AAA (a pseudonym) v County Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 05160

BETWEEN:

AAA (A PSEUDONYM)	Plaintiff
v
COUNTY COURT OF VICTORIA & OTHERS (according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2025
DATE OF JUDGMENT:	4 September 2025
CASE MAY BE CITED AS:	AAA (a pseudonym) v County Court of Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 550

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JUDICIAL REVIEW AND APPEALS LIST ― Judicial review of a family violence final intervention order ― Plaintiff’s appeal of a County Court order from a rehearing of a County Court appeal ― Error alleged on the basis of jurisdictional error, errors of law, denial of procedural fairness and breach of natural justice ― Standing of Victoria Police officers in subsequent applications under Family Violence Protection Act 2008 (Vic) ― Definition of a ‘party’ to proceedings under the FVP Act ― Appeal dismissed ― Nathanson v Minister for Home Affairs (2022) 276 CLR 80 ― Family Violence Protection Act 2008 (Vic) ss 108, 120.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Cenacchi	TechComm Legal
For the First Defendant	-	-
For the Second Defendant	Self-represented	-
For the Third Defendant	J Bayly	Victorian Government Solicitor’s Office

Contents

A.. Introduction

B.. Statutory Framework and Proceeding Chronology

B.1          Magistrates Court’
B.2          Appeals and Reviews
B.2.1        The first appeal hearing
B.2.2        The appeal rehearing

C.. Decision in the appeal rehearing

D.. The present grounds of review

E... Statutory Framework

F... Threshold issue

G.. Grounds for Review

G.1         Ground 1 – Standing of Police officer
G.1.1        Submissions
G.1.2        Consideration

G.2         Grounds 2 and 3
G.2.1        Submissions
G.2.2        Consideration

G.3         Ground 4 – Breach of Natural Justice
G.3.1        Submissions
G.3.2        Consideration

H.. Conclusion

HER HONOUR:

A Introduction

AAA was the respondent to a family violence final intervention order made under the Family Violence Protection Act 2008 (Vic) (FVP Act). The order was made by the Magistrates’ Court on 4 December 2020 (the 4 December order). AAA appealed that order to the County Court of Victoria and now invokes the supervisory jurisdiction of this Court to review the County Court order of 29 July 2024 for legal error.
BBB, a protected person by the family violence intervention orders – who appeared remotely on her own behalf in this Court and elsewhere – opposed the relief sought by AAA. Victoria Police, or more accurately, Seargent Evans (Evans), also appeared and opposed the relief sought. The named third defendant, Victoria Police, is an unincorporated body with no legal identity.[1] An order was made by consent at the hearing that Evans be substituted as the third defendant. The County Court advised it would abide by any decision and did not seek to participate in the hearing.[2]
[1]Section 6 Victoria Police Act 2013 (Vic) and s 6(1)(k) Public Administration Act 2004 (Vic).
[2]By letter dated 11 October 2024.

B Statutory Framework and Proceeding Chronology

To understand the submissions in support of the legal questions and grounds relied on by AAA, it is necessary to set out the factual chronology.

B.1 Magistrates Court’

Evans commenced a proceeding by an application on 11 May 2015 seeking an interim order against AAA. [3] On 31 July 2015, the interim protection order was made (initial protection order). It is apparent from the initial protection order that AAA was not present at Court when it was made. The initial protection order restrained AAA from certain acts of family violence and named BBB and their daughter[4] as protected persons.
[3]Third Defendant, ‘Affidavit of Detective Leading Senior Constable Michael Newgreen’ (‘Newgreen Affidavit’) sworn 03 August 2023 [5].
[4]The daughter was given the pseudonym ‘DDD’ in the Magistrates’ Court, and I will refer to her as necessary in this judgment as DDD.
The initial protection order was extended on 28 July 2016, and again on 29 November 2016 (extended protection order). At the time the extended protection order was made, AAA was not at Court. AAA deposed that he was served with documents in late 2016 by Rosebud Police. AAA described the documents served as an ‘Extension Application and Interim IVO’.[5] The documents exhibited to AAA’s affidavit are the extended protection order of 29 November 2016 and an application dated 30 November 2016 to further extend that order, which was returnable on 13 June 2017 at Melbourne Magistrates’ Court. Evans was the plaintiff in that further extension application.
[5]Plaintiff, ‘Affidavit in Support of Submissions’ sworn 22 May 2024 in the County Court of Victoria.
The evidence does not disclose what occurred on 13 June 2017 or otherwise, until such time as 1 August 2019 when another application for the extension of a family violence order was made, this time with BBB as the applicant. That application (2019 extension application) was originally returnable on 2 August 2019. According to the affidavit of Detective Leading Senior Constable Newgreen (DLSC Newgreen), what occurred at Court on 2 August 2019 was that:
The presiding Magistrate determined that should police withdraw from the proceedings, the application may not be able to proceed, as BBB (the applicant for the extension application) had not attended court.[6]
[6]Newgreen Affidavit [8].
Later, on 21 August 2019, where I infer BBB was present, the Magistrates’ Court was advised that BBB would have carriage of the contested proceeding and the police would not be involved in the matter, although it appears that a police presence was maintained until the final contested hearing in December 2020.[7]
[7]Newgreen Affidavit [9].
The extended protection order continued in place until 4 December 2020 when, following a three-day contested hearing in which both AAA and BBB participated, a final protection order was made (final protection order). Both AAA and BBB were legally represented for the purpose of cross-examining the other. In the conduct of the trial it became clear that the representation of each extended beyond that limited role. Victoria Police did not play an active role in that hearing.[8]
[8]Newgreen Affidavit [16].
Following the contested hearing, Magistrate Foster made the final protection order against AAA. That order notes that AAA was ‘served with a copy of the Application and Summons… Was at Court… Did not agree [with the] Order being made’, and that an oral explanation was given to him by the Court that day.[9]
[9]Order of Magistrate Foster (Melbourne Magistrates’ Court, 4 December 2020) (emphasis added). The relevant Application and Summons is not otherwise identified by the Order.

B.2 Appeals and Reviews

AAA appealed the orders of Magistrate Foster to the County Court. That appeal has been the subject of two substantive hearings.

B.2.1 The first appeal hearing

The appeal was conducted as a hearing de novo before Judge Tran (first appeal hearing). On 26 August 2021, the Judge varied the order made in respect of DDD only, to reduce it from an indefinite period to a limited period, expiring upon the daughter reaching the age of eighteen.
Although describing their role as ‘minimal,’[10] Victoria Police actively participated in the first appeal hearing, making submissions as to the appropriate variation of the orders.[11] Sergeant Evans was unavailable. In his place, Detective Senior Sergeant Russell affirmed an affidavit supporting the extension that had been ordered but proposed that in respect of DDD it be for a limited period.
[10]Newgreen Affidavit [17].
[11]Plaintiff, ‘Affidavit of Matthew Russell, Detective Senio Sergeant of Victoria Polica’ affirmed 26 July 2021’, which sets out the factual history and reports of alleged family violence to police.
AAA sought judicial review (first judicial review) on the basis of legal error by the County Court. Following reasons published on 31 January 2023, Justice John Dixon remitted the proceeding for rehearing on the basis that Judge Tran erred in conducting a hearing de novo. Dixon J concluded that an appeal, by reason of s 119 of the FVPAct, is a re-hearing so jurisdiction is only enlivened where there is factual, legal or discretionary error in the appealed decision.[12] Dixon J also noted that none of the grounds before him sought review of the Judge Tran’s order in respect of BBB.
[12]AAA v Country Court Victoria & Ors [2023] VSC 13 (‘Dixon Reasons’) [67].
In the first judicial review, a pseudonymised police officer was listed as a party in the schedule of parties and described as a Contradictor for the purpose of assisting BBB who also opposed the review.

B.2.2 The appeal rehearing

The matter was remitted to the County Court for a re-hearing in accordance with Dixon J’s decision. A preliminary matter then arose. DLSC Newgreen made an application to be substituted as the police applicant (in substitution for Evans) and to withdraw or be excused from further participation in the re-hearing. Judge Tsikaris ruled on this application and, in reasons published on 20 September 2023, refused leave to withdraw as a party and refused to excuse the defendant from further attendances.[13]
[13]AAA v BBB [2023] VCC 1686 (‘Tsikaris Reasons’).
Judge Davis then held a preliminary hearing on 8 July 2024 to determine whether the Magistrate had made a factual, legal or discretionary error giving rise to the appellate jurisdiction (appeal rehearing). As a preliminary issue at this rehearing, AAA objected to the participation of Victoria Police, arguing that the police had no standing to participate. Her Honour determined that the police remained a party before the Magistrate and so had standing to participate in the appeal.[14]
[14]AAA v BBB [2024] VCC 1107 (‘Davis Reasons’) [25].
In the appeal rehearing AAA advanced five grounds. Relevant to the grounds of review now before me were two related errors: that the application for extension of the final protection order and the orders made upon the outcome of that application, were each defective and therefore invalid. This was because, although the application for an order was made by BBB, both the application and the order were in fact in the name of Victoria Police. As a consequence of these errors AAA maintained that the application and orders were ‘both procedurally improper and legally untenable’.[15] AAA submitted orally before her Honour that this error made the application for extension void ab initio.
[15]Davis Reasons [31], quoting AAA’s submissions dated 28 March 2024 [10].

C Decision in the appeal rehearing

As mentioned above, AAA had objected to the continued participation of Victoria Police in the appeal rehearing notwithstanding the ruling of Judge Tsikaris. Judge Davis’ reasons for rejecting this argument were:
Counsel for Victoria Police submitted that as Victoria Police had applied for the original FVIO (granted 31 July 2015), it became a ‘party’ as defined in section 4 of the Act and remained a ‘party’ to an application under s 108 of the Act to vary, revoke or extend a FVIO. Victoria Police participated in the County Court appeal proceeding (which was determined on 26 August 2021), acted as contradictor before the Supreme Court in the judicial review proceeding, and was refused leave by this Court on 20 September 2023 to withdraw from the proceeding as a party or to be excused from further participation in the proceeding.
I ruled in favour of Victoria Police, largely for the reasons advanced by Victoria Police.[16]
[16]Davis Reasons [24]-[25].
As to the argument advanced before Judge Davis in the appeal rehearing, her Honour reviewed the Magistrate’s decision and the transcript of the hearing.[17] She concluded that there was no objection taken by AAA to the validity of the extension application under consideration in the contested Magistrates’ Court hearing, and that this failure to raise the issue at trial was sufficient to reject this ground. However, her Honour went on to consider the substance of the ground and concluded that on the face of the application document dated 1 August 2019 it demonstrated that BBB was the applicant. Her Honour said:
The second page of the application makes it clear that the original application (for the FVIO) was made by Sargeant Evans, which is correct, and that the extension application was to be served upon Sergeant Evans as a respondent to “this” application, that is, the extension application.[18]
[17]It was common ground that there was no transcript available for the second morning of the contested hearing.
[18]Davis Reasons [35].
Her Honour referred to section 4 of the FVP Act, which defines ‘party’ to include the protected person or affected family member and, where different, the applicant for the proceeding. Then her Honour concluded there was no defect in the application by BBB nor in the order made by the Magistrate. Her Honour was satisfied that the order differentiated ‘this order’ which extended a previous order, from ‘the order’ being the original order applied for. She described these as deliberate references distinguishing two different applications and corresponding orders.

D The present grounds of review

AAA has now commenced this second judicial review challenging the orders made by Judge Davis in the appeal rehearing. He relies on the following grounds:
(a)Jurisdictional error in ruling that Victoria Police had standing in the appeal rehearing;
(b)Error of law on the face of the record by finding there was no defect in the extension application by erroneously identifying Sergeant Evans as the applicant when the applicant was BBB;
(c)Error of law on the face of the record in that the final intervention order named Sergeant Evans as the named applicant for extension when he was not the applicant; and
(d)Denial of procedural fairness in:
(i)failing to consider the copy of the extension application as served upon AAA; and
(ii)by allowing BBB to file written submissions after the conclusion of the hearing.

E Statutory Framework

The FVP Act sets out definitions used in section 4. Relevantly ‘party’ is defined as follows:
‘party’, to a proceeding under this Act, includes –
(a)the affected family member or protected person for the proceeding, whether or not the person is the applicant for the proceeding; and
(b)if the affected family member or protected person is not the applicant for the proceeding, the applicant; and
(c)the respondent for the proceeding or the respondent who is the subject of an order made in the proceeding;
Part 4 of the FVP Act deals with applications for family violence intervention orders. It addresses the procedure for making interim intervention orders, the provision for extending and/or varying interim intervention orders, and the making of final intervention orders and their duration.
Applications may be made by a police officer or by other prescribed individuals as well as an affected family member.[19] Section 53 of the FVP Act provides the basis upon which the Court may make an interim order. An interim order may be made in the absence of a respondent.[20]
[19]Section 45 of the FVP Act.
[20]Section 54 of the FVP Act.
The power to make a final order is contained within section 74 of the FVP Act. Where a final order is made and a respondent is before the Court, the Court must explain the purpose, terms and effect of the final order.[21] It appears that the 4 December order made final the interim order and extended it.
[21]Section 96(1AA) of the FVP Act.
The Court also has power to extend a final order under section 106 of the FVP Act where satisfied of the matters in section 106(2). By section 108(1)(a) an application to extend a family violence intervention order may be made by a party to the proceeding in which the order was made. Section 108 provides:
Who may apply to vary, revoke or extend family violence intervention order
(1)An application to vary, revoke or extend a family violence intervention order may be made to the court by—
(a) a party to the proceeding in which the order was made; or
Note
See the definition of party in section 4 which provides that the protected person is a party to the proceeding, whether or not the person is the applicant for the proceeding.
(b) if the protected person is a child—
… or
(c)if the protected person is a child who is 14 years of age or more, the protected person with the leave of the court; or
(d)if a police officer was not a party to the proceeding in which the family violence intervention order was made, a police officer; or
(e)if the protected person has a guardian and the guardian was not a party to the proceeding in which the family violence intervention order was made, the guardian.
(2)For the purposes of subsection (1)(a), if a party to the proceeding in which the family violence intervention order was made was a police officer or an officer of another organisation—
(a)the application may be made by any other police officer or officer of the organisation; and
(b)that police officer or officer is taken to be a party to the original proceeding.

F Threshold issue

At the hearing, the Court was informed by email between the parties on 13 May 2025 that the third defendant raised reliance on section 120 of the FVP Act. That provision states:
No further appeal
(1)There is no appeal against the decision of the County Court or the Supreme Court under section 119.[22]
(2)Nothing in this section prevents an appeal from the County Court or the Supreme Court on the basis of a jurisdictional error.
[22]Section 119 provides for appeals from orders or refusals to make orders are by way of rehearing and provides that the Court hearing the appeal may confirm, set aside or vary the decision and make any other order that could have been made and exercise any powers that the Magistrates Court or Children’s Court may have exercised.
The third defendant, in an email to the plaintiff, said that he intended to submit that section 120 of the FVP Act ‘excludes the Court’s power to engage in judicial review for error of law on the face of the record, limits the Court to engaging in judicial review for jurisdictional error’.[23]
[23]During the course of the hearing, the plaintiff handed up a document entitled ‘Aid Memoir [to] Oral submissions on behalf of AAA’ dated 15 May 2025 (‘Plaintiff’s Aide-Memoire’).
The plaintiff indicated that he was in a position to meet this argument, and submitted that all four grounds do constitute jurisdictional error.
The plaintiff, in an Aide Memoir to his oral submissions, submits that all four grounds relied on in the originating motion constitute jurisdictional error, and therefore, even if section 120 of the FVP Act limits the right to appeal, the relief may be properly granted.

G Grounds for Review

G.1 Ground 1 – Standing of Police officer

G.1.1 Submissions

The plaintiff submits that a police officer had no standing in the second appeal in the County Court because no police officer was a party to the application made by BBB. This submission has three limbs. First, the police officer was not a party because the extension application was made by BBB. The legislation distinguishes between an applicant for an initial order and subsequent applications to extend, vary or revoke that order. As a police officer was not the applicant for the relevant extension, the plaintiff argues that they were not a party. Second, the police officer sought to withdraw from the application. This application was misconceived if the first limb of the submission is accepted. In any event, no police officer was present at, or participated in, the Magistrates’ Court contested hearing other than an officer called as a witness by BBB. Therefore, the police had no standing to participate in the County Court appeal or its rehearing. Third, the police application before Judge Tsikaris was in fact an application to substitute BBB for Evans as applicant[24] and stood in contrast to earlier conduct, where police officers acted as Contradictor before Dixon J in the Supreme Court Judicial Review and Appeals List proceeding. In this proceeding, the police officers took the position that they were not a party.
[24]Plaintiff, ‘Plaintiff’s Outline of Submissions’ filed 19 February 2025 (‘AAA written submissions’).

The plaintiff relies on the text of section 108 of the FVP Act to support his argument that the legislation distinguishes between a party who is an applicant for an initial order and the parties to subsequent applications. He submits that an entitlement to make a subsequent application does not equate to being a party to every extension application.
BBB submits that a police officer was the applicant for the initial protection order, and remained a party to the contested proceeding and all subsequent stages of it, having not been granted permission to withdraw. The police officer therefore had standing to participate in the rehearing of the appeal and no error was made by Judge Davis.
Evans submits that by operation of section 4 of the FVP Act, Evans remained a party to the contested application before the Magistrates’ Court and by extension the County Court appeal. He was therefore entitled to be heard. In any event, even if he was not a party, no error arises as nothing prevented the County Court judge from permitting him to appear and make submissions. Regarding the participation of Evans, AAA points to no submission that may have led the judge into error. Rather, he simply asserts that by permitting participation, it allowed intervention in a two-party dispute between AAA and BBB, which required AAA to address the argument and advocacy of the police officer.

G.1.2 Consideration

There is no merit in the argument that the parties to the original application for an intervention order do not remain parties to subsequent applications to extend, vary or revoke that order.
First, it is clear that subsequent applications are made in the same proceeding. The definition in section 4 of the FVP Act defines parties to a proceeding. As a party, a person is entitled to be heard and to participate in applications that are made. They are not compelled to do so. Nor does the legislation oblige the police officer, as a party, to bring further applications at the request of a protected person. Section 110 is explicit in providing that a police officer is not obliged to make application for variation, revocation or extension of a final order.[25] That right may be, and has been in this case, exercised by the protected person. The provision says nothing about the status of the police officer as a party to an application brought by a protected person themselves, and the definition does not remove them as a party from the proceeding.
[25]S 110(4), which specifically related to extension of a final order.
Second, the reliance by AAA on the text of section 108 of the FVP Act to distinguish a party to ‘the original proceeding’ from a party to the ‘extension application’ is misconceived. The section, and in particular sub-section (2) is directed at the substitution of one police officer for another in the course of a proceeding and has no direct relevance to the present dispute. In this case, BBB and not ‘any other police officer’ is the applicant for extension, section 108(2) has no application.
The text of section 108 does not, in my view, displace the effect of the legislation that a police officer applicant remains a party to the proceeding. As a party, a police officer is entitled, but not obliged, to take steps to extend, vary or revoke an existing order. Section 110, in my view, clarifies an independent role rather that addresses the status of a police officer as a party to the proceeding. An application by an affected family member does not remove a police officer as a party to the proceeding in which the subsequent application is made.
Third, there was no order made by the Magistrates’ Court or County Court that a police decision to cease involvement in the contested hearing resulted in Evans ceasing to be a party to the proceeding. On 2 August 2019, Magistrate Hawkins[26] refused leave for Victoria Police (or Evans) to withdraw, although accepting they may take a ‘backseat role’ in the contested application then booked for 21 August 2019.[27] It is equally clear that Judge Tsikaris was not satisfied that Victoria Police did withdraw as a party on 21 August 2019. Her Honour noted the lack of mention of any presiding magistrate who gave such leave or made such an order, as well as the lack of entry on the court file to that effect. Nor do I accept the assertion that the police application before the County Court was to substitute BBB for the police as applicant. No evidentiary basis for that submission was provided.
[26]Now Judge Hawkins of the County Court.
[27]Tsikaris Reasons [13], [18].
Although AAA’s first ground of appeal, as amended, challenges the standing of the police officer in the appeal and not the status as party to the proceeding, the substance of AAA’s submissions does address the status as party. The question of standing in the submission is inextricably linked to the status as party.
The County Court concluded that the police officer remained a party before the Magistrates’ Court, notwithstanding his lack of participation in the contested hearing.[28] In refusing an application to withdraw, Tsikaris J noted the policy behind empowering a police officer to bring an application for a protection order ‘is to place a recognised independent authority between the parties where there is very often a power imbalance’.[29] Her Honour clearly distinguished the statutory purpose for which they remain a party from the active or ‘backseat’ role that the police may take in a particular application.[30]
[28]Tsikaris reasons [18].
[29]Ibid [26].
[30]Ibid [30] citing NBT (a pseudonym) v Mag Ct Vic & Ors [2023] VSC 461 at [79].
In the rehearing before Judge Davis, AAA nevertheless again objected to the participation of Victoria Police. The material before me demonstrated that the police position was that it had no current information to put before the Court to assist in determining BBB’s application. That is not synonymous with having no standing in the appeal as a party. The purposes of the legislation are to be achieved by the matters set out in section 2, including the sharing of information relevant to assessing and managing a risk of family violence.
Fourth, the police officer participated in the first judicial review. I do not accept that the police were not a proper party before Dixon J. Although AAA submits that Evans put forth there that he was not a party and that his name appeared in error, the transcript relied on is not in evidence before me.[31] Critically however, even if I were to accept that the police officer made a submission when he was not a party, it is clear that the police did participate, and his Honour accepted that the police had standing to participate in the judicial review as they did, ‘as Contradictor to advance submissions supporting the relief sought by [BBB] who was self-represented’.[32] His Honour’s reasons do not disclose any dispute as to whether the police were a party or whether they had standing.
[31]Transcript relied on by plaintiff in ‘Plaintiff’s Outline of Submissions in Reply’ filed 2 May 2025 [5] (‘Plaintiff’s Submissions in Reply’).
[32]Dixon Reasons [11].
Ground 1 fails.

G.2 Grounds 2 and 3

G.2.1 Submissions

Grounds 2 and 3 are largely identical. In each AAA submits that the application (Ground 2) and the 4 December order (Ground 3) both erroneously identify the Victoria Police/Evans as applying for, and having obtained, the order extending the initial protection order. As part of Ground 2, AAA alleges that the document purporting to be BBB’s application dated 1 August 2019 amounts to a fraud on the Court, and that both the application and the resulting order have errors on the face of the record with consequences identified in AAA’s submissions.
AAA submits that the documents served on him in late 2016, being the order dated 29 November 2016 and the accompanying application for extension dated 30 November 2016, were attached to his affidavit filed in the appeal rehearing. His affidavit sworn 22 May 2024[33] says he had never been served with the Extension Application exhibited to the police affidavit – that is the application dated 1 August 2019 made by BBB.
[33]Sworn in the Country Court re-hearing.
He submits, as he did in Ground 1, that a distinction can and should be made between Victoria Police being a party to the original proceeding and being a party to a later extension application. Victoria Police were not a party to the extension application made by BBB, which was a discrete application distinguishable from the original application.
He does not dispute that BBB made an application for extension or that this was heard by the Magistrates’ Court. He submits however, that the police applications to withdraw made to the Magistrates’ Court and the County Court were misconceived because they conflated an entitlement to make an application with being a party to every application made by any party. He submits that both the application served on him and the 4 December order wrongly identify Evans as the applicant, binding the police and creating a false impression that the police were pursuing the extension of the intervention order.
AAA submits that as a consequence, both the application and the 4 December order demonstrate error on the face of the record and that this error is one of jurisdiction.[34]
[34]Aide-Memoire [2.1], addressing in particular whether the error is one amounting to jurisdictional error.
The plaintiff submits that this misidentification of the proper parties has caused the Magistrates Court to ‘fundamentally misapprehend the limits of its own jurisdiction’ under the FVP Act. By permitting the police officer to participate in the extension application when not a party to that application, the Court exceeded its statutory jurisdiction.
Permitting the police officer to participate in the re-hearing of the appeal was material to the outcome as it ‘altered the dynamics of the appeal’,[35] and permitted the introduction of legal argument and documentary evidence that would otherwise not have been before the Court. In particular it introduced the disputed extension application document.
[35] Plaintiff’s submissions in reply [17].
Evans submits that Ground 2 was in truth a complaint about a factual finding by the County Court concerning the documents before it. In any event, he submits that the Magistrates’ Court had jurisdiction to extend the final order, whether the application was made by a police officer or by BBB. An application caused the matter to be listed and a contested hearing between BBB and AAA occurred in December 2020. Ground 3 is also without merit as the underlying order of the Magistrates’ Court is not itself the subject of judicial review for error or otherwise.

G.2.2 Consideration

Firstly, section 108 was not raised before Judge Davis and she was not called upon to, nor did she, consider the section in the context of any discrepancy between the application dated 30 November 2016 and that dated 1 August 2019.
Section 108(1) makes it clear that any person who is a party to the proceeding in which a family violence intervention order is made, is able to make a subsequent application to vary revoke or extend that order. In the present case, both Evans and BBB are within the definition of ‘a party’. Even if the application or the order wrongly named the party bringing a certain application, so long as that party was entitled to do so, any error would not be one of jurisdiction. As AAA himself particularised in Ground 3, any error was one capable of correction by application of the ‘slip rule’.[36]
[36]See Amended Originating Motion Ground 3 (c).
The fact that the relevant extension application was made by BBB and not by Victoria Police was not in dispute. Indeed, AAA’s argument against participation of the police respondent is premised upon BBB being the applicant. If there is no error in the standing of Victoria Police, or their status as party despite not being the applicant for the orders sought by BBB, then any defect in the description of the applicant can be rectified.
However, I am not persuaded that the 4 December order names the incorrect applicant. It is a Final Order, and extends the interim order made previously on 29 November 2016 on application by Evans. By inference, it is likely that the interim order was extended at least in response to the application returnable in June 2017. The terminology of the 4 December Order is precise. It provides that ‘This order extends the order made… on 29 November 2016’. It identifies Evans as the applicant for the Order and states that AAA must obey ‘this Order’. I see no error in the conclusion of Judge Davis that the language of ‘this’ order and ‘the’ order are deliberate. It is also, as her Honour also concluded, consistent with the requirement that the extension application of 1 August 2019 be served upon Evans as a respondent (he not being the applicant for that particular extension).
Third, central to AAA’s submission as to error on these grounds was an ambitious allegation, poorly supported, that the 2019 application made by BBB was a ‘fraud on the [County] Court’. In the face of acceptance by AAA that the application he did contest in December 2020 was an application made by BBB and was based upon a document before the Court, the allegation amounts to no more than an argument that the copy document put in evidence by the police was not known to him and appeared not to be a complete copy of the relevant document. Notwithstanding that he says he was not served with the 2019 application, AAA was present at Court and in a position to contest an application by BBB in December 2020. It is also clear that the documents that were served on him included an order that was to expire at midnight on 31 July 2017 unless extended or varied prior. There is no evidence from AAA as to whether he attended on 13 June 2017 or whether a further extension or variation was ordered.
Therefore, grounds 2 and 3 must fail.

G.3 Ground 4 – Breach of Natural Justice

G.3.1 Submissions

First, AAA submits that Judge Davis failed to accord him natural justice by not conducting a comparative analysis of the document served on him in 2016 with that filed by Victoria Police ‘purporting to be an extension application made in the Magistrates’ Court’.[37] He submits that the 2019 application is dated over three years after the documents served upon him, and is merely a collection of pages that does not comprise a complete document. By failing to address the argument advanced as to the deficiencies of this document, and failing to properly consider the 2016 document filed and relied on by AAA, he contends he was denied procedural fairness.
[37]AAA written submissions [42].
As I understood the submission, the ‘discrepancy’ between the documents served on him and the 2019 application by BBB was not known to AAA until served with BBB’s application annexed to the affidavit sworn by Sinea Dodds on 9 May 2024 in preparation for the appeal rehearing. AAA raised a discrepancy with the Court which he submits was not properly considered.
Second, he submits he was denied procedural fairness because, in granting leave to BBB to file submissions after the hearing, BBB filed substantive submissions and he was not afforded an opportunity to reply.
Judge Davis’ reasons noted, under a heading ‘The Conduct of the Appeal’:
BBB represented herself and attended via videolink but did not make any oral submissions… Shortly after the hearing BBB sought and was granted leave to file and serve brief written submissions. In those submissions, she objected to material in AAA’s first affidavit on the basis that it was irrelevant and/or false. She also objected to admission of AAA’s second affidavit. She submitted that the proceeding before the Magistrate was conducted fairly in all respects and that the appeal ought to be dismissed.[38]
[38]Davis Reasons [18]-[19].
The third defendant submits that there was no failure by the judge to conduct a ‘comparative analysis’[39] but that in any event the point of a comparison was irrelevant to the County Court appeal for the reasons outlined under Ground 2. On the second aspect of the natural justice ground, the third defendant submits that, as the submissions of BBB or the circumstances in which leave was given, are not before the Court, there is no evidence that AAA was not aware of the submissions made and not afforded an opportunity to respond. Without knowing the content of the submissions provided after the hearing, the police respondent submits that no conclusion can be drawn as to whether those submissions affected the outcome of the proceeding.
[39]Third defendant, ‘Submissions of the Third Defendant’ [7.4] filed 14 April 2025.

G.3.2 Consideration

To the extent that a discrepancy in the documents gives rise to a natural justice error, it is said to be a failure to conduct a ‘comparative analysis’ of the two documents. On their face, the two documents bring two different applications for an extension of the initial protection order at different times. Insofar as AAA demonstrated any need to undertake some comparison, it was clearly addressed by her Honour as part of her consideration of the grounds of appeal that addressed the validity of the extension application and consequent order.
Her Honour addressed this argument based upon two grounds. As discussed above, it was rejected because no argument as to invalidity was raised at trial. Importantly for the present error of law alleged, her Honour examined the face of the 2019 application and was satisfied that it was an application made by BBB and that it sought further extension of the original order for which Evans had been the applicant.[40] In doing so, her Honour addressed and rejected the argument that the 2019 application was a ‘new document’ which purports to be ‘the original extension application’ but which had anomalies. [41]
[40]Davis Reasons [35].
[41]Ibid.
Ultimately, her Honour accepted that, on its face, the 2019 application did represent an extension application made by BBB. She similarly concluded that, on its face, the document identified and distinguished the original application (the FVIO) made by Evans, and the later application by BBB that was to be served on Evans as a respondent.
AAA deposed on 22 May 2024 that he was never served with the application dated 1 August 2019. The dispute concerning the relevant application and its service was exposed in the material before the appeal rehearing on 8 July 2024. However, accepting a lack of service does not explain how AAA came to contest the hearing on 2 December 2019. Nor does it explain that he did so on the basis that it was a hearing of an application brought by BBB.
In my view, no error is demonstrated. Her Honour not only undertook an analysis of the application documents before her, but distinguished the language use in the final protection order between the initial protection order made by Evans, the extension application dated 30 November 2016 made by Evans which was served upon AAA, and a later application by BBB dated 1 August 2019.
No breach of the fair hearing rule is made out on this limb of Ground 4.
Second, although AAA asserts a denial of opportunity to address submissions filed after the conclusion of the hearing, his affidavit material does not provide an evidentiary basis for a lack of an opportunity to do so. Neither the submission that was filed by BBB after the hearing, nor the circumstances in which she was granted leave to do so, is before the Court. Importantly, the practice of courts to copy in correspondence to all parties leads to an inference that AAA would have known that BBB was granted leave to file the document and had an opportunity to seek leave to respond.
Third, there is no basis upon which I could conclude that these submissions bore adversely on AAA’s interest in the reasons of the Judge. AAA does not submit that there was any new point raised to which he would have responded. Ground 4 offers no more than a bare assertion that leave to provide submissions after the conclusion of a hearing gives rise to a breach of natural justice. This limb of ground 4 must also be rejected.

AAA has failed to establish that he was denied procedural fairness by the terms of the leave given to BBB. The plaintiff who alleges to have been denied procedural fairness bears the onus of establishing that there is ‘a realistic possibility that a decision making process could have resulted in a different outcome’. As was said in Nathanson v Minister for Home Affairs:
A fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive ‘story’ of the opposing party. … if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome’. [42]
[42](2022) 276 CLR 80, Kiefel CJ Keane and Gleeson JJ at [33].
The plaintiff’s submissions have failed to demonstrate a lost opportunity to advance an argument not already raised in the hearing.
Ground 4 fails.

H Conclusion

It is not necessary to consider the construction of s 120 of the FVP Act and any limit it may pose on the power of judicial review as, however they may be characterised, none of the identified errors of law are made out.
The appropriate order is therefore that the proceeding be dismissed. The effect of the order is that the County Court order dismissing AAA’s appeal stands as do the orders of Magistrate Foster that were the subject of that unsuccessful appeal.
I will hear from the parties as to the appropriate costs orders.

SCHEDULE OF PARTIES

S ECI 2024 05160
BETWEEN:
AAA (A PSEUDONYM)	Plaintiff
- v -
COUNTY COURT OF VICTORIA	First Defendant
BBB (A PSEUDONYM)	Second Defendant
VICTORIA POLICE	Third Defendant

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AAA (a pseudonym) v County Court of Victoria [2025] VSC 550

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AAA v County Court of Victoria & Ors [2023] VSC 13

AAA v BBB [2023] VCC 1686

AAA v BBB [2024] VCC 1107

[2025] VSC 550

4 September 2025