Rahman v Rahman

Court of Appeal (NSW)|2024-08-01|Before: Ward P, Adamson JA, Stern JA

Background

As adverted to above, the applicant and the first respondent were formerly married. They have two children. The children are in the sole care of the applicant - see the Outline of Appellant's Submissions dated 20 June 2024 (the Outline of Submissions) prepared by Muhammad Chaudhry, a solicitor who we understand has provided pro bono assistance to the applicant and who is named as the applicant's legal representative in the summons (at [2]). The applicant confirmed that he relied on the Outline of Submissions.
On 12 March 2020, a provisional ADVO was made against the applicant to protect the first respondent, prohibiting the applicant, among other things, from going within 500m of any place where the first respondent lives or works and a specified address in Roselands (the Roselands property), which was the former matrimonial home. The couple also owns the property next door to the Roselands property, which the applicant describes as an investment property. The two properties together will be referred to as the Roselands properties.

Magistrate Swain's decision

The extension application was heard by the magistrate on 29 August 2023. Both parties were represented by solicitors on that occasion. Mr Mando, the solicitor appearing for the applicant, indicated that he did not rely on the submissions that were filed by the applicant's previous lawyer (Mr Chaudhry) "as evidence or as submissions" (see 29/8/23; T 3.10ff). This seems to be a reference to a document in the same form as the Revoke Submissions (the transcript refers to two sets of identical documents, one under the hand of the applicant and under the hand of Mr Chaudhry - see at 29/8/23; T 3.10-28, neither of which were to be read). The first respondent relied on her statement filed 16 March 2023 and some additional evidence was given (by leave) in examination in chief as to events which had occurred after she had made her 16 March 2023 statement. The first respondent was not cross-examined (29/8/23; T 15.32). The applicant did not adduce any evidence (relying on the onus being on the first respondent on that application - 29/8/23; T 4.10).
The magistrate extended the ADVO for a period of two years from 29 August 2023. In ex tempore reasons, the magistrate accepted the first respondent's evidence that she continued to be terrified of the applicant and his "controlling behaviours"; and was satisfied that in all the circumstances it was proper to vary the ADVO (29/8/23; T 17.33-48). The magistrate made clear that the application was heard pursuant to s 73(1) of the Domestic and Personal Violence Act to extend the ADVO; not as an appeal (29/8/23; T 16.2).
In the ex tempore reasons the magistrate was satisfied that s 73(3) (set out in due course) was not enlivened (responding to Mr Mando's submissions that his Honour should decline to extend the ADVO on the basis that there had been no change in circumstances) (29/8/24; T 15.42). In that regard, the magistrate referred to the number of appeals that had been lodged in the Family Court and against decisions in the District Court since the final ADVO order was made, which the magistrate inferred formed a systematic abuse of the first respondent in that, by the constant appeals, the first respondent was called upon to answer and be party to those appeals, incurring additional costs, none of which had been paid by the applicant. The magistrate also considered that certain emails that had been sent to the first respondent's solicitor in February 2023, particularly the one sent on 16 February 2023, included a threat ("to avoid any further consequences").

Appeal to the District Court

The applicant appealed to the District Court from the magistrate's decision to extend the ADVO. That appeal was heard by the primary judge on 18 January 2024. The appeal was by way of a re-hearing (see s 18 of the Crimes (Appeal and Review Act) 2001 (NSW)). Both parties were represented: the applicant was represented by Mr Spicer of counsel; the first respondent by her solicitor.
At the outset of the hearing, counsel for the applicant gave the primary judge an estimate of "half an hour plus" for the hearing. There was then some discussion by both legal representatives as to this time estimate - varying from "probably half an hour" to "maybe 45 minutes" to "maybe an hour". These estimates assumed some relevance in this Court as the applicant relied on the primary judge's criticism of the estimates which had been given (18/1/24; T 1.22-50). The estimate of time was based on the assumption that his Honour would read the material filed (and would then hear submissions).
During the course of the morning on 18 January 2024, there was a short adjournment for the primary judge to read the material, following which his Honour considered the admissibility of an affidavit that had been served on behalf of the applicant late on 16 January 2023 (outside the time directed for the filing and service of evidence). Counsel for the applicant sought leave to read that affidavit, an affidavit affirmed 15 January 2024 by Bobby Syed, who deposed that "I am/was a family friend of Fahmid Rahman and Mita Rahman since the year 2002". Mr Syed deposed to attending the Roselands property since the couple's separation "in a caretaker capacity" and that since March 2020 and for approximately the last 18 months, visiting the property about two times a week.
After the first respondent objected to that evidence (on the basis that she was prejudiced by the late service of the affidavit), the primary judge admitted the evidence on condition that the first respondent would be granted leave to adduce oral evidence (via telephone link) from two of her neighbours and a lawn-mowing contractor to establish that she lived at the Roselands property (18/1/24; T 4.20-32; T 8.28-31).
The primary judge also had before him two statements of the first respondent, written submissions on behalf of the first respondent, as well as written submissions of 18 January 2024 from counsel for the applicant. When invited to make oral submissions, counsel for the applicant said that the only submission he wished to make was that there was no breach of the ADVO before or after its extension (a fact that was not contested) (18/1/23; T 35).
The primary judge delivered ex tempore reasons at the conclusion of the hearing. His Honour was satisfied that the evidence established that the first respondent regularly resided at the Roselands property. His Honour addressed the evidence relied on before the magistrate as to the change in circumstances (the proliferation of litigation described as "systems abuse" and the emails seeking access by the applicant to the Roselands property). The primary judge referred to the applicant's pursuit of litigation against the first respondent as giving rise to the "obvious observation that the circumstances are changing and they continue to change" and said that these were the matters properly driving the magistrate's decision. The primary judge noted that he was not reviewing the magistrate's decision; and needed only to be satisfied by the provisions of the legislation to which he had referred.
The primary judge noted that the applicant had not gone into evidence at any stage of the proceedings.
His Honour was satisfied on the balance of probabilities that, given the conduct to which he had referred, the first respondent had grounds to fear, and in fact feared, personal violence or conduct by the applicant within the terms of s 16 of the Domestic and Personal Violence Act; and made orders dismissing the appeal and for costs in favour of the first respondent (in the sum of $3,200 plus GST).
Relevantly, in light of submissions made in this Court, at the conclusion of the ex tempore judgment, the primary judge said the following: Thank you for your assistance. Do me a favour, each of you. I might be the slowest truck in town, but I don't perceive it is possible to have dealt with this matter in half an hour, which time estimate was to include reading material, dealing with an application to rely on evidence served out of time, dealing with the question of prejudice in relation to that application for leave, hearing the evidence that evolved because of that affidavit, hearing arguments, and then delivering judgment. Please be careful of your estimates. As you saw, there was another matter listed before me today. Had the estimate been, as in my respectful submission, it ought to have been, one day for this, it now being ten past 4, that other matter may have been allocated to a different judge and have been serviced.

Present application

As noted above, the applicant filed his summons in this Court on 15 March 2024. The summons incorrectly proceeds on the basis that it is an appeal against the extension of the ADVO but it has been treated by this Court (as was the case in Rahman No 2), as an application in the supervisory jurisdiction of the Court for judicial review.
The summons sets out four grounds, as follows: 1. The learned trial magistrate and judge fell into jurisdictional error by denying the appellant natural justice. 2. The learned judge failed to take into account a material consideration being the reasons for the appellant's failure to cross examine with proper identification/failure to attend court. 3. Procedural unfairness, being not transparent in actions/decisions, made a decision in bad faith, wrong legal 'test'. 4. Taking into account irrelevant considerations or failing to consider relevant considerations.
Those four grounds are almost identical to the grounds the subject of the applicant's earlier summons (the subject of Rahman No 2, as set out at [13] of that decision), the only difference being in the error identified in Ground 2 insofar as the applicant here raises complaint as to the lack of "proper identification/failure to attend court" of the three witnesses called by the first respondent to respond to the late served affidavit of Mr Syed. We deal with each ground in turn but first address the reasons for refusing the adjournment application.

Refusal of application for adjournment

As noted above, the applicant sought an adjournment of the hearing of the summons pending the sale of the Roselands properties, on the basis that once the properties (or at least the former matrimonial home) were (or was) sold then the matter would be finished and there would be no utility in the extension of the ADVO (see 1/8/24; T 2.39ff). The applicant says that such a submission was made to the Court of Appeal Registrar at earlier directions hearings, that he was seeking to save court time (1/8/24; T 1.37) and he complains at the "unfair" treatment of this matter by the Registrar at those directions hearings (1/8/24; T 8.25ff).
The first respondent opposed the application, raising four matters in that context: first, that the summons had been listed for final hearing for about two months and the parties had prepared accordingly; second, that there is an expectation that judicial review proceedings will be resolved expeditiously (referring to Truong v DPP (NSW) [2023] NSWCA 64 at [56]); third, that there is no utility in adjourning the hearing as the outstanding matters between the parties have no bearing on the issue of jurisdictional error in the District Court; and, fourth, that the first respondent will be prejudiced in respect of costs thrown away (noting that there was no offer by the applicant to pay such costs and that there are a number of costs orders already outstanding against the applicant) (see 1/8/24; T 5.35ff).
The applicant's response to these submissions was, in summary, as follows. First, that he had raised with the Court of Appeal Registrar before the matter was fixed for hearing and at directions hearings a request to pause the matter pending sale of the Roselands properties (and that the request was made on the basis that it was the first respondent who had not complied with Family Court orders). Second, he asserted that there was utility in an adjournment as it would save court time and cost. Third, he submitted that there was no prejudice at all. Fourth, that the financial cost to him (of the first respondent's conduct in relation to the Roselands properties) was much bigger than the costs orders against him (see 1/8/24; T 6-7).
In determining the application to adjourn the summons, we had regard to the statutory mandate for the just, quick and cheap resolution of the real issues in dispute (s 56 of the Civil Procedure Act 2005 (NSW)). Relevantly, there is no connection between the sale of the Roselands properties (about which the applicant complains and which he says is the subject of some enforcement application in the Family Court) and the challenge to the orders made by the primary judge the subject of review in the present application. The ADVO, both initially and as extended, is not limited to a prohibition on approaching the Roselands property. It is not in our view consistent with the just, quick and cheap resolution of the present dispute to defer its determination to a time after the sale of the Roselands properties.
Further, the first respondent will no doubt be prejudiced if such an adjournment were to be granted at least to the extent that costs will be thrown away by reason of the adjournment. The first respondent's legal representatives have prepared for the hearing to take place on the date it was listed. The first respondent was represented at the hearing of the summons by counsel and her solicitor. There was no offer by the applicant to pay the costs thrown away by the adjournment (even if he were in a position to do so). In circumstances where the matter was listed for hearing in May 2024 (apparently over the opposition of the applicant in that he was requesting that it be paused) and the first respondent has prepared for the hearing on that basis, the applicant's assertion that there would be no prejudice if the adjournment was granted cannot be accepted.
As the first respondent has pointed out, there is an expectation that judicial review applications will be dealt with promptly.
In those circumstances, we refused the adjournment application. We turn then to the grounds of review of the primary judge's decision.

Ground 1

Ground 1 asserts jurisdictional error on the part of both the magistrate and the primary judge, that error being identified as denying the applicant natural justice.
As to the complaint raised in relation to the orders made by the magistrate, as explained in Rahman No 2 (at [16]), the application for judicial review of the orders of the magistrate is not competent as those orders have merged in and been superseded by the orders of the District Court (see the authorities there cited by White JA: Dyason v Butterworth [2015] NSWCA 52 at [34]-[35] (McColl JA); Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 at [5] (Macfarlan JA); Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 at [21] (Meagher, White, Brereton JJA); Singh v Hicks and Nissan [2021] NSWCA 80 at [17]-[18], (Gleeson JA)). In oral submissions in this Court the applicant appeared to accept that he was not entitled to seek judicial review of the magistrate's decision and nothing further need here be said about this aspect of Ground 1 (see 1/8/24; T 10.45).
Insofar as Ground 1 asserts jurisdictional error on the part of the primary judge by reason of a denial of natural justice, there is no identification in the summons of the manner in which any such denial is asserted. The only elaboration of this ground in the written submissions seems to be that found in the Outline of Submissions at [15], where there is an assertion that the primary judge "exceeded legal authority by accepting statements from three unidentified witnesses over the phone without proper identification checks or affidavits". This must be a reference to the evidence given by the two neighbours and the lawn-mowing contractor, referred to above.
The Outline of Submissions asserts that this raises concerns about: ● Procedural fairness: Whether the court followed proper procedures for accepting evidence ● Adherence to legal requirements: Whether the acceptance of witness statements without proper identification or affidavits violated rules of evidence or procedural rules. ● Jurisdictional error: If the court's decision to accept such evidence undermined the fairness and integrity of the proceedings.
Jurisdictional error (as explained by the High Court in Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58 (Craig)), involves a mistaken assertion or denial of the existence of jurisdiction or (where the court correctly recognises that jurisdiction exists) the misapprehension or disregard of the nature or limits of the court's functions.
Although the High Court has cautioned against the adoption of a rigid taxonomy in this area (see Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [73] (Kirk)), the Court in Craig (at 177-178) provided some examples of instances of errors by an inferior court that may constitute jurisdictional error, namely: the absence of a jurisdictional fact; the disregard of a matter that the applicable statute mandates the consideration of (or the converse of taking into account a matter required to be ignored); the misconstruction of the relevant statute such that the nature of the function which the inferior court is performing, or the extent of its powers, is misconceived (see also Kirk at [72]).
In certain circumstances, the failure to accord procedural fairness may also constitute jurisdictional error on the part of an inferior court (see Quinn v Director of Public Prosecutions (Cth) (2021) 106 NSWLR 154; [2021] NSWCA 294 at [6] per Leeming JA (Simpson AJA and Johnson J agreeing) citing Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13] per Basten, Ward and McCallum JJA).
However, consistent with numerous authorities of this Court, it is rare that a claim of inadequate reasons by an inferior court will constitute jurisdictional error, unless coupled with some other failure such as the failure to exercise jurisdiction or other jurisdictional error (see Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [40] per Kirk JA, White and Mitchelmore JJA agreeing; Sasterawan v Morris [2008] NSWCA 70 at [41] per Tobias JA, Beazley JA (as Her Excellency then was) and McClellan CJ at CL agreeing; Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [141] per Gleeson JA, Ward JA and Johnson J agreeing).
It is recognised in Kirk that the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.
The nub of the complaint in the Outline of Submissions, as extracted above, is dealt with in the context of Grounds 2-4 below. Suffice it here to note that, while a denial of procedural fairness may constitute jurisdictional error, a failure to insist upon requirements as to the attestation of witness statements or the like, or permitting a witness to give evidence via telephone link, would hardly amount to jurisdictional error (if that be what is suggested by [15] of the Outline of Submissions).
In oral submissions, the jurisdictional errors identified by the applicant appeared to be: that there was no change in circumstances and therefore s 73(3) meant that the primary judge should not have heard the matter at all (1/8/24; T 10.30); that the primary judge applied the wrong standard of proof when making his findings on the balance of probabilities (1/8/24; T 11.25); that his Honour did not specify what change of circumstance there was (and, as to the emails, that no reasonable person could have understood them to be a threat) (1/8/24; T 11.46ff); that there was a denial of procedural fairness in relation to the three witnesses permitted to give evidence over the telephone (1/8/24; T 13-14) (the applicant first seeming to accept that this was not a jurisdictional error but then maintaining that it was as there was a procedural error that amounted to jurisdictional error); and that the primary judge acknowledged that there was insufficient time properly to consider the matter (referring to the last passage transcribed, as extracted above) (1/8/24; T 15).
Complaint was also made that the primary judge relied in his decision on the outstanding costs orders and that he had reference to the National Domestic Violence Bench Book (which is not law) (1/8/24; T 18).
Ultimately, the central plank of the applicant's jurisdictional error argument was his complaint that the primary judge "failed to reference the critical requirement" of s 73(3) and failed to take into account the mandated relevant consideration set out in s 73 (1/8/24; T 21.5). The applicant argued that there was a constructive failure to exercise jurisdiction because his Honour's reasons "failed to undertake any genuine assessment" or to analyse the exposure by the applicant to the first respondent (1/8/24; T 21.9).
It is important to note in relation to Ground 1 that, contrary to the tenor of the applicant's submissions, the existence of a change in circumstances is not a jurisdictional fact on which the power to vary or revoke a final apprehended violence order is conditioned.
Section 73 of the Domestic and Personal Violence Act provides, relevantly, that: 1. The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order. … 3. The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the 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 state of satisfaction on which the power to vary or revoke an ADVO is based is that set out in s 73(1), namely that in all the circumstances it is proper to do so. Section 73(3), on which the applicant places considerable emphasis, simply permits a court to decline to hear such an application if satisfied that there has been no change in circumstances and that the application is in the nature of an appeal. It does not preclude the hearing of an application in the absence of a state of satisfaction as to a change in circumstances.
Therefore, the premise of the applicant's central assertion of jurisdictional error is misconceived. In any event, the complaint that the primary judge failed to make reference to s 73(3) or to give reasons specifying the change in circumstances does not sufficiently take into account the primary judge's express reference to (and implicit, if not explicit finding in respect of) the fact that the circumstances were changing and continuing to change, by reference to the evidence that was before the magistrate as to the proliferation of litigation (the primary judge having earlier referred to the magistrate's opinion that the emails seeking access to the property also amounted to a change in circumstances).
Ground 1 should be dismissed.

Ground 2

Ground 2 asserts a failure by the primary judge to take into account a material consideration "being the reasons for the appellant's failure to cross examine with proper identification/failure to attend court".
This appears to raise the complaints made at [14] (where first appearing) and [15] of the Outline of Submissions. Acceptance of evidence over the telephone (as was not uncommon during the COVID-19 pandemic) is not jurisdictional error; nor, as referred to above, is acceptance of statements "without proper identification checks or affidavits". Nor can it be seriously contended that there was any denial of procedural fairness in his Honour allowing evidence to be given in this fashion.
As the first respondent points out, the circumstances in which this evidence was permitted to be adduced were that the applicant had sought leave to rely on an affidavit from Mr Syed that had only been served on the first respondent two days before the hearing (and not in compliance with the timetable ordered for the service of evidence nor accompanied by any notice of motion or supporting evidence for leave).
The applicant objected to the reading of this affidavit and identified the prejudice he would suffer if the evidence were to be admitted, namely, that evidence was available and could have been led that contradicted Mr Syed's evidence (see 18/1/24; T 4.25-27; T 8.28-44; T 17.29-32).
The primary judge, having identified that Mr Syed's evidence went to the question of whether the first respondent was a resident in the former matrimonial home, enquired whether the first respondent's prejudice could be met by the adducing of reply evidence by telephone; and the first respondent's solicitor, after enquiries were made, confirmed that three witnesses were available to give evidence by telephone.
At that point, the primary judge raised with counsel for the applicant whether he pressed the reading of Mr Syed's affidavit, which counsel confirmed he did (18/1/24; T 9.8-11).
The primary judge made clear that he proposed to permit the reading of Mr Syed's affidavit on the basis that the evidence was available by telephone from other witnesses as to the question of fact (i.e., whether the first respondent was residing at the Roselands property) and, after the luncheon adjournment (not taken until 1.20pm), the primary judge made clear that counsel for the applicant understood that the affidavit of Mr Syed (filed out of time) was being read on the condition that evidence in response could be called by the first respondent by telephone connection (see 18/1/24; T 10.1-34). Counsel for the applicant confirmed that he understood this and he did not object to the primary judge taking this course (the fact that the applicant is now "not happy" with his former counsel is not to the point). Mr Syed's affidavit was then read.
In those circumstances, the submission that there was a denial of procedural fairness (amounting to jurisdictional error) by reason of the evidence being taken by telephone is both extraordinary and untenable. Further, it is not correct to assert, as the applicant in his submissions does, that the witnesses were "unidentified" (since each was appropriately identified in their evidence in chief) or that there were no "proper identification checks" (since each was appropriately sworn or affirmed). Each was cross-examined by the applicant's counsel so the reference in Ground 2 to a "failure to cross-examine" is incorrect.
The complaint made in oral submissions by the applicant was that the witnesses did not appear in Court to give evidence in person (so that counsel and the applicant could identify who they were). The applicant says that he and his counsel "don't know their face, who gave evidence" (1/8/24; T 14.15-20). No complaint was made at the hearing by the applicant's counsel to this effect.
The Court has a discretion as to the manner in which evidence is received in court proceedings. Far from there being any denial of procedural fairness, the primary judge here was dealing, fairly, with the applicant's late application for leave to rely upon an affidavit served out of time, by permitting it to be read provided that the prejudice to the first respondent by its late service could be met. An indulgence was clearly being given to the applicant to permit Mr Syed's affidavit to be read at all. As already noted, counsel for the applicant did not cavil with the condition placed on the receipt of his client's late evidence.
Ground 2 should be dismissed.

Ground 3

Ground 3 again complains of procedural unfairness, describing this as "being not transparent in actions/decisions" and goes on to make a serious allegation that the decision was in bad faith. There is nothing to identify what actions or decisions were said to have been "not transparent". In oral submissions, the applicant submitted that there were insufficient reasons for the primary judge's finding that there had been a change of circumstances (indeed it appeared to be asserted that there was no such finding at all) (1/8/24; T 21.14-21). We do not accept that contention.
The primary judge's reasons were relatively brief but it must be remembered that they were being delivered ex tempore, at the conclusion of a long day (the morning adjournment having been taken for the purpose of reading the file, there having been a truncated luncheon adjournment, and the reasons not being concluded until 4.10pm), with the added pressure that the primary judge had another matter listed before him that day and was understandably concerned at not being able to reach that matter in the list (see 18/1/24; T 9). In those circumstances the latitude ordinarily given when considering the adequacy of ex tempore reasons must be borne in mind. It has been said, in various contexts, that in considering the adequacy of reasons, regard must be had to the nature of the decision-maker and the nature of the question being decided (see Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J)). In this Court, in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, dealing with a matter that had been before the NSW Civil and Administrative Tribunal, Bell P, as his Honour then was, noted at [70] that the sheer volume of work undertaken by tribunals was such that a "perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities" might be appropriate. The same observation may be made for a review of ex tempore reasons delivered at the end of a long day in the hearing of an application such as the one considered by the primary judge in the present case.
In any event, the primary judge's reasons were certainly sufficient to make clear the reasons for the findings that were made and as to his Honour's state of satisfaction that it was proper for the ADVO to have been extended.
Nor is there any foundation on the material before this Court for the assertion that the decision was made in bad faith. Such an allegation should not lightly be made; and should only be made on proper grounds that are specifically articulated.
There is simply nothing to suggest a basis on which it could properly be asserted that the primary judge was acting in bad faith; and it is a serious matter that such an allegation be made under the hand of a solicitor (being an officer of the Court) without proper articulation (usually by way of pleading) and evidence. This assumes, of course, that Mr Chaudhry did have responsibility for the Outline of Submissions bearing his name. As newly admitted lawyers are regularly reminded in admission ceremonies, as officers of the Court they owe a paramount duty to the Court and that duty includes a duty not to make baseless allegations and not carelessly to make allegations of fraud or misconduct against any person.
As to the assertion that the primary judge applied the wrong legal test, there is no elucidation in the Outline of Submissions as to how it is said that his Honour did so. Nothing in the reasons supports the assertion that his Honour applied the wrong legal test. In oral submissions, the applicant complained that the primary judge had erred in making the relevant findings on the balance of probabilities (citing Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw)). He relied in oral submissions on Wright v R (No 2) [2021] NSWDC 766, where Neilson DCJ set aside an apprehended violence order on the basis that his Honour was not persuaded to the requisite standard that the complainant had been the victim of domestic violence, bearing in mind the provisions of s 140(2) of the Evidence Act 1995 (NSW) which were found to encapsulate the common law principles propounded in Briginshaw.
The applicant's submission that the primary judge was in error when his Honour made findings "on the balance of probabilities" is misconceived (1/8/24; T 11).
Section 16(1) of the Domestic and Personal Violence Act clearly identifies the relevant standard of proof as being the civil standard of proof (satisfaction on the balance of probabilities). Briginshaw stands for the proposition that, applying the civil standard of proof, "reasonable satisfaction" is a state of mind that must be reached having regard to the nature and consequence of the fact or facts to be proved; and that the seriousness of an allegation made is a consideration that must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the decision maker. Dixon J at 362 observed that in matters where serious allegations are made, reasonable satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences". However, his Honour also made clear that this did not mean that there was some standard of persuasion intermediate between the civil and criminal standards of proof; rather, it meant that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained (see at 363).
In the present case, the primary judge made clear that he had independently reached the requisite level of satisfaction that the first respondent was fearful of the applicant (see 18/1/24; T 10 of ex tempore reasons). No error (let alone a jurisdictional error) is here established.
Ground 3 should be dismissed.

Ground 4

Finally, Ground 4 asserts that the primary judge took into account irrelevant considerations or failed to consider relevant considerations. There is again no elucidation in the Outline of Submissions of this ground. In particular, there is nothing to identify what it is said was taken into account which was prohibited to be taken into account; nor anything said to have been a mandatory consideration that was not taken into account.
In oral submissions, the applicant appeared to suggest that there was some error in the primary judge's reference to the outstanding costs orders and to the National Domestic Violence Bench Book (1/8/24; T 18.3-11).
As to the first of those matters, the reference to outstanding costs orders was made, first, in the context of the procedural history of the matter (18/1/24; T 8-9 of ex tempore judgment) and, second, in the context of the application for costs that had been made in relation to the hearing before the primary judge. The incidence of costs as a result of the proliferation of litigation was hardly an irrelevant consideration in circumstances where it was a matter referred to in the first respondent's statement as causing her stress and anxiety (and was referred to by the magistrate as an aspect of the changing circumstances since the ADVO was imposed). The reference to those outstanding costs orders does not give rise to any jurisdictional error.
As to the second of those matters, there is no error in the primary judge having referred to the National Domestic Violence Bench Book (18/1/24; T 7 of ex tempore judgment). This was in the context of the submission by the first respondent's solicitor as to the persistence in the applicant's pursuit of litigation against the first respondent amounting to what has been described as "systems abuse". No jurisdictional error is there demonstrated.
Ground 4 should also be dismissed.

Applicant's submissions as to other matters

The Outline of Submissions dwells upon various matters not relevant to the judicial review application (and not the subject of any evidence before the primary judge), such as the first respondent's family history and complaints as to the first respondent's credibility (with extensive extracts from evidence in the Local Court). There are also submissions addressed to the "vexatious ADVO extension" and alleged failure to "comply with the specific requirements set out in the legislation and to interpret and apply the law correctly in extending the ADVO", which call into question the merits of the magistrate's original decision to extend the ADVO. Similarly, in oral submissions, the applicant more than once addressed the merits of the magistrate's decision in the first place (and, by extension, the primary judge's determination on the re-hearing).
As made clear above, this is not an appeal; the merits of the magistrate's decision are not open for review; nor are the merits of the primary judge's decision reviewable as if on an appeal in this Court. The review of the primary judge's orders requires the establishment of jurisdictional error. No jurisdictional error has been established. The assertion that the decision to accept the evidence of the three witnesses called to respond to the applicant's late service of evidence undermined the fairness and integrity of the proceedings is untenable; and no other matter has been raised which would amount to a denial of natural justice or procedural fairness such as to give rise to jurisdictional error.
Reference was also made in oral submissions to the last paragraph of the primary judge's reasons (as to the time estimate his Honour had been given). The applicant seemed to submit that this indicated that his Honour had been unable to give adequate consideration to the appeal; and to suggest that the appropriate course would be to remit the matter to the District Court (citing Tuxford v Director of Public Prosecutions [2023] NSWSC 1300 where, in a different context, a matter was remitted to the Local Court) (1/8/24; T 15.6-11). We have extracted above the relevant passage from the transcript. It is perfectly clear that what his Honour was there doing was chastising both parties' legal representatives for the wildly inaccurate time estimate that he had been given at the outset of the hearing (half an hour plus - or even "maybe an hour" - does not on any view of things amount to a full day's hearing). What his Honour is not suggesting is that he was not able to hear and consider the matter within the time that was taken on that day. No error is shown in this regard.
Finally, complaint was made in oral submissions by the applicant as to the manner in which the Registrar of the Court of Appeal had dealt with the matter in directions hearings. That is not to the point in relation to the substantive application before us and we do not need to deal with this here.

Costs

For the reasons above, the summons must be dismissed. We see no reason why costs should not follow the event, particularly where, as here, the applicant has been on notice (and Mr Chaudhry also may be assumed to have been aware) since Rahman No 2, if this was not appreciated before, of the deficiencies in the application here being brought.
The first respondent's written submissions make clear that a costs order was sought if the summons were to be dismissed. The applicant's oral submissions contended for an order (if the summons be dismissed) that each party bear his or her own costs. That was put simply on the basis that there is a discretion as to costs (1/8/24; T 23).
It is well recognised that there is a discretion as to costs orders and that it is a broad one. However, it must be exercised judicially and with regard to the purpose of such orders (compensation for costs incurred in proceedings in which the party seeking costs is successful). The applicant did not point to anything which would warrant departure from the general rule that costs follow the event (other than to make unsubstantiated assertions as to the first respondent having financially abused him and as to his own financial position). However, it is clear that the applicant stands to receive moneys from the sale of the Roselands properties in due course. There is no reason why costs of the summons could not be met out of those proceeds.

Orders

Accordingly, the following orders should be made: 1. Summons dismissed. 2. Order the applicant to pay the first respondent's costs.

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: 08 August 2024

[This headnote is not to be read as part of the judgment] On 17 February 2022, a final apprehended domestic violence order (ADVO) was made against the applicant, Fahmid Rahman, for the benefit of his former wife, Mita Rahman. Prior to its expiry, Ms Rahman sought an extension of the ADVO pursuant to s 73(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Extension Application). The Extension Application was heard by Magistrate Swain on 29 August 2023. The ADVO was subsequently extended for a period of two years. Mr Rahman appealed the determination of the Extension Application to the District Court. Montgomery DCJ (primary judge), hearing the appeal by way of re-hearing, was satisfied that Ms Rahman had grounds to fear, and in fact feared, personal violence or conduct by Mr Rahman within the terms of s 16 of the Crimes (Domestic and Personal Violence) Act. The primary judge delivered his reasons ex tempore and dismissed the appeal with costs. Mr Rahman then filed a summons challenging the decision of the primary judge on four grounds: first, jurisdictional error by the magistrate and primary judge, by denying natural justice; second, failure to take into account a material consideration (being the reasons for the applicant's failure to cross examine with proper identification/failure to attend court); third, procedural unfairness (lacking transparency in actions/decisions, making a decision in bad faith, applying the wrong legal 'test'); and, fourth, taking into account irrelevant considerations or failing to consider relevant considerations. The Court held (Ward P, Adamson and Stern JJA), dismissing the summons with costs:

An application for judicial review of orders of a magistrate is not competent where those orders have merged in and been superseded by the orders of the District Court: [33]. Rahman v Rahman (No 2) [2024] NSWCA 109; Dyason v Butterworth [2015] NSWCA 52; Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68; Singh v Hicks and Nissan [2021] NSWCA 80; Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 cited.
Section 73(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) sets out the state of satisfaction on which the power to vary or revoke an ADVO is based, namely that in all the circumstances it is proper to do so. Section 73(3), which permits a court to decline to hear such an application if satisfied that there has been no change in circumstances and that the application is in the nature of an appeal, does not preclude the hearing of an application in the absence of a state of satisfaction as to a change in circumstances. The existence of a change in circumstances is not a jurisdictional fact on which the power to vary or revoke a final apprehended violence order is conditioned: [37]-[49].
The attestation of witnesses, or the delivery of evidence, via telephone link does not constitute a failure to accord procedural fairness so as to amount to jurisdictional error, particularly given that the applicant was granted leave to rely on an affidavit filed out of time on the express condition that the respondent be permitted to call evidence in such a way (and the applicant did not demur therefrom: [34]-[49], [59]. Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; Sasterawan v Morris [2008] NSWCA 70; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1; Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92; Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138; Quinn v Director of Public Prosecutions (Cth) (2021) 106 NSWLR 154; [2021] NSWCA 294; Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 cited.
A consideration of the adequacy of judicial reasons must take into account the context in which those reasons are given. There was no lack of transparency or inadequacy of reasons. Nor was there any basis on which to contend that the decision was made in bad faith. The primary judge applied the correct test for the state of satisfaction required (the balance of probabilities): [62]-[70]. Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231; Wright v R (No 2) [2021] NSWDC 766 cited.
The primary judge did not err in referring to the various costs orders associated with earlier litigation between the parties, nor in referring to the National Domestic Violence Bench Book: [71]-[75].

(2021) 104 NSWLR 505

(2022) 109 NSWLR 604

(2019) 100 NSWLR 578

(2021) 106 NSWLR 154

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