Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock

[2023] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

Hearing dates:

29 March 2023

Decision date:

20 April 2023

Before:

Bell CJ at [1];
Leeming JA at [2];
Kirk JA at [64]

Decision:

In 2022/273744:

1. Amended summons filed 2 February 2023 dismissed.

2. No order as to costs, with the intention that the parties bear their own costs.

In 2023/39132:

1. Refuse the extension of time for the filing of the appeal, with the result that the summons filed 2 February 2023 be dismissed.

2. No order as to costs, with the intention that the parties bear their own costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – application to revoke apprehended violence order after order had expired – Local Court dismissed application – District Court dismissed appeal – conceded jurisdictional error by District Court – whether relief should be withheld because District Court reached correct conclusion

STATUTORY CONSTRUCTION – amending legislation introduced express provisions authorising revocation of expired apprehended violence orders in 2008 – statutory review recommended repeal of power to revoke expired apprehended violence orders – 2016 amendments repealed provisions authorising revocation of expired apprehended violence orders – ordinary meaning of statute after 2016 amendments permitted applications to revoke apprehended violence orders to be made “at any time” – whether legal meaning of statute departed from literal meaning

Legislation Cited:

Coroners Act 2009 (NSW), Ch 9A

Crimes Act 1900 (NSW), s 61

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

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 6, 11, 14, 24, 32, 39, 40, 72, 72A, 72B, 72C, 72D, 73, 74, 75, 79, 84, 104, Pt 10 Div 5

Crimes (Domestic and Personal Violence) Amendment Act 2008 (NSW)

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

Director of Public Prosecutions Act 1986 (NSW), s 10

Firearms Act 1996 (NSW), s 29

Interpretation Act 1987 (NSW), s 33

Cases Cited:

C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905; [1973] 2 All ER 513

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11

Deputy Commissioner of Taxation v Armstrong Scalisi Holdings Pty Ltd [2019] NSWSC 129; 343 FLR 374

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48

Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32

Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8

Texts Cited:

Lord Diplock, “The Courts as Legislators” in Brian W Harvey, The Lawyer and Justice (Sweet & Maxwell, 1978)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 December 2008

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

Category:

Principal judgment

Parties:

In 2022/273744:
Robert Macdonald Wass (Plaintiff)
Director of Public Prosecutions (First Defendant)
District Court of New South Wales (Second Defendant)
Local Court of New South Wales (Third Defendant)

In 2023/39132:
Robert Macdonald Wass (Applicant)
Constable James Wilcock (First Respondent)
Christopher Ian Wass (Second Respondent)
Commissioner of Police (Third Respondent)

Representation:

Counsel:
D J Hooke SC, A Schonell (Mr Robert Wass)
J Davidson (Director of Public Prosecutions)
T Hammond (Commissioner of Police)

Solicitors:
Peacockes Solicitors (Mr Robert Wass)
Solicitor for Public Prosecutions (NSW) (Director of Public Prosecutions)

File Number(s):

2022/273744; 2023/39132

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 March 2022

Before:

N Williams DCJ

File Number(s):

2018/329996

HEADNOTE

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

Mr Robert Wass pleaded guilty to a charge of common assault upon his nephew. The Local Court did not record a conviction, but made an apprehended violence order for a period of 12 months, as was the default position because the offending fell within the definition of a “domestic violence offence” under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Mr Wass was unable to obtain a permit under the Firearms Act 1996 (NSW) while he was, or had been at any time within the last 10 years, subject to an apprehended violence order, other than an order that has been revoked.

After the apprehended violence order expired, Mr Wass applied for it to be revoked. The Local Court dismissed his application, and the District Court dismissed his appeal.

In their current form, ss 72A and 73 of the Crimes (Domestic and Personal Violence) Act provide that “An application may be made to a court at any time” and “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 order”. Mr Wass submitted that those words bore their ordinary meaning, and authorised an application to revoke an apprehended violence order, even after it had expired. The District Court held that the words “at any time” were to be read as restricted to “at any time prior to the expiry of the apprehended violence order”.

Mr Wass brought proceedings in the Court of Appeal seeking judicial review of the District Court decision. The Director of Public Prosecutions (NSW) conceded that the District Court decision was vitiated by jurisdictional error, because it was not possible to read “at any time” as qualified in the way in the way the District Court had held. Nonetheless, the Director submitted that the result reached by the District Court was correct, in light of the legislative history and purpose of the provision.

The issue was whether an application could be made to revoke an apprehended violence order after it had expired.

The Court held, dismissing the summons:

Per Leeming JA (Bell CJ and Kirk JA agreeing):

1. The legislative history and purpose pointed unequivocally to the legislation having a confined meaning. As originally enacted the legislation had been regarded as not authorising applications to revoke expired apprehended domestic violence orders. Amendments made in 2007 expressly authorised such applications. A statutory review recommended their abolition, and amendments in 2016 implemented that recommendation and removed provisions which had expressly authorised such applications: [26]-[44].

2. Other uses of “revoke” in the statute suggested that the word was only used in relation to unexpired orders. The same was true of the power to “vary” an apprehended violence order: [49]-[52], [54]-[55].

3. If the provision applied to revoke an expired order, then part of the former regime was otiose: [53].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 and State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86, applied.

4. Consideration of the modern approach to statutory construction, the need to consider context in the first instance, the obligation to prefer a meaning which accorded with the legislative purpose, and the requirement that the legal meaning be available on the text enacted by Parliament: [3]-[5], [59].

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 and Interpretation Act 1987 (NSW), s 33, applied and followed.

Judgment

1. BELL CJ: I agree with the reasons of Leeming JA and the orders his Honour proposes. I also agree with his Honour’s observations in relation to the skill with which the arguments on both sides were developed and defended under extensive questioning from the Bench. I would also endorse Leeming JA’s observations at [62] as to the desirability of legislative clarification of Division 5 of the Act.

2. LEEMING JA: Stripped of their procedural complexity, these two capably argued proceedings resolve to a single point: can a person who has been the subject of an apprehended violence order apply to the Local Court for its revocation after it has expired? The plaintiff/applicant, Mr Robert MacDonald Wass, did just that, because he was not permitted to hold a licence to possess a firearm if an unrevoked order had been made against him in the last decade. There is no doubt that, after the amendments effected by the Crimes (Domestic and Personal Violence) Amendment Act 2008 (NSW) and until the commencement of those effected by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW), he was entitled to make such an application. There is also no doubt that the review mentioned in the short and long titles of the 2016 statute recommended that such applications should no longer be permitted, and that one purpose of the statute was to give effect to that recommendation. Nor is there any doubt that previous provisions (subsections (5)-(8) of s 72) which had been introduced in 2008 so as to authorise such applications were omitted. After the 2016 amendments, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) continued, however, to provide that an application to vary or revoke an order may be made “at any time”: s 72A read with s 72 of the pre-amended Act. Mr Wass principally relied upon these provisions as the basis of his argument. The issue is whether, contrary to the review and contrary to what the Attorney General told the Chamber, the Act continued to authorise such applications, notwithstanding the removal of subsections (5)-(8) of s 72. Indeed, on the construction propounded by Mr Wass, such applications rather than being forbidden have in fact been facilitated by the amendments. If Mr Wass is correct, then the statute has signally failed to achieve its stated purpose.

3. Both sides acknowledged that the issue did not turn on the “plain meaning” of the current form of the statute. This then is a case which confirms the “modern approach to interpretation” which “insists that the context be considered in the first instance” (K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48) and the general proposition that whether language is plain and unambiguous is a conclusion which can only be reached after regard to context and purpose. Thus all members of the High Court acceded to the proposition in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 that “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. This has been orthodoxy since the 1980s, and has consistently been applied. For example, it was recently observed in this Court that that “The statutory context, encompassing legislative purpose and history, sometimes requires the literal or ordinary meaning of words to be read more narrowly than they may, on a first review and when regard is had solely to the text of the legislation, appear to be appropriate”: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [57].

4. There is one respect, however, in which this is a very unusual case. Courts are well used to applying a contextual approach whereby weight is given to the legislative purpose, sometimes encapsulated in Lord Diplock’s metaphor, deployed by counsel during the appeal, that “if the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”: Lord Diplock, “The Courts as Legislators” in Brian W Harvey, The Lawyer and Justice (Sweet & Maxwell, 1978) 263 at 274. But if Mr Wass’ construction is accepted, this is not merely a case of the target being missed. This is a case where the legislation has backfired, facilitating the very thing of which it was the legislation’s purpose to abolish.

5. All of that said, courts may not rewrite a poorly drafted statute merely because it fails to achieve a clearly stated purpose. The question remains one of construction of the text enacted by the Legislature. The real question arising in this litigation is whether it is possible and appropriate and in accordance with principle to give a legal meaning to the amended statutory text which more closely accords with its purpose than what might be suggested by the literal meaning of the words “at any time” in s 72A.

Factual background

6. Mr Wass entered a guilty plea to a charge of common assault contrary to s 61 of the Crimes Act 1900 (NSW) in the Local Court at Warren. The complainant was his nephew, who, according to the facts sheet tendered without objection, was hunting for pigs on Mr Wass’ property without permission. Mr Wass punched his nephew in the face. The latter retaliated in kind. On 30 November 2018, the Local Court dealt with the matter without recording a conviction but imposed a conditional release order for a period of 12 months.

7. The offence of common assault to which Mr Wass pleaded guilty was a “personal violence offence” for the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (s 4), and therefore a “domestic violence offence” (s 11(1)), in light of the fact that uncle and nephew are “relatives” for the purpose of s 6 and therefore are taken by s 5 to be in a “domestic relationship”. Consequently the offence was taken to be a “serious offence” (s 40(5)(b)), and pursuant to s 39(1A) the Local Court was obliged to make a final apprehended violence order, subject to s 39(2) which provided that the Court need not make such an order “if it is satisfied that it is not required (for example because a final apprehended violence order has already been made against the person)”. The legal practitioner appearing for Mr Wass was asked and indicated that he did not wish to be heard against the making of the order.

8. The order made by the Court prohibited Mr Wass from assaulting, threatening, stalking, harassing or intimidating his nephew, or intentionally or recklessly destroying or damaging any of his property. The duration of the order was 12 months.

9. There were no breaches of the order. Around two years later, by application dated 9 October 2020, Mr Wass applied to the Local Court to revoke the order. The grounds of that application were treated by the Crown as being evidentiary and undisputed. They explained that at the time of the assault Mr Wass was 60 and had no criminal history, that there had been no contact between himself and his nephew subsequently, that the circumstances which led to conflict between himself and his nephew no longer existed, that he had previously held a licence under the Firearms Act 1996 (NSW) which authorised him to hold registered firearms used for the destruction of vermin on his farming and grazing property and the management of livestock, and that he had surrendered his firearms to police. He said that the effluxion of time, the change of residence of his nephew, and his ongoing need to properly manage his property were reasons to revoke the order.

10. The point of the application was to engage the exception in the closing words of s 29(3)(c) of the Firearms Act:

(3) Subject to this Division, a permit must not be issued to a person who—

…

(c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the permit was made, been subject to an apprehended violence order (other than an order that has been revoked) …

11. The application was dismissed by the Local Court on 14 July 2021. The Magistrate gave an ex tempore judgment, which referred to her Honour’s view that it had originally been necessary to insert subsections (5)-(8) of s 72 into the Act in order to allow an expired order to have applications made in respect of it, the clear intention of the 2016 statute was to remove the specific provisions which permitted application to be made in respect of expired orders, and that the enactment of ss 72A and 73 in general terms “does not in any way in my view suggest that it was intended by those general provisions to reinsert a specific power to apply to have expired orders removed, particularly when at the same time the legislature chose to remove the specific provisions applying to expired orders”. Her Honour concluded that “the present [A]ct allows revocation or variation applications only in respect of orders that are still on foot, not orders that have expired”.

12. On that basis, the revocation application in the Local Court was dismissed.

13. Section 84(2)(d) of the Crimes (Domestic and Personal Violence) Act gives a right of appeal to the District Court to “a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order”. Mr Wass exercised that right by notice of appeal filed on 6 August 2021. There was a hearing on 21 March 2022, and her Honour’s reasons record that the Crown made two submissions. One was “that the ordinary meaning of ‘revocation’ … [conveyed] an implied assumption that in order to revoke there must be something in existence”. The other was that “at any time” contained a latent ambiguity and had to be read as confined to at any time prior to the expiry of the order. Her Honour accepted the second submission:

I accept the Crown submission that there must be some reading down of those words “at any time” and I am of the view that that reading down should be that, to the effect of, at any time before the expiration of the AVO otherwise it simply does not make sense. Accordingly, having determined that those words “at any time” must be read down the applicant’s time frame is well beyond that of 29 November 2019. His rights to seek revocation of the AVO, in my view, had expired and cannot be reinstated by this very broad meaning of those words “at any time” which is sought by his counsel for the Court to accept.

14. No further appeal lies from the District Court. Mr Wass filed a summons in this Court’s supervisory jurisdiction, seeking to quash the orders of the District Court and have his undetermined appeal remitted to that Court.

15. More recently, in February 2023, Mr Wass filed an appeal from the Local Court decision, purportedly under ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW). In accordance with an indication from the Court of Appeal Registrar, that appeal was removed to this Court and heard and determined concurrently with the summons.

Procedural background

16. It is possible to address the procedural complexities concisely because of appropriate concessions made in advance of the hearing by the Director of Public Prosecutions (NSW), who was the active respondent in both proceedings, having taken over the conduct of the appeal pursuant to s 10 of the Director of Public Prosecutions Act 1986 (NSW).

17. There was no opposition to the extension of time for Mr Wass’ application for judicial review of the judgment of the District Court confirming the Local Court’s decision that his application was not permitted. Further, it was conceded that the District Court fell into jurisdictional error by reading additional words qualifying “at any time” into the new s 72A of the Crimes (Domestic and Personal Violence) Act. The issues arising on the summons seeking judicial review, therefore, are whether the error conceded on the part of the District Court was immaterial, or alternatively, whether as a matter of discretion, no relief should issue, in either case because, on its true construction, the Court was correct to dismiss the appeal and Mr Wass’ application was not authorised by the statute.

16. Mr Wass’ appeal gives rise to separate procedural problems. It is very substantially out of time, but the Director does not oppose it on that basis. The Director however maintains that the operative decision is, until such time as it is quashed by order of this Court, that of the District Court, so that the appeal is incompetent. Against this, Mr Wass points to the qualification in Wishart v Fraser (1941) 64 CLR 470 at 483; [1941] HCA 8 that that rule applies only until the court exercising supervisory jurisdiction is satisfied that the inferior court’s order was made without jurisdiction and is therefore “totally void”, which state of satisfaction will readily be reached having regard to the Director’s concession of jurisdictional error. Next, the Director says that Mr Wass had a single route of appeal, namely the full de novo appeal to the District Court conferred by s 84(2)(d), rather than a choice between that appeal and an appeal to the Supreme Court, on the basis that the specific grant in s 84(2)(d) excludes the general right under the Crimes (Appeal and Review) Act. Next, if that be wrong and there are two alternative routes, the Director says that Mr Wass made an election and is bound by the course he has taken since August 2021. In response, Mr Wass seeks leave to discontinue his pending, undetermined appeal to the District Court.

17. On the view I take, it is unnecessary to determine any of those procedural complexities. Although some are not without interest, I have also concluded that it is inappropriate to determine them. The facts are highly unusual. Not commonly will there arise a decision of the Local Court on a pure question of law, which has been the subject of an appeal to the District Court in respect of which there is a concession of jurisdictional error and a preparedness to discontinue. Although I am conscious of the care not to mention ingenuity underlying Mr Wass’ response to the procedural complexities, this is an appropriate case to adhere to “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76]. The real issue in this appeal is the construction of the statute and, on the view I take, that is dispositive of the entirety of the litigation.

The construction of Division 5

20. Division 5 of Part 10 of the Crimes (Domestic and Personal Violence) Act is titled “Variation or revocation of final apprehended violence orders or interim court orders”. Section 72 defines “application” to mean, for the purposes of that Division, “an application for the variation or revocation of a final apprehended violence order or interim court order”. The principal substantive provisions in the Division are ss 72A, 72C and 73. (Sections 72B and 72D address the case where the protected person is a child, s 74 deals with the case where there are more than one protected person, and s 75 deals with the case where a person is found guilty of an offence and empowers the court to vary the order for the purpose of providing greater protection. No party contended that any of these provision were relevant to the issues in the present case.)

21. In their present form, and in the form they took when the appeal to the District Court was commenced and heard, the salient provisions in the Division were as follows:

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.

…

72C Commissioner must be notified if application relates to police-initiated order

(1) The court must decline to hear an application in respect of a police-initiated order unless—

(a) the application is made by a police officer, or

(b) the court is satisfied that notice of the application has been served on the Commissioner of Police in accordance with the rules of the court.

(2) The Commissioner of Police has standing to appear in proceedings for the variation or revocation of any police-initiated order.

…

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.

22. Mr Wass’ submissions had the attraction of simplicity and concision.

23. Section 72A(1) expressly authorises an “application” to be made to a court “at any time”. It was agreed that those latter words bear their ordinary meaning, and extend to a time after the order has ceased to be in force. The “application” referred to in s 72A bore the same meaning as the definition of that term in s 72, which included an application for the revocation of a final apprehended violence order. Thus, so it was said, the application could be heard and determined at any time. There was no dispute that Mr Wass continued to be affected by the expired, unrevoked order, by reason of s 29(3)(c) of the Firearms Act.

24. Submissions were also made in respect of the regime in subsections (7), (8) and (9) of s 73, which addresses applications made shortly before the expiry of an order, with a deemed extension of the operation of the order in the meantime. On the one hand that might be thought to point towards an implication that applications had to be made prior to an order’s expiry. On the other hand, it might merely favour the conclusion that there was a different interim regime during the pendency of an undetermined application depending on whether it was made before or after expiry. I consider that no inference can safely be drawn either way from those subsections.

25. Read acontextually, Mr Wass’ submission, based on the definition of “application” and the authorisation to make an application “at any time” in s 72A(1), is very powerful. But courts must have regard to context in the first instance. Further, the command in s 33 of the Interpretation Act 1987 (NSW) to prefer a construction which would promote the purpose or object underlying the Act, over a construction that would not do so, requires one to pause before acceding to the submission that the plain meaning of the current form of the provision is unambiguous.

The earlier regime and the purpose of the legislation which enacted s 72A

26. The regime which obtained between 2008 and 2016 was quite different. It was replete with references to applications for revocation of orders after they had expired, and as has been seen this was central to the reasons of the Magistrate and the District Court judge, as well as to the Director’s submissions in this Court.

27. Division 5 of Part 10 of the Act in the form it took prior to the 2016 amendments included s 72 and, so far as is relevant, s 73 as follows:

72 Application for variation or revocation of final apprehended violence orders

(1) An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order.

(2) An application for variation or revocation may be made only by:

(a) the protected person (whether or not the protected person made the application for the original order) or, if there is more than one protected person, by one or more of the protected persons, or

(a1) the guardian of the protected person, in the case of a protected person in respect of whom a guardianship order within the meaning of the Guardianship Act 1987 is in force, or

(b) a police officer, or

(c) the defendant.

(3) Despite subsection (2), an application for variation or revocation of a final apprehended violence order or interim court order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application.

(4) The 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.

(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.

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 for variation or revocation of a final apprehended violence order or interim court 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.

…

28. It will be seen that four subsections, namely, subsections (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.

29. Subsection (8) also required the court to have regard to the effect that revocation of the expired order might now have on the protected person, having regard to the grounds on which it was made, and further, authorised the court to make orders precluding further applications to revoke without leave. The legal effect of former s 72(8) may be summarised thus: in the particular case of a revocation application being made in respect of an order which had expired, there was (a) a special obligation to notify the Commissioner of Police, (b) a special Peko-Wallsend mandatory relevant consideration, being the effect on the protected person, and (c) a special power to deny, for a stated time period, the entitlement of persons to apply to the court.

30. Those four subsections were not re-enacted in 2016. If as Mr Wass submits the amended legislation nonetheless permits such applications to be made, it is clear that there is no longer the special requirement to notify the Commissioner of Police, nor the special mandatory relevant consideration, nor the special power to deny repeat applications. The consequence is that in some respects, the effect of the amendments on the construction propounded by Mr Wass was to liberalise the circumstances when an expired order might be revoked. As it was candidly put in argument:

LEEMING JA: In short, it’s become much easier to revoke expired final orders, following the changes, on your submission.

HOOKE: It confers a broader discretion.

LEEMING JA: That’s probably a better way of putting it. The more constrained power explicitly, there, to revoke an expired order, is replaced by an open-ended power.

The 2008 amendments to permit the revocation of expired orders

31. Subsections (5)-(8) were introduced by the Crimes (Domestic and Personal Violence) Amendment Act 2008 (NSW). However, they were not a government measure, and were not found in the Bill as introduced or the explanatory memorandum. They were included by way of an amendment propounded in the Legislative Council by (what was then known as) the Shooters Party. The Hon Roy Smith said when introducing the proposed new subsections in committee:

The purpose of this amendment is to clarify section 72 of the Crimes (Domestic and Personal Violence) Act 2007 to make it clear that an application for revocation of an apprehended violence order may be made after the order has expired. Currently, for example, an application can be made to revoke an apprehended violence order 11 months into a 12-month apprehended violence order, but one day and one month later, after the term of the apprehended violence order has expired, the court will no longer accept such an application. This amendment makes it clear that an application for revocation of a final apprehended violence order may be made even though the order has expired: New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 December 2008 at 12596.

32. The non-opposition of the Government was said to come as a surprise to one member of the chamber, who said that she had been told the previous day it was opposed. She called, repeatedly, for the Attorney General to explain, and on the second occasion he did so, saying that “At the moment, once an apprehended violence order is granted, one is able to seek to have it revoked at any time during the duration of the order”, and that “The proposal that has been put forward will enable the court to hear an application after the expiration of the apprehended violence order”: Hansard, above, at 12598.

33. It is tolerably clear that the purpose of the amendments which introduced subsections (5)-(8) of s 72 was to authorise applications to revoke expired orders, something which had not previously been considered to be possible.

The review leading to the 2016 Act

34. The extrinsic materials leading to the enactment of the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 which repealed the measures inserted in 2008 are equally unequivocal.

35. The long title of that statute was “An Act to make miscellaneous amendments to the Crimes (Domestic and Personal Violence) Act 2007 and Chapter 9A of the Coroners Act 2009 (NSW) to give effect to the recommendations arising from the statutory reviews of that Act and Chapter; and for other purposes”. The reference to a “statutory” review was a reference to s 104 which required the Minister to review the Act “to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives”. The review was required to be undertaken as soon as possible after 3 years from the date of assent, and was to be tabled in each House of Parliament.

36. The review was titled, informatively if unimaginatively, Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It was undertaken by “Justice Strategy and Policy” within the Department of Justice. It was preceded by a Discussion Paper which raised a number of issues, including:

4 Revocation of AVOs

An AVO may be revoked both during (section 72(1)) and after (section 72(5)) its term. It has been suggested that it is undesirable to enable a person to apply to revoke an order that has expired.

37. The Review contained as Recommendation 12:

Section 72(5)-(8) of the Act should be repealed so that a [person previously subject to an AVO] cannot apply for the AVO to be revoked after it has expired.

38. The reasons for that recommendation were articulated at [5.39]-[5.47] of the review. Those paragraphs are in the following terms (footnotes omitted):

5.39 Under section 72 of the Act, an AVO may be revoked both during its term of operation and after its term has expired. Sections 72(5)-(8) provide that a Court may revoke an expired AVO if satisfied that if the order was still in force, it should be revoked. This test is based upon the circumstances at the time of the revocation application, not the circumstances when the AVO was in force.

5.40    The provision was inserted into the Act in order to ameliorate the effect of other pieces of legislation, specifically those governing licensing for firearms and other weapons.

5.41    For 10 years following an AVO’s expiry, a person who was subject to it cannot hold a firearms licence or a prohibited weapons permit.70 There is no discretionary power for a Court to enable such a person to hold a license or permit during this period.

5.42 Following the revocation of an expired AVO under section 72 of the Act, a defendant is eligible to apply for a license or permit as though the order had never existed.

5.43    Many stakeholders supported the Act being amended so that a defendant cannot apply for an AVO to be revoked after it has expired. The Chief Magistrate, for example, stated, “the fiction enabled by such provisions is an affront to the legitimacy surrounding the making of the original order”.

5.44    The NSW Police Force noted that there is ample provision for a defendant, PINOP or police to apply to revoke an AVO while it is in force.

5.45    The Inner City Legal Centre noted that applications to revoke an AVO after it has expired may distress victims years after the original AVO proceedings.

5.46    Some stakeholders thought that this aspect of the Act should not be changed. The Law Society of NSW’s primary concern was the impact on a person’s future employment, when the AVO was made against the person when they were a child. However, legislation governing employment checks has since been amended so that an AVO alone will not trigger a risk assessment review on an applicant.

5.47    The review considers that ability to revoke an expired order in order to avoid the consequences flowing from the record of that order’s existence is anomalous, unique and undesirable. Any concerns about a defendant’s ability to hold a firearms licence or prohibited weapons permit would be better dealt with by introducing a limited discretion into the legislation governing those permits. The review therefore recommends that the Act be amended to delete the provisions that allow a defendant to apply for an expired order to be revoked.

39. Other stakeholders supporting the removal of the ability to apply to revoke an expired order footnoted at [5.43] were NSW Family and Community Services, Redfern Legal Centre, Women’s Domestic Violence Court Advocacy Service Network, Women’s Legal Services, Hawkesbury Nepean Community Legal Centre, Manly-Warringah Women’s Resource Centre and Legal Aid NSW. Other stakeholders supporting the retention of the ability to apply to revoke an expired order footnoted at [5.46] were Elizabeth Evatt Community Legal Centre, NSW Young Lawyers and Victims’ Advisory Board.

The enactment of the 2016 statute

40. When the legislation was introduced to the Legislative Assembly, the Attorney General (who had carriage of the Bill) addressed the topic of revoking an expired order in some detail as follows:

With the passing of this bill, sections 72(5)-(8) of the Act will be repealed so that a defendant can no longer apply for an ADVO to be revoked after it has expired. Those provisions were inserted into the Act to ameliorate the effect of other pieces of legislation, specifically those governing licensing of firearms and other weapons. This is because, for 10 years following an ADVO's expiry, a person who was subject to it could not hold a firearms licence or a prohibited weapons permit.

The insertion of these provisions meant that a defendant was able to revoke an expired ADVO and therefore become eligible to apply for a licence or permit as though the ADVO had never existed. The statutory review considered that the ability to revoke an expired ADVO in order to avoid the consequences flowing from the record of that order’s existence is anomalous, unique and undesirable. The Act currently lists a range of possible conditions that the court may wish to make in an ADVO including, for example, location restrictions and restrictions on approaches to the victim when under the influence of alcohol and drugs. A prohibition on attempting to locate the protected person is not currently included in the list of potential conditions. Including this prohibition was a recommendation of the Family Violence report.

41. The Explanatory Memorandum accompanying the Bill stated the following:

Most provisions of the repealed section 72 are re-enacted in proposed sections 72B-72D. However, provisions which permitted a final apprehended violence order to be revoked after it had expired have not been re-enacted. This gives effect to recommendation 12 of the review. (Emphasis in original.)

42. It is perfectly plain that the repeal of subsections (5)-(8) of s 72 reflect recommendation 12. It is also perfectly plain that the authors of the review, and those propounding the Bill, did not consider that the effect of removing those subsections but leaving in place words equivalent to former s 72(1) (“An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order”) might be apt to be read so as to authorise the making of an application to revoke an order after it has expired. I did not understand Mr Hooke ultimately to contest that in this respect there was a serious mistake on the part of the drafters:

HOOKE: … The short point is that in our submission, this is just one – this is one of those cases where the … legislature missed the target. And what the Attorney thought was being enacted was with respect not being enacted.

43. It was also said on behalf of Mr Wass that the 2016 statute did not fully implement the statutory review. He drew attention to the reference in [5.47] to a limited discretion to be inserted into the Firearms Act, which has not occurred. I do not see how this detracts from the purpose to be attributed to the 2016 statute. The failure to amend the Firearms Act did not undermine or qualify the conclusion that the purpose of the 2016 statute was to prevent applications to revoke orders which had expired.

44. It is easy in light of the history to see why those involved in the preparation of the statutory review and the enactment of the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 may have regarded the removal of subsections (5)-(8) as sufficient to implement the recommendation to prevent applications being made to revoke expired orders. Those were the provisions inserted following acceptance of the amendment in 2008 propounded by the Shooters Party, on the basis that those amendments had been necessary in order to apply to revoke an expired order.

The construction of the legislative text

45. But it is necessary in light of the purposes disclosed in the materials summarised above to return to the text in order to resolve its legal meaning. It is necessary, in order to comply with s 33 of the Interpretation Act, to prefer a meaning which promotes the legislative purpose.

46. In response to Mr Wass’ submissions, the Director advanced two constructions, both of which were intended to reflect the command in s 33 of the Interpretation Act to give a construction which would promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object.

47. The first, and primary, construction was for the reference to “final apprehended violence order” in s 73(1) to mean an “operational” order – being an order which had not expired. The difficulties with that construction were pointed out with considerable skill by her opponent. The most substantial difficulty, to my mind at least, is that an order is “operational” in two distinct senses. The criminal consequences which attach directly to the breach of an order before its expiry (which in many cases impose a duty upon the Court to impose a sentence of a term of imprisonment: see s 14(4)) apply only during the duration of the order. However, the order remains “operational” in a real sense for Mr Wass for the nine years following its expiry, by reason of the effect it has denying his capacity to apply for a firearms licence. It is not necessary to summarise the other difficulties confronting this construction.

48. Alternatively, the Director focused upon the word “revoke”. She submitted that it was only possible to “revoke” an order while it remained in force. A number of textual and contextual considerations favour that construction.

49. First, this construction conforms with the use of the word “revoke” elsewhere in the statute. Interim and provisional orders remain in force until they are revoked or until a final order is made or the application is withdrawn. That is the force of ss 24 and 32 of the Act. Section 24 provides:

24   Interim court order ceases when final court order made or served

(1)  An interim court order remains in force until—

(a)  it is revoked, or

(b)  it ceases to have effect under subsection (2), or

(c)  the application for a final apprehended violence order is withdrawn or dismissed,

whichever first occurs.

(2) If a final apprehended violence order is made in respect of an interim court order (whether with or without variation), the interim court order ceases to have effect—

(a) in a case where the defendant is present at court—when the final apprehended violence order is made, or

(b)  in any other case—when the defendant is served in accordance with this Act with a copy of the final apprehended violence order.

50. Section 32 is in substantially identical terms but is applicable to provisional orders. Both provisions proceed on the basis that the order to be “revoked” under s 24(1)(a) or s 32(1)(a) must be one which had hitherto been in force. In neither of those sections is the word “revoke” used to apply to an order which has expired.

51. Section 79 deals with the duration of final apprehended violence orders. 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).

52. The effect of the first three subsections is that the order remains in force for the period specified in the order, in lieu of which for 12 months. The fact that those time periods are subject to the power conferred by s 73 is consistent with the conclusion that the s 73 power to vary can be exercised to extend the period during which an order remains in force, and the s 73 power to revoke can be exercised to reduce the period during which the order remains in force. If the s 73 power to revoke were confined to the revocation of orders which remained in force, that would sit easily with the operation of s 79(4) being subject to s 73. This is not however decisive, for the fact that one provision is “subject to” another does not mean that the two make different provision in respect of the same subject matter; it merely entails which is to prevail in the event that there is conflict. As Megarry J pointed out in C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911; [1973] 2 All ER 513 at 520, “[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail”: see also Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 580; [1997] HCA 38.

53. Secondly, a construction that the power to “revoke” is confined to orders which are in force also makes sense of former subsections (5)-(8) of s 72, in particular subsection (5). Mr Wass was forced to the submission that, under the earlier form of the legislation, subsection (5) was enacted for the avoidance of doubt, because on his preferred construction, former subsection (1) authorised applications to revoke an expired final apprehended violence order. That is of course possible, but telling against that is that it is “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71], quoting Griffith CJ in Commonwealth v Baume (1905) 2 CLR 405 at 414; [1905] HCA 11, and see also State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [57(4)]. Also telling against that construction is the purpose of the 2008 amendments.

54. Thirdly, it is natural to read the power in s 73 to “vary or revoke” as applying to the same object. But does it make sense to “vary” an order which has expired? This was raised during submissions:

KIRK JA: Your key focus is revocation. What about the notion of variation? Can one meaningfully vary a non-extant order?

HOOKE: Again, your Honour, the question of practical utility would loom very large.

KIRK JA: Sure, but is it part of your argument to say that, yes, you could even apply to vary a non-extant order?

HOOKE: In theory, but in practical terms, an application to do so once the order was expired would have no practical utility …

55. I do not think that the unlikelihood of a court’s being satisfied that “in all the circumstances it is proper to do so” is an especially attractive answer to the question. A better construction of s 73 is that power is only given to “vary” orders which have not expired. That supports the construction that power is also only given to “revoke” orders which have not expired.

56. Fourthly, that construction accords with at least some of the ordinary meanings of “revoke”. One speaks of revoking parole, or revoking bail, or revoking an offer at any time prior to its acceptance, in circumstances where the act of revocation will have immediate legal consequence upon the right or entitlement enjoyed immediately beforehand pursuant to the grant of parole, or the grant of bail, or the offer which was capable of acceptance. One does not speak of revoking parole or bail after the grant of parole or bail has ceased to entitle the person to conditional liberty. One does not speak of revoking an offer which is no longer capable of acceptance – or, if one does, one does so only out of an abundance of caution because there is a chance that the offer is capable of acceptance.

57. True it is that there are contexts in which the meaning of the word “revoke” is different. However, limited assistance is to be derived from the authorities collected in Deputy Commissioner of Taxation v Armstrong Scalisi Holdings Pty Ltd [2019] NSWSC 129; 343 FLR 374 at [137]-[145], not merely because they were in a revenue context, but also because the legislation made it clear that “where an estimate is revoked it is taken never to have been made”: see at [142].

58. Fifthly, this construction promotes the purpose of both the 2008 and, especially, the 2016 amendments.

Conclusion and orders

59. For those reasons, 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 ss 24 and 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.

60. Accordingly, the Local Court was correct substantially for the reasons it gave to dismiss the application, and the District Court was correct to dismiss the appeal, although for different reasons than were given. In the absence of any material error, the amended summons must be dismissed, and there is no occasion to extend the time within which the appeal is to be brought.

61. The respondents did not seek their costs. I would not in any event have favoured burdening Mr Wass with the costs of the Commissioner for Police. In part that is because of the principles stated in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118, it not having been established that there was any conflict of interest between the Commissioner and the Director, and thus no occasion for the unsuccessful party to bear two sets of costs. In part that is because despite being given the opportunity to do so, the Commissioner gave no explanation of why a submitting appearance had not been filed, or why she had declined to serve written submissions in advance of the hearing.

62. There is one final point. The Crimes (Domestic and Personal Violence) Act is important. Numerous applications are made under it every day in New South Wales. There must be many thousands of people affected by its operation. As the submissions summarised in the statutory review show, the power to revoke orders under the Act which have expired is contentious. There ought to be no doubt about whether or not that power exists, and it should not be necessary to read this Court’s judgment in order to answer that question. If the conclusion I have reached is wrong, it would be easy for the Legislature to clarify the position. But even if the conclusion I have reached is right, I would respectfully suggest that the statute be clarified so that the thousands of people affected by this legislation need not read this judgment in order to understand the position. It would suffice to include a provision “For the avoidance of doubt, an application to revoke an order may not [or may] be made after the order has expired.”

63. I propose the following orders:

In 2022/273744:

1. Amended summons filed 2 February 2023 dismissed.

2. No order as to costs, with the intention that the parties bear their own costs.

In 2023/39132:

1. Refuse the extension of time for the filing of the appeal, with the result that the summons filed 2 February 2023 be dismissed.

2. No order as to costs, with the intention that the parties bear their own costs.

64. KIRK JA: I agree with Leeming JA.

**********

Amendments

30 October 2023 - correction to quotation at [4] by inserting "to" before "record" and "been" before "missed"

- correction to quotation of s 39(2) at [7] by inserting "that" before "it is"

- deleted "either way" before words "can safely" in final sentence of [24]

- inserted "of" after "both" in [46]

- replaced "Act, which provide" with "Act. Section 24 provides" in [49]

Decision last updated: 30 October 2023