Hines v McErvale - [2025] VSCA 152

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0001
S EAPCI 2025 0024

PETA HINES	Applicant
v
TRACY MCERVALE	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 152
JUDGMENT APPEALED FROM:	[2024] VCC 1537 (Judge Robertson); Hines v McErvale (Unreported, County Court, Judge Pillay, 10 February 2025)

---

PRACTICE AND PROCEDURE – Application for Personal Safety Intervention Order refused by Magistrates’ Court – Applicant appealed refusal to County Court and sought transfer of appeal to Supreme Court – Application for transfer to Supreme Court refused by County Court judge – Procedural orders made in County Court appeal by successive County Court judges – Application for leave to appeal refusal of transfer application – Application for leave to appeal procedural orders – No error in refusing transfer application – No error in making procedural orders – No injustice in leaving any of impugned orders unreversed – Applications for leave to appeal having no prospects of success – Applications for leave to appeal totally without merit – Applications for leave to appeal refused.

Personal Safety Intervention Orders Act 2010, ss 91 and 92; Courts (Case Transfer) Act 1991, ss 3 and 16; Supreme Court Act 1986, s 14D.

Cargill Australia Limited v Viterra Malt Ltd [2018] VSCA 260; Woodman v State of Victoria [2023] VSCA 169; Qu v Wilks [2023] VSCA 198; Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236; Wilks v Qu [2025] VSCA 135, applied.

---

Counsel
Applicant:		In person
Respondent:		Mr N Kennedy, solicitor
Solicitors
Applicant:
Respondent:	Melville Orton & Lewis

BEACH JA:

The applicant and the respondent are neighbours. They do not get on well together. On 17 June 2022, the applicant filed an application in the Magistrates’ Court for a Personal Safety Intervention Order (‘PSIO’) against the respondent. On 24 November 2022, a judicial registrar of the Magistrates’ Court (Bolte JR) dismissed that application.[1]
[1]A certified extract from the register of the Court records, ‘Final Order refused’.
On 22 December 2022, the applicant filed a Notice of Appeal to the County Court appealing against the orders made by the Magistrates’ Court.
On 1 February 2024, the applicant’s appeal came on for a directions hearing in the County Court before Judicial Registrar Bales. During that hearing, the applicant applied to have her appeal transferred to the Supreme Court. Bales JR rejected that application and made timetabling orders for the filing of material in preparation for a hearing of the appeal in the County Court on 18 June 2024.
The applicant then sought a review by a County Court judge of the orders made by Bales JR. The application for review was heard by Judge Robertson.
On 30 October 2024, her Honour made orders confirming the orders of Bales JR and refusing the applicant’s application to transfer the appeal to the Supreme Court.[2]
[2]Hines v McErvale [2024] VCC 1537

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 Hines v McErvale

Details

AGLC: Hines v McErvale [2025] VSCA 152
Case: [2025] VSCA 152
Decision Date: 3 July 2025

CaseChat Overview and Summary

The applicant, Hines, sought to appeal the Magistrates’ Court decision to refuse a Personal Safety Intervention Order against McErvale. The refusal was challenged in the County Court, where the applicant also sought to transfer the appeal to the Supreme Court. The County Court judge dismissed the application for transfer and subsequently made procedural orders in the appeal. Hines then applied for leave to appeal both the refusal of the transfer application and the procedural orders made in the County Court. The Supreme Court examined the merits of these applications.

The primary legal issues were whether the County Court judge erred in refusing the application for transfer to the Supreme Court, and whether the procedural orders made in the County Court were erroneous. The court also considered whether there was any injustice in leaving the impugned orders unreversed and whether the applications for leave to appeal had any prospects of success.

The Supreme Court found no error in the County Court’s refusal of the transfer application, as the County Court judge correctly applied the principles in Cargill Australia Limited v Viterra Malt Ltd and other relevant cases. The court determined that the procedural orders were also not erroneous, and that leaving those orders unreversed would not result in any injustice. The Supreme Court further held that the applications for leave to appeal were totally without merit and had no prospects of success.

Accordingly, the Supreme Court refused the applications for leave to appeal.

Orders