Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Franks v Franks [2012] NSWCA 209
• Hearing dates: 9 July 2012
• Decision date: 09 July 2012
• Before: Basten JA at 1; Barrett JA at 26; Hoeben JA at 27

Decision

Summons dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - procedural fairness - application for apprehended violence order before Local Court - solicitor for applicant sought but did not press adjournment - applicant alleged procedural unfairness - whether applicant was aware of time and place of hearing - whether error identified in failure to grant adjournment; PROCEDURE - apprehended violence orders - appeal from Local Court to District Court - protected person sought to appeal against ancillary property recovery order - whether ancillary property recovery order falls within expanded meaning of apprehended violence order - whether application for apprehended violence order is a criminal proceeding - whether right of appeal available - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84; Local Court Act 2007 (NSW), ss 44 and 70
• Legislation Cited: Crimes Act 1900 (NSW), s 4; Pt 15A; Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 37, 84, Pts 4, 5, 8; District Court Act 1973 (NSW), s 176; Pt 4; Local Court Act 2007 (NSW), ss 44, 70; Pts 3, 4; Supreme Court Act 1970 (NSW), s 69
• Cases Cited: Garde v Dowd [2011] NSWCA 115; Spanos v Lazaris [2008] NSWCA 74
• Category: Principal judgment
• Parties: Gregory Franks (Applicant); Brad Franks (First Respondent); District Court of NSW (Second Respondent); Attorney General of NSW (Amicus Curiae)
• Representation: Counsel: Applicant in person; Submitting appearance (First Respondent); Ms B Baker (Amicus Curiae); Solicitors: Applicant self-represented; Byrnes & Cox Lawyers (First Respondent); Crown Solicitor's Office (Amicus Curiae)
• File Number(s): CA 2011/206888

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-02-16 00:00:00
• Before: Ellis DCJ
• File Number(s): DC 2010/351248

Judgment

1 BASTEN JA: On 25 November 2010 the Local Court at Port Macquarie made an order allowing the respondent in this Court to enter identified premises to remove his personal property. The order, known as an "ancillary property recovery order" was an ancillary to an apprehended violence order made by the same Court against the respondent, in favour of his brother, the present applicant. The applicant challenges the validity of the property recovery order.

2 The applicant appealed against the property recovery order made by the Local Court to the District Court. On 16 February 2011 Ellis DCJ dismissed the appeal. There is no right of appeal from the order of the District Court and the challenge to this Court is brought in its supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW). The potentially active respondent, namely the person who obtained the benefit of the order challenged, not the Court which made the order, should be named as the first respondent. That remains so although the beneficiary of the order has in fact entered a submitting appearance.

3 Although the applicant did not put on evidence covering a number of critical aspects of the facts, including a transcript of the hearing in the Local Court and the final apprehended violence order, Ms Baker, appearing for the Attorney General as amicus, has assisted with additional material. That material included the final apprehended violence order which, on inspection, reveals that it expired on 2 February 2012 and the present proceedings are therefore moot.

4 The applicant noted that he has incurred costs which he seeks to recover if successful and submits that the Court should proceed to address the issues raised by his challenge to the order. The Court considers that it should determine the arguments relating to the validity of the impugned order. However, it will not consider factual issues sought to be raised by the applicant in argument and not relevant to the legal issues. In some respect those matters went to questions beyond the proper scope of proceedings in the supervisory jurisdiction of the Court.

5 In order to understand the scope of the challenge in this Court, it is necessary to identify the nature of the proceedings in the District Court. If they were brought in the criminal jurisdiction of that Court, dealt with in Pt 4 of the District Court Act 1973 (NSW), they are subject to the privative clause which precludes proceedings in the nature of certiorari based on error of law on the face of the record: District Court Act, s 176. A challenge is available, but it is limited to demonstration of jurisdictional error: Spanos v Lazaris [2008] NSWCA 74 at [15].

6 The source of the jurisdiction of the District Court was not addressed by that Court. The statutory right of appeal under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the Domestic Violence Act"), s 84, appears to cover apprehended violence orders only, being orders made under Pts 4 and 5 of the Domestic Violence Act. A property recovery order is made under s 37 of that Act, which appears in Pt 8. The title to Pt 8 is "Content and effect of apprehended violence orders". However, even if a property recovery order falls within an expanded meaning of apprehended violence orders, the right of appeal to the District Court by an applicant extends only to the dismissal of an application, a costs order or the variation or revocation of the order: s 84(2). These categories do not include an appeal to the District Court by a protected person who has the benefit of an apprehended violence order, but who wishes to challenge the making of a property recovery order.

7 The alternative potential avenue for appeals is to be found in s 70 of the Local Court Act 2007 (NSW). Section 70 appears in Pt 4 of the Local Court Act, headed "Special jurisdiction". The Part applies to "any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law": s 44. There are two exclusions, namely "criminal proceedings" and proceedings under Pt 3, which involves the civil jurisdiction of the Local Court.

8 Before the enactment of the Domestic Violence Act, apprehended violence orders were available under the Crimes Act 1900 (NSW), Pt 15A. Although now located in a separate Act, it is by no means clear that they should not be understood to fall within the criminal jurisdiction of the court making the order. Although the criteria on which orders may be obtained extend beyond what are defined as "personal violence offences" (s 4) the heart of the jurisdiction remains the prevention of criminal conduct.

9 Further, it may be doubted whether the power to make a property recovery order, described as "ancillary" to an apprehended violence order, and available to a court "when making" an apprehended violence order, invokes some different jurisdiction. The better view is that it does not. On that basis, there was no right of appeal to the District Court under s 70 of the Local Court Act.

10 If there had been a right of appeal to the District Court, a challenge in this Court to the order made in the Local Court may well have been incompetent: Garde v Dowd [2011] NSWCA 115 at [11]-[13]. If the District Court had jurisdiction to consider the matter on appeal, its order dismissing the appeal would have superseded the orders in the Local Court: Garde at [12].

11 The summons filed by the applicant in this Court identified the relief claimed as "orders of the Courts below be set aside in relation to the issuing of the ancillary property recovery order of 25 November 2010 in favour of Brad Franks". In so far as that order extends to a challenge to the order made by the Local Court, that challenge is available, although it should properly have been brought before a single judge in the Common Law Division. This Court is not without jurisdiction to consider the issue and should do so. The failure to join the Local Court is not fatal to a claim for such relief.

12 As it is not necessary to review the determination of the District Court, no occasion arises to consider in detail the reasons of the District Court judge in dismissing the application. Without seeking to cast doubt upon the merit of the order of dismissal, it is desirable to note that the comments made in respect of the effect of a property recovery order, the ability of the protected person to object to the recovery of specified property and the effect of such objection if taken are not beyond doubt.

13 The applicant seeks to challenge the property recovery order on the following bases, as derived from his affidavit of 24 June 2011:

(a) the order was made without the applicant being given an opportunity to oppose it;

(b) the order was not made at the time of issuing an apprehended violence order, and

(c) the order was not limited to property "needed for the day to day living or work of the defendant" or property properly identified as to which the defendant gave evidence of ownership.

14 The only reasonably arguable ground is the first. It is, in effect, a claim that the applicant was denied procedural fairness in the Local Court.

15 As the facts of the matter reveal, both in the Local Court and in the District Court, changes were made to the time at which the matter was listed for hearing. In busy courts, with rolling lists, such events are by no means uncommon. Where a party is legally represented, it is appropriate that notice be given by the Court or the other party to the lawyer representing the person, in the event of a change in the proposed time of the hearing.

16 The evidence as to what happened in the Local Court was meagre. The circumstances were not addressed by the applicant in his affidavit of 24 June 2011, filed in this Court. In written submissions, he noted that the respondent had applied for and obtained in his absence the property recovery order on 25 November 2010, "having brought the 13 December listing date forward without knowledge or consent" of the applicant.

17 The submissions for the Attorney General, who intervened as amicus in the absence of an active respondent, were based on a transcript of the Local Court proceedings, which was not in evidence. Ms Baker has, however, supplied a copy of the transcript to the Court which was relied upon by the applicant for the purposes of his submissions. In summary the transcript indicated that both parties were represented at the hearing, although the lawyer appearing for the applicant sought an adjournment to 13 December 2010 to allow the lawyer handling the case for the applicant, who was then in Coffs Harbour, to attend to run the matter. The applicant was not present and, although the adjournment was requested, it was not on the basis of the applicant's absence. It appears that the application for an adjournment was not determined, but the magistrate proceeded to hear evidence from the respondent and argument from both the solicitor for the applicant and the solicitor for the respondent as to whether a property recovery order should be made. The solicitor for the applicant indicated that his client opposed the order on the basis that none of the property identified in the respondent's application was on the premises in respect of which the order was sought. There was, however, evidence from the respondent that he left property in the house which he said was still in the house as at January 2010, some 10 months before the proceedings. He was cross-examined by the solicitor for the applicant.

18 The fact that the applicant was represented at the hearing before the Local Court, by a solicitor who had sufficient knowledge of the matter to tell the Court of the applicant's instructions and the basis of his opposition to the order indicates two things. First, it demonstrates that the applicant was aware of the application for the order and had given some instructions in respect of it. Secondly, the presence of the solicitor indicates that he at least was aware of the time and place of the hearing.

19 In these circumstances, although an adjournment was sought, it appears not to have been pressed and the matter was addressed on the merits. No relevant error was identified in the failure of the magistrate to grant the adjournment. The complaint of procedural unfairness was therefore not made good.

20 In respect of the second ground, it is clear from the record that the first interim apprehended domestic violence order, made on 18 November 2010, included a notice to the respondent to attend the Local Court on 25 November 2010 at 9.30am at Port Macquarie. That was the date on which the property recovery order was made. However, it was also the date upon which a further interim apprehended domestic violence order was made. It was in that order that the Local Court directed that the defendant attend on 13 December 2010. The applicant submitted that an interim apprehended violence order made on 12 November 2010 did not require the making of a further interim order on 18 November and that, therefore, the order made on that day was invalid. However, the earlier order was not in evidence and there is no reason to conclude that it was not superseded by the later order. It was therefore not correct to say that the property recovery order was not made "when making ... an interim apprehended domestic violence order" as required by s 37(1). The second ground is factually misconceived and must be rejected.

21 The third ground seeks to identify factors which must be satisfied before the power to make a property recovery order is engaged. However, s 37 of the Domestic Violence Act contains no such requirements for the making of an order. It is sufficient for the making of such an order that "the defendant has left personal property at premises which the protected person occupies": s 37(1)(b). The magistrate was satisfied as to that fact. The word "left" does not demand that the property was left by the defendant "as a result of a domestic violence incident", as asserted by the applicant. Nor is such an order restricted to personal property "needed for the day to day living or work of the defendant", as asserted by the applicant.

22 There was evidence before the magistrate that identified property had been left on the premises by the respondent. That was sufficient to warrant the making of the order. There is no substance in the third ground.

23 It follows that the application for judicial review must be dismissed.

24 The respondent filed a submitting appearance in this Court. There is no suggestion that he has incurred any recoverable costs and it is not, therefore, appropriate to make an order in his favour. The Attorney General has appeared with leave of the Court as amicus, and has provided assistance to the Court, particularly in respect of matters of statutory construction which, for the reasons given above, involved an unfortunate level of uncertainty and complexity in what should be a straightforward procedure with respect to appeals from the Local Court in proceedings in which parties may often appear in person. The assistance is appreciated by the Court, but the Attorney, properly, does not seek an order for costs. There should therefore be no order as to the costs of the proceedings in this Court.

25 The summons should be dismissed.

26 BARRETT JA: I agree.

27 HOEBEN JA: I agree with Basten JA.

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Decision last updated: 12 July 2012