Motavalli v Jones
[2023] VCC 1222
•18 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST-SENTENCE APPLICATIONS LIST
Case No. AP-22-1558
| AMIR ARIAN MOTAVALLI | Appellant |
| v | |
| WILLY JONES | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2023 | |
DATE OF JUDGMENT: | 18 July 2023 | |
CASE MAY BE CITED AS: | Motavalli v Jones | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1222 | |
REASONS FOR JUDGMENT
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Subject:INTERVENTION ORDER
Catchwords: Magistrates’ Court revoked interim intervention order – Magistrates’ Court struck out substantive intervention order – appeal against decisions of Magistrates’ Court – self-represented litigant – Magistrates' Court – whether County Court has jurisdiction over appeals of revocations of interim intervention orders
Legislation Cited: Personal Safety Intervention Orders Act 2010
Cases Cited:MNX (a pseudonym) v TNV (a pseudonym) [2022] VSC 592, AAA v County Court of Victoria [2023] VSC 13
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | T Marsh | Stary Norton |
HIS HONOUR:
1Mr Motavalli appeals from two orders made in the Magistrates Court on 21 November 2022 by Magistrate Medina. Those orders are:
(a) An order to revoke (“the revocation order”) an interim personal safety intervention order (“PSIO”) made pursuant to s. 35 of the Personal Safety Intervention Orders Act 2010 (“the Act”)
(b) An order striking out Mr Motavalli’s application for a PSIO which was made pursuant to s12 of the Act (“the striking out order”). The striking out order was made pursuant to Rule 6.02 of the Magistrates Court (Personal Safety Intervention Orders) Rules 2022 (“the Rules”).
Brief Relevant Facts
2The facts of this case relevant to this appeal can be very broadly stated. This is not an exhaustive recitation of the history of the matter for three reasons. The first is that this Court is conducting an appeal by way of rehearing. This is not a hearing de novo.[1] This means the focus of the hearing is on whether the appellant can demonstrate legal, factual, or discretionary error arising from the orders of Magistrate Medina on 21 November 2022. This necessarily narrows the focus of the facts to those put in issue by the grounds of appeal said to demonstrate error.
[1]AAA v County Court of Victoria [2023] VSC 13 (‘AAA’)
3The next reason the recitation of facts is brief is that there was only very limited material before the Court on the appeal itself. That material was tendered on the appeal with the following exhibit numbers by consent:
(a) The Notice of Appeal dated 19 December 2022 (Exh A1);
(b) Seven pages of documents attached to the Notice of Appeal which set out questions of law and grounds relied on, signed by the appellant and dated 21 December 2022 (Exh A2);
(c) The application and summons for a PSIO in the Magistrates’ Court, bearing Court No N12095849, dated 28 September 2022, naming Willy Jones as the respondent (Exh A3);
(d) A document titled Interim Intervention Order in Magistrates’ Court Case No N12095849, dated 21 November 2022, in which fifteen orders of the Interim Intervention Order are revoked and the PSIO application, itself, are struck out. This order records that the interim PSIO made by the Magistrate on 25 October 2022 is revoked (Exh A4);
(e) A certified Extract of Order made on 21 November 2022 by Magistrate Medina, in proceeding No. N12095849 (Exh A5) in which she:
(i)granted the application for a revocation of an interim intervention order; and
(ii)pursuant to Rule 6.02 of the Magistrates Court (Personal Safety Intervention Orders) Rules 2022, struck out the application for an intervention order in proceeding No. N12095849;
(f) Three audio recordings of the proceedings in the Magistrates’ Court heard by Magistrate Medina on 21 November 2022, with audio Recording 2 containing the Magistrate’s reasons for decision (Exh A6);
(g) Submissions of Mr Motavalli of 37 pages (Exh A7);
(h) Signed statement of Mr Willy Jones dated 3 November 2022 (Exh R1);
(i) Application to Revoke (Exh R2);
(j) Submissions of the Respondent dated 4 May 2023 (Exh R3).
4Last the appeal process is limited to that material put before the Magistrate at the time of the hearing. There is an ability to use fresh evidence on the appeal in certain circumstances.
5After the Appeal was heard the Court called the matter back on for a Directions Hearing. This was because the Court was conscious that Mr Motavalli was a self-represented litigant and may have been unfamiliar with Court processes. The Court was specifically concerned to ensure that Mr Motavalli appreciated that as it was his appeal, it was incumbent on him to put evidence before the Court which supported each of the grounds of his appeal. The Court sent an email to the parties prior to the Directions Hearing reminding them of that obligation and indicated that material could be tendered at the Directions Hearing relevant to the grounds of appeal. As a result, the Appellant filed an affidavit sworn 3 July 2023. It listed numerous documents and numerous audio files at Exhibits AM1 to AM39. Objection was taken to the admission of this material by the Respondent. I reserved to this judgment my ruling as to the admissibility of this material.
6The Court specifically took Mr Motavalli to each of his grounds of appeal as listed at pages 10 to 15 of his 37 pages of submissions, see Exhibit A7. The Court asked Mr Motavalli which documents already tendered or set out in his Affidavit he relied on in respect of that ground. He identified the following material specifically:
(a) In respect of Ground (a) he identified documents AM26 and AM29;
(b) In respect of Ground (b) he identified documents AM27 and AM28;
(c) In respect of Ground (c) he identified documents AM20, AM25, AM37, and AM38;
(d) In respect of Ground (d) he identified documents AM20, AM25, AM37, and AM38;
(e) In respect of Ground (e) he identified documents AM20, AM25, AM37 and AM 38.
7The Defendant’s position was that all of the material in AM1 - AM39 was inadmissible, primarily on the basis of relevance given the parameters of the appeal, as identified in AAA v County Court of Victoria (“AAA”).[2] Mr Motavalli submitted that all the material was relevant and could be admitted as fresh evidence if necessary to give context to the decision of Magistrate Medina. I reserved the issue of admissibility to the substantive judgment.
[2][2023] VSC 13
8Dealing with the material tendered by consent only, the following broad facts emerge. Mr Motavalli was in a relationship with Ms Galbally. Mr Motavalli and Ms Galbally separated. Ms Galbally engaged a legal firm to represent her, namely Sayer Jones. Mr Willy Jones is a partner and a lawyer employed by Sayer Jones. He was the lawyer engaged by Ms Galbally to represent her in the separation proceedings against Mr Motavalli. Proceedings regarding the final financial settlement with Mr Motavalli were commenced in the Federal Circuit Court. It is unclear when. This was proceeding No. MLC9499/2020. By consent, this proceeding resolved on 13 September 2021.
9At some point, exactly when is unclear, Ms Galbally had obtained an intervention order against Mr Motavalli. She then made application to extend that order. At some point, Mr Motavalli made application for an intervention order against Ms Galbally. It is unclear what court number that proceeding had. The Magistrates’ Court of Victoria set down both Ms Galbally’s application to extend and Mr Motavalli’s application for an intervention order for joint hearing on 24 October 2022.[3]
[3]Signed statement of Mr Jones at page 1.
10On about 18 July 2022 Mr Motavalli made an application for a PSIO against Mr Jones.[4] The application stated, inter alia, that:
(a) Mr Motavalli had known Mr Jones since March 2021;
(b) Mr Jones was alleged to have sought entry to Mr Motavalli’s home through an estate agent of Jones Lang LaSalle to conduct a property valuation;
(c) Mr Jones was alleged to have stolen $20,000 from Mr Motavalli;
(d) Mr Jones was alleged to have used the legal system to intimidate and harass Mr Motavalli (there were no specifics to this allegation);
(e) Mr Jones was seeking revenge on Mr Motavalli for reporting him to the Legal Services Board.[5]
[4]AM26
[5]Ibid see page 4 of 7
11The application sought an order for immediate protection, that is an interim intervention order.
12It is unclear what happened in respect of this application from either a reading of the material tendered by consent or even, and working on the assumption such material was admissible, on a reading of the material at AM1-AM 39. [6]
[6]It is likely this application was dismissed by the Registrar of the Magistrates Court. This cannot be definitely stated because there is no record of this. However in her Ruling, Magistrate Medina stated “ that the proceeding be struck out on the basis it is an abuse of process, being substantially similar as to the basis as the first in the previous application made by the applicant and refused by registrar” (emphasis added).
13On 18 August 2022, Mr Motavalli made an application for a PSIO. Once again it is unclear what happened to this application.
14There then appears a document titled Application for Summons for an Intervention Order, dated 28 September 2022. It bears Court No. N12095849. The grounds for both the application on 18 August 2022 and 28 September 2022 are expressed in very similar terms. In the latter application the grounds were expressed as:
“The respondent, Willy Jones, is a legal practitioner I have had dealings with through the course of legal action. I have known the respondent for approximately 17 months. The most recent incident occurred 29 June 2021 when the respondent sought access to my property through a third party without lawful authority. This is an attempt to steal funds that he knew belonged to me. On March 15 2021, the respondent was acting for a client involved in vexatious legal proceedings against myself. The respondent made verbal threat regarding seeking financial payment for his client. The respondent did so through my legal representative. The respondent is a legal practitioner and is duly admitted to the Supreme Court of Victoria. The respondent was put on written notice that no expressed or implied authority existed to make contraventions on my property
…
Irrespective of such clear instructions, the respondent made repeated breaches which form the basis of my application. based on the actions of the respondent, I feel unsafe in my own property and I believe no one should feel as though a lawyer or anyone with authority is able to act in a way that is above the law. These behaviours outlined have resulted in myself being diagnosed with medical conditions compounded by the repeated violations of illegal acts of the respondent. Based on these behaviours, I am seeking a personal safety intervention order for protection against the respondent.”
15On 24 October 2022, both Mr Motavalli and Ms Galbally were represented by Counsel in the Magistrates Court. Both Mr Motavalli’s application for an intervention order and Ms Galbally’s application for an extension of her intervention order were resolved by consent. Mutual undertakings were exchanged as part of that consent and dismissal of the proceedings. Mr Jones was the solicitor on record for Ms Galbally in both the application to extend her intervention order and Mr Motavalli’s application for an intervention order.
16The Application made by Mr Motavalli for a PSIO against Mr Jones filed 28 September 2022 came before Magistrate Medina shortly afterward (the date is uncertain but it seems given the Magistrates comments at the final hearing that the interim order application came before the Court the day after resolution of the cross intervention applications between Ms Galbally and Mr Motavalli).[7] The Application was heard ex parte. Magistrate Medina then made the Interim Intervention Order in N12095849. The terms of that order are not before this Court.
[7]It is very likely that the Interim Order was made on 25 October 2022. There is some uncertainty about this date. At AM28 the Application is dated 28 September 2022. However, the audio recording 1 seems to indicate that Magistrate Medina heard the application for the interim order the day after the settlement of the cross IVO applications between Ms Galbally and Mr Motavalli. The Magistrate said “You made no reference to the proceedings that had finalised the day before. Except for the fact that you told …you gave me the impression the family law proceedings had finalised the day before.” I have assumed she means the cross IVO applications and not the family law proceedings which settled in September 2021. This strongly suggests that Magistrate Medina heard the interim PSIO application made by Mr Motavalli against Mr Jones on the day after the settlement of the cross intervention order applications. This interpretation is supported by the statement of Mr Jones Exh R1 where he deposes “On 25 October 2022 – the day immediately following the conclusion of the Intervention Order matter – Mr Motavalli has made his application against Mr Jones.”
17I infer that Mr Jones was then served with the Interim Intervention Order. He instructed Stary Norton Lawyers to apply to:
(a) revoke the Interim Intervention Order;
(b) strike out the application for the Intervention Order.
18Both applications came before Magistrate Medina on 21 November 2022. Mr Jones was represented and Mr Motavalli represented himself. At the conclusion of the hearing, during which no evidence was called, Magistrate Medina made orders which:
(a) revoked the interim intervention order; and
(b) struck out the application for an intervention order.
19Her orders for that day record the following.
“(1)Application for revocation granted;
(2)Under Rule 6.02, that the proceeding be struck out on the basis it is an abuse of process, being substantially similar as to the basis as the first in the previous application made by the applicant and refused by registrar, that application being made 15 August 2022 that the Family Violence Intervention Order proceedings which had resolved the previous day in respect of Mr Jones’s client, P Galbally, that the execution of the Family Law orders dated 13 September 2021 and the previous applications of the applicant (Mr Motavalli) to join Mr Jones personally to the Family Law proceedings as a party and subpoenaed him as a witness in respect of criminal charges (proceeding subsequently withdrawn) where the date of the alleged offences were prior to the instruction of Mr Jones by the alleged complaint/victim, Pheobe Galbally (sic).”
20On 19 December 2022, Mr Motavalli lodged a notice of appeal in this Court appealing:
(a) The revocation order; and
(b) The striking out order.
The first ground of appeal – is the revocation order amenable to appeal?
21The first issue raised on appeal regards the revocation order. Mr Jones submits, by his counsel, Mr Marsh, that this Court has no power to entertain an appeal from an order of the magistrate revoking an interim intervention order. Mr Jones filed written submissions in respect of this point.[8] Mr Motavalli filed submissions in respect of this point as well.[9] His submissions overall run to thirty-seven pages. His submissions, specifically in respect of this point, begin on page 32 and conclude on page 35. I have read all the submissions.
[8]Exh R3
[9]Exh A7
Structure of the Act
22An interim intervention order is made in accordance with the Court’s power in s35 of the Act. That permits an interim intervention order to be made if there has been an application for a PSIO.
23The power to revoke an interim intervention order is contained in s85 of the Act. It permits a party to the proceeding in which the intervention order was made to apply to revoke the interim intervention order.
24Mr Motavalli has appealed the revocation order to this Court relying on the general power of appeal contained in s91 of the Act.
25Specifically that section states:
“Who may appeal
(1)A party to a proceeding under this Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order (a relevant decision).
(2)Despite subsection (1)—
(a)an appeal against an order referred to in section 95 may be made only with the consent of the relevant person under that section; and
(b)there is no appeal against an interim order or a refusal to make an interim order.”
The dispute between the parties
26Focus in this case was specifically on s91(2)(b). The respondent contended that the revocation order fell within the terms of s91(2)(b) and as such no appeal could be brought against the revocation order. Mr Motavalli contended otherwise and submitted that the revocation order fell within the general power of appeal contained in s91(1). For the reasons which follow I find that the respondent’s submissions are correct. As a result of that finding, I find that this Court has no jurisdiction to entertain Mr Motavalli’s appeal in respect of the revocation order.
Analysis – the structure of the Act supports the Respondent’s submission
27The starting point for those conclusions begins with the structure of the Act. An application for an intervention order is made in accordance with ss12 and 13. This sets in train the process to ultimately obtain a final intervention order. The Act makes clear that, in certain circumstances, prior to obtaining a final order, it may be necessary to obtain an interim intervention order on the grounds that immediate protection of a person is necessary. This is connected with the main purpose of the Act, set out in s1 of Part 1, which is that:
“The main purposes of this Act are—
(a)to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats;”
28The obtaining of interim orders is a function of the primary purpose of the Act, being protection. Such an interim intervention order can be sought in accordance with s35 which stipulates that an interim intervention order can be obtained to “ensure the safety of the affected person”. However, while an interim intervention order can be sought, the application for a final intervention order remains on track and is not disturbed by the seeking or granting of an interim intervention order. It is not a precondition of obtaining a final order that an interim order be in place. Thus, it can be seen that, if an interim order is revoked, the underlying application for a final intervention order remains on foot in accordance with s61. A revocation of an interim intervention order does not determine final rights in respect of obtaining a final intervention order. That is important because, if the revocation were to finally determine the rights of a party, a right of appeal could be expected. The fact that there is no final determination of rights by the fact of an interim intervention order, or any revocation of that interim intervention order, tells in favour of the respondent’s submission that the revocation order is bound up in s91(2)(b).
Analysis – a revocation form parts of the interim intervention order regime
29Secondly, I consider that, while the term “revocation” is not mentioned in s91(2)(b), a revocation order is intimately connected with the interim order regime for the following reasons:
(a) Revocation is only available in respect of interim, and not final, orders. This strongly suggests that it is intimately bound up with the interim intervention order regime set out in s35;
(b) The Explanatory Memoranda for the legislation which introduced s91(2)(b) in 2018[10] stated:
“Clause 114 substitutes section 91(2) of the Personal Safety Intervention Orders Act 2010 to abolish the right of parties to appeal against an interim personal safety intervention order or a refusal to make an interim personal safety intervention order, consistent with appeals against interim family violence intervention orders. Currently, these appeals are by way of rehearing, which in practice is conducted as a de novo hearing. This may expose the affected person to a fresh hearing and require them to give their evidence again. Allowing appeals against interim orders may also undermine the urgent, protective and temporary nature of interim orders and delay final order proceedings. This restriction will limit the jurisdiction of the Supreme Court and alter or vary s85 of the Constitution Act. This clause does not change the right to judicial review or the appeal rights that exist for final orders.”
[10]Justice Legislation Amendment (Family Violence Protection and Other Matters) Bill 2018, Explanatory Memoranda, clause 114
30The Explanatory Memoranda highlights the fact appeals were to be made in respect to final orders only. Interim orders were specifically mentioned as being distinct from final orders. A revocation is only available in situations where an interim intervention order is made and, as set above, this binds it very closely to the interim intervention order process set out in s35. The Explanatory Memoranda also touches on the issues of the urgent, protective and temporary nature of the interim intervention order and strongly suggests that this would be undermined if there were to be appeals in respect of those orders. This is further support for the interpretation that a revocation order should not be appealed from, as this will have the effect of delaying the application for final order proceedings.
Analysis – the nature of appeal rights is inconsistent with a right of appeal from an interim intervention order
31Third, the appeal power for final orders is a broad appeal power where usually no fresh evidence is heard in this Court, the focus of the appeal being on the legal, factual or discretionary error demonstrated below. This assumes the evidence of the substance of the matter is before the Magistrates’ Court. In contrast an interim intervention order is granted quickly, often on an ex parte basis, to protect an individual prior to the final substantive hearing, before all the evidence is in. This suggests there is no appeal right attached to a revocation order. To allow appeals from revocation order means that the appeal Court is dealing, often, with only one side of the evidence, which is, or may be, hastily gathered. This may make it difficult, if not impossible, for example, to demonstrate factual error. This tells strongly against Mr Motavalli’s interpretation.
Analysis – an appeal from a revocation would fragment the process
32Fourth, to allow an appeal from a revocation would result in fragmentation of the intervention order process. For example, there could be an appeal from the revocation of an interim intervention order, during which time the final application would be stayed pending the outcome of the appeal. This is particularly so if it was to ventilate matters which overlapped with the final application. This would invariably be the case. Then, if Mr Motavalli’s submission was correct, having litigated the appeal in respect of the revocation of an order, after the final hearing there could be a further appeal, litigating material which might well have been the subject of the earlier appeal in respect of the revocation. Higher courts have repeatedly warned against an interpretation of legislation which would permit the fragmentation and multiplicity of proceedings regarding the same subject matter.[11]
[11]MNX (a pseudonym) v TNV (a pseudonym) [2022] VSC 592 at paragraphs [133]-[141]
33All this supports the fact there is no appeal from this Court from the revocation order. I will uphold the respondent’s submission and find this Court has no jurisdiction to hear the appeal as to the revocation order.
The second ground of appeal – is the strike out order attended by legal, factual or discretionary error?
34It will be recalled that the Magistrate made the strike out order relying on Rule 6.02 of the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021.
35That Rule reads in the following terms:
“Striking out proceeding
If a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(c) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the application be struck out or amended.”
36By reason of the decision in AAA, it was made clear that an appeal, such as from the striking out order, was a broad appeal by way of rehearing. It is necessary for Mr Motavalli to demonstrate legal, factual or discretionary error in the decision.
37Mr Motavalli’s 37 pages of submissions deal at pages one through to nine with background matters. At some points during these beginning pages there is some reference to grounds of appeal,[12] but really from page three to page nine, Mr Motavalli has made submissions regarding the background to the relationships between the parties and some history to the proceedings. It is difficult to be precise but doing the best I can, I consider that Mr Motavalli has commenced to describe his grounds of appeal beginning on page ten and continuing through to page 32. At the further Directions Hearing I took Mr Motavalli to each of the grounds of appeal listed at (a) to (e). I confirmed these were the basis for his appeal. I then had him identify the documentary material he sought to tender to support those grounds. I reminded him that as the party bringing the appeal it was incumbent on him to identify those materials. Mr Motavalli did so.
[12]Part 2 grounds for appeal page 2
38It appears, though not precisely, that Mr Motavalli complains of a series of factual errors made by the learned Magistrate which led to her ultimate conclusion. I will come to detail those allegations of factual error in a moment. I will first set out the legal framework which governed the learned Magistrate at the time she made her decision in respect of the striking out order.
39The Magistrate proceeded in accordance with Regulation 6.02 of the Rules to strike out the intervention order application. Specifically, she relied on Regulation 6.02(c). She relied on what she described as an abuse of process as being the basis for the striking out order. In reality, there is no difference between such a finding or whether a matter is struck out for being scandalous, frivolous or vexatious.[13] The term “abuse of process” has no set meaning. Usually, though not always, one of three characteristics is present in such a case. They are:
(a) The court’s process is being invoked for an illegitimate or collateral purpose;
(b) The use of the court’s procedures being unjustifiably oppressive to a party; or
(c) The use of the court’s procedures bringing the administration of justice into disrepute.[14]
An examination of the audio recording before the Magistrate makes more detailed reference to the factors which she considered and then set out in the striking out order.
[13]Knight v Bell [2000] VSCA 48 per Ormiston JA at [11-12]
[14]Rogers v R (1994) 181 CLR 251 at 286
40Turning to consider the legal principles applicable to demonstrating legal, factual or discretionary error.
Legal error
41In Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153, Pritchard J explained:[15]
The merits of administrative decisions (and the findings of fact which are the basis for those decisions) are thus reserved for the discretion of the Tribunal. But if the Tribunal makes a legal error in the way in which it undertakes its fact-finding, or a legal error in the way in which it construes that statute which it is applying in a particular case, or in some other respect of its reasoning, then an appeal lies to correct that legal error. The appeal thus ensures that, amongst other things, the Tribunal does not act outside its jurisdiction. …
[15] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23].
Factual error
42In Lee v Lee (2019) 266 CLR 129, Bell, Gageler, Nettle, and Edelman JJ explained:[16]
A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to inferences with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to competing inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them giving their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.
[16]Lee v Lee (2019) 266 CLR 129 at [55]
Discretionary error
43In House v The King (1936) 55 CLR 499 (‘House’), Dixon, Evatt, and McTiernan explained:[17]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[18]
[17] House v The King (1936) 55 CLR 499 at 504–5.
[18]Other High Court authorities on these appellate principles include: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [5]; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence (2008) 237 CLR 66 [138].
44Mr Motavalli has set out the various errors under headings. For ease of reference, I will use the headings in his submissions beginning on page 10.
45Mr Motavalli broke the learned Magistrate’s reasons in the striking out order into several sections to found his grounds of appeal. He numbered those (a) – (e). I will use that structure to consider each of his grounds. Taking each in turn:
“(a) The ‘application was substantially similar as to the basis of the previous application and refused by the registrar’.”
46It appears, though it is not exactly clear to me, that Mr Motavalli disputes that the previous application was substantially similar to the current one. He further contends that the registrar’s refusal of the previous application was incorrect. Specifically, Mr Motavalli relied on documents AM26 and AM29. Document AM 26 is an application by Mr Motavalli for a PSIO against Mr Jones dated 18 July 2022. Document AM29 is the amended application seeking a PSIO against Mr Jones dated 18 August 2022. As to the admissibility of both documents, I rule that they are both admissible in this appeal as they are relevant to the way in which the learned Magistrate made her ruling striking out the intervention order application. Even though Mr Motavalli did not seek to rely on AM28 it also has relevance and is admissible. This is because it is the relevant application bearing number N12095849 that was before the learned Magistrate. This was the document that she was using for the purposes of comparison with the earlier application. The learned Magistrate specifically referred to the similarity between the earlier application and the one she was faced with. In order to understand the learned Magistrates reasoning, it is necessary to have regard to both applications.
47The learned Magistrate in her brief reasons stated that the “proceedings being substantially similar as to the basis as the first in the previous application made by the applicant and refused by registrar…” ought be struck out. The application that the Magistrate struck out appears at Exhibit A4 (also appearing at AM28). An examination of both documents AM29 and Exhibit A4 shows the documents are, in my estimation, substantially similar. There is no factual error demonstrated on this point.
48Second, it is not for this court to consider whether or not the Registrar’s refusal to file an initial application was correct or not. Further, if it was contended that the Registrar had erred then it was for that decision to be the subject of appeal. No such appeal was brought. In addition, the time to bring such an appeal has now expired. The Magistrates reasons also seek to maintain the orderly conduct of proceedings. If, for example, a party whose application had been rejected simply made the same application again it would result in a significant waste of Court resources, by the duplication of matters and a subversion of the appeal process. For these reasons I would dismiss this ground.
“(b) That the family violence intervention order proceeding which had resolved the previous days in respect of the respondent’s client.”
49Mr Motavalli identifies the error in the following terms:
“HHM’s decision appears to have been based on an incorrect understanding of the legal nexus between separate but related legal matters, without adequately considering the individual applications, the circumstances surrounding these applications, and how these applications unfolded. This oversight occurred during the hearing on November 17 and 21 2022, leading to factual errors that informed the decision and ultimately the final orders.”
50Mr Motavalli relied on documents AM27 and AM28. Document AM27 is an email from Sayer Jones to the Magistrates Court dated 19 July 2022 confirming that Mr Willee of Counsel would be appearing on behalf of Ms Galbally in respect of the Intervention Order application. AM28 is the Application and Summons for Intervention Order N12095849.
51I would dismiss this ground. This court has not been provided with the relevant applications, namely L11321815 (Galbally v Motavalli) and N10996696 (Motavalli v Galbally). The learned Magistrate had access to this material. This court does not. It is the applicant’s case that factual error was made in the learned Magistrate’s assessment. This court is unable to make a finding as to the applicant’s submission that there was factual error given that the court has not been taken to these matters individually and no factual error has been identified and demonstrated.
52I further note that there are a number of unfounded allegations made during the remainder of the submissions on this point. I am not able to deal with these allegations. It is completely unclear how these are said to comprise legal, factual or discretionary error.
“(c) That the Applicant, ‘during family law proceedings sought to join Mr Jones personally to the family law proceedings.”
53Mr Motavalli identified documents AM20, AM25, AM37, and AM38 in support of this ground. AM20 is a subpoena of the Federal Circuit Court to the proper officer of Sayer Jones dated 21 April 2021 seeking production of financial records of Phoebe Galbally. The subpoena was issued in proceeding MLC9499/2020. Document AM25 is a witness summons issued by the Magistrates Court in criminal proceedings where the informant is police officer Lewis and the accused is Mr Motavalli in proceeding M12174765. The summons was obtained by Mr Motavalli and sought that Mr Jones produce documents. Document AM37 is a Criminal Brief of Evidence in M12174765. Document AM38 is an email dated 24 May 2021 from Mr Motavalli to Mr Jones in respect of allegedly stolen funds.
54I rule that each of the above documents are inadmissible. They do not constitute fresh evidence and neither are they relevant to the grounds of appeal. In the alternative however, for the sake of considering this ground of appeal, I have proceeded below on the basis that they are both relevant and admissible on the appeal as fresh evidence.
55Mr Motavalli’s submissions suggest that while Mr Jones was in fact joined to the proceedings, this was done on the advice of Counsel to prevent the dissipation of assets. Mr Motavalli’s appeal point seems to be that, if the Magistrate appreciated that the joinder was done on legal advice and had a legitimate forensic purpose, this would not work against his application for the intervention order as the Magistrate considered that it did.
56What is clear from this ground of appeal is that it does not allege that there was an error of fact. It is clear that Mr Motavalli had, in fact, attempted to join Mr Jones as a third party to earlier proceedings regarding the family law matters. Mr Motavalli complains that the failure to appreciate the factual context of that application led the Magistrate into error. I am unable to accept this given that the Magistrate makes clear that she had simply taken the fact of the joinder into account rather than proceeding on any erroneous basis as to why that joinder was made. She proceeded on a correct factual basis to a finding this was a factor in her conclusion that the proceeding was an abuse of process. I am unable to accept that the Magistrate has made an error of fact which has led to an erroneous finding.
“(d) The Applicant sought to subpoena the Respondent as a witness in respect of criminal charges (subsequently withdrawn).”
57These submissions at pages 13 and 14 seem to relate to criminal proceedings brought against Mr Motavalli during which he subpoenaed Mr Jones.
58In support of this ground Mr Motavalli identified documents AM20, AM25, AM37, and AM38. I have set out the details of those documents above. I repeat my ruling in relation to the documents above. In the alternative I proceed below however on the basis that I have considered the documents relevant and admissible as fresh evidence.
59Mr Motavalli complains that the learned Magistrate was not aware of the background circumstances which led to the subpoena of Mr Jones. Similar to the reasoning above, it appears that the Magistrate has only proceeded on the basis that a subpoena had been issued against Mr Jones. This was correct as far as it went.
60From his submissions it appears that Mr Motavalli wanted the Magistrate to understand that Mr Jones had used the criminal charges as “… another strategic legal tool, concocted by the Respondent and their Client, aimed at evading personal criminal liability and establishing a basis for pursuing fraudulent financial compensation.”[19]
[19]Page 13 paragraph (d) (4) of the appellant’s submission
61It is a fact that the criminal charges were not filed by Mr Jones but by a prosecuting agency independent of Mr Jones. The allegation of Mr Motavalli is not a matter that the Magistrate took into account, and it is unclear how she could, and nor is it a matter this court can entertain given the limited nature of the appeal.
62I consider no demonstrated legal, factual or discretionary error in the Magistrate’s reasons is made out.
“(e) Finally, where the ‘alleged offences were prior to the instruction of Mr Jones by the alleged complainant’.”
63This ground alleges that the Magistrate was factually in error by accepting that Mr Jones was unable to identify Mr Motavalli.
64In support of this ground Mr Motavalli identified documents AM20, AM25, AM37, and AM38. I have set out the details of those documents above. I repeat my ruling in relation to the documents above. In the alternative I proceed below however on the basis that I have considered the documents relevant and admissible as fresh evidence.
65It is entirely possible that the representation that the alleged offences were prior to the instruction of Mr Jones by the alleged complainant/victim, Phoebe Galbally, is incorrect. However, as is made clear by the Magistrate, she had access to material on the Magistrates’ Court file which this court does not. Similarly, no evidence was sought to be adduced as fresh evidence in this case indicating the date when Mr Jones was in fact instructed, apart from the bald assertions in Mr Motavalli’s submissions, at pages 14 and 15. These bald assertions do not allow this court to identify the legal, factual or discretionary error under this ground.
66However even if the Magistrate had made an error of the kind Mr Motavalli submits it is entirely unclear in what way that further information would have made any difference to the outcome.[20]
[20]Stead v SGIO (1986) 161 CLR 141 at 145
67For this reason, this ground must also be dismissed.
68Having dealt with these matters which go to the reasons behind the orders of Magistrate Medina in the making of the striking out order, I consider I have dealt with the substantive allegations made by Mr Motavalli. There are then a series of submissions which run from page 15 through to page 32. It is entirely unclear to this court what exactly this material is meant to demonstrate. Variously it is said to demonstrate misrepresentations made by Mr Norton who appeared on behalf of Mr Jones before her Honour Magistrate Medina during a series of mentions. However, these mentions preceded the hearing on 21 November 2022 and it is unclear how it is said those mentions have relevance to the hearing on that day and the orders made.
69The findings made above have been reached after the decision in AAA gave guidance to this Court on the way such appeals are to be conducted. In order to hear appeals from the Magistrates Court in relation to matters arising under the Act, it was assumed that transcript of Magistrates Court matters was routinely available. Transcript in matters arising under the Act is not usually provided. Neither is the audio recording. Both the audio recording and the transcript can be provided for a fee but in nearly 90% of cases involving the Act the party bringing the appeal is self-represented and is unable to afford transcript. The audio recordings can be made available at little to no cost, but they are often of poor quality, as is the case here, with multiple parties talking over each other and go for several hours. Conducting an appeal where the record of what occurred below is confused is difficult. In addition, a self-represented litigant has real difficulty in formulating grounds of appeal focused on the legal, factual and discretionary grounds when all they have access to is a recording. These matters have held up the vast majority of appeals from decisions under the Act. This matter was only able to proceed given the very short hearing below.
70Despite these matters this appeal was able to be heard because of the cooperation of the parties in agreeing to proceed on the audio of the hearing below only.
71In respect of the remaining documents sought to be tendered in the bundle AM1- AM39, other than those referred to above which I have ruled admissible, I rule them inadmissible on this appeal. They do not go to any grounds of appeal and are not relevant.
72Having heard the matter, and received extensive submissions, for the reasons set out above I find that Mr Motavalli has not demonstrated legal, factual or discretionary error which would enliven the jurisdiction of this court. I will dismiss his appeal in respect of the revocation order and the striking out order.
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