MNX (a pseudonym) v TNV (a pseudonym)
[2022] VSC 592
•7 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01221
| MNX (a pseudonym) | Plaintiff |
| v | |
| TNV (a pseudonym) (and others according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 August 2022 |
DATE OF JUDGMENT: | 7 October 2022 |
CASE MAY BE CITED AS: | MNX (a pseudonym) v TNV (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 592 |
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FAMILY VIOLENCE PROTECTION – Judicial review – Interim family violence intervention order – Application by police officer to withdraw from intervention proceeding– Application to revoke or vary interim order – Legal unreasonableness – Procedural fairness – Whether failure to afford procedural fairness was material – Proposed hearing of revocation and variation applications at the same time as application for final orders – Rights of appeal – Fragmentation of proceedings in the Magistrates’ Court – Family Violence Protection Act 2008 (Vic), preamble, ss 1, 2, 4, 53, 57(1)(d), 59, 60, 65(1), 74(1), 96, 100, 102, 108, 109, 114, 115, 119 170(1) – Magistrates’ Court Act 1989 (Vic) ss 1, 109, 128(1) – Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) r 4.08.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Holdenson KC with Mr C Wareham | Galbally & O’Bryan |
| For the First Defendant | Ms S Fitzgerald | Victorian Government Solicitor |
| For the Second Defendant | Ms G Costello KC with Ms E Poole | Women’s Legal Service Victoria |
HIS HONOUR:
Introduction
The plaintiff, MNX (a pseudonym), seeks judicial review of a decision of the Magistrates’ Court of Victoria refusing to grant TNV (a pseudonym), a police officer, leave to withdraw an application for a family violence intervention order against MNX (‘intervention proceeding’), and at the same time granting MNX leave to apply for revocation or variation of an interim family violence intervention order (‘interim order’). The interim order was made on 1 September 2020 on the application of TNV. The affected family members and protected persons were MNX’s former wife, SDW (a pseudonym), and their infant son.[1]
[1]The publication of the names or the identities of parties or witnesses to family violence protection proceedings, or of children the subject of protection orders is prohibited. See s 166(2) of the Family Violence Protection Act 2008 (Vic).
A family violence incident was admitted by MNX. The prosecution and defence agreed statement of facts for a diversion application in the Magistrates’ Court stated that there had been an incident involving MNX and SDW on 29 August 2020 where MNX placed his hands on SDW’s neck for two to three seconds causing her pain. SDW scratched MNX’s neck causing a laceration across his throat.
After the incident, MNX and SDW parted. They have gone their separate ways since and have not attempted to reconcile.
Background
The intervention application was made by way of a police family violence safety notice and accompanying affidavit in support. The notice stated that MNX and SDW had been in a relationship for ten years and married for three years. SDW had stated there had been approximately five incidents of a similar nature that had gone unreported over a period of twelve months. According to SDW, MNX stated during the final incident that if SDW called the police, he would kill her before she could speak to anyone. SDW said that MNX was standing on his side of the bed where he kept a large machete. The child was in another room. The supporting affidavit deposed that MNX had consumed alcohol on the night of the incident and had increased his intake of alcohol over the past twelve months.
The interim order prohibited MNX from committing family violence against SDW or their infant son, contacting or communicating with them, approaching within five metres of either of them or twenty metres of their home. The interim order was subject to various exceptions including exceptions permitting MNX to do anything permitted by a Family Law Act order,[2] or communicate with a protected person through a lawyer or mediator. The interim order continued until a final order was made, unless varied or revoked, or if the application for an order was withdrawn.[3]
[2]Family Law Act 1975 (Cth).
[3]Act, s 60.
On 6 September 2021, MNX applied to the Magistrates’ Court to vary the interim order (‘variation application’) by removing the infant son as a protected person. By this time, MNX and SDW had commenced family law proceedings in the Federal Circuit Court.
On 11 February 2022, a senior police lawyer emailed the parties, informing them that Victoria Police would be withdrawing from the intervention proceeding at the next appearance and would not be filing further and better particulars as previously ordered by the Court. The senior police lawyer noted, however, that SDW still wanted and supported an intervention order and believed that the infant son should be protected by an order.
On 16 February 2022, MNX filed an application to revoke the interim order (‘revocation application’) on the basis that Victoria Police had assessed that there was no further risk to either affected family member, and by reason of the ongoing delay in the hearing of the intervention proceeding.
On 24 February 2022, MNX filed and served written submissions in support of the revocation application. The submissions referred to orders made on 5 November 2021 in the Federal Circuit and Family Court of Australia for custody and child sharing as well as orders for treatment and assessment of MNX. MNX requested that the revocation application be determined immediately.
Hearing on 28 February 2022
When the intervention proceeding came on for hearing, junior counsel appeared for MNX and a solicitor from Women’s Legal Service Victoria for SDW. There was no appearance for TNV. Counsel referred to the email from the senior police lawyer advising that Victoria Police would seek to withdraw the intervention application.
Counsel appearing for MNX submitted that the interim order should be struck out. The solicitor appearing for SDW stated that SDW believed that there was still a risk to her safety and to that of their infant son. She said that the senior police lawyer had indicated that should the Court not be minded to amend the intervention application so that SDW became the applicant, the police would remain on the file for a short adjournment so that SDW would have the opportunity to file her own intervention application. SDW’s solicitor submitted that the delays and frustration that had occurred in the proceeding were not SDW’s fault or responsibility and should not prejudice her safety.
The magistrate stated in substance that the question of whether leave should be granted was a two-step process – first, whether MNX should effectively have standing to seek to have the interim order varied or revoked and second, whether Victoria Police should be given leave to withdraw.
The magistrate said that if the police prosecutor or informant wished to withdraw from the intervention proceeding, the Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic) (‘Rules’) required the police prosecutor or informant to make an application for leave.[4] The Court had no material before it from Victoria Police in support of a withdrawal application. The question of whether the Magistrates’ Court had power to substitute a party in a family violence protection matter was a question at large not contemplated by the Family Violence Protection Act 2008 (Vic) (‘Act’). The hearing was adjourned until later in the day.
[4]Magistrates’ Court (Family Violence Protection) Rules 2018 (Vic), r 4.08(1).
When the hearing resumed, the senior police lawyer appeared for TNV, and orally asked for leave for Victoria Police to withdraw as a party to the intervention proceeding on the basis that no further breaches of the interim order had been advised to Victoria Police since 1 August 2021. It was assessed that there was no ongoing risk to SDW and the infant child and there was considerable and ongoing delay in the intervention proceeding. In response to questions from the magistrate, the senior police lawyer advised that SDW had stated that if the interim order was removed she was fearful that family violence would occur. The senior police lawyer added that very serious incidents had occurred, however, given the passage of time and the fact that no further incidents had been reported, Victoria Police had an obligation to review its position as to the litigation.
SDW’s solicitor submitted that the Victoria Police risk assessment did not adequately take into account SDW’s views, nor the very serious risks that existed. The family law proceedings were not finalised. Interim orders were in place, and there were ongoing issues in relation to MNX’s alcohol consumption. SDW’s solicitor submitted that:
(a) evidence was a matter for a contest hearing;
(b) SDW should be given the opportunity to file further and better particulars; and
(c) the interim order should continue for the protection of SDW and the infant son.
The senior police lawyer stated that if the proceeding was adjourned for a contest hearing, the prosecution was not opposed to being a party to the intervention order and would call TNV and be present.
The magistrate advised that she could not take the matter further that day and adjourned the hearing to 10 March 2022.
On 9 March 2022, MNX filed a supplementary submission in support of TNV’s application for leave to withdraw, contending that:
(a) the consequence of TNV’s withdrawal was that the interim order fell away in its entirety;
(b) there was no power to substitute SDW as the applicant;
(c) SDW was not estopped from making her own fresh application to the Court for an intervention order;
(d) a refusal to grant TNV leave to withdraw from the proceeding did not have any impact on MNX’s revocation and variation applications. They were distinct applications that involved separate statutory considerations; and
(e) Women’s Legal Service Victoria had no standing to appear for SDW in the intervention proceeding.
Hearing on 10 March 2022
When the hearing resumed on 10 March 2022, both senior and junior counsel appeared for MNX, the senior police lawyer appeared for TNV, and the solicitor from the Women’s Legal Service Victoria appeared for SDW.
After hearing submissions as to standing, the magistrate observed that the Magistrates’ Court was a busy court, and that the intervention proceeding had been placed in a mention list. She said that when she became aware of this, she requested that the proceeding be fixed for a contest hearing at the earliest possible date.
Senior counsel for MNX noted that Victoria Police had not provided further and better particulars, and that an acting police sergeant would give evidence relating to the application for leave to withdraw.
SDW’s solicitor submitted that it was not uncommon for family violence matters to occur alongside parenting disputes. The parties had not had direct contact about parenting, and it was MNX’s parents who communicated and facilitated MNX’s time with the child. There were interim orders in place for parenting but no final orders. There was a need to negotiate about parenting arrangements moving forward and this increased the risk to SDW as she needed to put her position forward which may be contrary to that of MNX.
The magistrate ruled that she was not in a position to hear evidence then, and would fix the proceeding for hearing. In response to a submission from senior counsel for MNX that the Court should determine whether the intervention proceeding was withdrawn, the magistrate observed that the Court frequently heard affected family members arguing about the position adopted by Victoria Police. The Court moved contested matters to a forum where the ultimate issues, the need for an ongoing order, and the nature of the order could be determined.
The magistrate then stood the matter down to determine the future course of the proceeding.
When the Court resumed, the magistrate made a ruling (‘ruling’), which included the following:
Before the [Court] is an interim order made on [1 September 2020] by this [Court] where a police applicant sought an interim order for the protection of [MNX and the infant son], in circumstances where there is an allegation of …strangulation, which is said to have occurred in the presence of the child. On [18 September 2021], [MNX] filed an application to have the child removed from the order. [SDW] opposed the order of that application at the time. On [11 October 2021] at the [Magistrates’] Court where the parties appeared, the [Court] was told that the Department of Health and Human Services had withdrawn and the police were seeking a safe contact order for the [infant son] and a full no-contact intervention order for the protection of [SDW].
…On [29 October 2021] the matter was adjourned…to come back to this [Court] on [14 January 2022]. On [14 January 2022], … Victoria Police made an application to remove the matter… This was opposed by Women’s Legal Service for [SDW] and [the solicitor for MNX]. On that date, I ordered that in those circumstances, and given the respective wishes of the parties, that the matter should remain in Melbourne and Victoria Police could continue in the matter from this venue.
On that date, I made a further order that Victoria Police file with the [Court] a list of witnesses, together with a summary of evidence relied upon... [a] further order that [MNX] file with the [Court] any material on or before [28 February 2022] on which he proposed to rely… [and that] all parties serve all documents upon the Women’s Legal Service as soon as is practicable. No one opposed those orders at the time. They were made by consent and the matter was adjourned to [28 February 2022] for a directions hearing. This much was requested by [the solicitor for MNX] at the time who sought to have the matter expedited…
…
On [28 February 2022], an application was made by [MNX] to revoke the family violence intervention order on the basis that [TNV] was intending to seek leave to withdraw. At the time the file was handed to me, no such application was before the [Court] and no prosecutor was present in court to make that application. The [Court] accommodated the matter being stood down while the prosecutor made that application, such oral application being made before the [Court]. The [Court] was told, in short compass, that a risk assessment had been made and on the basis of that assessment the police did not support ongoing involvement.
The [Court] had before it written submissions on behalf of [MNX]. The substance of which was to rely on the change of circumstances as required under the [Act], … as a basis for granting his client leave to proceed with his application to revoke. It was contended by the respondent that if the police application fell away then the affected family member was not [estopped] from making her own application for an intervention order which they would vigorously oppose. It is noted that no further and better particulars had, at that stage, been filed by Victoria Police and no explanation was forthcoming on that date, save that is possible that it was because they formed a view that they wished to seek leave to withdraw. I inferred that I had no knowledge of it.
At the end of the proceeding, [the senior police lawyer] indicated that they would remain in the matter and call the informant in any hearing of the matter. That is certainly my recollection and I understand that both [the senior police lawyer and junior counsel for MNX] had a different recollection. I’m not in a position to ventilate that any further, save to say I am aware the informant is here in court but that the [Court] has not yet heard from him and I will turn in a moment to the reasons why. Today this matter comes before the [Court] for any further submissions to be made in circumstances where time was cut short on [28 February 2022] due to the pressure of…business. Today, unfortunately, the matter is listed in a busy mention list and the [Court] has dealt with it the best it can. The [Court] has formulated these reasons over the lunch time break and has done the best it can to take into account the factors bearing upon the decision before it.
Moments before the beginning of the hearing before lunch… I was handed detailed submissions on behalf of [MNX]. I’m told they were filed yesterday. During the hearing of submissions I was handed some material from Women’s Legal Service Victoria on behalf of [SDW]. I heard oral arguments from both parties. [Senior counsel for MNX] raised the issue of Women’s Legal Service’s standing. The [Court] was taken a little by surprise by this issue, in circumstances where Women’s Legal Service have been involved in this matter for some time and without protest by [MNX]. But, nonetheless, Victoria Police indicated that they did not oppose the involvement of Women’s Legal Service and I note that the rules allow for such appearance to be made and I also note that the definition of a party, in section 4, includes an affected family member where the police are the applicant.
There are, clearly, a number of issues to be tried. This matter is hotly contested. The purposes of the [Act] are clearly beneficial and the purpose expressly states that it is to maximise the safety for children and adults who have experienced family violence and to prevent and reduce family violence and promote the accountability of perpetrators. Much higher courts have discussed the [purposive] approach to be adopted in the construing of this legislation. The Interpretation Act requires that the [Court] construe the legislation in line with its purposes. Women’s Legal Service Victoria oppose the police application for leave to withdraw. They assert that the risk [remains] and that the risk would be ongoing in circumstances where interim orders have been made for supervised contact in the [Family Court] between [MNX] and [the infant son].
On that date, Women’s Legal Service Victoria sought that the matter go before the [Court] and be determined on the evidence. They submitted that the risk assessment undertaken was cursory and not focused on the ongoing risk. On behalf of [MNX] it was said that the [Court] should grant the police leave to withdraw… [that] they are [an] unwilling party and that the court should allow them to withdraw and then the matter would fall away and, in the circumstances, [SDW] is not precluded from making any further application which they noted would be opposed. The rules relating to leave to withdraw confer a wide discretion on the [Court]. These applications are also to be construed within the purposes of the Act.
Taking all the submissions made by the parties into account, the contested issues relating to risk and safety, the contested issues in relation to the risk to [the infant son], the role of the police in relation to applications of this kind set out in the [Act], the [Court’s] role in administering the Act and to be fair to each of the parties, the [Court] takes all of these matters into account and, in the circumstances, the [Court] doing the best it can to digest the submissions over the lunch time break, refuses the police application for leave to withdraw. It notes that [the senior police lawyer] did indicate the police would appear at any contested hearing in the future. The [Court] will allow Women’s Legal Service Victoria two weeks to prepare material and hear from [senior counsel for MNX] or his junior as to the time they require to file material in response and then the [Court] will list the matter as soon as possible for an early listing of a hearing of all matters.
In a further exchange with senior counsel for MNX, the magistrate made it clear that while she was refusing leave for the police to withdraw, the revocation and variation applications remained on foot. The fact that Victoria Police had made an oral application to withdraw which had been refused did not impact on MNX’s applications.
Senior counsel for MNX then submitted that if leave were granted for MNX to proceed with his revocation and variation applications, the hearing should proceed immediately rather than wait for the hearing of the application for a final order.
The magistrate stated that she disagreed with senior counsel’s submission, and proposed to hear the revocation application, the variation application and the application for a final order together.
Discussion then ensued as to the directions to be given for further and better particulars to be provided by SDW, and for the filing of material by the parties.
Magistrates’ Court order made on 10 March 2022
The Magistrates’ Court order made on 10 March 2022 (‘orders’), included the following:
1.THE APPLICATION BY VICTORIA POLICE TO WITHDRAW THE APPLICATION MADE ON 01/09/20 FOR THE PROTECTION OF [SDW AND THE INFANT SON] IS REFUSED.
2.THE COURT GRANTS LEAVE TO [MNX] TO MAKE AN APPLICATION TO VARY THE INTERVENTION ORDER MADE ON 01/09/20 (AS VARIED ON 11/10/20), TO REMOVE [THE INFANT SON] FROM THE ORDER.
3.THE COURT GRANTS LEAVE TO [MNX] TO MAKE AN APPLICATION TO REVOKE THE INTERVENTION ORDER MADE ON 01/09/20 (AS VARIED ON 11/10/20).
4.LEAVE IS GRANTED FOR ALL PARTIES TO OBTAIN A COPY OF THE RECORDING OF PROCEEDINGS ON 28/02/22 AND 10/03/22.
5.THE POLICE APPLICANT FILE AND SERVE ANY MATERIAL ON WHICH THEY INTEND TO RELY AND A LIST OF WITNESSES PROPOSED TO BE CALLED AT A FINAL HEARING OF THE MATTER ON OR BEFORE 24/03/22.
6.THAT [SDW] FILE WITH THE COURT DETAILS OF ANY [MATERIAL] ON WHICH SHE INTENDS TO RELY IN SUPPORT OF THE APPLICATION, A LIST OF WITNESSES PROPOSED TO BE CALLED AND A SUMMARY OF ANY EVIDENCE THEY MIGHT GIVE AT THE HEARING ON OR BEFORE 24/03/22.
7.THAT [MNX] FILE WITH THE COURT DETAILS OF ANY MATERIAL IN RESPONSE, A LIST OF WITNESSES PROPOSED TO BE CALLED AND A SUMMARY OF ANY EVIDENCE THEY MIGHT GIVE AT THE HEARING ON OR BEFORE 7/4/22.
8.THE MATTER IS LISTED FOR SPECIAL MENTION ON 8/4/22 BEFORE [MAGISTRATE] TO ASCERTAIN READINESS FOR HEARING AND TO FIX A HEARING DATE.
Grounds for relief
The grounds for relief as set out in MNX’s amended originating motion filed 15 August 2022 may be summarised in the following manner:
(a) the refusal of the magistrate to grant TNV’s application for leave to withdraw was legally unreasonable when regard is had to:
(i) the concessions made by TNV as to the absence of a risk that MNX was likely to commit family violence;
(ii) the failure of the Court to receive evidence from TNV that there was no risk that MNX was likely to commit family violence; and
(iii) the unchallenged submissions made by MNX in support of the application for leave to withdraw (‘Ground 1’);
(b) in refusing TNV’s application for leave to withdraw, the magistrate fell into jurisdictional error in circumstances where:
(i) MNX and TNV were denied procedural fairness when they were not permitted to call available evidence in support of the application to withdraw; and
(ii) the magistrate failed to have any (or any proper) regard to written submissions filed by MNX in support of the application to withdraw (‘Ground 2’); and
(c) the magistrate failed to properly exercise jurisdiction in granting MNX leave to make the revocation and variation applications but determining to hear and determine those applications at the same time as the application for a final order (‘Ground 3’).
The relief sought by MNX includes:
(a) an order in the nature of certiorari quashing the order of the Magistrates’ Court on 10 March 2022 refusing TNV’s application for leave to withdraw; and
(b) an order in the nature of prohibition preventing the Magistrates’ Court from hearing and determining MNX’s revocation and variation applications at the same time as the application for a final intervention order.
In this Court, TNV actively opposed MNX’s application for judicial review, as did SDW. This was despite the fact that it was TNV’s application to withdraw that was refused in the Magistrates’ Court.
Relevant statutory provisions
In the preamble to the Act, Parliament has set out the principles that underpin the Act. They are:
(a)that non-violence is a fundamental social value that must be promoted;
(b)that family violence is a fundamental violation of human rights and is unacceptable in any form;
(c)that family violence is not acceptable in any community or culture;
(d)that, in responding to family violence and promoting the safety of persons who have experienced family violence, the justice system should treat the views of victims of family violence with respect.
In enacting this Act, the Parliament also recognises the following features of family violence –
(a)that while anyone can be a victim or perpetrator of family violence, family violence is predominantly committed by men against women, children and other vulnerable persons;
(b)that children who are exposed to the effects of family violence are particularly vulnerable and exposure to family violence may have a serious impact on children’s current and future physical, psychological and emotional wellbeing;
(c)that family violence –
(i) affects the entire community; and
(ii)occurs in all areas of society, regardless of location, socioeconomic and health status, age, culture, gender, sexual identity, ability, ethnicity or religion;
(d)that family violence extends beyond physical and sexual violence and may involve emotional or psychological abuse and economic abuse;
(e)that family violence may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of abuse over a period of time.
The purpose of the Act is set out in s 1 and 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.
Section 2 provides that the purpose of the Act is to be achieved by:
(a)providing an effective and accessible system of family violence intervention orders and family violence safety notices; and
(ab)providing for the sharing of information that is relevant to assessing and managing a risk of family violence; and
(b)creating offences for contraventions of family violence intervention orders and family violence safety notices; and
(c)providing a framework for achieving consistency in family violence risk assessment and family violence risk management.
In the Second Reading speech for the bill to make the Act, the Attorney-General said:
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. An interim intervention order can be made:
to ensure the safety of the affected family member
to preserve the affect family member’s property
to protect a child who has been subjected to family violence committed by the respondent.
Interim intervention orders can be made without the respondent present but are only effective once they are served on the respondent. In appropriate circumstances, police can use their holding powers to assist with serving the respondent.[5]
[5]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2646 (Rob Hulls, Attorney-General).
Section 4 is the definitions section and contains the following relevant definitions:
‘affected family member’ means the following persons—
(a)a person the subject of an application for a family violence intervention order to protect the person or the person's property;
(b)a person for whom a police officer intends to make an application referred to in section 13(1)(a) or 13A(1)(a) to ensure the safety of the person…;
…
‘party’, to a proceeding under this Act, includes—
(a)the affected family member or protected person for the proceeding, whether or not the person is the applicant for the proceeding; and
(b)if the affected family member or protected person is not the applicant for the proceeding, the applicant; and
(c)the respondent for the proceeding or the respondent who is the subject of an order made in the proceeding;
Section 53 provides for the Magistrates’ Court to make interim orders:
(1) 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
…
(4)The court may make an interim order at any time after the making of an application for a family violence intervention order and before the final decision about the application is made, and may do so whether or not the court has previously made or refused to make an interim order.
Section 59 provides that if a court makes an interim order, the court must ensure that the hearing is listed for decision about the final order ‘as soon as practicable’.
Section 60 provides for interim orders to expire in certain circumstances and is in the following form:
An interim order ends –
…
(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.
Section 65(1) provides that subject to the Act, the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
Section 74(1) provides that a court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
Applications to vary or revoke a family violence intervention order are made under Part 4 Division 8 of the Act. Section 100 provides:
(1)The court may order the variation or revocation of a family violence intervention order on—
(a) an application under this Division; or
…
…
(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;
…
(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.
Section 102 sets out the decisions that a court must make before varying or revoking a family violence intervention order. It is in these terms:
(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.
Section 108 provides for applications to vary or revoke family violence intervention orders to be made by certain specified persons including, under s 108(1)(a), a party to the proceeding in which the order was made.
Section 109 makes provision for leave to be obtained by a respondent to a family violence intervention order before the respondent can make an application for a variation or revocation of a family violence intervention order. Section 109 provides:
(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)Except as provided by subsection (2A), 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; and
(c)in the case of an interim order, it is in the interests of justice that the application be determined immediately, rather than waiting for the hearing of the application for the final order.
(2A)In the case of an interim order made when the respondent was not present—
(a)the court may grant leave under subsection (1) if the court is satisfied that it is in the interests of justice to do so, having regard to the reasons the respondent was not present when the order was made; and
(b)if the court grants leave, it may, instead of varying or revoking the order, set aside the order if the court is satisfied that there are exceptional circumstances that justify setting aside the order.
(2B)Subsection (2A) applies only if the respondent seeks leave within 21 days after the day on which a copy of the order was served on the respondent.
(2C)The court may extend the time referred to in subsection (2B) if the court is satisfied that there are exceptional circumstances.
…
The explanatory memorandum to the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 (Vic) (Act No 33 of 2018) described the addition of s 109(2)(c) to the Act in these terms:
In addition to the existing 2 matters in s 109(2), the court must also be satisfied that it is in the interests of justice that the application be determined immediately, rather than waiting for the final order hearing. This new requirement will act as a filter to manage these applications so that they do not undermine the final order hearing and are not used as an alternative means to seek review of an interim order decision where there is no appeal right.
Section 114(1) of the Act provides that a party to a proceeding under the Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order. The appeal is relevantly to the County Court and is by way of a rehearing.[6]
[6]Act ss 115(1), 119(1).
Section 114(2)(c) of the Act provides that there is no appeal against an interim order or a refusal to make an interim order.
Regulation 4.08 of the Rules deals with the withdrawal of applications for family violence intervention orders. It provides:
(1)An application under the Act may be withdrawn only with the leave of the Court.
(2) A party seeking to withdraw an application must –
(a)file a written notice of withdrawal to be served on the respondent by the registrar; or
(b)if the person attends court, make an oral application to the Court.
The purposes of the Magistrates’ Court of Victoria include purposes intended to ensure fairness, the prompt resolution of court proceedings and the optimum use of the Court’s resources. Section 1 of the Magistrates’ Court Act 1989 (Vic) (‘MC Act’) provides:
The main purposes of this Act are—
…
(c)to provide for the fair and efficient operation of the Magistrates' Court; and
…
(e)to allow for the Magistrates' Court to be managed in a way that will ensure—
(i) fairness to all parties to court proceedings; and
(ii) the prompt resolution of court proceedings; and
(iii) that optimum use is made of the Court's resources.
Section 109 of the MC Act provides for parties to civil proceedings in the Magistrates’ Court to appeal to the Supreme Court on a question of law from a final order of the Court.[7] Section 109 makes no provision for appeals to the Supreme Court from orders of the Magistrates’ Court other than final orders. Orders of the Magistrates’ Court other than final orders can be reviewed by the Supreme Court in its judicial review jurisdiction.
[7]Section 109 of the MC Act applies to family violence protection orders – see Act s 170.
Section 128(1) of the MC Act provides:
(1)The Court may, on the application of a party to a proceeding… or without any such application, adjourn the hearing of the proceeding—
(a) to such times and places; and
(b) for such purposes; and
(c) on such terms as to costs or otherwise—
as it considers necessary or just in the circumstances.
Withdrawal of a proceeding at common law
A right to withdraw proceedings existed at common law and in equity.
In Schipp v Herfords Pty Ltd, Samuels JA, sitting in the New South Wales Court of Appeal, observed:
…originally the right to withdraw and come again existed both at common law and in equity. In more recent times statutes and rules of court have fettered the right.[8]
[8][1975] 1 NSWLR 412, 423.
In Boal Quay Wharfingers Ltd v King’s Lynn Conservancy Board, Salmon LJ observed:
Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it. You are entitled to withdraw your application at any stage… It is quite true that the legislature sometimes, for policy reasons, lays down that an application made under a statute cannot be withdrawn in specified circumstances… But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist.[9]
[9][1971] 1 WLR 1558, 1569.
Withdrawal of a proceeding by leave
The position is different where a statute or court rule requires the grant of leave to withdraw or discontinue. Where leave is required, a key concern is whether the grant of leave may result in injustice, particularly to the other parties to the proceeding and to the wider community.
In Ann Street Mezzanine Pty Ltd v Beck, Kenny J referred to a court rule which provided that a party making a claim for relief may discontinue ‘at any time – with the leave of the Court’, and said:
Generally speaking, the Court will grant an application for leave to discontinue, since it is undesirable that an applicant be compelled to continue litigation against the applicant’s will. That said, leave is not granted as a matter of course.[10]
[10][2011] FCA 614, [16].
Likewise in Trade Practices Commission v Manfal Pty Ltd (No 3), Lee J stated:
It may be accepted that an application for leave to discontinue proceedings against a respondent will normally be granted. However, that does not mean that such an order is granted as a matter of course…
The discretion to grant leave is unfettered… The court will give consideration to the need to refrain from compelling a party to litigate against its will but will also consider the extent to which the proceedings have developed and whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings or by imposing a disadvantage. In considering the undesirability of an applicant being forced to continue litigation unwillingly, it is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.
The requirement of the Federal Court Rules that, in the absence of consent of all parties, discontinuance of litigation against a party only be permitted by leave of the court contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought.[11]
[11](1991) 33 FCR 382, 383-384 (citations omitted).
What factors must be considered?
The factors that a court is bound to consider on an application for leave to withdraw or discontinue are determined in accordance with established principle. In an oft-quoted passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statue expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.[12]
[12](1986) 162 CLR 24, 39-40.
In circumstances where the Magistrates’ Court is asked to exercise a discretionary power contained in the Act or the Rules, such as that in r 4.08, and there are no listed factors or criteria which govern the exercise of the power or the listed factors are not exhaustive, regard must be had to the purposes described in ss 1 and 2 of the Act as informed by the preamble. It follows that in exercising the discretionary powers found in the Act and in the Rules where statutory criteria are absent or not exhaustive, the safety of affected family members, protected persons and children will be the paramount consideration. The prevention and reduction of family violence to the greatest extent possible is also an important consideration, as is the need to promote the accountability of perpetrators of family violence for their actions.
Decided cases
The decided cases illustrate the application of these principles.
In AB v Magistrates’ Court at Heidelberg, a magistrate refused to make an intervention order by consent on the basis that she had obligations under the Act to look at whether a child was possibly at risk and that this could not be done in the circumstances.[13]
[13][2011] VSC 61, [55].
On appeal, Mukhtar AsJ observed that the magistrate explained her reasons for not making a consent order. Those reasons had, as their foundation, the necessity as dictated by the statute to have regard to the interests of the child. Altering the status quo by consent posed a risk to the child which the magistrate was not willing to countenance. The allegations could still be tested at a contest hearing.[14]
[14]Ibid, [62].
In MN v OP, the Court was faced with an unusual set of circumstances. OP had obtained an interim intervention order against MN in the Magistrates’ Court. OP and MN had two children who were protected by the order. MN sought declarations in the Supreme Court that the interim intervention order and related decisions were not made in accordance with law. OP then made an oral application for, and obtained leave from the Magistrates’ Court, to withdraw the application for an intervention order. MN sought to challenge this and other orders of the Magistrates’ Court.[15]
[15][2017] VSC 733.
During the oral application to withdraw his application for an intervention order, OP, who was the father, explained to the magistrate that the children had not seen their mother, MN, for over five months, and that child protection authorities were involved. He said that the authorities expected him to continue to block MN’s contact with the children until decisions were made by the Family Court. He intended to apply to vary the contact orders to ensure that MN’s contact with the children would be supervised.
The magistrate described OP’s statement as a detailed explanation, and said that the Magistrates’ Court was available if he was concerned about the safety of the children. The magistrate added that it appeared that the family law proceedings and departmental supervision were providing coverage for OP’s protective concerns.
On appeal, Ginnane J noted that some of the grounds on which MN relied depended on the interpretation of r 4.08 of the Rules.[16] Rule 4.08(2)(b) enabled a person attending court to make an oral application to withdraw the application for an intervention order. Unlike r 4.08(2)(a), it did not require any notice to be given to the respondent.
[16]The judgment considered the 2008 version of the Rules. However r 4.08 is unchanged in the 2018 version.
Ginnane J held that MN was not denied procedural fairness by the magistrate despite the absence of notice to MN. His Honour considered that the explanation why r 4.08(2)(b) permitted an oral application for leave to withdraw to be made to the Court without notice to the respondent may lie in the public interest in the speedy end to allegations concerning family violence when applicants did not wish to pursue family violence orders.[17]
[17][2017] VSC 733, [138]-[139].
In Pizanias v Sultana, Norrington JR had to determine in the context of the Domestic and Family Violence Act 2007 (NT), whether the police required leave to withdraw an application. His Honour held that the effect of r 5.18 of the Local Court (Civil Jurisdiction) Rules 1998 (NT) was to abrogate the common law right to discontinue and that all judicial determinations under that Act required the Court to consider the safety and protection of the protected person as having paramount importance.[18] Norrington JR refused leave for the Commissioner of Police to withdraw the proceeding given the opposition of the protected person, determining that it would be contrary to the objects of the Act and the interests of justice to allow a police domestic violence order to be withdrawn or discontinued without the protected person being given an opportunity to present a case as to why the police domestic violence order should be confirmed.[19]
[18][2020] NTLC 016, [21].
[19]Ibid, [31]-[33].
Similar principles apply in respect of protection applications relating to children. In J v Lieschke, the High Court upheld the rights of parents to have the opportunity to be heard where the interests of the child were affected and where it was practicable to do so.[20] In Secretary of the Department of Human Services v A Father (a pseudonym), Nathan J held that the Secretary required leave of the Children’s Court to withdraw or discontinue a protection application relating to a child made under the Children and Young Persons Act 1989 (Vic).[21]
[20](1987) 162 CLR 447, 458.
[21][2001] VSC 231, [42].
Ground 1 – was the magistrate’s refusal to give leave to withdraw the intervention proceeding legally unreasonable?
MNX’s submissions
MNX submitted that the magistrate’s decision to refuse TNV leave to withdraw the application for an intervention order was legally unreasonable for the following main reasons:
(a) the appropriateness of the police risk assessment was the central issue in dispute;
(b) the magistrate stated that she would fix the proceeding for hearing and deal with the issue of standing and the police application for leave to withdraw;
(c) there was evidence available for the magistrate to hear that had a material impact on the exercise of her discretion;
(d) the refusal of the application for leave to withdraw was akin to refusing to permit the calling of the evidence; and
(e) if the magistrate was of the view that she did not have time to appropriately digest the written submissions and hear the evidence of the risk assessment, then the appropriate course was to adjourn the matter.
TNV’s submissions
TNV submitted that the magistrate’s decision not to permit TNV to withdraw was not legally unreasonable for the following main reasons:
(a) the magistrate was of the view that she did not have power to substitute a party;
(b) TNV was not represented at the hearing on 28 February 2022 and sought leave to withdraw at the hearing on 10 March 2022;
(c) the effect of the withdrawal of TNV as a party would be to end the family violence intervention order under s 60(e) of the Act;
(d) the magistrate based her decision to refuse TNV’s application to withdraw on the basis that there were contested issues relating to risk and safety of the protected persons that had to be determined;
(e) the magistrate was concerned with the role of police in relation to applications of this kind and the Court’s role in administering the Act;
(f) TNV’s evidence could not show that there were not contested issues of the type mentioned by the magistrate; and
(g) the contest was between TNV’s assessment of risk and SDW’s assessment of risk.
SDW’s submissions
SDW relied on the magistrate’s ruling,[22] and submitted that:
(a) there were evident and intelligible reasons why the Court should refuse TNV leave to withdraw as a party from the intervention proceeding; and
(b) the magistrate made it clear that although she was refusing leave for TNV to withdraw, she was not dismissing MNX’s applications to vary or revoke the interim order.
[22]See paragraph [25].
Analysis
In Minister of Immigration v Li, the High Court reviewed the concept of legal unreasonableness. The plurality held:
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it…[23]
[23](2013) 249 CLR 332, 364 (Hayne, Kiefel and Bell JJ).
Commenting on the reasonableness of the exercise of a discretion, their Honours observed:
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[24]
[24]Ibid, 367.
Gageler J, agreeing with the plurality, held:
Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.[25]
[25]Ibid, 375, quoting Dunsmuir v New Brunswick [2008] 1 SCR 190, 220-221.
The ‘evident and intelligible justification’ test was followed and applied by the High Court of Australia in Minister for Immigration and Border Protection v SZVFW,[26] and ABT17 v Minister for Immigration and Border Protection.[27]
[26][2018] 264 CLR 541.
[27][2020] 269 CLR 439.
In the present case, the magistrate had a general discretion under r 4.08 of the Rules as to whether she granted leave to withdraw. There are no criteria in r 4.08. The magistrate was a highly experienced magistrate in the family violence protection jurisdiction. The Court should be slow to conclude that her decision was unreasonable or lacked an evident and intelligible justification.
It is plain from her reasons that the magistrate was of the view that TNV, and Victoria Police generally, should not be permitted to withdraw from the intervention proceeding at least at that time. The reasons given in the ruling were, in summary, that:
(a) the proceeding was hotly contested;
(b) the purposes of the Act were beneficial and intended to maximise the safety of children and adults who had experienced family violence, to prevent and reduce family violence and promote the accountability of perpetrators;
(c) the Women’s Legal Service Victoria on behalf of SDW opposed the police application for leave to withdraw and submitted that the risk was ongoing in circumstances where interim orders had been made in the Family Court for supervised contact between MNX and the infant son;
(d) the Women’s Legal Service Victoria on behalf of SDW submitted that the police risk assessment was cursory and not focussed on the ongoing risk; and
(e) having regard to the contested issues relating to risk and safety, and the contested issues in relation to the risk to the infant son, the police role in relation to intervention applications, and the Court’s role under the Act, the police application for leave to withdraw should be refused.
I accept SDW’s submission that the magistrate’s reasons for refusing the police application to withdraw are reasonable, evident and intelligible. They reflected her view of the best interests of justice in the circumstances of the case. In the magistrate’s view, Victoria Police should not walk away from the proceeding, but should actively participate, give evidence and support decision-making in accordance with the police role in family violence intervention proceedings generally. There is nothing irrational or inappropriate about such a decision.
The magistrate’s decision not to grant TNV leave to withdraw from the proceeding was plainly within the range of possible acceptable outcomes, and was a consequence of the magistrate’s assessment of the course that TNV and Victoria Police should follow. The magistrate accepted that there was a contest between the parties and gave directions in the order as to what the parties were to do. It was not possible for the evidence and submissions to be heard on 10 March 2022. I will consider procedural fairness issues under Ground 2.
Ground 1 fails.
Ground 2 – did the magistrate deny MNX procedural fairness?
MNX’s submissions
MNX submitted that:
(a) the magistrate’s decision to refuse the application for leave to withdraw without hearing evidence on the appropriateness of the risk assessment undertaken by Victoria Police was a denial of procedural fairness;
(b) if the application to withdraw had been granted, the interim order would have been at an end;
(c) an acting sergeant of Victoria Police had made a detailed statement and was available to explain what steps had been taken, and how the conclusion had been reached;
(d) MNX was denied an opportunity to respond to the contention by SDW that the risk assessment undertaken by Victoria Police was cursory; and
(e) if the magistrate had not had sufficient time to comprehend the written submissions that had been filed, or to hear evidence on the appropriateness of the risk assessment, the appropriate course was to adjourn the application for leave to withdraw.
TNV’s submission
TNV submitted that:
(a) interim orders can be made on scant evidence without the presence of a respondent, as exemplified by the fact that:
(i)an interim family violence intervention order may be made whether or not the respondent has been served with a copy of the application, and whether or not the respondent is present (s 54);
(ii)the evidentiary requirements to obtain an interim order are limited and subject to exceptions (s 55(1));
(iii)the affected family member is not obliged to give evidence before an interim order is made (s 55(2));
(iv)a magistrate can waive the requirement for oral evidence or an affidavit (s 55(1)(b));
(v)the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary (s 65(1)); and
(vi)the court may refuse to admit, or may limit the use to be made of, evidence if it is just and equitable to do so, or if the probative value of the evidence is outweighed by the danger that the evidence may be unfairly prejudicial to a party, or misleading or confusing (s 65(3));
(b) a lower requirement for procedural fairness applies under the Act and permits the Court to act on an interim basis on imperfect or untested evidence;
(c) ss 54, 55 and 65 of the Act provide context and moderate the requirements for procedural fairness when exercising interim order powers;
(d) the requirements of procedural fairness for final orders are significantly higher than interim orders; and
(e) the acting sergeant’s risk assessment would have confirmed the magistrate’s assessment that the proceeding was strongly contested.
SDW’s submissions
SDW submitted that there was no denial of procedural fairness as:
(a) there was no obligation to hold a hearing in which TNV was called to give evidence and be cross-examined;
(b) the context of procedural fairness in the Magistrates’ Court did not require the Court to facilitate the giving of viva voce evidence and cross-examination on an interlocutory application under r 4.08;
(c) interlocutory applications were ordinarily made on affidavit evidence without cross-examination;
(d) the Magistrates’ Court’s discretion was flexible enough to permit the Court to proceed with the application without hearing viva voce evidence, or allowing cross-examination; and
(e) it was reasonably open to the Court to proceed as it did by not allowing TNV to exit the proceeding when the extent of risk was contested.
Does procedural fairness apply?
The first issue that arises is whether the requirements of procedural fairness apply to the magistrate’s decision under r 4.08(1) of the Rules to refuse leave to TNV to withdraw his application for an intervention order. As the magistrate noted, TNV’s application for leave to withdraw was made by way of oral application. If the application for leave to withdraw was granted, the interim order would expire.[28]
[28]Act s 60(e).
Relevant authority
The application of the requirements of procedural fairness to court proceedings is well established. In Roberts v Harkness, the Court of Appeal, speaking of the decision of a judge on appeal from the decision of a magistrate on unlicensed driving charges under the Road Safety Act 1986 (Vic), said:
As his Honour correctly stated, it is the fundamental obligation of every court to ensure a fair hearing for the parties before it. The High Court recently affirmed, in Condon v Pompano Pty Ltd, that procedural fairness is ‘an essential attribute of a court’s procedure’.
…
The existence of the fair hearing right being uncontroversial, the critical question is: ‘What does the duty to act fairly require in the circumstances of the particular case?’ Natural justice is ‘fair play in action’. As Gleeson CJ said in Lam:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.
Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include
• the nature of the decision to be made;
• the nature and complexity of the issues in dispute;
•the nature and complexity of the submissions which the party wishes to advance;
•the significance to that party of an adverse decision (‘what is at stake’); and
•the competing demands on the time and resources of the court or tribunal.
One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:
To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.
It is relevant, therefore, that the ‘main purposes’ set out in s 1 of the Magistrates’ Court Act 1989 include the following:
(c)to provide for the fair and efficient operation of the Magistrates’ Court; and
(d)to abolish inefficient and unnecessary court process and procedures; and
(e)to allow for the Magistrates’ Court to be managed in a way that will ensure —
(i) fairness to all parties to court proceedings; and
(ii) the prompt resolution of court proceedings; and
(iii) that optimum use is made of the Court’s resources.[29]
[29](2018) 57 VR 334, 354-355 (Maxwell P, Beach and Niall JJA) (emphasis in original) (citations omitted) (‘Roberts’), referring to Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14.
In Shrestha v Migration Review Tribunal, the Full Court of the Federal Court observed:
It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant.[30]
[30][2015] FCAFC 87, [37], citing Taylor v Taylor (1979) 143 CLR 1; Re JRL; Ex parte CJL (1986) 161 CLR 342, 350 (Mason J); Allesch v Maunz (2000) 203 CLR 172, 184-185 (Kirby J).
The Full Court stated:
It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions.[31]
[31]Ibid [38], citing Cameron v Cole (1944) 68 CLR 571, 589 (Rich J); Commissioner of Police v Tanos (1958) 98 CLR 383, 395-396 (Dixon and Webb JJ).
The Full Court commented on the pressure of high volume decision making in the migration jurisdiction observing that it was no fault of an individual litigant that there were thousands of other cases, and that high volumes of cases should, if anything, give rise to extra caution to ensure that no injustices were being done because of judicial workload pressures.[32]
[32]Ibid [53]-[54].
In International Finance Trust Company Ltd v New South Wales Crime Commission, French CJ said:
Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.[33]
[33](2009) 240 CLR 319, 354.
In Assistant Commissioner Michael James Condon v Pompano Pty Ltd, the plurality said:
The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making‑ but in terms which have more general and immediate application, ‘[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’ To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.[34]
[34](2013) 252 CLR 38, 99 (citations omitted), discussing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14.
Procedural fairness under the Act
In MN v OP, Ginnane J observed that in an earlier decision, Harper J acknowledged that the Act abrogates procedural fairness in order to achieve its stated purposes.[35] Ginnane J was referring to Zion-Shalom v Magistrates’ Court of Victoria (No 2), where Harper J said:
It is not for the court to prescribe, as conditions necessary if procedural fairness is to be accorded, conditions which are inconsistent with those prescribed by parliament. It seems to me that, were I to accede to the plaintiff’s application for certiorari, I would fall into that trap.[36]
[35][2017] VSC 733, [49].
[36][2009] VSC 477, [15].
As counsel did not refer to MN v OP at the hearing of this proceeding, I invited written submissions from the parties concerning the decision. MNX submitted in substance that:
(a) Ginnane J did not find that there was no requirement under r 4.08 to afford procedural fairness to MN. Rather his Honour found that MN had not been denied procedural fairness; and
(b) even if r 4.08 does not require procedural fairness to be afforded to MNX, once her Honour had engaged with the parties about the issues that were in dispute on the withdrawal application, and explained the manner in which she proposed to deal with those issues, she was required to proceed in the manner that she said that she would and to hear the evidence from the acting police sergeant who had undertaken a risk assessment.
TNV submitted, with SDW adopting these submissions, that Ginnane J had observed that:
(a) the procedures established by the Act in respect of interim intervention orders depart from the usual rules of civil procedure.
(b) magistrates, like other judicial officers, have an ample discretion as to how a case should be managed, including determining the stage of the proceeding when it is appropriate to hear particular applications;
(c) the remedies under the Act were discretionary and it was critical to keep in mind that the magistrate was conducting a mention of the application, and lacked court time to hear any further applications that day; and
(d) r 4.08(2)(b) does not require notice of the withdrawal to be given to the respondent. As a decision of a judge of this Court, I should follow this decision unless satisfied that it is clearly wrong.[37]
[37]Referring to Shaw v Yarranova Pty Ltd [2006] VSC 45, [66]-[67] (Bell J).
Analysis
In the present case, the application to withdraw was made orally on behalf of the police officer who obtained the interim order for the protection of SDW and the infant son. The application was made with the support of MNX but against the opposition of SDW, the affected family member, who was concerned about her own safety and that of their infant son. Both MNX and SDW were given notice of the application. Fairness and justice required that SDW and MNX be heard before such an application was summarily determined.
Police have very important functions and powers under the Act. They include the power to issue family violence safety notices with or without exclusion conditions, and to apply for intervention orders.[38] They include extensive enforcement powers.[39] Police daily apply for intervention orders against perpetrators so as to provide protection to affected family members and protected persons. Should a police officer subsequently seek to withdraw from an intervention proceeding, the affected family members, other than infants, must be informed of the application. Likewise, if practical, the perpetrator must be informed of the application so as to have the opportunity to be heard.
[38]Act ss 24, 42.
[39]Act ss 157-165.
In the present case, while TNV’s application to withdraw the intervention application was oral, both SDW and MNX were aware of the application and sought to be heard. Each was entitled to a reasonable opportunity of presenting a case, being informed of the case to be advanced by the opposing party, and having an opportunity to respond.[40] Each had already made submissions on the merits to the Court. There was a contested family violence risk assessment, and the likely prospect of differing evidence about incidents that had occurred in the past. The application was hotly contested.
[40]Roberts (n 29).
I also accept that once her Honour had heard from each of the parties to the extent that she had available court time, procedural fairness was invoked. It was not open to disregard the requirements of procedural fairness in dealing with the applications before the Court.
Was procedural fairness observed?
The magistrate dismissed TNV’s application to withdraw the intervention application without hearing evidence or submissions from the parties as to the application. The requirements of procedural fairness were not observed.
In a statement dated 9 March 2022, an acting police sergeant describes some of the factual issues that stood to be considered. The statement details an incident which occurred at 4:25am on 29 August 2020 resulting in the issue of a family violence notice and interim order on 1 September 2020. The incident was assessed by police as high risk based on the police internal family violence assessment tool. A charge of unlawful assault and making a threat to kill was subsequently finalised in a diversion program, following the withdrawal of the charge of make threat to kill. There were two subsequent family violence reports assessed as medium risk. Three charges of contravening an interim family violence order were withdrawn at court. A machete belonging to MNX was surrendered and destroyed. SDW had repeatedly stated that she believed that MNX took no responsibility for his actions and would continue his behaviour into the future. Despite the absence of subsequent incidents, SDW was still in fear and wanted the interim order continued. MNX had engaged in regular appointments with his GP and psychologist and was completing addiction counselling through two programs.
The statement was not tendered or tested before orders were made.
Was the denial of procedural fairness material?
In Minister for Immigration and Border Protection v SZMTA, a plurality of the High Court held that materiality was essential to the existence of jurisdictional error. A breach was material to a decision only if compliance could realistically have resulted in a different outcome.[41] The question of materiality of the breach was an ordinary question of fact in respect of which the applicant bore the onus of proof. Like any ordinary question of fact, it was to be determined by inferences drawn from evidence adduced on the application.[42]
[41](2019) 264 CLR 421, 445 (Bell, Gageler and Keane JJ).
[42]Ibid.
The High Court subsequently affirmed this explanation of materiality in MZAPC v Minister for Immigration and Border Protection,[43] and in Nathanson v Minister for Home Affairs.[44]
[43](2021) 95 ALJR 441.
[44][2022] HCA 26.
Submissions
MNX submitted that he was adversely affected by what occurred. He lost the opportunity of the benefit that s 60(e) of the Act gave him. If TNV withdrew, he would no longer be subject to the interim order, and the conditions of the interim order would no longer be operative. He would no longer be the subject of the intervention application and would not need to pursue the revocation and variation applications.
TNV submitted that if there was a breach of procedural fairness, it was not material. The contest was essentially between TNV’s risk assessment and that of SDW. The failure to call police evidence could not have affected the outcome of TNV’s application under r 4.08 of the Rules.
SDW submitted that while TNV’s application to withdraw had been refused, the magistrate at the same time granted leave to MNX to proceed with his revocation and variation applications. The magistrate explained that the fact that the police application to withdraw had been refused did not impact on MNX’s revocation or variation applications. The refusal to give TNV leave to withdraw the application did not end the proceeding. MNX was not deprived of the opportunity of success in the intervention proceeding once a proper hearing of the revocation and variation applications occurred.
Analysis
I am satisfied that while there was a breach of procedural fairness by the magistrate in refusing, rather than adjourning, TNV’s application for leave to withdraw, the breach of procedural fairness did not result in any practical injustice. This was because MNX was just as well placed after the refusal by reason of the grant of leave to him to apply for revocation or variation of the interim order. One door was closed, but another was opened. Compliance with the requirements of procedural fairness by adjourning TNV’s application to withdraw would not realistically have resulted in a more advantageous position for MNX.
First, as the magistrate explained, because of the commitments of the Court on 10 March 2022, it was not possible to conduct a contested hearing on that day as to whether TNV should be granted leave to withdraw, or whether the interim order should be revoked or varied. The intervention proceeding had been placed in a mention list rather than a contest list and the magistrate simply did not have the time to undertake contested hearings of the leave applications. There was simply no realistic possibility that the contested hearings of the leave applications could be heard on the merits on 10 March 2022. TNV had earlier indicated that he was willing to remain in the matter for a short adjournment so that SDW could file her own application.
Secondly, by granting MNX leave to apply for revocation or variation of the interim order under s 109 of the Act, MNX was empowered to apply for the revocation or variation of the interim order in his own right. He was no longer dependent on TNV’s prosecution of the withdrawal application. The grant of leave under s 109 of the Act was also beneficial to MNX in that it involved a finding that MNX’s application for leave to revoke or vary the interim order should be determined immediately. By contrast, TNV’s application for leave to withdraw could have been adjourned to the hearing of the application for final orders.
Thirdly, by reason of the leave to apply for revocation or variation granted by the magistrate, MNX was given control over the manner in which the revocation and variation applications were presented. He was no longer dependent on the attendance of the senior police lawyer or police witnesses at court. The senior police lawyer did not attend on 28 February 2022 until later in the day. TNV did not provide further and better particulars as directed by the Court. MNX was now the moving party seeking revocation or variation of the interim order.
Fourthly, the tests to be applied as to whether an interim order should be made, or should continue, are set out in ss 102(1)(a) and (c) of the Act. It made no difference on the facts of the case whether the contested hearing on the need for an interim order was conducted in the context of a police application to withdraw or the context of a revocation or variation application made by MNX.
Fifthly, the fact that MNX could no longer present a case on the coat-tails of TNV’s application to withdraw was not a material disadvantage. While it may have been tactically attractive to do so, the magistrate was very experienced in the family violence protection jurisdiction and would not have been influenced or moved by this circumstance. As she said, the Court frequently heard affected family members arguing about the position adopted by Victoria Police.
Sixthly, the evidence likely to be called on a contested hearing of the application to withdraw was the same as would be called on the hearing of the revocation and variation applications. In both cases, the magistrate would have to consider whether the police risk assessment or SDW’s risk assessment was correct and hear evidence from SDW, MNX and other witnesses of incidents involving SDW and MNX. There was no difference in the parties’ respective prospects of success.
Seventhly, in the event that a hearing for final orders proved to be necessary, the test was that set out in s 74(1) of the Act viz whether the court was satisfied, on the balance of probabilities, that the respondent had committed family violence against the affected family member and was likely to continue to do so or do so again. The evidence at the hearing for final orders was likely to be similar to that before the court on the hearing of the application to withdraw or the revocation and variation applications.
MNX has the burden of proof as to materiality of the denial of procedural fairness as a matter of fact and I am not satisfied that he has discharged this burden. To the contrary, I am of the opinion that the failure by the magistrate to comply with the requirements of procedural fairness had very little (if any) material consequence adverse to MNX, and, as to time, was favourable. It could not realistically have resulted in a different decision at a contested hearing as to the continuing need for the interim order. Any opportunity that MNX may have lost by reason of the refusal of the application to withdraw was made good by the grant of leave to MNX to proceed with the revocation and variation applications, and the finding that these applications should be heard immediately. The change of moving party from TNV to MNX was not to MNX’s disadvantage. The issues were the same, and there was no practical injustice to MNX when he became the moving party seeking revocation or variation of the interim order. The magistrate’s decision avoided the need for SDW to make a fresh application in her own right seeking the same intervention orders, and the resulting delay and cost.
Conclusion
TNV has never complained before the magistrate or in this Court about the refusal of his application to withdraw the intervention proceeding. MNX submits that there was a failure to comply with the requirements of procedural fairness to him when TNV’s application was refused. While I accept that there was a denial of procedural fairness, MNX’s revocation and variation applications were simultaneously enlivened by the grant of leave under s 109(2) of the Act. This was done because SDW could not be substituted as the applicant in the intervention proceeding. The Court held under s 109(2)(c) of the Act that it was in the interests of justice that MNX’s applications be heard immediately, rather than waiting for the hearing of the application for a final order. The contest hearing that was to be conducted by the magistrate was essentially the same whether the initiating application was TNV’s application to withdraw or MNX’s applications to revoke or vary the interim order. MNX became the moving party seeking revocation of the interim order rather than TNV.
I find that the failure to comply with procedural fairness did not cause MNX any material disadvantage or realistically affect the likely outcome of the intervention proceeding, either at the interim stage or the final stage.
Ground 2 fails.
Ground 3 – did the magistrate fail to properly exercise jurisdiction in granting MNX leave to make the revocation and variation applications but determining to hear and determine those applications at the same time as the application for a final intervention order?
MNX’s submissions
MNX submitted that:
(a) the magistrate granted leave to MNX to apply to make the revocation and variation applications and adjourned them to be heard and determined at the same time as the hearing to determine whether or not a final order ought be made;
(b) senior counsel for MNX drew the magistrate’s attention to s 109(2)(c) of the Act which required a finding by the magistrate in granting leave to bring the revocation and variation applications that the applications be determined immediately rather than waiting for the hearing of the application for the final order;
(c) s 109(2)(c) contemplates that the application for revocation or variation will be heard and determined prior to, and separately from, the hearing of an application for a final order;
(d) the purpose of s 109 of the Act is to provide a mechanism for the Court to vary or revoke extant interim orders where circumstances change without being required to wait until the final determination; and
(e) the magistrate did not have the power to collapse the revocation and variation applications into a hearing about the making of a final order under s 74 of the Act.
TNV’s submissions
TNV submitted that:
(a) s 109(2)(c) imposes an additional requirement so that leave to apply for the variation or revocation of an interim order can only be granted if it is in the interests of justice that the application be determined immediately;
(b) the additional requirement in s 109(2)(c) does not limit the broad discretion that a magistrate has to manage cases to ensure that the parties get a fair hearing and that justice is done;
(c) magistrates have onerous and unpredictable caseloads with competing matters vying for court time that often involve the liberty of the subject and must be given priority;
(d) there is no reason in principle why an application to revoke an interim order cannot be heard at the same time as the final order, and there’s good reason why they should be heard at the same time unless the interests of justice require otherwise;
(e) revocation applications should not be used as a de facto appeal process;
(f) there was no failure to exercise jurisdiction when the magistrate adjourned the revocation and variation applications notwithstanding the need to hear them promptly;
(g) this Court should not second guess a judicial officer’s management of her court list, her caseload, the competing demands of each of her cases, or the need to list a particular application on any particular date for hearing; and
(h) the magistrate did not take into account irrelevant considerations or misconstrue the Act.
SDW’s submissions
SDW submitted that:
(a) there was no misconception by the Court in deferring the revocation and variation applications to the final hearing;
(b) where a court grants leave to bring an application, it is within the decisional freedom of the Court to decide whether the application is heard concurrently with, or separately from, the ultimate questions; and
(c) what the magistrate did was to make a listing decision in compliance with the statutory requirement in s 59 of the Act to list the application for a final order as soon as practicable.
Analysis
The magistrate gave leave to MNX to make the revocation and variation applications under s 109(1) of the Act. This could only have been done if the court was satisfied under s 109(2) that:
(a) there had been a change in circumstances since the interim order;
(b) the change may justify a revocation or variation of the order; and
(c) it was in the interests of justice that the applications be determined immediately, rather than waiting for the hearing of the application for a final order.
Having found that it was in the interests of justice that the revocation and variation applications be determined immediately rather than waiting for the hearing of the application for the final order, it was appropriate and consequential that this finding was carried into effect in the order made by the magistrate. Orders and directions were necessary to the effect that the revocation and variation applications be listed for hearing as soon as possible and in advance of the hearing of the application for a final order.
Section 59 of the Act provides where an interim order is made, the court must ensure that the hearing is listed for a decision about the final order as soon as possible. As an interim order was made in this case, the Magistrates’ Court was under a statutory duty to ensure that the hearing of the application for a final order was listed as soon as practicable.
Given the statutory duty of the Court under s 59 of the Act and the main purposes listed in s 1 of the MC Act, there could be no objection if the hearing of the application for a final order took place as soon after the hearing and determination of the revocation and variation applications as was convenient, and by the same magistrate. In this way, maximum efficient use would be made of the time of the magistrate and of court resources. All of the evidence received and submissions made in the hearing of the revocation and variation applications could be adopted as part of the evidence and submissions in the hearing of the application for a final order, assuming of course that the application for a final order was necessary.
In the ruling, the magistrate stated that the court would list the matter as soon as possible for a hearing of all matters. The order made on the same day gives various directions, and lists the matter for special mention so as to ascertain readiness for hearing and to fix a hearing date.
I accept TNV’s submission that it is undesirable for this Court to become too deeply involved in listing arrangements and directions in the Magistrates’ Court. Importantly, the effect of proceeding in this Court has been to delay the hearing and determination of the Magistrates’ Court applications and proceeding for over six months. In my view, all that is necessary is to remit the intervention proceeding back to the Magistrates’ Court for hearing and determination in accordance with this judgment and in accordance with law. It will then be necessary for the Magistrates’ Court to determine what directions and hearing arrangements should be made. There is no need or warrant for a prerogative order.
Conclusion
For the reasons I have given, it is appropriate for the revocation and variation applications to be heard and determined first and as soon as possible. The hearing of the application for final orders should follow as soon as that can conveniently be arranged. It is likely to be convenient for the evidence and submissions in the revocation and variation applications to be taken as evidence and submissions in the application for final orders should the intervention proceeding progress to this stage.
Ground 3 succeeds.
Fragmentation of proceedings
This proceeding seeks to obtain judicial review of what are essentially procedural orders made by a magistrate in the course of an intervention proceeding. On many occasions, courts have spoken of the need to actively discourage fragmentation of the proceedings of inferior courts and tribunals, whether criminal or civil.[45] Appeals or applications for judicial review of interim or interlocutory decisions should be avoided wherever possible. There are strong considerations against the fragmentation of any proceeding by an application for judicial review.[46]
[45]An intervention order, whether interim or final, is a civil order. See Act ss 57(1)(d), 96(1)(e).
[46]See for example Holihan v Amcor Ltd [2011] VSCA 225, [17]; Sankey v Whitlam (1978) 142 CLR 1, 25-26; R v Smith (1994) 181 CLR 228, 346; DPP v Pace (a pseudonym) (2015) 45 VR 276, 283-284; DPP (Vic) v Judge Lewis of County Court of Victoria [1997] 1 VR 391, 401-2; Perkins v the Victorian Bar Inc and Legal Professional Tribunal [2007] VSCA 107, [14].
The reluctance of courts to grant leave to appeal or exercise discretion in favour of prerogative relief in relation to procedural decisions made in the course of a proceeding in an inferior court or tribunal is even stronger where there are rights of appeal provided by statute.
Here, MNX has a right of appeal to the County Court by way of rehearing.[47] MNX also has a right of appeal to the Supreme Court on a question of law from a final order of the Magistrates’ Court.[48]
[47]Act ss 114(1), 115(a), 119(1).
[48]MC Act s 109; Act s 170(1).
In Carroll v Browne, Richards J observed as to appeals to the County Court under the Act:
It is notable that s 114(1) provides a right of appeal against any order made in a proceeding under the FVP Act. It does not distinguish between interim orders and final orders, or any of the range of other orders that may be made under the FVP Act. All appeals are heard de novo; in no case is leave to appeal required.[49]
[49][2018] VSC 253, [31].
In Secretary to the Department of Premier and Cabinet v Hulls, the Court of Appeal stated in an application for leave to appeal:
Where the order sought to be appealed is interlocutory (or ‘interim’ in the terminology of the VCAT Act), there may be particular reasons, based in justice to both parties, for not granting leave to appeal. There are strong considerations against the fragmentation of any proceeding, whether it be criminal or civil. Where a court is invited to grant leave to appeal from an order which is simply interlocutory, the litigation will be interrupted by the appeal, if leave is granted. Usually it is better if litigation is left to run its course, the parties being remitted to such rights of appeal as they have at the end of the day. Not only does that ensure that the litigation is not unnecessarily interrupted and completion not delayed without warrant; it also ensures that any interlocutory dispute will be seen and adjudged in its final context. Indeed, in the context of the final judgment the interlocutory dispute may be seen as having, or having had, little or no significance.[50]
[50][1999] 3 VR 331, 336.
Likewise, in Kuek v Victoria Legal Aid, the Court of Appeal stated:
[U]nless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 – or at all events may not raise with any real chance of success – a matter or thing which is proper for determination on appeal where that very litigant has a right of appeal under s 109 [of the Magistrates’ Court Act]. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means from appealing from the decision of a magistrate.[51]
[51][2001] VSCA 80, [16].
More recently, in Victorian WorkCover Authority v BSA Ltd, the Court of Appeal stated:
It can only be in an exceptional case that this Court should intervene in procedural decisions made in the course of a proceeding before the Magistrates’ Court. The policy which underlies s 109 of the Magistrates’ Court Act 1989 is clear: the right of appeal on a question of law does not arise until a final decision has been made. That policy should be given effect to. The Court should not be asked to circumvent that policy by exercising its power of judicial review unless there is an overwhelming reason of justice for doing so.[52]
[52][2017] VSCA 276, [10].
In Szirom v Surveyors Board of Victoria, Beach J refused relief in a civil proceeding, observing:
It was agreed by counsel for the plaintiff and counsel for the Board that the appeal to the County Court involved a hearing de novo. Therefore, if the matter proceeds in the County Court by way of appeal, there will be a comprehensive hearing of the appeals with both parties entitled to call whatever relevant evidence they wish to concerning the surveys and penalty in the event that question arises, and with both parties given the right to make submissions to the court. In my opinion, the fact that the plaintiff has a full statutory right of appeal on facts and law is indicative of a legislative intention that the right of appeal is the exclusive remedy available to a surveyor who wishes to challenge the validity or correctness of an order of the Board. If that is not so, one could have a situation where proceedings relating to a surveyor could be the subject of a multiplicity of hearings both before the Board and the courts.
In the present case, if the plaintiff succeeded in this court in establishing that he had been denied natural justice, in the ordinary course of events the matter would be sent back to the Board for a rehearing by a differently constituted board. If the fresh board found against the plaintiff, the plaintiff would then have a right of appeal to the County Court pursuant to s 20 of the Act. Limiting the plaintiff to his right of appeal to the County Court has the potential to reduce the number of hearings from four to two.[53]
[53][1995] 9 VAR 91.
The statements in these authorities have considerable relevance to the present application for judicial review. The effect of this application for judicial review has been to delay the hearing of the intervention proceeding on the merits for over six months, and to cause the incurrence of considerable additional costs which would have been much better expended in the resolution of the affairs of MNX and SDW, and the making of appropriate parenting arrangements for the infant son.
Conclusion
For the reasons that I have stated, there is no need or reason to grant prerogative relief and there are discretionary reasons why prerogative relief should not ordinarily be granted in relation to procedural orders of the Magistrates’ Court. The proceeding can be remitted back to the Magistrates’ Court for hearing and determination in accordance with the reasons set out in this judgment and in accordance with law. The only practical consequence of this proceeding is that the hearing and determination of the revocation and variation applications will precede the hearing of the application for final orders, should that prove to be necessary.
SCHEDULE OF PARTIES
MNX (A PSEUDONYM) Plaintiff
TNV (A PSEUDONYM) First Defendant
SDW (A PSEUDONYM) Second Defendant
THE MAGISTRATES’ COURT OF VICTORIA Third Defendant
3
12
0