Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Kaiser [2022] NSWCA 86 Hearing dates: 21 September 2021 Date of orders: 8 June 2022 Decision date: 08 June 2022 Before: Bell CJ at [1] Beech-Jones JA at [2] Simpson AJA at [3] Decision: 1. Pursuant to s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) the State of New South Wales has leave to appeal against the order of the Supreme Court of 8 June 2021 dismissing the Amended Statement of Claim filed on 5 December 2018. 2. Appeal upheld; orders 2 and 3 of the Supreme Court of 8 June 2021 set aside; answer to Question 1 set aside. In lieu thereof, Question 1 be answered "Yes". 3. Pursuant to s 103 of the Supreme Court Act 1970 (NSW) the State of New South Wales has leave to appeal against the decision of the Supreme Court of 8 June 2021 in answer to Question 3 of the Questions for separate determination under UCPR 28.2. 4. Appeal allowed; answer to Question 3 set aside. In lieu thereof, Question 3 be answered: Yes. Catchwords: HIGH RISK OFFENDERS – extended supervision order – whether the respondent is a "supervised offender" within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5I – whether an extended supervision order can commence earlier than when the respondent's current sentence expires Legislation Cited: Civil Liability Act 2002 (NSW) Compensation to Relatives Act 1897 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code (Cth) Crimes (Serious Sex Offenders) Act 2006 (NSW) Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) Crimes (High Risk Offenders) Amendment Act 2017 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Fisheries Ordinance 1965 (NT) Forestry Act 1959 (Qld) Income Tax Assessment Act 1936 (Cth) Police Act 1990 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 ASIC v DM Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 Brisbane City Council v The Attorney-General (Qld) (1908) 5 CLR 695; [1908] HCA 8 Chu Khen Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13; [1992] HCA 64 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 Envy Trading v Queensland [1998] 1 Qld R 413 Fitzgerald v Masters (1956) 95 CLR 420; [1956] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 Kassam v Hazzard [2021] NSWCA 299; (2001) 396 ALR 302; (2021) 311 IR 233 Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lindner v Wright (1976) 14 ALR 105 Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 State of New South Wales v Donovan (2015) NSWLR 389; [2015] NSWCA 280 State of New South Wales v Kaiser [2021] NSWSC 646 State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 Tannous v State of New South Wales [2020] NSWCA 261 Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35; Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: P Herzfield and T Prince: Interpretation (2nd Ed), Thomson Reuters, 2020 Category: Principal judgment Parties: State of New South Wales (Appellant) Brian Kaiser (Respondent) Representation: Counsel: J Emmett/R McEwen (Appellant) S A Beckett/C Winnett (Respondent) Solicitors: Crown Solicitor for NSW (Appellant) Legal Aid NSW (Respondent) File Number(s): 2021/194026 2021/197122 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: [2021] NSWSC 646 Date of Decision: 08 June 2021 Before: Garling J File Number(s): 2018/154935 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] In 2007 the respondent pleaded guilty to a charge of manslaughter and was sentenced to imprisonment for 10 years and 11 months, to expire on 28 June 2018. In January 2016 the respondent escaped from custody. While at large, he committed a series of offences, for which he was sentenced to a further term of imprisonment. In December 2016 the respondent was released on parole. While on parole, the respondent committed further offences (malicious damage, intimidation, and choking, suffocating or strangling - "the 2017 offences"). He was arrested, returned to custody, and his parole was revoked. He was ordered to serve the balance of the manslaughter sentence, which would now (taking into account the period during which he was unlawfully at large) expire on 10 July 2018. For the 2017 offences the respondent was sentenced to three partially accumulated, partially concurrent, terms of imprisonment (the last of which will expire on 9 December 2022). The sentences imposed in respect of the malicious damage and intimidation offences were specified to commence during the currency of the manslaughter sentence and to extend beyond the expiration of that sentence. The sentence imposed in respect of the intimidation offence expired on 9 December 2019. The sentence imposed in respect of the choking offence (imprisonment for four years with a non-parole period of 2 years and 6 months) commenced on 10 December 2018 and will expire on 9 December 2022. By Amended Summons filed on 5 December 2018 the State of NSW ("the State") sought an extended supervision order against the respondent. An extended supervision order may be made under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") if four criteria stated in s 5B(a)-(d) are met. The criteria include: "(b) the person is a supervised offender (within the meaning of section 5I)"; and "(c) an application for the order is made in accordance with section 5I". A supervised offender is defined in s 5I(2) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for, relevantly, a serious offence (s 5I(2)(a)(i)) or for another offence for which the sentence is being served concurrently with or consecutively upon, or partly concurrently with and partly consecutively upon, the sentence for the serious offence (s 5I(2)(a)(iv)). Because manslaughter is a serious offence for the purposes of s 5I(2)(a)(i), for the duration of that sentence the respondent met the criteria for "supervised offender". During the currency of the sentences for the malicious damage and intimidation offences the respondent continued to meet the criteria for "supervised offender" because he was serving sentences within s 5I(2)(a)(iv) of the Act. After his sentence in respect of the intimidation offence expired on 9 December 2019, the respondent no longer met those criteria, although he was in custody serving a sentence for the last of the 2017 offences (choking). That sentence did not come within s 5I(2)(a). As the Amended Summons was filed at a time when the respondent was serving sentences within s 5I(2)(a), he was, at that time, a "supervised offender". The application was determined on 8 June 2021. The respondent was then no longer serving any sentence that would bring him within s 5I(2)(a) as a "supervised offender". Three questions for separate determination under UCPR r 28.2 were formulated. Question 1 asked whether, as at 8 June 2021, the respondent was a "supervised offender". The primary judge answered that question in the negative. The principal reason for that conclusion was that there is an overlap, or duplication, in paragraphs (b) and (c) of s 5B and that to conclude that it was not necessary that the person against whom the order is sought to be serving a sentence of imprisonment within s 5I(2)(a) at the time of determination would render s 5B(b) "otiose". Interpreting s 5B(b) as requiring that the offender be serving a sentence of imprisonment within s 5I(2)(a) gave separate operation to that paragraph. On the basis of that construction the primary judge held that he did not have power to make an extended supervision order, and, accordingly, dismissed the Amended Summons. Question 3 asked whether the Court had jurisdiction to make an extended supervision order commencing on a date earlier than 9 December 2022. The primary judge answered this question by holding that the earliest date on which an extended supervision order could commence was 10 December 2022 (the day after the expiration of the last of the sentences imposed for the 2017 offences). By Notice of Appeal filed on 6 July 2021 the State challenged the answers given to Questions 1 and 3. By Ground 1 of the proposed appeal the State asserted error in the answer given by the primary judge to Question 1. By Ground 2 of the proposed appeal the State asserted error in the answer given by the primary judge to Question 3. Held by Simpson AJA (Bell CJ and Beech-Jones JA agreeing), upholding the appeal: In relation to Question 1: Section 5B(b) requires that a person against whom an extended supervision order is sought be a "supervised offender" within the meaning of s 5I at the time the order is made. Section 5I defines a "supervised offender" as an offender who meets the criteria stated in s 5I(2) "when the application for the order is made". The respondent came within the s 5I(2)(a) criteria at the time the application was made and was, accordingly, at the time of determination, a "supervised offender" for the purposes of s 5B(b). The legislative history supports that conclusion. The answer given by the primary judge to Question 1 was therefore incorrect. The correct answer is: yes, as at 8 June 2021, the respondent was, for the purposes of s 5B(b) of the Crimes (High Risk Offenders) Act 2006, a supervised offender within the meaning of s 5I(2)(a) of that Act: [101]. An alternative route to the same conclusion is to read the reference to "section 5I" in s 5B(c) as a drafting, or cross-referencing, error intended to be to s 6. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied. Lindner v Wright (1976) 14 ALR 105; Envy Trading v Queensland [1998] 1 Qld R 413; Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322; Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100; Wentworth Securities Ltd v Jones [1980] AC 74, referred to. In relation to Question 3: The answer given to Question 3 is incorrect. By s 10(1) of the Act an extended supervision order commences when it is made, or when the offender's "current custody or supervision" expires, whichever is the later. An offender's "current custody or supervision" is given, in s 5I(2), a particular meaning, referable to any of the four categories of sentence identified in s 5I(2)(a). The respondent's "current custody or supervision" within that definition expired on 9 December 2019. Any extended supervision order would commence on the day it was made. Judgment 1. BELL CJ: I have had the benefit of reviewing the careful and lucid analysis of Simpson AJA and agree with it and her Honour's orders. 2. BEECH-JONES JA: I agree with Simpson AJA and the orders her Honour proposes. 3. SIMPSON AJA: These proceedings come before the Court by way of application under s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) and s 103 of the Supreme Court Act 1970 (NSW) for leave to appeal, following determination by Garling J ("the primary judge") in the Supreme Court of three questions referred for separate decision pursuant to Uniform Civil Procedure Rules ("UCPR") r 28.2: State of New South Wales v Kaiser [2021] NSWSC 646. Each question concerned the construction of a provision of the Crimes (High Risk Offenders) Act ("the Act"). It is therefore convenient to begin with reference to the relevant statutory provisions. The relevant statutory provisions 1. The long title of the Act is: An Act to provide for the supervision and detention of high risk sex offenders and high risk violent offenders; and for other purposes. 1. The objects of the Act are stated in s 3 as: (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 1. Jurisdiction is conferred on the Supreme Court ("the Court") to make orders for the supervision in the community (s 9(1)) or detention (s 17(1)) of convicted offenders, extending beyond the terms of imprisonment imposed by sentencing courts: Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [47]; Tannous v State of NSW [2020] NSWCA 261 at [14], [19]. 2. Part 1A (ss 5B-5D) of the Act spells out the means by which the objects of the Act are sought to be achieved. By s 5B the Court is empowered to make an order (an "extended supervision order") for the supervision in the community of a person; by s 5C the Court is empowered to make an order (a "continuing detention order") for the continued detention of a person. Other than by reference to s5B and 5C the terms "extended supervision order" and "continuing detention order" are not defined. The terms are essentially self explanatory. 3. Nowhere in the Act are "high risk offender", "high risk sex offender" or "high risk violent offender" defined. From other provisions in the Act to which I will come it can be seen that a "high risk offender" is an offender (as defined in s4A) who, the Court is satisfied to a high degree of probability, poses an unacceptable risk of committing another serious offence if not kept under supervision (s 5B(d)) or in detention (s 5C(d)). 4. "Offender" is defined in s 4A as a person who: (a) is of or above 18 years of age, and (b) has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence. 1. "Serious offence" is defined in s 4 as: (a) a serious sex offence, or (b) a serious violence offence. "Serious sex offence" and "offence of a sexual nature" are defined in s 5, primarily by reference to specific provisions of the Crimes Act 1900 (NSW) ("Crimes Act"), the Crimes Act 1914 (Cth) and the Criminal Code (Cth). As such offences do not play any part in the present proceedings it is unnecessary to expand on that definition. 1. "Serious violence offence" is defined in s 5A(1) as: (1) … a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred in paragraph (a). Subsections (2) and (2A) provide further explanations, which it is not necessary to detail here, of "serious violence offence". 1. "Serious indictable offence" is relevantly defined in s 5A(3), by the adoption of the definition of the same term in the Crimes Act, as an offence punishable by imprisonment for life or for a term of 5 years or more. 2. Sections 5B and 5C are in the following terms: 5B Making of extended supervision orders—unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an "extended supervision order") if— (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. 5C Making of continuing detention orders—unacceptable risk The Supreme Court may make an order for the continued detention of a person (a "continuing detention order") if— (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. 1. Part 2 (ss 5H-13) of the Act is directed to, and contains detailed provisions concerning, applications (which, by s 5H, may be made by the State) against offenders for extended supervision orders, requirements with respect to such applications (s 6), pre-trial procedures (s 7) and the terms (duration) of extended supervision orders (s 10). By s 9(1) an application for an extended supervision order may be determined by the Court by (a) making the order, or (b) dismissing the application. By Div 3 (ss 10A – 10C) of Pt 2 the Court, in proceedings for an extended supervision order, is empowered to make an order for interim supervision, if it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (s 10A) 1. By s 10C(1)(a) the duration of an interim supervision order is limited to a maximum of 28 days; by s 10C(2) an interim supervision order may be renewed from time to time but not so as to provide for supervision for periods, in total, of more than 3 months. 2. Division 4 (ss 11-13) of Part 2 contains general provisions specifying conditions that may be imposed on an extended supervision order (s 11), proceedings for breach (s 12) and for variation or revocation (s 13). 3. Section 5I is, for the purposes of these proceedings, an important provision. It provides in full: 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A "supervised offender" is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's "current custody or supervision")— (a) while serving a sentence of imprisonment— (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole. 1. Section 6 states the requirements of an application. It provides: 6 Requirements with respect to application (1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision. (2) (Repealed) (3) An application must be supported by documentation— (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a serious offence. (4) An application may indicate the kinds of conditions (in addition to the condition referred to in section 11 (2)) that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made. 1. Section 7 sets out the process by which applications are to be made and dealt with. By subs (1) an application must be served on the offender the subject of the application within two business days after the application is filed, and, by subs (2), must disclose to the offender relevant documents, reports and other information (whether or not intended to be tendered in the proceedings). By subs (3) the Court is required, within 28 days (or such further time as the Court allows) after the application is filed, to conduct a preliminary hearing. 2. Subsection (4) of s 7 provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Court must make orders appointing two appropriately qualified professionals to conduct separate psychiatric or psychological examinations and to furnish reports to the Court on the results of those examinations, and to direct the offender to attend those examinations. By subs (5) if, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Court must dismiss the application. 3. Section 9(2) declares the safety of the community to be the "paramount consideration" in the determination of whether or not to make an extended supervision order. Subsection (3) sets out the matters to which the Court must have regard in determining whether to make an extended supervision order. These are generally directed to the assessment of the likelihood of reoffending, and the likelihood of compliance by the offender with the obligations of an order if one is made. 4. By s 10(1) an extended supervision order commences when it is made, or when the offender's current custody or supervision (as defined in s 5I) expires, whichever is the later. By subs (1A) of s 10, an extended supervision order expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or, if the order is suspended for any period, the period specified in the order plus each period during which the order is suspended. 5. Subsections (1AA)-(1AD) of s 10 make provision, not necessary to be recorded, for deferral of the operation of an order where an extended supervision order is made on an application for a continuing detention order (an outcome for which s 17(1)(b) provides). 6. Part 3 (ss 13A – 20) of the Act makes provision for continuing detention orders. Division 3 (ss 18A-18C) makes provision, similar to Div 3 of Pt 2, for interim detention orders. The present relevance of those provisions is that they substantially mirror the provisions of Pt 2. Decisions on the construction of equivalent or parallel provisions of Pt 3 are, accordingly, of guidance in the construction of the Pt 2 provisions. 7. The current version of the Act is the product of a process of evolution since its initial enactment in 2006 as the Crimes (Serious Sex Offenders) Act 2006 (NSW): see Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW); Crimes (High Risk Offenders) Amendment Act 2017 (NSW). Factual background 1. In 2006 the respondent was charged with murder, alleged to have been committed on 20 March 2006. On 6 July 2007, on arraignment, he entered a plea of not guilty to murder, but guilty to manslaughter. On 10 October 2007 the Crown accepted the plea in discharge of the indictment. On 29 November 2007 the respondent was sentenced to imprisonment for 10 years and 11 months, commencing on 29 July 2007 and to expire on 28 June 2018, with a non-parole period of 8 years and 2 months to expire on 28 September 2015. Because manslaughter is a "serious violence offence" as defined by s 5A(1) of the Act, and, therefore, a "serious offence" for the purposes of s 5I(2)(a)(i), the respondent was, for the duration of that sentence, a "supervised offender" within the meaning of s 5I. 2. On 25 January 2016 the respondent escaped from the correctional centre in which he was held and was at large for some time. As a consequence, the term of his sentence was extended by the period during which he was unlawfully absent from custody: Crimes (Administration of Sentences) Act 1999 (NSW), s 254 ("Administration of Sentences Act"). 3. While he was at large the respondent committed a series of offences for which he was, on 5 September 2016, sentenced to an aggregate term of imprisonment of 2 years commencing 25 January 2016 and expiring on 24 January 2018 with a non-parole period of 9 months, which expired on 24 October 2016. On 16 December 2016 he was released on parole. 4. During April and May of 2017, while on parole, the respondent committed further offences (malicious damage, intimidation, and an offence against s 37(1) of the Crimes Act, of choking, suffocating or strangling - "the 2017 offences") and was arrested on 23 May 2017 and returned to custody. None of those offences was a serious violence offence within the s 5A(1) definition. On 26 May 2017 the State Parole Authority revoked the respondent's parole and he was ordered to serve the balance of the manslaughter sentence – which would now (presumably by the operation of s 254 of the Administration of Sentences Act) - expire on 10 July 2018. From that date the respondent ceased to be an offender serving a sentence of imprisonment within s 5I(2)(a)(i) (although, from 11 December 2018, he was an offender serving a sentence of imprisonment that did not come within s 5I(2)(a)). 5. On 11 December 2018 the respondent pleaded guilty to charges for the 2017 offences and was sentenced to three partially accumulated, partially concurrent, terms of imprisonment, the effect of which was a total sentence of 5 years (to expire on 9 December 2022) with a non-parole period of 2 years and 6 months which (by reason of the accumulation) commenced on 10 December 2018 and expired on 9 June 2021. The sentences imposed in respect of the malicious damage and intimidation offences (fixed terms of, respectively, 10 months and 3 months) were specified to commence during the currency of the manslaughter sentence and to extend beyond the expiration of that sentence; they were, therefore, to be served partly concurrently with and partly consecutively upon the manslaughter sentence. During the currency of those sentences the respondent was therefore a "supervised offender" because he was serving a sentence within s 5I(2)(a)(iv) of the Act. The 3 month sentence imposed in respect of the intimidation offence expired on 9 December 2019. That brought to an end the period during which any of the sentences imposed in respect of the 2017 offences was to be served concurrently with or consecutively upon the sentence imposed in respect of the manslaughter offence, and therefore the period during which the respondent was a "supervised offender" within s 5I(2)(a)(iv) of the Act. 6. The last, and most serious, of the 2017 offences was the offence against s 37(1) of the Crimes Act. Surprising as it might seem, it was common ground that an offence against s 37(1) is not a "serious violence offence"' within the definition in s 5A(1) of the Act. Nor, therefore, was it a "serious offence" for the purposes of s 5I(2)(a)(i). Nor was the sentence within any of the s 5I(2)(a)(ii)-(iv) categories. The sentence imposed in respect of the s 37(1) offence (4 years with a non-parole period of 2 years and 6 months) was specified to commence on 10 December 2018, 5 months after the expiration of the manslaughter sentence. It will expire on 9 December 2022. It was to be served neither concurrently with, nor consecutively upon, that sentence. It was therefore not a sentence within s 5I(2)(a)(iv). 7. Accordingly, from 9 December 2019 (the expiration of the sentence for the intimidation offence) the respondent was not serving a sentence of imprisonment within any of the s 5I(2)(a) categories. He was not serving a sentence of imprisonment for a serious offence (par (i)) or for an offence of a sexual nature (par (ii)), or for an offence against s 12 (par (iii)), or for "another offence" to be served concurrently with, consecutively upon, or partly concurrently with and partly consecutively upon, a sentence or sentences of imprisonment for offences within pars (ii)-(iii) (par iv)). Nor was he under supervision for any such offence, so as to make him a "supervised offender" within s 5I(2)(b). On that date he ceased to meet the criteria for "supervised offender" status. From 9 December 2019, by s 5I(1), the State was not entitled to make an application for an extended supervision order. 8. No doubt with that in mind, prior to that date, on 17 May 2018, the State filed in the Court a Summons seeking a continuing detention order and (in the alternative) an extended supervision order. On 5 December 2018 the State filed an Amended Summons seeking only an extended supervision order. At each of those dates, the respondent was serving a sentence within s 5I(2)(a); on 17 May he was still serving the sentence for the manslaughter offence, and on 5 December he was serving the sentences for both the malicious damage and the intimidation offences, each of which was served partly concurrently with and partly consecutively upon the manslaughter sentence. He was, by reason first, of s 5I(2)(a)(i), and then s 51(2)(iv), a "supervised offender", eligible to be made the subject of an application for an extended supervision order. As I have said, that status came to an end on 9 December 2019. The proceedings in the Supreme Court 1. A preliminary hearing of the Amended Summons pursuant to s7(3) of the Act took place on 5 December 2018. On 17 December 2018, being satisfied pursuant to s 7(4) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, Walton J made orders, as required by that subsection, for psychological and psychiatric examinations of the respondent: State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971. 2. On 6 May 2021 the State Parole Authority authorised the release of the respondent on parole on 8 June 2021. 3. On the same date (8 June), pursuant to s 7, a final hearing of the Amended Summons commenced before the primary judge. 4. After discussion with counsel the primary judge ordered, pursuant to UCPR r 28.2, that three questions arising out of the application and concerning the construction of provisions of the Act, be separately determined. The questions were formulated as: "(1) Whether, for the purposes of the application of s 5B(b) of [the Act] to [the respondent], the State has shown that [the respondent] is a 'supervised offender (within the meaning of s 5I of [the Act]; (2) Whether, for the purposes of the application of [the Act] to [the respondent], the State has shown that the application for the [extended supervision order] has been made within the last 9 months of [the respondent's] current custody or supervision within the meaning of s 6(1) of [the Act]; and (3) Whether, if the Court has jurisdiction to make [an extended supervision order] and it determines that it is appropriate to so order, such [extended supervision order] can commence on a date earlier than 9 December 2022 when [the respondent's] current sentence expires." 1. The primary judge answered those questions as follows: "(1) No, [the respondent] is not a supervised offender for the purposes of the application of s 5B(b) of [the Act]; (2) Yes; and (3) assuming the court had and exercised the power to make [an extended supervision order], the earliest date upon which [an extended supervision order] can commence in this matter is 10 December 2022." 1. The effect of the answer given to question 1 was that the Court had no power to make an extended supervision order, one of the four cumulative criteria (s 5B(b)) for making such an order not having been met. As a consequence the primary judge dismissed the Amended Summons (UCPR 28.4) and ordered the State to pay the respondent's costs. The State contends that the answer given to Question 1 was incorrect; that, as at 8 June 2021, the respondent was, for the purposes of s 5B(b), a "supervised offender", that the primary judge accordingly was in error in concluding that the Court lacked power to make an order under that section, and that the order dismissing the Amended Summons should be set aside. The respondent contends that Question 1 was correctly answered and that, as at 8 June 2021, the respondent was not a "supervised offender", and could not be made the subject of an extended supervision order and that the order dismissing the Amended Summons was, accordingly, justified, and, indeed, inevitable. 2. No issue arises as to the answer given to Question 2. An argument advanced by the respondent that an application is "made" (for the purposes of s 5I(1) and s 5B(c)) when the application is heard (as distinct from when it is filed) was rejected by the primary judge in the answer he gave to question 2 and is not now in issue. "Made", in the context of s 5I(1) and s 5B(c), is equivalent to "filed". The State and the respondent agree that the answer given to Question 3 was erroneous, although they give different reasons for so concluding. 3. Before turning to the proposed grounds of appeal and the competing arguments, it is convenient to explain how the primary judge came to the two answers the subject of these proceedings. Question 1 1. By s 5B four cumulative criteria must be met before an extended supervision order may be made. Those presently relevant are: "(b) the person [in relation to whom the order is sought] is a supervised offender (within the meaning of s 5I), and (c) an application for the order is made in accordance with s 5I." (There was no issue that the respondent satisfied the par (a) criterion. The answer given to Question 1 precluded consideration of the par (d) criterion). 1. The issue raised by Question 1 turned on the interplay of s 5B(b), s 5B(c), and s 5I of the Act. As set out above, the respondent undoubtedly met the s 5I(2)(a) criteria for the status of "supervised offender" as at 17 May 2018, when the State's application was first filed (because he was serving the sentence for manslaughter), and as at 5 December 2018, when the Amended Summons was filed (because he was serving sentences for "other offences" that were being served partly concurrently with and partly consecutively on, the manslaughter sentence). By the time the application was to be heard, those sentences had expired and, as also set out above, the respondent fell into none of the categories of s 5I(2)(a) that would make him a "supervised offender" and entitle the State under s 5I(1) to make an application for an extended supervision order. The sentence for the s 37(1) offence which the respondent was then serving did not fall within any of the s 5I(2)(a) categories. Nor did he meet any of the criteria for "supervised offender" status provided by s 5I(2)(b). The question was whether it was sufficient that, because he had undoubtedly had the status of "supervised offender" at the time the application was made, he was, as at 8 June 2021, for the purposes of s 5B(b), a "supervised offender", or whether, for those purposes, it was necessary that at the time the application was determined, he be serving a sentence of imprisonment within one or more of the s 5I(2)(a) categories, or be under supervision of one of the kinds identified in s 5I(2)(b). 2. The primary judge (at [53]) discerned two possible ways of interpreting s 5B(b): (i) that it requires that the person against whom the order is sought ("the defendant") be serving a relevant sentence (that is, a sentence in one of the s 5I(2)(a) categories) only when the application is made ("filed") (the interpretation favoured by the State); and (ii) that it is necessary that the defendant be serving a relevant sentence both at the time the application is made, and at the time the Court exercises its discretion to make an order (the interpretation favoured by the respondent). 1. The primary judge considered (justifiably, in my opinion) that, on the first proposed interpretation, par (b) of s 5B (requiring that the defendant be a "supervised offender" within the meaning of s 5I) would add nothing to par (c), (requiring that the application be made in accordance with s 5I). He considered that such an interpretation would render par (b) "otiose" (at [54]). His Honour preferred the second interpretation, in part because that interpretation avoids the duplication otherwise inherent in pars (b) and (c), and gives a separate and distinct operation to each of those paragraphs (at [56]). His Honour also (at [58]) considered that interpretation to be consistent with the purpose of the legislation, which he saw as being: "… to provide for the extended supervision (or detention) of a high risk offender immediately upon their completing their sentence where they presented an on-going risk to the safety of the community." 1. His Honour accepted (at [56]) that that construction meant that s 5B(b) would be interpreted as meaning: " '[the defendant] was and remains … a supervised offender, or else '[the defendant] is and continues to be …' a supervised offender at the time the court exercises its discretion to make an [extended supervision order]." (italics in original) 1. Finally, the primary judge noted (at [55]) the potential time lapse (of up to 9 months) between filing the application (which, by s 6(1), may not be done until the last 9 months of the relevant custody or supervision) and the time at which the Court will come to exercise its discretion. His Honour appears to have taken this into account as a circumstance favouring the second alternative interpretation. 2. The primary judge concluded that: "61 …s 5B(b) requires that a defendant must be a supervised offender at the time the court comes to exercise its discretion to make an [extended supervision order]. This means that, at that time, the defendant must be in custody or under supervision: a) while serving a sentence of imprisonment for a serious offence; b) while serving a sentence for a non-serious offence which is concurrent with, or consecutive to, the sentence for the serious offence; or c) is under an interim supervision order, or an existing [extended supervision order] (or interim or continuing detention orders)." (emphasis added) 1. His Honour held that because as at the date of hearing the respondent was no longer serving a sentence within any of the s 5I(2)(a) categories he was not, for the purposes of, or within, s 5B(b), a "supervised offender". As one of the cumulative requirements of s 5B could not be satisfied, his Honour answered Question 1 accordingly and dismissed the Amended Summons. Question 3 1. Question 3, as framed, was specifically directed to the circumstances of the present case. However, the answer has wider ramifications. The question concerns the commencement date of an extended supervision order. Section 10(1) provides that an extended supervision order commences on the later of two dates: the date the order is made, and the date on which the offender's "current custody or supervision" expires. The primary judge held that the earliest date, in this case, on which an extended supervision order could commence is 10 December 2022. He selected that date as the day following the expiration of the sentence currently being served by the respondent (the sentence imposed in respect of the s 37(1) (choking) offence). 2. The primary judge rejected an argument advanced by the State that s 160A of the Administration of Sentences Act expressly envisages the concurrent existence of an extended supervision order and a parole order. Subsection (1) of s 160A provides that an offender's obligations under a parole order made in respect of a sentence for a NSW offence are suspended while the offender is subject to (inter alia) an extended supervision order. 3. The primary judge held: "83 …the scheme of the [Act] is to provide supervision which extends from the end of the sentence of imprisonment and continues for a period fixed by the Court. … … 87 However, s 160A is not apt to permit an [extended supervision order] to be imposed with respect to the same offence upon which the person is serving their term of imprisonment for which parole may be granted. 88 That is so because the specific terms of s 10(1) of the [Act] provides for an [extended supervision order] to come into effect only once an offender's 'current custody or supervision expires.' This suggests that an [extended supervision order] cannot be effective whilst the offender remains under supervision as one would if subject to a parole order." (emphasis in original) The present proceedings 1. Section 22(1) of the Act confers a right of appeal to this Court from any determination of the Supreme Court to make or to refuse to make an extended supervision order. By subs (2) an appeal may be on a question of law, a question of fact, or a question of mixed law and fact. By subs (3) an appeal may be made, as of right, within 28 days of the date on which the decision was made, or, by leave, within such further time as this Court may allow. 2. By s 103 of the Supreme Court Act 1970 (NSW) an appeal lies, by leave, from a decision in proceedings in the Court of any question or issue ordered to be decided separately from any other question or issue. The answers given to the questions in this case are decisions within s 103. 3. The State contended (and the respondent did not dispute) that, pursuant to s 22 of the Act, and because the answer to Question 1 resulted in a refusal to make the extended supervision order sought, an appeal lies as of right with respect to the answer to that question. What purported to be a Notice of Appeal was filed by the State on 6 July 2021, outside (by two days) the 28 day period allowed by s 22(3). Given that leave is required in any event, it is appropriate to read the Notice of Appeal as an application for leave to appeal, either under s 22(3) of the Act (in respect of the answer given to Question 1), or s 103 of the Supreme Court Act (in respect of the answer given to each question). Leave to appeal should be granted. 4. By Ground 1 of the appeal the State asserts error in the construction given by the primary judge to s 5B(b) of the Act and his answer to Question 1, and his consequent dismissal of the Amended Summons. By Ground 2 of the appeal the State asserts error in the answer given by the primary judge to Question 3. Each question devolves into an issue of statutory construction. Relevant principles of construction 1. The relevant principles of statutory construction are well established and may be stated briefly. They are: 1. it is the duty of the Court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 at [78]; 2. in the interpretation of a statute the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33; 3. the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read "in the context" of the legislation as a whole. "Context" is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ, both quoted by Gageler J in SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 at [37]; The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35; 4. courts must strive to give meaning to every word of the provision to be construed (Project Blue Sky at [71]) and should "strain against a construction which gives no work whatsoever to legal language": Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] per Leeming J; if possible, some meaning and effect should be given to all the words used in a statute: The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11, cited by Mason CJ in Chu v Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13; [1992] HCA 64 ("the presumption against surplusage"). The rule is subject to the qualification that it may be displaced if there is good reason to do so: Lim, at 13. 5. a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment ("the principle of legality"); Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19], per Gleeson CJ; 6. legislation that affects personal liberty will be given a strict construction: Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139; [1980] HCA 49, and the authorities there cited. 1. Although the precise language used by Gleeson CJ (who was, in the result, in dissent) at [19] of Al-Kateb was not expressly adopted by other members of the Court, the substance of the paragraph was, differently expressed, endorsed by Kirby J (at [150]) and Hayne J (at [241]), and [19] has been referred to with approval on many occasions since and may now be taken to be uncontroversial. 2. In Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [29], French CJ said that a statute said to affect important common law rights and other safeguards of individual rights and freedoms will be construed as "effecting no more than is strictly required by clear words or as a matter of necessary implication". Application of the principles 1. It cannot be doubted (and the contrary was not suggested) that the Act clearly manifests in unambiguous language a legislative intention to abrogate or curtail, in certain circumstances, personal liberty, which Gleeson CJ in Al-Kateb described as the most basic of human rights and freedoms. It does so in its most extreme form by s 5C and Pt 3 (continuing detention orders), and, in a lesser but nevertheless significantly intrusive way, by s 5B and Pt 2. 2. But that is not all that the Act does. It is not solely directed to the abrogation or curtailment of freedom; it has among it express objects the protection of the community and the promotion of rehabilitation of serious sex and violent offenders: see State of New South Wales v Donovan (2015) NSWLR 389; [2015] NSWCA 280 at [58]-[60]. Community safety is, by s 9(2) made the paramount consideration in the determination whether or not to make an extended supervision order. 3. Contrary to the (somewhat muted) submission of the respondent, there is, therefore, limited (if any) scope for the application of the principle of legality as stated in Al-Kateb. On one view it may, as expressed by French CJ in Lee, call for a construction of s 5B that effects "no more than is strictly required by clear words or necessary implication". On the other hand, in the words of Gageler and Keane JJ in the same case: "314 … The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. … '[i]t it is of little assistance, in endeavouring to work out the meaning of parts of a [legislative scheme] to invoke a general presumption against the very thing which the legislation sets out to achieve'.", citing ASIC v DM Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 at [43] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ: see also Kassam v Hazzard [2021] NSWCA 299 at [83]-[90], [162]-[167]; (2021) 396 ALR 302; (2021) 311 IR 233. The construction issues 1. At issue is the proper construction of s 5B(b) of the Act, specifically the words "within the meaning of s 5I". So to state the issue disguises its complexity. 2. The specific question is whether the words "within the meaning of s 5I" in s 5B(b) incorporate the words in the chapeau to s 5I(2) "when the application for the order is made" (to which I will refer as "the parenthesised words"). So to construe "within the meaning of s 5I" in s 5B(b) would mean that it will be both necessary and sufficient to satisfy the s 5B(b) criterion that the defendant was serving a sentence of imprisonment within any of the s 5I(2)(a)(i)-(iv) categories or under supervision within s 5I(2)(b) at the time the application is made, regardless of whether that continued to be the case at the time of determination of the application. 3. The alternative construction, adopted by the primary judge and favoured by the respondent, is that the parenthesised words are not intended to form part of the definition and should be excised when s 5I(2) is applied as a definition of "supervised offender". If that were the proper construction, then, by reason of the use of the present tense in par (b) of s 5B, that criterion would be satisfied only if the defendant were serving a sentence of imprisonment in one or more of the s 5I(2)(a)(i)-(iv) categories at the time of determination of the application, or under supervision within 5I(2)(b) notwithstanding that he or she was serving such a sentence or under such supervision at the time the application was made. 4. The primary judge, in my opinion, correctly identified (at [53]) the two available alternative constructions of s 5B(b). Also correctly, in my opinion, his Honour concluded (at [61]) that par (b) requires that the defendant be a "supervised offender" at the time the application is determined. That, however, masks the real issue, which is what constitutes a "supervised offender" for the purposes of par (b). That is the area of contention. 5. In the balance of [61] the primary judge assumed (incorrectly, in my opinion) that a defendant is a "supervised offender" only if he or she is serving a sentence of imprisonment in one of the s 5I(2)(a)(i)(iv) categories, or is under supervision in one of the categories specified in s 5I(2)(b) at the time of determination of the application. 6. For the purpose of identifying what is meant by a "supervised offender", par (b) of s 5B expressly directs attention to s 5I, in which "supervised offender" is clearly defined as an offender (as defined in s 4A) who "when the application for the order is made" ("the parenthesised words") is serving a relevant sentence or is under relevant supervision (s 5I(2)(b)). 7. It is difficult to see, on a literal or textual analysis of s 5B(b) and s 5I(2), why the parenthesised words should not be given effect in considering whether a defendant is a "supervised offender". One consequence of an interpretation that incorporates the parenthesised words as part of the definition of "supervised offender" is that, while it is necessary that the defendant be serving a relevant sentence or be under relevant supervision at the time the application is filed, it is not necessary that that position obtain at the point of determination of the application. That would mean that the correct interpretation of s 5B(b) is the first of the two alternatives formulated by the primary judge. 8. The respondent, however, contended that consideration of "text, context and purpose" of s 5B(b) point to the alternative construction. He invoked s 33 of the Interpretation Act in support of the proposition that par (b) should be interpreted so as to empower the court to make an extended supervision order only if the defendant remains in relevant custody or under relevant supervision at the time of determination of the application, and not in circumstances where such custody or supervision existed at the time the application is made but expires before determination. 9. The respondent did not point to any extrinsic material that would support the proposition that the interpretation for which he advocates better promotes the purpose or objects of the Act than would the alternative interpretation. The purpose of the Act is found in the long title and in s 3, expressly stating the objects of the Act. Nothing is to be found in either that suggests that the purpose of the Act was to confine the availability of extended supervision orders to offenders who, at the time of determination of an application, are serving relevant sentences or under relevant supervision. 10. The objects of the Act, as stated in s 3, are twofold: primarily (relevantly) to provide for extended supervision of high risk sex and violent offenders so as to ensure the safety and protection of the community (subs (1)); also to encourage high risk sex and violent offenders to undertake rehabilitation (subs (2)). How those objectives are better served by excluding from amenability to extended supervision orders a class of offenders by reason only that the terms of imprisonment or supervision (which necessarily exist at the time the application is made) expire before the application is determined was unexplained. In this respect it is to be observed that, by reason of s 6(1), (by which an application may not be made until the last 9 months of the defendant's current custody or supervision), on the respondent's construction a maximum of 9 months would be allowed from filing of the application to determination. As can be seen from s 7, a number of steps, some of them time consuming and outside the control of the State, must be taken after filing and before final determination. These include: 1. service of the application (which must, subject to discretionary extension, be within 2 days of filing) (s 7(1)); 2. disclosure of relevant supporting material (s 7(2)); 3. conduct of a preliminary hearing which must, (again subject to discretionary extension) take place within 28 days of filing (s 7(3)); 4. determination (as to which no time limit is placed); 5. assuming the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order: 1. appointment of two qualified professional psychologists or psychiatrists; 2. examination of the defendant by those professionals; 3. report to the Court by those professionals; 1. conduct by the Court of a final hearing; 2. determination by the Court (as to which no time limit is placed). 1. The consequence of the construction of s 5B(b) for which the respondent advocates is that if those steps (including final determination) are not completed within the 9 month period allowed, the expiration of the relevant custody or supervision would operate as a guillotine on the application. I find nothing in the "text, context or purpose" of the legislation that would support a construction of s 5B(b) that could have that consequence. Moreover, it may be observed, obstructive or delaying tactics (for example, failing to attend the professional examinations or failing to participate) by a defendant may operate to defeat the objects of the Act. 2. The respondent placed significant emphasis on the use of the present tense in s 5B(b), relying on the decision of this Court in Tannous v State of New South Wales [2020] NSWCA 261 (a decision with respect to s 5B(d)) to support the proposition that, to come within that paragraph, the defendant must, at the time of determination, be a "supervised offender". I have no difficulty with the proposition that the status of "supervised offender" must exist at the time of determination: as set out above, the question is not when the defendant must have that status, but what is encompassed in the term "supervised offender". Reference to the use of the present tense in par (b) of s 5B throws no light on that question. 3. Nor does the respondent's next argument, which was that, if s 5B(b): "… is interpreted to include an offender who was a supervised offender at the time of the application but is no longer, then the effect of such an interpretation is to significantly extend those offenders caught by the power to make an [extended supervision order]". (emphasis in original) 1. The fallacy in that argument is that it assumes the answer to the critical question – that is, it assumes that a "supervised offender" is a person serving a relevant sentence ("in relevant custody") or under relevant supervision at the time of determination, without reference to the parenthesised words in s 5I(2). True it is that, if the parenthesised words form part of the definition of "supervised offender", the class of offenders in respect of whom an extended supervision order may be made will be wider than it would be if those words do not form part of the definition. That is because, absent the parenthesised words, the s 5B(b) reference to "supervised offender (within the meaning of s 5I") would be a reference to "an offender who is (as at the date of determination) in relevant custody or under relevant supervision". 2. The parenthesised words change the temporal direction of s 5I. They make it clear that it is at the time of the application that a defendant is required to meet one or other of the s 5I(2)(a) or (b) criteria. A clear inference is that, provided that the defendant is in relevant custody or under relevant supervision at the time the application is made, it is not necessary that he or she also come within one or other of those categories at the time of determination. 3. It is not correct to say, as the respondent does, that that interpretation "is to significantly extend those offenders caught by the power to make an [extended supervision order]". Absent s 5B, there is no class of offenders in respect of whom an order may be made that could be "extended". Section 5B(b) requires that a defendant be a "supervised offender" within the meaning of s 5I at the time of determination; s 5I defines the class of persons to whom par (b) applies. There is no class to extend. 4. A further argument advanced by the respondent in favour of the construction adopted by the primary judge was that an absurdity could result in circumstances where an application for an extended supervision order is made in respect of a person who has been convicted of and sentenced for a serious offence, but who, before the application is determined, successfully appeals and is acquitted, the sentence being quashed. 5. It is, theoretically, correct that s 5B might apply to such a person, although some qualifications should be noted. First, s 5B(a) requires that the defendant be an offender. "Offender" is relevantly defined in s 4A as a person who: "… has at any time been sentenced to imprisonment … following … conviction for a serious offence". Specifically excluded from the definition are persons whose sentences have been suspended or quashed. Thus, the quashed sentence could not be a "sentence of imprisonment" for the purposes s 5B(a). The respondent's proposition would hold good only if the defendant had, on another occasion, been sentenced for a "serious offence". It would then be necessary that the application for the extended supervision order be made during the currency of that sentence or supervision. 1. Further, the principal operative provision of s 5B is par (d), which permits the discretion to make an extended supervision order to be exercised only if the court is satisfied to a high degree of probability that the offender poses (at the time of determination) an unacceptable risk of committing another serious offence if not kept under supervision under an order. 2. The theoretical possibility that an extended supervision order might be made in respect of a person who has been acquitted of the offence that provided the foundation for the application for the extended supervision order does not persuade me that the provision ought to be construed so as to exclude that possibility. 3. The respondent's next argument was that an "extended supervision order" would ordinarily be seen as one that "continues the duration of an existing period of supervision". This, it seems to me, adopts the primary judge's view (in [58]) that the purpose of the Act: "… was to provide for extended supervision order … of a high risk offender immediately upon their completing their sentence where they presented an ongoing risk to the safety to the community". (emphasis added) 1. In this context the respondent also referred to s 10A of the Act, providing for interim supervision orders, which may be made where it appears that the defendant's current custody or supervision will expire before the proceedings are determined. One difficulty with that approach is that it fails to identify anything in the Act (or extrinsic material) that requires continuity of the "current custody or supervision" and commencement of an extended supervision order, with no hiatus, or seamless transition from "supervised offender" status under s 51(2) to extended supervision under s 5B. The proposition is, indeed, contradicted by two things: first, by s 10(1) which provides that an extended supervision order commences on the later of the date on which it is made and the expiration of the offender's "current custody or supervision". That provision, it seems to me, contemplates that there may be some interval between the expiration of the custody or supervision and the making of the order. Second, s 5B(a) contemplates that an extended supervision order may be made in respect of an offender "who has served" a sentence of imprisonment for a serious offence. 2. At first blush, it might appear that s 10A (providing for interim supervision orders) affords some support for the respondent's contention. Closer examination, however, dispels any such notion. By s 10C(1)(a) an interim supervision order may be made for a maximum of 28 days; by subs (2) an interim supervision order may be renewed from time to time but not so as to provide for supervision of the offender for periods totalling more than 3 months. 3. The Act is silent as to the purpose for which the power to make interim supervision orders is provided, but I do not accept that it is (as was contended on behalf of the respondent) to ensure that the defendant will remain in custody or under supervision until the application is determined. That is contradicted by the very limited time span over which an interim supervision order may operate – a maximum of 3 months. As noted above, if the respondent's construction of s 5B(b) were correct, a period of 9 months would be allowed for the entire process, from filing of the application to determination. Section 10A would, on that construction, allow the defendant to remain under (interim) supervision for 3 months of that time, but no longer. Section 10A would not alleviate any problems of lack of continuity of custody or supervision. 4. I have left the respondent's most powerful argument to last. That is that to construe s 5B(b) as requiring that the defendant come within the definition of "supervised offender" in s 5I (including the parenthesised words) at the time of determination would leave nothing for s 5B(c) to do. The s 5B(c) criterion is that the application is made "in accordance with s 5I". Section 5I does three things: 1. in subs (1) it restricts applications for extended supervision orders to "supervised offenders"; 2. in subs (2) it defines "supervised offender"; and 3. also in subs (2), it defines "current custody or supervision". 1. Apart from subs (1), s 5I states no requirements on how an application is to made. That is done by s 6 which, in subs (1), specifies the time (no more than 9 months before the expiration of the offender's "current custody or supervision") at which an application may be made and, in subs 3, specifies the documentary material that must be provided in support of an application. 2. A criterion that a defendant be a "supervised offender" within the meaning of s 5I is not in any sense different from a criterion that the application for the order be made in accordance with s 5I – that is, be made in respect of a "supervised offender". This infelicity played a significant role in the reasoning of the primary judge. 3. The State recognised the infelicity and that the construction that it favoured will not accommodate the principle of construction known as the presumption against surplusage, but urged that this is an appropriate case to apply the exception, permitting departure from the rule if there is good reason for departure. 4. For my part, I accept the State's contention. The most compelling reason for that lies in a different application of the presumption against surplusage. That takes me back to s5I(2), and the parenthesised words. The parenthesised words in s 5I ("when the application for the order is made") contribute nothing to s 5I. Absent those words, s 5I(2) would read: "A 'supervised offender' is an offender who is in custody or under supervision … (a) while serving a sentence of imprisonment …" 1. Section 5I would then provide that an application for an extended supervision order may be made only in respect of an offender (within the meaning of s 4A) who is in custody or under supervision as described in subs (2)(a)(i)-(iv) or (b). The present tense "is" would mean that an application may only be made in respect of an offender in that category at the time the application is made. 2. The parenthesised words are given operative effect by s 5B(b). Accordingly, s 5B(b) requires that the defendant to an application be in relevant custody or under relevant supervision at the time the application is made, and does not require that that custody or supervision be in existence at the time of determination of the application. The only purpose served by the parenthesised words that I can see is to make clear that the status of "supervised offender" must exist at the time the application is made. It is a clear inference that that status is not required to exist at the time of determination. This approach is consistent with the legislative history. 3. The Act began life in 2006 as the Crimes (Serious Sex Offenders) Act "the 2006 Act"). As the name implied, it applied only to "high risk sex offenders". Part 2 provided for extended supervision orders. Relevantly, the 2006 Act provided: "6(1) The Attorney General may apply to the Supreme Court for an extended supervision order against a sex offender who, when the application is made, is in custody or under supervision: (a) while serving a sentence of imprisonment; (i) for a serious sex offence or, (ii) for an offence of a sexual nature, … 9(1) The Supreme Court may determine an application for an extended supervision order (a) by making an extended supervision order, or (b) by dismissing the application. 9(2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision." (emphasis added) Subsection (3) set out the matters to which the Court was required to have regard in determining whether or not to make an extended supervision order. 1. There was nothing in that legislation that could be construed as limiting the availability of an extended supervision order to offenders who remained, at the time of determination, in relevant custody or under relevant supervision (although, like s 5B(d), s 9(2) required that the likelihood of recidivism had to be established to the satisfaction of the Court contemporaneously with the determination). 2. The 2006 Act underwent significant amendment in 2013: Crimes (Serious Sex Offenders) Amendment Act 2013 ("the 2013 Act"). By the most significant aspect of the amendment, the 2006 Act was expanded to include "high risk violent offenders". Part 1A provided for supervision and detention of high risk violent offenders. Section 5E dealt with high risk violent offenders. The relevant provisions of s 5E were: "(1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision." 1. Section 5H provided that the State could apply to the Court for an extended supervision order against an offender. By s 5J such an application could be made only in respect of a "supervised violent offender", defined in subs (2) as "a violent offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment" for a serious violence offence, an offence against s 12, or for another offence for which the sentence was being served concurrently with or consecutively upon or partly currently with and partly consecutively upon, a sentence for a serious violence offence or an offence against s 12. That is, "supervised violent offender" was defined in the 2013 Act in terms not materially different from the terms in which "supervised offender" is defined in s 5I of the Act. Again, there was nothing in the 2013 Act that required that the custody or supervision that was the essential foundation for the application subsist until the time of determination of the application. 2. The Act took its present form following further amendment in 2017 (Crimes (High Risk Offenders) Amendment 2017). 3. The respondent identified nothing in any extrinsic material (second reading speech, explanatory memorandum) accompanying the proposed amendments that suggested that the legislature intended to add to the requirement that the defendant be serving a relevant sentence or be under relevant supervision at the time of the application a further requirement that the defendant continue to be in relevant custody or under relevant supervision at the time of determination. Nor can such an intention be discerned from the language of the Act. 4. In my opinion it is sufficiently clear that the legislative purpose in the insertion of the parenthesised words in s 5I(2) was to provide that an extended supervision order may be made where the offender had the status of "supervised offender" at the time the application was made, whether or not that status continued to exist at the time the Court comes to its determination of the application. That is consistent with the two previous versions of the legislation. 5. I am therefore of the view that the answer given by the primary judge to Question 1 was incorrect. The correct answer is: "Yes. As at 8 June 2021 the defendant (the respondent) was, for the purposes of s 5B(b) of the Crimes (High Risk Offenders) Act 2006, a "supervised offender within the meaning of s 5I(2) of that Act". 1. During the course of argument it was suggested (by the Court), that one way of reconciling pars (b) and (c) of s 5B (and eliminating the duplication) might be to read the reference in par (c) to s 5I as a reference to s 6. 2. To do so would make perfect sense. Paragraph (c) of s 5B requires the Court to be satisfied that the application for the order be made "in accordance with s 5I". But, as set out above (at [88]), s 5I does not specify any requirement for the making of an order, other than that it be made in respect of a "supervised offender". Section 6, on the other hand, expressly states the requirements of an application – that it be made within the last 9 months of the offender's custody or supervision, and that it be supported by documentation complying with subs (2). To read par (c) as requiring that the application be made in accordance with s 6 would properly differentiate between par (c) and par (b) and give each separate and distinct work to do. But that is not what was enacted. 3. The Court invited the parties to consider whether the approach taken to construction of a contract taken by the High Court in Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 could be adopted. Neither party embraced the suggestion. As the respondent pointed out, Fitzgerald v Masters involved the construction of a contract reflecting a commercial arrangement between individuals. In Fitzgerald v Masters, the contract was expressed in terms that, it was held, did not reflect the intention of the parties and was, accordingly, construed by the Court in a way that did achieve their purpose. In that context, Dixon CJ and Fullagar said (at 426-427): "Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency." Specifically, in that case, the Court read the word "inconsistent" in the contract as though it were "consistent". 1. I agree with the respondent that it is difficult to apply to statutory construction the remedial approach taken in Fitzgerald v Masters to a commercial agreement in which the common intention of the parties was the prevailing consideration. 2. The State, nevertheless, suggested two possible alternative ways of reading par (c): * "an application for the order is made in accordance with s 5I and s 6(1)"; or * "an application for the order is made in accordance with s 6(1)". 1. To read s 5B(c) as requiring compliance with s 6(1) would bring s 5B into alignment with s 5C, which requires, in par (c), that an application for a continuing detention order be made in accordance with s 13B. Section 13B is in some, but not all, respects parallel to s 5I. By subs (1) of s 13B an application for a continuing detention order may be made only in respect of (a) a "detained offender" (as defined in subs (2)) or (b) a "supervised offender" (as defined in subs (4) in terms identical to s 5I(2)). 2. Subsections (3) and (5) of s 13B, like s 6(1), limit the time at which an application for a continuing detention order may be made to the last 9 months of the offender's custody or supervision. The Part 3 provisions parallel, or equivalent to, s 6(3) and (4) are found, not in s 13B, but in s 14. 3. Either reading involves a clear departure from the words used by the legislature. However, the reference to s 5I in par (c) may be seen as no more than an erroneous cross-reference, intended to be to s 6. Precedents, some of which were cited by the State, exist for reading statutory provisions containing plainly erroneous cross-references so as to reflect the apparent intention of the legislature. 4. In Lindner v Wright (1976) 14 ALR 105 s 8A(1) of the Fisheries Ordinance 1965 (NT) conferred on inspectors powers of entry, search, seizure and detention in certain circumstances. Subsection 3 created an offence of failing to comply with a requirement of an inspector under subs (1). Subsection (4) required an inspector who exercised powers under subs (1) to forward a report in writing containing certain information to the Administrator. Subsection (6) made evidence obtained in the exercise of subs (1) powers inadmissible unless "the report referred to in subs (3)" had been duly forwarded to the Administrator. 5. No reference was made in subs (3) to any report. Muirhead J considered a reference to "subs (3)" in subs (6) to be "plainly and undoubtedly an error" and read subs (6) accordingly. 6. In Envy Trading v Queensland [1998] 1 Qld R 413 the legislation involved was s 18(1) of the Forestry Act 1959 (Qld). Section 18(1) conferred on "forest officers" powers of inspection and examination; by par (b) forest officers were permitted (in the exercise of powers under subs (1)) to be accompanied and aided by any person the forest officer thought competent to assist. Paragraph (c) permitted the forest officer to make "such examination and enquiry as may be necessary to ascertain" compliance with the legislation. Paragraph (e) empowered the forest officer to require production of certain documents which were, in the opinion of the forest officer, "material to any enquiry under paragraph (b)". Paragraph (b) made no reference to any "enquiry". Davies JA and McKenzie J considered that par (c) was the only paragraph to which reference in par (e) could "sensibly relate" and construed that paragraph accordingly. 7. In Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322, s 200G of the Corporations Law disapplied s 200B(1) (prohibiting payment of certain benefits) where the value of the benefit (together with others) did not exceed a payment limit "set by subs (1A)". There was no subs (1A). Basten and Bell JJA (with the concurrence of Beazley JA) accepted that the reference was a mistake and read the subsection as referring to s 200G(2). 8. Also cited by the State was the decision of the High Court in Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2, involving the Police Act 1990 (NSW) which had undergone significant amendment over its life. Section 117(2) referred to s 89, which had been repealed and re-enacted as s 88. Crennan, Kiefel and Bell JJ read the reference to s 89 as a reference to s 88. However, in doing so, their Honours resorted to s 68(3) of the Interpretation Act, which has no present application. 9. Not referred to by the State but worth a mention is the decision of this Court in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100, which concerned a definition of "sentence" in s 2(1) of the Criminal Appeal Act 1912 (NSW). The definition referred to an order for payment of costs made under "Div 3 of Pt 5 of Ch 4 of the Criminal Procedure Act 1986 [(NSW)"]. The legislation had undergone significant amendment. The relevant orders were previously authorised by "Div 3, Pt 5 and Ch 4" but that authorisation was subsequently placed in "Div 4 of Ch 4, Pt 5. Basten JA, with whom Hoeben JA and Walton J agreed, said, at [20]: "… This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention." 1. These cases, while establishing that a Court may, in order to give effect to the plain intention of the legislature, read a statutory provision as though it contained words other than those enacted, are arguably more clear cut than the present case. 2. The authority on which the State primarily relied was Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9. The legislation there in question was s 12(2) of the Civil Liability Act 2002 (NSW), which limited the award of damages in certain cases under the Compensation to Relatives Act 1897 (NSW). A judge of the Supreme Court had answered a separate question in a way that, effectively, reworded the statutory provision and inserted words that did not appear in the enactment. 3. In those circumstances the High Court considered three conditions stated by Diplock LJ in Wentworth Securities Ltd v Jones [1980] AC 74 that would be required to be met before a court could read a statute as though it contained words additional to those that had been enacted. French CJ, Crennan and Bell JJ said: "38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'." (internal citations omitted) 1. This case does not involve the proposed addition or omission of words in the statute, and, other than as matters of general principle, Lord Diplock's three conditions have limited application. But French CJ, Crennan and Bell JJ, went on to say: 104 ".. however, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' because any modified meaning must be consistent with the language in fact used by the legislature. … Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd [(1997) 191 CLR 85; [1997] HCA 53], the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances'." (some internal citations omitted) 1. To my mind the most useful authority is Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26. Cooper Brookes concerned the construction of a taxation statute (the Income Tax Assessment Act 1936 (Cth)). After noting the established principle that the object of a court in interpreting a statute is to ascertain "the intention expressed by the words used", Gibbs CJ said (at pp 304-5): "There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of acts of the Legislature', … may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice." 1. Stephen J made observations to similar effect. Mason and Wilson JJ said (at [319]): "In earlier times it was expressed more absolutely than it is today possibly because the courts, anxious to distinguish between legislative and judicial functions, were at pains to emphasise that it is no part of the judicial function under the cloak of construction to amend statutes merely to overcome shortcomings in their operation." 1. Their Honours, later in their joint judgment, said (at 321): "On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions." 1. A useful discussion of the relevant principles may be found in P Herzfield and T Prince: Interpretation (2nd Ed), Thomson Reuters, 2020 at [5.250], especially the cases cited in fn 188, and [5.290]. 2. I have come to the view that the reference to "s 5I" in s 5B(c) of the Act was a drafting or cross-referencing error and should have been a reference to s 6. In the words of Mason and Wilson JJ, a literal reading of s 5B(c): "… does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions". Such a construction gives sensible operation to par (c): it calls for compliance with those requirements of s 6 which otherwise would be absent from s 5B. The three requirements of s 6 are: (1) that the application be made not before the last 9 months of the offender's current custody or supervision; (2) that the application be supported by documentation that addresses each of the (quite numerous) matters specified in s 9(3) and (3) that the documentation include a report prepared by a suitably qualified professional assessing the likelihood of the offender committing a serious offence. 1. It is true, as the respondent was quick to point out, that, in its submissions, the State proposed only the substitution or insertion of "s 6(1)", excluding the requirements of subs (2)(a) and (b), and of subs (4) (which permits proposed conditions to be included in the application). It may be assumed that the State confined its proposal to substituting "s 6(1) for "s 51" in s 5B(c) in the interests of conformity with s 5C(c) and s 13B(5) and (6). I would go further than the State proposes and include the remaining sub-sections of s 6. 2. While this approach strengthens the conclusion that I have, in any event, reached above, it is not essential to that conclusion. What it does is to dispose of one unappealing aspect that construction – the duplication of the requirement that the application conform with s 5I. It also has the added advantage that it emphasises that an order may not be made by the Supreme Court unless the requirements of s 6 are satisfied. Ground 2: Question 3 1. Both the State and the respondent agreed that the answer given to Question 3 is incorrect, although they advanced different reasons for so concluding. 2. The parties agreed that the error in his Honour's reasoning lies in his overlooking that s 10(1) of the Act is concerned with the expiration of "the offender's current custody or supervision". That phrase has a particular, defined, meaning. As set out above in relation to Question 1, "current custody or supervision" for the purposes of Part 2 of the Act is defined in s 5I(2) as custody or supervision referable to any of the four categories of sentence identified in pars (a)(i) to (iv) of s 51. 3. The respondent was, from 9 June 2021, subject to the sentence for the s 37(1) offence that will not expire until 9 December 2022, and on parole (under supervision) with respect to that sentence. However, that "custody or supervision" was not referable to any of the categories of sentence within the s 5I(2) definition; he was, therefore, as at 8 June 2021, not subject to any "current custody or supervision" within the meaning of Part 2 of the Act. Accordingly, an extended supervision order, if made, would, by s 10(1), commence on the date it was made. 4. The respondent's position was that s 10(1), read with s 9(1)(a), confers a discretion on the court to determine the date on which an extended supervision order, if made, will commence. 5. I reject that contention. It is true that the jurisdiction conferred by s 9(l) is discretionary (the exercise of the discretion being conditioned on the requirements of Pt 2 of the Act), but the language of s 10(1) is clear and unambiguous. It leaves no room for discretionary variation of the commencement date for which the subsection provides. There is nothing in s 10(1) (or any other provision of the Act) that suggests that the Court may depart from the commencement date so specified. 6. The orders I propose are: 1. Pursuant to s 22(3) of the Crimes (High Risk Offenders) Act 2006 (NSW) the State of New South Wales has leave to appeal against the order of the Supreme Court of 8 June 2021 dismissing the Amended Statement of Claim filed on 5 December 2018; 2. Appeal upheld; orders 2 and 3 of the Supreme Court of 8 June 2021 set aside; answer to Question 1 set aside. In lieu thereof, Question 1 be answered "Yes". 3. Pursuant to s 103 of the Supreme Court Act 1970 (NSW) the State of New South Wales has leave to appeal against the decision of the Supreme Court of 8 June 2021 in answer to Question 3 of the Questions for separate determination under UCPR 28.2; 4. Appeal allowed: answer to Question 3 set aside. In lieu thereof, Question 3 be answered: Yes. ********** Amendments 08 June 2022 - Punctuation in [64], [101], [103]. [123] 24 June 2022 - Change to order No 2 24 June 2022 - Change to order No 2 12 October 2022 - [121] "legislature" should read "legislative" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2022