Dyason v Butterworth - [2015] NSWCA 52 - NSWCA 2014 case summary — Zoe

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Dyason v Butterworth

[2015] NSWCA 52

Court of Appeal (NSW)|2014-09-09|Before: McColl JA, Barrett JA, Gleeson JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2014-09-09

Before

McColl JA, Barrett JA, Gleeson JA

Catchwords

(2000) 203 CLR 172 B v Director of Public Prosecutions [2014] NSWCA 232 Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305
(2013) 85 NSWLR 350 Boele v Rinbac Pty Ltd [2014] NSWCA 451 Cachia v Hanes [1994] HCA 14
(1994) 179 CLR 403 Charara v R [2006] NSWCCA 244
(2003) 214 CLR 118 Goodwin v Commissioner of Police [2012] NSWCA 379 Kirk v Industrial Court of New South Wales [2010] HCA 1

Source

Original judgment source is linked above.

Catchwords

(2000) 203 CLR 172 B v Director of Public Prosecutions [2014] NSWCA 232 Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305(2013) 85 NSWLR 350 Boele v Rinbac Pty Ltd [2014] NSWCA 451 Cachia v Hanes [1994] HCA 14(1994) 179 CLR 403 Charara v R [2006] NSWCCA 244(2003) 214 CLR 118 Goodwin v Commissioner of Police [2012] NSWCA 379 Kirk v Industrial Court of New South Wales [2010] HCA 1(2010) 239 CLR 531 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1(2014) 85 NSWLR 390. Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43(2013) 88 ALJR 52 Wishart v Fraser [1941] HCA 8

Judgment (19 paragraphs)

[1]

) Hannah Butterworth (First respondent) Local Court of NSW (Second respondent) District Court of NSW (Third respondent) Representation: Counsel: D Allen (Applicant) A Vernier (First respondent)

[2]

[5]

Background

The respondent is the registered proprietor of a business known as "Ferryside General Store and Post Office" (the "post-office") in Tumbulgum, a town in northern New South Wales. She is licensed to conduct post office business at the premises during the hours 9.00am to 5.00pm, Monday to Friday.
The applicant is an occasional customer of the post office. He is in his late seventies and a pensioner. As a result of two incidents between the applicant and the respondent which occurred on 24 December 2012 and 28 December 2012 the respondent claimed she felt he harassed and intimidated her.
On 8 January 2013, the respondent filed an application for an APVO (the "Application") against the applicant at Murwillumbah Local Court. On 23 January 2013, Magistrate Dakin granted her an Interim APVO making "standard orders" and, also, ordering that the applicant "must not enter the premises at which [Ms Butterworth] may from time to time reside or work … ". The Interim APVO was expressed to operate until revoked or a further court order became effective. On 25 January 2013, the applicant lodged an appeal in the District Court from the Interim APVO (the "Interim Order appeal").
Magistrate Linden heard the Application on 12 June 2013. His Honour made the APVO the subject of the application in this Court and ordered the applicant to pay professional costs in the sum of $3,300.00. The APVO was expressed to be in force for two years.
On 16 July 2013, the applicant filed a "Notice of Motion" which was treated as an appeal to the District Court of New South Wales against the making of the APVO and the costs order pursuant to s 84(2)(a) and (b) of the DPV Act.
The appeal was, as I have said, heard and dismissed by the primary judge on 5 August 2013. Her Honour ordered the applicant to pay costs of the appeal in the amount of $2,139.45.
On 5 August 2013, a Notice of Penalty was issued by the District Court to the applicant directing him to pay the sum of $5,439.45 in respect of the two costs orders. The applicant did not make the payment.
Thereafter the respondent commenced bankruptcy proceedings in the Federal Circuit Court of Australia. The applicant sought unsuccessfully to set aside the bankruptcy notice on which she proceeded: Dyason v Butterworth [2013] FFCA 2067. Despite this, there is no suggestion that the applicant has been made bankrupt.

[6]

Relief sought

On 18 March 2014, the applicant filed a summons in the Court's supervisory jurisdiction, albeit expressed as an "appeal", naming Magistrate Dakin, Magistrate Linden and the primary judge as respondents.
The applicant relied on the following grounds to challenge those orders: "(1) The judgments are tainted by jurisdictional error in that the Local Court and District Court: (a) Failed to be satisfied that the statutory criteria for the making of an Apprehended Violence Order had been met; (b) Failed to take into account relevant matters, and (c) Took into account of irrelevant matters (2) The decisions makers failed to be satisfied that the statutory criteria had been [sic, established] because there was no finding and no evidence that: (a) The defendant had reasonable grounds to fear; (b) The applicant engaged in conduct constituting stalking or which intimidated the complainant; (c) The conduct was sufficient to make an order; (3) The decision makers considered irrelevant matters: (a) That the applicant had banged the bar table to demonstrate, not perpetrate, an act of violence during the hearing in the Local Court; (b) That the applicant was argumentative with the defendant's legal representative in the Local Court; (c) The applicant made comments in the Local Court when comments were not necessary; and (d) That the applicant's behaviour in the Local Court was indicative of the complainant's fear. (4) The District Court did not conduct a review by way of rehearing and instead confirmed the original decision on the basis set out solely in the reasons of the Learned Magistrate when the District Court was obliged to be satisfied that the order was based on the statutory criteria and being satisfied that the order was not based on irrelevant considerations."
The applicant also seeks, "if required", leave to commence the proceedings and orders setting aside the APVO, the primary judge's order dismissing his appeal and both costs orders. Although the first page identified Magistrate Dakin's decision as being a relevant decision, no orders were sought in its respect. As appears from the following discussion, it ceased to have any operative effect when the final APVO was made.
The White Book included an unfiled document described as "Final Amended Summons". Mr D Allen, who appeared for the applicant in this Court, but not below, did not refer to that document and it is unnecessary to say any more about it.

[7]

Statutory framework

Section 19 of the DPV Act relevantly provides: "19 Court may make apprehended personal violence order (1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: … (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, … being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. … (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. 20 Matters to be considered by court (1) In deciding whether or not to make an apprehended personal violence order, the court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. (2) Without limiting subsection (1), in deciding whether or not to make an apprehended personal violence order, the court is to consider: … (b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and … (d) any other relevant matter. (3) When making an apprehended personal violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person's property…"
"'Protected person' means the person for whose protection an apprehended violence order is sought or made": s 3(1), DPV Act.
For the purposes of the DPV Act, "intimidation" of a person relevantly means conduct amounting to harassment or molestation of the person, or an approach made to the person by any means that causes the person to fear for his or her safety, or any conduct that causes a reasonable apprehension of injury to a person or of violence or damage to any person or property.
An interim APVO ceases to have effect, relevantly, when a final APVO is made: s 24(2)(a), DPV Act.
When making an APVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence, including prohibitions or restrictions prohibiting or restricting access by the defendant to any premises occupied by the protected person from time to time or to any specified premises occupied by the protected person; to any place where the protected person works from time to time or to any specified place of work of the protected person: s 35, DPV Act.
Section 36 of the DPV Act provides: "36 Apprehended violence order prohibits stalking, intimidation etc Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following: (a) assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship, (b) engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship, (c) stalking the protected person or a person with whom the protected person has a domestic relationship.
These are the "standard orders" made when the Interim AVO was granted and repeated in the "Terms of Final Order" made at the final APVO hearing (White Book 114).
A final APVO remains in force for such period as is specified in the order by the court, the period specified to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person: s 79(1) and (2), DPV Act.
Section 99 of the DPV Act relevantly provides: "99 Costs (1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section. (2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious."

[8]

Appealing against an APVO

A defendant may appeal to the District Court against the making of an apprehended violence order and a s 99 costs order: s 84(2)(a) and (b), DPV Act. The jurisdiction conferred on the District Court by the DPV Act is conferred on it in its criminal jurisdiction: s 93. Accordingly, a s 84 appeal is made under s 11 in Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "CAR Act") in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW). The CAR Act applies to such an appeal as relevantly modified by regulations under the CAR Act: s 84(4), DPV Act. No relevant regulations appear to have been made, and to the extent necessary, adjustments have to be made to the operation of provisions of the CAR Act to accommodate appeals from APVOs: Garde v Dowd [2011] NSWCA 115; (2011) 80 NSWLR 620 (at [8]), per Basten JA (Giles and McColl JJA agreeing). The appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, although fresh evidence may be given by leave pursuant to s 18(2): s 18(1), CAR Act.
A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] - [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).
The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ("McKellar") (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The "judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court": Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).
The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.
In Mahmoud v Sutherland [2012] NSWCA 306 Barrett JA (Tobias AJA and Blanch J agreeing) explained the matters of which a court must be satisfied before making an APVO: "[23] The power to make an apprehended violence order is enlivened if the court is, on the balance of probabilities, 'satisfied' in the way described in s 19(1). If (and only if) that state of satisfaction is reached, the question becomes whether the power should be exercised and the duty to consider the matters in s 20(1) and s 20(2) arises. The first and indispensable task of a magistrate, therefore, is to address the questions regarding reasonable grounds for fear by the applicant and whether fear in fact exists." See also Veness v Hodge [2015] NSWCA 20 (at [8]) per Emmett JA (Barrett JA and Adamson J agreeing).
Accordingly, it was the duty of the primary judge to form her own judgment of the facts and, in particular to determine whether the evidence before the Magistrates (she having rejected the admission of any further evidence) satisfied s 19(1)(b) of the DPV Act. Uppermost in her Honour's approach should have been the question whether the Local Court had adequately identified and dealt with the matters with which it was required to deal and what the correct outcome was in relation to those matters: Mahmoud v Sutherland (at [33] - [34]). There was no power to confirm the APVO found upon a rehearing as described above, unless the s 19(1) pre-conditions had been established and the Magistrate had considered the exercise of the s 20 discretion: Mahmoud v Sutherland (at [50]).

[9]

Function of this Court

As I have said, the District Court's exercise of jurisdiction under the Crimes (Appeal and Review) Act falls within the criminal jurisdiction of the District Court. Section 176 of the District Court Act 1973 (NSW) which provides no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court therefore applies: Garde v Dowd (at [9]). The effect of s 176 is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: Garde v Dowd at [10]; Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82 (at [18]) per Gleeson JA (Basten JA and Tobias AJA agreeing); see also Wang v Farkas [2014] NSWCA 29; (2014) 85 NSWLR 390.
An inferior court commits jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist": Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [72]). Where there is "the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law … such a failure will generally involve jurisdictional error …[as] the process of decision-making … has miscarried": Boele v Rinbac Pty Ltd [2014] NSWCA 451 (at [54]) per Basten JA (although his Honour was in dissent as to the outcome, Sackville AJA (at [100]) approved Basten JA's statements of principle); see also Goodwin v Commissioner of Police [2012] NSWCA 379 (at [19] - [25]) per Basten JA (Allsop P and Young AJA agreeing). Such error will also be established if the primary judge misunderstood the scope of her jurisdiction, so as not to conduct a rehearing, but, rather, undertook some more limited form of appeal: McKellar (at [10]).
In "V V" v District Court of New South Wales [2013] NSWCA 469 (at [13]) Barrett JA (Ward JA and Leeming JJA agreeing) explained that there will also be jurisdictional error in the following circumstances: "[W]here the decision-maker only has power to make a certain order if 'satisfied' of certain facts or if of a particular 'opinion', the fact that the specified state of satisfaction or opinion has not been achieved before jurisdiction is exercised means that the necessary precondition to the exercise of that power (or jurisdictional fact) does not exist and the purported exercise of the power is unauthorised":
The applicant seeks to challenge both the District and Local Court orders. In the ordinary course relief in relation to the Local Court orders would not be available in this Court's exercise of its s 69 jurisdiction. Once the District Court confirmed the Magistrate's order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate's order was correct and "holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary": Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J. Further, as an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect" it will not be available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (at [25]) per French CJ, Crennan, Bell, Gageler and Keane JJ.
However, if the APVO was made in excess of the jurisdiction of the Local Court, a challenge to that order as confirmed by the District Court on the grounds of the same jurisdictional error would be available: Garde v Dowd (at [14]). Further, the Court may review the Magistrate's decision if, having set aside the District Court judgment for jurisdictional error, "it is apparent that there is only one conclusion properly available as a matter of law, which would require that the decision at first instance be set aside": Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350 (at [91]) per Basten JA.

[11]

The Local Court proceedings

The applicant represented himself in the Local Court proceedings. Mr Quigley, a solicitor, appeared for the respondent.
Magistrate Linden delivered an ex tempore judgment after a contested hearing on 12 June 2013.
His Honour set out the terms of s 19(1) of the DPV Act and observed there was no doubt that the respondent founded her application upon s 19(1)(b), "the engagement of the other person in conduct in which the other person intimidates the person or stalks the person, being conduct that in the opinion of the Court is sufficient to warrant the making of an order".
His Honour continued: "The background generally is that the defendant is or was, more correctly at this point, a customer of the relevant store; that is the Tumbulum Post Office and General Store. The applicant says that there have been disagreements in respect of matters relating to mail and that the demeanour of the defendant, the argumentative nature of the defendant and the attitude of the defendant even when told that he is not welcome in the store, is such that he says that he has a God-given right to enter that store if he so wishes. The evidence from the defendant to a huge level relies on the fact that he is not a violent person. Mr Quigley on behalf of the applicant made it very clear that that was not the nature of the application. The nature of the application was a combination of really what was said by the applicant, Mrs Butterworth, and the evidence of his own partner and daughter, that he is not a violent man, no suggestion, but he is according to them, argumentative. Even in this Court if he did not get his way he was upset, he banged the table on one instance to show an act of violence. He argued with Mr Quigley, he made comments when comments were not necessary, and this is all indicative of the fear that this applicant has if he is allowed to enter that store. And in my view on the balance of probabilities there should be an order AND I MAKE AN ORDER IN ACCORDANCE WITH THE INTERIM ORDER FOR A PERIOD OF TWO YEARS FROM TODAY.
The Magistrate also ordered the applicant to pay the respondent's professional costs in the amount of $3,300.
As I have said, on 16 July 2013 the applicant filed a notice of motion in the District Court which, inter alia, sought an order that the APVO granted by Magistrate Linden be set aside and the matter re-heard or reviewed and that his Honour's costs order be revoked.

[12]

The District Court proceedings

The primary judge heard both the appeal from the interim APVO and from the final APVO on 5 August 2013. Once more, the applicant represented himself. Mr Quigley represented Ms Butterworth. Her Honour delivered an ex tempore judgment dismissing both appeals.
Insofar as the appeal against the interim APVO was concerned, the primary judge concluded (page 2) that on the basis of the respondent's affidavit, the evidence satisfied the requirements to make such an order. Accordingly, her Honour dismissed the application for its revocation. It is apparent that no one drew her Honour's attention to s 24(2)(a) of the DPV Act, by virtue of which the Interim APVO had ceased to have effect consequent upon the making of the final APVO.
In relation to the appeal against the APVO, the applicant sought leave to rely on fresh evidence from an employee of Australia Post, a Mr Peter Grasshopper. A letter from Mr Grasshopper to the respondent, indicating his support for her in the action that she had taken to prevent the applicant from entering the post office, had been tendered before Magistrate Linden.
The primary judge observed that she could not see how Mr Grasshopper's letter had been relevant to the Magistrate's hearing, but also said it was clear that Mr Grasshopper's evidence had not formed any part of his reasons. Although she did not do so expressly, her Honour clearly rejected the application to adduce further evidence.
In the course of determining this aspect of the application, her Honour said (at pp 3 - 4): "It is submitted by Mr Dyason that [Mr Grasshopper's letter] must have had an influence on the Magistrate. That is not at all reflected in the reasons of the Magistrate and it is difficult to see how they could have influenced the Magistrate in reaching the determination that he did. He spelled out very clearly in his reasons, what it was that gave rise to the decision that he made. He relied on the various affidavits of both Mrs Butterworth and those made on behalf of this applicant Mr Dyason. He also relied on the statements of Mr Dyason's wife and daughter, who indicated that while not a violent man, he is argumentative. It is not to be suggested of course that there is necessarily anything wrong in that, it is merely a question of degree and that was a matter that the Magistrate took into account along with the actual behaviour of Mr Dyason on or during the course of the proceedings, when he noted at p 37, line 40: 'Even in this court, if he (referring to the applicant) [Mr Dyason] did not get his way he was upset, he banged the table on one instance to show an act of violence. He argued with Mr Quigley, he made comments when comments were not necessary and this is all indicative of the fear that [Ms Butterworth] has if he is allowed to enter that store.' Consequently the learned Magistrate was satisfied on the balance of probabilities. The Magistrate is quite entitled to form a view based not only on the contents of what is said in the evidence but on his observations of the various witnesses. It is clear that the Magistrate was not influenced by the letter from Mr Grasshopper." (Emphasis added)
The primary judge then dealt (at page 5) with the application "to have the matters set aside by the Magistrate, or the matter re-heard". Her Honour understood that aspect of the appeal to be part of the application to have the APVO revoked and the matter returned to the Magistrate for rehearing. This aspect of the application was based on various procedural complaints the applicant advanced such as that the Magistrate had been unable to see the witnesses properly and had refused to allow him to read his affidavit to the court and elaborate on it. Her Honour was of the view that the transcript demonstrated the Magistrate had read the affidavit and had given the applicant "abundant opportunity to put those matters he thought relevant before the court."
Finally, her Honour dealt (at page 7) with the application in relation to the APVO, "that the matter be reviewed by way of an appeal, as well as taking into account an order for the availability of this fresh evidence from Mr Grasshopper." She noted that it seemed to be "generally conceded that that particular order in total is the same as mentioned in the orders sought (1) and (2)", referring to the application to adduce fresh evidence.
Accordingly, her Honour dismissed the applicant's appeal against the APVO, and, also, that against the Magistrate's costs order. She confirmed the Magistrate's orders and ordered the applicant to pay the costs of the appeal in the amount of $2,139.45.

[13]

Applicant's submissions

Mr Allen first submitted that the applicant could challenge both the District and Local Court decisions relying on Garde v Dowd (at [14]). His essential submission was that both the primary judge and the Magistrate made a jurisdictional error because neither addressed the statutory criteria for making an APVO whether at the s 19 fact finding stage, nor at the discretionary stage. Secondly, he contended the Magistrate acted in excess of jurisdiction because he considered irrelevant matters, such as aspects of the applicant's behaviour in court.
Mr Allen submitted that the Magistrate made no findings of jurisdictional fact such as whether the respondent had reasonable grounds to fear that the applicant had engaged in conduct constituting stalking or which intimidated her such that there were grounds sufficient to make an order. Further, he contended, there was no evidence which could have supported, and there were no findings of, the respondent having reasonable ground to fear future conduct on the part of the applicant which would intimidate her or that any conduct of a future nature was sufficient to warrant making an APVO order. Thirdly, Mr Allen submitted that the Magistrate considered irrelevant matters such as the applicant's conduct in banging the bar table, the fact that he was argumentative with the respondent's legal representative in court, the fact that he made unnecessary comments and the fact that his behaviour in court was indicative of the respondent's fear.
Insofar as the District Court proceedings were concerned, Mr Allen submitted that the primary judge failed to exercise jurisdiction as her Honour did not undertake the rehearing required by s 18(1) of the CAR Act. He contended that her Honour was obliged to determine whether Magistrate Linden had adequately identified and dealt with the criteria imposed by s 19(1) of the DPV Act and determine herself whether the statutory criteria had been met, that is to say, whether the jurisdictional facts supporting the order had been established before the Local Court.

[15]

Extension of time

Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 59.10(1) provides: "(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest."
UCPR Pt 59 (apart from UCPR 59.8) applies to proceedings for relief referred to in s 69 of the Supreme Court Act assigned to the Court of Appeal pursuant to s 48 of that Act, subject to UCPR 51.45: UCPR 51.45(1A).
The primary judge's decision in the District Court was delivered on 5 August 2013. The applicant filed his summons seeking to invoke the supervisory jurisdiction of this Court on 18 March 2014, over seven months later. Accordingly, despite the equivocation in the amended summons, the applicant needs an extension of time within which to commence the proceedings.
Mr Allen submitted that an extension of time should be granted because the application had merit and because it had been prosecuted until recently by a self-represented litigant.
The respondent opposed the applicant being given an extension of time. Mr Vernier submitted he had not advanced any reason for the seven month delay. He also contended that the applicant had threatened to lodge an appeal on at least 5 occasions during the District Court hearing. When he had not done so, the respondent had commenced the bankruptcy proceedings. He argued that the respondent would be prejudiced by a grant of an extension of time as the Supreme Court proceedings had caused delay and prejudice to her in the bankruptcy proceedings. Finally, he contended that the applicant had not demonstrated an arguable case warranting a grant of an extension of time.
UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]).
I would grant the applicant the extension he seeks. The most significant factor in acceding to that application is that, in my view, the applicant has a clearly arguable case that both the District Court and Local Court decisions were affected by jurisdictional error.
Secondly, the APVO against the applicant will be in force until 12 June 2015. In addition, the applicant has been ordered to pay costs in the two lower courts which orders may not have been made if each court had directed itself to consider the statutory pre-conditions for making an APVO. Accordingly, the applicant has a continuing interest in challenging the two lower court judgments: UCPR 59.10(3)(a).
Thirdly, it is apparent that the applicant was unrepresented until the proceedings in this Court and, even then, did not secure representation until they had progressed some way. He appeared for himself in the Local Court, the District Court and in the Federal Circuit Court. It is clear he had no legal representation when he filed the original summons. It might tolerably be inferred that he only obtained legal representation when the amended summons, which was clearly drafted by a lawyer, was filed on 13 August 2014. While that does not excuse his ignorance of the procedural requirements, at times a measure of indulgence may be extended to an unrepresented litigant to satisfy the public interest in the due administration of justice: cf UCPR 59.10(3)(d); Wang v Farkas (at [48]).
There is no evidence as to when the respondent commenced the bankruptcy proceedings. However I accept Mr Vernier's statement that she did so in the belief the proceedings were at an end. I accept accordingly, that the respondent has suffered prejudice in the commencement of the bankruptcy proceedings. However, the prejudice she has suffered in that respect can be ameliorated to some extent by moulding the costs orders of these proceedings.

[16]

Consideration

It is apparent from the primary judgment that the primary judge did not, with respect, form her own judgment as to the facts and whether they warranted the conclusion that the elements of s 19(1)(b)(i) of the DPV Act (relating to intimidation) had been established - there being no suggestion that the applicant had stalked the respondent. Nor did her Honour address the sufficiency issue s 19(1) directed the decision-maker to consider once a prima facie s 19(1)(b) finding had been made. Finally her Honour did not consider whether, in all the circumstances, and taking into account the matters raised in s 20, an APVO was warranted.
Further, in determining that the Magistrate's orders should be confirmed, the primary judge did not examine the evidence before the Magistrate, nor did she consider whether his Honour had adequately identified and dealt with the matters with which he was required to deal. Had her Honour done so, with respect, it should have been apparent that his Honour had not considered first, whether being an "argumentative" person can be classified as intimidatory within the meaning of that expression in the DPV Act, secondly, whether even if it could, its extent (limited in this case to two exchanges) was "sufficient to warrant the making of an order" (s 19(1)) and thirdly, had not considered the matters set out in s 20 of the DPV Act.
Even allowing for the pressure of work in the Local Court jurisdiction (cf Maviglia v Maviglia [1999] NSWCA 188 (at [1])) , in my view, the Magistrate's reasons could not be read on the benevolent basis that his Honour had turned his mind to the steps necessary to engage the making of an APVO against the applicant. The Magistrate's reasons did not articulate the essential grounds on which his decision apparently rested, rather they left the Court to speculate as to the basis of his findings: Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247 (at 280) per McHugh J.
The respondent submitted that a finding that the respondent entertained "reasonable grounds to fear and in fact fears" (s 19(1)) was implicit in the Magistrate's statement that the applicant's behaviour in court was indicative of the fear she had. Even if such a finding was open on the applicant's in-court behaviour, in the circumstances in which the Magistrate referred to that evidence, he was, in my view, denied procedural fairness constituting jurisdictional error: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 (at [60]).
While it is open to a court "to take into account, for the purpose of fact-finding, its observations of a party's behaviour (including demeanor) in the courtroom, even though the behaviour takes place outside the witness box", this entitlement is subject to a condition based on "fair play and common sense" that the parties "should know or be informed of what [the judge] has noticed, and have an opportunity of answering or dealing with it": Lindsay v Health Care Complaints Commission [2010] NSWCA 194 (at [233] - [241]) per Sackville AJA (Giles JA agreeing). The Magistrate did not give the applicant any opportunity to deal with the proposition that his in court conduct could be "evidence" supporting the making of an APVO.
The primary judge's failure to conduct a rehearing in the sense required by s 18(1) of the CAR Act means that the process of decision-making vested in the District Court by statute has miscarried in circumstances properly characterised as jurisdictional error: Boele v Rinbac (at [54] - [55]) per Basten JA.
Relief on the grounds of jurisdictional error is discretionary: Colquhoun v District Court of New South Wales [2014] NSWCA 460 (at [8]) per Leeming JA, (Beazley P and Barrett JA agreeing). I would grant the applicant relief in the light of the jurisdictional error apparent in the primary judge's reasons.

[17]

Conclusion

The consequence is that the applicant having established jurisdictional error in the District Court appeal, that appeal has not been properly considered and the primary judgment should be set aside. However, it is not apparent that there was only one conclusion available as a matter of law which would warrant this Court setting aside the Magistrate's reasons: cf Bindaree Beef (at [91]). Accordingly the appeal should be remitted to the District Court to be determined according to law.
That leaves the question of costs.
The applicant did not seek an order for the costs of the proceedings in the courts below, no doubt because he represented himself: see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. However he does seek to have the two costs orders made in those proceedings set aside. That will be the consequence of setting aside the District Court orders. It will be a matter for the District Court on the re-consideration of the applicant's appeal to that Court to determine the fate of the Local Court costs order.
The applicant seeks cost in this Court. There appears to me to be a difficulty in making such an order having regard to the prohibition in s 99(3) of the DPV Act against a Court making a costs order against an applicant for an APVO unless satisfied the application was "frivolous or vexatious". It is unnecessary to determine whether that provision constrains this Court in exercising its supervisory jurisdiction from ordering the respondent to pay the applicant's costs of these proceedings. This is because I would not order her to pay those costs in order in some way to assuage the prejudice she has suffered from commencing the bankruptcy proceedings absent any challenge to the District Court orders. Rather, in my view, there should be no order as to costs of the proceedings in this Court.
Finally, I note that the District Court is empowered to make an order under the Suitor's Fund Act 1951 (NSW) where an appeal on a question of law succeeds: s 6(1A), Suitor's Fund Act. Whether a court failed to apply the correct legal test is a question of law: Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 (at [13]) per Dowsett and Gordon JJ. Should the District Court reach that view in respect of the Magistrate's reasons such that it allowed the appeal, it would be open to that court to make an order in the respondent's favour under that legislation.

Dyason v Butterworth

At a glance

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Legislation Cited (7)

Cases Cited (38)