WYSE v DISTRICT COURT & ANOR

HANDLEY JA: The Court has before it a summons for prerogative relief brought by Elcie Wyse, seeking to quash a decision of McGuire DCJ who was hearing original proceedings in the District Court by way of complaint, seeking an apprehended violence order against Mrs Serena Silvestro. The proceedings have been complicated by procedural irregularities and complexities, which there is no need to detail in these reasons.

It is now accepted on all sides that the proceedings before McGuire DCJ were not appellate in nature but original proceedings pursuant to s 562GA of the Crimes Act which were commenced by complaint filed on 1 September 1998. For some strange reason, the complaint did not result in the issue of a summons but a notice of listing for a fixed date which was sent out without the complaint. The result was that the opponent's legal advisers believed they were facing an appeal. The confusion spread to the claimant's legal advisers and the District Court Registry. In the result, McGuire DCJ in turn thought that he was dealing with an appeal and not with an original proceeding. However, Mr Bates for the opponent acknowledges that the proceedings in fact heard and determined by McGuire DCJ were original proceedings under s 562GA and not so called appellate proceedings under s 122 of the Justices Act .

If it were necessary to consider the merits of these proceedings, the Court would be slow to uphold the Judge's order refusing the adjournment and directing that the case proceed before him on the return date, 21 October 1998. However, the underlying proceedings relate to a complaint under the Crimes Act sworn on 1 September 1998 which sought an apprehended violence order against Mrs Silvestro. Such an order could only be made under s 562B(1) of the Act if at the date the order is made the complainant Dr Wyse in fact fears, and has reasonable grounds to fear, the commission by another person of a personal violence offence against her.

Evidence emerged by a side wind today that since the proceedings in the District Court, Mr and Mrs Silvestro have moved to another address in North Sydney, some distance from the subject premises in Kirribilli Avenue, Kirribilli. There has also been a substantial lapse of time since the events on 13 November 1997 giving rise to the original complaint that was dismissed by the Local Court on 1 September 1998. As a result of these developments the Court has reached the conclusion that it would be a futility in this case to quash McGuire DCJ's order and direct a rehearing of the complaint in the District Court.

The offences which gave rise to the original complaint are now some eighteen months old. The respondent has moved and the only basis in reality for an apprehended violence order now would be some fresh incident involving the parties, which would not support the original complaint but would of course support a fresh complaint which the claimant would be free to commence if so advised. The proceedings based upon the District Court complaint and the original incident are now stale and would not support the making of an order under s 562B of the Crimes Act .

The Court is therefore satisfied that relief should be refused on discretionary grounds because of the futility of ordering a rehearing, and in these circumstances has no occasion to investigate the merits or otherwise of the course taken by McGuire DCJ on 21 October 1998.

McGuire DCJ made no order as to the costs of the proceedings before him, so that there is no utility in these proceedings as a vehicle for removing a costs order against the claimant. That leaves outstanding the question of the costs of these proceedings.

The futility of the present proceedings in the light of the terms of s 562B of the Crimes Act and its mandatory requirements was not a point taken specifically by the opponent in the written submissions filed yesterday. There is a general submission in paragraph 14 that the whole matter was irrelevant and a statement, unsupported by evidence at that stage, that Mrs Silvestro no longer lives in the same apartment block as Dr Wyse, but these matters were not related to the clear provisions of s 562B of the Crimes Act on which the Court is basing its decision. There was no evidence about the move by Mrs Silvestro until an affidavit sworn today was received after lunch which disclosed her new address.

In the circumstances, the Court is satisfied that the appropriate course is to make no order as to the costs of these proceedings. This is especially appropriate as we are not expressing any concluded view as to the validity of the steps taken by McGuire DCJ in refusing to grant an adjournment of the proceedings in the District Court on the applications made first by the solicitor and then by the counsel for Dr Wyse.

The order of the Court therefore is summons dismissed, no order as to costs.

POWELL JA: I agree.

FITZGERALD JA : I also agree.