Cameron Sky (A Pseudonym) v Jennifer Sky (A Pseudonym)

[2018] VCC 417

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE

CAMERON SKY (A PSEUDONYM)[1]   Applicant

[1] To ensure that there is no possibility of identification, this ruling has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

v

JENNIFER SKY (A PSEUDONYM)[2]  Respondent

[2] To ensure that there is no possibility of identification, this ruling has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGE:  HIS HONOUR JUDGE MURPHY
DATE OF HEARING:  21 March 2018
DATE OF RULING:     21 March 2018
CASE MAY BE CITED AS:  Sky (a pseudonym) v Sky (a pseudonym)
MEDIUM NEUTRAL CITATION:                 [2018] VCC 417

RULING

PRACTICE AND PROCEDURE – Appeal – Appeal brought pursuant to the Family Violence Protection Act 2008 out of time – Whether this Court has jurisdiction to hear appeal brought outside the statutory time limit – Court has no jurisdiction to consider appeal – Summers (A Pseudonym) v McKenzie (A Pseudonym) [2015] VCC 2015, applied – Family Violence Protection Act 2008 ss. 114, 115, 116, 117, 119, 120, 121; Magistrates Court Act 1989 s. 109.

APPEARANCES:                Counsel  Solicitors

For the Applicant                  Mr B Ihle  Berger Kordos Lawyers

For the Respondent             Mr P J Smallwood                Taussig Cherrie Fildes Family

Lawyers

HIS HONOUR:

1. The Applicant has filed a Notice of Appeal pursuant to s. 116 of the Family Violence Protection Act 2008 (Vic) (‘the Act’) against an order of the Magistrates’ Court of Victoria, in which the Respondent was successful in obtaining a Family Violence Intervention Order (‘the Order’). The order was made by the learned Magistrate on 21 September 2017, and the Notice of Appeal was filed on 31 October 2017.

1. An appeal against an order of the Magistrates’ Court of Victoria must be filed within 30 days after the day the relevant order is made, pursuant to s. 116 of the Act. As such, the Applicant has filed his Notice of Appeal outside of the time permitted by s. 116 of the Act. It is on this basis that the Respondent resists the Applicant’s application to prosecute his appeal.

1. Division 9 of the Act makes provision for appeals against relevant decisions. Pursuant to s. 114 of the Act, a party may appeal against an order. Such an appeal is to the County Court unless the relevant order was made by the Chief Magistrate or President of the Children’s Court, in which case the appeal is to the Trial Division of the Supreme Court.[3]

   [3] Family Violence Protection Act 2008 (Vic) s. 115 (‘FVPA’).

1. The appeal right is, however, limited in the case of a counselling order where the appeal can only be made by the respondent to that order.[4] In respect of a Family Violence Intervention Order (‘FVIO’), an appeal cannot commence or continue to be heard if the application at first instance was made by a person other than the protected person, and the protected person (or if the protected person is a child, then a parent of that child), objects to the appeal.[5]

   [4] FVPA s. 131.

   [5] FVPA s. 118.

1. The right to appeal on the basis of jurisdictional error is maintained by s. 118(2) of the Act.

1. An appeal is by way of a rehearing,[6] and there is no further right of appeal against the decision of the County Court or Trial Division of the Supreme Court, as the case may be, except in the case of jurisdictional error.[7]

   [6] FVPA s. 119.

   [7] FVPA s. 120.

1. Section 121 of the Act provides that the provisions of the Act, the Magistrates’ Court Act 1989 or the Children, Youth and Families Act 2005 as the case requires, extend and apply to appeals under Division 9, so far as applicable with any necessary modifications and adaptations.

1. The applicant submits that it is by reason of the provisions of s. 121 of the Act, s. 109 of the Magistrates’ Court Act (‘MCA’) is incorporated. Section 109(4) of the MCA provides that, in relation to appeals to the Supreme Court from a final order made in a civil proceeding on a point of law, an appeal instituted after the 30 day statutory time limit is deemed to be an application for leave to appeal.

1. The applicant’s submission is that the terms of s. 121 of the Act enliven a jurisdiction in this Court to consider an application for leave to appeal out of time, as the Supreme Court is permitted to do when an appeal is instituted outside the statutory time limit on a question of law.

10.The respondent submits, on the other hand, that s. 109 of the MCA is directed to the power of an appeal in the civil jurisdiction to the Supreme Court and it is straining the interpretation to hold that it also applies to an appeal to this Court to allow an extension of time. I agree.

11.It is a clear feature of the civil jurisdiction of the Magistrates’ Court that final orders of that Court cannot be appealed except on questions of law, as permitted by s. 109 of the MCA. This is a feature of a summary court. Here, there are clear indications in the Act that when orders are made, subject to filing an appeal within time, they are final. This can be seen by the fact that an appeal does not act as a stay of the order,[8] there are restrictions placed on an appeal[9] and that there is no further right of appeal.[10]

[8] FVPA s. 117.

[9] FVPA s. 118.

[10] FVPA s. 120.

12.I accept that some work must be given to the terms of s. 121 of the Act. In the Explanatory Memorandum accompanying the Bill, clause 121 states:

“As an appeal is by way of re-hearing…this is particularly relevant to how proceedings may be conducted, how evidence may be given, prohibitions on personal cross-examination of a protected witness and prohibitions on publication of identifying information.”

13.It is straining the interpretation of s. 121 of the Act to effectively read s. 109 of the MCA as making it applicable to an appeal to this Court. Section 109 of the MCA can apply of its own force to judicial review proceedings against orders under the FVPA by the Magistrates’ Court or on a rehearing by the Supreme Court. Had the Parliament determined to allow an out of time provision, it could have done to in s. 116 of the Act.

14.The limitation period provided in s. 116(2)(c) of the Act is, I am satisfied, a period that cannot be extended.

15.In this regard, I follow the decision of His Honour Judge Gamble in Summers v McKenzie.[11] Although his Honour considered the matter on the basis of an argument that the Criminal Procedure Act 2009 applied, I accept his Honour’s reasoning that the clear provisions of the FVPA apply a strict mandatory appeal period and that this Court has no jurisdiction to extend the time.

[11] Summers (A Pseudonym) v McKenzie (A Pseudonym) [2015] VCC 2015 (Judge Gamble).

16.This is consistent with the authorities on the relevant provision of the Administrative Law Act 1978 (Vic). While a decision under the FVPA is not an analogy to an administrative decision, there are good policy reasons to consider that it was a deliberate decision to have a strict time limit. It is obviously in the interests of those subject to these types of proceedings to have finality. That is reflected in the provisions that do not allow an application for a rehearing under s. 122 of the Act unless there are exceptional circumstances.

17.Counsel for the Applicant sought to argue that the issues here are not similar to those that might arise under the Administrative Law Act 1978. In terms of finality, I do not accept that. Here, as discussed in Fisher,[12] orders made are similar to injunctions. It is obviously in the interests of the parties to have finality. A strict time limit for any rehearing is consistent with that.

[12] Fisher v Fisher [1988] VR 1028.

18.The right to challenge on legal grounds orders made by the Magistrates’ Court, or by this Court, on a rehearing are preserved by s. 170 of the Act.

19.This supports the submission that s. 121 of the Act still has work to do as governing how the proceedings are to be conducted, rather than as submitted by the Applicant, as granting a new ability to challenge the order when filed out of time.

20.The Applicant relied on the decision in De Angelis.[13] In that case the matter was considered in the Supreme Court on the basis that the County Court did have jurisdiction to hear the appeal under the Crimes (Family Violence) Act 1987 out of time. It does not appear that the point presently under consideration was taken. I, therefore, do not find this decision as binding in favour of the Applicant.

[13] De Angelis v De Angelis (2000) 158 FLR 331; [2000] VSC 409.

21.For these reasons, I accept the submissions of the Respondent and find that this Court does not have jurisdiction to consider a Notice of Appeal lodged outside the statutory time limit.

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