S, E v B, A

[2024] VCC 1184

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

S, E	Plaintiff
v
B, A	Defendant

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JUDGE:	Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2024
DATE OF JUDGMENT:	16 August 2024
CASE MAY BE CITED AS:	S, E v B, A
MEDIUM NEUTRAL CITATION:	[2024] VCC 1184

REASONS FOR JUDGMENT
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Subject:Appeal against personal safety intervention order

Catchwords:              Intervention order appeal – Where appellant is self-represented litigant – Legal, factual or discretionary error – Where appellant and protected person are children

Legislation Cited:      Personal Safety Intervention Orders Act 2010 (Vic)

Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499

Judgment:                  Appeal upheld

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S, E, in person
For the Respondent	Ms M Deighton of Counsel	WS Lawyers

HIS HONOUR:

1In this proceeding, S,E[1] appeals against an order made at the Magistrates’ Court on 4 August 2023. On this date, Magistrate Saines granted B,A[2] and her son, K,H,[3] a Personal Safety Intervention Order (“PSIO”) against S,E.  This appeal is brought pursuant to s91 of the Personal Safety Intervention Order Act 2010 (Vic) (“the Act”).

[1]A pseudonym

[2]A pseudonym

[3]A pseudonym

Relevant background

2I will briefly set out the circumstances in which the PSIO was granted. On 6 February 2023, B,A applied for a PSIO listing herself and her son, K,H, who was then aged 12 and is now aged 13, as protected persons. The application was made against S,E, who was also aged 12 at the time, on the basis that he allegedly harassed and threatened B,A and K,H using various carriage services, against a background of him bullying K,H at school.

3The Court made a no-contact interim PSIO on the same day the application was made. On 4 August 2024, Magistrate Saines granted a final PSIO, for a period of 16 months.

Relevant legal principles

4In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”), [4] John Dixon J considered the terminology associated with s119 and particularly the meaning of the term “rehearing by the County Court” which appears there.  In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing.  The features of such a broad appeal are the following:

(a)   that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[5]

(b)   the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[6]

(c)   the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[7]

(d)   the Court is required to assess and evaluate the evidence for itself.[8]

[4][2023] VSC 13. Given the similarity between legislation under consideration in this case, I consider the principles his Honour set down apply to the Personal Safety Intervention Order Act 2010 (Vic)

[5]Ibid at paragraph [50]

[6]Ibid

[7]Ibid

[8]Ibid

5However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[9]

[9]Ibid at paragraph [54]

6As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[10]  He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal.  It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence.  He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[11]

[10]Ibid at paragraph [63]

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

7Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court.  Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.

Errors of law, fact and discretion

8What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[12]  With that said, established legal principles operate to guide the courts through an assessment of claimed errors.  I turn now to briefly consider those.

[12]        Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Legal error

9A legal error may arise in the way in which a court:

“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[13]

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

10Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[14]

[14]        Ibid

Factual error

11A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[15]  A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[16]

[15]        Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479

[16]        Ibid

12The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[17]

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

[17] (2019) 266 CLR 129 at [55]

13Similarly, in Blunt v Blunt it was said:

“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”[18]

[18]        Blunt v Blunt [1943] AC 517 at 526

Discretionary error

14Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.

15The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[19]

“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.”

[19] (1936) 55 CLR 499 at 504-505

Appellant’s grounds of appeal

16The appellant provided written submissions setting out various grounds of appeal.[20] At the hearing of this matter on 2 August 2024, I asked the appellant to identify their strongest grounds. The first ground advanced by appellant was that the learned Magistrate made a legal error in making a PSIO of greater than 12 months duration.

[20]Court Book (“CB”) 2-12

17The appellant submitted that under s78 of the Act, if the respondent is a child, a PSIO cannot be imposed for more than 12 months unless there are exceptional circumstances. Magistrate Saines made the order from 4 August 2023 until 24 December 2024, a period of 16 months and 20 days.  The appellant submitted that the Magistrate’s reasons for the decision make no finding as to whether there were exceptional circumstances of the case and the facts of the case do not justify such a finding.

18The duration of the PSIO is a clear breach of the Act and the Magistrate’s powers as he failed to consider whether exceptional circumstances existed. The failure to provide such reasons constitutes further error which vitiates the orders made. If necessary, I would have found it reveals the learned Magistrate did not properly consider whether exceptional circumstances existed. This is a further error which results in the appeal being upheld.

19The learned Magistrate’s ruling does not address the reasons for granting a PSIO of this duration or whether exceptional circumstances are present.[21] For this reason, I uphold the appeal and order that the PSIO against S,E be revoked. I make it plain this also revokes the interim order against him. I will not order a rehearing in this matter given orders have been in place since February 2023. This is now 18 months ago. I am informed by the parties that there have been no breaches of the order. I consider it futile to set this matter down for rehearing as the maximum time that the final order could have been imposed has already been exhausted.

[21]Transcript of Magistrates’ Court hearing of 4 August 2023