Hines v McErvale (Ruling)
[2024] VCC 1537
•30 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-22-1585
| PETA HINES | Appellant |
| v | |
| TRACY McERVALE | Respondent |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2024 | |
DATE OF RULING: | 30 October 2024 | |
CASE MAY BE CITED AS: | Hines v McErvale (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1537 | |
RULING
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Subject:PERSONAL SAFETY INTERVENTION ORDER APPEAL
Catchwords: Personal Safety Intervention Order – Appeal – Application for case transfer
Legislation Cited: County Court Civil Procedure Rules 2018, r 84.03; Courts (Case Transfer) Act1991, s 16, s 17; Personal Safety Intervention Orders Act 2010, s 92
Cases Cited:Lucciano v The Queen [2021] VSCA 12
Ruling: Judicial Registrar Bales did not err in her decision on 1 February 2024. The application to transfer this matter to the Supreme Court of Victoria is refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms P Hines (Self-represented) | |
| For the Defendant | Ms A Ballard | Melville Orton & Lewis Solicitors |
HER HONOUR:
Introduction
1This is an application brought by the appellant pursuant to r 84.03 of the County Court Civil Procedure Rules 2018 seeking review of a decision of Judicial Registrar Bales made on 1 February 2024.
2The appellant contended Judicial Registrar Bales refused to consider the appellant’s foreshadowed application to have this matter transferred to the Supreme Court of Victoria.
3The appellant seeks to have that decision set aside. In substitution of the decision, the appellant seeks orders approving the application for leave to transfer the matter to the Supreme Court.
4The application for review and the application to transfer the matter to the Supreme Court are both opposed by the respondent.
5Although not a matter for this Court to determine today, there may be some debate as to whether this review should have been properly brought pursuant to the Criminal Procedure Rules or the Civil Procedure Rules. As no issue was taken by the respondent on that basis, and as I have power to deal with the appeal regardless of which avenue was adopted, that issue can be left for determination at another time.
6For reasons that follow, I confirm the decision of Judicial Registrar Bales made on 1 February 2024 and refuse the appellant’s application to transfer the matter to the Supreme Court.
Background
7On 17 June 2022, the appellant filed an application for a Personal Safety Intervention Order against the respondent. The application was listed to be heard on 24 November 2022 at Hamilton Magistrates’ Court, which was sitting at Warrnambool.
8On 24 November 2022, Magistrate Bolte refused to grant the appellant’s application.
9On 22 December 2022, the appellant filed a Notice of Appeal appealing Magistrate Bolte’s decision. The matter was listed for appeal hearing at the County Court of Victoria on 19 April 2023, but that hearing was subsequently adjourned several times.
10On 1 February 2024, the matter proceeded to a directions hearing at the County Court.
11At the directions hearing on 1 February 2024, the appellant foreshadowed to the Court an application which was to be filed with the County Court to transfer the matter to the Supreme Court. During the hearing, Judicial Registrar Bales instructed the appellant:
“All right. I’ll just make a notation of what you’ve just outlined to me and I certainly wouldn’t speak for the respondent but those matters can certainly be dealt with once they are formally filed with the court, Ms Hines. So I won’t make any comment in respect to that application today given it hasn’t been filed as yet. And I certainly won’t necessarily be assisted by Mr Maloney addressing me in respect of that application given it hasn’t technically been filed.
So that's not to say that he won't at a later stage and that's not to say that this Court obviously won't deal with it at a later stage. But today's not the date because it hasn't formally been filed. But thank you for flagging that with the court. That that's your intention to file that application.”
12Judicial Registrar Bales then made timetabling orders for the filing of material by each of the parties; for the hearing of the appeal on 18 June 2024 and for a final directions hearing on 11 June 2024.
13On 1 February 2024 at 2.42pm, after the hearing before Judicial Registrar Bales had concluded, the appellant filed with the APSA List Registry an application to have the matter transferred to the Supreme Court.
14That application is yet to be determined.
15On 15 February 2024, the appellant filed with the Court a Notice Seeking Review of the decision of Judicial Registrar Bales made on 1 February 2024. The notice was stated to have been pursuant to r 84.03 of the County Court Civil Procedure Rules 2018.
16In the appellant’s Notice Seeking Review, the appellant claims she electronically filed her application for Court Transfer during the directions hearing on 1 February 2024. The appellant submits Judicial Registrar Bales’ refusal to consider her application to transfer her matter to the Supreme Court during the directions hearing on 1 February 2024 constitutes a denial of procedural fairness and was made in bad faith. The Notice Seeking Review seeks the orders of Judicial Registrar Bales made on 1 February 2024 be set aside, and in lieu thereof an order be made stating:
“Referral Under Part 3 of the Courts (Case Transfer) Act 1991”.
17Even if Ms Hines did send her application for Court Transfer electronically during the hearing, a document is not “filed” with the Court until it is accepted for filing by the court. “Filing” is an act of the court, not a party, and consists of the act or process of placing documents in the records of the court.[1]
[1]Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 5123. See also Angus Fire Armour (Australia) Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477; Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468; Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171; Nugawela v Deputy Commissioner of Taxation [2016] FCA 578; Kimber v Owners Strata Plan No 48216 (No 2) [2018] FCA 406.
18Following the appellant’s filing of the Notice of Review, the matter was listed before me on 19 March 2024 for Review of a Decision of a Judicial Registrar. The review hearing was adjourned to 2 May 2024. On the same day, the plaintiff’s application for case transfer also came before me.
19On 2 May 2024 the Court made timetabling orders providing the appellant and the respondent with the opportunity to file written submissions respectively by 27 May 2024 and by 11 June 2024. Any further submissions in reply by the appellant were to be filed by 25 June 2024.
20The appellant filed written submissions dated 27 May 2024.
21The respondent filed written submissions dated 10 July 2024 (but filed 11 June 2024).
22The appellant filed written submissions in reply dated 25 June 2024.
Did Judicial Registrar Bales err by failing to consider the application to transfer?
23There is no error found in Judicial Registrar Bales’ decision not to consider the appellant’s application to transfer this matter to the Supreme Court of Victoria. The transfer application in question was not filed before the Court at the time of the directions hearing and was not listed for application to transfer that day. Therefore, it could not and should not have been considered. On that basis, the orders of her Honour dated 1 February 2024 are confirmed.
24However, I turn now to the appellant’s application to transfer the matter to the Supreme Court, which must be considered notwithstanding my finding above.
Legal framework to transfer the matter to the Supreme Court of Victoria
25The appellant seeks to transfer the matter to the Supreme Court of Victoria pursuant to s17 of the Courts (Case Transfer) Act1991 (“the Act”).
26Section 16(1) of the Act stipulates the criteria for transfer and provides that:
“(1)A proceeding may only be transferred under this Part if in the opinion of the designated judicial officers—
(a)the transferor court does not have exclusive jurisdiction to hear and determine it; and
(b)the transferee court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance; and
(c)it is just and convenient that it be transferred.”
27Section 92 of the Personal Safety Intervention Orders Act 2010 provides that appeals of Personal Safety Intervention Orders made in the Magistrates’ Court jurisdiction must be made to:
(a) the County Court; or
(b) the Trial Division of the Supreme Court, if the court that made the relevant decision was the Children's Court constituted by the President of the Court; or
(c) the Court of Appeal, if the court that made the relevant decision was the Magistrates' Court, or the Children's Court, constituted by the Chief Magistrate who is a dual commission holder.
Appellant’s submissions
28The appellant provided written submissions dated 27 May 2024.
29The appellant’s submissions were difficult to follow. After some effort, I have concluded the appellant’s application for case transfer to the Supreme Court rests upon the following grounds:
(a) First, Judicial Registrar Bales listed the appeal for hearing and in doing so ignored the parties’ submissions as to the effect of related criminal proceedings.
(b) Second, Judicial Registrar Bales ignored the appellant’s transfer request to the Supreme Court and submissions made that the respondent’s legal grounds had no real prospects of success.
(c) Third, there is a conspiracy between Victoria Police, the Magistrates’ Court of Victoria, the County Court of Victoria, Court Services Victoria, the Victorian Civil and Administrative Tribunal, legal counsel for the respondent, Mr Moloney, and the solicitors for the respondent through Mr Kennedy, to thwart the appellant’s application for a Personal Safety Intervention Order against the respondent. The appellant proposes this conspiracy was primarily achieved through the issuing of related criminal charges against her which interfered with her current matter. The County Court is compromised and is incapable of providing the appellant with a fair hearing of her appeal.
Respondent’s submissions
30The respondent made the following submissions:
(a) First, the County Court is seized of exclusive jurisdiction to hear appeals of this type.
(b) Second, it would be inappropriate for Victoria’s superior court of record to utilise its resources and expertise in the resolution of a minor and concluded issue such as this one.
(c) Third, subjecting the respondent to the additional delay and expense of transferring this matter to the Supreme Court on the grounds submitted by the appellant would be axiomatically inconvenient and unjust.
(d) Fourth, the matter of Lucciano v The Queen [2021] VSCA 12 does not apply to this matter. In Lucciano a civil trial preceded a criminal trial. The appellant is not subject to criminal proceedings related to this appeal.
Is the proceeding capable of transfer to the Supreme Court of Victoria?
31The language of s16 of the Act makes plain the criteria for transfer of a proceeding. A proceeding may only be transferred under the Act if, in the opinion of the designated judicial officer, the transferor court does not have exclusive jurisdiction to hear and determine the proceeding.
32The first hurdle the appellant must overcome in her application, is that the County Court does not have exclusive jurisdiction to hear and determine her appeal. Section 92 of the Personal Safety Intervention Order Act makes it abundantly clear that the County Court exercises exclusive jurisdiction to hear and determine appeals of the nature brought by the appellant.
33As such, by operation of the Act, I am bound to refuse the appellant’s application to have this matter transferred to the Supreme Court.
34The application was lacking in merit from the start.
35Having reached that conclusion, it is unnecessary for me to consider the remaining submissions of the appellant. As the appellant has commenced an appeal against the refusal of the Magistrates’ Court to grant her a Personal Safety Intervention Order, pursuant to s 92 of the Personal Safety Intervention Order Act, that appeal must be heard in the County Court. Accordingly, I do not propose to transfer the matter to the Supreme Court.
Conclusion
36I confirm the orders of her Honour Judicial Registrar Bales and find she did not err in her decision on 1 February 2024 to not consider the application for the transfer of this matter to the Supreme Court.
37I refuse the appellant’s application for transfer of this matter to the Supreme Court.
38The practical effect of this application has meant that the previously made orders timetabling the proceeding for hearing have been superseded and as such I will make new timetabling orders today.
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