L v L
[2016] VSC 182
•14 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05745
| L | Plaintiff |
| v | |
| L | First Defendant |
| - and - | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 December 2015, 12 February 2016 and 7 April 2016 |
DATE OF JUDGMENT: | 14 April 2016 |
CASE MAY BE CITED AS: | L v L and anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 182 |
JUDICIAL REVIEW – variation of an interim family violence intervention order for the protection of an adult on the Magistrates’ Court’s own initiative – held to be without power – application or consent required – Family Violence Protection Act 2008 (Vic) ss 1, 11, 42, 53-55, 59, 60, 61, 65, 100- 102, 108-111, 170 – Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic) rr 4.05, 15.03.
PRACTICE AND PROCEDURE – whether transcript of lower court must be prepared by an authorised transcription service for purposes of judicial review– no statutory requirement - transcript prepared in a solicitor’s office and checked by the solicitor accepted – Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss130, 134-135, 137 – Courts Security Act 1980 (Vic) ss4A-4C.
PRACTICE AND PROCEDURE – costs on successful judicial review where no appearance by defendants – application for certificate under Appeal Costs Act 1998 (Vic) s 7 – certificate granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Sutton | Coote Family Lawyers |
| For the Defendants | No appearance |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Application in the Magistrates’ Court............................................................................................ 2
First hearing in this Court................................................................................................................. 8
Hearing on 4 December 2015 in the Magistrates’ Court.............................................................. 9
Hearing in this Court on 12 February 2016.................................................................................. 10
Reception of transcript prepared in a solicitor’s office......................................................... 11
Plaintiff’s submissions in support of judicial review............................................................... 14
Jurisdictional error...................................................................................................................... 14
Breach of procedural fairness.................................................................................................... 14
Error on the face of the record................................................................................................... 14
Are determination and reasons now appropriate?..................................................................... 15
Jurisdictional error........................................................................................................................... 16
Family Violence Protection Act 2008 (Vic)................................................................................... 17
Variation or revocation of an order................................................................................ 21
Other asserted error.......................................................................................................................... 27
Could the Magistrate have corrected the error?.......................................................................... 28
Application under the Appeal Costs Act 1998 (Vic)................................................................... 30
HER HONOUR:
Introduction
By originating motion filed 6 November 2015, the plaintiff sought judicial review of an order made by Magistrate Goldsbrough on 7 September 2015 at Moorabbin Justice Centre. The impugned order purported to vary an interim family violence intervention order made on an ex parte basis on the application of the plaintiff. That order was made by Magistrate Hawkins at Melbourne Magistrates’ Court on 28 August 2015. The plaintiff contends that the order of 7 September 2015 was beyond power, and was also susceptible to correction by this Court by reason of error of law on the face of the record and breach of procedural fairness.
The procedural history of this proceeding and the proceeding below is set out in more detail in the next sections of these reasons. In summary, this proceeding first came before me on 3 December 2015 and on that date I stayed the order made on 7 September 2015 and adjourned the trial to 12 February 2016. Subsequently, and before the adjourned date in this Court, the parties in the proceeding below varied the order of 7 September 2015 by consent to restore the interim order as first made on 28 August 2015. Accordingly, by the adjourned date of the trial of the proceeding for judicial review there was no longer any need for the order of 7 September 2015 to be quashed, if it was indeed susceptible to correction by this Court.
Nevertheless, the plaintiff attended the hearing on 12 February 2016 by counsel, who put further submissions in support of his contention that the impugned order had been beyond power, and sought that I determine the substance of his contentions and publish reasons. I formed the view on that day that although the relief sought in relation to the order made 7 September 2015 had been overtaken by events, this proceeding retained some potential utility until an interim order could no longer be made i.e. until the plaintiff’s application for a family violence intervention order was finally determined in the Magistrates’ Court. For that reason, I adjourned the originating motion to 7 April 2016, being a date after the listed date for final hearing in the Magistrates’ Court. The application for a final order was at that time listed for a two day hearing commencing 23 March 2016. The solicitors for the plaintiff informed this Court by letter dated 24 March 2016 that the proceeding below had settled without final hearing, and was now dismissed. Accordingly, I excused the parties from attendance on 7 April 2016 and on that day granted leave to discontinue the proceeding, with no order for costs.
The solicitors for the plaintiff renewed in that letter the request made by counsel for the plaintiff on 12 February 2016 that, notwithstanding that the proceeding below was finalised without the need for any correction by this Court, I still publish reasons. I now do so. I do so in redacted and anonymised form because of the restriction on publication of information likely to lead to the identification of any person involved in the proceeding below, as imposed by s 166(2)(b) of the Family Violence Protection Act 2008 (Vic).
In summary, I accept the submission of counsel for the plaintiff that the purported variation was beyond power. Accordingly, although it became unnecessary to grant any relief reflecting that view, I consider that the plaintiff was successful in substance in his application for judicial review. These reasons also deal with the admission of transcript of a proceeding in another court prepared other than by an authorised transcription service, and the application made by the plaintiff for a certificate under the Appeal Costs Act 1998 (Vic).
It is necessary to first set out in some detail what occurred in chronological order in the Magistrates’ Court and in the proceeding for judicial review in this Court.
Application in the Magistrates’ Court
The plaintiff’s proceeding in the Magistrates’ Court commenced by an ex parte application made by him on 28 August 2015 for a family violence intervention order against his wife, the first defendant.[1] The matter came before Magistrate Hawkins and the plaintiff gave evidence on oath in support of the application.[2] He was represented by his present counsel, Mr John Sutton. Magistrate Hawkins then made the ex parte interim order in the terms sought by the plaintiff, save that she deleted proposed standard conditions 10-12, and paragraph (b) of standard condition 9. The conditions she imposed were as follows:[3]
[1]Contained within the Magistrates’ Court file, provided to this Court on request made by the plaintiff, and marked Exhibit E.
[2]Solicitor prepared transcript of 28 August 2015, being Exhibit B.
[3]Set out in the certified extract being SF-1 to the affidavit of Simon Fuller sworn 6 November 2015.
The Court orders that the respondent must not:
1. commit family violence against the protected person(s).
2.intentionally damage any property of the protected person(s) or threaten to do so.
3.attempt to locate, follow the protected person(s) or keep him/her/them under surveillance.
4.publish on the internet, by email or other electronic communication any material about the protected person(s).
5.contact or communicate with a protected person by any means.
6.approach or remain within 5 metres of a protected person.
7.go to or remain within 200 metres of [address redacted] or any other place where a protected person lives or works.
8.get another person to do anything the respondent must not do under this order.
9.The respondent may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(c)communicate with a protected person through a lawyer or mediator; or
(d)arrange and/or participate in counselling or mediation; or
(e)go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.
BUT ONLY IF the respondent does not commit family violence while doing so.
Magistrate Hawkins recorded these orders on what appears to be a standard form Decision Sheet,[4] by circling the conditions there set out which were to be imposed, striking out those not to be imposed, being paragraph (b) of standard condition 9 and standard conditions 10-12 inclusive on the Decision Sheet, and making other minor amendments. She also recorded on the Decision Sheet, and this duly appears on the certified extract of the order, that the interim family violence intervention order was to last until final order notwithstanding that the application and summons had not been served on the respondent and the order was made ex parte. She adjourned the application for mention to 7 September 2015 at Moorabbin Justice Centre.
[4]Contained within Exhibit E.
The application, summons and interim intervention order were served on the respondent, the current first defendant on 31 August 2015.[5]
[5]Certificate of Service of Senior Constable Rebecca Tsivoglou, part of Exhibit E.
On 7 September 2015 the proceeding came before Magistrate Goldsbrough at Moorabbin Justice Centre. Both parties were legally represented, the plaintiff by Mr James Westmore of counsel. Mr Westmore informed her Honour that the parties had agreed to further adjourn the application to a directions hearing on 30 October 2015, apparently to allow contemplated Family Court proceedings to be commenced.[6] The Magistrate questioned the necessity for a directions hearing given the nature of the allegations, which she described as ‘pretty thin’ at face value.[7] The solicitor for the respondent agreed with that characterisation, but noted that ‘procedurally I think we are bound by any application’. The Magistrate responded that ‘I can only make a continuing order if I am satisfied there are the grounds’ and that she would give the parties an opportunity to respond to her comment.[8] After hearing the legal representatives for the parties, and the then applicant/now plaintiff personally, the Magistrate stood the proceeding down so that the parties could set a time for the respondent to collect items from the home, noting that ‘there are really very little grounds here for an intervention order. Your client is entitled however not to have people come around to the property and frighten him if that is what has occurred’.[9] She agreed that the proceeding be adjourned for directions.
[6]Solicitor prepared transcript of 7 September 2015, being Exhibit C, at 1.
[7]Court book, at 36.
[8]Court book, at 36.
[9]Court book, at 38.
After the parties returned with agreed arrangements for the collection of items, the Magistrate reiterated her concern about the application and the restrictions that she would impose in these terms:
I repeat, there are not real grounds here in my view to allow the application to proceed, however, what I am doing today is leaving in those orders that would meet (not transcribed- said to be incomprehensible) source outlined there so there is no damage to property or threats to damage property. No attending or remaining at the [redacted] address. And not getting anybody else to do those things (not transcribed- said to be incomprehensible) but not included in the application and also the exception clause remains.[10]
[10]Court book, at 39.
Magistrate Goldsbrough then said she would note on the order the agreed arrangement about the collection of property and make a direction that if the applicant wished to proceed with his application, he file and serve grounds to enable it to proceed by 20 October 2015. She noted that the filing and service of grounds ‘really does need to be done’ and that ‘I have varied the order accordingly. I have left one in.’[11]
[11]Court book, at 39.
It is not entirely clear to what the Magistrate referred as ‘one’. The Decision Sheet for that day in the Magistrates’ Court file shows that the Magistrate struck out conditions 1, 3-6 and 10-12, and only circled conditions 2, 7, 8 and 9, as those conditions each appear on that Sheet. Thus, if her intention was to leave in condition 1, which is the prohibition on the commission of family violence, she did not record this on the Decision Sheet.
The Decision Sheet records in handwriting at the end of the conditions the notation about collection of property and the direction about the filing and service of grounds. The order section of the Decision Sheet shows that the application is adjourned to 30 October 2015 for a directions hearing. The section of the Decision Sheet headed ‘Family Violence Intervention Order Made’ contains pro forma alternatives as the basis on which the order is made (unopposed, consent or by consent without admissions) and none of those are ticked. There is only one pro forma option as to the duration of an interim order, which is in these terms, ‘This INTERIM family violence intervention order will last until FINAL ORDER’, and that is ticked. The handwritten notation ‘varied’ appears next to it. There are alternatives on the Decision Sheet in relation to the duration of a final order, none of which are ticked.
What appears on the Decision Sheet as so completed was then apparently typed into an order, a copy of which was provided to the applicant, now plaintiff, on the day[12] and a certified extract of which was provided to his solicitors.[13] The order provided to the plaintiff is headed ‘Interim Intervention Order’ and is so described in the text of the certified extract. It states that ‘This INTERIM intervention order will last until final order, unless varied or revoked; or if the application if withdrawn’. The statement that this interim order will last until final order also appears on the certified extract. Both contain the following conditions only, replicating what is noted on the Decision Sheet:
[12]TL-1 to the affidavit of plaintiff sworn 6 November 2015.
[13]SF-2 to the affidavit of Simon Fuller sworn 6 November 2015.
THE COURT ORDERS THAT THE RESPONDENT MUST NOT:
1.intentionally damage any property of the protected person(s) or threaten to do so.
2.go to or remain within 200 metres of [address redacted] or any other place where a protected person lives or works.
3.get another person to do anything the respondent must not do under this order.
4.The respondent may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(c)communicate with a protected person through a lawyer or mediator; or
(d)arrange and/or participate in counselling or mediation; or
(e)go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.
BUT ONLY IF the respondent does not commit family violence while doing so.
The certified extract also contains the adjourned date, the notation and the direction to file and serve grounds by 20 October 2015.
The effect of the varied interim order purportedly made on 7 September 2015 was to delete conditions 1, 3, 4, 5 and 6 from the interim order made on 28 August 2015. The Magistrates’ Court file shows no written application before the Court on 7 September 2015 by either party to vary the conditions of the order made on 28 August 2015. The solicitor for the plaintiff, Mr Fuller, deposes in his affidavit sworn 6 November 2015 that his firm did not receive any application to vary the order of 28 August 2015 (or, indeed, the subsequent interim order) and to the best of his knowledge, information and belief following enquiry of the clerical and registry staff at the Magistrates’ Court no such application was filed. The transcript of what occurred on 7 September 2015 does not disclose any oral application by either party to vary the order. No sworn evidence was led from any person and nor was any affidavit filed in court, or relied upon by the Magistrate.
The proceeding came back before the Magistrates’ Court for directions on 30 October 2015. The Magistrates’ Court file does not show any grounds filed in accordance with the direction. There is no transcript of what occurred on that day, and no other evidence as to what occurred, save that the copy Magistrates’ Court file provided to this Court contains a Decision Sheet and what appears to be an incomplete copy of submissions on behalf of the applicant, dated 23 October 2015 and marked filed 2 November 2015. The Decision Sheet records that the application was further adjourned to 4 December 2015 for a directions hearing, and listed for a contested hearing on 23 and 24 March 2016. It does not record that any other order was made that day, except a direction that the order made 7 September 2015 be rectified (in what manner is not specified). There is also a handwritten notation ‘App to restore the order on notice’. Counsel for the plaintiff informs me that on this day he raised with the Magistrate his concerns about the change to the interim order she had made, but was at that time uncertain whether or not she had the power to restore the earlier order, or was functus officio, as he had not appeared on 7 September 2015 and had not by 30 October 2015 had the benefit of listening to the recording of the earlier day.
First hearing in this Court
The originating motion came before me for by summons for first directions on 3 December 2015. Both defendants had been served and both had indicated to the Court in writing before the return date that they did not seek to be heard save as to any proposed costs order against her or it respectively.
The plaintiff sought that the originating motion be heard in its entirety on 3 December 2015. I obtained a referral to hear and determine the originating motion from J Forrest J pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’). On hearing counsel for the plaintiff, I reached a preliminary view that the Magistrate had acted without power, and that the other grounds were also strongly arguable, but considered that rather than determining the matter that day it would be preferable to give a further opportunity to both defendants to be heard. I took this approach for a number of reasons. First, it is preferable for there to be a contradictor in an application for judicial review of a lower court. Next, I was concerned that the approach taken by the Magistrate may be a common one in the Magistrates’ Court and so that Court should have every opportunity to be heard in relation to it. I was also concerned that there was at that time no transcript before me of what had occurred at the hearing on 28 August 2015 and no transcript prepared by an authorised transcription service of the hearing on 7 September 2015.
I made orders on 3 December 2015 staying the purported variation made on 7 September 2015, with the intent that the interim order as made on 28 August 2015 would remain in force. I then adjourned the further hearing of the originating motion to 12 February 2016 and made arrangements for copies of those orders to be provided both to the Magistrates’ Court and to the first defendant. The orders included a summary of the plaintiff’s submissions, and my tentative view that the plaintiff’s case was strongly arguable. If either or both of the defendants sought to be heard on the adjourned date, the orders required that defendant to give notice to that effect to this Court and to the plaintiff by 5 February 2016. It was envisaged that if neither defendant sought to be heard, the plaintiff could seek to be excused from further appearance, on the basis that his submissions had already been put.
Hearing on 4 December 2015 in the Magistrates’ Court
The application for a family violence intervention order came before the Magistrates’ Court the following day, 4 December 2015. The transcript of that hearing shows that counsel for the plaintiff alerted Magistrate Goldsbrough to the orders made by me the previous day. The Magistrate read the orders, and said that after the mention on 30 October 2015 she had also given the matter more thought, and spoken to her colleagues on the Magistrates’ Court, and now considered that the plaintiff was correct in his submission that the variation was beyond power.[14] There was then discussion between counsel and the Magistrate as to whether or not she could rectify the order, or could not because she was functus officio. The Magistrate appeared to favour the view that she could correct the order herself; counsel for the plaintiff was concerned that she may not have the power to do so as a slip rule correction. After discussion, the parties agreed to restore the original interim order, as made on 28 August 2015, by consent.
[14]Solicitor prepared transcript of 4 December 2015, being Exhibit D, at 3.
There is no copy of the orders made on 4 December 2015 in evidence. The Decision Sheet in the Magistrates’ Court file[15] records that the application is adjourned to a contested hearing on 23 March 2016 (not before Magistrate Goldsbrough) and contains a notation in handwriting that ‘By consent today, the original ex parte order made 28.8.15 is restored until final order and note the Sup Ct review will be withdrawn.’ The transcript does not show that counsel for the applicant informed the Magistrate that the proceeding in this Court would be withdrawn. When the Magistrate enquired as to what would occur with this proceeding counsel for the applicant said that he may seek that reasons be published addressing his contentions.
[15]Exhibit E.
Hearing in this Court on 12 February 2016
The plaintiff did not seek to be excused from appearance on the adjourned date. Counsel for the plaintiff appeared, and sought a determination of his substantive grounds on the basis that although there was no longer any need for the order of 7 September 2015 to be quashed, as events had overtaken it, there remained utility in the other relief sought. He also made an application for costs as against the first defendant, which I refused, and an application for a certificate under s 7 of the Appeal Costs Act 1998 (Vic). Neither defendant gave notice to this Court that she or it wished to be heard on the adjourned date in this Court, and neither defendant appeared on the adjourned date. The second defendant, the Magistrates’ Court, reiterated by letter to the Court dated 14 December 2015 that it did not seek to be heard, save as to any application for costs against it.
On the adjourned date the plaintiff also addressed the fact that he had not provided this Court with a transcription of any of the relevant court hearings below prepared by one of the usual authorised transcription agencies. Instead, he sought to rely on transcriptions prepared by his solicitors from the official recordings, which had been provided by the Magistrates’ Court. The solicitor for the plaintiff gave evidence that he had caused an administrative assistant in his office to type up each of the recordings, and had then compared the transcript so prepared with the recording to satisfy himself of its accuracy. He also gave evidence to the effect that this approach had been taken rather than arranging for transcription by one of the usual agencies for reasons of cost.
On the basis of this evidence, I allowed the transcripts so prepared into evidence. I now record my reasons for doing so.
Reception of transcript prepared in a solicitor’s office
Although it is the usual practice in this Court that what transpired below is proved by transcript prepared by one of the authorised transcription agencies, there is no requirement that I could ascertain in either the Rules or in the Evidence Act 2008 (Vic) to that effect. There is also no provision in the Magistrates’ Court Act 1989 (Vic) that requires transcript of a proceeding in the Magistrates’ Court to be prepared by any particular person or agency. The only relevant provision in that Act is s 19A, which provides that ‘The principal registrar must ensure that all proceedings in the Court are recorded in accordance with the Rules’. Neither counsel for the plaintiff or I could locate any provision in relation to recording or transcription in either the Magistrates’ Court (General Civil Procedure) Rules 2010 (Vic) or the Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2010 (Vic). As later discussion will show, the applicable rules for proceedings under the Family Violence Protection Act 2008 (Vic) are the Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic). There is similarly no provision in relation to transcription in those rules.
There is provision in Part VI of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) in relation to the recording and transcription of evidence before a person ‘acting judicially’. That description would encompass a magistrate. Sections 130 and 134 of that Act provide as follows:
130Power to person acting judicially to direct that evidence be recorded
(1)Any person acting judicially if in his or her discretion he or she thinks fit may on the application of any party to any legal proceeding before him or her, and such person shall upon the application of all the parties to any legal proceeding before him or her, direct that any evidence to be given in the legal proceeding be recorded and transcribed in any manner that he or she directs.
(2)A direction under subsection (1) may include such terms and conditions as the person acting judicially thinks fit.
(3)Subject to subsection (3A), if any direction is given under this section the person who is to record the evidence shall be selected by all the parties to the legal proceeding or in default of their agreement by the person acting judicially in the proceeding.
(3A)If the Secretary to the Department of Justice has entered into an agreement with a person for the provision by that person of recording and transcription services to the court concerned, the evidence must be recorded and transcribed by or on behalf of that person unless a party to the legal proceeding shows grounds to the satisfaction of the person acting judicially in the proceeding that another person should record and transcribe the evidence and the person acting judicially so directs.
(4)Where any evidence is recorded pursuant to this section the person acting judicially having jurisdiction to determine by whom the costs of the legal proceeding are to be paid may decide in his or her discretion by whom the costs of recording and transcribing such evidence shall be paid.
134Persons recording evidence under this Part to be officers of the court
Every person recording any evidence pursuant to this Part shall for the time being be an officer of any court in or for which he or she is required to record the evidence and shall be under the direction of the court with regard to the performing of his or her duty in recording and transcribing or causing to be transcribed such evidence.
The Part also provides that persons recording and transcribing evidence pursuant to that Part are for that purpose officers of the court (s 134); that evidence so recorded and transcribed is prima facie evidence as to its contents (s 135); and for penalties for the false recording or transcription of evidence under the Part (s 137).
Courts are now administered not by what was formerly the Department of Justice (now the Department of Justice and Regulation) but by an independent statutory body called Court Services Victoria.[16] I have made enquiries within this Court as to agencies authorised pursuant to s 130(3A) and am informed that, prior to the establishment of Court Services Victoria, certain transcription agencies had been authorised by delegates of the Secretary to the Department of Justice to transcribe proceedings in this Court, and I assume other courts, pursuant to that provision. I have been informed that Court Services Victoria became the party to those agreements in substitution for the State of Victoria following the establishment of Court Services Victoria[17] and that similar agreements between transcription services and Court Services Victoria are now in place.
[16]Court Services Victoria Act 2014 (Vic).
[17]Pursuant to s 51 of the Court Services Victoria Act.
The critical fact for current purposes is, however, that s 130 applies to the recording and transcription of evidence before the judicial officer concerned- it does not apply to the proof in this Court of what occurred before a judicial officer in a lower court unless that court made an order under s 130. I am informed by counsel for the plaintiff that no such order was made at any hearing in the proceeding below by the magistrate conducting that hearing, and, further, that it is not the normal practice of the Magistrates’ Court to do so except in committal proceedings. No such order is shown on any of the transcripts now in evidence.
For these reasons, I could see no statutory bar to the reception of evidence of what occurred below prepared in a mode other than by an authorised transcription service. Further, I considered that what occurred below was here sufficiently proved by transcription by an administrative assistant in the plaintiff’s solicitor’s office, as checked by that solicitor against the recording. I note in particular in that regard that a solicitor is an officer of the Court, and so is subject to the same obligations as a recorder and transcriber acting pursuant to a direction under s 130. A solicitor for a party is also subject to the paramount duty to the Court to further the administration of justice imposed by s 16 of the Civil Procedure Act 2010 (Vic), and the overarching obligations to act honestly and not to mislead or deceive imposed by ss 18 and 21 of that Act, which override that solicitor’s obligations to his or her client if those obligations are inconsistent (s 13 of the Act).
For completeness, I note that there are prohibitions on persons recording court proceedings, publishing such a recording, or transmitting such a recording to another person imposed by ss 4A-4C inclusive of the Courts Security Act 1980 (Vic). The prohibitions are subject to exceptions, including an exception for recordings prepared by employees of Court Services Victoria or authorised by Court Services Victoria. The recordings from which the solicitor for the plaintiff caused transcripts to be made were provided by the Magistrates’ Court itself. Accordingly, I assume that they were prepared either by employees or agents of Court Services Victoria and so the prohibitions do not apply.
I now turn to the plaintiff’s submissions that the purported interim order made 7 September 2015 was beyond power, or otherwise susceptible to being quashed by this Court.
Plaintiff’s submissions in support of judicial review
Jurisdictional error
The plaintiff submits that the order made by Magistrate Goldsbrough on 7 September 2015 was a purported variation of a family violence intervention order, being the interim order made on 28 August 2015, and was made without power because no application had been made by a party for such variation.
Breach of procedural fairness
The plaintiff also submits that Magistrate Goldsbrough breached the requirements of procedural fairness because she failed to give the parties an opportunity to address her on the variations that she proposed to make to the interim order made on 28 August 2015. Further, she did not consider the sworn evidence given in support of the interim order by the plaintiff on the previous occasion, or give him any appropriate opportunity for further evidence or submission.
Error on the face of the record
The plaintiff’s third principal submission is that the record, being the order of 7 September 2015, discloses error on its face. This submission has a number of limbs. The first is that the order no longer contains a condition that the respondent must not commit family violence against the protected person. The plaintiff submits this is an error of law, because such a condition is a precondition to the making of an order.
The plaintiff also submits that the record, in this limb of the submission including the transcript of the Magistrate’s reasons on 7 September 2015, contains an error on its face. This error is said to be that the Magistrate shows she intended to include such a condition but did not do so.
Are determination and reasons now appropriate?
The originating motion sought relief in these terms:
1.1Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 the plaintiff seeks relief in the nature of certiorari to quash the Interim Intervention Order made by the Magistrates’ Court on 7 September 2015 in proceeding [redacted].
1.2 The plaintiff further seeks an order that the matter be remitted to the Magistrates’ Court and that the plaintiff’s application to the Magistrates’ Court dated 28 August 2015 in the above mentioned proceeding be considered in accordance with law.
1.3 The plaintiff also seeks such further relief as this honourable court thinks fit.
1.4 The plaintiff seeks costs.
Counsel for the plaintiff conceded on 12 February 2016 that the relief sought in paragraph 1.1 was no longer needed. He submitted that relief pursuant to paragraph 1.2 may still be relevant. In my view, that may have been the case until a final order was made in the proceeding below, but as the proceeding below has now been dismissed relief pursuant to that paragraph is no longer available. Accordingly, no relief is now required or appropriate in respect of the application for judicial review, and indeed the application has now been discontinued.
In those circumstances, it would normally not be necessary to determine the plaintiff’s contentions or to publish reasons. In this particular case, however, I consider that there remains some utility in determining the plaintiff’s contentions and publishing my reasons having regard to the application by the plaintiff for a certificate under the Appeal Costs Act 1998 (Vic). My reasons may also be of some public interest. Further, although I have reached my conclusions without the benefit of a contradictor, the plaintiff argued his case fully; I gave a second opportunity to the defendants to appear after noting in Other Matters in my order of 3 December 2015 that the plaintiff’s contentions were at least strongly arguable; and neither defendant sought to take up that opportunity. In fact, to the contrary - relief in this Court became unnecessary only because, after the institution of this proceeding and my orders of 3 December 2015, the first defendant agreed to restore the original interim order, and Magistrate Goldsbrough accepted that the plaintiff was correct in his contention that the variation of 7 September 2015 was beyond power. In other words, the plaintiff was successful in his contentions.
Jurisdictional error
I deal first with the submission that the order was made beyond power. In Craig v The State of South Australia (‘Craig’)[18] the High Court held that certiorari lies for jurisdictional error, but not for non-jurisdictional error. In the subsequent decision of Re Refugee Review Tribunal; Ex parte Aala[19] (‘Aala’) the Court described the difference between the two species of error as follows (emphasis added):
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.[20]
[18]Craig v The State of South Australia (1995) 184 CLR 163 [175]-[176].
[19](2000) 204 CLR 82.
[20]Aala, at [163].
In Craig, the High Court held that the distinction between jurisdictional and non-jurisdictional errors requires different application as between inferior courts, on the one hand, and tribunals on the other. More recently, the High Court in Kirk v Industrial Court of New South Wales (‘Kirk’)[21] identified some difficulties that may arise from this distinction, but did not abandon it or reconsider Craig. In Craig, the ambit of jurisdictional error in the case of an inferior court, such as here and in Kirk, was relevantly identified in these terms (emphasis added):
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. …[22]
[21](2010) 239 CLR 531; [2010] HCA 1.
[22]Craig at [177].
The Magistrates’ Court is a creature of statute. It has no inherent jurisdiction. Accordingly, the starting point for consideration of jurisdictional error is the nature and extent of jurisdiction of the Magistrates’ Court in relation to family violence intervention orders as conferred on it by statutory instruments.
Section 100 of the statute that creates the Magistrates’ Court, the Magistrates’ Court Act 1989 (Vic), confers jurisdiction on that Court in civil proceedings. Paragraphs (a)-(c) of s 100(1) confer jurisdiction in relation to causes of action for damages, debt or liquidated demand and equitable relief. Paragraph (d) of s 100(1) confers jurisdiction:
to hear and determine any other cause of action if the Court is given jurisdiction to do so by or under any Act other than this Act.
Jurisdiction to hear applications for family violence intervention orders is conferred on the Magistrates’ Court by the Family Violence Protection Act 2008 (Vic) (‘the Protection Act’ or ‘the Act’). Section 42 of the Protection Act requires that an application for a ‘family violence intervention order’ must be made at the proper venue of the Magistrates’ Court or the Children’s Court. Section 170 of the Protection Act provides that, with some limited exceptions, including s 100(1)(d), provisions in the Magistrates’ Court Act 1989 (Vic) in relation to civil proceedings and rules made under that Act in relation to civil proceedings do not apply to proceedings under the Protection Act.
Accordingly, powers in relation to interim family violence intervention orders or the required or permitted procedure generally of the Magistrates’ Court in a civil proceeding under the Protection Act must be found in the Protection Act, or in rules made under it. The relevant rules are the Magistrates’ Court (Family Violence Protection) Rules 2008 (Vic) (‘the Protection Rules’).
I now turn to the Protection Act, and to the extent required, the Protection Rules, as they apply to the proceeding below.
Family Violence Protection Act 2008 (Vic)
Section 1 states the purpose of the Protection Act as follows:
The purpose of this Act is to—
(a)maximise safety for children and adults who have experienced family violence; and
(b) prevent and reduce family violence to the greatest extent possible; and
(c)promote the accountability of perpetrators of family violence for their actions.
Provisions in the Protection Act must be read as informed by this purpose. The emphasis placed on protection of victims of family violence is also apparent in the Second Reading Speech when the Bill for the Protection Act was introduced into Parliament[23] and Explanatory Memorandum. In my view, the survey of provisions of the Protection Act that follows shows that Parliament’s intention was to set out explicitly and exhaustively the provisions that apply, amongst other matters, to the making of an application for a family violence intervention order; the making of orders, including an interim order; the duration of such an interim order; the circumstances in which an interim order comes to an end; and the limited circumstances in which a family violence intervention order may be varied or revoked.
[23]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2644 (Rob Hulls, Attorney General).
It is important to bear in mind in considering these provisions that the definition of ‘family violence intervention order’ in s 11 of the Protection Act is not limited to a ‘final order’ (as then further defined by s 11(2)). The phrase also includes ‘an interim order’, as then further defined by s 11(3) for the purposes of the Act to be an order
(a)made under section 53, including an order made under section 53 as varied under section 100; and
(b)made under section 101 that varies a family violence intervention order.
In other words, the limitations the Protection Act places upon variation of a family violence intervention order also apply to the variation of an interim order.
Section 53 confers power to make an interim order after an application for a family violence intervention order is filed and prior to final hearing of the application. Section 53(1) relevantly provides that the Court may make an interim order if:
(a)a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application –
(i) to ensure the safety of the affected family member; or
(ii)to preserve any property of the affected family member; or
(iii)to protect a child (whether or not the child is an affected family member who has been subjected to family violence committed by the respondent; or
(b)a person has applied to the court for a family violence intervention order and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application; or
(c) (not here relevant)
The Second Reading Speech states that:
Interim intervention orders are designed to provide short-term, speedy protection to victims of family violence until the court can hear all the evidence and make a final determination…Interim intervention orders can be made without the respondent present but are only effective once they are served on the respondent.[24]
[24]Ibid, 2646.
The second sentence quoted above reflects ss 54 and 123 of the Protection Act. Section 54 provides that an interim order may be made in the absence of the respondent and whether or not the respondent has been served with a copy of the application. Section 123 creates the offence of contravening a family violence intervention order, but only (in the case of an interim order) if the respondent has been served with a copy of the order or has been given a written explanation of the order.
Section 55 sets out the evidentiary requirements for making interim orders. Section 55(1) relevantly provides that:
The court must not make an interim order, other than an order referred to in s 53(1)(b), unless –
(a) the application is supported by oral evidence or an affidavit; or
(b) [not here relevant]; or
(c) [not here relevant].
Section 65 of the Protection Act gives a court general power to inform itself as it sees fit, despite rules of evidence to the contrary (with some exceptions), in a proceeding for a family violence intervention order. That power is expressed, however, to be subject to the Act, and so is subject to the express provision for evidence in s 55(1) in relation to interim orders.
Section 59 provides that:
If the court makes an interim order, the court must ensure the hearing is listed for a decision about the final order as soon as practicable.
Section 61 of the Protection Act envisages that applications for a final order may be listed for mention only in the first or subsequent instances (as occurred in this proceeding below). It provides that the court must not proceed to hear a contested application for a final order on a mention date except, inter alia, if all parties consent to such hearing.
Section 60 of the Protection Act provides for the duration of an interim order. It provides that:
An interim order ends –
(a)if the court makes a final order and the final order includes an order that the interim order continues until the final order is served on the respondent, when the final order is served on the respondent; or
(b)if the court makes a final order and the final order does not include an order about the interim order continuing as referred to in paragraph (a), at the time the final order is made; or
(c)if the court refuses to make a final order in relation to the application, at the time of the court’s refusal; or
(d)if the interim order is revoked by the court, at the time of the revocation; or
(e)if the application for the family violence intervention order is withdrawn, at the time of the withdrawal.
It follows from ss 54 and 55 that an interim order may be made ex parte provided the order is supported by oral evidence or affidavit. Here both the sworn application and oral evidence were before Magistrate Hawkins on 28 August 2015. The duration of the order was then determined by s 60. There is nothing in that section or elsewhere in the Protection Act to suggest that an ex parte interim order must or should be revisited by the Magistrates Court on the occasion the matter comes back before the Court after service. The intention of the section, combined with s 100, appears to be that an interim order (including an interim order as varied in accordance with the Act) lasts until a final order is either made and refused, or the interim order is revoked, or the application is withdrawn.
Magistrate Goldsbrough said on 7 September 2015 that she could only make a ‘continuing order’ if she was satisfied that there were grounds. If by this observation she meant that she was required to reconsider the interim order, on this its first return after service, in my view that is incorrect. In my view, if an interim order is to be reconsidered prior to final hearing, and the application has not been withdrawn, recourse must be had to the provisions in the Act dealing with revocation and variation.
Variation or revocation of an order
Both variation and revocation of an order, whether interim or final, are the subject of section 100 of the Protection Act. In keeping with its detailed nature, the Protection Act is divided into Parts, which are then further subdivided into Divisions and Subdivisions, each of which is headed to reflect its subject matter. Section 100 is contained within Division 8 of Part 4 of the Act. Division 8 is headed ‘Variation, revocation and extension of family violence intervention orders’. Subdivision 1 is headed ‘Variation and revocation of family violence intervention orders’ and s 100 is the first section in that Subdivision.
On the basis of the provisions that I will now set out in detail, I accept the submission of the plaintiff that the Magistrates’ Court has no power on its own initiative to vary an interim order made to protect an adult. The Court may only vary or revoke a family violence intervention order on its own initiative, i.e. on its own motion, in relation to certain orders for the protection of a child. In the case of orders for the protection of an adult, and leaving aside variations by consent for the moment, variation or revocation of a family violence intervention order, including even an interim order made ex parte, is only permitted on written application. The persons who may apply to vary or revoke an order include the parties, the protected person (if not a party), or a police officer, but in the case of the respondent to the application the leave of the Court is required.
No application at all, let alone a written application, was made by either the plaintiff or the first defendant, or indeed any other person, to Magistrate Goldsbrough on 7 September 2015 to vary the original ex parte order made on 28 August 2015. She acted on her own initiative. It follows that she acted without power, and the purported variation was liable to be quashed for jurisdictional error.
The Protection Act also specifies certain matters that the Court must consider on application to vary or revoke a family violence intervention order, and that where an interim order is made to vary a family violence intervention order, it must be on evidence. I accept the submission of the plaintiff that Magistrate Goldsbrough also did not observe these requirements.
I now set out the provisions in both the Protection Act and the Protection Rules that make good these propositions, dealing firstly with the need for an application.
Section 100 confers power to vary or revoke a family violence intervention order (which, as noted, includes an interim order), but only on application under that Division, except in some circumstances relating to a child. Section 100(1) provides as follows:
100 Power of court to vary or revoke family violence intervention order
(1)The court may order the variation or revocation of a family violence intervention order on –
(a)an application under this Division; or
(b)its own initiative if the order was made by a court relying on s 53(1)(a)(iii) in relation to a child who was not an affected family member or s 77(2).
Section 101 explicitly confers power to make an interim order on application for a variation of a family violence intervention order. As an interim order is included within the definition of a ‘family violence intervention order’ by s 11 of the Protection Act, the necessity for s 101 is not immediately plain. If the extant order was only an interim order, then the variation would presumably also only be an interim order.
The Explanatory Memorandum states that this provision:
will enable a court to make urgent variations to a family violence intervention order, for example, before the respondent has necessarily been served with the application for variation. An interim variation may be particularly useful if there is a family violence intervention order in place without an exclusion condition and a violent incident occurs after hours necessitating the exclusion of the respondent.[25]
[25]Explanatory Memorandum, Family Violence Protection Bill 2008, Clause 101.
It may have been envisaged that s 101 would make it plain that if the application for variation relates to a final order, the initial variation may be on an interim basis.
Who may apply to vary or revoke a family violence intervention order, and in what manner, are set out in Subdivision 3 of Division 8 of Part 4, which is headed ‘Application to vary, revoke or extend the family violence intervention order’, and in the Protection Rules.
The first section in that Subdivision, s 108, specifies who may apply to vary, revoke or extend a family violence intervention order. Section 108(1) provides as follows:
108(1) An application to vary, revoke or extend a family violence
intervention order may be made to the court by –
(a)a party to the proceeding in which the order was made; or
(b)if the protected person is a child –
(i)a parent of the child, other than the respondent for the order; or
(ii)any other person with the written consent of a parent of the child, other than the respondent for the order; or
(c)if the protected person is a child who is 14 years of age or more, the protected person with the leave of the court; or
(d)if a police officer was not a party to the proceeding in which the family violence intervention order was made, a police officer; or
(e)if the protected person has a guardian and the guardian was not a party to the proceeding in which the family violence intervention order was made, the guardian.
Section 109 limits the circumstances in which a respondent may apply to vary or revoke a family violence intervention order. It provides as follows:
109(1) For the purposes of section 108(1)(a), the respondent for a
family violence intervention order may apply for the variation or revocation of the order only if the court has given leave for the respondent to make the application.
(2)The court may grant leave under subsection (1) only if the court is satisfied that –
(a)there has been a change in circumstances since the family violence intervention order was made; and
(b)the change may justify a variation or revocation of the order.
The Explanatory Memorandum states that the purpose of the requirement for a change in circumstances is:
to ensure that respondents cannot use the variation and revocation proceedings to further harass the protected person with baseless applications.[26]
[26]Ibid, Clause 109.
The required link in s 109(2)(b) between the change in circumstances and a need for variation may mean that the mere fact that the respondent disputes the evidence given by the applicant about the original circumstances to obtain an ex parte interim order is not in itself sufficient to justify a grant of leave to the respondent to seek to vary the interim order, unless the circumstances since the making of the original order have changed.
Sections 110 and 111 provide for applications by a police officer and for limited circumstances in which an application may be made by other persons with the consent of the protected person, a guardian of a protected person or a parent of a protected person who is a child.
In relation to the manner of application, r 4.05 of the Protection Rules stipulates the particulars that must be included in an application for (inter alia) variation or revocation of a family violence intervention order and s 113 of the Protection Act imposes an obligation on the registrar of the court to serve a copy of such an application on certain persons, including each party and the protected person. It is plain from these provisions that the application for variation or revocation is intended to be in writing.
In considering an application to vary a family violence intervention order or in determining whether to vary an order in the limited circumstances in which it may do so on its own initiative, the Court is required by s 100(2) to have regard to certain matters. Section 100(2) provides as follows:
(2)In deciding whether to make an order under subsection (1), the court must have regard to all the circumstances of the case and, in particular, the following –
(a)the applicant’s reasons for seeking the variation or revocation;
(b)the safety of the protected person;
(c)the protected person’s views about the variation or revocation;
(d)whether or not the protected person is legally represented;
(e)if the protected person has a guardian, the guardian’s views.
(3)If the court decides not to grant an application for the revocation of a family violence intervention order, the court may instead order the variation of the family violence intervention order in the way the court considers appropriate.
Where the power to vary is exercised under s 101, s 101(2) provides that the provisions set out earlier in the Act in relation to the making of an interim order prior to final hearing apply, including the matters of which the court must be satisfied set out in s 53.
In addition to the matters set out in s 100(2) or s 53 (as the case may be) the Court is required to also consider the additional matters set out in s 102 before varying or revoking a family violence intervention order. The stipulated matters are directed to changes in the circumstances since the making of the order under consideration. Section 102 relevantly provides as follows:
102Additional protection in varying or revoking orders
(1)Before varying or revoking a family violence intervention order, the court must decide whether –
(a)there has been any change in the need to protect another person protected by the order from being subjected to family violence by the respondent for the family violence intervention order; and
(b)there are any other persons who, since the order was made, have become family members of the respondent for the family violence intervention order or protected person; and
(c)there are any Family Law Act orders in existence in relation to –
(i)where and with whom a child who is a person referred to in paragraph (a) or (b) lives; or
(ii)the respondent for the order spending time with or communicating with the child.
(2)The court may refuse to vary or revoke the family violence intervention order, or may vary the order in a way that differs from the variation sought in the application, if the court is satisfied, on the balance of probabilities, that it is necessary to do so to ensure the safety of another person protected by the order.
The transcript of the hearing on 7 September 2015 does not show that Magistrate Goldsbrough considered these necessary matters. The Magistrates’ Court file shows that the only material before her to consider in addition to what was said before her were the original application (the facts in support of which were sworn in that document to be true by the plaintiff) and the Decision Sheet for 28 August 2015. The plaintiff also gave sworn evidence before Magistrate Hawkins, which considerably elaborated the matters stated in the application, but no transcript of this evidence was before Magistrate Goldsbrough and the Decision Sheet for 28 August 2015 does not contain any detail of it. It appears from the transcript that Magistrate Goldsbrough initially took the view that the application was only concerned with the protection of property.[27] Both counsel for the plaintiff and the plaintiff told her that that was not the case and that he was concerned for his personal safety as well.[28] The Magistrate acknowledged that on his account what had occurred was unacceptable. If there had been an application for variation before her, she would have been required to consider the need for variation against those safety concerns, and also consider whether there had been any change in the need for protection. There is no indication on the transcript that she did so. She appears to have been guided by her own view as to the necessity for the conditions in the original interim order.
[27]Court book, at 35.
[28]Court book, at 36-37.
For all these reasons, the plaintiff has been successful in his contention that the Magistrate acted without power.
Other asserted error
The plaintiff has also asserted breach of procedural fairness and error of law on the face of the record. Given that the plaintiff has succeeded in relation to jurisdictional error, it is not necessary to express a concluded view in relation to these asserted errors. As I noted in my stay order of 3 December 2015 that these contentions, in addition to the contention of jurisdictional error were strongly arguable, I will, however, make some brief remarks.
The Magistrate alerted the parties at an early stage to her concern that there were limited grounds for a ‘continuing order’, and reiterated that view after hearing from them. She did not, however, at any time before announcing the changes that she would make to the order explicitly foreshadow that she would change it, or how. She simply announced those changes after the parties came back before her after discussions between them, without giving them the opportunity to address her on the proposed changes or call evidence in relation to them. Had the Magistrate had power to vary the order on her own initiative, I consider it strongly arguable that procedural fairness would have required her to give the parties that opportunity.
The asserted error on the face of the record, being the order as authenticated, relates to the absence of a condition in the varied order that the respondent not commit family violence against the protected person. Given the clear purpose of the Protection Act, it is surprising that such a condition was not imposed (if that was in fact the Magistrate’s intention), and it was on this basis that I expressed the view that the asserted error was arguable. I also note that the omission may have been an unintended error, which the Magistrate may have been able to correct.[29]
[29]Pursuant to the power of amendment in r 15.03 of the Protection Rules.
Since making the stay order, I have considered the Act in far more detail and note that s 81 permits the inclusion of such a condition, but does not require it. Accordingly, in the absence of detailed argument on the point, I do not express a view as to whether or not a family violence intervention order must necessarily contain a provision prohibiting the commission of family violence.
Could the Magistrate have corrected the error?
The plaintiff commenced this proceeding because his legal advisers formed the view that the Magistrate herself could not correct the order she had made without power. Whether or not that view was correct would have been relevant to the exercise of the discretion to grant prerogative relief. As events transpired, the plaintiff did not seek the final relief that the interim variation made without power be quashed, as after the first orders made in this proceeding the parties below consented to an interim order in the original form.[30] Accordingly, it is not necessary to reach a concluded view on whether or not the plaintiff could have invited the Magistrate to herself correct her error, and whether she had power to do so. As the necessity to bring this proceeding may bear on success of the plaintiff’s application under the Appeal Costs Act 1998 (Vic), however, I make the following observations.
[30]Whether or not the parties could effectively consent on an oral application to vary the interim order or restore the earlier order was not argued before me. Sections 100 and 101 require an application under that Division, and as noted, the Division appears to require a written application, although if the variation is an interim order made under s 101 then ss 53(1)(b) and 55 would allow it to be made without evidence or determination as necessary by the magistrate.
There was discussion on this point between counsel for the plaintiff and the Magistrate when the proceeding below returned on the mention date of 4 December 2015. The Magistrate suggested that she herself could rectify the issue; and counsel for the plaintiff explained that the proceeding in this Court had been commenced because she could not, being functus officio.[31]
[31]Solicitor prepared transcript of 4 December 2015, being Exhibit D, at unnumbered p 3.
The issue as to whether an inferior court or tribunal has power to itself rectify an order made without power was considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (‘Bhardwaj’)[32] and by the Court of Appeal in DPP v Edwards (‘Edwards’).[33] Bhardwaj concerned a tribunal, not an inferior court, whereas Edwards concerned an inferior court of record, the County Court. In Edwards, a judge of the County Court had imposed a sentence that he later realised was beyond power, and had the matter brought back before him after the incorrect sentence had passed into record, and purported to replace it with a sentence within power. In Bhardwaj, the High Court accepted that the tribunal there concerned could correct an error when by reason of that error it had failed to discharged its statutory function. In Edwards, by contrast, the Court of Appeal by majority (Weinberg JA and Williams AJA) held that the judge had become functus officio, and could not correct his error. The error could only be corrected on appeal (or, if applied to this case, on judicial review). The Chief Justice, in the minority, disagreed.
[32](2002) 209 CLR 597.
[33][2012] VSCA 293.
As is shown by this difference of opinion, and the detailed consideration of the authorities in each of the majority and minority judgments, the issue is a complicated one, which involves competing policy considerations (certainty of the effect of an order, even if made in error, as opposed to the utility of speedy correction by the same tribunal or court, without the necessity for appeal). Further, there may be a distinction in relation to correction of error between the Magistrates’ Court and the County Court. The majority in Edwards noted that the principle of functus officio is ‘applicable to all courts of record’ and that, by virtue of s 35 of the County Court Act 1958 (Vic), the County Court is a court of record.[34] There is no comparable provision in the Magistrates’ Court Act 1989 (Vic), although this may not be necessary if it is sufficient for the doctrine to apply that an order has been drawn up as the record of the Court.[35]
[34][2012] VSCA 293, at [159] and [160] per Weinberg JA and Williams AJA.
[35]Ibid, at [158] and [159].
Subject to this possibility, which was not the subject of submission before me, I consider that Edwards applies, and so counsel for the plaintiff was correct, and the Magistrate could not correct an order she had made without jurisdiction, once that order had entered into the records of the Court and correctly reflected her intention.[36] It follows that the impugned order could only be corrected on appeal or review.[37] Appeal was not available as the order was not a final order, as is required for appeal on a question of law pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic). This proceeding was commenced on a correct view of the law.
Application under the Appeal Costs Act 1998 (Vic)
[36]The Magistrate may have been able to make a slip rule correction to her order pursuant to r 15.03 of the Protection Rules.
[37]Or, subject to my earlier comments, by consent, here given only after the commencement of the proceeding.
The plaintiff made an application for costs as against the first defendant on 12 February 2016, on the basis that he did not anticipate further attendance, although the proceeding was not formally finalised until 7 April 2016. I refused that application for reasons given at the time, and now revised and provided to the plaintiff with these reasons. In short, although the plaintiff had been vindicated in his concerns I did not consider that an order for costs should be made against the first defendant when she had not entered an appearance in the proceeding.
The plaintiff then made an application for a certificate under s 7 of the Appeal Costs Act 1998 (Vic). That section provides a limited right of recovery to a successful appellant in an appeal on a question of law from an order made in a civil proceeding in the Magistrates’ Court where this Court refuses to order the respondent to pay the appellant’s costs. As it is a precondition of the section that the respondent has not appeared in the proceeding below, or in the appeal, the section appears especially apposite where a costs order is refused because of non-appearance on the appeal.
Section 7 provides as follows:
Application by successful appellant for grant of indemnity certificate in certain circumstances
(1) If—
(a)there is an appeal against the decision of the Magistrates' Court in a civil proceeding to the Supreme Court on a question of law; and
(b)the respondent does not appear either in the proceedings before the Magistrates' Court or on the appeal; and
(c)the appeal succeeds but the Supreme Court refuses to order the respondent to pay the appellant's costs of the appeal —
the appellant may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
(2)Subject to subsection (3), an appellant granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the appellant in the approved form—
(a)an amount equal to the appellant's own costs of the appeal as assessed by the Board on a party and party basis, or as agreed to by the Board and the appellant; and
(b)if the costs referred to in paragraph (a) are assessed, an amount equal to the costs incurred by the appellant in connection with the assessment.
(3)The maximum amount payable to an appellant pursuant to an indemnity certificate granted under subsection (1) is $2000 or any other amount that is prescribed.
No amount has been prescribed under s 7(3), and accordingly the right of recovery is limited to $2,000.
This proceeding is not an appeal in the usual sense of that word. However, ‘appeal’ has an extended definition in the Appeal Costs Act 1998 (Vic). It is defined in s 3 of that Act as follows:
appeal includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated
In Dawson and ors v Bethonga Whole Foods to Pty Ltd and anor (‘Dawson’)[38] Cavanough J reviewed the authorities on the definition and adopted and confirmed the approach previously taken that an application under O 56 seeking relief in the nature of certiorari is an ‘appeal’ within this extended definition.[39]
[38][2009] VSC 172.
[39]Dawson at [27].
This proceeding was brought in relation to alleged errors of law, including jurisdictional error, and so falls within the description of an appeal ‘on a question of law’. Although it became unnecessary to make an order quashing the impugned order below for jurisdictional error, as I have set out in these reasons the plaintiff has been successful in establishing that error.
I was initially troubled by the requirement in s 7(1)(b) that the respondent not have appeared ‘either in the proceedings before the Magistrates’ Court or on the appeal’. My concern was that this may require that the respondent, here the first defendant, did not appear both below and in this Court. Having heard submissions from counsel for the plaintiff on this point, however, I accept his submission that if that is what was intended, the word ‘both’ would have been used, rather than the word ‘either’. The use of the word ‘either’ indicates that non-appearance in one or the other court is sufficient. Neither counsel nor I could identify any previous authority on s 7, but the interpretation advanced by counsel and accepted by me is consistent with the policy of the Act, identified by the then Attorney-General in her Second Reading Speech when introducing the Bill for the Act as being to reform the justice system ‘so that it is accessible and efficient’.[40]
[40]Victoria, Parliamentary Debates, Legislative Assembly, 8 October 1998, 458 (Jan Wade, Attorney General).
For these reasons, I consider that all requirements for the grant of a certificate under s 7 are here met.
Section 7 confers a discretion on the Court as to whether to grant a certificate. In Eureka Funds Management Limited and anor v Freehills Services Pty Ltd (No 2),[41] Cavanough AJA, with whom Neave and Redlich JJA agreed, considered the exercise of the discretion to grant an indemnity certificate under s 4 of the Act. That section empowers the Court to grant an indemnity certificate to a respondent who has been ordered to pay the costs of a successful appellant. Section 5(2) provides that the maximum amount payable to a respondent granted an indemnity certificate under s 4 is $50,000 or any other amount that is prescribed.
[41][2008] VSCA 177.
Cavanough AJA held in relation to the grant of a certificate under s 4 that it is not enough that a case fall within the description of the section. The Court must also be satisfied that in all the circumstances it is appropriate to grant a certificate. He noted that ‘(i)t is a discretion to grant, not a discretion to refuse, a certificate’.[42] Cavanough AJA also observed, however, that a ‘relatively generous approach to the exercise of the discretion’ is supported by the Second Reading Speech.[43]
[42]Ibid, at [7].
[43]Ibid.
I consider that no less generous approach should be taken to application for a certificate under s 7, and, indeed, given the very much more limited nature of recovery under that section, arguably even less stringency is required. Here the Court’s discretion should be exercised in favour of the plaintiff. As set out earlier, the proceeding was necessary because the court below could not correct the impugned order. It was successful, both because I have accepted the plaintiff’s submissions and because the court below has done so. The plaintiff did not seek final relief because the first defendant also acquiesced to restoration of the earlier interim order, but she did so only after the institution of this proceeding and its first return date. The amount that the plaintiff can recover under s 7 was likely already incurred by him by that date.
For these reasons, I have granted an indemnity certificate to the plaintiff under s 7.
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