DDD v Magistrates' Court of Victoria

[2023] VSC 89

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03667

Between:
DDD	Plaintiff
-and-
MAGISTRATES’ COURT OF VICTORIA	First Defendant
-and-
EEE	Second Defendant
-and-
FFF	Contradictor

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	10 November & 22 December 2022
DATE OF ORDERS AND SUMMARY REASONS:	22 December 2022
DATE OF PUBLICATON OF DETAILED REASONS:	28 February 2023
CASE MAY BE CITED AS:	DDD v Magistrates’ Court of Victoria
MEDIUM NEUTRAL CITATION:	[2023] VSC 89

---

JUDICIAL REVIEW — Jurisdictional error — In Magistrates’ Court, DDD consented (without admissions) to final family violence intervention order (“FVIO”) protecting wife EEE and child for twelve months — Two months later, on EEE’s ex parte application, court made interim order varying final FVIO to “no contact” order — Interim variation order expressed inter alia to “last until final order” — Matter adjourned for final hearing of variation application — Because of delays resulting from COVID-19 pandemic, final hearing of variation application not reached for another fourteen months, i.e. four months after expiry date of final FVIO — No extension of final FVIO applied for or ordered at ex parte application or at any other time prior to expiry date — Over DDD’s objection as to jurisdiction to do so, magistrate made final orders varying and extending final FVIO for two years, despite passing of expiry date — Magistrate ruled final FVIO still extant because earlier application for variation and adjournment carried with it implicit extension of final FVIO — Whether, absent application or order for extension before expiry date, final FVIO had expired — Whether final orders varying and extending final FVIO beyond jurisdiction — Final orders made without jurisdiction — Whether, despite jurisdictional error, relief in nature of certiorari should be declined where evidence before magistrate on final occasion might have justified fresh FVIO — Extension of time to commence proceeding granted — Magistrate’s final orders quashed — Costs ordered in favour of DDD and against EEE — No costs awarded for or against Magistrates’ Court or contradictor — Indemnity certificate granted to EEE — Family Violence Protection Act 2018 (Vic), Part 4; Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 56; Appeal Costs Act 1998 (Vic), ss 3, 4 & 5.

---

Appearances:	Counsel	Solicitors
For the plaintiff	Mr M Cenacchi	Kaj Sharma Legal
For the first defendant	Submitting appearance	Not applicable
For the second defendant	No attendance (10/11/22) Ms A Waldin (22/12/22)	Bayside Solicitors
For the contradictor	Mr C Fitzgerald	Victorian Government Solicitor’s Office

HIS HONOUR:

Precis

1. The question raised by this application for judicial review has vexed magistrates for some time, and conflicting answers have been given.  While stating the question shortly risks oversimplification, it is essentially this.  Does the Magistrates’ Court have jurisdiction under the Family Violence Protection Act 2008 (Vic) (“the FVP Act”) to vary and extend a final family violence intervention order (“FVIO”) of a fixed duration after its expiry date where, at an application to vary the order made before the expiry date, an interim variation order is made to “last until final order” and the matter is adjourned for final hearing but no extension application or order is made at that earlier hearing or at any other point before the expiry date?

1. The answer is no.  Absent either a prior order extending it or an extant application for extension made before the expiry date, the final FVIO no longer exists after that expiry date.  The variation application lapses and the interim variation order ends when the final FVIO expires.  The interim variation order, whether expressed to “last until final order” or not, does not have the effect of extending the final FVIO beyond the expiry date.  Nor does the adjournment of the variation application to a final hearing have that effect.  There is, therefore, no final FVIO left in existence to vary or extend at any point after the expiry date.  Nor can the final FVIO be revived by a purported application or order to vary or extend it after the expiry date.

Overview

1. In the present case, the issue arose in this way.  On 9 January 2020, PP (a police officer) issued a family violence safety notice for the protection of DD’s wife EE and their two-year-old child.[1]  On 12 March 2020, a magistrate made a final FVIO against DD, by consent but without admissions, in favour of EE and the child.  The final FVIO was expressed to expire twelve months later, at midnight on 11 March 2021.

   [1]Section 166 of FVP Act limits the publication of information about proceedings under that Act. To avoid defeating that provision, and in light of Cavanough J’s approach in YY v ZZ [2013] VSC 743 at [5]-[14], on 11 May 2022, Judicial Registrar Keith ordered that the plaintiff, the second defendant and the contradictor be referred to in these proceedings by the pseudonyms DDD, EEE and FFF respectively. In these reasons, I have altered those pseudonyms to DD, EE and PP respectively, only because I find the longer ones grating to say (and read) and that it is easier to distinguish the designation PP (as a police officer) from EE, instead of calling him FF.

1. On 7 May 2020, on an ex parte application by EE to vary the final FVIO to a “no contact” order, another magistrate varied the order on an interim basis.  The interim order was expressed inter alia to “last until final order”.

1. As a result of delays occasioned by the COVID-19 pandemic, the variation application did not come back before the second magistrate for final hearing until 16 July 2021 — i.e., fourteen months later, and four months after the expiry date of the final FVIO.  At that final hearing, EE’s solicitor described her client’s application as, “in essence, … an application to vary and extend”.  Over DD’s objection, the magistrate ruled that she had jurisdiction to vary and extend the final FVIO, despite the passing of the expiry date, because, she said, that order was still in existence.  In her Honour’s view, there was no need for a separate application or order for extension to have been made prior to the expiry date.  Rather, so it was said, once the application to vary the final FVIO was before the court in May 2020 and was varied on an interim basis until further order, and the matter was adjourned for final hearing, the final FVIO was extended — implicitly, it seems — until that final hearing, whenever it turned out to be, and therefore was still in existence at that later time.

1. On this basis, her Honour went on to treat the matter as an application to vary and extend the final FVIO.  She heard evidence from EE and DD, and submissions from their legal representatives, and then adjourned the matter for decision.  On 27 July 2021, the magistrate varied the final FVIO and, while EE had sought only a twelve-month extension of the order, extended it for two years from that date.

1. In this Court, DD sought orders quashing the magistrate’s orders for want of jurisdiction.  The matter came on for trial on 10 November 2022.  I received written and oral submissions from counsel for DD and counsel for PP, who acted as a contradictor.  EE was not represented.  She had indicated at an earlier stage in the proceedings that she no longer wished to be heard but would abide the Court’s decision.  In summary, I reached the following conclusions.

1. The difficulties with the magistrate’s approach and orders are manifold.  On an application to vary a final FVIO in circumstances of the kind that obtained at the ex parte hearing in May 2020, before the court could have jurisdiction to extend the order, there had to be an application made for extension as well.  But neither on that occasion nor at any other point before the expiry date was there an application made by anyone to extend the order.

1. Nor was any order expressly made extending the final FVIO.  On its face, the order made at the ex parte hearing recorded the following matters: that it was an interim order, that it varied the final FVIO made on 12 March 2020, and that it “will last until final order, unless varied or revoked; or if the application is withdrawn”. The latter words, which substantially reflect the terms of s 60 of the FVP Act, did not, and could not, have the effect of extending the FVIO beyond its expiry date. Instead, in the context of the hearing in May 2020 — which involved the making of an interim order varying an existing final order, not the making of an interim order prior to the existence of any final order — these words merely described events which, if any of them occurred before the existing (but temporarily varied) final FVIO expired, would result in that final order being further varied or returned to its original conditions until the expiry date.

1. Nor was the final FVIO extended by any other means prior to the expiry date. Contrary to the magistrate’s view, the FVP Act does not provide that jurisdiction to extend the final FVIO was somehow implicitly exercised at the earlier hearing merely because an application for variation was before the court, an interim variation order was made, and the application was adjourned for final hearing.

1. The interim variation order had, and could have, no life of its own beyond the expiry date of the final FVIO.  That interim order expired when the final FVIO expired.

1. In the present context, the only way in which there could have been jurisdiction to extend the final FVIO beyond its expiry date, and therefore for the magistrate lawfully to have made the final orders she purported to make in July 2021, would have been if, before the expiry date, EE had made an application for extension and the court had made an extension order, in accordance with s 106 or s 107 of the FVP Act. But this did not occur. Thus, the twelve-month final FVIO was not extended beyond its expiry date, with the consequence that it expired at midnight on 11 March 2021.

1. It follows that, in proceeding to hear the substance of the variation and extension applications in July 2021, four months after the expiry date, and in purporting to vary and extend a final FVIO that no longer existed, the magistrate acted without jurisdiction.  EE’s applications had to be dismissed.  Her Honour’s final orders were made without power, and cannot stand.

1. Given DD’s objection to jurisdiction in July 2021, which was compelling, and given also that an order for a further twelve months was desired, it was surprising to me that EE did not apply for a fresh FVIO or that the magistrate did not suggest such an application might be made in the alternative or instead.  This was especially so in circumstances where the evidence before her Honour may well have justified the making of a fresh FVIO in any event.  Whether the evidence would be similar or different now, I could not say.  But neither my quashing of the magistrate’s orders nor my reasons for doing so would prevent EE from making an application for a fresh FVIO, should there be a basis for doing so.

1. With these thoughts in mind, on 22 December, I called the matter on for mention.  I gave a summary of reasons along the foregoing lines and indicated that I proposed to quash the magistrate’s orders.  I said that I was prepared to defer the making of the proposed orders temporarily to allow EE time to consider whether she might wish to bring an application in the Magistrates’ Court for a fresh FVIO.  While she had entered an appearance in this Court, as I noted earlier, EE had not participated in the hearing on 10 November.  A judicial registrar had excused her from doing so in March 2022 following her unsuccessful application for summary dismissal of the proceeding and her solicitor’s indication that she no longer wished to be heard but would accept the Court’s decision.  Thereafter, the judicial registrar invited PP to act as contradictor, which he accepted.  It was in those circumstances, and given the possibility of costs orders against her, that I invited EE to appear at the mention.

1. As things turned out, upon her appearance, EE’s solicitor advised that there was no longer any need for an FVIO.  This was because EE and DD, while still separated, were now on amicable terms.

1. Accordingly, as well as an order extending time for the commencement of the proceeding, I made an order in the nature of certiorari quashing the magistrate’s orders.  After hearing the parties and the contradictor, I also made an order as to costs in favour of DD and against EE, and granted an indemnity certificate to EE.

1. I deferred publishing more detailed reasons until a later date.  These are those reasons.

Final hearing in Magistrates’ Court

Appearances

1. At the final hearing in the Magistrates’ Court on 16 July 2021, EE was represented by her solicitor Ms Waldin.

1. DD was represented by Mr Cenacchi of counsel, who also appeared on the application in this Court.

1. A sergeant of police from the Prosecutions Office appeared for PP.  The sergeant told the magistrate that “there’s no evidence for the police to lead in this matter”.  As we shall see, later in the hearing, the sergeant was excused from appearing any further in the substantive hearing of the applications before the magistrate.

Threshold issue of jurisdiction raised

1. After taking appearances, the magistrate said that:[2]

this is an application to vary and in effect an application to vary and extend.  There’s an effective no contact order in place at the moment, with some exceptions.

[2]My emphasis.

1. Mr Cenacchi informed her Honour that there was a threshold issue, which he put in these terms:

[DD] disputes the fact that it is an application to extend, and I have submissions to make which, in essence, will end with saying that Your Honour ought to declare this application void and dismiss it on the basis that the court has no power to extend the order in the absence of an application to extend.

1. The magistrate said that, before Mr Cenacchi developed his submission, she wished to hear from EE’s solicitor as to “the nature of the application she’s seeking from the court today”.  Her Honour added:

I note the application here as listed is for variation, but of course given the sub-section … once it’s before the court it can be any type of application.

1. As we shall see later, her Honour’s reference to “the sub-section”, while not expressly identified, appears to be a reference to s 100(1)(a) of the FVP Act.

1. In response, Ms Waldin said that “in essence, it’s an application to vary and extend, as Your Honour has previously noted”, and that “the application to have it struck out is opposed”.

1. In answer to the magistrate’s question concerning what order EE was seeking, Ms Waldin said, “A final order for twelve months in the same terms as the interim variation order”.

DD’s submissions to magistrate on threshold issue

1. After answering some other queries made by the magistrate, Mr Cenacchi turned to his submissions on the threshold issue.  I shall extract those submissions in full:[3]

   [3]In what follows (including in respect of the submissions made by EE’s solicitor and the magistrate’s ruling and her later reasons), I have employed different paragraphing from that which appears in the transcript, and added paragraph numbers, for convenience.  Further, I have made edits in the places indicated by square brackets or ellipses, and I have inserted, deleted or substituted the odd punctuation mark (without identifying those particular changes).

[1]  An application to vary [a] final [FVIO] under the [FVP Act] cannot be maintained after the specified expiry date of the final intervention order without a separate application to extend the final intervention order.

[2]  Section 97(1) of the Act states [that] “the court may specify [in] a final order … the period [for] which the order is in force”.  The final [FVIO] in this case was granted on 12 March 2020 for 12 months, and expired on 11 March 2021.  No application to extend was made prior to its expiry.

[3]  Section 99(a) provides [that] a final intervention order remains in force, if a period is specified in the order, for the specified period, unless it is sooner revoked by the court or set aside on appeal.

[4]  Section 11 of the Act stipulates [that] a final [FVIO] includes a final order as varied under s 100, and as extended under s 106 or [s] 107.

[5] Division 8 of [Part 4 of] the Act outlines separate processes whereby an interim or final order may be varied, by Subdivision 1, [ss] 100 to 105, and a final intervention order may be extended per [Subdivision 2], ss 106 to 107.

[6]  There is no provision within the Act expressly permitting a variation application alone to be maintained once it continues beyond the expiration date of the final intervention order.

[7] Section 101(2) states [that] an interim variation order made to a final [FVIO] under Division 8 is also subject to all provisions under Division 2 of [Part 4 of] the Act, with any necessary changes. Division 2 (ss 52A to 60) applies to the making of an initial interim intervention order prior to a final order, and which is specified to end only when the final order is made, served or refused, or the application is withdrawn.

[8] Whilst an initial interim intervention order remains in place until the final order is made, as per s 60, an interim variation order in the above scenario relates to an [already] existing intervention order, unless it has been extended on an interim or final basis, as per s 11 and [ss] 106 to 107.

[9]  A broader purposive interpretation, as the one that was suggested by [Your] Honour initially, of the variation process …, I submit, is not possible, as the Act contemplates distinct separate regimes for varying and extending final intervention orders.

[10]  The existence of criminal sanctions for a breach of the intervention order reinforces this point.

[11]  Therefore, a variation application and/or interim variation order cannot, by implication, also constitute an extension application and/or an interim extension order without explicit legislative provision.

[12]  Moreover, s 106 states [that] the court has no power to extend a final intervention order on its own initiative unless the original final intervention order was made by the court on its own initiative, which is not the case in this instance.

[13]  An extension order may only be made by the court on an application by a relevant party.  The only way in which to avoid the expiration of an intervention order is to make an application for an extension of the intervention order, before the expiry date of that order.  As no such application was made to the court, the court ought to declare the current application void and dismiss it.

[14]  This same issue arose before [another magistrate] in May 2020, and again before [yet another magistrate in] February 2021, but I indicate that I appeared before [the latter magistrate] on that occasion, during which discussions about the decision of [the first magistrate] were aired.  In both those cases, the application to vary had been delayed due to COVID-19.  In both those cases, the court declared it had no power to hear the application to vary, once the final intervention order had expired, [in] the absence of an application to extend the final intervention order having been made prior to the expiry of that final intervention order.  …

EE’s submissions in response on the threshold issue

1. In response, Ms Waldin made submissions on the threshold issue.  Again, I shall extract those submissions in full:[4]

[16]  … I understand [Mr Cenacchi’s] position.  However, it is opposed.  Back in May of 2020, the matter was varied on an interim basis, and I understand from discussions with police — [whose] involvement predates our office’s involvement — that an interim extension application was also made at a prior date by the court, on the court’s own initiative. This [is] permissible under s 106(1)(b) of the Act, where the court is permitted to extend the order on [its] own initiative, without a formal application before it. I understand [that the sergeant appearing for PP] can confirm that.  This communication was forwarded to [DD’s] counsel for [his] understanding as well …

[17]  Also, in respect of interim variations and extensions, the paperwork in relation to those interim orders indicates that those interim orders last until a final order is made, unless it is varied, revoked or the application is withdrawn ...  My ultimate submission would be that, if the court were to make a final order today, that would in effect replace the interim orders currently in place, which were both interim extensions and variations of the pre-existing order.

[4]My emphasis.

Impugned ruling (16 July 2021)

1. As is apparent from the latter part of the submissions made by Mr Cenacchi to the magistrate, and as we shall see in more detail in her Honour’s reasons, the point at issue has been a matter that has provoked a good deal of discussion, and diametrically opposed views, among members of the Magistrates’ Court.

1. Given the particular matters raised on this application, including factual issues, and given her Honour’s strongly-held views on the point, it is appropriate to set out, in full, both sets of reasons she gave — i.e., those given in her ruling on the threshold point, as well as the further reasons she gave on that issue on the second day of the hearing before making the impugned final orders.

1. The magistrate’s ruling on the threshold issue, which was delivered immediately following the foregoing submissions, was in the following terms:[5]

   [5]My emphasis.

[19]  A preliminary comment is this.  The views of [the other two magistrates] are hotly contested within the court, and there are many of us who don’t agree with their assessment, and there’s been some internal discussions and preparation of materials.  Just to be clear about that, and [those magistrates are] certainly aware of it, and have been part of the discussions: I personally am of the view that this is not the characterisation of the legislation.  I will provide more formal notes if requested, and of course I can do so.

[20]  But in relation to the practical matters that are before the court, I turn to that at the beginning.  In looking through the file which I have here, of course, the application that came before the court on 7 May 2020, which was an ex parte application, … was an application to vary and … also … was made until further order of the court.[6]

[6]Contrary to the emphasised part of this passage, the order, on its face, was not made until “further” order of the court.  Instead, it was expressly stated on the interim order that it “will last until final order, unless varied or revoked; or if the application is withdrawn”.  In this Court, Mr Cenacchi and Mr Fitzgerald (counsel for PP, the contradictor) agreed that nothing turned on this difference.

[21]  There is a challenge to the interpretation of some of the legislation and [I can[7]] only say that, when there is an interim extension order, or an interim variation order, or both, it is a pending order, not a different type of order.  And this has been the challenge of the interpretation of the legislation.

[7]This part of the transcript was marked “(indistinct)”, in the usual way.  From the context, I have just guessed at the words I have inserted.

[22]  I am, fortunate or not, to have been involved in the drafting of the legislation, and why this section with respect to extensions is in a separate part of the Act is because we needed to be able to arrange for an extension in the interim until service, and that’s one of the reasons it’s pulled out, but in that division, it is a whole division.

[23]  Because of perhaps the importance of it, I can certainly stand down and prepare a note more formally, but I say broadly that I disagree strongly with the characterisation of the legislation as put in these submissions.

[24]  When an application is before the court, the court is obliged under the purposes of the legislation to ensure safety, and if in doubt, make orders for protection.  And if we go to the principles and the objects of the Act, that’s its purpose.  So, when it is before the court, the court can change, vary and ensure that an order remains in place, … until further order of the court, and that order is in existence now.

[25]  And Mr Cenacchi, I don’t wish to misunderstand you.  You, as I understand it, are submitting that there is no order to extend or vary.  Is that right?

[Counsel answered in the affirmative.]

[26]  In my view, you’re wrong, so I don’t accept those submissions.  I feel quite certain about that.  There is an order before the court; it has been before the court, it’s been modified, extended, and the decision on 7 May 2020 was until further[8] order of the court; [it] is in existence today, and it needs to be dealt with.

…

[32]  So that is my ruling.  I am absolutely certain there is an order before the court.  I say it’s the purposes of the legislation and it’s the wrong interpretation to suggest the submissions that you’ve made.  And clearly, I’ve ventilated for you that there’s a very significant dispute within the court in relation to that particular point of view … [which] is the subject of yet further discussion …

[8]See footnote 6, above.

1. The magistrate repeated her offer to give “something more formal” later in the piece, which Mr Cenacchi accepted.

1. In the meantime, her Honour excused the sergeant from participation in the further conduct of the application.

1. Next, she heard sworn viva voce evidence from EE and DD.  Both witnesses were examined and cross-examined.

1. Her Honour also heard submissions from Ms Waldin and Mr Cenacchi on the findings and orders that should be made.

1. Thereafter, the matter was adjourned for decision.

Impugned reasons (27 July 2021)

1. On 27 July 2021, the magistrate made the impugned orders.  Her Honour delivered detailed reasons for her decision on both the threshold point taken by Mr Cenacchi and the merits of the applications for variation and extension.  In what follows, I have extracted those parts of her Honour’s reasons which appear to be relevant to the threshold point:[9]

   [9]My emphasis.

[1]  This is an application to vary a final intervention order under the [FVP Act] and the date of the hearing was 16 July in the online Magistrates’ Court.  …  There are some issues here of both law and fact, in my view.

…

[4]  There were some additional submissions by Mr Cenacchi, and just the summary of them is that there is no application before the court that can proceed and without an application to extend the matter cannot be before the court.  The court has no power to deal with the matter.  And I have rejected that submission outright and I will give more detail about that shortly.

…

[9]  [EE] makes application pursuant to Division 8 of [Part 4 of] the [FVP Act].  Division 8 provides for variation and revocation of interim and final orders and extensions of final orders because one does not extend an interim order of course by the form of the Act. It stays in place until further order — [a]s all interim orders are extended until final determination of an application by the court, as provided by s 60 … .

[10] … [Subdivision 1 of Division 8] outlines the court’s powers to vary or revoke an intervention order, and ss [100(1), (2) and (3)] apply. And s 101 provides the power to make an interim variation order varying the family violence order. Section 101(2) [provides that], for the purposes of [s 101(1)], [Division] 2 applies with any necessary changes — to the order that means — to the making of an interim order varying a family violence order, importantly, as if it were making an interim order under that division.

[11] … Section 102 – before varying any order the court must decide if there has been a change in the need to protect another person [and] if Family Law Act orders are in place.  And in [s 102(2)] the court may vary the order in a way that differs from the variation sought in the application if the court is satisfied on the balance of probabilities that it is necessary to do so to ensure the safety of another person protected by the order.

[12]  And s 103 provides for continuing protection of a protected person who is a child if the person in [s 102(1)(a)] is a child — that it is necessary to do so to ensure the safety of another person.

…

[14]  [Mr Cenacchi] submitted that, without [EE] making a separate application to extend the intervention order, the order was not extended as the court had no inherent power to extend the order — or presumably by deduction he is submitting the court has no power to adjourn the application.  This is also incorrect, and I reject the submission as I ruled on the day.

[15]  I provide a response to this submission again in my reasons for decision.  I do not accept the statutory interpretation of these submissions previously accepted it seems twice by two of my colleagues.  Mr Cenacchi advised me helpfully that he was … counsel making the submissions in those cases,[10] so [he] clearly well understood the submissions to be made.

[16]  For the reasons set out below and for continued safety and protection of members of the public, accepted by the court in these applications as victims of family violence behaviours, the making of an intervention order [is necessary[11]] to protect them from the behaviour of a respondent until the court can hear all the evidence and make a final determination on the merits of any application for a final order.  This is the nature of [FVP Act] proceedings and a clear structure of the Act we deal in.  An application to vary or to extend or in fact to revoke an intervention order is an ancillary or related application to the original application and order.  They are not and cannot be stand-alone applications, out of context or irrelevant or unrelated to the subject of the application, the order, the variation, revocation or extension of a particular court order made after the original application to the court was determined and a court order was made.

[17] Here, even where a court can make an order by consent or by consent without admissions of the allegations in the application, the court maintains obligations under this legislation to consider the evidence before the court as perhaps certified by a police officer as here in a family violence safety notice or sworn or affirmed by an applicant in person, and can make an order when satisfied there is evidence to do so. I will not go through the legislative regime for that aspect. The reading of the [FVP Act] and its statutory interpretation and common sense [make] this clear. The nature and dynamics of family violence as a series of behaviours, often different types as defined in s 5, and the evidence in the original application and the conditions on the particular order, inform the basis of the application before the court to either vary it or extend it or revoke it.

[18]  We must and do consider the order, understand the basis on which it was made, and then consider changing it in a manner consistent with safety after proper consideration of any of the available evidence before the court.

[19]  In the variation application here, an interim varied order was made on 7 May 2020, as it happens by me, pursuant to the powers in s 100 and s 101 to increase safety and to include further conditions to manage [DD’s] family violence related behaviour in evidence that was before the court.  That interim varied final intervention order was made until further[12] order of the court in accordance with the Act, and the application [was] adjourned for service and then adjourned on a number of occasions and then listed for contested hearing on 16 July 2021.

[20]  Section 100(2), as I have outlined, provides the court must have regard in all of the circumstances of the case [including] the reasons for the variation, the safety of protected persons and the views about the variation.  [Section 100(3)] — if I decide not to grant a revocation or vary, [the court may instead order the variation of the FVIO] in [the] way the court considers appropriate.  This is of course for safety and ongoing protection or protected persons, the entire regime of this particular piece of legislation.

[21]  Section 101(1) provides the power to make the interim order varying the family violence order and [s 101(2)] makes it clear, for the purposes of [s 101(1)], [that]  [Division] 2 applies with any necessary changes to the making of an interim order varying the family violence order as if it were the making of an interim order under that division.  Reference is then made [in the note to s 100(2)] to the [definition of] family violence [intervention orders] in s 11, both final and interim order orders, although I note in the submissions from Mr Cenacchi he just refers to finals, confirming those orders made under s 101.

[22] Division 2 provides of course, [in] s 60, when an interim order made expires. So we have here an order made as if it were made pursuant to the interim order sections and it outlines when it expires. If the court makes a final order and the final order includes an order that an interim order extends until the final order is served on the respondent or when the final order is served, et cetera. Again, I do not outline the entire regime.

[23]  If I were wrong about that, and of course it is not my view I am, but if I were, I say the courts must have the power to extend the life of any of its own orders, as it is a protection order to enable for further consideration usual procedural matters, such as service and fairness to each party before the court, and to continue the safety to extend the orders made by it to a date to deliver a decision after a contest, for example, such as here.  To suggest a court does not have that inherent power to deal with its own orders would cut across all of the court’s work and years, frankly, of legal jurisprudence.

[24] The legislative interpretation advanced by Mr Cenacchi on behalf of [DD] is incorrect. There is no requirement to additionally file a separate application for extension or by extrapolation a variation or a revocation application to revoke an order. … A family violence application is before the court and I refer [to s 53(1), which provides as follows]:

[10]Mr Cenacchi advised this Court that he appeared as counsel in the second of those two cases, but not in the first.  Nothing turns on this.

[11]The words “is necessary” do not appear in the transcript.  While there may be another way to do it, the addition of these words is required to make sense of the sentence (including grammatical sense); and, in context, this reflects what I think the magistrate must have meant to say, or something approximating it.

[12]Again, see footnote 6, above.

[Court] may make an interim order

The court may make an interim order if … a person has applied to the court for a [FVIO] and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application … to ensure safety …, … to preserve property … [or to] protect [an] affected family [member] who [is] a child [the subject of proceeding].

[25]  …  I go on to emphasise [s 53(4)].  The court may make an interim order at any time after the making of an application for family violence intervention order and any application for a [FVIO] and before the final decision about the application is made.  It may do so whether or not the court has previously made or refused to make an interim order.

[26]  The court applies the power established to vary the order and continue that varied or changed order until the case can be fairly ventilated at a contested hearing.  This is procedural fairness.  This is exactly the scenario in this case and many thousands of other orders before the courts in all jurisdictions under this Act.

[27]  However, I say the legislation does provide for the extension of varied, interim or final orders as outlined and extended final orders to enable a hearing to be conducted.  Again s 101, … as if it [were] under [Division] 2.  Once before the court, the court can make any final order necessary for safety of a protected person.

[28]  … [T]he position advanced by Mr Cenacchi and through submissions has not been accepted as [a] correct interpretation of the legislation and requirement of the power of the court.  And I note somewhat of interest that the language used in his submissions indicates an earlier internal memo and there is no general agreement about his position in the court.  The application is properly before the court.  The order is properly in place and enforceable.

[29]  The initial application in evidence before the court from police outlines a number of previously unreported incidents of family violence, aggression, controlling behaviour, jealousy, tracking or surveillance or stalking behaviours, verbal and physical abuse behaviour and threats.  And ultimately a safe contact order was made by consent without admission, effectively becoming a final order.  That is sufficient.  …

[30]  Four months later, on 7 May 2020, the affected family member made application to vary the order and continue that order or extend it until further order of the court.  In making allegations in that evidence, as it happened, that order was, as I said, before me and extended.

[31] The [FVP Act] … legislative regime must be read as a whole and applied through the prism of the preamble and purpose of the legislation.  And the High Court has made that clear in [Project Blue Sky].[13]  I remind us all of the principles and preamble and … I refer the parties to them, including [that] the purpose of the Act is to maximise safety for children and adults who have experienced family violence; prevent and reduce family violence to the greatest extent possible; and promote the accountability of perpetrators of family violence for their actions.  Each section must be read through that preamble.  So, unless the court can understand the nature and dynamics of family violence behaviour alleged in the original initiating application, it is not possible to consider any related applications such as an application to vary, extend or even revoke the order made and all the evidence properly and fairly for the parties.  

[13]Project Blue Sky v ABA (1998) 194 CLR 355.

1. Much later in her reasons, after referring to the evidence and the submissions she had heard, her Honour said this:

[110]  I am satisfied [that] the current [FVIO], varied in the interim on 7 May 2020 and extended in its current form until today by order of the court pursuant to the sections outlined, [ss 100(1) and (2), 101(1) and (2)], and [Division] 2 of the Act, [is] to be made a final order of the court with some amendments.

[111]  I am satisfied pursuant to [s 100(2)] that I have had regard to all of the circumstances of the case, the reasons for seeking the variation, to increase safety and a question of safety from any future family violence behaviours.  …

Impugned orders (27 July 2021)

1. Later still, her Honour said that “[t]he order that is in place is the order that is now extended”, and then she specified the conditions of that order.

1. The principal variation she made to the conditions of the original FVIO were similar to those made by the interim variation order on 7 May 2020, the most notable of which was the inclusion of a “no contact” condition (with exceptions).

1. Further, despite EE’s request for an extension of twelve months, her Honour ordered that the duration of the FVIO be extended for two years from the date of the hearing (i.e., to expire at midnight on 27 July 2023).

Appearances in this Court

Initial appearances

1. I turn now to the proceeding in this Court, commencing with appearances.

1. As indicated earlier, Mr Cenacchi appeared for DD as plaintiff.

1. The Magistrates’ Court, as the first defendant, entered an appearance but indicated that it did not intend to take an active role in the proceeding and would abide the decision of the Court.[14]  Consequently, the court did not have counsel or a solicitor attending at the trial before me or at any other point in the proceeding.

   [14]In accordance with the principles in R v AustralianBroadcasting Tribunal, Ex parte Hardiman & Others (1980) 144 CLR 13. In the usual way, the Magistrates’ Court also indicated that it would seek an opportunity to be heard if this Court were considering making an order for costs against it.

1. EE, as the second defendant, also entered an appearance.

EE’s application for summary judgment

1. At an early stage of the proceeding, EE applied for summary judgment dismissing DD’s application.  On 7 February 2022, EE’s application was heard by Associate Justice Randall.  EE was represented by Ms Waldin.  Mr Cenacchi appeared for DD.  EE’s application was dismissed.  His Honour gave reasons for his decision, and reserved costs.

1. On 30 March 2022, Ms Waldin informed the Court that EE no longer wished to be heard in the proceeding but would accept the Court’s decision.  In those circumstances, and given her request, Judicial Registrar Keith excused EE from appearing at a scheduled directions hearing and at any future hearing, including at the trial of the proceeding, and from taking any further step in the proceeding.

1. Accordingly, EE did not attend by counsel or solicitor at the trial before me, other than by her solicitor Ms Walden at the mention on 22 December — at which, we have seen, I delivered my summary reasons and made orders.

Contradictor

1. As indicated earlier, given EE’s position in this Court following the dismissal of her application for summary judgment, helpfully, PP subsequently accepted an invitation from the judicial registrar to act as a contradictor in the proceeding.

1. Mr Fitzgerald of counsel appeared for PP at the hearing of the trial on 10 November, and on 22 December.

Extension of time

1. A preliminary matter concerned DD’s application for an extension of time within which to commence the proceeding in this Court.  Earlier, Judicial Registrar Keith directed that DD’s application for extension of time be listed for hearing together with the trial in the proceeding.  Thus, it fell to me to consider that application.

1. This proceeding was brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”). DD’s originating motion for judicial review and related documents were filed on 6 October 2021. As we have seen, the impugned ruling as to jurisdiction was made on 16 July 2021 and the impugned final orders were made on 27 July 2021.

1. Rule 56.02(1) of the Rules requires that a proceeding under Order 56 shall be commenced within 60 days after the date when grounds for the grant of relief or remedy claimed first arose. Rule 56.02(2) provides that:

Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

1. Thus, whether the grounds for the grant of the relief or remedy claimed by DD arose on the date of the magistrate’s impugned ruling (16 July 2021) or the date of her impugned orders (27 July 2021), he had sought to commence the proceeding beyond the 60-day period prescribed.

1. Rule 56.02(3) provides that the Court shall not extend the time fixed by rule 56.01(1) except in “special circumstances”.

1. In my view, for reasons that follow, there were special circumstances in this case, and the application should be granted. First, the delay in filing was only eleven days after the making of the impugned orders and 22 days after the date of the impugned ruling. Second, there was no suggestion that any of the defendants had been prejudiced unfairly by either period of delay. Third, the issue raised in this proceeding was a matter of importance to the administration of justice under the FVP Act beyond this case. As we have seen, magistrates have taken competing views on the issue. Fourth, the point DD took had merit. Indeed, as I have intimated already, I was persuaded that it must succeed. Fifth, the matter was important to the justice of DD’s case. Whether or not EE might have obtained a fresh FVIO had she sought one, the fact was that, since 27 July 2021, DD had been subject to a final FVIO that, ex hypothesi, was made without jurisdiction, and was not due to expire until 26 July 2023.  Finally, the contradictor did not oppose DD’s application for an extension of time.  Nor did Mr Fitzgerald put any submission as to why the application should not be granted.

1. Accordingly, pursuant to rule 56.02, I was satisfied that there were special circumstances compelling an order extending time for the commencement of this proceeding.

Grounds for review

Amended originating motion

1. I turn now to DD’s grounds for review.  As amended, the grounds in his originating motion were pleaded substantially in the following terms:[15]

   [15]I have edited the text of the grounds slightly, without altering their substance.

a) The magistrate erred in law by extending a final FVIO under the provisions of the FVP Act in circumstances where no application to extend the final FVIO was made in accordance with that Act.

b)     The magistrate erred in law by failing to strike out the application to vary the final FVIO in circumstances where the final FVIO which the application sought to vary had expired.

c)   The magistrate erred at law and/or there was an error on the face of the record in granting the application and extending the final FVIO in circumstances where, her Honour being fully aware of the existence of a precedent, failed to give adequate weight to the manner in which the law had been applied in the past (the Magistrates’ Court, differently constituted, had on at least one previous occasion effectively ruled such an application to be ultra vires).

Ground (c) not pursued

1. Ground (c) was not pursued.  Let me explain.

1. As Mr Fitzgerald pointed out in his written submissions, any suggestion that this Court on judicial review should determine that the magistrate erred in failing to follow the decisions of two other magistrates, in which the construction of the FVP Act that DD urged had been accepted, would be misconceived. He gave two reasons. First, those other decisions and the reasons given for them were not before this Court; and, while the magistrate was aware of the orders made, it did not appear that her Honour had the reasons for those decisions before her either. Second, and more fundamentally, while a magistrate ordinarily should follow the decisions of other magistrates on a point of this type, that should not be done if those decisions were plainly wrong. Clearly, in Mr Fitzgerald’s submission, her Honour was of the view that the other decisions were plainly wrong.

1. Mr Cenacchi responded that it was not contended that the magistrate was bound by the earlier decisions. As he pointed out, no such argument was advanced in his written submissions. The only reason the earlier decisions were raised at all, he said, was to bring to this Court’s attention the division amongst magistrates on the interpretation of this aspect of the FVP Act. The magistrate acknowledged the division of opinion during the two days of hearing in July 2021. Ultimately, submitted Mr Cenacchi, his submissions on the proper interpretation of the FVP Act spoke for themselves, and did not rely on the earlier decisions for authority. He submitted that the magistrate erred in departing from the approach commended to her in the earlier decisions, not because she was bound by them, but because they reflected the correct interpretation of the relevant provisions. The rationale of those earlier decisions, he submitted, was incorporated and expanded upon in his written and oral submissions in this Court. He concluded the point by submitting that the inclusion of the decisions of the other magistrates would be of no assistance to this Court, and are not available in any event.

1. In those circumstances, I considered it unnecessary to determine Ground (c) or to say any more about it.

Grounds (a) and (b) pursued

1. That left only Grounds (a) and (b), which were pursued.  As will be apparent already, the substance of DD’s complaint was that the magistrate’s impugned orders were made without jurisdiction.  That is how the matter was argued by Mr Cenacchi and responded to by Mr Fitzgerald, and that is the basis on which considered the matter.

Factual issues

1. Before turning to counsel’s submissions, I shall address some important factual issues.

1. Initially in this Court, there appeared to be some controversy as to whether, at the ex parte hearing of 7 May 2020, in addition to the application for variation, there was an application made to extend the final FVIO and/or an interim order made expressly extending that final order.

1. As we have seen, at the hearing on 16 July 2021, EE’s solicitor asserted that she understood that “an interim extension application was also made at a prior date by the court, on the court’s own initiative”.  I note, however, that, despite the solicitor’s “understand[ing]” that the sergeant appearing for PP at that hearing could “confirm that”, the sergeant was not asked by her Honour to confirm that assertion, and he did not do so.  Nor, as I read her Honour’s reasons, did she act upon any such assertion.

1. Nevertheless, on one view, some of the magistrate’s remarks set out above might be thought to suggest that, on 7 May 2020, there was in fact an order made expressly extending the FVIO. 

1. Mr Cenacchi disputed the assertion made by EE’s solicitor.  He also submitted that no part of the magistrate’s reasons on 16 or 27 July 2021 should be taken as indicating that on 7 May 2020 she made an interim order extending the final FVIO.

1. Unfortunately, there was no transcript of that earlier hearing before this Court.

1. In the end, however, there was no factual controversy, as the following things were accepted by Mr Fitzgerald.  First, there was neither an interim extension application nor an interim extension order made either on 7 May 2020 or at any other time before the expiry date of the final FVIO (i.e., midnight on 11 March 2021).  Second, the magistrate did not make an interim extension order on her own initiative.  Third, in the circumstances of this case, her Honour would not have had the jurisdiction to make such an order on her own initiative in any event.  This is because the power to order the extension of a final order on the court’s own initiative arises only where the final order was made by the court on its own initiative in the first place,[16] which was not this case.

   [16]See s 106(1)(b) of the FVP Act, which is set out below.

1. Accordingly, I conducted this application on the basis that those concessions were well-founded and should be accepted.

The FVP Act

Introduction

1. In support of their submissions, both counsel took me through several provisions of the FVP Act. In order to avoid repetition later in these reasons, it is convenient to set out those provisions (as well as some others) at this point, and in some detail.

Purpose of FVP Act

1. Mr Fitzgerald commenced with the stated purpose of the FVP Act. That purpose is set out in s 1, which provides as follows:

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.       

1. Section 2 provides that the FVP Act aims to achieve its purpose by inter alia:

(a)       providing an effective and accessible system of [FVIOs] and family violence safety notices; and

…

(b)       creating offences for contraventions of [FVIOs] and family violence safety notices; and

(c)       providing a framework for achieving consistency in family violence risk assessment and family violence risk management.

FVIOs, final orders and interim orders

1. Section 4, which sets out various definitions, provides that “family violence intervention order” has the meaning set out in s 11.

1. Section 11(1) provides that an FVIO means a “final order” or an “interim order”.

1. By s 11(2)(a) and (b), a final order is one made under s 74 or any of ss 76 to 77B of the FVP Act, and includes an order made under any of those provisions as varied under s 100 or as extended under s 106 or s 107.

1. By s 11(3)(a) and (b), an interim order is one made under any of ss 53, 53AA and 53AB, including an order made under any of those provisions as varied under s 100, or an order made under s 101 that varies an FVIO.

1. Part 4 of the FVP Act, which runs from ss 42 to 125B, is entitled “Family violence intervention orders”. Among other things, the provisions therein confer powers on the Magistrates’ Court to make FVIOs, and provide for those who may make applications for those orders and the manner in which such applications may be made.

Interim orders (Division 2 of Part 4)

1. Division 2 of Part 4 is headed “Interim orders”.

1. Within Division 2, s 53(1) confers power on the Magistrates’ Court to make an interim order if the conditions on the court’s power are met.

1. Under s 53(1)(a), those conditions include that a person has applied to the court for an FVIO and the court is satisfied, on the balance of probabilities, that:

an interim order is necessary pending a final decision about the application … to ensure the safety of the affected family member … or … to protect an affected family member who is a child who has been subjected to family violence committed by the respondent.

1. Under s 53(1)(b), the relevant conditions are that a person has applied to the court for an FVIO and “the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application”.

1. Section 53(4) provides that the Magistrates’ Court:

may make an interim order at any time after the making of an application for a [FVIO] and before the final decision about the application is made, and may do so whether or not the court has previously made or refused to make an interim order.

1. Section 57 provides that an interim order may be made whether or not the respondent has been served with a copy of the application for an FVIO and whether or not the respondent is present when the interim order is made.

1. Section 59 provides that, if the court makes an interim order, it “must ensure the hearing is listed for a decision about the final order as soon as practicable”.

1. Section 60 sets out five different circumstances in which an interim order ends. In particular, s 60 provides as follows:

60       Expiry of interim order

An interim order ends—

(a)    if the court makes a final order and the final order includes an order that the interim order continues until the final order is served on the respondent, when the final order is served on the respondent; or

(b)   if the court makes a final order and the final order does not include an order about the interim order continuing as referred to in paragraph (a), at the time the final order is made; or

(c)    if the court refuses to make a final order in relation to the application, at the time of the court’s refusal; or

(d)   if the interim order is revoked by the court, at the time of the revocation; or

(e)    if the application for the family violence intervention order is withdrawn, at the time of the withdrawal.

Notes

1See section 100 which provides for the variation of family violence intervention orders, including interim orders.

2If, in making the interim order, the court also revives, varies or suspends an order, injunction or arrangement under section 68R of the Family Law Act 1975 of the Commonwealth, that revival, variation or suspension ceases to have effect under section 68T of that Act when the interim order ends or 21 days after the interim order is made, whichever is earlier.

Final orders (Division 4 of Part 4)

1. Division 4 of Part 4 is entitled “Making final orders”.

1. Within Division 4, s 74(1) provides that the court:

may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

1. An “affected family member” includes “a person the subject of an application for a [FVIO] to protect the person or the person’s property”.[17]  A “protected person” includes a person who is protected by an FVIO or a family violence safety notice.[18]

   [17]See the definition of “affected family member” in s 4 of the FVP Act.

   [18]See the definition of “protected person” in s 4 of the FVP Act.

1. Section 77 prescribes the circumstances in which the court must also make a separate final order for a child as a protected person.

Duration of final orders (Division 7 of Part 4)

1. Division 7 of Part 4 is entitled “Duration of final order”.

1. By s 97(1), the Magistrates’ Court “may specify in a final order the period for which the order is in force”.

1. Section 99 provides that a final order remains in force:

(a)       if a period is specified in the order, for the specified period unless it is sooner revoked by the court or set aside on appeal; or

(b)       if no period is specified in the order, until it is revoked by the court or set aside on appeal.

Powers to vary, revoke and extend FVIOs (Division 8 of Part 4)

Heading to Division 8 of Part 4

1. As its heading suggests, Division 8 of Part 4 of the FVP Act concerns the court’s powers to vary, revoke and extend FVIOs.[19]

   [19]See also s 149(1) of the FVP Act.

1. Division 8 has four subdivisions.

Variation and revocation of FVIOs (Subdivision 1, Division 8, Part 4)

1. Subdivision 1 is headed “Variation and revocation of [FVIOs]”.  That subdivision contains ss 100 to 105.  I shall set out ss 100 and 101, but not the remaining provisions, as it is unnecessary to do so in this case.

1. Section 100 is in the following terms:

100Power of court to vary or revoke family violence intervention order

(1)  The court may order the variation or revocation of a family violence intervention order on—

(a)an application under this Division; or

(b)in the case of an interim order made under section 53AB or a final order made under section 77B, its own initiative.

Note

See also section 173 which provides that the Children’s Court may vary or revoke a family violence intervention order if it is hearing a child protection order.

(2) In deciding whether to make an order under subsection (1), the court must have regard to all the circumstances of the case and, in particular, the following—

(a)the applicant’s reasons for seeking the variation or revocation;

(b)the safety of the protected person;

(c)the protected person’s views about the variation or revocation;

(d)whether or not the protected person is legally represented;

(e)if the protected person has a guardian, the guardian’s views.

(3)  If the court decides not to grant an application for the revocation of a family violence intervention order, the court may instead order the variation of the family violence intervention order in the way the court considers appropriate.

1. Section 101 is in these terms:

101     Court may make interim order on application for variation of family violence intervention order

(1)  If a person makes an application for a variation of a family violence intervention order under this Division, the Court may make an interim order varying the family violence intervention order.

(2) For the purposes of subsection (1), Division 2 applies (with any necessary changes) to the making of an interim order varying a family violence intervention order as if it were the making of an interim order under that Division.

Note

Division 1 applies to applications for variations, revocations or extensions of family violence intervention orders.  See the definition of family violence intervention order in section 11.

(3)  Section 110(2) does not apply to the making of an interim order under subsection (1).

Extension of FVIOs (Subdivision 2, Division 8, Part 4)

1. Subdivision 2 of Division 8 is headed “Extension of final order”.

1. Sections 106 and 107 are the only provisions in that subdivision.  As we shall see, in my view, these provisions, particularly when set against those provisions said to support the argument that there was jurisdiction to make the impugned orders, are crucial to showing that that argument is flawed.

1. Section 106 provides as follows:

106Power of court to extend final order

(1)  The court may order the extension of a final order on—

(a)an application under this Division; or

(b)its own initiative if the order was made by a court on its own initiative.

(2)  The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person.

(3)  Subsection (2) applies whether or not the respondent has—

(a)committed family violence against the protected person while the final order was in force; or

(b)complied with the order while it has been in force.

1. And s 107 provides the following:[20]

   [20]This provision is in terms different from its original form when the FVP Act was first enacted. See below.

107Interim extension order

(1)  If a person applies for an extension of a final order before the expiry of the order and the respondent has not yet been served with notice of the application, the court may, if it considers necessary, make an interim order in the absence of the respondent extending the final order (an interim extension order).

(2)  An interim extension order expires 28 days after it is made, unless the respondent is earlier served with the notice of the application and a copy of the interim extension order.

(3)  The court may make more than one interim extension order if it has not been possible to serve the respondent with notice of the application and a copy of the interim extension order.

(4)  If, within 28 days of making the interim extension order, the respondent is served with notice of the application and a copy of the interim extension order, the interim extension order remains in force until—

(a)if the court extends the final order and the final order includes an order that the interim extension order continues until the final order is served on the respondent, when the final order is served on the respondent; or

(b)if the court extends the final order and the final order does not include an order about the interim extension order continuing as referred to in paragraph (a), at the time the final order is made; or

(c)if the court refuses to extend the final order in relation to the application, at the time of the court’s refusal; or

(d)if the interim extension order is revoked by the court, at the time of the revocation; or

(e)if the application for the extension of the final order is withdrawn, at the time of the withdrawal.

Applications to vary, revoke or extend (Subdivision 3, Division 8, Part 4)

1. Subdivision 3 of Division 8, which contains ss 108 to 112, is headed “Application to vary, revoke or extend [FVIO]”.

1. Section 108(1) sets out the persons who may apply to the court for variation, revocation or extension of an FVIO.  Relevantly, those persons include “a party to the proceeding in which the order was made”.

1. For the purposes of this case, it is unnecessary to set out ss 109 to 112.

Service of applications to vary, revoke or extend (Subdivision 4, Division 8, Part 4)

1. Subdivision 4 of Division 8 is headed “Service of applications for variations, revocations or extensions of orders”.

1. Section 113, which is the only provision in that subdivision, provides that “the appropriate registrar for the court must serve a copy of an application made under this Division on each party to the proceeding under which the [FVIO] was made”.

DD’S submissions in this Court

No jurisdiction to make impugned orders

1. Mr Cenacchi’s submissions in this Court were, in the main, more detailed versions of the submissions he made to the magistrate on 16 July 2021.  In those circumstances, I consider it unnecessary to rehearse those submissions in any detail here.

1. Suffice it to say this. In short, Mr Cenacchi submitted that the final FVIO expired at midnight on 11 March 2021 and that there was no order left to vary or extend four months later. It had expired because no application or order for extension was made, either on 7 May 2020 or at any time before the expiry date, in accordance with Subdivision 1 of Division 8 of Part 4 of the FVP Act. The contrary view — that the final FVIO was still on foot in July 2021 — was simply wrong. And this was so whether that contrary view was said to arise from the fact that an interim variation order had been made and the variation application had been adjourned for final hearing, from a perceived “inherent power [in the court] to deal with its own orders”, or from the construction of the relevant provisions advanced by the contradictor. The magistrate misconstrued the FVP Act and, as a result, fundamentally misapprehended the court’s jurisdiction. Her Honour had no power to make final orders varying and extending the final FVIO, and was compelled to dismiss EE’s applications in July 2021.

Relief

1. On the question of relief, Mr Cenacchi submitted that, given the magistrate’s orders of 27 July 2021 were made without jurisdiction, there should be an order in the nature of certiorari quashing those orders.

Contradictor’s submissions in this Court

Steps in contradictor’s argument

1. While Mr Fitzgerald made the factual concessions discussed earlier, he maintained the submission that, on the proper construction of the FVP Act, the final FVIO was still extant after the original expiry date and as at the hearing of July 2021, and that the final orders made by the magistrate on that occasion were therefore made within jurisdiction.

1. As I understood it, the steps in Mr Fitzgerald’s argument were as follows. First, as we have seen, ss 100 and 106 fall within Division 8 of Part 4 of the FVP Act. It was submitted that since s 100(1)(a) and s 106(1)(a) are in Division 8 and both paragraphs employ precisely the same words — “an application under this Division” — an application to vary a final order made under s 100(1)(a) is also an “application under this Division” for the purpose of s 106(1)(a), and vice versa.  This, it was submitted, means that the Magistrates’ Court has power both to vary and to extend a final order even if an application made is only to vary the final order (as in this case), or only to extend a final order (which is not this case).

1. I note that this submission seems to be consistent with the magistrate’s remark, made at the outset of the hearing on 16 July 2021, that “the application here as listed is for variation, but of course given the sub-section … once it’s before the court it can be any type of application”. As I foreshadowed earlier, her Honour’s reference to “the sub-section” appears, therefore, to have been a reference to s 100(1)(a).

1. Second, Mr Fitzgerald submitted that, by operation of s 101(2), the power to make an interim order varying an FVIO under s 101(1) picks up the provisions in Division 2 of Part 4, which concern the making of interim orders. As I understood the submission, insofar as the provisions in Division 2 might be thought not to fit precisely with the further steps in the argument to be considered below, the words “with any necessary changes” in s 101(2) allow those provisions to be read in a way that accommodates the construction proffered.

1. Thus, third, it was submitted that, by operation of s 101(2), s 53(1)(a) applied to the making of the interim variation order on 7 May 2020. This is because EE had applied for an FVIO (with the resulting order to be characterised as an interim order under s 53 as varied under s 100).[21] Further, the magistrate was satisfied, consistently with the terms of s 53(1)(a), that “an interim order [was] necessary pending a final decision about the application … to ensure the safety of [EE] … or … to protect [EE’s child] who [had] been subjected to family violence committed by [DD]”.

   [21]See s 11(3)(a) of the FVP Act.

1. Fourth, Mr Fitzgerald pointed out that, once the interim variation order is made, the court needs to be able to deal with the final hearing of the application, which, for example, both s 53 and s 59 contemplate.  Until that final hearing occurs, the interim variation order can be made until further order — or “until final order”, as occurred here.  This, in Mr Fitzgerald’s submission, has the effect of extending the interim variation order — and thereby the final FVIO that it varies — until the final hearing, whenever that may turn out to be.

1. Fifth, it was submitted that, in the present context, the “interim order” and the “final order” mentioned in s 60 are capable of being taken as references to the interim variation order made in May 2020 and the final order to be made at the final hearing of the variation application in July 2021. Since none of the events described in s 60 occurred prior to the final hearing in July 2021, it could not be said that the interim variation order had ended prior to that time. I shall return to the purported relevance of s 60 later in these reasons.

1. Sixth, as I understood the submission, further weight was added to these propositions of construction by reason of the fact that s 53(4) provides that the court “may make an interim order at any time after the making of an application for a [FVIO] and before the final decision about the application is made”.[22]

   [22]My emphasis.

1. Thus, in Mr Fitzgerald’s submission, it followed that the original twelve-month final FVIO did not expire at midnight on 11 March 2021 but was still in existence, in its varied form on an interim basis, until the final hearing in July 2021.[23]

   [23]While the original final FVIO was a twelve-month order expressed to expire at midnight on 11 March 2021, it also included the words “unless extended or varied prior to that time”.  Correctly, in my view, there was no suggestion — whether by the magistrate or EE below, or by the contradictor in this Court — that the words “or varied prior to that time” somehow authorised or effected an extension of the final FVIO beyond the expiry date simply because it had in fact been varied by force of the interim variation order made on 7 May 2020.

1. Accordingly, he submitted that DD’s contention — that it was necessary to make a separate application to extend the final FVIO in May 2020 (or at some other time before the expiry date) so as to maintain the existence of the final FVIO beyond the expiry date — should not be accepted.

1. Mr Fitzgerald also submitted that, to the extent there is any ambiguity in the provisions, the protective purpose of the FVP Act favours the construction he urged. In his submission, it would be an absurd result, and one that would be at odds with the purpose of the FVP Act and how that purpose is to be achieved, to interpret the Act in a manner that would deny the Magistrates’ Court power to extend or vary an FVIO simply because of the absence of a separate application for the other form of order.

1. Again, each of these propositions appears, more or less, to be consistent with the remarks of the magistrate on 16 and 27 July 2021.

Counter-argument

1. All of that said, Mr Fitzgerald fairly acknowledged that there were significant difficulties with the construction he proffered, and that there was force in Mr Cenacchi’s submissions. For example, he accepted that it might be thought that his particular construction cannot be correct, for at least two reasons. First, he accepted that ss 106 and 107 expressly deal with extension orders, whereas other provisions do not. Second, he also accepted that Division 2 of Part 4 of the FVP Act “really deals with, at its heart, the primary process before variation, revocation and extension” — i.e., where there may be “an initial interim order [made before any] final order [exists]” — as opposed to the making of an interim order in respect of an existing final order. The latter situation, not the former, obtained in the present case in May 2020.

Relief

1. Mr Fitzgerald accepted that, if the Court preferred Mr Cenacchi’s construction of the FVP Act and held that jurisdiction to make the impugned orders was therefore lacking, the appropriate relief would be to quash those orders.

Consideration

1. In my view, Mr Cenacchi’s submissions concerning the interpretation of the relevant provisions of the FVP Act had to be accepted. Mr Fitzgerald’s submissions and his construction of those provisions, ingenious though they were in the circumstances, could not be right. Instead, the very difficulties he acknowledged with his construction are among the reasons why the magistrate had no jurisdiction to make the impugned orders.

1. Mr Fitzgerald conceded — correctly, in my view — that, contrary to the impression conveyed by some of the remarks made by her Honour, neither she nor the Magistrates’ Court possessed “inherent power” to make the impugned orders. Instead, as he accepted, because that court is a creature of statute, whether the magistrate had jurisdiction to make those orders fell to be determined in accordance with the proper construction of the FVP Act. As Landsdowne AsJ said in L v L:[24]

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.

[24]L v L [2016] VSC 182 at [44].

1. This is not to say that the Magistrates’ Court does not have what might be described as implied powers to control its own proceedings.  It has been said that implied powers of this type arise by necessary implication from, but are confined by, statutory provisions conferring a particular jurisdiction.[25]  A court exercising jurisdiction or powers conferred by statute has powers expressly or by implication conferred by the legislation that governs it, which is a matter of statutory construction.  It also has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the power so conferred.[26]

   [25]Guss v Magistrates’ Court of Victoria and Another [1998] 2 VR 113 at 199-120 (per Batt J) (see also the cases there cited).

   [26]See, e.g., DJL v Central Authority (2000) 201 CLR 226 at 240-241[25] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

1. Mr Fitzgerald submitted that the magistrate may have used the term “inherent power” in this narrower sense. If she did, in my respectful opinion, her Honour was still wrong in her construction of the FVP Act. In particular, as I shall explain, in so far as she may have thought that the relevant provisions operate so as to suggest that jurisdiction to extend the final FVIO was somehow implicitly and properly exercised at the earlier hearing in May 2020 — merely because an application for variation was before the court, an interim variation order was made, and the application was adjourned for final hearing, or for some other undisclosed reason — then she was wrong on that score as well.

1. The springboard for Mr Fitzgerald’s argument was the proposition that, because ss 100(1)(a) and 106(1)(a) employ precisely the same words (“an application under this Division”), an application to vary a final order made under s 100(1)(a) is also an “application under this Division” for the purpose of s 106(1)(a), and vice versa.  This, he submitted, meant that the Magistrates’ Court had, and has, power both to vary and to extend a final order even if an application made is only to vary the final order (as in this case), or only to extend a final order (which was not this case).

1. But, for reasons that follow, that argument is flawed, as are other steps in the submissions on the construction of the FVP Act put in support of the magistrate’s jurisdiction to make the impugned orders.

1. First, paragraph (a) in each of s 100(1) and s 106(1) must be read in light of the chapeau that precedes it.  The chapeau in s 100(1) provides that a “court may order the variation or revocation of a [FVIO] on …”.[27]  In contrast, the chapeau in s 106(1) provides that a “court may order the extension of a final order on …”.[28] Thus, while each application provided for is “an application under this Division” (i.e., Division 8), each concerns an application for a different type of order from the other — namely, the order (or orders) mentioned in the chapeau.

   [27]My emphasis.

   [28]Again, my emphasis.

1. Second, while Division 8 deals with variations, revocations and extensions, the structure of that division is that s 100 and s 106 are contained in different subdivisions — with Subdivision 1 addressing variations and revocations, and Subdivision 2 relating to extensions. Thus, the structure of Division 8 serves to reinforce that applications for variations and revocations are different from applications for extensions.

1. Third, as we have seen, in Subdivisions 3 and 4, the provisions return to dealing with variations, revocations and extensions together, but only for the purposes of specifying by whom applications may be made and providing for requirements of service.  This does not support the argument that an application for a variation order necessarily includes an application for an extension order, or vice versa.  Rather, it is just a convenient way of structuring what might be called the machinery aspects of such applications, instead of the substantive aspects.

1. Fourth, even within Subdivision 3, the distinction between applications for variations and applications for extensions is observed.  Thus, s 109 provides that, for the purposes of an application to vary, revoke or extend an FVIO by a person nominated in s 108(1)(a), the respondent to an FVIO may apply for the variation or revocation of the order only if given leave to make the application.  There is, however, no corresponding requirement for leave to bring an application for extension, whether in Subdivision 3 or in Subdivision 2.

1. Fifth, within Subdivision 1, both the relatedness of, and the distinction between, applications for variations and revocations are observed.  Thus, s 100(2) specifies some of the circumstances to which regard must be had in making an order for variation or revocation under s 100(1), and those circumstances are addressed without any distinction being drawn between the two types of order.  Equally, as we have seen, in s 100(3), it is provided that, if a decision is made not to grant an application for the revocation of an FVIO, the court may instead order variation of the order in the way it considers appropriate.  Yet, ss 101(1) and (2) deal with interim orders varying FVIOs, whereas, of necessity given their terminating effect, there is no equivalent provision addressing orders revoking FVIOs.

1. Sixth, in Subdivision 1, s 101(2) provides that, for the purposes of s 101(1) (i.e., an application for a variation of an FVIO and the making of an interim variation order), “Division 2 applies (with any necessary changes) to the making of an interim order varying a [FVIO] as if it were the making of an interim order under that Division”. But, in contrast, there is no equivalent provision within Subdivision 2 providing that Division 2 applies to an application for an extension of an FVIO or the making of an interim order extending an FVIO under s 106 or s 107.

1. Seventh, as we have seen, s 100(2) specifies some of the circumstances to which regard must be had in making an order for variation or revocation under s 100(1). Further, insofar as s 101(2) picks up Division 2, then the test (for example) in s 53(1)(a) might be thought to apply to the making of an interim variation order. But, as we have also seen, there is no mention in s 101(2) of picking up Division 2 vis-à-vis an application for, or the making of, an interim extension order. Instead, the latter application is addressed squarely by s 107. Further, s 106(2) provides preconditions to the making of an order for extension — namely, that “the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit family violence against the protected person” — different from those in s 100(2) (and, by incorporation, s 53(1)(a)) in respect of the making of a variation order or an interim variation order.

1. For these reasons, it is plain that, in circumstances of the kind that obtained in the present case, the only basis for making an application for an extension order, and the only repository of power to make such an order (whether final or interim), would have been pursuant to s 106 or s 107 of the FVP Act.

1. It is also clear that s 106 and s 107 presuppose that an FVIO is still in force at the time of the application under either provision.  While s 106 does not expressly say so, the language of the provision, and the tenses employed, imply as much.  Section 107(1), in contrast, expressly employs the words “before the expiry of the order”.  This does not suggest, by implication, that an application under s 106 may be brought after the expiry of an order.  Rather, these words in s 107(1) are used so as to make it clear that an interim extension order may still be made, despite the expiry of the final FVIO, provided that the application for extension is made before the expiry date but it has not been possible to serve the respondent with notice of the application before that expiry date.  Thus, other than this limited exception provided by s 107, there is nothing in either provision suggesting that an order may be extended after the passing of its expiry date.

1. Yet no application for extension was made in this case, whether under s 106 or s 107, before the expiry date of the original FVIO.  Instead, as we have seen, EE’s application at the final hearing on 16 July 2021 was treated by the magistrate as if it were implicit in the application for variation made on 20 May 2020, which somehow carried over until the final hearing and preserved the existence of the final FVIO until that time, despite the passing of the expiry date at midnight on 11 March 2021.

1. It seems clear enough that her Honour considered that s 60 applied to the determination of whether the interim variation order, and therefore the final FVIO, was still in existence after the expiry date. If that were right, there might be some force in the contradictor’s construction. This is because none of the events specified in s 60 had occurred prior to the making of the final orders made on 27 July 2021.

1. But it is not right. While, by force of s 101(2), Division 2, and therefore s 60, may be picked up vis-à-vis the making of an interim variation order, as I have already pointed out, that division and that provision are directed at interim orders made before the existence of a final order, and not at those made in respect of a final order that is already in existence. Thus, whether by recourse to the words “with any necessary changes” in s 101(2), or by reference to the structure of the FVP Act, the terms of s 60 are not to be treated as an exhaustive list of the circumstances in which an interim variation order ends. Instead, an interim variation order also ends, or can no longer be of any effect, upon the passing of the expiry date of the existing final FVIO it varies on an interim basis.

1. Further, and in any event, it is beyond argument that s 101(2), in picking up Division 2 (and therefore s 60), is confined in that respect to “the making of an interim order varying a [FVIO]”. As we have seen, however, there is no mention in s 101(2) of the making of an extension order; and there is no equivalent of s 101(2) in either s 106 or s 107. Moreover, s 107 provides its own list of circumstances in which an interim extension order expires or until the occurrence of which such an order remains in force.

1. It will be remembered that, on 16 July 2021, the magistrate said this:

[22]  I am, fortunate or not, to have been involved in the drafting of the legislation, and why this section with respect to extensions is in a separate part of the Act is because we needed to be able to arrange for an extension in the interim until service, and that’s one of the reasons it’s pulled out, but in that division, it is a whole division.

1. Whatever the reason the legislature chose to create a separate subdivision in Division 8 for the source of power to make extension orders, there is nothing in the extrinsic materials to the FVP Act that supports a construction that an FVIO is somehow implicitly extended beyond its expiry date in circumstances of the kind that occurred at the ex parte hearing in May 2020.

1. In 2006, the Victorian Law Reform Commission (“the VLRC”) released its final report[29] on the Crimes (Family Violence) Act 1987 (Vic), which was the predecessor legislation to the FVP Act. The Bill that became the FVP Act in 2008 (“the FVP Bill”) was “developed to incorporate many of the findings made by the VLRC’s [report]”.[30]

   [29]VLRC, Review of Family Violence Laws (2006).

   [30]See the explanatory memorandum (at p 1) to the Family Violence Protection Bill 2008.  See also the second reading speech of the Attorney-General, the Honourable Robert Hulls, when introducing the same Bill to the Assembly (Hansard, 26 June 2008, p 2646).

1. In that report, the VLRC considered the mechanisms that might be put in place for extending an existing order when it is about to expire but the protected person is desirous of the order continuing.  Various measures were considered and recommended, including the provision of more notice and information to parties about extension mechanisms, expansion of the grounds for the making of an ex parte interim order to protect an applicant between the expiration of an existing order and the making of a new order, and greater clarity in the procedure for extension.[31] However, it is plain that the VLRC proceeded on the assumption that, once an order passes its expiry date, it no longer exists. The VLRC made no recommendation of the kind that would support the magistrate’s construction of the FVP Act in this case.

   [31]VLRC, Review of Family Violence Laws (2006), at [10.44]-[10-66]; Recommendations 128-133.

1. Further, neither in the Attorney-General’s second reading speech delivered to the Assembly upon the introduction of the FVP Bill nor in the accompanying explanatory memorandum was there any suggestion that the FVP Act should be read in line with the magistrate’s construction.

1. The FVP Act has been amended on numerous occasions over the last fifteen years.[32]  None of those amendments appears to have been of any relevance to the question at issue here, except perhaps one.  The current version of s 107 was inserted in 2010.[33]  It was preceded by the original version, which was in the following terms:

   [32]See the table of amendments at note 2 of the endnotes to the FVP Act.

   [33]The current version of s 107 was inserted by operation of s 28 of the Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act 2010 (Vic).

107     Interim extension order

(1)If a person applies for an extension of a final order before the expiry of the order and the respondent has not yet been served with notice of the application, the court may, if it considers necessary, make an interim order in the absence of the respondent extending the final order for a period of not more than 28 days.

(2)The court may extend a final order more than once under subsection (1) if it has not been possible to serve the respondent with notice of the application.

(3)A copy of the interim order must be served on the respondent with the application to extend the final order.

1. In the explanatory memorandum to the Bill that became the Act that introduced the current s 107, immediately after the terms of that proposed provision were summarised, the following was said:[34]

The amendments ensure that an interim extension order expires at an appropriate time with respect to the protected person’s safety: when the court makes a decision on the extension application or the application is withdrawn.

[34]Explanatory memorandum (p 15), Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010.

1. Thus, it can be seen that the substituted s 107 (set out earlier), when compared with the original, adds nothing to the magistrate’s construction of the relevant provisions. On the contrary, an examination of both the old s 107 and the new, when read with the foregoing remarks in the explanatory memorandum, serves only to confirm that the FVP Act was always, and is still, to be construed as providing that, absent an order for an extension made prior to its expiry date, a final FVIO will have no life beyond that expiry date. The only exception to that proposition, in a case like the present, would be where, in accordance with s 107, a court were yet to determine an application for an extension made prior to the expiry date. But, of course, in EE’s case, no such application for extension was made prior to that date.

1. In his reply, Mr Cenacchi challenged the contradictor’s submission that the construction he proffered would produce an “absurd result” or inhibit achievement of the purpose of the FVP Act. In his submission, any protected person who wished to extend a final FVIO in circumstances of the kind that arose in the present case could do so simply by making an application for extension under Subdivision 1 of Division 8 of Part 4 of the FVP Act prior to the expiry date of the final FVIO. If warranted, an extension order would be made (whether on an interim or final basis), and the necessary protective purpose of the FVP Act would be achieved. It was submitted that there would be nothing absurd about that at all. I agree.

1. Mr Cenacchi accepted, however, that this approach might cause some administrative inconvenience to either a person protected by a final FVIO about to expire or the Magistrates’ Court, or both.  He acknowledged that it would be easier for the protected person and the court if a final FVIO of a fixed duration that has been varied on an interim basis were regarded as continuing beyond the expiry date until the final hearing of the variation application.  Similar thoughts informed the submissions to, and the discussion by and recommendations of, the VLRC, as detailed in its report of 2006.

1. But, in Mr Cenacchi’s submission, any such inconvenience would not be contrary to the purpose of the FVP Act. Instead, to require an application for extension to be brought and determined under the provisions so obviously designed for just that purpose would ensure that the court applied the correct test and procedures for determining whether an existing final FVIO should be extended or not. After all, ex hypothesi, the expiry date of the final FVIO will have been fixed by the court after due consideration was given to what was thought to be necessary and appropriate.  That such an order would be considered for extension by the court according to the Act would be as the legislature so plainly intended.  Again, I accept those submissions.

1. While it is a great pity that the final hearing of EE’s variation application made in May 2020 was not reached for another fourteen months, and not until four months after the final FVIO had expired, that unfortunate turn of events did not, and could not, justify the making of the impugned orders.  Nor could the making of an interim variation order or the adjournment of that application until final order preserve the final FVIO beyond its expiry date.  Absent an order for extension made upon an application prior to that expiry date, or at least an extant application so made, the final FVIO was at an end once that date passed.  And that final order could not be revived, varied or extended thereafter.

1. It follows that the impugned orders of 27 July 2021 were made without jurisdiction.  The magistrate should have dismissed EE’s applications made on 16 July 2021.

Relief

Certiorari and discretion

1. I considered whether the evidence before the magistrate in July 2021 and her Honour’s findings might have supported the making of a fresh FVIO, and, if so, whether, despite the jurisdictional error identified, relief in the nature of certiorari might be refused as a matter of discretion.[35]

   [35]See, e.g., Luck v University of Southern Queensland (2018) 265 FCR 304 at 308[14], in which Mortimer J observed that the “authorities go so far as to recognise that a decision-maker may refer to an incorrect source of power, but if there is an available source of power, the exercise of power will be supported”.

1. However, the statutory tests for varying an FVIO, extending it, and making a fresh FVIO, are each different from the other.  Further, in making the impugned orders, the magistrate did not purport to apply the test for making a fresh FVIO.  Instead, her Honour treated the matter as an application to vary and extend what she considered to be an existing final FVIO.

1. In those circumstances, I did not think it would be appropriate to deny the relief sought.

Declaration and mandamus neither necessary nor appropriate

1. In DD’s originating motion, he also sought a declaration, and mandamus.  It is unnecessary to rehearse counsel’s submissions on these issues.  It is enough to say that, in the circumstances, I considered it neither necessary nor appropriate to make either a declaration or an order in the nature of mandamus or otherwise to remit the matter to the court below.  Instead, it was sufficient to quash the impugned orders and deliver the foregoing reasons.

Orders

Principal orders

1. Accordingly, I made the following orders on 22 December:

1) Pursuant to rule 56.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”), time is extended for the commencement of this proceeding.

2) Pursuant to rule 56.01 of the Rules, the impugned orders (i.e., the orders made by the Magistrates’ Court of Victoria at Moorabbin on 27 July 2021, in proceeding number LI0075380) are quashed.

Costs

1. As indicated earlier, I also heard submissions on costs on costs on 22 December.

1. Mr Cenacchi submitted that costs should follow the event and that, accordingly, EE should pay DD’s costs in this Court.

1. At least initially, Ms Waldin submitted (perhaps a little faintly) that EE should not be ordered to pay costs.

1. While it was an error by the Magistrates’ Court that resulted in the impugned orders, this was not one of those exceptional cases in which that court should suffer a costs order.[36]

   [36]For a discussion of the “extreme circumstances” in which such an order might be made, see, e.g., Swebbs v Magistrates’ Court of Victoria (No 2) [2017] VSC 339 (per Ginnane J).

1. Nor could there reasonably be any order for costs against the contradictor, who, sensibly, was invited by the judicial registrar to appear and who, happily, accepted that invitation.

1. EE resisted DD’s application for relief in this Court initially, even to the point of making an (unsuccessful) application for summary dismissal.  While she participated no more after that point (except when invited to appear on 22 December) and indicated she would abide the Court’s decision, at no stage did she consent to any orders sought by DD, with the result that he was compelled to press on with the proceeding to a trial to obtain the relief sought.

1. In those circumstances, I considered that costs should follow the event, and that it was appropriate that EE should pay all of DD’s costs in this Court, including any reserved costs.

1. Equally, however, while it was EE’s application that resulted in the impugned orders, it struck me that it would be grossly unfair if she were not indemnified by a certificate for the payment of the costs she was ordered to pay in favour of DD, and for the payment of her own costs in this Court.  When the court system has gone wrong and must be corrected on “appeal”,[37] usually, and to the extent that the Appeal Costs Act 1998 (Vic) allows, a losing respondent or defendant to the appeal should not have to foot the bill in the end.

   [37]A proceeding by way of judicial review is an “appeal” within the broad meaning of that term in s 3 of the Appeal Costs Act 1998 (Vic) (see, e.g., Radman v Open Plan [2020] VSC 318 at [19]-[40] (per Digby J) and the authorities his Honour cited).

1. Thus, I considered it appropriate that EE be granted an indemnity certificate embracing both aspects of those costs.

1. Accordingly, I made the following additional orders on 22 December:

3)     The second defendant is to pay the plaintiff’s costs of this proceeding, including any reserved costs, on a standard basis (“the plaintiff’s costs of this appeal”), to be assessed by the Costs Court in default of agreement.

4) Pursuant to ss 4 and 5 of the Appeal Costs Act 1998 (Vic), the second defendant is granted an indemnity certificate in respect of costs, which includes:

a)   the plaintiff’s costs of this appeal; and

b)     the second defendant’s costs of this appeal and, if her costs are assessed, an amount equal to the costs incurred by the second defendant in connection with that assessment.

-------