HH v WW

[2023] VSC 459

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 02035

HH (a pseudonym)	Plaintiff
v
WW (a pseudonym)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2023
DATE OF JUDGMENT:	4 August 2023
CASE MAY BE CITED AS:	HH v WW
MEDIUM NEUTRAL CITATION:	[2023] VSC 459

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JUDICIAL REVIEW – Family violence intervention order – Where family violence intervention order made at a ‘special mention’ without  notice to the plaintiff - Where plaintiff seeks review of Magistrates’ decision to dismiss application for rehearing – Whether Magistrates’ decision was legally reasonable - Magistrate bound to find that the circumstances were exceptional and that it was ‘fair and just’ to allow the application -   Family Violence Protection Act 2008 (Vic) s 122.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	Winstan Lawyers
For the First Defendant	N/A	Sher Criminal Lawyers
For the Second Defendant	N/A	Magistrates’ Court of Victoria

HIS HONOUR:

Introduction

1. On 6 July 2022, WW,[1] the first defendant, applied in the Magistrates’ Court of Victoria under the Family Violence Protection Act 2008 for an intervention order against her husband, HH, the plaintiff.  They have four children. There are now also family law proceedings between them in the Federal Circuit and Family Court of Australia. At a mention in the Magistrates’ Court proceeding on 17 October 2022, WW was ordered to provide further and better particulars of her allegations by 10 November 2022. At a mention on 15 November 2022, at which both parties were represented, HH was ordered to respond to the further and better particulars by 13 December 2022 and the application for a final order was set down for hearing on 10 and 11 August 2023.

   [1]Section 166 of the Family Violence Protection Act 2008 (Vic) provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding. Accordingly, the Court made a pseudonym order at the hearing to protect the anonymity of the parties.

1. HH did not provide his response to the further and better particulars by 13 December 2022.  Accordingly, the Magistrates’ Court arranged for a ‘special mention’ in the matter on 17 February 2023.  WW was provided with notice of the special mention.  Neither HH nor his lawyers were given notice of the special mention by the police, the Magistrates’ Court, or by WW.  Unsurprisingly, HH did not appear at the special mention on 17 February 2023.  On that day, in his absence, presumably on the application of WW, the Magistrates’ Court made a final order against HH, thereby bringing the proceeding to an end.  HH first found out about this when, on 22 February 2023, he was provided with a copy of the order at the Federal Circuit and Family Court of Australia. The order made, among other things, prevents HH, for a period of two years unless extended or varied, other than as permitted by an order made in the Family Court proceeding or a child protection order or by written agreement, or through a lawyer and mediator, from contacting or communicating with WW or any of his four children or being within 200 metres of what was the matrimonial home or where his children reside or attend school.

1. HH applied to the Magistrates’ Court for a rehearing of the application. His application for a rehearing was heard on 27 March 2023. Both HH and WW were legally represented.  HH had by this time prepared his response to WW’s further and better particulars and had exhibited them to an affidavit he relied on in support.  It was common ground at the hearing of the application for a rehearing that HH had not been provided with notice of the 17 February 2023 special mention.  WW opposed the application for a rehearing. The Magistrates’ Court dismissed HH’s application.

1. HH has not appealed under s 109 of the Magistrates Court Act 1989 against the 17 February 2023 final order. He has, instead, sought judicial review of the dismissal by the Magistrates’ Court of his application for a rehearing. The application for a rehearing was brought under s 122 of the Family Violence Protection Act2008, which provides as follows:

122  Rehearing of certain proceeding

(1)The respondent for a final order may, in accordance with the rules, apply to the court for a rehearing of the proceeding only if–

(a)     the application for the order —

(i)      was not personally served on the respondent; and

(ii)     was not brought to the respondent’s attention under an order for alternative service or substituted service; or

(b)     there are exceptional circumstances and a rehearing is fair and just in all the circumstances of the case.

1. HH has obtained a copy of the audio recording of the 27 March 2023 hearing, and has provided a transcript. WW filed a notice of appearance but informed the Court that she does not intend to take an active role in the proceeding and will abide the decision of the Court. On 19 June 2023, the Court excused WW from appearing.  The Magistrates’ Court of Victoria, the second defendant, has indicated that it does not intend to take an active role in the proceeding and will abide by the decision and that it only wishes to be heard in the event that the Court is considering making a costs order against it.[2] In those circumstances, I accept the evidence contained in the affidavit material filed by HH and proceed on the basis that the transcript he has provided is accurate.

   [2]           See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

1. The transcript reveals that the Magistrate accepted that HH had not been given notice of the 17 February 2023 special mention, but refused his application for a rehearing on the grounds that the special mention only arose because of HH’s failure to comply with the order that he respond to WW’s particulars by 13 December 2022.

1. I am prepared to assume that in determining HH’s application for a rehearing the Magistrates’ Court was exercising a discretion at least insofar as to whether s 122(1)(b) of the Family Violence Protection Act2008 was engaged.  Even so, I am satisfied that the exercise of the discretion in the circumstances of this case was unlawful in the relevant sense.  The making of a final order against a party in their absence without their knowledge is procedurally unfair and contrary to fundamental precepts of the administration of justice.[3]  In circumstances where a final order was made against HH without his having been made aware that the proceeding was coming before the Court on that date, let alone that any application for a final order was to be made on that date, and in the absence of any suggestion that he had taken steps to avoid service or was otherwise responsible in any way for his failure to be aware of the court date, or any other extraordinary circumstances, and in circumstances where it was apparent that he intended to contest the application, the only decision reasonably open to the Court was to allow the application for a rehearing.  The circumstances are, it must be hoped, ‘exceptional’.  The fact that the court had listed the special mention because HH did not provide a document by a specified date could not, in the circumstances, justify the dismissal of HH’s application for a rehearing and thus the ongoing subjection of HH to the order made against him in his absence.  The only conclusion reasonably open was that it was ‘fair and just’ that the application for a final order be reheard, and the Magistrate’s decision to the contrary was, with respect, legally unreasonable.[4]

   [3]See, eg, Cameron v Cole (1944) 68 CLR 571, 589 (Rich J): ‘It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.’ See, eg, Twist v Randwick Municipal Council (1976) 136 CLR 106, 109 (Barwick CJ).

   [4]Cf Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 550-551 [10] (Kiefel CJ), 564-565 [51]-[53] (Gageler J), 573-574 [83] (Nettle and Gordon JJ).

1. Also, it may be that the making of the final order on the application of WW on 17 February 2023 was an ‘application’ for the purpose of s 122(1)(a) of the Family Violence Protection Act2008, notwithstanding that it was not the initiating process, and so the court’s power to set aside the final order was also enlivened by that subsection. However, as I have decided this matter by reference to s 122(1)(b) of the Family Violence Protection Act2008 I do not have to decide whether that is so.

1. Nothing in these reasons should be taken as indicating any view on whether the underlying allegations by WW or HH are valid or invalid.

1. I will make an order in the nature of certiorari quashing the decision made on 27 March 2023 in the Magistrates’ Court in case number N11399553.  At the request of HH, I will hear further from him on whether any and if so what further orders should be made.

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