Wass v Director of Public Prosecutions (NSW) & Ors [2023] HCATrans 171 (21 November 2023)

Last Updated: 22 November 2023

[2023] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S57 of 2023

B e t w e e n -

ROBERT MACDONALD WASS

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

First Respondent

DISTRICT COURT OF NSW

Second Respondent

LOCAL COURT OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

GAGELER CJ
GORDON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 21 NOVEMBER 2023, AT 12.28 PM

Copyright in the High Court of Australia

____________________

GAGELER CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. HOOKE, SC appears with MR R.A. SCHONELL for the applicant. (instructed Peacockes Solicitors)

MR D.T. KELL, SC appears with MS J.E. DAVIDSON for the first respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ: There are submitting appearances for the second and third respondents. Mr Hooke.

MR HOOKE: May it please the Court. Your Honours, we require a short extension of time that I apprehend is unopposed. Would your Honours wish to deal with that ‑ ‑ ‑

GAGELER CJ: Yes, you can have your extension of time.

MR HOOKE: ‑ ‑ ‑ at the end of the matter? May it please the Court.

GAGELER CJ: No, you can have your extension of time. Proceed to the argument.

MR HOOKE: Thank you, your Honour. Your Honours, this case, as you have seen, presents a crisp and short question of statutory construction but one that is of wide and frequent engagement – as explained by Justice Leeming in paragraph 62 of his Honour’s reasons – and in respect of a range of people in various occupations that we have described, by way of example, at paragraph 18 of the application for special leave.

As your Honours have also seen, the procedural complexities before the Court of Appeal have fallen away and it is only the proceeding in respect of judicial review of the decision of the District Court that is the subject of the proposed appeal. Although expressed in two limbs, the proposed grounds are, in practical terms, a

single ground and, as we say, present a short and clean point – there being no factual matters in issue.

GAGELER CJ: What do you say is the point, Mr Hooke?

MR HOOKE: The point, your Honour, is that the tension between text and context and the way in which, in our submission, the Court of Appeal has subordinated the statutory text to matters of historical context and extrinsic materials. There is a related aspect to that in relation to the question of statutory context, in a way that I will explain to your Honours shortly, which is that there was a substantive submission made that subsections (7) and (8) in particular, of the current section 73, cast significant contextual light on the true construction of section 72A(1), which, of course, is the provision that provides for an application to be made at any time.

The way that Justice Leeming dealt with that was to say section 72(7) and (8) could operate in one way that tells in favour of the respondents’ construction, on the other hand it could tell in a different way in favour of our construction. Without then proceeding to construe subsections (7) and (8), his Honour contented himself by saying he did not think it was safe to draw an inference either way. In our submission, the process of statutory construction through context is not a matter of drawing an inference, it is a matter of construing the statute as a whole, in its context, for the purpose of ascertaining the true construction of the provision under consideration.

We say that even if statutory context be primary, ahead of the statutory text, and, for that matter, even if it only falls into play at a secondary stage after one has considered the statutory text, the process of ascertaining statutory context broke down because of the failure to construe those signal provisions in subsections 73(7) and (8). That is the way in which we put the argument in short form. Your Honours, of course, have seen the comparative provisions before and after the 2016 amendments, and we do not shy away from the fact that there were repeals of provisions which dealt in terms with applications to revoke or vary orders that had expired, and we do not ‑ ‑ ‑

GAGELER J: And you do not shy away from the parliamentary intention that is apparent from the extrinsic material?

MR HOOKE: No, but what we say is significant in that context is that something that is missing from Justice Leeming’s reasons, with respect to his Honour, is any mention of Alcan v Commissioner of Territory Revenue, which your Honours will recall, at paragraph 47, said this:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.

Now, that becomes important in circumstances where, as we say, there was a submission made in relation to the significant informative force of the current section 73(7) and (8), which was not construed. Rather, it was just treated as a matter from which an inference could not be drawn either way. In an effort to make that contention good, can I move directly to it. Your Honours will find extracts of the current form of the legislation, conveniently set out in Justice Leeming’s reasons at application book 58, in paragraph 21. Your Honours see section 72A(1):

An application may be made to a court at any time.

Now, an application is not just an application for revocation, it is also an application for variation. That is in section 72, which your Honours will see reproduced at page 91. What follows is relevant both to revocation applications and variation applications. In passing, we note section 72C, which provides that the Commissioner of Police must be served with an application where the police have initiated the order. That is part of an answer to Justice Leeming’s concern that the safeguards or hurdles contained in the form of section 72(8) were absent from the new provisions re-enacted. At section 73(1), your Honours see the power:

The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order.

Then, subsection (3), which is also relevant to Justice Leeming’s concern about the form of 72(8), provides the Court with power to:

decline to hear an application . . . if the court is satisfied that there has been no change in the circumstances –

Subsection (5) provides that:

A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant.

That assumes some importance when moving to subsection (7), where your Honours see that:

Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire.

The submission we put to the Court of Appeal, and which in our respectful submission is important, is that what that subsection does is it creates two regimes: one in respect of an application that is made before the day of expiration of the order, of the apprehended violence order; and another regime that is requiring notice where the application is made on a date later than that. Unless the improbable circumstance is that Parliament was setting up a separate regime solely to apply to applications filed on the day of expiration of the order, that provision, in our submission, tells of Parliament envisaging applications to vary, being filed after the expiration of the order.

GAGELER CJ: Not unless you read subsection (8).

MR HOOKE: I was going to next come to subsection (8), because subsection (8) does a similar thing. It provides for separate regimes in relation to the continuation of an order. If the application for extension of an order – which is a variation – is made before the order expires, in that circumstance the order is taken to continue in force until the application is dealt with by the court without there being any further order made. What it does, in our submission, is create, again, a separate regime for applications that are made after the order has expired. In which event, there is not an automatic continuation in force without further order of the court.

GAGELER CJ: Where do we see that separate regime?

MR HOOKE: In our submission, it is implicit from the use of the words:

If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order it taken to continue in force until the application is dealt with by the court.

If the Court of Appeal’s construction be correct, the words “is made before the order expires” are otiose because, on the Court of Appeal’s construction of section 72A(1), an application for variation by way of extension could not be made after the order has expired.

GORDON J: I think the other way they put it is that section 8 contains with it an implication that there is an expiry date for the order, and the only way that you can extend it is by making application. In other words, it has a finite life.

MR HOOKE: It does. It does, and that is the point, with respect, that we make about it. If there cannot be an application made after the order has expired, then there is no need to say, if the application is made before the order expires, this occurs, because an application can only be made before the order expires. So, the fact that it creates a temporal regime, by reference to the filing of the application for variation before the expiry – in our submission, as a matter of construction – carries with it a necessary implication that an application can be made afterwards, but it does not carry the automatic continuation of the order.

The availability of that construction was acknowledged by Justice Leeming in paragraph 24, where his Honour acknowledged the submissions that had been made without setting them out. And then on the last line, on page 59 of the application book, his Honour said:

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 or after expiry.

So, his Honour acknowledges the availability of the construction we put on it, but then does not construe the provision, saying instead:

I consider that no inference either way can safely be drawn either from those subsections.

In our submission, that is a failure of the interpretative process because they are important matters of statutory text and context, and they are required to be resolved in order to reach a cohesive construction of the provision to which they speak, which is section 72A(1). So, it goes rather to the heart of the question of construction that was presented to the Court of Appeal, and, in our submission, that function really was not discharged.

Your Honours, we have given in writing other examples of issues that we would take. I do not propose, on this application, to rehearse them. One matter that we would emphasise is, of course, that Justice Leeming recognised at paragraph 47 that there were a number of difficulties with the respondents’ construction. It is not appropriate, for reasons of time or
expedience, to rehearse those here. The fact that they were acknowledged in the Court of Appeal as being significant difficulties in our submission is sufficient.

In our respectful submission, the approach taken by the Court of Appeal, as I said earlier, subordinated the statutory text in an impermissible way. The proposed appeal draws into dark relief the necessary tension between text and context and emphasises the need for a proper and full approach to construction in ascertaining statutory context, which did not occur here.

May it please the Court, those are our submissions, unless there is anything further.

GAGELER CJ: Thank you, Mr Hooke. Mr Kell, we do not need to hear from you. We are not persuaded that there is reason to doubt the correctness of the construction arrived at by the Court of Appeal. Special leave to appeal is refused.

The Court will now adjourn until 1.30 pm.

AT 12.47 PM THE MATTER WAS CONCLUDED