AAA v County Court of Victoria & Ors
[2023] VSC 13
•31 January 2023
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03991
BETWEEN:
| AAA (A PSEUDONYM) | Plaintiff |
| -and- | |
| COUNTY COURT OF VICTORIA & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 November 2022 |
DATE OF JUDGMENT: | 31 January 2023 |
CASE MAY BE CITED AS: | AAA v County Court of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 13 |
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JUDICIAL REVIEW – County Court appeal from Magistrates’ Court order extending an apprehended family violence order – Nature of appeal – Whether appeal is a strict appeal, a rehearing or a hearing de novo – Whether ruling contained an error of law or legal unreasonableness – Nature of rehearing is a ‘broad’ appeal based on evidence before the court of first instance together with any additional evidence led on rehearing – Family Violence Protection Act 2008 (Vic) ss 65, 74, 97, 98, 106, 119-121.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cenacchi | Michael Benjamin & Associates |
| For the Second Defendant | ||
| For the Contradictor | Mr L Brown | Victorian Government Solicitors Office |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 2
The statutory text and context.......................................................................................................... 6
Plaintiff’s submissions – Ground 1 – Hearing de novo.............................................................. 8
Contradictor’s submissions – Ground 1...................................................................................... 11
Applicable legal principles............................................................................................................ 16
Nature of this review.................................................................................................................. 16
An appeal by rehearing.............................................................................................................. 16
Analysis.............................................................................................................................................. 21
Other grounds of review................................................................................................................. 25
Conclusion......................................................................................................................................... 26
HIS HONOUR:
Introduction
On 4 December 2020, a magistrate extended a final Family Violence Intervention Order (IVO) against the plaintiff, in respect of the daughter of the second defendant and the plaintiff, for an indefinite period and refused the plaintiff’s application for an IVO against the second defendant.
The plaintiff appealed both orders to the County Court, pursuant to s 119(2) of the Family Violence Protection Act 2008 (Vic) (the Act).
On 26 August 2021, the primary judge granted the plaintiff’s appeal in respect of the IVO applicable to the daughter and varied the magistrate’s order by changing the duration of the IVO from an indefinite period to expiration when the daughter reaches the age of majority.
The plaintiff sought judicial review of the judge’s order. The plaintiff raised three grounds. He submitted that it was not open to the County Court:
(a) to hear the appeal as a hearing de novo;
(b) to find that the plaintiff lied under oath; or
(c) to calculate the duration of the intervention order as it did.
There was no review sought of the judge’s order in respect of the second defendant.
The second defendant opposed the review and was assisted by Victoria Police, acting as Contradictor, who also resisted the relief sought.
For the following reasons, ground 1 succeeds. I will quash the order of the primary judge varying the IVO and remit the appeal to the County Court for reconsideration in accordance with the law as set out in these reasons. The orders and findings that are the subject of the second and third grounds accordingly fall away and those grounds need not be considered.
Background
The primary judge proceeded on the basis that the appeal was a hearing de novo, telling the parties that her task, under ss 74 and 106 of the Act, was to determine whether she was satisfied on the balance of probabilities that if the order is not extended, the plaintiff is likely to commit family violence against the protected persons.
The second defendant, the plaintiff, and a detective senior sergeant of Victoria Police gave evidence on the appeal and the judge considered tendered CCTV footage, recordings, and other documentary evidence.
The primary judge considered each alleged incident of past family violence and found that certain of those incidents were not proved, or were incidents that did not amount to family violence within the meaning of the Act. Her Honour found the following incidents to be proven family violence:
(a) An incident at McDonalds on 30 September 2016, captured on CCTV, about which the primary judge found:
I have viewed the CCTV of this incident a number of times at normal speed and in slow motion. I accept [the second defendant’s] evidence, corroborated as it is in my view by the CCTV, that during the course of this changeover at McDonald’s [the plaintiff] sat at his table looking down at his phone, and completely ignoring his seven-year-old daughter standing in front of him. The particular incident that I observed was, I have to say, very disturbing and his daughter appeared to me very clearly vulnerable and confused.
…
It is apparent from the video and the concurrent text messages that [the plaintiff] was more concerned with evidencing the second defendant’s breach of court orders than the welfare of his child. I find that this behaviour, ignoring one’s own child and texting in the hope of obtaining strategic advantage in litigation, amounted to emotional and psychological abuse of [the daughter] and, in a derivative sense, [the second defendant].
(b) The next incident was that the plaintiff lied about what transpired at McDonalds that day in order to obtain an interim IVO against the second defendant.
I saw, having viewed that CCTV multiple times in slow motion and real time, no evidence of any violent assault by [the second defendant] on [the plaintiff] in the CCTV. There is the briefest of moments when [the second defendant] may have reached towards [the plaintiff’s] phone. It is entirely understandable that she did so, out of frustration in view of her observations of him, which I accept, that he had sat there texting and looking at his phone rather than acknowledging his child. There is certainly nothing amounting to what he has sworn on oath which was:
Physical violence and forcefully reaching out and grabbing my mobile phone with both of her hands and trying to violently wrestle it out of my grip in from of [the daughter]. She gave [up] trying to wrestle it out of my hands and returned to her car.
I accept that the Court should be cautious in finding that a complaint of family violence was itself family violence. To do so runs the risk that other complaints will be suppressed, and the IVO application process will itself become an instrument of family violence. However, in my view the evidence is clear, that [the plaintiff’s] description of this incident was untrue. At best it was a complete exaggeration of a momentary contact of the mobile phone by [the second defendant].
…
I find that [the plaintiff] has lied under oath in relation to his evidence as to what happened at McDonald’s on that day and lied in his report to the police about this incident. I find that doing so amounted to emotional and psychological abuse of [the second defendant] and, therefore, family violence.
(c) The primary judge held that the plaintiff had been ‘police shopping’ with his daughter, searching for a police officer willing to charge the second defendant for an IVO breach.
I am not satisfied that reporting [the second defendant’s] emails to the police per se amounted to family violence. However, I am satisfied that taking [the daughter] to the police station for that purpose amounted to emotional and psychological abuse of [the daughter] and, derivatively, emotional and psychological abuse of her mother. This behaviour again demonstrated quite extraordinary lack of empathy and disregard of [the daughter’s] needs by [the plaintiff].
(d) On 28 January 2020, the plaintiff told his daughter that ‘Your mother is going to die and I’m going to have the house.’ This finding was based on the primary judge’s credibility findings.
I have already found he has lied in relation to the McDonald’s incident, including under oath in this proceeding. I have also noted a very concerning lack of empathy and concern for his child in his behaviour. As I will discuss later, his answers concerning the Pet Stock incident were not credible. His behaviour, which I will discuss later continued into this hearing, demonstrated a calculated determination to gain strategic advantage over [the second defendant] in this litigation. Unless there is some external reason to prefer the evidence of [the plaintiff] to that of [the second defendant], I prefer the evidence of [the second defendant] to that of [the plaintiff].
…
Having regard to all of those matters, although it is a difficult question, I am satisfied, on the balance of probabilities, that [the daughter] said to [the second defendant] that [the plaintiff] had said to her words to the effect of ‘Your mother is going to die and I’m going to have the house’, and that she did so because [the plaintiff] said words to that effect to [the daughter]. This amounts to both emotional and psychological abuse of both [the daughter] and [the second defendant].
(e) The plaintiff recorded a conversation between himself and his daughter in which he ‘cross-examined’ her about the above incident of 28 January 2020. He asked her again and again to provide a ‘truthful answer’ to her father, whether he had said to her that her mother will die. He repeated the question after the daughter said ‘you are scaring me’, putting a lot of pressure on her. The primary judge noted that the daughter ‘seems a very impressive child and showed remarkable inner strength throughout that conversation, but was plainly deeply distressed by this question’ and further noted that the plaintiff’s failure to appreciate that the questioning caused her distress ‘underlines a very present need for an IVO and the likelihood of further family violence if one is not granted’.
(f) On 15 March 2021, the plaintiff said to his daughter, ‘You never know when your house will be burgled again, and your pet stolen.’ This constituted emotional and psychological abuse of both the daughter and the second defendant.
The plaintiff submitted, and the Contradictor did not dispute, that new evidence was adduced before the County Court (that was not before the magistrate) that had the potential to influence the primary judge’s decision. This new evidence was:
(a) The details of the incident of 21 March 2021 at Pet Stock;
(b) The evidence of the Detective Senior Sergeant (albeit that the evidence covered events that were raised before the magistrate or at least that occurred prior to the magistrates’ ruling);
(c) New oral evidence of the plaintiff and second defendant (about pre-existing and newly raised issues/incidents); and
(d) The recording of the conversation between the plaintiff and his daughter.
Victoria Police originally applied for the IVO, on behalf of the second defendant, but had not participated in the second defendant’s application for an extension. The police participated in the appeal proceeding. They filed an affidavit and submitted that an IVO for a period of 12 months would be appropriate. In this court, Victoria Police acted as Contradictor to advance submissions supporting the relief sought by the second defendant, who was self-represented.
The plaintiff sought:
(a) an order in the nature of certiorari, quashing the order of the primary judge granting the extended IVO;
(b) alternatively, a declaration that the decision was ultra vires, a denial of natural justice, wrong in law or there was an error on the face of the record;
(c) an order in the nature of mandamus directing the County Court to record that the application is struck out on appeal; and,
(d) a declaration as to whether appeals to the County Court under the Act are to be conducted as hearings de novo.
The plaintiff sought this relief on the grounds that:
(a) the Judge erred in law by directing the appeal proceed as a hearing de novo and that the Judge erred in allowing fresh evidence;
(b) the Judge erred in law by finding the plaintiff lied under oath when such finding was not open to her on the facts and was therefore legally unreasonable;
(c) the Judge erred in law or made a jurisdictional error in granting the application in circumstances where the finding that the plaintiff lied under oath affected the credibility assessment of the plaintiff on other matters, the decision was based on evidence that ought not have been admitted and the calculation of the duration of the IVO has no foundation in law.
The statutory text and context
The relevant provisions of the Act are as follows:
1Purpose
The purpose of this Act is to―
(a)maximise safety for children and adults who have experienced family violence; and
(b)prevent and reduce family violence to the greatest extent possible; and
(c)promote the accountability of perpetrators of family violence for their actions.
119Conduct of appeal
(1)The appeal is by way of a rehearing by the County Court or the Supreme Court;
(2) On the appeal, the County Court or Supreme Court may―
(a)confirm the relevant decision; or
(b)set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates’ Court or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised; or
(d)make a determination under s 136(2) of the Personal Safety Intervention Orders Act 2010 and make any order the Magistrates’ Court or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised under Division 2 of Part 8 of that Act.
120 No further appeal
(1)There is no appeal against the decision of the County Court or the Supreme Court under s 119.
(2)Nothing in this section prevents an appeal from the County Court or the Supreme Court on the basis of jurisdictional error.
121 Application of certain Acts to appeals
The provisions of this Act, the Magistrates’ Court Act 1989 or the Children, Youth and Families Act 2005 (as the case requires) so far as is applicable with any modifications and adaptations as are necessary extend and apply to appeals under this Division.
65Evidence
(1)Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
(2)The following provisions apply to a proceeding for a family violence intervention order―
(a)sections 13, 30, 31 and 41 and Part 3.10 of the Evidence Act 2008;
(b)Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958.
(3)The court may refuse to admit, or may limit the use to be made of, evidence if the court is satisfied―
(a)it is just and equitable to do so; or
(b)the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.
74 Power of court to make final order
(1)The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
106 Power of court to extend final order
(1) The court may order the extension of a final order on―
(a) an application under this Division; or
(b)its own initiative if the order was made by a court on its own initiative.
(2)The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person.
Plaintiff’s submissions – Ground 1 – Hearing de novo
The plaintiff submitted that the Act does not permit the County Court to hear an appeal under s 119 as a hearing de novo.
He invited the court to apply the following principles. He contended that appeals are creatures of statute.[1] The nature of an appeal depends on the terms of the statute conferring the right.[2] The High Court held, when considering particular legislation that provided for an appeal ‘by way of rehearing’, as s 119 does, that this does not mean ‘a complete rehearing as a new trial’.[3] Instead, it means that the case is to be determined by the appeal court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence the judge heard, as appearing in the record of the proceedings, but applying the law as it is when the appeal is heard.[4]
[1]Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 202.
[2]R v Coldham (1990) 170 CLR 267, 273-4.
[3]Da Costa, 208 (n 1).
[4]Ibid 208-9.
In YY v ZZ,[5] the court stated that ‘it is common ground that the appeal provisions [in s 119] envisage a ‘’de novo’’ rehearing’. The plaintiff submitted that this was obiter dictum and in any event plainly erroneous (and therefore not binding)[6] because a plain English reading of the legislation indicates a limited rehearing.
[5][2013] VSC 743, [45] (‘YY v ZZ’).
[6]Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 13.
When s 119(2) provides that the appeal court may confirm, set aside or vary the magistrate’s decision, this language is inconsistent with a de novo hearing because the latter could only result in a completely new and separate order being made; the original order would be completely irrelevant. By comparison, s 254 of the Criminal Procedure Act 2009 (Vic) refers to a ‘rehearing’ but contemplates a de novo hearing because the provision requires the appeal court to set aside the Magistrate’s sentence and impose any sentence the appeal court considers appropriate.
The plaintiff also contrasted s 119 with s 93A(2) of the Family Law Act 1975 (Ch). In Allesch v Maunz (‘Allesch’),[7] the High Court considered that s 93A(2) expressly provided for the appellate court to receive further evidence upon questions of fact, which contributed to the Court’s conclusion that this was not an appeal in the strict sense, but instead the appellate court could substitute its own decision based on the facts and the law as they then stood.
[7](2000) 203 CLR 172 (‘Allesch’).
While the plaintiff conceded that the word ‘rehearing’ in isolation can be used to describe both a strict rehearing and a hearing de novo, he submitted that when it is intended to refer to a hearing de novo there is always an ancillary provision which makes that intention clear. For example, s 85 (now repealed) of the Magistrates’ Court Act 1989 (Vic) provided that the appellant was not bound by a plea entered in the Magistrates’ Court; s 256(2)(a) of the Criminal Procedure Act 2009 (Vic) similarly provides that the appellant is not bound by their plea in the Magistrates’ Court; s 116(6)(c) of the Children and Young Persons Act 1989 (Vic) (now repealed) provided that the appellant was not bound by the fact that he or she did not contest the application in the court of first instance.
There was no equivalent provision in the Act.
I ought not follow other judges of this Court who have considered that s 119 of the Act contemplated a hearing de novo, as such observations have been obiter dictum or made as a comment en passant.
In Carroll v Brown,[8] Richards J explained that an unsuccessful applicant who has experienced new family violence behaviour can simply make a new application to the Magistrates’ Court rather than appeal the refusal to the County Court.[9] This better accords with the purpose of the Act because otherwise the introduction of fresh evidence during the appeal would deprive the respondent of their right to appeal in relation to any determination based on fresh evidence – s 120 of the Act provides that there is no appeal against the decision of the County Court on appeal under s 119, save for an appeal based on jurisdictional error.
[8][2018] VSC 253, [29] (‘Carroll’).
[9]Ibid [49].
The plaintiff drew attention to cll 118 and 120 of the Explanatory Memorandum[10] to the Bill, which explain that providing for no further appeals from the County Court is appropriate because the rights of the parties in such cases have been tested already and further appeals could result in a proliferation of proceedings and ‘may result in the attendance of those subject to family violence at numerous traumatic court hearings. If new facts and circumstances emerge, then the respondent for an order may seek a variation or revocation of the family violence intervention order from the Magistrates’ Court.’
[10]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2648 (Rob Hulls, Attorney-General) (‘Explanatory Memorandum’).
The plaintiff submitted the clear legislative intent was to reduce the trauma of victims of family violence that would be undermined if victims were subjected to unnecessary cross-examination on an appeal.
Croucher J observed in OP v XY[11] that an appellant could use an appeal as a vehicle to cause distress to the affected person by forcing them to give evidence again without the appellant bearing any risk of a worse result.
[11][2020] VSC 754, [283] (‘OP v XY’).
Clause 119 of the Explanatory Memorandum says nothing of a de novo hearing and instead provides that:
[A]n appeal against a decision of the original court is by way of rehearing and sets out the powers of an appeal court in relation to the original decision.
The appellate court’s power to grant relief, set out in s 119(2), focuses on the original decision (as well as the words ‘in relation to the original decision’ in the Explanatory Memorandum). These words are clear indications Parliament contemplated that the appeal is to be conducted by way of a strict rehearing because the original decision would have no bearing in a hearing de novo.
The plaintiff next submitted that the purpose of the Act is irrelevant to this interpretive exercise because there is no ambiguity in the wording of s 119.[12] However, even if it were relevant, the purpose is to maximise safety for victims of family violence, which would be frustrated by a de novo hearing which would force affected family members to give evidence again and may undermine confidence in the decisions of the Magistrates’ Court. If the appellate court believed a particular piece of fresh evidence was pertinent and necessary for it to fulfill its obligations under the Act, it could allow the fresh evidence to be introduced by exercising judicial discretion upon an application to introduce fresh evidence during a strict rehearing.
[12]Mills v Meeking (1990) 169 CLR 214, 235.
Contrary to the significance the Contradictor sought to attribute to s 65 of the Act, explained below, that section is nothing more than an evidentiary rule relating to the admissibility of evidence and has no bearing on the proper interpretation of the appellate court’s powers. The purpose of that provision is to ease the burdens on litigants in sensitive matters that would otherwise result from a strict application of the Evidence Act 2008 (Vic). Section 121 only empowers the appellate court to inform themselves in any way they see fit, as constrained by the task that is before them, namely an appeal of the nature provided for in the Act. Section 121 only makes this Act applicable on appeal ‘so far as its applicable’ and if this is a strict appeal, s 65 is simply not applicable. The provision does not shed light on the nature of the appeal.
The plaintiff submitted that for these reasons, the primary judge erred in considering new evidence including the details of the 21 March 2021 incident at Pet Stock; evidence from Victoria Police, who provided an affidavit with an historical overview of the material on record; oral evidence by the plaintiff and second defendant; and the recording of the conversation between the plaintiff and his daughter. In particular, the primary judge’s view of the plaintiff’s credibility and the finding he lied under oath was in part based on the plaintiff’s oral evidence. That would not have occurred in an appeal conducted as a limited rehearing.
Contradictor’s submissions – Ground 1
The Contradictor cited Allesch,[13] in which the High Court explained the distinction between a rehearing and a hearing de novo.
[I]n the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at the first instance.
[13]Allesch, 180-1 [23] (n 7).
In Coal and Allied Operations Pty Ltd v AIRC (‘Coal’),[14] Gleeson CJ, Gaudron and Hayne JJ held:
It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at the first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.
The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to ‘make such order as it [thought] fit’. The latter requirement indicated that the Commission’s appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it.
[14](2000) 203 CLR 194, 203-4 [12]-[15] (‘Coal’) (citations omitted).
Whether the use of the word ‘rehearing’ contemplates a rehearing de novo is a matter of construction.[15] The word ‘rehearing’ can denote three different meanings:[16]
[15]Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 [65]; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619.
[16]Mr and Mrs X v Secretary, Department of Human Services [2003] VSC 140, [57].
(a) An appeal court makes its own decision reconsidering the evidence before the court below;
(b) The decision on appeal is based on evidence given in the court of first instance supplemented by further evidence; or
(c) The parties begin again before the appeal court which determines the appeal on the basis of the evidence adduced before it.
The Contradictor submitted that three judges of this court have concluded that s 119 envisages a de novo hearing and I am bound to follow these decisions unless persuaded they were plainly wrong.[17]
[17]Favelle Mort Ltd v Murray (1976) 133 CLR 580, 591; Engebretson v Bartlett (2017) 16 VR 417, 428-9 [54]-[58]; Marr v Australian Telecommunications Corporation (1991) 34 FCR 82, 85.
The Contradictor contended that the following provisions read together are textual indications that a hearing de novo is intended:
(a) Section 114(1) of the Act provides that a party to a proceeding under this Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order.
(b) Section 119(1) provides that the appeal is by way of rehearing in the County Court or Supreme Court.
(c) Section 119(2) provides that on appeal the court may confirm, set aside or vary the decision and make any other order the Magistrates’ Court could have made and exercise any other powers that the Magistrates’ Court may have exercised.
(d) Section 121 provides that the provisions of the Act, the Magistrates’ Court Act 1989 (Vic) or the Children, Youth and Families Act 2005 (Vic) (as the case requires) so far as applicable and with any modifications and adaptations as are necessary, extend and apply to appeals under this division.
The appellate court may therefore exercise any other powers the Magistrate Court may have exercised and the provisions of the Act and Magistrates’ Court Act apply as necessary to those appeals. This includes all the powers attached to the determination of an application for an intervention order. The definition of ‘family violence intervention order’ includes a final order that has been varied under s 119(2)(c) or confirmed on appeal to the County Court.[18] Section 65 of the Act, which deals with evidence, provides that in a proceeding for a family violence intervention order (which includes an appeal), the court may inform itself in any way it thinks fit, despite rules of evidence to the contrary. This indicates the appellate court may receive fresh evidence, which is not a power possessed by appellate courts in strict appeals.[19]
[18]Family Violence Protection Act 2008 (Vic) (‘Act’) ss 11(1), (2).
[19]Allesch, 180 [22] (n 7).
The Contradictor submitted that extrinsic materials support this construction. The Explanatory Memorandum in respect of s 121 of the Act states:
Clause 121 provides that if an appeal is being heard then the provisions of the Bill, and the Magistrates’ Court Act 1989 or Children Youth and Families Act 2005 apply in the appeal hearing. As an appeal is by way of rehearing (see clause 119), this is particularly relevant to how proceedings may be conducted, how evidence may be given, prohibitions on personal cross-examination of a protected witness and prohibitions on publication of identifying information.[20]
[20]Explanatory Memorandum cl 121 (n 10).
The purpose of the Act centres around protection from and prevention of family violence, and it aims to do so through the provision of ‘an effective and accessible system of family violence intervention orders’ and of ‘a framework for achieving consistence in family violence risk assessment [and] management’.[21] Allowing the hearing of fresh evidence is consistent with this purpose as victims are able to raise fresh allegations of family violence on an appeal which has the effect of promoting the accountability of perpetrators for their actions. Assessment of risk must be at the centre of the enquiry and that assessment, to be accurate and of assistance, must be redone as at the time the judicial officer turns their mind to the facts that are before them. A reassessment is necessary because of the dynamic circumstances of cases of this type.
[21]Act ss 2(a), (c) (n 18).
The Contradictor contended that this construction was consistent with how analogous statutory regimes have been interpreted in this State.
(a) In DPP v His Honour Judge Fricke,[22] the Court of Appeal concluded that the use of the word ‘rehearing’ in s 85 of the Magistrates’ Court Act 1989 (Vic) was used in the sense of a hearing de novo.
(b) In Quick v Creanor,[23] the Court of Appeal concluded that s 256(1) of the Criminal Procedure Act2009 (Vic) and its predecessors had long been understood as requiring the County Court to conduct a hearing de novo.
[22][1993] 1 VR 369, 374.
[23](2015) 49 VR 479, 483 [19].
The Contradictor submitted that the powers of the appellate court under s 119(2) of the Act, which focus on the original decision, do not indicate that the rehearing is a strict appeal (or that it is not a de novo hearing). The original decision is always relevant, a background fact in any appeal, even a hearing de novo, and cannot be dismissed; administrative decisions are an example. The Court of Appeal has held that weight needs to be attached to the decision of the primary decision-maker, even in a merits review.[24]
[24]Macedon Ranges v Romsey Hotel (2008) 19 VR 422.
Similarly, the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which affords the VCAT an unequivocal review jurisdiction, provides at s 51(2) that in determining a proceeding for review of a decision, VCAT may affirm, vary, set aside and substitute for, or set aside and remit for reconsideration, the decision under review.
Section 119(2) cannot indicate a strict appeal.
Unlike in a criminal proceeding where the sentence must be set aside, the Act contemplates the appellate court acknowledging and dealing with the original decision but this does not mean there cannot be a hearing de novo or a ‘loose (broad) appeal’ where the procedures are very similar to a hearing de novo but an error is required to engage the court’s jurisdiction on appeal.
In addition, even if this were a ‘loose (broad) rehearing’ in the sense that it was necessary for the appellate court to identify an error before its jurisdiction was enlivened, the County Court did find error in the duration of the Magistrate’s order, which served to activate this jurisdiction.
Applicable legal principles
Nature of this review
This court is considering an application for, inter alia, an order in the nature of certiorari that the County Court’s order granting the extension of the IVO to the second defendant be removed into this court and the order be quashed, alternatively for a declaration that the decision was wrong at law or there was an error on the face of the record. An order in the nature of certiorari may be granted in this case where there is a non-jurisdictional error of law on the face of the record, or on the basis of a jurisdictional error.[25]
[25]See, eg, Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2010) 239 CLR 531, 567 [56].
Although the plaintiff has raised a number of review grounds that claim the primary judge made various errors in law or was legally unreasonable, the application can be resolved on analysis of the first ground.
An appeal by rehearing
From the authorities, I identify the following principles to apply when interpreting the nature of an appeal ‘by way of a rehearing’ in legislation. There are, broadly speaking, three types of ‘appeal’.
First, a hearing de novo: The powers of the appellate court may be exercised regardless of any error of the original decision-maker. The parties begin again. The evidence led is not confined by what was placed before the original decision maker. The appellate court is not bound by the original decision in any way, though may have regard to it and give it the weight it considers proper.[26] The appellate court must have due regard to the original decision and give the original reasons ‘considerable weight’ if the original decision-maker had specialised expertise and experience to make that decision.[27] As the matter is heard afresh, it is effectively a new trial.[28] This is an exercise of original jurisdiction[29] as the court determines the proceeding without being fettered in any way by the decision of the court below.[30]
[26]Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187, 190; Bendigo and Adelaide Bank Ltd v Grahame [2020] VSC 86, [18]; Coal, 202-3 [11], [13] (n 14).
[27]Macedon, 437 [53] (n 24). This entails engaging with the tribunal’s reasoning and if the appeal body departs from or rejects that reasoning, explaining why it does so.
[28]Da Costa, 208-9 (n 1).
[29]Forrest & Forrest Pty Ltd v Marmion, Minister for Mines and Petroleum (2018) 53 WAR 156, 176 [61].
[30]AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 37, [45].
Second, a broad (in contradistinction with a strict) appeal, usually described as a ‘rehearing’: The appellate court’s jurisdiction is neither purely appellate nor purely original.[31] This is not a re-trial of the matter.[32] The appellate court applies the law as it exists at the time of appeal to the facts as it finds them.[33] The jurisdiction is exercisable only where the appellant can demonstrate the original decision-maker made some factual, legal or discretionary error.[34] Absent some contrary legislative intention, appeal powers are to be exercised for the correction of error in the original decision.[35] The process is not unfettered merits review. However, on rehearing, powers are not restricted to the decision that ought to have been made by the court of first instance.[36] Subject to my further observations, this type of appeal may be conducted by reference to the evidence given at the first instance,[37] though with power to receive further evidence.[38] The court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence.[39] The jurisdiction of an appellate court on rehearing is confined to the jurisdiction exercised by the court of first instance,[40] unless the contrary is indicated.
[31]CDJ v VAJ (No 1) (1998) 197 CLR 172, 201-2 [111].
[32]Coal, 203 [13] (n 14); Edwards v Noble (1971) 125 CLR 296, 304.
[33]Ibid.
[34]Forrest & Forrest, 174-5 [58] (n 29) and cases cited therein.
[35]Ibid.
[36]Ibid.
[37]Coal, 203 [13] (n 14).
[38]Forrest & Forrest, 174-5 [58] (n 29) and the cases cited therein.
[39]New South Wales v Mikhael [2012] NSWCA 338, [63].
[40]Thiess Pty Ltd v Industrial Court (NSW) [2010] NSWCA 252, [73].
Broad appeals may be further categorised into rehearings on existing evidence and rehearings allowing for new evidence:
(a) Limited to evidence on the record: The appellate court considers for itself the issues the trial judge had to determine and the effect of the evidence appearing on the record but applying the law as it is when the appeal is heard, not when the trial is heard.[41] This has been described as an appeal where the court ‘makes its own decision on the evidence before the court below’.[42]
(b) New evidence: The powers of the appellate court are exercisable where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. The appellate court is not confined to the record of evidence led at the original hearing and may hear new evidence and applies the law as it applies when the appeal is heard. The appellate court can substitute its own decision based on the facts and the law as they then stand.[43] Its powers are not restricted to making the decision that should have been made at first instance.[44] However, a rehearing is not a retrial and the court’s power to receive further or fresh evidence is limited to that provided by the statute creating the right of appeal.[45] This has been described as ‘an appeal by way of rehearing based upon the evidence given in the court of first instance supplemented by further evidence’.[46]
[41]Da Costa, 208-9 (n 1).
[42]Matsoukatidou, 645 [65] (n 15).
[43]Allesch, 181 [23] (n 7).
[44]Coal, 203 [13] (n 14).
[45]Clodumar v Nauru Lands Committee (2012) 245 CLR 561, 579 [56].
[46]Matsoukatidou, 645 [65] (n 15).
Third, a strict appeal: The appellate court’s function is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given.[47] In other words, it involves an historical exercise in the detection of error.[48] The appellate court can only give the decision which should have been given at first instance.[49] Its powers are limited to setting aside the decision under appeal and, if appropriate, substituting the decision that should have been made at first instance.[50]
[47]Allesch, 180 [22] (n 7); Coal, 203 [12] (n 14).
[48]Forrest & Forrest, 174 [57] (n 29).
[49]Allesch, 181 [23] (n 7).
[50]Coal, 203 [12] (n 14).
Historically, an appeal by ‘rehearing’ involved the rehearing of the cause at the date of appeal, that is by trial over again on the evidence used in the court below, but with a special power to receive further evidence. The rights of the parties were to be determined by reference to the circumstances and the law as they existed at time of appeal.[51] This was not a fresh hearing or a hearing de novo; the court did not hear witnesses again. However, over time there were examples of use of the term ‘rehearing’ to mean a de novo hearing.[52] It is now established that an appeal by way of rehearing need not call for a hearing de novo.[53] A ‘rehearing’ generally denotes a hearing de novo or one of the broad types of appeal.
[51]Sperway, 620 (n 15).
[52]Sperway, 620 (n 15); Matsoukatidou, 645 [65] (n 15).
[53]Forrest & Forrest, 176 [62] (n 29); Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375, 392.
These various categories of appeals do not have immutable characteristics or inflexible boundaries. Ultimately the true character of the appeal depends on the construction of the enabling legislation,[54] the jurisdiction, powers, composition and functions of the tribunal from whose decision the appeal lies, and the nature of the rights and liabilities of the persons affected by the tribunal’s decision.[55]
[54]Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, [72]; Traut v Faustman Bros Pty Ltd (1983) 48 ALR 313, 322.
[55]Traut, 327 (n 54).
The term ‘rehearing’ usually distinguishes an appeal process from that of a ‘strict’ appeal.[56] A general power to receive further evidence on the rehearing is inconsistent with a strict appeal.[57] However, characterisation of an appeal in the nature of rehearing, as opposed to an appeal in the strict sense, does not necessarily resolve how the appeal will be heard. That process is determined by reference to the statute creating the right of appeal.[58]
[56]‘An appeal stricto sensu is to be distinguished from an appeal by way of rehearing’: Sperway, 619 (n 15).
[57]Allesch, 180 [22] (n 7); Coal, 204 [15] (n 14).
[58]Sperway (n 15).
The proper meaning of the term ‘appeal by rehearing’ depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction in a relevant statute as to what the nature of the appeal is to be.[59] Where the nature of the appeal is left unspecified in the statute conferring jurisdiction, the text, statutory scheme and purpose of the statute are of paramount importance.[60]
[59]United Petroleum Pty Ltd v Victorian Workcover Authority [2011] VSC 570, [48]; Eastman v R (2000) 203 CLR 1, 40-1 [130].
[60]BSA Ltd v Victorian Workcover Authority [2016] VSC 435, [11]-[14].
Generally where a right of appeal by way of rehearing is given to a court from an administrative decision maker, the court will undertake a hearing de novo (though this is not an absolute rule); but where the administrative body is required to determine justiciable issues formulated in advance, to conduct a hearing at which the parties are represented and in which evidence under oath and subject to cross-examination is given, to keep a transcript record, to apply rules of evidence, and to give reasons for determination, a direction that any appeal from that body is to be by way of rehearing may well assume a different significance.[61] Such requirements may elucidate a different legislative intent.[62]
[61]Forrest & Forrest, 175-6 [59] (n 29); Sperway, 621 (n 15).
[62]Sperway, 622 (n 15).
A presumption that an administrative decision on appeal to a court will be a hearing de novo is at least partly because courts may have superior fact finding facilities, like coercive powers, that the administrative decision maker lacked.[63]
[63]United Petroleum Pty Ltd v Victorian Workcover Authority [2011] VSC 570, [50] (n 59).
Historically, appeals by way of rehearing from the equivalent of Magistrates’ Courts to the County Court were treated as hearings de novo.[64] However, this appears to be with reference to criminal appeals and originated in 17th century England as a reaction (in part) to increasing summary trials in the Magistrates’ Court instead of a trial by jury. De novo hearings provided a counterbalance or ‘safety net’ for the summary justice system.[65]
[64]Sweeney v Fitzhardinge (1906) 4 CLR 716, 739; Matsoukatidou, 645 [66] (n 15).
[65]Law Reform Committee, Parliament of Victoria, De Novo Appeals to the County Court (2006), xvi.
The relief that the appellate court may grant on appeal may be an indicator of the nature of the appeal.
(a) If the appellate court’s powers are confined to the decision that the court of first instance could make or ought to have made, that is an indicator of a strict appeal.[66]
(b) If the appellate court can make ‘any such order as it thinks fit’, this may indicate that the appellate court’s powers are not constrained by the need to identify error on the part of the primary decision-maker, but rather that the body is obliged to give its own decision on the evidence before it – which is generally associated with a hearing de novo.[67]
(c) The power to confirm, set aside or vary the original decision, or make any order the original decision-maker could have made, is not in itself determinative of the nature of the appeal. For example, similar powers to affirm, vary, set aside and substitute the original decision or to set aside and remit for reconsideration, may be found as part of the review jurisdiction of VCAT under s 51 of the VCAT Act. This has been considered a merits review power where VCAT conducts a de novo hearing.[68]
[66]Coal, 203 [12] (n 14).
[67]Coal, 204 [15] (n 14); Forrest & Forrest, 176 [61] (n 29) and the authorities cited therein.
[68]Macedon, [53] (n 24); Dance v Hume CC (Review and Regulation) [2022] VCAT 1415, [25].
Analysis
This court’s earlier observations in the cases noted above, on the nature of the appeal contemplated in s 119 of the Act, were obiter dictum.[69] I need not find that those ‘decisions’ were clearly wrong, because I am not bound by those decisions on this question.
[69]YY v ZZ, [45] (n 5); Carroll, [31] (n 8); MNX (a pseudonym) v TNV (a pseudonym) [2022] VSC 592, [136].
The description of the appeal as a rehearing and the extension of powers to the appellate court to exercise all the same powers afforded to the first instance court,[70] indicates that s 119 does not contemplate an appeal in the strict sense.
[70]Act s 65 (n 18), together with s 2(a) which provides that the Act’s purpose is to provide an effective and accessible system, indicates the process is more inquisitorial and the strict rules of evidence and procedural fairness are moderated to a certain extent: YY v ZZ, [78]-[79] (n 5).
I am satisfied that, properly construed, the Act directs that an appeal under s 119 is a broad appeal by rehearing that allows for new evidence, as described above at paragraph [51(b)].
Some guiding features of the text, context and purpose of the Act that support this analysis are:
(a) The Act uses the word ‘rehearing’ to define the procedure, which is described as an appeal;[71]
[71]Act s 119 (n 18).
(b) The County Court’s appellate jurisdiction is focused on the decision of the Magistrates’ Court or Children’s Court and affords the County Court on appeal, the powers that those first instance courts could have exercised,[72] under the same legislation empowering those courts;[73]
[72]Act s 119(2)(c), (d) (n 18).
[73]Act s 121 (n 18).
(c) Multiple opportunities for reconsideration of the merits of complaints of family violence are not encouraged. One of the purposes of the Act is to reduce the trauma for victims of family violence caused by being subjected to multiple court hearings where they are open to cross-examination.[74] The limitation on appeals is to prevent an appellant using the appeal as a vehicle to cause distress to the affected person without bearing any risk of a worse result;[75]
[74]Explanatory Memorandum cll 118, 120 (n 20).
[75]OP v XY, [283] (n 11).
(d) An effective and accessible system for prevention and reduction of family violence will not be achieved if those wishing to appeal were required to lodge multiple appeals in respect of multiple orders made at different times,[76] or lodge multiple applications for an IVO where they are before a court and further family violence, relevant to the relief sought, had occurred in the interim, or further evidence of the same violent incidents came to light later.
[76]Carroll, [38] (n 8), setting out the reasons of Judge O’Connell in the court below in Brown (a pseudonym) v Carroll (a pseudonym) [2018] VCC 158, [31].
(e) The person restrained by an IVO may only appeal the decision to the County Court and does not have another opportunity to appeal to the Supreme Court unless there is a jurisdictional error;[77]
[77]Act s 120 (n 18).
(f) An applicant who experiences more family violence can make a fresh application to the Magistrates’ Court for an IVO or its extension, rather than appealing the Magistrates’ Court’s original decision;[78]
[78]Carroll, [49] (n 8).
(g) The Magistrates’ Court possesses coercive powers, is subject to the laws of evidence (subject to s 65 of the Act), there is (if requested) a transcript of the evidence available, the parties may be legally represented, and magistrates give reasons for their decision;
(h) While VCAT, for example, has the power to ‘set aside the decision under review and make another decision in substitution for it’,[79] the County Court under s 119 is empowered to ‘vary the relevant decision and make any other order the [court of first instance] could have made’. The appeal court cannot make ‘any order it thinks fit’.
(i) The powers afforded to the appellate court under the Magistrates’ Court and Children’s Court Acts include the court ‘informing itself in any way it thinks fit’. This does not define the nature of the appeal. Rather the process to be applied is more inquisitorial, reflecting the purpose of protection of victims of family violence and getting at the truth of the circumstances of complaints as the ultimate goal.[80]
[79]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 51(2)(c).
[80]Act s 65 (n 18).
The statutory focus on the original decision and the powers of the original decision-maker, indicate that a new hearing with the applicant beginning again and disregarding the magistrates decision is not intended. This interpretation is fortified by the fact that the Magistrates’ Court is not an administrative tribunal that lacks fact-finding resources or appropriate processes; there is no need to protect against the Magistrates’ or Children’s Court’s summary exercise of jurisdiction; there are no textual indications of a de novo hearing commonly found in other legislation where this is intended; and the purpose of the Act would likely be undermined if applicants were compelled to testify afresh before the County Court in order to maintain the IVO.
That noted, the legislative intent is that, if the applicant so wished, they could testify again, and if additional evidence came to light (empowered by s 65 read with s 121 to admit further evidence) that evidence could be led on appeal, with the safeguards afforded by s 65(3) available to the County Court. However, to compel the applicant to start again would undermine the effective nature of the system and the obvious desire to mitigate trauma to victims of family violence. A de novo hearing would also be incongruous with a limitation on any further appeals.[81]
[81]Act s 120 (n 18).
Considered altogether, s 119 contemplates a rehearing in the sense of a broad appeal where new evidence may be led; the court may determine the case at the time of the appeal, in the light of the record of the first instance court and the additional evidence before the appellate court at the time of appeal, applying the law at the time of the appeal. The jurisdiction is appellate in the sense that it is only engaged where there is factual, legal, or discretionary error in the magistrates’ decision, identifiable in light of all the new evidence before the County Court at the time of appeal. As the High Court made clear in Allesch and Coal, statutory provisions conferring appellate powers, including the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise (and the subject Act does not do so), the power is to be exercised for the correction of error.
The primary judge proceeded on the basis that the appeal was a de novo appeal and effectively began again. Her Honour did not consider whether there was, and did not identify in the court’s reasons, the legal, factual or discretionary error that enlivened the appellate jurisdiction under s 119 of the Act. This approach was in error. Subject to the court identifying how its jurisdiction was enlivened, contrary to the plaintiff’s contention, the judge could have allowed the further evidence that was led. However, it is not apparent what evidence the parties would have led, had the Judge not required the evidence led before the Magistrates’ Court to be adduced afresh.
It is impossible to say that by that process the evidence about which the plaintiff complains may in any event have been considered with no difference in the outcome. The error in process through misunderstanding the nature of the appeal cannot be separated from its outcome.
The insurmountable hurdle is that by the process the judge adopted error in the decision was not identified to enliven the court’s appellate jurisdiction and focus its deliberations beyond a general merits review. The Contradictor submitted that the consequences of that error by the County Court could be overlooked because the judge did find that the magistrate erred in making the IVO of indefinite duration.
I do not agree. The judge stated: ‘The one respect in which I find that the order granted by Magistrate Foster went too far is in the duration of the order’. That aspect of the decision is severable and that finding would only enliven appellate jurisdiction in respect of the duration of the IVO, which was a ground that turned on a specific statutory consideration. The primary judge went further than that and reheard the complaints from the beginning.
The decision must be set aside.
Other grounds of review
In the light of this conclusion, it is unnecessary to determine whether the primary judge’s finding that the plaintiff was lying under oath was not open and legally reasonable and amounted to an error in law on the face of the record or legal unreasonableness.[82]
[82]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 376 [76].
The final ground of review concerned the duration of the IVO. Did the primary judge fail to take into account a mandatory consideration specified in the statute for exercising the power to extend the IVO and was the judge’s decision regarding the duration of the IVO legally unreasonable?
Once the decision is set aside, these objections must also fall away to be reconsidered in a hearing to be conducted in accordance with the procedure I have described.
Conclusion
Because the primary judge proceeded on the basis that the appeal was to be heard de novo, it is not clear that the evidence would have been as it was before the primary judge and, consequently, what findings a judge would have made had the court proceeded on the proper statutory basis.
I will pronounce:
(a) an order in the nature of certiorari that the order of the County Court of Victoria made 26 August 2021 is quashed.
(b) an order in the nature of mandamus remitting the appeal to the County Court for reconsideration in accordance with the law as set out in these reasons.
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SCHEDULE OF PARTIES
S ECI 2021 03991
BETWEEN:
| AAA (A PSEUDONYM) | Plaintiff |
| -and- | |
| COUNTY COURT OF VICTORIA | First Defendant |
| BBB (A PSEUDONYM) | Second Defendant |
| CCC (A PSEUDONYM) | Contradictor |
61
38
20