Majumdar v Director of Public Prosecutions

Proceedings in Local Court

1. On 7 February 2023, the applicant filed an application in the Local Court to revoke the AVO. The protected person was described in that application as the PINOP, that is, person in need of protection. The application stated that the "[o]rder will expire on 16 June 2023" (however, strictly the order expired on 14 June 2023). The stated grounds of the application included:

• "I was not advised that the 'no contact condition' meant I was not to be in contact whatsoever with the PINOP",
• the applicant had changed his employment and residence since the granting of the AVO,
• the PINOP no longer attended Macquarie University gym,
• the applicant had an offer from the Australian Army to join as an officer, for which "unrestricted service" is a condition that must be achieved and "any sort of AVO … are treated as a restriction", and
• the applicant was moving to a different state(s) for training and postings.

1. The applicant was represented by a solicitor, Mr Spence, when the revocation application was mentioned before Magistrate Mijovich in the Hornsby Local Court on: 1. 7 March 2023: the application was adjourned to allow for service on the protected person, with the Magistrate observing that if the revocation was opposed, "it's not going to get a hearing until November", and "the whole thing can be over by the time we get to a hearing if its opposed"; 2. 4 April 2023: the Magistrate set a timetable for evidence after the protected person and the police indicated that the application was opposed. The matter was adjourned to 9 May 2023 "for compliance" and to fix a hearing date. The Magistrate stated that he "noted the papers that your client's aware it expires in June and that the hearing will be sometime in January"; and 3. 9 May 2023: the Magistrate informed the applicant's solicitor that given the solicitor's indication that only his client would be called to give evidence, he could list the matter "a lot earlier". After a discussion about suitable dates, a hearing date was fixed for 21 July 2023.
2. On 21 July 2023, the application was heard by Magistrate Milovanovich. The applicant was unrepresented at this hearing. In his ex tempore judgment, the Magistrate noted that (i) the AVO had expired, (ii) Mijovich LCM did not extend the AVO on 9 May 2023, and there was "no application for the order to be extended of the Court's own volition or by the prosecution". Milovanovich LCM dismissed the application giving two reasons: … sadly, or unfortunately, because it was adjourned after 21 June the order has now expired and there are two reasons why the Court would not proceed with the application today: firstly, I believe that it is expired and the Court has no jurisdiction, secondly, after reading your grounds, it seems to me your grounds are more an appeal against the determination rather than valid grounds for variation or revocation on changed circumstances. Your application is dismissed.

Appeal to District Court

1. The applicant appealed to the District Court from the decision of the Local Court refusing to revoke the AVO and he was self-represented in the District Court. That appeal was made under s 84(2)(d) of the Act. At the hearing of the appeal, he made oral submissions and was invited to hand up a document containing written submissions which was marked as Exhibit 1. The Crown submitted that in the absence of an application to extend the AVO up to the date of the hearing of the application, the AVO expired on 14 June 2023, and by the time the application was heard there was no order in place and therefore no order to revoke.
2. In an ex tempore judgment delivered on 11 December 2023, Judge Kumar noted the Crown's reliance on Wass at [59], and the applicant's submission that there had been, or should be, a "deemed extension" of the AVO until the determination of the revocation application. Her Honour considered that she was bound by Wass, which she described as establishing "that once an order has expired then a person cannot apply to the Local Court for its revocation".
3. After observing that when the matter was heard in the Local Court on 21 July 2023 the AVO had expired on 14 June 2023, her Honour held that the Local Court correctly found there was no jurisdiction to hear the application. Her Honour dismissed the appeal stating that "this appeal is incompetent, because I have no jurisdiction, because the AVO expired at a time which predated the hearing of this application".

The applicant's complaints

1. The applicant is self-represented in this Court. He relied on two grounds in his summons, which were expanded upon in his written submissions. Ground 1 is expressed in unconventional terms and does not identify with specificity the grounds on which the relief is sought, as required by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.4(c). Rather, it asserts that five questions arise: 1. did the Magistrate intentionally set the hearing date after the scheduled expiry date of the order, without explicitly extending it, only to have the matter dismissed without a proper hearing; 2. are the applicant's facts similar to those in Wass v DPP; 3. did Judge Kumar make a jurisdictional error by relying on irrelevant material (Wass v DPP) and also incorrectly interpreting the provisions of the Crimes (Domestic and Personal Violence) Act 2007; 4. does the contemporary legislation in other states and territories extend, revoke or vary applications (sic); and 5. is the concept of "deemed" extension common in the matters of legislature and law?
2. Ground 2 contends that the applicant was denied natural justice because Judge Kumar did not consider "my application [which should be understood as referring to the AVO] to be in a state of deemed extension", even though the revocation application was filed four months and seven days before the AVO expired.
3. If the complaint of procedural unfairness is made out, there would not have been a hearing of the appeal to the District Court in accordance with law, and a rehearing of the appeal will be necessary. It has been said that the issue of procedural unfairness should be addressed first, by extension of the need to first deal with any issue of apprehended bias: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA); Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51].
4. However, in a case like the present, which only concerns jurisdictional error, it is convenient to first address ground 1 as it provides the context of the "deemed extension" submission the subject of the complaint of procedural unfairness in ground 2.

The hearing date fixed by the Local Court

1. The first question in ground 1(a) is directed to the setting of a hearing date by the Local Court, presumably the order made on 9 May 2023, fixing the hearing date of the application on 21 July 2023, which was after the AVO had expired. As the respondent correctly submits, this question does not give rise to any potential jurisdictional error on the part of the District Court and is not the subject of any of the relief sought.
2. In any event, the premise of the first question - whether the Magistrate "intentionally" fixed the hearing date of the revocation application after the AVO was to expire, "without explicitly extending it" - cannot be accepted for two reasons.
3. One is that the Magistrate informed the applicant's solicitor on two occasions (7 March and 4 April 2023) that if the revocation application was contested the first available hearing date would be after the date the AVO expired, and the applicant's solicitor acknowledged that the applicant knew that a contested application would not be given a hearing date before the expiry of the order in June 2023. There is no substance in the complaint that the Magistrate "intentionally" fixed the hearing after the AVO had expired.
4. The other is that it was open to the applicant to make a variation application under s 73(2)(a) of the Act, before the AVO had expired, to extend the period of the AVO until the court dealt with the revocation application. The applicant did not do so. In the absence of such an application by the applicant, there was no reason for the Magistrate to extend the AVO until the court dealt with the revocation application.

The jurisdictional issue

1. The second and third questions raised by grounds 1(b) and (c) concern the jurisdictional issue: if an application to "vary or revoke" an AVO is made before an AVO has expired, does the Local Court have power under s 73 of the Act to vary or revoke an AVO which has expired at the time the application is heard by the court?
2. In support of an affirmative answer to the jurisdictional issue, the applicant relies on the following essential propositions: 1. that Wass is distinguishable on the facts; 2. there is no explicit indication in the Act that s 73(8) is "only meant for extensions but not for the revocations" and "if the Parliament … did not intend to [authorise] abuses", then it must not have explicitly addressed the extension of the revoke-application [in s 73(8)] because they found it not of importance"; 3. "it must have taken for granted" that "a revoke application would be subjected to a deemed extension, because it is either revoked or expired after the court-ordered end date"; and 4. the only possible reason the Legislature did not explicitly mention "revocation" in s 73(8) "is that they did not think it would be necessary".
3. As will appear, the short answer to these submissions is twofold. First, whilst the facts in Wass are distinguishable from the present case in one respect, the reasoning in Wass concerning the meaning of "revoke" in s 73(1) applies to the circumstances of this case. Second, the characterisation of a revocation application as involving a "deemed extension" of an AVO is artificial, and is inconsistent with the text, context, and purpose of the Act.

Wass

1. Wass involved a final apprehended violence order made against Mr Wass in the Local Court on 30 November 2018 for a duration of 12 months. There were no breaches of that order. Around two years later, by application dated 9 October 2020, Mr Wass applied to the Local Court to revoke the order. The revocation application in the Local Court was dismissed on 14 July 2021 on the ground that the Court did not have power to revoke expired orders. An appeal to the District Court was dismissed.
2. On an application for judicial review of the decision of the District Court, Leeming JA (Bell CJ and Kirk JA agreeing) referred to (i) the legislative history of the amendments to Pt 10, Div 5 of the Act by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW) (the 2016 Amendments), following a 2015 review entitled Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (2015) at [36]-[39], (ii) the Attorney-General's speech introducing the 2016 Amendments and the explanatory memorandum accompanying the Bill at [40]-[41], (iii) several textual and contextual considerations at [48]-[58], which support the construction that it was only possible to "revoke" an order while it remained in force, and concluded at [59] adopting a purposive construction of s 73 of the Act: … I conclude that this is a case where the power to "vary or revoke" an order is to be construed as confined to a power to vary or revoke an unexpired order. That accords with natural meanings of "vary" and "revoke". It is consistent with the use of "revoked" in s 24 and s 32 in circumstances where the order must necessarily be in force immediately before it is revoked. It avoids the awkwardness of former s 72(5) being otiose or enacted for the avoidance of doubt. It accords with the explicitly enunciated purpose in the statutory review and the extrinsic materials in 2016, and it also accords with the explicitly enunciated purpose of the amendments in 2008.
3. The respondent correctly accepts that the facts of the applicant's case differ from those in Wass insofar as the applicant filed his application for revocation of the AVO prior to the expiry of the order, whereas in Wass the application to revoke the AVO was filed after the expiry of the order. Nevertheless, the respondent says that this factual distinction does not render this Court's construction of the relevant provisions of the Act any less applicable to the applicant's case. That should be accepted.
4. The legislative history of Pt 10 Div 5 of the Act is referred to in Wass at [26]-[30] where it is noted that between 2008 and 2016, Pt 10 Div 5 of the Act differed from the form it took after the 2016 Amendments. Prior to the 2016 Amendments, s 72 expressly provided in subss 72(5)-(8): … (5) An application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired. Subsection (3) does not apply to such an application. Note - Certain consequences result from an apprehended violence order being made against a person if it is not revoked. For example, section 11 of the Firearms Act 1996 provides that a firearms licence must not be issued to a person who is subject to a final apprehended violence order or who at any time in the previous 10 years has been subject to such an order (other than an order that has been revoked). (6) A court may make an order under this Division revoking a final apprehended violence order even though that final order has expired if the court is satisfied that, were that final order still in force, it should be revoked. (7) In applying the provisions of this Division to an application for revocation of a final apprehended violence order that has expired, a reference to a protected person includes a reference to a person for whom the expired order was sought or made. (8) If an application is made by the defendant for revocation of a final apprehended violence order that has expired: (a) the Commissioner of Police is to be notified of the application, and (b) the court hearing the application must take into account (in addition to any other matters that it is required to take into account) the effect that revocation of the expired order may now have on the protected person, having regard to the grounds on which the expired order was made, and (c) the court may order that a further application for revocation of the expired order may not be made by the defendant except with the leave of the court.
5. As Leeming JA observed in Wass at [28]: It will be seen that four subsections, namely, subss (5)-(8) of s 72, addressed applications for revocation even though the order had expired in terms. In particular, s 72(6) prescribed a necessary test (if the court is satisfied that, "were [the] final order still in force, it should be revoked") when application was made for the revocation of a final apprehended violence order that had expired.
6. The form of ss 72A and 73 after the 2016 Amendments is set out at [8] above. Following the 2016 Amendments, s 72A deals with the making of an application and the reference in s 72A to making an application "at any time" must be read together with s 73, which deals with the court's power to vary or revoke a final AVO or interim court order.
7. Subsections 73(1)-(3) are in essentially the same terms as the former subss 73(1)-(3). Subsections 73(4)-(9) are new. Subsections 73(4) and (5) deal with notice requirements; subs (4) concerns an application of the defendant, whilst subs (5) concerns an application of the applicant for the original order or protected person. Subsection 73(6) deals with the manner of service of such applications.
8. Subsection 73(7) commences "[d]espite subsection (5)" and says that the court may make an order extending the period during which the final AVO or interim court order is to remain in force without notice of the relevant application having been served on the defendant provided the application is lodged before the day on which the AVO or interim court order is due to expire. A discretionary order under subs (7) extending the period during which a final AVO or interim court order is to remain in force without notice of the relevant application having been served on the defendant, is subject to a temporal limitation of 21 days after the date of the extension order, unless the extension order is earlier revoked.
9. Subsection 73(8) deals with an extension application made before the final AVO or interim court order expires. It provides that the order is taken to continue in force until the application is dealt with by the court. As the applicant correctly concedes, there is no similar provision if a revocation application is made under subs 73(1) before the final AVO or interim court order expires, that a final AVO or interim court order continues until a revocation application is dealt with by the court.

Application of Wass in the present case

1. No attempt was made in the applicant's submissions to confront the textual and contextual considerations referred to in Wass at [48]-[58], which support the conclusion that the s 73 power is confined to the revocation of orders which remain in force.
2. Importantly, as observed in Wass at [52], that construction of the s 73 power is consistent with the duration of an AVO specified in s 79(1), and the operation of s 79(4) that the duration of an AVO is subject to s 73. When ss 73 and 79 are read together, it is plain that an AVO remains in force for such period as is specified in the order, subject to a revocation order under s 73 which brings the order to an end. Thus, if the duration of the AVO has expired and the order no longer remains in force (s 79(1)) at the time a revocation application is heard by the court, there is no order that the court can revoke under s 73(1). Hence, the conclusion in Wass at [59] that the s 73 power to "vary or revoke" is confined to a power to vary or revoke an unexpired order.
3. The textual and contextual considerations referred to in Wass with respect to the power in s 73 to "vary or revoke" are compelling and apply equally where a revocation application is made before the AVO had expired, but the AVO had expired at the time the application is heard by the court.

The "deemed" extension fallacy

1. The fallacy of the "deemed" extension submission is the assumption that it is implicit in s 73 that the making of a revocation application has the effect that the AVO is taken to continue in force until the application is dealt with by the Local Court. The asserted bases for this assumption are unconvincing.
2. First, contrary to the applicant's submission, confining the s 73 power to a power to "vary or revoke" an unexpired order does not involve any "abuse" of the s 73 power. Accepting that the construction in Wass of the s 73 power renders an unheard revocation application futile once the AVO has expired, it does not follow that it must be taken for granted or is implicit in s 73, as the applicant submits, that an AVO is taken to be extended until a revocation application is dealt with by the court. As indicated, notwithstanding that the applicant was on notice that his revocation application could not be heard until after the AVO had expired, the applicant did not seek before the order had expired, an extension of the AVO until the revocation application was dealt with by the court.
3. Second, given that the subject matter of subs 73(8) is expressly limited to an application for the extension of a final AVO or interim court order made before the order expires, there is good reason to think that the Parliament intended by subs 73(8) to distinguish between an extension application and a revocation application. By s 72A(2), an application for an extension of a final AVO or interim court order may be made only by a police officer or by an "interested party" in relation to the order, which expression is defined in s 72 as meaning: (a) each protected person under the order, (b) each guardian of such a protected person, (c) where the protected person is a child, each parent of a protected person and the Secretary of the Department of Family and Community Services, and (d) the defendant. The evident purpose of subs 73(8) is to maintain the safety and protection of the protected person where an extension application is made before the relevant order expired, by continuing a final AVO or interim court order until the application for an extension is dealt with by the Court. That accords with the objects of the Act, stated in subs 10(1), "to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship".
4. Third, unlike the limited circumstances of the extension provided for by subs 73(8) of the Act, there is no basis for imputing to Parliament a similar intention until a revocation application is dealt with by the court. To impute such an intention in circumstances other than those provided for by subs 73(8), would have the unintended consequence of extending an AVO potentially beyond its specified duration, and contrary to the purpose of the revocation application being to bring the AVO to an earlier end.
5. Fourth, the deemed extension construction is inconsistent with the ordinary meaning of the word "revoke" discussed in Wass at [56], namely that "the act of revocation will have immediate legal consequences upon the right or entitlement enjoyed immediately beforehand". Once an AVO has expired, there is nothing to revoke. Nor do the objects of the Act in s 10(1) of ensuring "the safety and protection of all persons who experience personal violence outside a domestic relationship" support an implication that the s 73 power to vary or revoke an AVO is to be read as containing a deemed extension of an AVO until a revocation application is dealt with by the Court.
6. One further matter should be mentioned. The applicant's deemed extension construction seems to assume that the effect of an order under s 73(1) revoking an AVO is retrospective. Whilst that may be the effect of an annulment order under s 84(1) of the Act or an order on appeal under s 84(2) of the Act setting aside an AVO (see [10] and [11] above), my preliminary view is that an order revoking an AVO is prospective only. The contrary view is inconsistent with the distinction drawn between an application under s 73 to "vary or revoke" a final AVO or interim court order and an appeal under s 84(2), as is evident in subs 73(3) which says that the court may decline to hear an application if it is satisfied that "there has been no change in circumstances on which the making of the order was based" and that the application "is in the nature of an appeal against the order". The reference to "change in circumstances" is consistent with revocation being prospective only; it suggests that revocation of an AVO may be appropriate where previously an AVO was necessary but that is no longer the case given a change in circumstances.
7. However, it is not necessary to decide this issue to dispose of the applicant's argument. It is sufficient to say that the submission that the s 73 power contains an "implicit" or deemed extension of the AVO until a revocation application made before the AVO had expired is dealt with by the court, finds no support in the text, context or purpose of s 73 of the Act.

Other legislation

1. The fourth and fifth questions raised by ground 1(d) and (e) concerning "contemporary legislation in other states and territories" and whether the concept of "deemed extension" is "common" in other "statutes", do not give rise to jurisdictional error on the part of the District Court. As the respondent correctly submitted, it is not suggested that s 73 of the Act was modelled on some relevant interstate provision regarding domestic and family violence, nor a provision of any other New South Wales statute addressing "deemed extensions".
2. Ground 1 is rejected.

Ground 2: Procedural fairness

1. It is said that the applicant was denied natural justice because the District Court "did not consider my application to be in the state of 'deemed extension' in circumstances where the application was filed before the AVO expired", did not allow the applicant to "put evidence", and the applicant's "'legitimate expectations' were voided". There is no merit in this ground.
2. The primary judge expressly recorded in her judgment the applicant's written submissions at par [7] concerning the "deemed extension" of an AVO, before noting that when asked the applicant was not able to point to a specific legislative power in respect of a deemed extension, whilst the Crown's position was that there is nothing in the legislation which allows for an extension of the AVO once it has expired. Her Honour rejected the applicant's submission, finding that Wass was a case which squarely addresses this issue.
3. Insofar as the applicant made reference to "legitimate expectations" he correctly accepted in his reply submissions that the High Court has not accepted the English view of "legitimate expectations" in R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213: see Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [28] (Gleeson CJ), [67], [73] (McHugh and Gummow JJ).
4. It is apparent from a review of the transcript of the District Court appeal that the primary judge correctly directed the applicant's attention to the jurisdictional issue and Wass, the applicant replied that he "would like to say a few points with respect to that", and proceeded to make his submissions in chief. After the Crown responded, the applicant made submissions in reply. The Crown then answered several questions raised by the primary judge and the applicant made further submissions in response. That her Honour initially directed the applicant to the jurisdictional issue, does not mean that the applicant was denied an opportunity to present his appeal or to "put [on] evidence". The only document which the applicant sought to tender on his appeal was a two-page document in the form of a submission which was marked Ex 1. The applicant was afforded ample opportunity in the District Court to present his case.
5. As the respondent correctly submitted, procedural fairness is concerned with fairness of process, not with substantive acceptance of any particular argument. The applicant's real complaint in ground 2 concerns the outcome of his appeal, not the manner in which it was presented. That the primary judge did not accept the applicant's argument that his application to revoke the AVO was in "a state of 'deemed extension'" does not mean he was denied procedural fairness. Ground 2 is rejected.

Other matters - remission of fees

1. In his summons, the applicant seeks an order for "waiver of court fees". The applicant says that he has paid $1,297 in filing fees and $2,088 for the hearing allocation fee and seeks an order that these amounts be re-paid. Any application for remission of fees should be made to the Registrar as provided by the Civil Procedure Regulation 2017 (NSW), made pursuant to s 18 of the Civil Procedure Act 2005 (NSW).

Conclusion

1. The applicant has failed to demonstrate that the District Court's decision was affected by jurisdictional error. There is no reason why costs should not follow the event: UCPR, r 42.1.
2. I propose the following orders: 1. Dismiss the summons filed 16 February 2024. 2. Order the applicant to pay the first respondent's costs.
3. MITCHELMORE JA: I agree with Gleeson JA.
4. ADAMSON JA: I agree with Gleeson JA.

Amendments 11 June 2024 - [1], line 5 - the word "expired" to follow the first reference to "AVO" - "AVO expired". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2024