Commissioner of NSW Police v Murphy

1. [1]

   This is a somewhat Kafkaesque case. It concerns an individual’s attempt to have an apprehended domestic violence order (“ADVO”) revoked when that order had already expired or was about to expire. It involves the purported temporal extension of the order beyond its expiry date for the singular purpose of then having it revoked. It raises the ugly issue of court delays and highlights inconsistencies and ambiguities in official records as to what actually happened in court, and why it happened. Finally, it involves a possible outcome in this Court which has real potential to operate unjustly against an individual. To understand that deceptively enticing introduction, it is necessary to set out the process which is now before the Court and a history of the case in the court below.

2. [2]

   The Commissioner of the New South Wales Police (“the plaintiff”) brings a summons seeking judicial review and prerogative relief in relation to the order of a Magistrate made on 22 August 2023 purporting to revoke an ADVO against Peter Michael Murphy (“the defendant”). The Commissioner argues, and seeks declarations, that the ADVO expired on 11 January 2023 or, alternatively, on 30 January 2023. Accordingly, or so it is argued, the order could not be revoked on 22 August 2023 because it no longer existed.

The initiating process in this Court, the evidence and submissions

1. [3]

   By summons filed on 9 November 2023, the plaintiff sought the following orders:

2. [4]

   The summons, under the heading “Grounds”, set out the thrust of the plaintiff’s argument:

3. [5]

   These arguments or grounds were expanded on in written submissions dated 25 January 2024 over the hand of counsel, Mr Daniel Reynolds. The defendant’s solicitor, Mr Kable (who also appeared in the proceedings before the Local Court) filed written submissions dated 8 February [2024].

4. [6]

   There was an indexed and paginated Court Book comprising 275 pages which included pleadings and particulars, the written submissions, chronologies, transcripts of the Local Court proceedings, the orders as entered on Justice Link and relevant parts of the legislation. The orders on Justice Link do not always sit comfortably with the transcripts purporting to record what was said in Court or with the bench sheets filled out by the presiding Magistrate. Put more bluntly, the orders as entered seemed at times to be inconsistent with what actually occurred in court.

5. [7]

   At the risk of oversimplifying her case, the plaintiff makes four fundamental submissions:

6. [8]

   Before resolving those legal questions, I will set out a chronology of the factual circumstances and history of the litigation. Where necessary, I will identify the inconsistencies between the Justice Link entries and the transcripts and bench sheets, and the confusion around the orders made and the purposes for which the orders were made. I will also summarise what was said in court on each occasion to put the arguments of the parties in this Court into a sensible perspective.

An attempt to unravel the history of the case relevant to the expiry date of the ADVO

1. [9]

   The background to these proceedings commenced on 29 October 2021 when the defendant was charged by police with offences of common assault, [2] intimidation, [3] and failing to keep a firearm safely. [4]

2. [10]

   It was alleged that the previous day, 28 October 2021, the defendant got into an argument with his son about some domestic chores or possibly over his son’s cannabis use. The details are not significant but are set out in a “facts sheet” prepared by the police and in an electronically recorded interview between police and the defendant (“ERISP”). The allegations of assault and intimidation arose out of the defendant allegedly pushing his son and making threats against him. The ERISP was conducted after the defendant’s arrest. The circumstances alleged in the fact sheet were disputed although the defendant made certain admissions.

3. [11]

   Police became aware that the defendant had a firearms licence and owned seven guns. When they attended his home on the day of his arrest, he took them to his gun safe where six of his firearms were located. The seventh weapon was an air rifle. The air rifle was not at the defendant’s home but at his business premises. The defendant subsequently took the police to those premises and showed them the weapon which was on a bench in a shed and not securely stored. That weapon was the subject of the firearms offence.

4. [12]

   On the same day that the defendant was charged, two further things happened. First, the police took out a provisional ADVO which was made “until it is revoked or a further order made by the Court”. The named person in need of protection (“PINOP”) was the defendant’s son. The provisional ADVO included an application by a Senior Constable Dearing for a final ADVO for a period of two years. Secondly, the defendant’s firearms licence was suspended effective on 29 October 2021 “until advised by firearms registry”. [5]

5. [13]

   On 15 November 2021, the application for a final ADVO was adjourned until 12 July [2022]. [6] That was the date of the hearing of the summary charges.

6. [14]

   The criminal charges were finalised before Magistrate Morahan in the Belmont Local Court on 12 July 2022. The charge sheet records that the assault and intimidation offences were “dismissed”. The firearms offence was established but dismissed without conviction pursuant to the provision in s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The matters to which the court must have regard before making an order under s 10 are set out in sub-s 10(3):

7. [15]

   Importantly for present purposes, the Magistrate made a final ADVO commencing on 12 July 2022. However, contrary to the application for the order to endure for two years, the final order was made for a period of six months. The order was made by consent and without any admission on the part of the defendant.

8. [16]

   By its terms, the ADVO was to remain in force until 11 January 2023.

9. [17]

   On 8 December 2022, the defendant filed a written application to the Belmont Local Court for an order revoking the ADVO (“the revocation application”). The notice of listing on the form said the revocation application was listed on 19 December 2022. The application stated the following grounds:

10. [18]

    There is no dispute that the application was made and listed before the expiration of the ADVO. There was (and could be) no suggestion that the grounds stated in the application were contrary to the scheme of the legislation. Had those grounds been upheld and the ADVO revoked, it could not be contended that the revocation was made for an improper purpose.

11. [19]

    On 19 December 2022, the revocation application came before Magistrate Crews at the Belmont Local Court. The defendant’s solicitor (Mr Kable) was not present initially and there was a brief discussion between the Magistrate and the police prosecutor in his absence. Her Honour stated the grounds of the application (as set out above) and the Prosecutor said, “the silly thing is it actually expires in January next year” and that “my instructions [are] just to leave it as is until January when it expires.”

12. [20]

    Mr Kable dialled in by telephone at 9.38am. The Magistrate said that she and the Prosecutor were “trying to work out what the application is.” Mr Kable said it was “an application to revoke.” The Magistrate responded that “the sergeant tells me the order expires early next year” and that his instructions were “to just let the order run”, which I take to mean “run out” or expire. Her Honour said, “I do not know whether the prosecution has confirmed that the boy has moved away from the home”. Mr Kable explained:

13. [21]

    Magistrate Crews responded that she “wouldn’t be prepared to revoke it today” but said that “subject to further discussion, [would] be prepared to vary it to end today if there’s no other issue but to seek … to seek a revocation, I think it will require more attention than a simple mention.”

14. [22]

    Mr Kable acquiesced but stressed that he sought to have the revocation application listed before the ADVO expired on 11 January 2023. Her Honour said, “I can see where you’re coming from.” Mr Kable indicated that he had provided the telephone number of the PINOP to the Court the previous week. The matter was stood in the list to enable the Prosecutor to obtain instructions from the domestic violence liaison officer (“DVLO”) and her Honour stressed the difference between varying the order and revoking it, noting that she did not have the original file.

15. [23]

    The matter resumed some time before 11.57am when Mr Kable appeared by audio visual link (AVL). Before he appeared, there was a discussion between the Prosecutor and the Magistrate as follows:

16. [24]

    Mr Kable then appeared by AVL and the Prosecutor said that “we don’t support a revocation” and repeated his contention that the DVLO “did indicate that there is a possibility to revoke an expired AVO at some point.” Mr Kable said, “No. It changed in 2017 with the latest firearm regulations.” The Magistrate said the matter would have to be adjourned with directions for filing of statements “if it’s still pursued.” Mr Kable responded, “it will still be pursued”.

17. [25]

    The Magistrate adjourned the matter for hearing on 30 January 2023 into what she described as a “large AVO list” and a “very big day here”. The following exchange then occurred:

18. [26]

    The bench sheet records that “on application of def/applicant current order extended on interim basis (11/1/2023 expiry date)”. It does not record the date to which the order was extended. The reference in both the bench sheet and in the transcript to 11 January 2023 is a reference to the date on which the final ADVO expired on its face.

19. [27]

    The Justice Link entry does not reflect what, it seems, the parties and the Court thought was happening, namely – as it was put by Mr Kable – that the ADVO be extended “until it’s [ie the revocation application] finalised.” Justice Link records the relevant parts of the order as follows:

20. [28]

    Neither the transcript nor the bench sheet, which seemed to have been completed as the Magistrate spoke the words of the order, suggested the extension was “until the next court appearance.” This is an instance of the Justice Link record apparently erroneously recording the orders that were made in court.

21. [29]

    Putting aside the date of the putative extension order, the plaintiff submits that any order purporting to extend the expiry date of the ADVO was invalid because it was made for an improper purpose, namely, to allow the defendant to seek revocation after the order would otherwise expire.

22. [30]

    In accordance with the directions made by Magistrate Crews, the defendant filed statements in advance of the hearing date.

23. [31]

    A statement of the defendant dated 2 January 2023 said:

24. [32]

    A statement of his son, that is the person to be protected by the ADVO, was dated 5 January 2023 and stated:

25. [33]

    The matter came before Magistrate Chicken on 30 January 2023. The Prosecutor informed his Honour that “the application is still opposed” and the Magistrate offered to “set it down for hearing”. There was a discussion about what had been filed and served. The Magistrate could not find the statements of the defendant and his son, but the Prosecutor confirmed that they had been served and did not know why they were not on the court file. The Magistrate asked, “based on what’s in … the PINOP’s material would it be a matter that was worth putting over for three or four weeks for some reps?” The Prosecutor agreed, saying “that it might resolve, yes.”

26. [34]

    The application was adjourned for mention on 20 March 2023.

27. [35]

    There is no record of any order being made to extend the expiry date of the ADVO. The transcript is silent on the subject; neither Mr Kable nor Sgt Harvey suggested there was any need to extend the ADVO so that it did not expire before the revocation application was heard. The bench sheet records no such extension and the Justice Link entry for 30 January 2023 says:

28. [36]

    The plaintiff places considerable reliance on the absence of any order varying or extending the expiry date of the ADVO. The submission is that the Justice Link entry of 19 December 2022 records that the ADVO was extended until “the next court appearance” (that is, 30 January 2023). In the absence of any further extension, the plaintiff submits the ADVO expired on that date at the latest.

29. [37]

    Brief representations dated 30 January 2023 were directed to the Local Area Commander at Lake Macquarie. They attached the statement of the PINOP and requested that “consent be granted to approve the revocation of the AVO”.

30. [38]

    The case was back before Magistrate Crews on 20 March 2023. A different prosecutor – a Sgt Clarke – appeared. Again, the matter was dealt with initially in the absence of Mr Kable, but this time seemingly to finality. On 30 January 2023, Magistrate Chicken had excused Mr Kable from appearing at the mention and said he could appear by email advising of his available dates for the hearing. Based on her Honour’s comments, the record before Magistrate Crews (which must not have included the transcript) apparently said he was excused if the matter was withdrawn.

31. [39]

    Sgt Clarke took a robust approach, to use a neutral word. Of the representations, they said:

32. [40]

    Magistrate Crews then sought to clarify the status of the matter:

33. [41]

    There was a discussion about the sergeant-prosecutor only coming into the matter that morning, and the Magistrate requested that they make contact with the defendant’s lawyer (Mr Kable). The matter was stood in the list.

34. [42]

    When it resumed Sgt Clarke said they hadn’t spoken to Mr Kable but had spoken to another police officer (Sgt Checkley) who told the police prosecutor that Mr Kable had been informed “on Friday” that the representations were unsuccessful. Sgt Clarke went on to say that “according to reps Sergeant Checkley has done, the AVO has actually expired.” The discussion continued:

35. [43]

    Magistrate Crews said that she was “concerned about the issue of fairness”. The police prosecutor confirmed that “according to Sergeant Checkley, he spoke to Mr Kable on Friday” but suggested, if her Honour was concerned, “it could go over for a couple of weeks.” The transcript then records:

36. [44]

    The bench sheet reflects this: “N/A 2.10pm. Sgt Checkley confirmed on 17/3 with Mr Kable that reps were unsuccessful” and a box saying “Dismissed” was ticked. The Justice Link entry, to which I will return, also reflected this but it did not record, as the bench sheet recorded, that the dismissal of the application was “revoked” an hour or so later.

37. [45]

    The transcript records that Mr Kable appeared by AVL at 3.28pm. He received a brief education on the niceties of seeking leave to appear by AVL and was told the Magistrate had her “own views about people who just appear on the screen.” In the circumstances, her Honour’s frustration was understandable but, given what had gone before and the fact that Mr Kable had been excused by Magistrate Chicken, the rebuke was unfair.

38. [46]

    There was then a discussion about the way forward, whether a timetable was required and whether any further evidence was to be led. Her Honour resolved simply to list the matter for hearing. To demonstrate the confusion surrounding the status of the ADVO at that stage, I will set out some more of the transcript:

39. [47]

    Some aspects of this exchange were probably wrong, others may have been based on erroneous assumptions, and some of the terminology employed was ambiguous. To take some examples:

    1. (1)

       Mr Kable said he believed on the last occasion his Honour continued the order on an interim basis, but this belief was erroneous. There was no order made by Magistrate Chicken on 30 January 2023 extending the ADVO (whether final or interim).

    2. (2)

       When Magistrate Crews said, “no that was me” and suggested the order was continued “on an interim basis until 11 January 2023”, this did not reflect what was said in court on 19 December 2022, or what was entered on Justice Link, and seemed to reflect a misunderstanding of what was written on the bench sheet.

    3. (3)

       When her Honour said of Magistrate Chicken “he didn’t revoke the interim order, so its continued” the “order” to which the Magistrate referred is not completely clear. I take the reference to be to the continuation of the final ADVO which was extended “on an interim basis” when the matter was last before Magistrate Crews. However, the use of the expression “interim” may have given rise to the confusion being experienced by the Prosecutor (Sgt Clarke) – which confusion the Sergeant attributed to Mr Kable – as to whether the Court was dealing with the final ADVO or the original (provisional) ADVO.

40. [48]

    In any event, the last page of the transcript of 20 March 2023 records that the Magistrate ordered, “ADJOURNED TO TUESDAY 22 AUGUST 2023 FOR HEARING.” There is nothing in the transcript to say the earlier order (dismissing the application) was revoked. Yet the bench sheet, filled out by Magistrate CREWS (capitalisation in the original) appears to be quite plain and records:

41. [49]

    The Justice Link entry for 20 March 2023 records nothing of this part of the mention before Magistrate Crews on 20 March 2023. There is no reference to the adjournment. There is no reference to the earlier order being revoked. It simply records the order dismissing the revocation application which was made at around 2.10pm that day. I would observe in passing, if that earlier order was not revoked, there was nothing left to adjourn.

42. [50]

    The Justice Link entry is incomplete and wrong. If it is not, it is surprising that the parties turned up to court on 22 August 2023 for the hearing, that the court papers were before the Magistrate sitting that day, and that the Local Court was ready to hear the revocation application.

43. [51]

    On 22 August 2023, the application to revoke the ADVO was heard by Magistrate Olischlager. Sergeant Harvey (who appeared on the first two mentions but not on the third) appeared for the plaintiff and Mr Kable appeared (in person) for the defendant.

44. [52]

    When the matter was mentioned, the parties provided the Magistrate with an overview of the evidence and his Honour confirmed that he understood the procedural history. Reference was made to the statement of the PINOP (the defendant’s son) and Mr Kable explained that his client is “a firearms licence holder” and that “if you can’t revoke the order, he can’t reapply for 10 years, mandatory”. His Honour confirmed that the “interim order had been made to keep the --” and Mr Kable completed the sentence, saying “Correct, to enliven it in order to finalise these proceedings.” The Prosecutor confirmed the police position was that “it is still opposed” and said that “it’s purely a legal argument in relation to the legitimacies of revoking an AVO for the purposes of obtaining a firearms licence.” The matter was stood in the list.

45. [53]

    When the matter resumed the Prosecutor drew attention to a decision of NCAT in Gault v Commissioner of Police (NSW) [2022] NSWCATAD 370 and the Magistrate drew the parties’ attention to the decision of the Court of Appeal in Wass.

46. [54]

    Mr Kable made short submissions (around 18 lines of transcript) which included acknowledgement that his client was making the application because of the implications of the ADVO on his ability to obtain a firearms licence but went on to say there were “no breaches of the order” and “no application to extend the order” beyond the original six months. He referred to the “pathway” provided by s 73 of the Crimes (Domestic and Personal Violence) Act (“the Act”) for the revocation of the order.

47. [55]

    The Prosecutor made slightly longer submissions (about a page of transcript) which contended that the order had expired and questioned whether “the final order should’ve been extended in the first place to allow this process to occur.” He also submitted that the single purpose of the revocation application was to avoid the legislative restriction on issuing a firearms licence to a person who was subject to an unrevoked ADVO or apprehended violence order (“AVO”) in the previous ten years. He said the fact that the police had not sought an extension was not relevant, referred to admissions made by the defendant that he made a threat to the PINOP (which I gather was the basis of the original charge of intimidation) and observed that the final order was “put in place in the Court with the consent of the defendant.” It was submitted that granting the application “opens up the floodgates for all other applicants to decide ‘I want my firearms licences and I’ll just make an application to revoke it in the Local Court before the expiration of the AVO and I’ll get around that legislative requirement.’”

48. [56]

    Neither party made any substantial reference to the legislative scheme, the protective purpose of the Act, the statement of the PINOP or the decision of the Court of Appeal in Wass.

49. [57]

    Magistrate Olischlager provided the following ex tempore reasons:

Legislative provisions and the decision in Wass

1. [58]

   The plaintiff’s criticisms of the various orders made by the Local Court, and the process leading to those orders, were directed to the failure of the Local Court to give effect to the terms and objectives of the Act. It is necessary therefore to pay close attention to those objects, the express words of the statute read as a whole and relevant to the power to revoke an ADVO, as well as, if appropriate, the history of those provisions.

2. [59]

   It is important to commence with the objects of the Act:

3. [60]

   Relevant to the present case, section 9 constitutes a strong and clear statement that a court exercising jurisdiction to revoke an ADVO or AVO – a power which derives from the provisions in Division 5 of Part 10 of the Act – must be guided in the exercise of that power by the objects set out in section 9.

4. [61]

   The power to make an ADVO is found in Part 4 of the Act. Section 15 provides for the application while s 16 establishes the jurisdiction in the court and sets out the circumstances in which such an order may be made. Section 17 sets out the matters to be considered in deciding whether to make an order and requires the court to ensure that the restrictions placed on a defendant are limited to those that are necessary for the safety of the protected person.

5. [62]

   These sections echo the objects of the Act in that the critical consideration is the safety and protection of those who may be subject to violence, threats and intimidation. A plain reading of Part 4 is that those are the prevailing and primary considerations. The hardship to any person affected by the orders is also a consideration but it is a secondary one.

6. [63]

   Part 6 (ss 22-24A) deals with interim orders and Part 7 (ss 25-34A) deals with provisional orders. The defendant was subject to a provisional order because he was suspected of (and charged with) a relevant offence. The provisional order ceased to have effect upon the making of the six-month final ADVO on 12 July 2022: s 32(1)(a).

7. [64]

   Section 73 of the Act provides:

8. [65]

   As to the timing of the application, and whether the court has power to vary or revoke an order that has expired, the Act contains some ambiguities. It is necessary to have regard to the history of amendments to the Act’s provisions. The Court of Appeal explained the correct construction and provided authoritative guidance on these issues in Wass. Although the circumstances of that case were somewhat different, in that the application to revoke was brought after the ADVO had expired, the construction of the Act favoured by Leeming JA (with whom Bell CJ and Kirk JA agreed) is binding on this Court (as it was on the Local Court).

9. [66]

   Section 72A relevantly provides:

10. [67]

    In Wass, the Court of Appeal demonstrated by reference to the history of amendments that the words of s 72A(1) cannot be read literally. Leeming JA put it elegantly at [25]:

11. [68]

    As his Honour showed, the history of amendments to the Act provides necessary context to a proper construction of s 72A(1). Mr Reynolds took me through this history carefully in his written and oral submissions and Leeming JA analysed the history from paragraph [26] of his judgment in Wass. It is not necessary for me to re-invent the wheel.

12. [69]

    In short, amendments to s 72 in 2008 provided that “[a]n application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired”: s 72(5). A note to the sub-section referred to the consequence to a person’s eligibility for a firearms licence if an AVO was not revoked.

13. [70]

    In 2015 there was a departmental review of the Act which recommended the repeal of sub-ss 72(5)-(8). [8] In response to the review, Parliament repealed those sub-sections. [9] The Explanatory Memorandum accompanying the Bill provided:

14. [71]

    In Wass, Leeming JA commenced his analysis at [2] by stating the issue before the Court:

15. [72]

    Having set out the history of the legislation and the clear purpose of the 2016 amendments, Leeming JA at [49]-[58] provided five reasons to conclude that, despite the ambiguity created by s 72A(1), the proper construction was that the court could not revoke an order that had expired. His Honour stated his conclusion at [59]:

16. [73]

    At [62] his Honour made an appeal to Parliament to amend the law to clarify the position:

17. [74]

    Regrettably, that appeal has not been heard or acted upon. The anomaly or ambiguity in the Act remains.

18. [75]

    Before leaving the case of Wass, it is worth repeating that Wass is factually distinguishable from the present case. Mr Wass made his application to revoke the ADVO after the order expired, whereas Mr Murphy made the application before the expiration date (11 January 2023). Had the Local Court heard Mr Murphy’s application when it was made (8 December 2022), or when it was first listed (19 December 2022), or at any stage before 11 January 2023, it would have had power to deal with the revocation application on its merits.

19. [76]

    Accordingly, and in light of the decision in Wass, the validity and terms of the extension orders purportedly made by the Local Court become very important. To analyse that issue, it is necessary to repeat some of the details of what occurred in court and which were canvassed above at [9]-[57].

Was the order extending the ADVO on 19 December 2022 invalid (void) because it was made for an improper purpose?

1. [77]

   Under grounds 3a and 3b, the plaintiff contends that the order made by Magistrate Crews on 19 December 2022 was invalid because it was made for an improper purpose, namely to extend the ADVO and keep it alive in order to hear the revocation application which itself was predicated on the improper purpose of avoiding the consequences of s 11(5)(c) of the Firearms Act. She submits the extension order was therefore “void and of no effect”. The plaintiff goes on to argue that, in deciding to extend the ADVO beyond the expiry date, Magistrate Crews failed to consider “the safety and protection of the protected person” and the need to ensure his protection: cf ss 17(1) and 79A(2) of the Act.

2. [78]

   I am unable to accept these contentions. While they are arguable on the basis of the material in the Court Book, they ignore the reality on the ground in the Local Court. The record before this Court does not disclose how many other matters her Honour was required to deal with that day. However, the transcript of the proceedings suggests strongly that her Honour was dealing with a busy list. For example, her Honour said the matter “would require more attention than just a simple mention”.

3. [79]

   The privilege which is conferred upon courts and judicial officers to determine legal disputes and controversies between citizens, or between citizens and the organs of the executive government, is accompanied by corresponding duties and obligations. One of the critical obligations cast upon a court is to hear and determine the cases that are presented to it. In the context of application for recusal, Kirby P (as his Honour then was) put the duty clearly in Australian National Industries v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 418C (citations omitted):

4. [80]

   Where there is, or may be, a time imperative, the obligation is to resolve the controversy before any time limit expires, lest the right of the party to have the issue resolved is rendered otiose.

5. [81]

   Mr Kable did his best to persuade the Magistrate to understand there was some urgency to the matter because the ADVO on its face would expire on 11 January 2023 (around a month later). However, the Prosecutor’s submissions suggested there was no such urgency; he submitted twice that the revocation could occur after the order expired. [10] Those submissions are contrary to the position now taken by the plaintiff.

6. [82]

   Returning to her Honour’s purpose in extending the order, the Magistrate made it clear she was not prepared to revoke the order that day without more information. That remark does not suggest that her Honour disregarded the protection of the PINOP. It is much to the contrary. Mr Kable submitted that “the PINOP is normally contacted” and advised the Court that he (the PINOP) did not “have an issue with it”, was the 17-year-old son of the defendant and had “moved back with his mother.” The Magistrate asked if Mr Kable had the PINOP’s telephone number and he said he had already provided it. At that point, Magistrate Crews appeared to locate the telephone number on the file and stood the matter in the list.

7. [83]

   When the matter resumed the Prosecutor indicated that the police did not support revocation and submitted to the Magistrate that the order could be revoked “even if it becomes expired … for the purposes of a firearms licence.” Nothing was said by the Prosecutor to suggest that there was any risk to the PINOP or that police had attempted to contact the PINOP, let alone that the Magistrate should address herself that day to the matters under s 17 and the other parts of the Act to which the plaintiff now refers.

8. [84]

   When her Honour decided to adjourn the application to a date after the expiration of the ADVO, Mr Kable said, “please note that the order is extended until it’s finalised, if that’s possible”. No objection was taken to this course and the Prosecutor made no submission that the application was founded on an improper purpose or that the Magistrate should turn her mind to the purposes and terms of the legislation. Her Honour said, “current order extended on [an] interim basis” and asked when it would expire.

9. [85]

   Based on the transcript, and based on the times that are recorded, these three mentions appeared to take place over a period of about ten minutes, if not less. The Justice Link record records the time taken as “5 minutes”. [11]

10. [86]

    Her Honour’s order to extend the ADVO did not disregard the interests of the PINOP. Her Honour was attempting to facilitate the hearing of a legitimate application for revocation made by the defendant which was made before the order expired and which the Court was unable to determine to finality due to the pressure of time. The order maintained the status quo, continued the ADVO which was directed to the safety of the PINOP, and allowed (or directed) the parties to provide evidence going to the issues relevant to the revocation of the ADVO.

11. [87]

    In the circumstances prevailing, her Honour was not required to provide reasons. Her refusal to accede to the revocation application that day, and the things she said during the brief mentions, establish that she was cognisant of the need to protect the PINOP. Her Honour also had before her an application validly filed by a person whose rights were affected by the existence of the ADVO. The decision to extend the order was an attempt to balance the interests of the defendant and the PINOP and to fulfil the Court’s obligation to deal with a matter legitimately brought to it for resolution.

12. [88]

    For those reasons, I am unable to accept these grounds attributing to her Honour an improper purpose and a failure to consider the important provisions and objectives of the Act.

13. [89]

    Just after I wrote the above and shortly before I proposed to deliver this judgment, the Court of Appeal published its decision in Majumdar v Director of Public Prosecutions (NSW) [2024] NSWCA 117 (“Majumdar v DPP”). That was a case where an application for the revocation of an AVO was filed before the expiration of the AVO but, because that application was adjourned several times, the AVO expired before the revocation application was dealt with by the Local Court. The lawyers for the applicant, unlike Mr Kable who appeared for the present defendant, did not seek to vary the AVO to extend the expiry date until the revocation application was disposed of. The Court of Appeal held that, in those circumstances, the reasoning in Wass applied; there was no order left to revoke.

14. [90]

    Gleeson JA (with whom Mitchelmore and Adamson JJA agreed) made the following observations which appeared to have some relevance to the circumstances of the present case:

15. [91]

    As a matter of procedural fairness, I asked my Associate to draw the parties’ attention to the decision in Majumdar v DPP and to invite brief submissions on the issue. I also asked that the plaintiff confirm that she maintained her submissions under, and reliance upon, grounds 3a and 3b.

16. [92]

    Counsel for the plaintiff provided the following helpful submissions (with citations and footnotes inserted into the body of the document):

17. [93]

    I am grateful to Mr D Reynolds of counsel for his diligence in providing these submissions with speed and alacrity and on such short notice. I largely accept what he has written.

18. [94]

    There are many distinctions between the circumstances in Majumdar v DPP and the present case. As is obvious, Majumdar v DPP did not address the provisions of the Firearms Act or determine a ground based on improper purpose. The case confirms the correctness of the decision in Wass, a case which is obviously binding on a single Judge of this Court in any event. However, Majumdar v DPP takes the logical next step in saying that the Local Court is not empowered to revoke an expired ADVO even when the applicant brought their revocation application before the ADVO expired. Accordingly, it confirms the plaintiff’s submission (which I accepted) that if the ADVO had expired by the time it came before Magistrate Olischlager, there was no power to revoke the order.

19. [95]

    Even so, the observation at [31] that it was open to “the applicant to make a variation application under s 73(2)(a) of the Act, before the AVO had expired, to extend the period of the AVO until the court dealt with the revocation application” does suggest, albeit in an obiter observation and in different factual circumstances, that an application to extend the ADVO for the singular purpose of keeping alive a party’s statutory right to have the ADVO revoked does not amount to an improper purpose.

20. [96]

    Mr Majumdar sought to have the AVO revoked so that he was not prevented from joining the Australian Army. That purpose is entirely divorced from, and extraneous to, the objects of the Act and the grounds upon which an ADVO may be made. There is no relevant legal distinction between that purpose and the purpose that motivated the defendant (although not necessarily the Local Court) in the present case. Mr Majumdar has a lawful right to join the army; Mr Murphy has a right to apply for a firearms licence. Those rights are subject to certain restrictions.

21. [97]

    Gleeson JA’s dicta at [31] fortifies me in my conclusion that the Magistrate’s decision to extend the ADVO in the present case did not constitute making the extension order for an improper purpose or one that was contrary to the objects and terms of the Act.

22. [98]

    I stress again, the present application was brought within time and the defendant sought to have it dealt with before the ADVO expired. When the Magistrate adjourned it to a future date, his solicitor sought to extend the ADVO so it did not expire. Based on the observation of Gleeson JA, that was the right thing to do. To find otherwise would place litigants’ legal rights at the mercy of the exigencies of the court lists and the sometimes oppressive workloads cast upon the Magistrates of the New South Wales Local Court.

23. [99]

    Part of the plaintiff’s argument is that the ADVO had expired by the time it came before Magistrate Olischlager on 22 August 2023. If that is accepted, there was no ADVO in existence on that date and his Honour fell into what was described in a convenient shorthand as “Wass error”. So much may be accepted.

24. [100]

    The plaintiff’s contention rests on two submissions. For the reasons set out at [77]-[88], I am unable to accept the first of those submissions, namely that Magistrate Crews extended the AVO for an improper purpose, that the purported extension order was invalid and of no effect, and that the ADVO expired in accordance with its terms of 11 January 2023.

25. [101]

    The second contention relies partly on the Justice Link records of orders entered on the “court’s computerised court record system”: cf Uniform Civil Procedure Rules 2005 (NSW) r 36.11 and see, for example, Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 at [9] (Basten JA, with Ipp JA agreeing), Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252 at [26]-[27] (Allsop P, Beazley JA and Handley AJA agreeing) and Sanhueza v AAMI Limited [2010] NSWSC 1374 at [20] (Smart AJ).

26. [102]

    This is where the case had potential to take a somewhat Kafkaesque turn.

27. [103]

    The Justice Link entry for 19 December 2022 records that Magistrate Crews extended the ADVO on an interim basis “until the next court appearance”. I will return to this entry but suffice it to say that there is nothing in the transcript or the bench papers to suggest the italicised portion of that entry reflects what her Honour actually did or the orders that she made. The plaintiff did not suggest the entry was correct, only that it should be obeyed as if it were.

28. [104]

    The “next court appearance” was 30 January 2023, the date to which Magistrate Crews adjourned the case with a timetable for statements. On that date, Magistrate Chicken suggested that “representations” be made to the Prosecutor, adjourned the case until 20 March 2023 to see whether those representations were successful and said, “I’ll excuse everyone if it’s going to hearing”. The Prosecutor acceded to this course and made no submission that the order expired on 11 January 2023 or, alternatively, that it would expire on that day (30 January 2023). As to the attendance of Mr Kable and his client on the next occasion, Magistrate Chicken said:

29. [105]

    It is apparent that the parties and the Magistrate operated under the assumption that the ADVO was continuing based on the “interim” extension order made by Magistrate Crews on 19 December 2023. It seems that nobody had consulted the Justice Link entry at that stage.

30. [106]

    The transcript before Magistrate Crews on 20 March 2023 demonstrates that her Honour (the judicial officer who made the extension order) believed the ADVO remained in existence. However, there is a question as to whether the Magistrate’s “objective intention” can be established by such ex post facto statements: see, for example, Newmont Yandal Operations Pty Ltd v The J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 at [95] cited with approval in Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at [65].

31. [107]

    In the absence of Mr Kable and the defendant, Sgt Clarke submitted the order expired on 30 January 2023, “so there’s nothing to withdraw.” The Magistrate later told Mr Kable that this was the Prosecutor’s view, but Mr Kable said that he believed the order was “continued … on an interim basis.” Magistrate Crews said she was the one who continued the order, initially thought the continuation was “on an interim basis until 11 January”, but then said:

32. [108]

    The interim order to which Magistrate Crews referred was her Honour’s own order on 19 December 2022 to extend the ADVO on an interim basis.

33. [109]

    The Justice Link entry records the order made on 20 March 2023 as follows:

34. [110]

    This Justice Link entry is wrong.

35. [111]

    The order recorded in Justice Link was made earlier in the day and in the absence of the solicitor who had been excused from attendance on the previous occasion. He understood that he could provide his available dates for a hearing by email if required.

36. [112]

    Later in the day, and quite properly, Magistrate Crews revoked the order dismissing the defendant’s application. The revocation is not recorded on Justice Link. The transcript of the proceedings, and the bench sheet filled out by Magistrate Crews, both establish to the point of certainty that the earlier ex parte order was revoked. Further evidence of this lies in the fact that the subsequent order adjourning the case for hearing was effective and treated by the parties and the Court as binding; the defendant’s revocation application was heard by the Court on 22 August 2023.

37. [113]

    This plain error in the recording of the orders on Justice Link provides a stark example of the potential injustice that might be created by the slavish adherence to the orders recorded on a court’s computer system. The desirability of finality cannot be gainsaid, but it cannot override the “overriding purpose” of the Civil Procedure Act and Rules which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: Civil Procedure Act 2005 (NSW), s 56(1).

38. [114]

    For a few examples of cases where erroneous or incomplete entries in the court’s computerised record system have not been acted upon, or where greater weight was placed on other records of the court, see for example: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [151] (per French CJ, Gummow, Hayne, Heydon and Kiefel JJ), Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 at [28]-[34] (per Leeming JA, Meagher JA and Sackville AJA agreeing), cited with approval in Devitt v Ross [2018] NSWSC 1675 at [52] (per Hoeben CJ at CL).

39. [115]

    I am comfortably satisfied that the objective intention of Magistrate Crews was to vary the order so that it was extended until the Court was able to dispose of the defendant’s (validly brought) application for revocation of the ADVO. An order that the ADVO be extended until 11 January 2023 would have been a pointless one – it would have expired on that date without any order being made. The Justice Link entry that the order was extended “until the next court appearance” receives no support in the transcript of proceedings or in the notations made on the bench sheet.

40. [116]

    It follows that I am not satisfied that the ADVO had expired when the application for revocation finally came before Magistrate Olischlager on 22 August 2023. Accordingly, those grounds that assert an error of the kind discussed in the Court of Appeal’s decision in Wass (and more recently in Majumdar v DPP) cannot be sustained.

Improper purpose for revoking the ADVO

1. [117]

   I am now able to turn to the heart of the matter and consider the fundamental basis upon which the plaintiff asserts that the Local Court fell into jurisdictional error in revoking the ADVO. The argument, put succinctly in ground 2 of the summons, is that “the decision was made for the improper purpose of disengaging the restriction imposed by s 11(5)(c)” of the Firearms Act. Section 11 places a general restriction on the issue of licences under the Firearms Act. Sub-section (5)(c) provides that:

2. [118]

   The plaintiff submitted that the sole reason provided by Magistrate Olischlager in support of his decision was “to overcome the consequences of the making of the final order in relation to firearms licences.” While the plaintiff acknowledged that Magistrate Olischlager made some observations that could have militated in favour of the final ADVO coming to an end, the plaintiff contends that such observations did not support the need for that to occur by way of revocation as opposed to expiry. Consequently, the plaintiff’s position is that the sole or primary purpose of the revocation order was to enable the defendant to re-apply for a firearms licence.

3. [119]

   The plaintiff contended that such a purpose is improper because it is not consistent with the express objects of the Act, which are set out earlier, and which are concerned with the protection of people from violence. Reference was also made to the failure of the Magistrate to refer to the matters which must be considered in deciding whether to make an ADVO and in determining the length of the ADVO. Those are set out in ss 17 and 79 which relevantly provide:

4. [120]

   The defendant conceded that his purpose for making the revocation application was to preserve his eligibility for a firearms licence. However, he submitted that this purpose was not improper given the breadth of the power to vary or revoke in s 73 of the Act and the absence of an express prohibition against the revocation of a final ADVO for the purposes of obtaining a firearms licence. Reliance was also placed on the letter from the PINOP and the grounds stated in the revocation application, which were directed to the issues to be considered in making an ADVO and the objects of the Act.

5. [121]

   The fact that the defendant’s motivation or purpose in making the revocation application was to protect his interest in obtaining a firearms licence does not translate to that being the Magistrate’s purpose in acceding to that application. Nor does it establish that the Magistrate committed jurisdictional error because they revoked the ADVO for an improper purpose. Litigants can be motivated by any number of matters in seeking to protect their rights or in seeking the intervention of the courts. Those purposes or motives may be extraneous to the legislation under which they seek redress. Identification of litigants’ motivation does not prove that the court or tribunal has failed properly to exercise its jurisdiction or that it has fallen into legal error, although it may, as here, inform to some degree those questions.

6. [122]

   Rather than looking to the motivation of the defendant, the correct approach is to consider the evidence before the Local Court, the submissions advanced by the parties, and the reasons provided by the Magistrate. In a case like this one, where the matter was conducted and disposed of quickly and on the basis of limited and directed submissions, a court exercising supervisory jurisdiction and being asked to grant prerogative relief should take a fair and realistic approach to the magistrate’s reasons and decision making.

7. [123]

   I interpolate here that the defendant’s motivation was not an improper one (using that word in its ordinary sense, rather than applying its technical meaning in the context of judicial review). However, his purpose was extraneous to the objects of the Act. His solicitor candidly advised Magistrate Crews on the first mention that the application was to avoid the consequences of the ADVO on his capacity to restore his firearms licence. He did the same when the case came before Magistrate Olischlager in August 2023 for hearing.

8. [124]

   However, the application stated two grounds for revocation and neither sought to advance the contention that the ADVO should be revoked because of the implications under the Firearms Act. The grounds, set out at [17] above, were directed to the safety and the fears of the PINOP.

9. [125]

   Further, the defendant relied on the statement of the PINOP dated 5 January 2023 which is reproduced in full at [32]. The statement canvassed the incident which occurred on 29 October 2021. He said no punches were thrown, that he (the PINOP) “raised his fists” and “grabbed him”. He said he loved his dad and did not appear at court for the hearing because he did not want his father to get in trouble. He said he did not fear the defendant or feel threatened in any way. Mr Kable told the Court that the PINOP was in the courtroom supporting the revocation application.

10. [126]

    It is unclear from the record whether the Prosecutor sought to speak to the PINOP, but no submission was made by the Prosecutor to suggest that anything in the PINOP’s statement was untrue. The Prosecutor mainly directed his submissions to two issues. The first was that the Court had no power to revoke the ADVO because it had expired. The second was that the defendant was motivated “to avoid the legislative requirements that somebody who has been subject to an apprehended violence order or any violence order is prohibited from obtaining a firearms licences for 10 years.”

11. [127]

    The Prosecutor also reminded the Magistrate of the factual background to the order being made and to admissions made by the defendant that he had threatened his son with a belt. The context of those admissions, and the factual dispute that emerges from the material, was not canvassed in any detail. He also expressed concerns about the “floodgates” opening if any person subject to an ADVO decided “I can get around the purposes of parliament” by making a revocation application before the expiration of the order.

12. [128]

    Mr Kable referred to “the pathway provided under s 73” of the Act, noting that this is “what we’ve agitated with the application.” He gently rejected the suggestion of improper purpose and submitted the amendments to the Act did not prohibit a person seeking to reapply for a firearms licence from making a revocation application.

13. [129]

    I have set out the Magistrate’s ex tempore reasons in full at [57]. Considering the submissions of the parties, and the contents of the PINOP’s statement, it is not surprising that the Magistrate did not go into the detail of the background of the matter. As to the Prosecutor’s first submission his Honour said:

14. [130]

    That observation is contrary to the submission made by the plaintiff in this Court but accords with the findings I have made as to the objective intention of Magistrate Crews when her Honour varied the ADVO by extending the expiry date. The Magistrate’s analysis of the decision in Wass was not inconsistent with the subsequent and now very recent decision in Majumdar v DPP.

15. [131]

    His Honour indicated he was “mindful” of the statutory review leading to the 2016 amendments and that it removed the opportunity for defendants to make a revocation application after an ADVO expires purely for the purpose of avoiding the consequences arising under the firearms legislation. However, he also noted that:

16. [132]

    Having dealt with those issues, his Honour made explicit reference to the “objectives” of the Act and s 9, referring to the requirement of:

17. [133]

    Magistrate Olischlager went on to accept that there was a domestic relationship but found:

18. [134]

    His Honour concluded that “revocation of the AVO is not likely to impact in terms of policy objectives in relation to the safety and protection of all persons, particularly in relation to domestic relationships.” That final observation addressed the issues that were actually raised by the Prosecutor at the hearing.

19. [135]

    The provision allowing for revocation or variation is of wide import: s 73(1). The Magistrate is to decide whether “in all the circumstances it is proper” to make the order sought. That is what Magistrate Olischlager did. His Honour came to his conclusion for a variety of reasons and did so in accordance with the command in s 9(4) of the Act.

20. [136]

    For those reasons, I am unable to accept the plaintiff’s submissions to the contrary. The grounds based on improper purpose in the Local Court’s decision on 22 August 2023 must be rejected and the application for relief must be dismissed.

Some obiter remarks about the defendant’s eligibility to obtain a firearms licence and the discretionary nature of prerogative relief

1. [137]

   The following remarks are strictly obiter and form no part of my decision making.

2. [138]

   While the Magistrate’s order revoking the ADVO (and this Court’s order declining to quash it) means that the defendant is not caught by the mandatory exclusion in s 11(5)(c), it remains a matter for the Commissioner and her delegates to determine whether any application for a licence under the Firearms Act should be granted.

3. [139]

   Because I have rejected each of the grounds set out in the plaintiff’s summons, it is unnecessary to consider whether the relief sought should be refused as a matter of discretion. However, the decision whether to grant prerogative relief is always a discretionary one and there are reasons in this case why it may have been appropriate to deny the plaintiff relief even if error was established. I have not invited submissions on this issue and it would be procedurally unfair to reach a concluded view. Further, the authorities show that the discretionary refusal of relief is far less often exercised where the challenge to the decision is based on jurisdictional error: see, for example, Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [275].

4. [140]

   The matters that may have been relevant are (i) the defendant acted in good faith at all times, (ii) the Local Court was unable to deal with the application in a timely fashion despite the defendant’s solicitor urging it do so, (iii) the applications for extension of the ADVO were made because the Local Court was unable to deal with the matter before the expiry date, (iv) the Justice Link records upon which reliance was placed in submitting the order expired on 30 January 2023 did not reflect what happened in court, and (v) submissions made by the plaintiff’s representative on the first return date that the application could be dealt with after the ADVO expired and for the purpose of retaining a right to obtain a firearms licence, and (vi) the apparent failure of the plaintiff to obtain the views of the PINOP on the first return date or to speak to him when he was present at court on the last occasion.

5. [141]

   There are countervailing considerations such as (i) the defendant consented to the ADVO, (ii) he waited for about five months to seek to have it revoked, (iii) no explanation was provided for him consenting to the ADVO, and (iv) similarly, no explanation was provided for the delay in bringing the revocation application.

Conclusion and orders

1. [142]

   For the reasons set out before those observations at [137]-[141], the summons must be dismissed.

2. [143]

   I can see no reason that costs should not follow the event. However, I will allow the parties seven days to provide written submission as to any other cost order they submit would be appropriate before entering the orders (accurately and fully) on the court’s computerised record system.

3. [144]

   Subject to submissions on the question of costs, those orders will be:

   1. (1)

      Summons dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of and incidental to the proceedings in this court.