Franks v Franks [2012] NSWCA 209

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Franks v Franks [2012] NSWCA 209 Hearing dates: 9 July 2012 Decision date: 09 July 2012 Before: Basten JA at 1; Barrett JA at 26; Hoeben JA at 27 Decision: Summons dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - procedural fairness - application for apprehended violence order before Local Court - solicitor for applicant sought but did not press adjournment - applicant alleged procedural unfairness - whether applicant was aware of time and place of hearing - whether error identified in failure to grant adjournment

PROCEDURE - apprehended violence orders - appeal from Local Court to District Court - protected person sought to appeal against ancillary property recovery order - whether ancillary property recovery order falls within expanded meaning of apprehended violence order - whether application for apprehended violence order is a criminal proceeding - whether right of appeal available - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84; Local Court Act 2007 (NSW), ss 44 and 70 Legislation Cited: Crimes Act 1900 (NSW), s 4; Pt 15A Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 37, 84, Pts 4, 5, 8 District Court Act 1973 (NSW), s 176; Pt 4 Local Court Act 2007 (NSW), ss 44, 70; Pts 3, 4 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Garde v Dowd [2011] NSWCA 115 Spanos v Lazaris [2008] NSWCA 74 Category: Principal judgment Parties: Gregory Franks (Applicant) Brad Franks (First Respondent) District Court of NSW (Second Respondent) Attorney General of NSW (Amicus Curiae) Representation: Counsel: