18 A literal interpretation of s 46(3) of the LC Act would permit the Magistrate to hear and determine the matter on the first return date in the absence of the respondent even though the applicant who had appeared was not ready to proceed. However, as was said in Solution 6 Holdings Ltd v Industrial Relations Comm (NSW) (2004) 60 NSWLR 558 by Spigelman CJ at [81]:
"………..in contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism."
19 Section 33 of the Interpretation Act 1987 requires that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. An underlying purpose of the LC Act is to ensure the proper administration of justice in proceedings before the Local Court. A construction of s 46(3) of the LC Act which would permit the court to force on for an ex parte hearing an applicant who was not ready to proceed on the first return date of an application for an ADVO would not promote the underlying purpose. Rather, it would promote a denial of justice which could not have been the legislature's intention. Section 46(3) is to be interpreted so as to only apply when the respondent is not present on the first return date and the applicant is ready to present the applicant's case. Such an interpretation accords with the purpose of the LC Act.
20 It follows that where the applicant for an ADVO appears on the first return date and the respondent does not, s 46 of the LC Act prohibits the application being set down for hearing on that day without the consent of the applicant. Should the applicant be ready to have the application heard ex parte, the Magistrate may proceed to hear and determine the matter. In the event of the applicant not being in a position to proceed ex parte on the first return date, the Magistrate may on that day or at a later time set the date, time and place for hearing of which the respondent must be notified by the court. With respect to her Honour, it appears that she was not mindful of the scope of s 46 when she forced the plaintiff's application on for hearing.
21 This was not a case in which there was no appearance by the parties. Section 562ZQ(2) of the Crimes Act provides that an application for an ADVO may be made only by a police officer or by the person for whose protection orders are sought. The plaintiff, as a police officer, was the applicant for orders for the protection of the PINOP. The plaintiff was represented by the police prosecutor. The respondent, the first defendant, had not appeared. By forcing the application on for hearing on the first return date her Honour did not deal with the matter in accordance with Part 6 of the LC Act. The learned Magistrate erred in law.
22 It is evident that the practice directions made by her Honour for the conduct of ADVO applications within her circuit included a requirement for the PINOP to be present on the first return date even though the applicant was a police officer who was represented by the police prosecutor. The utility of these directions is readily understood. Should a respondent appear, the PINOP's presence would enable the PINOP's evidence to be given if interim orders were sought. Instructions might be obtained if consent orders were contemplated. An application could be determined on an ex parte basis if the respondent had failed to appear thereby providing the PINOP with the protection of final orders without an unnecessary adjournment. Unnecessary adjournments add matters to court lists which are already substantial. The efficient and timely disposal of the work of the court and the efficient use of the available judicial and administrative resources, it seems to me, were some of the objectives to which her Honour had regard in formulating her practice directions.
23 Notwithstanding these laudable objectives, the practice of refusing an adjournment where the absence of the PINOP is unexplained and then forcing the application on for hearing on the first return date does not provide a just determination of the proceedings. Her Honour, it appears, has adopted the stance that upon dismissal of an application, fresh ADVO proceedings could be commenced by police. Whilst that might be so, the dismissal of the application deprives the PINOP of the protection of provisional orders until further orders are made and service upon the respondent of the fresh application might prove to be difficult. Furthermore, a reluctant PINOP might be discouraged and lose confidence in the court by the termination of the proceedings. It should be remembered that the primary focus of the court's jurisdiction pursuant to Pt 15A of the Crimes Act is the protection of the PINOP. As was said by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 519:
"The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. Apprehended violence orders constitute the primary means in the State of asserting the fundamental right to freedom from fear."
24 The refusal to adjourn the proceedings resulted in an injustice to the plaintiff and to the PINOP. The opportunity to present the case was denied. An adjournment would not have resulted in any injustice to the first defendant who had not appeared. Moreover, the forcing on of the application for hearing on the first return date when the applicant was not in a position to proceed was beyond the proper exercise of her Honour's jurisdiction.
25 The plaintiff seeks orders in the nature of certiorari and mandamus. A mistake of law, even as to the proper construction of a statute does not necessarily constitute a constructive failure to exercise jurisdiction. In the present case, however, there is a denial of natural justice. Her Honour has thereby constructively failed to exercise the jurisdiction conferred upon the Local Court: see Ozakca per Rothman J at [28]. As a consequence the ADVO has not been dealt with and is still before the Local Court leaving "the jurisdiction in law constructively unexercised": see Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. An order in the nature of mandamus will issue to compel its exercise.