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

The proceedings involved two separate summonses heard together, brought by Mr Wass against the Director of Public Prosecution (NSW) and Constable Wilcock. Mr Wass sought judicial review of decisions made by the Local Court and the District Court concerning his application to revoke an apprehended violence order (AVO) that had already expired. The District Court had dismissed Mr Wass's appeal against the Local Court's decision, and it was conceded that the District Court had made a jurisdictional error. The central question before the Court of Appeal was whether relief should be withheld despite this conceded error, given that the District Court had ultimately reached the correct conclusion.

The legal issues before the Court of Appeal were twofold. Firstly, it had to determine whether the District Court's conceded jurisdictional error warranted withholding relief, even if the District Court's ultimate conclusion was correct. Secondly, the court was required to interpret the relevant legislative provisions concerning the revocation of expired AVOs, particularly in light of amendments made in 2008 and 2016. The 2008 amendments had introduced express provisions authorising the revocation of expired AVOs, but a subsequent statutory review recommended their repeal. The 2016 amendments subsequently repealed these provisions. The court had to consider whether the ordinary meaning of the statute after the 2016 amendments, which appeared to permit applications to revoke expired AVOs "at any time," departed from its literal meaning and, if so, what the correct interpretation should be.

The Court of Appeal reasoned that while the District Court had indeed made a jurisdictional error, the question of whether to grant relief in such circumstances involved a consideration of whether the error had caused prejudice to the applicant. In this instance, the court found that the legislative amendments, particularly the repeal of provisions authorising the revocation of expired AVOs in 2016, meant that Mr Wass's application to revoke the expired AVO could not succeed. The court concluded that the ordinary and literal meaning of the statute after the 2016 amendments did not permit such an application. Therefore, despite the conceded jurisdictional error by the District Court, the court determined that it should not grant relief because the ultimate outcome of the District Court's decision was correct.

In the result, the amended summonses were dismissed. The court made no order as to costs, with the intention that the parties bear their own costs. In one of the summonses, the court also refused an extension of time for the filing of the appeal, which had the effect of dismissing the summons.