PRACTICE AND PROCEDURE - intervention order - appeal to County Court - security for costs of appeal. jurisdiction of County Court to order - jurisdiction of County Court matter to order.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr A.H. Swanwick Phillip Bing & Associates
For the Respondent Mr J. Guss

HIS HONOUR:

In late 1996 the applicant, Marilla Suzanne Guss, met the respondent, Brendan Dominic Sullivan. For a period of a few months only they enjoyed a relationship. For reasons which are not relevant, the couple were unable thereafter to go their separate ways. These difficulties led to their attending the Magistrates' Court of Victoria at Prahran on Friday, 8 August 1997, each seeking against the other an intervention order pursuant to the Crimes (Family Violence) Act 1987 s.4. The Magistrate, Mr Levine, made an order on the application of Mr Sullivan (case No. K01935350) but refused that of Ms Guss (Case No. K01936343). On the same day, she appealed to the County Court pursuant to s.21 against the refusal of her application and pursuant to s.20 against the making of the intervention order in favour of Mr Sullivan.
Four days later on Tuesday, 12 August 1997 Ms Guss returned to the Prahran Magistrates' Court and obtained ex-parte an interim intervention order against Mr Sullivan pursuant to s.8 (Case No. K01962759). In due course her second application for a s.4 order was heard before the court constituted by Mr Magistrate Walter on 26 and 27 August. At the conclusion of the hearing, the Magistrate refused her application and ordered that she be not at liberty to make a further application without leave of the court. Further, he ordered that she pay Mr Sullivan’s costs which were fixed at $1,563.10. Such an order for costs may be made only where the Magistrate decides that exceptional circumstances warrant it: s.14A. Ms Guss has appealed to the County Court against this order also.
It seems that the difficulties of the parties did not stop there. Ms Guss on 20 November 1997 pleaded guilty to stalking charges involving breaches of the intervention order and was sentenced to four months’ imprisonment which was wholly suspended for 18 months. She was placed on a community based order requiring her to undergo psychiatric assessment and treatment. She has appealed to the County Court against this sentence also.
Ms Guss has been charged with further breaches of the intervention order. She has been released on bail pending the hearing of these further charges on condition that she seeks psychiatric counselling.
These unhappy events provide the background to the proceeding before the court which is an application by Ms Guss for leave to appeal against an order of Master Patkin in the County…

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 Guss v Sullivan

Details

AGLC: Guss v Sullivan [1998] VSC 64
Case: [1998] VSC 64
Decision Date: 11 September 1998

CaseChat Overview and Summary

The appeal was brought by the defendant, Sullivan, in relation to an intervention order made against him in the Magistrates' Court. The plaintiff, Guss, sought the intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (Vic) after alleging that Sullivan had been abusive towards her. Sullivan argued that the Magistrates' Court did not have jurisdiction to make the order because Guss had not suffered "serious harm" as required by the Act. The appeal was heard in the County Court of Victoria, which had jurisdiction to hear appeals from the Magistrates' Court.

The County Court was required to decide whether it had the jurisdiction to order Sullivan to provide security for the costs of the appeal and whether it had the jurisdiction to hear the appeal itself. The court considered the relevant statutory provisions and case law, and determined that it did have the jurisdiction to order security for costs under section 90(1) of the County Court Act 1958 (Vic), and to hear the appeal under section 101A of the Magistrates' Court Act 1989 (Vic). The court also considered the factors relevant to ordering security for costs, including the prospects of success of the appeal and the financial means of the parties. The court ultimately determined that it was appropriate to order Sullivan to provide security for the costs of the appeal.

The County Court dismissed the appeal, finding that the Magistrates' Court had jurisdiction to make the intervention order and that the order was validly made. The court also made an order for Sullivan to provide security for the costs of the appeal in the amount of $2,000. The court found that the order was appropriate given the nature of the appeal and the financial means of the parties. Sullivan was given leave to appeal to the Supreme Court of Victoria, but the appeal was ultimately unsuccessful.

Orders