local Court’s jurisdiction under the Crimes (Domestic and Personal Violence) Act was not criminal in nature, but fell within Pt 4 Special Jurisdiction of the Local Court Act 2007 (NSW).

57. In Henskens v Rudd [2020] NSWSC 533 Adamson J took a similar view. Her Honour observed that such proceedings were not criminal. Rather, they constitute “civil proceedings” within the meaning of ss 3 and 4 of the Civil Procedure Act 2005 (NSW), schedule 1 of which refers to s 91 of the Crimes (Domestic and Personal Violence) Act, for which the Local Court has special jurisdiction under Pt 4 of the Local Court Act: at [62].

58. Section 3 of the Civil Procedure Act defines civil proceedings to mean “any proceedings other than criminal proceedings”. Section 4(1) provides for Parts 3–9 of that Act to apply to the courts referred to in Schedule 1, in relation to civil proceedings of a kind referred to in that Schedule in respect of that court.

59. Schedule 1 refers to “All civil proceedings for which the Local Court has jurisdiction under section 91 of the Crimes (Domestic and Personal Violence) Act 2007”. Section 91 relevantly gives the Local Court jurisdiction to make orders and determine applications brought under that Act, except where the defendant is less than 18 years of age at the time the application is made.

60. The Civil Procedure Regulation 2017 (NSW) is made under the Civil Procedure Act 2005, which in s 4(4) permits the making of regulations which exclude classes of civil proceedings from operation of parts of the Act. Regulation 16 now provides that:

“Any civil proceedings for which the Local Court has jurisdiction under section 91 of the Crimes (Domestic and Personal Violence) Act 2007 are excluded from the operation of sections 19–86 and 88–149 of the Act.”

61. The Civil Procedure Act includes powers of case management in Part 6. They include giving directions, including to dismiss proceedings generally or in relation to a particular claim, or to strike out or limit a defence: s 61; and to stay and adjourn proceedings: s 67. The effect of Reg 16 is, however, to exclude their application to the proceedings in which Mr Marino was involved in the Local Court.

62. For their part the Uniform Civil Procedure Rules, which may not be inconsistent with the Civil Procedure Act (s 9), apply only to the courts referred to in Column 1 of schedule 1 of the Rules, in relation to civil proceedings of a kind referred to in Column 2: r 1.5. That schedule provides, for example, that the Rules apply to all civil proceedings in the Supreme and District Courts. But that schedule does not include all civil proceedings in the Local Court, only those brought under Pt 3 in its General and Small Claims Divisions.

63. It follows that the Uniform Civil Procedure Rules also did not apply to the application for final orders brought by police in the Local Court in respect of Mr Marino under the Crimes (Domestic and Personal Violence) Act. They have been brought under Pt 4 of the Local Court Act.

64. Section 71 of the Local Court Act also permits rules to be made for or with respect to specified matters relating to application proceedings. The Local Court Rules 2009 (NSW) do make specific provision in Pt 4 for application proceedings, including for orders staying or summarily dismissing applications. But they also do not apply to proceedings commenced under the Crimes (Domestic and Personal Violence) Act 2007: r 4.1.

65. It follows that the orders which Mr Marino pressed Barnett LCM to make, summarily dismissing the application for final orders under the Uniform Civil Procedure Rules, were thus orders which the Local Court had no power to make in proceedings under the Crimes (Domestic and Personal Violence) Act, as his Honour correctly found.

66. The Local Court had the particular powers granted by the Crimes (Domestic and Personal Violence) Act and, Barnett LCM considered, those arising under the Court’s inherent jurisdiction, which he accepted included a power of summary dismissal.

67. The Crimes (Domestic and Personal Violence) Act contains specific powers in relation to the conduct of applications: s 62; adjournments: s 65 and stay: s 68 and 85, but no power of summary dismissal.

68. Given the nature of this statutory scheme and the exclusion of the operation of the Civil Procedure Act, the Uniform Civil Procedure Rules and Local Court Rules, which provide for summary dismissal, that there was any power which could have been exercised to summarily dismiss the police application under the Crimes (Domestic and Personal Violence) Act, is clearly questionable.

69. In Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 the limited jurisdiction of a magistrate’s court was considered and the difference between such a court’s limited implied powers, which serve similar functions to the inherent power of a superior court, was discussed: at 21-23. There it was observed that “a grant of power carries with it everything necessary for its exercise” and that “such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction”.”

70. In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 it was observed at [51], in the context of the District Court’s powers, that the term "necessary" in such a setting involves “identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement”, there in the case of the District Court. Further, that the term “does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness".

71. It has also been held that the test for the identification or existence of an implied power is whether it is necessary to secure the proper administration of justice in the proceedings before the Local Court, that is necessary for the proper function of the court, not what is merely desirable or useful: John Fairfax Publications Pty Ltd v Ryde Local Court at [45].

72. It follows that there was an implied power to summarily dismiss an application for final orders under the Crimes (Domestic and Personal Violence) Act is unlikely, because that would not be necessary for the proper function of the Court. Even if there was, his Honour was correct in refusing to do exercise that power.

Did Barnett LCM err in his construction of s 26 of the Crimes (Domestic and Personal Violence) Act?

73. That is because, for reasons which follow, Mr Marino’s case on the proper construction of s 26 cannot be accepted

Mr Marino’s case on appeal

74. Mr Marino’s case was that when LSC Gregg made her application, the power to make an application under s 26 had not been enlivened, because there had been no “incident”, nor any information provided, which established good reason for her to believe that a provisional order needed to be made immediately, to ensure the safety and protection of Mr and Mrs Bello.

75. That, Mr Marino submitted, required what could be considered to be an emergency type situation to exist. In the result, the provisional orders made on LSC Gregg’s application had been made without power and were illegal. The action taken to seek a provisional order had been manifestly groundless and taken at its highest, the application for final orders had no prospect of success and was doomed to fail.

76. On the materials before him, Barnett LCM had also failed to properly construe ss 25 and 26 and ought to have summarily dismissed the application.

The scheme of the Crimes (Domestic and Personal Violence) Act

77. This statutory scheme relevantly involves:

1. Applications for a provisional order being made at the request of the protected person, or on the applicant officer’s own initiative: s 25(3)(a);

2. Such applications being transmitted by telephone, facsimile or other communication device by an applicant officer or another person on their behalf if it is not practicable for the application to be made by the applicant officer, to the authorised officer or senior police officer: s 25(3)(b);

3. The circumstances in which such an application may be made “at any time” are specified in s 26(1). They are when:

“(a) an incident occurs involving the person against whom the provisional order is sought to be made and the person who would be protected by the provisional order, when the officer has:

(b) good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person.”

4. Section 27(1) requires an application for a provisional order to be made:

(a) if the officer investigating the incident suspects or believes that -

“(i) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or

(ii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or

(iii) proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and

(b) the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person.”

5. A “domestic violence offence” is defined in s 11 to mean “an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

“(a) a personal violence offence, or

(b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).”

6. Such an offence includes offences under the Criminal Code Act 1995 of the Commonwealth: s 11(2). They include using carriage services to menace, harass or cause offence: s 474.17 OF the Criminal Code Act;

7. If satisfied that there are reasonable grounds for doing so, an authorised officer or senior police officer may then make a provisional order: ss 28 and 28A;

8. A provisional order is taken, for the purposes of the Act, to be an application for a court order by the applicant officer under Pt 10: s 29;

9. The making of the provisional order must be recorded in the way specified in s 30;

10. A provisional order must be served personally on the defendant and protected person, as soon as practicable after it is made: s 31;

11. A provisional order remains in force until it is revoked, ceases to have effect when an interim or final order is made, or the application is withdrawn or dismissed: s 32;

12. A defendant has the right to defend an application for final orders: s 60;

13. A provisional order may be varied or revoked on application of a police officer or defendant by any court dealing with the application for an order: ss 33 and 33A;

14. On a defendant’s application notice must be served on the Police Area Commander or Police District Commander and the police may appear in the proceedings: ss 33A(4) and (5);

15. The Local Court also has power to stay any application proceedings and the enforcement of any order: s 68; and

16. The Local Court may also vary or revoke interim and final orders: s 73.

The proper construction of the statutory scheme

78. Barnett LCM’s reasons establish that he did not misunderstand the requirements of the statutory scheme.

79. Section 25(3) provides that an application for a provisional order –

“(a) may be made at the request of the protected person or on the applicant officer’s own initiative, and

(b) may be transmitted to the authorised officer or senior police officer by another person on behalf of the applicant officer if it is not practicable for the application to be made by the applicant officer by telephone, facsimile or other communication device directly to the authorised officer or senior police officer.”

80. There was no issue that the application for the provisional order was made by LSC Gregg, at Mrs Bello’s request, after she first attended the Woy Woy police station and made her initial statement.

81. Neither Mrs Bello’s request, nor the written application LSC Gregg made for the provisional order, which was later granted, were made by telephone. Mrs Bello provided copies of the written communications which caused her concern. They formed a part of the basis upon which LSC Gregg concluded that the application for a provisional order should be made, as she explained in her statement.

82. LSC Gregg’s written application was provided to Sergeant Lincoln, by a communication device, with the result that the provisional order was made. That accorded with the applicable statutory requirements.

83. Section 26(1) provides:

“(1) An application may be made by telephone, facsimile or other communication device if—

(a) an incident occurs involving the person against whom the provisional order is sought to be made and the person who would be protected by the provisional order, and

(b) a police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person.”

84. The word “incident” is not defined in the Act and thus takes its ordinary meaning. That word is defined in the Macquarie Online Dictionary to mean “an occurrence or event”. Whether there has been an incident is a question of fact, for the police officer who makes or refuses to make the application for a provisional order, to satisfy him or herself about.

84. It follows that there was no error in Barnett LCM’s understanding of the operation of s 26(1).

85. On the material she had to consider, LSC Gregg concluded that the section had been enlivened, given the circumstances Mrs Bello reported. They involved Mr Marino’s repeated communications and the other matters which Mrs Bello reported and which LSC Gregg had to consider, which eventually formed part of the police brief. What thus arose to be considered by LSC Gregg included abusive and threatening text messages and emails that Mrs Bello understood and LSC Gregg concluded, had come from Mr Marino.

86. It follows that there was no error of law in the conclusion that the sending and receipt of such communications involved an incident or incidents, as s 26(1)(a) required.

87. Section 26(1)(b) required LSC Gregg to have good reason to believe that a provisional order needed to be made immediately, to ensure the safety and protection of Mrs Bello and her husband.

88. Mrs Bello’s concerns about these communications were explained in her initial statement and revisited in her second statement, in relation to further communications which she had received. The resulting fears were identified in the application for the provisional order which LSC Gregg made, to be:

“Fears held by victim: That because the VIC continues to ignore the POI his obsession and frustration will only continue to increase and he will actually come to her residence as he knows where she lives.

Fears held by the Police: The POI appears mentally unstable and seems to have an unhealthy obsession with the VIC. The POI’s behaviour is harassing and causing stress in the VIC.”

90. In her statement LSC Gregg also explained:

“8. I find the actions of the defendant MARINO obsessive and controlling, they appear to become more erratic, intense and unpredictable. They are causing mental harm to Mrs Bello and the increased desperation of his behaviour leads me to fear what actions MARINO might take the longer she continues to have no contact with him.”

91. On that material there was no error in Barnett LCM accepting that LSC Gregg had good reason to believe that an order needed to be made immediately, to ensure the safety and protection of Mr and Mrs Bello.

92. Mr Marino relied on Tilse v NSW [2013] NSWDC 265, to submit that there Neilson J had laid down principles giving the issue of provisional orders, which this Court is bound to follow.

93. That submission may not be accepted. There his Honour was concerned with whether the requirements of s 26 had been satisfied in circumstances which involved an affray and whether provisional orders could be made in favour of persons who had witnessed, rather than been involved in, the affray. Those circumstances are not analogous to what here arises to be considered and Neilson J laid down no binding principles, as to the general operation of the section.

94. It follows that there was no error in Barnett LCM’s conclusion that the information provided to LSC Gregg satisfied the requirements of s 26; may have enlivened the obligation to make the application imposed by s 27(1); and permitted the exercise of the discretion to make the application given by s 28A.

Collateral purpose

95. In his further written submissions Mr Marino contended that Mr and Mrs Bello, through the Commissioner, had initiated the action taken by LSC Gregg in order to frustrate, hurt and impede his Federal Court proceedings, to which he made reference in some of the messages which became the subject of the complaint made to police in April 2020. That has not been established.

96. Mr Marino also contended that the police action was obviously untenable and manifestly groundless, so as to be utterly hopeless. That has also not been established.

97. Given the terms of the communications about which Mrs Bello’s complaint was made, neither is apparent. But as Barnett LCM observed, that is a matter for the Local Court to consider, when the application for final orders is heard.

98. Mr Marino also contended that his contact had not been systematic and so could not constitute harassment, especially given that it concerned legal proceedings and was intended to achieve a settlement.

99. These are also matters for the Local Court to consider at the final hearing, as are his complaints about the police brief with which he has been served.

100. Mr Marino also advanced other submissions about matters relevant to the family law proceedings, which are also not for this Court to determine.

Orders

101. The onus fell on Mr Marino to establish that there had been an error made by Barnett LCM in the Local Court, warranting this Court’s intervention on appeal. That onus has not been satisfied.

102. Nor has he established that an “incredible wrong which has fallen through the cracks” has occurred, which this Court should act to remedy, as he submitted.

103. For the reasons given, Mr Marino has established no basis upon which his appeal could be upheld. In the result it must be dismissed.

Costs

104. I have not heard the parties on costs, which are reserved.

105. If the Commissioner wishes to be heard on costs, short written submissions should be filed within ten days, to which Mr Marino should provide a written response, within a further ten days.

106. Unless the parties seek, within that time, to be heard further I will determine the question of costs on those papers.

Orders

107. For the reasons given I now order that:

1. Leave to file the appeal out of time and to appeal an interlocutory order is granted;

2. The appeal is dismissed.

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Amendments

04 May 2021 - Error in spelling of name

04 May 2021 - name correction

05 May 2021 - name correction

25 May 2021 - name correction

26 May 2021 - number correction