Browne (a pseudonym) v Carroll (a pseudonym)
[2018] VCC 158
•14 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
CRIMINAL JURISDICTION
| MARVIN BROWNE (a pseudonym) |
| v |
| PRISCILLA CARROLL (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 December 2017 |
| DATE OF JUDGMENT: | 14 February 2018 |
| CASE MAY BE CITED AS: | Browne (a pseudonym) v Carroll (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 158 |
REASONS FOR JUDGMENT
---Subject: CRIMINAL LAW
Catchwords: Whether or not appeal out of time – Intervention Order Appeal – Whether multiple orders constitute one decision – Statutory interpretation
Legislation Cited: Family Violence Protection Act2008 (Vic), Interpretation of Legislation Act 1984 (Vic),
Cases Cited:Summers v McKenzie [2017] VCC 2015, YY v XX (2013) VSC 743, Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Gardner | Aitken Partners |
| For the Respondent | Mr Freeman | Freeman Lawyers |
Introduction
1In this matter, Marvin Browne[1] seeks to appeal against the refusal by a Magistrate to make an intervention order under the Family Violence Protection Act 2008 (‘the Act’).
[1] Marvin Browne is a pseudonym
2The Respondent to the appeal, Priscilla Carroll[2] has raised the threshold question to whether the application to appeal is out of time, and therefore statute-barred. For the reasons that follow, I find that Mr Browne's application is within time, and that the appeal may proceed.
[2] Priscilla Carroll is a pseudonym
The History of the Proceeding
3On 18 August 2016 Mr Browne made an application to the Magistrates' Court for an intervention order against Ms Carroll. Ms Carroll indicated through her legal representatives that the application was opposed. The matter was set down for hearing on 23 March 2017 but was not reached. On 10 May 2017 the application proceeded as a contested hearing. Evidence was called by both parties. At the conclusion of that evidence the Magistrate determined that no intervention order should be made.
4Ms Carroll’s legal representative then applied for costs and other ancillary orders relating to the redaction of certain material and non-publication orders. Oral submissions were made and the matter was adjourned with provision for written submissions to be exchanged between the parties and filed with the Court. As at 24 May 2017 all written submissions had been exchanged and filed.
5More than four months later, on 6 October 2017, the Magistrate handed down her ruling on the issue of costs and other ancillary matters. Costs were awarded to Ms Carroll.
6On 24 October 2017 Mr Browne sought to lodge an appeal with respect to the decision to refuse to grant an intervention order and the decision to award costs in Ms Carroll’s favour.
7It is now contended that Mr Browne’s appeal against the refusal to grant an intervention order is out of time. Section 116 of the Act requires that a notice of appeal including the prescribed particulars signed by the appellant “be filed within 30 days after the day the relevant decision was made”. Section 114(1) defines relevant decision as “an order of the court in the proceeding or a refusal of the court to make an order”. It is submitted that time commenced running on 10 May 2017, when the order refusing to make the intervention order was made. The Act makes no provision for leave to appeal out of time. Accordingly
Mr Browne, it is said, has lost the opportunity to appeal against the refusal to grant the intervention order, albeit that the appeal in respect of the decision to award costs to Ms Carroll, remains on foot.
The Threshold Question
8In those circumstances the threshold question to be determined is as follows;
Did the 30 day time period within which the appeal should be filed, run from the time of refusal to grant the intervention order on 10 May 2017, or did it run from 6 October 2017 when orders as to costs and redactions were made?
9The answer to that question depends on the proper construction of section 114 of the Act.
Family Violence Protection Act 2008
10The Act commences with a preamble setting out Parliament's acknowledgement of family violence as a pervasive and unacceptable blight in our community. Sections 1 and 2 provide for a statement of the purpose of the legislation and how that purpose is to be achieved:
Section 1 Purpose
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.
Section 2 How purpose is to be achieved
This Act aims to achieve its purpose by—
(a) providing an effective and accessible system of family violence intervention orders and family violence safety notices; and
(b) creating offences for contraventions of family violence intervention orders and family violence safety notices.
Structure of Act
11The structure of the Act is then as follows:
12Part 2 of the Act deals with definitions and the meaning of Family Violence. Part 3 sets out police powers under the Act.
13Part 4 relates to family violence intervention orders and is relevant to this application. The relevant Divisions of Part 4 are as follows – Division 1 (ss.42-52) concerns the making of applications for intervention orders; Division 2 (ss.53-60) relates to interim orders; Division 3 (ss.61-73) governs evidence and procedure at hearings; Division 4 (ss.74-78) relates to the power to make final orders; Division 5 (ss.79-95) concerns conditions of family violence intervention orders; Division 6 (s 96) requires that the court explain to the respondent and the protected person the effect of a final order; Division 7 (ss.97-99) regulates the duration of final orders; Division 8 (ss.100-113) relates to variation, revocation and extension of orders; Division 9 (ss.114-122) concerns appeals and re-hearings; and Division 10 (ss.123-125) makes provision in respect of contravention of family violence intervention orders.
14The balance of the Act deals with matters that are not presently relevant.
The Appeal Provisions
15The focus of argument in this matter is on appeals to this Court contained in Subdivision 1 of Division 9 of Part 4. Those provisions are as follows:
Division 9—Appeals and rehearings
Subdivision 1—Appeals to County Court and Supreme Court
114Who may appeal
(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 the making of a counselling order may be made only by the respondent for the order; and
(b) an appeal against an order referred to in section 118 may be made only with the consent of the relevant person under that section.
115Court to which appeal must be made
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—
(i) the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or
(ii) the Children's Court constituted by the President of the Court or the Chief Magistrate who is a dual commission holder.
116Notice of appeal
(1) A person makes an appeal under this Subdivision by filing notice of the appeal with the court that made the relevant decision.
(2) The notice must—
(a)include the prescribed particulars; and
(b)be signed by the appellant; and
(c)be filed within 30 days after the day the relevant decision was made.
(3) The appropriate registrar for the court must serve notice of the appeal on—
(a)the other parties to the proceeding in which the relevant decision was made; and
(b) if the appeal relates to a family violence intervention order for a protected person who is a child and the application for the order was made with the consent of a parent, that parent; and
(c) if the appeal relates to a family violence intervention order for a protected person who is a child and the order was made without the child's consent, a parent of the child (other than the respondent) with whom the child normally or regularly resides; and
(d) if the appeal relates to a family violence intervention order for a protected person who has a guardian, the guardian.
(4) The appropriate registrar for the court must also cause the notice of appeal to be transmitted—
(a)to the County Court if the appeal is to that Court; and
(b)to the Supreme Court if the appeal is to that Court.
117Stay of relevant decision
(1) An appeal made to the County Court or the Supreme Court under this Subdivision does not stay the operation of the relevant decision, other than the operation of a counselling order stayed under section 131.
(2) However, the court that made the relevant decision may, on the application of a party to the proceeding, stay the operation of the relevant decision or any part of the relevant decision pending the determination of the appeal.
(3) In staying the operation of the relevant decision or any part of the relevant decision, the court may impose bail conditions on the appellant, as if the appellant were an accused person being released from custody on bail, if the court considers it necessary—
(a)for the protection of a protected person; or
(b)to require a party to the proceeding to attend court for the appeal.
118Appeals not to commence if certain persons object
(1) If the relevant decision relates to a family violence intervention order and the application for the order was made by a person other than the protected person, the County Court or the Supreme Court must not start or continue the hearing of the appeal if—
(a) the appeal is made by the applicant for the family violence intervention order; and
(b)any of the following persons objects to the appeal—
(i)the protected person;
(ii) for an application made in relation to a protected person who is a child and with the consent of a parent, the parent;
(iii) for an application made in relation to a protected person who has a guardian, the guardian.
(2) Nothing in this section prevents an appeal on the basis of a jurisdictional error.
119Conduct of appeal
(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.
Note
See section 115 which provides that the appeal is to the County Court unless the relevant decision was made by the Children's Court constituted by the President of the Court or the Chief Magistrate who is a dual commission holder, or the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, in which case the appeal is to the Trial Division of 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 section 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.
120No further appeal
(1) There is no appeal against the decision of the County Court or the Supreme Court under section 119.
(2) Nothing in this section prevents an appeal from the County Court or the Supreme Court on the basis of a jurisdictional error.
121Application 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 applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this Division.
It should be noted that s.3 of the Act defines "relevant decision" in the following terms:
"Relevant decision" for Subdivision 1 of Division 9 of Part 4 has the meaning set out in s.114.
Seeking Leave to Appeal Out of Time
16In the course of argument I was referred to a decision of this Court in Summers v McKenzie [2017] VCC 2015, where Judge Gamble considered whether there was a right in the Act to seek leave to appeal out of time. There is no express provision to that effect. His Honour held that the Act did not impliedly import provisions of the Criminal Procedure Act or the Civil Procedure Act with respect to granting leave to appeal out of time. His Honour stated:
"I am firmly of the view that the provisions of the FVPA itself are what provide the legal basis for any right to appeal against an order such as this, and the limits to that right. The appeal provisions in part 6.1 of the Criminal Procedure Act have no application to such an order which is, after all, an order made during a civil proceeding. As such, the applicant has no legal right or capacity to make application to this court for leave to appeal out of time.”[3]
[3]Summers v McKenzie [2017] VCC 2015 [29].
17The correctness of that decision was not challenged, and I proceed on the basis that there is no power to grant leave to appeal out of time.
Arguments of the Parties
18Mr Freeman, who appeared on behalf of Ms Carroll, argued that the Magistrate made the decision to refuse to grant an intervention order on 10 May 2017. The refusal to make an order was ‘a relevant decision’ for the purposes of s.114 of the Act. He argued that the words of the provision were clear and that once the relevant decision had been made time began to run. The refusal to grant the intervention order was a final order, i.e. ‘a relevant decision’ that should be viewed as being separate and distinct from the other orders made in the proceeding in October. Mr Freeman submitted that Parliament had strictly confined the terms in which an appeal may be lodged to ensure the finality of proceedings under the Act.
19Mr Gardner, who appeared for Mr Browne, submitted that the phrase “an order of the court in the proceeding” should be read to mean all orders that are required to finally dispose of the proceeding. He argued that Parliament could not have intended permitting multiple appeals arising out of the same proceeding. He suggested it would be contrary to the objectives of the legislation if those subject to family violence were required to attend numerous traumatic court hearings. He also argued that the language used in s.117(2) of the Act, supported the construction of s.114 for which he contended. That provision refers to the power of the court to stay the operation of the relevant decision “or any part of the relevant decision” pending determination of the appeal. It was suggested that this language contemplates multiple orders as constituting a relevant decision.
Analysis
20The words of s.114 focus on an order of the Court in the proceeding or a refusal of the Court to make an order. The immediate difficulty with the more narrow interpretation urged on behalf of Ms Carroll is that in reading an Act words in the singular include the plural, unless a contrary intention appears. Section 37(c) of the Interpretation of Legislation Act 1984 (Vic) makes this clear.[4] As I read the Act I can discern no contrary intention. In fact, when read in conjunction with the other provisions of Subdivision 1 of Division 9 of Part 4, that construction is supported.
[4]In Fitzmaurice v Repatriation Commission (1989) 19 ALD 297, the full Federal Court considered a similar problem to that arising here and held that the Administrative Appeals Tribunal’s power to review a ‘decision’ encompassed the power to consider all or some of the package of decisions that resolved a particular claim. Davies J at paragraph [20] referred to section 23 (b) of the Acts Interpretation Act 1901 (Cth), (the Commonwealth equivalent of section 37(c) of the Interpretation of Legislation Act 1984 (Vic)) as providing some support for the Court’s reasoning. However, I do not regard that decision as in any way determinative of the issue in this case given the different nature of the legislation considered.
21That is particularly so with respect to s.119 of the Act which deals with the ‘conduct of appeal’ and stipulates that an appeal is by way of ‘rehearing’. Insofar as is relevant to this matter, the Court hearing the appeal has the power to confirm, set aside or vary the relevant decision and make any other order that could have been made by the Magistrates' Court.
22In considering this provision Cavanough J in YY v XX (2013) VSC 743, said:
“Notwithstanding that applications for family violence intervention orders and appeals from such orders are civil proceedings rather than criminal proceedings it is common ground that the appeal provisions envisage a “de novo” re-hearing.”[5]
[5]YY v XX (2013) VSC 743 [45].
23Parliament has not confined appeals under this Act to questions of law, rather an appellate court is to consider the matter afresh.
24In my view the manner in which Parliament has defined the ambit of appeals in s.119, strongly supports a construction of s.114 that enables a relevant decision to consist of a number of orders arising out of the proceeding.
25Moreover, in a context where Parliament has expressly defined the ambit of appeals in s.119, one may also infer that other provisions affecting appeals will be interpreted beneficially, and not ‘read down’ in an unduly narrow way so as to further bar an appellant.
26That proposition can be tested by the facts of this case. Section 154 of the Act deals with costs of the proceeding. It relevantly provides:
Section 154(1) Each party to a proceeding for a family violence intervention order under this Act or a proceeding for the variation, extension or revocation of a recognised DVO must bear the party's own costs of the proceeding.
Section 154(3) Despite subsections (1) and (2)—
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
27Subsection (1) sets out the general rule that each party to a proceeding for an intervention order must bear their own costs. Subsections (3)(a) and (3)(b) provide for exceptions to the general rule where either exceptional circumstances warrant an award of costs in a particular case, or the making of any application under the Act is vexatious, frivolous or in bad faith.
28Any order as to costs is dependent upon the issues resolved in the substantive hearing. It is apparent that the Magistrate must have been satisfied as to one of the exceptions in awarding costs against the Mr Browne. Pursuant to s.119 this Court cannot review the Magistrate's decision, it must consider the matter afresh by way of rehearing. It is difficult to see how one could properly consider the question of costs afresh without either reviewing the Magistrate's substantive decision, which is not permitted by the legislation, or considering the substantive decision afresh. In practical terms it is only possible to consider the application of s.154(3) after having reached a decision on the substantive question.
29The narrow construction of s.114 would confine this appeal to a rehearing on the question of costs without rehearing or reviewing the decision on which any costs order must be based. Such a situation would be impractical and could not have been intended by Parliament.
30For the reasons advanced by Mr Gardner, I also accept that s.117, in so far as it refers to "the relevant decision or any part of a relevant decision", tends to support a construction in which multiple orders, both substantive and ancillary, constitute a relevant decision.
31I should also state that I am of the view the construction of s.114, which I have adopted, appears to be consistent with one of the objectives of the legislation. The stated purposes of the Act include "prevention and reduction of family violence by providing for an effective and accessible system of family violence intervention orders" (s.2(a)). That purpose would not be achieved, in my view, if those wishing to appeal were required to lodge multiple appeals in respect of multiple orders made at different times.
Conclusion
32Section 114 of the Act should be interpreted to enable an appeal by way of rehearing of both substantive and ancillary orders in a proceeding to be determined in one appeal hearing. A relevant decision for the purposes of the provision may consist of multiple orders made at different times arising out of the same proceeding.
33The answer to the threshold question raised on this application is that the 30 day time period within which the appeal should be filed, began to run from
6 October 2017 when orders as to costs and redactions were made and the proceeding was finally disposed of in the Magistrates' Court. Accordingly, I find that the application is within time and the appeal may proceed.
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