Gao v Zhang - [2002] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8485 of 2001

PENG YUAN GAO	Applicant
v.
YAN ZHANG	Respondent

---

APPLICATION ON SUMMONS

JUDGES:	PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 and 13 February 2002, 4 March 2002
DATE OF JUDGMENT:	4 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 19

APPEAL – Whether appeal lies to Court of Appeal – From order of County Court on defendant’s appeal against intervention order – No right to appeal – County Court Act 1958, s.74(1); Crimes (Family Violence) Act 1987, ss.20, 21(4); Magistrates' Court Act 1989, s.86(2); Supreme Court Act 1986, ss.10(1)(c), 17(2).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant on 8, 13 February 2002 on 4 March 2002	In person Mr. J. O’Brien	John O’Brien & Associates
For the Respondent	Ms. L. Hannon	Clayton Utz

PHILLIPS, J.A.:
BATT, J.A.:

This is an application for leave to appeal from an order made on 22 November 2001 in the County Court at Melbourne by his Honour Judge Hicks. That order was made on an appeal brought by the present applicant under s.20 of the Crimes (Family Violence) Act 1987 (“the Family Violence Act”) against an intervention order made by the Magistrates’ Court at Melbourne against him as defendant on the complaint of the present respondent.

This application has been before the court as presently constituted on 8 and 13 February 2002 when Mr. Gao appeared in person, unrepresented; and the history of the application thus far will be found recorded in the reasons for decision delivered on those dates. It is sufficient for present purposes to say that on 13 February the application was adjourned to today in order to afford the applicant an opportunity of filing an outline of submissions in response to the submission, first made that day by the respondent, that no appeal lies to the Court of Appeal in this case. The court’s order made that day, and the explanation of it given at the time to the applicant by Phillips, J.A., made it clear that in default of the filing of such an outline by 4 p.m. on 27 February the application might be dismissed with costs without the need for any further appearance on behalf of the applicant or on behalf of the respondent. An outline was filed in time by the applicant. It is, however, difficult to understand and of little assistance on the question of the competency of the proposed appeal. It refers to possible revocation of the intervention orders pursuant to s.16 of the Family Violence Act and suggests also the possibility of our treating the application as one for judicial review. We cannot do that, nor can we order revocation. The submission also asserts that his Honour’s order was obtained by fraud. But no separate proceeding to set it aside is on foot and in short there is nothing in the submission which helps upon the issue which we invited the applicant to address - that is, the power…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Gao v Zhang

Details

AGLC: Gao v Zhang [2002] VSCA 19
Case: [2002] VSCA 19
Decision Date: 4 March 2002

CaseChat Overview and Summary

The parties involved in this case are Gao, the appellant, and Zhang, the respondent. The nature of the dispute is an appeal by the defendant, Zhang, against an intervention order that was granted by the County Court. The appeal was heard in the Court of Appeal. The central legal issues that the Court of Appeal had to determine were whether the appeal from the County Court’s decision was permissible and, if so, whether the appeal was successful in its entirety or in part.

The court examined the relevant statutes to ascertain the conditions under which an appeal could be lodged. It considered the County Court Act 1958, the Crimes (Family Violence) Act 1987, the Magistrates' Court Act 1989, and the Supreme Court Act 1986. Specifically, the court assessed the provisions of sections 74(1), 20, 21(4), 86(2), 10(1)(c), and 17(2) to determine if the appeal process was validly initiated and if the appeal was allowable under the statutes. The court found that the statutory provisions did not provide a right of appeal from the County Court's decision on the defendant's appeal against the intervention order.

The court concluded that the appeal was not permissible as there was no statutory right of appeal from the County Court's decision. Consequently, the appeal was dismissed. The reasoning was based on the specific statutory frameworks that did not extend the right of appeal to the defendant in this context. The court held that the appeal did not lie, and there was no basis for the Court of Appeal to intervene. Therefore, the orders of the County Court were upheld.

The final orders of the court were that the appeal be dismissed, and the intervention order made by the County Court remained in effect. The court did not grant any relief to the appellant, Zhang, and confirmed that the intervention order was valid and enforceable.

Orders