Dyason v Butterworth

1. [1]

   McCOLL JA: The applicant, Mr Linden Prescott Dyason, seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to a decision of her Honour Judge Wells SC (the “primary judge”) who dismissed the applicant’s appeal from a decision of Magistrate Linden making an Apprehended Personal Violence Order (“APVO”) against him: Dyason v Butterworth (District Court of New South Wales, Wells DCJ, 5 August 2013, unrep). The APVO was made pursuant to s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the “DPV Act”). It prevents the applicant from entering a post office, the workplace of the respondent, Ms Hannah Butterworth.

2. [2]

   The Local Court of New South Wales and the District Court of New South Wales are named as the second and third respondents respectively on the summons commencing the proceedings. However, no orders are sought against either. It is convenient to refer to Ms Butterworth, (the first respondent on the summons) as “the respondent”.

3. [3]

   For the reasons that follow, I am of the view that the Court should set aside the primary judge’s orders and remit the matter to the District Court for determination according to law.

Background

1. [4]

   The respondent is the registered proprietor of a business known as “Ferryside General Store and Post Office” (the “post-office”) in Tumbulgum, a town in northern New South Wales. She is licensed to conduct post office business at the premises during the hours 9.00am to 5.00pm, Monday to Friday.

2. [5]

   The applicant is an occasional customer of the post office. He is in his late seventies and a pensioner. As a result of two incidents between the applicant and the respondent which occurred on 24 December 2012 and 28 December 2012 the respondent claimed she felt he harassed and intimidated her.

3. [6]

   On 8 January 2013, the respondent filed an application for an APVO (the “Application”) against the applicant at Murwillumbah Local Court. On 23 January 2013, Magistrate Dakin granted her an Interim APVO making “standard orders” and, also, ordering that the applicant “must not enter the premises at which [Ms Butterworth] may from time to time reside or work … ”. The Interim APVO was expressed to operate until revoked or a further court order became effective. On 25 January 2013, the applicant lodged an appeal in the District Court from the Interim APVO (the “Interim Order appeal”).

4. [7]

   Magistrate Linden heard the Application on 12 June 2013. His Honour made the APVO the subject of the application in this Court and ordered the applicant to pay professional costs in the sum of $3,300.00. The APVO was expressed to be in force for two years.

5. [8]

   On 16 July 2013, the applicant filed a “Notice of Motion” which was treated as an appeal to the District Court of New South Wales against the making of the APVO and the costs order pursuant to s 84(2)(a) and (b) of the DPV Act.

6. [9]

   The appeal was, as I have said, heard and dismissed by the primary judge on 5 August 2013. Her Honour ordered the applicant to pay costs of the appeal in the amount of $2,139.45.

7. [10]

   On 5 August 2013, a Notice of Penalty was issued by the District Court to the applicant directing him to pay the sum of $5,439.45 in respect of the two costs orders. The applicant did not make the payment.

8. [11]

   Thereafter the respondent commenced bankruptcy proceedings in the Federal Circuit Court of Australia. The applicant sought unsuccessfully to set aside the bankruptcy notice on which she proceeded: Dyason v Butterworth [2013] FFCA 2067. Despite this, there is no suggestion that the applicant has been made bankrupt.

Relief sought

1. [12]

   On 18 March 2014, the applicant filed a summons in the Court’s supervisory jurisdiction, albeit expressed as an “appeal”, naming Magistrate Dakin, Magistrate Linden and the primary judge as respondents.

2. [13]

   The applicant relied on the following grounds to challenge those orders:

3. [14]

   The applicant also seeks, “if required”, leave to commence the proceedings and orders setting aside the APVO, the primary judge’s order dismissing his appeal and both costs orders. Although the first page identified Magistrate Dakin’s decision as being a relevant decision, no orders were sought in its respect. As appears from the following discussion, it ceased to have any operative effect when the final APVO was made.

4. [15]

   The White Book included an unfiled document described as “Final Amended Summons”. Mr D Allen, who appeared for the applicant in this Court, but not below, did not refer to that document and it is unnecessary to say any more about it.

Statutory framework

1. [16]

   Section 19 of the DPV Act relevantly provides:

2. [17]

   “‘Protected person’ means the person for whose protection an apprehended violence order is sought or made”: s 3(1), DPV Act.

3. [18]

   For the purposes of the DPV Act, “intimidation” of a person relevantly means conduct amounting to harassment or molestation of the person, or an approach made to the person by any means that causes the person to fear for his or her safety, or any conduct that causes a reasonable apprehension of injury to a person or of violence or damage to any person or property.

4. [19]

   An interim APVO ceases to have effect, relevantly, when a final APVO is made: s 24(2)(a), DPV Act.

5. [20]

   When making an APVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence, including prohibitions or restrictions prohibiting or restricting access by the defendant to any premises occupied by the protected person from time to time or to any specified premises occupied by the protected person; to any place where the protected person works from time to time or to any specified place of work of the protected person: s 35, DPV Act.

6. [21]

   Section 36 of the DPV Act provides:

7. [22]

   These are the “standard orders” made when the Interim AVO was granted and repeated in the “Terms of Final Order” made at the final APVO hearing (White Book 114).

8. [23]

   A final APVO remains in force for such period as is specified in the order by the court, the period specified to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person: s 79(1) and (2), DPV Act.

9. [24]

   Section 99 of the DPV Act relevantly provides:

Appealing against an APVO

1. [25]

   A defendant may appeal to the District Court against the making of an apprehended violence order and a s 99 costs order: s 84(2)(a) and (b), DPV Act. The jurisdiction conferred on the District Court by the DPV Act is conferred on it in its criminal jurisdiction: s 93. Accordingly, a s 84 appeal is made under s 11 in Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the “CAR Act”) in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW). The CAR Act applies to such an appeal as relevantly modified by regulations under the CAR Act: s 84(4), DPV Act. No relevant regulations appear to have been made, and to the extent necessary, adjustments have to be made to the operation of provisions of the CAR Act to accommodate appeals from APVOs: Garde v Dowd [2011] NSWCA 115; (2011) 80 NSWLR 620 (at [8]), per Basten JA (Giles and McColl JJA agreeing). The appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, although fresh evidence may be given by leave pursuant to s 18(2): s 18(1), CAR Act.

2. [26]

   A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).

3. [27]

   The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 (“McKellar”) (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The “judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court”: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).

4. [28]

   The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.

5. [29]

   In Mahmoud v Sutherland [2012] NSWCA 306 Barrett JA (Tobias AJA and Blanch J agreeing) explained the matters of which a court must be satisfied before making an APVO:

6. [30]

   Accordingly, it was the duty of the primary judge to form her own judgment of the facts and, in particular to determine whether the evidence before the Magistrates (she having rejected the admission of any further evidence) satisfied s 19(1)(b) of the DPV Act. Uppermost in her Honour’s approach should have been the question whether the Local Court had adequately identified and dealt with the matters with which it was required to deal and what the correct outcome was in relation to those matters: Mahmoud v Sutherland (at [33] – [34]). There was no power to confirm the APVO found upon a rehearing as described above, unless the s 19(1) pre-conditions had been established and the Magistrate had considered the exercise of the s 20 discretion: Mahmoud v Sutherland (at [50]).

Function of this Court

1. [31]

   As I have said, the District Court’s exercise of jurisdiction under the Crimes (Appeal and Review) Act falls within the criminal jurisdiction of the District Court. Section 176 of the District Court Act 1973 (NSW) which provides no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court therefore applies: Garde v Dowd (at [9]). The effect of s 176 is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: Garde v Dowd at [10]; Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82 (at [18]) per Gleeson JA (Basten JA and Tobias AJA agreeing); see also Wang v Farkas [2014] NSWCA 29; (2014) 85 NSWLR 390.

2. [32]

   An inferior court commits jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (at [72]). Where there is “the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law … such a failure will generally involve jurisdictional error …[as] the process of decision-making … has miscarried”: Boele v Rinbac Pty Ltd [2014] NSWCA 451 (at [54]) per Basten JA (although his Honour was in dissent as to the outcome, Sackville AJA (at [100]) approved Basten JA’s statements of principle); see also Goodwin v Commissioner of Police [2012] NSWCA 379 (at [19] – [25]) per Basten JA (Allsop P and Young AJA agreeing). Such error will also be established if the primary judge misunderstood the scope of her jurisdiction, so as not to conduct a rehearing, but, rather, undertook some more limited form of appeal: McKellar (at [10]).

3. [33]

   In “V V” v District Court of New South Wales [2013] NSWCA 469 (at [13]) Barrett JA (Ward JA and Leeming JJA agreeing) explained that there will also be jurisdictional error in the following circumstances:

4. [34]

   The applicant seeks to challenge both the District and Local Court orders. In the ordinary course relief in relation to the Local Court orders would not be available in this Court’s exercise of its s 69 jurisdiction. Once the District Court confirmed the Magistrate’s order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate’s order was correct and “holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary”: Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J. Further, as an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect” it will not be available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (at [25]) per French CJ, Crennan, Bell, Gageler and Keane JJ.

5. [35]

   However, if the APVO was made in excess of the jurisdiction of the Local Court, a challenge to that order as confirmed by the District Court on the grounds of the same jurisdictional error would be available: Garde v Dowd (at [14]). Further, the Court may review the Magistrate’s decision if, having set aside the District Court judgment for jurisdictional error, “it is apparent that there is only one conclusion properly available as a matter of law, which would require that the decision at first instance be set aside”: Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; (2013) 85 NSWLR 350 (at [91]) per Basten JA.

The incidents

1. [36]

   The incidents which founded the Application are described in the respondent’s statement dated 20 March 2013.

2. [37]

   The first incident occurred at approximately 5:05pm on 24 December 2012. The applicant attempted to use the services of the post office where the respondent was working. The respondent’s husband told him the post office was closed. The applicant said “[i]t is my right as an Australian Citizen to do business here. I’ll call your boss. You can’t do this to me.” He waited in his car, which was parked directly outside the respondent’s shop, until approximately 5.45pm during which period he said he was making notes about the incident.

3. [38]

   The second incident occurred at approximately 10:00am on 28 December 2012. The applicant entered the respondent’s shop, where she was working alone. He wanted to post a trackable parcel to England. The respondent initially told him that he “was not welcome here after what happened”, however she decided to serve him she said, to “get rid of him”. She told him the transaction would cost $45.00. She was unable to scan a barcode necessary to give effect to the transaction. The applicant left the shop without sending his parcel. He then went to Murwillumbah Post Office where he was successful in sending the parcel as a trackable item for $22.50.

4. [39]

   The applicant returned to the respondent’s shop a few hours later. He told her he had successfully sent the parcel and had been charged less to do so than the price she had quoted. When the respondent queried whether the parcel he had sent was trackable, she alleged he yelled that it was.

The Local Court proceedings

1. [40]

   The applicant represented himself in the Local Court proceedings. Mr Quigley, a solicitor, appeared for the respondent.

2. [41]

   Magistrate Linden delivered an ex tempore judgment after a contested hearing on 12 June 2013.

3. [42]

   His Honour set out the terms of s 19(1) of the DPV Act and observed there was no doubt that the respondent founded her application upon s 19(1)(b), “the engagement of the other person in conduct in which the other person intimidates the person or stalks the person, being conduct that in the opinion of the Court is sufficient to warrant the making of an order”.

4. [43]

   His Honour continued:

5. [44]

   The Magistrate also ordered the applicant to pay the respondent’s professional costs in the amount of $3,300.

6. [45]

   As I have said, on 16 July 2013 the applicant filed a notice of motion in the District Court which, inter alia, sought an order that the APVO granted by Magistrate Linden be set aside and the matter re-heard or reviewed and that his Honour’s costs order be revoked.

The District Court proceedings

1. [46]

   The primary judge heard both the appeal from the interim APVO and from the final APVO on 5 August 2013. Once more, the applicant represented himself. Mr Quigley represented Ms Butterworth. Her Honour delivered an ex tempore judgment dismissing both appeals.

2. [47]

   Insofar as the appeal against the interim APVO was concerned, the primary judge concluded (page 2) that on the basis of the respondent’s affidavit, the evidence satisfied the requirements to make such an order. Accordingly, her Honour dismissed the application for its revocation. It is apparent that no one drew her Honour’s attention to s 24(2)(a) of the DPV Act, by virtue of which the Interim APVO had ceased to have effect consequent upon the making of the final APVO.

3. [48]

   In relation to the appeal against the APVO, the applicant sought leave to rely on fresh evidence from an employee of Australia Post, a Mr Peter Grasshopper. A letter from Mr Grasshopper to the respondent, indicating his support for her in the action that she had taken to prevent the applicant from entering the post office, had been tendered before Magistrate Linden.

4. [49]

   The primary judge observed that she could not see how Mr Grasshopper’s letter had been relevant to the Magistrate’s hearing, but also said it was clear that Mr Grasshopper’s evidence had not formed any part of his reasons. Although she did not do so expressly, her Honour clearly rejected the application to adduce further evidence.

5. [50]

   In the course of determining this aspect of the application, her Honour said (at pp 3 – 4):

6. [51]

   The primary judge then dealt (at page 5) with the application “to have the matters set aside by the Magistrate, or the matter re-heard”. Her Honour understood that aspect of the appeal to be part of the application to have the APVO revoked and the matter returned to the Magistrate for rehearing. This aspect of the application was based on various procedural complaints the applicant advanced such as that the Magistrate had been unable to see the witnesses properly and had refused to allow him to read his affidavit to the court and elaborate on it. Her Honour was of the view that the transcript demonstrated the Magistrate had read the affidavit and had given the applicant “abundant opportunity to put those matters he thought relevant before the court.”

7. [52]

   Finally, her Honour dealt (at page 7) with the application in relation to the APVO, “that the matter be reviewed by way of an appeal, as well as taking into account an order for the availability of this fresh evidence from Mr Grasshopper.” She noted that it seemed to be “generally conceded that that particular order in total is the same as mentioned in the orders sought (1) and (2)”, referring to the application to adduce fresh evidence.

8. [53]

   Accordingly, her Honour dismissed the applicant’s appeal against the APVO, and, also, that against the Magistrate’s costs order. She confirmed the Magistrate’s orders and ordered the applicant to pay the costs of the appeal in the amount of $2,139.45.

Applicant’s submissions

1. [54]

   Mr Allen first submitted that the applicant could challenge both the District and Local Court decisions relying on Garde v Dowd (at [14]). His essential submission was that both the primary judge and the Magistrate made a jurisdictional error because neither addressed the statutory criteria for making an APVO whether at the s 19 fact finding stage, nor at the discretionary stage. Secondly, he contended the Magistrate acted in excess of jurisdiction because he considered irrelevant matters, such as aspects of the applicant’s behaviour in court.

2. [55]

   Mr Allen submitted that the Magistrate made no findings of jurisdictional fact such as whether the respondent had reasonable grounds to fear that the applicant had engaged in conduct constituting stalking or which intimidated her such that there were grounds sufficient to make an order. Further, he contended, there was no evidence which could have supported, and there were no findings of, the respondent having reasonable ground to fear future conduct on the part of the applicant which would intimidate her or that any conduct of a future nature was sufficient to warrant making an APVO order. Thirdly, Mr Allen submitted that the Magistrate considered irrelevant matters such as the applicant’s conduct in banging the bar table, the fact that he was argumentative with the respondent’s legal representative in court, the fact that he made unnecessary comments and the fact that his behaviour in court was indicative of the respondent’s fear.

3. [56]

   Insofar as the District Court proceedings were concerned, Mr Allen submitted that the primary judge failed to exercise jurisdiction as her Honour did not undertake the rehearing required by s 18(1) of the CAR Act. He contended that her Honour was obliged to determine whether Magistrate Linden had adequately identified and dealt with the criteria imposed by s 19(1) of the DPV Act and determine herself whether the statutory criteria had been met, that is to say, whether the jurisdictional facts supporting the order had been established before the Local Court.

Respondent’s submissions

1. [57]

   In relation to the Local Court decision Mr A Vernier, who appeared for the first respondent, submitted that the Magistrate dealt with the jurisdictional requirements to found the making of the APVO. He contended that the Magistrate was “satisfied” in the way described in s 19 of the DPV Act that there were reasonable grounds for the respondent’s fear and addressed the question whether that fear in fact existed. Mr Vernier also argued that the Magistrate’s reasons should be understood in the context of a busy list and that, within that context, the requirements of s 19 of the DPV Act had been sufficient addressed. He submitted that the Magistrate had addressed the exercise of the discretion in the penultimate paragraph of his reasons.

2. [58]

   Insofar as the District Court hearing was concerned, Mr Vernier submitted that to the extent that there was any requirement for the primary judge to test the evidence, her Honour did so when she referred to the evidence the Magistrate took into account in arriving at his decision in the passages emphasised in her Honour’s reasons (see [50] above). In relation to the applicant’s argument that the Magistrate considered irrelevant matters Mr Vernier submitted, first, that these matters were not irrelevant, but, secondly, even if they were, this would not be a basis upon which to found jurisdictional error.

3. [59]

   Accordingly, Mr Vernier submitted that the District Court decision was not affected by jurisdictional error. He argued that the primary judge canvassed all of the issues raised by the applicant in his appeal and did not find any error by the Magistrate. Accordingly the applicant’s appeal failed.

Extension of time

1. [60]

   Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 59.10(1) provides:

2. [61]

   UCPR Pt 59 (apart from UCPR 59.8) applies to proceedings for relief referred to in s 69 of the Supreme Court Act assigned to the Court of Appeal pursuant to s 48 of that Act, subject to UCPR 51.45: UCPR 51.45(1A).

3. [62]

   The primary judge’s decision in the District Court was delivered on 5 August 2013. The applicant filed his summons seeking to invoke the supervisory jurisdiction of this Court on 18 March 2014, over seven months later. Accordingly, despite the equivocation in the amended summons, the applicant needs an extension of time within which to commence the proceedings.

4. [63]

   Mr Allen submitted that an extension of time should be granted because the application had merit and because it had been prosecuted until recently by a self-represented litigant.

5. [64]

   The respondent opposed the applicant being given an extension of time. Mr Vernier submitted he had not advanced any reason for the seven month delay. He also contended that the applicant had threatened to lodge an appeal on at least 5 occasions during the District Court hearing. When he had not done so, the respondent had commenced the bankruptcy proceedings. He argued that the respondent would be prejudiced by a grant of an extension of time as the Supreme Court proceedings had caused delay and prejudice to her in the bankruptcy proceedings. Finally, he contended that the applicant had not demonstrated an arguable case warranting a grant of an extension of time.

6. [65]

   UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]).

7. [66]

   I would grant the applicant the extension he seeks. The most significant factor in acceding to that application is that, in my view, the applicant has a clearly arguable case that both the District Court and Local Court decisions were affected by jurisdictional error.

8. [67]

   Secondly, the APVO against the applicant will be in force until 12 June 2015. In addition, the applicant has been ordered to pay costs in the two lower courts which orders may not have been made if each court had directed itself to consider the statutory pre-conditions for making an APVO. Accordingly, the applicant has a continuing interest in challenging the two lower court judgments: UCPR 59.10(3)(a).

9. [68]

   Thirdly, it is apparent that the applicant was unrepresented until the proceedings in this Court and, even then, did not secure representation until they had progressed some way. He appeared for himself in the Local Court, the District Court and in the Federal Circuit Court. It is clear he had no legal representation when he filed the original summons. It might tolerably be inferred that he only obtained legal representation when the amended summons, which was clearly drafted by a lawyer, was filed on 13 August 2014. While that does not excuse his ignorance of the procedural requirements, at times a measure of indulgence may be extended to an unrepresented litigant to satisfy the public interest in the due administration of justice: cf UCPR 59.10(3)(d); Wang v Farkas (at [48]).

10. [69]

    There is no evidence as to when the respondent commenced the bankruptcy proceedings. However I accept Mr Vernier’s statement that she did so in the belief the proceedings were at an end. I accept accordingly, that the respondent has suffered prejudice in the commencement of the bankruptcy proceedings. However, the prejudice she has suffered in that respect can be ameliorated to some extent by moulding the costs orders of these proceedings.

Consideration

1. [70]

   It is apparent from the primary judgment that the primary judge did not, with respect, form her own judgment as to the facts and whether they warranted the conclusion that the elements of s 19(1)(b)(i) of the DPV Act (relating to intimidation) had been established – there being no suggestion that the applicant had stalked the respondent. Nor did her Honour address the sufficiency issue s 19(1) directed the decision-maker to consider once a prima facie s 19(1)(b) finding had been made. Finally her Honour did not consider whether, in all the circumstances, and taking into account the matters raised in s 20, an APVO was warranted.

2. [71]

   Further, in determining that the Magistrate’s orders should be confirmed, the primary judge did not examine the evidence before the Magistrate, nor did she consider whether his Honour had adequately identified and dealt with the matters with which he was required to deal. Had her Honour done so, with respect, it should have been apparent that his Honour had not considered first, whether being an “argumentative” person can be classified as intimidatory within the meaning of that expression in the DPV Act, secondly, whether even if it could, its extent (limited in this case to two exchanges) was “sufficient to warrant the making of an order” (s 19(1)) and thirdly, had not considered the matters set out in s 20 of the DPV Act.

3. [72]

   Even allowing for the pressure of work in the Local Court jurisdiction (cf Maviglia v Maviglia [1999] NSWCA 188 (at [1])) , in my view, the Magistrate’s reasons could not be read on the benevolent basis that his Honour had turned his mind to the steps necessary to engage the making of an APVO against the applicant. The Magistrate’s reasons did not articulate the essential grounds on which his decision apparently rested, rather they left the Court to speculate as to the basis of his findings: Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247 (at 280) per McHugh J.

4. [73]

   The respondent submitted that a finding that the respondent entertained “reasonable grounds to fear and in fact fears” (s 19(1)) was implicit in the Magistrate’s statement that the applicant’s behaviour in court was indicative of the fear she had. Even if such a finding was open on the applicant’s in-court behaviour, in the circumstances in which the Magistrate referred to that evidence, he was, in my view, denied procedural fairness constituting jurisdictional error: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 (at [60]).

5. [74]

   While it is open to a court “to take into account, for the purpose of fact-finding, its observations of a party’s behaviour (including demeanor) in the courtroom, even though the behaviour takes place outside the witness box”, this entitlement is subject to a condition based on “fair play and common sense” that the parties “should know or be informed of what [the judge] has noticed, and have an opportunity of answering or dealing with it”: Lindsay v Health Care Complaints Commission [2010] NSWCA 194 (at [233] – [241]) per Sackville AJA (Giles JA agreeing). The Magistrate did not give the applicant any opportunity to deal with the proposition that his in court conduct could be “evidence” supporting the making of an APVO.

6. [75]

   The primary judge’s failure to conduct a rehearing in the sense required by s 18(1) of the CAR Act means that the process of decision-making vested in the District Court by statute has miscarried in circumstances properly characterised as jurisdictional error: Boele v Rinbac (at [54] – [55]) per Basten JA.

7. [76]

   Relief on the grounds of jurisdictional error is discretionary: Colquhoun v District Court of New South Wales [2014] NSWCA 460 (at [8]) per Leeming JA, (Beazley P and Barrett JA agreeing). I would grant the applicant relief in the light of the jurisdictional error apparent in the primary judge’s reasons.

Conclusion

1. [77]

   The consequence is that the applicant having established jurisdictional error in the District Court appeal, that appeal has not been properly considered and the primary judgment should be set aside. However, it is not apparent that there was only one conclusion available as a matter of law which would warrant this Court setting aside the Magistrate’s reasons: cf Bindaree Beef (at [91]). Accordingly the appeal should be remitted to the District Court to be determined according to law.

2. [78]

   That leaves the question of costs.

3. [79]

   The applicant did not seek an order for the costs of the proceedings in the courts below, no doubt because he represented himself: see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. However he does seek to have the two costs orders made in those proceedings set aside. That will be the consequence of setting aside the District Court orders. It will be a matter for the District Court on the re-consideration of the applicant’s appeal to that Court to determine the fate of the Local Court costs order.

4. [80]

   The applicant seeks cost in this Court. There appears to me to be a difficulty in making such an order having regard to the prohibition in s 99(3) of the DPV Act against a Court making a costs order against an applicant for an APVO unless satisfied the application was “frivolous or vexatious”. It is unnecessary to determine whether that provision constrains this Court in exercising its supervisory jurisdiction from ordering the respondent to pay the applicant’s costs of these proceedings. This is because I would not order her to pay those costs in order in some way to assuage the prejudice she has suffered from commencing the bankruptcy proceedings absent any challenge to the District Court orders. Rather, in my view, there should be no order as to costs of the proceedings in this Court.

5. [81]

   Finally, I note that the District Court is empowered to make an order under the Suitor’s Fund Act 1951 (NSW) where an appeal on a question of law succeeds: s 6(1A), Suitor’s Fund Act. Whether a court failed to apply the correct legal test is a question of law: Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 (at [13]) per Dowsett and Gordon JJ. Should the District Court reach that view in respect of the Magistrate’s reasons such that it allowed the appeal, it would be open to that court to make an order in the respondent’s favour under that legislation.

Orders

1. [82]

   I propose the following orders:

   1. (1)

      Extend the time for commencing the proceedings for judicial review of the District Court decision up to and including 18 March 2014.

   2. (2)

      Remit the applicant’s appeal against the orders of Magistrate Linden to the District Court for hearing and determination according to law.

   3. (3)

      No order as to the costs of the proceedings in this Court

2. [83]

   BARRETT JA: As McColl JA explains, the threshold task of the District Court, upon the appeal by way of rehearing, was to assess the evidence that was before the Local Court and to decide whether, according to the balance of probabilities, that evidence showed that the factual pre-conditions prescribed by the Crimes (Domestic and Personal Violence) Act 2007 for the making of the particular type of statutory order were satisfied. As McColl JA also explains, the reasons of the primary judge demonstrate that that course was not taken, with the result that the decision of the District Court miscarried and the appeal to that court stands in need of re-determination. The orders McColl JA proposes should be made for the reasons her Honour states.

3. [84]

   GLEESON JA: I agree with McColl JA.