Woodcroft & Ors v Director of Public Prosecutions

The property specified in Part 2 of the Schedule was the Clovelly property. 29 The application was supported by the affidavit of Kelvin Koon Ying Kam sworn 26 November 1999. Mr Kam deposed that he was a member of the Australian Federal Police and that he believed that the Clovelly property including the interests of the claimants was subject to the effective control of Geraghty, setting out over some 43 pages and with numerous annexures the grounds on which he held that belief. 30 Application was made ex parte to Abadee J on 26 November 1999. The affidavit of Mr Kam was read. His Honour must have been satisfied that there were reasonable grounds for Mr Kam holding the belief that the Clovelly property was subject to the effective control of Geraghty, because he made order 3 as claimed by the first opponent, namely - "3. Pursuant to section 43(2)(a) of the Proceeds of Crime Act 1987 ('the POC Act') the property specified in Part 2 of the schedule is not to be disposed of, or otherwise dealt with, by any person until 5.00 pm on 9 December 1999."

31 His Honour stood "the matter" over to 9 December 1999. It should be noted that order 3 as claimed was not an order varying the 1997 order. It was a freestanding order, expressed to be made pursuant to s 43(2)(a) of the Act, and was distinct from the order varying the 1997 order in order 4 as claimed, expressed to be pursuant to s 48(1) of the Act. 32 Notice of the application, and of its adjournment to 9 December 1999, was given to Mr Geraghty by a letter from the first opponent dated 30 November 1999. He was provided with copies of the notice of motion, the affidavit of Mr Kam and its annexures save one annexure which he already had, and the order made by Abadee J. The letter of 30 November 1999 included - "The restraining order specifically restrains the property located at 23 Surfside Avenue, Clovelly. Given the making of this order ( and on the basis that order 4 is sought in the Notice of Motion is granted ), this property is liable to be forfeited to the Commonwealth under section 30 of the Proceeds of Crime Act 1987 ("the Act") on 15 December 1999 unless it is excluded from the scope of the restraining orders under section 48(3) of the Act, or an order is made under section 48(4) of the Act. In light of the fact that the date for statutory forfeiture under section 30 of the Act is now less than 3 weeks away, this office would not oppose an application by the registered proprietors of the property for an appropriate order under section 30A of the Act extending the waiting period ie the time between conviction and the date of statutory forfeiture. In respect of your facsimile transmission of 5 November 1999, as 23 Surfside Avenue is now specifically restrained, whether Mr Geraghty has any proprietary interest in the property or not is not determinative of the question as to whether the property may be forfeited." (emphasis added) 33 From the emphasised words, the letter of 30 November 1999 contemplated that the order made on 9 December 1999 would be order 4 as claimed; that is, that on that day the Court would not be asked to extend the freestanding order made by Abadee J, but would be asked to make the order varying the 1997 order. 34 On 2 December 1999 the first opponent filed a notice of motion in the proceedings, returnable on 9 December 1999, in which he claimed orders that Geraghty pay a pecuniary penalty to the Commonwealth pursuant to the provisions of the Act and that the pecuniary penalty be paid "out of the property the subject of the restraining order made in these proceedings, as varied and extended". There was no evidence of the affidavit or affidavits supporting this application. Its relevance in this case is only to explain in part what occurred on 9 December 1999. 35 On 6 December 1999 the claimants, by Mr Geraghty, filed a notice of motion in the proceedings, returnable on 9 December 1999, claiming an order extending the waiting period "applicable to" the Clovelly property until 15 September 2000. It did not claim an order pursuant to s 48 of the Act. 36 The notice of motion was defective in form, in that it named Mr Geraghty as the applicant. There were also a number of discrepancies in the framing of the order, although the intent was clear. One discrepancy was that the waiting period was described as that applicable to - " … the property referred to in part (ii) of the Schedule of the Order contained in paragraph 1 of the Order made 8th May, 1997 as extended on the 19th May, 1997, varied on the 24th June 1997, further extended on the 4th November 1997 and further varied on the 26th November, 1999". The order made by Abadee J on 26 November 1999 had not varied the 1997 order. His Honour had made the free-standing order. 37 The application was supported by an affidavit of Mr Geraghty sworn 6 December 1999. Mr Geraghty deposed to Geraghty's plea of guilty, and said that the waiting period would expire on 16 December 1999 so that the Clovelly property would then be forfeited to the Commonwealth. He said that the claimants "owned" the Clovelly property. He annexed a copy of the first opponent's letter dated 30 November 1999.

The hearing on 9 December 1999 38 Mr Harris of the first opponent's office appeared for the plaintiff, and Mr Rasmussen of counsel, instructed by Mr Geraghty, appeared for the defendants. From the letters earlier referred to, Mr Harris had been responsible within the first opponent's office for his actions in relation to the Clovelly property from at least early November 1999. Before Simpson J were the first opponent's notices of motion of 26 November 1999 in relation to a restraining order against the Clovelly property and 2 December 1999 in relation to a pecuniary penalty, and the claimants' notice of motion of 6 December 1999 in relation to extension of the waiting period applicable to the Clovelly property. 39 The transcript of the proceedings before her Honour begins - "(Short minutes of order handed up in relation to the two notices of motion of the plaintiff.) RASMUSSEN: Those orders are by consent. HER HONOUR: I make those orders by consent. Is there a further motion returnable today on behalf of the defendants?" 40 The evidence before us included short minutes of order, on their face emanating from the first opponent, dated 9 December 1999 and apparently initialled by her Honour. They read - "1. Pursuant to section 48(1) of the Proceeds of Crime Act 1987 the order contained in paragraph 1 of the orders made on 8 May 1998, as varied and extended, be further varied to take effect as follows: Under section 43(2)(a) of the Proceeds of Crime Act 1987 all the property of the first defendant, and the property referred to in Part 1 of the Schedule, is not to be disposed of, or otherwise dealt with, by any person until further order of the Court. 2. The further hearing of the notice of motion filed by the plaintiff on 2 December 1999 be adjourned to such date as appointed by the Court for the hearing of the notice of motion filed on 9 December 1999 on behalf of the second, third and fourth defendants. 3. These orders are to be entered immediately. Schedule Part 1 The whole of the property referred to in Folio Identifier 1/307673 and located at 23 Surfside Avenue, Clovelly, NSW 2008." 41 It is evident that the two notices of motion referred to in the transcript were the first opponent's notices of motion of 26 November 1999 and 2 December 1999. The order in para 2 of the short minutes dealt with the notice of motion of 2 December 1999. As contemplated in the letter of 30 November 1999, the order in para 1 of the short minutes was not an order extending the freestanding order made by Abadee J, but was an order varying the 1997 order in the terms of order 4 claimed in the notice of motion of 26 November 1999 and expressed to be pursuant to s 48(1) of the Act. 42 Returning to the transcript of the proceedings before Simpson J, Mr Rasmussen then referred to the claimants' notice of motion filed on 6 December 1999, said that there was "a problem with it in terms of the orders it seeks", and sought leave to file a replacement notice of motion. There was no objection from Mr Harris, and although the transcript does not record it leave must have been given and the replacement notice of motion was filed in court. 43 By the replacement notice of motion the claimants applied for an order pursuant to para (fa) or in the alternative para (g) of s 48(3) of the Act that their interest in the Clovelly property "be excluded from the restraining orders previously made by this Honourable Court in these proceedings", and an order pursuant to s 30A of the Act that the waiting period "applicable to" the Clovelly property be extended until 15 September 2000. The latter order included the same description of the property as had been in the notice of motion of 6 December 1999, referring to variation of the 1997 order on 26 November 1999. 44 Returning again to the transcript of the proceedings before Simpson J, Mr Harris said that the first opponent neither consented to nor opposed the order extending the waiting period, noted that under s 30A of the Act it was necessary that her Honour be satisfied as to certain matters, and said that the first opponent opposed the order under s 48 of the Act and that a timetable had been agreed. Mr Rasmussen said that he did not propose to seek the order under s 48, presumably meaning on that day. There was discussion relevant to the order under s 30A, in the course of which her Honour was taken to the affidavit of Mr Geraghty. 45 Her Honour gave a judgment in which she addressed the pre-conditions to making an order under s 30A and said that she extended the waiting period as requested in the notice of motion. She said that she made the timetable orders by consent. The proceedings were stood over to 13 April 2000 "for mention to fix a hearing date". 46 It is likely that more occurred at the commencement of the hearing before Simpson J than was recorded in the transcript. The only amplification before us was that in the affidavit of Mr Geraghty sworn 23 February 2000 - "12. On 9 December 1999 the first respondent's motion (which had been before Justice Abadee on 26 November 1999) came again before the Court (this time constituted by Justice Simpson). I was present in the Court instructing Counsel for the applicants, Mr Rasmussen. The ex parte order made by Justice Abadee on 26 November was due to expire at 5.00 pm that day and the first respondent made no application under s 45A to extend the operation of that order. No application was made under s 43(2) and the first respondent did not tender any affidavit of a police officer as required by s 44(7A)(a) nor did the Court make the finding required by s 44(7A)(b). 13. The first respondent sought an order in terms of para 4 of its motion filed on 26 November and the applicants' Counsel indicated to her Honour that he consented to such an order being made. Her Honour stated words to the effect that the first respondent's consent to the applicants' then application (for an extension of the time limited by s 30(1)(d)(i) did not suffice to permit her to make the order and read, in support of the application, my affidavit sworn 6 December 1999. Her Honour then purported to make orders in terms of order 4 as sought by the first respondent and order 1 as sought by my clients. I have applied to the Court Reporting Branch for an official transcript of the hearing on 9 December 1999."

The application to Hidden J 47 The initial application was for an order that the restraining order made by Simpson J be set aside. By amendment, orders were claimed that both the restraining order and the order extending the waiting period made by her Honour be set aside. Why did the complainants seek to set aside the order extending the waiting period, an order they had applied for and which at first sight was for their benefit? 48 The answer is clear enough. If the restraining order were set aside because the requirements of s 44(7A) of the Act had not been met, arguably the first opponent could immediately apply again and, curing that defect, obtain a valid restraining order. Counsel for the first opponent foreshadowed such a course before Hidden J. If the waiting period had not expired, because extended to 15 September 2000, the claimants would still be exposed to forfeiture of the Clovelly property. But if the waiting period had expired on 15 December 1999, arguably there could not be forfeiture because there would not have been a restraining order in force at that time. 49 I express no view on the correctness of either arguable position. For reasons which will appear, I do not think it necessary to go further into the application made to Hidden J.

The orders sought in the summons in this Court 50 The question of which of the alternative orders in the summons could or should be made was given little attention in submissions. The claimants touched on the alternatives in their written summary of argument, but at the hearing invited the Court to go directly to whether the orders made by Simpson J should be set aside. Save for contending that leave to appeal should not be granted, the first opponent really did not deal with the alternatives. 51 For reasons which will appear, I consider that this Court should decide whether the orders made by Simpson J should be set aside. However, I do not think that the basis for its doing so can be passed over. Although without the benefit of proper submissions, in my view in a number of respects the summons in this Court is misconceived. 52 By Pt 40 r 9(4) of the Rules the Court may set aside an order "except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief … ". This was, no doubt, a power invoked by the claimants in their application to Hidden J. Assuming that this Court could exercise the power, so long as Hidden J's dismissal of the application with which he dealt stands unreversed on appeal it would be inappropriate for it to do so. It would also be inappropriate because if this Court were to set aside Simpson J's orders in the exercise of an original jurisdiction, it would put at naught the statutory scheme for appeals, including in the present case the requirement that appeals from interlocutory judgments or orders in proceedings in the Court shall not lie to the Court of Appeal except by leave of the Court of Appeal (Supreme Court Act s 101(2)(e)). 53 Assuming that the Court retains an inherent jurisdiction enabling it to set aside an order, as Pt 40 r 9(5) might suggest, for the same reasons it would also be inappropriate for this Court to set aside the orders of Simpson J in the exercise of that jurisdiction. 54 Section 75A(10) of the Supreme Court Act 1970 does not permit an order removing the proceedings into the Court of Appeal for the purpose of answering the questions. Section 75A regulates appeals in proceedings in the Court. Section 75A(10) provides that the Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. It states what this Court may do in an appeal otherwise properly before it. It does not give a free hand to do in the proceedings whatever ought to have been done in the Common Law Division, nor does it enable removal of the proceedings to this Court so that the questions can be answered. 55 The claimants can obtain orders in this Court only by following the avenues of appeal available to them under the Supreme Court Act. That is not to say that, following the making of orders by Simpson J on 9 December 1999, the only course open to the claimants was to appeal against the orders made by Simpson J. Hidden J so held, but that itself is appealable subject to leave. One result on appeal could be that his Honour was held to have been incorrect. This Court could then, pursuant to s 75A(10), make the order on the claimants' application which his Honour should have made. But in the view I take that does not arise 56 There are two appellate avenues open to the claimants. One is to obtain an extension of time for leave to appeal against the orders made by Simpson J and leave to appeal, and to succeed on the appeal from her Honour's orders. Nothing in that would either affirm or cast doubt on Hidden J's decision that the only course open to the claimants was by appeal. The other is to obtain leave to appeal from the decision of Hidden J so far as his Honour held that the only course open to the claimants was by appeal, to succeed in the appeal, and then to have this Court do what Hidden J ought to have done. The claimants would then have to make good the substantive case involved in the first avenue of appeal. 57 Appeal in relation to Hidden J's refusal to entertain the removal of the proceedings to the Court of Appeal for the purpose of answering the questions adds nothing to the claimants' endeavours, as his Honour was plainly correct in that respect if correct in holding that the claimants' only course was one of appeal.

Was there ignorance and mistake on 9 December 1999? 58 This is relevant both to leave to appeal from the orders of Simpson J and to whether the orders should be set aside. It is convenient to deal with it now. 59 According to his affidavit sworn 24 March 2000, Mr Geraghty was not aware until mid-February 2000 of the requirements of s 44(7A) of the Act and that those requirements were not met. He said that he became aware on retaining different counsel, the claimant's present counsel. He was challenged on this in cross-examination, on the ground that he must have been aware of s 44(7A) when he signed the notice of motion filed in court on 9 December 1999 applying for an order pursuant to para (fa) of the Act: that paragraph was conditioned on the restraining order having been made by virtue of s 44(7A). Mr Geraghty's response was that counsel drafted the notice of motion and, in effect, that he did not become familiar with the Act. 60 Notwithstanding the rather remarkable inattention to his clients' interests, I see no reason to decline to accept Mr Geraghty's evidence. It does not much matter. Mr Kintominas of counsel drafted the notice of motion filed on 6 December 1999, and either he or Mr Rasmussen drafted the replacement notice of motion filed in court on 9 December 1999. Mr Rasmussen appeared for the claimants on the latter date, and conveyed the claimants' consent to the orders made by Simpson J on the first opponent's notice of motion. Neither Mr Kintominas nor Mr Rasmussen gave evidence of unfamiliarity with the Act, and I am not prepared to infer that they were unaware of its provisions material to the claimants' position. On the contrary, the proper inference is that they were aware. Their knowledge is to be attributed to the claimants. 61 Mr Harris must have been familiar with the provisions of the Act material to the first opponent's actions in relation to the Clovelly property. I do not think that either the first opponent or the claimants were proceeding mistakenly, in ignorance of the requirements of s 44(7A), on 9 December 1999. There was a deliberate choice by the first opponent, seen in the inclusion of order 4 in the notice of motion of 26 November 1999, in the reference to that order in the letter of 30 November 1999, and in the preparation of the short minutes of orders provided to her Honour, to seek on that day an order varying the 1997 orders pursuant to s 48(1) rather than an order extending the free-standing order pursuant to s 45A(1). The claimants consented to an order varying the 1997 orders pursuant to s 48(1). The requirements of s 44(7A) did not have to be met. 62 For that reason, not because of ignorance of s 44(7A), no application under s 45A(1) was made, the affidavit of Mr Kam was not read, and her Honour was not invited to reach the requisite satisfaction. Those involved on behalf of the parties may have been in error in thinking that s 48(1) enabled the variation proposed and consented to, but that is another matter.

Leave to appeal from the orders of Simpson J 63 The claimants' present counsel must have taken a different view of s 48(1) from his predecessors. The claimants' notice of motion seeking to set aside the orders of Simpson J was filed on 23 February 2000. It came before Kirby J on 6 March 2000, and the application was fixed for hearing on 16 March 2000. Directions for the service of written submissions were made. The hearing commenced on 16 March 2000 before Hidden J, and the application was adjourned part heard to 23 March 2000. The first opponent did not raise the issue of his Honour's power to set aside the orders made by Simpson J in his written submissions, and raised it only on 16 March 2000. 64 The passage of time until mid-February 2000 is explained by the view taken of s 48(1), a view which the first opponent then shared and sought to uphold in this Court. Although the course they took was held to be erroneous, the claimants acted expeditiously from mid-February 2000, and the first opponent was rather tardy in objecting to the course they took. The summons in this Court was filed on 28 March 2000, and again the claimants acted expeditiously following the decision of Hidden J. The first opponent did not suggest that he had been prejudiced by the claimants' failure to seek leave to appeal in a timely manner. In my opinion an extension of time to apply for leave to appeal should be granted. 65 The claimants accepted that leave to appeal was required because the orders made by Simpson J were interlocutory. Assuming they are to be so characterised, the restraining order was and is important to the claimants. Unless the claimants succeed in their s 48 application the claimants will lose their home, a property of which they are registered proprietors. Arguably they will not be exposed to that loss if the restraining order be set aside, and the status of the order extending the waiting period is consequentially significant to their exposure. The claimants submitted also, in my view with some validity, that issues of general importance in the operation of the Act were raised. 66 The first opponent opposed the grant of leave to appeal. Geraghty was joined as second opponent, but did not appear. The first opponent's opposition was on two grounds. One was that the claimants should not be permitted to challenge orders to which they had consented. Consent founded on an erroneous view of s 48(1) of the Act (if that is what it was), resulting in disregard of the requirements of s 44(7A), should not in the present circumstances stand in the way of correction on appeal. The other was to the effect that it could not be doubted that, if the requirements of s 44(7A) had been drawn to the attention of Simpson J and the affidavit of Mr Kam had been read, her Honour would have reached the requisite satisfaction: the claimants were seeking to rely on a transgression of form rather than substance. However, it can not be assumed that the requirements of s 44(7A) would have been met. Free from an erroneous view of s 48(1) (again, if that is what it was), in which the first opponent shared, there might not have been consent; on an opposed application, there might have been more than the bare affidavit of Mr Kam. Nothing in the materials before us negated these possibilities, or mandated fulfilment of the requirements of s 44(7A). 67 There is a further consideration. The claimants' core submission in this Court was that the orders made by Simpson J were made without power. If leave to appeal were refused, and in due course it was contended that the Clovelly property had been forfeited to the Commonwealth, it may be open to the claimants to contest the forfeiture on the ground that the restraining order had been made without power. Future dispute over the order is not certain, but it is better to resolve the same dispute now. In my opinion leave to appeal should be granted.

The restraining order 68 On the evidence before us, Simpson J was not told of Mr Kam's affidavit. Her Honour's attention was not drawn to s 44(7A), so she would not have proceeded on the basis that Abadee J had been satisfied that, having regard to the matters contained in the affidavit, there were reasonable grounds for holding the belief that the Clovelly property was subject to the effective control of Geraghty. Her Honour did not express that satisfaction on her part. She acted on the consent of the parties, no more and no less. 69 If s 48(1) empowered the making of the restraining order, on its face a variation of the 1997 order, her Honour was entitled to act on the consent of the parties. The requirements of s 44(7A) did not have to be met, and - "In deciding whether consent orders sought are in conformity with legal principle the Court is entitled to treat the defendants' consent as involving an admission of all facts necessary or appropriate to the granting of the relief sought."

( Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 164 per Gibbs CJ, Stephen, Mason and Wilson JJ.) 70 The first opponent submitted, although with a marked lack of enthusiasm, that s 48(1) did empower the making of the restraining order. The words of para (a) in s 48(1) are wide, and giving them full scope the order varied the property to which the 1997 order related by adding the Clovelly property to the existing description of all the property of Geraghty. The first opponent said that the words should be given that scope, but did not develop the argument. 71 The words can not be given the scope which para (a), looked at alone, might warrant. Any order within the paragraphs of s 48(1) must be by way of an ancillary order, within the governing description at the commencement of the subsection. An order under s 48(3) would be within the full scope of an order varying the property to which the restraining order relates, but s 48(3) establishes a regime under which grounds for an order must be made out and s 48(1) does not provide an alternative route by which it is not necessary to make out the grounds. If property can not be excluded from a restraining order pursuant to para (a) of s 48(1) in the circumstances addressed by s 48(3), it might be thought that property can not be included in a restraining order pursuant to para (a) in the circumstances addressed by s 44(7A) and its compatriots in s 44. 72 An ancillary order must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it. The range of paragraphs in s 48(1), which I have not set out other than para (a), shows that a narrow view of what is incidental or supplemental should not be taken: for example, enforcing an undertaking as to damages given when a restraining order is made (para (d)). There is no point in attempting an exhaustive description of the situations in which an ancillary order varying the property the subject of a restraining order may be made. In the situation presented to Simpson J, was the order an ancillary order? 73 I do not think it was. The 1997 order against all of Geraghty's property would by the definition of "property" in s 4 of the Act extend to Geraghty's read or personal property of every description, and include his interest in any such real or personal property. If, as the first opponent had maintained, the 1997 order caught the Clovelly property because Geraghty was its beneficial owner, specifically to name the Clovelly property in the order would not vary the property subject to it. If, on the other hand, the Clovelly property was property of the claimants but subject to the effective control of Geraghty, a purported variation of the 1997 order to include the Clovelly property would not be ancillary to the order against all of Geraghty's property. It would be an order against someone else's property, the claimants' property, on the basis of effective control as disclosed in Mr Kam's affidavit, and an order which could not be made unless the requirements of s 44(7A) were met. 74 The first opponent's preferred submission was that the restraining order made by Simpson J was supported by s 45A(1) of the Act, although expressed to be made pursuant to s 48(1), and that the requirements of s 44(7A) made applicable by s 45A(2) were met by virtue of the claimants' consent to the order. He said that the order could be supported by any available source of power, although not one in terms invoked, citing R v Bevan; ex parte Elias and Gordon (1942) 66 CLR 452 at 487 per Williams J and Brown v West (1990) 169 CLR 195 at 203 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ. 75 It may be that what was said in these cases did not extend to where a specific source of power was stated and there were different requirements for the exercise of the powers. However that may be, I do not think that the claimants' consent did the work called for by the submission. 76 The first opponent argued that the consent admitted all facts necessary or appropriate to the making of the order (see Thomson Australian Holdings Pty Ltd v Trade Practices Commission above). He accepted that the claimants could not be taken to have admitted that Simpson J was satisfied that, having regard to the matters contained in Mr Kam's affidavit, there were reasonable grounds for holding the belief that the Clovelly property was under the effective control of Geraghty. But he said that they admitted that the material was sufficient for her Honour to be satisfied, and that "the Court then can be satisfied because of the admission". 77 I doubt that the step from material sufficient to satisfy, to satisfaction can be taken, particularly where s 44(7A) did not simply require that the court be satisfied but required that the court be satisfied having regard to the matters in the affidavit. How could available satisfaction translate to actual satisfaction without reference to the affidavit? The submission should not be accepted, however, for a more fundamental reason. 78 I have described why I consider that the first opponent deliberately sought an order varying the 1997 orders pursuant to s 48(1) rather than an order extending the free-standing order pursuant to s 45A(1). The claimants consented to that order. They thereby admitted all facts necessary for the making of that order. They did not admit any further facts necessary for the making of a different order, an order pursuant to s 45A(1). When this was raised, the first opponent responded that the claimants admitted the facts necessary for an order against the Clovelly property. I do not think that is so, given the focus upon s 48(1). The admission was of the facts necessary or appropriate to the granting of the relief sought, and no greater admission should be found. 79 In my opinion the restraining order was made without power, in that s 48(1) did not empower it and s 45A(1) did not empower it unless the requirements of s 44(7A) were met: they were not. No other source of power was suggested. I have used the language of power because that was usually the language used by the parties. Occasionally they used the language of jurisdiction or of satisfaction of a condition precedent. It was not suggested that the different language was significant in this case. 80 The parties were agreed that - " … a judgment or order of a superior court having authority to determine its own jurisdiction, however fundamentally impeachable it may be, is not void but voidable and is valid and effective unless and until it is set aside. In a superior court the question is not whether the judgment or order is void or voidable but whether the flaw complained of is a mere irregularity which leaves the court with a discretion whether to set aside the judgment or order or not or is a fundamental miscarriage which prevents the trial being a real trial at all so that the person prejudiced is entitled ex debito justitiae to have the judgment or order set aside. A judgment or order affected by a fundamental miscarriage is often referred to as a nullity, but if it is a judgment or order of a superior court that does not mean that it is void but only that it can be disregarded by the person against whom it operates in the sense that if the person in whose favour it has been made seeks to enforce it the former is entitled, as we have said, to have it set aside ex debito justitiae : Ex parte Williams [(1934) 51 CLR 545, at p. 550]; Cameron v Cole [(1944) 68 CLR 571, at pp 585]. ( Brennan v Brennan (1953) 89 CLR 129 at 134 per Williams ACJ, Webb and Kitto JJ.) 81 The claimants submitted that, if made without power, the making of the restraining order was not a mere irregularity, but fundamentally impeached the order, and that they were entitled to have it set aside. The evaluation and assessment by the court of the reasonableness of the grounds for the police officer's belief, under the scheme of the Act, was a safeguard against the drastic consequences of a restraining order, and the court had "a determinative role" in the evaluation of the DPP's application: Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82 at 91 per Kirby P. 82 The first opponent did not dispute that an order made without power, in that it was necessary that the requirements of s 44(7A) be met and they were not, would be liable to be set aside. He submitted that in the present case that should not happen. He said that there was not a fundamental miscarriage because, repeating his submission in relation to leave to appeal, if the requirements of s 44(7A) had been drawn to the attention of Simpson J and the affidavit of Mr Kam had been read, it could not be doubted that her Honour would have reached the requisite satisfaction. I have given my reasons for not accepting the basis of the submission. In my view the order should be set aside.

The order extending the waiting period 83 The claimants submitted that the order extending the waiting period depended on a valid restraining order, and that if the restraining order was made without power it also was made without power. 84 One of the conditions in s 30A(1) of the Act for an application to the court for an order extending the waiting period is that a restraining order is or was granted. The claimants said that the restraining order was avoided ab initio on being set aside, and that the condition was retrospectively not met. The first opponent did not dispute either that the restraining order would be avoided ab initio if set aside or that there would be a retrospective absence of power to make the order extending the waiting period. Indeed, the first opponent addressed no submissions at all to the status of the order until asked at the close of his submissions whether he accepted the claimants' position. His response was that it seemed logical. 85 In the circumstances I do not think it is for this Court to consider arguments to the contrary of the claimants' position which the first opponent did not feel he was able to put. It should act on the claimants' submission.

Leave to appeal and an appeal from Hidden J 86 It is not necessary to deal with this.

(1) Extend the time to apply for leave to appeal from the restraining orders and the order made by Simpson J on 9 December 1999 ("the orders"). (2) Grant leave to appeal in relation to the orders. (3) Appeal upheld and the orders set aside. (4) Summons otherwise dismissed. (5) First opponent pay the claimants' costs of the proceedings in the

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