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[2025] NSWCA 228
mixed. The Apprehended Personal Violence Order made by the District Court on 14 May 2025 was set aside. The matter was remitted to the District Court for reconsideration according to law, limited to the term...
The Court of Appeal set aside the District Court’s APVO because Ms Lo had not been given a chance to address the change in its dates, and there was a realistic possibility her submissions could have affected that decision. The Court did not find that the date change was beyond the District Court’s power, and it left the $15,000 costs order in place because another statutory provision could support it. The matter was sent back to the District Court to reconsider the APVO’s term.
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2,163 words · generated 06/10/2026
The case concerned an APVO made in favour of neighbours Chao Gu and Rong Ji and against Yuk Lo. On 22 April 2024, the Local Court made the order for two years, from 22 April 2024 to 21 April 2026 [6]. Ms Lo appealed. She was self-represented in the District Court, where the appeal proceeded as a rehearing on the Local Court evidence [7], [10].
10 cited instruments linked from this judgment.
On 14 May 2025, the District Court dismissed the appeal. The appeal judge said he confirmed the Local Court orders, but also directed that the APVO run for two years from that day, expiring on 13 May 2027 [11]. The practical effect was to extend the order by a little over a year. Neither the hearing nor the judge’s reasons had foreshadowed that the dates might change, and the reasons did not explain the change [12].
The respondents then sought $15,000 in costs. The appeal judge asked Ms Lo more than once whether she opposed an order for that amount. She objected, but did not provide a particular reason apart from saying she would appeal [13]. The judge ordered the costs, referring to Ms Lo’s conduct and the perceived lack of merit in her appeal [14].
Ms Lo applied to the Court of Appeal for judicial review. She challenged the District Court’s power to change the APVO dates, the lack of an opportunity to address that change, the statutory basis for the costs order, and the way the costs question was handled [4], [16]. The Court upheld only the procedural fairness challenge to the dates. It set aside the District Court APVO and remitted the term issue, but left the District Court costs order intact [60]–[66].
The starting point was the restricted nature of judicial review. Under s 176 of the District Court Act 1973 (NSW), the Court of Appeal could intervene only for jurisdictional error [5]. The case was therefore not a general rehearing of whether the APVO should have been made or whether the District Court had correctly assessed the evidence.
On the power challenge, the Court accepted that the appeal judge’s reasons did not make clear which statutory power was being exercised. The judge may have assumed that the notice of appeal stayed the Local Court APVO and that its dates therefore needed to be reset. Section 85(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that lodging an appeal does not stay the order [32]–[33]. But even if the judge had misunderstood the stay position, the Court treated that as an error within jurisdiction, not a jurisdictional error [33].
The Court also concluded that s 68 of the Crimes (Appeal and Review) Act 2001 (NSW) provided a source of power for an appeal court to specify when a confirmed or varied order takes effect [36]. It did not need to decide whether s 28(2) of that Act independently supported the order, or how the appeal should be classified under s 20 [35]–[36]. Nor did the inadequate explanation, by itself, establish jurisdictional error. The Court noted that inadequate reasons ordinarily do not amount to jurisdictional error unless they demonstrate a constructive failure to exercise jurisdiction or another relevant error [37].
The procedural fairness issue was different. The respondents accepted that Ms Lo had not been invited to address whether the dates should change. The Court considered that the APVO was important to her, that no one had put her on notice that an extension was under consideration, and that the respondents had not sought one [40]–[41]. The question was whether the lost opportunity could realistically have made a difference.
Applying the principles stated in MZAPC, Nathanson and LPDT, the Court explained that materiality requires a realistic possibility that the decision could have been different, not proof that a different outcome was more likely [42]. Although Ms Lo had not set out the particular submissions she would have made, the Court distinguished the circumstances from Allianz Australia Insurance Ltd v Bell. In Allianz, the relevant inconsistency was already obvious to the decision-maker. Here, the proposed date change had not been raised at all [43]–[45].
The Court inferred that Ms Lo might have asked why the dates were being changed. That question could have prompted the appeal judge to reconsider the basis for the change, or allowed the respondents’ counsel to draw attention to s 85 [45]. The Court held that this was enough to infer materiality. It stressed the role of a fair opportunity to respond and the undemanding standard of reasonable conjecture [46]–[48].
The costs challenges did not succeed. The parties accepted that the appeal judge had wrongly relied on ss 99 and 99A of the CDPV Act. However, s 28(3) of the CAR Act authorised the District Court to make such costs order as it thought just. The Court held that this provision could support the same order, so the mistaken reference to the CDPV Act did not invalidate it [49]–[55].
Nor did the costs process amount to procedural unfairness. Ms Lo had included a costs request in her own appeal statement, was present when the respondents sought $15,000, and was asked more than once whether she opposed that amount. The Court considered that the judge did not have to stand the matter down or question the amount further, and that no practical injustice had been shown [56]–[59].
The judgment does not announce a new general rule about APVO duration or change the statutory framework. It applies existing principles to the particular combination of an appeal, a change to the order’s dates, and the absence of notice.
Before this decision, the judgment identifies the relevant statutory provisions as including s 85 of the CDPV Act, which states that an appeal notice does not stay the APVO, and s 68 of the CAR Act, which allows an appeal court to specify the effective date of a confirmed or varied order [32], [36]. It also identifies s 28(3) of the CAR Act as a broad costs power [51]–[54]. The Court did not resolve every possible interaction between the appeal provisions, particularly the relationship between ss 20 and 28(2) [35]–[36].
The decision applies the High Court’s established materiality approach to procedural fairness. As summarised by the Court, an error is material if there is a realistic possibility that the actual decision could have been different. “Realistic” excludes a fanciful or improbable possibility, while the applicant bears the onus of establishing the relevant historical fact [42]. Where a party was not put on notice of an issue, a court may infer that the party might have addressed it through evidence or submissions [42], [46].
The practical contribution is the application of that framework to an unforeshadowed change in an APVO’s dates. The Court did not require Ms Lo to prove precisely what she would have said. It inferred a realistic possibility from the fact that the date change had not been raised, was significant to her, and could have prompted reconsideration [41], [45]–[47].
The decision also applies the alternative-source-of-power principle to costs. Although the appeal judge referred to the wrong provisions, the costs order could stand because s 28(3) independently supported it [49]–[54]. The Court relied on Licha v Joseph for that reasoning [50]–[51].
At [33], the Court said that any mistaken view about whether the APVO was stayed would be “an error within jurisdiction”. In plain English, an incorrect legal assumption does not automatically mean that the judge lacked authority to decide the matter. Judicial review required more than identifying a possible mistake.
At [36], the Court identified s 68 of the CAR Act as a source of power to specify when an order confirmed or varied on appeal would take effect. The practical significance is that the dates order was not necessarily beyond the District Court’s authority, even though the appeal judge did not identify that provision in the reasons.
At [41], the Court noted that there was “no indication” Ms Lo had been put on notice that the APVO dates might be changed. In plain English, the problem was not simply that the judge reached a result Ms Lo disliked. She had not been told that this particular issue was in play, despite its significance and despite the respondents not asking for an extension.
At [45], the Court found a realistic possibility that Ms Lo might have persuaded the appeal judge not to change the dates. It reasoned that she might have asked why the change was proposed, which could have led the judge to reconsider the legal basis or prompted counsel to address the effect of s 85. The Court did not decide that the dates necessarily had to remain unchanged. It decided that a fair hearing might have produced a different decision.
At [46], the Court said that the circumstances justified an inference that the procedural unfairness was material. This illustrates the role of reasonable conjecture: the applicant need not always reconstruct in detail the submissions she would have made when the lack of notice itself deprived her of the opportunity.
At [54], the Court concluded that s 28(3) was broad enough to support the costs order that had been made. In plain English, an error in identifying the statutory source of a power does not necessarily invalidate an order when another available provision supports it.
The procedural fairness reasoning is most directly relevant where an appeal court or tribunal proposes to change the duration or operative dates of an order, but the possibility has not been raised with the affected party. The judgment emphasises the significance of the order to the party, the absence of notice, and the possibility that an opportunity to respond could have prompted reconsideration [41], [45]–[47].
The reasoning may also be relevant where the party cannot point to a fully developed alternative submission because they were not alerted to the issue. The Court did not treat the absence of detailed proposed submissions as conclusive. It inferred materiality from the circumstances and the possibility that a question or submission could have affected the decision [44]–[46].
The jurisdictional reasoning is relevant where an applicant for judicial review alleges that a court made a legal mistake about its powers. The case distinguishes an error within jurisdiction from jurisdictional error and reiterates that inadequate reasons alone will ordinarily not establish jurisdictional error [33], [37]–[38].
The costs reasoning is relevant where a decision-maker referred to an incorrect costs provision but another provision could authorise the same order. It is not a general ruling that every costs error is immaterial. Here, the Court considered the availability and scope of s 28(3), and the applicant did not challenge the dismissal of the underlying appeal [50]–[54].
The judgment itself contains no account of later courts treating Lo v Gu. It was decided on 17 October 2025, and the material supplied does not identify any subsequent cases applying, distinguishing, or otherwise considering it.
The judgment does discuss earlier authorities. It applies principles from MZAPC, Nathanson and LPDT when assessing materiality, and considers Allianz as a contrasting example [42]–[45]. It applies Licha v Joseph to the alternative-source-of-power issue on costs [50]–[54]. Those references explain the reasoning in Lo v Gu; they are not later treatment of Lo v Gu.
Accordingly, no claim can be made from this judgment alone about whether its reasoning has subsequently been followed or limited.
The Court expressly left unresolved whether s 28(2) of the CAR Act, which permits the District Court to exercise functions available to the Local Court, is limited by the distinctions in s 20 between appeals against conviction and appeals against sentence [35]. It also left open how an appeal under s 84 of the CDPV Act should be characterised for that purpose [35]–[36]. The Court did not need to decide those questions because the parties accepted that s 68 provided a source of power for the dates order [36].
The judgment does not decide whether, on reconsideration, the APVO should retain the Local Court dates or have different dates. It remitted that issue to the District Court, limited to the term of the Local Court APVO [62], [66]. The Court said that any reconsideration could involve submissions and evidence confined to the operative dates, if agreement was not reached [63].
The decision also does not establish that every failure to invite submissions about an order’s duration will be material. Its conclusion depended on the circumstances: the date change was not foreshadowed, the APVO mattered to Ms Lo, and there was a realistic possibility that an opportunity to respond could have changed the decision [41], [45]–[48].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lo v Gu [2025] NSWCA 228
Hearing dates: 03 October 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Before: Mitchelmore JA at [1];
McHugh JA at [2];
Griffiths AJA at [3]
Decision: (1) The Apprehended Personal Violence Order made by the District Court on 14 May 2025 be set aside.
(2) The matter be remitted to the District Court for reconsideration according to law limited to the issue of the term of the Apprehended Personal Violence Order made by the Local Court on 22 April 2024.
(3) The parties bear their own costs of the proceedings in this Court.
Catchwords: CRIME — appeal and review — application for review of District Court judgment dismissing appeal from Local Court ruling — where apprehended personal violence order made against applicant — whether District Court judgment involved jurisdictional error — whether District Court extended term of apprehended personal violence order in excess of jurisdiction — whether applicant unfairly denied opportunity to make submissions on term of apprehended personal violence order and costs
COSTS — application for review of District Court order awarding costs to respondents — whether appeal judge wrongly relied on Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 99 and 99A — whether order involved jurisdictional error
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 73, 79, 84, 85, 99, 99A
District Court Act 1973 (NSW), s 176
Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 18, 20, 28, 63, 68
Supreme Court Act 1970 (NSW), s 63
Cases Cited: Allianz Australia Insurance Ltd v Bell [2025] NSWCA 187
Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138
Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 4
John v Rees [1970] Ch 345
Licha v Joseph [2025] NSWCA 192
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
MZAPC v Minister for Immigration & Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
Texts Cited: Nil
Category: Principal judgment
Parties: Yuk Lo (Applicant)
Chao Gu (First Respondent)
Rong Ji (Second Respondent)
District Court of New South Wales (Third Respondent) (Submitting Appearance)
Representation: Counsel:
GD Wendler (Applicant)
GE Lewer and S Ramsden (First and Second Respondents)
Solicitors:
William Chan & Co Lawyers (Applicant)
Hugo Law Group (First and Second Respondent)
Crown Solicitor's Office (Third Respondent)
File Number(s): 2025/00262848
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The Local Court issued an Apprehended Personal Violence Order (APVO) in favour of the respondents, a husband and wife, and against the applicant, their next-door neighbour, for a two-year period from 22 April 2024 to 21 April 2026. The applicant appealed to the District Court. Delivering ex tempore reasons for judgment, the appeal judge dismissed the appeal and set the duration of the APVO for a period from 14 May 2025 to 13 May 2027. At no point during the hearing, or in the appeal judge’s reasons for judgment, was the possibility raised that the dates of the APVO would be changed, nor was this change explained.
After the ex tempore reasons were delivered, counsel for the respondents made an application for costs, referring to both ss 99 and 99A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). The applicant (who did not have representation in the District Court) was afforded but did not take advantage of several opportunities to make submissions on the question of costs. Costs were ordered in the amount of $15,000, to be paid within 28 days. The applicant sought judicial review of the appeal judge’s orders, both in relation to the term of the APVO and as to costs. Four grounds of review were raised:
The Court (Griffiths AJA, Mitchelmore JA and McHugh JA agreeing) held, upholding Ground 2 and reject****ing Grounds 1, 3 and 4:
As to Ground 1
Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3; Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209, cited
As to Ground 2
Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138; Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263; John v Rees [1970] Ch 345; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited
Allianz Australia Insurance Ltd v Bell [2025] NSWCA 187, considered
MZAPC v Minister for Immigration & Border Protection (2021) 273 CLR 506; [2021] HCA 17; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12; John v Rees [1970] Ch 345; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, applied
As to Ground 3
Licha v Joseph [2025] NSWCA 192, applied
As to Ground 4
MITCHELMORE JA: I agree with Griffiths AJA.
McHUGH JA: I agree with Griffiths AJA.
GRIFFITHS AJA: This application for judicial review concerns a 14 May 2025 decision of the District Court (District Court Judgment), whereby Hanley SC DCJ dismissed an appeal from a 22 April 2024 decision of Magistrate McGlynn in the Local Court (Local Court Judgment). Magistrate McGlynn issued a two-year Apprehended Personal Violence Order (APVO) in favour of Mr Chao Gu and Dr Rong Ji (the respondents in the present proceedings) and against the applicant in the present proceedings, Ms Yuk Lo. The duration of the APVO was from 22 April 2024 to 21 April 2026. In dismissing Ms Lo’s appeal, Hanley SC DCJ ordered that the APVO run from 14 May 2025 to 13 May 2027. This had the practical effect of extending the operation of the APVO by slightly more than one year. His Honour also ordered Ms Lo to pay Mr Gu’s costs in a fixed amount of $15,000.
By summons filed on 8 July 2025, Ms Lo now seeks orders setting aside the District Court Judgment and orders. She contends that Hanley SC DCJ’s decision to change the dates of the APVO was in excess of his jurisdiction and/or that his Honour did not afford her a sufficient opportunity to be heard before the change was made. She also contends that the appeal judge erroneously relied on ss 99 and 99A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) in awarding costs and failed to afford her a sufficient opportunity to make submissions on the question and quantum of costs.
It should be noted at the outset that, by virtue of s 176 of the District Court Act 1973 (NSW), an application for judicial review to this Court lies only on grounds of jurisdictional error. Ms Lo must therefore demonstrate jurisdictional error (see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [6]–[10] per Basten JA (Giles and McColl JJA agreeing)).
On 23 May 2022, Mr Gu lodged an application for an APVO against Ms Lo. Mr Gu and Dr Ji, who are husband and wife, are Ms Lo’s next-door neighbours. The application was opposed by Ms Lo, who at that stage had legal representation. The application was heard by Magistrate McGlynn over two days, on 28 August 2023 and 22 April 2024. Ex tempore reasons were delivered on the latter date, granting Mr Gu’s application. As previously noted, the APVO was made for a two year period from 22 April 2024 to 21 April 2026.
Ms Lo, who represented herself, filed a notice of appeal against the Local Court Judgment. In a 10-page appeal statement filed on 17 March 2025 (and accompanied by 48 pages of annexures), Ms Lo alleged that the Local Court Magistrate made no less than 13 errors. She sought orders setting aside the APVO and costs.
In submissions in response dated 29 April 2025, Mr Gu identified the relevant statutory framework and legal principles governing the appeal and explained why, in his view, none of the alleged errors was properly founded. At no point did Mr Gu submit that the dates of the existing APVO should be changed.
In written reply submissions dated 9 May 2025, Ms Lo took issue with various aspects of Mr Gu’s submissions and further developed her case.
The appeal was heard by Hanley SC DCJ on 14 May 2025. Pursuant to s 84 of the CDPV Act and s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), the hearing proceeded as a rehearing on the basis of the evidence in the original Local Court proceedings (noting that an application made by Ms Lo to adduce fresh evidence was dismissed by the appeal judge).
In ex tempore reasons for judgment, the appeal judge comprehensively reviewed the evidence and submissions of the parties. Having done so, his Honour explained that “there was easily sufficient evidence to warrant the making of orders”. His Honour concluded:
I dismiss the appeal. I confirm the magistrate’s orders. I confirm the making of a personal apprehended violence order against Ms Lo in the terms of orders 1, 2, 8 and 11 for a period of two years from today; that is, 14 May 2025. That order will expire on 13 May 2027.
This passage raises some difficulties. The appeal judge purported to “confirm the magistrate’s orders”. Those orders set the duration of the APVO for a period from 22 April 2024 to 21 April 2026. However, the appeal judge also set the APVO for a period of two years from 14 May 2025, in effect extending its length by approximately a year. At no point during the hearing, or in his Honour’s ex tempore reasons for judgment, was the possibility raised that the dates of the APVO would be changed in this way, nor was this change explained.
After delivery of the ex tempore reasons, counsel for the respondents made an application for costs, referring to both ss 99 and 99A of the CDPV Act. Costs were sought in the fixed amount of $15,000, which was said to comprise the costs of preparation and the costs of the appearances of the respondents’ solicitor and counsel. The following exchange then ensued between his Honour and Ms Lo:
HIS HONOUR: Ms Lo, do you oppose the awarding of costs of $15,000? Do you oppose the awarding of costs of $15,000?
APPELLANT: I object. I will appeal.
HIS HONOUR: Okay, you can appeal. But do you object - do you say you object to the payment of costs?
APPELLANT: I appeal to your decision and also appeal to the decision of the Court.
HIS HONOUR: That's okay, you can do that, that's your entitlement to do that. But, in my view, normally costs are not awarded in these types of matters, for obvious reasons. Now, this is an unusual case, in my assessment, but the anger is just extraordinary, and extended over a long period of time.
The appeal judge delivered short reasons on the question of costs. His Honour was satisfied that the behaviour of Ms Lo was “so vexatious, and the appeal so unmeritorious” that “costs should be awarded of a professional nature, to be a sign of indemnity for relief to Mr Gu and Dr [Ji], for what I anticipate has been an enormous [sic] money expended to deal with what I can only assess and have suggested, is irrational responses to deal with a concern that has no foundation or rationality”. Costs were ordered in the amount of $15,000, to be paid within 28 days.
Before turning to the parties’ submissions in the present proceeding, it should be noted that Ms Lo was a difficult and uncooperative litigant in the District Court proceedings. Her submissions included extremely serious and unsubstantiated allegations that the Magistrate’s decision was motivated by racial prejudice. As the transcript records, Ms Lo also interrupted the appeal judge at various points, including in a raised voice.
An order setting aside the decision of Hanley DCJ dated 14 May 2025 whereby his Honour ordered that the APVO against the applicant commence from 14 May 2025 and expire on 13 May 2027 such order was in excess of jurisdiction and is null and void as beyond jurisdiction.
Alternatively, setting aside the decision of Handley [sic] DCJ dated 14 May 2025 whereby his Honour ordered that the period of the APVO commence on 14 May 2025 and expire 13 May 2027 by reason of a breach of procedural fairness in that his Honour did not afford the applicant an opportunity to be heard before directing that the period or ambit of the APVO be increased by running from 14 May 2025 to 13 May 2027.
An order setting aside the decision to award professional costs in favour of the respondents by reason of jurisdictional error in that the Court purported to erroneously exercise its jurisdiction on costs pursuant to s99A (1) rather than s99(3) of the CDPVA. And further order the matter of costs be remitted to the District Court
Alternatively, an order setting aside the decision to award professional costs in favour respondents by reason of a breach of procedural fairness having regard to the manner and circumstances in which it was made. An order remitting the matter of costs to the District Court.
In her written outline of submissions dated 27 June 2025, Ms Lo contends that, in extending the operation of the APVO, the appeal judge failed to have regard to s 85(1) of the CDPV Act, which provides that the “lodging of a notice of appeal under section 84 does not have the effect of staying the operation of the order concerned”. It is said the appeal judge proceeded on the erroneous assumption that the appeal was stayed by the notice of appeal and, in doing so, acted beyond jurisdiction.
In their written outline of submissions in response filed on 22 August 2025, the respondents accept that the practical effect of the appeal judge’s order was to extend the duration of the APVO. However, they emphasise that, in determining an appeal, “the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings” (see s 28(2) of the CAR Act, noting that s 3 provides that “function” includes “a power, authority or duty”). Under s 79(2) of the CDPV Act, the Local Court (and, by virtue of s 28(2) of the CAR Act, the District Court) has power to set an APVO for “as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person”. On this basis, the appeal judge’s decision to extend the APVO is said to be well within jurisdiction.
In her written outline of submissions in reply, Ms Lo accepts that the Local Court would theoretically have been entitled to impose a three-year APVO. She emphasises that its ability to do so would, however, be confined by ss 73(1) and 79 of the CDPV Act. She notes that there is no reference to these sections in the District Court Judgment and that the appeal judge does not appear to have asked himself whether it was “proper” to extend the APVO by an additional year for the purposes of s 73(1). Nor, as Ms Lo notes, is there any explicit reference in the orders or reasons to s 28(2) of the CAR Act. The appeal judge’s failure to refer to these provisions is said to indicate his erroneous belief that the APVO was stayed.
It may be interpolated here that, during the course of the hearing, the Court raised with the parties whether ss 20 and/or 68 of the CAR Act were potential alternative sources of power or jurisdiction for the changed APVO made by Hanley SC DCJ. Section 20 provides:
20 Determination of appeals
(1) The District Court may determine an appeal against conviction—
(a) by setting aside the conviction, or
(b) by dismissing the appeal, or
(c) in the case of an appeal made with leave under section 12 (1)—by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.
(2) The District Court may determine an appeal against sentence—
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
It may be noted that s 20 distinguishes between an appeal against conviction and an appeal against sentence. Notably, the District Court has a power to vary the sentence in an appeal against sentence but has no power to vary a conviction in an appeal against conviction (see Garde at [7]–[8]).
Section 68 relevantly provides:
68 Court may confirm or vary conviction or sentence with effect from earlier day
(1) An appeal court may order that a conviction or sentence confirmed or varied by it on appeal, or any part of it—
(a) is to take effect (as confirmed or varied) on and from a day specified in the order, or
(b) in the case of a sentence that has been served in part, is to recommence (as confirmed or varied) on and from a day specified in the order,
being the day on which the order is made or an earlier day.
…
(2) The order has effect despite any stay of execution that has been in force in respect of the sentence appealed against.
In support of the second ground of review, Ms Lo submits that the appeal judge at no point invited her to comment or make submissions on changing the dates of the APVO notwithstanding that, in practical effect, Ms Lo would be the subject of an APVO for a total of three years. Emphasising that the duration of the APVO was clearly a matter of significance for Ms Lo’s freedom, she submits that the appeal judge’s failure to invite submissions amounted to procedural unfairness.
In their written outline of submissions, the respondents concede that Ms Lo was not invited to make submissions on the utility of extending the APVO. They submit that, in these circumstances, the question for the Court is whether this was material to the outcome of the District Court Judgment. Hence the question is whether there is a realistic possibility that the decision could have been different if the error had not occurred (citing LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7]).
Noting that it is incumbent on Ms Lo to demonstrate materiality, the respondents submit that any error was not material, because:
(a) It is highly unlikely that Ms Lo would have discontinued her appeal or made cogent submissions had the appeal judge indicated that his Honour was minded to extend the operation of the APVO. This is said to be borne out by the fact that, when Ms Lo was asked to make submissions on the proposed costs order, she failed to provide any meaningful response (see at [13] above). (b) Neither the appellate record, nor any evidence filed by Ms Lo in the present application, discloses a basis on which she could have effectively opposed the further extension of the APVO. Nor, it is said, do Ms Lo’s submissions to this Court explain how prior notice could realistically have made any material difference.
In relation to Ground 3, Ms Lo submits that the appeal judge wrongly relied on ss 99 and 99A of the CDPV Act in circumstances where s 99A had no application because Ms Lo was not a “protected person”. That the appeal judge relied on these provisions is said to be demonstrated by the fact that costs were specifically ordered on grounds that Ms Lo’s conduct was vexatious and her appeal meritless. Ms Lo submits that the only lawful basis for professional costs was s 99(3), which was not explicitly invoked by the appeal judge.
In their written outline of submissions, the respondents emphasise that, under s 28(3) of the CAR Act, the appeal judge was empowered, subject to a limitation not relevant in this case, to “make such order as to the costs to be paid by either party … as it thinks just”. The respondents concede that the appeal judge wrongly relied on ss 99 and 99A of the CDPV Act in awarding costs, but submit that the error is immaterial in circumstances where the same order could have been made under s 28(3). In this respect, the respondents emphasise that the costs power conferred by s 28(3) is significantly wider than that conferred by s 99A. The fact that the appeal judge was satisfied that costs could be awarded under s 99A is said to indicate that the same order would also have been made under s 28(3).
As to Ground 4, Ms Lo submits that she was denied procedural fairness by the appeal judge, who invited her to indicate whether she opposed an award of professional costs, but did not explicitly invite her to make submissions as to the quantum of costs. Ms Lo also complains that the appeal judge did not question the respondents’ counsel in relation to the quantum of costs and that he appeared to award costs on an indemnity basis. Alternatively, Ms Lo submits that procedural fairness required the appeal judge to inquire whether she wished to have the matter stood down “to become fully informed as to the Court’s intentions concerning the awarding of professional costs”.
In their written outline of submissions, the respondents emphasise that Ms Lo was asked twice whether she opposed costs being awarded in the amount of $15,000 and failed to take up the opportunity both times. In these circumstances, and again noting that the District Court’s power to award costs under s 28(3) of the CAR Act is said to be “effectively unfettered”, the respondents submit that Ground 4 is misconceived and discloses no jurisdictional error.
As noted above, Ms Lo complains that, in extending the operation of the APVO, the appeal judge failed to have regard to s 85(1) of the CDPV Act, which provides that the “lodging of a notice of appeal under section 84 does not have the effect of staying the operation of the order concerned”. Ms Lo submits that it should be inferred from the appeal judge’s failure to refer to this provision that his Honour was unaware that the APVO was not stayed by the lodgement of her notice of appeal (this is because the effect of s 85 of the CDPV Act overrides the usual stay imposed by s 63 of the CAR Act, thus lodgement of a notice of appeal under s 84 of the CDPV Act does not have the automatic effect of staying the operation of the order concerned).
It is regrettable that Hanley SC DCJ did not make clear in his reasons for judgment which power he was purporting to exercise in making the orders set out at [11] above. Having regard to the terms of the orders and the fact that they expressly included a confirmation of the Magistrate’s order, Hanley SC DCJ may have been acting under s 68 of the CAR Act. There appears, however, to be some force in Ms Lo’s submission that his Honour may erroneously have assumed that s 63 of the CAR Act operated to stay the APVO made by the Magistrate and that the dates of its operation therefore needed to be amended for it to be in force for two years. It may be that his Honour overlooked the fact that s 63 had no application because of s 85 of the CDPV Act. Any such misapprehension by his Honour in respect of whether the Magistrate’s APVO was stayed by the fact that Ms Lo had lodged an appeal would be an error within jurisdiction (see generally Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [55] per Gordon, Edelman, Steward and Gleeson JJ).
Putting the procedural fairness complaint to one side, the issue remains, however, as to whether his Honour had the power to make those orders.
There are difficulties with the respondents’ suggestion that s 28(2) of the CAR Act provides such a power. As noted above, the effect of that provision is that, in determining an appeal, the District Court is empowered to exercise any “function” that the Local Court could have exercised in the original proceeding (and noting that “function” is defined in s 3 to include, relevantly, “a power”). Despite the evident breadth of that provision, some potentially difficult issues are raised regarding the interaction between that provision and s 20 of the CAR Act. The latter draws a distinction between the District Court’s power in determining an appeal against conviction as opposed to an appeal against sentence. A question arises whether this necessarily limits the breadth of the power under s 28(2). There is a further question whether an appeal to the District Court under s 84 of the CDPV Act is to be treated as an appeal against conviction or an appeal against sentence.
It is unnecessary to determine these questions here. That is because the parties ultimately agreed that s 68 of the CAR Act provided a source of power for the orders made by Hanley SC DCJ regarding the dates of the APVO. The terms of s 68(1) and (2) are set out at [22] above. Significantly, under this provision, the appeal court has the power to order that a conviction or sentence confirmed or varied on appeal (or any part of it) is to take effect “as confirmed or varied” on and from a day specified in an order. Thus, it is clear that this power is available when the appeal court is determining an appeal against either conviction or sentence. The potential difficulties presented by the interaction between ss 20 and 28(2), as referred to above, do not arise.
A failure by an inferior court to accord procedural fairness to a party in a material respect constitutes jurisdictional error, procedural fairness being an essential characteristic of the exercise of judicial power (see, for example, Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13] per curiam).
To establish jurisdictional error constituted by a breach of the fair hearing limb of procedural fairness, it must be established both that there was a denial of procedural fairness and that it was material to the decision. In their written outline of submissions, the respondents identify the relevant question for the Court as whether the appeal judge’s failure to invite submissions on whether the dates of the APVO’s operation should be changed was a material error. In identifying this as the relevant question for the Court, the respondents appear implicitly to concede that there was a denial of procedural fairness by the appeal judge.
The existence of the APVO was clearly of considerable importance to Ms Lo and there is no indication that Ms Lo was ever put on notice, by the respondents or by the appeal judge, that changing the dates of the APVO was a potential consequence of her appeal. Indeed, an extension of the end-date of the APVO was not something which was ever sought by the respondents.
The relationship between materiality and procedural unfairness has been considered by the High Court in several recent cases (see MZAPC v Minister for Immigration & Border Protection (2021) 273 CLR 506; [2021] HCA 17; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26; and LPDT). For present purposes, it is sufficient to identify the following principles:
(a) An error will be material if there is a realistic possibility that the decision that was made in fact could have been different but for the error (MZAPC at [2], [85]; Nathanson at [32], [46], [63]; LPDT at [7]). (b) “Realistic” distinguishes the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable (MZAPC at [2], [85]; LPDT at [14]). (c) The existence of a realistic possibility that the decision could have been different is a question of historical fact in respect of which the applicant for judicial review bears the onus of proof (MZAPC at [38]–[39]; Nathanson at [32]; LPDT at [10]). (d) The types of evidence which have been held sufficient to establish relevant facts for these purposes include the appellate record (Nathanson at [48]) and evidence of the content of a document or information required to be provided as part of the decision-making process (LPDT at [12]). (e) Where a denial of procedural fairness arises from a failure to put an applicant on notice of some fact or issue affecting them, then it may be possible readily to infer that the applicant might have addressed that fact or issue by way of further evidence or submissions and that the evidence or submissions would have been approached with an open mind (Nathanson at [33]; LPDT at [15]). (f) It is “no easy task” to be satisfied that the loss of an opportunity to provide further evidence or submissions did not deprive the person of the possibility of a successful outcome (MZAPC at [114]; Nathanson at [47]; LPDT at [15]).
In Allianz Australia Insurance Ltd v Bell [2025] NSWCA 187 at [96], Price AJA (Payne and Ball JJA agreeing) rejected the appellant’s submission that it had been denied procedural fairness by a Personal Injury Commission Review Panel, which had refrained from inviting submissions from the parties concerning the significance of differences in the respondent’s reporting history. His Honour emphasised that “it would have been plainly obvious to the members of the Review Panel that Mr Bell’s denial was inconsistent with his prior reporting”, such that it was “difficult to see how inviting Allianz to make further submissions could have made a material difference”. Relying on both MZAPC and LPDT, his Honour also reasoned that the appellant had failed to “explain how if it was given the opportunity to make further submissions, there was a realistic possibility that a different decision could have been made but for the denial of procedural fairness” (see also Corliss v Director of Public Prosecutions (NSW) [2023] NSWCA 263 at [54]–[55]).
It might be argued that the same reasoning applies here. Ms Lo has failed to offer any explanation of how, if she had been afforded the opportunity to make further submissions on the question whether the duration of the APVO should be extended, there was a realistic possibility that a different decision could have been made. She has not pointed to anything in the record or in the evidence before the appeal judge to support the existence of such a possibility. As noted above, the question of materiality was raised for the first time by the respondents in their written outline of submissions. It was not addressed at all by Ms Lo in her written submissions in reply. In these circumstances, it might fairly be said that Ms Lo has failed to discharge her onus of proof.
However, a crucial aspect of the reasoning in Allianz was that ‘[i]t would have been plainly obvious to the members of the Review Panel that Mr Bell’s denial was inconsistent with his prior reporting”. It was for this reason that the Court considered that it was “difficult to see how inviting Allianz to make further submissions could have made a material difference”. That is not the case here. There is a realistic possibility that Ms Lo may have been able to persuade his Honour that the dates of the APVO should not be changed. It may be accepted that because Ms Lo represented herself and apparently has no legal training, it is doubtful that she was familiar with provisions such as s 85 of the CDPV Act or s 63 of the CAR Act. But there is a realistic possibility that, if Ms Lo had been given the opportunity, she may have asked why the appeal judge was minded to change the dates. This may have caused the appeal judge to pause and reflect upon his power to make such a change. It is also possible that if the appeal judge responded by saying s 63 of the CAR Act applied, counsel for the respondents may have assisted the Court by drawing attention to the effect of s 85 of the CDPV Act.
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture“, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious”, they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.
To similar effect, see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [4] per Gleeson CJ.
Ms Lo submits that the appeal judge wrongly relied on ss 99 and 99A of the CDPV Act as the basis for the costs order made by his Honour in circumstances where these provisions are inapplicable because Ms Lo was not a “protected person”. The respondents concede that the appeal judge made this error, but they submit this error was immaterial in circumstances where the power in s 28(3) of the CAR Act was also available and would support the same outcome in regard to costs.
The respondents’ submissions should be accepted. There is a well-established principle in various areas of the law that, if a power is exercised upon a mistaken belief as to its source, then this will not necessarily result in invalidity if the decision is able to be supported by another source of power. The principle was recently applied to a costs decision of the District Court in Licha v Joseph [2025] NSWCA 192. The primary ground of judicial review in that case was that it was a jurisdictional error for the District Court to have ordered costs under the CDPV Act in circumstances where its power to award costs was conferred by s 28(3) of the CAR Act, which it was said was not relied upon. This complaint was rejected on the basis that any erroneous reliance on the CDPV Act was immaterial in circumstances where s 28(3) of the CAR Act provided an alternative source of power (see at [60]–[68] per Griffiths AJA). Kirk and Ball JJA rejected the complaint on separate grounds, but agreed in the alternative with that reasoning (see at [16]).
Similar reasoning applies here. The parties accept that the appeal judge erroneously relied upon ss 99 and 99A of the CDPV Act as a source of the power to award costs. However, this does not establish that the costs order itself was beyond power in circumstances where the same award could have been made under s 28(3) of the CAR Act. As observed in Licha at [75]:
On its proper construction, s 28(3) does not oblige the Court to state explicitly in either the terms of a particular order or the accompanying reasons for judgment, that the particular order as to costs is “just”. The reference at the end of s 28(3) to “just” appears in the context of the Court being empowered to make such an order as to costs as it thinks just. This reflects the usual position that, subject to the terms of a provision empowering a court to award costs, the court has a broad power, which is generally unfettered, but must be exercised judicially (see Latoudis v Casey (1990) 170 CLR 534 at 541–543 per Mason CJ, and at 567 per McHugh J; [1990] HCA 59 and Hariz at [13]).
Mr Wendler properly acknowledged in oral address that Ms Lo’s appeal to the District Court was meritless and he confirmed that Ms Lo did not challenge the dismissal of her appeal. In those circumstances, there can be no doubt that the costs order could properly be characterised as “just” for the purposes of s 28(3).
The orders do not make clear whether Ms Lo was ordered to pay costs on an indemnity basis. There is a reference in the transcript to his Honour saying that he was “prepared to make a finding that is one of those where costs should be awarded of a professional nature, to be a sign of indemnity for relief to [the respondents] …”. It is unclear whether his Honour was simply using the expression “a sign of indemnity for relief” to reflect the normal compensatory nature of an order for costs. In any event, neither party suggested that s 28(3) of the CAR Act is not broad enough to apply to an award of indemnity costs or a fixed sum costs order.
I am satisfied that s 28(3) was wide enough to make the orders which in fact were made. The remarks of Kirk and Ball JJA in Licha at [15] are apposite:
… Moreover, it is difficult to conceive how it could be said that making costs orders might not have been just in circumstances where his Honour had concluded in his ex tempore reasons that the “the qualifications of frivolous and vexatious are appropriate” and that “[t]he appeal had no merit at all”.
In her appeal statement filed in the District Court on 17 March 2025, one of the orders sought by Ms Lo was “Cost order – cost follow the event”. Accordingly, it may reasonably be inferred that Ms Lo was aware that there would be cost consequences depending on the outcome of her appeal.
While Ms Lo may not have been aware of the nature of the costs order which would be sought by the respondents, she was present in Court when the costs application was made. The respondents’ counsel provided only scant details in support of his statement that the proposed amount of $15,000 was in fact less than the respondents’ actual legal costs. But that figure applied not only to the respondents’ legal costs of defending Ms Lo’s appeal (which, as noted by Hanley SC DCJ, required a review of the Local Court transcript over two days, the exhibits tendered in that proceeding as well as the “extensive” written submissions), but also their costs of successfully resisting Ms Lo’s motion to adduce further evidence.
Finally, the appeal judge asked Ms Lo more than once (see at [13] above) whether she opposed a costs order in that fixed amount. Although she made clear that she objected, she gave no particular reason for doing so apart from her not unexpected dissatisfaction with the appeal judge’s substantive decision.
Having regard to all these matters, I do not accept that Ms Lo was denied procedural fairness on the issue of costs of the District Court proceedings. The appeal judge was not obliged to go further and either stand the matter down or question the quantum of costs. No practical injustice has been demonstrated. Ground 4 fails.
Having regard to Ms Lo’s success in establishing Ground 2, it is necessary to set aside the APVO dated 14 May 2025.
Mr Wendler also urged the Court to exercise the power under s 63 of the Supreme Court Act 1970 (NSW) and make an order restoring the APVO dated 22 April 2024 so as to bring finality to the proceedings without the need to remit. This is reflected in the document styled “Applicant’s statement of orders sought”. As the Court pointed out, however, s 63 must be read together with s 69 of that Act, which is the source of the Court’s judicial review jurisdiction. In accordance with general principle, the Court would normally not make an order of the kind sought by Ms Lo in such a proceeding unless the Court was satisfied that, on remittal, no other order could be made. That high level of satisfaction cannot be attained here, particularly having regard to the obscurity of the appeal judge’s reasons for changing the dates of the APVO.
Regrettably, therefore, the issue regarding the date of the APVO order made on 14 May 2025 should be remitted to the District Court. Neither party objected to Hanley SC DCJ conducting the reconsideration limited to this issue. This makes sense as his Honour is well familiar with the matter.
It may well be that the parties will be able to agree consent orders in the District Court which would restore the dates in the APVO dated 22 April 2024. If agreement cannot be reached, it will be a matter for the Judge to whom the matter is allocated to give appropriate case management directions, including an opportunity for the parties to make submissions and file any evidence confined to the issue of the operative dates for the APVO.
I see no reason to disturb the costs order made by Hanley SC DCJ, which appropriately reflected his Honour’s rejection of Ms Lo’s grounds of appeal.
As to the costs of the present proceedings, although the normal rule is that costs follow the event, I do not consider that Ms Lo’s success in establishing Ground 2 warrants an order for costs in her favour. Her other three grounds, which occupied significant time and resources, all failed. Furthermore, as Ms Lewer (who appeared together with Ms Ramsden for the respondents) pointed out, the respondents bear no responsibility for the terms of the orders relating to the dates of the APVO as made by the appeal judge. I consider that the parties should bear their own costs of the present proceedings.
I propose the following orders:
The Apprehended Personal Violence Order made by the District Court on 14 May 2025 be set aside.
The matter be remitted to the District Court for reconsideration according to law limited to the issue of the term of the Apprehended Personal Violence Order made by the Local Court on 22 April 2024.
**********
Lo
Gu [2025] NSWCA 228
(2011) 80 NSWLR 620
(2009) 240 CLR 319
(2024) 280 CLR 321
(2022) 109 NSWLR 604
(2021) 273 CLR 506
(2022) 276 CLR 80
(2000) 204 CLR 82
(2023) 278 CLR 1
(1990) 170 CLR 534
The Apprehended Personal Violence Order made by the District Court on 14 May 2025 was set aside. The matter was remitted to the District Court for reconsideration according to law, limited to the term of the Local Court APVO made on 22 April 2024. The parties were ordered to bear their own costs in the Court of Appeal. The District Court costs order was not disturbed: [60]–[66].
As previously mentioned, it is not clear from the terms of the orders or reasons what particular power Hanley SC DCJ relied upon in changing the dates of the APVO. Ms Lo has not suggested, however, that any jurisdictional error is demonstrated by the appeal judge’s failure to provide adequate reasons for making the challenged orders. This may be because a failure by an inferior court to provide adequate reasons does not, of itself, ordinarily amount to jurisdictional error, unless it demonstrates a constructive failure to exercise jurisdiction or some other relevant jurisdictional error (see Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [40]–[46] per Kirk JA, White and Mitchelmore JJA agreeing). Mere legal error would not suffice.
For these reasons, Ground 1 fails.
In all these circumstances, I consider this is a case where the Court should infer that the procedural unfairness was material. The circumstances here fit comfortably with the following statements of Kiefel CJ, Keane and Gleeson JJ in Nathanson at [33] (footnotes omitted, emphasis added):
The parties bear their own costs of the proceedings in this Court.