Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

The power in s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to "vary or revoke" an order is confined to unexpired orders. That construction accords with the natural meanings of "vary" and "revoke", the use of "revoked" elsewhere in the Act, the structure and legislative history of former s 72(5)-(8), and the purpose of the 2016 amendments to prevent applications to revoke expired apprehended violence orders. The Local Court was correct to dismiss Mr Wass' application and the District Court was correct to dismiss the appeal, although for different reasons.

Jurisdiction
Australia
Judgment Date
20 April 2023
Procedural Posture
Judicial Review and Appeal Concerning Refusal to Revoke an Expired Apprehended Violence Order / Court of Appeal Decision on Amended Summons and Extension of Time for Filing Appeal
Outcome
Amended summons dismissed in 2022/273744; extension of time for filing the appeal refused in 2023/39132, with the result that the summons filed 2 February 2023 was dismissed; no order as to costs in either proceeding.
Legal Topics
['jurisdictional Error' 'apprehended Violence Orders' 'revocation of Expired Orders' 'legislative Purpose' 'firearms Permit Consequences' 'extension of Time']
['administrative Law' 'statutory Construction' 'criminal Law' 'domestic and Personal Violence'] ['jurisdictional Error' 'apprehended Violence Orders' 'revocation of Expired Orders' 'legislative Purpose' 'firearms Permit Consequences' 'extension of Time']

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Procedural Posture

Judicial Review and Appeal Concerning Refusal to Revoke an Expired Apprehended Violence Order / Court of Appeal Decision on Amended Summons and Extension of Time for Filing Appeal

Legal Issues

  1. 1 ['Whether a person who has been subject to an apprehended violence order can apply to the Local Court for revocation after the order has expired.' 'Whether relief should be withheld despite conceded jurisdictional error by the District Court because the District Court reached the correct conclusion.' 'Whether the words "at any time" in s 72A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) authorised applications to revoke expired apprehended violence orders after the 2016 amendments.']

Ratio Decidendi

The power in s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to "vary or revoke" an order is confined to unexpired orders. That construction accords with the natural meanings of "vary" and "revoke", the use of "revoked" elsewhere in the Act, the structure and legislative history of former s 72(5)-(8), and the purpose of the 2016 amendments to prevent applications to revoke expired apprehended violence orders. The Local Court was correct to dismiss Mr Wass' application and the District Court was correct to dismiss the appeal, although for different reasons.

Court Disposition

Amended summons dismissed in 2022/273744; extension of time for filing the appeal refused in 2023/39132, with the result that the summons filed 2 February 2023 was dismissed; no order as to costs in either proceeding.

Orders

  • ['In 2022/273744: Amended summons filed 2 February 2023 dismissed.' 'In 2022/273744: No order as to costs, with the intention that the parties bear their own costs.' 'In 2023/39132: Refuse the extension of time for the filing of the appeal, with the result that the summons filed 2 February 2023 be dismissed.' 'In...