Clarke (a pseudonym) v Burton (a pseudonym)
[2024] VCC 1169
•7 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| CLARKE, Shari (a pseudonym) | Plaintiff |
| v | |
| BURTON, Jay (a pseudonym) | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2024 | |
DATE OF JUDGMENT: | 7 August 2024 | |
CASE MAY BE CITED AS: | Clarke (a pseudonym) v Burton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1169 | |
REASONS FOR JUDGMENT
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Subject:Appeal against family violence intervention order
Catchwords: Intervention order appeal – Where appellant is self-represented litigant – Legal, factual or discretionary error
Legislation Cited: Family Violence Protection Act 2008 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Stead v State Government Insurance Commission (1986) 161 CLR 141
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms Clarke, in person | |
| For the Respondent | Ms Barrett, of counsel | Cahill Family Lawyers |
HIS HONOUR:
Introduction
1In this proceeding, Ms Shari Clarke[1] appeals against an order made at the Magistrates’ Court on 19 October 2022. On this date, the application made by Ms Clarke for an intervention order was struck out by Magistrate Medina. This appeal is brought pursuant to s119 of the Family Violence Protection Act 2008 (“the Act”).
[1] A pseudonym.
Relevant background
2I will broadly set out the circumstances that surround Ms Clarke’s allegations made in her intervention order application to give context to the appeal before me. According to the appellant, the respondent, Mr Burton[2] was her de facto partner for seven years. They had been separated for nine years at the time Ms Clarke applied for an intervention order. The appellant alleges there has been previous intervention orders between the parties which were breached by Mr Burton. More specifically, Ms Clarke alleges family violence in 2010 was perpetrated against her by Mr Burton.
[2] A pseudonym.
3Ms Clarke filed an application for a family violence intervention order against Mr Burton on 11 June 2019. An application for an interim order was heard and refused on 7 August 2019 by Magistrate Bolger. There followed numerous mentions and direction hearings of the substantive application before it was struck out on 19 October 2022 by Magistrate Medina. This appeal is made in relation to the order striking out the appellant’s application.
4The central issue in this case is to determine whether the appellant can demonstrate there had been a legal, factual or discretionary error in the decision by Magistrate Medina to strike out her application on the basis of procedural issues and non-compliance with court orders by the appellant.
Proceedings in the Magistrates’ Court
5The history of the Magistrates’ Court proceeding reveals there had been a number of adjournments made for the appellant to file further and better particulars in accordance with court orders.[3] The first order directing the appellant to file further and better particulars is dated 16 July 2021. Subsequent extensions and adjournments were granted for the filing of materials as the appellant continued to fail to comply with these orders.
[3] Magistrates’ Court certified extracts dated from 7 August 2019 to 19 October 2022
6The respondent’s solicitors filed an application to strike out the appellant’s IVO application on 22 March 2022 on the basis further and better particulars were not filed in accordance with Court orders. The respondent’s application to strike out on this date was refused. Orders dated 22 March 2022 further specified the requirements of the form the further and better particulars were to be filed by Ms Clarke.
7The proceeding was then adjourned several more times to provide Ms Clarke a further opportunity to comply with the court orders dated 16 July 2021 and 22 March 2022.
8The appellant finally provided supporting documentation to her application on 5 July 2022. On 15 August 2022 the respondent made a further application to have the proceeding struck out on the basis that the further and better particulars were not filed. In this application, the respondent submitted that the materials filed by the appellant did not meet the requirements set out by the orders seeking further and better particulars.
9Orders dated 18 August 2022 provided the appellant another opportunity to comply with orders and in the absence of that compliance, the applicant, Ms Clarke, conceded and agreed that her application be struck out. The application was adjourned twice more, before it was formally struck out by Magistrate Medina on 19 October 2022.
10The appellant submits there has been a legal, factual or discretionary error in the decision by the Magistrate to strike out her application.
Relevant legal principles
11In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”), [4] John Dixon J considered the terminology associated with s119 and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
(a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[5]
(b) the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[6]
(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[7]
(d) the Court is required to assess and evaluate the evidence for itself.[8]
[4][2023] VSC 13
[5](Ibid) at paragraph [50]
[6]Ibid
[7]Ibid
[8]Ibid
12However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[9]
[9]Ibid at paragraph [54]
13As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[10] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[11]
[10]Ibid at paragraph [63]
[11]Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 at [65]
14Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Errors of law, fact and discretion
15What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[12] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[12] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
16A legal error may arise in the way in which a court:
“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[13]
[13] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]
17Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[14]
[14] Ibid
Factual error
18A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[15] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[16]
[15] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[16] Ibid
19The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[17]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”
[17] (2019) 266 CLR 129 at [55]
20Similarly, in Blunt v Blunt it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”[18]
[18] Blunt v Blunt [1943] AC 517 at 526
Discretionary error
21Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
22The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[19]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[19] (1936) 55 CLR 499 at 504-505
23Having set out those principles, I now turn to the grounds of appeal pressed by Ms Clarke.
Appellant’s grounds of appeal
24Ms Clarke filed a statement setting out her grounds of appeal and submissions for the preliminary hearing. At the hearing, the appellant was provided time to make oral submissions to clarify her grounds of appeal and written submissions. I have read all the submissions and refer to both documents in tandem with her oral submissions in my consideration of whether Ms Clarke can demonstrate legal, factual or discretionary error in the decision of the Magistrate.
25I will first consider the appellant’s statement setting out her grounds of appeal and each individual ground in turn as set out by the appellant.[20]
[20] ‘IVO Form A – Statement of grounds of appeal’ dated 3 June 2024 filed by the appellant
Ground 1 - Factual
26This ground of appeal alleges multiple errors of fact in the transcription of the hearing, errors of fact in the Magistrate’s reasons, insufficient legal representation and bias. The details provided in this ground of appeal are discursive in nature and very hard to understand. First, the appellant alleges the transcript is unreliable and inaccurate with statements of parties incorrectly transcribed or missing. The appellant does not provide further details as to which parts of the transcript are incorrect. More importantly the submissions do not state how the alleged factual errors may impact the Magistrate’s ruling.
27Further, the appellant broadly states the Magistrate’s reasons contains errors of fact without specifying what those factual errors are. More importantly the submissions do not state how the alleged factual errors may impact the Magistrate’s ruling.[21]
[21]Stead v State Government Insurance Commission (1986) 161 CLR 141
28It is unclear how the lack of legal representation and allegations of bias demonstrates a factual error. Due to the above reasons, I am unable to ascertain any factual error. I dismiss this ground.
Ground 2 - Legal
29The second ground of appeal made by the appellant argues that the Magistrate made a legal error and outlines various reasons why the Magistrate erred in law. As best I can understand, the primary submission is that the Magistrate made a legal error by not giving due consideration to materials and submissions made by the appellant.
30Ms Clarke’s submissions under this ground include references to the Magistrate erring in not considering the substantive issues of her application, not giving weight to reports from support services and not considering issues of coercive control or systems abuse. These are submissions that were restated in her oral submissions. Before assessing the allegations of legal error I will first set out the legal framework which guided the Magistrate in her decision to strike out the application.
31Rule 6.02 of the Magistrates’ Court (Family Violence Protection) Rules 2018 provides:
Striking out proceeding
The Court may order that the whole or part of the application be struck out or amended if a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(c) is otherwise an abuse of the process of the Court.
32Returning to Ms Clarke’s grounds of legal error, the appellant alleges the Magistrate erred in not granting an adjournment and “was guided or affected by extraneous or irrelevant matters”. The appellant fails to state what these extraneous or irrelevant matters are. Further, she states the Magistrate failed to consider the substantive issues and did not give weight to the numerous reports from support services provided by the appellant.
33I consider the Magistrate, in her reasons for decision – both orally and in her written reasons - clearly sets out what she described to be an abuse of process and vexatious application to form the basis for striking out the application. The Magistrate outlined in depth the reasons for each adjournment following the orders of 16 July 2021, the requests for further and better particulars from the appellant and issues of non-compliance. She refers to the appellant making a new application for an intervention order whilst having a pending appeal at the County Court. The appeal was in relation to a refusal of a final order in an application with the same respondent and same substantive allegations. The Magistrate found that this duplication of proceedings was an abuse of process and vexatious.[22] Further in her reasons, the Magistrate states how the respondent has been prejudiced by the appellant’s continued failure to comply with Court orders.
[22] Reasons for decision of Magistrate Medina dated 7 November 2022
34It is to be recalled that the Magistrate was dealing with an application to strike out the application. She was not dealing with the substantive matters. For her to consider the substantive merits of the case would have required a full hearing of the application. As the Magistrate had made clear over the preceding months, such a hearing could not proceed without the provision of the further and better particulars. By her own failure to provide these particulars, it was the applicant who had forestalled the application coming on so that substantive material could be heard.
35For these reasons, I do not find the Magistrate erred by being guided by extraneous or irrelevant matters; she took into account the material germane to the exercise of her discretion, being the strike out application. Nor was it within her ability to consider the substantive issues of the application. Rather, the Magistrate considered the history of the case and its numerous adjournments and made a ruling in accordance with the principles of Rule 6.02 in striking out the proceeding.
36I note the pending appeal at the County Court was abandoned whilst the ongoing application in this matter was proceeding at the Magistrates’ Court. In this respect, I uphold the Magistrate’s reasoning in that this duplication of matters is a clear abuse of process and waste of Court resources. Overall, I find there has been no legal error by the Magistrate.
Ground 3 - Discretionary
37The appellant alleges a discretionary error was made by the Magistrate. The details provided in this ground are disordered and make no reference to the Magistrate’s written reasons or transcript to show where the alleged discretionary error occurred. I dismiss this ground of appeal.
38I now turn to consider the written submissions for the preliminary hearing filed by the appellant.[23] For ease of reference, I will refer to the subheadings used by the appellant.
[23] ‘IVO Form B – Submissions for the preliminary hearing’ dated 3 June 2024 filed by the appellant
Legal – paragraphs 1 - 7
39The appellant’s submissions relating to legal error are incoherent. Ms Clarke refers to several alleged legal errors with reference to parts of the transcript and the written reasons of the Magistrate. I find the appellant’s written submissions rambling and illogical. In her submissions she refers directly to parts of the transcript where the Magistrate has allegedly made a legal error. However, her submissions of legal error are entirely irrelevant to the primary issue in that the Magistrate struck out the proceeding due to finding the appellant’s non-compliance with orders an abuse of process and constituted a vexatious application. The appellant refers to external issues such as the bankruptcy proceedings, issues of coercive control and the family law proceedings in her submissions. The Magistrate does not consider these issues put by the appellant in her written reasons as the issue in focus is the appellant’s non-compliance with Court orders and the longstanding history of adjournments. This is the basis on which the Magistrate made her decision. She was correct to do so. There is no legal error as submitted.
40As best I can, I understand the remaining submissions on legal error as outlined in the appellant’s ‘Statement of grounds of appeal’ is that the Magistrate did not consider the supporting materials and any substantive allegations of her application. For the same reasons as outlined above, I find there has been no legal error.
Factual – paragraphs 8 – 25
41The appellant’s submissions in relation to factual error refer at length to historical matters in the family law jurisdiction. I find them extremely difficult to understand. To the best of my ability, I understand the appellant’s primary submission to be that the Magistrate made a factual error in confusing the facts of previous court proceedings between the parties. The appellant restates the issues relating to the bankruptcy proceedings, the Family Law Court proceedings and costs orders made prior to this application. The Magistrate has not made any factual finding pertaining to these matters in her reasons for decision in striking out the application. Nor should she have, given the application before her was to strike out the application, inter alia, for non compliance with court orders. For this reason, I find there has been no factual error made by the Magistrate. I dismiss this ground of appeal.
Discretionary – paragraphs 26 - 28
42The appellant submits that the Magistrate “had the power to make an order without further filing” by the appellant. I am entirely unclear what this ground seeks to allege is the error. It can be said that it is entirely usual for the Magistrate to order further and better particulars in respect of seeking further information from the applicant as to the particularisation of the claim before the Court.
43The appellant further alleges that the Magistrate “could have allowed JD [sic] to give oral evidence”. The appellant further submits, “[t]he Magistrate has ignored the threats and malice in the emails and texts 2010 – 2020”. As mentioned earlier, the issue before the Magistrate was a procedural one that did not require a consideration of the substantive allegations made by the appellant. On this basis, I do not find this a discretionary error and I dismiss this ground of appeal.
Basis for new evidence – paragraphs 29 - 35
44The submissions under this subheading do not demonstrate legal, factual or discretionary error. They are submissions that are restated by the appellant in her earlier submissions relating to matters not relevant to the appeal. I find no error has been demonstrated.
45Having heard oral submissions that are of the same scope as the written submissions of the appeal, and for the reasons I have set out above, I find that Ms Clarke has not demonstrated legal, factual or discretionary error which would enliven the jurisdiction of this Court. I therefore dismiss her appeal.
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