Atkinson v Bardon & Ors [2018] NTSC 9

JURISDICTION OF COURTS - local court exercising civil jurisdiction - order made beyond jurisdiction - whether order enforceable unless set aside

DECLARATORY ORDERS - power of the court to make - discretion to grant declaratory relief in criminal proceedings

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) HCA 41; 239 CLR 27; Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; Craig v Kanseen [1943] 1 KB 256; Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655; Hoskins v Van Den-Braak (1998) 43 NSWLR 290; Kuar v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 927; (1994) 48 FCR 343; Pelechowski v Registrar of the Court of Appeal [1999] HCA 19; (1998) 198 CLR 435; Re Marsh; ex parte Marsh v Paramount Leisure Products Pty Ltd [1991] FCA 558; (1991) 32 FCR 482; Re Pritchard [1963], Followed

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Craig v South Australia [1995] HCA 58; (1994-1995) 184 CLR 163; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry (1975) AC 295; Momcilovic v The Queen (2011) 245 CLR 1; Pelechowski v Registrar of the Court of Appeal [1999] HCA 19; (1999) 198 CLR 435; Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Re Refugee Review Tribunal and another; ex parte Aala (2000) HCA 57; Saeed v Minister for Immigration and Citizenship (2010) HCA 23; 241 CLR 252; Sankey v Whitlam and Others (1978) 142 CLR 1; 21 ALR 505; Tooth & Company Ltd v The Council of the City of Parramatta [1955] HCA 21; (1955) 97 CLR 492; Wall v The King: Ex parte King Won and Wah On (No.1) [1927] HCA 4; (1927) 39 CLR 245; Witham v Holloway [1995] HCA 3; 183 CLR 52, Referred to

Director of Public Prosecutions v Edwards [2012] VSCA 293; State of New South Wales v Kable (2013) 252 CLR 118; Posner v Collector for Inter-State Destitute Person (Victoria) [1946] HCA 50; (1946) 74 CLR 461, Distinguished

Domestic and Family Violence Act (NT) s 31, ss 32 (1) and (2)

Local Court (Civil Jurisdiction) Rules (NT) r 2.01, 7.16, 33.02, r.25.06 (1)

Local Court (Civil Procedure) Act (NT) s 20(1), s 20(4)

Local Court (Criminal Procedure) Act (NT) _s_s 162, 163

Personal Violence Restraining Orders Act (NT) s 3, s 4, s 5,s 6,s 7,s 9(1),s 10,s 11,s 12,s 13,ss 14(1), (2) and (3), ss 15, 15(3), s 16,ss 16(1), 16(2), 16(2)(a) and 16(2)(b), s 17, s 17(1), s 18, s 19, ss 19(1) and (2), s 20, s 21(2), s 22, ss 22(1), (2) and (3), s 23, Form 1, Form 7G

Third Defendant: Solicitor for the Northern Territory

Atkinson v Bardon & Ors [2018] NTSC 9

[1] In these proceedings the plaintiff seeks a declaration that a final Personal Violence Restraining Order (PVRO) made by Judge Woodcock in file number 21709424 on 27 February 2017 in the Local Court, whereby the second defendant, Jane Bardon, was the protected person, is void ab initio.

[2] The second defendant, Bardon, and her partner Michael John Bates (Bates) live next door to the plaintiff. It is alleged that on Monday 30th January 2017 there was an altercation involving the plaintiff, Bardon and Bates during which threats to carry out personal violence upon Bardon and Bates were made by the plaintiff in circumstances involving the use of foul language directed at them both and involving a physical attack upon Bates. It is further alleged that the plaintiff continued to use obscenities, threats of violence and abuse towards Bardon and Bates on Tuesday 14th February 2017.

[3] On 16th February 2017, applications were filed by Bates in the Local Court seeking a PVRO against the plaintiff in favour of himself and Bardon pursuant to the provisions of the Personal Violence Restraining Orders Act (NT) (the Act). The Act requires a separate application to be made in respect of each person who is to be named as the protected person. The application relating to Bates was served upon the plaintiff, but that relating to Bardon was not. Section 13 of the Act required a registrar of the Local Court to give written notice of the time and place for the hearing of the applications upon the plaintiff. The plaintiff was served with the required notice relating to the Bates application on 23 February 2017, but not in relation to the Bardon application. The form of the application contained the application itself, the notice by the registrar and the supporting affidavit. The applications were listed for hearing in the Local Court at Darwin on 24 February 2017. Both applications relied upon the same affidavit material.

[4] After service of the Bates application, the plaintiff sent a message to the Local Court that due to late service, the plaintiff was unable to get time off work and asked for a two week adjournment. The message came to the attention of His Honour Judge Woodcock who presided over the applications in Court on 24 February 2017.

[5] Both Bates and Bardon appeared in person before His Honour on 24th February. The plaintiff did not appear either personally or by a solicitor. His Honour was aware that Bardon's application had not been served and that no notice of the hearing of her application had been given. His Honour nevertheless proceeded to make final PVROs in favour of both Bates and Bardon. Both orders were served on the plaintiff on 1 March 2017.

[6] It is alleged that the plaintiff breached the PVRO in favour of Bardon on 2 March 2017.

[7] On 29 March 2017 a complaint was laid against the plaintiff alleging that on 2 March 2017 he had committed the offence of breaching the PVRO made in favour of Bardon. It is not clear when the complaint was served, and when it first came before the Local Court for mention.

[8] The complaint came before His Honour Judge Neill on 1 June 2017 as a contested hearing. Counsel for the plaintiff raised a preliminary point that, as the application for the PVRO had never been served upon the plaintiff, and no notice of the hearing had been given, the PVRO was made without jurisdiction and therefore void ab initio. His Honour heard argument about that submission on 6 July 2017. On that day his Honour ruled that the PVRO in favour of Bardon was validly made and in force on and from 24 February 2017 and was still in force on 2 March 2017. His Honour concluded that the requirement for service of the time date and place for the hearing in s.13 of the Act was not mandatory.

[9] The plaintiff commenced these proceedings on 4 August 2017. The complaint has still not been heard, pending the outcome of this application. No steps have been taken to set aside the order made by His Honour Judge Woodcock, and there had been no appeal lodged against the ruling made by His Honour Judge Neill.

[10] Counsel for Mr Bates and Ms Bardon and Judge Woodcock have made no submissions and have indicated that they will abide the outcome of these proceedings. The Attorney-General has intervened so that the issues may be properly considered by this Court.

Should this Court exercise its discretion to grant declaratory relief?

[11] It is accepted that the grant of declaratory relief is always discretionary.[1] Absent some justification, declaratory relief will not ordinarily issue against a decision of a lower court in a criminal case. However, there is no absolute bar in such circumstances. The power to make a declaration is a very wide one. In Sankey v Whitlam and Others[2] the High Court of Australia granted declarations sought in relation to committal proceedings. Gibbs ACJ said:

"It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v Attorney-General, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioner of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence. In Munnich v Godstone Rural District Council it was held that the fact that the question of law which was in issue in that case had already arisen in criminal proceedings and had been decided adversely to the plaintiff was no bar to the making of the declaration which the plaintiff sought. In this Court, in I.X.L. Timbers Pty Ltd v Attorney General (Tas), Windeyer J made a declaration on a question of constitutional law that arose in a pending prosecution, although he expressed the view that it would have been preferable if the matter had proceeded before the magistrate and been brought to this Court on appeal if necessary."[3]

"The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid... even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process...a court will be very reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order."[4]

[13] It is not uncommon for relief to be refused where there are statutory remedies for relief, such as a right of appeal, which have not been utilised. In Tooth & Company Ltd v The Council of the City of Parramatta Dixon CJ said that "where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it."[5] In that case, the statutory right of appeal was found to be appropriate and satisfactory and therefore the Court upheld the decision of the Court below to refuse the remedy. There is no difference in principle between a discretion to refuse mandamus and a discretion to refuse to make a declaration.

[14] Accordingly, for the plaintiff to be able to succeed in this application, there must be very good reasons why the discretion should be exercised in his favour. First, it seems to me that if the plaintiff is correct, these proceedings should not proceed and that in itself would be a strong reason for granting the relief sought. This is a dispute which affects the relations between neighbours. It does not seem to me to be in the interests of either Ms. Barton or the plaintiff that the plaintiff might be found guilty, only to have the conviction set aside on appeal not on the merits, but on the basis that there was never a valid order in the first place. It is likely to leave both sides disappointed with the process. Secondly, the application raises an important question of statutory interpretation, which so far as counsel are aware, has not been previously considered by this Court. Thirdly, the matter has now been fully argued, and I think it is desirable to decide it, particularly if the effect of making an order would be to bring the criminal proceedings to an end. True it is that the course taken has caused some delay in finalizing the criminal proceedings but the delay has not been very great. The plaintiff has acted with appropriate speed in bringing this application. I do not consider that the plaintiff has brought this application for an improper purpose.

[15] The point was made by counsel for the Attorney-General that it would have been open to the plaintiff to have applied to have the order set aside pursuant to s.20 (1) of the Local Court (Civil Procedure) Act. That section permits an application to be made to the Local Court in circumstances where the applicant did not appear in the proceedings, to have the order set aside and the proceedings reheard. Counsel for the plaintiff submitted that by the time the complaint was served, it was too late to appeal the order of Judge Woodcock. That may be so, but there does not appear to be a time limit for making an application for a rehearing. S.20 (4) of the Local Court (Civil Procedure) Act provides that an application under the section does not operate as a stay of the order unless the Court so orders, which suggests that the order remains in force until it is set aside. I am not convinced that that even if the order were to be set aside, it will resolve the questions in issue in this case, because the contention is that, unless and until the order is set aside, the plaintiff is bound by the order and must obey it. It was put that, under the Local Court (Civil Procedure) Rules, r.2.01, the failure to comply with the Rules is an irregularity and does not nullify the proceedings or a step taken in the proceedings_._ If that is so, it is not clear to me that even if the order were set aside, the plaintiff would have a defence to the complaint. Nevertheless, I was referred to a number of cases on this topic which I think shine some light on the matter. Without going through them all in detail, it is sufficient to observe that there is strong authority for the proposition that where an order has been made in respect of process which has not been served, the party concerned has the right ex debito justitiae to have it set aside, and it follows from that that the order made was a nullity.[6] More to the point, if an order is a nullity, it can be ignored without any fear of the consequences.[7] Notwithstanding that, counsel for the Attorney-General submitted that it is not the case that every order made which was liable to be stood aside was a nullity which could be ignored. It depended on whether proceedings for a charge for contempt would lie; it is confined to orders of a kind made without power; and it is subject to statutory displacement. In those circumstances, and assuming that the Attorney's argument is correct, it cannot be said that setting aside the order would necessarily resolve the question of whether or not the plaintiff has a complete defence to the charge.

[16] Another consideration is that, although the plaintiff did not seek to have the order set aside, he did submit to Judge Neill that the order was void and of no effect. The learned Judge ruled against him. No appeal lies from that decision, as the decision was only interlocutory.[8] The plaintiff might have asked the Local Court to refer the matter and state a case to this Court pursuant to s.162 of the Local Court (Criminal Procedure) Act. I do not know why this was not done. Apparently the plaintiff's advisers overlooked this option, which is still open to them. The plaintiff's advisors apparently thought there was no other option. Seeking a declaration is not so significantly different that I should decline to exercise my discretion in all the circumstances.

[17] Counsel for the plaintiff contended that Judge Woodcock had no power to make the PVRO because he denied the plaintiff procedural fairness at the time of making the order, because his Honour knew that the application had not been served on the plaintiff. A second limb of the plaintiff's case appears to be that there was simply no jurisdiction to make the order under the Act because, regardless of whether or not the application had been served, the plaintiff was not informed by a registrar of the time, place and date of the hearing, albeit that he knew the time, place and date of the hearing brought in respect of Bates.

[18] It is submitted that one of the fundamental rights of the common law of a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced is the right to be heard before the court of tribunal which has the power to do so. So much is uncontroversial. It also the case that a failure to accord natural justice by a tribunal, when it is required to do so, amounts to jurisdictional error. [9] As to inferior courts, it has long been held that the failure of a court to give to a person against whom a claim or charge is made a reasonable opportunity of appearing and presenting his case, is a breach of a fundamental principle of natural justice applicable to all courts, and when the principle is not observed, the person affected is entitled ex debito justitiae to have the determination which affects him or her set aside.[10] In Craig v South Australia the High Court considered some of the considerations which distinguish inferior courts from administrative bodies in circumstances where jurisdictional error is alleged. During the course of discussing this problem as it relates to inferior courts, the Court said:

"If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain."[11]

[19] In the circumstances of this case, four things are plain. First, the application in respect of Bardon was not served on the plaintiff. Secondly, the registrar did not serve on the plaintiff notice of the time, date and place of the hearing. Thirdly, the plaintiff was not present or represented at the hearing. Fourthly, the learned Judge was aware of these facts.

[20] Counsel for the Attorney-General, Mr. Moses, submitted that in the circumstances these failures did not deprive the plaintiff of a different outcome or produce any practical injustice because the plaintiff had been provided with the substance of the allegations against him, had been advised of the date, time and the dates of the application in respect of Bates and had elected not to attend court to answer them. Thus put, it seems at first sight to be a factor relevant to discretion rather than anything else. There is authority for the proposition that where no injustice has in fact been suffered, declaratory relief may be refused: see F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry[12] and the discussion in Re Refugee Review Tribunal and another; ex parte Aala[13]. However, no submission was made that if the plaintiff had been served properly and had attended the hearing, the outcome would not have been any different. Rather, it was put that he would not have attended even if he had been told that there was another application brought against him by Bardon. I am not able to infer that this must have been the case. It may well have been quite different if he had known there were two applications.

[21] Mr. Moses' next submission was that the real substance of the plaintiff's complaint is not the absence of notice, but the fact that he was deprived of a right of hearing by declining the adjournment application to allow him time to appear. However, there was no adjournment application in relation to the application in respect of Bardon as the plaintiff was unaware of it.

[22] It is common ground that the common law rule relating to the right to be heard may be altered by statute. Mr. Berkley, counsel for the appellant, submitted that the proper approach to the construction of the Act is that the right to be heard will not be taken away without clear and unambiguous words. I accept this submission. In Saeed v Minister for Immigration and Citizenship[14] in the joint judgment of French CJ, Gummow, Hayne, Crennan and Kiefel JJ it was said, citing Annetts v McCann[15] that the principles of natural justice could only be excluded "by plain words of necessary intendment", and that an intention to exclude was "not to be assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations'". Their Honours went on to remark that the presumption is that it is highly unlikely that Parliament would overthrow fundamental principles without expressing its intention with "irresistible clearness." This principle, commonly referred to as the principal of legality, extends to the proposition that a general power is, by itself, an insufficient basis to infer an intention to depart from such a fundamental common law rule. For example, in Wall v The King: Ex parte King Won and Wah On (No.1)[16] it was held by the High Court that a general right of appeal conferred by statute was insufficient to deprive a subject of an ancient and universally recognized right, in that case, the right to be released from custody by order of the Supreme Court pursuant to habeas corpus proceedings, with the consequence that no appeal lay.

[23] Nevertheless, the approach to construction of a statutory provision, even one which may affect a fundamental right, does not differ from the ordinary rules of statutory construction. For example, in Momcilovic v The Queen[17], a question arose as to the proper construction to be given to a statutory provision which provided that any illicit substance found on the land under a person's control, is deemed to be in the possession of that person, unless the person satisfies the court to the contrary. [18] It was submitted that s.5 was open to the interpretation that that merely placed an evidentiary burden rather than a legal burden of proof on the defendant, relying in part, on the principal of legality. All of the members of the Court began their consideration of the construction to be given to the section by reference to the ordinary rules of construction. As it was put by French CJ:[19]

The starting point in construing s.5 is the ordinary and grammatical meaning of its words having regard to the context and legislative purpose. According to that ordinary meaning, the operation of the section places upon an occupier of premises, in proceedings in which possession of a substance on the premises is in issue, the legal burden of persuading a court that he or she was not in possession of the substance. On their face the words of the section defeat any attempt by applying common law principles of interpretation to read down the legal burden thus created.

[24] The preamble to the Act provides that it is "an Act to provide for the protection of persons from personal violence, and for related purposes." Section 9 provides:

(1) The object of this Act is to ensure the safety and protection of persons who experience personal violence outside a domestic relationship as defined in the Domestic and Family Violence Act.

(2) The object of this Act is to be achieved by providing for:

• (a) the making of personal violence restraining orders to protect persons from certain violence: and
• (b) the enforcement of orders.

[25] "Personal violence" is not defined. "Personal violence restraining order" is defined in s.3 by reference to s.10. That section provides:

Any of the following persons may apply for an order (a personal violence restraining order) for the protection of a person against another person:

(a) the person whose protection is sought under the order;

(b) an adult acting for the person whose protection is sought under the order;

(c) a police officer.

(1) The Court may decide to make a personal violence restraining order if it is satisfied on the balance of probabilities a personal violence offence has been committed, or is likely to be committed, by the defendant against the person whose protection is sought.

(2) Otherwise the Court must dismiss the application

(3) The Court may decide the application even if the defendant does not appear at the hearing.

[27] A personal violence offence is defined by s.4 to include certain offences against provisions of the Criminal Code or another offence prescribed by regulation; as well as conduct causing harm; damaging property, including the injury to or death of an animal; intimidation; stalking; economic abuse and attempts or threats to commit any of the relevant conduct. Sections 5, 6 and 7 of the Act provide definitions of "intimidation", "stalking" and "economic abuse". The conduct that may be the subject of an order is therefore quite far reaching, and is not limited to threats or attempts to commit acts of violence on the person of an individual, such as common assault. The words "personal violence" in section 9(1) must be construed in this light.

[28] Section 12 of the Act provides that an application for a personal violence restraining order must be made to the Court (which is defined by s.3 to mean the Local Court) in accordance with the rules of the Court. Rule 7.16 of the Local Court (Civil Jurisdiction) Rules provides that an application under s.12 of the Act must be in accordance with Form 7G. The form used in this case was slightly different than form 7G, and was called "Form 1". It was apparently a form available on the Local Court's website for use in such applications. I have been unable to find the source in law for form 1; it may be the subject of a practice direction. Nothing turns on this. It is not materially different to Form 7G. There are otherwise no specific rules dealing with PVROs.

[29] Section 11 of the Act provides that only one person may be named as the protected person and only one person may be named as the defendant in a PVRO. Hence, in this case, the application was made only in respect of Ms. Bardon and a separate application was made in respect of Mr. Bates.

As soon as practicable after the application is filed, a registrar must give written notice to the person whose protection is sought and defendant of the time and place for the hearing of the application.

[31] In this case, it is common ground that 13 was not complied with in so far as there was no service at all upon Mr. Atkinson.

[32] Section 14 of the Act provides for referral of the matter for mediation under the Community Justice Centre Act before hearing the application. However, s.14(2) provides:

However, the Court must not make a referral and must proceed to hear the application if it is satisfied that a referral is not appropriate in the circumstances, including, for example, because:

(a) there is a history of violence committed against the person by the defendant; and

(b) there has been a previous attempt at mediation between the person and the defendant in relation to the application and the attempt was not successful.

[33] Section 16 of the Act deals with matters to be considered by the Court in deciding whether or not to make a PVRO:

(1) In deciding whether to make a personal violence restraining order, the Court must consider the safety and protection of the person whose protection is sought and any affected child to be of paramount importance.

(2) In addition, the Court must consider the following:

• (a) the defendant's criminal record as defined in the Criminal Records (Spent Convictions) Act;
• (b) the defendant's previous conduct whether in relation to the person, affected child or someone else;
• (c) other matters the Court considers relevant.

There is no evidence as to whether or not Mr. Atkinson has a criminal record. Nothing was put to the learned Judge about that subject-matter, even though s.16 (2) is expressed in apparently mandatory terms.

[34] Section 18 of the Act requires the Court to "give a copy of the PVRO" to the protected person and the defendant and the Commissioner of Police. That was attended to, so far as the plaintiff is concerned.

[35] Section 19 of the Act provides for the making of an interim order. Subsection (2) (a) provides that an interim order may be made "even if the defendant does not appear at the hearing."

[36] It is to be observed in passing that neither s.17, which deals with contents of PVROs, nor s.19, imposes any limits on the duration of orders beyond which an order cannot be made. An order could be made until further order, or it could be made to operate for a finite time. The order actually made by the learned Judge was for 12 months.

[37] Section 22 of the Act provides for the variation or revocation of a PVRO by the protected person or the defendant. The defendant can only apply if granted leave by the Court. S.22(3) provides that:

The court may grant leave to the defendant only if satisfied there has been a substantial change in the circumstance of the defendant or the protected person since the order was made or last varied.

In the circumstances of this case, s.22 would be of no avail to the plaintiff, as this section is not designed to deal with a case where there has been no service of the application in the first place.

[38] Section 23 provides that a person commits an offence if a PVRO or an interim order is in force against the person and the person engages in conduct that results in a contravention of the order. The maximum penalty is 400 penalty units or imprisonment for 2 years. The section only applies if the order has been "given" to the defendant. It is an offence of strict liability.

[39] The Act does not contain any provision for the making of rules of court or regulations in respect of the Act. However, s.14 of the Local Court Act provides that the Court's civil jurisdiction also includes any other jurisdiction that is conferred on the Court by another Act. Section 48 (1) of the Local Court Act provides for the making of Rules of Court providing for "the practice and procedure of the Court in the exercise of any of its jurisdiction, whether conferred by this or another Act." Accordingly, to the extent that the Local Court (Civil Jurisdiction) Rules deal with the practice and procedure of the Court relating to its jurisdiction under the Act, those rules would apply. I accept therefore, that the plaintiff could have applied to have the order set aside under a rule providing for such an application. There does not appear to be any such rule. Rather, it was put that resort could be had to s.20 (1) of the Local Court (Civil Procedure) Act. It was not put that that provision was inconsistent with the provisions of the Act, and I can see no reason to find that it is. However, for the reasons which I have dealt with in paragraph [14] above, I do not consider that that would have provided the result for which the plaintiff now contends.

[40] In my opinion s.13, must be complied with. I accept that even the use of the word "must" does not necessarily impose an obligation, the breach of which will render the proceedings invalid. Nevertheless, prima facie, the use of the word "must" is taken to impose an obligation to perform a function.[20] Anyone familiar with the drafting style of Parliamentary Counsel in the Northern Territory will be aware that the draftsman is usually careful to use "may" when dealing with a discretionary power, and "must" when an obligation is intended. In the Act, "must" appears in ss.12, 13, 14 (1), (5) and (6), 15 (2), 16, and 18, whilst "may" appears in ss 5(2), 10, 11(1), 14(7), 15(1) and (3) 17(1) 19(1) and (2), 20, 21(2), and 22(1), (2) and (3).

[41] Nevertheless, as Judge Neill correctly observed, the breach of a statutory provision does not necessarily result in invalidity. Whether it does or not, depends on whether there can be discerned an intention in the legislative purpose to invalidate any act that fails to comply with the provision. As the High Court said in Project Blue Sky Inc and Others v Australian Broadcasting Authority:[21]

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.

I note in passing that s.15 is not a procedural condition. After observing that the classification of a statutory provision as either mandatory or directory has outlived its usefulness, their Honours said:[22]

...a court determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision would be invalid...In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute."

[42] The focus of the Act seems to be that, once the defendant is brought before the Court, before hearing the application, unless there are good reasons for doing otherwise, the parties are to be referred to mediation in the first place, pursuant to s.14 of the Act. Whilst mediation is ongoing, the proceedings are stayed until a report is given to the Court. It is only if the court is satisfied that a referral is not appropriate in the circumstances, that the Court may proceed to hear the application. Whilst the categories of cases where it is inappropriate are not closed, the examples given in s.14 (2), suggest that the Court should only refuse to refer the parties to mediation in extreme cases. Clearly, if the defendant has not been served at all, and knows nothing of the application, s.14 would have no role to play if the Court could move to hear the whole application in the defendant's absence. This is to be contrasted with the approach taken under the Domestic and Family Violence Act, which has no provision for mediation.

[43] The next observation I would make is that before making a DVO, s.16(2) (a) and (b) required the Court to consider the defendant's criminal record and his or her previous conduct in relation to the affected person, child or someone else. It is hard to see how this could be done in circumstances like the present. On the other hand, the Court could have made an interim personal violence restraining order under s.19, even if the requirements of s.16(2) (a) and (b) were not satisfied. Whilst, on the other hand, s. 16(1) of the Act requires the Court to consider the safety and protection of the person to be of paramount importance before making a final order under s.15, the possibility of significant harm to an individual is much less in a case involving neighbours than in the case of a dispute between persons who are living in a domestic relationship. I conclude that there is nothing in the Act construed as a whole which compels a conclusion one way or the other than non-compliance with s. 13 has the effect that the proceedings are wholly invalid or that s 15(3) confers a power in the Court to make a final VDO even if the provisions of s. 13 have not been complied with.

[44] Although the words of s.15 (3) on their face would appear to permit the Court to deal with an application ex parte, the extent of the power to proceed in the absence of the defendant is ambiguous. Does it mean a defendant who has been served pursuant to s.13, or does it mean even a person who has not been so served? The power to proceed where the defendant does not appear is a general power only. It does not express the power to deny natural justice with irresistible clarity. In my opinion, the power to proceed in the absence of the defendant contained in s.15(3) must be read as referring only to cases where notice has been given in accordance with the requirements of s.13. Construing s. 15(3) in this way conforms with the principle of legality.

[45] It is instructive to consider the comparable provisions in the Domestic and Family Violence Act. (The DVO Act). S.31 of the DVO Act is in similar form to s.13 of the Act. S.32 (1) of the DVO Act also provides for a power in the Court to decide an application for a Domestic Violence Order even if the defendant does not appear at the hearing of the application. However, s.32(2) of the DVO Act provides:

Subsection (1) applies regardless of whether notice to the defendant to appear at the hearing is given to the defendant before the hearing.

Obviously parliamentary counsel recognized the need for s. 32(2) to make it plain that the power to proceed in the defendant's absence included the circumstance that the defendant had not be served with the application. This lends some support to the construction which I have arrived at.

[46] The history of the Act does not provide support for a different construction. Prior to the commencement of the Act, the power to make a personal violence restraining order against a person not in a domestic relationship with the protected person was contained in Part IVA of the Justices Act. The provisions of ss.80 to 92 of the Justices Act are almost identical to the provisions of the Act, except that the jurisdiction was conferred on the Court of Summary Jurisdiction rather than the Local Court. S.85 of the Justices Act is in precisely the same terms as s.13 of the Act, and s.87 (3) of the Justices Act mirrors s.14 (3) of the Act.

[47] Counsel for the Attorney-General submitted, by reference to the Local Court (Civil Jurisdiction) Rules, that rule 33.02 , when read with s.15(3) of the Act, specifically recognizes that a PVRO may be made where the defendant has not appeared in circumstances such as these. Whatever r.33.02 might permit, it cannot alter the Act. The general rule is that delegated legislation made under an Act should not be taken into account for the purposes of the interpretation of an Act; all the more so when the regulations or rules are not made under the Act in question but under an entirely different Act from the Act which is being interpreted. Moreover, r.25.06 (1) of the Rules provides:

If a person to whom an application is addressed fails to attend the hearing, the Court may hear the application if satisfied that the application and affidavit in support were properly served.

This does not support the contention made on behalf of the Attorney-General.

[48] There are authorities which suggest that it may be helpful to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision where a contemporaneously prepared Act and set of regulations establish an interdependent scheme. [23] However, as I have pointed out above, the provisions of the Act, although perhaps contemporaneous with the new Local Court Act, Local Court (Civil Procedure) Act and Local Court (Civil Jurisdiction) Rules, were for the most part already in force under the provisions of the Justices Act. Be that as it may, the task of statutory interpretation begins with a consideration of the text itself. The language actually employed is the surest guide to legislative intention.[24]

[49] There is a tension between, on the one hand, the fundamental principle that a person has a right to be heard when proceedings are brought against that person, and the need for swift action to avoid violence and preserve the peace. Individual judges may have a personal leaning towards one or the other. But the task of the Court is not to permit individual preferences to prevail over the language used by the legislature.

[50] There remains to be considered briefly the question of whether there was an error within jurisdiction. In my opinion this was not the case. There is nothing in the transcript to show that the learned Judge was under the misapprehension that the plaintiff had been given the required notice. On the contrary, the Judge was well aware of the true facts. That distinguishes this case from cases such as Posner v Collector for Inter-State Destitute Person (Victoria).[25]

[51] The Act, in my opinion, does not support the conclusion that the Court had power to make any order where the defendant had not been served at all with the initiating process and given notice of the time, date and place of the hearing. That being so, and the Court not being in error as to whether or not the plaintiff had been given notice under s.13 of the Act, the Court lacked jurisdiction to make the order.

[52] It was submitted by Mr Moses that even if the Local Court lacked jurisdiction to make the order, it does not necessarily follow that the order was a nullity. Reference was made to the decision of the Court of Appeal (Victoria) in Director of Public Prosecutions v Edwards [26] which considered whether the County Court of Victoria could recall a sentence it had no power to make. The issue in that case was whether or not the Court below was functus officio when it purported to recall its order and resentence the respondent. It was held by a majority, Weinberg JA and Williams AJA that the Court was functus officio and had no power to impose the new sentence. The original sentence was not null and void thereby enabling the sentencing judge to recall the order and imposing an obligation to pass a fresh sentence within the Court's jurisdiction. The issue in that case was resolved by the majority by reference to the statutory regime. Warren CJ dissented on that issue, holding that the original sentence was void, and there being no sentence, the Court below was not functus.

[53] Weinberg JA and Williams JA considered Pelechowski v Registrar of the Court of Appeal [27] where the High Court held that the District Court of New South Wales had no jurisdiction to make a Mareva injunction and accordingly the appellant could not have been found guilty of contempt of court for breaching the order. Their Honours said that the judgment in Pelechowski did not stand for the far wider proposition that an order of an inferior court, made beyond power, can never have any effect in law regardless of the statutory context in which that decision was made. It was necessary to examine the statutory context surrounding a decision made in excess of jurisdiction to determine its legal effects, citing Minister for Immigration and Multicultural Affairs v Bhardwaj. [28]

[54] I accept the force of the reasoning of the majority in Director of Public Prosecutions v Edwards but it seems to me that in the circumstances of this case Pelechowski is directly on point. I can see no reason to distinguish it on the basis that it applied only to proceedings for contempt. The mechanism for enforcement of Court orders is different procedurally from the method adopted by the Act, but that does not point to any difference in substance. The difference between civil proceedings for contempt and criminal proceedings for breaches of orders has largely evaporated since it has been recognised that proceedings for contempt are in reality criminal in nature and the burden of proof is beyond reasonable doubt.[29] There is nothing in the statutory context which suggests otherwise. The order was made by the Local Court, which is an inferior Court, exercising its civil jurisdiction.[30] It would be surprising if the breach of an order made beyond its powers by an inferior court in its civil jurisdiction could result in the commission of a criminal offence. A sentencing order made by the Local Court in its criminal jurisdiction beyond its powers would give rise to different considerations.

Declare that on 2 March 2017 there was no Personal Violence Restraining Order in force against the plaintiff for the benefit of Jane Bardon.

[1] Kuar v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 927; (1994) 48 FCR 343 at 347G (FC).

[2] (1978) 142 CLR 1; 21 ALR 505.

[3] At CLR 20-21; ALR 512.

[4] At CLR 25-26; ALR 515-516

[5] [1955] HCA 21; (1955) 97 CLR 492 at 498.

[6] Craig v Kanseen [1943] 1 KB 256; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; Hoskins v Van Den-Braak (1998) 43 NSWLR 290; Re Pritchard [1963] Ch 502 at 523-524; 526-527; Re Marsh; ex parte Marsh v Paramount Leisure Products Pty Ltd [1991] FCA 558; (1991) 32 FCR 482 at 484-485.

[7] Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357D per McHugh JA; Pelechowski v Registrar of the Court of Appeal [1999] HCA 19; (1998) 198 CLR 435 at 445; 453 per Gaudron, Gummow and Callinan JJ.

[8] Local Court (Criminal Procedure) Act, s.163;

[9] Re Refugee Review Tribunal and another: ex parte Aala, [2000] HCA 57; at (2000)204 CLR 82; at [59].

[10] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 per Rich J.

[11] [1995] HCA 58; (1994-1995) 184 CLR 163 at 177.

[12] (1975) AC 295 at 320 per Lord Denning MR

[13] (2000) HCA 57 at [57]- [60] per Gaudron and Gummow JJ.

[14] (2010) HCA 23; 241 CLR 252 at [14]- [15]

[15] [1990] HCA 57; (1990) 170 CLR 596 at 598

[16] [1927] HCA 4; (1927) 39 CLR 245

[17] (2011) 245 CLR 1

[18] I have summarized s.5 to make it easier to comprehend.

[20] Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 per Lord Diplock at 690 and Lord Salmon at 698.

[21] [1998] HCA 28; (1998) 194 CLR 355 at 389 [92] per McHugh, Gummow, Kirby and Hayne JJ

[23] See Pearce and Geddes, Statutory Interpretation in Australia, 8th Edn, para 3.41 at p 135-136.

[24] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) HCA 41; 239 CLR 27 at [4]; [47].

[25] [1946] HCA 50; (1946) 74 CLR 461.

[26] [2012] VSCA 293

[27] [1999] HCA 19; (1999) 198 CLR 435

[28] [2002] HCA 11; (2002) 209 CLR 597

[29] Witham v Holloway [1995] HCA 3; 183 CLR 525

[30] Contrast orders made by superior courts: State of New South Wales v Kable (2013) 252 CLR 118