Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock

1. [1]

   BELL CJ: I agree with the reasons of Leeming JA and the orders his Honour proposes. I also agree with his Honour’s observations in relation to the skill with which the arguments on both sides were developed and defended under extensive questioning from the Bench. I would also endorse Leeming JA’s observations at [62] as to the desirability of legislative clarification of Division 5 of the Act.

2. [2]

   LEEMING JA: Stripped of their procedural complexity, these two capably argued proceedings resolve to a single point: can a person who has been the subject of an apprehended violence order apply to the Local Court for its revocation after it has expired? The plaintiff/applicant, Mr Robert MacDonald Wass, did just that, because he was not permitted to hold a licence to possess a firearm if an unrevoked order had been made against him in the last decade. There is no doubt that, after the amendments effected by the Crimes (Domestic and Personal Violence) Amendment Act 2008 (NSW) and until the commencement of those effected by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW), he was entitled to make such an application. There is also no doubt that the review mentioned in the short and long titles of the 2016 statute recommended that such applications should no longer be permitted, and that one purpose of the statute was to give effect to that recommendation. Nor is there any doubt that previous provisions (subsections (5)-(8) of s 72) which had been introduced in 2008 so as to authorise such applications were omitted. After the 2016 amendments, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) continued, however, to provide that an application to vary or revoke an order may be made “at any time”: s 72A read with s 72 of the pre-amended Act. Mr Wass principally relied upon these provisions as the basis of his argument. The issue is whether, contrary to the review and contrary to what the Attorney General told the Chamber, the Act continued to authorise such applications, notwithstanding the removal of subsections (5)-(8) of s 72. Indeed, on the construction propounded by Mr Wass, such applications rather than being forbidden have in fact been facilitated by the amendments. If Mr Wass is correct, then the statute has signally failed to achieve its stated purpose.

3. [3]

   Both sides acknowledged that the issue did not turn on the “plain meaning” of the current form of the statute. This then is a case which confirms the “modern approach to interpretation” which “insists that the context be considered in the first instance” (K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48) and the general proposition that whether language is plain and unambiguous is a conclusion which can only be reached after regard to context and purpose. Thus all members of the High Court acceded to the proposition in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 that “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. This has been orthodoxy since the 1980s, and has consistently been applied. For example, it was recently observed in this Court that that “The statutory context, encompassing legislative purpose and history, sometimes requires the literal or ordinary meaning of words to be read more narrowly than they may, on a first review and when regard is had solely to the text of the legislation, appear to be appropriate”: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [57].

4. [4]

   There is one respect, however, in which this is a very unusual case. Courts are well used to applying a contextual approach whereby weight is given to the legislative purpose, sometimes encapsulated in Lord Diplock’s metaphor, deployed by counsel during the appeal, that “if the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”: Lord Diplock, “The Courts as Legislators” in Brian W Harvey, The Lawyer and Justice (Sweet & Maxwell, 1978) 263 at 274. But if Mr Wass’ construction is accepted, this is not merely a case of the target being missed. This is a case where the legislation has backfired, facilitating the very thing of which it was the legislation’s purpose to abolish.

5. [5]

   All of that said, courts may not rewrite a poorly drafted statute merely because it fails to achieve a clearly stated purpose. The question remains one of construction of the text enacted by the Legislature. The real question arising in this litigation is whether it is possible and appropriate and in accordance with principle to give a legal meaning to the amended statutory text which more closely accords with its purpose than what might be suggested by the literal meaning of the words “at any time” in s 72A.

Factual background

1. [6]

   Mr Wass entered a guilty plea to a charge of common assault contrary to s 61 of the Crimes Act 1900 (NSW) in the Local Court at Warren. The complainant was his nephew, who, according to the facts sheet tendered without objection, was hunting for pigs on Mr Wass’ property without permission. Mr Wass punched his nephew in the face. The latter retaliated in kind. On 30 November 2018, the Local Court dealt with the matter without recording a conviction but imposed a conditional release order for a period of 12 months.

2. [7]

   The offence of common assault to which Mr Wass pleaded guilty was a “personal violence offence” for the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (s 4), and therefore a “domestic violence offence” (s 11(1)), in light of the fact that uncle and nephew are “relatives” for the purpose of s 6 and therefore are taken by s 5 to be in a “domestic relationship”. Consequently the offence was taken to be a “serious offence” (s 40(5)(b)), and pursuant to s 39(1A) the Local Court was obliged to make a final apprehended violence order, subject to s 39(2) which provided that the Court need not make such an order “if it is satisfied that it is not required (for example because a final apprehended violence order has already been made against the person)”. The legal practitioner appearing for Mr Wass was asked and indicated that he did not wish to be heard against the making of the order.

3. [8]

   The order made by the Court prohibited Mr Wass from assaulting, threatening, stalking, harassing or intimidating his nephew, or intentionally or recklessly destroying or damaging any of his property. The duration of the order was 12 months.

4. [9]

   There were no breaches of the order. Around two years later, by application dated 9 October 2020, Mr Wass applied to the Local Court to revoke the order. The grounds of that application were treated by the Crown as being evidentiary and undisputed. They explained that at the time of the assault Mr Wass was 60 and had no criminal history, that there had been no contact between himself and his nephew subsequently, that the circumstances which led to conflict between himself and his nephew no longer existed, that he had previously held a licence under the Firearms Act 1996 (NSW) which authorised him to hold registered firearms used for the destruction of vermin on his farming and grazing property and the management of livestock, and that he had surrendered his firearms to police. He said that the effluxion of time, the change of residence of his nephew, and his ongoing need to properly manage his property were reasons to revoke the order.

5. [10]

   The point of the application was to engage the exception in the closing words of s 29(3)(c) of the Firearms Act:

6. [11]

   The application was dismissed by the Local Court on 14 July 2021. The Magistrate gave an ex tempore judgment, which referred to her Honour’s view that it had originally been necessary to insert subsections (5)-(8) of s 72 into the Act in order to allow an expired order to have applications made in respect of it, the clear intention of the 2016 statute was to remove the specific provisions which permitted application to be made in respect of expired orders, and that the enactment of ss 72A and 73 in general terms “does not in any way in my view suggest that it was intended by those general provisions to reinsert a specific power to apply to have expired orders removed, particularly when at the same time the legislature chose to remove the specific provisions applying to expired orders”. Her Honour concluded that “the present [A]ct allows revocation or variation applications only in respect of orders that are still on foot, not orders that have expired”.

7. [12]

   On that basis, the revocation application in the Local Court was dismissed.

8. [13]

   Section 84(2)(d) of the Crimes (Domestic and Personal Violence) Act gives a right of appeal to the District Court to “a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order”. Mr Wass exercised that right by notice of appeal filed on 6 August 2021. There was a hearing on 21 March 2022, and her Honour’s reasons record that the Crown made two submissions. One was “that the ordinary meaning of ‘revocation’ … [conveyed] an implied assumption that in order to revoke there must be something in existence”. The other was that “at any time” contained a latent ambiguity and had to be read as confined to at any time prior to the expiry of the order. Her Honour accepted the second submission:

9. [14]

   No further appeal lies from the District Court. Mr Wass filed a summons in this Court’s supervisory jurisdiction, seeking to quash the orders of the District Court and have his undetermined appeal remitted to that Court.

10. [15]

    More recently, in February 2023, Mr Wass filed an appeal from the Local Court decision, purportedly under ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW). In accordance with an indication from the Court of Appeal Registrar, that appeal was removed to this Court and heard and determined concurrently with the summons.

Procedural background

1. [16]

   It is possible to address the procedural complexities concisely because of appropriate concessions made in advance of the hearing by the Director of Public Prosecutions (NSW), who was the active respondent in both proceedings, having taken over the conduct of the appeal pursuant to s 10 of the Director of Public Prosecutions Act 1986 (NSW).

2. [17]

   There was no opposition to the extension of time for Mr Wass’ application for judicial review of the judgment of the District Court confirming the Local Court’s decision that his application was not permitted. Further, it was conceded that the District Court fell into jurisdictional error by reading additional words qualifying “at any time” into the new s 72A of the Crimes (Domestic and Personal Violence) Act. The issues arising on the summons seeking judicial review, therefore, are whether the error conceded on the part of the District Court was immaterial, or alternatively, whether as a matter of discretion, no relief should issue, in either case because, on its true construction, the Court was correct to dismiss the appeal and Mr Wass’ application was not authorised by the statute.

3. [18]

   Mr Wass’ appeal gives rise to separate procedural problems. It is very substantially out of time, but the Director does not oppose it on that basis. The Director however maintains that the operative decision is, until such time as it is quashed by order of this Court, that of the District Court, so that the appeal is incompetent. Against this, Mr Wass points to the qualification in Wishart v Fraser (1941) 64 CLR 470 at 483; [1941] HCA 8 that that rule applies only until the court exercising supervisory jurisdiction is satisfied that the inferior court’s order was made without jurisdiction and is therefore “totally void”, which state of satisfaction will readily be reached having regard to the Director’s concession of jurisdictional error. Next, the Director says that Mr Wass had a single route of appeal, namely the full de novo appeal to the District Court conferred by s 84(2)(d), rather than a choice between that appeal and an appeal to the Supreme Court, on the basis that the specific grant in s 84(2)(d) excludes the general right under the Crimes (Appeal and Review) Act. Next, if that be wrong and there are two alternative routes, the Director says that Mr Wass made an election and is bound by the course he has taken since August 2021. In response, Mr Wass seeks leave to discontinue his pending, undetermined appeal to the District Court.

4. [19]

   On the view I take, it is unnecessary to determine any of those procedural complexities. Although some are not without interest, I have also concluded that it is inappropriate to determine them. The facts are highly unusual. Not commonly will there arise a decision of the Local Court on a pure question of law, which has been the subject of an appeal to the District Court in respect of which there is a concession of jurisdictional error and a preparedness to discontinue. Although I am conscious of the care not to mention ingenuity underlying Mr Wass’ response to the procedural complexities, this is an appropriate case to adhere to “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76]. The real issue in this appeal is the construction of the statute and, on the view I take, that is dispositive of the entirety of the litigation.

The construction of Division 5

1. [20]

   Division 5 of Part 10 of the Crimes (Domestic and Personal Violence) Act is titled “Variation or revocation of final apprehended violence orders or interim court orders”. Section 72 defines “application” to mean, for the purposes of that Division, “an application for the variation or revocation of a final apprehended violence order or interim court order”. The principal substantive provisions in the Division are ss 72A, 72C and 73. (Sections 72B and 72D address the case where the protected person is a child, s 74 deals with the case where there are more than one protected person, and s 75 deals with the case where a person is found guilty of an offence and empowers the court to vary the order for the purpose of providing greater protection. No party contended that any of these provision were relevant to the issues in the present case.)

2. [21]

   In their present form, and in the form they took when the appeal to the District Court was commenced and heard, the salient provisions in the Division were as follows:

3. [22]

   Mr Wass’ submissions had the attraction of simplicity and concision.

4. [23]

   Section 72A(1) expressly authorises an “application” to be made to a court “at any time”. It was agreed that those latter words bear their ordinary meaning, and extend to a time after the order has ceased to be in force. The “application” referred to in s 72A bore the same meaning as the definition of that term in s 72, which included an application for the revocation of a final apprehended violence order. Thus, so it was said, the application could be heard and determined at any time. There was no dispute that Mr Wass continued to be affected by the expired, unrevoked order, by reason of s 29(3)(c) of the Firearms Act.

5. [24]

   Submissions were also made in respect of the regime in subsections (7), (8) and (9) of s 73, which addresses applications made shortly before the expiry of an order, with a deemed extension of the operation of the order in the meantime. On the one hand that might be thought to point towards an implication that applications had to be made prior to an order’s expiry. On the other hand, it might merely favour the conclusion that there was a different interim regime during the pendency of an undetermined application depending on whether it was made before or after expiry. I consider that no inference can safely be drawn either way from those subsections.

6. [25]

   Read acontextually, Mr Wass’ submission, based on the definition of “application” and the authorisation to make an application “at any time” in s 72A(1), is very powerful. But courts must have regard to context in the first instance. Further, the command in s 33 of the Interpretation Act 1987 (NSW) to prefer a construction which would promote the purpose or object underlying the Act, over a construction that would not do so, requires one to pause before acceding to the submission that the plain meaning of the current form of the provision is unambiguous.

7. [26]

   The regime which obtained between 2008 and 2016 was quite different. It was replete with references to applications for revocation of orders after they had expired, and as has been seen this was central to the reasons of the Magistrate and the District Court judge, as well as to the Director’s submissions in this Court.

8. [27]

   Division 5 of Part 10 of the Act in the form it took prior to the 2016 amendments included s 72 and, so far as is relevant, s 73 as follows:

9. [28]

   It will be seen that four subsections, namely, subsections (5)-(8) of s 72, addressed applications for revocation even though the order had expired in terms. In particular, s 72(6) prescribed a necessary test (if the court is satisfied that, “were [the] final order still in force, it should be revoked”) when application was made for the revocation of a final apprehended violence order that had expired.

10. [29]

    Subsection (8) also required the court to have regard to the effect that revocation of the expired order might now have on the protected person, having regard to the grounds on which it was made, and further, authorised the court to make orders precluding further applications to revoke without leave. The legal effect of former s 72(8) may be summarised thus: in the particular case of a revocation application being made in respect of an order which had expired, there was (a) a special obligation to notify the Commissioner of Police, (b) a special Peko-Wallsend mandatory relevant consideration, being the effect on the protected person, and (c) a special power to deny, for a stated time period, the entitlement of persons to apply to the court.

11. [30]

    Those four subsections were not re-enacted in 2016. If as Mr Wass submits the amended legislation nonetheless permits such applications to be made, it is clear that there is no longer the special requirement to notify the Commissioner of Police, nor the special mandatory relevant consideration, nor the special power to deny repeat applications. The consequence is that in some respects, the effect of the amendments on the construction propounded by Mr Wass was to liberalise the circumstances when an expired order might be revoked. As it was candidly put in argument:

12. [31]

    Subsections (5)-(8) were introduced by the Crimes (Domestic and Personal Violence) Amendment Act 2008 (NSW). However, they were not a government measure, and were not found in the Bill as introduced or the explanatory memorandum. They were included by way of an amendment propounded in the Legislative Council by (what was then known as) the Shooters Party. The Hon Roy Smith said when introducing the proposed new subsections in committee:

13. [32]

    The non-opposition of the Government was said to come as a surprise to one member of the chamber, who said that she had been told the previous day it was opposed. She called, repeatedly, for the Attorney General to explain, and on the second occasion he did so, saying that “At the moment, once an apprehended violence order is granted, one is able to seek to have it revoked at any time during the duration of the order”, and that “The proposal that has been put forward will enable the court to hear an application after the expiration of the apprehended violence order”: Hansard, above, at 12598.

14. [33]

    It is tolerably clear that the purpose of the amendments which introduced subsections (5)-(8) of s 72 was to authorise applications to revoke expired orders, something which had not previously been considered to be possible.

15. [34]

    The extrinsic materials leading to the enactment of the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 which repealed the measures inserted in 2008 are equally unequivocal.

16. [35]

    The long title of that statute was “An Act to make miscellaneous amendments to the Crimes (Domestic and Personal Violence) Act 2007 and Chapter 9A of the Coroners Act 2009 (NSW) to give effect to the recommendations arising from the statutory reviews of that Act and Chapter; and for other purposes”. The reference to a “statutory” review was a reference to s 104 which required the Minister to review the Act “to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives”. The review was required to be undertaken as soon as possible after 3 years from the date of assent, and was to be tabled in each House of Parliament.

17. [36]

    The review was titled, informatively if unimaginatively, Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It was undertaken by “Justice Strategy and Policy” within the Department of Justice. It was preceded by a Discussion Paper which raised a number of issues, including:

18. [37]

    The Review contained as Recommendation 12:

19. [38]

    The reasons for that recommendation were articulated at [5.39]-[5.47] of the review. Those paragraphs are in the following terms (footnotes omitted):

20. [39]

    Other stakeholders supporting the removal of the ability to apply to revoke an expired order footnoted at [5.43] were NSW Family and Community Services, Redfern Legal Centre, Women’s Domestic Violence Court Advocacy Service Network, Women’s Legal Services, Hawkesbury Nepean Community Legal Centre, Manly-Warringah Women’s Resource Centre and Legal Aid NSW. Other stakeholders supporting the retention of the ability to apply to revoke an expired order footnoted at [5.46] were Elizabeth Evatt Community Legal Centre, NSW Young Lawyers and Victims’ Advisory Board.

21. [40]

    When the legislation was introduced to the Legislative Assembly, the Attorney General (who had carriage of the Bill) addressed the topic of revoking an expired order in some detail as follows:

22. [41]

    The Explanatory Memorandum accompanying the Bill stated the following:

23. [42]

    It is perfectly plain that the repeal of subsections (5)-(8) of s 72 reflect recommendation 12. It is also perfectly plain that the authors of the review, and those propounding the Bill, did not consider that the effect of removing those subsections but leaving in place words equivalent to former s 72(1) (“An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order”) might be apt to be read so as to authorise the making of an application to revoke an order after it has expired. I did not understand Mr Hooke ultimately to contest that in this respect there was a serious mistake on the part of the drafters:

24. [43]

    It was also said on behalf of Mr Wass that the 2016 statute did not fully implement the statutory review. He drew attention to the reference in [5.47] to a limited discretion to be inserted into the Firearms Act, which has not occurred. I do not see how this detracts from the purpose to be attributed to the 2016 statute. The failure to amend the Firearms Act did not undermine or qualify the conclusion that the purpose of the 2016 statute was to prevent applications to revoke orders which had expired.

25. [44]

    It is easy in light of the history to see why those involved in the preparation of the statutory review and the enactment of the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 may have regarded the removal of subsections (5)-(8) as sufficient to implement the recommendation to prevent applications being made to revoke expired orders. Those were the provisions inserted following acceptance of the amendment in 2008 propounded by the Shooters Party, on the basis that those amendments had been necessary in order to apply to revoke an expired order.

The construction of the legislative text

1. [45]

   But it is necessary in light of the purposes disclosed in the materials summarised above to return to the text in order to resolve its legal meaning. It is necessary, in order to comply with s 33 of the Interpretation Act, to prefer a meaning which promotes the legislative purpose.

2. [46]

   In response to Mr Wass’ submissions, the Director advanced two constructions, both of which were intended to reflect the command in s 33 of the Interpretation Act to give a construction which would promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object.

3. [47]

   The first, and primary, construction was for the reference to “final apprehended violence order” in s 73(1) to mean an “operational” order – being an order which had not expired. The difficulties with that construction were pointed out with considerable skill by her opponent. The most substantial difficulty, to my mind at least, is that an order is “operational” in two distinct senses. The criminal consequences which attach directly to the breach of an order before its expiry (which in many cases impose a duty upon the Court to impose a sentence of a term of imprisonment: see s 14(4)) apply only during the duration of the order. However, the order remains “operational” in a real sense for Mr Wass for the nine years following its expiry, by reason of the effect it has denying his capacity to apply for a firearms licence. It is not necessary to summarise the other difficulties confronting this construction.

4. [48]

   Alternatively, the Director focused upon the word “revoke”. She submitted that it was only possible to “revoke” an order while it remained in force. A number of textual and contextual considerations favour that construction.

5. [49]

   First, this construction conforms with the use of the word “revoke” elsewhere in the statute. Interim and provisional orders remain in force until they are revoked or until a final order is made or the application is withdrawn. That is the force of ss 24 and 32 of the Act. Section 24 provides:

6. [50]

   Section 32 is in substantially identical terms but is applicable to provisional orders. Both provisions proceed on the basis that the order to be “revoked” under s 24(1)(a) or s 32(1)(a) must be one which had hitherto been in force. In neither of those sections is the word “revoke” used to apply to an order which has expired.

7. [51]

   Section 79 deals with the duration of final apprehended violence orders. It provides:

8. [52]

   The effect of the first three subsections is that the order remains in force for the period specified in the order, in lieu of which for 12 months. The fact that those time periods are subject to the power conferred by s 73 is consistent with the conclusion that the s 73 power to vary can be exercised to extend the period during which an order remains in force, and the s 73 power to revoke can be exercised to reduce the period during which the order remains in force. If the s 73 power to revoke were confined to the revocation of orders which remained in force, that would sit easily with the operation of s 79(4) being subject to s 73. This is not however decisive, for the fact that one provision is “subject to” another does not mean that the two make different provision in respect of the same subject matter; it merely entails which is to prevail in the event that there is conflict. As Megarry J pointed out in C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911; [1973] 2 All ER 513 at 520, “[w]here there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail”: see also Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 580; [1997] HCA 38.

9. [53]

   Secondly, a construction that the power to “revoke” is confined to orders which are in force also makes sense of former subsections (5)-(8) of s 72, in particular subsection (5). Mr Wass was forced to the submission that, under the earlier form of the legislation, subsection (5) was enacted for the avoidance of doubt, because on his preferred construction, former subsection (1) authorised applications to revoke an expired final apprehended violence order. That is of course possible, but telling against that is that it is “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71], quoting Griffith CJ in Commonwealth v Baume (1905) 2 CLR 405 at 414; [1905] HCA 11, and see also State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [57(4)]. Also telling against that construction is the purpose of the 2008 amendments.

10. [54]

    Thirdly, it is natural to read the power in s 73 to “vary or revoke” as applying to the same object. But does it make sense to “vary” an order which has expired? This was raised during submissions:

11. [55]

    I do not think that the unlikelihood of a court’s being satisfied that “in all the circumstances it is proper to do so” is an especially attractive answer to the question. A better construction of s 73 is that power is only given to “vary” orders which have not expired. That supports the construction that power is also only given to “revoke” orders which have not expired.

12. [56]

    Fourthly, that construction accords with at least some of the ordinary meanings of “revoke”. One speaks of revoking parole, or revoking bail, or revoking an offer at any time prior to its acceptance, in circumstances where the act of revocation will have immediate legal consequence upon the right or entitlement enjoyed immediately beforehand pursuant to the grant of parole, or the grant of bail, or the offer which was capable of acceptance. One does not speak of revoking parole or bail after the grant of parole or bail has ceased to entitle the person to conditional liberty. One does not speak of revoking an offer which is no longer capable of acceptance – or, if one does, one does so only out of an abundance of caution because there is a chance that the offer is capable of acceptance.

13. [57]

    True it is that there are contexts in which the meaning of the word “revoke” is different. However, limited assistance is to be derived from the authorities collected in Deputy Commissioner of Taxation v Armstrong Scalisi Holdings Pty Ltd [2019] NSWSC 129; 343 FLR 374 at [137]-[145], not merely because they were in a revenue context, but also because the legislation made it clear that “where an estimate is revoked it is taken never to have been made”: see at [142].

14. [58]

    Fifthly, this construction promotes the purpose of both the 2008 and, especially, the 2016 amendments.

Conclusion and orders

1. [59]

   For those reasons, I conclude that this is a case where the power to “vary or revoke” an order is to be construed as confined to a power to vary or revoke an unexpired order. That accords with natural meanings of “vary” and “revoke”. It is consistent with the use of “revoked” in ss 24 and 32 in circumstances where the order must necessarily be in force immediately before it is revoked. It avoids the awkwardness of former s 72(5) being otiose or enacted for the avoidance of doubt. It accords with the explicitly enunciated purpose in the statutory review and the extrinsic materials in 2016, and it also accords with the explicitly enunciated purpose of the amendments in 2008.

2. [60]

   Accordingly, the Local Court was correct substantially for the reasons it gave to dismiss the application, and the District Court was correct to dismiss the appeal, although for different reasons than were given. In the absence of any material error, the amended summons must be dismissed, and there is no occasion to extend the time within which the appeal is to be brought.

3. [61]

   The respondents did not seek their costs. I would not in any event have favoured burdening Mr Wass with the costs of the Commissioner for Police. In part that is because of the principles stated in Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118, it not having been established that there was any conflict of interest between the Commissioner and the Director, and thus no occasion for the unsuccessful party to bear two sets of costs. In part that is because despite being given the opportunity to do so, the Commissioner gave no explanation of why a submitting appearance had not been filed, or why she had declined to serve written submissions in advance of the hearing.

4. [62]

   There is one final point. The Crimes (Domestic and Personal Violence) Act is important. Numerous applications are made under it every day in New South Wales. There must be many thousands of people affected by its operation. As the submissions summarised in the statutory review show, the power to revoke orders under the Act which have expired is contentious. There ought to be no doubt about whether or not that power exists, and it should not be necessary to read this Court’s judgment in order to answer that question. If the conclusion I have reached is wrong, it would be easy for the Legislature to clarify the position. But even if the conclusion I have reached is right, I would respectfully suggest that the statute be clarified so that the thousands of people affected by this legislation need not read this judgment in order to understand the position. It would suffice to include a provision “For the avoidance of doubt, an application to revoke an order may not [or may] be made after the order has expired.”

5. [63]

   I propose the following orders:

6. [64]

   KIRK JA: I agree with Leeming JA.