Peach v Wymer
[2007] NSWSC 690
•22 June 2007
CITATION: PEACH v WYMER & ORS [2007] NSWSC 690 HEARING DATE(S): 22 June 20007 JURISDICTION: Common Law JUDGMENT OF: Adams J at 1 EX TEMPORE JUDGMENT DATE: 22 June 2007 DECISION: (i) The record of the Local Court in proceedings 00171301/06/172 be brought up; (ii) the decision of the Magistrate as to the Court’s jurisdiction to grant an order for the protection of Nicole Wymer be quashed; (iii) the matter be remitted back to the Local Court to be dealt with in accordance with the judgment of this Court; and ; (iv) the defendants to pay the plaintiff's costs. LEGISLATION CITED: Crimes Act 1900, Pt 15A s 562ZQ PARTIES: Geoffrey Christopher Michael PEACH (Plaintiff)
Stuart WYMER (First defendant)
Nicole WYMER (Second defendant)
The NSW Local Court (Third defendant)FILE NUMBER(S): SC 30063/07 COUNSEL: Mr M Hay (Plaintiff)
Mr B Longville (First and second defendants)SOLICITORS: Huntington Karras (Plaintiff)
LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 00171301/06/172
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADAMS J
FRIDAY 22 JUNE 2007
30063/07 - Geoffrey Christopher Michael PEACH v STUART WYMER & ORS
ADMINISTRATIVE LAW LIST
JUDGMENT
1 HIS HONOUR: On 20 December 2006 a complaint was affirmed and a summons issued at Sutherland Local Court by Mr Stuart Wymer seeking orders for the protection of himself and his wife against apprehended violence by Geoffrey Peach, who is the plaintiff in this Court. Objection was taken to the jurisdiction of the Local Court to make an order for the protection of Mrs Wymer because she was not a complainant. (Part 15A was amended after the commencement of proceedings but before the hearing in the Local Court. It is agreed by the parties that the provisions dealing with the present problem were relevantly unchanged. For ease of reference I have chosen to use the new section numbers and “application” rather than “complaint”.)
2 The matter is governed by Pt 15A of the Crimes Act 1900, crucially s 562ZQ, which provides for applications for an order (crucially in this case, subs (1)), and is relevantly in the following terms:
- “ 562ZQ Making of application for order
(1) …
(2) An application for an order may be made only by:
(a) a person for whose protection the order is sought, or
(b) a police officer.
(3) …
(4) An application for an order may be made by or on behalf of more than one person.
(5) …
(6) …
(7) …
3 I think it is inescapable that, where a police officer is not involved, an order can only be made to protect the applicant (or applicants – see below), subject to cases which arise under s 562ZU, where orders can be made where a person stands charged with certain specified offences. Section 562ZU does not apply in this case. Sub-section 562ZQ(4) permits joint applications by persons for whose benefit the orders are sought and, where a police officer applies, an application may be made on behalf of more than one person.
4 It is submitted, however, by Mr Longville for the first and second defendants, that other provisions within Pt 15A demonstrate that s 562ZQ(2) should be interpreted to mean that, where a person is seeking an order for his or her own protection, that person may also seek an order for the protection of any other person. Reliance is placed by Mr Longville on s 562J(1), which permits an application for an apprehended personal violence order to be made for the protection of one or more persons against another person. However, that sub-section requires the application to be made “in accordance with Subdivision 2 of Division”, namely it must comply with, amongst other provisions, s562ZQ(2). Moreover, such an application might well be made by a police officer. At all events, there is no reason in principle why two persons could not be joint applicants if each of them is seeking an order against the same person, even apart from s562Q(4). It is important to note that an application for apprehended personal violence orders is a civil and not a criminal proceeding.
5 The purpose of s 562ZQ(2) is obvious. Given the possible range of circumstances that might lead to a desire for a protective order, the nature of the order, and the potential for intermeddling or vexatious applications, it is plainly desirable that only persons with a direct interest in such an order should be permitted to take proceedings, with the police left to apply for orders in other cases. I hasten to add that there is no suggestion here, as I see it, that Mrs Wymer does not have an interest in obtaining an order and the jurisdictional issue raised by the plaintiff can be easily resolved. However, in my view, it does require resolution.
6 Mr Longville also refers to s 562F(1), which is in the following terms:
(1) An application may be made in accordance with Subdivision 2 of Division 7 for an apprehended domestic violence order for the protection of:“ 562F Application for making of ADVO by court
(b) two or more persons against another person with whom at least one of those persons has or has had a domestic relationship.”(a) a person against another person with whom he or she has or has had a domestic relationship, or
7 He points in particular to s 562F(1)(b), which, he submits, assumes that a protected person may be other than the applicant. However, the section, in effect, expressly requires compliance with s562ZQ. It merely deals with the orders that may be made pursuant to an application which is itself duly made. Orders for the protection of more than one person may well be sought by a police officer or where an order is made under s 562ZU.
8 It follows, therefore, that the Local Court does not have jurisdiction pursuant to the application currently before it to make an order for the protection of Mrs Wymer. I do not see any impediment however in the making of a fresh application by Mrs Wymer or, indeed, in an amendment of the current application to add her as an applicant, so that the matter can continue. However, that is a matter for the defendants.
9 Accordingly, I make the following orders:
(i) that the record of the Local Court in proceedings 00171301/06/172 be brought up;
(ii) that the decision of the Magistrate as to the Court’s jurisdiction to grant an order for the protection of Nicole Wymer be quashed;
(iii) that the matter be remitted back to the Local Court to be dealt with in accordance with the judgment of this Court; and
(iv) that the defendants are to pay the plaintiff's costs.
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