JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2018
DATE OF JUDGMENT:	18 May 2018
CASE MAY BE CITED AS:	Carroll v Browne
MEDIUM NEUTRAL CITATION:	[2018] VSC 253

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ADMINISTRATIVE LAW – Judicial Review – County Court appeal from Magistrates’ Court – Magistrate refused application for intervention order under the Family Violence Protection Act 2008 (Vic) – Magistrate made costs order against unsuccessful applicant at a later date – 30 day time limit for appeals – Appeal against costs order within time – County Court held that unsuccessful applicant also able to appeal against refusal to make intervention order although more than 30 days had passed since the refusal – County Court in error – Family Violence Protection Act 2008 (Vic) ss 1, 2, 5, 8, 74(1), 114(1), 116(2)(c), 117, 119, 154(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr David Freeman	Freeman Lawyers
For the First Defendant	Mr Iain Jones QC	Aitken Partners

HER HONOUR:

Introduction

The plaintiff, Priscilla Carroll (a pseudonym), and the first defendant, Marvin Browne (also a pseudonym) are parties to a proceeding under the Family Violence Protection Act 2008 (Vic) (FVP Act).[1]
[1]The parties are referred to by pseudonyms in these reasons so that the reasons can be published without transgressing s 166 of the FVP Act.

On 24 October 2017 Mr Browne filed a notice of appeal to the County Court against two orders of the Magistrates’ Court made under the FVP Act. The first order, made on 10 May 2017, was to refuse Mr Browne’s application for an intervention order against Ms Carroll (May order). The second order, made on 6 October 2017, included an order that Mr Browne pay Ms Carroll’s costs of $12,000 (October order).

The issue in this case is whether Mr Browne can appeal against both the May order and the October order, or only the October order. There is a strict 30 day time limit for an appeal under s 114 of the FVP Act.

His Honour Judge O’Connell of the County Court ruled that the appeal against both orders was within time. Ms Carroll seeks review of that ruling in this proceeding, in which she contends that Mr Browne’s appeal against the May order is out of time.

For the reasons that follow I am unable to agree with the learned County Court judge’s construction of s 114 of the FVP Act or his Honour’s conclusion that Mr Browne’s appeal against the May order is within time. It follows that the County Court does not have jurisdiction to hear the appeal against the May order.

Factual background

In 2016 Ms Carroll and Mr Browne were, briefly, in an intimate personal relationship. On 17 August 2016…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carroll v Browne

Details

AGLC: Carroll v Browne [2018] VSC 253
Case: [2018] VSC 253
Decision Date: 18 May 2018

CaseChat Overview and Summary

The County Court of Victoria was called upon to review a decision made by a Magistrate under the Family Violence Protection Act 2008 (Vic), where the Magistrate had declined to issue an intervention order to the applicant, Carroll, against the respondent, Browne. Carroll subsequently appealed the Magistrate's costs order, which was made more than 30 days after the initial decision. The Court had to determine if Carroll's appeal against the refusal to make the intervention order was valid despite the delay, as well as the validity of the appeal against the costs order.

The primary legal issues revolved around the interpretation and application of the statutory time limits for appeals under the Family Violence Protection Act 2008 (Vic). Specifically, the Court had to examine whether the appeal against the refusal to grant the intervention order was permissible beyond the 30-day statutory period and whether the appeal against the costs order was within the prescribed timeframe. The Court also considered whether the Magistrate had the authority to make a costs order against the unsuccessful applicant after the 30-day period had elapsed.

The County Court found that the appeal against the refusal to make the intervention order was not permissible as it exceeded the 30-day time limit set by the Family Violence Protection Act 2008 (Vic). The Court emphasised that the statutory time limits for appeals are mandatory and cannot be extended by the Court. However, the appeal against the costs order was deemed valid as it was lodged within the prescribed timeframe. The Court held that the Magistrate did not have the authority to make a costs order against the unsuccessful applicant after the 30-day period had passed, as per the provisions of the Act.

The County Court set aside the appeal against the refusal to make the intervention order and dismissed it as invalid due to the late filing. The appeal against the costs order was upheld, and the costs order made by the Magistrate was quashed. This decision underscores the importance of adhering to statutory time limits for appeals under the Family Violence Protection Act 2008 (Vic) and highlights the limited authority of the Magistrate to impose costs after the 30-day period has expired.

Orders