Meyers (a pseudonym) and Osborn (a pseudonym) v Osborn (a pseudonym)

[2024] VCC 1534

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

LORRAINE MEYERS (a pseudonym)	First Appellant
ARTHUR OSBORN (a pseudonym)	Second Appellant
v
TARA OSBORN (a pseudonym)	Respondent

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 October 2024
CASE MAY BE CITED AS:	Meyers (a pseudonym) and Osborn (a pseudonym) v Osborn (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1534

REASONS FOR JUDGMENT
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Subject:Appeal against family violence intervention order and personal safety intervention order

Catchwords:              Intervention order appeal – where appellant is self-represented litigant – legal, factual or discretionary error – appeal against refusal of costs order

Legislation Cited:      Family Violence Protection Act 2008 (Vic); Personal Safety Intervention Order Act 2010 (Vic)

Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; DeVries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Gett v Tabet (2009) 254 ALR 504; WS v Gardin [2015] WASC 97; Jan v Minister for Home Affairs [2019] FCA 1837; De Winter v De Winter (1979) 23 ALR 211; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 10; Carroll v Browne [2018] VSC 253

Judgment:                  Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Ms Meyers, in person
Mr Osborn, in person
For the Respondent	Ms Osborn, in person

HIS HONOUR:

1The appellants appeal from orders in the Magistrates’ Court made on 4 May 2023 that denied them costs in accordance with s154 of the Family Violence Protection Act 2008 (“FVPA”).

Relevant factual background

2The relevant factual background does not need to be set out in any great detail.  This is because the dispute before the Court is as to whether the Learned Magistrate made the correct order in denying the appellants’ application for costs.

3Broadly speaking, it appears that the respondent Tara and Arthur Osborn[1] are brother and sister.  A family dispute arose in 2022, and Arthur and Tara Osborn “had disagreements”.  It appears that at some point police were called, and separated brother and sister.

[1]        A pseudonym

4In due course Tara Osborn lodged an application for an intervention order (“FVIO”) against the appellants.  Almost immediately the appellants engaged solicitors who resisted the application.  The procedural history does not need to be set out in great detail save to note that the appellants’ solicitors wrote almost immediately on receipt of the interim order advising the respondent that the claim was without merit and ought be withdrawn.

5Many subsequent adjournments of the respondent’s application then occurred.  At one point, Magistrate McNamara suggested strongly to the respondent that she obtain legal advice as it might be best to withdraw the application and if she was then unsuccessful a costs order maybe made.  In any event, the respondent did not obtain legal advice, but ultimately came to withdraw the application before Magistrate Klestadt.  At that time an application for costs was made by the appellants.  It was denied.  It is that ruling on costs that is the subject of appeal.

6The appeal to this Court is governed by the principles elucidated in the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”).[2]

[2][2023] VSC 13

7In that decision, his Honour considered the terminology associated with s119 of the FVPA and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing.

8The features of such a broad appeal, as his Honour John Dixon J set out, are the following:

(a)   that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[3]

(b)   the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[4]

(c)   the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[5]

(d)   the Court is required to assess and evaluate the evidence for itself.[6]

[3]AAA at [50]

[4]Ibid

[5]Ibid

[6]Ibid

9However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[7]

[7]Ibid at [54]

10As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[8]  He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal.  It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence.  He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[9]

[8]Ibid at [63]

[9]Ibid at [51(b)], relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 at [65]

11Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court.  Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.

12To that extent, the Court and the parties have received the relevant transcript of hearings before Magistrate McNamara and Magistrate Klestadt. I have considered all the relevant material and the submissions of the parties.

Errors of law, fact and discretion

13What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[10]With that said, established legal principles operate to guide the courts through an assessment of claimed errors.  I turn now to briefly consider those.

[10]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833

Legal error

14A legal error may arise in the way in which a court “undertakes its fact-finding … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[11]

[11]Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]

15Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[12]

[12]Ibid

Factual error

16A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[13]  A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[14]

[13]DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479

[14]Ibid

17The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[15]

“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law.  Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.  Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”

[15](2019) 266 CLR 129 at [55]

18Similarly, in Blunt v Blunt[16] it was said:

“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”

[16][1943] AC 517 at 526

Discretionary error

19Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.

20The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[17]

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[17](1936) 55 CLR 499 at 504-505

Complaints as to conclusion

21Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general “tenor” of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.

22To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[18]

[18]Gett v Tabet (2009) 254 ALR 504 at [22]

23In Gett v Tabet, Allsop P, Beazley and Basten JJA explained:[19]

“Where no error can be identified and the conclusion of his Honour is not itself implausible, this court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.”

[19]Ibid

24In circumstances where an error is identified, to succeed on appeal it must be established that the identified error puts the validity of the conclusion in doubt.  If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[20]

[20]WS v Gardin [2015] WASC 97 at [138]-[139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at [48]

25The High Court in De Winter v De Winter[21] clarified the circumstances in which such an error would affect the ultimate decision on appeal:

“There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.

It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters.  A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion.  But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons themselves have been sufficient to support it.  The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.”[22]

(Emphasis added.)

[21](1979) 23 ALR 211

[22]Ibid at 217-218

26Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[23]

[23]Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101 at [20]-[21]

27Having set out those principles, I now turn to the grounds of appeal pressed in this matter.

28The parties both filed submissions for the preliminary hearing.  I determined to hear the matter on the papers, given the limited scope of the dispute between the parties.

The Grounds of Appeal

29Dealing with each of the appellants’ grounds for review.

30I accept that this Court has jurisdiction to hear such appeals as to costs.[24] At paragraph 4 of the submissions, under the heading paragraph A, the appellants complain in the following terms:

“The FVIO applications were frivolous, vexatious or made in bad faith.”

[24]Carroll v Browne [2018] VSC 253

31It can be seen immediately that the complaint is one as to conclusion.  There is no particular legal, factual, or discretionary error alleged.  This can be seen in the dot point immediately under the initial complaint where it is stated:

“His Honour (Magistrate Klestadt) came to the wrong decision in holding that the FVIO applications were not made vexatiously.”

32When regard is had to the transcript at T19, L21-26, his Honour stated:

“Rather, I’m satisfied that Ms [Osborn] is genuinely aggrieved by the conduct of the respondents but that that does not rise to the level of family violence which would enable the court to make an order on the basis of the material currently before the court.”

33It is clear that his Honour engaged with the terms of the Act and made a particular finding that the application was not frivolous or vexatious, but was founded, in fact, on the appellant’s genuine sense that she had been wronged.  He went on to comment that her failure to have legal representation meant that she did not properly understand the legal tests set out by the Act, and therefore this led to a prolongation of the proceedings.  This, however, did not mean that the proceedings were frivolous or vexatious from the outset.

34There is no error demonstrated in that reasoning process.

35The conclusion under point A is in similar terms.  It states:

“Given the events of this case, there are exceptional circumstances that warrant an award of costs ...”

36This once again is a complaint as to conclusion.  The magistrate made it plain at T19, L5-8, that his finding was that there was nothing exceptional about this particular case.  That was a finding well open to a magistrate who regularly hears and decides matters such as this.  It also accords with the procedural history of this matter, which his Honour alluded to when noting that the matter had resolved well within the usual time-frame that such applications often take, especially where one party is self-represented.

37No error of the kind alleged is demonstrated.

38Turning to point B on page 4 of the submissions.  This appears to allege a breach of procedural fairness, in that the magistrate is alleged to have had a private hearing with the respondent.  This can be seen at T2- T6.  It appears that the respondent did not appear on videolink at the time the matter was called.  His Honour then stood the matter down, and the appellants’ counsel left the link.  At that time, fortuitously, the respondent appeared on the link, and the magistrate had a short conversation with her to indicate the matter would be called back at 11.30.  The magistrate attempted to indicate to her the parameters of the debate which would occur on the resumption.  He concluded, however, by indicating that it was important that the appellants’ counsel put all matters in open court.[25]

[25]T4, L22-25

39I consider the magistrate was doing no more than fulfilling an administrative function, and in fact reinforced with the respondent that it was important that the appellant put matters directly in open court.  The magistrate further informed the appellants’ counsel of what was disclosed by the respondent when the matter resumed. Furthermore, it is not said in what way this interchange may have affected the result.  For this reason, I would not accept (a) there has been a denial of procedural fairness and (b) specifically that any failure in procedural fairness has materially affected the outcome.

40As to the assertion that the magistrate used “Google” to detail some of the legal principles, I would not accept that characterisation of what the magistrate did.  The magistrate clearly referred to the correct sections of the Act when coming to his decision.  That was what was required of him.

41As to the assertions under paragraph C, these allege administrative errors at the Sunshine Magistrates’ Court which, it is alleged, lengthened the proceedings unnecessarily.  I do not consider this comes within the ambit of an appeal under the Act, and I will not consider this matter further.

42For the reasons above, I will dismiss the appeal.

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