Underhill v Murden

[2007] NSWSC 761

Reported Decision: 173 A Crim R 336

New South Wales

Supreme Court

CITATION:	Underhill v Murden [2007] NSWSC 761
HEARING DATE(S):	28 June 2007
JUDGMENT DATE :	13 July 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in Coffs Harbour Local Court on 17 April 2007 which dismissed the application for an apprehended domestic violence order commenced by the plaintiff. 2. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in Coffs Harbour Local Court on 17 April 2007, which refused the adjournment sought by the plaintiff. 3. A declaration that the learned Magistrate erred in law in refusing the adjournment. 4. A declaration that the learned Magistrate erred in law in forcing the application on for hearing on the first return date and in dismissing the application when the PINOP was not present. 5. A declaration that the jurisdiction of the learned Magistrate is constructively unexercised. 6. An order in the nature of mandamus that the matter be remitted to the Coffs Harbour Local Court to be determined according to law.
CATCHWORDS:	Natural justice - application for apprehended domestic violence order - refusal to adjourn on first mention date - dismissal of application - extent of jurisdiction - constructive failure to exercise jurisdiction.
LEGISLATION CITED:	Crimes Act 1900 s 15A, s 562ZQ(1), s 562ZZN(9) Crimes (Appeal and Review) Act 2001 s 59(2)(a) Local Courts Act 1982 s 46, s 46(1), s 46(3),
CASES CITED:	Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Maxwell v Keun [1928] 1 KB 645 Public Prosecutions v Gursel Ozakca & Anor [2006] NSWSC 1425 Sali v SPC Limited (1993) 67 ALJR 841 Solution 6 Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
PARTIES:	Ashley Ian Underhill Adrian Murden & Anor
FILE NUMBER(S):	SC 2007/12428
SOLICITORS:	Ms B Baker Solicitor Advocate for Crown Solicitor
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	13696/07/57
LOWER COURT JUDICIAL OFFICER :	Fleming LCM
LOWER COURT DATE OF DECISION:	17 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

13 July 2007

2007/12428 Ashley Ian Underhill v
Adrian Murden & Anor

JUDGMENT

1 HIS HONOUR: By a summons filed on 16 May 2007 the plaintiff, a police officer, seeks orders in the nature of prerogative relief against the second defendant, a judicial officer of the Local Court, in relation to her refusal on 17 April 2007 to grant an adjournment and the subsequent dismissal of the proceedings. Orders were also sought pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 to set aside the orders made by her Honour but are not proceeded with as s 562ZZN(9) of the Crimes Act 1900 applies.

2 The second defendant submits to the orders of the court. The first defendant has not appeared.

3 On 13 April 2007 the plaintiff applied for and obtained a provisional apprehended domestic violence order (ADVO) on behalf of Yvette Elizabeth Smith, the person in need of protection (PINOP), against her de-facto husband, Adrian John Murden, the first defendant. The provisional orders made by the authorised officer included the requirements that the first defendant was not to approach the PINOP’s premises within 12 hours of the consumption of intoxicating liquor or illicit drugs and that he was not to deliberately damage her property. A notice was served on the first defendant notifying him of the provisional orders and directing him to attend the Local Court at Coffs Harbour at 9.30am on 17 April 2007.

4 When the application for the ADVO came before her Honour for first mention on 17 April 2007, the plaintiff as the applicant for the ADVO was represented by a police prosecutor. Neither the PINOP nor the first defendant was present in court. After the matter was called, the police prosecutor advised her Honour that there was no appearance of either the defendant or the protected person and he did not have instructions why the PINOP was not there.

5 Her Honour responded:

“Well again I need an explanation and I’m [not] prepared to adjourn it in the absence of any explanation so I’ll stand that down.” (emphasis added).

6 The learned Magistrate, by the use of the word “again” was referring to a another application for an ADVO in the court’s list during which she informed the prosecutor that “in this region, sergeant, [PINOPs] are asked to come to court” (the Rovere application). It seems that her Honour had a practice at Coffs Harbour whereby PINOPs were required to be at court on the date that an ADVO application was first listed for mention.

7 A debate had ensued between the prosecutor and the learned Magistrate in the Rovere application during which the prosecutor had argued that if the ADVO application was not set down for hearing but was listed for mention and the defendant had not appeared, it would be a denial of natural justice to dismiss the application because the PINOP was not at court.

8 When the plaintiff’s application was recalled, the following exchange took place between the prosecutor and her Honour:

Prosecutor: “………..the defendant’s been called, no appearance. There’s no appearance of Yvette Smith. The Domestic Violence Liaison Officer has rung her mobile phone number. She’s not answering her telephone service, it goes to a message bank. I can’t put any particular reason why she’s not here today. It’s my application to put the matter over to another date for mention your Honour, ex parte hearing.
Her Honour: No well as I’ve indicated I’m prepared to deal with it
today on an ex parte basis if she was here.

Prosecutor: Yes.

Her Honour: She’s not here, that’s her opportunity to be heard. I note that there’s a matter the police can take the application again if it’s still in fact sought but where there’s no explanation I’m not prepared to adjourn it.
Prosecutor: Your Honour I don’t propose to offer any evidence before you. I wouldn’t be a party to the matter being dismissed today.
Her Honour: No well there’s no evidence offered and the matter is dismissed.”

9 The plaintiff contends that her Honour erred in law in refusing the plaintiff an adjournment and in dismissing the proceedings in circumstances where neither the PINOP nor the first defendant was present in court. In particular, it is submitted that:

(a) The decisions of her Honour to refuse the adjournment and
dismiss the proceedings were so unreasonable that no reasonable decision maker could have made them;
(b) That the decisions of her Honour to refuse the adjournment and
dismiss the proceedings denied the plaintiff natural justice and/
or procedural fairness;
(c) The decisions of her Honour to refuse the adjournment and
dismiss the proceedings were contrary to s 46 of the Local

Courts Act 1982.

10 The plaintiff principally contends that the refusal to grant the adjournment resulted in a denial of justice to the applicant for the ADVO application. This constituted a ‘serious injustice’ to both the plaintiff and the PINOP. This serious injustice was not necessitated, the plaintiff submits, by a need to do justice to the first defendant, the respondent to the ADVO. There was no prejudice to him as he had not even attended court. In such circumstances, the only motivation, the plaintiff argues, for the refusal of the adjournment can be the desire of the court to manage its own caseload. This consideration, the plaintiff submits, should not have been permitted the determinative weight apparently given to it by the second defendant and the plaintiff has been denied natural justice.

11 Although a refusal to grant an adjournment is a decision wholly within the discretion of the judicial officer, an appellate court will intervene if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to the other party. As was said by the High

Court (Brennan, Deane and McHugh JJ) in Sali v SPC Limited (1993) 67 ALJR 841 at [843]:

“In Maxwell v Keun [1928] 1 KB 645 at [650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. ” (emphasis added).

12 A rejection of an adjournment application motivated solely by reasons of case management may amount to a denial of natural justice. In Director of Public Prosecutions v Gursel Ozakca & Anor [2006] NSWSC 1425, Rothman J observed at [16]:

“However case management of itself is not a basis upon which an adjournment which renders an injustice to the applicant should be refused.”

13 His Honour went on to cite what was said by the High Court in Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 154, per Dawson, Gaudron and McHugh JJ:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

14 Part 15A of the Crimes Act 1900 provides for the granting of ADVOs. An application for an ADVO is to be made in accordance with Part 6 of the Local Courts Act 1982 (the LC Act): s 562ZQ(1). Within Part 6 of the LC Act is found s 46 which provides:

“ Time for hearing
(1) On the first return date for an application notice in any civil proceedings, or at such later time as the Local Court determines, the Court must set the date, time and place for hearing and determining the matter.
(2) The Local Court must notify the respondent of the date, time and place, if the respondent is not present.
(3) However, if the respondent is not present at the first return date, the Local Court may proceed to hear and determine the matter on that day at its discretion.
Note. The powers of the Local Court to adjourn proceedings are set out in section 54.”

15 Section 54 of the LC Act which is also contained in Part 6 provides that the court may at any stage of proceedings adjourn the proceedings generally or to a specified time and place. By subsection (3) a matter that is adjourned generally is required to be listed before a Local Court or registrar not later than 2 years after the adjournment. Section 35 is also found within Part 6. Section 35 relevantly is as follows:

“ Matters that may be dealt with by Local Courts
(1) If a Local Court is given power under any Act or other law to determine any matter or to make an order or impose a penalty, the matter is to be dealt with by a Local Court in accordance with this Part.
(2) This section applies to a power conferred before or after the commencement of this section.

(3) ……………..”

16 Her Honour was obliged to deal with the ADVO application in accordance with Part 6 of the LC Act.

17 In the present matter, the ADVO application was before her Honour on the “first return date”. Section 46(1) does not contemplate the proceedings being set down for hearing on the first return date itself by the Magistrate before whom the matter is first mentioned. However, if the respondent is not present at the first return date, the Magistrate may determine the application after an ex parte hearing.

18 A literal interpretation of s 46(3) of the LC Act would permit the Magistrate to hear and determine the matter on the first return date in the absence of the respondent even though the applicant who had appeared was not ready to proceed. However, as was said in Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 by Spigelman CJ at [81]:

“………..in contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism.”

19 Section 33 of the Interpretation Act 1987 requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. An underlying purpose of the LC Act is to ensure the proper administration of justice in proceedings before the Local Court. A construction of s 46(3) of the LC Act which would permit the court to force on for an ex parte hearing an applicant who was not ready to proceed on the first return date of an application for an ADVO would not promote the underlying purpose. Rather, it would promote a denial of justice which could not have been the legislature’s intention. Section 46(3) is to be interpreted so as to only apply when the respondent is not present on the first return date and the applicant is ready to present the applicant’s case. Such an interpretation accords with the purpose of the LC Act.

20 It follows that where the applicant for an ADVO appears on the first return date and the respondent does not, s 46 of the LC Act prohibits the application being set down for hearing on that day without the consent of the applicant. Should the applicant be ready to have the application heard ex parte, the Magistrate may proceed to hear and determine the matter. In the event of the applicant not being in a position to proceed ex parte on the first return date, the Magistrate may on that day or at a later time set the date, time and place for hearing of which the respondent must be notified by the court. With respect to her Honour, it appears that she was not mindful of the scope of s 46 when she forced the plaintiff’s application on for hearing.

21 This was not a case in which there was no appearance by the parties. Section 562ZQ(2) of the Crimes Act provides that an application for an ADVO may be made only by a police officer or by the person for whose protection orders are sought. The plaintiff, as a police officer, was the applicant for orders for the protection of the PINOP. The plaintiff was represented by the police prosecutor. The respondent, the first defendant, had not appeared. By forcing the application on for hearing on the first return date her Honour did not deal with the matter in accordance with Part 6 of the LC Act. The learned Magistrate erred in law.

22 It is evident that the practice directions made by her Honour for the conduct of ADVO applications within her circuit included a requirement for the PINOP to be present on the first return date even though the applicant was a police officer who was represented by the police prosecutor. The utility of these directions is readily understood. Should a respondent appear, the PINOP’s presence would enable the PINOP’s evidence to be given if interim orders were sought. Instructions might be obtained if consent orders were contemplated. An application could be determined on an ex parte basis if the respondent had failed to appear thereby providing the PINOP with the protection of final orders without an unnecessary adjournment. Unnecessary adjournments add matters to court lists which are already substantial. The efficient and timely disposal of the work of the court and the efficient use of the available judicial and administrative resources, it seems to me, were some of the objectives to which her Honour had regard in formulating her practice directions.

23 Notwithstanding these laudable objectives, the practice of refusing an adjournment where the absence of the PINOP is unexplained and then forcing the application on for hearing on the first return date does not provide a just determination of the proceedings. Her Honour, it appears, has adopted the stance that upon dismissal of an application, fresh ADVO proceedings could be commenced by police. Whilst that might be so, the dismissal of the application deprives the PINOP of the protection of provisional orders until further orders are made and service upon the respondent of the fresh application might prove to be difficult. Furthermore, a reluctant PINOP might be discouraged and lose confidence in the court by the termination of the proceedings. It should be remembered that the primary focus of the court’s jurisdiction pursuant to Pt 15A of the Crimes Act is the protection of the PINOP. As was said by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 519:

“The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. Apprehended violence orders constitute the primary means in the State of asserting the fundamental right to freedom from fear.”

24 The refusal to adjourn the proceedings resulted in an injustice to the plaintiff and to the PINOP. The opportunity to present the case was denied. An adjournment would not have resulted in any injustice to the first defendant who had not appeared. Moreover, the forcing on of the application for hearing on the first return date when the applicant was not in a position to proceed was beyond the proper exercise of her Honour’s jurisdiction.

25 The plaintiff seeks orders in the nature of certiorari and mandamus. A mistake of law, even as to the proper construction of a statute does not necessarily constitute a constructive failure to exercise jurisdiction. In the present case, however, there is a denial of natural justice. Her Honour has thereby constructively failed to exercise the jurisdiction conferred upon the Local Court: see Ozakca per Rothman J at [28]. As a consequence the ADVO has not been dealt with and is still before the Local Court leaving “the jurisdiction in law constructively unexercised”: see Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. An order in the nature of mandamus will issue to compel its exercise.

Orders

26 I make the following orders:

1. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in the Coffs Harbour Local Court on 17 April 2007 which dismissed the application for an apprehended domestic violence order commenced by the plaintiff.

2. An order in the nature of certiorari setting aside the decision of the learned Magistrate made in the Coffs Harbour Local Court on 17 April 2007, which refused the adjournment sought by the plaintiff.

3. A declaration that the learned Magistrate erred in law in refusing the adjournment.

4. A declaration that the learned Magistrate erred in law in forcing the application on for hearing on the first return date and in dismissing the application when the PINOP was not present.

5. A declaration that the jurisdiction of the learned Magistrate is constructively unexercised.

6. An order in the nature of mandamus that the matter be remitted to the Coffs Harbour Local Court to be determined according to law.

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