Anderson v Walker (Ruling)
[2024] VCC 1606
•18 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case Nos. AP-23-1383
AP-23-1384
| LENA ANDERSON | Appellant |
| v | |
| KARINA WALKER | Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2024 (via Zoom) | |
DATE OF RULING: | 18 October 2024 | |
CASE MAY BE CITED AS: | Anderson v Walker (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1606 | |
RULING
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Subject:PERSONAL SAFETY INTERVENTION ORDER APPEAL – JURISDICTION TO HEAR APPEAL – TRANSFER OF PROCEEDING
Catchwords: Jurisdiction of the County Court to entertain appeal from a decision by a Magistrate under section 16K of the Magistrates’ Court Act 1989 – power to transfer proceeding to Supreme Court under the Courts (Case Transfer) Act 1991
Legislation Cited: Personal Safety Intervention Orders Act 2010, sections 91 and 92; Magistrates’ Court Act 1989, sections 16K and 109; Magistrates’ Court (Judicial Registrars) Rules 2015, r16; County Court Act 1958, s39(2)(b); Courts (Case Transfer) Act 1991, sections 5, 16 and 17
Cases Cited:Rodger v Wojcik [2014] VSC 308; Re Greco [2018] VSC 175; Abdullah v Marash [2024] VCC 1541; Whiley Investments (Qld) Pty Ltd & Ors v Pet’s Paradise Franchising (Qld) Pty Ltd & Ors [2009] VSC 144
Ruling: No jurisdiction to hear an appeal from a decision of a Magistrate under s16K of the Magistrates’ Court Act 1989. Stay the proceeding pending decision under s17 of the Courts (Case Transfer) Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the appellant | In person | |
| For the respondent | In person |
HER HONOUR:
Introduction
1Ms Anderson was once employed by Ms Walker, albeit for a brief period. When her employment ended, Ms Anderson commenced proceedings for underpayment of wages. As a result of their interactions after the conclusion of those proceedings, Ms Walker eventually applied for a personal safety intervention order against Ms Anderson. In her application, Ms Walker alleged that on the conclusion of those proceedings, Ms Anderson had engaged in a course of conduct which caused her to fear for her safety.
2
Ms Anderson made a cross application on the basis of her concerns that
Ms Walker’s behaviour was erratic, irrational and desperate and she feared for her safety.
3
On 5 September 2024, after hearing evidence from both Ms Anderson and
Ms Walker, a Judicial Registrar (“JR”) of the Magistrates’ Court at Shepparton made an intervention order against Ms Anderson for the protection of Ms Walker, and struck out Ms Anderson’s cross application.
4While the JR was announcing the order and reasons for it, Ms Anderson said she wished to appeal to the County Court because she believed the JR had made several errors of law and had failed to consider the circumstances in their correct light. Ms Anderson told the JR that she wished to attend the registry right away to lodge her appeal as they close at 4:30pm and she did not want to drive all the way back to Shepparton the next day to lodge it.[1]
[1]Court Book (“CB”) pages 196 – 198, Magistrates’ Court Transcript of Proceedings on 5 September 2023
5Ms Anderson then attended the Magistrates’ Court registry and asked to appeal the decision to the County Court. The registry informed Ms Anderson she could only appeal under section 16K of the Magistrates’ Court Act 1991 (“MC Act”), which direction Ms Anderson followed. Ms Anderson lodged an application under section 16K of the MC Act by completing the form provided to her by the registry.
6On 5 October 2023, Ms Anderson appeared before Magistrate Faram on the first listing of her application for review. Ms Anderson told the Magistrate that she considered the matter had to go to the County Court on appeal. Magistrate Faram asked why she had not simply filed a notice of appeal and Ms Anderson explained:
“Because I wasn’t allowed to, it had to go to judicial review. It goes from a judicial registrar, if a judicial registrar hears it, it has to go to a judicial review before it goes to the notice of appeal. Believe me I tried but they refused to accept my request to appeal it directly to the County Court.”[2]
[2]CB 201, Transcript of Magistrates’ Court on 5 September 2023
7Thereafter, the transcript of the hearing before Magistrate Faram records the following exchange:
“VOICE:I have been informed of that previously, Your Honour, through our sergeants. That seems to be the case in relation to appealing if it’s a situation of a judicial registrar. The matter would have to go before a magistrate for - - -
HIS HONOUR: Before it goes any further.
VOICE:Certainly. It’s a process that I don’t see the logic of but...
MS ANDERSON: It’s very, very - - -
HIS HONOUR: I’ve never looked at it so and I can’t know everything. I have never looked at it. I will certainly look at it. But if that’s the process, that’s the process.”[3]
[3]Ibid
8The context of the exchange suggests the “voice” was probably a person from registry. The exchange suggests that Ms Anderson was informed that her only recourse was to apply for a review under s16K of the MC Act.
9On 13 October 2023, Magistrate Faram delivered written reasons for his review decision upholding the JR’s orders made on 5 September 2024.[4]
[4]CB 10
10On the same day, Ms Anderson lodged an appeal to the County Court purporting to be an appeal of the decision of the JR to make an intervention order. The grounds of appeal stated in the notice were:
“The orders PSIO P10669206 have no legal basis as they are not supported by fact or evidence – as submitted in affidavit in support of judicial review dated 14 September 2023 (copy attached)”
11However it is questionable whether Ms Anderson intended to appeal the JR’s decision because she told Magistrate Faram on 5 October 2023:
“I had legal advice on this. The orders as they stand are reversed to what they should be and we only to – because I had to go through this, ... you’re more than welcome just to reject it. Reject my application for a judicial review so I can take it to an appeal and it can be reheard by a County Court judge….”[5]
[5]CB 202, Magistrates’ Court Transcript of Proceedings on 5 October 2023
12I therefore consider what Ms Anderson wanted to appeal was the decision of the Magistrate and proceed on that basis.
13The Notice of appeal provides that the appeal was to be heard in this court on 15 December 2023.
14Due to delays consequent on the need to obtain a transcript of the Magistrates’ Court proceeding, the matter did not come on for preliminary hearing in this Court until 4 September 2024.
15On that day, I raised with Ms Anderson and Ms Walker the question whether the Court had jurisdiction to hear the appeal, given it appeared to relate to a decision by a Magistrate by way of judicial review under section 16K of the MC Act. I provided Ms Anderson with an opportunity to consider her position and provide a short written outline of submissions in support of it. These were provided on 19 September 2024.
16For reasons which follow, I find that I do not have jurisdiction to hear this appeal or to remit the matter back to the Magistrates’ Court; however, I consider I do have power to transfer the proceeding to the Supreme Court.
Ms Anderson’s Submissions
17Essentially, Ms Anderson made four submissions.
18First, Ms Anderson submitted that the appeal is under the Personal Safety Intervention Orders Act 2010 (“PSIO Act”) because the orders of the Magistrates’ Court were made under that legislation.
19Second, Ms Anderson submitted that section 16K of the MC Act was not the only right of appeal from a JR’s decision. Ms Anderson relied on a decision of Croucher J in Rodger v Wojcik[6] which is authority for the proposition that section 16K of the MC Act is not the exclusive repository of a right of appeal against a JR’s decision. Therefore, it was submitted, the County Court had power to hear it.
[6] [2014] VSC 308 (“Roger”)
20Third, Ms Anderson submitted that she was denied procedural fairness in the judicial review by the Magistrate under section 16K of the MC Act, which review ought to have been conducted as a hearing de novo.
21Fourth, Ms Anderson submitted that the County Court has power to either hear the appeal under section 91 of the PSIO Act or transfer the proceeding to the Supreme Court under section 16 of the Courts (Case Transfer) Act 1991, or remit the matter back to the Magistrates’ Court for review hearing.
Analysis
22Dealing with the first two of Ms Anderson’s submissions, I consider the decision of Magistrate Faram was not under the PSIO Act, it was under the MC Act. I also consider that Rodger does not stand for the proposition that the County Court can review Magistrate Faram’s decision.
23It is convenient to address the second submission before the first.
24In Rodger, Croucher J considered whether an appeal to the Supreme Court from a decision of a JR of the Magistrates’ Court was competent, if no review had first been conducted of the Magistrate’s decision, in accordance with section 16K of the MC Act.
25In that case, Mr Rodger had been found guilty by a JR of a speeding offence under the Road Safety Act 1986. Senior Constable Wojcik, a police officer who had charged Mr Rodger with the speeding offence, argued that section 16K of the MC Act required any appeal from the decision of the JR to be heard by a Magistrate and could not be heard by the Supreme Court on a question of law.
26Justice Croucher rejected that argument. His Honour referred to section 272 of the Criminal Procedure Act 2009 (“CPA”) which provides that a party to a proceeding, other than a committal proceeding in the Magistrates’ Court, may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court in that proceeding.
27Section 252 of the CPA is in very similar terms to section 109 of the MC Act which relevantly provides:
“(1)A party to a civil proceeding in the Court may appeal, on a question of law, from a final order of the Court in that proceeding—
(a)...
(b)in the case of the Court constituted other than by the Chief Magistrate who is a dual commission holder—to the Supreme Court.”
28In this case, the orders made by the JR in both applications for an intervention order were final orders of the court.
29It having been accepted in Rodger that the decision of the JR was a final order of the Magistrates’ Court, Croucher J held that section 272 of the CPA created a right of appeal on a question of law to the Supreme Court and it was not necessary first to go to review by a Magistrate under section 16K of the MC Act.
30Rodger stands for the proposition that once a final decision by a JR has been made in a (criminal) proceeding, a party aggrieved by it is not bound to first apply for review to a Magistrate under section 16K of the MC Act but can appeal the JR’s decision to the Supreme Court on a question of law.
31Given the similarity in the wording of section 252 of the CPA and section 109 of the MC Act, the reasoning in Rodger would also apply to a civil proceeding, including a proceeding under the PSIO Act.
32However, that does not answer the question before me, which is whether, having taken the step of review under section 16K of the MC Act, Ms Anderson has a right to appeal to this Court either from the decision of the Magistrate.
33This brings me to Ms Anderson’s next submission, whether the decision of the Magistrate was under the PSIO Act or the MC Act.
Appeal to County Court from Final order of the Magistrates’ Court under the PSIO Act
34The jurisdiction of the County Court to entertain an appeal from a decision of the Magistrates’ Court (whether constituted by a JR or a Magistrate) is derived from sections 91 and 92 of the PSIO Act.
35Section 91 of the PSIO Act provides:
“(1) 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 (a relevant decision).
(2) Despite subsection (1)—
(a)an appeal against an order referred to in section 95 may be made only with the consent of the relevant person under that section; and
(b)there is no appeal against an interim order or a refusal to make an interim order.”
(Emphasis added)
36Section 92 of the PSIO Act provides:
“The appeal must be made to—
(a) the County Court; or
(b) the Trial Division of the Supreme Court, if the court that made the relevant decision was the Children’s Court constituted by the President of the Court; or
(c) the Court of Appeal, if the court that made the relevant decision was the Magistrates’ Court, or the Children’s Court, constituted by the Chief Magistrate who is a dual commission holder.”
Is the decision of Magistrate Faram an “order of the Court in the proceeding” under the PSIO Act?
37Section 16K of the MC Act provides a mechanism by which decisions of the Court constituted by JRs may be appealed from or reviewed, on application by a party to the proceeding or on the court’s own motion.
38Section 16K (relevantly) provides:
“(1)The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—
(a)whether in respect of—
(i) the hearing and determination of any proceeding (whether criminal or civil); or
(ii) any interlocutory application; and
(b)whether in respect of specified kinds of application or proceeding or generally; and
(c)by specifying whether the procedure is by way of appeal or review or both; and
(d)by specifying the way in which the Court may be constituted for those appeals or reviews.
(2) …
(3) Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—
(a)on application of a party to the proceeding; or
(b)on the Court’s own motion
(4) If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—
(a)by way of hearing de novo by the Court constituted by a magistrate; and
(b)otherwise in accordance with the rules ...”
39The Magistrates’ Court (Judicial Registrars) Rules 2015 (“JR Rules”) establish a procedure for the process of review by the Magistrates’ Court of a hearing and determination of a proceeding by the Magistrates’ Court constituted by a JR.[7]
[7]See r1(c) of the JR Rules
40Part 3 of the JR Rules provides the procedure for review of determinations of JRs.
41Rule 16 provides the mechanism by which an application for review under section 16K(3)(a) of the MC Act must be made. In summary:
(a) the application must be in Form 1 and accompanied by an affidavit stating the reasons for the application pursuant to r16(1) and it must be lodged within 14 days pursuant to r16(2); and
(b) the application must be determined by the Court after consideration of the application and the accompanying affidavit and, unless the court otherwise directs, without notice to any person, pursuant to r16(4).
42The Form 1 Application for review is included in the JR Rules.
43The Form includes the heading “In the matter of an application under section 16K(3)(a) of the Magistrates’ Court Act 1989” and provides notice to the other party that the application for review of the determination of the proceeding be heard by the Court constituted by a Magistrate.
44On 5 September 2023, Ms Anderson completed a Form 1 under the JR Rules.[8]
[8]This document was not in the Court Book but provided to the Court in a bundle of documents attached to the Notice of Appeal
45On the same day, Ms Anderson made an “affidavit in support of judicial review”, as required by the Rules.[9]
[9]Ibid
46On 13 October 2023, after having conducted the review, Magistrate Faram delivered written reasons for his decision to uphold the JR’s orders.[10]
[10]CB 10
47As required by the JR Rules, Magistrate Faram’s reasons are headed “In the matter of a judicial review of a decision of a registrar made 5 September 2023”.
48I do not consider that Magistrate Faram’s decision was a relevant decision under the PSIO Act in respect of which this Court has jurisdiction. I say so for the following reasons:
(a) Magistrate Faram was conducting a review of a determination of the Court constituted by a JR;
(b) Magistrate Faram’s power to conduct the review was derived from the MC Act and from the JR Rule;
(c) The review focussed on the following questions which are within the province of the court’s powers of review or appeal of a decision and was concerned with the legality of the procedure adopted by the JR:
(i)whether the JR had power to make the decision;
(ii)whether the JR correctly applied the law;
(iii)whether the JR considered everything she was required to consider in reaching her decision;[11] and
[11]CB 12, being paragraph [14] of Magistrate Faram’s decision dated 13 October 2023
(d) As in all forms of review or appeal, the proceeding before Magistrate Faram was a proceeding under the provision empowering the appeal or review. By way of example, the review of the JR’s decision made under the Road Safety Act 1986 in Rodger was a review on a question of law under section 252 of the CPA, not a review under the Road Safety Act 1986.
49I find therefore that I have no jurisdiction to hear an appeal from the decision of Magistrate Faram as it was not “a proceeding under” the PSIO Act. It was a proceeding under the MC Act against an order of the Court in a PSIO proceeding.[12]
[12]In Abdullah v Marash [2024] VCC 1541, Judge Pillay made similar findings
50As I have found I have no power to hear the appeal from Magistrate Faram’s decision, there is no need to consider the third submission made by Ms Anderson that Magistrate Faram failed to conduct a hearing de novo as required by section 16K(3) of the MC Act.
51However, section 16(4)(a) of the MC Act bears mention. It provides “If the Rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted by way of hearing de novo”. (emphasis added)
52The JR Rules do provide for the mechanism adopted by the Magistrate – determination of the application for review without a hearing; therefore, the requirement for a de novo hearing is not enlivened.
53In Re Greco[13], Keogh J referred to r16 of the JR Rules and said that it “contemplates as the default position, determination of an application for review by the court without a hearing”.[14] This is what was done by Magistrate Faram and failure to conduct a de novo hearing was not an error.
[13] [2018] VSC 175
[14]Ibid at paragraph [40]
Does the Court have power to transfer Ms Anderson’s appeal to the Supreme Court under the Courts (Case Transfer) Act 1991?
54Section 5 of the Courts (Case Transfer) Act 1991 (“CCT Act”) provides:
“A proceeding may be transferred under this Act—
(a) by an order of the court in which it is pending that applies to that proceeding alone (an individual transfer or a transfer under Part 6) or to a number of proceedings of which it is one (a general transfer); or
(b) by an order of the circuit court in which it is pending …; or
(c) by an order of an officer of the court in which it is pending that applies to that proceeding alone (an administrative transfer).”
55Section 16 of the CCT Act provides the criteria for transfer:
“(1)A proceeding may only be transferred under this Part if in the opinion of the designated judicial officers—
(a)the transferor court does not have exclusive jurisdiction to hear and determine it; and
(b)the transferee court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance; and
(c)it is just and convenient that it be transferred.
(2) [Not relevant as it relates to transfer to the Magistrates’ Court]
56The question whether a court without jurisdiction to hear a matter can transfer a proceeding to another court, was considered by the Supreme Court in Whiley Investments (Qld) Pty Ltd & Ors v Pet’s Paradise Franchising (Qld) Pty Ltd & Ors[15] (“Whiley”).
[15][2009] VSC 144
57In Whiley, Davies J (as Her Honour then was) reviewed a decision of a Magistrate to refuse to transfer a debt recovery matter to the Supreme Court. The basis of the refusal was that the defence filed in the matter raised defences and counterclaims based on the Trade Practices Act 1974 (Cth), which matters were outside the jurisdiction of the Magistrates’ Court (and the Supreme Court).
58The relevant court with jurisdiction to hear Trade Practices Act 1974 (Cth) matters was the Federal Court. The CCT Act did not enable transfer between a state court and a federal court, it only enabled transfers between state courts. However, if the proceeding had been transferred by the Magistrate to the Supreme Court, that court was required to transfer the proceeding to the Federal Court pursuant to s6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.
59Davies J held that the Magistrate erred in law in construing s16 of the CCT Act as requiring jurisdiction in the transferor court and the transferee court to hear and determine the entirety of the claims involved in the proceeding:
“… the only requirement relevant to the transferor court is that the proceeding not be one that only that court can hear and determine. It does not, in my view, impose the antithesis requirement that there be jurisdiction in the transferor court to hear and determine the proceeding. The requirement that the transferor court not have exclusive jurisdiction, expressed as a negative, does not carry with it the implication that it is a requirement that the proceeding be within jurisdiction in order that a transfer order may be made.”[16]
[16]Ibid at paragraph [13]
60In the present case, there is no question that s16(1)(b) of the CCT Act is satisfied and that the Supreme Court has the relevant experience and authority to decide the case.
61It is clear that this Court can transfer the proceeding to the Supreme Court (subject to s17 of the CCT Act), even if it has no jurisdiction to hear the proceeding itself.
62Section 17 of the CCT Act provides the mechanism by which any transfer to the Supreme Court would take place.
63Section 17(3) of the CCT Act provides that:
“[The] designated judicial officer [of the court] and his or her counterpart in the ... transferee court must consider the proceeding and any written submissions made in respect of it and determine whether it should be transferred.”
64Section 17(5) of the CCT Act of that section provides:
“If the designated judicial officers cannot agree about whether a particular proceeding should be transferred or not, the opinion of the officer of the higher court is to be taken to be the determination of both.”
Is it just and convenient that Ms Anderson’s appeal be transferred?
65The transcript reveals that Ms Anderson has at all times complied with the directions of the Magistrates’ Court registry. When she requested to appeal the JR’s decision, the registry informed her that the appropriate procedure was under s16K of the MC Act and the relevant documents for review were the Form 1 and Affidavit in support under the JR Rules. Ms Anderson completed and filed the documents, despite the fact that what she wanted to do was appeal the JR’s decision to this Court and she had made that clear.
66It appears from the exchange between Magistrate Faram and a person identified only as a “voice” that the registry were operating on the basis that Ms Anderson’s only recourse was a review under s16K of the MC Act.
67The decision in Rodgers means that is not correct.
68Through no fault of Ms Anderson, her attempt to appeal the decision of Magistrate Faram, sent by the Magistrates’ Court registry to this court, has resulted in her losing the opportunity to file an appeal on a question of law under the MC Act to the Supreme Court in a timely fashion and losing the opportunity to appeal the JR’s decision to this court.
69Without expressing any view on the merits of the many grounds of appeal Ms Anderson will seek to raise, the court has some sympathy with her position. She is a self-represented litigant relying on instructions and documents provided to her by the Magistrates’ Court registry.
70Given the circumstances in which her appeal arrived in this court and the time which has lapsed since Ms Anderson lodged it, I find it is just and convenient that her appeal be referred for transfer to the Supreme Court, subject to the operation of s17 of the CCT Act and I direct that the registrar of this Court provide a copy of this ruling to the registrar of the Magistrates’ Court.
71Pursuant to section 39(2)(b) of the County Court Act 1958, I order that the proceeding be stayed pending the determination by the designated judicial officer of the Supreme Court.
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