L v L - [2016] VSC 182

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…

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 L v L

Details

AGLC: L v L [2016] VSC 182
Case: [2016] VSC 182
Decision Date: 14 April 2016

CaseChat Overview and Summary

In the matter of L v L, the Supreme Court addressed the legality of the Magistrates’ Court's decision to vary an interim family violence intervention order. The case involved an application by the respondent for the protection of an adult, which was initiated by the Magistrates' Court on its own initiative. The primary concern was whether the Magistrates' Court had the authority to alter the order without the applicant's consent or an application being made.

The court had to determine whether the Magistrates' Court had the power to vary the interim family violence intervention order on its own initiative. Under the Family Violence Protection Act 2008 (Vic), variations to such orders are generally contingent upon an application or consent. The court examined whether the Magistrates' Court was acting within its legislative mandate when it altered the order without these prerequisites. It also considered the interplay between statutory provisions and procedural rules outlined in the Magistrates' Court (Family Violence Protection) Rules 2008 (Vic).

The court concluded that the Magistrates' Court acted without authority in varying the interim family violence intervention order on its own initiative. It found that the statutory framework and procedural rules necessitate either an application or the consent of the protected person for such variations. The court's decision was grounded in a strict interpretation of the relevant statutes and rules, emphasizing the necessity for adherence to prescribed procedures to ensure the protection of the rights of the parties involved. As a result, the order made by the Magistrates' Court was held to be invalid.

The court also addressed the procedural matter of whether a transcript of the lower court proceedings must be prepared by an authorised transcription service for the purposes of judicial review. It found that there was no statutory requirement mandating the use of such a service. The transcript prepared in a solicitor's office and checked by the solicitor was deemed acceptable for the review process. Furthermore, the court granted a certificate under the Appeal Costs Act 1998 (Vic) for costs on successful judicial review where no appearance was made by the defendants.

Orders