Anderson v Walker (Ruling No. 2)
[2025] VCC 265
•17 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-24-1463
| LENA ANDERSON | Plaintiff |
| v | |
| KARINA WALKER | Defendant |
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JUDGE: | HER HONOUR MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2025 (via Zoom) | |
DATE OF RULING: | 17 March 2025 | |
CASE MAY BE CITED AS: | Anderson v Walker (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 265 | |
RULING
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Subject:PERSONAL SAFETY INTERVENTION ORDER APPEAL – SUBSTITUTED SERVICE OF APPLICATION TO EXTEND INTERVENTION ORDER
Catchwords: Substituted service prescribed information, prescribed documents
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic), Magistrates Court (Personal Safety Intervention Orders) Rules 2021 (Vic), r5.01, r5.02, r5.03, r5.05, r2.01, r2.02 and r16.15
Cases Cited:Anderson v Walker(Ruling) [2024] VCC 1606; AAA v County Court of Victoria & Ors [2023] VSC 13; L v L and anor [2016] VSC 182; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Pino v Prosser and Hassan [1967] VR 835; Hope v. Hope (1854) 4 De G.M. & G. 328; Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Ruling: Error made out.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant | The appellant appeared in person | |
| The Respondent | Ms Walker appeared in person |
HER HONOUR:
Introduction
1The issue in this appeal is whether orders for substituted service made by the Magistrates’ Court at Benalla were validly made (“the impugned orders”).
2The impugned orders related to an application made by Ms Walker to the court to extend a Final Intervention Order (“the final IVO”) in which she is the protected person and Ms Anderson is the respondent.
3Ms Anderson was once briefly employed by Ms Walker. When her employment ended, a dispute arose between the two women about Ms Anderson’s entitlements. The dispute was heard by the Fair Work Commission. In 2023, following the hearing, Ms Walker applied for, and was granted, an interim intervention order (“the interim IVO”) for her protection from Ms Anderson. The application was granted after a contested hearing (“the first IVO”).
4The first IVO was the subject of an appeal before me on 4 September 2024.[1] The first IVO was due to expire on that date.
[1]Anderson v Walker(Ruling) [2024] VCC 1606
5On the same day, Ms Walker applied to the Magistrates Court at Benalla for an extension of the first IVO. Personal service of that application could not be effected, as Ms Anderson had been evicted by police from her known address.
6Ms Anderson now appeals those orders. She asserts she did not receive the documents[2] ordered to be served by substituted service on her email address.
[2]Application to extend the first IVO and the interim IVO made on 4 September 2024 ordered to be served by substituted service on Ms Anderson’s email address.
7Ms Anderson says the first document she received was an email sent by Senior Constable Gary Winfield on 23 October 2024, serving the final IVO made on 22 October 2024.[3] It was sent to the same email address as the email address in the Order for Substituted Service.
[3]Submissions of Ms Anderson dated 30 December 2024 at paragraph [4] of “Ground 1 – Service” at page 4.
Background and procedural history
8On 4 September 2024, Ms Walker applied to the Benalla Magistrates’ Court to extend the first IVO. The period of the extension sought was noted in the application as twelve or twenty-four months.[4]
[4]This 16-page bundle of documents was provided by the Magistrates’ Court Registry to the County Court Registry on 12 December 2024 and provided by the Court to the parties on the same day. It is referred to in the appeal as 16-PDF (“16-PDF”).
9The application contained the following outline of “reasons/grounds”:
“THE DISPUTE HAS BEEN ONGOING. THE MATTER WAS APPEALED TO THE COUNTY COURT FOR HEARING ON 4/9/24, THAT MATTER IS STOOD DOWN PENDING JURISDICTIONAL CONCERN. THE RESPONDENT MADE REFERENCE TO ME BEING DERANGED AND A COMPULSIVE LIAR, WILL GET WHAT SHE DESERVES AND INDICATED THAT THE RESPONDENT WISHES TO CONTINUE LEGAL ACTION AND I STILL FEEL THAT THERE IS AN ONGOING THREAT TO MY SAFETY”[5]
[5]16-PDF at page 6
10The Certified Extract of the Magistrates’ Court dated 4 September 2024, records that an interim IVO was made on that day and “[s]ummons not served on respondent”, “[r]espondent not present in hearing” and “[d]id not agree to the order”.[6] A mention was listed for 24 September 2024.
[6]16-PDF at page 1
11Two certificates of inability to serve signed by members of Victoria Police were on the court file. The first was dated 8 September 2024 and certified by Leading Senior Constable Eva Christou (“the first certificate”) and the second was dated 24 September 2024, certified by Acting Sergeant Patrick Murray (“the second certificate”).
12On 24 September 2024, Magistrate Casey made an order for substituted service of the application to extend the interim IVO made on 4 September 2024. The service would be to Ms Anderson’s email address. The magistrate further adjourned Ms Walker’s application to 22 October 2024.
13The “Decision Sheet” completed by the magistrate is available, however no transcript of the hearing on 24 September 2024 was provided by the parties on the appeal.
14On 25 September 2024, the registrar of the Benalla Magistrates’ Court completed a certificate of service which certified that, at 11.57am on that day, he served, on Ms Anderson, the following documents:
(a) an application to revoke, vary or extend, listed on 22 October 2024;
(b) an interim IVO made 4 September 2024; together with
(c) a respondent notice and
(d) an explanation of the interim IVO.
15In the certificate, the registrar certified that service was effected by “[s]ubstituted service order made on 24/9/24”, and in particular that it was effected by email to Ms Anderson’s email address nominated on the form.[7]
[7]16-PDF at page 15
16A copy of the email serving all documents listed in the Certificate of Service is dated 25 September 2024[8] and addressed to Ms Anderson at her email address.
[8]This nine-page document was provided by the Magistrates’ Court Registry to the County Court Registry on 12 December 2024 and by the Court to the parties on the same day. It is referred to in the appeal as “9-PDF”.
17The email refers to the Order for service “to this email address” and lists a number of attached documents as follows:
(a) interim IVO made on 4 September 2024;
(b) application to extend an IVO;
(c) Certified Extract of Substituted Service Order made on 24 September 2024;
(d) explanation of IVO.[9]
[9]9-PDF at page 1
18On 22 October 2024, Ms Walker appeared at court. Ms Anderson did not appear. Ms Walker told the magistrate she wanted to keep the Order in place to ensure that Ms Anderson was restrained from posting material about her online, because:
“….I wanna keep the intervention order in place because even when she thought that it had lapsed because they hadn’t re-served her the extension, she immediately went back to posting online … .”[10]
[10]Transcript (“T”) of hearing before the Magistrate on 22 October 2024 at T2
19The magistrate told Ms Walker:
“HER HONOUR:
Q:“… when you were here last time, [Ms Anderson] hadn’t been served at that point - - -
…
- - - but she has now been served.
MS WALKER:
A: With a leave substituted service, yes, through email.
HER HONOUR:
Q:… So what I don’t know but you may have an opinion on is whether I should, given that Ms Anderson has chosen not to come despite being served, is whether I should just grant your application, notwithstanding that this is (indistinct words) - - -
…
All right. Well, I’m satisfied that, given that Ms Anderson has chosen not to appear, that I can grant your application for an extension. I’ll also make sure that it is served on her again by email, just bear with me. All right, so, Ms Walker, what I’m proposing to do today, subject to anything you might say, is to grant your application to extend, and make a five year order effective today ”[11]
(Emphasis added.)
[11]T2 ꟷ T3
20The magistrate then said the final IVO would be made for five years. On the same terms as the interim order.[12]
[12]T3
21At the conclusion of the hearing, the magistrate said:
“… No doubt given the other proceedings there will be some flow-on action, but at least this stops you needing to come back every week or every month.”[13]
[13]T4
22On 23 October 2024, the final IVO was served by the registrar, who then completed a certificate of service, certifying that he served a copy of the Order on Ms Anderson’s email address.
23On 30 October 2024, Ms Anderson filed her appeal to this court. Ms Anderson provided three grounds of appeal headed “Legal, Factual or Discretionary Error”:
(a) she was not served with the Summons or application and was unaware of the hearing;
(b) the Orders being extended were under appeal to a higher court at the time the Benalla Magistrates’ Court made further final orders in the same matter (County Court reference AP-23-1383);
(c) the applicant gave false evidence to acquire the final orders granted by the Magistrates’ Court in both instances.
Appeal by rehearing
24Pursuant to s96 of the Personal Safety Intervention Orders Act 2010 (“PSIO Act”), the appeal is to be conducted by way of rehearing. On rehearing, this court may confirm, set aside or vary the magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.
25To enliven the jurisdiction of this court, Ms Anderson must first demonstrate that the magistrate made a factual, legal or discretionary error.[14]
[14]AAA v County Court of Victoria & Ors [2023] VSC 13 at paragraph [50]
26For reasons explained in this ruling, I find that the magistrate made a legal error which enlivens the jurisdiction of this court.
Relevant statutory provisions
27Section 1(a) of the PSIO Act provides that one of the two the main purposes of the Act is:
“… to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats;”
28Section 44 (relevantly) provides that
“Mention Date
(1) The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that—
(a) …
(b) …
(c ) …
(2) Subsection (1) does not prevent the court making a final order on a mention date if—
(a) all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 64; or
(b) the court is satisfied that the respondent has been served with a copy of the application for a personal safety intervention order and has not attended court on a mention date.”
29Part 11 of the PSIO Act relates to service of documents.
30Section 174 (relevantly) provides:
“Service of personal safety intervention orders
If the court makes, varies, extends or revokes a personal safety intervention order, the appropriate registrar for the court must—
(a) arrange for the order to be drawn up and filed in the court; and
(b) serve a copy of the order on the respondent; and
(c) give a copy of the order to the following persons—
(i)the Chief Commissioner of Police;
(ii)each party to the proceeding;
(iv)…
(v)the officer in charge of the police station closest to the place of residence of the protected person
31Section 176 provides:
“Manner of service
(1) This section applies if, under this Act, a document must be served on a person.
(2) The document must be served on the person (other than the Attorney-General) by giving a true copy of the document to the person personally.
(3) ….
(4) If it appears to the court that it is not reasonably practicable to serve a copy of a document on a person personally, the court may—
(a) order that a copy of the document be served by any other means it considers appropriate; or
(b) make an order for substituted service.
32Section 177 provides:
“Proof of service
(1) As soon as practicable after a person serves a document under this Act, the person must file with the court a certificate of service—
(a) that has been made by affidavit or is certified; and
(b) that states service has taken place; and
(c) that specifies details of the service.
(2) For the purposes of subsection (1)(a), the certificate of service may certify that service has taken place only if that service was by a police officer or the appropriate registrar of a court.
(3) The certificate of service must—
(a) include the prescribed information; and
(b)be accompanied by the prescribed documents.
(4) A certificate of service is admissible in evidence and, in the absence of evidence to the contrary, is proof of the matters stated in it.”
33Section 178 provides:
“Inability to serve a document
(1) If a person is required under this Act to serve a document and it has not been possible to serve the document, the person must file with the court a certificate about why it has not been possible to serve the document.
(2)The certificate must—
(a) include the prescribed information; and
(b) be accompanied by the prescribed documents.
(3)A certificate under this section is admissible in evidence and, in the absence of evidence to the contrary, is proof of the matters stated in it.”
34Section 179 provides:
“Person may cause document to be served
(1) If, under this Act, a person is required or permitted to serve a document, the person may serve the document by causing it to be served by another person.
(2) If, under this Act, a person is required or permitted to give a document to another person, the person may give the document by causing it to be given by another person.”
35Section 180 provides:
“Certificate of service
If, under this Act, a police officer or appropriate registrar of a court is required or permitted to certify that a document has been served on a person, the police officer or appropriate registrar must complete a certificate of service that—
(a) if the certificate is completed by a police officer, includes the police officer's name, rank and station; and
(b) if the certificate is completed by an appropriate registrar, includes the appropriate registrar's name and the location of the court; and
(c) includes a statement about the manner of service; and
(d)includes a statement of the date, time and place of service; and
(e)is certified by the police officer or appropriate registrar.”
36Section 181 provides:
“Disclosure of Information by organisations
(1) This section applies if—
(a) a police officer applies to an organisation in the prescribed way for information held by the organisation about a respondent; and
(bthe purpose of the application is to assist a police officer to locate the respondent to enable a police officer to serve the respondent with a document under this Act.
(2) If the organisation has the information requested in the application, the organisation must give the police officer the information.
(3) Information provided by an organisation under subsection (2) to a police officer—
(a) must relate only to the respondent for whom an order has been made or is being sought under this Act; and
(b) must not be used by a police officer for any purpose other than locating the respondent for the purpose of serving the respondent with a document under this Act; and
(c) must not be given by a police officer to—
(i)the protected person; or
(ii) any other organisation or person, other than another police officer or the court.
(4) In this section—
organisation has the meaning given by the Privacy and Data Protection Act 2014.”
37Division 12 of the PSIO Act contains provisions dealing with contravention of personal safety intervention orders, arrest (without warrant) and imprisonment.
38Section 100 (relevantly) provides:
“Offence for contravention of personal safety intervention order
(1) This section applies if a person against whom a personal safety intervention order has been made—
(a) has been served with a copy of the order; or
(b) ….
(2) The person must not contravene the order.
Penalty:Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.”
39Section 101 provides:
“Arrest for contravention of personal safety intervention order
If a police officer believes on reasonable grounds that a person has committed an offence against section 100, the officer may, without warrant, arrest and detain the person.”
40Order 5 of the Magistrates’ Court (Personal Safety Intervention Order) Rules 2021 (“the Rules”) provides for service and related matters.
41Rule 5.01 (relevantly) provides:
“Process if Court required to give documents to a person
If under the Act or these Rules, the Court is required to give any notice or other document to any person, the Court may do so—
(a) by leaving the document at the address of the person; or
(b) by posting the document to the person at that person's address; or
(c) if a person has a facility for the reception of documents by facsimile transmission, by transmitting the document to that facility; or
(d) if the person is a respondent who has provided an email address under section 70(1) of the Act, by sending the document to that email address.
Note
Section 70 of the Act allows a respondent who has been excluded from a residence to give an email address as an address for service. This only applies to documents not requiring personal service.”
42Rule 5.02 provides:
“Certificate of service
(1) For the purposes of section 177 of the Act, a certificate of service must—
(a) include a statement about the date, time and place the document was served; and
(b) include a statement about the manner of service; and
(c) specify each document served; and
(d) indicate whether the certificate has been made on oath, by affidavit or is certified.
(2) A certificate of service must be filed as soon as practicable after service of the document to which it relates.”
43Rule 5.03 provides:
“Inability to serve
(1) For the purposes of section 178 of the Act, the certificate must—
(a) be made on oath or by affidavit, or certified; and
(b) include the following particulars—
(i)if the person completing the certificate is a police officer, the police officer's name, rank and station;
(ii)if the person completing the certificate is an appropriate registrar, the appropriate registrar's name and the location of the court;
(iii) the reasons it has not been possible to serve the document, including details of attempts to locate or serve the person;
(iv) the means that the person completing the certificate believes could be used to bring the document to be served to the person's attention, and the reasons for that belief; and
(c) specify each document that was to be served.
(2) For the purposes of paragraph (1)(a), the certificate may be certified only if it is completed by a police officer or an appropriate registrar.”
44Rule 5.05 provides:
“Applications substituted service for
Unless the Court otherwise orders, an application for substituted service does not need to be conducted in open court.”
45Rule 2.01 provides:
“Effect of non-compliance
(1)A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein, a nullity.
(2) If there has been a failure to comply with these Rules, the Court may exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.”
46Rule 2.02 provides:
“Dispensing with compliance
Subject to the Act, the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.”
47Rule 16.15 provides:
“Absence of party to application
(1)If any person to whom an application is addressed fails to attend, the Court may hear the application if satisfied that the application was duly served.
(2)If on an application the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit.”
Relevant legal principles
48In L v L and anor,[15] Lansdowne AsJ considered an application for judicial review of a decision of a magistrate to vary an IVO for the protection of an adult, on the court’s own initiative.
[15][2016] VSC 182 (“L and Anor”)
49Her Honour said:
“The Magistrates’ Court is a creature of statute. It has no inherent jurisdiction. Accordingly, the starting point for consideration of jurisdictional error is the nature and extent of jurisdiction of the Magistrates’ Court in relation to family violence intervention orders as conferred on it by statutory instruments.
…
Jurisdiction to hear applications for family violence intervention orders is conferred on the Magistrates’ Court by the Family Violence Protection Act 2008 (Vic) (‘the Protection Act’ or ‘the Act’). ... .
Accordingly, powers in relation to interim family violence intervention orders or the required or permitted procedure generally of the Magistrates’ Court in a civil proceeding under the Protection Act must be found in the Protection Act, or in rules made under it. The relevant rules are the Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic) . … .”[16]
[16](Ibid) at paragraphs [44] and [46]-[47]
50In Project Blue Sky Inc v Australian Broadcasting Authority,[17] the High Court considered a number of principles relevant to the task of a court in determining the validity of an act done in breach of a statutory provision and said:
“… A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘‘(sic) the language of the relevant provision and the scope and object of the whole statute’.”[18]
(Footnotes omitted.)
[17](1998) 194 CLR 355
[18](Ibid) at 390-91, paragraph [93]
Object of service
51In Pino v Prosser and Hassan,[19] McInerney J said:
“The accepted mode of personal service is that the copy writ must be delivered to, or left with, the person to be served. The person effecting service must, if the person served requires to see it, show the original writ to that person. … .
…
‘… The object of all service’, as was pointed out by the Lord Chancellor in Hope v Hope … ‘is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.’ ... .”[20]
(Footnotes omitted.)
[19][1967] VR 835 (“Pino”)
[20]Pino at 837-39
Legal error/factual error
52An issue about fact involves the fact finder enquiring into whether something has happened or will, or will not, happen in future. That is distinct from the legal effect of that thing.
53In Jegatheeswaran v Minister for Immigration and Multicultural Affairs,[21] the Federal Court referred to a number of authorities and academic opinion and said:
“To understand what is encompassed by the ‘no evidence’ ground of review it is convenient to consider what is meant by a finding of ‘fact’. … In simple terms a fact is a quality or an event which has happened or existed, including not only a physical fact but also state of mind … Stated more broadly, a ‘fact’ is an act, an action of a person, a state of affairs, a condition (including a state of mind) or an event. It is not limited to things tangible. Usually a ‘fact’ is something which exists. But it need not be, for a ‘fact’ may be positive or negative. That is, the non-existence of an act, action, condition, state of affairs or event can be a ‘fact’, but a negative one. … .
…
‘…
If a decision is in truth based ... on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.’
[21](2001) 194 ALR 263 (“Jegatheeswaran”)
…
… However, before there can be a finding that the asserted fact is ‘true’ there must be some evidence to support it. If there is no evidence, then the finding may be in error of law. In the case of a secondary fact, there must be primary facts from which the secondary fact can be inferred. If the tribunal draws an inference which cannot reasonably be drawn, that is, if it draws an inference for which there is no evidence, there is an error in point of law: … .”[22]
[22]Jegatheeswaran at 273-75, paragraphs [52], [55] and [57]
54The difference between legal error and factual error is not always clear cut. At times, there may appear to be an overlap between the two types of errors.
55For instance, in Collector of Customs v Agfa-Gevaert Ltd,[23] the High Court outlined five categories in which the apparent overlap may be appreciated. These are as follows:
(a) the question whether a word or phrase in a statute is to be given its ordinary meaning, or some technical or other meaning, is a question of law;
(b) the ordinary meaning of a word or its non-legal and technical meaning is a question of fact;
(c) the meaning of a technical term is a question of law;
(d) the effect or construction of a term whose meaning or interpretation is established is a question of law;
(e) the question whether facts fully found fall within the provision of a statutory enactment, properly constructed, is generally a question of law.
[23](1996) 186 CLR 389
56In Vetter v Lake Macquarie City Council,[24] Kirby J said:
“… That judge's classification must stand unless an error ‘in point of law’ authorises the Court of Appeal to disturb it. Usually, a view of the facts taken by the primary decision-maker will not amount to an error of law. It will only do so if there is no evidence to support the conclusion, if the conclusion itself or the reasoning offered to support it betray a mistaken view of the applicable law, or if no reasonable decision-maker could have come to that view of the facts.”[25]
(Footnote omitted.)
[24](2001) 202 CLR 439 (“Vetter”)
[25]Vetter at 467, paragraph [77] (per Kirby J)
Submissions of the parties
Ms Anderson
57Ms Anderson made a number of submissions, some of which are more pertinent to the substantive appeal. In this ruling, I have addressed only the submissions directed to legal, factual or discretionary error in the making of the IVO based on the substituted service order.
58In summary, during the hearing and in written submissions, Ms Anderson submitted the magistrate made a legal error, as the certificates upon which the magistrate relied to make the Order for substituted service were defective. In particular:
(a) she had not been served with the Summons or application until 22 October 2024, well after the IVO had been made on an undefended basis;[26]
(b) the Application to Extend had not been served on her “as soon as practicable”, as required by s19(a) of the Act. The registrar should have told Ms Walker there had been a problem with personal service, not waited until 24 September 2024 (the date of the hearing). The registrar is responsible for ensuring that the person is served “as soon as practicable”, however that may occur;
(c) the transcript of the hearing for the Order for substituted service would not make any difference to the submissions, because the failure of police to provide prescribed information on the Certificate of Inability to Serve is a failure of service;
(d) the two certificates of inability to serve failed to comply with the mandatory (not discretionary) requirements of s178 of the Act, including reference to the following prescribed information:
(i)the details of the attempts made to serve her;
(ii)the means that the person believes could be used to bring the document to the person’s attention.
[26]Summary of appellant’s oral submissions for the preliminary hearing dated 30 December 2024 and Ms Anderson’s “additional submission” dated 24 January 2025.
59Each of the certificates is a stand-alone document intended to be acted upon at the time it is filed to ensure service is made as soon as practicable.
60As each of the certificates is defective, the decision to allow substituted service is invalid.
61The Certificate of Service document signed by the registrar on 25 September 2024 is also defective, as it did not comply with s177(3)(b) of the Act, as the prescribed documents did not accompany the certificate.
62She was in regular contact via her email address with Victoria Police, chasing payment for a costs order, at the time the “defective” certificates of Inability to Serve were signed by Leading Senior Constable Christou and Acting Sergeant Murray, but she did not receive the email serving the documents. There is no sensible explanation for why she would dispute and contest every application made by Ms Walker and not show up at court on the day of hearing. The fact she failed to attend court shows she did not receive the documents and was not aware of the hearing date.
63Ms Anderson also submitted that the magistrate, in making the Order for a period of five years, failed to have regard to whether the prohibited behaviour alleged by Ms Walker complies with s5 of the PSIO Act, and to the level of risk as required by s77(2)(a).
Ms Walker
64During the hearing and later in written submissions, Ms Walker submitted that:[27]
(a) the application was served “as soon as practicable”;
(b) on 24 September 2024, she made an application for substituted service, as it had not been possible to serve Ms Anderson personally. The only information available to the magistrate was the first certificate, but Ms Walker had not seen that certificate herself. The second certificate “sits adjacent” to the first certificate and the two should be read together;
(c) Rule 2.01 of the Rules clearly states that a failure to comply with the Rules is an irregularity and does not render a proceeding a nullity. Therefore:
“… even if an irregularity has occurred in the paperwork leading to the successful granting of substituted service, there is no question that service was then completed, legally, via email on the 25th of September by the Court Registrar. ... There is no dispute by Ms Anderson that the email address used for substituted service is still in use and monitored. … Ms Anderson also agrees that she did receive a copy of the final orders [sent] to the same email address … which clearly shows it is reasonable to infer that Ms Anderson did receive the documents served on the 25th of September (by substituted service) to her email address”;[28]
[27]Ms Walker did not file submissions for the preliminary hearing. During the hearing a number of issues arose and both parties were provided with an opportunity to address those in writing. Ms Walker filed a written document headed “Summary of responses from questions arising from the preliminary hearing on 21 January 2025”, dated 21 January 2025.
[28]Summary of responses from questions arising from the preliminary hearing on 21 January 2025 at page 5.
(d) Rule 2.02 provides that the court may dispense with compliance “[s]ubject to the Act”, either before or after the occasion for compliance arises. So the Magistrates’ Court, at its discretion, has accepted an inability to serve documents as true and correct, despite the fact they appear at first glance to be missing some particulars;
(e) where the provisions specify information “must” be included in a certificate, they should be read as meaning “must be included if available”. The first certificate is not an application for substituted service, it is a notification to the court that service could not be effected;
(f) “upon presentation at the hearing”, Ms Walker told the magistrate that Ms Anderson had been monitoring her email and it was still in use. Rule 5.05 of the Rules provides that the Application for Substituted Service does not need to be conducted in open court;
(g) the second certificate provides that Ms Anderson was not at her previous nominated address and suggested email as an alternative method of service. The court cannot require information or particulars to be included in a form if those particulars do not exist. Therefore, both certificates of inability to serve were completed with all relevant and available information;
(h) The magistrate was under no duty to provide reasons for the length of the order, especially where the application was “uncontested”, as Ms Anderson was not there, despite having been served by email in accordance with the Substituted Service Order;
(i) When the magistrate asked to review the file, it can be inferred that the magistrate took into account the allegations contained in the original application for the IVO, the history of the relationship and any interaction between the parties, as suggested by the Personal Safety Intervention Orders Bench Book.
Analysis
65The starting point for consideration of whether the magistrate made any error is the Act and the Rules made under it.
66It is important to recognise that the Magistrates’ Court is a busy court which hears thousands of cases each year. Each day, a magistrate may hear twenty, thirty or more cases. In a list such as the mentions list for IVOs, there may be twenty or more cases listed for 9.30am alone.
67Protection of victims’ safety and property is a fundamental purpose of the Act. That would be the primary focus of a magistrate sitting in an IVO list.
68However, the protection provided by the Act can only be afforded when a respondent has been served and thereby receives notice that an application has been made. They then have an opportunity to be heard if they wish.
69Under s100 and s101 of the PSIO Act, breaching orders after having been “duly served” makes the person subject to arrest without warrant and to a fine, or imprisonment, or both.
70Section 176 of the PSIO Act provides for personal service of documents.
71Under Part 11, the following provisions relevant to the question whether an order for substituted service was validly made, are expressed in mandatory terms:
(a) the registrar “must serve” a copy of the order on the respondent, (s174 of the PSIO Act);
(b) if, under the PSIO Act a document “must be served”, it must be served by giving a true copy to the person personally (s176(2);
(c) a person “must” file a certificate of service, which certificate “must” include the prescribed information and be accompanied by the prescribed documents (s177 of the PSIO Act);
(d) if a person is required to serve a document and it has not been possible to serve the document, the person “must” file, with the court, a certificate which “must” include the prescribed information about why it has not been possible to serve the document (s178 of the Act);
(e) if a person is required or permitted to certify that a document has been served, the person “must” complete a certificate of service that contains prescribed particulars (s180 of the PSIO Act).
72Personal service is mandated by s176(2) of the PSIO Act. The object or purpose of such service is to bring the existence of the application to the notice of the party being served and thereby to provide them with an opportunity to be heard and/or to resist the application, and when that has been done, so the court can feel confident notice, as required, has been given.[29]
[29]See Pino v Prosser and Hassan [1967] VR 835 and the cases cited therein by McInerney J, as referred to in paragraph 51 above.
73Notice of the application is a condition precedent to the exercise of power under certain provisions of the PSIO Act and the Rules. For example:
(a) Section 44(2)(b) of the PSIO Act empowers the court to make an order on a mention date if satisfied that the respondent has been served with a copy of the application and has not attended court on the mention date;
(b) Rule 16.15 of the Rules empowers the court to hear an application, even if the person to whom it is addressed fails to attend court, if satisfied that the application was duly served;
(c) Section 100 of the PSIO Act creates an offence for a person who has been served with a copy of the Order to contravene it;
(d) Section 101 of the PSIO Act empowers police to arrest a person without warrant if they believe, on reasonable grounds, that the person has committed an offence against s100.
Inability to serve Ms Anderson
74In this case, it is not in dispute that personal service could not be effected on Ms Anderson, because she was no longer at the address known to police.
75Section 176(4) of the PSIO Act confers a discretion on the court, where it appears “it is not reasonably practicable to serve a copy of a document on a person personally”, to either order the document served “by any other means if considered appropriate” or to “make an order for substituted service” (emphasis added). The focus of the exercise of the discretion is to make orders by which service (notice of the application) can be effected by means other than personal service.
76Section 178(3) of the PSIO Act provides that a certificate (of inability to serve) under this section, is admissible in evidence and in the absence of evidence to the contrary, proof of the matters stated in it.
The first certificate
77The first Certificate of Inability to Serve dated 8 September 2024, relates to documents described as an “interim I.V.O”.
78Ms Anderson’s previous address is nominated in the certificate. The certificate was signed and certified as correct by Leading Senior Constable Christou of Benalla Police Station on 8 September 2024.
79It also provided that:
(a) on 4 September 2024, a “service [attempt]” had been made by a person whose name does not appear in the box allocated for “name of person who attempted service”;
(b) the documents were said to be not served for the following reason: “U/K address, not answering phone calls, phone msg’s or emails”;
(c) on 5 September 2024, Constable Mikayla Byrne attempted to serve the documents at Ms Anderson’s previous address, but the documents “were not served for the following reason(s): “U.T.L as above”. I consider “U.T.L” is likely an abbreviation for “unable to locate” and, as above, refers to the matters set out in subparagraph (b) above.
80The certificate contains a section headed “Proposed Method of Service”. That section provides a space where the person completing the form can include information about what is proposed to effect service and importantly a space for completion of the following:
“I believe that if the document(s) was/were served to (sic) this way they would come to the attention of the party to be served because:”
81This portion was left uncompleted in the first certificate.
82The Certificate also contains the following note imprinted in the middle:
“(NOTE: Section 207 Family Violence Protection Act and Section 181 Personal Safety Intervention Order Act 2010 permits a police officer to obtain information about a respondent from the State Government Organisations)”[30]
Did the first certificate provide a sufficient evidentiary basis for the making of an order for substituted service?
[30]16-PDF at page 12
83The first certificate was incomplete. The section headed “Proposed method of Service” was left blank.
84The certificate failed to comply with s178 and with the requirements of r5.03. Those requirements are couched in mandatory terms:
“(1)For the purposes of section 178 of the Act, the certificate must—
(a)…
(b)include the following particulars—
(i)…
(ii) …
(iii) …
(iv)the means that the person completing the certificate believes could be used to bring the document to be served to the person’s attention, and the reasons for that belief; …”
85I reject Ms Walker’s argument that the certificate only required completion of information which was available. Section 181 of the PSIO Act provides the means by which police can apply for an order to locate Ms Anderson if they did not know what her new address might be. Reference to that section was clearly set out in the certificate itself.
86The certificate informs the reader that Ms Anderson is not answering phone calls and not returning messages or answering emails. It provides no proposal for another method of service.
87The magistrate would have had no information available to her about what method of service might bring the documents to the attention of Ms Anderson. I consider it likely that Leading Senior Constable Christou did not consider email to be an appropriate method as, according to the certificate, Ms Anderson was not responding to emails.
88I find the first certificate did not provide an evidentiary basis for the making of the Order, as it failed to provide any evidence at all about how substituted service may be effected, and how, if the document was served by those means, it might come to the attention of the person being served.
The second certificate
89The second certificate was signed and certified by Acting Sergeant Murray of Benalla Police Station on 24 September 2024.
90The document listed “not possible to serve for the hearing listed on 22/10/2024” as:
“Application to revoke, vary or extend … Int. Order (IVO) made 04/09/24 on Lena Anderson”[31]
[31]16-PDF at page 14
91The section in the second certificate relating to dates of attempted service, name of person who attempted service and the reasons why the documents were not served, were all left blank. There is only one notation in that section “[n[ot at [Ms Anderson’s previous address]”.
92The section headed “proposed method of service” has been completed. It contains the following:
“I propose that service be effected by email at [Ms Anderson’s email address]”
“I believe that if the document(s)
was/were served to (sic) this way they would come to the attention of the party to be served because ‘email used by County Court + Magistrates’ Court previously.”[32][32]Ibid
93The second certificate also fails to comply with s178 of the PSIO Act and r5.03 of the Rules.
94Under s178(1)(b)(iii) of the PSIO Act, the second certificate had to state the reasons why it has not been possible to serve the document and had to include details of attempts to locate or serve the person.
95On 29 September 2024, the magistrate completed a decision sheet in which an order was made for substituted service by email to Ms Anderson’s email address.
96If the magistrate relied on the second certificate, that certificate was deficient, in that it failed to provide evidence of what previous attempts had been made to serve Ms Anderson, the name of the person who attempted service, the dates of such attempts and why it had not been possible to effect service.
97The second certificate also failed to provide evidence about the timing of the email address being used by the relevant courts, and significantly about whether a response had been received from Ms Anderson to those emails, and if so, when.
98I find the second certificate did not did not provide an evidentiary basis for the making of the Order, as it failed to outline previous attempts for service and, significantly, it failed to provide evidence about Ms Anderson’s use of the email address.
Combination of evidence from both certificates
99I take judicial notice that the magistrate likely had both certificates before her on the file.
100I consider the combination of the two certificates also did not provide an evidentiary basis for the making of the Order, as there was no evidence in either of them that Ms Anderson herself had used the email address, and when.
101On one view of this evidence, making an order for substituted service on an email address which was not being answered, carried with it, the possibility that the documents may not in fact be received.
102On another view of the evidence, Ms Anderson may have been deliberately avoiding contact via those three mechanisms. For this reason, it was important that the second certificate included specific information about emails received from Ms Anderson’s email and when. Failure to provide this information is a breach of s178 of the PSIO Act and Rule 5.03 of the Rules.
103Section 178 and r5.03 are both couched in mandatory terms. In my opinion, their requirements are not merely procedural in nature, they contain conditions precedent upon which the validity of service depends. The reason for this is the significant consequences of failure to appear, or comply, with an order when notice of a hearing date or a court order has been given under the PSIO Act. For example, the court may proceed to hear a matter in the person’s absence, or police may arrest without warrant, or a respondent may be subject to a penalty of a fine, or imprisonment, or both.
104Finally, I note there is no adequate explanation for Ms Anderson’s position that she did not receive the first email from the registrar serving the application, interim IVO and associated documents, but received the email which served the final IVO, when both were served on the same email address.
105Ms Anderson’s position on the issue is that she has hotly contested each application at hearing stage, then on appeal, and there would be no reason why she would receive the documents and not attend court.
106Ms Walker’s position was that it must be inferred Ms Anderson did in fact receive it, as she received the second email. That submission makes a lot of sense. Had the Certificates of Inability to Serve been properly completed, that inference might well be the appropriate inference to draw.
107In the circumstances of this case, however, due to the failure to comply with s178 of the PSIO Act and r5.03 of the Rules, I consider an error has been made out and accept Ms Anderson’s account that she did not receive the documents, nor advice of the hearing date.
108As Ms Anderson has been successful in establishing legal error, it is not necessary to consider the remaining arguments.
109I will hear from the parties about listing the substantive appeal.
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