PARTIES:	DAVID JOHN SUTER

		v

		COMMISSIONER OF POLICE IN THE NORTHERN TERRITORY

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	Original Territory Jurisdiction

FILE NO:	No 138 of 1998 (9813359)

DELIVERED:	11 September 1998

HEARING DATES:	29 July 1998

JUDGMENT OF:	MILDREN J

CATCHWORDS:

Appeal – declaration – no ability to renew licence under Firearms Act.

Appeal – declaration – jurisdictional error – failure to comply with service provisions does not result in Order becoming nullity – order and action taken in reliance lawful until order set aside – inherent power in courts to set aside such order.

Appeal – declaration – jurisdictional error – order revoked or set aside ex debito justitiae because of jurisdictional error not then the subject of prohibition sections under another Act.

Appeal – declaration – jurisdictional error – once order set aside ex debito justitae or on judicial discretion no plea of res judicata lies – party entitled to be heard again on the merits.

Appeal – declaration – jurisdictional error – question of whether or not facts and circumstances fall within or without a provision is a question of law – misinterpretation of Magistrate’s decision and failure to construe legislation correctly questions of law – no power for Commissioner to determine meaning of Domestic Violence Act or meaning to be given to judicial decision – failure to exercise jurisdiction.

Legislation

Firearms Act 1992 – repealed
Firearms Act 1997 – s10(3)(f); s10(1); s10(3); s10(3)(9); s113(2); s113(3)(b).
Domestic Violence Act – s3(1); s6; s6(4); s4(1)(c); s 4(1)(a); s4(1)(b); s6(8); s6(7); s8; s4(1A); s6(2); 
s4; s5.
Justices Act – s28

Cases

1)	Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 applied
2)	Taylor v Taylor (1979) 143 CLR 1 applied
3)	Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred
4)	Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590referred
5)	Craig v Kanssen (1943) KB 256 mentioned
6)	Cameron v Cole (1944) 68 CLR 571 mentioned
7)	Reg v Drury ((1849) 3 Car & K 190 at 199; 175 ER 516 referred
8)	McIntosh v Lobel (1993) 30 NSWLR 441 referred 
9)	Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Others (1997) 115 NTR 25 
10)	Hope v The Council of the City of Bathurst (1979-1980) 144 CLR 1
11)	Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
12)	The Queen v Bowen and Others; Ex parte Federated Clerks Union of Australia and Others (1983-1984) 154 CLR 207 applied
13)	R v The Commonwealth Court of Conciliation and Arbitration and Another; Ex parte Ellis (1953-1954) 90 CLR 55 applied

REPRESENTATION:

Counsel:

	Plaintiff:	S Southwood
	Defendant:	P Ward

Solicitors:

	Plaintiff:	Cecil Black
	Defendant:	Solicitor for the Northern Territory

Judgment category classification:	A
Judgment ID Number:	MIL98014
Number of pages:	17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 138 of 1998 (9813359)

		BETWEEN:

		DAVID JOHN SUTER
			Plaintiff

		AND:

		COMMISSIONER OF POLICE IN THE NORTHERN TERRITORY
			Defendant

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 11 September 1998)

MILDREN J:
	The plaintiff, Mr Suter, seeks in these proceedings declarations and other relief designed to quash the decision of the delegate of the Commissioner of Police from refusing his application for a shooter’s licence under the Firearms Act 1997 (the Act), and requiring his application to be reconsidered.  Under s10(3)(g) of the Act, the Commissioner is not to grant a shooter’s licence to any applicant if the applicant has, within five years before the application, been subject to a restraining order under the Domestic Violence Act which has been subsequently confirmed.  On 3 September 1996 a magistrate made an order on the ex parte application of Constable Eric Edgecombe.  The order was confirmed on 11 September 1996.  On 29 September, the plaintiff’s shooter’s licence granted under the former Firearms Act 1992 (the former Act) was revoked by the defendant because of the existence of the restraining order.  The plaintiff successfully appealed to the Firearms’ Appeal Tribunal and on 13 December his licence was restored.  The plaintiff also obtained variations to the terms of the restraining order in October 1996 and March 1997.

	On 13 March 1997, the present Firearms Act 1997 came into force, and the former Act was repealed.  By virtue of ss113(2) and (3)(b) of the Act, the plaintiff’s licence granted under the former Act continued in force.  The plaintiff was not aware of these provisions and applied to renew his licence on 14 March 1997.  That application was refused on 2 May 1997 by the defendant’s delegate.  The plaintiff sought to appeal that decision, but those proceedings were ultimately not proceeded with once the plaintiff was advised his licence was still in force.

	On 5 November 1997, the plaintiff applied to have the restraining orders revoked and an order was so made by Mr Cavenagh SM on that date.

	On 9 March 1998, the plaintiff again applied to renew his licence but that was refused by the defendant’s delegate because of the making and confirming of the restraining order, and the requirements of s10(3)(g) of the Act.  The plaintiff has appealed to the Firearms’ Appeal Tribunal against that refusal, and the appeal has not been heard.  The plaintiff has also brought these proceedings.

	Technically speaking, the Act does not provide for the renewal of a licence.  When a licence expires, it is necessary for the holder of the expired licence to make a fresh application.  The legislation makes no provision for advising licensees that their licenses are due to expire, or providing for a system of renewals, such as is common in other types of licensing legislation.  This is a serious weakness in the Act, which should be addressed by the Parliament, but nothing turns on this in this case.

	The plaintiff’s first contention is that, the restraining orders having been revoked by the Court of Summary Jurisdiction, s10(3)(g) of the Firearms Act did not preclude the defendant from granting the license he sought.

	S10(3)(g) provides:

(1)  The Commissioner is not to grant a license unless satisfied that the applicant–
(g)	is not subject to a restraining order, within the meaning of the Domestic Violence Act, or has not, within the period of 5 years before the application for the licence was made, been subject to a restraining order (other than an order under section 6 of that Act that has not been confirmed).

	S3(1) of the Domestic Violence Act defines “restraining order” as follows:
“restraining order” means an order made under section 4(1) or 6(3) and includes a registered interstate restraining order.

	S6 of the Domestic Violence Act enables a police officer, in certain circumstances, to obtain an ex parte restraining order from a magistrate by telephone.  Ss6(4) provides:

A magistrate shall not make an order under this section unless satisfied that he or she might reasonably have made the order under section 4(1) on the grounds indicated in the application part of the prescribed form…

	S4(1)(c) of the Domestic Violence Act permits a restraining order to be made against a person if the person concerned (called the “defendant”) has

(i)  …behaved in a provocative or offensive manner towards a person in a domestic relationship with the defendant;

(ii)  the behaviour is such as is likely to lead to a breach of the peace including, but not limited to, behaviour that may cause another person to reasonably fear violence or harassment against himself or herself or another; and

(iii)  the defendant is, unless restrained, likely to again behave in the same or a similar manner.

	As can be seen, the minimum requirements for a restraining order do not require proof of violence or the likelihood of violence by the defendant (although proof of such matters is dealt with in s4(1)(a) and (b)):  it is sufficient if the behaviour is “provocative or offensive”, that some person (not necessarily the person in the domestic relationship) reasonably fears “harassment” against himself, herself or another, and the defendant is, unless restrained, likely to behave in the same or a similar manner.

	S6 of the Domestic Violence Act requires an ex parte order to have on it a summons requiring the defendant to appear in court on a specified date and at a specified place to show cause why the order should not be confirmed, and the order (including the summons) is required to be served on the defendant.  S6(8) provides that an order under s6 is not effective after the conclusion of the hearing to which the defendant is summoned unless the defendant does not appear in obedience to the summons or the court, having considered the evidence, confirms the order.

	The order in the present case was originally made ex parte on the application of Constable Edgecombe by telephone.  The ground upon which the magistrate made the order was that Mr Suter had behaved in a provocative manner towards his wife and the defendant is likely to again behave in the same or a similar manner.  There was no ground found that the behaviour was likely to lead to a breach of the peace.

	The prescribed form of order, when made ex parte by telephone, is required by s6 to be completed by the applicant for the order in accordance with directions given by the magistrate.  S6(7) requires this copy of the order (which includes the summons) to be served on the defendant.

	In this case, according to Constable Edgecombe, the Magistrate faxed to him a copy of the order signed and completed by the Magistrate, and he served upon the plaintiff a copy of both that document as well as the copy of the order completed by himself.

	According to the plaintiff, the only document served upon him was an incomplete copy of the order signed and completed by the Magistrate, and, in particular, he was not served with the third page of the form, which contained the summons requiring him to appear.

	Evidence was given by both the plaintiff and by Constable Edgecombe on this issue.  The plaintiff’s second submission was that I should find, on the evidence, that the plaintiff was not served with the summons in accordance with the Act, and that therefore the restraining order was never validly confirmed.  As a further string to this bow, the plaintiff submits that there was never any proof of service of the relevant copy of the order, upon which the Magistrate could have confirmed the order in the absence of the plaintiff at the hearing on 11 September 1996, and consequently the order was never validly confirmed.  For both of these reasons it was submitted the confirmation order was made without jurisdiction and was null and void.

	What is the effect of revoking the restraining order?

	S8 of the Domestic Violence Act entitles a party to a proceeding in which a restraining order has been made to apply to the court at any time for a variation or revocation of the order.  The Domestic Violence Act does not specify the circumstances under with an order may be revoked, but it is clear that any order may be revoked, including an order that has been confirmed after a hearing under s6, or an order made under s4 or s5, which includes orders which are made after a hearing as well as consent orders.  Restraining orders are required to be made for ‘such period as is specified in the order’ (s4(1A) and see s6(2)).  The ex parte order contained no specific period, but by force of s6(9) it would have lapsed unless confirmed at the hearing on 11 September 1996.  The order when confirmed on that date was specified to be for a period of twelve (12) months; this period was later extended to 6 November 1997, (the day after the date of the revocation order). 

	It was submitted by Mr Ward, counsel for the defendant,  that a magistrate could not revoke an order which had been confirmed because he thought it was wrongly confirmed, or because the summons had not been properly served.  This would have to be dealt with by an appeal.  I accept that the fact that an appeal lies to a judge of this Court is a strong indication that a revocation order could be not made by a magistrate on the ground that he thought that the order was wrongly confirmed, but the answer to the question is not so easy if the confirmation order was made without jurisdiction or in the absence of the defendant.

	Mr Ward submitted that a power to revoke ab initio an order confirmed by another magistrate would lead to inconsistencies with fundamental principles of the administration of the law and is so anomalous as to require such an interpretation to be rejected.  He submitted that such a power would enable one magistrate to sit on appeal from another, and could lead to absurdity – if, for instance, a judge of this Court were to convict the defendant for an offence against s10 of the Domestic Violence Act, but a magistrate later could revoke the order ab initio.

	A useful starting point is to consider whether or not an order confirmed in the absence of the defendant who has not been properly served, or without admissible evidence of proof of service, is an order which is null and void ab initio, or whether the order is valid until set aside.  In this case, the Court which confirmed the order was the Court of Summary Jurisdiction, which is invested with jurisdiction under the Domestic Violence Act.  That Court is established under the Justices Act, and it is clear from s28 of that Act, that that Court itself decides whether or not a summons has been served.  In those circumstances, notwithstanding that the Court of Summary Jurisdiction is an inferior Court, the confirming order is not a nullity if it turns out subsequently that there was no service of the summons, or if the Court wrongly acted upon inadmissible evidence as to proof of service, and the order is effective until it is set aside:  Posner v Collector for Inter-state Destitute Persons (Victoria) (1946) 74 CLR 461.

	It is well established that all courts, even inferior statutory courts, have an inherent power to set aside orders improperly made in the absence of a defendant who was not actually served with the relevant process:  see Taylor v Taylor (1979) 143 CLR 1, at 8, 16; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, and this is so irrespective of whether or not there is a right of appeal.  Further, provisions such as s8 of the Domestic Violence Act have been treated as conferring express jurisdiction to set such orders aside:  see for example, Posner, supra, at 471 per Latham CJ.  I therefore do not accept Mr Ward’s contention that Mr Cavenagh SM could not have revoked the order because of the failure to serve the defendant in those proceedings with the summons.

	Mr Southwood submitted that the effect of revocation was that the original order is set aside ab initio.  I consider that, at least in the case of an order of a Superior Court, this is a doubtful proposition.  In Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 at 603, Stephen, Murphy and Wilson JJ, with whom Aickin J agreed, said:

…But in any event the consequence that will follow an order setting aside an earlier decision, will vary from case to case.  So long as the earlier decision stands, and no stay is operative, it is a lawful decision and the action taken in reliance upon it is lawful.  It is true that from the moment it is set aside the order can no longer provide the lawful justification for further action, but whether what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief.

	Some authorities treat orders of this kind by inferior courts as “nullities” (see for example, Hoskins v Van Den-Braak, supra, at 293 and the authorities therein cited; Craig v Kanssen (1943) KB 256 at 262 per Lord Greene MR; Cameron v Cole (1944) 68 CLR 571 at 590-591) but it is difficult to reconcile this view with the decision in Posner, supra.  As Dixon J said, at 483:

When there has been a failure of the due process of law at the making of an order, to describe it as void is not un-natural.  But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.  Modern legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attacked collaterally or ignored as ineffectual, if the directions of the statute have not been pursued with exactness.

	Mr Southwood for the plaintiff relied upon Reg v Drury ((1849) 3 Car & K 190 at 199; 175 ER 516 at 520) “that a judgment reversed is no judgment”:  see also, McIntosh v Lobel (1993) 30 NSWLR 441 at 459; but as those cases demonstrate, that does not mean that an order subsequently set aside is inevitably to be treated a nullity.

	Much argument was directed to the meaning to be given to the word “revoke” and whether that meant revoke ab initio, or merely prospectively.  In my opinion, the true question is whether on the true interpretation of s10(3)(g) of the Firearms Act, an order which has been set aside on appeal or revoked because of jurisdictional error is nevertheless caught by those provisions.  It would be astounding if Parliament intended to prohibit absolutely a person from obtaining a firearms licence if, for instance, he had been found guilty of a disqualifying offence but the conviction had been reversed on appeal or otherwise set aside (see s10(3)(f)).  Such a result would be absurd and unjust, and would not promote the purposes of the Act, and I do not consider that that is what Parliament intended.  Likewise, I consider that if a restraining order has been confirmed but subsequently revoked or set aside ex debito justitiae because it was never properly served, or set aside on appeal on the merits, the restraining order does not come within the provisions of s10(3)(g).  I consider that as a matter of common sense, the orders referred to in the subsection do not and were not meant to include orders of this kind.

	Did the Court of Summary Jurisdiction revoke the confirming order 	  ex debito justitiae for non-service of the summons?

	Mr Ward, for the defendant, submitted that this ground was not a basis for revoking the order.  Mr Southwood, for the plaintiff, submitted that this was one of several bases for the order.

	The plaintiff’s difficulty is that the transcript of the proceedings before Mr Cavenagh SM does not show what reason his Worship had for making the order.  The application was based upon the plaintiff’s affidavit from which it may be deduced that he relied upon the following possible grounds:
1)	on the facts, the plaintiff did not behave towards his wife in a provocative or offensive manner such as was likely to result in a breach of the peace etc;
2)	the plaintiff was not served with the Summons;
3)	although the plaintiff was told that it would be “a good idea to attend on 11 September because things can happen if you are not there”, he was unable to attend Court that day and attempted to arrange an adjournment by telephone with a person in the registry of the Local Court in Darwin;
4)	he has obeyed the orders, his wife has left Nhulunbuy, the parties have separated and reached agreement about a division of their property.

	At the hearing before Mr Cavenagh SM, his Worship, having read this affidavit, said:

I’m sympathetic to your client’s position.  I’ve read the affidavit.  I’m sympathetic and I’m not wishing to show anything else but some sympathy, especially in view of the fact that the respondent has been served and has chosen not to appear.

	Discussion then ensured with counsel as to whether the orders were still on foot or had expired.  After establishing that the orders had been extended and were due to expire the following day, and that the plaintiff was still pressing for a revocation order, his Worship said:

HIS WORSHIP:		Well, then, that being the case and Ms McCandless (the plaintiff’s wife) not appearing today, it just increases my sympathy to your client’s application, which is you want the existing orders revoked?

MR SOUTHWOOD:	Yes, if you Worship pleases.

HIS WORSHIP:		I note there’s no appearance for the respondent who is also known as the original applicant.  For reasons which are obvious in the comments of the last counsel(sic), I order that all restraining orders made in this matter are revoked.

	It is not possible to know what is meant by “for reasons which are obvious in the comments of the last counsel”.  There are no other indications in the transcript as to why his Worship made the order arising from anything which passed between counsel and the Court.

	Prima facie I consider that his Worship must have relied upon all of the grounds set out in the plaintiff’s affidavit.  He does not indicate that he rejected any of the grounds.  The second ground was non-service of the summons.  The third was the inability of the plaintiff to attend Court, and his efforts to arrange an adjournment over the telephone, which would have justified setting the order aside on well known principles relating to natural justice, which I have no doubt the learned Magistrate had power to act upon:  see Cameron v Cole, supra, at 589 per Rich J; Taylor v Taylor, supra, at 8, per Gibbs J; at 16 per Mason J.  If the orders had been revoked on the second ground, I have no doubt that the plaintiff is not caught by s10(3)(g) of the Firearms Act, for the reasons previously expressed.  If the orders had been revoked on the third ground, I also consider that the plaintiff is not caught by s10(3)(g).  There is no practical difference between an order which must be set aside ex debito justitiae, and one where the Court has a discretion, albeit a discretion which must be exercised judicially.  The practical consequences, once the order is set aside are the same.  There is no finding adverse to the party obtaining the setting aside of the order – there can be no plea of res judicata – and the Court will give the party the opportunity to be heard again on the merits.

	The first possible ground is, I consider, not a separate ground at all, but necessary material to establish that, in so far as the application is based on the third ground, the plaintiff has a good case on the merit’s.  Only the fourth ground is in a different category.  This establishes a change of circumstances, and it is clear that if the learned Magistrate has revoked the order on that ground alone, the plaintiff would be caught by s10(3)(g) of the Firearms Act.  Mr Ward for the defendant submitted that it must be inferred that this was the only ground upon which the learned Magistrate must have acted.  I am unable to understand this contention.  There is nothing in the transcript to indicate that this was so.  In those circumstances I consider that the proper inference is that his Worship relied upon all of the grounds.  It follows from this that the effect of the revocation order was not limited to merely bringing the orders to an end based on changed circumstances, but had the further effect of setting the orders aside.

	Is the plaintiff entitled to relief?

	It was submitted on behalf of the defendant that the Firearms Act 1997 gives to the Commissioner of Police a discretion to grant or refuse an application for a firearm’s licence:  see s10(1).  The Act provides that unless the Commissioner is satisfied as to certain matters, the Commissioner is not to grant a licence:  see s10(3).  Mr Ward submitted that each of these matters, including whether or not the applicant has been the subject of a domestic violence order within the scope of s10(3)(g), is a question of fact.  I do not accept this submission.  The question of whether or not the facts and circumstances of a particular case fall within or without the provisions of a statute properly construed is generally speaking, a question of law:  Alice Springs Town Council v Mpweteyerre Aboriginal Corporation and Others (1997) 115 NTR 25 at 32; Hope v The Council of the City of Bathurst (1979-1980) 144 CLR 1; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.  The questions which fall for determination in this case depended upon the true construction of the provisions of the Firearms Act and of the Domestic Violence Act, and of the reasons of Mr Cavenagh SM.  These are clearly all questions of law.  In the circumstances of this case, the defendant erroneously concluded that he was compelled to refuse the plaintiff’s application.  In arriving at that conclusion, the defendant made an error of law, and refused, on that basis, to exercise his jurisdiction to consider the plaintiff’s application on its merits.  The provisions of the Act do not confer upon the Commissioner the function of determining the meaning to be given to the Act, the Domestic Violence Act or the meaning to be given to the learned Magistrate’s decision.  The Commission is not a Court, and does not exercise judicial power.  I note that there is a right of appeal to the Firearm’s Appeal Tribunal, but that Tribunal is not a Court, and does not exercise judicial power either.  Indeed the Tribunal exercises only the same powers, authorities, duties, functions and discretions as does the Commissioner.  There is no further right of appeal provided for.  There is evidence that if the relief is refused the plaintiff will be affected in his ability to carry out contracts into which he has entered.  In those circumstances I consider that the plaintiff is entitled to the relief sought:  c.f. The Queen v Bowen and Others; Ex parte Federated Clerks Union of Australia and Others (1983-1984) 154 CLR 207 at 209-211; R v The Commonwealth Court of Conciliation and Arbitration and Another; Ex parte Ellis (1953-1954) 90 CLR 55 at 64-66, and that I should not refuse relief in the exercise of my discretion.

Accordingly, the plaintiff is entitled to the relief sought in the summons, and it is not necessary to consider the alternative ground based upon a collateral attack.

	Conclusions and Orders

	There is one further matter that I think should be drawn to the attention of the legislature.  As was pointed out by Mr Ward in his written submissions, restraining orders can also be obtained ex parte under s4 of the Domestic Violence Act, and they have a similar effect to orders made vide s6, in that they have a limited effect unless confirmed:  see s4(5).  It is anomalous that ex parte orders made under s6 which are not confirmed are not a barrier to the grant of a licence under s10(3)(g) or a permit under s33(1)(d) whereas ex parte areas orders under s4 which are not confirmed, are.  This should be remedied by the legislature.

	I make the following declarations and orders:

1)	declare that the plaintiff is not a person subject to a restraining order for the purposes of s4 or s6 of the Domestic Violence Act;

2)	declare that the plaintiff has not been subject to a restraining order as a result of proceedings in the Court of Summary Jurisdiction in matter number 9619146 within the meaning of s10(3)(g) of the Firearms Act within the period of 5 years before his application for renewal of his Shooter’s Licence made on 9 March 1998;

3)	declare that on 20 March 1998 the delegate for the Commissioner of Police wrongly refused the plaintiff’s application for a Shooter’s Licence in respect of an A, B and H class firearm;

4)	the refusal by the delegate of the Commissioner of Police in the Northern Territory on 20 March 1998 to grant the plaintiff’s application for a Shooter’s Licence in respect of an A, B and H class firearm is quashed;

5)	the Commissioner of Police is ordered to reconsider the plaintiff’s application for a Shooter’s Licence in respect of an A, B and H class firearm according to law.

6)	I will hear the parties as to the question of costs.